Volume 41 | Number 1 | February 2014
THE LAW OF
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Volume 41 | Number 1 | February 2014
Take me with you.
President’s Report Konrad de Kerloy
Launch of the Western Australian Law Reports Database The Honourable Wayne Martin AC
Editorial Rebecca J Lee, Editor, Brief Journal
Executive Director’s Report
Be a judge for the 2014 Mock Trial Competition
An Interview with Alastair Hope Pat Saraceni
Smith v Fields: The future of ‘special skill’
Senior Counsel appointments
Elizabeth Heenan LCA Award
Meeting of the Minds
Thomas Hurley Case Notes
Using Restorative Justice and Therapeutic Jurisprudence in Courts: A Case Study
Law Council Update
Michael S King
FEATURE The law of human dignity Giorgio Resta
Community Sector Lawyers Fund-less
Lisa Young and Liz Wreck
Family Law Case Notes
An Interview with Professor Paul Fairall
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PRESIDENT Konrad de Kerloy SENIOR VICE PRESIDENT Matthew Keogh
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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
President's Report Konrad de Kerloy, President, The Law Society of Western Australia The Law Society’s slogan is 'The voice of the legal profession in Western Australia'. Since being elected as President of the Law Society I have been contemplating the context in which that voice is to be expressed. For it is the context which not only modulates the voice’s vigour and volume but also indicates the issues in respect of which it should sound. Western Australia has been described in the media as the nation's economic powerhouse. Knowledgeable forecasters expect that it will remain so for at least the next decade. I would argue that three factors have contributed to that position. The State’s mineral, energy and agricultural resources, the entrepreneurship of its people and the rule of law. I was reminded of the last point at a Christmas function by an acquaintance who had spent a number of years in senior executive positions in Argentina and, after returning to Australia, had served on boards of a number of Australian listed companies and government instrumentalities. She commented that at the beginning of the last century, the wealth of the populations of Australia and Argentina were broadly similar. Today the wealth of the Australian population vastly exceeded that of its Argentine counterpart. Without prompting she put the difference down to “the rule of law in Australia” compared with the endemic corruption which she had encountered in Argentina. The observation caused me to do a little research as to its accuracy. By the early 20th century, both countries ranked in the top 10 in terms of income per capita. In 1900, Australia had a GDP of $15,014m or $4,013 on a per capita basis, whereas Argentina’s GDP was $12,932m or $2,756 on a per capita basis. However, by 2005, Australia’s GDP had risen to $479,008m or $24,045 on a per capita basis, whereas Argentina’s GDP was $350,612m or $9,013 on a per capita basis.1 02 | Brief February 2014
Could this very significant divergence have been due to the breakdown of the rule of law in Argentina, as my acquaintance had claimed? The history of Argentina lends credence to that claim. Following the establishment of the constitutional framework of the country in 1853, constitutional governments in Argentina succeeded one another without interruption for 77 years. In 1930, this continuity was interrupted by a military coup which marked the beginning of a long period of political instability (53 years) marked by frequent coups d’état. The de facto governments alternated in power with the elected ones, who ruled under the pressure exerted by the military. In his article, “Australia – Argentina: Convergences and Divergences”, Nestor E. Stancanelli observed: Not surprisingly, the instability that followed the 1930 constitutional breakdown had an impact on the institutional organisation, particularly on the design and implementation of policies, civil liberties, civic behaviour, the role of the state, the degree of professionalism and stability in civil service and the country’s integration into the international community. The rule of law not only “protects peace, order and progress” as Sir Gerard Brennan, writing extra judicially2, observed, it promotes them. It is, “the basic underpinning of a free society”3 and, I would argue, an economically prosperous one. Advocacy by the Society for the maintenance of the rule of law is not, and should never be seen as, some form of convenient excuse or specious reason for putting money into the pockets of the legal profession or the featherbedding of the judiciary. Rather, the Society’s advocacy aims to ensure that the law continues to be defined and applied by an independent, impartial and competent judiciary, assisted by an educated and ethical legal profession for the economic and social well-being of Western Australia and its people. It is within that context that the Society
has been advocating and continues to advocate on issues which are essential to the maintenance of the rule of law. I turn to some of those issues. PROPER RESOURCING OF THE JUDICIARY Western Australia is not only an economic powerhouse, it leads the way on population growth. The expansion of economic activity and population in the State continues to place pressure on the judiciary in relation to the timely delivery of criminal, social and civil justice. The expansion increases the complexity of contemporary society, which in turn is reflected in the complexity of the law. Each contributes to an ever-increasing judicial workload. Timely delivery of justice is essential not only to social harmony, but also to economic advancement as well. Unless potential investors have confidence that disputes can be fairly, competently and efficiently resolved by the prevailing legal system, they may be deterred from investing in this State. There is an undoubted, albeit not readily quantifiable, economic benefit to the State in ensuring that the courts are properly resourced and peopled by a sufficient number of competent judges. The Law Society recognises the State’s current financial constraints and its advocacy for proper judicial resources is not divorced from an acknowledgement of that limitation. Although the courts in this State have an enviable record for efficiency, they continue to be subject to the pressures mentioned above. It is vital that they be provided with the human, technological and materiel resources necessary to continue that record of efficiency. LEGISLATIVE REFORM It is also essential that the legislative and regulatory framework within which judges and lawyers operate permits each to undertake their functions as efficiently as justice permits. Just, quick and cheap resolution of issues cannot be achieved without such a framework.
An example of a statute in need of reform is the Supreme Court Act 1935 which is, frankly, an archaic embarrassment. Should the Supreme Court still be a court of “oyer and terminer” with its equitable jurisdiction being defined by reference to what “the Lord Chancellor of England could or lawfully might have done within the realm of England in the exercise of the jurisdiction to him belonging” in 1861? (see s16). The Society actively advocates for legislative reforms which promote efficiency and reductions in the cost of justice. This is not only of benefit to its members but also to the public they serve. NATIONAL PROFESSION LAW REFORM The regulation of the legal profession in Australia remains complex and variable, with up to 55 different regulators across the country. As a result, different practices apply in different jurisdictions, including, for example, costs disclosure and billing, admissions and practicing certificates and complaints handling and professional discipline, creating regulatory burdens for law practices and inconsistent consumer protection. In February 2009 the Council of Australian Governments decided to initiate a project for the reform of legal profession regulation to address disparate State and Territory regulation. From the outset, the position of the Western Australian Government was that, instead of Commonwealth legislation or a State template scheme, each State should enact the substantive reforms agreed to by the jurisdictions. After a long debate between States and Territories and their local professional bodies, agreement could not be reached in relation to a uniform regulatory model. Except for New South Wales and Victoria, the other States and Territories adopted or have now taken a position similar to that of Western Australia. The Governments of New South Wales and Victoria continued to work towards a uniform scheme and in December 2013 they announced that an intergovernmental agreement had been reached between them. Legislation was introduced into the Victorian Parliament on 10 December 2013. The Bill, entitled Legal Profession Uniform Law Application Bill consists of 561 pages. The Law Society has established an ad-hoc committee to analyse the Bill and its implications for the legal profession in Western Australia. I intend to report to members on its work
during the course of the year. It is possible that the Bill will be a catalyst for the reform of the Western Australian Legal Profession Act. There is certainly much to be said about the merits of a uniform regulatory framework across all States and Territories. The Government has established a committee under the chairmanship of the Solicitor-General, which has been awaiting the introduction of the Bill, before commencing its review of our own Act. The Society is represented on that committee and intends to actively advocate for reforms which will address the disparity between regulatory systems and ease the burden on and cost of regulation to the profession. SUPREME COURT LIBRARY A competent judiciary and an educated legal profession is highly dependent upon the research materials which are available to them. The availability of such materials is also essential to stave off claims by external competitors (however spurious) that the local legal profession is incapable of undertaking complex litigation. The Supreme Court Library is a place which has provided ready access to the standard legal sources as well as some material of this kind which is not available in the other large law libraries, e.g. that of The University of Western Australia. It is also the only place where valuable databases such as PLEAS, which provide a key to unreported Western Australian cases, are maintained. In a submission to the Society on the future of the Library, Winthrop Professor Handford observed: But despite the importance of contemporary materials such as these, for me the most valuable assets in the Supreme Court Library are the older materials such as the collection of journals and textbooks from past years. Because of the length of time that the Library has been in existence, its collection of older journals and textbooks is unrivalled in Western Australia. Quite simply, some of the research I have been able to carry out in the last few years, in particular research with a historical emphasis, would have been quite impossible without access to the Supreme Court Library. Readers of this journal will be aware of the Government’s plans to amalgamate the Supreme Court Library with the Library of the Department of the Attorney General (see, for example, the article by the State Solicitor, December 2013, Brief Journal, page 18) and generally to rationalise library facilities and services which are paid for by the State. The
Society has supported the plans on the provisos that: (a) the amalgamated library will continue to be a first tier research library (necessarily with appropriate state of the art technology) which maintains appropriate data bases and retains the accumulated collection journals and textbooks; (b) the judiciary and the legal profession will have appropriate access to the amalgamated library; and, (c) appropriate library facilities will also be available to litigants in person. As the State Solicitor has indicated in his article, the Society is represented on a project co-ordination committee whose objective is “to ensure the State has the best legal library services it can reasonably be expected to have (without increasing the overall financial burden of the State and the profession in providing that service) accessible to all those who need it, according to their reasonable needs”. Given that the rationalisation of the two major libraries should reduce the overall cost burden of the amalgamated library, the Society believes that the stated objective are capable of being achieved even within the State’s current financial constraints and will advocate accordingly. LAW SUMMER SCHOOL 2014 I look forward to seeing many of you at this year’s Law Summer School. The programme is exceptional and the co-chairs, Dr Christopher Kendall and The Hon Justice James Edelman, and their organising committee are to be congratulated. IMMEDIATE PAST PRESIDENT On behalf of the Society I would like to express our sincere thanks to Craig Slater for his service as President during 2013. Later in the year there is a dinner in honour of the Immediate Past President and I will report to members more fully then on Craig’s contribution and achievements. MEMBER FEEDBACK I welcome any comments which members may have on any issues of concern to them. I may be contacted on my email: firstname.lastname@example.org or via our LinkedIn group. NOTES
Nestor E. Stancanelli “Australia – Argentina: Convergences and Divergences” (2006), available at: http://www.cei.gov.ar/userfiles/parte4beng.pdf "The Selection of Judges for Commonwealth Courts” Papers on Parliament No. 48 January 2008 Ibid.
A New Year, A Dignified Start Rebecca J Lee, Barrister, Francis Burt Chambers, Editor, Brief Journal Welcome to the first issue of Brief for 2014. I hope that, like me, you made time to refresh both mind and body over the holiday season, and you are feeling positive about the challenges and successes that lie ahead. As always, we will be here every month to help guide you through those challenges, and squarely in the direction of success. With any luck, there will be a few laughs along the way as well. A DIGNIFIED RESPONSE I'm particularly excited about our first cover story of the year, by Italian professor of comparative private law, Giorgio Resta. I had the great pleasure of both meeting and hearing him speak at last year's Australian Bar Association Conference in Rome. However, even without this personal connection, his analysis of the law of human dignity should make fascinating reading for all our members. A deep-rooted moral, philosophical and religious concept, dignity is now also a fundamental legal tenet central to countless documents, including the Universal Declaration of Human Rights. Yet, as Professor Resta demonstrates, defining it, and applying it in law, is rarely straightforward. When does the state's role in protecting citizens' dignity interfere with their personal autonomy, which is itself central to that dignity? How can an individual's dignity be preserved if by so doing that of others is impinged? Is it even possible, in a pluralistic and multicultural society, to have a fixed view of human dignity? This stimulating article is in your hands thanks to the international cross-fertilisation of ideas made possible by lawyers around the world meeting and sharing developments in their respective legal spheres. It will be interesting to see how the concepts presented in it may be applied and developed here in Australia. WHICH WAY FORWARD? While the legal milieu sometimes seems to excel at Jarndyce and Jarndyce-style stagnation, change is, of course, constant. This month we look at how the legal interpretation 04 | Brief February 2014
of two complex notions is shifting. Firstly, eyebrows were raised by the interpretation of 'consequential loss' in the recent Regional Power Corporation v Pacific Hydro case, as commercial realities won out over a rigid application of legal precedents. Watch this space, because a notice of appeal was filed on 20 November 2013. The second is what our learned contributors describe as a ‘judicial revolt’ against the principle of 'special skill' in divorce cases, which invites “invidious comparisons of different spheres of endeavour within marriage.” This piece questions the assumption of equal contribution when assets are modest, but unequal contribution when they are large, and suggests gender bias may be at play. Another way in which legal convention is being challenged is the growth of restorative justice and therapeutic jurisprudence. Using a case in which he presided as a compelling example, his Honour Magistrate Michael King argues that these non-adversarial approaches to justice can benefit all parties concerned. The soft-versus-tough-on-crime debate will likely never be resolved, but Magistrate King makes a strong case for compassion enhancing the conventional court process, and lawyer-client interaction, in certain circumstances. ALL CHANGE, PLEASE It's a new year, with new realities – though not all change is for the better, as the Law Council argued in its response to the Federal Government's announcement that $43.1 million would be cut from legal assistance services over the next 4 years. Gemma Mitchell, of Western Australia's Solicitor Consumer Credit Legal Service, outlines the impact of these cuts on bodies such as the Environmental Defender's Office and Legal Aid Commissions, and questions the economic wisdom behind them given “community legal centres have a cost benefit ratio of 1:18”. In happier news, the Western Australian Law Reports Database was launched late last year, providing not only the legal community, but also the general public,
with instantaneous access to reports published between 1899 and 1959. We offer a transcript of the launch speech by the Hon Chief Justice Wayne Martin AC, who outlined the role of this free, searchable resource in delivering justice for all. Meanwhile, Curtin University is preparing to welcome their second intake of law students, one short year after opening the state's fifth law school. Foundation Law Dean Professor Paul Fairall shares his insights on these pioneering times at Curtin, and addresses issues such as student stress, and the need for graduates to have practical experience. Speaking of which, 761 young West Australians duked it out in the legal lab that is the Inter-School Mock Trial Competition in 2013. ATO prosecutor Chris Townsend's enthusiastic report on this thriving program suggests that the future of our profession is very bright indeed – as long as members of our community continue to volunteer their time and expertise in 2014 and beyond. Finally, we say hello to the Law Society's 2014 Council, led by Herbert Smith Freehills' Konrad de Kerloy, and farewell to Alastair Hope, who recently retired as our first State Coroner. Before he headed into the studio to begin a second career as an artist, Mr Hope reflected on his 17 years in the role, during which time he developed a working knowledge of everything from aircraft fuel systems to medical procedures. He departs, advocating a greater role for the Coroner's Court in public health and safety, a call well worth considering. Brief wishes him well.
Brief welcomes your thoughts and feedback. Send all letters to the editor to email@example.com
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This top tier ﬁrm has a strong national presence and a well established construction practice in Perth. Servicing a varied and growing national and international client base, an exciting opportunity has become available for an experienced Solicitor to join the team.
Your role will focus on a mix of contractual and property disputes, insolvency and some broader commercial litigation matters. Working closely with the Partner, you be responsible for managing your own ﬁles. To be considered for this development opportunity, you’ll currently be an Associate with strong, demonstrated expertise in Commercial Litigation. Client focused and results driven, you’ll be ready to move forward in your career. In return you’ll work in a well resourced ﬁrm and will be rewarded with a warm, professional environment, competitive package and career progression.
Working with an impressive client base, you’ll work on major construction, engineering and infrastructure projects. While the team has expertise in both front and back end matters, your role will predominantly be centred on dispute resolution, whilst simultaneously applying your skills to noteworthy construction advisory work. To be considered you’ll have at least four years PAE in a similar role and will have the drive to expand your skills and develop professionally in this ﬁrm. Contact Amy Borthwick at firstname.lastname@example.org or 08 9254 4598.
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Supporting a dynamic team including a Partner, a Senior Solicitor and a small team of Lawyers you’ll engage in a wide range of duties within this vibrant and innovative role. You’ll provide support and deliver high quality work whilst meeting deadlines and prioritising your daily workload. You’ll be responsible for diary management and planning as well as monthly billing in this crucial role. Your superior technical ability will be essential in providing efficient secretarial support. This exhilarating role will allow you to contribute towards this ﬁrm’s ongoing success. This is a varied role and you’ll require at least four years experience in a similar role. You’ll demonstrate an excellent technical ability with a 65wpm typing speed and intermediate knowledge of MS PowerPoint, Excel and Outlook. This ﬁrm implements a strong team focus and a vibrant positive attitude will be imperative. On offer is a generous salary package in a diverse role with a friendly working environment.
In this engaging and varied role you’ll support a Partner and practice area leader as well as their team of ﬁve in this key practice area. Your duties will include, but not be limited to complex billing, drafting and completing matter credentials, document management as responding to correspondence. To ensure your success you’ll be efficient, hardworking, professional and approachable. Your ability to learn and implement new ways of working as well as your attention to detail will be imperative. A minimum of four years of solid secretarial experience is essential and previous experience in a large ﬁrm is preferred. As a fast and accurate typist your word speed would be at least 65wpm with 98% accuracy. In return you’ll work in an enviable environment with ongoing support and development as well an attractive salary package. Contact Lennie Waller at firstname.lastname@example.org or 08 9322 5383.
Contact Lennie Waller at email@example.com or 08 9322 5383.
Executive Director's Report David Price, Executive Director, The Law Society of Western Australia Happy New Year, and welcome to a fresh new look Brief for 2014. The Society is looking forward to another busy year and has been planning and developing a range of new initiatives focused on growing engagement and value for you and the organisations in which you work or lead. Some of the initiatives you can look forward to this year include: •
An online version of Brief which will be available as a PDF and specifically tablet friendly
Continued advancements to the Society’s eLearning portal
Increased engagement across the Society’s Social Media networks, promoting information sharing, discussion and member engagement.
