Page 1

Volume 41 | Number 11 | December 2014

VALE DAVID KINGSLEY MALCOLM, AC QC CitWA


Contents

GO DIGITAL!

Volume 41 | Number 11 | December 2014

Take me with you.

08

18 02

President’s Report

Konrad de Kerloy

34

Evidence in SAT: what to do where the rules of evidence don’t apply

04

Editorial

Henry Jackson

Rebecca J Lee

42

Family Law Case Notes

06

Executive Director’s Report

43

Thomas Hurley Case Notes

David Price

44

Law Council Update

08

Disputing a Tax Assessment from Objection to Hearing

45

Pam Sawyer

Michael Flynn

46

Professional Announcements

46

Classifieds

18

FEATURE Vale David Kingsley Malcolm, AC QC CitWA

47

New Members

48

Events Calendar

The Honourable Malcolm McCusker AC, CVO, QC

26

Reprinted Edited Extract of Interview with Chief Justice David Malcolm

Lee Rossetto

28

Administering Shares Owned by a Deceased Estate

David Beros

29

2014 Law Office Convention and Exhibition

30

2014 Lawyers for a Cause

33

Law Summer School 2015

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: 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 Eleanor Jackson Business Development Executive Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Communications Officer Tanya Holzmann Graphic Designer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

EDITOR Rebecca Lee

PRESIDENT Konrad de Kerloy

EDITORIAL COMMITTEE Erin Blight, Ronald Bower, Gregory Boyle, Andrew Cameron, Rebecca Collins, Rebecca Lee, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Julian Sher, Moira Taylor

SENIOR VICE PRESIDENT Matthew Keogh

PROOFREADERS Leisa Mundy 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: www.lawsocietywa.asn.au ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

VICE PRESIDENT Elizabeth Needham TREASURER Alain Musikanth ORDINARY MEMBERS Brendan Ashdown, Marie Botsis, Hayley Cormann, Brahma Dharmandanda SC, Nathan Ebbs, Adam Ebell, Pamela Hass, Nicholas van Hattem, Greg McIntyre SC, Denis McLeod, Clinton Russell COUNTRY MEMBER Cameron Syme JUNIOR MEMBERS Emma Cavanagh, Hayley Ellison, Rosie Hill IMMEDIATE PAST PRESIDENT Craig Slater

01


report

President's Report Konrad de Kerloy, President, The Law Society of Western Australia

In this, my final report as President, I would like to take the opportunity to thank the members for giving me the opportunity to serve on the Council, the Executive and finally as President. It has been a privilege to do so. I would like to thank the Council and my Executive, Matthew Keogh, Elizabeth Needham, Alain Musikanth and the Executive Director, David Price for their wise counsel, friendship and support during the year. Finally I would like to thank the Personal Assistant to the Executive Director and President, Sue Langmair, and all of the other staff members of the Society for their good humour, hard work and loyalty. The trials and tribulations of presidency have been made much easier with their support. A FEW REFLECTIONS I would also like to take this opportunity to reflect on the important work which the Society undertakes on behalf of its members. In my first report as President I referred to the importance of the rule of law to the betterment of society. It is the protection and advancement of the rule of law which is at the heart of the Law Society’s reason for being. It is what shapes its advocacy on behalf of its members and the legal profession as a whole. It is seen in the Society’s strong professional development programme which provides members with continuing legal education so that they are in a position to better serve the community as well-educated and ethical legal practitioners. During the course of the year the Society conducted 70 CPD seminars, with a total of 3,209 attendees. Another 581 members participated online. In addition, the Society conducted an outstanding Law Summer School, which was attended by over 200 legal practitioners who heard from a range of eminent speakers from 02 | Brief December 2014

around Australia and around the world.

WABA for assistance.

It is seen in the Society’s advocacy on behalf of the courts of this State for adequate resources to enable them to dispense timely justice and to be allowed to undertake their task free of unfair criticisms. The Society has advocated both in writing and in regular meetings with the AttorneyGeneral about the need to ensure timely replacement of judges. I am pleased to say that at the end of this year the compliment of Supreme and District Court judges has been restored to previous levels.

In order to help establish this project the Society is making no cost services available such as accounting and backoffice support, as well as making a oneoff financial contribution of $45,000 of its own funds to complement a Public Purposes Triennial Grant.

It is seen in the Society’s respectful but independent relationship with government, which enables the Society’s voice to be listened to by decision makers who have the ability to introduce or amend laws and fund the administration of justice. The Society thanks the Attorney-General, the Hon Michael Mischin MLC and the Director-General of his Department, Cheryl Gwilliam, for the ease with which the Society has been able to obtain access to both of them during the year to discuss matters of concern to the Society.

It is seen in the many reports and submissions the Society produces every year through its various committees, which enables the Society to influence the development and reform of the law in considered and just ways. This year the Society made a total of 61 written submissions or reports dealing with a wide variety of topics including proposed reforms or amendments to: mandatory sentencing; limitation periods relating to victims of paedophilia; tenure under the Strata Titles Act; tax exemptions relating to charitable trusts; personal liability for corporate fault; catastrophic personal injury claims; legal costs; delays in the Family Court; practices and procedures in the Supreme, District and Magistrates Courts; the National Attrition and Reengagement Study; and the National Legal Profession.

It is seen in the Society’s pro bono programmes, in particular its Access to Justice programme, which enables the Society to promote the image of the legal profession. I am pleased to be able to report that the Society has made significant progress in implementing the Law Access Business Plan to improve pro bono coordination in Western Australia.

On behalf of the Society I thank those members who serve on its various sub-committees to produce these submissions and reports. This extremely significant contribution ensures that the Society is, ‘the Voice of the Legal Profession’.

Progress has also been made towards ensuring a single gateway for pro bono applications from members of the public in WA. For example, members of the public who were approaching WABA directly are now being redirected to Law Access in the first instance. In circumstances where Law Access assesses an application as meritorious and an instructing solicitor requires a barrister, Law Access then approaches

In 2013 the Society conducted a Member Survey and the findings identified that members believed that there were opportunities for the Society to strengthen its leadership, lobbying and advocacy role, demonstrate a greater understanding of member needs and foster a greater sense of belonging within the legal community. Whilst satisfaction with services was generally acceptable, the Survey indicated that

ORGANISATIONAL REVIEW OF THE SOCIETY


members would most value the Society responding with a range of value-adding services and benefits covering: •

Information services

Education

Networking and social events

Mentoring services

Referral and support services

Member privileges

The Society earlier this year agreed to engage a consultant to undertake an organisational review to look at best practice service delivery options in similar professional and not-for-profit associations. The consultant made sound sustainable recommendations that will enable the Society to best meet the needs of its members in an environment where budget and price sensitivities exist. The process involved a number of stages: •

The benchmarking phase included other law societies, other professional membership organisations and an advocacy organisation.

An internal review was also undertaken to identify key areas for improvement or change.

Overall, the report has found that the Society is performing very well, with data collected indicating that the high levels of satisfaction reported within the member perceptions survey is an accurate reflection of member sentiment. The Final Report, which was approved by Council at the December meeting, contains a number of recommendations and a proposed new structure for the organisation. In summary the report concludes that to best position itself for the future, the Society needs to: •

Be more targeted in its messaging

Better communicate the work it is actually doing in the area of advocacy

Find ways to better communicate to members the latest changes in legislation and other pertinent information

Take less time to do things

Work across teams to ensure the value of what is being produced translates to member value

THE NEW COUNCIL FOR 2015 The level of interest this year in standing for election as an ordinary member of the Council was extremely pleasing. As a result of the recent elections, there will be five new Council members: Nicholas Ellery, Corrs Chambers Westgarth; Marshall McKenna, Allens; Tara Connolly, Valenti Lawyers; Alison Aldrich, Alison & Associates Legal; and Catherine Fletcher, Office of the Director of Public Prosecutions. Greg McIntyre SC, John Toohey Chambers was reelected. These new Councillors represent a diverse range of interests and will bring a wide range of experience to the Council. I am particularly pleased that the number of men and women elected was equal. Given the Society’s commitment to gender equality, it is particularly significant that of the 18 elected members of Council, eight are women. I commiserate with those members who were not elected on this occasion. I thank them for putting themselves forward and urge them to nominate in the future. OUTGOING COUNCILLORS Brendan Ashdown, Hayley Ellison, Pamela Hass, Nicholas van Hattem, Clinton Russell, Cameron Syme and Immediate Past President, Craig Slater who have completed their terms on Council. On behalf of the Society I thank them for their years of service. The Society is very grateful for their contribution. I trust they will continue an association with the Society and look forward to enjoying their company at Society events in the future.

CPD Seminars February and March 2015

Now Open for Registrations! The Society is delighted to bring you a new CPD programme with over 45 seminars offering essential legal information, expertise and recent updates to continually keep you informed. Created once again through close engagement between our Education Committee and the profession, it provides content that is relevant and responsive to developments in the law and practice in Western Australia. Further details on seminar content will continue to be added, with the full hard copy education programme being mailed in January 2015.

To book online visit lawsocietywa.asn.au/ upcoming-cpd-events

LAW COUNCIL OF AUSTRALIA EXECUTIVE I am pleased to report to members that former President of the Society, Dr Chris Kendall has been re-elected to the Law Council of Australia for 2015. On behalf of the Society I congratulate Chris on this achievement.

Alternatively, call (08) 9324 8614 and we will be happy to take care of all your registrations.

BEST WISHES FOR THE FESTIVE SEASON I hope the festive season allows members an opportunity to take a break from work and to spend time in the company of friends and family. I extend my personal best wishes for the New Year.

03


editorial

All Good Things Must End Rebecca J Lee, Barrister, Francis Burt Chambers, Editor, Brief Journal VALE DAVID MALCOLM It was with considerable sadness that we learned of the death of former Chief Justice David Malcolm in October. Unfortunately, the next Brief was being pushed through to the printers at the time of his passing, so we are only now able to more fully acknowledge the remarkable man gracing this month’s cover. The Honourable David Malcolm AC CitWA QC was the Chief when I was admitted to practice 20 years ago. Subsequently, I had the great pleasure of meeting him on several occasions. So it was with genuine sadness that I attended his funeral, and the special sitting of the Supreme Court a few weeks later. They were solemn occasions, of course, but also uplifting, because by paying tribute to his life and work, those present were reminded of the late Chief Justice’s unshakable dedication and sense of justice, his intelligence, his modesty – as elaborated on by former Justice Neville Owen in his eulogy - and his sense of humour. In that spirit, Brief also celebrates David Malcolm from page 26 of this journal. We offer excerpts from a 1999 interview with the then-Chief Justice conducted by Lee Rossetto, now a partner at Minter Ellison. I hope you enjoy these glimpses of an exemplary legal career’s formative years, and the qualities that guided him throughout. We are also very proud to present the former Governor Malcolm McCusker QC’s vale to his colleague and contemporary, whom he first met when they were both students at The UWA Law School in the 1950s. Mr McCusker rightly admits that only a lengthy thesis, if not a book, can do justice to the career of his friend and one-time legal adversary. Nevertheless, his warm and eloquent reflections on the student, lawyer, judge, Lieutenant Governor and academic, who also tirelessly gave his time and skills to many causes, are a compelling tribute. TAKE NOTE Just a few days after his Honour’s passing, many from among Perth’s legal 04 | Brief December 2014

community gathered to raise funds for the Chief Justice’s Law Week Youth Appeal Trust, of which he was the inaugural patron. Turn to page 30 for a report on this charity event – which was sporting in every way – and information about how to make a tax-deductible donation to the trust. Looking ahead, we also share the good news about the 2015 Law Summer School on 20 February, which will feature speakers from near and far, including Geoffrey Robertson QC and Oxford University professor, Robert Stevens. Mark the date, and book your place now! The December issue also offers learned contributions on specific topics that will be of particular interest to some but also, I hope, valuable to all. Henry Jackson of Francis Burt Chambers delves into the State Administrative Tribunal’s balancing act of freedom from the usual rules of evidence on the one hand, and the obligation to conduct fair proceedings on the other. Stockbroker David Beros presents a helpful primer on administering shares owned by deceased estates, a process that is, understandably, highly regulated. Further fiscal guidance, which merits reading for personal if not professional advantage, is part one of Tax Institute President Michael Flynn’s advice about how and when to object to ATO assessments. GOODBYE AND GOOD WISHES Part two of that article will be introduced by a new editor when Brief returns in 2015. Yes, after three years in the role, this issue is my last as editor. It has been a privilege to serve in this capacity, and also a pleasure, thanks to the many people who make Brief a journal of which members can and should feel proud. I particularly wish to thank my colleagues on the journal’s committee (of which I will continue to be a member). Only a limitation of space prevents me from acknowledging each by name, as they deserve, so please refer to the list of committee members on the inside

cover. I also thank the Law Society staff who have provided invaluable support: former Law Society employees Ms Leanne Alberghini and Ms Lauren Winter; the incumbent communications officer, Ms Tanya Holzmann, who hit the ground running a few months ago (even in the face of building closures caused by a flooded basement!); and last but not least, Mr Brett Syme who has laid out the pages of Brief since the Society brought the journal’s production in-house. Many thanks also go to Brief's two proofreaders, Mr Michael Hardy and Ms Leisa Mundy, who have both worked hard and significantly contributed to the professionalism of the journal. I’m also very grateful to those members who have approached me over the years to offer their thoughts on our journal. I was so pleased to receive your positive feedback on the content and presentation. Indeed, there has been a lot to like in these pages, thanks also to our many contributors. I’m glad we have been able to source so many excellent articles from local and interstate authors, as well as overseas contributors such as an Italian professor, and a barrister who would have celebrated the ‘no’ result in Scotland’s independence vote. I am sure this quality and diversity will continue under the guidance of Brief’s new editor, Mr Julian Sher, my colleague and friend at Francis Burt Chambers. I wish you all the best, Julian. I’m delighted to be able to sign off on a positive note, by wishing you, our readers, a joyful holiday season and prosperous new year. May all your hopes, legal and otherwise, be fulfilled!

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


corporate laWyer Develop your netWork

Workplace relations laWyer Directly aDvise clients

Due to growth, our client is seeking a strong Corporate Lawyer at the 2-3 year PAE level to join their boutique practice located just outside of Perth CBD. High quality matters, industry leading partners, and continued growth are just some of the features offered by this law firm.

This leading practice has emerged as one of Perth’s most sought after firms because of the quality of matters they work on and their ability to successfully attract and retain top lawyers. The firm boasts a market leading reputation and a strong commitment to both staff and clients. An immediate requirement exists for a Workplace Relations Lawyer with proven expertise in the area.

This role will see you work across corporate transactions including M&A, capital markets, private equity, competition and consumer law, corporate governance and regulatory matters. You’ll be required to work with existing corporate clients and you’ll have strong communication skills to eventually begin to build and develop this fee base as you become a more experienced Lawyer. With significant growth plans in place, this role requires a Lawyer with a solid background in Corporate Law, gained within a reputable firm, with the ability to nurture and develop strong client relationships. contact amy Borthwick at amy.borthwick@hays.com.au or 08 9254 4598.

This cohesive team provides strategic commercial advice to clients on a range of employment, OHS and industrial relations issues. You’ll take responsibility for your own client group. This is a busy practice needs a Lawyer with solid experience in drafting a range of contracts, policies and agreements as well as managing client relationships. Working for a reputable Partner in this space, you’ll be exposed to high quality matters and will have huge career progression opportunities. With solid experience in employment and industrial relations law, you’ll have the ability and desire to participate in business development activities and the drive and determination to progress your career. contact amy Borthwick at amy.borthwick@hays.com.au or 08 9254 4598.

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legal secretary support a Dynamic team

legal secretary you’re in DemanD

This thriving Family Law firm enjoys a reputation as a market leader, consistently delivering high standards of service and holds a substantial and expanding share of its chosen area of operation. An exciting opportunity has arisen for a Legal Secretary to join their dynamic team.

This highly successful Corporate/Commercial Law firm has recently undergone a period of rapid expansion. Due to a restructure within the company the need for a Legal Secretary in the Litigation team has arisen.

In this engaging and varied role you’ll support a range of fee earners from Partners to solicitors within this key practice area. Your duties will include, but not be limited to complex billing, drafting and completing matter credentials, document management as well as responding to correspondence. You’ll be efficient, hardworking, professional and approachable with the ability to learn and implement new ways of working. A minimum of two years of solid secretarial experience is essential and previous experience in family law is preferred. As a fast and accurate typist your word speed would be at least 70wpm with 98% accuracy. In return for your flexibility and adaptability you’ll work in an excellent environment with ongoing support and development. contact lennie Waller at lennie.waller@hays.com.au or 08 9322 5383.

