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Volume 41 | Number 8 | September 2014





At Shearn HR Legal – Human Resource + Recruitment, we are committed to providing the very best service to our clients and candidates. We are proud to share with you our 16 years or more of expertise, whether it is assisting in recruiting professional legal staff for your law firm or in-house legal team or providing lawyers of all levels, extensive career advice, in these exciting but turbulent times! Our knowledge of the market is unrivalled. Please consider the following opportunities currently available and visit our website or call Julianna Shearn for further information.

The following are a few of the roles on offer at Shearn HR Legal – Human Resource + Recruitment: • • • • • • • •

Projects & Infrastructure, Contracts & Front-end Construction Lawyer – Junior to Mid – 2 to 4 years’ post admission level. Corporate Lawyer – Senior Associate – 5 to 7 years’ post admission level. Workers’ Compensation – Associate – 3 to 5 years’ post admission level. Professional Indemnity – Senior Associate – 4 to 10 years’ post admission level. Corporate Banking & Finance, Project Finance – Mid to Senior Associate – 3 to 8 years’ post admission level. General Commercial and Litigation – Senior Associate – 5 to 10 years’ post admission level. Commercial Lawyer – Senior Associate – 8 to 15 years’ post admission level. Commercial Property Leasing – Senior Associate – 4 to 8 years’ post admission level.

We have a range of roles in boutique, local, national and global law firms, as well as a couple un-advertised In-House Roles. If you are considering a career move, call Julianna for a confidential discussion about your career prospects.

We place passionate people through honest discernment. We take the stress out of finding a new role. We understand that your time is precious. We make it our mission to understand exactly what you are seeking in your career move and your long term objectives so that we can present you with the most suitable roles. We provide you with accurate, up to date market knowledge and insight to ensure that you arrive at interviews confident and well prepared.

Candidates that Shine We help manage the process. We arrange interviews, manage the feedback process and negotiate on your behalf as to remuneration and offers of employment. This means that you are not inundated with inappropriate interruptions during work hours. We are the intermediary and we ensure that your interests are protected. We maintain confidentiality, privacy and respect at all times.

We work as part of a profession that we came from and in which we passionately believe.

Julianna Shearn B.Juris.,LL.B. Director 0401 001 888

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355



Volume 41 | Number 8 | September 2014

Take me with you.


14 02

President’s Report


Keeping your head above legal water

Konrad de Kerloy

David Davidson




LawCareWA for Members

Rebecca J Lee


Pam Sawyer


Executive Director’s Report

David Price


An Interview with Gabrielle Sammon


(Client) identity crises


Family Law Case Notes

Gino Dal Pont


Thomas Hurley Case Notes


Tax Concessions for Property Transfers on Relationship Breakdowns

Grahame Young


FEATURE From Little Things, Important Things Grow

Marilyn Krawitz


2014 Social Justice Opportunities Evening

Thinesh Thillai


2014 Hypothetical: The Fast and the Furious

Dean Curtis


The Importance of Providing Estimates of Costs When Entering Into a Costs Agreement

Matt Curwood


Timeliness in the Justice System: ideas and innovations: “because delay is a kind of denial”

The Honourable Wayne Martin AC, Chief Justice of Western Australia

DISCLAIMER The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by The Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by The Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Eleanor Jackson Business Development Executive Tel: (08) 9324 8639 Email: Communications Officer Tanya Holzmann Graphic Designer Brett Syme RRP $15.00 incl GST. Printed by Scott Print


Law Council Update


The Clued up Kids Competition

Maire Ni Mahuna


Professional Announcements


New Members




Events Calendar

EDITOR Rebecca Lee

PRESIDENT Konrad de Kerloy

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


PROOFREADERS Michael Hardy, Leisa Mundy Brief is the official journal of THE LAW SOCIETY OF WESTERN AUSTRALIA Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 Fax: (08) 9324 8699 Email: Web: ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome. For further details, please contact

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 National Legal Profession Reform As many readers of this column would be aware, the Victorian and New South Wales governments have agreed on a uniform scheme for regulation of the legal profession in their two States. The uniform scheme is expected to come into force in Victoria and New South Wales early next year. During the course of this year the Society has been reviewing the uniform scheme and considering whether it would be appropriate for Western Australia. The Society has produced a detailed report entitled Review of the Legal Profession Uniform Law. A copy of the report can be found on the Society’s website. In July 2014, a discussion draft of the report was widely circulated to members of the Society, as well as most other members of Western Australian legal profession and to other stakeholders. The responses which were received have been taken into account in the final report. Responses received are annexed to the report. In addition I have been reporting regularly to the Society’s members in relation to the progress of the review and seeking feedback from them. Those members who have spoken to me about the uniform scheme are supportive of it. I have not personally received any feedback from any members which indicate any opposition to it. The primary purpose of the report was to consider whether, and to what extent, enacting legislation to apply the uniform scheme in Western Australia would: (a) address the concerns expressed by the Attorney General for Western Australia, Hon Michael Mischin, in a speech which he delivered in November 2011 (principally referral of powers and consequent loss of control over regulation of the WA profession); and (b) be consistent with the 13 points articulated in the Law Society’s 02 | Brief September 2014

regulatory body that is run by representatives of the legal profession and that is independent of government; and

