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VOLUME 43 | NUMBER 6 | JULY 2016

New Supreme Court Building


Marking 10 years of service by the Hon Wayne Martin AC as Chief Justice of Western Australia

Friday, 9 September 2016 6.30pm for pre-dinner drinks BelleVue Ballroom, Perth Convention and Exhibition Centre This event promises to be the premier social occasion for the legal profession including members of the judiciary and special guests visiting Perth for the Law Council of Australia September Directors meeting. With the purpose of acknowledging the importance of the profession in Western Australia and to highlight the 10 year milestone of the Chief Justice, it is a celebration not to miss. Guests will be treated to a beautiful three course dinner accompanied by premium beverages, talented West Australian entertainers and a fun silent auction to raise funds for the Chief Justice’s Law Week Youth Appeal Trust.

Part proceeds raised go to Holyoake Holyoake would like to thank the Law Society of Western Australia for naming it the recipent of part proceeds raised.

To register visit lawsocietywa.asn.au/gala-dinner

Principal sponsor

Gold sponsors

Production sponsor

Note: The Society endorses moderation and a responsible attitude towards alcohol at all Society functions.


Contents Volume 43 | Number 6 | July 2016

08

16 06

Quality Practice Standard celebrates 20th anniversary

08

Can artificial intelligence ever give legal advice?

10

The Fine Art of Giving and Taking Offence

COVER

15

Murdoch University's Mock Trial Seminar

16

The Case for Legal Aid - Law Week Breakfast

New Supreme Court Building

18

Volunteers and Social Justice

20

New Supreme Court Building

22

Lawyer beware!

26

Running a Litigation File

30

Understanding innovation risk

33

Nature of evidence and presumptions in probate actions

40

Smarter Justice: Safer Communities

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. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Manager Marketing and Communications Moira McKechnie Tel: (08) 9324 8650 Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer Andrew MacNiven Communications and Design Officer Brett Syme RRP $15.00 incl GST.

REGULARS 02 President's Report 03 Your voice at work 04 Editor's Opinion 43 Family Law Case Notes 44 Law Council Update 45 Pam Sawyer 46 Professional Announcements 47 New Members 47 Classifieds 48 Events Calendar

Editor Jason MacLaurin

President Elizabeth Needham

Deputy Editors Andrew Cameron, Moira Taylor

Senior Vice President Alain Musikanth

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Catherine Graville, Melissa Koo, Jason MacLaurin, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor

Vice President Hayley Cormann

Proofreaders David Garnsworthy, Ann Kay, Andrew MacNiven

Printed by Scott Print Brief is the official journal of The Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

Treasurer Nathan Ebbs Ordinary Members Alison Aldrich, Marie Botsis, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Immediate Past President Matthew Keogh Chief Executive Officer David Price

01


President's Report Elizabeth Needham President, The Law Society of Western Australia

REVIEW OF LAW SOCIETY'S CONSTITUTION

thanking him for his service on behalf of the profession.

The Society has appointed a Working Group to review its Constitution, having regard to requirements in the Associations Incorporation Act 2015. The Society's Constitution is required to comply with the new Act, which comes into operation on 1 July 2016. There is a three year period from 1 July 2016 for incorporated associations to comply with the new regime. The last detailed review of the Constitution was in 2006.

His Honour was first appointed to the SAT as a Senior Member in January 2005, at that time heading up the Development and Resources Stream, having a distinguished background in environmental and planning law. In 2011 His Honour's talents were recognised and he was appointed as a Judge of the District Court and immediately as a Deputy President of the SAT.

LAW SOCIETY IN THE MEDIA I am working closely with our Advocacy and Marketing and Communications staff to develop a series of briefing papers/position statements on key issues, which will also provide a condensed guide to the policy positions of the Law Society. The purpose of this is to ensure that whoever from the Society is dealing with the media is fully briefed, so we are able to enter the debate on key issues promptly and act as the authoritative voice of reason. This allows us to both enter into public debate directly and promptly as issues come under the media spotlight, as well as advocate robustly for the interests of our members. JUDGE PARRY Those practising in the jurisdiction of the State Administrative Tribunal (SAT) will be aware that the President of the SAT, Justice Curthoys, has implemented a number of administrative and procedural changes over the last almost 2 ½ years. The effect has been to create a leaner Tribunal without losing efficiency. Following the President's report to Government earlier this year, it was evident that SAT could no longer justify maintaining several positions, including one of the Deputy Presidents. The Deputy Presidents' roles are in effect a secondment from the District Court for up to 5 years at a time. This allows for flexibility both for the SAT and for the District Court, just as is the case for WorkCover and the Judges in the Children's Court. As such, those appointed to the District Court are expected to have the versatility to handle all aspects of the extended jurisdiction – and have proven themselves ably to do so. At the same time as the SAT report was received by Government, Chief Judge Sleight of the District Court was seeking additional resources for the substantive jurisdiction in His Honour's Court. So the SAT's loss will undoubtedly be the District Court proper's gain with the movement of Judge Parry into the District Court's fold. As the Deputy President's position is a seconded position, there is no farewell ceremonial sitting for Judge Parry, so I have taken the liberty of writing to Judge Parry and

02 | BRIEF JULY 2016

During His Honour's time at the SAT he has been the principal author of the Tribunal's practice notice and other publications for the general public as well as being the coauthor (with Dr Bertus De Villiers) of the Guide to Proceedings in the SAT (Lawbook Co/ ThomsonReuters, 2012) and a chapter in the same publisher's loose-leaf service – Lawyers Practice Manual WA. Judge Parry is also a Consulting Editor of the State Reports (Western Australia). On behalf of the Society I have wished Judge Parry well in this new chapter of his much appreciated service to the Western Australian community and noted that we look forward to appearing before His Honour. LAW COUNCIL OF AUSTRALIA On Saturday, 18 June 2016, I attended a meeting of the Directors of the Law Council of Australia. Key issues on the agenda included the adoption of a Policy Statement on Human Rights and the Legal Profession and a National Model Equitable Briefing Policy. Human Rights Policy Statement The Law Council's Policy Statement on Human Rights and the Legal Profession endorses an approach, consistent with international law and practice, which confirms that all human rights are universal, indivisible and interdependent. It aims to provide a framework for activities of the Law Council in relation to human rights, and in evaluating the merits of legislation, policy and practice by reference to international human rights law. The Policy Statement contains 29 commitments to be made by the Law Council. Commitments are directed to: • the domestic implementation of international human rights in Australia; • advocacy in relation to human rights in Australia and internationally; • education and public awareness in relation to human rights; and • participation in the international human rights system. National Model Equitable Briefing Policy On 26 October 2015, the Law Council held a National Equitable Briefing Roundtable

in Sydney, inviting representatives of each Bar Association, Law Society and Law Firms Australia. It was agreed that the Law Council would develop a Draft National Model Equitable Briefing Policy for consultation based on the discussions and feedback provided by participants during the Roundtable. The aim of the Equitable Briefing Policy is to achieve a nationally consistent approach towards bringing about cultural and attitudinal change within the legal profession with respect to gender briefing practices and: •

play an important role in the progression of women in the law, the judiciary and the wider community;

give effect to other wider diversity and equity policies;

redress the under-representation of women barristers in Australia;

acknowledge that diverse groups bring a greater variety of experience and enhance decision- making;

provide role models for women in the legal profession generally;

better reflect the community and its confidence in the profession that the law is not only fair but seen to be fair; and

enhance the profession's credibility by being representative of the composition of the community.

The Equitable Briefing Policy adopted includes the following non-mandatory targets: • to make all reasonable endeavours to brief or select women barristers with relevant seniority and expertise, experience or interest in the relevant practice area; • by 1 July 2018: o to brief or select senior women barristers accounting for at least 20% of all briefs and/or 20% of the value of all brief fees paid to senior barristers; o to brief or select junior women barristers accounting for at least 30% of all briefs and/or 30% of the value of all brief fees paid to junior barristers; and o to provide a confidential report to their local Bar Association or Law Society each year with respect to the measures taken to implement these targets. The Equitable Briefing Policy was adopted by the Law Council on the basis that it would be reviewed following an initial reporting period, which will run until September 2017. The Law Society Council has adopted this policy and will be working with the Law Council and our members to help implement this important step.


Your voice at work A snapshot of recent Society initiatives

LAW SOCIETY JOINS LEGAL AID MATTERS CAMPAIGN The Law Society joined with the Law Council of Australia and other Australian Law Societies and Bar Associations to officially launch the Legal Aid Matters campaign. Australia's legal aid system is in crisis, with justice being denied to thousands of Australians each year who cannot afford access to a lawyer. Hundreds of millions of dollars in cuts by successive Federal Governments have crippled the legal aid safety net, causing vital services to shut down and putting intolerable pressure on State funded services. Law Society President Elizabeth Needham said, "The legal aid crisis is ruining lives. Australians are being forced to represent themselves in court. Women trying to escape domestic violence are being crossexamined by abusive partners, without a lawyer to aid them. Young men and women are facing imprisonment without any legal representation. "The legal aid crisis strikes at the heart of the notion that Australia is a fair, egalitarian nation. What kind of society do we want to live in? One in which everyone has access to justice – or only those who can afford a lawyer?" "It is short-sighted of successive governments to fail to address this funding crisis as it only results in increased costs to the tax payer and in fact the whole community; whether that be by lengthier court proceedings, more people in jail or going to in court in the first place when the provision of sound legal advice or social work assistance from, for example a Community Legal Centre, might have avoided the need for legal proceedings at all." The Legal Aid Matters campaign calls on the next Federal Government to: •

Increase the Commonwealth's share of Legal Aid Commission funding to 50 percent with the States and Territories. This would amount to an additional $126 million.

Immediately provide $120 million to cover civil legal assistance, with the States and Territories contributing $80 million, for a total of $200 million – as recommended by the Productivity Commission.

Immediately reverse the 2014

Commonwealth funding cuts to Community Legal Centres ($12.1 million) and Aboriginal and Torres Strait Islander Legal Services ($4.5 million) to take effect from July 2017. Please visit legalaidmatters.org.au to learn more about the legal aid crisis, sign a petition, and even directly contact your local MP. LAW SOCIETY JOINS STREET BANNER PROJECT FOR NATIONAL RECONCILIATION WEEK The Law Society was delighted to join the Street Banner Project for National Reconciliation Week 2016. The Law Society had a banner featuring its logo and artwork by Aboriginal artist Neil Maxwell Tjampitjinba displayed on St Georges Terrace, where it remained throughout National Reconciliation Week. Law Society President Elizabeth Needham said, "The Street Banner Project provides an ideal opportunity for the Law Society to reaffirm its vision of a legal profession and community in which Aboriginal and Torres Strait Islander people feel respected and valued; enriching the fabric of our community. "The Law Society's ongoing 'Closing the Gap' initiative will focus on issues including Aboriginal incarceration and justice reinvestment. Our inaugural Reconciliation Action Plan will be refreshed and renewed in July for the 2016-2017 period. The Law Society encourages law firms to adopt their own Reconciliation Action Plans and together help build a reconciled, just and equitable Australian community." The Department of Aboriginal Affairs has organised the display of Reconciliation Banners in prominent locations across the City of Perth and other local government areas. Since 2011, the project has grown with the support of an increasing number of organisations. In 2015, 110 organisations sponsored over 240 banners. WINNERS OF CLUEDUNNIT KIDS COMPETITION ANNOUNCED The Law Society of Western Australia's Cluedunnit Kids Competition closed on Monday, 16 May 2016. The judging panel unanimously agreed the winners of the 2016 competition were Wanneroo Primary School. The runner up school was Donnybrook District High School, while the ambassador school award went to Halls Head Primary School.

Law Society President Elizabeth Needham said, "The Cluedunnit Kids Competition provides a fantastic opportunity for students in Year 5 and Year 6 to expand their knowledge of the law and build research, analytical and creative skills. On behalf of the Law Society, I thank all of the schools, students and teachers who took part and congratulate the competition winners." The Cluedunnit Kids Competition, formerly known as Clued up Kids, involves students in teams of about five investigating a fictional criminal offence with the goal of identifying the offender. The winners of the 2016 Cluedunnit Kids Competition, Wanneroo Primary School, were presented with their awards at a ceremony held as part of the school assembly at the Wanneroo Primary School on Friday, 17 June 2016. Senior Vice President, Alain Musikanth, presented the team leader with a trophy and book voucher. All team members were presented with a medal, Cluedunnit Kids pen and a certificate of participation by representatives from the judging panel, Claire Rossi from Legal Aid WA and Sergeant Garry Corker from WA Police. Students from Halls Head Primary School also attended and were presented with the Ambassador Award. 381 students from 34 schools participated in the competition in 2016. Of the 34 schools, 24 final submissions were received for judging. The Cluedunnit Kids Competition is sponsored by Curtin University. LAW SOCIETY SUBMISSIONS •

Harmonisation of Conduct Rule 3s – Comparison between Legal Profession Conduct Rules 2010 (WA) and Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2016 – Letter to the Legal Practice Board WA

Expunging of Criminal Convictions for Historical Homosexual Offences – Submission to the Attorney General (State) 

Legal Costs Committee Review: Legal Profession (Family Court of Western Australia) Determination 2014; Legal Profession (State Administrative Tribunal) Determination 2014; Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 – Submission to the Legal Costs Committee

03


Editor's Opinion Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This edition's cover notes the significant occasion of the opening of the new Supreme Court complex, which will house the Civil General Division, as well as accommodating other functions. The new Court complex is an exciting development, and the culmination of great foresight and effort by many, but the Chief Justice in particular. There is an article from the Chief Justice in this edition about the new Court complex, and some upcoming events concerning its opening. Courthouses affect the profession, and also the public at large.1 Delving into the esoteric area of courthouse architecture is, however, a dangerous exercise for the inexperienced.2 J D Rosenbloom's article "Social Ideology as Seen Through Courtroom and Courthouse Architecture"3 refers, under the heading "Public Architecture as a Manifestation of Social Ideology", to Henri Lefebvre's statement in "Reflection on the Politics of Space" that "Space is not a scientific object removed from ideology and politics… Space has been shaped and molded from historical and natural elements, but this has been a political process…it is a product literally filled with ideologies". This is good to know. Hitherto my adulthood appreciation of the concept of (Earthly) 'space' was limited to something that one was constantly and serially being told by others that they needed more of.4 These texts are learned works, though they also seem to be the type of books lawyers pick up at the annual UWA Undercroft charity book-sale for $3 assuming that, if not read, they'll impress on a coffee table or, more likely, as part of a trendy "fill your disused fireplace with books"5 interior decorating effort.6 I hope this isn't an unduly idiosyncratic observation, but I record my appreciation that no chairs in the new Court will follow the design of Courts 2 and 3 in the original building by being bolted to the floor in an exquisitely uncomfortable configuration, having regard to the bar table and, for that matter, gravity. To those of us appearing as counsel who are of a particular body shape and degree of flexibility and nimbleness (i.e. not a member of "The Avengers")7 these chairs 04 | BRIEF JULY 2016

are occasionally problematic. It is bad enough being the subject of ridicule and embarrassment while on one's feet, without also looking ridiculous in the process of making it to those feet and then back again. It is a terrible thought that a Judge might seriously contemplate adjourning pro tempore, just to allow sufficient time for counsel to get to a standing position. The thinking behind fixed chairs is unclear8. The most common examples of chairs being fixed in place are in aeroplanes or a dentist or obstetrician's practice - in any event, not situations where the seated party is expected to leap, at a moment's notice, to their feet to make an objection or impressive oral argument. Sometimes, even the best architectural ideas can go awry. The frieze of the US Supreme Court contains a sculpture of Moses whose beard inadvertently obscures the words "Though shalt not" from several of the Ten Commandments also depicted in the frieze. Hence, an opportunistic observer might disingenuously conclude that the Court is giving the green light for stealing, killing and adultery. Fortunately, there is no representation of Meatloaf in the frieze advising that "Two Out of Three Ain't Bad". A significant historical building that opened in the month of July (July 17, 1955) was the original Anaheim Disneyland; though no comparison should be drawn as, while the new Court might not be the "happiest place on Earth", its opening will assuredly run smoother. 9 An interesting note from Disneyland's opening was the ingenious way Walt Disney handled the dual problem of the plants he wanted not being planted on time and there being, at the time of opening, rampant weeds everywhere: he placed plaques bearing the weeds' technical latin species names in front of them – giving the impression they were intended, exotic, and valuable plants. While latin phrases and a knowledge of latin are of course a great thing in the law, the modern practice of encouraging plain English, exemplified in modern commercial courts (of which our Supreme

Court is happily no exception) shows we are likely beyond the use of impressive sounding latin phrases to cover up for some of the law's more gnarly and difficult concepts. I hope members of the profession will take the time to attend the various events surrounding the opening of the new Court complex. This edition contains a number of interesting and informative articles, including from the Chief Justice of the High Court's Birkenhead Lecture "The Fine Art of Giving and Taking Offence", former Supreme Court Justice the Honourable Justice Heenan's article upon "The Nature of Evidence and Presumptions in probate actions", and an important update from Claire Thompson, the Chair of the Legal Costs Committee, upon changes to the costs scales. NOTES 1.

SCOTUS Justice Lewis F. Powell observed: "Public buildings often accurately reflect the beliefs, priorities, and aspirations of a people […] the courthouse has served not just as a local center of the law and government but as a meeting ground, cultural hub, and social gathering place"

2.

Such as the Editor.

3.

Columbia Journal of Law & the Arts (1998).

4.

The great Irish comedian/actor Dylan Moran observed: "People never quantify exactly how much space they need - but strangely enough, it always seems to be the exact same height, depth, and breadth as you" (Monster, 2004).

5.

The Editor is not usually known for interior decorating tips but see https://au.pinterest.com/kwiklearning/ books-in-the-fireplace/.

6.

Unfortunately, if you have kids that still believe in Santa, you either have to remove the books on Christmas Eve or tell them: "Santa will get the job done- he's Santa for crying out loud- its within his pay-grade –he's like Bruce Willis in "Die Hard"- just chill and get to bed". I realise this is no match for another Editor's statement in 1897 in a different publication: "Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus! It would be as dreary as if there were no Virginias. There would be no childlike faith then, no poetry, no romance to make tolerable this existence."

7.

The Editor has not taken sides in the "Iron Man vs Captain America Civil War" which should be of some temporary relief to the Law Society.

8.

I understand their removal would be a heritage issue, but if their original purposes was to prevent chairs being used as weapons I note that having fixed chairs for public seating did not prevent the use of other chairs in any of WWE's Wrestlemanias I to XXXII.

9.

I should say that Disneyland's "Matterhorn" ride is the only time I have felt more safely fixed in place than being in a chair in Court 3.

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


Market Update – July 2016 Demand for quality Real Estate practitioners and Corporate M&A specialists remains strong. An influx of opportunities in back-end Construction, Commercial Litigation and Insolvency continues. Opportunities exist for specialists in these areas with 2 years, up to junior SA level and strategic senior requirements across all practice areas for experienced Senior Associates, through to Partners. For assistance with your next career move, please contact us for a confidential discussion regarding our full range of available opportunities. Please find below a selection of our latest job opportunities for July.

Senior Associate

Insolvency Lawyer

Projects

3-5 years PAE

As one of the leading specialist groups in the region, a rare career progression opportunity exists for an ambitious and highly motivated Projects and front-end Construction Lawyer to join this rapidly growing local team.

As one of Perth’s most highly regarded Insolvency practices, this thriving team acts for insolvency practitioners, financial institutions and medium to large corporations, advising on and managing all insolvency and restructuring matters, as well as all banking & finance litigation, general disputes and recovery actions.

This key appointment will ensure you gain exposure to the full project life cycle of port, rail, road and other major infrastructure projects. The team specialise in the development and management of front-end construction, PPP and infrastructure projects, as well as advising on and managing all related project financing and corporate transactional issues. Exceptional communication, commercial drafting and negotiation skills will be essential, as you prepare and negotiate all commercial documents and directly advise public and private clients throughout all stages of the process. You’ll be at or on the cusp of promotion to SA level and will be ensured regular autonomy, client contact and collaboration with your supervising partner, as well as a clear pathway to advance your career.

You’ll provide support on complex negotiations or larger litigation matters, with responsibility for document preparation and negotiation, legal research, client advice and liaison. There will be autonomy to run lower level recovery matters, including all appearance work. Working under the direction of talented senior lawyers, you will have access to superb mentoring and training and a consistent flow of work to keep you busy and challenged. You’ll require 3 years PAE in insolvency, solid academics and training with quality firm. General commercial litigators with some exposure to insolvency work and a genuine desire to specialise will also be considered. Develop your expertise with this quality team.

Senior Associate

Corporate Lawyer

Employment & Safety

2-3 years PAE

This prominent firm has an exciting new requirement for a senior Workplace Relations lawyer, with proven expertise in health & safety, to support the growth and development of their specialist team.

Fabulous career opportunity for a top-tier junior to position themselves into a leading Corporate team in its infancy and play a key role in the future success of the Australian practice of this highly rated global firm.

Your role will focus on safety prosecutions, workplace investigations and management of complex litigation matters, as well as substantial advice on strategic risk and compliance issues. Working with a leading partner, you will act directly for the firms existing client base, which includes established relationships with employers in construction, resources, government and other key industry sectors.

You’ll work on major corporate transactions from start to finish, acting for a premier base of ASX listed and international public companies on regulated M&A, capital markets, general corporate advisory and compliance matters, as well related commercial and resources work. You’ll foster key client relationships and over time, position yourself into a more senior position within the firm.

Outstanding communication skills and the ability to build long term client relationships will be crucial, as you will regularly participate in client training, education, networking and business development activities. You’ll require at least 5 years PAE in workplace relations, and demonstrated safety expertise. Top opportunities for long term career progression.

Superb academics and previous experience and training with a top-tier firm will be essential. You’ll have guidance and support from globally renowned partners and as part of a growing team, definite opportunities for career progression. If you’re looking to build your career as a corporate specialist with a leading global firm, this rare role must not be missed!

Stacey Back Director p

m

e

www.