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This position gives you the opportunity to support three fee earners. Duties you’ll be performing include dictation typing, amending and preparing legal documents, dealing with correspondence and some client liaison, to name but a few. You’ll also be responsible for any ad hoc administrative duties to ensure the smooth running of the team. Being naturally organised and hard working you’ll excel in this role. Previous Legal Secretarial experience in corporate or commercial law will be highly regarded, with your team working ability and can do attitude vital to your success. Strong technical abilities and a typing speed of no less than 70wpm will also be essential to this position. Your flexibility and dedication will be rewarded with a competitive salary package, a supportive and warm office culture and company benefits. contact lennie Waller at lennie.waller@hays.com.au or 08 9322 5383.

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report

Executive Director's Report David Price, Executive Director, The Law Society of Western Australia

COUNCIL ELECTIONS I would like to congratulate the following members who have been elected to the Law Society Council for 2015: Council President Matthew Keogh Vice Presidents Elizabeth Needham Alain Musikanth Ordinary Members Alison Aldrich Tara Connolly Nicholas Ellery

educational conference, this programme brings together the very best the law has to offer, designed to bring you diversity, currency and information of global relevance. 2015 is an especially significant year as Law Summer School joins leading organisations around the world in recognising the rule of law on the 800th anniversary of the Magna Carta. Make sure you register your place soon to ensure you get your first choice of sessions, as some are run concurrently. For more information see the special feature on page 33 or to register, please visit lawsocietywa.asn.au/ lawsummerschool

Catherine Fletcher

END OF YEAR CELEBRATION

Greg McIntyre SC

The Society’s End of Year Celebration was held at the Parmelia Hilton Hotel on Wednesday, 3 December 2014. It was a fantastic turnout by members of the legal profession to celebrate the end of yet another busy year. Guests enjoyed a selection of beverages, canapés, and music from members of the WA Youth Jazz Orchestra, as well as the opportunity to network and debrief with colleagues and friends. Thanks to our premium sponsor Hays Legal Recruitment for making this event possible for the fifth year and to all who helped out on the night.

Marshall McKenna Junior Members Emma Cavanagh Ray Christensen Rosie Hill Immediate Past President Konrad de Kerloy LAW SUMMER SCHOOL 2015 The Society is again proud to bring you an extraordinary Law Summer School in 2015, which takes place Friday, 20 February 2015. Regarded as Western Australia’s pre-eminent legal

ONLINE LEARNING WITH CPD Launched in November 2013, our CPD Online Learning platform has proven to be highly successful in its first calendar

INVEST IN A MEMBERSHIP WHERE YOU CAN MAKE A DIFFERENCE Become a member TODAY! Visit lawsocietywa.asn.au/membership or phone 9324 8600 06 | Brief December 2014

year. This online resource will assist practitioners as we come to the end of another CPD year and has the added benefit of being available to regional practitioners who are unable to readily attend face-to-face seminars. THANK YOU, MERRY CHRISTMAS AND A HAPPY NEW YEAR I would like to thank outgoing President Konrad de Kerloy and his Executive team for the past year. The level of commitment and work they have provided to the Society and its members has been outstanding. Thanks also to the 2014 Society Council and our many committee members who have again volunteered countless hours of their time. Their commitment is what enables the Society to do the important work it does. I would like to also say a special thanks to all staff who have again worked tirelessly to deliver another very full and successful year for the Society. On behalf of the Council and staff of the Society, I wish all of our members and their families a safe, warm season’s greetings and a happy, prosperous new year. HOLIDAY CLOSING TIMES The Society office will close from 12.30pm on Friday, 19 December and will reopen on Monday, 5 January 2015 at 8.30am.


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DISPUTING A TAX ASSESSMENT FROM OBJECTION TO HEARING PART ONE Michael Flynn Barrister and National President of The Tax Institute This article is in two parts. In this edition of Brief I outline the steps in a dispute with the Commissioner of Taxation, with a particular focus on drafting objections to tax assessments. I also examine the opportunities to engage in alternative dispute resolution with the Commissioner. In the February edition I will explain the options that are available to a taxpayer if the ATO disallows an objection and the matter is unable to be resolved out of court.

08 | Brief December 2014


09


STEPS PRIOR TO AMENDMENT OF AN ASSESSMENT Amendments to assessments almost invariably occur as a result of a tax audit or some other form of ATO review. The main priority for a taxpayer during an audit or other Tax Office review should be to finalise the review as quickly as possible with the minimum amount of disruption. One way of contributing to a speedy resolution is to spend some time at the outset working out how you will manage the tax audit or review. I recommend that you pay attention to the following matters – •

If the auditors will be present at the client’s premises it is important to set up an office or work space for them which is separate from the rest of the staff.

It is important to identify who has authority to speak to the auditors and ensure that all communications pass through that person.

You should also keep a copy of any documents or communications with the auditors. You should endeavour to respond to any information requests promptly and accurately.

In my experience, many disputes arise because the auditor misunderstands the facts. Sometimes this is outside the taxpayer’s control, but in many cases the misunderstanding arises because the auditor receives an inaccurate explanation from the tax agent or someone in a junior position at the taxpayer, or because the taxpayer simply fails to supply the information that the auditor requests. Some taxpayers have poor record keeping or take a hostile approach towards the auditor. This is very counterproductive. The auditor has enormous statutory powers, backed up by the courts, to procure information. If the auditor becomes frustrated because the taxpayer fails to respond to information requests, then it is likely that the auditor will utilise those powers and, moreover, when the information eventually dribbles out, will take a negative attitude to all of the taxpayer’s arguments. Supplying the auditor promptly with the information he or she requests can avoid this, even if it is difficult to understand the relevance of the information, or if the information has previously been supplied. Position paper The key step before the ATO issues an amended assessment is that the auditor will usually provide the taxpayer either with the position paper or a letter setting out the proposed adjustments and the 10 | Brief December 2014

penalties, if any. Moreover, if requested, the ATO will generally provide a draft of the position paper before reaching a concluded view. There are two potential advantages to this. First, it gives the taxpayer an opportunity to correct the facts on which the ATO’s final position is based. For example, the ATO may have formed a view that a taxpayer was a resident of Australia by having been in Australia for more than 183 days, its view being founded solely upon immigration records. The taxpayer’s response might be to seek the Commissioner to exercise his power to treat her as having a permanent place of abode overseas. At that time, the taxpayer should provide the Commissioner with all the evidence that would be presented to the tribunal on review of the question, for example, property records including; utility bills, property taxes, rent or mortgage details.1 The second advantage of a draft position paper for some large taxpayers is that, if a final position paper issues to an ASX listed company, it may need to make a public disclosure of the potential liability. The issue of a draft position paper enables the taxpayer to make submissions to the ATO that the ATO should consider before issuing the final position paper. It is worth spending the time and money necessary to advance the strongest possible arguments in response to an ATO position paper or draft position paper. This may involve engaging a legal firm to prepare the taxpayer’s arguments, or a practitioner specialising in tax disputes. If you think the matter may go to court it would be worth engaging a barrister to assist in drafting the response to the position paper. The ATO’s current approach is to encourage alternative dispute resolution at an early stage. This means that there is an opportunity, at the position paper stage, to settle the dispute without having to go to the Administrative Appeals Tribunal or the court. For larger taxpayers there is also a new option available. The taxpayer can request an ‘independent’ review at the position paper stage. On receiving the request the dispute will be reviewed by an ATO officer who is independent of the officers responsible for the audit and the position paper. These reviews are now available to taxpayers who have a turnover of $100 million or greater. Thus far there have been 17 finalised reviews, with 10½ in favour of the original tax audit team and 6½ resolved in favour of the taxpayer. So far, only 1 concluded case has gone on to objection.2 The ATO is considering extending this programme to

a broader range of taxpayers. If you are unable to resolve the dispute at this stage the Commissioner will issue an assessment or amended assessment. Once the assessment is issued you have four years (two years for taxpayers whose affairs are simple) in which to object. If the ATO amends an existing assessment you have four years from the date of the original assessment (two years for taxpayers whose affairs are simple) or 60 days from the date of the amended assessment, whichever expires later. OBJECTING TO AN ASSESSMENT Under s175A of the Income Tax Assessment Act 1936 (the ITAA 1936) a taxpayer who is dissatisfied with an assessment may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953 (TAA). A taxpayer is ‘dissatisfied’ for the purpose of section 175A if the Commissioner makes an assessment that is adverse to the taxpayer and the taxpayer has grounds for challenging that assessment. This would be so even if a taxpayer objects against an assessment because the taxable income or tax payable in the assessment is too low: see TR 2011/5 at [17]. For example, a taxpayer may regard an assessment as too low because the taxpayer considers that certain income should be included in that assessment rather than in an assessment for a different income year, or in an assessment for a different taxpayer (see Henderson v Federal Commissioner of Taxation (1970) 119 CLR 612 and Isaacs v Federal Commissioner of Taxation (2006) 151 FCR 427). Further, a taxpayer may be dissatisfied with an income tax assessment and object against it, even though the assessment is in accordance with his or her own erroneous income tax return. Indeed, one option for a taxpayer who wishes to claim a deduction or exclude an item from income without the risk of incurring penalties is to lodge the tax return with the amount included in income (or not claimed as a deduction), but immediately lodge an objection. If an assessment is a nil assessment, a taxpayer cannot object against it unless the taxpayer is seeking an increase in their tax liability or seeking an increase in the total of the taxpayer’s tax offset refunds: s175A. Private rulings A taxpayer may also object to a private ruling, in the manner set out in Part IVC, if they are dissatisfied with it: s35960(1) of Sch. 1 of the TAA.


"The auditor has enormous statutory powers, backed up by the courts, to procure information."

11


If an assessment has been issued to a taxpayer in respect of a year to which a private ruling relates, it is not possible to object against the private ruling: see s359-60(3)(a) of Schedule 1. If this is the case, the taxpayer can only object against the assessment. If an objection decision has been made in relation to a private ruling, then the right of the taxpayer to object against the relevant assessment relating to the matter ruled on is limited to a right to object on grounds that neither were, nor could have been, grounds for the taxation objection against the ruling: s14ZVA of the TAA. If an assessment relates to facts that are materially different from those dealt with in the private ruling, or deals with the application of provisions not dealt with in the private ruling (for example, the application of Part IVA of the ITAA 1936), the limitation imposed on the taxpayer’s right to object against the assessment by section 14ZVA of the TAA does not apply. Generally speaking, if you believe a matter is likely to be litigated, it is far better to proceed by way of an objection to an assessment rather than to a private ruling, because a court or Tribunal that hears an objection to a private ruling is limited to the facts in the ruling. Neither the taxpayer nor the Commissioner can adduce new evidence in a dispute about a private ruling. This means that if there is a critical piece of evidence that is missing from the ruling, the court or the tribunal will be unable to determine whether the ruling is correct or incorrect. Therefore, you should think very carefully about whether you wish to lodge an objection to a private ruling, because it will preclude you from objecting to the assessment of the year of income to which the private ruling relates. Penalties and interest In addition to objecting to the primary tax, taxpayers may lodge objections to penalties and to shortfall interest charges.

Section 298-30(1) of Sch1 of the TAA requires the Commissioner to make an assessment of an administrative penalty imposed under Division 284 for making false or misleading statements, taking a position that was not reasonably arguable and entering into tax avoidance schemes. A taxpayer who is dissatisfied with the assessment may object under Part IVC of the TAA: s298-30(2) of Sch. 1 of the TAA. Under s298-20(1), the Commissioner has a general power to remit administrative penalties. If the Commissioner decides not to remit a penalty, he must give written notice of his decision, together with reasons, to the taxpayer: s298-20(2) of Sch. 1 of the TAA. If the Commissioner has not provided such notice to the taxpayer, then before objecting to the imposition of an administrative penalty, the taxpayer should consider applying to the Commissioner for remission of the penalty under s298-20 (the Commissioner should consider remission in any event, without the need for such an application). If the Commissioner refuses to remit the penalty and the taxpayer is dissatisfied with the decision, he or she may object in accordance with Part IVC of the TAA.

(a) taking into account one or more irrelevant considerations; and/or (b) failing to take into account one or more relevant considerations; and/or (c) exercising the discretionary power in accordance with a policy without regard to the merits of the Taxpayer’s circumstances; and/or (d) exercising the power in such a way that the result of the exercise of the power is uncertain, involved error of law and/or was otherwise arbitrary, capricious, erroneous; and/or (e) was otherwise contrary to law.” Please note that there is no right of objection to a general interest charge (GIC), or to the Commissioner’s failure to remit a GIC. Notwithstanding this, it is common for objections to include grounds that relate to a GIC. Lodging an objection

Under s14ZW(1)(c), the objection period is only 60 days from when the notice of the penalty assessment is served on the taxpayer, but s14ZW(1BB) aligns the objection period for an administrative penalty with the objection period for the assessment to which the penalty relates.

Section 14ZU of the TAA provides that a person making a taxation objection must:

Shortfall interest charge (SIC) is interest charged on additional tax payable as a result of an amendment to taxable income: see s280-100 of Sch 1 of the TAA. The Commissioner is required to serve a notice notifying the taxpayer of the amount of the SIC: see s280-110. Under s280-160 of Sch 1 of the TAA, the Commissioner has the power to remit a SIC. It is now possible to object to a decision by the Commissioner refusing to remit SIC: see s280-170 of Sch 1 of the TAA. An example of a taxpayer’s grounds of objection might be as follows –

c. state in it, fully and in detail, the grounds that the person relies on.

“1. If s280-100 of Sch. 1 of the 1953 Act applies, which is denied, the amount of shortfall interest charge (SIC) is less than the amount imposed. 2. Further, the decision by the Commissioner not to remit the SIC was not a proper exercise of the power conferred by s280-160 of Sch. 1 of the TAA by reason of the

12 | Brief December 2014

Commissioner –

a. make it in the approved form; b. lodge it with the Commissioner within the period set out in section 14ZU; and

I will deal with the grounds of objection first, then the requirement to make the objection in the approved form, and finally, the limitation period. Drafting the grounds of objection In R v DCT (WA) Ex parte Copley (1923) 30 ALR 86 at 87 Knox CJ said: I think it is effective notice of objection under the Act if the written communication is expressed in words that are reasonably calculated to convey to the understanding of the person to whom it is addressed (1) that the taxpayer contends that the assessment is not in accordance with the law; and (2) the grounds on which that contention is based. The objection need not be in formal language, but the language must be “sufficiently explicit to direct the attention of [the Commissioner] to the particular respects in which the taxpayer contends that the assessment is erroneous and [the] reasons for [that] contention” (see HR Lancey Shipping Co Pty Ltd v FCT (1951) 9 ATD 267 at 273 per Williams J).


broader horizons Merry Christmas from Profile Legal! Stacey would like to take this opportunity to thank all of her clients and candidates for their continued support throughout 2014. We wish you all the best for the festive season, a healthy and happy New Year and look forward to working with you in 2015! For further information on our services, or for assistance with your next career move, please contact us for a confidential discussion regarding our full range of available opportunities.

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As part of a talented and well-structured team, you will gain exposure to a diverse range of complex commercial litigation matters including contractual disputes, corporate, construction and major project litigation, acting for leading corporate clients in Australia and overseas. You will primarily support an expert Partner and senior lawyers, who will actively contribute to your professional development, but will also have opportunity to step up and run your own smaller matters. You will require confidence in your dealings with clients and a willingness to participate in client development activities. Exceptional academics, 2 years solid experience in a top tier or recognised second tier Litigation team and the desire and hunger to develop your technical experience and progress your career will be key to your success.