National Regulatory Framework Policy Positions. The report has concluded that the uniform scheme could be enacted in Western Australia in such a way to address the Attorney-General’s concerns and that the uniform scheme meets most of the 13 points. The Society considers that the uniform scheme has many features which will benefit the profession in Western Australia. In particular the uniform scheme contains provisions which will result in: (a) a structure for the regulation of the profession which respects the primacy of the Supreme Court of a State in relation to, the admission to and removal from, the Roll and the role of local regulatory authorities in relation to discipline; (b) uniform admission criteria; (c) a uniform code of conduct; (d) uniform disclosure obligations in relation to costs; (e) uniform continuing professional development rules; and (f) a more liberal regime for the admission of foreign lawyers. Importantly, the objectionable elements of the original Commonwealth proposal have been dealt with or removed in the uniform scheme. At its meeting on 26 August 2014, the Council of the Society unanimously resolved to adopt the report and to accept the recommendation contained in it which is in the following terms: That the Law Society of Western Australia recommends to the Attorney General of Western Australia the adoption of the Uniform Law as a law of Western Australia with the following variations: •

the entrenchment of a Western Australian representative on the national Legal Services Council;

the continuation of a local

maintenance of the following aspects Western Australian legal costs regime: o a legal costs committee with the power to determine costs scales; o the power of courts to make special costs orders; and o that costs agreements that are not compliant with disclosure obligations are voidable but not automatically void.

On 2 September 2014, the Executive Director, David Price and I met with the Attorney General to present the report and the Society’s recommendation to the Government of Western Australia. I also offered the Society’s assistance with any further analysis of the uniform scheme or its adoption as a law of Western Australia. The Attorney General is currently considering the report. I will report further once we receive a formal response. The Law Access 2014 – 2017 Business Plan Law Access was established by the Society in October 1992 to coordinate the giving of free, reduced fee, cost recovered or fixed fee legal advice or representation by the legal profession. The service is targeted at those people in the community in genuine need of legal assistance who are unable to afford the usual rates charged and are unable to obtain Legal Aid or assistance from a community legal centre. The Law Access Pro Bono Referral Scheme acts as a clearing house to help people obtain pro bono legal assistance in areas of law where there is limited or no assistance available from Legal Aid or any other agency. The scheme is designed to increase community access to justice and legal services where all

other avenues of assistance have been exhausted. The scheme is also a useful focal resource for non-profit organisations to seek assistance from the legal profession. Law Access has already significantly increased pro bono referrals due to partnerships with the Australian Government Solicitor and the Edith Cowan University Law School which were formed in September 2012. Law Access also engages with a large number of important stakeholders, including the significant numbers of lawyers across all areas of the profession who are committed to delivering pro bono services. Many of these lawyers agree to take our pro bono referrals because they know and trust the Law Society and its Law Access Programme. In 2013 issues were identified concerning duplication of resources and client bounce as well addressing the needs of regional and remote communities. In November 2013 the Society’s Council endorsed the recommendations made by the PILCH (Public Interest Law Clearing House) Reference Group on 24 October 2013 to improve pro bono coordination in WA. On 22 February 2014 six councillors took part in a Law Access workshop to discuss how to progress the recommendations. This meeting led to the establishment of a ‘Working Group’ comprising Matthew Keogh, Brendan Ashdown, the Executive Director and the Executive Manager Community Services to progress a Business Plan for an enhanced Law Access in order to implement the recommendations endorsed by Council in November 2013. Assisting the Society’s representatives were representatives of the Community Legal Centres Association of WA, the PILCH Reference Group and a subset of this group, the PILCH Steering Committee. Reference Group members represented key stakeholders including barristers and large, medium and small firms engaged in pro bono work, community legal centres and university law schools. The stakeholder Reference Group was subsequently provided with a copy of the draft business plan and met on 15 July to provide feedback. Feedback was also received from a number of stakeholders who were unable to attend the reference group or who had to consult with their governing bodies before providing feedback. The feedback has been overwhelmingly supportive. The Working Group, in consultation

with the Society’s Access to Justice Committee, has reviewed the comments from stakeholders and modified the business plan accordingly. The final plan entitled The Law Access 2014 – 2017 Business Plan was endorsed by the Council of the Law Society at its meeting on 26 August 2014. As the report highlights, reducing bounce will save time and reduce stress for community legal centres and small, medium and large firm pro bono coordinators who are otherwise often approached by many individuals seeking help and who would otherwise waste resources assessing the same matter one after another. The stated goal of the Business Plan is to undertake a staged enhancement of Law Access in order to drive the following improvements to pro bono co-ordination and delivery of pro bono services in WA: 1. Continue to increase pro bono placement rates and strengthen the pro bono culture in WA; 2. Reduce the time taken by Law Access to undertake merit assessments; 3. Improve coordination across pro bono providers in Western Australia to reduce the current level of client ‘bounce’ resulting in duplication of triage and assessment effort; 4. Undertake coordinated research and policy to support and better target pro bono work undertaken in WA; and 5. Implement strategies to promote pro bono service delivery and meet pro bono service needs for example in regional and remote areas and in refugee and consumer law. The Society believes that implementation of the Business Plan will provide the following benefits: •

better service to the public and lawyers in regional and remote areas.

improved community standing of the Law Society and the profession as a whole.

improved coordination and reduced client bounce.

better and more effective use of Public Purposes Trust funds.

will build on our current strengths and partnerships (eg ECU and AGS) and allows us to further strengthen our engagement with the profession on this issue.

a valuable service to the profession by ensuring: o The profession can refer all pro bono enquiries to Law Access for triage and placing o Members of the profession can obtain further assistance with pro bono matters if required eg by seeking a pro bono barrister where necessary.