STRATEGIC PLAN INFORMATION Following the 2013 member survey, planning is underway for our new strategic plan. For more information on the survey results, a summary is available on page 22. Thank you again to all members who took the time to share their views and assist with determining priorities for the Society. WELCOME TO THE 2014 COUNCIL The Law Society is pleased to welcome the 2014 Council. For a full introduction to this year’s Council members please turn to page 8. LAW WEEK Law Week is held each year and it offers the Western Australian community an opportunity to discover more about the
law and the legal system. Some of the events on offer over the past years have included free legal advice, information seminars for the profession and the public, tours of courts and awards. Law Week 2014 will be held between 12 and 16 May with the theme 'Law and Justice in Your Community'. If your law practice or organisation is interested in being involved in Law Week 2014, please contact Dominique Hansen via email firstname.lastname@example.org or on 9324 8609 before 10 March 2014. DIARY UPDATES If you haven’t already ordered your 2014 Diary and Directory, then it’s time to secure yours today. This publication is a must for all lawyers, as it contains a host of useful information of relevance to the legal profession. The comprehensive directory component features information on metropolitan and country law practices, courts, tribunals and other related organisations and agencies. The diary also includes a handy facility to record your CPD learning information. Download an order form at lawsocietywa.asn.au to ensure you don’t miss out. LEGAL PRACTICE BOARD ELECTIONS The Legal Practice Board of Western Australia (Board) will conduct its annual election of six members to the Board. If you are interested in seeking election, you must supply written notice of your intention, countersigned by at least one practitioner entitled to vote. This must be lodged with the secretary no less than 28 days before
the date of election, which will be held on 4 March 2014. For more information, please contact Tony Mylotte at the offices of the Board on 6211 3600. AUSTRALIA DAY HONOURS Congratulations to the following 2014 Australia Day Honours recipients. The Hon Michael Murray QC AM, was made a Member of the Order of Australia for his significant service to the judiciary, to law reform and education and to the community. Mr Murray is a Past President and Life Member of the Society. Her Hon Mary Ann Yeats AM, also received a Member of the Order of Australia for her significant service to the law, particularly indigenous justice. Rory Argyle OAM, received a Medal of the Order of Australia. A Past President and Life Member of the Society, Mr Argyle received his OAM for his service to the community and to the law. 2014 SALARY SURVEY The Law Society of Western Australia, through its Law Office Management Committee, is taking the opportunity to update its database in the lead up to commissioning the Annual Salary Survey for legal practices in Western Australia. If you are a Managing Partner/Principal or HR Manager and would like to participate in this online survey, please email your details to email@example.com by Friday, 21 February 2014. Details on how to complete the survey will be sent to you in late February 2014.
legalsuper welcomes Sue-Ellen Soulie as its new WA client service manager. The Law Society of Western Australia enjoys a close relationship with legalsuper and is grateful for their support. CPD Programme sponsor since 2009. 06 | Brief February 2014
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2014 COUNCIL Please make welcome your 2014 Council. EXECUTIVE
Konrad de Kerloy President
Matthew Keogh Senior Vice President
Partner, Herbert Smith Freehills Council Term Expires: 12/2014
Senior Associate, Herbert Smith Freehills Council Term Expires: 12/2014
Elizabeth Needham Vice President
Alain Musikanth Treasurer
Barrister, Francis Burt Chambers Council Term Expires: 12/2014
Barrister, Francis Burt Chambers Council Term Expires: 12/2014
Brendan Ashdown Ordinary Member
Marie Botsis Ordinary Member
Barrister, John Toohey Chambers Council Term Expires: 12/2015
Senior Associate, DLA Piper Council Term Expires: 12/2015
Hayley Cormann Ordinary Member
Brahma Dharmananda SC Ordinary Member
Senior Associate, Clayton Utz Council Term Expires: 12/2015
Barrister, Francis Burt Chambers Council Term Expires: 12/2015
Nathan Ebbs Ordinary Member
Adam Ebell Ordinary Member
Principal, Bennett + Co Council Term Expires: 12/2015
State Prosecutor, Office of the Director of Public Prosecutions Council Term Expires: 12/2015
08 | Brief February 2014
MEET THE 2014 COUNCIL
Pamela Hass Ordinary Member
Nicholas van Hattem Ordinary Member
Principal Legal Counsel, Department of State Development Council Term Expires: 12/2014
Solicitor, State Solicitor's Office Council Term Expires: 12/2014
Greg McIntyre SC Ordinary Member
Denis McLeod Ordinary Member
Barrister, John Toohey Chambers Council Term Expires: 12/2014
Managing Partner, McLeods Council Term Expires: 12/2015
Clinton Russell Ordinary Member
Cameron Syme Country Member
Barrister, Francis Burt Chambers Council Term Expires: 12/2014
Director, Latro Lawyers Council Term Expires: 12/2015
Emma Cavanagh Junior Member
Hayley Ellison Junior Member
Solicitor, HopgoodGanim Council Term Expires: 12/2014
Solicitor, Culshaw Miller Council Term Expires:12/2015
Rosie Hill Junior Member Solicitor, State Solicitor's Office Council Term Expires: 12/2014
Craig Slater Immediate Past President Barrister, Francis Burt Chambers Council Term Expires: 12/2014 09
Consequential Loss Peerless Holdings approach not followed in Western Australia Mark Darian-Smith King & Wood Mallesons In Regional Power Corporation v Pacific Hydro Group Two Pty Ltd,*1 the Honourable Justice Kenneth Martin declined to follow the approach to the construction of the words 'consequential loss' adopted by the Victorian Court of Appeal in Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd2 (Peerless Holdings). The judgment of Nettle JA in Peerless Holdings, in which the traditional approach to damages set out in the two limb test in Hadley v Baxendale3 was rejected in favour of a test built around the concept of the 'normal measure of damages', was generally expected to be a touchstone for judicial consideration and application around Australia. The Peerless Holdings approach had been followed in New South Wales in Allianz v Waterbrook,4 and in South Australia.5 It has also been considered, but distinguished on the facts, in Western Australia.6 The judgment of Martin J in Regional Power Corporation raised squarely the considerations for the Court in construing “consequential loss” in the context of a complex long term contract in circumstances where the court considered that a particular rigid legal framework of analysis may not be appropriate. FACTS Relief was sought by the plaintiff, Regional Power Corporation (RPC), for a breach of contract under the terms of a Power Purchase Agreement (PPA) entered into between SECWA and Pacific Hydro in 1994. By the PPA, Pacific Hydro agreed to construct the Ord Hydro Power Station (Power Station) and afterwards supply electricity from the Power Station to SECWA. The PPA was subsequently novated to the defendants and RPC thereafter sat in the place of SECWA (and was plaintiff in these proceedings). In 2006, a flooding incident occurred at the Power Station, which resulted in the Power Station being inoperative for two months. RPC was required by the contractual arrangement to generate an alternative power supply for the two month period, which it did through Kununurra Power Station. Economic expenses were incurred
10 | Brief February 2014
by RPC comprising the following heads of damages: a)
$1,293,394 (excluding GST) for the delivering, commissioning and hiring of diesel generators to generate the replacement electricity at Kununurra Power Station;
$113,389 (excluding GST) for the travel, airfares and wages of the operators and employees required for the establishment of the Kununurra Power Station;
$19,318 (excluding GST) for the accommodation and meal costs of employees whom Horizon Power was required to fly to the Kununurra Power Station to operate the power station;
$6,443 (excluding GST) for the hire of cranes to mobilise and demobilise the Kununurra Power Station; and
$2,727,287 (excluding GST) for the diesel fuel to run the extra generators required to produce the requisite electricity from the Kununurra Power Station for the relevant period.7
The defendants rejected RPC’s claim for damages for breach of the PPA (including the sums referred to at (a) – (e) above). For present purposes the relevant issue for determination concerned whether the heads of damages claimed by RPC were recoverable in light of exclusion clause 26.1 of the PPA. Clause 26.1 reads as follows: Neither the Project Entity nor SECWA shall be liable to the other party in contract, tort, warranty, strict liability, or any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages or loss of profits.8 The defendants argued that the words ‘indirect’ and ‘consequential’ provided them with a shield against RPC’s damages claims. COMPETING APPROACHES TO CONSTRUCTION The court considered the different approaches to the construction of clauses seeking to limit or exclude consequential loss or consequential damages. The parties agreed that the correct approach to interpreting exclusion or limitation clauses had been settled by the High Court in
Darlington Futures Ltd v Delco Australia Pty Ltd9; consequently cl 26.1 PPA was to be construed “according to its natural and ordinary meaning, read in the light of the contract as a whole.”10 RPC contended that the court should apply the law concerning clauses limiting liability for consequential loss as it stood in 1994 (when the PPA was entered into). RPC argued that the correct approach arose from the English line of cases typified by the Croudace decision,11 which, in turns, draws upon the second limb of the test in Hadley v Baxendale to determine what can properly constitute consequential loss for the purposes of an exclusion clause. RPC further argued that when the parties entered into the PPA in 1994, reasonable parties would have foreseen that the heads of damages claimed would be likely to arise upon a breach of the PPA in circumstances where the defendants failed to supply power at the agreed level. RPC argued that the loss suffered by it arose in the ordinary course of the PPA relationship and accordingly the first limb of the test in Hadley v Baxendale was engaged (such that cl 26.1 PPA could not be invoked by the defendants). The defendants argued (and the court agreed with them on this point) that RPC was wrong in its contention that the court should apply the law as it stood in 1994. Instead, the defendants argued that the court should apply the approach adopted by Nettle JA of the Victorian Court of Appeal in Peerless Holdings, in which case ordinary reasonable parties would have viewed RPC’s outlays in obtaining replacement electricity as falling outside the range of any ‘normal measures of damages’. The defendants argued that the normal measure of damages in the circumstances being considered should be calculated by looking at the loss of profits on on-sales of electricity which RPC could not make because of the supply breach. On the defendants’ argument, it followed that the heads of damages sought by RPC were properly characterised as ‘indirect’ or ‘consequential’ loss and recovery was barred by cl 26.1 PPA. After making some contextual observations based on how cl 26.1 PPA operated within
CONSEQUENTIAL LOSS Failure by the defendants to supply and deliver the promised levels of energy to SECWA is not simply a case of SECWA suffering some bare potential loss of profit, by not receiving the promised electricity and thereby not being able to on-sell at profit to customers … The failure by the defendants’ to supply SECWA with anticipated levels of electricity rendered SECWA in a position of being unable to meet wider public energy supply obligations to Kimberley consumers.16
the PPA, the Hon Justice Martin turned to a consideration of the competing approaches to construction in the Croudace line of cases and the Peerless Holdings approach (itself adopted from the analysis set out in McGregor on Damages).12 His Honour referred to and adopted as ‘compelling’ the observations of Professor JW Carter in a 2009 article in Journal of Contract Law,13 in which Carter had rejected as artificial and unhelpful the rigid application of either the Croudace view or the McGregor view, because they approached consequential loss “from particular legal perspectives rather than a commercial perspective which will vary from case to case”.14
On my assessment, SECWA suffered direct loss by its exposures to well appreciated replacement (energy) requirement obligations, faced in the circumstances of the defendants’ supply failure breach.17
ANALYSIS OF CL 26.1 PPA Adopting the ‘commercial perspective’ based on the facts before him, his Honour looked at a range of clauses in the PPA, identifying factors affecting the long term relationship between parties which would objectively inform the appreciation which they would have had as to ‘future potentialities’ back in 1994. The court made findings in this regard as follows: Here, the sophisticated commercial PPA entities, assessed objectively, surely can be taken to have likely appreciated that if the defendants’ hydro-electric power station failed to operate as promised, thereby not generating a supply of electricity to SECWA sufficient to enable it to meet its own supply requirements to Kimberley customers, that fall back or replacement steps by SECWA to secure some level of replacement energy for its customers, would follow... There was a well understood requirement by the parties to the PPA for SECWA to continue to supply its Kimberley customers with electricity.15
His Honour then concluded that RPC’s expenditures for hired diesel generators, diesel fuel, labour to operate the generators and ancillary expenses were properly treated as direct losses. His Honour went further to conclude that, when assessed in the context of the particular long term supply relationship established under the PPA arrangements for the supply of an essential commodity in the Kimberley region, the RPC had no discretion and was effectively required to undertake the expenditures. CONCLUSION The court found that the heads of damages claimed were direct losses and that the defendants could not invoke the protection of cl 26.1 of the PPA. The case is particularly interesting because the trial judge grounded his reasoning in the particular commercial context of the PPA rather than seeking to analyse the case using either the Hadley v Baxendale or Peerless Holdings legal framework. Justice Martin summarised his approach as follows:
Construing cl 26.1 within the PPA as a whole, the court should not be artificially fettered towards assessing the character of an economic loss by the rather vague criteria of whether or not the loss arose ‘in the ordinary course of things’. Nor should the court be orientated from the start towards trying to determine if a claims loss falls under the equally porous concept of a ‘normal measure of damage'.18 With respect, the court’s analysis of loss in Regional Power Corporation is a most sensible approach in the context of the complex long term commercial contract in this case and more appropriately takes into account the true commercial context of the PPA than the competing legal perspectives under consideration. It will be interesting to see whether the approach will be followed in other Australian courts. NOTES
14. 15. 16. 17.
Editor's Note: A notice of appeal was filed in this matter on 20 November 2013. Regional Power Corporation v Pacific Hydro Group Two Pty Ltd [No 2]  WASC 356. Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358. Hadley v Baxendale (1854) 9 Exch 341 ; (1854) 156 ER 145. Allianz v Waterbrook  NSWCA 224  – . Alstom v Yokogawa Australia (No 7)  SASC 49 . Valentine Falls Estate Pty Ltd v SMEC Australia Pty Ltd  WASC 319 (affirmed in SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd  WASCA 138. Above, n1 . Above, n1 . Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500. Above, n9 at page 510. Croudace Construction Ltd v Carwoods Concrete Products Ltd  2 Lloyds Reports 55 (CA). McGregor H, McGregor on Damages (17th ed, 2003). Carter J.W “Exclusion of Liability for Consequential Loss” (2009) 25 Journal of Contract Law 118. Above, n13 at page 133. Above, n1 at . Above, n1 at . Above, n1 at .
Above, n1 at .
1. 2. 3. 4. 5. 6.
7. 8. 9. 10. 11. 12. 13.
Articled Clerks’ Training Program Did you know that your Law Graduates can still undertake Articled Clerkships?
Since January 2011, Leo Cussen Centre for Law has run the Articled Clerks’’ Traiini ning nin ng Pro rog gram in WA. WA Le WA Leo Cussen Centre for Law is the only provider authorised by the Legal Practice Board to run the Articled Cler erks ks’’ Tra rainin ng Program in WA. Our program is unique and specifically tailored to provide the finest training in practical legal skills to equip Articled Clerks for practice. Articled Clerks enjoy the benefits of face-to-face workshop style training, delivered by prominent Western Australian lawyers. The program is competitively priced and all assessment takes place during topic delivery, with no exams. Bookings are currently open for our 2014 programs. To reserve a place and for more information visit: www.leocussen.vic.edu.au/wa_articles P (03) 9602 3111 | E firstname.lastname@example.org
LCA AWARD / SENIOR COUNSEL APPOINTMENTS
Law Council President’s Medal
Congratulations to Mrs Elizabeth Heenan on receiving the 2013 Law Council President’s Medal.
Elizabeth Heenan LCA Award From left: Fiona McLeod SC; Elizabeth Heenan and Caroline Kirton SC.
Congratulations to Mrs Elizabeth Heenan on receiving the 2013 Law Council President’s Medal. A past President of the Law Society, Elizabeth is highly respected amongst her peers. She was admitted to practice in 1976 and is a trusted mentor and advocate within the legal profession. Law Council president Michael Colbran QC said “Elizabeth has made an extraordinary contribution to the Law Council as a member of the Equalising Opportunities in the Law Committee and as a member of the National Elder Law and Succession Law Committee. Elizabeth was also a Director of the Law Council in 2003.
Elizabeth’s work and dedication is unparalleled in her advocacy for the support and retention of women in the legal profession.” Mr Colbran went on to say, “After starting a family and experiencing first-hand how inflexible the working practices were at the time for lawyers, she sought and obtained eight weeks recreation leave per year, instead of the usual four. This in turn, paved the way for many other employees to follow her path and have the courage to seek similar conditions of employment. When this is viewed in its historical context, having occurred over 30 years ago, it can validly be seen as a significant achievement.”
The Law Council President’s Medal is an honour bestowed on an Australian lawyer whom the Law Council believes has provided outstanding service to the legal profession.
Congratulations to Western Australia’s latest Senior Counsel appointments In December 2013, the Hon Wayne Martin AC, Chief Justice of Western Australia announced the latest Senior Counsel appointments. The Society would like to congratulate Karen Farley SC, Katrina Banks-Smith SC, Marcus Solomon SC, John Vaughan SC and Linda Petrusa SC.
12 | Brief February 2014
A Committee advises the Chief Justice on applications for appointment. This year, there were 15 applications for Senior Counsel. The Committee, chaired by the Chief Justice, comprises of the President of the Court of Appeal, the Senior Judge of the Supreme Court, the President of the State Administrative Tribunal,
the Senior Judge of the Federal Court resident in Perth, the Chief Judge of the Family Court and the Chief Judge of the District Court.
The Society’s Executive met with the following organisations and dignitaries during 2013:
The Society’s Executive met with Paul Evans, State Solicitor and Cheryl Gwilliam, Director-General of Department of Attorney General on 16 September 2013. From left: Konrad de Kerloy; Cheryl Gwilliam; Paul Evans; and Craig Slater.
The Society’s Executive met with Michael Lundberg and Tony Joyner (CLAP Representatives) and Anna Liscia and Sabrina Schlink (LPBWA representatives) on 1 November 2013. From left: Elizabeth Needham; Michael Lundberg; Tony Joyner; Anna Liscia; Konrad de Kerloy; Sabina Schlink and Matthew Keogh.
The Society’s Executive met with the Hon Michael Mischin, Attorney General and Cheryl Gwilliam, Director-General of Department of Attorney General on 12 November 2013. From left: Matthew Keogh; Cheryl Gwilliam; Damien Creedon; Konrad de Kerloy; the Hon Michael Mischin; and Craig Slater.
Other Meetings of the Minds The Society’s Executive met with the Deputy Chief Magistrate on 8 August 2013. In attendance: Elizabeth Woods, Deputy Chief Magistrate and Michael Johnson, Director of Magistrates Courts and Tribunals. The Society’s Executive met with ASIC on 27 August 2013. In attendance: John Price, Commissioner, and Bruce Dodd, Regional Commissioner WA and Senior Executive Leader of Emerging Mining and Resources team. The Society’s Executive met with the Hon Helen Morton MLC, Minister for Mental Health and Child Protection on 20 November 2013. From left: Kristen Newman; the Hon Helen Morton MLC and and Craig Slater.