.au


Quality Practice Standard celebrates 20th anniversary David Vilensky Member of the Law Society's Quality Practice Standard Committee

The Law Society of Western Australia's Quality Practice Standard celebrates 20 years in Western Australia since its launch on 19 June 1996. The Quality Practice Standard recognises firms that have developed and have adhered to documented internal systems and processes to achieve excellence in legal practice management. It is a means by which firms and practices, large and small, can enhance competitiveness, deepen client relationships, mitigate risk and ensure that accountability and service excellence is upheld. The Standard has been developed in Western Australia through the Law Society's Quality Practice Standard Committee, which was established in 1996. The Standard is based on a similar model developed in the United Kingdom and on the international model for quality management, ISO 9001, as it specifically applies to law firms. The scheme has attracted firms of all sizes and across all practice areas. To date, more than 45 Western Australian legal practices are Quality Practice Standard certificated. By obtaining accreditation, these firms have not only demonstrated their commitment to quality practice but also qualify for a discount for the first year on professional indemnity insurance premises and a different discount thereafter. These discounts assist with the cost of preparing for compliance. The Standard has been designed to assist

legal practices to: •

understand and adopt quality management principles and modern law firm practice management techniques;

focus on clients' requirements and client care issues which impact on risk management and claims made against professional indemnity insurers; and

enhance the status of the profession in the marketplace.

Given the alignment of standards and risk management strategies, it is no surprise that firms that have achieved accreditation have a better claim experience than nonaccredited firms. Another practical benefit of accreditation includes recognition by the WA State Supply Commission (now part of the WA Department of Finance) which is now responsible for much of the tendering and outsourcing of Government services in WA which recognises Quality Practice Standard as a quality assurance scheme which is often a requirement in the tendering process. The Standard identifies the requirements for a more effective and efficient practice by clearly defining what issues must be addressed. It is equally applicable and achievable by sole practices as well as large international practices. Even the legal departments of large corporations can achieve accreditation.

Achieving accreditation is not a complicated process and most legal practices already have many of the requirements in place. Often it is a case of adapting existing resources to achieve accreditation. The Law Society runs workshops to assist firms to gain accreditation, which is available to practices that have lawyers who are members. The Standard is monitored by the Law Society and is regularly updated to accommodate changes in legal practice, including changes resulting from the advent of the Legal Profession Act 2008 and associated legislation. Through the ongoing initiatives of the Law Society, the Standard remains relevant, user friendly and fits into the nationally endorsed quality standards framework for legal services. The Law Society is to be commended for its work in developing and maintaining the Quality Practice Standard initiative in Western Australia. The Committee and its Convenor deserve special mention for their tireless dedication, commitment and leadership of promoting Quality Practice Standard accreditation, which has a core function to enhance the status of the legal profession in Western Australia. For more information about Quality Practice Standard, visit lawsocietywa.asn.au/qps or contact Francesca Giglia on (08) 9324 8606 or qps@lawsocietywa.asn.au.

IMPROVING THE QUALITY AND REDUCING RISK IN LEGAL PRACTICES Benefits of becoming accredited: • • • • •

Receive a 7% discount for the first year, 5% thereafter for professional indemnity insurance issued through Law Mutual (WA); QPS Certificate issued (valid for 12 months from date of approval); Be referenced in Law Society publications as QPS Accredited; Exclusive use of the Approved Quality Practice logo; and Window decals available for purchase - a striking display of your commitment to excellence and quality service.

06 | BRIEF JULY 2016

lawsocietywa.asn.au/qps


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Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0450 525 025. autoclassic.com.au Benefits apply to the purchase of a new BMW vehicle and only to the vehicle purchased. Subject to eligibility. Terms, conditions, exclusions and other limitations apply. Consult Auto Classic for further details.

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Can artificial intelligence ever give legal advice? This article was first published in New Zealand Law Society's LawTalk, issue 887

Benjamin Liu

In March this year, AlphaGo, the super computer built by Google, won a historical match against world champion Lee Sedol in the game of Go, a board game invented in China more than 2,000 years ago. What makes this win remarkable? After all, IBM's computer Deep Blue beat chess Grandmaster Garry Kasparov 20 years ago. The key difference is this. Deep Blue won the match by applying brutal force – it searched all possible moves and chose the best ones. However, this approach cannot be used in Go. Go is probably the most complex game in the world. A Go game could have many more potential moves than the number of atoms in the universe. Searching all possible moves is simply impossible. It has long been thought that mastering Go requires human intuition, a quality which computers do not have. Yet, AlphaGo, against all the odds, handsomely beat Lee Sedol by a landslide 4:1. Will this breakthrough bring us a step closer to an AI lawyer who can provide legal advice? It's possible, but we have to be very cautious. As it happens, law involves two of the most formidable challenges in the field of artificial intelligence: natural language processing and logical reasoning. NATURAL LANGUAGE PROCESSING Law is expressed in natural language. As all lawyers know too well, natural language is full of uncertainties and subtle imprecisions. In fact, after decades of effort, an artificial intelligence system is still far away from being able to understand and converse properly in natural language, something which comes naturally to the average human.

08 | BRIEF JULY 2016

Part of the reason for this is because words are context-based. In other words, the meaning of a word is not just defined by itself, but also by the context in which it is used. In the last couple of years encouraging progress has been made. In particular, scientists have now found a way to associate the meaning of a word with its context. After processing documents containing billions of words, the computer allocates a unique series of numbers (called "vector") for each word. Once words are turned into vectors, computers can start performing powerful mathematical operations to find the hidden relations among words. For example, if you ask the computer what should be to "Italy" as "Paris" to "France", the computer will add the vectors for Italy and Paris together, then subtract the vector for France, and

tell you the result is "Rome". Recently, Google has taken this idea of word vector to the next level – "thought vector", which represents the meaning of a sentence. It seems that computers are now starting to understand natural language in a way more closely resembling our own. LOGICAL REASONING If computers can read and understand natural language, it might be tempting to think that we could easily build an AI lawyer by feeding it all the statutes and judgments. However, legal advice is based not merely on statutes and case law. It also requires an understanding of common sense, derived from our general world knowledge. Computers lack common sense. For example, one of the things


IBM's super computer Watson can do is to invent new cooking recipes. While some of its ideas are very delicious, one recipe requires "green peas to be cut into ¾ pieces, then placed on a barbecue". One way to teach computers common sense is to design hard-coded rules. That

obtained through purely secondary experience the same as the one obtained from first-hand experience? Take tennis as an example. A computer can read everything about tennis and watch all the videos, but I suspect its understanding of tennis is not the same as the person who has actually picked up a racket.

"As it happens, law involves two of the most formidable challenges in the field of artificial intelligence: natural language processing and logical reasoning." was the approach taken by Computer Science Professor Doug Lenat 35 years ago. Over this time, he and his team have spoon-fed a whopping 15 million logical rules into to a computer called the "common sense engine", including that parents are older than their children. Another approach, believed by many scientists to be better, is simply to let the computer learn common sense by reading beyond legal documents and to traverse into the arts, history, science, religion, politics and so on. But the question is this: Is the "common sense"

This is particularly true with certain abstract, yet important concepts in law, such as fairness, justice and reasonableness. Even assuming a computer can somehow obtain an understanding of "morals", is its understanding similar to, or fundamentally different from, the way we human beings see it through our real experiences in life? Indeed, I would've thought that it is very difficult, if not impossible, for a computer to truly replicate humanity's lofty yet worthwhile morals, shaped predominately by our experiences and emotions.

CONCLUSION The search for an AI lawyer is certainly worth pursuing. In addition to the benefits of saving costs for lawyers and providing access to legal services to those who cannot afford them, the search may also reveal some fundamental characteristics of the law. However, as shown from the short excerpt of a conversation below (conducted during an experiment by a group of Google scientists last year), the road to creating a workable AI lawyer will be a long journey. Human: What is moral? Machine: What empowered humanity, what intellectual the essence is. Human: What is immoral? Machine: The fact that you have a child. ABOUT THE AUTHOR Benjamin Liu is a commercial law lecturer at Auckland University. His research interests include securities law, financial derivatives and information technology and law. He is qualified in New Zealand and England and Wales (although not currently practising).

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09


The Fine Art of Giving and Taking Offence The Hon Robert French AC1 Chief Justice of the High Court of Australia

The ways of love were counted by Elizabeth Barrett-Browning. The ways of giving offence and taking it have not been so poetically enumerated. Offence given may be directed to attributes which one human or group of humans may attach to others. They may be directed to opinions or beliefs. The taking of offence may involve various levels of emotional intensity ranging from annoyance to anger and even physical violence. Where the law should step in to sanction the giving of offence is a matter of ongoing debate. Should the law imagine and protect a right not to be offended? Should it be concerned with the feelings of individuals or wider issues of social harmony? While these things are debated, the legislative finger moves on under the imperatives of the day, pulled one way by the value we accord to freedom of speech and expressive action and the other by the need to protect perceived interests of the community and its members. In interpreting such laws the courts apply legal standards rather than precise legal rules. Hence the frequent appearance in such cases of the 'reasonable person' as the judge's helper. It is a purpose of this paper to illustrate the many forms of the law's responses to offensive speech or conduct, their historically contingent nature and the difficulty of formulating a general principle about whether and when the law should have anything to say about such conduct. The idea of legal sanctions attaching to expressive conduct characterised as offensive, and particularly to constituted authority and organised religion, seems to have existed for a very long time. Historically, offences involving speech and other forms of offensive conduct have included insulting the dignity of the sovereign, popularly known as lese majeste, seditious libel, blasphemy, scandalising the courts, defamation, obscenity, and offensive language and communications generally. Racist and other kinds of negative speech today can contravene laws reflecting, and sometimes extending beyond, international human rights norms. Those classes of communication are 10 | BRIEF JULY 2016

typically gathered under the rubric of 'hate speech'. It is a widely used term and seems to have a wide meaning. The American Bar Association defines 'hate speech' as "speech that offends, threatens or insults groups based on race, colour, religion, national origin, sexual orientation, disability or other traits."2 Its use in that way involves an appropriation of the strong negative connotation of 'hatred' to condemn a range of conduct, including conduct which while it should be strongly deprecated, may be informed by something less than 'hatred' in its ordinary sense. The appropriation of narrowly focussed negative terms to market broadly defined norms can risk undercutting what it seeks to promote. It can detract from the moral clarity of the law. Overegging the negative nomenclature of offensive speech goes back a long way. Sir William Blackstone, writing of high treason, which he equated to the crimen laesae majestatis of the Romans, quoted deplorable examples of persons executed for mere oral insults against the King. Happily, by the time he wrote, it seemed, as he put it, clearly to be agreed by the common law and the Statute of Edward III that words spoken amounted only to a high misdemeanour and not high treason. As he said of offensive spoken words directed at the sovereign: They may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers; their meaning depends always on their connexion with other words and things; they may signify differently even according to the tone of voice, with which they are delivered; and sometimes silence itself is more expressive than any discourse. As therefore there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason.3 That is an observation about the spoken word which is as true today as it was when Blackstone wrote it and tells us something of the slipperiness of the

legal labelling of speech as offensive or insulting. And even though Blackstone distinguished the spoken from the written word, there is much about the character of the latter that depends upon context, circumstances and readership which must be considered before treating it as offensive. The common law offence of Crimen Laesae Majestatis, sometimes connected with the French words lese majeste, surfaced in the Union of South Africa in 1935. Two persons published a pamphlet reflecting adversely on King George V and the amount which the English taxpayer was paying for his upkeep. They were convicted of Crimen Laesae Majestatis in having wrongfully and unlawfully printed and published certain scandalous and dishonouring words against 'our Sovereign Lord, the King, whereby the Majesty of our said Sovereign Lord, King George V, was dishonoured and his dignity injured.' Davis J wrote the judgment of the Supreme Court allowing an appeal against the convictions.4 He found that the charge alleged only an injury to the dignity of the King, and did not mention his Union Government. It was therefore defective, for the essence of the offence was injury to the majestas of the State. The judgment ended with a cautionary quotation reflecting a general issue: there is hardly any crime in which greater caution is to be enjoined upon the judge, so as on the one hand to preserve the maintenance of peace and good order, and on the other hand not to render anyone the unfortunate victim of political dissensions by excessive severity.5 As we shall see shortly, half a century later a kind of low grade statutory Crimen Laesae Majestatis, protecting the Industrial Relations Commission of Australia from being brought into disrepute by its critics ushered in the implied freedom of political communication under the Australian Constitution. The ordinary meaning of the word 'offend' encompasses vexing, annoying, displeasing, angering, exciting


resentment or disgust.6 Its various registers are defined in terms of the reaction of one person to the conduct of another rather than by that conduct itself. Related terms like 'insult' and 'humiliate' have elements of what is given and what is taken by the recipient of the insult or humiliation. In the law, however, the need to determine whether expressive conduct is offensive or insulting or humiliating is not necessarily met by asking the victim. They may take offence or feel insulted or humiliated too easily. So the law tends to engage the services of that leading light in the judge's small band of imaginary friends — the reasonable person.7 Other members of that band include the "rightthinking person"8, the ordinary prudent man of business, the officious bystander, the reasonable juror properly directed and the fair minded and informed observer. As Professor John Gardner has written in the Law Quarterly Review: All of these colourful characters, and many others besides, provide important standard-setting services to the law. But none more so than the village's most venerable resident, that is to say the reasonable person.9 This paragon of rationality played a part in a leading Australian decision on offensive behaviour, which has some interesting historical resonances. It involved a former Governor-General of Australia, Sir John Kerr. He was in the news last year as 11 November 2015 was the 40th anniversary of his dismissal of the Australian Labour Prime Minister, Gough Whitlam, an action which supporters of the Prime Minister thought seriously offensive and which left the Governor-General as a controversial figure in modern Australian history. He had left, however, another legacy. As a Judge of the Supreme Court of the Australian Capital Territory in 1966 he wrote a judgment on the subject of offensive behaviour.10 A student, Desmond Ball, protesting against Australia's involvement in the Vietnam War, climbed on to a statue of King George V outside Parliament House in Canberra. He placed on its head a placard reading "I will not fight in Vietnam". He refused to remove the placard or climb down. Unlike the detractors of the same King in South Africa in 1935, he was not charged with Crimen Laesae Majestatis, but with the rather more pedestrian misdemeanour of behaving in an offensive manner in a public place contrary to s17 of the Police Offences Ordinance 1930–1961 (ACT). There being little evidence of anyone actually being offended by this behaviour, Justice Kerr called upon the 'reasonable person', albeit in

its gendered manifestation as the 'reasonable man'. To be offensive, he said, the behaviour must be "calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man."11 He defined that person carefully as one "reasonably tolerant and understanding, and reasonably contemporary in his [or her] reactions."12 We can perhaps note the curiosity that the reasonable person was to be observed by the Judge for his emotional rather than rational reaction to the impugned behaviour. Despite that incongruity, the decision in Ball v McIntyre established the threshold of the imputed emotional response required for conviction at a fairly high level and with it the requirement that the allegedly offensive conduct must elicit that response from someone not readily moved to anger. That legal standard acted as a warning to the judge to proceed with caution before making a finding that a legal prohibition on offensive behaviour had been breached. The interpretive technique has been reflected in many later decisions, many of which have cited Justice Kerr's judgment. By way of historical footnote the student in question, Desmond Ball, became a renowned scholar in strategic studies both nationally and internationally, Professor at the Australian National University and the recipient of many honours, including the award of Officer of the Order of Australia. He was invited by the United States Government to provide advice on strategic studies, including the uncontrollability of limited nuclear exchanges. President Carter said of him "[Desmond] Ball's counsel and cautionary advice, based on deep research, made a great difference to our collective goal of avoiding nuclear war."13 So he may have saved the world. To all of that we can add that he contributed substantially to the development of the law relating to offensive behaviour in Australia. On the other side of the globe, in 1971, young Mr Brutus interrupted a tennis match involving a South African player during the Wimbledon tennis championships. His protest against the apartheid regime involved throwing leaflets around and blowing a whistle. The Divisional Court held that the offence of engaging in insulting behaviour, contrary to the Public Order Act 1936 (UK), with which Brutus was charged, included behaviour which affronts other people and evidences a disrespect or contempt for their rights. It included behaviour which reasonable persons would foresee as likely to cause resentment or protest.14 The

House of Lords took the view that what was an insult was a question of fact, but rejected the interpretive approach of the Divisional Court as setting the bar too low. Properly interpreted the statutory prohibition would not touch vigorous, distasteful or unmannerly speech or behaviour as long as it was not threatening, abusive or insulting.15 Such speech might show disrespect, or contempt for people's rights, but it did not follow that it must always be characterised as insulting behaviour. Moreover, there could be many manifestations of behaviour which could cause resentment or protest without being insulting.16 As a general proposition, the bar for civil or criminal sanctions attaching to offensive expressive conduct is set higher than incivility or rudeness. Where it is set may be determined by reference to a variety of circumstances including the content and mode and apprehended consequences of the conduct. Does it have a capacity to lead to a breach of the peace, incitement to break the law or to violence against a person? Does it single out particular people or groups of people by reference to characteristics beyond their control, such as race, colour, ethnic or national origin? Is it enough that it does that, or must there be something else? The application of criminal or civil sanctions attached to offensive speech or conduct is variously constrained but, like most areas of the law, the constraints are not susceptible of neat, coherent ordering. They are the product of historical and cultural contingencies and the political imperatives of particular times. Philosophers and legal writers have suggested limits on societal interference with free speech in general and offensive speech in particular. John Stuart Mill's harm principle is said to be applicable "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others."17 That statement, of course, raises the question — what is meant by harm? Harm in the law is what some people today would call a fact-value complex. There are many 'harms', not involving physical injury or loss, which can be defined depending upon contestable social value judgments. This paper does not pretend to cover the field of jurisprudential debate about the legal regulation of expressive offensive conduct. However, reflections upon historical and more contemporary examples of such regulation may stimulate us to think carefully about the need for a long term perspective on the topic. Religion provides a case in point. 11


Saying things about religion has long been a hazardous activity. Blasphemy which used to be dealt with by Ecclesiastical Courts and later by the Star Chamber, appeared in the common law after the abolition of the Chamber. In 1676, when convicting John Taylor of blasphemy for insulting remarks about Jesus Christ, Chief Justice Hale described the offence as: a crime against the laws, State and Government, and therefore punishable in this Court. For to say religion is a cheat is to dissolve all those obligations whereby the civil societies are preserved and that Christianity is parcel of the laws of England and therefore to reproach the Christian religion is to speak in subversion of the law.18 In those remarks may be seen not so much a concern for the protection of the Christian religion as the protection of the social order. Eventually freedom of expression was acknowledged as a limit on the offence of blasphemy. Coleridge LCJ said in 1883: I now lay it down as law, that if the decencies of controversy are observed even the fundamentals of religion may be attacked without the writer being guilty of blasphemy.19 That was the position adopted by the House of Lords in 1917 in Bowman v Secular Society.20 Blasphemy then seemed to fall away until 1977. In that year the publication, in a newspaper, of a poem and cartoon depicting indecent acts on the body of Christ led to the editor and publisher being convicted by a jury of a blasphemous act. The House of Lords in Whitehouse v Lemon21 upheld the conviction. Lord Scarman described the rationale for the law of blasphemy again in terms of the social order "[t]he offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom."22 He recognised that, on that rationale, there was a case for extending the offence to protect the religious beliefs and feelings of non-Christians. He said: In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt.23 However, the common law would not stretch that far. The limit on the law of blasphemy was demonstrated by a decision that Salman Rushdie's book The Satanic Verses did not involve the offence of blasphemy against the

12 | BRIEF JULY 2016

teachings of Islam.24 The common law offence did not cover offensive language about religions other than Christianity. The offence was abolished in the United Kingdom in 2008.25 Blasphemy was a common law offence in the Australian colonies before federation. There were not many prosecutions after federation. However, in 1997 the then Archbishop of Melbourne, now Cardinal George Pell, applied for an injunction to restrain the National Gallery of Victoria from exhibiting a photograph entitled 'Piss Christ' showing a crucifix immersed in urine. The application was refused by Harper J of the Supreme Court of Victoria.26 The photograph, he said, was "offensive, scurrilous and insulting at least to a very large number of Christians." He quoted Lord Scarman from Whitehouse v Lemon and added: a plural society such as contemporary Australia operates best where the law need not bother with blasphemous libel because respect across religions and cultures is such that, coupled with an appropriate capacity to absorb the criticisms or even jibes of others, deep offence is neither intended nor taken.27 In order to amount to a blasphemous libel the manner complained of had to raise the risk of a breach of the peace. Laws relating to religious vilification defined by reference to the incitement of hatred, serious contempt for or serious ridicule of a person or group on account of their religious beliefs or affiliations are found in a number of Australian States.28 The high threshold before those provisions are engaged has resulted in a low to non-existent strike rate which is perhaps just as well. This area of the law raises the question — what is to be protected — civil tranquillity or people or both? We can say that people are entitled to have their dignity respected and protected. But do we have to respect beliefs if that means not speaking against their truth or pointing to their harmful consequences. Some religions hold that homosexual conduct is sinful. There are those who would denounce such a doctrine as socially harmful. Can it be ridiculed and treated with contempt? Can one say — I hate the belief but respect the believer? These things are not easy to disentangle. They point to some of the difficulties in determining the appropriate policy to inform law-making about offensive or insulting speech in relation to religion. In 2006, the Court of Appeal in the Supreme Court of Victoria considered the application of the Racial and