On behalf of the Society, I extend our thanks for all of those who have been involved in the preparation of this important report. The Honourable Robert Nicholson AO KStJ – Life Member At the President’s Cocktail Party held on Thursday, 28 August 2014, I had the privilege to present Robert Nicholson AO KStJ with life membership of the Society. Life membership is awarded to those Society members who have contributed to the administration of justice; to the Law Society of Western Australia; to the legal profession and the broader community, making them particularly worthy of recognition. Bob is an extremely worthy recipient. His contribution has been nothing short of extraordinary. His contribution as a Deputy President of the Administrative Appeal Tribunal, a Justice of the Supreme Court and a Justice of the Federal Court for over 20 years is well known. Less known are his many other contributions to the legal profession and the broader community including as Secretary General of the Law Council of Australia, as Chancellor of Edith Cowan University, as National President of the Australian Fullbright Association, as Chair of the Optometrists Registration Board, of the Guardian and Administrations Board, of the Australian Institute of Administrative Law (WA), of the Malcolm Sargent Cancer Fund for Children (WA) (now Redkite) and of the WA Historical Foundation. Bob has also served as secretary or member of numerous other boards including the LAWASIA Judicial Section, UWA Senate, PLC and Burt Law Centre. He was the Vice President of the Law Society in 1985 and 1986. On behalf of the Society and its members, I extend our sincere congratulations to Bob for this award and our thanks for his lifetime of extraordinary service. Long may it continue.



A Healthy Weight Rebecca J Lee, Barrister, Francis Burt Chambers, Editor, Brief Journal September already – where has the year gone? If 2014 is feeling like a slog, find some time to enjoy the pleasures of spring just outside your door. As the DPP's David Davidson reminds us in this issue, it's also possible to take a meaningful break without leaving the office. He highlights numerous ways in which law firms and government legal departments are helping staff get work and life back in balance, such as in-house massage, yoga and pilates sessions, and lunchtime health and wellbeing seminars. It's an uplifting read, especially thanks to the occasional levity – I think we may all be with you on subsidised day-spa sessions, David! GIVING BACK Another way to step back from the pressures of work, and realise it may not be critical to the future of the human race, is volunteering. Volunteers often find they not only give but also receive, as our Q&A with young lawyer Gabrielle Sammon reveals. Providing pro bono legal assistance to a refugee applicant was very rewarding for Ms Sammon, in part because she was able to gain experience in litigation and judicial review. We are also pleased to report on two youth-oriented programmes made possible by volunteers from the legal profession: the West's inaugural Clued Up Kids competition, and the fourth Hypothetical event. We hope you are inspired to get involved with these and other programmes, make yourself available for pro bono work ... or perhaps you would like to help out at Brief? We always welcome new contributors and other offers of practical assistance. NUMBER CRUNCHING September's cover story highlights how the law may be able to assist young people in a way you probably never have considered: legislation requiring modelling agencies, media and advertisers to use models of a healthy weight, and avoid manipulating images in ways that make models

04 | Brief September 2014

appear unrealistically thin. Solicitor and academic Marilyn Krawitz questions the efficacy of the Voluntary Industry Code introduced in Australia in 2009, and argues for binding legislation similar to that passed in Israel last year. At first blush, such legislation may seem draconian or potentially ineffective, but there has been a precedent set by Australia's tobacco advertising legislation. To read Ms Krawitz’s detailed discussion on this, readers may wish to read the full article in the Journal of Law and Medicine. Most powerful of all is the statistics she cites there regarding young people and body image, including the fact that eating disorders is the second most likely cause of young Australian women being admitted to hospital. At Brief, we hope the inclusion of Ms Krawitz’s article as a cover will be enough to at least get discussion going about the law's role in alleviating what is obviously a serious problem. Last month’s cover story was part one of a speech given by Chief Justice Wayne Martin about the importance of timeliness in the justice system. We now offer you the conclusion, in which his Honour questions the usefulness of statistics gathered about the speed at which our courts function. He is particularly scathing of data that lumps together open-and-shut cases with long, complex ones, and concludes that we may be better served by auditors rather than statisticians in this instance. MONEY MATTERS I doubt there will be much argument about the fiscal wisdom of Matt Curwood's contribution. He makes clear how critical it is for clients to be promptly informed of their likely costs when retaining legal representation, including an estimate of costs recoverable or payable in litigation cases. Particularly illustrative is his review of the Supreme Court of Western Australia's finding in the 2013 case of Smith v Lewis Blyth & Hooper: two of three cost agreements were cancelled,

essentially because the firm had not advised its client of his likely costs. This failure was particularly difficult to defend because the provision of such advice was stipulated in the retainer agreement signed by the parties. After reading Mr Curwood's sobering insights, you may wish to schedule your attendance at the Law Society's forthcoming seminar on this subject, which will include a review of amendments currently being made to the Society's standard client/lawyer retainer agreement. Another money matter explored in this issue will be of particular interest to those engaged in family law. As our correspondent reveals, a June ruling by the Office of State Revenue will deliver some tax relief when property is transferred from family trusts and companies to spouses and de facto partners after relationships break down. The devil is, as always, in the detail, however.

Brief welcomes your thoughts and feedback. Send all letters to the editor to



This top tier firm has 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.

This award winning corporate law firm is renowned for their unbeatable service to clients both nationally and internationally. Due to internal restructure an immediate opportunity exists for an experienced Legal Secretary in the area of Commercial Property.