The Society’s Executive met with Grant Donaldson SC, Solicitor General on 26 September 2013.
Using Restorative Justice and Therapeutic Jurisprudence in Courts: A Case Study Michael S King* Magistrate, Magistrates Court of Western Australia A hallmark of court practice over the past 20 years has been the increasing influence and use of alternative modes of addressing legal problems. Alternative dispute resolution has been a fertile ground in the development of alternative processes, with mediation becoming an integral part of how many courts approach legal problems. However, other approaches, such as restorative justice and therapeutic jurisprudence, are also increasingly used by courts and the legal profession.1 ADR, therapeutic jurisprudence and restorative justice form part of a wider development that has been called ‘nonadversarial justice’ or the comprehensive law movement. 2 This article uses a case study to illustrate how restorative justice and therapeutic jurisprudence enhanced conventional court processes. A principal feature of restorative justice is the use of processes to deal with the outcome of wrongful conduct by promoting healing for the parties and the community. Its prime tool is facilitated meetings where parties discuss what happened in relation to wrongful conduct, why it happened, the effect on the parties and what must be done to make things right.3 These meetings provide the opportunity for the parties to give and gain more information about the matter, to express their feelings, to apologise and forgive (if possible), to receive recompense and to move along the path to healing. While there are opposing views as to whether restorative justice promotes decreased offender recidivism4 and further research is needed to ascertain how restorative justice can promote reduced offender recidivism, other considerations support the use of the process. Research has found high levels of satisfaction for victims and offenders participating in restorative justice meetings.5 Victim offender mediation commonly used by Western Australian courts is one form of restorative justice. Indeed, under the Sentencing Act 1995, s 27, a court can order a victim offender mediation report to assist in the sentencing process. Restorative justice also informs Aboriginal sentencing courts such as circle sentencing in New South Wales and Koori 14 | Brief February 2014
Courts in Victoria. It also informs the justice system’s approach to offending by young people, particularly in its use of juvenile justice teams.
two charges of dangerous driving causing death. At that time the Magistrates Court had jurisdiction to deal with such charges in appropriate cases.
Therapeutic jurisprudence is concerned with the healing power of the law, legal processes and legal actors such as lawyers, judicial officers and other justice system professionals. The fundamental principle underlying therapeutic jurisprudence is that the law, legal processes and legal actors can affect the wellbeing of those affected by them, including parties, victims, witnesses and the legal actors themselves.6 A lack of wellbeing is often intimately connected with a legal problem, whether criminal, civil or family. Resolution of issues to do with wellbeing may be needed to resolve the legal problem or to prevent its recurrence. Drawing on findings from the behavioural sciences, therapeutic jurisprudence suggests how legal processes can be used to promote wellbeing or minimise negative effects on wellbeing. Solution-focused courts such as drug courts, family violence courts, mental health courts and some court diversion programs commonly apply its principles. Therapeutic jurisprudence is a part of the national curriculum for judicial education in Australia.7
The facts were not in dispute. The young man was driving his vehicle along a country highway. He was driving at 110 km/h, the speed limit for that stretch of the road. There were no buildings, obstacles or pedestrians in the vicinity. The young man had several passengers of similar age in the vehicle. The vehicle came within mobile telephone range and the young man’s mobile telephone emitted a sound indicating he had a message. He reached for the telephone. When he did so, the vehicle moved on to the shoulder of the road. A passenger alerted him as to what had happened. He tried to correct the situation but overcompensated. The vehicle rolled over and came to a stop off the road. Two of the passengers died as a result of the accident.
Therapeutic jurisprudence also provides techniques lawyers can use to improve their interaction with their clients and their advocacy processes.8 It has usefully highlighted the importance of interpersonal skills for judging and legal practice.9 Although this article is concerned with a criminal case, therapeutic jurisprudence is applicable to family, civil and other areas of the law. A case that I dealt with while I was a country magistrate in the last few years provides a graphic illustration of the principles of therapeutic jurisprudence and restorative justice. It also illustrates the great emotions associated with some cases and the need for courts and lawyers to sensitively manage those emotions. A young man came before me in the Magistrates Court sitting in a remote region in Western Australia. He had no prior criminal record. He was charged with
The young man pleaded guilty to the charges at an early stage and both prosecution and defence asked that I deal with the matter. I ordered a presentence report and a victim offender mediation report and adjourned the case for sentencing. The matter came back before me some weeks later with both reports having been supplied. The victim offender mediation report indicated that the young man had participated in face-to-face mediation with one of the deceased men’s family. The other family had not wished to participate in mediation but the young man had visited that family. He had expressed his deep remorse and sorrow to them and had offered to stand in their deceased loved one’s shoes to perform the cultural duties that their son would have performed. This was significant as both the young man and the young men who died were Aboriginal. During the mediation with the other family, the young man gave an apology to them. He heard from the family as to how deeply the death had affected them and of the emotions and enormous sense of loss they had felt. Some of the family members told him that he could respect their departed loved one by not throwing his life away and
RESTORATIVE JUSTICE by leading a constructive life himself. The young man’s antecedents and prospects were positive. Given that he had no criminal record, it was understandable that there were no underlying issues such as substance abuse that he needed to address. He had some significant sporting ability and had hopes of playing in a national competition at a senior level. He potentially had a bright future ahead of him. At the sentencing hearing, some family members of the victim were in the court while others witnessed the proceedings by video link from the country town in which they lived. The facts were read to the court and a plea in mitigation was delivered by counsel for the young man. There was a good deal of emotion in the court. There were few who did not have moist eyes. This court was dealing with a tragedy for all involved in the case. In sentencing, I began by using a procedure used by some District Court judges in Queensland in such cases.10 I turned and addressed the family members of the victims from the bench directly. I acknowledged their terrible loss. I said that nothing that I could say or do in court could compensate for their loss. I referred to my duty to sentence according to law. This technique can be considered a therapeutic jurisprudence inspired process that is mindful of the effect of cases and court processes on parties such as victims and that tries to some degree to include them in the process. The use of victim offender mediation and court video links allowing family members to witness court proceedings has a similar motivation. I then addressed my sentencing remarks to the young man. I do not propose to reproduce those remarks here. Amongst other things, I referred to the responsibility the young man had to those in his vehicle and other road users to drive with due skill and attention; the tragic loss arising from his failure to perform this duty; his early plea of guilty and obvious and deeply felt
remorse; his antecedents and prospects; and his engagement in the victim offender mediation process. Both prosecution and defence had submitted that a fine was the appropriate penalty. I agreed and imposed a substantial fine and a significant period of disqualification of the young man’s driver’s licence. Towards the end of my sentencing remarks, I told the young man that he had made a terrible mistake. But having experienced the penalty that the court would impose on him on behalf of the community he was entitled to move on with his life. This is what the family of one of the victims had wanted. Too often courts see the effect of traumatic events in promoting dysfunctional lives. It is to be hoped that the guilt the young man felt for his actions did not lead in that direction. While court processes cannot and should not replace counselling and other support services, in appropriate cases, judicial processes can be used to encourage people to move towards better lives. Again, this is an application of therapeutic jurisprudence. Neither therapeutic jurisprudence nor restorative justice should be seen as incompatible with the court system, albeit some advocates of restorative justice think it is the preferable alternative to the adversarial system. Our court system can make use of both modalities to enhance its response to offending and its aftermath. This case illustrates how both victim offender mediation – a modality of restorative justice – and therapeutic jurisprudence techniques can be used to augment the adversarial process. Here these processes allowed victim families and the offender to be more directly involved in the justice process, to share information about what happened during and as a result of the traffic crash, to express their feelings about the matter and to more fully inform the court to assist in the sentencing process. The court endeavoured to use processes sensitive to the needs of the parties while upholding its
duty to administer justice according to law. Certainly the degree to which restorative justice and therapeutic jurisprudence techniques can be used will vary from case to case, but given their potential benefits, judicial officers and lawyers should consider their potential use where appropriate. This case demonstrated the use of some therapeutic jurisprudence techniques. Others are discussed in the literature.11 They deserve further exploration by judicial officers and by the legal profession. NOTES
Magistrate, Magistrates Court of Western Australia at Armadale.
Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (Federation Press, 2009).
Susan Daicoff, “Law as a Healing Profession: The Comprehensive Law Movement” (2006) 6 Pepperdine Dispute Resolution Law Journal 1; King et al, above n 1.
King, et al, above n 1, ch 3;
Compare: Don Weatherburn and Megan Macadam, “A Review of Restorative Justice Responses to Offending” (2013) 1 Evidence Base, http://journal.anzsog.edu.au/publications/4/ EvidenceBase2013Issue1.pdf; with Lawrence Sherman and Heather Strang, “Restorative Justice as Evidence-Based Sentencing” in J Petersilia and KR Reitz (eds), The Oxford Handbook of Sentencing and Corrections, (Oxford University Press, 2012).
King et al, above n 1, 59-60.
David B Wexler, “Therapeutic Jurisprudence: An Overview” (2000) 17 Thomas M Cooley Law Review 125, available at: http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=256658; King et al, above n 1, ch 2.
Christpher Roper, “A Curriculum for Professional Development for Australian Judicial Officers” (National Judicial College of Australia, 2007), http:// njca.com.au/wp-content/uploads/2013/07/NationalCurriculum.pdf.
David B Wexler (ed), Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal law Practice (Carolina Academic Press, 2008).
Michael S King, “Realising the Potential of Judging” (2011) 37 Monash University Law Review 171.
Ian Dearden, ‘Therapeutic Jurisprudence and the District Court’, paper delivered to the NonAdversarial Justice: Implications for the Legal System and Society conference, Melbourne, 4-7 May 2010, http://www.aija.org.au/NAJ%202010/Papers/ Dearden%20I.pdf; R v Kohler  QDC 502.
A bibliography on therapeutic jurisprudence is available at http://www.therapeuticjurisprudence.org.
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16 | Brief February 2014
THE LAW OF
HUMAN DIGNITY Giorgio Resta*
It is not easy to provide a comparative introduction to the law of human dignity in a few pages. Therefore, I will not delve into the details of the notion of dignity, which has captured the attention of numerous philosophers and legal theorists.1 Rather, I will try to isolate and contrast competing conceptions of dignity, which seem to be reflected in the solutions adopted by national and international courts.2 This paper will focus on three major issues: a) the ‘juridification’ of dignity; b) the different functions of dignity as a fundamental right; c) the conflict between dignity and liberty. It is no accident that the title assigned to this talk is ‘the law of human dignity’, and not ‘the idea of human dignity’. Whereas dignity has been perceived, for a long time, as an eminently moral, philosophical or religious notion, it has acquired nowadays the status of a binding legal norm, being sometimes referred to as the cornerstone of the edifice of human rights, or ‘the foundational right underpinning all other rights’.3 The duty to respect the dignity of every individual is solemnly stated by numerous international declarations,4 covenants,5 charters6 and by various national constitutions.7 Even in domestic legal settings in which dignity is not written in the statutes, the courts have increasingly referred to this principle when resolving disputes. For instance, the French Constitutional Council, the Conseil Constitutionnel (CC), relying on the Preamble of the 1946 Constitution, stated in 1994 that the protection of dignity against all forms of degradation is a ‘principle of constitutional value’ (principe à valeur constitutionnelle).8 In the United States, the notion of dignity, although it does not appear even once in the Federal Constitution, has long remained on the margins of constitutional adjudication. However, in the last two decades, it has been increasingly referred to by the Supreme Court in a significant series of cases, from Planned Parenthood v Casey to Lawrence v Texas and Roper v Simmons.9 In short, dignity has undergone an impressive process of ‘juridification‘, having gradually lost the role of a moral precept to acquire that of a binding legal norm.10 However, such a rich and dense intellectual tradition – few Western ideas are as ‘culturally embedded’ as the idea of dignity11 - has not been dispersed, but continues to influence the
THE LAW OF HUMAN DIGNITY substance of this principle. Throwing a glance at the history of ideas, three main roots of the modern perspective on dignity must be distinguished from one another:12 a) the Roman notion of dignitas, as a manifestation of majesty and moral qualities, a sign of high social or political status, therefore a feature of the few, namely those in high office; b) the religious (Judeo-Christian) idea of man’s inherent dignity, grounded on the assumption of man as imago dei, hence postulating the fundamental equality of every individual in dignity, regardless of social and economic conditions; c) the Enlightenment and, in particular, the Kantian emphasis on the linkage between dignity and autonomy, dignity being conceived as the expression of the individual’s ability to form a reasoned thought and set his/her own ends. Each of these perspectives has left enduring marks on the legal conceptualisation of dignity. The Roman idea of dignitas is behind the widespread notion of dignity of function, which was for a long time the main perspective on dignity. It is in this sense that the notion was employed in the Federalist Papers13 and in the earlier decisions of the US Supreme Court (such as Chisholm v Georgia, dealing with the dignity of the state as a source of sovereign immunity).14 Today, various Codes of Conduct refer to the ‘dignity of a profession’ as a source of duties, rather than rights. The theological assumption of man’s inherent dignity and the Kantian secular perspective on autonomy have also proved extremely influential, in particular in post-war constitutions. It can be safely assumed that they still shape the characters of constitutional adjudication in many Western legal systems.15 There is no doubt that dignity has acquired an important role within the ambit of legal rights. However, to define its actual meaning is not an easy task. According to Christopher McCrudden, its original inclusion in the Preamble of the United Nations Charter and in the Universal Declaration of Human Rights was also made possible thanks to the indeterminacy and vagueness of the concept of dignity. “Everyone could agree that human dignity was central, but not why or how”.16 According to some scholars, such characters of vagueness and indeterminacy are still a distinctive feature of the notion of dignity, which tends either to result in a “useless concept”17 or to be employed as a “knock-down argument",18 a magic formula apt to circumvent any rational argumentation, by making appeal to the pathos of dignity. Although this concern might occasionally prove well-founded, in particular in the field of bioethics19, the picture is not always so grim. Fifty 18 | Brief February 2014
Right: Pelizza da Volpedo, The Fourth Estate, 1901.
years of judicial confrontation with dignity have not passed in vain. By looking at national and international case law on human dignity, some clear guidelines may be inferred. There seems to be wide consensus on the fact that dignity, at its core, implies the respect and recognition of the intrinsic worth possessed by any individual, merely by being human. However, this minimum content is flexible enough to give rise to different results in concrete cases, depending on the particular conception of dignity adopted in a specific legal system. The notion of dignity, in other words, is at the same time universal, relying on a shared value of humanity, and context-specific, deriving its meaning from the cultural and institutional frame in which it is embedded. In order to build a taxonomy of the scholarly and judicial uses of dignity, a useful example is offered by Germany.20 Here, more than in another country, the notion of dignity has captured the attention of legal scholars, giving rise to a sophisticated jurisprudence of dignity. As Ulla Wessels put it, “human dignity is (like sauerkraut) not exclusively German, but a German speciality”.21 The dignity guarantee is enshrined in art 1 s 1, of the Basic Law, the Grundgesetz (GG), which states: “The dignity of man is inviolable. To respect and protect it shall be the duty of all public authority” (art 1 of the EU Charter of Fundamental Rights is textually modelled on this provision). Dignity can be regarded as the pinnacle of the value system of the GG, as is also confirmed by the fact that, according to art 79, art 1 is one the few provisions covered by the so-called ‘eternity guarantee’, being absolutely immune to abrogation. In order to clarify its scope of protection, three main functions should be distinguished:22 a) dignity as a negative right (Abwehrfunktion); b) dignity as the source of a state’s duty to protect (Schutzpflichtfunktion); c) dignity as the source of a state’s duty to provide social benefits (Leistungsfunktion). Such a taxonomy can be particularly useful for a comparative inquiry, because different legal systems will tend to put the emphasis on one or more ‘functions’ and disregard the others, depending on the general value-choices and the institutional features of the system. It is not possible here to explore the comparative aspects in depth; I will simply provide an essential schema for further analyses. The most widespread ‘conception’ of dignity is the one based on the liberal tradition of negative liberties. Under this perspective, dignity “embodies a non-interference norm”, according to which the government is obliged to abstain from acts that deny the inherent
worth of the individual or interfere with personal autonomy.23 This is the ‘duty to respect’, solemnly stated by art 1 of the German GG a duty that is directly implied by the famous ‘object-formula’, developed in perfect Kantian style by the renowned constitutional scholar Günter Dürig and adopted by the German Constitutional Court.24 According to this formula, “individuals are not to be treated merely as objects of the will of others.” When is such a duty violated? The first important group of cases deals with personal autonomy. Dignity is violated if the state denies the freedom of the individual to make fundamental choices affecting his/her own personal sphere. Particularly relevant from this point of view are the decisions concerning the human body and the domain of sexuality. The US Supreme Court case law on constitutional privacy offers several examples - Lawrence v Texas being just one of the most famous – of such a use of the notion of dignity;25 but the European Court of Human Rights has likewise referred to the principle of dignity in resolving disputes concerning the right to die.26 The duty to respect is also infringed in cases of the violation of bodily and psychological integrity of the person. The prohibition of torture and other degrading treatments flows directly from this commitment. Similarly, the death penalty has been declared incompatible with human dignity by the South Africa Supreme Court in the famous Makwanyane case;27 and the German Constitutional Court held a life sentence without parole to be unconstitutional.28 In one controversial case, the Court struck down the Aviation Security Act, insofar as the statute authorised the shooting down of a hijacked airplane in a 9/11 situation.29 Such an intentional act of shooting, argued the Court, would conflict with the fundamental right to life and the dignity of the innocent passengers of the plane. Indeed, they would be treated as mere objects in order to avert danger to the rest of the community. The respect of the intrinsic worth of the individual is also denied in cases of discrimination.30 Thirdly, human dignity requires the respect of an intimate sphere, shielded from government intrusion. This has been the theoretical basis of the famous ‘right to informational self-determination’ (informationelle Selbstbestimmungsrecht), recognised by the German Constitutional Court in the famous Microcensus decision of 1983, which has heavily influenced the development of the European law of data protection.31 Conceived as a negative right, dignity is a widely shared concept, which makes transnational dialogue among judicial institutions an important reality.32 More problematic and context-specific is the
second function of dignity: dignity as the basis of a duty to protect. ‘Respect and protect’ (achten und schützen) is the literal wording of art 1 GG. The duty to protect is implied by a conception of dignity as a positive right, which would require the government not only to abstain from any interference in (achten), but also to adopt affirmative measures aimed at preventing violations of dignity arising from the action of third parties (schützen). The logical consequence of this model is that the positive commitment to protect dignity may lead in a wide range of situations to the restriction of the freedom of others (and in particular freedom of speech and economic freedom).33 This is the theoretical basis of the so-called thirdparty effect (Drittwirkung) of fundamental rights, which finds in Germany a paradigmatic model. The development in the field of ‘personality rights’ is particularly relevant from this point of view, but I cannot explore the details here.34 Rather, I would like to emphasise two other issues. The first is the subjective scope of the dignity clause. If dignity is to be considered a paramount objective value, and not only a subjective right, it must be protected regardless of the existence of a right bearer.35 Consistently, the dignity principle has played a role not only in cases of the violation of group rights,36 but also with respect to the protection of the unborn and the deceased.37 Particularly relevant, from this point of view, is the 2011 European Court of Justice (ECJ) decision in Brüstle v Greenpeace,38 upholding the ban on the patenting of neural precursor cells, derived from embryonic stem cells. According to the
ECJ, the patent would be invalid – among other reasons – according to the principle of respect of human dignity (applicable to the embryo), since the carrying out of the invention implied the destruction of human embryos for research. The second issue is the possible conflict between dignity and autonomy. Indeed, once it is accepted that the state has a positive obligation to protect dignity, situations may arise in which the exercise of personal freedom may be held in contrast with the objective value of human dignity. In such situations, whose ‘dignity’ should prevail? The dignity of the individual, free to make his/her own value-choices, or dignity as defined by the legislature or the courts? This issue is perfectly illustrated by two well-known European cases. The first was decided by the French Council of State, the Conseil d’Etat (CE), and deals with the spectacle known as ‘dwarf tossing’.39 Wearing suitable protective gear, a dwarf allowed himself to be thrown onto an air bed by clients of a discotheque hosting the event. Following a ban issued by the mayor of Morsang sur Orge, the dwarf sued the municipality before the local administrative court. The CE eventually held that the ban was lawful, arguing first, that dwarf tossing was an attraction that affronted human dignity, with respect for human dignity being part of public order; and second, that freedom of employment and trade was no impediment to the prohibition of an activity, if this was of a nature to violate public order. Not satisfied with the decision, the dwarf lodged a complaint before the European Court of Human Rights and in the last instance before the UN Committee. He
“There is no doubt that dignity has acquired an important role within the ambit of the legal rights.”