Religious Tolerance Act 2006 (Vic) in connection with a complaint by the Islamic Council of Victoria about statements made by the Pastor of an organisation known as Catch the Fire Ministries Inc. The complaint alleged conduct inciting hatred against and serious contempt for, or ridicule of, the Islamic faith. The statement complained of related to the text of the Koran and reflected on Muslim people generally. Nettle J, writing in the Court of Appeal,29 made the important point that a class of people may be defined by their religious beliefs — to incite hatred or some other relevant emotion towards their beliefs may result in hatred of the believers. But that was not a necessary consequence. He said "there are any number of persons who may despise each other's faiths and yet bear each other no ill will."30 The purpose of the Act was to promote religious tolerance not to mandate it. It was essential, he said, "to keep the distinction between the hatred of beliefs and the hatred of their adherents steadily in view."31 Debates about the law affecting offensive speech or conduct tend to focus upon the reach of the law and its effect on freedom of speech and expressive action which is protected by the common law, and by international human rights norms. Neither the written nor the unwritten law can resolve those tensions with precision. Generally speaking, however, the courts interpret laws affecting freedom of expression so as to protect that freedom from unnecessary burdens. The common law directs a court interpreting statutes to a construction which has least impact on freedom of expression. That is a particular case of a general interpretive approach protective of common law rights and freedoms. It is applied on the basis that "curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."32 The common law of England has long accepted that freedom of speech and the press serve the public interest. Blackstone characterised freedom of the press as "essential to the nature of a free state".33 That freedom, however, did not extend to 'criminal acts'. Lord Coleridge in 1891 characterised the right of free speech as "one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done".34 The qualifications upon the freedom which


both of them recognised, reflected the qualifications on freedom of speech which are to be found in international human rights instruments and national constitutions. In the United Kingdom and in Australia particular applications of the qualifications attract judgments as to the legitimacy of their purpose and the proportionality of the limiting measure. In Australia, those judgments are made in deciding whether a law transgresses the implied freedom of political communication. The implied freedom of political communication began its life in a challenge to a law giving statutory protection against insult to the dignity of the Industrial Relations Commission of Australia. In or about 1992 The Australian newspaper published an article highly critical of the Commission. It said, among other things: The right to work has been taken away from ordinary Australian workers. Their work is regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and compliant 'judiciary' in the official Soviet-style Arbitration Commission.35 The newspaper was prosecuted for a breach of s299 of the Industrial Relations Act 1988 (Cth), which provided that a person shall not, by writing or speech, use words calculated to bring a member of the [Industrial Relations] Commission or the Commission into disrepute. The High Court held the provision invalid. Three members of the Court held that it infringed an implied freedom of political communication based on the text and structure of the Constitution relating to representative democracy and the election of parliamentary representatives by the people.36 The implication was essentially based on the text and structure of the Constitution relating to

representative democracy and election of parliamentary representatives by the people. The implied freedom was also applied by a majority of the Court in the companion decision, Australian Capital Television v Commonwealth.37 The implied freedom is not an individual right but is a limitation on the legislative power of the Commonwealth and also of the States and Territories of Australia. It also limits the application of the common law of defamation in relation to public figures. It was elaborated in a number of defamation cases involving politicians.38 They culminated in the decision of the High Court in Lange v Australian Broadcasting Corporation.39 That case concerned a defamation action brought by a former Prime Minister of New Zealand against the Australian Broadcasting Corporation in connection with statements made on a current affairs programme. The Court held that the common law of defamation burdened the implied constitutional freedom and the traditional defence of qualified privilege, did not save it. The Court therefore extended qualified privilege to protect publications to mass audiences concerning governmental and political matters although it imposed a condition that the publisher's conduct must be reasonable.40 The Court set out a two-step test for the validity of laws said to impinge on the implied freedom of political communication: 1. Does the law effectively burden the freedom, either in its terms, operation or effect? 2. If the law effectively burdens that freedom, is it reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.41

That test has recently been elaborated in relation to the proportionality limb by the decision of the Court in McCloy v New South Wales.42 The difficulty of applying legal standards rather than precise legal rules in this area, was demonstrated in the decision of the High Court in 2013 in Monis v The Queen.43 The appellant had been charged with using a postal service in a way that reasonable persons would regard as being, in all the circumstances, offensive, contrary to s471.12 of the Criminal Code (Cth). The charges related to letters he had sent to parents and relatives of soldiers who had been killed in active duty in Afghanistan. The letters were critical of the involvement of Australian military forces in Afghanistan and reflected upon the part played in it by the deceased soldiers in a derogatory and insulting fashion. He and a coaccused tried to have their indictments quashed on the basis that s471.12 was invalid in its application to 'offensive' communications because it infringed the implied constitutional freedom of political communication. The case came on as an appeal to the High Court from the Court of Criminal Appeal of New South Wales, which had dismissed the challenge to the validity of the provision. Because one of the members of the Court was shortly to retire, six members sat. In the event, the Court was evenly divided. Justices Hayne and Heydon and I held that, in its application to offensive communications, the section under which the appellants were charged was invalid as impermissibly burdening the implied freedom of political communication.44 Justices Crennan, Kiefel and Bell held that, if interpreted as referring to high level offensiveness, the section went no further than was reasonably necessary to achieve its purpose of preventing the misuse of postal services to effect an intrusion of seriously offensive material into a person's home or workplace and

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did not impose too great a burden on the implied freedom and was therefore valid.45 The Court being evenly divided, the appeal was dismissed. Monis was later killed after taking hostages in a cafe in Sydney. Tragically two innocent young people, one of them a barrister, were killed in that awful event. There are analogous provisions under the laws of the United Kingdom which prohibit communications offensive to public feeling or of a "grossly offensive nature", which were mentioned in the judgments.46 In R (ProLife Alliance) v British Broadcasting Corporation47, the House of Lords in effect upheld a refusal by the BBC to transmit a political party broadcast showing images of aborted foetuses. An issue was whether the material would be "offensive to public feeling" within the meaning of the Broadcasting Act 1990 (UK). The interesting question was what right was being protected by the law? Lord Walker referred to the 'right' of the citizen "not to be shocked or affronted by inappropriate material transmitted into the privacy of his home".48 Although not a right to be found under the European Convention on Human Rights (ECHR),49 his Lordship characterised it as an "indisputable imperative".50 That invocation of negative juristic rights beyond those enumerated in the ECHR and derogating from the freedom of expression in Art 10, has been debated. One commentator has suggested that: Such a potentially limitless pool of 'countervailing rights' is deeply unattractive and troubling, threatening as it does to swallow up the right of freedom of expression.51 Whether that is a valid observation and whether it could apply to laws burdening the implied freedom of political communication in Australia, it does direct attention to the acute difficulty of line drawing in this area. Before closing, it is appropriate to make some reference to a substantial controversy of recent times in Australia concerning the prohibition of offensive behaviour directed to people because of their race, colour, or national or ethnic origin. The relevant statutory prohibition is to be found in s18C of the Racial Discrimination Act 1975 (Cth), which provides in sub–s(1): It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

14 | BRIEF JULY 2016

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. It is subject to some good faith defences which it is not necessary to go into here. Section 18C was, in part, inspired by Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.52 That Article itself was the product of a difficult drafting process. It required that the States Parties to it, among other things: Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; There was no express reference to offensive conduct which is the focus of recent debate in Australia about s18C. That debate illustrates the way in which prohibitions on offensive conduct can sometimes lie at the interface of differing community views. In the end the law cannot save us from being offended. Nor can it save us from the social disharmony which some kinds of offensive expression can cause. It cannot protect the dignity of people if our culture does not respect them. We must be free to speak our minds and hear other people speak theirs. We must accept that we will sometimes be offended or even outraged by the things other people say about us or others or about our or their beliefs or values. At the same time we must accept that for a culturally and ethnically diverse society to work there must be an ethic of respect for the dignity of all its members. In this respect there are some very old fashioned ideas of courtesy and good manners which embody that kind of world view. They empower us to apply the art, much finer than that of giving and taking offence, of getting along together in full participation in a free and democratic society. NOTES 1.

This is an edited version of the Birkenhead Lecture delivered by Chief Justice French on 18 November 2015 at Gray's Inn London.

2.

Students in Action, 'Debating the Mighty Constitutional Opposites: Debating Hate Speech', American Bar Association, www.americanbar.org/groups/public_ education/initiatives_awards/students_in_action/ debate_hate

3.

William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1769, Reprint 1983) vol IV, 81.

4.

R v Gomas (1930) SALR-KPA 225.

5.

Ibid., 235.

6.

Concise Oxford English Dictionary (Oxford University Press, 11th ed, 2004).

7.

John Gardner, 'The many face of the reasonable person' (2015) 131 Law Quarterly Review 563.

8.

Derbyshire v Police [1967] NZLR 391.

9.

Gardner, above n 15, 563, 563.

10.

Ball v McIntyre (1966) 9 FLR 237.

11.

Ibid., 243.

12.

Ibid., 245.

13.

Brendan Taylor, Nicholas Farrelly, Sheryn Lee (eds) Insurgent Intellectual: Essays in Honour of Professor Desmond Ball (ISEAS, 2012) 18.

14.

Brutus v Cozens [1972] 1 WLR 484, 487 (Melford Stevenson J).

15.

Brutus v Cozens [1973] AC 854, 862 (Lord Reid).

16.

Ibid., 863–64 (Lord Morris of Borth-Y-Gest).

17.

John Stuart Mill, On Liberty (John W Parker, 1859) 14–15.

18.

Taylor's Case (1676) 1 Vent 293; (1676) 88 ER 189.

19.

Ramsey v Foote (1883) 15 Cox Criminal Cases 231 (QB).

20.

[1917] AC 406.

21.

[1979] AC 617.

22.

Ibid., 658.

23.

Ibid.

24.

Regina v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429; [1990] 3 WLR 986.

25.

Criminal Justice and Immigration Act 2008 (UK); Racial and Religious Hatred Act 2006 (UK).

26.

Pell v The Council of the Trustees of the National Gallery of Victoria (1998) 2 VR 391.

27.

Ibid., 393.

28.

Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1998 (Tas), s19; Racial and Religious Tolerance Act 2001 (Vic).

29.

Catch the Fire Ministries Inc v Islamic Council of Victoria (2006) 15 VR 207.

30.

Ibid., 218–19 [33].

31.

Ibid., 219 [34].

32.

North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41 [11] citing Coco v The Queen (1994) 179 CLR 427, 437–38.

33.

William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1769, Reprint 1983) vol IV, 151–52.

34.

Bonnard v Perryman [1891] 2 Ch 269, 284 and see R v Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150, 155; Wheeler v Leicester City Council [1985] AC 1055, 1056; Attorney General v Guardian Newspapers Ltd (No 2) [1990] AC 109, 220.

35.

Nationwide News Pty Ltd v Willis (1992) 177 CLR 1, 96.

36.

Ibid., 52–53 (Brennan J), 95 (Gaudron J), 105 (McHugh J).

37.

(1992) 117 CLR 106.

38.

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.

39.

(1997) 189 CLR 520.

40.

Ibid., 573–75.

41.

Ibid., 567 and see Coleman v Power (2004) 220 CLR 1 which slightly modified the test.

42.

(2015) 87 ALJR 857.

43.

(2013) 249 CLR 92.

44.

Ibid., 134 [74] (French CJ), 158 [162] (Hayne J), 178 [236] (Heydon J).

45.

Ibid., 215–16 [350]–[353].

46.

(2013) 249 CLR 92, 110–12 [15]–[19], 207 [326] (Crennan, Kiefel and Bell JJ).

47.

[2004] 1 AC 185.

48.

Ibid., 252 [123].

49.

Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) amended by Protocol No 11.

50.

[2004] 1 AC 185, 252 [123].

51.

Ian Cram, 'The Danish Cartoons, Offensive Expression and Democratic Legitimacy' in Ivan Hare & James Weinotein (eds) Extreme Speech and Democracy (Oxford University Press, 2009) 320.

52.

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).


Murdoch University's Mock Trial Seminar Georgia Cain Third year law student, Murdoch University

Alexander McVey, Tutor, Murdoch University School of Law presenting to students.

On Saturday, 2 April, the Murdoch Moot Court Bench welcomed 47 high school students and their teachers involved in the Law Society of Western Australia Mock Trial Competition to attend a Seminar and Workshop at Murdoch Law School. This Seminar was a combined initiative of the Law Society and Murdoch Law School and was designed for high school students from year ten to twelve to develop their advocacy skills for the Society's Inter-School Mock Trial Competition. The Moot Court Bench (MCB) consists of Murdoch law students selected for their advocacy skills. Since its inception in 1996 the MCB has been an integral part of the Murdoch moot programme, providing advanced advocacy training to our top moot students and helping to foster a strong mooting culture at the Law School. The MCB students have all represented Murdoch University at national and international advocacy competitions, and were eager to share their advocacy skills and experiences with the high school students. The day began with a seminar presented by Alexander McVey (MCB Faculty Advisor). Alex covered topics such as opening statements, examinationsin-chief, cross-examinations, closing addresses, case theories, objections and

court etiquette. He provided the students with a step-by-step guide to help them approach a mock trial question, which they would be able to apply to any future questions. The students then had a break for morning tea. They were able to mingle with each other and meet competitors from other schools. In this relaxed environment the students also had the opportunity to speak to Murdoch law students about studying law, mock trials and the mooting programme at Murdoch University. After morning tea, the students were separated into smaller groups of 6-8 students each. Each group was assigned one MCB member or MCB alumni and a mock trial question to work through. The MCB students coached the groups on how to approach the question by each element of a trial. They received advice on arguments for both the prosecution and defence. The students worked together on the question and wrote an opening statement, case theories, cross-examination questions and closing statements. Some groups were even able to practise their advocacy skills in front of the MCB students. All students received feedback on their work and tips on how they could improve. Overall the MCB students were very impressed with

the work of the students and their level of skill in trial advocacy. Murdoch enjoyed having the students come and learn about advocacy. Murdoch Law School has close ties with the Society and the Mock Trial Competition. Some MCB students and alumni coach mock trial teams, and MCB alumni are also active as judges during the Mock Trial Competition. Murdoch also offers a scholarship for the 'Most Outstanding Mock Trial Student.' This award gives the recipient an opportunity to study law at Murdoch, join the Murdoch moot programme and represent the Law School as part of a national or international moot team, giving them access to extensive legal research, writing and advocacy training. We had a great turnout to the event and received excellent feedback from the students. Thank you to Alexander McVey, Michelle Barron, Paige StandenBurrows and the members and alumni of MCB, who volunteered their time. Without your efforts and participation, this event would not have been possible. We look forward to future partnerships with the Society to engage more students in legal advocacy training.

15


The Case for Legal Aid - Law Week Breakfast Summary of address delivered in Perth on Monday, 16 May 2016

Fred Chaney AO

Thank you for acknowledging the traditional owners of this place, the Whadjuk people of the Noongar nation. There is no more powerful reminder of the significance of legal aid and pro bono work by lawyers than this acknowledgement. It flows from the landmark Mabo decision which for the first time recognised the rights of Australia's first peoples flowing from their pre settlement exclusive occupation of the Australian landmass. This decision was achieved by combination of the determination of Indigenous people to see their rights recognised, some government support, and massive pro bono support of a range of lawyers, not least great late Ron Castan QC. So much has flowed from that judgment not least the important agreement about the Southwest of Western Australia and the acknowledgement of the traditional owners by the Western Australian State Government. Legal aid and pro bono work bring about many things and the good that flows from this work takes many forms. Today the Law Society and the Law Council of Australia are launching a campaign for the restoration of Commonwealth legal aid funding, which has been significantly reduced over recent years. In the words of the Law Council, the Commonwealth Government has crippled legal aid with massive cuts. It has pointed out the many difficulties this imposes on vulnerable Australians and the problems that result: financial, family violence, relationship breakdown, more imprisonment with lives and livelihoods destroyed, and more homelessness and unemployment. The campaign got off to a fine start this morning. The President of the Law Council led the news on the ABC this morning and put the case in a subsequent interview on Radio National. But the campaign is taking place in very crowded field. Every day groups step forward and demand not the few hundred million required to restore legal aid but billions for health education and the legion of other areas of interest. The profession faces a particular challenge because its pleas for the welfare of the 16 | BRIEF JULY 2016

citizen are so easily brushed off as pleas for lawyers' remuneration. How often have you heard the expression 'greedy lawyers' applied to practitioners in cases supporting the rights of refugees, even when those lawyers are acting pro bono? The Law Council is right to direct attention to the negative impacts on individual Australians because that is what this campaign is about; the people, not the profession. It is a pity that the extensive work of the profession in providing pro bono services is not better known. My own direct personal experience is that all of the causes that I support have received generous assistance from leading commercial firms in Perth and I note similar support is provided by firms around Australia. At risk of being unfair to the many other firms who do great work can I mention my delight at finding that Ashurst was supporting the attempts by June Oscar and her colleagues in Fitzroy Crossing to ensure that the liquor laws were used to contribute to reducing the alcohol abuse which was having such a devastating impact on the community. Practising lawyers who contribute their time to assisting disadvantaged Australians to access their legal rights enable the law as a support for community rather than an instrument of punishment. The campaign is labelled Legal Aid Matters with the subtitle, 'Be afraid without legal aid'. The subtitle at least is a bit of a two-edged sword. One source of fear in the community is uncertainty about the cost of going to a lawyer. This is a reminder that part of the solution must lie in the profession looking to ensure the existing legal system is fit for purpose. If the remedy is too costly to access, it is no remedy. That is too large a subject to deal with here but it is an important one to address. The rule of law really matters. We are fortunate to live in one of the world's most successful and long-lived democracies. This success is dependent on the rule of law. Recent surveys have suggested that the majority of young people care little for democracy. Would

a similar survey uncover a lack of understanding of how important the rule of law is to the freedom and prosperity we enjoy? I left legal practice in 1974. Through my decade of practice I learned how important it was that people have access to lawyers. I mention three examples. First, the Aboriginal mother against whom the welfare authorities brought an application to have her six children declared neglected and institutionalised. She became my client when an articled clerk from another firm who had taken instructions from her was told that the firm did not act for Aboriginals. He brought her to me. It turned out to be the easiest case I ever did. In six phone calls I got six witnesses each of whom was willing to testify that the children were not neglected but rather well looked after by a caring mother. When I went to court I found the process seemed to be regarded as administrative rather than legal. The prosecuting officer sought to give evidence by reading from a file and the court seemed quite confused when I suggested that evidence might be given on oath. There was no evidence. I called my witnesses and with an almost seeming reluctance the application was dismissed. I berated the unfortunate public servant outside the court about bringing the unfounded application. His response was chilling. He said it was the first time they'd had a defended application and that the application had been brought because they'd had complaints there were too many Aboriginals in East Perth and were moving them out. I found this a remarkable aberration from what I thought was the Australian way. The point of this story is that 30 years later, when my client died of a heart attack, her children were challenging the authorities about the slowness of the ambulance response. They had enjoyed an ongoing relationship with their mother which, but for the rule of law, they would have lost. The second example came from a visit to a client in Moora. I was told of an Aboriginal man who had been in the lock-up for six weeks. It was


half the matters brought to us could be dealt with in a single consultation and about half would need to be sent off to legal aid. I acknowledge the work of the Community Legal Services that are part of this campaign and the work of people like Helen Creed who is in the audience. If it were possible to ensure easy GP type access to preliminary legal advice at a predictable and affordable cost it would ensure a more sympathetic public audience to campaigns such as this. In the spirit of being helpful let me put some propositions. The Attorney is with us this morning. Is the role of the Attorney to administer the law or to ensure justice for the citizen? I had the privilege of working closely with an outstanding Commonwealth Attorney General, Peter Durack QC. His efforts in law reform like his promotion of women

mentioned to me because I was part of the voluntary group that a law student, Bob French, (now Chief Justice French) had put together to provide some legal assistance to Aboriginals. On visiting the lockup, I found the prisoner had been arrested when the police had stopped him for a vehicle check, found nothing wrong, searched his car and asked him where the jack in his car had come from. He told them he had salvaged it from a wreck on the reserve. He was charged with stealing by finding. Thanks to Kim Paterson, Peter Dowding's then partner, he was represented at the next sitting of the Magistrate's Court in Moora and the charge was dismissed. By then, as a result of his imprisonment, he had lost his job. He was entitled to be afraid for the initial lack of legal aid. At least he did not continue to lose his liberty. My final example is an adoption case heard by Burt J, a case which sat so heavily on his shoulders that he asked me for a copy of the judgment 20 years later, as the Court file had been destroyed and he believed the judgment should have been reported. It was a case where an Aboriginal child was taken under circumstances he found to be improper. The child was delivered to adoptive parents by the welfare authorities on the basis that the actual parents had consented to the adoption even though it was known the parents were demanding the return of the child. It was a couple of years before the application was processed and ran into the difficulty that the consent had been withdrawn. My role was to seek dispensation from the need for parental consent from the Court. The innocent parties in all this were the would-be adopting parents and the wronged natural parents. The application was refused. The judge's ruling was effectively ignored by the authorities

"In the words of the Law Council, the Commonwealth government has crippled legal aid with massive cuts. It has pointed out the many difficulties this imposes on vulnerable Australians and the problems that result ..." and the whole thing ended in tragedy for everybody, parents and child. In this case the legal intervention came too late for the wrong to be unscrambled. It weighed heavily on the mind of Burt J and heavily on mine. The Law Council has produced more recent examples on the importance of justice to people's lives. The Law Council and the Law Society need to get the message through that there are gross social and economic impacts when people are not in a position to defend or assert their rights. At a recent Law Society forum on the subject, speakers made the point that lawyers have difficulty in getting the message through. The position of doctors was contrasted in that everyone has health issues and almost everyone can access the doctor. The medical profession are effective lobbyists on behalf of their patients and themselves. An even more effective lobby are the pharmacists who have maintained a privileged position because everyone can access the pharmacist. It has always seemed to me that lawyers need to provide more layered service as we sought to do when Peter Dowding, Ian Temby and I, with the support of the Law Society, established the Legal Advice Bureau. Back in the 1970s we offered preliminary legal advice for a fee of $2 and staffed a 5 ½ day a week service in Forrest Place with volunteer lawyers admitted between three and eight years. It was educational to find that about

in the Department showed his thirst for justice. We need the AGs State and Federal, and their shadows, to be close allies in the fight for legal aid. Case studies and examples matter and must be used. Note how Rosie Batty's tragedy transformed the debate around domestic violence and forced government responses. The campaigns need to be led by social policy experts and economists who can establish the linkages between absence of legal aid and social dysfunction and economic cost. Engage in economic and social policy analysis including evaluation of your legal aid and pro bono work. Make common case with those sharing your concerns as you do in justice reinvestment. The profession must be seen to be addressing the structural issues that contribute to making legal access beyond the means of most. In public statements, make clear the profession's commitment to justice for all, including the victims of crime. Document and publicise the profession's contributions through pro bono work. Hidden virtues cannot influence the public attitude. Without the rule of law I would be afraid for Australia. Unless it applies to all it will be at risk.

17


Volunteers and Social Justice Event held as part of Law Week 2016 Daniel Eng

1.

3.

2.

4. 1. The Hon Chief Justice Wayne Martin AC, Chief Justice of Western Australia; Faith Cheok, Principal Solicitor, CCLSWA; and Matthew Howard SC, President, Western Australia Bar Association. 2. Mitchell Coles, CCLSWA volunteer paralegal; Lawrence Lee, Ashurst Counsel; Elizabeth Needham, President, Law Society; Prachi Aggarwal, CCLSWA solicitor; and Zoe Wiszniewska, Ashurst lawyer. 3. Mental Health Law Centre volunteer Anneliese Lockhart giving an impassioned speech. 4. CCLSWA volunteer paralegal Edward Souti sharing his volunteer experience.