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" ... if you believe a matter is likely to be litigated, it is far better to proceed by way of an objection to an assessment rather than to a private ruling ... "

An objection can be an extremely simple document. For example, if the Commissioner has disallowed a deduction which the taxpayer contends is deductible under section 8-1, the objection can be as simple as stating that “I object on the grounds that the [describe the loss or outgoing] is a loss or outgoing deductible under section 8-1”. When setting out the grounds of your objection it is important to go back to the legislative provision on which you rely. Ordinarily, the grounds are best articulated by reference to the relevant provision. For example, an objection on grounds that the Commissioner has imposed capital gains tax on the sale of your main residence could read as follows –

1. the tax purportedly assessed; and 2. the additional tax purportedly assessed. B. Further, and without in any way limiting the generality of the foregoing, in respect of both or either of the following: 1. the tax purportedly assessed; and 2. the additional tax purportedly assessed, the taxpayer claims that – 3. the Assessment is arbitrary, capricious, erroneous and contrary to law;

I object to the inclusion of the capital gain of X dollars from the sale of my house in my assessable income, on the grounds that the capital gain should be disregarded under section 118-110, because:

4. the Commissioner was neither entitled nor required by the provisions of the Act or the Taxation Administration Act 1953 to make the assessment;

(a) I am an individual; and

5. further and without in any way limiting the generality of the foregoing, the Assessment was not made bona fide, was not authorised, was not made in the course of the proper administration of the Income Tax Assessment Act 1936 (‘the Act’), was based on irrelevant matters, was made without regard to relevant matters, and further or alternatively was based on inconsistent and wrong principles, and is

(b) The house was my main residence throughout my ownership period; and (c) My ownership interest did not pass to me as a beneficiary in, and I did not acquire it as trustee of, the estate of a deceased person. It is also common to include some more general grounds of objection. For example the following typically forms the first grounds of an objection – A. The Assessment is invalid, void 14 | Brief December 2014

and of no effect, either in whole or, alternatively, in respect of both or either of the following:


not an assessment for the purposes of the Taxation Administration Act 1953 or the Act. In addition, it is usual to reserve the right to amend the objection to take into account further facts or a change of position by the ATO. A provision along the following lines is commonplace – The Assessment contains insufficient particulars of the basis of assessment and, accordingly, the taxpayer reserves the right to raise before the Tribunal or a Court, upon the hearing of an appeal arising from the disallowance of this objection, any further grounds that are peculiarly within the knowledge of the Commissioner. Alternatively, the taxpayer will, before the Tribunal or a Court, apply for leave to amend the grounds of this objection. Strictly speaking, these general grounds of objection are not valid grounds of objection. First, they do not identify with sufficient precision the grounds on which the taxpayer is objecting. Secondly, if the assessment or amended assessment is invalid, in the sense that it is a nullity, it ought to be challenged in the Federal Court by way of proceedings under section 39B of the Judiciary Act: see Gashi v FCT (2013) 209 FCR 301 the Full Court at [41]-[43]. DO NOT INCLUDE SUBMISSIONS AMONG GROUNDS OF OBJECTION If a taxpayer wishes to make a submission to try and persuade the Commissioner to allow the objection, it is better, in my view, for that to be done in a separate document, for example, in a covering letter that forwards the Notice of Objection. This avoids any uncertainty about identifying the grounds of the objection. DRAFT GROUNDS OF OBJECTION AS BROADLY AS POSSIBLE When drafting an objection it is important to cover all possible grounds that the taxpayer may wish to argue, because under sections 14ZZK and 14ZZO of the TAA the taxpayer is, unless the tribunal or Federal Court orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates. Therefore, it is better to draft grounds of objection broadly, rather than narrowly. Objections typically reserve the right to amend the grounds, for example, as follows – Further and without in any way limiting the generality of the foregoing, the amended assessments of income tax were not made bona fide, were not authorised, were not

made in the course of the proper administration of the ITAA 1936, the ITAA 1997 or of the TAA, were based on irrelevant matters, were made without regard to relevant matters, and further or alternatively were based on wrong principles, and were not assessments for the purposes of the ITAA 1936, the ITAA 1997 or of the TAA. PARTICULAR GROUNDS OF OBJECTION Default assessments/arbitrary assessments – if the Commissioner alleges that the taxpayer has earned a certain amount of assessable income without explaining precisely how he arrived at the number, the onus is on the taxpayer to establish that he or she derived a smaller amount of assessable income. One possible approach the taxpayer could take is to lodge a tax return setting out what the taxpayer alleges to be the correct taxable income. For example, in Szantop v FCT (1993) 42 FCR 318; 25 ATR 469 the Commissioner issued default assessments, based on an assets betterment statement, to a taxpayer who had not lodged returns for the relevant years. The taxpayer’s agent quickly lodged returns for those years, disclosing a smaller amount of income, then sent a letter to the Commissioner in the following terms – We are in possession of your assessment No 385012/3 issued on the 10th July, 1987 and hereby wish to object to your assessment in full. On the 5th August 1987 we lodged income tax returns for the above and in each case it indicated that there was no tax payable at all. The assessments were raised from a betterment statement produced by one of your Officer [sic] on completely erroneous information. We are at present getting together absolute proof as to the above facts. In the meantime we request that the assessment be set aside and no penalties charged due to the above events. A majority of the Full Federal Court held that the letter stated a ground of objection fully and in detail because it incorporated by reference the taxpayer’s tax returns. If the taxpayer has already lodged returns for the year in question the grounds of objection might be that the taxpayer has fully and truly disclosed his or her assessable income in the returns lodged and that no amount has been omitted from those returns. Amendment outside limitation period – An important ground of appeal

potentially available to a taxpayer is that the Commissioner has issued the amended assessment outside the period permitted under s170 (which is usually 2 years or 4 years after the date the return was lodged, depending upon the type of return). An exception is that, if the taxpayer has been guilty of fraud or evasion, s170 allows the Commissioner an unlimited period in which to amend the return. A ground of objection stating that the amendment is outside the period of amendment permitted by s170 should suffice, but if fraud and evasion is alleged, the taxpayer should deny that any fraud or evasion occurred. Commissioner has failed to exercise a discretion – If the taxpayer’s liability depends upon the exercise of a discretionary power the objection should include a ground objecting to the exercise of the power. The ground needs to be clear about which discretion is in issue, and whether the basis of the objection is that the discretion was exercised incorrectly, or that it was exercised within power, but ought to be exercised differently.3 EXTENDING GROUNDS OF OBJECTION Both the Administrative Appeals Tribunal and the Federal Court will grant leave to argue grounds outside the objection at the request of the taxpayer, if the taxpayer can explain why they wish to argue such new grounds and if there is no prejudice to the Commissioner in allowing such grounds to be relied upon. In Lighthouse Philatelics Pty Ltd v Federal Commissioner of Taxation (1991) 32 FCR 148; 103 ALR 156, the Full Court of the Federal Court said: Nothing in the context of the Act requires the clear words of s190(a) [now, section 14ZZO Administration Act] to be so confined. On the contrary, the whole statutory background leads to the conclusion that the natural meaning of the words used should be given effect to. It follows that the tribunal or the court has power to permit a taxpayer to argue that the taxable income and tax payable are incorrect and ‘excessive’ for reasons not initially advanced, even if those reasons involve, as in the present case, entirely fresh grounds in substitution for the original grounds, or even if they require consideration of matters not considered by the Commissioner in the original assessment process. The decision whether to allow an amendment ought to be made on the same considerations of justice upon which such decisions are regularly made in litigation. It was in the past 15


a reproach to the law that the real issues in taxation appeals could be refused a hearing for a defective objection, and parliament has legislated to remove that reproach; an amendment under s190 should not be considered with reluctance, but on its merits [103 ALR at 165]. Normally the Commissioner does not oppose such an application. The approved form and consequences of false statements in objection A further requirement of an objection is that it be provided by way of an approved form. The Commissioner has published approved forms for the use of taxpayers and tax agents. The approved form provides sufficient space to include any grounds of objection that you wish. Alternatively, you could fill out the formal parts of the form and attach the objection to the approved form. Section 388-50(1) of Schedule 1 to the TAA provides that the Commissioner can approve in writing a document as the approved form. Such a document must contain a declaration signed by the taxpayer or the tax agent. Section 388-60 provides that, if you give a document to the Commissioner in the approved form, you must declare in the approved form that the information in the document is true and correct. In addition, section 388-65 provides that, if your agent gives an approved form to the Commissioner, you must state in writing that you authorise the agent to give the document to the Commissioner, and declare that any information you provided to the agent for the preparation of the document is true and correct. Under section 388-70, the agent must then make a declaration on the approved form stating that it has been prepared in accordance with the information supplied by the taxpayer, and that the agent has received a declaration from the taxpayer stating that the information provided is true and correct. The Commissioner accepts that it is unnecessary to use the printed form or electronic template published by him. An objection by letter or other document is in the approved form provided it satisfies the requirements of s14ZU(a), including the requirement for a signed declaration: see TR 2011/5 at [117]. If a taxpayer makes a declaration on an approved form that is false or misleading he or she commits a criminal offence: see section 8K of the TAA. It is important to note that a person other than the taxpayer may be guilty of an offence against s 8K(1) or (1B). However, in Grapsas v Unger (DFC of T) (1986) 16 | Brief December 2014

161 CLR 327; 86 ATC 4588, the majority of the High Court held that a tax agent who prepared tax returns, in which he knowingly inflated or invented deductions for a taxpayer (who was not aware of the false claims), was not guilty of an offence under former s230 of the ITAA 1936 which, before 1984, provided that “any person who ... in any return knowingly and wilfully ... makes any misstatement affecting the liability of any person to tax shall be guilty of an offence”. Under the majority’s reasoning it would seem an agent would not be guilty of an offence under s8K in relation to a false statement in an objection prepared by the agent, but signed and furnished by the taxpayer. A professional adviser who prepares an objection could also become liable as an accessory to the taxpayer by virtue of s11.2 of the Criminal Code Act 1995 (Cth) (Criminal Code). Under s11.2, any person who aided, abetted, counselled or procured the commission of an offence against s 8K(1), would be deemed to have committed the offence and would be punishable accordingly. Thus, a person other than the person who actually makes the statement may be guilty of an offence against s 8K(1) or (1B). For example, a tax agent who corresponds with the ATO on behalf of a client could be guilty of an offence against s 8K(1) if the correspondence is false or misleading in some respect, subject to the statutory defence provided in s 8K(2). Section 8K may also provide a prosecutor with a platform from which to launch a prosecution for breach of one of the more serious offences under the Crimes Act 1914 (Cth) or the Criminal Code, such as defrauding the Commonwealth. In Saxby v R [2011] TASCCA 1; (2011) 82 ATR 289 a trust controlled by the taxpayer operated a bakery business. The taxpayer and his wife adopted a practice of removing $1,000 in cash from the takings on weekends and public holidays, and not recording those amounts in weekly sales. The Tax Office audited the taxpayer and the trust and issued four amended assessments to the taxpayer for the years ended 30 June 1992 to 30 June 1995. The taxpayer lodged four identical notices of objection to the amended assessments, requesting remission of the additional income tax, penalties and interest (a copy of one of the objections is an appendix to the judgment). In the objection the taxpayer asserted that the amount of additional income was not earned or derived by him during the income year. He also asserted that: the total amount of income earned, received or derived by the Trust during the income year was properly and accurately recorded in its weekly

sales sheets and returned as gross income in calculating the net income of the trust estate … for the income year. The Supreme Court of Tasmania convicted the taxpayer of two counts of defrauding the Commonwealth and a further two counts of imposition under the Crimes Act 1914, and sentenced him to a term of imprisonment of two years. The Court of Criminal Appeal upheld the conviction. It confirmed that the TAA imposes an obligation on a taxpayer to assert facts in any notice of objection that are not false or misleading in any material particular. Therefore, to assert that income was “properly and accurately recorded in weekly sales sheets” was in breach of the TAA, which also resulted in a breach of the Crimes Act 1914. Saxby sent shock waves through the professional tax advising industry, but I believe that the fears it inspired have been exaggerated, for the following reasons. First, it is curious that Mr Saxby was prosecuted for the statements in his notice of objection, given that he lodged tax returns that knowingly failed to disclose his full taxable income. Ordinarily, a taxpayer who evades tax by understating his assessable income would be prosecuted for the false return, not for statements in a subsequent objection. Secondly, it is noteworthy that, although the objections were prepared by Mr Saxby’s accountant, the accountant was not prosecuted. Thirdly, the decision in Grapsas indicates that a tax agent who prepares an objection is unlikely to commit an offence against s8K if the objection is signed by the taxpayer, rather than by the agent. Nevertheless, tax agents who knowingly prepare and lodge objections that make false statements do run the risk of prosecution, either as accessories to the taxpayer (if the taxpayer is aware of the false statement) or if they sign the objection themselves. An objection must be lodged within time If a taxpayer lodges an objection outside the permitted period, the Commissioner has power under section 14ZX to grant an extension of time. Unfortunately, the Commissioner cannot, under the current law, grant the extension of time before the due date expires. This causes some discomfort to taxpayers, who may know before the expiry of the 60 days that they are not going to be able to meet the deadline. Even if the Commissioner advises them in advance that an extension will be granted, as a matter of


"When setting out the grounds of your objection it is important to go back to the legislative provision on which you rely." law, the Commissioner is not bound by such advice. If the Commissioner refuses a request for an extension of time to loge an objection the taxpayer may apply to the Administrative Appeals Tribunal for review of the refusal. My experience is that, provided there is no prejudice to the Commissioner, and the taxpayer can provide a good explanation for the delay in filing the objection, the tribunal will grant an extension of time. Commissioner must determine objection After the taxpayer lodges their objection, the Commissioner is required to decide whether to allow it in whole or part, or to disallow it: section 14ZY. Under section 14ZYA a taxpayer may require the Commissioner to make a decision if no decision has been made within 60 days of the date of lodgement of the objection, or 60 days after a request by the Commissioner for more information. When the Commissioner determines an objection, he provides two documents to the taxpayer: first, a brief one or two page document, in which the decision is set out (to allow, partly allow, or disallow the objection). Secondly, a document which can run to many pages containing the reasons for decision. The reasons for decision are usually the best guide to the arguments that the Commissioner will ultimately advance at the Federal Court or the Administrative Appeals Tribunal, but it is important to note that the Commissioner is not limited to the grounds he gives in the reasons for decision for disallowing the objection. He can introduce new grounds before the tribunal or the Federal Court, without requiring the permission of the tribunal or court (though if he leaves this until

a very late stage of the proceeding, he may be shut out, or at least find the tribunal or court allowing the taxpayer an adjournment of the hearing). Alternative dispute resolution and settlement Alternative Dispute Resolution (‘ADR’) is the current buzzword within the ATO. The new Commissioner and his executive staff are encouraging ADR wherever possible, and as early as possible in the dispute. They are particularly keen to clean up disputes that have remained unresolved for a considerable period of time. The new Commissioner provided an insight into his thinking in his evidence to the House of Representatives Standing Committee on Tax and Revenue’s enquiry into tax disputes: … you cannot hold onto things forever, trying to chase down every last dollar. Part of the complaints that I have received in the past is that we tend to hold on too long and have tended to try to get every single possible dollar. That is not commercial. I think we need to have a better appreciation that time costs money to the organisation and it certainly costs money to the taxpayer, the client.4 The Commissioner’s approach to ADR is set out in PS LA 2013/3. The PS LA defines ADR as – “an umbrella term for processes, other than judicial or tribunal determination, in which an impartial person, assists those in a dispute to resolve or narrow the issues between them.” According to the PS LA, ADR may be appropriate after the ATO issues a position paper, during review at the objection stage before a final decision, or during the litigation stage.

One of the keys to the successful conduct of ADR is that both the taxpayer and the ATO must have decision makers participate in the process. In the past this has been an obstacle to successful ADR, because the ATO decision maker is often only authorised to settle up to a certain amount. The real decision maker may be locked away in a room in Canberra, available by phone (perhaps), but not really attuned to the ADR process. In the past I have seen many ADR processes frustrated for this reason. However, in recent times, I have found that the ATO does provide officers who have authority to settle. This (along with the impetus from the top) is one of the main reasons that ADR is now more likely to succeed. The ATO has a number of controls in place over settlement. There is a Code of settlement practice, which the settlement must comply with. In addition, before the ATO agrees to a settlement, it must be approved by a settlement panel, or involve a sum previously authorised by the settlement panel. The ATO also has a model settlement deed. It can be difficult, particularly in smaller matters, to persuade the ATO to depart from the terms of the standard deed. This can cause issues for taxpayers, but like many standard form contracts, taxpayers usually have no option but to agree to these terms. NOTES

1.

I am indebted to Michael Bearman for this example – see ‘Dispute Resolution’ Paper delivered at the Tax Institute’s Victorian State Convention on 11-12 October 2012.

2.

Evidence of Chris Jordan to the House of Representatives Standing Committee on Tax and Revenue on 16 July 2014, p.1 of the Transcript

3.

ee further GT Pagone, Tax Effective Writing The S Federation Press Sydney 2013 at p.58.