argued that the ban had “an adverse effect on his life” and “represented an affront to his dignity”, adding that there is no work for dwarves in France and that his job did not constitute an affront to human dignity, “since dignity consists in having a job.”40 Both courts dismissed the complaint. Similar reasoning informed the 1987 decision of the German Federal Administrative Court on peep shows.41 The Court held that such shows represented an affront to human dignity, since the woman displayed in the cabin was treated “like an object in the service of sexual stimulation with a view towards remuneration, and each spectator, existing in his own isolation-booth, invisible to the woman, has her offered as a mere stimulation-object for the gratification of sexual interest.” Human dignity, according to the judges, cannot be waived and disposed of. In 2004, the European Court of Justice adopted a similar perspective in the important decision Omega Spielhallen.42 Reading these rulings critically, one gets the impression that what is really at stake is not the dignity of the individual (and his/her right to be respected as a free person), but the dignity of the species, or ‘human’ dignity. However, one could seriously raise the question whether it 19
THE LAW OF HUMAN DIGNITY is actually possible, in a pluralistic and multicultural society, to settle on a fixed ‘image of man’ (Menschenbild) and impose its values on anybody, even on the right-holder. Is it possible, in other words, to set the boundaries of autonomy on the basis of the concept of dignity? Or is the formula ‘dignitarian limits of autonomy’ an oxymoron? The solution for the comparative lawyer would be to empirically test such questions by looking at jurisdictions characterised by different institutional settings and valuechoices. If one takes into account the US experience, for instance, it is easy to find not only a strong scholarly opposition to such a ‘communitarian’ vision of dignity43, but also parallel cases decided in the opposite way. Particularly instructive is the 1972 Supreme Court of Florida decision in World Fair Freaks v Hodges.44 In a situation not too far removed from the French dwarf tossing case, the Court held that the statutory ban imposed by Florida was unconstitutional as a violation of property (in the form of the equal right to earn a livelihood and to pursue a lawful occupation). This decision is interesting not only because it frames in terms of property an interest that the French dwarf tried to present with reference to the lexicon of dignity, but also because it shows a completely different vision of the relationship between the individual and the political community. This is consistent with a conception of dignity based on the idea of negative freedom and a model of constitutional adjudication significantly removed from post-war canons.45 It is not by chance that the doctrine of state action has prevented the US courts from developing a consistent body of rules aimed at enforcing the state’s obligation to protect fundamental rights.46 In conclusion, my final remarks concern the duty of a state to ensure that nobody falls below a ‘dignified’ level of existence. Art 151 of the 1919 German Constitution of Weimar, relying on the social-democratic tradition, contained such an affirmative mandate, which is nowadays accepted, by way of judicial interpretation, in several jurisdictions. The German Constitutional Court, moving from the general assumption that art 1 GG “imposes an obligation on the state to provide at least minimal subsistence to every individual”, has recently struck down parts of the redgreen reform of the labour market (Hartz IV).47 Similarly, the Italian Constitutional Court and the South African Supreme Court have held that “human dignity requires that decent housing be secured for all citizens as a constitutional social right.”48 Such a use of the concept of dignity may appear troubling for those who fear that the courts will exercise uncontrolled discretion under the umbrella 20 | Brief February 2014
of dignity. Indeed, this approach seems incompatible with the more libertarian perspective on dignity which took hold in the US. However, it should not be underestimated that, in a time which has seen a steady decrease in social protections, dignity can work as the ultimate barrier against the complete dismantling of the noble utopia of ‘freedom from need’.
Menschenwürde. Entwurf eines praktikablen Wertsystems der Grundrechte aus Art 1 Abs I in Verbindung mit Art 19 Abs II des Grundgesetzes, AöR, 1956, 117. 25.
ECHR, 29-4-2002, Pretty v UK, App N 2346/02.
State v Makwanyane and Mchunu, 1995 (6) BCLR 665 (CC).
BVerfG, 21-6-1977, BVerfGE 45, 187 (1978).
BVerfG, 3-3-2004, BVerfGE 109, 279 (2004).
Particularly important, from this point of view, are the pronouncements of the Supreme Court of Canada, see C McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 690.
BVerfG, 15-12-1983, BVerfGE 65, 1 (1984).
See for instance the cases of Lawrence v Texas and Roper v Simmons.
C Enders, The Right to Have Rights: The Concept of Human Dignity in German Basic Law, 2 Revista de Estudos Constitucionais, Hermenêutica e Teoria do Direito 1, 2 (2010).
Professor of Comparative Law, University of Bari ‘Aldo Moro’. An extended version of this article was presented at the Australian Bar Association Conference held in Rome from 2 - 5 July, 2013.
Lawrence v Texas, 539 US 558 (2003); for further references see N Rao, Three Concepts of Dignity in Constitutional Law.
Among them are Jeremy Waldron, Ronald Dworkin, Robert Alexy and Jürgen Habermas.
For a similar perspective see N Rao, Three Concepts of Dignity in Constitutional Law, 86 Notre Dame L Rev 183 (2011).
RD Glensy, The Right to Dignity, 43 Columbia HR L Rev 65, 69 (2011).
See G Alpa – G Resta, Le persone fisiche e i diritti della personalità, Turin, 2010.
See eg art 1 of the United Nations Declaration of Human Rights.
On this issue see F Hufen, Erosion der Menschenwürde?, JZ, 2004, 313.
See Paris, 28-5-1996, D, 1996, jur, 617.
See the 1965 Convention on the Elimination of All Forms of Racial Discrimination; the 1966 International Covenants on Civil and Political Rights, and on Economic, social and cultural rights; and more recently the Conventions on the Rights of Children (1989), of Migrant Workers (1990) and of Disabled Persons (2007).
See generally H Schmidt, Whose Dignity? Resolving Ambiguities in the Scope of ‘Human Dignity’ in the Universal Declaration on Bioethics and Human Rights, 33 J Med. Ethics 578 (2007).
ECJ, Grand Chamber, 18-10-2011, C-34/10, Brüstle c Greenpeace.
See art 1, Charter of Fundamental Rights of the European Union.
CE, Ass, 27-10-1995, Ville d’Aix-en-Provence, D, 1996, jur, 177.
See, eg, art 1 of the German Grundgesetz (GG); Arts 3 and 41 of the Italian Constitution.
Manuel Wackenheim v. France, Communication No 854/1999, UN Doc CCPR/C/75/D/854/1999 (2002).
CC, 27-7-1994, 94-343-344 DC, D, 1995, jur, 237.
BVerwG, 15-12-1981, NJW, 1982, 664.
N Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 Col J Eur L 201 (2008).
P Fraisseix, La Sauvegarde de la Dignité de la Personne et de l’Espèce Humaines: de l’Incantation à la ‘Judiciarisation’, RRJ Droit Prospectif, 1999, 1133.
ECJ, 14-10- 2004, C-36/02, Omega Spielhallenund Automatenaufstellungs GmbH c. Oberbürgermeisterin der Bundesstadt Bonn.
N Rao’s paper, On the Use and Abuse of Dignity in Constitutional Law, is exemplary.
See generally M Rosen, Dignity: Its History and Meaning, Cambridge, 2012.
World Fair Freaks and Attractions Inc v Hodges, 267 So2d 817 (Fla. 1972).
C Ruiz Miguel, Human Dignity: History of an Idea, in 50 Jahrbuch öffent. Rechts, 281 (2002).
RD Glensy, The Right to Dignity, 77.
E Daly, Human Dignity in the Roberts Court: A Story of Inchoate Institutions, Autonomous Individuals, and the Reluctant Recognition of a Right, 37 Ohio NUL Rev 381, 382 (2011).
LE Weinrib, The Postwar Paradigm and American Exceptionalism, in S Choudhry, ed, The Migration of Constitutional Ideas, Cambridge, 2006, 84; G Bognetti, The Concept of Human Dignity in European and US Constitutionalism, in G Nolte, ed, European and US Constitutionalism, Cambridge, 2005, 85.
For a comparison Europe/US, see D Grimm, The Protective Function of the State, in G Nolte, ed, European and US Constitutionalism, 137.
BVerfG, 9-2-2010, 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09.
Corte Cost, 11-2- 1988, n 217, Giur it, 1988, I, 1789; Government of the Republic of South Africa and Others v Grootboom and Others, 2000 (10) BHRC 84 (CC).
See C Starck, The Religious and Philosophical Background of Human Dignity and its Place in Modern Constitutions, in E Klein – D Kretzmer, The Concept of Human Dignity in Human Rights Discourse, The Hague-London-New York, 2002, 179.
C McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 Eur J Int L 655, 678 (2008).
R Macklin, Dignity is a Useless Concept, 327 BMJ 1419 (2003).
J Simon, Human Dignity as a Regulative Instrument for Human Genome Research, in CM Mazzoni, ed Etica della Ricerca Biologica, Florence, 2000, 39.
U Neumann, Die Tyrannei der Würde. Argumentationstheoretische Erwägungen zum Menschenwürdeprinzip, Arch. Recht Sozialphil., 1998, 153.
E Klein, Human Dignity in German Law, in E Klein – D Kretzmer, eds., The Concept of Human Dignity in Human Rights Discourse, The Hague-London-New York, 2002, 154.
U Wessels, Genetic Engineering and Ethics in Germany, in A Dyson – J Harris, eds, Ethics & Biotechnology, London, 1994, 237.
D Hömig, Die Menschenwürdegarantie des Grundgesetzes in der Rechtsprechung der Bundesrepublik Deutschland, EuGRZ, 2007, 633, 638.
RD Glensy, The Right to Dignity, 120.
G Dürig, Der Grundrechtssatz von der
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Member Survey Results The Law Society of Western Australia completed a survey among 418 members to assess current needs and future expectations. The results are helping Council to identify strategic priorities, goals and strategies to address over the next four years. The study was administered with support from CATALYSE® Pty Ltd, an independent research company. STRATEGIC INSIGHTS The Society is performing well. Members have a clear understanding of the Society’s role and purpose, and key performance indicators are trending up. Overall satisfaction ratings rose 21 percentage points over the past 5 years, while ratings for high value membership increased by 17 percentage points. Results suggest that the Society’s resources are being well allocated, with higher priority areas receiving the highest performance ratings. The Society is recognised by members as being member focused, inclusive, welcoming, and responsive. It is keeping members well informed about changes in legislation and key issues, and delivering CPD effectively. While the Society is seen to be the ‘voice’ of the legal profession, members feel they would benefit if the Society had a stronger voice. Most members are committed to renewing their membership, and many are brand advocates, indicating that they would recommend the Society to others.
22 | Brief February 2014
ISSUES AND CHALLENGES Members regard the top five challenges for the legal profession as stress and depression; public perceptions of lawyers; pressure to maintain high quality work for lower fees; the billing system; and providing affordable access to justice. At an individual level, the top five issues facing members are keeping up to date in a rapidly changing environment; maintaining a work-life balance; earning profits in an economic downturn; high workloads; and managing client expectations. SATISFACTION WITH THE SOCIETY Overall satisfaction with the Society has continued on an upward trend. Around 79 percent of members are satisfied, up 21 percentage points over the past five years. Satisfaction is higher among sole practitioners, newer practitioners and those practicing in the suburbs. Dissatisfaction is slightly higher among regional lawyers. Members express higher levels of satisfaction with the Society’s communications, including the Brief membership journal, enewsletters and regular email information alerts. While online social communities and Grad-Match received the lowest levels of satisfaction, service gap analysis suggests that there is a greater need to focus on improving CPD, the website, committees, and Find-a-
Lawyer, followed by member privileges, and free networking and social events. MEMBER PRIORITIES Moving forward, members would like the Society to keep its focus on keeping members informed about changes in legislation and key issues, and supporting members with continuing professional development. The Society is considered to be performing well in these areas. To improve, members would like the Society to show a greater understanding of their needs, with stronger leadership and representation. While the Society is regarded as a credible and independent commentator, it needs to be more
MEMBER SURVEY RESULTS proactive and vocal. There is also a need for initiatives to improve membersâ€™ sense of belonging within the legal community.
MEMBER PRIORITIES MAP
COMMITTEES There is growing participation in committees. Around 21% of members have participated in a committee over the past two years, up from 15% four years ago. Among participants, there is high satisfaction with opportunities for member involvement and engagement, and with the effectiveness of committees in achieving results and having positive impacts. QUALITY PRACTICE STANDARD There is high awareness of the Quality Practice Standard (QPS). Among those who are aware, most agree that the QPS improves practice consistency, reduces professional indemnity insurance premiums, improves the quality and competitiveness of legal practices, and improves client service and relationships.
SERVICE GAP ANALYSIS
LEGAL PRACTICES SHOW STRONG SUPPORT FOR THE SOCIETY Large and medium sized practices continue to pay membership fees for many employees. Among members who work in larger firms, around 74 percent say their employer pays for their membership fees. This drops slightly to 66 percent among medium sized practices. There is also strong support for younger members. Among those aged under 35, 75 percent say their employer pays for their membership fees. Employers say they support the Society because it is the right thing to do. They see it as their corporate social responsibility. The Society provides them with peace of mind, knowing there is a professional body to speak out or offer support when needed and to keep their employees well informed and in the loop. Membership also assists with employee attraction and retention, and with business development. The Society membership is well regarded on staff profiles.
WHERE TO FROM HERE The Society is committed to continuous improvement. Strategic priorities identified in this survey along with suggested improvements are being considered and addressed by Council and staff in a new Strategic Plan and as part of day to day operations. We will keep members informed with progress. We will keep members informed with progress
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PARKES LEGAL Ross Wheatley (BA LLB)
T: (08) 9221 4932 M: 0401 344 040 E: email@example.com
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PARKES LEGAL SUPPORT Angela Bamford T: (08) 9221 0944 M: 0423 471 524 E: firstname.lastname@example.org
Community Sector Lawyers Fund-less Gemma Mitchell Solicitor, Consumer Credit Legal Service (WA)
To withhold the equal protection of the laws, is to undermine the entire structure and threaten it with collapse .... To deny law or justice to any person is, in actual effect, to outlaw them by stripping them of their only protection. It is for such reasons that freedom and equality of justice are essential to a democracy and that denial of justice is the short cut to anarchy.1 In 2012, a reference group was formed in order to consider establishing a Public Interest Law Clearing House (PILCH) in Western Australia (the WA PILCH Reference Group). This group consisted of representatives from many areas of the legal profession in Western Australia, including the Law Society. In August 2013, a report was prepared for the WA PILCH Reference Group by Kalico Consulting (Kalico Report). This report stated: The Australian Government AttorneyGeneral’s Department noted that in 2008, 98 percent of legal aid recipients were receiving an income that could be considered below the poverty line.2 The Kalico Report also went on to state that “over 80 percent of the people helped by community legal centres receive under $26,000 a year in income.”3 Clearly, the community legal sector provides access to justice to some of the most marginalised members of society. In terms of the ability of the community legal sector to meet demand, the Kalico Report noted that: [i]n the 2012 ACOSS Australian Community Sector Survey, 73 percent of community legal services reported an inability to meet demand, 82 percent said that in order to meet demand, services were more tightly restricted and 69 percent said that wait times had increased. The turnaway rate nationally for legal services in 2010-2011 was 14 percent, the highest of the five service groups 26 | Brief February 2014
profiled in the survey (ACOSS 2012). Across all community sector services surveyed, 36 percent of agencies named legal services as a current priority unmet need for clients, the second highest area of unmet need after housing.4 Without warning on 17 December 2013, as part of its Mid-Year Economic and Fiscal Outlook, the Federal coalition government announced cuts of $43.1m over the next 4 years to legal assistance services. The cuts include $19.6m from the Community Legal Services sector, $13.41m from Aboriginal and Torres Straight Islander Legal Services (ATSILS), $3.66m to Aboriginal Family Violence Prevention Legal Services and $6.5m from Legal Aid Commissions.5 The Law Council of Australia responded to this announcement with a media release on 23 December 2013. In the media release, Mr Michael Colbran QC, the Law Council of Australia President, commented that; [t]he Law Council acknowledges the Government’s primary objective of finding budgetary savings is to reduce the federal budget deficit and to limit funding reductions to ‘law reform and advocacy’ programs maintained by some legal assistance providers. However, the Law Council is concerned some of the programs may have been inappropriately identified as ‘law reform and advocacy’ programs and that the proposed cuts will have a significant impact on the capacity of already chronically under-funded legal assistance bodies to provide legal services to disadvantaged Australians.6 Of the $19.6m to be cut from the community legal services sector, $10m will be cut from the funding of the Environmental Defender's Office (EDO). The EDO announced on its website:
Shock funding cuts threaten to shut down legal services for local communities to protect the environment, state and territory. The Australian Network of [EDOs] is calling on the Federal Government to restore the funding to ensure that defending the environment, community amenity and cultural heritage doesn't become unaffordable to many Australians. On 17 December 2013, the Federal Government ended, without warning, $10m in funding over four years for nine states and territories EDOs which specialise in public interest environmental and planning laws. The funding cuts threaten closure for EDOs in ACT, Western Australia, Tasmania, Northern Territory and North Queensland. For other EDOs in NSW, Queensland, South Australia and Victoria the Federal funding reductions will see a cutback in legal services to the community, and follow a series of state finding cuts. Put simply, from 1 July 2014, many EDOs are likely to be closing their doors, unless they can secure funding from elsewhere. Campaigns for donations are already underway in order to try and prevent this from happening.7 The WA EDO was instrumental in successfully challenging the validity of the approval for a large gas development at James Price Point in the Kimberley. Other successes in the east came from the NSW EDO, which prevented a coalmine from expanding due to negative social and environmental impacts.8 The cynical amongst us may question the Government's motives in making the cuts to the EDO's funding. The EDO Victoria Chief stated: This decision by the Federal Government demonstrates the hostility that this government has for the many Australian communities using the law to stand up for the
COMMUNITY SECTOR LAWYERS FUND-LESS average, community legal centres have a cost benefit ratio of 1:18, that is, for every dollar spent by government on funding community legal centres, these services return a benefit to society that is 18 times that cost. To express this in dollar terms, if the average holds constant for community legal centres across Australia, the $47 million spent on the program nationally in 2009/10 would yield around $846 million of benefit to Australia.12
places they love. It is outrageous that the Federal Government seeks to silence the voice of communities.9 It is not yet known where exactly the funding cuts for the 2015/16 financial year onwards will be made, leaving many services in a state of uncertainty. Cuts to legal services were first announced as part of the Coalition's costings on 6 September 2013 prior to the Federal election. This stated that $42m would be cut from ATSILS.10 It has been suggested that "after a backlash from the Indigenous community, the Government has revised this to $13m across 3 years".11 However, it is unclear exactly what cuts will be made to other legal services provided to Aboriginal and Torres Strait Islanders and it therefore seems premature to describe the recently announced cuts to services as revised.