Law Week 2016 saw volunteers at community legal centres recognised for their efforts in advancing social justice. On Monday, 16 May 2016 at an event called 'Volunteers & Social Justice' held at the offices of Norton Rose Fulbright Perth, volunteer paralegals and interpreters were formally acknowledged for their contribution. The event was co-hosted by Consumer Credit Legal Service WA (CCLSWA), The Humanitarian Group and Mental Health Law Centre. The Chief Justice, the Honourable Wayne Martin AC, was the guest of honour. The event opened with a welcome and introduction by Isabelle Zekulich, a volunteer paralegal with CCLSWA. This was followed by a speech by His Honour, Chief Justice Wayne Martin on the importance of community legal centres

18 | BRIEF JULY 2016

and their volunteers in facilitating access to justice, particularly to "the missing middle" section of Australian society: those who are not poor enough to qualify for Legal Aid but not affluent enough to afford paid legal representation. His Honour highlighted the enormity of unmet legal needs and the contribution by volunteers, but also mentioned the mutual benefits for both the community legal centres and their volunteers. A volunteer each from CCLSWA, The Humanitarian Group and Mental Health Law Centre shared their experiences, all of which were enriching, difficult, personal, and extremely satisfying. Edward Souti summed up his time working on the CCLSWA telephone advice line: "As law students, we go from reading textbooks and cases, to seeing exactly how big an impact the law can

have on people's lives. Working on our telephone advice line has easily been the most eye-opening and rewarding experience." Helen Pearce, CEO of The Humanitarian Group spoke movingly about the increasing importance of volunteers, particularly in the climate of funding cuts. Helen equated the dollar figure of her centre's use of pro bono assistance to more than $1 million. Helen then introduced Ali Khan, a volunteer at The Humanitarian Group, who has experienced a similar background to the clients of The Humanitarian Group. He gave an inspiring speech about his journey from refugee, to law student, to volunteer at The Humanitarian Group as both an interpreter and paralegal, and now to a lawyer at a commercial firm specialising in Immigration Law.


Ali credits The Humanitarian Group for leading him to work in an area that he enjoys and from which he draws great satisfaction. Annaliese Lockhart, a volunteer at Mental Health Law Centre, recounts a similar experience and is grateful for the diversity of legal work she gets from volunteering. Faith Cheok, Principal Solicitor of CCLSWA, concluded the formalities. Faith paid tribute to the contribution of the volunteers, pro bono barristers and law firms, ending anecdotally with a quip about the anti-aging properties of having volunteers as colleagues. Guests and volunteers alike stayed long to mingle after the formalities. The night was made possible by the generosity of Norton Rose Fulbright.

specialises in consumer credit issues and a few discrete Australian Consumer Law issues. CCLSWA operates a telephone advice line run by volunteer paralegals. We aim to empower callers with the knowledge and tools to selfadvocate whenever possible. We work closely with financial counsellors and other consumer advocates. CCLSWA is also very active in the community. We run financial literacy sessions at high schools throughout the metropolitan area and guest lectures in law or related courses at the University of Western Australia, Notre Dame, Curtin and Murdoch Universities. We also actively participate in law reform and policy development in consumer rights, banking and credit matters.

THE HUMANITARIAN GROUP

ABOUT THE THREE CENTRES: CONSUMER CREDIT LEGAL SERVICE (WA) INC.

strengthens communities. We are the only organisation of our type in Western Australia. MENTAL HEALTH LAW CENTRE

The Mental Health Law Centre is an independent, not for profit, nongovernment specialist community legal centre providing a free and confidential legal service to persons involved involuntarily in the mental health system in WA, the criminal justice system and other areas of law, when resources permit. The Centre promotes the legal and social rights and responsibilities of people with a mental illness and supports their increased participation in decisions about their treatment and care. ABOUT THE AUTHOR

Consumer Credit Legal Service (WA) Inc. is a community legal centre that

The Humanitarian Group is a notfor-profit organisation, focused on empowering vulnerable people by providing professional and accessible migration assistance, legal advice and education. We strive to do this in a way that embraces diversity and

Daniel Eng is a graduate of the University of Western Australia with a Master of Laws and Graduate Diploma of Legal Practice. He also holds a Bachelor of Laws from University College London. He has been a volunteer paralegal at CCLSWA since February 2016 and is a Fellow of the inaugural Piddington Justice Project, which aims to provide greater opportunities for law graduates completing their practical legal training, in conjunction with improving access to justice for all.

Caring for the Legal Profession in Western Australia •

Professional, confidential and free counselling and information services to support the mental health and wellbeing of members.

• Free access to online resources for life, family and relationship; health and wellbeing; and education, work and career. • Members can also access up to three free counselling session a year.

24 hours phone support 1300 361 008 or lawsocietywa.asn.au/lawcarewa

LawCare WA is provided to members by

Services provided by Optum

19


New Supreme Court Building The Hon Chief Justice Wayne Martin AC Chief Justice of Western Australia

The General Division of the Supreme Court will move into new premises in the David Malcolm Justice Centre at 28 Barrack Street, Perth during the July recess. All registry functions other than those relating to the Court of Appeal will be conducted in the new building from 11 July. When normal hearings resume after the recess (on 18 July), all civil hearings and mediations will be conducted in the new building. All Court of Appeal hearings (and the registry function for the Court of Appeal) will be conducted in the 1903 building in Stirling Gardens, and all criminal hearings will be conducted in either the 1903 building or the District Court building. The design focus for the new building has been to provide a welcoming and comfortable environment maximising the use of natural light and light timber finishes throughout. All of the courtrooms, most hearing rooms, mediation spaces and public waiting areas have extensive windows providing ambient views. The design has been constrained by 20 | BRIEF JULY 2016

the fact that the building was designed for use as offices, rather than as a court building. However, those constraints have had some beneficial consequences. Because there are spaces on each floor which could not accommodate hearing rooms, we have many meeting rooms on the court floors, many break‑out rooms on the mediation floors, and generous public waiting areas.

HEARING FACILITIES

Although the building itself has no café or refreshment facilities, there is a range of such facilities immediately adjacent to the building.

The eight trial courts are of various sizes, including one court suitable for ceremonial sittings which will comfortably accommodate all the judges of the Court and approximately 130 members of the public. Another 45 members of the public can be accommodated in an adjacent area, where court proceedings can be viewed on a large screen. A sitting to mark the opening of the Court building will be held in that courtroom at 4.30pm on Wednesday, 27 July.

The new building has been fitted with technology and hearing facilities which represent the current state of the art. Those facilities reflect the various ways in which the court currently conducts its business and will facilitate the efficient discharge of that business in an environment which provides comfortable working spaces for judicial officers, lawyers, witnesses, parties and members of the public.

The new building will offer the following hearing facilities: •

Eight trial courts

12 multi-purpose hearing rooms

Eight mediation suites

THE TRIAL COURTS

The trial courts have a number of specific design features. They include bar tables which, in the first row in each court, are sufficiently wide to accommodate the


Victorian practice in which instructing solicitors can sit facing counsel, so as to improve communications between solicitor and counsel (although, of course, this means that instructing solicitors will be facing away from the bench). The Court encourages members of the profession to utilise this practice, which is very efficient, although it will be left to practitioners to decide whether or not they wish to do so. All judicial benches will have sections which can be raised to enable the judge to conduct all or part of the hearing while standing, consistently with current best practice in occupational health. Because of the prevalence of concurrent evidence from expert witnesses, many of the trial courts have been designed with witness boxes which are capable of accommodating more than one witness. MULTI-PURPOSE HEARING ROOMS Another 12 hearing rooms have been designed and fitted out with furniture which can be rearranged to suit a particular style of hearing. They are generally smaller than the courtrooms. Some of those hearing rooms can and will be configured in the manner of courtrooms, but without a raised bench. Others will be configured as rooms in which conferences can be conducted, and with differing configurations so as to accommodate cases with larger numbers of parties. The flexibility with which these spaces can be configured reflects the varying nature of the hearings now conducted by the Court.

THE MEDIATION SUITES The eight mediation suites are of varying sizes, including two larger rooms separated by a removable partition which can be used to accommodate a mediation involving a very large number of parties. Each of the mediation suites has a number of break-out rooms available for use by the parties. As with the multi-purpose hearing rooms, the furniture in the mediation suites can be reconfigured so as to suit the needs of particular parties. MEETING ROOMS Because of the configuration of the building, it has been possible to provide a significant number of meeting rooms on all floors on which trial courts or multi-purpose hearing rooms are located. A room or rooms can be allocated to parties on request, and used as trial support rooms, in which parties can leave materials during the course of long trials. Because the courtrooms are on different floors, and given the significant number of meeting rooms on each court floor, counsel are encouraged to robe in a meeting room, and no separate robing room has been provided. INFORMATION TECHNOLOGY All trial courts, all multi-purpose hearing rooms and some mediation suites will be equipped with audio visual equipment which will permit remote participation. Systems available in the mediation suites will enable judicial officers and

parties to work jointly on the preparation of documents, such as documents recording the terms of settlement. The building's specifications require that full-strength signals be available from telco service providers throughout the building, so that practitioners can use their own mobile devices for internet connection. LIBRARY FACILITIES Library facilities for use by the court, legal practitioners and other occupants of the building will be located on the second floor of the building. The library will not be open to the general public. SECURITY SCREENING Everybody entering the building other than judicial officers and the staff of organisations occupying the building will be security screened through facilities located (discreetly) on the ground floor of the building. INTRODUCTORY TOUR OF THE NEW BUILDING On Monday, 18 July at 4.30pm, I will present a short talk on the features of the new building in the ceremonial courtroom, followed by a tour of the other hearing facilities provided in the new building. Spaces are limited and can be reserved by contacting the Central Office of the Supreme Court. If demand exceeds the spaces available, a similar event will be held at 4.30pm on Monday, 25 July.

21


Lawyer beware! Substantial changes to the contentious business costs scales from 1 July 2016 Clare Thompson Chair Legal Costs Committee; Barrister, Francis Burt Chambers

The Legal Costs Committee, an independent statutory authority set up under section 310 Legal Profession Act 2008 reviews the scales of costs for contentious business every two years, generally in even numbered years. This year the Committee has reviewed eight contentious business scales and made significant amendments, which come into effect on 1 July 2016. The new scales, published in June 2016 in the Government Gazette, are: 1. Legal Profession (Supreme Court) (Contentious Business) Report & Determination 2016; 2. Legal Profession (Supreme Court And District Court) (Criminal) Report & Determination 2016; 3. Legal Profession (District Court Appeals) (Contentious Business) Report & Determination 2016; 4. Legal Profession (Family Court of Western Australia) Report & Determination 2016;

RESTRICTED PRACTITIONER CATEGORY Since the commencement of scales in the current form, costs have been recoverable based on the seniority of a practitioner, judged by how long since that person has been admitted to practice. The scales have been structured with the categories of: •

clerk/paralegal which has included both law clerks and paralegals, and articled clerks;

junior practitioner, admitted less than 5 years;

senior practitioner, admitted 5 years or more.

These categories all change in the 2016 scales and from 1 July 2016, are: •

clerk/paralegal: law clerks, paralegals, graduates and articled clerks;

restricted practitioner: an admitted legal practitioner with an endorsement under section 50 Legal Profession Act requiring them to work under supervision;

junior practitioner: a practitioner who has been entitled to practice on his or her own account for less than 5 years;

senior practitioner: a practitioner who has been entitled to practice on his or her own account for 5 years or more.

5. Legal Profession (Magistrates Court) (Civil) Report & Determination 2016; 6. Legal Profession (Magistrates Court) (Criminal) Report & Determination 2016; 7. Legal Profession (Official Prosecutions) (Accused's Costs) Report & Determination 2016; and 8. Legal Profession (State Administrative Tribunal) Report & Determination 2016. Practitioners should take care to review and understand the changes made in the 2016 scales and how they will affect your practice, including how they may impact on costs agreements which you may have entered into with your clients. The most significant changes are the introduction of a new category of legal practitioner called Restricted Practitioner and the introduction into all contentious business scales, with the exception of the Official Prosecutions scale, provisions regarding travel. 22 | BRIEF JULY 2016

In 2008 amendments to the Legal Profession Act 2008 meant that the reliance on articles of clerkship as a pathway to admission as a legal practitioner in Western Australia ceased to be as significant as it traditionally had been. Whereas up until 2009 almost all newly admitted lawyers had undertaken a year's articles of clerkship and then a year of restricted practice, since 2009 that no longer reflects the experience of new lawyers. Figures from the Legal Practice Board of Western Australia demonstrate that less than 5% of newly admitted practitioners in Western Australia in 2015

undertook articles of clerkship. That is, over 95% of practitioners seeking admission for the first time attained their admission by undertaking a course of study at the College of Laws or similar and practical legal training. The effect of this change in the pathway to admission has been that newly admitted lawyers are admitted to practice with 9 months' less supervised legal practice than if they had undertaken articles of clerkship. So as to ensure that standards did not diminish, the change in the pathway to admission in 2008 was introduced with a correlative change in the length of supervised practice that a lawyer must undertake subsequent to their admission, with the 95% of nonarticles admittees being required to do 2 years of supervised practice. For the small minority of those who do articles, the supervised practice requirement is 18 months. In practical terms this change in the pathway to admission has meant that whereas under the pre-2008 system someone is admitted with one year of supervised practice and does a further year under supervision, since 2008 over 95% of practitioners undertake two years' of supervised practice after their admission and only 15 weeks' prior to admission. Until now, the various scales of costs have not reflected this structural change. At the same time that these structural changes in the legal profession were taking place, changes in university admissions policies and a growth in the numbers of law schools and thereby an increase in numbers of law students, resulted in larger numbers of graduates completing law degrees and seeking admission. As any casual read of the legal media attests, the numbers of graduates has outweighed the availability of graduate employment opportunities for some years, and the gap does not look like it is narrowing. The impact of these large numbers of graduates in the employment market has


given employers a great deal of choice as to who they employ and more flexibility in the market on the terms on which they might employ someone. This in turn has led to large numbers of supervised legal practitioners, the most junior people in our profession, working part-time and in numerous cases, undertaking supervised practice sporadically, on short term contracts over a number of years, in order to achieve their two years' post admission supervised practice. The Committee had a concern about the use of admission to practice as the threshold for determining whether someone was a junior practitioner or a senior practitioner, in light of the increase in part-time work, coupled with sporadic work patterns amongst junior practitioners. These work patterns mean it has been possible for someone to become a senior practitioner under the scales whilst she or he remains under supervised practice. The Committee does not regard this as an acceptable outcome for consumers of legal services who generally expect lawyers who are "senior practitioners" to be sufficiently experienced to practise without supervision. It is not the Legal Costs Committee's role to consider whether these structural changes have been positive. However, the role of the Committee is to ensure that consumers of legal services have benchmarks to measure reasonable fees chargeable for particular categories of practitioners and the provision of particular legal services, and to provide some transparency about how legal fees are charged. An integral part of transparency involves clarity of the relationship between fees charged and the seniority and, hopefully, experience and competence, of the practitioner providing those services. In 2016, the Committee undertook wide and extensive consultations to ascertain whether the levels of seniority in the scales were appropriate. In particular, we asked people and organisations in the legal profession to comment on whether changes should be made to the levels of seniority reflected in the scales and if so, where in the seniority levels any changes should be brought in. The feedback we received indicated that the courts and regulators were generally supportive of changes which would improve clarity and more accurately reflect the experience of the person delivering the services, whereas organisations representing practitioners had concerns about the practical implementation of any changes, especially given the longstanding use of the seniority categories in the scales. As a result of those consultations the

Committee came to the view that two substantive changes should be made in all the contentious scales to the categorisation of seniority of practitioners. These changes are: 1. the introduction of a restricted practitioner category, being a category of practitioner who is admitted but who is undertaking supervised legal practice pursuant to section 50 of the Legal Profession Act 2008; and 2. the threshold for determination of seniority is no longer post admission years but rather years since the section 50 endorsement is lifted. The new categorisation only applies to practitioners who are the subject of a section 50 LPA endorsement, and only up to the date on which the endorsement is lifted by the Legal Practice Board. The endorsement is lifted on request to the Board, so that it is a matter for the practitioner to seek the lifting of the endorsement, once the two years' supervised practice has been completed. The scale is not intended to operate in a way that rewards practitioners for failing to have the endorsement lifted when they could have done so. The category applies to all practitioners undertaking supervision immediately post admission, regardless of foreign pre-admission experience so that all practitioners with the endorsement are subject to the restriction. The Committee has 'grandfathered' practitioners admitted prior to 1 July 2016, so as to ensure that consumers of legal services are not disadvantaged in party-party taxations by a reduction in rates applicable to those practitioners who, because of the changes, might drop from being a senior to a junior practitioner or a junior practitioner to a restricted practitioner. The grandfathering is in place until 30 June 2018. It is not the Committee's present intention to extend the grandfathering any further, so that practitioners who after 30 June 2018 might drop back a level if the grandfathering is not extended, should give consideration to their charge-out rates over the next two years so that if the grandfathering is not extended beyond 30 June 2018 your clients are not disadvantaged. The new category does not apply to those practitioners who have a condition placed on their practising certificate requiring them to practise under supervision. These types of conditions may be imposed by the Legal Practice Board, State Administrative Tribunal or the Supreme Court, or by an undertaking given by a practitioner and they generally arise as a result of either disciplinary

or health concerns. The wording in the determination makes it plain that these people are excluded from the category of restricted practitioner and therefore practitioners remain able to charge as junior practitioners or senior practitioners, depending on their seniority, regardless of the condition. The change does not affect counsel rates in the scales, which continue to apply in the usual way. Notably also, there is no change in the relationship between counsel rates and senior practitioner rates. This change to the categories of practitioner is made in every scale that the Committee has promulgated in 2016 and so will affect all contentious business in all courts and tribunals in this State. The Committee intends to make the same change to the non-contentious scales due for review in 2017. The Committee recommends that practitioners take care to retain a record of when you are no longer under a section 50 LPA restriction. Practices should also keep these records and be aware that this information will be necessary for all taxations which take place after 1 July 2016 as you will likely need to include this information in bills of costs. Practices should also review their costs agreements and give particular consideration to how variations from the seniority levels identified in the scales may impact on those costs agreements. TRAVEL In keeping with the non-contentious solicitors scale and in response to recent concerns raised by the Legal Profession Complaints Committee about compensation by practitioners for travel, the Committee has decided this year to include a specific item in all scales, other than the Official Prosecutions Scale, in relation to travel. With some minor differences between various scales to reflect specific issues arising in those scales, the travel items provide for three types of travel. 1. Minor travel, being defined as travel from e.g. a CBD office or carpark to a CBD court by foot or bus etc is a party/party cost, recoverable as part of the appearance fee for the appearance in the court concerned, without further order of the court. 2. Travel which is required by the court or tribunal, e.g. travelling to a regional centre for a trial or a mediation or travelling to a site for a view when that is ordered by the court, is recoverable on a party/party basis, at 50% of the scale rates, and is limited 23


to a maximum of 8 hours in any one day. A specific order to recover those costs is not required if the court has ordered that the event for which the travel is associated is to take place. For example, if a party decides to undertake a site visit in preparation for trial, the travel associated with that would not be recoverable as a party/party cost. By contrast, if the court orders that the first day of trial will consist of a site visit, the travel associated with that will be recoverable on a party/party taxation. 3. All other travel, be it for more than 8 hours or at more than 50% or for any other reason including travel from the CBD to a metropolitan court or vice versa, or from the CBD to a regional court or vice versa, is not recoverable on a party/party basis without a special order of the court. Notes setting out these changes and the applicability of travel costs, including examples, are included in the determinations. Some of the scales, e.g. Family Court and SAT, are solicitor/own client scales only and the travel items have been drafted to reflect this. The Official Prosecutions scale does not include travel because this is purely a party/party scale and there is no relevant travel component which would be recoverable and which would not otherwise fall within the items which are already recoverable. The solicitor/own client travel components of work that falls within the Official Prosecutions scale is covered by the Magistrates Criminal scale. JUDICIAL REVIEW IN THE SUPREME COURT A further change in the 2016 Supreme Court scale is the deletion of the old Item 28 and the inclusion of judicial review applications into Item 10 of the scale. Amendments have been made to both Items 10 and 11 to include senior counsel rates, for instances where senior counsel is briefed in an application within those items. However, senior counsel rates are only recoverable on a party/party basis if the court has come to the view that it was reasonable to brief senior counsel, or if a party is claiming for two counsel, it was reasonable to brief two counsel. Care should be taken in framing costs orders at the end of applications to include either a specific order that deals with recoverability of senior counsel and/ or two counsel, or to ask the judicial officer to state in making a costs decision his or her view that it was reasonable in the circumstances of the hearing to brief 24 | BRIEF JULY 2016

senior counsel and/or two counsel. AMENDMENTS TO THE APPROPRIATE FEE EARNER Arising from the introduction of the restricted practitioner category, a number of amendments have been made to the category of practitioner identified as appropriate for a particular item. Practitioners should keep in mind that the fee earner column in the scales is the Committee's view of the appropriate seniority of the person who undertakes the work and the rates are intended to reflect the reasonable time taken by a practitioner of that identified seniority. There is nothing to preclude more senior or more junior practitioners undertaking the work in any item in the scale, but the scale operates to limit how much can be recovered for that work in the absence of a special costs order. At the time of undertaking the next review in 2018 it will be appropriate for submissions to be made on whether more items should be identified as appropriate for restricted practitioners. MAGISTRATES COURT Amendments have been made in the Magistrates Court Civil Report and Determination to set out in clearer terms a number of matters relating to the nature and jurisdiction of that court and in particular, the importance of proportionality in light of that court's modest monetary jurisdiction. Nothing in this determination is intended to reflect a change in view as to the way in which the Magistrates Court should approach costs, rather the determination expresses the view of the Committee as it has always been but because of the nature of the Magistrates Court, it was regarded as appropriate to be more explicit than the Committee has been in the past. It is not intended to include items or commentary of the nature that is now included in the Magistrates Court scale in any other scales at this time. The Magistrates Court scale has changes with item 10 – Applications to the Court, which is more extensive than in earlier scales, and item 11 from the older scales has been deleted and incorporated into item 10. This scale also includes a substantial reduction in the amounts for Civil Judgments Enforcement Act proceedings, now in item 19 and a change in wording in item 21, costs assessments, to reflect the view that this work should be done at a junior practitioner level and thereby

reduce the costs incurred in costs assessment. The Committee had considerable consultation with the Magistrates Court regarding the amendments. CHANGES IN RATES As all practitioners would undoubtedly be aware, we are presently in a very low inflationary environment. Anecdotal evidence suggests that there is considerable downward pressure on charge-out rates, at least in some parts of the profession, and the costs of undertaking legal practice, reflected in rents and some other costs are also lower than in past years. This has led the Committee to conclude that the rates in the 2016 scales will be the same as the rates promulgated in the 2015 non-contentious scales so that, for the first time in many years, the rates of practitioners under the scales will not vary between the type of work that is being done. As a result of these minor changes in rates, increases in the 2016 scales are generally less than 2% and in many cases there is no change at all. For example, there is no change at all to the rates chargeable by clerks/paralegals in the Supreme Court scale and in all those scales which adopt the same rates as that scale. The majority of fixed fee items in the scales have not changed at all given the low inflation, lower costs environment in which we are. The next review of the contentious business scales is scheduled to take place during calendar year 2018. In the current period some of the scales were brought forward slightly, so as to ensure that the introduction of the Restricted Practitioner category was introduced uniformly across all contentious business scales at the same time. The Committee felt that it was important that practitioners were charged uniformly regardless of which court or tribunal they did their work in or in relation to. In addition, there are some minor wording changes throughout the reports and in the notes to the determinations. Many of these changes are aimed at consistency of terminology between the different reports and determinations as inconsistency had developed over the years because of the timing of the introduction of scales for different courts. Information in relation to the scales and their history, including copies of old scales, can be found at the Legal Costs Committee website at www.legalcosts.wa.gov.au.