4.

Evidence given on 16 July 2014 to the Committee at p.5 of the transcript.

17


VALE DAVID KINGSLEY MALCOLM, AC QC CitWA The Honourable Malcolm McCusker AC, CVO, QC Malcolm McCusker was a lifelong friend and a colleague of David Malcolm and later appeared before him many times after David Malcolm was appointed the Chief Justice.

David Kingsley Malcolm was born on 16 May 1938 in Bunbury WA, where he spent his early childhood, before gaining a scholarship to Guildford Grammar School (where he became School Captain). He served with great distinction as Chief Justice of the WA Supreme Court from 26 May 1988 to 1 May 2006, a record term of 18 years, retiring to take up a professorial post at Notre Dame University. Upon his death, on 20 October 2014, accolades poured in, both private and public, from the Government, the media, the WA Bar Association and the WA Law Society; and at a ceremonial sitting of the Supreme Court. As Premier Colin Barnett observed: “He was a great Western Australian and Australian”, and referred to his “unrivalled distinction as a judge (and his) extraordinary further service to the community”. It is fitting that the legal profession’s journal, Brief, should pay tribute to the life and career of this extraordinary member of the profession, who lived by the precept (Ecclesiastes c.9 v10): “Whatsoever thy hand findeth to do, do it with all thy might.” The President’s Report in the November 2014 edition of Brief expressed the Law Society’s great sadness on learning of the death of David Malcolm, “a giant of the legal profession”, and referred to the 18 | Brief December 2014

outstanding contributions he had made to the law and the wider community. To do full justice to his career would require, if not a book, then certainly a lengthy thesis, beyond the scope of this essay, in which I have included a few personal reminiscences. David Malcolm and I met for the first time when we entered UWA Law School in 1956. Very soon, it became clear to all in our year (about 15 students out of about 60 in the whole Law Faculty) that he had a first class intellect and a prodigious – indeed, unnerving – memory, and capacity for hard work. He combined those enviable attributes with a friendly, gregarious nature and enthusiasm for sport. He loved to socialise in the fairly infrequent law school parties. One of my memories of those times is his joining with Terry O’Connor (later O’Connor Q.C) in a lively song and dance duet, almost eclipsing, for the entertainment of our somewhat uncritical group, the “phantom race calls” by which another fellow student, the late George Grljusich, would regale us from atop a table in the law common room. It is said that “the child is the father of the man”; but although George did go on, after graduation, to a stellar career as a sports broadcaster, fortunately David decided to forego a song and dance career in favour of one, even more stellar, in the law.


feature

His life was gentle, and the elements so mixed in him, that nature might stand up and say to all the world: “This was a man.�


feature He graduated from UWA (which he represented in rugby and Australian Rules) with first-class honours. He was an obvious choice for the Rhodes Scholarship. In 1961, he went to Oxford, where he gained a BCL degree with first class honours, and honed his skills in rugby (as evidenced by his later captaincy of the WA Rugby Union team in 1969). On returning to Perth, after serving 2 years’ articles, he became a partner in a prestigious firm, then known as Joseph Muir & Williams, where two future Queens Counsel, Francis (“Red”) Burt and John Wickham were partners. (They later left ‘the amalgam’, as it was called, to found the first Independent Bar in WA). As a barrister and solicitor, David won universal respect, and attracted a wide and varied practice. In 1967 he left Perth to take up a position as Counsel with the Asian Development Bank, based in Manila. During his sojourn there, until 1970, he made many links and friends in Asia, friendships which endured throughout his lifetime; and considerably broadened his horizons and experience. He retained a close connection with the Asia-Pacific region, later chairing the judicial section of LAWASIA and biennial conferences of Chief Justices of Asia, and throughout his life was committed to promoting the rule of law in the region. He was a driving force behind the ‘Statement of Principles of the Independence of the Judiciary in the LAWASIA Region’, which was adopted unanimously in 1995, and became a benchmark for judicial independence. In 1970, he returned to Perth to practise in the ‘amalgam’, until ultimately joining the Independent Bar. He was President of the WA Bar Association from 1982 – 1984 and Vice-President of the Australian Bar Association in 1984. (In the year of his retirement as Chief Justice, he was honoured by the ABA with life membership, an honour conferred on only 3 other distinguished jurists, all past

members of the High Court). It is a measure of David’s sense of duty and energy that, although he had, as a barrister, an extraordinarily busy and demanding commercial practice, he found the time to chair the Town Planning Appeals Tribunal (1979 – 1986), the Law Reform Commission (1979 – 1982), and to be a very active member of the Trade Law Committee of the Law Council of Australia, as well as a member, and later Vice-President, of the Council of the Law Society of WA. These were, however, only some of the many activities of this remarkable man. He was for some years a member of the UWA Senate, where he chaired the Advisory Board of the Crime Research Centre. His support of, and

"As a barrister and solicitor, David won universal respect, and attracted a wide and varied practice." active involvement in, many community organisations was, throughout his career, legendary. As (then) Justice Murray observed, at his farewell ceremony in February 2006, on David’s retirement as Chief Justice, “he had been, both before and during his term as Chief Justice, patron, vice-patron, chair or trustee of no less than 24 such organisations”. Particularly passionate about juvenile justice issues, he was for many years a ‘Youth Trustee’ at Fairbridge, whose CEO, Mark Anderson, recently observed: “His community engagement was not only in the law area, but covered a whole range of different charities, medical and youth and community organisations …”. One such organisation was the SAS

Resources Trust. When, in 1996, a Black Hawk helicopter crashed, killing 15 SAS men and 3 aircrew, with a number seriously wounded, David’s compassion prompted him to become the founding Chairman of the Trust, established to provide support for the families of those killed or injured. I saw at first hand, as one of the original trustees, the commitment David brought to bear in that role, in which he continued for over a decade. Before he went to the Bench, he was undoubtedly a leader at the Bar, in the finest sense of that term. Not only had he been engaged in highly demanding, complex litigation (which frequently took him to the High Court), he also found time to mentor other young barristers, and to give lectures at UWA Law School. As a barrister, he set a shining example for others to follow. He was always well prepared, presented his arguments clearly and forcefully, and was unfailingly fair, objective and courteous; desirable characteristics, which he did not shed when he became a judge. We were, in a number of cases, opposing counsel. I always approached them with mixed feelings of pleasure and nervous apprehension. I knew it would be a tough fight, but an enjoyable one, always conducted in a fair and friendly fashion. One occasion that sticks in my mind was when, many years ago, he appeared in the Privy Council for an appellant, Griffin Coal, on appeal from a decision of Chief Justice Sir Francis Burt CJ. (In those days, it was possible to appeal directly to the Privy Council). I was counsel for the respondent, SECWA. Given the cogent reasoning of Sir Francis, I felt cautiously optimistic that the appeal would be dismissed; but as David pressed his argument, my optimism was displaced by a mounting concern, for the Law Lords were becoming increasingly receptive to his persuasive advocacy, advocacy

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which threatened to snatch victory from the jaws of what I had, over-confidently, expected to be his defeat. I slept barely a wink that evening, re-working our submissions to meet David’s powerful attack, which, although ultimately it did not prevail, earned him plaudits from the seven members of Her Majesty’s Judicial Committee, none of whom was prone to giving praise lightly. His persistence, and his persuasive advocacy – and as former High Court Chief Justice Sir Anthony Mason has pointed out, advocacy is “the art of persuasion” – came to the fore in another case in which we were opposed as counsel, Hewitt v Court & Evans (1983) 149 CLR 639. He persuaded Kennedy J., at first instance, that his client could rely on the doctrine of “equitable lien”, to resist a claim of preference, made by liquidators. The argument was novel. The WA Full Court, led by Burt CJ., unanimously rejected it. Undeterred, David took the case on appeal to the High Court, where he succeeded in persuading 3 of the 5 Justices of the merit of his argument (a decision which, incidentally, Burt CJ. later told me he thought ‘mischievous’.) When I quipped to David, after the result, that more judges had actually agreed with me (5:4) he said with a smile, “You might have had the numbers, Malcolm, but not the ones that counted.” When, in 1988, David was invited to become Chief Justice, he confided to me that he was somewhat reluctant to accept, as he greatly enjoyed the challenge of life as a barrister; but, he said, his mentor Burt CJ. had warned him – only half jokingly, I think – that if David did not accept, he would never speak to him again! On 26 May 1988, just three weeks after his 50th birthday, he became the 12th Chief Justice of the Supreme Court of Western Australia. In doing so, he made an enormous financial sacrifice, for he was at the height of his career, and his services were in great demand. I was sorry to see him go to the Bench, for I would miss our friendly ‘jousts’ at the Bar. However, happily for the WA justice system and the community, he did accept. Not, I am sure, due to ‘undue influence’ from Sir Francis, but out of his strong sense of duty to the community and the profession; a desire both to improve the Court system and to make it more open to the public; and to communicate. He met those challenges with his

customary zest, and a zeal for reform. Space does not permit a recount of all of his innovations, many now taken for granted. I will mention only some:•

One of the first things that he did – never done before – was to convene a meeting of all the administrative staff at the Supreme Court. He inquired about the task of each, how working conditions could be improved, and told them what his expectations for the Supreme Court administration were.

He initiated ‘education programmes’ for the Judges, to ensure that there should be no unconscious gender bias or sexual discrimination, an initiative highly praised throughout Australia, and later emulated.

He directed that judges master the mysteries of desk-top computers, on

which they could call up transcripts, draft judgments, notes and so on – this, at a time when the Court had not even possessed a fax machine. •

He instigated a total overhaul of all of the old Supreme Court records, rescuing many important historical documents from rising damp.

In 1993, alarmed at the time that it was taking for a civil action to come to trial, and determined to reduce the size of the list of actions awaiting trial, he instituted a measure described by some practitioners as ‘draconian’: the so-called ‘rolling list’ or ‘blitz’. Special Commissioners were engaged to supplement the existing number of judges. Trials were brought on at short notice, with compulsory mediation conferences beforehand, the judges playing a 21


"Both as senior counsel, and as Chief Justice, he gained an enviable reputation, nationally and internationally, for his energy and erudition." pro-active role in deciding what cases would go on the rolling list. Many were settled as a result. The waiting period was cut down to one or two months, from time of entry until trial. •

Procedural innovations in civil cases were made, to make the trial process more efficient, through pre-trial case management, the introduction of specialised lists, the expedited list, and the rolling Duty Judge system, to enable urgent matters to be dealt with outside the Court hours.

He encouraged reliance on information technology for the Judges, for access to library materials, record-keeping, processing lodgements and file management, and for taking evidence, increasing the use of video technology and remote video-links.

In the criminal jurisdiction, even though he had not practised in criminal law as a barrister, he presided over reforms of case management, paralleling those in civil. He lent his support to a wholesale reform of criminal procedure, resulting in the Criminal Procedure Act.

He oversaw sensitive procedures for the giving of evidence by children and other vulnerable and protected witnesses.

He encouraged and supported the improvement of Court security. (The need for this was made startlingly apparent, after several accused fled the Court when in session and raced out into the Stirling Gardens).

He pioneered having Aboriginal Liaison Officers in Court, to help indigenous citizens; and he supported programs to assist the understanding of indigenous cultural issues by the Judges. He sought to assist the media to understand and accurately report matters relating to the courts, appointing (for the first time) a media liaison officer for that purpose – an innovation for which our present Chief Justice, Wayne Martin, has said he is eternally grateful. As part of the ‘demystification’, he

22 | Brief December 2014

urged successfully for the abolition of the wearing of wigs in Court – not without resistance from some surprising quarters. •

He introduced Court-based mediation, usually by Court Registrars, which has proved invaluable in settling the vast majority of Civil actions without recourse to a trial.

He espoused the establishment of a specialised Court of Appeal (the first President of which was the highly respected Justice Steytler).

These, and other measures that David initiated or oversaw, illustrate his enthusiasm for the efficient administration and improvement of the justice system. He combined all of this demanding administrative work with daily sittings at nisi prius and on appeals (where he usually delivered the lead judgment), and with a range of community activities, as well as performing the Lieutenant Governor’s duties, when the Governor was unavailable. Both as senior counsel, and as Chief Justice, he gained an enviable reputation, nationally and internationally, for his energy and erudition. It is a measure of the respect in which he was held, that, when an appeal to the NSW Court of Appeal was brought by Dyson Heydon (then a judge of the NSW Court of Appeal) against a NSW decision based on his alleged negligence as a barrister, Malcolm CJ. was invited to preside over the NSW Court of Appeal, comprising 3 out-of-state Justices, to hear the appeal. As always, his lengthy reasons for judgment (the appeal was unanimously upheld) were a model of erudition and clarity. Throughout his life he manifested a genuine concern for his fellow citizens. One of many instances of this was mentioned by John Button, in a letter he wrote upon David’s death. Button told how, some time after a decision by the Court of Appeal quashing his wrongful conviction for murder (for which he spent many years in prison), a decision in which Malcolm CJ gave the lead judgment, he received, out of the blue, a surprise telephone call from the Chief Justice, asking him (no doubt because of the trauma he knew Button had suffered) “How are you getting on?” A simple,

touching and typical human act of kindness and compassion. His judgment in Button v R was a masterpiece of legal analysis and reasoning, but it was only one of the many judgments – well over 1,000 – which he wrote during his 18 years as Chief Justice. Another, which exemplified his passion for justice, was Sell v R (1995) 15 WAR 240. It had been common practice, for many years, for the police to produce, as evidence of a confession, an unsigned ‘record of interview’. If the accused denied having said what was ‘recorded’ it would be his/her word against the police. Almost invariably, the police evidence was accepted – why would the police fabricate a confession? (A stark illustration of the fallacy of this ‘mindset’ was in Mickelberg v R. Unsigned records of interview were admitted, duly sworn to by the investigating officers. Many years later, and after several appeals, one of the officers admitted that the ‘records’ were a total concoction, written by him and dictated by his superior). Even with the availability of videotaping, the police did not always make use of it, preferring to produce the unsigned ‘record’. In Sell v R Malcolm CJ said, “It is ‘highly desirable’ that the police adopt a rule that wherever possible, interviews should be videotaped to avoid the necessity for trial judges to determine whether to exercise the discretion to exclude confessional evidence on the ground of unfairness.” The message was clear: videotape confessions, if the facility is available, or else risk having them excluded – a warning given by the Court of Appeal in another decision, Kelly v R (1994) 12 WAR. There can be little doubt, I think, that these decisions had a persuasive effect on the legislature, which in 1995 introduced S.570D of the Criminal Code, excluding confessions unless videotaped, in the absence of ‘exceptional circumstances’. This is just one illustration of the beneficial effect that a number of his decisions had on the administration of the law. As Justice Murray (as he was) said at David’s Farewell, “The Court and administration of justice in this State has enjoyed, during the period of your judicial service, unparalleled academic leadership.” Apart from his erudition, energy, and achievements (for which he received many awards), what particularly impressed all who knew David was his essential humanity. In a moving and eloquent funeral eulogy,


feature the Honourable Neville Owen said, “His family and his many friends will recognise, in particular, the reference to a generosity of spirit. They know that beneath the sometimes imposing public persona was a man of great warmth, humour, humanity and loyalty. “Those whose connection with David was through community groups will identify with the nutshell conclusion: that his commitment to a cause was total, that he cared deeply about the people concerned, and that he craved success for that cause, not for his own sake, but for the sake of those people and for the common good. Another endearing quality was his sense of humour, and preparedness to be selfeffacing. As he once told a group of law students in 1997, his precept was: “Take your work seriously, take any office you hold seriously, but don’t take yourself too seriously. And at his Farewell, David wryly recounted how, when walking with his daughter Manisha and gently chiding her for some minor misdemeanour, a passerby, recognising the Chief Justice, leaned over and with a smile said to Manisha “You’ll get no justice out of him, kid.”

In 1991, Perth was the host city for an international competition between veteran rugby players – the ‘Golden Oldies’. Hundreds of teams, from all over the world, attended. Chief Justice David Malcolm gave a speech to welcome the assembled veterans and to open the event, following which Rugby Forward, David Malcolm, donned his rugby gear, as a member of the ‘Old Gold’s Rugby Team’, and participated with his usual vigour in the veterans’ matches. He cut a striking figure in baggy black and gold shorts. I recall his relaying with a grin, in the course of one on the many speeches he gave, that it had been said of him that he would speak at the opening of an envelope, if invited! His readiness to attend and speak at public functions and to become involved in community organisations was not for self-aggrandisement. It was because he felt that this was the way he should fulfil his leadership responsibilities, which he considered extended well beyond the confines of the Supreme Court, and encompassed all of the ‘inferior courts’ (to the administration of which he gave close attention and helpful support) and the wider community.