Working with an impressive client base, you’ll work on major construction, engineering and infrastructure projects. The team has expertise in both front and back end matters, and your role will entail both dispute resolution, as well as noteworthy construction advisory work.

Supporting a dynamic team you’ll engage in a wide range of duties in 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 within this crucial role. Your superior technical ability will be essential in providing efficient secretarial support.

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 within this firm. You’ll have proven experience in project documentation and advice across a broad range of construction documents and procurement methodologies including PPP, alliance, EPC and EPCM contracts. You’ll also be fully conversant in financial matters concerning construction and engineering projects. Contact Amy Borthwick at or 08 9254 4598.

This is a varied role and you’ll require at least 4 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 your bright and bubbly attitude will be imperative. On offer is a diverse role in a friendly environment with a generous salary package. Contact Lennie Waller at or 08 9322 5383.



This leading top tier law firm offers a full business law service to Australian and International financial institutions and corporations. They are currently seeking a Senior Associate to join their Banking and Finance team.

This banking and finance practice has grown through retaining leading, highly skilled Lawyers which in turn has allowed the practice to service a diverse, global client base; industries to include financial institutions, energy, mining, transport, technology and life sciences. Working closely with the Partners you’ll be required to work on a range of financings to include project and infrastructure, acquisition finance, structured finance and general corporate. This role requires a candidate with the ability to work autonomously within a high performing team. The ideal candidate will have international experience within the financial services sector from a top tier firm.

This thriving boutique firm are renowned for providing an excellent quality of service to their clients, specialising in Commercial law. An opportunity exists for an experienced Legal secretary to provide much needed support and assistance to two Partners in the Western Suburbs. Working with an established and experienced team this dynamic role will require both excellent technical and communication skills. You’ll be responsible for drafting a range of documents and correspondence, managing and maintaining files, organising meetings and attending to telephone enquiries. To ensure your success in this rewarding role you’ll be organised, hardworking and efficient. A minimum of three years of solid secretarial experience with solid knowledge of Litigation is essential. In character you must have an approachable nature and thrive in this varied role in friendly team.

Contact Amy Borthwick at or 08 9254 4598.

Contact Lennie Waller at or 08 9322 5383.


Executive Director's Report David Price, Executive Director, The Law Society of Western Australia NOT YET RENEWED YOUR MEMBERSHIP? If you are yet to renew your membership please ensure you do so before the end of September to continue receiving the Brief journal, weekly eCommunications, CPD Active, member only events and the many great benefits available through our member privilege partners. The easiest way to renew is online at, however your Member Services team is always available by phone 9324 8638/9324 8649 to assist or answer any questions you might have. Thank you to members who have already renewed for the 2014/2015 membership year. Law Access Business Plan As mentioned in the President’s Report, the Law Access Business Plan has been endorsed by Council. The plan outlines 3 steps for a staged enhancement of Law Access promoting access to justice for the community. Stage 1 – Financial Year 2014/2015: Commencement of the new governance structure of Law Access with a moderate increase in staff resources. Stage 2 – 1 July 2015: Relocate to new accommodation, a new staff structure, a moderate increase in staff resources and the commencement of policy and research partnerships with universities. Stage 3 – 1 July 2016: Further expansion of staff and projects and will commence once additional funding had been secured. Submission to LCA – NARS Following the launch of the Law Council of Australia’s National Attrition and Reengagement Survey in March 2014 the Society, through the Joint Law Society Women Lawyers Committee, has been developing a response to the report and associated discussion paper. The Society’s Council has endorsed the submission and further information can be found on the Society’s website.

06 | Brief September 2014

Response to LPBWA on Proposed Practice Management Regulations The Legal Practice Board of Western Australia (LPBWA) is proposing to recommend the introduction of a new regulation relating to a practitioner's entitlement to act in the capacity as a principal of a legal practice. This will include the development of a Practice Management Course as a pre-requisite for those practitioners moving into a practice management role for the first time. A copy of the Society’s submission can be found on the website. Reconciliation Action Plan The first stage of the Society’s Reconciliation Action Plan (RAP) has been endorsed by Council and will shortly be registered with Reconciliation Australia. ANNUAL GENERAL MEETING Members are invited to attend the 2014 Law Society Annual General Meeting, which will be held on Tuesday 28 October. This year’s AGM will be held at Herbert Smith Freehills, Level 36, QV1 Building, 250 St Georges Terrace, Perth. PLAIN ENGLISH DRAFTING COMPETITION 2014 This year is the 17th year of the Society’s Plain English Drafting Competition for law students. Conducted by the Clear Writing Committee this year attracted 327 entries and since its inception more than 1500 students have competed. This year’s winners were Nicole Ng a first year student at Curtin University, and Elisha Butt, Arohi Kaila, Lucius Moser, Isobel Rosenstreich and Susanah Vindedzis who are all students at the University of Western Australia. Each winner receives a cash prize of $150 and a winner’s certificate. Special thanks to the competition sponsors Herbert Smith Freehills, Norton Rose Fulbright, Jackson McDonald, Tottle Partners, Ashurst Australia and Irdi Legal.