CURRENT MARKET SNAPSHOT KBE Human Capital is Western Australia’s leading Legal and Accounting Recruitment firm. Our team has long established relationships with national/ international and boutique law firms and our aim is always to provide WA’s lawyers with an unrivalled level of knowledge and exceptional level of service. We are currently working on numerous exclusive briefs to source high caliber lawyers with 2 years’ PAE through to Equity/Salaried Partners, with the most recent opportunities listed below. Salaried/Equity Partnership Opportunities • Partner – Commercial and NFP. We are currently seeking an experienced Commercial Lawyer to take on a key leadership role within a well‑known and long established WA firm. The Partners truly value their people and offer a flexible and relaxed working environment, with a focus on a work/life balance. The incoming Partner will inherit an existing client base from a retiring Partner, and provide advice across succession/estate planning, commercial leasing and general property law, asset protection/structuring and matters relating to NFP’s. • Partner – Construction Litigation. One of the few international firms that continues to expand in the current market is seeking a Partner to lead its Construction Litigation team. Work as part of a highly collegiate litigation practice with an established Construction/Projects team. • Partner – Corporate/Commercial. A rapidly growing Australian firm and long term client of KBE Human Capital is seeking an experienced Partner to establish a Corporate and Commercial Group in WA. The firm has a strong reputation and has grown to become a leader in the Australian legal market, with a focus on advising public, large private, and highly respected SME businesses. • Partner – Corporate/M&A. Join the growing team of a top‑tier international firm, expanding into emerging markets. Fee base of $500k+ required. • Partner – Environment and Planning. This is a new opportunity for an experienced Environment and Planning Partner to join and lead the E&P practice of an established commercial law firm. • Partner – Family Law. We are currently seeking an experienced Senior Family Lawyer to join a long standing firm and take on the Head of Family Law position. Due to continued growth, the firm requires the leadership of a highly respected Family Lawyer in this critical management position. • Partners – Insolvency/Litigation. Several opportunities have arisen for experienced Insolvency Partners to join national and boutique law firms as either a Partner or Head of Practice in further building capabilities across both front end insolvency and related litigation matters. • Partner – Tax and Tax Litigation. This is a new opportunity for a leading Tax Partner to join a national law firm and develop/lead the Tax Practice. You will take on the role of Head of the Practice Group, working closely with Partners from the east coast offices to leverage long term client relationships in rapidly building a fee base.

• Partner – Wills and Estate Planning. A growing mid‑tier firm is seeking a Senior Wills and Estate Planning Lawyer to manage a team of junior lawyers. The firm boasts a long established and loyal client base and offers a diverse range of commercial, family law, litigation and personal legal services. • Partner – Workplace Relations. Leadership role within a long established WA firm, advising both CEO/senior level employees and SME employers across the full spectrum of employment issues. Join an established team of lawyers and provide a strategic oversight role. Junior to Mid-Level Roles • Banking and Finance Lawyer. 2‑5 years’ PAE, providing advice to this international firm’s long established and global client base, including major Australian banks, international and investment banks and government organisations. • Corporate Lawyer. 2‑5 years’ PAE. This is an exciting new opportunity for a junior to mid‑level Corporate Lawyer to join a long established international law firm with an unrivalled deal flow. The firm boasts a significant client base and extensive experience in Corporate/M&A matters, with arguably the best client list in WA. • Corporate Lawyers. 1 year PAE and 3-5 years’ PAE Corporate Lawyers to commence ASAP. Client facing roles working with some of WA’s most approachable Partners. Exposure to public/private M&A and equity capital markets experience is desirable. • Family Lawyer. 1-3 years’ PAE to work with a Senior Partner in a newly established team. • Family Lawyers. KBE Human Capital has recently received multiple exclusive briefs and we are interested in speaking with a range of family law practitioners with 3+ years’ PAE. Our clients include leading national, full service WA firms and boutique firms with long established networks who are looking to add high calibre lawyers to their teams. • Insolvency/Commercial Litigation Lawyer. Top‑tier firm with some focus on mining/resources law in addition to insolvency, and would suit a lawyer with 1-3 years’ PAE to work alongside a market leading Partner. • Litigation Lawyer. Mid‑tier firm utilising your Asian language skills. An opportunity has arisen for a junior to senior level Commercial Litigation Lawyer to join a medium sized WA firm and become part of an established team that focuses on servicing in‑bound Chinese clients with extensive business interests in WA. • Plaintiff side PI lawyer. 1-4 years’ PAE with some workers’ comp experience being desirable, to join a well‑known medium sized firm. • Workplace Relations Lawyer. This is a new opportunity for an ambitious Senior Associate or Special Counsel level lawyer to join a high profile multidisciplinary firm in their employment practice. If you are interested in having a confidential discussion about the above positions or looking for more comprehensive market advice, please contact Chris Bates or Maryann McKenna.

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Running a Litigation File Some Comments for Junior Lawyers Simon R Grant* Barrister, Inns of Court, Brisbane

Running a litigation matter can be one of the most exciting things a lawyer will do professionally. It can also be one of the most tedious, nerve-wracking, mindnumbing, life consuming, exhausting, terrifying or exhilarating. Which of these applies to you mainly depends on things such as the client, the size of the matter, whether you are prosecuting an action or defending and how much else you have on. The purpose of this article is not to cover every possible scenario and put out a step-by-step instruction on how to run a litigation file. Each firm, and each individual, will have their own method. I aim to provide some comment on observations I have made over the past almost-20 years that will allow you to have some control over the things you can control to hopefully make the experience more positive than negative. AT THE START The best place to start is the start, that particular point where the matter first enters your office. As you become more experienced, this might be a phone call from a client or a call to the front desk to meet someone who has walked in off the street. In the early years of your career, it will probably be a partner or senior solicitor delivering the good news that "this one is yours" while having three boxes placed near your desk. Whichever way, the first thing you need to do is assess what you actually have in front of you. This sounds sensible, even stupidly so, but all too often people will simply 'believe' they have been given what they are told. This is especially the case where people are given a file that has already commenced. In those instances, you can have all the respect in the world for the person who the file has come from, but professionally you need to take control of the file. At some point you may need to swear an affidavit that commences to that effect. Make sure you do have control. You need to actually look. 26 | BRIEF JULY 2016

Don't just accept the file note from the solicitor now departed the firm or team that says "everything is fine, the client has been asked to do a few things, and matters can wait until they get back to us". If the file is in the type of order I describe below, it won't take you long to confirm the true status of the matter. If it isn't in some form of order, then your first question should be – "Is this a ticking bomb?" The expectation quite rightly upon you is that any issues will be identified early and dealt with. So look. Where you are the actual first person in the firm dealing with a matter, in some ways this is simpler. You can obtain the key information first hand. I will discuss this further below. If you inherit a file, then get it in order. KEEPING ORDER There are any number of ways that 'order' can be established – chronologically, alphabetically, numerically, content type or systemic. For my mind, in reference to a litigation file, one definition in the Macquarie Dictionary stands out – "in a state of readiness". If your file is created and maintained in a way which can be described as being in a state of readiness for conduct of the litigation, then you will not only save yourself any amount of heartache but also will maintain control. Another important outcome of correctly maintaining order in a litigation file is the reduction of fees. I do not refer necessarily to the costs to the client (but this certainly can occur), but rather the fees of the lawyer written off as being unable to be charged because the work has been excessive in the context of the matter. This of course impacts on the lawyer's ability to meet his or her own budget requirements. A file that is easy to access and clear in its layout reduces the time taken to locate documents. As Counsel, you receive three types of brief. First is the one contained in folders, with an index, numbered pages and clear sections, and with clear instructions on

where things are at and what is required. Second is the one that is in a folder, and while it might have an index and the pages numbered, it is basically a copy of the solicitors file from start to finish. The third is just a pile of documents. Why is it of concern to the solicitor what the brief to counsel looks like? The client pays the fee. Here is an opportunity to reduce your client's fees, keeping them happy, by reducing the time it takes for Counsel to do something. If it is all in order, as in the first example, as Counsel I know where to look for something. If it is the third example, I will spend a lot of unproductive time sorting it out. Depending how you run your file, the second can go either way. My personal preference when running litigation files was for five basic sections – Court Documents, Correspondence, Clients Instructions and Documents, Research and Miscellaneous. These might be physically in one folder or separate folders, but were always identifiable.1 Before I talk about what is in each section, I will note that generally the documents within each section should be in chronological order. Whether earliest first or latest first, they need to be in order.2 The content of the Court Documents section might be thought obvious. But to be clear, every document either filed in or issued by a court, tribunal, commission or registry for the matter should be in this section. It is somewhat disconcerting to be reading something that refers to a particular order having been made and to not have a copy of that order. My immediate thought is "What other orders were made that day?" No matter how innocuous it might seem, put that Order, Notice from the registrar or Direction in with the Court documents. Don't leave it stuck to the back of the letter from the other side or the registry and file it somewhere else. In some matters you may have a number of actions running in parallel in a number of forums between either the same


parties or involving the same facts. In some personal injury matters, this multiplicity of proceedings is sometimes unavoidable.3 However, when parties are dueling on a number of fronts, they are indicating a willingness to pull out all the stops. In such matters my experience has been that the numbers of documents filed in all matters increases. Separate the documents for each matter into separate sections – there are going to be a lot of documents to keep track of. The advantage is that sometimes you pick up where one party has neglected to deal with one matter. Regularly checking the e-Courts list of documents for files in relevant courts is a good way of ensuring that you have all documents filed. Correspondence was always, in my mind, of two types – that relevant to conduct of a matter, and that relevant to managing the matter. The latter is usually small in number, things such as fee agreements, invoices, and the like. I would usually separate this out in the Miscellaneous section of the file as I would only ever need to access it rarely, but when I did I didn't want to be wading through the correspondence that otherwise would accumulate on the file. For the former group, every letter between myself, my client, the other party and the Court would be placed in the Correspondence section. Again, this sounds simple. But I can recall any number of times where a letter was referred to in one document on a file I had inherited, and that letter was nowhere to be found. Usually, it would of course be a critical letter. If you start off at the beginning placing every document into the file as I suggest, you can be confident that the document will be there at that critical time when it must be found, and found now! The next section, Clients Instructions and Documents, might be called 'Evidence'. It is the most complex and proves the most difficult to bring order to. Clients will provide instructions, but they are never standalone. In some instances a letter of instructions will refer to other documents that they attach, and in other instances you simply get a bundle of documents in no particular order that are seemingly unrelated. Quite often it is unclear whether two pages are one document or two, let alone the five pages following them. I talk more about obtaining client instructions and documents below. In relation to maintaining order though, ultimately the documents will need to be separated into individual documents for disclosure purposes. Do this from the beginning of your conduct of the file. Put them in chronological order. Where a statement of a witness is included, place that in order at the date the statement

was made. Things such as DVDs, manuals, and the like may not fit easily into such a sequence. This is okay – it is all about bringing as much order as you can to the file. Now, if your client has orderly files, I am not necessarily saying to pull those apart and combine all the documents into one big pile. In most instances it is appropriate to simply disclose the entire file, and you can keep them together. But in some cases, you may need to extract specific documents. Where you find yourself in a matter with documents not arriving by folder load, but by the truck, then it is time to talk serious document management with a professional document management firm. Clients will give you multiple copies of the same document. If it is truly a copy, stick it in a different folder marked 'Client's Copies'. But make sure it is an exact copy. If not, determine if any difference is relevant, when any change or note was made, and if able who by. Then place it in the Client Documents file chronologically to when the change was made. You do not want to be scratching around at a conference or in court when the client says "I made a note about that on a copy of that letter".4 Finally, if you can't determine a date for something, then place it either at the end or at the beginning and seek instructions on it. In the Research section I would place all the directly relevant information that I had located, not that was provided by the client. Relevant legal research would be placed here. Also, any other relevant information obtained by you should be placed in this section. This might include any amount of internet searches, notes, and other documents obtained (brochures, etc). The important thing is that it is relevant, not just copies of the results of "chasing every rabbit down a hole" or "wandering up a dry gully". On the point of research, when obtaining a copy of a case, get at least the first page of the case in the report as well as the relevant pages, plus identify which member of the judiciary is commenting.5 In relation to books, also copy the title page and publication information so you are not trying to track it down later. The same with any large document that you don't need a complete copy of – you have it in your hand, copy the extra few pages. With an internet search, keep details of what you searched, how you got there and the URL for the site a document was obtained from. The Miscellaneous section is where you throw everything else. As mentioned above you might keep the fee agreements and invoices there (you can

keep them entirely separate), but here is where to throw all the boarding passes, maps, irrelevant Google searches6, and related information you have acquired and which is not really relevant to the other sections. Drafts of advices might go here, as well as draft Court documents. Copies of such documents that are not the client's are a vexed issue.7 My preference is to get rid of them completely. I will make just one final comment, on electronic files. These are fantastic for portability and when something needs to be provided urgently. Again, the key to usability lies at the start of the matter. You need to establish naming protocols for files that, when they are all saved into separate folders, list each document in an ordered way, and are identifiable immediately. While you may find things quickly in your office, once you email a document or deliver an entire brief electronically, this becomes critical in maintaining order. TIMEFRAMES There are always timeframes relevant to litigation. In some matters there may be more than one applicable timeframe that is immediately relevant to a client. Some may seem far off. They aren't. The Hon Justice White, at the Bar Association Annual Conference in 20128 made the comment that a lawyer would be derelict in their duty if they did not, each time a new matter came before them, ask the question "Is there a piece of legislation that applies to this matter?". If you act for a Defendant or Respondent, make sure you get the details of when the document was served on them, as in some cases you might find that they are due to file something in Court tomorrow, or worse still today or yesterday. I have had numerous documents brought to me where it sat on someone's desk while they were away on leave, and 28 days has turned into something like two. Note the date on your file, and immediately calculate out the basic timeframe that is going to apply to the matter. Then note this somewhere obvious. I am not a fan of complex systems – there is too much risk in something going wrong. But it must come to your attention early when something requires attention. My system was two-fold – a list of the dates on the front of the file (updated as required) and bring-ups in my diary at times which would allow me to deal with the next step, either personally or by delegation. Also, check that the conduct of the other side is in compliance with their timeframes. If not, this point needs to be made early. Where an application 27


requires service a certain number of days before hearing, insist on this. Where the proceedings are brought outside a limitation period, note this. Finally, you can insist on strict compliance with the timeframes under the rules of the court and similar rules, but always remember that those who live by the sword can also die by the sword. I talk more about the importance of communication with the other side later. CLIENT STATEMENTS I spoke to a number of chamber colleagues about this paper, hoping to glean ideas for further content. All immediately focused on one thing – "Tell them to make sure they get a statement from the client!"9 Take heed of such uniformity. A good client statement is imperative to ensuring clarity in instructions, as well as testing the client on their recollection, coherence and, sadly at times, truthfulness. It will also help you to bring some order to the matter at an early stage. You should start preparing the statement from the time of your first instructions. It should be a recitation of the relevant facts known to the client in a chronological order. It should be broken into numbered paragraphs. Try to keep the content of each paragraph limited to one concept or idea. And keep asking questions about all the information given to you – who, when, where, why, and what documents, emails, notes or other facts has the client got which support their statement. Be clear to the client – this is a big task but an important one. It will also possibly prove to be one which saves them a lot of money – it is far better to find out early if there is something missing than late. You may also identify that 'knockout' document which the client would never have thought relevant. As you work with the client through everything, you are afforded the opportunity to identify what documents might exist, which ones you haven't been given, and can work out the next steps required by the client to provide instructions to you. Clear instructions in a statement make application of the law a whole lot easier, and make briefing of Counsel even simpler. If left to their own devices, clients will generally tend to jump at shadows, focus on irrelevant points, and skip over the documents they have. You need to assist most clients in providing the information that will form their statement, by keeping them on track and tying up the loose ends.

And get it signed. It doesn't have to be in the form of an Affidavit, although it may do so in appropriate forums where evidence in chief is by Affidavit. But have it signed by the client and witnessed by somebody. A strategic decision might be made to release the statement to the other side to enhance costs prospects or bring an early end to a matter. Where the client has a number of people who can give evidence, follow the same process with them. Ensure that you take their versions separate from anyone else. Don't interview the entire family together in the same room. You can sort out any differences between them before the statements are signed through appropriate clarifying questions. This is especially relevant where the client is a company and statements are given by company officers. If the differences can't be sorted out, then you know early where major issues with a case may exist. Finally, it is important to have a signed statement should the worst eventuate. If the client is hit by a bus, for example, a signed statement may be the game saver should an action be continued. You don't want a claim against the firm by the estate to succeed because you did not attempt to get a statement that might be used in evidence. DOCUMENTS As referred to above, the other side of obtaining a statement is to make sure you obtain all the relevant documents. My experience is you are never given all the documents on the first request. There will always be something along the lines of emails sent, a diary, even a contract, that the client doesn't think is relevant. Your job is to ensure they understand that everything is relevant, even to just get the 'big picture'. The big picture is important, because it is what a Court will be told. Counsel for the other side will be certain to tell this story if it seems detrimental to your client or puts them in a bad light. Conversely, your client's pious position should be placed on show too, and Counsel for the other side won't necessarily do that. Once you have the documents, you can consider what is truly relevant. My advice to clients was to let me do all the hard work of deciding what was relevant. The larger majority of things you can decide upon quickly as to relevance. Clients will self-censor, too, thinking a particular document should not be released on the basis of some misguided idea as to privacy, commerciality or their understanding of the law. Dissuade them of this notion as you take the statement. Finally, read the documents. Not just

28 | BRIEF JULY 2016

the 'relevant content', but the document in its entirety. If a document has a fax header on it, where was it from or to, and when? If it is a contract, who is it actually between, or when was it signed, or which version is it? These little things can matter. Where a client provides you with electronic documents, if the other side inspect the original electronic documents (as they are entitled to do)10, take the time to look at the 'file properties' of any key documents. By this I mean, look into the relevant metadata of the file that shows you when it was created originally, who it was created by, and when it was last amended and who by. The information may be critical to identifying which version of a document was in existence at a particular time. I recall a personal injuries matter where I received a doctor's file. I started to read his notes and, in amongst the usual appointments for cuts, coughs and aches, I found a number of entries that were relevant to the injury the subject of the matter. The line I remember most is – "I have grave concerns for this man's veracity." "What does veracity mean?" I thought to myself. The next few lines of the doctor's notes spelt it out, but basically "truthfulness in speaking".11 Thankfully I was acting for the defendant. Further investigation ensued, and ultimately we obtained surveillance footage of the person in question doing things physically impossible for someone with his claimed injury. How had I obtained this medical file? The plaintiff's solicitor had supplied us with a copy of the plaintiff's medical files. One X-ray report identified a referring doctor not mentioned anywhere else. A non-party discovery process gave me that doctor's file. I wonder whether the plaintiff's solicitor had noted the different doctor's name. Possibly, and in response the plaintiff may have said the doctor was just a locum at the surgery at the time. But it may also be the case that it was missed. A CHRONOLOGY I am an advocate for chronologies. These simple lists bring an order across an entire file that cannot be beaten. They allow the story to unfurl before the reader. They allow the practitioner to see holes in a story, as well as the conflicting points. Usually I construct such documents in a table in Word. They can just as easily be constructed in Excel or some similar program. The important fact is that the information can be manipulated


– a simple paragraph reciting what happened is useless as a chronology. A good chronology will have every factual event listed, generally in three columns, detailing when the event took place, a description of the salient facts of the event, and also where the evidence of that factual event was obtained. I will address each of these points in turn. The level of detail required in forming the sequence of events is dependent on the appropriate timeframe for the matter. In a contractual dispute, the day is probably fine, with events that occur on the same day listed in order of occurrence if possible. In something like a medical negligence case, or an emergency response to an incident, a minute-by-minute sequence might be appropriate. The rapidness of actions, and the importance of this, will guide this development. In relation to the description, what you are attempting to do is give a concise version of what happened. It is important not to over populate the entry. For example, in a contract case, you might simply note "Contract for supply signed". In a motor vehicle accident case, you might only need to state "Date of incident – motor vehicle accident". Comments such as "Taken to RBWH by ambulance" and "Taken to work by tow truck" have clearly different meanings in relation to the actual incident. There is no need for a complete outline of how the accident occurred or relevant conditions of the contract to be copied in. On the other hand, sometimes you need a little detail to convey the importance of the event – "Plaintiff told defendant over telephone not to enter premises due to concerns about safety. Defendant advised would wait for plaintiff to arrive" is better than "Plaintiff spoke to Defendant on phone". The third part of the chronology is perhaps most important. When your brief gets to eleven volumes in size, are you going to remember where every single factual element was derived from? If you can, then good luck to you. But properly completing this third column can greatly reduce the time it takes to find something. As you build your chronology, put in the third column details of which document details the fact. Where two documents detail it, note them both. Each fact in the client's statement should be outlined in the chronology, cross referenced to the paragraph in the statement. Where documents differ, then you need to ask why. This is the last great purpose of the chronology. People can be mistaken as to timeframes, or content of documents, but such differences should be identified early. Once a chronology

is drafted, this should be supplied to counsel in at least electronic form, so that they may then use it to develop the case theory, which will dictate conduct of the matter. TALK TO PEOPLE Finally I would like to remind people that communication is extremely important in what we, as lawyers, do. There is communication with the client, but also that between opposing practitioners as well as colleagues. In relation to talking to a client, it is surprising how much more information can be obtained if you visit them, rather than they visit you. This is especially true where large organisations are involved. The ability to talk to people "on the ground" can be invaluable. I recall the example of defending a claim where someone was injured while visiting a national park. The instructions from the client's head office were that the person had left a walking track, and suffered an injury when a tree fell on her. I took an article clerk with me and we went to film the site. While there, one ranger in general conversation mentioned there was some question about where the boundary to the property was. Up until that comment, the client's instructions were that the incident had occurred on their land. A survey of the site identified that the incident had in fact occurred on a neighbouring property by some fifty meters. I would next like to briefly discuss professional courtesy and respect. We all know of firms and individuals who hold the reputation of being argumentative, belligerent and unreasonably inflexible in the application of the Court rules. There is no need to be such a person. When you receive a matter and you can identify the lawyer for the other side, ring them up. Introduce yourself, let them you know you have conduct of the matter, and that they can call you any time. Develop a rapport. In many matters you find yourself at a juncture where this professional relationship is important. You may need extra time to complete a task, or they may, or options for early resolution might be discussed. It does not mean that you can't act in line with strict requirements, but a good professional relationship takes out any emotional consequences. And always remember that in litigation you tend to come up against the same opposing practitioners again and again. Today you might be against a firm, but tomorrow you may actually need their support in another matter. Leaving one matter with a strong on-going relationship will benefit your practice. Finally, talk to your colleagues. It will be

rare in your early years that you will do anything completely new. Colleagues will have ideas on how to handle a particular problem, or will confirm your thoughts on how it should be handled. But a word of caution – do not become the whinger who has to be spoon-fed everything. Your colleagues will desert you, and in my mind, rightly so. An old partner of mine had a statement, and he took it so seriously he had it on a plaque on his desk just to remind each of us junior lawyers as we entered his office to think carefully about what we were going to say – "If you come to me with a problem, but no solution, you are part of the problem." Simply put, think up every way you might solve your particular dilemma, and then why each will or won't work. Be ready to explain these. Some spoken out loud will immediately sound fanciful. But guidance will be better achieved if you, yourself, come up with the solution. CONCLUSION As I indicated at the beginning, these are just some ideas on what will assist in the conduct of a litigation file. Not all will be relevant to every matter. But if you get yourself into a habit of doing the little things early, from the beginning, then as the bigger things come along, you will hopefully be able to stay a little more in control. You may even enjoy the exciting, tedious, nerve-wracking, mind-numbing, lifeconsuming, exhausting, terrifying and exhilarating ride that is litigation. ABOUT THE AUTHOR To contact Simon Grant, visit www.simongrantbarrister.com.au NOTES 1.