In the last few years of David’s life, he suffered from a tragic illness – tragic not only for him, but for his wife Kaaren and daughter Manisha, both of whom he adored and to whom he once referred, in a speech in the Supreme Court, as his “two most priceless assets”. David Malcolm has left an enduring legacy, of which his wife and daughter, the legal profession and the whole community, can be proud, and for which we should be grateful. His was ‘a life well-lived’. As the Honourable Neville Owen observed in his eulogy, “In the years to come, thousands of law students, lawyers, judges and (I hope) legislators will read what he has written, and will be guided by him in the ways of doing justice. His family, his friends and the many community organisations he served will benefit long into the future from his fidelity to mercy, exemplified by his loyal and tender commitment to them ... (He was) a person for whom greatness (in the fullest and most expressive sense of that word) sat easily on the shoulders.”

23


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Reprinted Edited Extract of Interview with

Chief Justice David Malcolm Lee Rossetto Partner, Minter Ellison Interview conducted August 1999. Previously published July 2000 Brief.

How would you describe your longterm career aspirations. Are you in the position to which you have long aspired? Certainly I had no ambition of being Chief Justice of Western Australia or indeed any ambition to be a judge. My career aspirations were, I suppose, to achieve a level of performance where I would be recognised as one of the leaders of the bar, to do the very best I could. I have always taken a great interest in law reform, and it is a quarter of a century or more ago that I was appointed to the Law Reform Commission of WA. To improve the system, to make it better than it was when I found it, has been one of my long-term aspirations. At present I would simply like to do the job I am now doing to the best of my ability. If you had to be specific, what would you say has been your main motivation and source of determination throughout your career? I suppose I have endeavoured to develop my personal skills to the very best of my ability, in order that I be better qualified to serve the community. I would like to make a difference. What are some of your most memorable (embarrassing) moments in court? My first experience was while I was still an articled clerk. It was virtually on the eve of my admission. It was necessary to advertise twice in a daily newspaper before making an application for admission. In those days it was cheaper to advertise in the Daily News than it was to advertise in The West Australian. On the last day the Daily News forgot to put my advertisement in the public notices column, which meant if nothing could be done, my admission would be deferred for a month. Lots of things were already in place. In 26 | Brief December 2014

those days, practically the whole of the legal profession would turn up to an admission party. I was the sole applicant and, fortunately still being with Stone James, they were the solicitors for The West Australian. Robert Ainslie QC got on the telephone and got a late public notice in. I was directed to attend the delivery door of WA Newspapers in the laneway alongside Newspaper House at 11.00pm. I purchased a copy of the newspaper so I was able to swear an affidavit that it had appeared in the newspaper at 11.00pm on the last day. But the then Chief Justice, Sir Albert Woolf, wasn’t too happy about it. He summoned me to appear before him at a directions hearing to resolve the issue. Ainslie QC had to appear and argue the point. Finally, he agreed to let my application go forward. But it was all pretty excruciating as it was not like I was in a group, one of 20 or 30 people applying, I was the only person applying. There was a special sitting of the Full Court to hear it. All’s well that ends well. It worked out, but it was pretty hair raising. Another occasion which comes to mind is the first occasion when I actually appeared against Sir Francis Burt. I was junior to Ken Hatfield QC in a case called Gurfinkel v Panizza which went up to the High Court in about 1966. Gurfinkel was a notorious litigant. I was greatly embarrassed because he turned up to the High Court in a hired dinner jacket with black tie. When I made my first submission, he applauded. Sir Garfield Barwick commented, “Mr Malcolm, if you cannot control your client, we will have to deprive ourselves of the pleasure of his company.” So it wasn’t a great start. Later, when I was in front of Chief Justice Woolf in another matter, my opponent was John Toohey QC. In making a point, I made a gesture with my ... hand ... and I sent a glass of water flying down the table into Toohey’s lap.

How did you feel the first time you stood up in court? I can recall that I was very nervous, and it was like going in to bat against Dennis Lillee, when he was in his prime. I think that it is very important never to lose that feeling of apprehension, the anxiety to get it right. I think that once you stand up, and you’re not nervous, and you’re not keyed up, and you are not ready to give it your best, that is the time to stop. Unless you really are on the knife-edge I don’t believe that you really can give it your best. No matter how many times I have had to make a speech, give an ex tempore judgment, or stand up in front of an audience, I know the day that I am not keyed up for it is the day I should probably start to think about giving it away, because perhaps you are not going to give it your best. As a student and a young lawyer, did you look up to any one in particular as a role model for your career? Yes, I spent that time when I was a summer clerk [at Joseph Muir & Williams] with Red Burt, who became a very important role model. He was a person who strove as far as one could for perfection in everything he did as a lawyer. Nothing was too big or too small, no case was not something that was worthwhile. I think he gave a very great example of service to the community and upholding the standards of the profession. I was actually articled to Robert Blanckensee in the firm then known as Stone James & Co, now Mallesons Stephens Jaques. He was a conveyancer, and he taught me a great deal in relation to the care that needed to be undertaken in the preparation of documents. I actually spent the great part of my articles divided in two periods. One period before I went to Oxford and another period after I came back; 8 months before I went and 16 months when I came back. But for a very substantial period of


my articles I worked very closely with Robert Ainslie QC. He was another very meticulous person, with a very high sense of duty. He was a little bit prickly from time to time, but a great task master. He was a person who paid enormous attention to the way in which letters were written and pleadings were drawn and so on. He was meticulous in his work, which I think was very important. From both of those men I learnt a great deal.

required in a lump sum. I formed the view that this was a penalty clause. There was a decision of the High Court that stood in his way dating from 1904, which either had to be overturned or distinguished. I thought that, if it did go to the High Court, it would be overturned, and in any event, there was a good argument for distinguishing it. He lost at first instance, as was expected. I was confident that the Full Court would distinguish the case, but they did not. He got pretty nervous, but was prepared to take my advice that we had a reasonable chance of bringing it off in the High Court. We won in the High Court 3:2. That was a very proud moment.

After my articles, the day I was admitted to practice in July 1964, I was also admitted to partnership at the firm of Muir and Williams, as it had become. After that, I actually appeared with Burt as his junior on quite a number of occasions. I learnt a great deal from him. I remember one case, Sunnywest Cooperative Dairies v WA Johnson & Sons, about an estoppel in relation to a partnership which had converted itself into a company. They never told anybody about the formation of the company. The question was whether the partners were still liable on the basis of an estoppel. In that case, Burt asked me to do the reply at the end of the argument. I was very chuffed about that.

In the same sitting of the High Court, I brought another matter involving the construction of a portable home for a young couple who lived in Beverley. The company went into receivership part way through the completion of this couple’s home. The issue was whether the contract to build the home was one for the sale of goods, or whether it was one for work and materials. In either case, I formed the view that they were entitled to an equitable lien over the partly constructed house, commensurate with the money they had already spent on it, and if they paid the balance, they were entitled to take the house as it was. The receiver formed the view that they had taken an unlawful preference, and they were sued for an amount representing the alleged preference.

What stands out in your mind as the proudest moment of your career so far? I think that in 1983 I took two cases in particular to the High Court. One was a case called All States Leasing v O’Dea, concerning penalties in relation to the lease of a truck. The lessee was required to pay a lump sum up front, which was waived so long as he paid instalments of rent. There was a range of provisions for which the lease could be brought to an end, including the failure to wash the truck on a weekly basis, in which case the truck could be re-possessed and sold, and the adjustments that would be made did not take into account accelerated payment of the balance of the lease instalments, which was

At first instance, Justice Wickham upheld the equitable lien. In the Full Court presided over by Sir Francis Burt, the idea of the equitable lien was rejected. I submitted a case, Swainston

v Clay, as an example of a lien arising as an operation of equity, as distinct from an express lien. On one of the more difficult days I had with Sir Francis Burt, who I think sometimes enjoyed putting difficulties in my way when I was in front of him, we had a ding­dong argument over the applicability of this case. I lost the argument and we went down saying “If authority is needed, it is in the old case of Swainston v Clay.” We appealed to the High Court and we won, again 3:2. Sir Harry Gibbs expressed the opinion that this was a case where a lien arose by operation of equity. He agreed with my authority. Just after the judgment was announced, I received a note from Justice Wickham, the trial judge, stating, “Congratulations, we won.”

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Administering Shares Owned by a Deceased Estate David Beros Stockbroker, BBY Ltd

Managing shares owned by a deceased estate can often feel like an esoteric and ad hoc process. Selling or transferring these shares usually requires multiple non-standardised forms, depending on how and where the shares are registered. Unlike modern electronic share trading, these forms are mostly completed by hand and returned by mail. Here a small amount of background knowledge about ASX share registration can prove extremely useful. ASX SHARE REGISTRATION METHODS Generally, shareholdings in ASX listed companies are registered in one of two ways: Holder Identification Number (HIN) If a shareholder holds shares in a trading account at a broking firm, then they are CHESS sponsored with a HIN. A HIN is a ten digit number that begins with the letter ‘X’. CHESS (Clearing House Electronic Subregister System) is the ASX’s computerised settlement system for exchanging legal title of shares for money between buyers and sellers. This means that multiple share holdings (e.g. Telstra, AMP, NAB) held in the one trading account can all be registered on the same HIN. If the shareholder has accounts with more than one broker, there will be a different HIN for each trading account.

and Link Market Services. The key disadvantage of issuer sponsored shareholdings is that they cannot immediately be sold, as a broker is required to trade shares. As part of these stock registration methods, the ASX has in place guidelines for brokers’ share registries to follow upon the death on a holder. The basic process occurs in the following order: 1. Notice received of the death of a holder. 2. The title ‘EST’ is given to the registered shareholding name and a holding lock is put in place to prevent sale or transfer. 3. Necessary documentation (e.g. probate, or will and death certificate) is received to remove the holding lock. 4. The shares are then either sold through a broker, transferred to the estate beneficiaries, or converted to issuer sponsorship if on HIN. FINDING SHARES Here are a few tricks that can be used to track down shares owned by a deceased estate. •

Security Reference Number (SRN) Shareholdings not in a CHESS sponsored trading account are separately registered at each particular ASX listed company’s share registry. These shares are referred to as Issuer Sponsored with a SRN (Security Reference Number). A SRN is a nine or ten digit number that begins with the letter ‘I’. Multiple issuer sponsored share holdings (e.g. Telstra, AMP, NAB) will each have their own different SRN number with the company. Most listed companies outsource their share registry obligations to specialist providers; the largest two being Computershare 28 | Brief December 2014

Shareholding Documents: The first step is to find the relevant SRNs or HINs for any shareholdings the deceased may have. These can be found on most share dividend or holding statements mailed via post.

Online Registry Login: Using the SRN or HIN you may be able to login to view the holding details online through the company’s share registry website. If you are unsure which registry the company uses, simply find the company’s information page at www.asx.com.au to locate the registry name.

Unknown SRN: When the SRN cannot be located, but the exact full name and registered address of the shareholding is known, a broker will

be able to request a search for the missing SRN. This is a called a 12A request. SELLING SHARES As with other shares, an ASX broker will need to be engaged to process the share sale for a deceased estate. Forms are signed by the executors and returned along with certified estate documents (either probate, letters of administration, or the will and death certificate) and executor ID to finalise the sale. Funds are then paid to the estate bank account or via a cheque within 4-5 working days. TRANSFERRING SHARES If the executor of the estate opts to transfer shares to the beneficiaries directly, an Off Market Transfer form (OMT) must be completed. The OMT specifies the details of both the buyer and the seller, and is signed by each. A separate OMT is completed for each shareholding being transferred, and sent to the broker or registry where the shares are held. Each broker or registry will have their own pro forma OMT, so it is best to use the ‘Australian Standard Transfer Form’ if transferring multiple share holdings. Certified original ID copies for each party must also accompany the transfer form. FURTHER INFORMATION The many permutations to potential scenarios means this is by no means an exhaustive guide to shareholdings owned by deceased estates. The nuances of estate requirements and the peculiarities of ASX share registration weren’t designed to naturally translate from one to the other. Fortunately, with a little ASX knowledge and the help of a good stockbroker, navigating this area can be made a lot easier for both legal professionals and estate executors.


society event

2014 Law Office Convention and Exhibition

The Society hosted the 2014 Law Office Convention and Exhibition on Tuesday, 14 October at the Parmelia Hilton, with over 120 people in attendance throughout the afternoon. Similar to our previously run biennial event, the Law Office Expo, this year saw the Society create a completely complementary event filled with learning, development and networking opportunities for both legal practitioners and law firm support managers. The event commenced at midday, with the opening of the supplier exhibition hall and a light lunch provided by Leap Legal Software. The first L&D event was a CPD seminar, proudly supported by Law Mutual (WA), and presented by Maryam Omari, Associate Professor School of Business, Faculty of Business and Law, Edith Cowan University. This session explored our fast-paced and target-driven world of work and its adverse effects on the wellbeing and development of individuals in the workplace. With reference to the Tristan Jepson Memorial Foundation Psychological Wellbeing: Best Practice Guidelines for the legal profession, Associate Professor Omari stressed the

importance of having an individual’s personal and professional development plans in realising organisational goals. She also emphasised the need for mentors in an organisation to assist employees with self-improvement and career development, in order to ensure the mental well-being and retention of staff in the legal profession. Following on from this seminar were four targeted information sessions on the latest trends in legal practice management. Participants heard from experts in the profession on the topics of: Knowledge and Precedent Management; Successfully Rebranding and Marketing your Firm; Information Technology Solutions; and Managing your Firm’s Finances, where we called on the expertise of Knowledge Manager, Cassandra Netolicky from Jackson McDonald, then-Managing Partner, Stephen Williams from Kott Gunning, IT Coordinator, Simon Watson, from Rockwell Olivier and Katrina Houlbrook of Apple Business Consultancy. The event concluded with a networking drinks function, proudly supported by Law in Order, which

also incorporated the announcement of the 2014 Outstanding Contribution Award, presented by the Law Office Management Committee. This year there were dual-winners, with Jane Lynch of Squires Patton Boggs and Jenny Fillery of Legal Aid WA sharing the $1500 prize, kindly donated by Practice Management Professionals (PMPWA) to use at a professional development course of their choice. The Society would like to acknowledge the premium exhibitors, Mindfield Brand Designers, Office Information Australia and LexisNexis, for their invaluable contribution to the information session and exhibition. Thank you to our standard exhibitors, BigHand, Café Corporate, Complete Office Supplies, Compu-stor, CT Group, FilePro, Focus Networks, FTU Consulting, Gem Legal Recruitment, Global X, HBF, Kulbardi, LitSupport, Ludlows, Practice Management Professionals, Print Sync, SAI Global, Softlog Systems Australia, Veda and VoiceX Communications, for making the complementary event possible.

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SOCIETY

EVENT


spotlight

LAWYERS

FOR A CAUSE On Saturday, 25 October 2014, over 160 members of the legal profession donned running shoes and cycle wear in the name of raising money for the Chief Justice's Law Week Youth Appeal Trust. In its third year, this biennial charity sporting event saw registrants and volunteers take part in a 5km walk, 10km run or 40km cycle, all along the Swan River. Participants consisted of 53 runners, 86 walkers, 17 cyclists and 9 volunteers from over 28 organisations in all facets of Law, including the courts, small to medium firms, tertiary institutions, government departments and agencies, community legal services and in-house counsel offices. Although the weather forecast and the clouds looked ominous at 7.45am, participants presented outside the Royal Perth Yacht Club in Crawley and commenced their sporting leg of choice. They all returned to the club at 10am for a well-deserved and delicious brunch, where the charitable trust's patron, the Honourable Wayne Martin AC, Chief Justice of Western Australia, reminded participants of the importance of giving back to the community, especially for causes that assist in diverting youth away from the criminal justice system.