This economic benefit provided by community legal centres and the access to justice by some of the most disadvantaged members of our communities are at risk with these cuts to funding.
In its recent response to the Productivity Commissionâ€™s Access to Justice Issues Paper, the peak organisation for Australiaâ€™s community legal centres pointed to the 2012 Economic Cost Benefit Analysis of Community Legal Centres conducted by Judith Stubbs and Associates, which found that on;
Reginald Heber Smith, 1919.
Doing the Public Good: A Feasibility Study of Pro Bono Services for Western Australia (August 2013) Prepared by Kalico Consulting for the WA PILCH Reference Group Scoping Study Subcommittee: 32. Available at http://www.lawsocietywa.asn. au/visageimages/Documents/WA%20Pro%20 Bono%20Report%20Final%20Sept%202013.pdf.
Ibid, at 33.
Ibid, at 33.
"Community legal centres targeted in Coalition cuts." Available at www.fundingcentre.com.au/ news/2013/12/legal-centres.
http://www.lawcouncil.asn.au/lawcouncil/images/ LCA-PDF/mediaReleases/1351%20--%20Law%20 Council%20opposes%20cuts%20to%20legal%20 assistance.pdf.
Note Book: The Newsletter of the National Association of Community Legal Centres Inc (November 2013) 2.
Community legal centres targeted in Coalition cuts Available at www.fundingcentre.com.au/ news/2013/12/legal-centres.
Coalition's proposed cuts to Aboriginal and Torres Strait Islander Legal Services represent a big step backwards for access to justice (6 September 2013), National Association of Community Legal Centres, media release. Available at: http://www.naclc.org. au/cb_pages/news/TheNationalAssociationofCommunityLegalCentresIncNACLCisdeeplyconcernedbythe42millionfundingcutswhich.php.
Funding Cuts to Cripple Indigenous Legal Services (17 December 2013) ABC, transcript of radio broadcast. Available at www.abc.net.au/pm/ content/2013/s3913355.htm.
Access to Justice Arrangements (November 2013) National Association of Community Legal Centres submission to the Productivity Commission: 43.
What do you think about the funding cuts to the community legal sector? Have your say via email email@example.com
A â€œCOMPLETING MASTER OF APPLIED LAW
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Call 1300 506 402 or visit collaw.edu.au/alp 27
An Interview with Professor Paul Fairall Foundation Law Dean at Curtin Law School, Professor Paul Fairall took a moment to reflect with Brief about WA’s newest Law School, established in 2012 by Curtin University. Professor Fairall has a long but interrupted association with Perth. In the summer of 1970, he stopped off briefly en route from South Africa to Sydney. There was a summer heat wave and perhaps this put him off, because he did not return until 1986, when he spent a memorable year teaching at The University of Western Australia Law School. At the end of the year, he turned down a permanent position, and headed east. Realising his mistake, he returned to work first for the WA Law Reform Commission, and then for a large commercial practice in Perth. The lure of academia was, however, too strong and he returned to university life, first in Queensland, then South Australia. He is Australia’s longest serving law dean, having served as Dean of Law at James Cook University in Townsville, then the University of Adelaide, and also as Foundation Dean of Law at the University of South Australia. What brought you to back to Perth? The opportunity to set up a new law school in a city I know and love. What is it about the university based roles that attracts you? Well, I don’t subscribe to the view attributed to a famous writer that ‘the practice of law is vulgar, the teaching thereof sublime’. That’s probably a somewhat unbalanced view! But there is something special about being part of the community of law teachers. It’s also probably fair to say that law schools have a constitutional function – they serve as one of the elements of the rule of law. Few law schools survived the cultural revolution in China - most Chinese law schools are less than 10 years old. Of course, there is also the human element. It’s a great privilege to teach the best students at university. They are very talented young people. They have top marks from school. They are ambitious and, for the most part, excited to be at law school. Your reference to school leavers prompts me to ask about the Juris Doctor (JD) programmes on offer at 28 | Brief February 2014
places such as UWA? Do you intend to offer a JD? No. We offer the Bachelor of Laws (LLB) degree. We have no plans to introduce an American style law degree. We think that is a wrong turn. Why do you say that? Access to justice is an important part of the rule of law. The Juris Doctor erects barriers. The idea that law should not be taught to school leavers is untenable and flies in the face of experience. Apart from the obvious increase in educational costs in forcing all law students to take another degree first, offering the law degree as postgraduate opens the way for law schools to charge big fees of domestic students. Some, like Melbourne, already do. Michael Kirby made some comments about this worrying trend when he opened the Curtin Law School last year and we strongly share his sentiments. And the irony is that one of the arguments for introducing the JD was based on the idea that Australian graduates would be more employable in Asia and the US. But there is some difficulty getting countries like Singapore and Malaysia to recognise the JD, and as far as I know, that issue is still unresolved. The introduction of this new degree has introduced confusion into our market place. Some law schools offer both programmes alongside each other without much differentiation. But not all JD programmes are fee based? Not all JD programmes are fee based, but many are. And some JDs are really just rebadged LLB degrees - they are not really postgraduate degrees at all. How do you teach offer and acceptance at ‘postgraduate’ level? So, what is distinctive about the Curtin law degree? Well, apart from a very strong emphasis on teaching quality, we offer a structured overload system so that all years after the first year involve trimester based subjects. This opens the way for diligent and bright students who do not have
time or money to spare in obtaining a professional qualification. We also offer law as a graduate entry programme, but the graduate law degree is exactly the same as the undergraduate LLB, only with fewer electives. There is no suggestion that it is a postgraduate qualification. We also offer various double degree options, and about half the intake will go into these blended programmes, in which law is studied with another discipline. We are fine tuning our elective options and developing areas of research strength, although it is clear that the focus of this school will be upon business and commercial law, in all its aspects. That does not mean we exclude areas such as human rights – there is nothing more immediate in terms of human rights than the business that goes into liquidation, or a partnership that falls apart, or a family breakdown. Curtin graduates will be trained primarily as lawyers, not sociologists, to refer to a somewhat snippy contrast drawn by a High Court judge some time ago. Have you faced any major challenges getting the law school into operation? Not really. We received approval for the Curtin law degree on 14 September 2012, after a 9 month planning period, and this was a major milestone. Since then we have recruited some really outstanding legal academics, and student demand has been very strong. I am exceedingly proud of our academic staff. We have a very strong professoriate, including four experienced Law Deans providing years of experience. Between us we have experienced all of the issues that might arise in law schools and we know what works. I should acknowledge especially my friend and colleague Associate Professor Chris Finn. We have started this School together and we are pleased with our work.
AN INTERVIEW WITH PROFESSOR PAUL FAIRALL Your first cohort started their law degrees in 2013 – only last year. How do you plan to foster an alumni relationship with them? Well we took in 115 students in 2013 and a larger number this year. We will produce our first graduates at the end of 2015. The students have formed an active Curtin Student Law Society (CSLS) which will provide a contact point between the school and law students. We expect a Curtin Law School Alumni Society to emerge naturally from the CSLS. And of course the Law School forms part of the Curtin Business School, which has a well-established alumni organisation. We have talked about the benefits of the trimester systems. Can you see any potential issues with stress for the students? Do you have any support programmes in place? It is something we are aware of and keeping our eye on. Law students tend to be high achievers and are accustomed to doing well. Lower grades at law school can sometimes be a shock. We are well aware of the stress factors involved. And yes, the University has very effective counselling services for those in need. Sensible study practices are important. By the way, the trimester system is designed to give students flexibility and choice – if they wish to progress at a standard rate they can, although from experience, many will take full advantage of the trimester mode of study. Those standard academic holidays can be very long. We have referred our students explicitly to the work of the Tristan Jepson Memorial Foundation (TJMF), which has a very clear objective in raising awareness about depression amongst law students and indeed members of the profession. Do you think the State needs this fifth law school – is it a revenue raising kind of thing? Competition is a good thing. I have no doubt that we will see new and innovative programmes from each of the other schools, which will greatly enhance the quality of legal education in the state. So I see this as an absolute benefit for the profession as a whole. Law places at Curtin are all Commonwealth supported places, and regrettably the Commonwealth does not pay much for a law place. So, a new law school is hardly about revenue raising. Law does, however, attract the best students and that is one reason, apart from sheer prestige, why a university might want to have a law school. It is a
bit surprising that Curtin did not have one earlier, although UWA’s decision to abandon the undergraduate Bachelor of Laws degree provided a window of opportunity for Curtin. As it is with law firms, so the market between law schools is now very competitive. What explanation do you offer, given that students are graduating from their degrees without practical knowledge and skills? That’s a very leading question, but to the extent that it is based on a sound assumption, I would say that both legal academics and practitioners have a part to play in addressing this issue. We should not have unrealistic expectations. University law schools are not funded like medical schools or science departments. Developing intensive practical programmes is challenging. Obtaining skills, as opposed to discipline knowledge, is what we are talking about more these days. Academics tend to be good on discipline knowledge, but few have practical professional experience. Again, this is one of the strengths of our law school in view of the practice experience of many of our teaching staff. I think solutions can be found in a stronger partnership with the profession, and indeed, partnering with practising lawyers and companies is something we would like to see more of. Some of our graduates will be very young, and some wish to go straight into practice. I know some members of the profession are concerned about this, and see age as an issue. There is a transition problem between school and university, and another big step between university and professional life. Developing practical legal skills and focussing less on pure disciplinary knowledge may be part of the solution. We need to provide students with a taste of what the practice of law is really like, and that’s why we are keen on negotiation, mooting competitions and clinical education. We all need to do more to make the legal education curriculum more relevant to professional practice. But we must have realistic expectations about the quantum steps occurring along the way to professional practice. Will Curtin provide clinical legal education? We have plans to set up an advice clinic in the city, offering services for small business. We hope to offer all law students the opportunity to gain some practical hands on experience.
areas of professional conduct, evidence or civil procedure. These are compulsory subjects, but often poorly taught by academics lacking practical experience. Offering these subjects in the city, with the benefit of substantial practitioner input, we will impart many lawyering skills to our students at a fairly early stage in their legal careers. Have you seen any change in the law climate in Perth since you worked here in the 90s? I was in commercial practice in WA for a brief period in the early nineties – as a very inexperienced practitioner. Then my vision was that of an employed solicitor in a large firm – perhaps not the broadest perspective. An external observer can see dramatic changes over these past 20 years. Modern trends include the entry of large international firms, multi-disciplinary practices, and the incorporation of large national firms. Arbitration is now commonplace and threatens the traditional judicial role in resolving disputes. Civil litigation is on the verge of extinction and that is not surprising, given the costs involved. Law firms are providing a wider range of legal and financial services. Mediation and financial services are core business for many law firms. There has been a significant growth in corporate inhouse roles. Risk management involving legal decision making is a large part of corporate decision-making. And of course there are more women in senior positions, in law firms and in judicial roles. But these are all large national trends. And generally the trend is towards greater employment opportunities for those with legal skills. I guess the overall legal environment has changed a lot, but I suspect that in the trenches it may not have changed much at all. What sort of advice would you give to graduates now, who are facing a tighter job market? The economy is cyclical. If you can’t get a job, come back to university and get another degree. Use down times in the economy to improve your skill set. Do a Masters or MBA, even a PhD, move into other areas of practice. Go overseas, travel if you can, life is long and you are young. Be positive. You have done the hard yards, earned yourself a law degree. Now take a bit of pressure off. What’s the best piece of advice you have received? Never give up. What did the poet say? – Do not go quietly in that good night!
We would like to assign practitioners to teach our students, especially in the 29
Launch of the Western Australian Law Reports Database The Free Access Australasian Legal History Library via AustLII The Honourable Wayne Martin AC Chief Justice of Western Australia
This speech was presented Friday, 15 November 2013 at Francis Burt Chambers.