Some places I've seen coloured folders, others with file numbering prefixes or suffixes. It doesn't matter how, so long as they are.

2.

The order can be different between sections, for example, earliest first for Court Documents, latest first for correspondence.

3.

Although in my experience in defending matters, this was usually as a result of poor initial advice to a plaintiff.

4.

Otherwise, the only time you will need the 'Client's Copies' folder is if you need to quickly hand over a copy of the document.

5.

I note the Qld Supreme Court Practice Direction No.16 of 2013, replicated by Practice Directions in the Qld District and Magistrates Courts, requiring the citation of authorised reports rather than unauthorised. If the report is not the authorised version, see if there is one and use that.

6.

With a note as to why you thought it possibly relevant is a good idea.

7.

Such as three copies of a draft used for a meeting. The copying fee will be charged, but they have no purpose past the meeting.

8.

As a panel member, made to the conference in response to the paper by (now His Honour) Jackson QC "Statutory Interpretation – Text in Context – Is the Taxonomy Failing?"

9.

Unfortunately this didn't help me, as I had already thought of that one.

10.

On a computer with original forms of the documents on it.

11.

Never forget the usefulness of a dictionary.

29


Understanding innovation risk Should you run your law practice like an Apple store? This article was first published in Australasian Law Management Journal, April 2016. A version is also available online at the Law Management Hub (lmhub.com.au). Ronwyn North

A law firm's attitude to innovation and how to implement it can go a long way to determining the success of any new ideas, writes Ronwyn North. Innovation is an important business tool in times of change. Yet many law practices are failing to tap in to the benefits because of misconceived ideas about innovation and innovation risks. Does your law practice need a shift of mindset? Depending on who you listen to, innovation is either the legal profession's road to salvation or the road to ruin. The essence of innovation is in creating value from new ideas; your own or someone else's. Innovation is not the idea itself; that is invention. Rather, innovation involves the willingness and capacity to seek advantage from using the new ideas, or using old ideas in new ways. In a business context, successful innovation means advantages gained from innovating are able to be 'commercialised'; that is, translated directly or indirectly into financial benefits. The diversity of views about innovation – reject it, be sceptical, or embrace it – was starkly illustrated for me recently by conversations with four different law practice principals. Here is what they said: "I am not in favour of innovation because innovation puts lawyers out of business." "Innovation is a passing management fad, like total quality management." "Innovation is a waste of money. We don't use half the bells and whistles that our IT manager persuaded us were essential." "I've restructured the practice to be more like an Apple store. 'Sales' and work intake staff are now separate from the 'genius bar' of technical experts who do the work. So far, my clients love it".

30 | BRIEF JULY 2016

I will come back to what is insightful or misconceived about these views of innovation, but at least today it possible to have a meaningful conversation about the topic. This was not the case 20 years ago when I took part in a feasibility study for the NSW Law Foundation called Tomorrow's Legal Services. The study recommended funding of a larger project with the objective "to improve access to justice and competitive success for the legal profession through research, innovation and support". The proposal was ahead of its time and went nowhere. Now the tide has turned and in April this year the NSW Law Society announced a 'commission of inquiry' into the future of the legal profession. The commission will shortly take 'evidence' from interested parties and report later in the year. If the commission reaches similar conclusions to the equivalent commissions that have already been held in Canada, the United States and the United Kingdom, then embracing innovation will be one of the key recommendations.1 Returning to the view of four practitioners, let us consider what each is really saying, or not saying, about innovation and innovation risk. "I am not in favour of innovation because innovation puts lawyers out of business." It is not innovation that puts lawyers out of business, but lawyers' failure to use innovation as a means for responding to the forces of change and disruption. The context of the above quote was a conversation about the rise of 'DIY law' and the unbundling of legal services. This is the trend whereby clients do some of the work themselves and use lawyers for limited tasks. The practitioner in question felt that lawyers are now losing business because the internet and technology enable clients do things such as their own legal research; download, draft and file their

own documents; or take steps to resolve disputes. The practitioner felt that DIY law is all very well, but not when clients seek 'insurance' – figuratively and potentially literally – by consulting lawyers to check the quality of the DIY work. While this practitioner may appreciate a new coffee mug with the slogan "Please don't confuse your Google search with my law degree", she may benefit more from a shift in mindset. A cartoon from yesteryear nicely captures the concept of a mindset shift. It shows two barbershop signs on opposite sides of the street. One sign advertises "$5 haircuts" and the other trumpets the fact that "We fix $5 haircuts". What this practitioner was really saying is: "I want things to stay the same. I don't want to change." However, no amount of wishing is going to put the change genie back into the bottle. This practitioner should be asking: "Can we afford the risk of not innovating?" She may decide to maintain the status quo and take the risk that enough clients like the old ways for the practice to survive. Or she can take the risk of finding new approaches to practice that both meet the needs of the new breed of clients and are profitable for the firm. If the practitioner does decide to embrace innovation, the question then becomes how to make it happen effectively, which is where the views of the second practitioner become interesting. "Innovation is a passing management fad like total quality management." Innovation is both a business capability and a tool for advancing strategic and operational objectives. Like any capability, it has to be learned and practised in order to be executed well. Like any tool, it is more suitable for some purposes than others; it can be used or misused, and in different hands it can produce different results. The practitioner in question


ideas with which to 'experiment' can be more risky if decisions are solely driven by creative hunches, innovation for innovation sake (aka the 'shiny new things syndrome') or the views of a dominant stakeholder. Creativity and intuition have a role to play in innovation, but so too does reality testing the need for and the purpose of innovation. This includes research and number-crunching about things such as law practice performance projections, client needs, market trends, options and alternative scenarios.

"Innovation is both a business capability and a tool for advancing strategic and operational objectives. ... it has to be learned and practised in order to be executed well." acknowledged that a law degree did not provide training in law practice management. However, he remained sceptical about 'management claptrap' after a bad experience with total quality management some years earlier. The failure of TQM to deliver value seemed to have undermined the practitioner's trust in business management generally. The mindset shift this practitioner needs to make is to regain trust in 'good management' and be willing to learn how to use the latest tool in the managerial toolbox called 'innovation'. After all, law practices successfully adapted and adopted other business management practices in areas such as strategy, marketing, finance, HR, IT, and risk management. Practitioners can either acquire these business skills themselves or hire suitably qualified staff or advisers – and it is the same with building capacity for innovation. The second practitioner would also do well to reflect on the reasons why the TQM experiment failed. Was it because the TQM approach used was not appropriately adapted from manufacturing to the professional services environment or the size of the firm? Or were there factors within the law practice itself that doomed the initiative to failure? This brings us to the third practitioner, whose views are instructive about why innovation can fail to live up to expectations. "Innovation is a waste of money. We don't use half the bells and whistles that our IT manager persuaded us were essential."

There is no doubt that innovation carries the risk of investing time and money in working out how to use a new idea only to have little or nothing to show for it at the end. However, innovation is not inherently more risky than other business initiatives. Rather, innovation can 'feel' more risky because results are more uncertain and less predictable when you are working with unproven ideas. Judged objectively, sailing a new route through unfamiliar waters may sometimes turn out to be safer than attempting to navigate known but dangerous shores. The success or failure of innovation can be influenced by a number of factors within the control of the law practice, including culture, decisionmaking and project management. These factors may have been in play in the case of the practitioner who felt that innovation is a waste of money. THREE KEY FACTORS First, let us consider innovation culture. David Morely, global senior partner of Allen & Overy, puts it well: "Successful innovation requires firms to have the right culture. There has to be a culture where people feel able to try new things without being shot down if it doesn't work out. However, lawyers by their nature – and please excuse the generalisation, can be cautious and focused on the downside. That approach is sometimes right for legal advice, but for business decisions it can hold you back. To innovate, you need to experiment and some experiments will inevitably fail. If there is a blame culture, people will be too scared to innovate." Second, decision-making is crucial to success. Deciding which unproven

Innovation needs influential champions, but successful innovation is more likely if the champions pursue a transparent, consultative and collaborative process involving the right people, rather than one which is secretive, dictatorial or exclusive. The lack of involvement of the right people in an innovation project came home to roost recently for the Law Society of England and Wales. According to media reports, the Society spent £7 million (about AUD$13 million) on developing an electronic conveyancing portal that does not work well enough to be worth marketing. While the idea was a good one, apparently one of the lessons from the debacle is that the design and testing stages required much more input from experienced conveyancers. The third factor is project management. Like any new business initiative, innovation requires good project management as time and resources are not unlimited. However, trying to micromanage an innovation project will almost certainly guarantee its failure. Working out how best to use unproven ideas requires some flexibility as to outcomes, scope, budget, timeframes and milestones in order to account for unexpected developments. Too rigid an approach runs the risk that innovations with good potential will be killed off too soon, while bad projects will be pursued for too long. Beyond the design and feasibility phases of innovation, it is critical to focus on good planning and the allocation of adequate resources for the success of the changeover or commercialisation phase. Innovation will fail to add value if the people who are most affected by the change are not sufficiently informed or motivated to adopt the innovation. Appropriate and timely communication, incentives and training should be built into project planning from the start of every innovation project. THE APPLE EFFECT The impact of any change applies to clients as well as law practice personnel.

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This brings us to the fourth practitioner. "I've restructured the practice to be more like an Apple store. 'Sales' and work intake staff are now separate from the 'genius bar' of technical experts who do the work. So far my clients love it." Innovation can be revolutionary or evolutionary. Radical rethinking of the practice of law as we know it is all about innovation. So, too, is the adoption of new ideas that refresh or optimise existing practice strategy, systems and processes, or restructure or realign the law practice to its market opportunities. These approaches to innovation are not mutually exclusive and the more sophisticated law practices may be taking steps simultaneously to refresh, reengineer and reimagine different aspects of the practice. For example, one team may benefit from optimising the use of an existing document management system, while another reconfigures practice processes for wholly electronic files, while yet another transforms a particular type of matter into an online internet-based service. At first glance, the 'Apple store' approach sounds more transformational. However, many a highly leveraged sole practitioner or client relationship partner

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32 | BRIEF JULY 2016

in a larger firm might argue that there is nothing particularly new about separating people who get the work from those who do the work. In fact, what is different about this practitioner's approach is that many of the 'work getters' are not lawyers and this is what appeals to clients. Apparently, compared with lawyers, clients feel these 'meeters and greeters' better understand their needs, 'speak their language' and are less intimidating to see at the start of a matter. The practitioner has the right idea in focusing innovation on client benefits, not simply getting more money in her own pocket. However, innovation can have unintended risks and consequences. For example, the 'Apple store' model may have increased professional liability risks that need to be addressed. Non-lawyer work getters might over-promise what the doers can deliver, misrepresent their qualifications, or give legal advice. A sound approach to innovation will seek to anticipate and mitigate such risks; for example, by making sure that roles and limits to authority are well understood and maintained. An unintended consequence may be that some good lawyers do not like the new model and leave, or are reluctant to join the firm.

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WIN OR LOSE In conclusion, times of rapid change tend to create winners and losers. Which side will your practice be on, and could a shift in mindset towards innovation increase your chances of winning? When it comes to innovation, do not knock it if you have not tried it. Most law practices have nothing to lose and everything to gain from becoming more innovative. If you are going to do it then, like any skill or capability, learn to do it well and avoid the common traps. Innovation does not have to be radical to create value. Take an approach that matches the strategy and resources of your practice. Pay special attention to culture and people, not just technology. Finally, get comfortable expecting the unexpected and the occasional failure. Safe practice! ABOUT THE AUTHOR Ronwyn North is the managing director of Streeton Consulting and a qualified lawyer who specialises in consulting to the legal profession on practice management issues, including risk management. She can be contacted at rjnorth@ streetonconsulting.com.au. NOTES 1.

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Refer to the Canadian Bar Association's Legal Futures Initiative; the American Bar Association's Commission on the Future of Legal Services; and The Law Society's report in the UK on the Future of Legal Services.

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Nature of evidence and presumptions in probate actions The Hon Eric Heenan QC Former Judge of the Supreme Court of Western Australia (2002-2015)

PRELIMINARY This is a discussion about a medley of various types of presumptions which may more or less often be encountered when dealing with succession cases, claims for probate or administration, validity or effect of a will or portion of it and with construction of testamentary instruments, wills, codicils or informal wills. It is a revised version of a paper given to the Succession Law Conference of the Law Society of South Australia in Adelaide on 20 November 2015. There may be an interest in South Australian law here in Western Australia, especially because of South Australia's more liberal laws relating to perpetuities and accumulations. Not all presumptions are the same in nature or effect. There are presumptions: a) of fact which are usually rebuttable; b) as to the meaning or construction of a provision which may be doubtful or ambiguous and which can yield to some express of implied contrary indication; c) as to intention such as the presumption against intestacy; d) as to the validity of old documents or wills which may be displaced by evidence; and e) as to status such as marriage, legitimacy or de facto relationships which will prevail in the absence of evidence to the contrary and which arise from general acceptance within families or communities. Other presumptions are based on general community experience often adopted in legislation to reflect the common understanding or expectations of the community – e.g., simultaneous deaths, capacity to bear or procreate children, or to share benefits equally or bring to account past gifts – hotchpot. The various presumptions have differing strength or effect. They generally come under consideration

where evidence about a doubtful or contested fact is sparse, or where there is some uncertainty or ambiguity about intentions, capacity or effect. Accordingly, they are to be treated with care and with full consideration of the known facts or provisions. Often, they will be important in identifying where or on whom the burden of proof of a particular contention of fact or legal effect will lie, but they should be treated with caution and discrimination and as no more than aids to determine some issue or other in the full context of all known circumstances: Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 at [27] - [33]. TESTAMENTARY CAPACITY The principles established in Banks v Goodfellow (1870) LR 5 QB 549 per Cockburn CJ at 565 have been universally applied. In Australia that test has been adopted in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277; Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 and Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439. If a will is duly executed and appears on its face to be rational a rebuttable presumption of testamentary capacity by the deceased will arise: Bull v Fulton. The particular significance of due execution is examined in the topic which follows this. A will of such apparent validity will be accepted for probate unless circumstances are raised which cast doubts over its validity in which case the propounder of the will has the onus of proving its validity: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. See the joint reasons of Dixon CJ, Webb and Kitto JJ in Worth v Clasohm at 453 when dismissing a challenge to probate of a will of a testatrix suffering some delusions but not of a nature to affect her testamentary capacity. Their Honours said: A doubt being raised as to the existence of testamentary capacity at

the relevant time, there undoubtedly rested upon the Plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of the testatrix who possessed sound mind, memory and understanding at the time of the execution. In a case of suicide the self‑inflicted death, of itself, does not raise any presumption of want of testamentary capacity: Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 and Hearne v La Housse & Ors [2007] WASC 99 per Hasluck J. DUE EXECUTION See Sholl J in In Re Bladen [1952] VLR 82 at 84 - 87. The epitome given in the headnote of the case is succinct. A presumption of due execution of a will arises not only from the production of an apparently well executed document with a full attestation clause reciting compliance with the Wills Act, but also from the production of a document bearing the signatures of a testator and two witnesses but either lacking any attestation clause reciting compliance with the statutory requirements. The presumption has been applied to wills where both witnesses are dead or are unavailable or undiscoverable (usually on 33


proof of their signatures and their death or unavailability); where one or both witnesses survive but have no memory of the relevant events: Gair v Bowers [1909] HCA 57; (1909) 9 CLR 510 per Powers J; where one or both survive but his or their evidence is rejected; and where both survive and their evidence is conflicting, but the witness negativing due execution is not accepted. The presumption, however, has not quite attained the status of a presumption of law which would make its effect decisive unless its effect is displaced by positive evidence. A conventional attestation clause in the testament is not essential to the validity of the will but its presence, and the absence of any contrary indication or evidence, will usually allow a grant of probate in common form to be made without the need for affidavits of due execution from the attesting witnesses. The presumption can be relied upon in contentious proceedings for probate and where a compromise is reached leading the parties to propound a particular will against which previous objections have been withdrawn – Wheatley v Edgar [2003] WASC 118; Wade v Frost [2014] SASC 162; and Tsagouris v Bellairs [2010] SASC 147 Even with the assistance of the presumption of testamentary capacity arising from due execution, the court should carefully assess the evidence to satisfy itself that the deceased was of sound mind when making the will. The issue of testamentary capacity is a question of fact upon which the court must ultimately satisfy itself.

c) control of a business or enterprise; d) an expressed intention by a person to benefit another on death; or e) continuance in uninterrupted possession of freehold land by its proprietor: Allen v Roughley [1955] HCA 62; (1955) 94 CLR 98. The principle was explained by Dixon J in Axon v Axon [1937] HCA 80; (1938) 59 CLR 365 at 404. Axon v Axon and the later similar case of Re Peatling, Deceased [1969] VR 214 concerned different consequences but the same essential issue. In each case a woman had married and then separated. After a long separation and when she believed her husband had died, she remarried. After the second marriage it became necessary for her to prove that the second marriage was valid. In each of these cases there was no actual proof that the first husband had died, just that many years (more than seven) had passed without hearing from or of him before the second marriage. In these situations there was the presumption of continuance to the effect that the first husbands were alive, and the presumption of death after more than seven years' unexplained absence. How was the issue of the validity of the second marriages to be determined in these circumstances?

The presumption can be relied on also in cases where the will has been lost and the application is to have a copy of the lost will properly authenticated – Proud v Proud [2012] WASC 134 at [72] - [77], which also examines cases where a lost will may be proved even if evidence of execution is incomplete – Harris v Knight (1890) 15 PD 170 – and although the witnesses are not known: In the Estate of C R Phibbs (Deceased) [1917] P 93 or could not remember: Re Webb, Smith v Johnston [1964] WLR 509; [1964] 2 All ER 9.

In Re Peatling McInerney J rejected any approach which might favour the selection of one presumption over another. His Honour treated the competing presumptions as constituting merely part of the evidentiary material on which the case should be decided and determined the outcome on his own overall assessment of all the probabilities - leading him to conclude in favour of the second marriage. A similar result had occurred in Axon but involved the case being sent back for more evidence to be taken. As a result, as said in Cross on Evidence at [7325], one cannot establish any absolute hierarchy of presumptions, which can be used as a rule of thumb to resolve all such conflicts. See also Nelson v Nelson at [23] and [66] - [68].