So what is the Chief Justice’s Law Week Youth Appeal Trust? This Chief Justice’s Law Week Youth Appeal Trust was established in 2001 by the Society, with the objective of creating an ongoing charitable fundraising effort by legal practitioners to support youth charities, including (but not limited to) those for youth with disabilities and, in particular, youth support services that assist in diverting youth from the criminal justice system. Beneficiaries of Trust monies over the years have included the Noongar Patrol Outreach Service, Beyond Blue, Perth Inner City Youth Service Inc., Turkey Creek Branch of the Local Drug Action Group Inc., Warmun Local Drug Action Group and Kimberley / Broome Headspace. For more information on the trust, or to find out how make a donation, go to lawsocietywa.asn.au/ CJYouthAppeal

Society President, Konrad de Kerloy said: The event was a great way for members of the legal profession to raise money for the charitable trust, as well as enjoying the magnificent views of the Swan River and the City. The generous support of our sponsors meant that all $14,400 contributed by the participants will go to the Chief Justice’s Law Week Youth Appeal Trust. The Society is grateful to Bradley Bayly Legal for their third year of premium sponsorship, the continued supporting sponsorship of Marsh and Clayton Utz, and welcomed new sponsor, Unisearch Expert Opinion Services, for making the event and the Society’s contribution to the trust possible.

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www.lawinorder.com.au

32 | Brief December 2014

Perth Level 1, 2 Mill Street Perth WA 6000 T: 08 9466 0155 F: 08 9466 0199 E: perth@lawinorder.com.au DX: 63501 Perth

PERTH SYDNEY MELBOURNE BRISBANE


LAW SUMMER SCHOOL 2015

The Law Summer School on 20 February 2015 celebrates these themes of the 'thick' conception of the rule of law. A large group of speakers have been brought together to speak on topics of significant contemporary relevance.

In relation to administrative law and the rule of law, we will hear at the breakfast plenary from Tim Wilson, the Human Rights Commissioner, on protecting rights in a liberal democracy, and from the world-renowned Geoffrey Robertson QC on the rule of law and from (20 FEBRUARY 2015) Professor Paul Craig QC FBA, who is probably the world's leading administrative lawyer, on major issues for administrative law. Related issues, and the rise of 2015 will be the 800th anniversary of the first version of the Magna administrative tribunals, will also be considered by Carta. Much of it was not original. And not all of the great charter meets Australian experts, including Justice Pritchard from modern ideals, incorporated into justice, of equality, dignity, and equity. the Supreme Court of Western Australia, Justice Kerr, But some provisions of the Magna Carta were foundational to the rule the President of the Australian Administrative Tribunal of law, on its broad conception, as we recognise it today. In particular, and Justice Curthoys, the President of the State modern principles concerning the administration of law echo the ideas of Administrative Tribunal. many of the clauses: proportionality, absence of bias or apprehensions of bias, due process, and a move towards consistency of justice. The rule of law, and the need for clarity, also pervades commercial law and common law generally, and the papers in this area are also from the leading experts in the world. Professor Robert Stevens, of the University of Oxford, will speak on pure economic loss; Justice Leeming from the New South Wales Court of Appeal and Patricia Cahill from Francis Burt Chambers, will speak on Commercial Equity; and Justice Murphy of the Court of Appeal of the Supreme Court of Western Australia and Dr McGivern from the University of Western Australia will speak on the Civil Liability Acts.

THE RULE OF LAW 800 YEARS AFTER THE MAGNA CARTA

The programme goes far beyond this. There is a plenary session on Indigenous incarceration with the Chief Justice of Western Australia, the President-elect of the Law Council of Australia and the CEO of the Aboriginal Legal Service of Western Australia. There is a concurrent session on court expectations of mediation, with three extremely skilled and experienced mediators: Maurice Spillane from the State Administrative Tribunal, Registrar Sandra Boyle, from the Supreme Court of Western Australia, and Acting Magistrate Colin Kaeser, from the Family Court of Western Australia. And in the lunchtime session, the well known and widely read political commentator, Professor Peter van Onselen will consider the issues of lawyers and the media. As with previous years, this programme is set to challenge and to stimulate, and to engage the profession, bringing everyone together in a collaborative and exciting environment. We await 20 February 2015 with great anticipation. Justice James Edelman and Dr Chris Kendall, on behalf of the Organising Committee for the Law Summer School

For all details and booking information, please visit lawsocietywa.asn.au/lawsummerschool 33


34 | Brief December 2014


EVIDENCE IN SAT WHAT TO DO WHERE THE RULES OF EVIDENCE DON’T APPLY Henry Jackson Barrister, Francis Burt Chambers

1. This paper is concerned with the manner in which the State Administrative Tribunal (SAT) receives evidence. 2. It is principally concerned with s32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 3. Section 32(2)(a) provides that the Evidence Act 1906 (WA) does not apply to the SAT’s proceedings and the SAT is not bound by the rules of evidence. 4. However, as will be described in more detail below, that does not provide the basis for Rafferty’s Rules – it is not the case that, in SAT, anything goes. 5. Principally, that is so because s32 of the SAT Act also insists that the SAT must act fairly. That obligation provides a powerful constraint on the SAT to otherwise receive as evidence material which would, but for s32, be inadmissible. OVERVIEW OF LEGISLATIVE PROVISIONS 6. Broadly stated, s32 provides that the SAT: a. must act fairly; b. may inform itself on any matter as it sees fit; and c. may determine its own practices and procedures. 7. The obligation to act fairly arises in different ways and under several subsections, including: a. the obligation to apply the rules of natural justice: s32(1); b. the obligation to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities

and legal forms”: s32(2)(b)1; and c. the obligation to take measures that are reasonably practicable: i.

to ensure that parties “understand the nature of the assertions made in the proceeding and the legal implications of those assertions”: s32(6)(a);

ii.

to explain, if requested to do so, any aspect of the SAT’s procedure or any ruling or decision made by the SAT that relates to the proceeding: s32(6)(b); and

iii. to ensure that the parties have the opportunity to call or give evidence; examine, cross-examine or re-examine witnesses; and be heard or otherwise have their submissions considered.2 8. Similarly, the power of the SAT to inform itself on any matter as it sees fit arises in: a. Section 32(2)(a), which provides that the Evidence Act does not apply, and the SAT is not bound by the rules of evidence or any practices or procedures applicable to courts of record; b. Section 32(3), which provides that the SAT is entitled to admit into evidence the contents of any document, despite noncompliance with any time limit or other requirement specified in the rules; and c. Section 32(4), which provides that the SAT “may inform itself on any matter as it sees fit”.

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methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such do not bind, every attempt must be made to administer ‘substantial justice’.

GENERAL PROPOSITIONS Fairness 9. As can be seen from this very cursory overview, s32 intertwines the issue of evidence and the SAT’s powers in that regard, with provisions that go to questions of fairness and procedure.

13. To take an obvious example, it seems most unlikely that the power of the SAT to inform itself on any matter as it sees fit – s32(4) – would extend to informing itself by means of a private conversation with one of the parties to the exclusion of the other. For the SAT to so inform itself in such a manner would be a breach of the ‘hearing’ rule of natural justice and also, subject to certain matters not necessary to detail here, the ‘bias’ rule was well. As noted in Re JRL: Ex parte CJL (1986) CLR 432, 350-352:

10. The rules of evidence have developed over centuries, shaped principally by the role of the jury (and associated judicial concerns) and the adversarial system.3 11. While concerns as to jury gullibility have no place in the SAT regime, questions of fairness to each party in an adversarial system require that the SAT provides the parties with natural justice, including the power to examine and cross examine witnesses, and the ability to make submissions which will be heard or otherwise considered.

It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide.

12. As was noted by Evatt J in R v The War Pensions Entitlement Appeal Tribunal and another; ex parte Bott [1933] HCA 30; (1933) 228, 256: Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and illicit truth. No Tribunal can, without grave danger of injustice, sit then on one side and resort to KBE-Brief-November-2014-2-Print.pdf

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14. Notwithstanding s32(2)(a) and (4), that principle can properly be said to apply also to the SAT. 15. In short, when considering whether certain material should be admitted into evidence, the SAT must first consider whether it is fair to do so in light of the various obligations in s32.

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16. As noted below, in considering whether it is fair to do so, it may be that the SAT considers the rules of evidence, notwithstanding that it is 14/11/2014

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not bound by them. Relevance and cogency 17. In addition to the question of fairness, the SAT must also consider whether the material in question is relevant and cogent. 18. In Wignall and Commissioner of Police [2006] WASAT 206, Barker J referred to ss32(2)(a) and 32(4) and said, at [281]: … all this means that the Tribunal can properly regard the evidence adduced on behalf of the Commissioner in these proceedings, notwithstanding that some of it may be indirect or hearsay evidence or information that does not or would not fully satisfy the ‘opinion rule’ as it governs expert witnesses. The material the Tribunal has received is relevant and credible and so should properly be taken into account by the Tribunal. 19. It has also been said that s32(7) (a), which requires the SAT to ensure that “all relevant material is disclosed to the [SAT], so as to enable it to determine all of the relevant facts in issue in a proceeding”, supports the view that the SAT should not have regard to material that is not relevant: Sara Commisso and City of Gosnells [2005] WASAT 61, [33]. 20. Such an approach is consistent with other decisions concerning administrative decision makers subject to similar statutory provisions: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, is authority for the proposition that an


administrative decision maker is able to consider all “credible, relevant and significant information”, and in Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 , Brennan J (as he then was) stated at 492:

The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event, the occurrence of which would be relevant ... If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.

21. Pochi was cited with approval by Johnson J in Grover v Commissioner of Police [2005] WASC 263 in relation to an appeal from the SAT concerning decisions as to whether the appellant should be granted a crowd controller licence and a security officer’s licence (both of which have a ‘fit and proper person’ component to the test), in circumstances where there was evidence of outstanding charges (not convictions) of indecent and sexual dealings with children. In issue were both the alleged facts set out in the Statement of Material Facts, as well as the pending charges themselves. 22. As to the Statement of Material Facts, Her Honour said that the the evidence was admissible, but noted that the weight to be given to it was influenced by the fact that the charges were not proven, and “therefore the content of the charges cannot be taken as probative fact”: at [12]. As to the charges themselves, Johnson J stated that the conclusion as to whether the SAT is ‘satisfied’ of the relevant matter “must be based on material which, irrespective of whether it is admissible according to the rules of evidence, must be probative of the matter to be proved.” 23. In doing so, Johnson J distinguished between admissibility and weight, a distinction also made by Brennan J in the passage quoted above from Pochi – the weight to be given to evidence is a matter for the decision maker. The SAT not infrequently notes that it will admit material into

evidence, but give it limited weight. 24. In Mohamed and Department of Transport [2011] WASAT 76, the applicant challenged the admissibility of a complaint made against him that he, in his capacity as a taxi driver, had acted in an inappropriate, sexual manner towards a passenger. The complainant was not called to give evidence. The SAT said (at [44]) that, while it understood why that was so (it noted the passage of time – four years), the weight to be given to the complaint would depend upon “the manner in which it is made, the existence of any material supporting it, and how the other party deals with it.”4 25. In Sammut v AVM Holdings Pty Ltd [No. 2] [2012] WASC 27, Commissioner Sleight was concerned with an appeal from the SAT, which concerned the question of whether a provision of a lease had been breached. Letters from the relevant Council were relied upon as to the use of the premises. His Honour said (at [54] and [55]):

Given that the normal rules of evidence do not apply, the evidence of the conclusions reached by the officers of the City of Stirling is not necessarily excluded on the basis of opinion evidence. As no objection was made to the evidence …; and the failure of the appellants’ counsel to apply to cross-examine the authors … ; the only basis for arguing that an error occurred is the contention that the evidence of the statements and conclusions of the City of Stirling had no probative value. If the evidence had no probative value, it would be wrong to take it into account. It is difficult to see how the statements and conclusions of the City of Stirling could be given any probative value, as the full nature of the enquiries made by the City were not revealed in evidence and the author or authors of the letters tendered were not available to be questioned about the basis for the City’s statements and conclusions ...5

26. That is, his Honour appears to have reached the view that the material ought not to have been admitted at all, because it was not relevant and cogent, rather than admit it, but give it no or little weight.

The SAT will ‘have regard to’ the rules of evidence 27. Section 32(2)(a) provides that, while the SAT is not bound by the Evidence Act or the rules of evidence, it has the power to adopt the rules of evidence if it chooses to do so. 28. The SAT has made plain that where, it is appropriate to do so, it will adopt the rules of evidence: a. In The Owners of Rosneath Farm – Strata Plan 35452 and Clark [2007] WASAT 287, Senior Member Raymond stated, at [60]:

While the Tribunal is not bound by the rules of evidence, in matters relating to the construction of contracts and the like, those rules relating to the admissibility of evidence must be applied to ensure consistency in interpretation of documents, which must have the same meaning whether considered by a court bound [by] the rules of evidence, or by a body which is not so bound.

b. The SAT has also applied the parol evidence rule, but less than 12 months later came to the contrary conclusion. In Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125, the SAT insisted that the parol evidence rule must apply, excluding extrinsic evidence that might otherwise be relevant to the construction of a lease. But in Builders’ Registration Board of Western Australia and Danmar Homes Pty Ltd [2010] WASAT 28, [50], the SAT found that it was ‘obliged’ to consider extrinsic evidence in seeking to understand the contractual relationship in question. The earlier decision is not referred to in the latter decision, but the difference may lie in the disciplinary nature of the latter decision. 29. Where it is not necessary to adopt such rules, the SAT has made clear that it will, nonetheless, have regard to them. It may be that, in doing so, the SAT is doing no more than insisting that the proceedings must be fair, and any material received must be relevant and cogent. 30. In Medical Board of Australia and Woollard [2012] WASAT 209, the SAT was concerned with the 37


evidence of an expert as to whether Dr Woollard had acted “carelessly or incompetently in the conduct of the angioplasty”. The SAT, having quoted the passage above of Evatt J in Bott, stated, as a general proposition (at [88]) that:

least in its review jurisdiction: a. In Campbell v Port Phillip CC [1999] VCAT 128, the applicant for review submitted that the inquisitorial nature of the VCAT’s jurisdiction had the result that it (the VCAT) should consider obtaining its own evidence. The VCAT rejected that submission (at [31]), and noted (at [32]) that the “suggested inquisitorial function” of the Tribunal “was never enthusiastically embraced by the Tribunal itself”.

Although the Tribunal is not bound by the rules of evidence as they were developed over the course of centuries ‘to prevent error and illicit truth’, it is appropriate to have regard to them in considering evidence presented to the Tribunal.

31. It then went on to note (at [90]), specific to the context of expert evidence, that:

b. In Spano v Business Licensing Authority [2000] VCAT 2320, the VCAT said:

Although the Tribunal is not bound by the rules of evidence, in order for expert evidence to be of value and accepted by the Tribunal, primary facts sufficiently like the factual assumptions upon which the expert evidence is based must be found by the Tribunal.

32. The issue of expert evidence is addressed in more detail below. SOME SPECIFIC CONSIDERATIONS Nature of the Tribunal 33. There are several decisions of the SAT in its guardianship/ administration jurisdiction in which it has said, on the basis of various provisions of the SAT Act, including s32, that the SAT is an inquisitorial body: see, for example, LC and JS [2007] WASAT 127at [41] and EBF and DMW [2008] WASAT 236, [43]. 34. That decision appears consistent with the decision of the Victorian Court of Appeal in Bausch v Transport Accident Commission [1998] 4 VR 249, in which it was held that the obligation of the VCAT to reach the correct or preferable decision in cases of review meant that a failure to follow up an important issue may have the result that the VCAT commits an error of law. See also Minister for Immigration and Citizenship v SZIA (2009) 259 ALR 429, [25]. 35. While principally focused on the ‘fairness’ aspect of s32, such a conclusion invites significant evidentiary implications. In particular, it might be said that an inquisitorial body has an obligation to identify relevant material and require that material to be put before it. 36. In Victoria, such implications have been dismissed by the VCAT, at 38 | Brief December 2014

Although the Tribunal takes an inquisitorial role, that role is one of review, and it must to a large degree rely upon the evidence presented to it, if it is to operate efficiently and with some speed, whilst ensuring fairness to the parties.

37. However, the VCAT Act lacks a provision equivalent to s32(7)(a), which provides that the SAT must ‘ensure’ that all relevant material is disclosed to, “so as to enable it to determine all of the relevant facts in issue in a proceeding”. 38. In Building Corporation WA Pty Ltd T/As Giorgi Exclusive Homes and Cliff [2012] WASAT 207, Senior Member Raymond said that the Tribunal’s usual practice of requiring parties to file copies of all materials on which they intend to rely is “obviously intended” to meet the obligation under s32(7)(a). He went on to say that:

If it became apparent during the hearing that any material had to be disclosed to the Tribunal to enable it to arrive at a proper determination, it would have been incumbent on the Tribunal to make arrangements for that to occur.