INTRODUCTION It is a great pleasure and an honour to have been invited to formally launch the Western Australian Law Reports database to be provided free of charge to the public by the Australasian Legal Information Institute (AustLII). Before going any further, I would like to acknowledge the traditional owners of the land on which we meet, the Whadjuk people of the Swan coastal plain, who are part of the great Noongar clan of southwestern Australia, and pay my respects to their Elders past and present. As we are honoured by the presence of a number of visitors from other States today, they may be interested to learn that the land on which we meet is of particular significance to the Whadjuk people, as it 30 | Brief February 2014
is immediately adjacent to the river which they know as Derbarl Yerrigan, and which we know as the Swan River, and which is the home of the dreamtime figure, the Wagyl, which plays an important part in the cultural mythology of the Whadjuk. I would also like to particularly acknowledge the presence of representatives of AustLII including Mr Richard Hunter, Development Manager, Professor Andrew Mowbray, Director and Co-Founder of AustLII and Mr Philip Chung, Co-Director. I would also like to express my appreciation to Francis Burt Chambers, and its Chair, Stephen Davies SC, for hosting this event, and to welcome our various distinguished guests too numerous to mention by name. THE WESTERN AUSTRALIAN LAW REPORTS DATABASE The launch of the Western Australian Law Reports database is to be welcomed, not only as a significant advance in the provision of free access to Western
Australia's legal history, but also as a further step in improving the accessibility and transparency of our legal system to the broader community. The database not only covers all of the WA Law Reports published between 1899-1959 but, importantly, also provides links to other materials available on AustLII. The utility of the database is magnified by the fact that it is in searchable format and captured through AustLII's LawCite citator, which enables users to track citations of these historical cases right up to the present day. This is an enormously important research tool, not only for lawyers and judges, but also for anyone interested in the development of the legal history of this State, or in the extent to which decisions of Western Australian courts have influenced the legal history of the nation. THE AUSTRALASIAN LEGAL HISTORY LIBRARY The digitisation of the older WA Law
LAW REPORTS DATABASE Reports is the latest stage of a significant project which has been undertaken by AustLII with the benefit of a grant from the Australian Research Council, and with the assistance of a syndicate of ten universities. The Supreme Court of Western Australia can claim to have played a very small part in this important project, by providing a physical copy of the WA Law Reports, which have been scanned and digitised in order to form the database. The Legal History Library has built on AustLII's existing database resources so as to provide the most comprehensive collection of Australian legal history resources. I am advised that the breadth of the project makes it the single most significant expansion of free access to Australasian legal information since the creation of AustLII in 1995. AUSTLII AustLII itself is a quite remarkable resource. It has become the largest Australian online legal research facility, and is larger than any fee for service facility or commercial legal database. It includes Australia's largest collection of databases of current case law, legislation, Law Reform reports, law journals and the largest national treaties collection on the internet â€“ with the addition of this database, a total of 557 databases in all. AustLII describes its broad public policy agenda as being to improve access to justice through the provision of better access to information. Those many thousands of people who use AustLII regularly, including me, are in no doubt that AustLII has achieved this important objective. This project is an example of AustLII's continuing dedication to improving the amount of legal information available to the public free of charge. Some idea of the magnitude and significance of the public access which this facility provides to all with an interest in the law of Australia is provided by the fact that AustLII is accessed about 700,000 times each day. TIMELINESS The preface to the first volume of the WA Law Reports, which is now available online through this facility, notes: The need for authentic Law Reports has of recent years been much felt by the profession. This volume represents the opening of a series of Law Reports which, it is hoped, will supply that want. Some indication of the change in public expectations with respect to the timeliness of information relating to legal decisions is provided by the fact that the
first reported decision in the WA Law Reports was published more than a year after it was handed down. The preface to the first volume indicated a desire to improve publication times in the future, and foreshadowed that the next volume was to include cases that were no more than nine months old! By comparison today, our access to legal information is almost instantaneous and comprehensive. Most judgments, and the reasons for those judgments, are available within minutes or hours of being delivered - a development which was pioneered in Australia by AustLII. HISTORICAL RECORDS GENERALLY Public access to Australian historical records is now unparalleled. Many will be aware of the wealth of material which is available through TROVE, which includes over 115 million newspaper articles from the 1800s to the mid-1950s, from across the nation. A project to provide free online access to all original WA State Acts was completed by the State Law Publisher in July 2009. Recently the Western Australian Parliament provided digitised access to all State Parliamentary Debates going back to before 1876, when Hansard commenced reporting in WA. The publication of the WA Law Reports through AustLII provides another significant dimension to our ability to access our rich history. I am one of those who considers history to be very important. As George Santayana famously observed, "Those who cannot remember the past are condemned to repeat it." Of course, Santayana wrote those words almost a century before the internet was created. As a result of the internet, and the rich historical resources now readily available through the internet, including the database we are launching this evening, we are no longer dependent upon our memories, provided we have a computer, tablet or even a mobile phone handy. The richness of the material now available online can be illustrated by picking just one of the many cases now available on the digitised database of WA Law Reports - the case of Clarke v The Crown (1927) 29 WAR 102. Students of contract law will, of course, remember the famous case of Carlill v Carbolic Smokeball Co (1893) 1 QB 256, which we were all taught as the leading case in the area described as unilateral contract - an oxymoron if there ever was one - and which would be more correctly described as the area of contracts accepted by performance. The case arose from the murder and dismemberment of two police officers in Kalgoorlie - Inspector J J Walsh, and Sergeant A H Pitman. After their bodies
were discovered, a reward of ÂŁ1,000 was offered for information leading to the arrest and conviction of the murderers. Clarke was charged with their murder. Following his arrest, he gave information to police which resulted in the arrest and successful prosecution of two others, Coulter and Treffene, and the release of Clarke. At the time he provided the information, he was aware of the reward, but at trial gave evidence before Chief Justice McMillan to the effect that at the time he provided information to police, he had no intention of claiming the reward, and that his sole motivation was to exculpate himself from the charges of murder which had been brought against him. McMillan CJ dismissed his claim for the reward, on the basis that although Clarke had done that which was required in order to entitle him to the reward, as he had not done so with the intention of claiming the reward, he had not then intended to contract with the State, as offeror of the reward, with the result that there was no contract. Clarke's appeal to the Full Court was successful - the majority comprising Justices Burnside and Draper, with Justice Northmore dissenting, and the report of that decision is now available on line through the database we are launching this evening. In the view of the majority, intention or motive was irrelevant, and the fact that Mr Clarke had done that which was required to entitle him to the reward was sufficient to give rise to a contract. The State's appeal to the High Court (R v Clarke (1927) 40 CLR 227 - also available on AustLII) was allowed unanimously. All members of the High Court were of the view that McMillan CJ was correct in concluding that as Clarke had no intention of creating legal relations at the time he provided the information to police, no contract was formed. I digress to observe that this is not the last occasion upon which a minority view of a Chief Justice of Western Australia has been vindicated in the High Court. Those who wish to view this interesting series of decisions in the broader historical context can now do so very easily, without leaving their desks, provided they have computer access. So, after reading the case law, one can easily find information relating to the confirmation of the sentence of death by the Executive Council, newspaper reports of public protests and union resolutions condemning the death penalty, and of the execution of the two convicted murderers and even the final statements made by the two condemned men.1 Interested students of history can also link those 31
LAW REPORTS DATABASE events to the Parliamentary Debates relating to the abolition of the death penalty in Western Australia some 60 years later. TOO MUCH INFORMATION I have, of course, been extolling the virtue of the magnitude and breadth of the information that is now freely available to all through facilities of the kind that we are launching tonight. However, it is appropriate to provide a little balance by pointing to some of the dangers which attend access to voluminous information. They are perhaps best exemplified by an observation made by such an estimable predecessor as Chief Justice of Western Australia, Sir Francis Burt. Sir Francis was critical of the growing flood of reports from all jurisdictions which he said "spoke a lot but said little". 2 The judgments of Sir Francis provide exemplars of precision, succinctness and coherence, which should provide inspiration to contemporary judges and lawyers. He eschewed almost all forms of technology, preferring to write his judgments by hand in a notebook which was then provided to his secretary in order that she might provide a typed
version. This discipline encouraged brevity and accuracy of expression. By contrast, contemporary technology tends to encourage prolixity and imprecision of expression. In my view, it is important for all contemporary legal writers, whether judges or lawyers, to ensure that we 'say something' and not just 'speak a lot'. In this objective we might be guided by history, and by the examples now available on the digitised database of the Western Australian Reports - the first reported case in this series being just under two pages long. Sir Francis was also one of the first Chief Justices of this State to take on the responsibility of communicating the law and the work of the courts to the community at large. His successors, including me, have endeavoured to follow in those footsteps. Our task in this area is significantly assisted by the technology which now enables the general public to obtain free access to a vast array of information relating to the law and the courts, using a medium of communication with which they are now familiar. In this respect, the on line facilities of the kind which we commemorate today provide an
extremely valuable weapon in the armoury which is available to combat the various barriers to improving access to justice for all. For these reasons, I am very pleased to this evening launch the Western Australian Law Reports database. Of course, this step could not have been achieved without the generous provision of resources by the Australian Research Council and by AustLII itself. AustLII depends to a significant extent upon donations for its important work, and I would like to take this opportunity to encourage all who donate to consider donating more, and to encourage those who do not presently include AustLII in their list of benefactions, to consider doing so. NOTES
'Another Protest Meeting' The West Australian 23 October 1926, p 9; 'Kalgoorlie Murder. Seaman's Resolution' The West Australian 20 October 1926, p 9; 'AWU Resolution' The West Australian 22 October 1926, p 12.
Marion Dixon, 'Sir Francis Burt: 11th Chief Justice of Western Australia', reprinted (December 2004) Brief Magazine (Perth: Law Society of Western Australia) at page 9.
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32 | Brief February 2014
Be a judge for the 2014 Mock Trial Competition Chris Townsend Prosecutor, Australian Taxation Office “Silence! All stand please.” The four familiar words, or derivatives thereof, that open the stage for advocates on a daily basis. That feeling when the hushed silence comes over the courtroom, the judicial officer enters, and you, as the advocate, can feel the adrenalin pumping. You’ve spent days preparing for this moment. Thinking of every possible outcome, every possible response, to every piece of evidence that you will present in order to support your client’s position. Was it enough? Having spoken to senior advocates in Western Australia, I have noted a stark similarity between their comments on such a moment. They all stated that they still get that feeling of 'Have I prepared enough?' at that all too crucial instant when proceedings begin. They still feel the heart thudding as they stand to their feet and engage in the age-old art of advocacy. In this particular context, however, those four familiar words were uttered repeatedly throughout the various rounds of the Inter-School Mock Trial Competition. This competition, ran by the Francis Burt Law Education Programme, allows high school students to participate in basic advocacy in the formidable setting of the Supreme Court of Western Australia. All teams participated in three round-robin rounds, comprising both criminal and civil trials, and the top sixteen teams progressed through to the knockout finals. They were given the opportunity to address the court in both opening and closing submissions, examine witnesses in-chief, cross-examine opposing witnesses and of course, object when necessary. My first involvement in this competition was all the way back in 2003 as a competitor, picking up the role of barrister. In 2003, the rounds were held at the Court of Petty Sessions building, as it was then called. I can still remember the sweat forming on my forehead, my heart pounding and head throbbing as I stood up for the first time staring at the presiding judicial officer. Taking the place of that presiding judge, the 34 | Brief February 2014
nerves still were present, albeit for a variety of different reasons. Instead, legal reasoning and decision-making fall on your shoulders, heavily scrutinised by the invested participants and their supporters. Instead, when those four familiar words are uttered, you can feel all eyes waiting on you to commence the proceedings. This is not to take away from the rewarding and challenging aspects of the role; making evidence admissibility rulings, delivering summations, and providing feedback to shape the budding advocates. I must say, however, a lot has happened since my first role as a participant in 2003. The number of participants, both on an individual level and on a school level, has increased significantly. The move to the Supreme Court, a pinnacle of legal advocacy settings, is another remarkable change. In encouraging such a programme, the competition in 2013 had 38 schools participating with 761 competitors. This is a vast difference to numbers of a decade ago, not only in quantity but in quality. I maintain that some of the participants I’ve seen this year would challenge those far ahead of them in years, in terms of advocacy skills. Over the course of this year’s competition, I have had the privilege to preside in each of the general rounds (in some instances, multiple times), not to mention the well fought out battle of the quarter finals. This year’s grand final was one for the history books, and one I was glad I attended. Fought out between Mt Lawley Senior High School (Year 10’s) for the prosecution, and Hale School for the defence, the Honourable Justice John McKechnie had his hands full in adjudicating what was a very close final stanza of the competition. Mt Lawley Senior High School edged ahead of Hale School by a bare margin, and in doing so became the first successful Year 10 team to win the Grand Final in the competition’s history. I had the benefit of presiding over the winning team in Round 3 of the general rounds, and have to say that their standard of advocacy and professionalism
was remarkable, given their age. This is not to take anything away from Hale School, who came excruciatingly close to victory, and put up a brave fight. As 2014 kicks into action, so too will the next group of competitors be vying for the coveted place in the Grand Final and, ultimately, victory. Before I turn away from 2013 and look toward the future, I feel it is appropriate to offer thanks to Arpad Ollari-Hazy, who retired late in 2013 after six years of coordinating the competition. It was, in my opinion, Arpad’s diligent and hard-working nature that was the catalyst for the competition to reach new heights in both the number of participants and volunteers from the legal profession. It was his efficiency and professionalism that encouraged me to become as involved as I have in the competition, I am proud to have done so. Further thanks go to Craig Cumming for stepping into Arpad’s role at a crucial time of the competition calendar, Dominique Hansen, and all my colleagues who volunteer alongside me. Turning to the future, I must stress that the success of this competition relies on the generous volunteering of the legal community. Whether you are a law student, articled clerk, junior lawyer or senior member of the profession, your time is invaluable in assisting what may well be the next generation of the legal profession. It is rewarding to see these future members of the profession take their first steps in becoming advocates, and playing a part in facilitating that. Not to mention the fact that, you will be rewarded with those ever elusive CPD points for your time. I know a lot of schools will have started planning for 2014 at the end of last year, and will be very quickly starting preparation once the school year begins. This year looks to bring a fresh set of ideas, challenges and rewards. I invite you all to come and become a part of what is an excellent programme offered by the Law Society, and hope to see you all at next year's Grand Final. “This mock court is adjourned!”
We would like to extend a warm thank you to the volunteers, who acted as coaches and judges during the 2013 competition. We are now putting a call out to all members who may be interested in assisting us either as coaches or judges for the 2014 competition. Previous participation in the competition is not required, we will run an information session on 25 February 2014 which explains the competition in detail. Please contact us on email@example.com or on 9324 8604 to register your interest.
Many thanks for participation in the 2013 competition go to: JUDGES
Rachel Pearce Kate Pedersen
Katherine Pole Claire Rossi
Simon Di Rosso
Marlena Rudland Amy Ryan
John Vaughan SC
Ian Sampson Nigel Siegwart
Lana Tian Zoe Timms
Kate Walawski Katrina Welch Elizabeth Wreck
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An Interview with Alastair Hope, WA's first State Coroner. Pat Saraceni, Counsel, Clifford Chance You enjoyed a lengthy and successful career as a State Coroner. What drew you to that career choice? The Coroners Act 1996 changed the coronial system dramatically and created a new state-wide system. I was drawn to the challenge of being the first State Coroner to be appointed under that Act and having the opportunity to play a lead role in implementing widespread changes intended to involve relatives of the deceased more in the coronial process and putting in place a new system with an enhanced death prevention role. What was your most memorable encounter as State Coroner and what for you were the most rewarding and the most challenging aspects of life as a Coroner? I have had many memorable experiences as a State Coroner, including meeting with young Aboriginal people during the Kimberley inquest and hearing their views about the reasons for high suicide rates in their communities, and travelling to remote places such as Warburton and Umbulgurri for inquest hearings. The most rewarding aspects of the role have been providing families who crave answers about unexpected deaths with satisfactory explanations and receiving a great deal of positive feedback from people who believe that coronial recommendations have saved lives. Organisations and individuals often approach me with positive feedback about changes which inquests have brought about. The most challenging aspect of the role has been dealing with resourcing issues and struggling to elicit information from reluctant (and sometimes uncooperative) organisations and individuals. While the office of the State Coroner is a tiny office, it attempts to drive thousands of investigations. During my period as State Coroner over 35,000 deaths were reported to the WA Coronerâ€™s Court for investigation. The bulk of these investigation were 36 | Brief February 2014
supervised by the State Coroner and the Deputy State Coroner, but in country regions local Magistrates/Coroners supervised the investigations. The vast majority of investigations were concluded administratively by findings which were forwarded to the Registry of Births, Deaths and Marriages and to the families. How would you describe the role of Coroner and what for you are the most significant aspects of that role? The most important role of the Coroner is to ensure that unexpected deaths are adequately investigated. Evidence is obtained from police, pathologists, toxicologists and a range of other organisations and individuals. This evidence needs to be reviewed to determine whether more investigations are required, in which case the Coroner should give directions to that effect. Part of this process involves identifying possible hidden homicides, but it is far more wide-ranging than simply looking for criminal involvement. The investigations may reveal important health and safety issues and these are of major concern to a Coroner. Most of the work involves reading the files and settling the findings as to the causes of deaths and circumstances surrounding the deaths. In natural cause death cases that can be relatively straightforward, but in all of the cases of suicide (of which there have been about 300 a year) and motor vehicle deaths (of which there have been about 220 a year), there would be a fairly comprehensive investigation file and that would be closely reviewed. To assist in this process we have had two doctors working part time in our office, who review medical files and endeavour to put us in the position where we would be if we were medically trained. When you started in your role 17 years ago did you have a clear picture of what you wanted to achieve in your role and have your goals evolved over the time that you have been State Coroner?
In 1996 when I was first appointed I did not fully appreciate the potential epidemiological role of the Coronerâ€™s Court but otherwise I did in general terms have a fairly clear picture of what I wanted to achieve. Not all of the things that I wanted to achieve were achieved. There were a lot of things I would have liked to have done such as providing answers to people in a much more timely fashion and being able to do more inquests, in some cases quite quickly after deaths. I would also have liked to have improved many of the procedures and created a bench book to give guidance to other Coroners, but because of immediate work pressures I never had that opportunity. Was your role independent of other Coroners or was there shared learning among the Coroners? Ms Vicher, the Deputy State Coroner, and I worked together closely and we always had a good interaction with the country Magistrate Coroners. There has always been an excellent coronial network throughout Australia and New Zealand which has included all of the State Coroners and their equivalents. The importance of this network has been particularly evident following major disasters when State Coroners and their equivalents have communicated with each other and benefited from the past experience and knowledge of the group. This interaction happened, for example, following the Bali Bombings, the Victorian bushfires, the Queensland floods and the Christchurch earthquakes. In your view, what are the standout characteristics that make for a good Coroner. How did you cope with the demands of the office? A good Coroner should be enthusiastic about the role and committed to finding the truth and preventing unnecessary deaths. An enjoyment of learning is helpful as there is a great deal of knowledge to be acquired about many things, about medical procedures,
AN INTERVIEW WITH ALASTAIR HOPE about aircraft fuel systems, about new medications, about the role of different organisations such as the Australian Transport Safety Bureau (ATSB) and Civil Aviation Safety Authority (CASA), about suicide death rates and about almost every aspect of modern life. I coped with the demands of the office and the grief associated with so many deaths by focusing on the positive outcomes which we were trying to achieve. What, in your view, as State Coroner should the Government’s number one priority? Adequate resourcing is more important than legislative change. The present Coroners Act is workable, but there are improvements to the Act which should be made. Law reform should include enhancing the public health and safety role of the court, recognising the different role of the court and separating it completely from the Magistrates Court. In my view, the State Coroner should be a District Court judge. I believe that Coroners should be appointed for life, as with other judicial positions. I also believe that there should be legislative recognition of the role of medical advisor to the Coroner, and the court’s ability to obtain evidence early (before inquests) particularly medical evidence, should be enhanced. In order to implement practical changes from time to time it would be helpful if the Act was amended to contain provision for Rules of Court and the power to publish Practice Directions. With the recent emphasis on occupational health and safety and the rise in legislative initiatives in the area, do you see the Coroner playing an active part in education or law reform to promote accident prevention, improving safety awareness and community standards? Coroners deal with individual cases and do not have a general power to look at issues such as occupational health and safety but have a very important death prevention role. When measures are identified in inquested cases which could be taken to save lives it is fundamental to the coronial role that appropriate recommendations should be made. What if any role in your view does the Coroner have in relation to education? Education is an important role for Coroners, particularly educating the public about coronial procedures. Education is also important in encouraging people to report reportable deaths to a Coroner or police. There are a number of reportable deaths each year that are not reported – a lot
Above: Alastair Hope, Hobart scene, near Mures Restaurant. Right: Alastair Hope, Michael Barnes, former State Coroner for Queensland.
of people and particularly many health professionals, do not know which deaths have to be reported. What will you miss most on your retirement? What I’ll miss most is the good people that I’ve worked with. I’ve met a lot of wonderful people through my work, these have included the staff in our office, the forensic pathologists, the toxicologists, people from the Coronial Investigations Unit and many others. I’ve also met many fantastic people in the community who’ve been most constructive and helpful. What advice would you give to anyone considering a career as a Coroner? I think it’s an exceptionally rewarding position for a lawyer who would like to maintain an involvement with aspects of the law, but who is also be stimulated by learning about the many aspects of modern life and has an interest in medicine and a desire to effect positive changes. Do you have any other comments to make? I think it’s really important that the health role of the Coroner’s Court should be promoted. There is no-one else, for example, who obtains comprehensive information about all suicides. For effective suicide prevention measures to be put in place it would seem obvious to me that an important first step would be to ensure that Coroner’s courts have adequate resourcing to ensure that information capture is consistent and of a high quality. I believe that the Coroner's Court could play an important role in respect of health issues generally. The potential epidemiological value of
information which the Coroner’s Court could obtain has not been well understood. Do you think that it is changing? Not really. I think part of the problem is that the work of the Coroner's Court straddles law and health and at the moment our jurisdiction is situated within law and the important health role is not valued. Normal performance indicators which are applicable to courts do not relate to health issues. I believe that more targeted and better quality investigations of baby deaths, for example, would be likely to provide information which could be used to further reduce infant mortality rates. There’s a wide range of health and safety issues that Coroner’s courts should provide incredibly useful information about. What drew you to your second career as an artist? I have drawn and painted since I was a young child, although until recently the time I have been able to devote to this activity has been limited. I enjoy creating something from nothing, using my hands and my imagination. There are wonderful colours available to artists. Many of those colours have been developed over hundreds of years and it’s great fun using them. It’s an activity which you can fit in any time and do by yourself.