CONTINUANCE

MARRIAGE AND LEGITIMACY

The presumption of continuance can be applied in various circumstances. They include the continuance of:

Proof of a marriage may be required to show the entitlement of a surviving spouse to a disposition in a will to 'my husband' or to 'my wife' if not otherwise sufficiently identified or, similarly, on an intestacy. This is usually done by production of a marriage certificate but another of several forms of proof will be evidence of cohabitation and repute which will give rise to a (rebuttable) presumption of marriage.

a) a pre-existing state of health: Commonwealth v Mifsud [1965] HCA 56; (1965) 114 CLR 505 per Windeyer J; or b) of an illness or malady - Dawkins v Metropolitan Coal Co Ltd [1947] HCA 52; (1947) 75 CLR 169; 34 | BRIEF JULY 2016

If the marriage is proved by evidence of a marriage ceremony it will also be necessary to prove that the ceremony constituted a formally valid marriage (see Cross [41085]). At law a gift to a child or to children only operated as a gift to legitimate children except where the will indicated otherwise, or where there were no legitimate children to take. That has now been changed in all Australian jurisdictions by statute. Ex‑nuptial children are now on the same footing as children of a marriage: Wills Act 1970 (WA) s31. This equality also extends to adopted children: Adoption Act 1994 (WA) s75(1). The same applies to distribution to ex-nuptial children on an intestacy: Administration Act 1903 (WA) s12A(1). As for the strength of the rebuttable presumption of legitimacy for a child born in marriage, see Cocks v Juncken [1947] HCA 16; (1947) 74 CLR 277 and Evidence Act (1906) (WA) s19. It is possible for a testator by his will in express terms to exclude illegitimate children but they will have a right to seek provision from the estate under the family provision legislation: see generally Dal Pont and Mackie: Law of Succession [8.51] - [8.58]. DEATH AFTER SEVEN YEARS UNEXPLAINED ABSENCE There is a rebuttable presumption of law that a person who has been missing for seven years and has not been seen or heard of by those with whom he would be expected to communicate and of whom no trace can be found in that period is dead at the time of proceedings in question: Axon v Axon. The legislation dealing with the presumed order of deaths not precisely ascertainable (like s120 of the Property Law Act 1969 (WA) and, to its limited extent, s72E of the Administration and Probate Act 1919 (SA)) does not apply to presumed deaths – Halbert v Mynar [1981] 2 NSWLR 659 – except possibly in Victoria where an earlier decision was to contrary effect – Re Albert [1967] VR 871. These provisions are addressed later in this paper. The rationale for the presumption was described by Dixon J in Axon v Axon at 405: The presumption of life is but a deduction from the probabilities and must always depend on the accompanying facts … As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if


certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceedings in which the question arises. It is necessary for a party seeking to invoke the presumption, in whatever form the proceedings take, to adduce evidence which will give rise to the presumption, namely that the missing person has not been seen or heard of, cannot be found and that there is no record of his or her death in any place where that person may be supposed to have been. For details of the kind of evidence needed for the Court to act on the presumption and the enquiries necessary to support it see Gray J in Re Estate of Hills [2009] SASC 176. Similar issues and procedures may arise where application is made for leave to swear to the death of a person who has been missing for a lengthy period – although not necessarily for seven years: Lashko v Lashko [2011] WASC 214 under provisions comparable with Rule 7 of the Non-Contentious Probate Rules 1967 (WA). The distinction between such an application and a declaration of presumption of death is explained in

Re Paul Allan Weeks; Ex parte Weeks [2016] WASC 25 by Registrar C Boyle at [7] - [12]. Similar issues can arise on applications by trustees or personal representatives for leave to distribute from a trust fund or estate when one of the beneficiaries has been missing for a long time – Nolan v Nolan [2011] WASC 224 and in one, particularly poignant, case of an only son whose bomber aircraft had gone missing without trace on a mission to Germany in 1943 – Re Green's Will Trusts [1985] 3 All ER 455. However, in these cases granting leave to distribute trust funds there is no finding of death made. In cases of tragedy like a missing aircraft or ship it is possible to obtain a declaration of death of the missing person before seven years has elapsed but these cases depend heavily on the particular circumstances of the disappearance – In the Goods of Matthews [1898] P 17 (missing after three years); Re Parker [1995] 2 Qd R 617, man washed off rocks into sea and body never found. SIMULTANEOUS DEATHS AND ORDER OF SUCCESSION There are sometimes occasions of multiple deaths at or about the same

time, when there is little or no evidence to determine who died first or what was the sequence of deaths or whether they were, indeed, simultaneous see Re Albert Deceased [1967] VR 675. The order of deaths will be important when one or more of the deceased was a beneficiary under the will of another or entitled to share in the intestacy of the other. In such cases, if the intended beneficiary died first then the gift to him or her by the other or others will have lapsed. How does the law deal with such uncertainties when it is not possible to prove what was the order or sequence of deaths? The problem at common law was acute because there was no presumption one way or another about who died first, or what was the order of multiple deaths occurring at about the same time: Wing v Angrave (1860) 8 HL Cas 183. So where legacies or distributions to one or other of the deceased lapsed because of the inability to prove survival, that gift, if not otherwise disposed of by the will, became distributable as a partial intestacy to whomsoever was entitled – excluding the co-deceased. Such a result could easily appear arbitrary and depart from what may be inferred to have been the wishes of the deceased disponor.

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There have been three main types of statutory response in the various jurisdictions. The first occurs in South Australia see s72E of the Administration and Probate Act 1919 (SA). For the second approach to the problem, see legislation in New South Wales, Queensland, Tasmania and Victoria, following s184(1) of the Law of Property Act 1925 (Eng). This creates a general presumption that the older is presumed to have died before the younger. Its application is not confined to simultaneous deaths or commorientes but can apply when one of the deceased died in different circumstances but on an unknown date – Hickman v Pearcey [1945] AC 304 and Re Albert Deceased [1967] VR 875. For the third approach, see s120 of the Property Law Act 1969 (WA), with similar but not identical provisions in the legislation of the Northern Territory and the Australian Capital Territory. By s120(i) of the WA Act, the deaths of the persons so dying shall be presumed to have occurred in order of seniority and accordingly the younger shall be deemed to have survived the elder. But this has only very limited application because ss.120(a) to (h) make compendious provisions otherwise for the devolution of property and survivorship of jointly owned property in such cases. If the order of deaths is uncertain, the property of each devolves as if he or she had survived the other or others of them and had died immediately afterwards. So it is said that the effect of the provisions is to preserve the gift – that is, to prevent the gifts vesting in a beneficiary and then divesting immediately afterwards – see generally Hutley's: Australian Wills Precedents, 7th ed, at [6.1] to [6.7], which also contain discussions of drafting techniques using the 30-day survival condition or other methods to ameliorate other difficulties. By s120(d) of the West Australian Act any property owned jointly and exclusively by two or more of the persons so dying (except where held as trustees) shall devolve as if it were owned by them when they died as tenants in common in equal shares. AGAINST INTESTACY OR PARTIAL INTESTACY Both with regard to the construction of any will or codicil and when determining whether some irregular writing or other material amounts to an effective informal will, courts incline against finding an intestacy or partial intestacy if possible. In Re Harrison (1885) 30 Ch D 390 at 393 Lord Esher MR said: Where a testator has executed a will 36 | BRIEF JULY 2016

in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he had gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. The leading example of this approach is Fell v Fell (1922) 31 CLR 268, where Isaacs J observed: To create a complete intestacy would be openly opposed to the intention of the testator, and I think that that should not be done by the court if at all avoidable. That application of the approach in Fell v Fell was exemplary because the testator's will had appointed two named executors and contained the phrase 'I give devise and bequeath unto' then naming 11 beneficiaries but it omitted to identify any of the deceased's property which was to be left by the will. The Court concluded that there had been a valid will and that is disposed the whole of the testator's estate to the named beneficiaries, to be divided among them in equal shares. For recent cases see Re Nies, Deceased [2014] SASC 93 per Gray J; Fielder v Burgess [2014] SASC 98 per Kourakis CJ, where the Chief Justice observed that the presumption against intestacy may be more readily relied upon in the case of a 'home made' will (referring to Lewis v O'Loughlin [1971] HCA 53; (1971) 125 CLR 320 at 33 per Menzies J) and that the presumption has often been applied to informal wills. See also Deeks v Greenwood [2011] WASC 359. The presumption also applies in cases of alleged partial intestacy but, as Duggan J explained in Dobryden v Wagner & The Association of Ukranians in SA Inc [2004] SASC 413, that can be used as an aid to the construction of the will in the event of an ambiguity but cannot permit the Court to do otherwise than construe plain words according to their plain meaning. Therefore, powerful as it is, the presumption against intestacy does not allow a court to make a will of its own or to adopt a meaning on the basis of speculation (see Dal Point and Mackie: Law of Succession [8.24]). VALIDITY OF AGED DOCUMENTS Formal proof of an old document can be difficult due to the absence or death of signatories, witnesses or those familiar with their writing. Hence, the common law rule that due execution or attestation of a document more than 30 years old is

presumed if it is produced from proper custody: The Permanent Trustee Co of NSW v Fels [1918] AC 879 (PC) and Adam v R [2001] HCA 57; (2001) 207 CLR 96 at [55] n 26. In some places, including South Australia, the age of the document which is presumed to be authentic and hence admissible has been reduced to 20 years (Evidence Act 1929 (SA) s34F). The presumption is rebuttable by proof to the contrary but this throws the onus of proof on to any party disputing the authenticity of the document instead of its proponent. Reliance on the presumption is dependent upon proof being offered that the document has been produced from proper custody. DATES OF ALTERATIONS A document is presumed to have been executed on the date which it bears: Dillon v Gange [1941] HCA 5; (1941) 64 CLR 253 per Starke J. Again, this is a rebuttable presumption of fact. Cross on Evidence states that alterations in a deed are presumed to have been made before execution as otherwise the entire deed may be avoided. By contrast, non-attested alterations in a will are presumed to have been made after execution because they otherwise may invalidate the entire testament. These, too, are rebuttable presumptions and evidence from the signatory or witnesses or others may possibly overcome them. Alterations to a will before execution will be effective if made with the testator's approval but usually this requires proof of attestation with the alterations such as by the presence of initials of the testator and the witnesses, although proof of such prior approval can be established by other means, including by the context or content of the will. However, unattested alterations are presumed to have been made after the execution of a will and are ineffective unless the will as altered is executed


To obviate these problems the legislatures have, fortunately, intervened. By s60 of the Law of Property Act (SA) there are several directions that these remote possibilities should be ignored - that is a conclusive statutory presumption against allowing for them. The section provides that for the purposes of ascertaining whether the membership of a class is presently ascertainable and, if so, the membership of the class, one must ignore certain possibilities listed in the section.

in its new form in accordance with the requisite formalities: In the Estate of Kirs (deceased) (1990) 55 SASR 61.

Similar, but not identical, provisions exist in the Property Law Act 1969 (WA). By s102 of that Act there is a presumption, rebuttable by sufficient evidence to the contrary tendered at the time the matter falls for decision, but not subsequently, that: •

a woman who has attained the age of 55 years is incapable of bearing a child;

Before the reforms or, in some places, the abolition of the rules against perpetuities and its kindred rules against remoteness of vesting and against accumulations, some very arcane questions arose in ascertaining whether or not a particular disposition might vest inside or outside the limitation period – then being that of a life or lives in being plus 21 years. Failure to comply then meant invalidity of the disposition ab initio. In most jurisdictions this has long been changed by statute – in Western Australia the traditional perpetuity period of a life or lives in being plus 21 years is still available but very seldom used as there is now a statutory alternative of 80 years – Property Law Act 1969 (WA) s101, and a 'wait and see' rule, s103, and other reforms.

a woman will not after the age of 55 years adopt a child;

a person under the age of 12 years is incapable of procreating or bearing a child; and

material evidence may be received that a person of any age is incapable of procreating or bearing a child.

These reforms have avoided the old issues which plagued the use and validity of postponed or contingent dispositions but there can still arise controversies over who are the members of a defined class of beneficiaries or when a class of beneficiaries closes. This type of question can arise not only under wills and testamentary trusts but also with the ubiquitous discretionary family trust in common use.

EFFECT OF UNDUE INFLUENCE

CAPACITY TO PROCREATE OR BEAR CHILDREN

A disposition by a settlor to the children or grandchildren or their partners who are the children of X or Y can raise these issues. When do the classes close and who do they comprise? Some illustrations of the obscure and fanciful problems which can arise can be found in an article by Prof D E Allen 'The Rule Against Perpetuities Restated' ((1963-64) 6 UWA Law Rev 27) under the headings 'The Fertile Octogenarian' and 'The Precocious Toddler'.

The West Australian legislation applies not only to questions of validity of postponed gifts, but also to any determination of the right of any persons to put an end to a trust or accumulation or generally in the management or administration of any trust, estate or fund, or for any purposes relating to the disposition, transmission or devolution of property.

The presumption that a transaction between persons who have a special relationship was the result of undue influence by the one in the influential position is an example of a species of presumption which may or must be accepted if some other fact, the basic or preliminary fact, is proved or admitted. In Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113 Latham CJ explained the doctrine: Where certain special relations exist undue influence is presumed in the case of such gifts. These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence. These relations mentioned, however, do not constitute an exhaustive

list of the cases in which undue influence will be presumed from personal relations. Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised … There is also a view, which so far seems to be equivocal, that in will cases where the doctrine of suspicious circumstances applies and requires a proponent to prove all the elements of a valid will without assistance of the presumptions of validity arising from due form, presence of an attestation clause and due execution, if the facts are consistent with undue influence by an executor, beneficiary or some other, that will give rise to that presumption and cast the onus of proof of disproving undue influence on the propounder rather than requiring proof of undue influence by the objector – see per Lord Slynn in Ramcoomarsingh v Administrator General (Trinidad and Tobago) [2002] UKPC 67 – more generally see Hutley's Australian Will Precedents, 7th edition, Rowland at [1.9] which lists the cases where doubts or objections are expressed over whether the doctrine of suspicious circumstances is sufficient to raise this presumption and those which are equivocal on that point, including Roos v Karpenkow (1998) 71 SASR 497 per Doyle CJ at 506, who said: The fact that neither fraud or undue influence is pleaded does not mean that I can ignore the possibility of either fraud or undue influence being present. Any suspicion along those lines must be displaced: Tyrrell v Painton [1894] P 151. This is a significant observation because in Roos v Karpenkow Doyle CJ examined closely and then accepted the principles of the doctrine of suspicious circumstances explained by Isaacs J in Knock v Austin [1918] HCA 73; (1918) 25 CLR 519. That is the case relied upon for the view that the doctrine of suspicious circumstances does not require the court to consider the possibility of undue influence. Isaacs J said at 528: The doctrine that suspicious circumstances must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn LC in Low v Guthrie [1909] AC at pp 281 - 282). This is the approach taken by Hasluck J in Roebuck v Smoje & Ors [2000] WASC 312 at [130]. 37


How the presumption of undue influence can be rebutted in any particular case is discussed in detail in Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 and Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649 (as to which see Garcia v National Australia Bank [1998] HCA 48; (1998) 194 CLR 395). REVOCATION OF A LOST WILL There is now a presumption of fact (centuries ago it was one of law), and one which is therefore rebuttable, that the original of a duly executed will which was last known to be in the custody of the testator, but after a careful and comprehensive search cannot be found, was destroyed by the testator with the intention of revoking it. If there is no evidence to rebut the presumption and no other will can be located, the testator is treated as having died intestate. So in any case of an attempt to prove a lost will, it is necessary to consider the possibility that the will may have been lost because of deliberate destruction by the testator or by another person at his direction and in his presence with the intention that the will should be revoked (Wills Act 1970 (WA) s15(c) and Wills Act 1936 (SA) s22(d)); Powell v Dimwoodie [2012] WASC 139 at [32]. The doctrine has been recognised and

considered in a series of cases: Estate of Orifici [2007] WASC 74; Scarputza v Scarputza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; Proud v Proud; and Hansen v Hansen [2013] WASC 268. However, where the will makes a careful and complete disposition of the testator's property and there are no other circumstances to point to a probable destruction animo revocandi by the testator, the presumption is so slight that it may be said not to exist: Sugden v Lord St Leonards (1876) LR 1 PD 154 and Finch v Finch (1867) LR 1 P&D 317 cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993 [26]-[27]). Nevertheless, the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest. The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to being destroyed with the necessary intention: Re Hampshire [1951] WN 174. The presumption may also be rebutted by evidence that the testator lacked the

necessary capacity to revoke the will by destroying it. Examples of where the presumption was rebutted by slight evidence, but which is clear and convincing, include Gerard, Deceased [2007] SASC 362 and Kolecki, Deceased [2011] SASC 158, both decisions of Gray J containing comprehensive examinations of the principle and the authorities. PRESUMPTION AGAINST DOUBLE PORTIONS This is a presumption in equity which, if not rebutted by evidence of intention, may have the effect of negating a provision in a will or codicil if it appears that a similar gift or disposition was made by the testator during his lifetime. The presumption, if not rebutted, will mean that the testamentary gift is adeemed by the inter vivos gift even if not precisely corresponding. The rule against double portions was mentioned by Dixon J in Royal North Shore Hospital v Crichton-Smith [1938] HCA 59; (1938) 60 CLR 798 and was accepted by Latham CJ in Fairweather v Fairweather [1944] HCA 11; (1944) 69 CLR 121 but is more fully explained in earlier cases. In Public Trustee v Regan (1933) 33 NSWSR 361 the rule was explained

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as being that where a person makes a gift by his will to children that gift is deemed to be a 'portion' or recognition of the discharge of the obligation by the testator to that child. So, if afterwards, the testator makes an inter vivos gift to that child, the gift will, prima facie, be assumed to be a 'portion' in anticipation and to have adeemed the 'portion' given by the will. This assumption or inference is based on a presumed intention by the testator to avoid a double benefit and to preserve equality between all children. Another example is In re Clarke; Clarke v Sturt [1921] VLR 249 per Irvine CJ. STATUTORY HOTCHPOT FOR CERTAIN INTESTACIES We are all familiar with hotchpot clauses sometimes found in wills which provide generally that where a certain fund is to be divided equally or in specified shares between certain beneficiaries then, if one or more of the beneficiaries has received gifts or advances from the testator during his life, the aggregate of those gifts should be brought to account in adjusting the distributions from the fund after death. The purpose of directing the hotchpot commonly is to ensure that children obtain from their parent by advancement and under his will equal portions or equality of benefit - Re Tennant; Mortlock v Hawker [1942] HCA 3; (1942) 65 CLR per Dixon J at 473. It was once the case that on a total intestacy children of the deceased had to bring into hotchpot all substantial advancements made to them at any earlier time in order to calculate the children's entitlement on the intestacy. This is no longer the case, the rule having been abolished by legislation in New South Wales, Tasmania, Queensland and Western Australia, and modified by legislation in the Australian Capital Territory, the Northern Territory, Victoria and South Australia (for the details of the different current rules in these last four jurisdictions see Law of Succession by Dal Pont and Mackie (2013) at [9.70] - [9.73]). In Western Australia, previous statutory versions of the doctrine were repealed by the Administration Act Amendment Act 1976 (WA) s3. SOME STATUTORY PRESUMPTIONS REGARDING CONSTRUCTION There are many statutory provisions creating presumptions about different states of affairs which are impossible to collate because of the widespread subjects they address. What I shall now mention is a short selection of various such provisions dealing directly with wills

under South Australian legislation and Western Australian legislation. S21 of the Wills Act 1936 (SA) provides that no will is revoked by any presumption of an intention on the ground of an alteration in circumstances. A similar provision is found in the UK, New South Wales and Tasmanian Acts. According to Hardingham, Neave and Ford (Wills and Intestacy Law in Australia and New Zealand, 2nd edition, 1989 at 129) the original purpose of these provisions was to exclude the inclination of the common law to concede revocation arising from a change of circumstances, specifically remarriage or alienation by the testator of the subject matter of a testamentary gift (see also Dal Pont and Mackie at [5.2]). These changes are now dealt with by different means; marriage or remarriage by specific statutory provision and prior alienation by the doctrine of lapse. Furthermore, there is specific statutory provision that revocation can only be effected by certain specifically defined methods – see Wills Act 1936, s22. It should be added that these include the presumption of revocation arising from unexplained loss of a will because the effect of that presumption is that the testator revoked the will by a prescribed means, namely, destruction cuni animo revocandi. Sections 26, 28, 29, 30, 31 35 and 36 of the SA Act all contain specific statutory determinations about the effects of certain provisions in wills unless a contrary intention appears from the will. There are similar provisions in the WA Act. S26 (SA) provides that any devise of real or personal estate will not be rendered inoperative if after the will is made the testator conveys or disposes of something less than his full interest in the subject matter devised, but that the devise will operate to dispose of such interest in the gift which the testator retained at the time of death. Section 25 of the Wills Act 1970 (WA) is to the same effect. By s26(1)(b) of the WA Act any devise of real or personal estate which fails or is void results in that real or personal estate being included in the residuary devise in the will. By s26(1)(c) of the WA Act any general disposition by a testator of land includes not only freehold land but any leasehold interest held by the deceased unless a contrary intention appears from the will.

effective to exercise any general (but not special) power of appointment held by the testator over that real or personal property. Section 26(1)(e) of the WA Act reverses the old common law position and provides that any disposition of real property without words of limitation (e.g., to John Doe and his heirs) is construed as passing the whole interest or estate held by the testator (most commonly the entire fee simple) in the property and not a diminished interest in the form of a life estate. This is subject to a contrary intention appearing by the will. South Australia and the Australian Capital Territory appear to be the only jurisdictions in this country where the fee tail estate has not been abolished. Section 36 of the SA Act deals with gifts by a testator to a child or other issue who predeceases the testator but leaving issue of his or her own. The section saves such a gift from lapse due to the original beneficiary dying before the testator and instead stipulates that that beneficiary is presumed to have died immediately after the death of the testator so that the gift goes to his or her (deceased) estate. This does not ensure that the original gift will go to the issue of the deceased beneficiary but rather will devolve according to his or her will. South Australia appears to be the only jurisdiction which has this effect because the legislation elsewhere specifically provides for the gifts to pass to the issue (Dal Pont and Mackie: Law of Succession [7.20]). In WA this is achieved by a statutory substitutional disposition to such surviving children (not issue) – Wills Act 1970 (WA) s27. CONCLUSION It may be helpful to reflect on the observations of J R Gulston, Philosophy of Proof (1923) at 371 cited by the Hon J D Heydon QC in his 10th edition of Cross on Evidence at [7275]: Presumptions of law are nothing else than natural inferences or presumptions of fact which the law invests with an artificial or preternatural weight. NOTES This article is an edited version of a paper presented to the Law Society of Western Australia Continuing Professional Development Seminar, Perth, 24 February 2016.

By s26(1)(d) of the WA Act unless a contrary intention appears by the will, any general devise of real estate or any general bequest of personal estate (as, for example, may be contained in a general residuary disposition) will be 39


Smarter Justice: Safer Communities This article was first published in Law Council Review, Issue 13, December 2015.

The rate of Indigenous imprisonment is still increasing at an alarming rate. Top legal minds, community leaders, and experts gathered to share ideas and plan ways to reverse the trend.

The Law Council considers Indigenous imprisonment to represent one of Australia's most pressing national social justice concerns. Although the crisis in Indigenous imprisonment is well known, the sheer numbers remain startling. GRASPING THE NUMBERS Although just 2.5 percent of the Australian population identify as Indigenous, Indigenous people make up 27 percent of the prison population. Indigenous youths comprise over 50 percent of juveniles in detention and one in four deaths in custody is Indigenous. Perhaps even more alarming is the trend. The raw numbers of Indigenous prisoners in Australia nearly doubled from 2004 to 2014, from 5,048 to 9,264. Since 2013, there has been a ten percent surge in numbers. Aboriginal and Torres Strait Islander women, meanwhile, are the fastest growing cohort of people who are both victimised and imprisoned for violent offences. Indigenous women make up around 2.2 percent of the Australian female population, but around 34 percent of women in prison. The imprisonment rate of Indigenous women has increased by 74 percent since 2000.

40 | BRIEF JULY 2016

Remarkably, these substantial increases in the rate of Indigenous imprisonment are occurring at a time when the overall crime rate is falling. It is deeply troubling to consider that when the Royal Commission into Aboriginal Deaths in Custody shocked the nation in 1991, Indigenous peoples were being imprisoned at seven times the rate of the broader population. Today that rate is 14 times! BROADER SOCIAL COMPLEXITY The problems that are perpetuated by the catastrophic rate of incarceration are virtually limitless. There are extreme socio-economic and human costs involved with imprisonment, which are known to compound disadvantage and associated propensity to commit crime. And there is mounting evidence that deterrence theory is increasingly ineffective in achieving reductions in crime and improving community safety. The Australian Medical Association has long been vocal about the devastating effects that imprisonment has on the lifelong health of Indigenous people who spend time in prison.