39. Such an obligation is subject to the SAT’s overriding obligation to apply the rules of natural justice: Mohamed and Department of Transport [2011] WASAT 76, [35]. Burden or onus of proof 40. Whether there is a burden or onus of proof in the SAT will depend upon the relevant jurisdiction being exercised. 41. In disciplinary proceedings, where serious allegations of misconduct or incompetence are involved, it is accepted that the regulator bears

a burden of proof, on the balance of probabilities, as to whether the practitioner has breached the relevant standards of practice: see, for example, LPCC and Segler [2009] WASAT 204, [73]. 42. Similarly, given the nature of the jurisdiction, the complainant, under the Equal Opportunity Act 1984, bears the onus of proof: EDOO and Minister for Health [2010] WASAT 74, [53]. 43. In such matters, the SAT applies the Briginshaw test – the SAT must “feel an ‘actual persuasion’ of the occurrence or existence of a relevant fact in determining whether or not conduct of the kind alleged has been made out”. 44. By contrast, in review proceedings, where the hearing is ‘de novo’ the task of the Tribunal is to make the “correct and preferable” decision: s27(2). As such, no party bears any formal onus to prove any facts. However, where a party seeks to persuade the SAT that it should make a particular decision, that party bears a “practical onus” to so persuade. A failure to persuade the Tribunal in that regard will have the result that the SAT will not make the decision so desired: Pinesales Pty Ltd and Commissioner of State Revenue [2006] WASAT 202, [43][46]; Wignall and Commissioner of Police [2006] WASAT 206. Sworn v unsworn evidence 45. Historically, the SAT has often proceeded on the basis of evidence given (and cross examined), without the witness swearing or affirming to tell the truth. 46. That historical practice is reflected in the SAT’s Standard Orders and the Practice Notes, both of which are silent in this regard. 47. Certainly, in matters such as disciplinary proceedings, where professional reputations and the right to practise are in issue, there is a proper case for sworn evidence to be given. 48. Similarly, in some circumstances concerning the guardianship and administration jurisdiction of the SAT, particularly where the capacity of a person to make decisions that concern themselves is in contest, one might reasonably suggest that witnesses ought to be sworn. It was in that context that comments apparently critical of the SAT were made by EM Heenan J, in S v SAT [No. 2] [2012] WASC 306 at [168],


"It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide." [172] and [172]. Expert evidence 49. As noted above, Barker J in Wignall made clear that the SAT was entitled to receive and consider expert evidence in circumstances where such evidence would not be admissible in a court. 50. However, as also noted above, in Woollard, the SAT insisted that the factual basis underlying an expert’s opinion must be proven before such an opinion would be “of value [to] and accepted by” the SAT. 51. Notwithstanding the decision in Woollard, the SAT in Dempster and The Owners of The Brighton Strata Plan 37365 [2012] WASAT 159 admitted valuation evidence in circumstances where the facts upon which it was based were not proven. 52. The different approaches may be explained by the very different nature of each proceedings – contested disciplinary proceedings in the case of Woollard compared, to an unopposed application to alter the lot entitlements under the Strata Titles Act in the case of Dempster. 53. As to the independence of experts, the SAT has noted in Edwards and Valuer General [2014] WASAT 99, at [50] that, while an ongoing relationship between an expert and a party “may result in that expert’s evidence being excluded on discretionary grounds” in a court bound by the rules of evidence, in the SAT such a relationship “does not prevent the Tribunal from receiving and relying on that evidence, provided that the witness acknowledges the need for independence when giving evidence”, although such a relationship may affect the weight to be attributed to that evidence. 54. With respect, the lack of independence is not a ground on which courts have refused to admit expert evidence, but the SAT’s comment as to weight is soundly based: DGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33, most recently applied in WA in Swick Nominees Pty Ltd t/as Swick Drilling

Australia v Norncott Pty Ltd [No 3] [2013] WASC 173, 180. 55. Finally, in this regard, the SAT has found that, while expert evidence as to the proper legal construction of a statute is not strictly inadmissible due to the breadth of s32, little weight should be given to it. It was noted that it was the task of the SAT to interpret a statutory provision, a court order or document”, and that such a task could not be abdicated or delegated to an expert: LPCC and Papamihail [2009] WASAT 239, [14][15]. Jones v Dunkel 56. The rule in Jones v Dunkel (1959) 101 CLR 298, which provides that an adverse inference may be drawn from the failure to call a witness whose evidence might have been relevant to the matter in dispute, has been applied in the SAT. 57. In LPCC v Trowell [2009] WASAT 42, the SAT referred to s32 as a basis on which it said that it was prepared to accept an explanation as to why a particular witness was not called “without direct evidence in support”: at [69]. 58. In Bropho and City of Joondalup [2014] WASAT 13, [40]-[53] the applicant sought to challenge the admissibility of (and, in the alternative, the weight to be given to) an email sent by a Dr Orgeas, who was not called to give evidence. The SAT refused to draw an adverse inference because, it found, Ms Bropho had failed to raise a prima facie case against the version of events set out in the email. Rather curiously, the SAT also noted that Ms Bropho knew in advance that the City did not propose to call Dr Orgeas, and it was within her power to subpoena him: at [50]. Brown v Dunn 59. The rule in Brown v Dunn (1893) 6 R 67 (HL) has been described as an aspect of the principle that a trial must be conducted fairly: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219, 235 – 236.

60. Briefly stated, it requires that, where notice has not otherwise been given, a party must put to its opponent's witness in crossexamination the nature of the case upon which it is proposed to rely in contradiction of his or her evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR1, per Hunt J. 61. As such, the application of the rule might properly be said to fall within the SAT’s obligations in ss 32(1) and 32(6)(a). 62. However, the rule is “sensitive to the context of the litigation”: The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239, [1023], and the introductory words of Hunt J’s summary are all important – the rule only applies where notice of a party’s case has not otherwise been given. 63. The normal practice of the SAT, by which parties exchange, well in advance of any hearing, statements of lay and expert witnesses and their Statements of Facts, Issues and Contentions renders it unlikely that the rule in Brown v Dunn will be often applicable. 64. Notwithstanding all of the above, in LPCC and Segler [2009] WASAT 205, the SAT noted that the practitioner had failed to abide by the rule in Brown v Dunn, but said that it was not necessary to pursue the issue as the rules of evidence did not apply: at [72]. The failure of the LPCC to pursue the matter appears to have informed the SAT’s approach. 65. In Edoo and Minister for Health [2010] WASAT 74, the complainant both failed to submit to crossexamination and failed to crossexamine witnesses but, made submissions which were critical of their evidence. The SAT noted that the failure to cross-examine meant that the witnesses were deprived of an opportunity to answer Mr Edoo’s, criticisms which, had the rules of evidence applied, he 39


"No Tribunal can, without grave danger of injustice, sit then on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party." would have been obliged to put to them. Pursuant to its obligations of fairness, the SAT held that Mr Edoo’s evidence would be given little weight, and the evidence of the witnesses who were not cross examined was to be preferred: at [57]. Bunning v Cross 66. Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 is the key Australian authority as to the exclusion of evidence obtained illegally or improperly. 67. In Department for Consumer and Employment Protection and Chequecash Pty Ltd [2008] WASAT 168, the Respondent sought to have the SAT exclude such material on the basis of its obligation to act fairly. Having determined that a Court subject to the rules of evidence would not have excluded the material on the basis of Bunning v Cross, the SAT considered that the provisions of s32 supported the view that it should not do otherwise. It said (at [39]):

The provisions of the SAT Act dealing with evidence, most notably s32(2)(a), s32(2)(b), s32(3) and s32(4), evince an intention to permit the reception of a wide range of evidence, including that which would be regarded as inadmissible under the rules of evidence. Significantly, the provisions to which I have referred do not readily give rise to the exclusion of evidence which a court would have admitted.6

68. The decision appears to anticipate that there may be circumstances where improperly obtained evidence would be excluded by the SAT, notwithstanding that the rules of evidence do not apply. With respect, that conclusion must be correct – any decision in that regard must be determined upon a careful consideration of all the facts and circumstances. CONCLUSION 69. In short, the SAT’s apparent freedom to receive material free from the rules of evidence is, in fact, constrained by its obligations to ensure that its proceedings are

fair to the parties and to ensure that its decisions are soundly based. In seeking to meet those obligations, it will often be necessary to have regard to the rules of evidence, even if such rules are strictly applied only on rare occasions. NOTES

1.

In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115, the Court of Appeal found that the obligation to act fairly and according to the substantial merits of the case “does not in any way limit or confine the obligation of the Tribunal in s32(1) to act in accordance with the rules of natural justice”.

2.

In Australian Postal Commission v Hayes [1989] FCA 176, (1989) 87 ALR 283 at 289, Wilcox J accepted the submission that “the testing of opposing relevant material by cross examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply”. However, it should be noted that the right to cross examine is qualified – the SAT must only take measures that are “reasonably practicable”: Sammut v AVM Holdings [No.2] [2012] WASC 27, [48].

3.

See, for example, Gillies, P Law of Evidence in Australia (2nd ed), p.8-10.

4.

See also below as to the rule in Jones v Dunkel.

5.

See also Bropho and City of Joondalup [2014] WASAT 13.

6.

See also [42]. An appeal on another point was successful: Department Of Consumer And Employment Protection v Chequecash Pty Ltd [2009] WASC 18.

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case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Children – Order for supervision of father’s time with child set aside In Garraghan & Westerfield (No. 2) [2014] FamCAFC 96 (6 June 2014) Ryan J, exercising appellate jurisdiction, allowed the father’s appeal against an interim order for supervision of his time with his young child. The parties separated after the father assaulted the mother. For two years the child lived with the mother and spent time with the father, supervised by the maternal grandparents. When the father applied for parenting orders the mother stopped contact. In 2011 the father pleaded guilty to an assault on the mother, although no AVO was made and the mother’s concern for her safety was such that she offered to supervise the child’s time with the father at her parents’ home. She disputed that the paternal grandmother was a suitable supervisor, asserting that she had a poor relationship with the father’s parents (para 21). Judge Monahan had ordered that the father spend four hours with the child on Saturdays (supervised on alternate Saturdays by a contact service one week and an accredited supervisor retained by the father or by the paternal grandmother or mother or her nominee on the other week) and Wednesdays supervised by an agreed person or the mother or her parents. The father refused to spend time with the child at the maternal grandmother’s home on Wednesdays. Ryan J said at para14: … the father is seeking that supervision on the alternate Saturdays (which is supervised by the paternal grandmother) be allowed to occur at a place other than a defined public place (being a public play centre). The father wishes to be supervised with the child at home. [As] to Wednesdays, [he] is seeking time with the child to be supervised as agreed, or … by the paternal grandmother.” Ryan J said (paras 41-43): … The central challenge … is, how could the primary judge determine the nature of supervision without considering the nature of the risk and other matters referred to in the ground [of appeal]? It is common ground that his Honour did not evaluate the evidence concerning risk or determine what would be required from a

42 | Brief December 2014

supervisor. ( … ) … the effect of his Honour’s orders is that the paternal grandmother may supervise in some settings but not others. … by failing to evaluate the asserted risk, his Honour failed to have regard to a pivotal consideration.” The father further argued that His Honour’s discretion miscarried by ordering that his time take place in a defined public space or at the home of the maternal grandparents. Ryan J agreed, saying (para 46) that “[t]he importance of this issue … required that the primary judge expose his reasons for what would otherwise appear to be inconsistent orders”. Property – De facto relationship existed despite absences in the US by one party – Separation by email In Cadman & Hallett [2014] FamCAFC 142 (11 August 2014) the Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) dismissed an appeal by Mr Cadman (by his case guardian) against a decision of Rees J as to the duration of a de facto relationship between he and Mr Hallett, Mr Cadman alleging that the relationship ended in 2000 and Mr Hallett’s case being that it ended in 2010. From 2000 Mr Hallett travelled to the US often between 2000 and 2009 to facilitate his studies and exhibit art overseas. The Full Court (paras 26-28) found no error in Rees J’s finding that “many emails between the parties … demonstrated clearly [the parties’] commitment to each other and their shared life … notwithstanding the time that Mr Hallett spent in the United States” and holding, on the authorities, that an email from Mr Cadman to Mr Hallett in 2010 saying “[l]iving with me in Town N is not right or an option” signified his intention to end the relationship. Spousal maintenance – Interim order set aside – Wife $87,000 savings relevant – Court below erred by considering all the children’s expenses In Padnall [2014] FamCAFC 145 (14 August 2014) Strickland J, exercising appellate jurisdiction, allowed the husband’s appeal against an order of Simpson FM (as his Honour then was) that he pay the wife (who had three children in her care) interim spousal maintenance of $1,462 per week. The court below accepted the wife’s evidence that her $87,000 savings were to be set aside as a tertiary education fund

for the children (para 16). Strickland J said (para 36): … There is no dispute … that the intention was to use the money … to meet the costs of the children’s tertiary education, but that was when the parties were together. The circumstances have altered with the separation, and in the context of the wife seeking spousal maintenance … , alleging that she cannot support herself adequately, it is not open to the court to disregard these funds. ( … )” Strickland J discerned further error by the inclusion of all of the children’s expenses in fixing the amount of maintenance the wife needed despite a child support assessment being in place for the husband to pay $802 per week (a factor to be considered under s75(2)(na)) and (para 51), it being “necessary for the trial judge to carefully consider what (if any) costs of support of the children should be taken into account in assessing the needs of the wife”. Divorce – Australia not a clearly inappropriate forum despite unlikelihood of a divorce order being recognised in India In Jasmit [2014] FCCA 972 (12 June 2014) Judge Riethmuller heard a divorce application opposed by the wife who lived in India where the parties married and the wife returned after the parties had moved to Australia. The wife argued that Australia was a clearly inappropriate forum, that there were pending family law proceedings in India, that an Australian divorce would not be recognised in India (para 5) and that she did “not have the … means nor a valid visa to attend the court hearing in Australia” (para 11). Judge Riethmuller refused to grant a stay of the husband’s application, observing in particular (para 45) that “the remedy of divorce appears to be available to the husband only in Australia” and that “[a]s a resident of Australia he is entitled to the benefits and protections of Australian law” so that (para 46) in “the unusual circumstances of this case … Australia is not a clearly inappropriate forum … ” Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. www.thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol.


case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT

Tax

Constitutional law

Whether trustees required to set aside funds for tax where no liability to pay it

Whether local government by-laws offend freedom of political communication – whether laws contrary to Victorian Charter of Human Rights and Responsibilities Act In Kerrison v Melbourne City Council [2014] FCAFC 130 (3 October 2014) a Full Court concluded the local laws on which the respondent relied to serve notices to protesters in the ‘Occupy Melbourne’ protest in 2011 were not invalid for impermissibly burdening the implied freedom of communication and association recognised by the Constitution. The Court also concluded that the primary judge did not err in dismissing the proceeding as a representative proceeding. The proceeding was before the Federal Court as one involving a question arising under the Constitution for s39B of the Judiciary Act 1901 (Cth). Appeal dismissed. Migration Visas – cancellation on character grounds – review by AAT – limitation on ability to present evidence to AAT – whether a resumed hearing is a ‘hearing’ In Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123 (23 September 2014) a Full Court reviewed in detail the operation of s500 of the Migration Act and the limits it sets on the ability of the visa holder to present evidence at the Administrative Appeals Tribunal (AAT) hearing unless prior notice of it had been given – even evidence in answer to questions on cross-examination. The Full Court reviewed Goldie v MIMA [2001] FCA 1318 and concluded that the limits in s500(6H) and (6J) applied only to evidencein-chief and not to other evidence or submissions. The Court concluded allowing the appeal was not futile. Appeal allowed. Migration Visas – cancellation on character grounds – AAT findings In SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 (3 October 2014) a Full Court dismissed an appeal where it was contended the primary judge failed to accept errors in the AAT’s findings of fact and analysis of evidence.

In Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133 (8 October 2014) a Full Court concluded s254 of the Income Tax Assessment Act 1936 (Cth) was a collection provision and did not render a trustee liable to pay tax where no liability existed. It concluded the provision did not require the liquidators of a company holding proceeds of sale of its assets to set aside that part of the proceeds as represented a capital gain prior to an assessment of this tax. Appeal dismissed. Veterans’ affairs Special rate of pension – whether warcaused incapacity ‘alone’ caused inability to work – positive disincentives In Repatriation Commission v Richmond [2014] FCAFC 124 (26 September 2014) a Full Court reviewed the operation of s24(1) (c) of the Veteran’s Entitlement Act 1986 (Cth). The Full Court generally agreed with the decision of the primary judge save that it disagreed with the phrase referring to the war caused injury being the factor that “alone prevented from ... working ...” excluded reference to positive inducements preventing work and referred only to the negative ones. Worker’s compensation (Cth) Benefits – normal pre-injury earnings In Comcare v Nicolas [2014] FCAFC 122 (22 September 2014) a Full Court concluded the AAT had erred in its selection of the ‘relevant period’ as required by ss8(4) and (5) and s9 of the Safety Rehabilitation and Compensation Act 1988 (Cth) for calculating normal pre-injury earnings. The Full Court declined to allow Comcare to rely on official documents not referred to before the AAT and used its limited fact finding power to finally determine, rather than remit, the proceeding. HIGH COURT Constitutional law Implied freedom of political comment – whether implied freedom of personal association In Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35 (8 October 2014) s93X of the Crimes Act 1900 (NSW) made

it an offence for a person to habitually consort with convicted offenders after a warning by police not to do so. T and others commenced proceedings in the NSW Supreme Court seeking declarations that this provision was invalid for impermissibly burdening the implied freedom of communication on political and governmental matters implied into the Constitution as a limit on legislative power. The proceeding was removed into the High Court and questions stated for a Full Court. The majority of the Full Court concluded the provision was not invalid on this ground: Hayne J; Crennan, Kiefel, Bell JJ jointly; Gageler J; contra French CJ. The majority also concluded there was no implied freedom of association other than that recognised for communication on government matters and the provision was not invalid for contravening any implied freedom of association arising from recognition by the Commonwealth of the International Convention on Civil and Political Rights. Questions answered accordingly. Negligence Duty of care – economic loss – subsequent parties – whether builder of apartments owes duty to body corporate for latent defects in communal property In Brookfeld Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 (8 October 2014) the NSW Court of Appeal held that the builder of strata-titled serviced apartments owed a duty of care to the owners corporation (as the successor to the developer) to avoid that corporation suffering economic loss from latent defects in the common property which were structural, caused a danger to persons or rendered the apartments uninhabitable. All members of the High Court allowed an appeal and set this decision aside: French CJ; Hayne and Kiefel JJ; Crennan, Bell and Keane JJ; Gageler J. The High Court concluded that the sophisticated building contracts between the builder and the original developer contraindicated implication of duties of care on the builder to parties subsequent to the developer. Appeal allowed. Thomas Hurley is a Victorian barrister, phone (03) 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au

43


law council update

LAW COUNCIL FORWARDS DRAFT UNIFORM RULES TO COMMISSIONER The Law Council of Australia today forwarded to the Commissioner of the Uniform Legal Services Council, drafts of proposed Uniform Rules of Legal Practice, Professional Conduct and Continuing Professional Development approved by the Law Council, Law Institute of Victoria and Law Society of New South Wales. The Law Council President-elect and Chair of the Law Council’s Legal Profession Uniform Law Working Group, Mr Duncan McConnel, said the provision of the draft Uniform Rules to the Commissioner marked a significant step towards a unified legal profession in the two largest jurisdictions in Australia. “The legal profession itself has developed and arrived at these agreed rules independently and without outside intervention by other policy makers. “These rules represent the first occasion in which New South Wales and Victoria have come to an agreement about a single system for conducting solicitors legal practice, legal education and professional conduct in their two States. “It is a remarkable achievement, which reflects the enormous goodwill on all sides towards achieving the long held goal of a truly national Australian legal profession. “I would like to thank the members of the Working Group, particularly those members from the Law Institute of Victoria and the Law Society of New South Wales, who have worked so hard to achieve this outcome,” Mr McConnel said. The Law Council of Australia has a number of statutory responsibilities under the Uniform Law in New South Wales and Victoria, and is responsible for the provision of suggestions and comments to the Legal Services Council and Commissioner for Uniform Legal Services Regulation Uniform Rules and Guidelines. The Working Group will continue to work on draft rules for submission to the Council in the coming months. LAW COUNCIL SAYS INDIGENOUS IMPRISONMENT IS A NATIONAL CRISIS The Law Council of Australia’s Indigenous Legal Issues Committee and Indigenous Imprisonment Working Group today met to discuss the alarming Aboriginal and Torres Strait Islander imprisonment rates. Law Council of Australia President-elect,

44 | Brief December 2014

Mr Duncan McConnel, said Indigenous imprisonment rates have doubled since the time of the Royal Commission into Aboriginal Deaths in Custody. “Now, around 1 in 4 deaths in custody is Indigenous, up from 1 in 7 at the time of the 1991 Royal Commission into Aboriginal Deaths in Custody.” Mr McConnel said the release of the Productivity Commission Report on Overcoming Indigenous Disadvantage last week shows that while some improvement is being made in relation to employment, education and health, the rate of Indigenous imprisonment is growing at an alarming rate. “Indigenous youths are now locked-up at 24 times the rate of non-Indigenous youths and the incarceration rate for Indigenous women has increased by 74% since the year 2000. “This is a national crisis, requiring a national response and leadership from the Federal Government. “In August last year the Law Council welcomed the Federal Government’s commitment to developing a series of justice targets aimed at addressing disproportionately high imprisonment rates of Indigenous Australians as an important and positive commitment. “The recent announcement by Senator Scullion that the Federal Government is no longer considering justice targets in response to what can only be called a national emergency, is unexplained and unacceptable. “It appears to go against the Minister’s own advice on this issue. “The Government’s change of position comes in the wake of cuts to legal assistance services for Aboriginal and Torres Strait Islander peoples,” Mr McConnel said. In December last year, the Federal Government announced $13.4 million in cuts to Indigenous legal services and has now also refused to guarantee ongoing funding for Family Violence Prevention Legal Services, the only legal services dedicated to assisting Aboriginal victims of family violence – mostly women and children. “What we are now seeing is a reduction in legal aid funding for Aboriginal people, while legal need continues to increase year to year,” Mr McConnel said. This growing legal need was highlighted in the Law Council’s recent Federal Budget submission which referred to evidence

from the Director of the New South Wales Bureau of Crime Statistics and Research, Dr Don Weatherburn PSM, that Indigenous Australians are now nearly 18 times more likely to be imprisoned than other Australians. Dr Weatherburn attended the Law Council’s Indigenous Legal Issues Committee meeting today and said the high rates of imprisonment are detrimental to entire communities and have a far reaching economic impact, with Dr Weatherburn estimating it is costing Australian tax-payers more than $795 million per annum just to maintain the current level of Indigenous imprisonment. The Law Council believes Indigenous imprisonment rates are also being impacted by the expanded take-up of minimum mandatory sentencing regimes. “The Law Council has recently released a Mandatory Sentencing Policy and Discussion Paper to draw attention to effects of mandatory sentencing regimes. “The Law Council considers that mandatory sentencing potentially results in harsh and disproportionate sentences where the punishment may not fit the crime. “There are already many reported examples where mandatory sentencing has applied with apparently unjust results – such as a 15 year old Aboriginal boy receiving a 20 day mandatory sentence for stealing pencils and stationery. “The Law Council’s Mandatory Sentencing Policy and Discussion Paper are intended to call on Governments to explore alternatives to mandatory sentencing terms of imprisonment such as justice reinvestment strategies and diversionary non-custodial options. “Evidence suggests such programs can be more effective in reducing crime, improving rehabilitation outcomes for offenders and providing pathways to training and employment outside prison. “These programs have the potential to deliver long term, sustainable outcomes for the community and are consistent with Australia’s commitment to the rule of law. “The Law Council is calling on the Federal, State and Territory Governments to place Indigenous imprisonment on the agenda of the Council of Australian Governments and to develop a sustainable and achievable strategy for lowering the rate of Aboriginal and Torres Strait Islander imprisonment,” Mr McConnel concluded.


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45


announcements & classifieds

Professional Announcements Career moves and changes in your profession

Lemonis/Tantiprasut Lawyers

Graham & Associates

Lemonis/Tantiprasut Lawyers are pleased to announced that April Habershon has joined the firm from 4 November 2014.

Graham & Associates are delighted to announce the appointment of Elisha Rose as a Senior Associate. Elisha is a building and construction law specialist, and brings years of experience to her new role. Elisha was previously the Managing Lawyer in the Perth office of a national firm.

The firm has also moved to Ground floor, 1138 Hay Street, West Perth WA 6005. Contact numbers remain the same.

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46 | Brief December 2014

Classifieds


new members

New Members New members joining the Society ASSOCIATE MEMBERSHIP Mr Scott Bache Mr Gabriel Baker Miss Eloise Barker Mrs Rebecca Bassett-Scarfe Ms Diana Chang Mr Michael Cherry Mr Daniel Collins Miss Monica Gajic Ms Kate Godhard Mr Alan Gomes Mr Richard Graham Mrs Jane Ann Gray Mr Mark Grime Mr Jason Hitch Ms Cassandre Hubert Mrs Caroline Jury Mr Terence Kwong Ms Hong-Viet Nguyen Mr Mark Pistilli Mr Mukesh Rajalingam Mr Lance Sacks Mr Daniel Simmons Mr Alexander Sorgese Mrs Julia Spice Ms Katherine Stevens Ms Judith Strong Miss Xi Bing Su Mr Deniz Tas

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events calendar

Events Calendar Date

Event

Location

Type

Wednesday, 4 February

Society Club

TBA

M

Wednesday, 11 February

Law Society in association with the Australian Labour Law Association “At the Coalface: Reflections On Practitioner Conduct In Industrial Disputes”

The Law Society of Western Australia

CPD

Thursday, 12 February

Practical Tax Update for Non Tax Lawyers

The Law Society of Western Australia

CPD

Friday, 13 February

Oppression and Just and Equitable Winding Up

The Law Society of Western Australia

CPD

Friday, 13 February

Ethics on Friday

The Law Society of Western Australia

CPD

Tuesday, 17 February

Unconscious Gender Bias: A Seminar for Female Lawyers, Positive Steps to Overcome This in the Workplace

The Law Society of Western Australia

CPD

Tuesday, 17 February

Unprofessional Conduct - Wills and EPA; Digital Technology Issues; Intellectual Property Issues; Family Trusts and the Family Court

The Law Society of Western Australia

CPD

Wednesday, 18 February

Unconscious Bias: A Seminar for Partners and Directors, How Unconscious Bias Can Adversely Affect Your Decisions and Why You Should Overcome Them

The Law Society of Western Australia

CPD

Wednesday, 18 February

Salary Negotiation: Achieving the Best Results Through Planning and Preparation for the Performance Review and Negotiation Process

The Law Society of Western Australia

CPD

Wednesday, 18 February

YLC: The Role of the Expert and Expert Evidence

The Law Society of Western Australia

CPD

Friday, 20 February

Law Summer School 2015

University of WA Club

CPD

Monday, 23 February

e-Conveyancing Forum (Perth)

The Law Society of Western Australia

CPD

Thursday, 26 March

Social Media: Do you Know Enough About the New World Order?

The Law Society of Western Australia

CPD

Friday, 27 February

Director's Duties: How to Discharge

The Law Society of Western Australia

CPD

Friday, 27 February

YLC Ethics on Friday: Ethics for Young Lawyers

The Law Society of Western Australia

CPD

Tuesday, 3 March

Briefing Barristers: Getting it Right

The Law Society of Western Australia

CPD

Wednesday, 4 March

Costs: An Intensive Focus on the Law of Costs

The Law Society of Western Australia

CPD

Wednesday, 4 March

Defamation: An Introdcution and Hypotheticals Approach

The Law Society of Western Australia

CPD

Wednesday, 4 March

e-Conveyancing Forum (Fremantle)

Fremantle Sailing Club

CPD

Thursday, 5 March

Traps and Pitfalls of Solicitors Professional Indemnity Insurance and Letters of Waiver

The Law Society of Western Australia

CPD

Thursday, 5 March

Mental Health Matters: Panel Discussion

The Law Society of Western Australia

CPD

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8600 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8600 48 | Brief December 2014


BMW

YOUR EXCLUSIVE MEMBER BENEFITS START AT AUTO CLASSIC AND WESTCOAST BMW.

Sales Finance Service Parts

As a member of the Law Society WA, you could be eligible to enjoy the many rewards of BMW Advantage, a member benefit programme that gives you the opportunity to get behind the wheel of the Ultimate Driving Machine. The exclusive ownership benefits include complimentary BMW Service Inclusive for up to 5 years/80,000kms and corporate pricing,* to name but a few. To find out how you could start a rewarding journey with BMW Advantage, visit bmw.com.au/advantage or contact Auto Classic and Westcoast BMW today.

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0409 803 586. autoclassic.com.au LMCT 2271

Westcoast BMW Cnr Luisini Road and Hartman Drive, Wangara. Ph 9303 5888. A/H 0420 985 013. westcoastbmw.com.au LMCT 2271

*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, and can be viewed at bmw.com.au/advantage.


08-146 | Hudson Global Resources (Aust) Pty Limited ABN 21 002 888 762

MAkiNG youR cAse ARouNd AustRALiA ANd tHe GLoBe to experience the challenges and exposure for a satisfying career in law, you need a legal recruiter at the top of their game. you need Hudson Legal. We offer an expansive portfolio of public sector, private practice and in-house roles both locally and internationally. Backed by over twenty years of success, Hudson Legal has the industry insight and global coverage to deliver you career-defining opportunities. And our people know law. our specialist consultants leverage years of expertise to understand your situation and find the perfect-fit role for you every time.

Au . H u d s o N .c o M / LeGALj o B s

workpLACe reLATionS

ConSTruCTion & proJeCTS

Special Counsel

Junior Lawyer

Superb benefits package with flexible working conditions on offer at this national firm. Unique opportunity for a senior lawyer with IR and ER experience to join large, established, two-Partner team. ref: BX/43271

Outstanding salary on offer for a construction lawyer with 1–3 years’ PAE at this leading Perth boutique firm. Highly regarded Partners seeking top-tier candidates. Client-facing role. ref: 6B/15262

Associate/Lawyer

project Lawyer

Premier international firm. Fantastic opportunity for lawyer with 4–5 years’ PAE to work directly with Partner. Litigation focus, with OH&S experience required. ref: BX/43220

Global firm. Driven, front-end projects lawyer with 2–4 years’ PAE sought for high-performing team. Act for blue-chip owners in the construction, resources and infrastructure industries. ref: BX/42754

Senior Associate

Construction Disputes Lawyer

Large, full service firm. Well-respected workplace relations team seeking experienced lawyer. ER, IR and OH&S matters. Disputes focus. Assist in supervising junior lawyers. ref: BX/41841

Premier, international firm seeking construction litigation lawyer with 4–7 years’ experience. Enjoy direct and open communication with the personalities on this friendly and established team. ref: BX/43159

properTy & enVironmenT

LiTigATion

environment Lawyer

insurance Claims Lawyer

Highly respected, market leading team seeking environment and planning lawyer with 3–6 years’ PAE. Top-tier firm. Work closely with projects, property and resources teams. ref: BX/43433

National insurance boutique firm in growth phase. Outstanding defendant insurance lawyer with 3–6 years’ experience sought. Experience in general insurance claims, professional indemnity, D&O and OH&S claims required. ref: BX/43105

Junior Lawyer Competent property lawyer with 2–3 years’ PAE sought for US boutique firm with strong collegiate culture. Enjoy direct exposure to Partner and guaranteed career progression on this small but growing team. ref: 6B/15225

Senior Lawyer Premier Australian firm seeking Senior Associate to support new, lateralhire Partner. Broad range of project development, strata titles, acquisitions and disposals, and commercial leasing matters. ref: BX/43198

Commercial Litigation Lawyer National boutique firm seeking commercial litigation lawyer with 3–6 years’ PAE. Insolvency experience beneficial but not necessary. Top-tier experience required. Superb benefits package on offer. ref: BX/41768

Junior Litigation Lawyer Perth-based litigation boutique firm. Superb matters and client base in the energy & resources industry. 1–3 years’ PAE required from a top-tier firm. Dynamic firm with active and social culture. ref: BX/40820

The above roles are just a few examples of the many current opportunities Hudson Legal can assist you with. For further information, please contact Aoife Stapleton on 08 9323 0200 or email your CV to aoife.stapleton@hudson.com.

Brief December 2014  
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