First Title and Bransgroves Lawyers are pleased to present a breakfast Sub heading seminar on Avoiding Mortgage Fraud in Australia Date: Thursday 20 March 2014 Name Title, Organisation Time: Arrive 8.00am registration, commencement at 8.30am - 1.00pm Venue: Four Points Sheraton, 707 Wellington Street Perth 1. Types of Fraud and how to spot them: Matthew Bransgrove, Principal of Bransgroves Lawyers, a firm that specialises in acting for lenders. He is a co-author of the 2013 LexisNexis textbook - â€œThe Essential Guide to Mortgage Law in Australiaâ€?, author of 15 papers on different aspects of Mortgage Law published by the College of Law and multiple articles in the NSW Law Society Journal and Australian Law Journal. His articles and textbooks have been cited with approval by the NSW Supreme Court Imposter fraud, unjustness fraud, value fraud, serviceability fraud, extrication fraud. Learn what they are and how to spot them. Hear the latest and most devious schemes being used by fraudsters wielding the latest technology.
2. Avoiding Fraud in the age of e-conveyancing: Geoffrey Adam, Solicitor and Chief Executive Office of the Australian Institute of Conveyancers, (SA Division) What are the precautions being made against fraud in the new age of e-conveyancing? How will Verification of Identity (VOI) work? What are client authorisations, priority notices and certifications? What are the other requirements? What does this mean for you and your clients?
3. How Title Insurance can protect the practitioner, the consumer and the lender against fraud: Peter Cutajar, National Manager - Legal and Conveyancing Solutions, First Title First Title protects the property owners, conveyancers and lenders against fraud and forgery. Peter Cutajar will discuss this and other practitioner benefits of using title insurance.
4. Precautions against Fraud: Matthew Bransgrove, Principal of Bransgroves Lawyers How to avoid fraud, you know what it is, now how do you make sure it does not happen to you? Matthew Bransgrove will discuss the precautions that brokers, lenders, conveyancers, solicitors for borrowers and solicitors for lenders should take to protect themselves against mortgage fraud.
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Smith v Fields:1 The future of ‘special skill’ Lisa Young* and Liz Wreck**
The difficulties inherent in discretionary decision making of the kind required under s79 of the Family Law Act (Cth) 1975 – which guides how property disputes are to be resolved - are selfevident. Each marriage is unique and the judge must reach a just and equitable2 result by assessing each party’s various contributions and considering any necessary adjustment for their future needs. Usually, two very different types of contributions will have to be compared: contributions to the welfare of the family and financial contributions that have directly contributed to the accumulation of assets. But how to translate this assessment into a financial outcome? ‘Big money’ cases, while exceptional, bring into sharp relief the difficult nature of this exercise and test the mettle of judicial officers in valuing non-financial contributions.3 The High Court laid the foundations of the special skill4 principle in Mallett v Mallett.5 It was cemented by the Full Family Court of Australia in Ferraro v Ferraro,6 a case exemplifying the factual scenario attracting this principle: a long marriage, few assets at the outset and a fortune having been accumulated during cohabitation as a result of an enterprise run by one of the parties. Were it not for the size of the asset pool,7 these cases would otherwise see an assessment of 50/50 based on contribution. The basis of different treatment is that the breadwinners are found to have exercised ‘special skill’ (more recently referred to as a ‘special contribution’) that has resulted in the fortune, thus increasing their relative contribution above the more ‘normal’ contributions of their spouse. While the court says that primary caregivers can attract the operation of this principle,8 the discussion in recent cases evidences that is not how the principle is applied. Until Figgins v Figgins,9 this approach was unchallenged judicially, though there has been ongoing academic critique.10 While Figgins was an inheritance case, in obiter comment the Full Court questioned the principle, saying it would be desirable for it to be ‘reconsidered in an appropriate case’,11 noting it had no legislative basis
and recognising it invited invidious comparisons of different spheres of endeavour within marriage.12 Referring to UK case law,13 the majority preferred a partnership model of marriage, which would preclude a weighting in these cases just because one party’s endeavours were ‘productive of money in large quantities’.14 Figgins highlighted a judicial difference of opinion on this matter, but while some later decisions have referred to the critique in Figgins,15 as the Honourable Justice Ryan noted in Atkins & Atkins16 the Full Court has not authoritatively rejected special skill and the “argument is … still available.”17 However, a judicial revolt over this principle has paved the way for its reconsideration. In SL & EHL,18 the Honourable Justice Warnick took issue with special skills however addressed more broadly the question of the nature of the exercise under s79. His Honour saw special skill as one area where unexpressed ‘values’ were at play, concluding greater transparency was required: ‘unless the role of values’ in this exercise is recognised ‘the chain of authority is mysterious’.19 His Honour concluded the parties’ contributions here (where the assets were conservatively $8 million and thus on the low side to attract a special skill argument) were equal. In Bulleen & Bulleen20 the Honourable Justice Cronin strongly rejected special skills, preferring the partnership approach in Figgins. His Honour found that, aside from an initial contribution and inheritance which warranted a 3.5% adjustment, the parties’ contributions were otherwise equal in a marriage of 47 years that netted a fortune of $150 million. In Smith & Fields the Honourable Justice Murphy also openly challenged special skill. The facts were typical: a very long marriage with three children, few assets at the outset and a fortune from a family construction business in the order of $32-40 million, with the husband the main contributor to the business. His Honour highlighted that while the judges in Mallett rejected equality as a starting point, some of the judgments provide a foundation for the notion of ‘partnership’ in assessing
"The basis of different treatment is that the breadwinners are found to have exercised ‘special skill'..." contribution under s79.21 Recognising some judges may find the lack of guidance in the legislation difficult, his Honour contended that the formulation of a principle that all but presumptively dictates an outcome in a particular range is an improper fetter on discretion.22 Justice Murphy also recognised the irony of the case law maintaining the value of contributions is not dependent on the size of the asset pool,23 however, only identifying special skills where the assets are large.24 His Honour saw ‘special skills’ as risking: giving insufficient or ‘token’ weight to the ‘sphere’ comprising contributions to the welfare of the family or other indirect contributions and doing so is contrary to authority.25 Justice Murphy saw the following considerations as shaping the exercise of discretion: the nature, form, characteristics and origins of the property; the nature and form of the matrimonial partnership; and the nature, form characteristics and extent of the contributions.26 Ultimately, his Honour did not find the parties’ contributions here to be equal. While the wife was ‘overwhelmingly responsible’ for home-making and parenting and … received “very little, if any, assistance from a marriage partner who had little time at home to do other than sleep”,27 the husband’s “ingenuity and stewardship of the business”28 ‘pulled’ his Honour toward a result favouring the husband on contribution.29 Despite warning against placing too much emphasis on the range of outcomes in similar cases, his Honour concluded that he could not ignore them.30 In its result, Smith is not dissimilar to those cases where the special skills argument has succeeded, though at the more generous end to the wife. This evidences the intuitive attraction of a special skills approach. Most recently, Federal Magistrate 39
been guaranteed by the ‘skill’ of the Brewster in Hoffman & Hoffman31 breadwinner. argued he was free to abandon superior authorities in this area,32 referring to 7. Until the requisite threshold of wealth his earlier comments in Palmer & is passed, the parties’ property is Palmer33 where he presaged essentially joint. If these couples 34 the demise of special skill. separated earlier with more His Honour sees special modest assets, the court skill as ‘infected by "Section 79 would have concluded gender bias’ and due recognises that the contributions were to the ‘zeitgeist’ of the equal. The assets used contributions will be era in which the judges to generate the wealth grew up;35 he prefers directed at different were therefore not the the reasoning of Thorpe aims..." husband’s alone; they LJ in the UK case of had the benefit of using, 36 Lambert, which he as they wished, the shares predicts will win favour of their wives. The wives were with the Full Court.37 ‘silent’ partners who shared all of the risks. Why is the contribution Smith & Fields has been appealed38 of that half share of assets to the providing the opportunity for the Full creation of wealth not recognised as Court to reconsider the arguments against a significant financial contribution (in special skill39 which are increasingly being addition to other contributions)? recognised by the judiciary. It is timely to summarise some key points and note 8. The alternative to 'special skills' that a number of these have not yet been is not, as some assume,44 a addressed in judicial discussion: presumption of joint contribution. The High Court in Mallet was clear 1. Big money cases were initially said - the mere fact there is often a to recognise 'special skill'. The finding of joint contribution is not legislation says nothing of skill, and the same as applying a presumption talents or skills that make much less of equality. The effect of Ferraro is money are not rewarded as a special to treat 'normal' and 'big money' contribution, no matter how ‘special’ cases differently, such that Mallet they might be. only applies to the latter category; it 2. Assuming it is about ‘special endorses an assumption of equality contributions’, why do counsel/ of contribution where the asset pool the court continually revert to is small/medium, but not where it is 40 discussions of skill? very large. This is the very opposite of the point of Mallet. 3. If it is not about the skill of making money, what is special about the The special skill principle defies contribution of earnings? Money logical explanation and results in the derived from labour outside the different treatment of mega-wealthy home is not a 'special contribution' ‘breadwinners’ in a gender discriminatory to a marriage - it is a common one. way. Both members of these couples The rationale must therefore be contribute labour – the product of one that the amount of money earned spouse’s labour may be mostly money 41 makes the contribution 'special'; which benefits the family and the no matter how hard-working an product of the other partner’s labour will average breadwinner is, no special be a range of diverse outcomes, usually 42 contribution is recognised. Where other than money, again benefitting then does one draw the line? the family. Section 79 recognises that contributions will be directed at different 4. If contributions are identified as aims – to earning money or to other ‘special’ by virtue of the ‘value’ of things of benefit to the family – but all their product, why are homemakers such contributions must be assessed not judged by, for example, the and valued. Contributions are at their quality of their offspring? core about inputs; not outputs. Further, 5. If the value of the assets triggers s43 directs the court to have regard to the principle, then the court must the need to protect an institution that assume it can determine causality, represents a voluntary ‘union’ of two partialling out other factors that may people; s79 exhorts the court to value have contributed to this success.43 the variety of different contributions spouses make to that union. 6. If these breadwinners had been unsuccessful, the homemaker Big money cases highlight one difficulty spouse would share equally in the in applying s79 but naturally lead to losses. What is the rationale for more general consideration of its proper sharing losses but not profits? This application, as in SL & EHL. However, reverts to causation - the profit is the Full Court does not need to go assumed (retrospectively) to have 40 | Brief February 2014
this far in Smith & Fields; if it considers there is no justification for the different treatment of these cases then no special principle should apply and a spouse could not make an argument for increased contribution on the basis of the high dollar value of the product of their labour. Bulleen exemplifies, and provides a model for, this approach. Justice Cronin makes the crucial point that it is the disparity in contributions that warrants differing percentage allocations. Where there is none, there should be no weighting to either party. In a marriage of the duration of over 40 years where the parties treated their respective roles as important, to distinguish those roles retrospectively and arbitrarily would be wrong. This was a classic partnership of two people who contributed differently but with one goal. They saw themselves as equals contributing to the best of their abilities. That is the way the community would expect those roles to be viewed. That does not mean that there cannot be contributions outside of the partnership roles which are identifiable and make a discernible difference to the parties’ wealth.45 Thus, an initial contribution and an inheritance shifted the weighting slightly in the husband’s favour in this case. This reflects the approach adopted for couples of lesser wealth and shows the alternative to special skills is not just assumed equality of contribution. Further, it may be a couple manages their life differently from the traditional partnership model and this may affect the question of contribution, as the Full Court noted in Dickons & Dickons:46 That task [applying s79] is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship…“…where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?47 Big money cases are exceptional but have much to say about how we value familial contributions and are raising important questions about how s79 is applied more generally. The Full Court will no doubt provide some clarity in this regard, however, this ongoing debate raises the question of whether s79 should be reconsidered so that the significant issues of policy, and
See for example L Young, ‘Sissinghurst, SackvilleWest and Special Skill’, (1997) AJFL, 268 and L Young, ‘A Special Rule for 'Special Skill': Is it Really “Common Sense”?’ (2001) Current Family Law, 189.
See for example Atkins & Atkins  FamCA 656 at ; see also the trial judge in Hill & Hill who adopts the term ‘contribution’ but then refers to the husband’s ‘expertise, astuteness and business acumen’ at  as the key factors; and see the Full Court in that case at .
 FamCA 656.
Ibid at . See also Kane & Kane (2011) FamCA 480 where Austin J considers the authorities concluding that the principle is still of application. As to the uncertainty, see Watts J in Newman & Newman  FamCA 37 who says (after noting recent decisions including Smith v Fields): ‘insofar as there is a special contribution case, this is not one of them’ at .
Though the Full Court has rejected this analysis: JEL and DDF  FamCA 1353 at .
This is reflected by the Full Court’s decision in Stay v Stay (1997) FLC 92-751.
See the detailed discussion of this point in L Young, ‘Sissinghurst, Sackville-West and Special Skill’ (1997) AJFL 268. See also the comments by Murphy J about causation in Hayton v Bendle  FamCA 592at .
See for example Hon Justice P Guest, ‘Special Contributions in Big Money Cases – “Never Mind the Law, Feel the Politics”’, Anglo-Australian Colloquium, Oxford Centre for Family Law and Policy, July 2004, at  available at http://www. familycourt.gov.au (accessed 14 October 2013); and Hon Justice P Guest, ‘Special Contributions: Inheritances, Windfalls and the Like – Are They Special?’, Family Law Residential, Coolum, 1999.
Lisa Young is an Associate Professor in the School of Law at Murdoch University.
Liz Wreck is in her final year of studying law at Murdoch University.
 FamCA 510.
We leave aside, deliberately, any consideration of Stanford and Stanford  HCA 52 in this paper.
L Young, ‘Sissinghurst, Sackville-West and “Special Skill”’, (1997) 11 AJFL 268; L Young, ‘Rich Women and Divorce: Looking for a ‘Common Sense’ Approach’, (2004) 22 Australian Canadian Studies 95.
We accept that the term special contribution is more frequently used in recent cases, though that has not been universal. We prefer to use special skill as a rule because in our view it better reflects the nature of this principle.
with the submission made to him ‘[t]hat the notion of special contribution has all been a terrible mistake’ saying ‘it is a “false doctrine” designed as “a polite way of getting around the drift toward equality”: referred to in Atkins & Atkins  FamCA 656 at - and in Smith & Fields at . In Atkins & Atkins  FamCA 656 Ryan J referred to Hill and to O’Ryan J’s comments and concluded that the Full Court had not been as strong in rejecting special skill as O’Ryan J.
process,48 being raised in modern property decisions are explicitly addressed.
 FamCA 132. See also Young J’s comments in Sebastian & Sebastian (No 5)  FamCA 191 at  endorsing aspects of the decisions in Bulleen and SL & EHL.
 FamCA 132 at .
 FamCA 187. For discussion of this case, see R Ingleby, Hans Christian Anderson, Bulleen and the Emperor's New Clothes' (2010) 24 AJFL 272.
 HCA 21; (1984) 156 CLR 605.
(1993) FLC 92-335.
 FamCA 510 at .
See for example the case of Stay v Stay (1997) FLC 92-751 where the value of the asset pool was held to be too low to attract the operation of this principle.
Ibid at .
Ibid at .
JEL v DDF  FamCA 1353 at .
 FamCAFC 154.
 FamCA 510 at .
Ibid at .
See for example Ferraro at 79,572.
Ibid at .
Such as was raised in Stanford, n 2 above.
(2002) FLC 93-122.
See n 3 above; L Young, "A Special Rule for 'Special Skill': Is it really common sense?" (2001) 7 Current Family Law, 189; P Parkinson, ‘Quantifying the Homemaker Contribution in Family Property Law’ (2003) 31 Federal Law Review 1; R Ingleby, ‘Cry “Figgins” and let loose the dogs of war’ (2002) 8 Current Family Law 192; A Dickey, ‘“Special Contributions” to Property and the case of Figgins” (2003) 77 ALJ 575.
Ibid at -. See also the comments of Murphy J in Hayton v Bendle  FamCA 592 at ff. Note the similar wording used by the Full Court in Dickons & Dickons  FamCAFC 154 at .
Ibid at .
Ibid at  and .
 FamCA 510 at .
Ibid at .
 FMCAfam 1061.
Ibid at .
Ibid at .
Ibid at .
 FMCAfam 999.
White v White  1 AC 596;  1 All ER 1.
A differently constituted Full Court in Hill & Hill  FamCA 42 (Kay, Holden and Boland JJ) referred to the relevant critique in Figgins however this was not the basis on which they upheld an appeal of a first instance decision that credited the husband with a 75% contribution towards the $10.6M fortune amassed during a 17 year marriage. In the same year, in the unreported decision of D & D  FamCA 1462 at  O’Ryan J agreed
Interestingly, Palmer is a case where his Honour also declined to follow the Full Court, this time in relation to the Kennon principle.
 FMCAfam 1061 at .
 EWCA Civ 1685.
 FMCAfam 1061 at -.
Personal communication with counsel for the wife. The appeal was heard in late November 2013 but at the time of writing the decision had not been handed down.