The AMA's last Indigenous Health Report Card, released in November 2015, shows that overall, Aboriginal and Torres Strait Islander people continue to experience a life expectancy of around ten years less than non-Indigenous people. The AMA report card recognises that shorter life expectancy and poorer overall health for Indigenous Australians is "most definitely" linked to prison and incarceration. The AMA argues that the high rates of imprisonment and the health gap cannot be neatly separated and that an integrated approach to both is required. "It's possible to isolate particular health issues – notably mental health conditions, alcohol and other drug use, substance abuse disorders, and cognitive disabilities – as among the most significant drivers of the imprisonment of Aboriginal and Torres Strait Islander peoples," AMA President Professor Brian Owler noted in launching the report. "The high rates of imprisonment and resultant health problems among Aboriginal and Torres Strait Islander people should be a priority social justice and human rights issue – not just a health issue – in this country."


THE MYTH OF DETERRENCE The political and policy trend in Australia tends to frame the debate in terms of community safety and deterrence. This approach leads to regular changes to criminal laws, firmer sentencing, an increasing number of minor offences, and significantly enhanced law enforcement capability. Yet the evidence demonstrates that corrections policies that favour imprisonment have a disproportionate impact on the Indigenous population. At the same time, there is scant evidence that such punitive measures are effective in reducing crime or keeping the community safe. The highest proportion of people held in custody or corrections are those returning to prison. This fact alone demonstrates a clear disconnect between deterrence objectives and outcomes. A reason for the ineffectiveness of measures to date to reduce the reoffending rate is the failure by governments to adequately resource programmes that provide and promote alternatives to imprisonment. This is despite strong evidence in other national jurisdictions that adopting data-driven, alternative approaches can result in substantial reductions in both crime and imprisonment, with corresponding savings in corrections. RISING TO THE CHALLENGE The Law Council believes it is not a sufficient response by governments to highlight constitutional demarcation of legislative power between different levels of government as a reason to eschew a national approach, especially when national involvement features in the areas such as public health, education, housing, and the environment.

"The evidence demonstrates that corrections policies that favour imprisonment have a disproportionate impact on the Indigenous population." justice solutions – a relatively recent phenomenon – is also having positive impacts on community empowerment and a sense of ownership over justice solutions. A number of evaluations of the Koori Court, for example, have concluded that it reduces the perception of cultural alienation from sentencing and thereby increases its relevance and impact on offenders and victims. The Koori Court model has also been expanded in Victoria, through the County Court and the Children's Court, and has been more recently introduced in the Children's Court of NSW. The Nunga Courts in South Australia, Circle Sentencing in NSW and the ACT and Murri Court in Queensland present alternative models with local variations. Sentencing Indigenous offenders in Indigenous Sentencing Courts, means notions of justice go beyond the need to simply punish and reform an offender's behaviour. Studies into the effectiveness of these courts on particular cohorts of offenders have found that for Indigenous offenders convicted of intimate partner violence, perceptions of justice were increased by the opportunity provided to be supported, understood and held accountable by respected members of their community for offences that caused offenders 'shame'.

It has been found that a sentencing court can function as a culturally-hybrid domain, allowing for otherwise competing narratives and traditions to interrelate and work together in the pursuit of justice. This structure allows a narrative to be provided of what justice within a sentencing framework (that sits within the existing legal structure and system that does not permit Indigenous sovereignty and self-determination) might look like for Indigenous Australians trying to maintain and restore agency and power. Studies have also indicated that improving an offender's experience of procedural justice created a greater sense of fairness and procedural legitimacy to the ultimate sentence. GETTING TOP MINDS TOGETHER On 26 November 2015, the Law Council gathered some of the top legal minds, community leaders, and experts in the field for the Indigenous Imprisonment Symposium at the Bangarra Dance Company studios, in Sydney. Over the course of a scorching 38-degree day, panels of experts individually sifted through key aspects of the problem and potential solutions: examining the numbers; the drivers; short-term solutions; how to create buy-in; existing programmes; and the prospect of constructive collaboration.

CHANGE THE RECORD CAMPAIGN

There are some promising, worthy innovations to get behind.

Change the Record is a campaign with two overarching goals:

Justice reinvestment trials, in which resources that would traditionally go toward incarceration are redeployed into alternative deterrence and preventative measures, have recently commenced in Bourke, NSW, with broad community support.

Close the gap in rates of imprisonment by 2040

Cut the disproportionate rates of violence (to at least close the gap by 2040) with priority strategies for women and children.

Trials are now also being proposed in South Australia and the Federal Labor Party has now committed to supporting an additional four justice reinvestment pilots, if elected. 'Just Reinvest' NSW and the 'Sentenced to a Job' programme in the Northern Territory are compiling encouraging early results.

To Change the Record, we need to work with Aboriginal and Torres Strait Islander communities to invest in holistic early intervention, prevention and diversion strategies. These are smarter, evidencebased and more cost-effective solutions that increase safety, address the root causes of violence against women and children, cut reoffending and imprisonment rates, and build stronger communities. Change the Record's steering committee, made up of leading Aboriginal and Torres Strait Islander, human rights and community organisations, including the Law Council. For more information:

changetherecord.org.au

Meanwhile, Indigenous involvement in

41


Core resolutions of Symposium To define a justice target for a drop in youth custodial sentences of 50 percent in five years: •

A one-off increase in funding of youth diversion/engagement programmes to match urgent need;

communities. Amendment to traffic laws or funding to assist Aboriginal people to obtain their licence may reduce incarcerations for driving without a licence; •

A commitment by government to fund the pursuit of these targets in five-year funding cycles; A review of Family and Community Services to reduce the number of children in care coming into the Juvenile Justice system and an increase in funding in the Northern Territory for FACS to meet demand on services;

Fine default imprisonment: In 2013, 16 percent of Aboriginal people taken to prison were there only for fine default; Consideration of more effective options for with this complex problem is required;

reduce recidivism, save money, and prevent crime. They can help redirect nonviolent offenders from a life of repeated crime and prison time to get their lives back on track. A push to persuade COAG to place 'reducing Indigenous imprisonment' as a key item on its agenda: •

Legal aid: The recent Productivity Commission report on Access to Justice Arrangements recommended the immediate injection of $200 million per year into legal aid. There is a direct connection between

"The suite of measures identified, if introduced, would likely have a pronounced and relatively swift effect on the rates of Indigenous imprisonment."

The convening of a taskforce to to identify a national data set for collection by all state and territory governments by 30 April 2016: •

A 'pride' campaign directed at discouraging youth from delinquent behaviour;

A 'future' campaign directed at showing Indigenous youth a pathway through self esteem, education and work.

To immediately look to implementing short-term measures aimed at stemming the destructive growth in Indigenous incarceration: •

Interpreters: Lack of interpreter resources can have a negative impact on Aboriginal people's ability to fairly and efficiently negotiate the justice system. This issue can be addressed with better training to help police and court staff identify when an interpreter is needed, and more funding for interpreting services; Driving Offences: Traffic laws fashioned for the metropolitan area can operate unjustly in remote

42 | BRIEF JULY 2016

the provision of adequate legal assistance and the rate of overincarceration of Aboriginal people; •

Mandatory sentencing: Mandatory sentencing laws almost certainly compound the problem of incarceration of Aboriginal people. Legislatures could remove existing mandatory minimum sentences and commit to not introducing new mandatory sentencing penalties. Innovative justice practices: Employing innovative justice practices with 'solution focused' courts such as drug courts or Indigenous sentencing courts may better address the causes of, and offer more effective solutions to, offending behaviour. Re-entry programmes: Providing re-entry programmes to ensure that offenders successfully transition from in-custody to out-of-custody life can

Reducing rates and length of imprisonment in real terms by 50 percent within five years; implementing trials aimed at reducing imprisonment by effective diversionary programmes within 12 months with a commitment to fund programme for five-year terms; and a national review of programmes within three years.

The lack of reliable and coherent national data on the issue was identified as a key barrier to improvement. The Law Council will seek funding for a study and aim to address this issue urgently.

Law Council of Australia President Duncan McConnel, who chaired the symposium, noted that while there was clearly no silver bullet, the suite of measures identified, if introduced, would likely have a pronounced and relatively swift effect on the rates of Indigenous imprisonment. "Politicians could introduce all these measures, while simultaneously being assured this is not about going 'soft on crime,'" Mr McConnel stated. "It would be about creating effective responses to crime that keep the community safer and save the economy money. And it would be about fighting the national shame that is our Indigenous incarceration crisis," he concluded.


Family Law Case Notes Robert Glade-Wright Former barrister and accredited family law specialist

Children – Family Court of WA subjects child to chemotherapy against parents' wishes In Director Clinical Service, Child & Adolescent Health Services & Kiszko & Anor [2016] FCWA 19 (24 March 2016) Thackray CJ of the Family Court of WA heard an application filed by Princess Margaret Hospital (PMH) on 18 March 2016 for an order against the wishes of the parents that their child Oshin (who had become ill in December 2015 and was to turn six on 1 April) be required to undergo chemotherapy and radiotherapy. The hearing was listed urgently due to PMH's expression of concern that the parents may remove the child from Australia for other treatment and was preceded by an ex parte Watch List order being made by a magistrate ([5]). The parents were given 24 hours in which to secure legal representation ([9]). The father appeared in person and an application by the mother's solicitor for an adjournment to brief senior counsel and adduce expert evidence as to appropriate alternative treatment was denied ([11]-[16]). The child was diagnosed with a brain tumour which was removed by PMH on 3 December 2015 with the parents' consent although the mother deposed to being "disturbed about Oshin's reaction to the surgery". The father in court said that the child had been having "hysterical fits" and that "the anaesthetists … were quite disturbed at Oshin's behaviour after his last wake up from the … anaesthetic". The intention of the mother (who had studied naturopathy) was to trial alternative therapies ([28]-[29]) and PMH's Ethics Committee "was 'a little divided' on the question of whether there should be active therapy" ([31]). The Court referred to the mother's evidence that the family was feeling pressured by a "dismal prognosis" and that "they felt that the doctors were trying to frighten them into complying with treatment" ([36]). The Court said (at [48]): Certainly … there has been fairly consistent advice that if the combined radiotherapy and chemotherapy regime is attempted, studies indicate that there is a 50 to 60 percent chance of survival after five years. This is the period at which it might be considered that there had been a 'cure'. If chemotherapy only is attempted, then

the survival rate might be 30 percent after five years. The Court added that "[m]ost significant for the parents to take into account is all the suffering that Oshin will have to go through if he does have the chemotherapy and then the radiotherapy"([51]) and that "[p] arents … are probably in the best position to assess the impact of procedures on their child" ([53]) but that "parental power is not unlimited" ([73]). The Court (at [76]) applied Minister for Health v AS [2004] WASC 286, citing the following "critical statement" by Pullin J: Where faced with the stark reality that the child will die if lifesaving treatment is not performed, which has a good prospect of a long-term cure, it is beyond doubt that it is in child's best interests to receive that treatment ... The Court continued (at [78]): … The evidence makes clear, beyond all doubt, that Oshin will die within a few months if measures are not taken to prevent his death. The evidence indicates that there is about a 30 percent prospect of survival after five years if he undertakes the chemotherapy that could commence tomorrow. Before ordering that chemotherapy commence the Court added (at [80]): It is equally true to say that there is a prospect that there will not be a cure, and I do not proceed in any way on the basis that there is any guarantee of a cure. In fact, there is a high prospect that there will not be a cure … Editor's note – cf. Re: Lucy (Gender Dysphoria) [2013] FamCA 518 in which it was held that the treatment of a 13 year old child with Gender Dysphoria by injections of a drug called Lucrin to stay the progress of puberty did not require the court's approval (i.e. came within the scope of parental responsibility or in that case – as both parents were deceased – State guardianship). Murphy J in that case (at [87]) referred to Rule 4.09 of the Family Law Rules (applicable in WA via Rule 4(1) of the Family Court Rules) which "provides a list of matters upon which evidence 'must' be given in applications for a 'medical procedure'".

Child support – Father appeals AAT's assessment of his percentage of care as 60 percent for time child was at boarding school at his expense In P v Child Support Registrar [2015] FCA 116 (27 February 2015) Katzmann J of the Federal Court of Australia heard an appeal by the father (P) from AAT's assessment of 60 percent as his percentage of care of a child A whose boarding school fees as a weekly boarder at a private school in Sydney P had paid. A spent alternate weekends and half school holidays with each parent ([6]). P relied on s54A of the Child Support (Assessment) Act 1989 which provides that "the actual care of a child that a person has had … during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was … in the care of the person during the care period" ([13]). The Court said (at [18]) that, in rejecting P's contention that A was entirely in the care of P when he was boarding because P pays or is responsible for the school fees, the tribunal said: If this is a contention that actual care should be assessed on nights and all nights should be attributed to the applicant while A is in boarding school, I reject it. This contention does not recognise the importance of certain aspects of care for A, other than those relating to his accommodation, food and clothing, and ignores the level of care provided by [M] during this time. She sees or speaks to A every day during the week while he is at school, is involved in parent-teacher meetings and is listed as one of A's emergency contacts. No major decisions about A's health care, medical treatment or education could be made during this period without reference to [M]. The Court agreed, saying (at [69]) that the tribunal was not bound to determine the percentage of care by reference to s54A(3). The appeal was dismissed with costs.

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

43


Law Council Update

WORLD ELDER ABUSE AWARENESS DAY: FUNDING COMMITMENT APPLAUDED The Attorney-General's World Elder Abuse Awareness Day announcement, that the Coalition would invest $15m to protect the rights of older Australians, is a commendable step in raising awareness and taking action on this often hidden issue. The plan includes: developing a national elder abuse hotline, developing pilot training programmes for frontline staff, a study into the prevalence of elder abuse, and a national awareness campaign to educate and change attitudes and values towards older Australians. The Australian Law Reform Commission (ALRC) today also released an Issues Paper as part of its national inquiry into elder abuse – referred by the AttorneyGeneral in February this year. The problem of elder abuse is of increasing concern as the population continues to age at an unpreceded rate. In 2050, just over a fifth of the population is projected to be over 65 and those aged 85 and over are projected to represent about five percent of the population. Law Council of Australia President Stuart Clark AM said the Council will appoint an Elder Abuse Inquiry Working Group to respond to the ALRC's inquiry and consider ways in which laws and frameworks across Australia can be strengthened. "We must explore every avenue available to safeguard older Australians from abuse," Mr Clark said. "Unfortunately effective responses and prevention measures for elder abuse are far less developed than they are for family violence and child abuse. "The Law Council is determined to make a strong contribution to the ALRC's important work. We want to scrutinise existing Commonwealth laws that seek to safeguard and protect older persons from misuse or abuse and analyse if they are fit for purpose. "This includes laws around financial

44 | BRIEF JULY 2016

institutions, superannuation, social security, health, and care."

Clark AM said the funding was much needed.

The Law Council echoes the Australian Institute of Family Studies (AIFS) finding that Australia's federal system of government means responses to elder abuse are complicated, because they are scattered through multiple frameworks across health and ageing portfolios at multiple government levels.

"The Law Council has strongly opposed cuts to Aboriginal and Torres Strait Islander Legal Services and it would only be responsible for whichever party forms government in July to rectify this promptly," Mr Clark said.

"The law should protect the rights of all Australians, regardless of the state or territory in which they reside," Mr Clark said. "If elder abuse is happening at anywhere near the one in ten rate the World Health Organisation estimates, then we need to be taking urgent action at a national level." Elder abuse is any act which causes harm to an older person and is unfortunately often carried out by someone the victim knows and trusts, such as a family member or friend. While the AIFS found that financial abuse appears to be the most common form of abuse experienced by elderly people, elder abuse is multifaceted and may be physical, social, financial, psychological or sexual. It may also encompass mistreatment and neglect. LABOR'S PLAN TO RESTORE FUNDING TO ABORIGINAL LEGAL SERVICES A COMMENDABLE STEP Today's announcement by Federal Labor that it would, if elected, deliver $20.4 million over three years for Aboriginal legal services is a commendable step, according to the Law Council of Australia. Shadow Attorney-General Mark Dreyfus today announced that a Federal Labor Government would commit $18.2m for Aboriginal and Torres Strait Islander Legal Services members and $2.2m for their peak representative body, the National Aboriginal and Torres Strait Islander Legal Services. The announcement follows Labor's earlier welcome commitment of $43 million to Community Legal Centres. Law Council of Australia President Stuart

"We have an Indigenous imprisonment crisis in this country and it will certainly not improve if we deny Aboriginal people and Torres Strait Islanders proper access to justice. This funding announcement is a positive move, but we note the call to create specialist stand-alone family law units in each Aboriginal and Torres Strait Islander Legal Service." Mr Clark earlier today launched the Law Council's 2016 Federal Election Policy Platform, which calls for the restoration of legal aid funding that has been steadily eroded since the late 1990s. He noted that both major parties had made commitments around the edges to legal assistance services during the election, but emphasised there was still a long way to go before Australia's legal aid crisis could be ended. "Fixing Australia's legal aid crisis will require a whole of sector approach that extends well beyond what either of the major parties has committed to thus far," Mr Clark said. "Fortunately, the government that is elected in July will not need to guess at what is necessary — the Productivity Commission has already recommended an immediate $200 million funding boost and $350 million is needed to address the existing crisis. "The reason our Legal Aid Matters campaign has received such a huge response from the public is that Australians are generally stunned to learn just how bad the funding crisis has become. 81 percent of Australians believe legal aid should be there in times of need for those who cannot afford a lawyer. That vision of how Australia should be is nowhere near close to being a reality today."


pam sawyer

45


Professional Announcements Career moves and changes in your profession

Paterson & Dowding

Taylor Olivier

The Directors of Paterson & Dowding are delighted to announce that Sam Fahey has recently been appointed a Principal Sam Fahey of the firm. Sam is an Accredited Family Law Specialist and also has a Masters in Family Law, he has a wealth of experience in complex property matters.

Taylor Olivier is delighted to announce the appointment of Michael Baldwin as Head – Employment & Industrial Relations.

Greenstone Legal Greenstone Legal is pleased to announce that in February 2016 Rein Squires Rein Squires and Jade Lattimore was appointed a director of the Firm, joining founding director Jade Lattimore to continue to provide clients with effective commercial solutions. The Firm has offices in West Perth and Joondalup.

Rowe Bristol Lawyers www.rowebristol.com.au

Michael Baldwin

Mike has over 20 years' experience in all areas of employment law and industrial relations. His practice has a focus on the construction, mining, LNG, manufacturing and transport industries, where Mike has particular expertise in enterprise bargaining, performance management, workplace change and the management of industrial disputes. Mike's experience working in-house assists him in providing practical and commercial advice to his clients.

Rowe Bristol Lawyers is very pleased to announce that Maria Enright has joined the firm as a lawyer.

Maria Enright

Maria practices in commercial and corporate litigation, specialising in debt recoveries.

Did you know?  That through the Law Society’s Find a Lawyer service we provide over 21,000 referrals a year to firms and is free for firms with more than 50% of legal practitioners as members

 The Law Society’s history

dates back to a meeting held in the Supreme Court Library on 15 June 1927, when Mr T.A.L. Davy moved “that an association of legal practitioners of Western Australia be formed”.

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RENEW YOUR ESSENTIAL MEMBERSHIP TODAY

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New Members New members joining the Law Society (May 2016)

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Ms Jo Moss

Norton Rose Fulbright Australia

Ms Dee-Anna Luong

University of Western Australia

Mrs Donna Marsh

Hall & Wilcox Lawyers

Mr Jarred Gerace

Murdoch University

Miss Megan Cramp

Hall & Wilcox Lawyers

Mr Iain Mcintyre

University of Western Australia

Ms Megan Jones

Department of Transport

Miss Danijela Dogic

Murdoch University

Ms Leesa Simons

Lavan Legal

Ms Marie Forsyth

Murdoch University

Mr Colin McKellar

Yamatji Marlpa Aboriginal Corporation

Mr Peter Murdoch

University of Notre Dame Australia

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Minter Ellison

Dr Evan Hammond

HGC Group

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University of Notre Dame Australia

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Valenti Lawyers

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Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member and CPD seminars

DATE

EVENT

LOCATION

JULY MEMBERSHIP SEMINARS Friday, 8 July

Golden Gavel

Perth Town Hall

JULY CPD SEMINARS Tuesday, 19 July

Changes to the Office of State Revenue's assessment practices

The Law Society of Western Australia

Monday, 25 July

Foreign resident capital gains withholding payments

The Law Society of Western Australia

AUGUST MEMBERSHIP SEMINARS Wednesday, 17 August           

Sole Practitioners Forum

The Western Australian Club

AUGUST CPD SEMINARS Friday, 5 August Sunday, 7 August

Practical Advocacy Weekend

Seashells Resort Mandurah

SEPTEMBER MEMBERSHIP EVENTS Friday, 9 September

Gala Dinner – Marking 10 years of service by the Hon Wayne Martin AC as Chief Justice of Western Australia

Perth Convention and Exhibition Centre

SEPTEMBER CPD EVENTS Tuesday, 13 September

Motor Vehicle (Catastrophic Injuries) Act 2016 (WA)

The Law Society of Western Australia

Wednesday, 14 September

Engaging with in-house counsel: tips for private practitioners to build a trusted legal advisor relationship

The Law Society of Western Australia

Thursday, 15 September

Shareholder and Joint Venture Agreements and Disputes

The Law Society of Western Australia

Wednesday, 21 September

Employment law in the new age: the future of work

The Law Society of Western Australia

Thursday, 22 September

Issues relating to company meetings and lawyers acting as directors

The Law Society of Western Australia

OCTOBER MEMBERSHIP EVENTS Thursday, 20 October

Society Club hosted by the Indigenous Legal Issues Committee

The Western Australian Club

OCTOBER CPD EVENTS Thursday, 6 October

Practical tips for transactional lawyers

The Law Society of Western Australia

Tuesday, 11 October

Non-contentious Probate Rules: citations and caveats

The Law Society of Western Australia

Wednesday, 12 October

Anti-Bribery and Corruption: the brave new world

The Law Society of Western Australia

Tuesday, 18 October

Community Title Schemes: development and management issues for lawyers

The Law Society of Western Australia

Tuesday, 18 October

Privilege: the scope and limits of without prejudice communications and legal professional privilege

The Law Society of Western Australia

Wednesday, 26 October

Practical tax update for non-tax lawyers

The Law Society of Western Australia

Tuesday, 22 November

Focus on Costs

The Law Society of Western Australia

Save the date for the Law Society's End of Year Celebration on Wednesday, 7 December 2016 For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638 For all upcoming events and further information please visit lawsocietywa.asn.au 48 | BRIEF JULY 2016


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