LAW MUTUAL Law Mutual (WA)’s compulsory Risk Management seminars have been split into three categories this year, junior lawyers (<5 years), sole practitioners, and experienced lawyers (>5 years) and principals (2+). The topic of this year's seminar is Risk Management – We’ve changed our approach; do you need to change yours? For more information, to register online or to view the schedule of seminars visit As we move toward the end of 2014, the Society has a large range of events for members and the legal profession. For the full range and booking information, visit our website. LAWYERS FOR A CAUSE - SAVE THE DATE The Society’s biennial annual charity sporting event is on Saturday, 25 October 2014 at Royal Perth Yacht Club with profits going to the Chief Justice’s Law Week Youth Appeal Trust. See page 22 of this edition of Brief for more information or register now online at YOUNG LAWYERS COMMITTEE BALL The Society’s Young Lawyers Committee Ball will take place on Saturday, 20 September at Hyatt Regency, Perth. LAW OFFICE CONVENTION Sustainability in your Practice - Save the Date The Society is holding an Office Management Convention at the Parmelia Hilton on Tuesday, 14 October 2014. The event will feature exhibitors, CPD seminar, information sessions throughout the day and a networking cocktail function. For more information keep an eye on Friday Facts or contact your membership team on 9324 8638.

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(Client) identity crises Client identification for government lawyers is not always straightforward Gino Dal Pont Professor, Faculty of Law, University of Tasmania In a general sense, lawyers employed by government (or a government instrumentality) are subject to the same professional responsibilities as other lawyers.1 Yet the status of a lawyer employed by government may attract certain restrictions or considerations that do not necessarily translate into the private lawyer context. Government lawyers, for instance, arguably have a greater responsibility than their private sector counterparts to foster integrity, for they are the custodians of the public trust; not only in the legal profession and the administration of justice, but also in the broader administration of government. Indeed, an American court has characterised a government lawyer as having “the august majesty of the sovereign behind his or her every utterance”, as well as (potentially) “the economic power [to] wreak total devastation on the average citizen”.2 The attendant higher standard expected in this regard has, in the Australian environment, been reflected, in judicial statements extending as far back as 1912,3 in ‘model litigant’ obligations. And, much more recently, an Australian tribunal conceived of obligations of this kind obviating a ‘win at all costs’ attitude.4 While anecdotally ‘model litigant’ obligations not infrequently evince more of an aspirational rather than a mandatory tone, there remains little doubt that the higher standards expected of government lawyers are capable of pulling against their (perceived) duty to the client, at least in the sense that lawyers’ duties to their clients are commonly understood. It is certainly true that, in common with other ‘in-house’ lawyers, government lawyers are, in practical terms, wholly reliant for their practice upon the one client, which raises ethical challenges and pressures of their own. But unlike other ‘in-house’ lawyers, the client served by a government lawyer owes to the public a duty to act in line with the broader public interest rather than its own (usually commercial) interests. An employer’s commercial interests 08 | Brief September 2014

can no doubt clash with an identified public interest — and thus place the ‘in-house’ lawyer in a position of ethical tension — but there is, at least in theory, congruence between the representative position of government (as a client) and the collective public interest. In turn this explains remarks that government lawyers have the general public as their client.5 Of course, remarks of this kind perhaps shield as much as they reveal. But the client’s identity for a government lawyer is hardly inconsequential to matters of ethical (and legal) responsibility. At the same time, the question is not one that necessarily admits to clear determination. On one view, the client whom government lawyers represent is ‘the government’, the legal advice being given to the government as a corporate entity. Under this view, the government is treated as analogous to a corporation or a partnership, in that advice given to one subsidiary corporation or to one partner is treated as given to the entire corporation or partnership. This view dictates that when one Minister or official receives legal advice, the government as a whole is deemed to be the ‘client’. Or, on slightly different reasoning, as the client is the sovereign as defined pursuant to the relevant constitutional structure, the ‘indivisibility’ of the Crown dictates that, subject to statute, there can be only one government client.6 While the ‘whole of government’ approach to identifying the client may be supportable in theory, the practice may, however, differ. For most day-to-day legal questions, in practice government lawyers take instructions from the individual Minister, agency or department as the client, as a delegate and under the authority of the relevant Attorney General, who has the constitutional role of representing the Crown in the courts and of providing legal advice and other legal services to government.7 And the notion that all agencies or departments in government necessarily share the same interests and common objectives, although fine conceptually, is not one that translates with any

accuracy in practice. Most obviously, agencies and departments compete inter se for funding, and so can from this perspective hardly be seen as the one client. And different agencies may expect confidentiality from the lawyer giving advice to the exclusion of other departments The ability of a government lawyer to identify, with precision, the relevant client (or the person(s) who speak for the client) clearly assuages the challenges underscoring the balancing of a larger and potentially competing array of interests. With this the lawyer is better able to sharpen the focus of the advice requested. Were that advice driven by amorphous notions of public interest in a collective governmental sense, the lawyer’s conception of the public interest could, in the extreme, translate into the lawyer driving rather than merely advising the client. But short of this extreme scenario — where the lawyer proves the de facto arbiter of public interest — there subsists the inherent tension of advising a client constitutionally committed to fostering the public interest. And with this, the existing ethical dilemmas that surface between ‘in-house’ lawyers’ duties and their clients’ interests are accentuated in the government lawyer environment. NOTES


owney v O’Connell [1951] VLR 117 at 123 per D Gavan Duffy and O’Bryan JJ.


ilverman v Erlich Beer Corp (1987) 687 F Supp 67 S at 69–70.


elbourne Steamship Co v Moorehead (1912) 15 M CLR 333 at 342 per Griffith CJ (referring to the “standard of fair play to be observed by the Crown in dealing with its subjects”).


e Moline and Comcare (2003) 77 ALD 224; [2003] R AATA 827 at [11].