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Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Children – Full Court allows appeal where recovery order application was adjourned without being addressed In Ghorbani & Saeed  FamCAFC 167 (4 October 2013) the father applied for a recovery order when the mother removed a child from his care. The matter was adjourned “for possible interim hearing” (para 12) at which time orders were made as to counselling and an ICL and the case further adjourned for mention. The father appealed on procedural fairness grounds to the Full Court (Bryant CJ, Finn and Loughnan JJ). In allowing the appeal and ordering that the application be heard as a matter of urgency, the Full Court said (para 16): The orders for counselling and appointing an ICL were entirely proper. However, the trial judge was nevertheless obliged to engage with the application made on behalf of the father in this case, being that before those things could be put in place, the child should be returned to the father. The trial judge refused to deal with that application and gave no adequate reasons for doing so. He did so in circumstances where representatives for both parties urged him to give the application a hearing as a matter of urgency. Property – Husband, a director (but not a shareholder) of a corporate trustee and a beneficiary (but not an appointor) of the trust found to be in control of the trust – Kennon v Spry applied In Romano & June  FamCA 344 (17 May 2013) Forrest J held that the assets of a discretionary trust, as to which the husband was a director but not a shareholder of the corporate trustee and a named beneficiary but not an appointor of the trust, was property for the purpose of s 79 FLA. After citing Kennon & Spry (2009) 251 ALR 257 Forrest J said (paras 88-89): There is no doubt … that the assets of the A Trust have been acquired by … the efforts of the husband … It is difficult to see … how anyone could argue that he has not always regarded and treated the trust and its assets as his, to be utilised to his own benefit and the benefit of those others upon whom he wished to bestow generosity, such as his family members and friends. ( … ) I am satisfied that, if the husband wanted to, he could cause the trustee
42 | Brief February 2014
to be replaced, even though his mother and sister are lawful holders of that power to replace the trustee. I am satisfied that the husband’s mother and sister would act according to the husband’s direction … and that they would not have been made appointors if the husband was not satisfied of that himself. Property – Parties lived with husband’s parents rent-free for 13 years of 18 year marriage – Husband’s defined benefit superannuation had accrued over 28 years – HECS debt In Panagakos  FamCA 463 (18 June 2013) the husband initially contributed real estate worth $430,000 and the wife real estate worth $315,000. During their 18 year marriage both worked. There were two children (19 and 16). The nonsuperannuation pool was $1.4m. The wife’s HECS debt was included as the parties’ liability (paras 109-112). Loughnan J said (paras 140-141): The parties lived with the husband’s parents for nearly 14 years, rent free and without the cost of utilities. They had use of the husband’s father’s car at no cost. ( … ) The contribution … by the husband’s parents represents a very substantial indirect, financial contribution … on behalf of the husband. Loughnan J assessed the initial and parental contributions of the husband to the non-super at 55 per cent and to the pool comprising the husband’s defined benefit superannuation worth $800,233 at 65 per cent. An adjustment of 5 per cent was made for the wife in each pool for s75(2) factors, including her need for housing and her primary care of a child (16) and the husband’s continued free accommodation from his parents. Property – Granddaughter as litigation guardian for husband (a nursing home resident) – Prior agreement between husband and wife – Stanford applied – Held that the existing property arrangements had not been ‘brought to an end’ – Application summarily dismissed In Shearer & Defazio  FCCA 1596 (11 October 2013) Judge Lapthorn heard an application by a granddaughter as litigation guardian for the husband (resident in a nursing home) filed a month before his
death. The wife, who lived in the former matrimonial home registered in her name, applied for summary dismissal of the application. The husband and wife had agreed to, but not signed, a document (prepared by a neighbour) acknowledging the wife’s entitlement to ownership of the property. In summarily dismissing the application, Judge Lapthorn cited Stanford  HCA 52, saying at para 43: In light of the agreement and Mr Defazio’s financial commitments being met while he was in the hospital and nursing home, I accept the respondent’s submission that there was no basis for concluding that with Mr Defazio’s admission to the nursing home ‘the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end’ (para 42 of Stanford). Property – Geographical and other requirements for a de facto financial cause In Harriott & Arena  FCCA 1604 (16 October 2013) Judge Scarlett dismissed an application by a de facto wife for not meeting the geographical thresholds of s 90SK of the Family Law Act. The applicant (de facto wife) deposed that she met the respondent in 1999 in Sydney, moving in 2000 overseas where they lived together; that she sold her property in Australia, taking leave of absence from her employer and foregoing shared care of her child of a previous relationship. She deposed to contributing $30,000 towards the purchase of the parties’ business and $30,000 towards the purchase of the parties’ home overseas. The parties separated in December 2011 and the applicant returned to live in Australia. The respondent sought an order that the application be dismissed as there had been no 'substantial contributions' in NSW under s 90SK(1)(b)(ii) and that any substantial contributions by her either pre-dated the de facto relationship or took place overseas, not in a participating jurisdiction. Judge Scarlett agreed. 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.
Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Federal Court Act 1976 (Cth) Allowing appeal by consent In Bradken Ltd v Norcast S.ar.L  FCAFC (8 November 2013) a Full Court reviewed authority as to the circumstances in which an appeal by consent will be allowed under s25(2B) of the Federal Court Act 1976 (Cth). Income tax Section 255 Income Tax Assessment Act 1936 (Cth) In Commissioner of Taxation v Resource Capital Fund IV LP  FCAFC 118 (22 October 2013) a Full Court allowed an appeal from the primary judge concluding that s255 of the Income Tax Assessment Act 1936 (Cth) did not operate in the same was as s218. The Court also concluded there was nothing in s255 to find the term 'money' referred only to Australian currency. Income tax Administration – role of Commissioner’s practice statement In Macquarie Bank Ltd v Commissioner of Taxation  FCAFC 119 (24 October 2013) a Full Court dismissed an appeal against the finding of the primary judge that in assessing tax for past years following an audit, the Commissioner was required by its Law Administration Practice Statement PS LA2011/27 to apply the same view of the law as had been held at the relevant time. The Full Court considered the role of the practice statement and observed it cannot affect the duty of the Commissioner to apply the law as it is understood. Role of summary dismissal procedure in s11A of the Federal Court of Australia Act 1976 (Cth) for want of 'reasonable prospects of success' considered. HIGH COURT Duty of prosecutor to call relevant witnesses In Diehm v Director of Public Prosecutions (Nauru)  HCA 42 (30 October 2013) a bench of three (French CJ, Kiefel, Bell
JJ jointly) concluded that failure of the prosecution to call a Nauruan police officer present at the search of the accused’s house was not a breach of any duty of the prosecutor or the Court to ensure there was no miscarriage of justice. Appeal dismissed. Motor accidents (NSW) Damages – economic loss – value of services provided gratuitously In Daly v Thiering  HCA 45 (6 November 2013) Mr T was seriously injured in a motor vehicle accident involving D in NSW in 2007. Many of Mr T’s needs were provided by his mother Mrs T under an arrangement between the mother and the Lifetime Care and Support Agency NSW. In an action for damages Mr T included a claim for the value of the care provided by Mrs T. In answer to a preliminary question the primary judge concluded that s130A of the Motor Accidents Compensation Act 1999 (NSW) did not preclude Mr T’s claim for the value of services provided by his mother. On appeal by D this was reversed by the Court of Appeal (NSW). The High Court in a joint judgment allowed an appeal by D to reach the same result as the Court of Appeal but by providing a different answer to the question: Crennan, Kiefel, Bell, Gageler, Keane JJ jointly. Native Title Right to take fish – relationship between state laws regulating activity and native title rights In Karpany v Dietman  HCA 47 (6 November 2013) K and others were aborigines charged with taking undersize fish contrary the Fisheries Management Act 2007 (SA). The Magistrates’ Court at Kadina accepted they had fished according to traditional custom and acquitted them. This was reversed by the Full Court of the Supreme Court of SA. Their appeal to the High Court was allowed. The High Court concluded that state legislation did not extinguish native title to take fish but only regulated it: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ jointly. Appeal allowed. Orders of Full Court set aside.
Practice Privileged documents inadvertently discovered In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited  HCA 46 (6 November 2013) in 2011 solicitors acting for the appellants inadvertently disclosed about 13 privileged documents in discovery of 60,000 in proceedings in the Supreme Court of NSW. In answer to a request that the inadvertently released documents be returned, the solicitors for the respondents claimed privilege had been waived. The appellants commenced proceedings in the equitable jurisdiction seeking injunctive relief. The primary judge found the disclosure of nine documents was inadvertent and ordered their return. The Court of Appeal (NSW) allowed the respondent’s appeal on the basis the mistake would not have been obvious. The High Court in a joint judgment restated the matters raised in AON Risk Services Australia Ltd v Australian National University (2009) CLR 175 as to the need after the commencement of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) to conduct litigation to achieve just, quick and cheap results: French CJ, Kiefel, Bell, Gageler, Keane JJ. The Court considered the dispute should not have been raised in proceedings in equity and the inadvertently released documents should have been ordered to be returned. 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
LAW COUNCIL UPDATE
LAW COUNCIL WELCOMES KOREA-AUSTRALIA FREE TRADE AGREEMENT The Law Council welcomes the announcement by the Federal Government of the conclusion of the Korea-Australia Free Trade Agreement (KAFTA). The Agreement includes important outcomes for Australian lawyers wishing to practise in Korea. Law Council of Australia President, Mr Michael Colbran QC, said that under the Agreement, Australian lawyers will be able to work in Korea as Foreign Legal Consultants for Korean and foreign law firms, and Australian law firms will also be able to establish and operate representative offices. “The Law Council has long promoted the international liberalisation of legal services. “As one of Australia’s largest two-way trading partners, Korea is an important market for Australian lawyers,” Mr Colbran said. In 2011, South Korea partially liberalised its legal services market. However, Mr Colbran said rights of access for Australian lawyers and law firms have been limited by the lack of a free trade agreement between Korea and Australia. “The liberalisation of legal services in Korea has been an important issue for the Law Council. “This Free Trade Agreement will help to develop and strengthen the relationship between the Australian and Korean legal professions. “The Law Council looks forward to working with Korean lawyers under the Agreement to foster and promote their mutual interests and cooperation in the law,” Mr Colbran said. In 2012, the Law Council co-hosted a seminar in Tokyo with the Korean Bar Association (KBA) and the Japan Federation of Bar Associations on ‘crossborder legal practice in the Asia Pacific region.’
44 | Brief February 2014
“Under its Memorandum of Understanding with the KBA, the Law Council recognises the growing importance of trade and other ties between Australia and Korea and the vital role played by the legal profession in facilitating these relationships. “The Law Council looks forward to working with its constituent bodies and the Korean Bar Association over the coming months to promote opportunities available under the KAFTA,” Mr Colbran said. LAW COUNCIL AWARDS ELIZABETH HEENAN 2013 PRESIDENT’S MEDAL The Law Council of Australia has announced Mrs Elizabeth Heenan as the 2013 recipient of the Law Council of Australia President’s Medal. The President’s Medal is an annual award that recognises an Australian lawyer’s outstanding contribution to the legal profession. Law Council of Australia President, Mr Michael Colbran QC, presented Mrs Heenan with her award and said her personal and professional contribution to the Australian legal profession in a career spanning more than 36 years has been inspirational. “Elizabeth’s lifelong commitment to advancing the interests of women in the profession, along with her extensive contributions to academia and to the work of professional associations, make her a most highly valued member of the Australian legal profession,” Mr Colbran said. Award recipient, Mrs Elizabeth Heenan, said she was honoured and humbled to be the recipient of the Law Council’s President’s Medal. “I come from the coalface of the profession, being a solicitor, I am much more involved with the public on a day to day basis.” During her acceptance speech Mrs Heenan noted she was pleased to see the support the Law Council has given in recent years to furthering the causes of those in the profession who perhaps may
be at a disadvantage. “We’ve seen this support through the adoption of the Equitable Briefing Policy, the support for the Court Appearance Survey and the National Attrition and Re-engagement Study which is examining why there is a high rate of attrition of women lawyers in the legal profession – all of which contribute to furthering the role of women in the profession,” Mrs Heenan said. The support the Law Council has given in encouraging the participation of indigenous students by the award of the John Koowarta Reconciliation Law Scholarship and the setting up of a separate committee to deal with indigenous issues was also recognised by Mrs Heenan. As a highly respected mentor and advocate for change within the legal sector, Mr Colbran said Mrs Heenan has been a positive and influential role model for many lawyers. “Mrs Heenan served the legal profession as President of the Law Society of Western Australia in 2003 and is a continuing member of the Law Society. “Mrs Heenan has also made a great contribution to the Law Council – serving as Director in 2003 and for many years as a member of the Equalising Opportunities in the Law Committee and the National Elder Law and Succession Law Committee. “It is important that the profession recognises and honours the work of our colleagues who have paved the way for others and given so much of their time and energy to the benefit of the profession and the community at large. “Mrs Heenan is a woman of courage, determination and commitment, as well as being an excellent role model for all lawyers - she is a very worthy recipient of this award,” Mr Colbran said. Further information on the President’s Medal is available at the Law Council of Australia website.
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Francis Burt Chambers Clinton Russell has commenced as a barrister at Francis Burt Chambers. He can be contacted on 9220 0306 or by email to firstname.lastname@example.org
Klimek & Co. Tamara Arapovic has been made a Senior Associate with Klimek & Co. Katherine Novelli has been made an Associate following her admission to practice on 7 November 2013.
Warren Syminton Ralph Warren Syminton Ralph is delighted to announce that Eric RossAdjie has joined Rod Warren, John Syminton, Alex Salvaris, Andrea Keri, Ian Compton and Stephen Doyle.
Castledine Gregory Law and Mediation
Paterson & Dowding Family Lawyers Paterson & Dowding Family Lawyers are pleased to announce the appointment of three new lawyers. Sharni Redfearn is welcomed back to the firm as a Senior Associate. Joanna Lamparski and Miranda Robertson are also welcomed to the team.
Sarah Mansfield has joined Castledine Gregory Law and Mediation. Sarah was recently recognised by Lawyers Weekly as one of the top 3 environment and planning lawyers nationally under the age of 30. Her experience includes advising both the public and private sector on all aspects of contaminated land, waste and environment and project development law. Sarah’s contact details are 08 9486 7665 and S.Mansfield@ cglawmediation.com.au
For advertising opportunities in Brief 2014 please contact:
Joanna Bryant Business Development Executive
Borrello Legal is pleased to announce that Ian Rogers has been appointed as Special Counsel to the firm with effect from 1 January 2014. Ian joined the firm as a Senior Associate in March 2012.
T: (08) 9324 8660 E: email@example.com lawsocietywa.asn.au
46 | Brief February 2014
NEW MEMBERS & CLASSIFIEDS
New Members December 2013 Associate
Mr Robert McGregor
Mr Paul Marinko
Miss Elvira Mustafa
Dr Marc Saupin
Marc G Saupin Pty Ltd
Miss Kimberley Pender Mrs Natalie Saupin
Marc G Saupin Pty Ltd
Mr Lance Spice Miss Jessica Stewart Ms Jess Tey Mr Thinesh Thillainadarajah
Classifieds Special Investigations (Australasia)
CEASING TO TRADE Karp Steedman Ross-Adjie Lawyers are ceasing to trade and as a result have a Äreproof deed safe, various ofÄce furniture and equipment as well as a heavily discounted reassignment of a copy plan available.
James (Jim) Milligan M Crim Just (UWA) BSc (Security) • Legal InvesƟgaƟons • Electronic Eavesdropping DetecƟon M: 0404 227 972 E: firstname.lastname@example.org
Contact: (08) 9226 1880 Email: email@example.com
Cost School Masterclass
Saturday, 15 February 2014 9.00am - 2.30pm Level 5, 160 St Georges Terrace, Perth The Law Society of Western Australia is proud to present our annual Cost School Masterclass, brought to you by the leading authority on costs, David Garnsworthy. This refreshed and reformatted event is a practical, hands-on masterclass of the law of costs.
Proudly sponsored by
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Drover's Dog “The Dog was created specially for children. He is the god of frolic.” – Henry Ward Beecher This month’s round up of notable cases with the Dog’s unsophisticated analysis of what they might be about: Rhodes-Smith v Noddies Properties Pty Ltd  WASC 426 A case about rental agreements in Toytown? The State of Western Australia v Camus  WASC 158 The State finally makes thought (and writing about thought) a crime… Farkas v Ping; Wang v Farkas  NSWCA 440 Irrelevant really what the case might be about the Dog was just giggling like a small child at the thought of the Court Orderly or Associate calling the case in the quiet and dignified solemnity of the Court. The Dog’s award for most interesting summary / headnote of the month and most breathtakingly outrageous conduct by a solicitor goes to the matter of Singh v Legal Services Commissioner  QCA 384 where the following was recorded in the headnote: … where the appellant has practised as a lawyer in New Zealand, Fiji and Australia – where the appellant, while representing a client in Fiji
Law OfÀce Management Committee Seminar
on a charge of corruptly seeking a payment from a witness, attempted to bribe the witness to change his evidence – where the appellant was subsequently convicted in Fiji of attempting to pervert the course of justice – where the appellant was, inter alia, removed from the Fijian roll of local practitioners for six years – where the appellant failed to give notice of his conviction to the Queensland Law Society … The outcome for Mr Singh was predictably that his appeal failed and his name remains removed from the roll in Queensland. The Dog wonders how he ever thought he was going to get away with it in circumstances where the witness had already demonstrated (to Mr Singh’s client) that he was not prepared to be corrupt and had gone to the Police about the client’s conduct so his answer to Mr Singh’s apparent enquiry was a foregone conclusion … The Dog wishes the firm of Geoghegan Myers Legal well and in particular congratulates former hardworking legal aid duty counsel Ms Rosie Myers on her new firm. However if the firm is going to do criminal law the Dog wonders out loud whether the new office address gives the best possible ‘vibe’ to the clients: “1st Floor Room 5, Fremantle Prison,
Knutsford Street, Fremantle” From the Dog’s ‘only in America’ file comes the following incident which has been reported elsewhere on the internet but which deserves a rerun even in summary form: A prosecutor recently applied to the Circuit Criminal Court of Williamson County, Tennessee to force the defence lawyer whose actual real legal name (seriously) is Mr Drew Justice (no, really, look him up on the internet) not to refer to her as ‘the Government’ as that phrase was being used in her view to inflame the jury and to try and cause them to dislike her. Mr Justice, it is fair to say, upped the ante in his written submissions in response and suggested that the Court change the way he was referred to as ‘Defender of the Innocent’ or the ‘super hero sounding’ Captain Justice, also proposing that the Defence be renamed ‘the Resistance’. The Court denied the prosecutions application and appears sadly to have failed to take on any of Mr Justice’s very reasonable suggestions. Send any amusing legal anecdotes, funny pieces of transcript or rumours to the Drover’s Dog c/o the Law Society and they will be treated with maximum confidentiality.
Mental Illness in the Workplace for Supervisors and Managers - 1 Day Seminar Wednesday, 12 February 2014 8.45am - 4.00pm CPA Australia, Level 17, Alluvion, 58 Mounts Bay Road, Perth Supported by the Mental Health and Wellbeing Committee All participants receive 3 month access to Blooming Mind’s online Membership Program “Bloomers” including: • Articles and reference material; • Access to one monthly webinar; • Telephone and email support to help implement the information learnt in the course.
REGISTER ONLINE lawsocietywa.asn.au
48 | Brief February 2014
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