Wang, “Protecting Government Attorney J Whistleblowers: Why We Need an Exception to Government Attorney-Client Privilege” (2013) 26 Geo J Leg Ethics 1063 at 1063.


Selway, “The Duties of Lawyers Acting for B Government” (1999) 10 Pub L Rev 114 at 115.


ibid., at 118.

broader horizons Latest Opportunities - September 2014 With a new season upon us, now is the perfect time to reassess your career goals, or strategic business needs! To find out how we can assist you with your next career move or legal staffing requirements, please contact us for a confidential discussion on our services and full range of available opportunities. Please find below a selection of our latest job opportunities for September.

Senior Associate Banking & Finance

Projects Lawyer

This premier Banking & Finance group is led by industry leading partners who are not only well respected in the market, but are also genuinely nice people to work for. A quality Senior Associate is now required to support the growth of one of Perthâ&#x20AC;&#x2122;s most established and experienced Banking teams.

This recognised firm has established itself as a major international player, with a particular focus on the Asia Pacific region. With substantial growth plans in place, a talented Lawyer is required to join this thriving Projects group.

As the key client contact, you will directly advise major national and international lenders or borrowers on project, corporate and resources finance transactions in Australia and overseas. You will be supported by a well resourced team and will collaborate closely with talented partners, who will assist you to build your own client base and profile in the market.


You will be engaged on a diverse range of commercial matters related to major mining, energy, infrastructure and construction projects, with responsibility for due diligence, the review, drafting and negotiation of commercial agreements and other Australian standard contracts. Advice on front end construction, contract and general commercial matters throughout the lifeline of key projects will also form part of your role.

This team has top retention, due to its investment in staff progression and training, flexibility and enjoyable working environment. Project finance exposure and at least 2 years experience at Senior Associate level will ensure your success.

A minimum of 2-3 years PAE in front-end construction law, energy & resources or major projects, strong academics and top tier experience is essential. This is your chance to make your mark as one of Perthâ&#x20AC;&#x2122;s leading lawyers and progress your career.

Senior Property Lawyer

Commercial Litigator 3-4 YEARS

This progressive and successful firm is committed to providing commercially driven solutions to their clients. A senior lawyer is immediately required to lead the growth and development of the firms specialist Commercial Property practice. You will service local and national developers, financiers and other commercial organisations, as well as leverage off the firms broader corporate client base to build the Property practice. Work will include property sales and acquisitions, development work, property finance and securities, retail and commercial leasing transactions. Specialist knowledge across all aspects of commercial & property law, a highly commercial approach and the drive and motivation to progress your career and play a key role in the expansion of this growing practice group will be essential. The firm has a strong work/life balance and a competitive package, as well as future partnership prospects will be offered to the right person.

This prestigious, full service top tier firm is on the wish list of many lawyers. A standout Associate is required to provide support on a range of commercial litigation matters including contractual and corporate disputes, resources & project litigation, property, construction and financial services disputes. In this smaller team structure, top opportunities for progression exist and you will be given the autonomy to run your own matters and delegate discrete tasks to juniors in the team. You will be guaranteed regular client contact, direct mentoring and support from a highly approachable Partner and Senior Associate. To be considered, you will require 3-4 years PAE in commercial litigation, gained with a highly regarded firm. Existing business development experience, or a desire and ability to participate in client development activities will be essential. An exceptional opportunity to advance your career with this leading practice.

Stacey Back Director

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Profile Legal Recruitment PO Box 1288 West Leederville WA 6901


Tax Concessions for Property Transfers on Relationship Breakdowns New Revenue Ruling 15.0 resolves some, but not all, problems Grahame Young Barrister, Francis Burt Chambers

In many families, land and businesses are held in companies or trusts. When the relationship breaks down and a property settlement is either agreed by the parties or ordered by the Family Court, it is common that some property so held is to be transferred to a spouse. For convenience, a reference to a spouse includes a de facto partner.

overview of the issues involved and to indicate the extent to which they have, or have not, been resolved by the Ruling. It deals only with transfers from a company or trust to a spouse and not with transfers from spouse to spouse (which are less problematic) or transfers to a child, to another trust or superannuation fund, or to another company.

Such transfers will be a CGT event and a dutiable transaction with the result that capital gains tax and transfer duty would be payable unless a concession is available under the relevant Act. A problem has been that the Acts are in different terms such that if the concession was available for capital gains, then it was unlikely that the concession for transfer duty would be available, and vice versa.

But before discussing the Ruling, it is convenient to analyse the available concessions.

To some extent, that position has been ameliorated by the issue by the Office of State Revenue (OSR) on 3 June 2014 of Revenue Ruling 15.0 Duties â&#x20AC;&#x201C; Transfer of matrimonial or de facto relationship property involving a trust or company. This article is intended to give a brief 10 | Brief September 2014

Capital Gains Tax The concession is contained in Subdivision 126-A of Part 3-3 of the Income Tax Assessment Act 1997. In broad terms it provides that a rollover is available if a specified CGT event happens involving a transferor and his or her spouse or a company or trustee and a spouse under a court order or binding financial agreement.1 Importantly the only relevant CGT events for the rollover are the disposal cases of A1 and B12 and the creation cases D1, D2, D3 and F1.3 The CGT events

concerning trusts, E1 to E9, are not relevant so the rollover is not available if the CGT event is an â&#x20AC;&#x2DC;Eâ&#x20AC;&#x2122; event. The major effect of the rollover is that either the capital gain or loss is disregarded and the transferee spouse inherits the cost base of the transferor or the pre-CGT status of the asset continues. This defers any capital gains tax liability or loss of pre-CGT status until another CGT event happens while the CGT asset is held by the transferee spouse, typically by way of disposal by sale. The other effect of the rollover is that the cost base of the interests in the trust or company is adjusted downwards to reflect the fall in market value of those interests by reason of the transfer out of the property. Transfer duty Transfers of matrimonial property to a party to a marriage, or a child or superannuation fund effected by a matrimonial instrument are subject to

nominal duty or are exempt from duty under the provisions of the Duties Act 2008. The relevant sections are 113 and 128 â&#x20AC;&#x201C; 133. The practice of the OSR had been that assets held by a company or trust could not be matrimonial property as defined in section 128 of the Duties Act. For convenience a reference to matrimonial property includes de facto relationship property. The definition refers to property of the parties, which on the face of it did not include property held by a company or the trustee of a trust. This practice presented a dilemma. Property held by a company or trust could be transferred to a spouse and gain the advantage of the CGT rollover, but the stamp duty concession would not be available. Where the property was held by a family trust, in many cases the parties did not seek to use the duty concession for matrimonial property but rather relied on the duty concession in section 115 of the Duties Act for transfers by a discretionary trustee to an individual pursuant to a power of appointment, because it was usual for the spouse to be a beneficiary of the family discretionary trust. The issue was then that vesting was CGT event E54, which meant that the CGT rollover was not available. Further, to the extent that consideration was given for the vesting, including by way of assumption of liabilities, duty was payable on the amount of the consideration. Under the matrimonial property concession only nominal duty is payable even if there is consideration for the transfer. Revenue Ruling 15.0 The Ruling requires, and will repay, careful study to ensure a proposed transaction from a company or trust to a spouse comes within its terms. This article serves only to outline the bare bones so as to

alert practitioners to both the possibilities and the continuing problems. The thrust of the Ruling is that where property is held by a company or trust that is an alter ego of one or both spouses, then that property can be taken to be matrimonial property so that the concession is available on transfer by the company or trust.5 The adoption of the alter ego principle only applies to the application of the concession to matrimonial property in a family law context. Also, it does not apply to the transfer of matrimonial property to an alter ego of a spouse. In order to establish that an entity is the alter ego of either or both spouses the Ruling adopts a test of effective control of the entity by one or both spouses and states that control will be assessed on a case by case basis. It is notable that in Bryan, the only stamp duty case relied upon, there is no reference to the alter ego principle, but only to the practical control enjoyed by a spouse. The Ruling provides that if an order is made by the Court, including a consent order, that a company or trust transfer property to a spouse and that company or trust is taken to be the alter ego of one or both spouses then the Commissioner will accept the transfer as stated and assess the nominal rate of duty. The Ruling has an exception for consent orders where there is evidence to indicate that the property is not matrimonial property. It is not clear if this is confined to evidence on the face of the orders or in any reasons for decision or whether the Commissioner will take any active steps to seek such evidence by independent inquiry. This approach raises some practical issues. The Court order and the reasons for decision, if any, may not use the terminology of alter ego. I understand from family law practitioners that the

current practice is to refer to effective control and to avoid reference to alter ego. In future, it will be expedient to seek to have the orders, or the reasons for decision, specifically state that the orders for transfer by a company or trust are made because it is under the effective control of either or both spouses, or to set out the factors that demonstrate effective control, but that may not always be practicable or possible. Where the company or the trustee has not been joined as a party to the matrimonial proceedings but the order is made in terms requiring the transfer by the company or trustee, it may be assumed that the order binds the company or trustee because it is under the effective control of either or both spouses, otherwise the Court would lack jurisdiction.6 Where the order binds a spouse to cause the entity to make the transfer happen, then it is submitted that circumstance of itself shows that the entity is effectively controlled by the spouse. Where the company or trust has been joined as a party, but the orders or reasons do not state that the orders are made because the entity is an alter ego, the reasons or orders may, and should if possible, recite the facts which give rise to the conclusion that the spouses have effective control of the company or trust. For a company, if the parties hold all of the shares that should be sufficient, whether or not they are also the only directors. Minority holdings, particularly family holdings with restricted rights, should not affect that conclusion. For a trust, the relevant offices are the trustee, appointor and guardian (in some deeds called a protector). Where all offices are held by or controlled by one or both spouses, no issue arises. The involvement of third parties will call for some explanation. Even where a spouse has no official role in the management

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and control of a trust or company, there may be evidence to confirm that they have effective control because the office holders are accustomed to act in accordance with a spouse’s wishes.7 Where there is not a Court order, then the Ruling sets out in detail the information required to demonstrate effective control by the spouses over the company or trust so it can be taken to be an alter ego of one or both of them for the purposes of the Ruling. If the CGT rollover is to be available it is essential that the order be for a transfer of property held by a trust and not a vesting under the power of appointment. This will require an examination of the trust deed to ensure the transfer is within power and that the processes required by the trust deed are followed.8 The requirement for transfer may create an issue if there is doubt whether the trust is controlled by either or both spouses; if it is not then neither duty concession will be available.

7A of the Income Tax Assessment Act 1936. In brief the Division treats a transfer of property from a company to a shareholder or an associate (as widely defined) of a shareholder as a dividend which is, to the extent of the distributable surplus of the company, to be included in the assessable income of the transferee. A spouse will almost certainly be an associate if they are not a shareholder. Taxing transfers of matrimonial property as income appears to be at odds with the policy of granting rollover relief from the capital gains tax provisions for such transfers, but that is the result of applying the Division. There is some relief because section 109RC permits the dividend to be franked. If franking credits are available, the transferee is then only liable for “top up tax” if their marginal tax rate exceeds the 30% franking credit; but if the deemed dividend is unfranked then the whole amount of the dividend will be taxed at the transferee’s marginal tax rate. Conclusions

Transfers by companies Although not strictly relevant to the Ruling, there are two additional issues to be taken into account if the order is for a transfer by a company to a spouse. The first is the question of power to make the transfer. The Corporations Act 2001 prescribes the various ways in which a company may reduce its capital or pay a dividend by the transfer of company assets. Unless in the particular circumstances, section 90AC of the Family Law Act 1975 overrides the Corporations Act as to process, and that is a topic for another article, then in my submission, the processes of the Corporations Act must be followed.9 This can raise almost intractable problems, particularly where the transfer is to a non-shareholder unless it is effected by a sale for full value with one or other spouse being responsible for payment of the consideration. The second is the application of Division

The effect of the Ruling is that it will now be possible to obtain both a CGT rollover and concessional treatment for transfer duty when property is transferred from a company or trust to a spouse under court order or a binding financial agreement if the company or trust is taken to be the alter ego of either or both spouses. Establishing the alter ego relationship by demonstrating that effective control resides in the spouses will be essential and the Ruling indicates the means by which that can happen, but does not resolve every question. Family Law practitioners should become familiar with the detail of the Ruling and not hesitate to seek advice where its application may not be clear (preferably before orders are agreed or made). Particular care should be taken as to the Corporations Law and taxation consequences where a company is ordered to transfer property to a spouse.



The types of orders and agreements are set out in detail in the Act, as they are also in the Duties Act. Practitioners should ensure that the orders or agreements they are dealing with come within the respective definitions.


CGT event A1 is the disposal of a CGT asset and B1 is use and enjoyment before title passes, but for event B1 to apply, title must pass at or before the end of the agreement. CGT event A1 will be the most usual event.


D1 is the creation of contractual rights, D2 the grant of an option, D3 the grant of a right to mining income and F1 the grant of a lease. It will be very unusual for property settlements to involve these events.


Although the event is also CGT event A1, the Act provides where two or more events are applicable then the most specific event to the taxpayer’s situation will apply. CGT event E5, a beneficiary becoming absolutely entitled to a trust asset, is the more specific event.


The ruling cites a number of Family Law cases in support of this proposition and, importantly, the stamp duty case Commissioner of Stamp Duties v Bryan (1989) 89 ATC 4529, a decision of the NSW Court of Appeal.


Section 90AE of the Family Law Act 1975 gives the Court power to direct a third party “to do a thing in relation to the property of a party to the marriage” (my emphasis). It follows, in my submission, that the Court has no jurisdiction where the property is held solely as the property of the company or trust and the alter ego principle cannot be invoked.


A recent income tax case concerning the maximum asset value test provides an illustration: Gutteridge v Federal Commissioner of Taxation [2013] AATA 947.


Practitioners should take care to properly document the transaction. It will rarely, if ever, be sufficient to merely prepare a transfer; at the least a resolution of the trustee will be required and the terms of the trust deed may impose additional procedures. Full documentation may assist to demonstrate that the transfer by the trustee to the spouse is made because the trust is under the effective control, and is thus the alter ego, of one or both spouses. If there is doubt as to the power to make the transfer then resort can be had to section 90AC of the Family Law Act 1975, discussed below.


Section 90AC of the Family Law Act 1975 provides that Part VIIIAA of the Act (which deals with orders and injunctions binding third parties) has effect despite anything to the contrary in any other law, trust deed or other instrument. Further, nothing done by a third party in relation to a marriage is to be treated as resulting in a contravention of a law, trust deed or other instrument. This section was held to be not unconstitutional in H v H [2006] FamCA 167. Section 1337C of the Corporations Law grants the Family Court and State Courts jurisdiction as to civil matters under the Corporations Law. In my submission this does not permit the Family Court to deal with property that is not property of the parties to the marriage or to dispense with the processes laid down by the Corporations Law.

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GROW Marilyn Krawitz Lecturer, The University of Notre Dame Australia and Lawyer, CMS Legal

About a year and a half ago I read a newspaper article about Israel’s Act Limiting Weight in the Modelling Industry, 5772 - 2012, also known as the ‘Photoshop Law’. The Law was passed to ‘minimize the negative impact of exposure to advertisements depicting models as extremely thin on positive body image and self-esteem and on the development of eating disorders in Israel’.1 The Law states that all models in advertisements, commercials or other media need to give directors or their equivalent a doctor’s certificate that states that their BMI is 18.5 or greater to work.2


feature The Photoshop Law intrigued me. As a result, I wrote an article, Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images that was published in the Journal of Law and Medicine in June 2014. This article will briefly: (1) discuss the relationship between women, the media and body image; (2) examine Israel’s Photoshop Law; (3) explain aspects of Australia’s Voluntary Industry Code of Conduct on Body Image; (4) consider whether a law similar to the Photoshop Law is necessary in Australia;3 and (5) share what occurred after the publication of my article.

in real life.16 The first version of the Photoshop Law stated that if people or companies breached it they would face criminal punishments. The version of the Photoshop Law that was passed only provides for civil lawsuits to result from a breach.17 An example of a lawsuit of this kind could involve the parents of a teenager who has an eating disorder. The parents believe that their child developed the eating disorder due to seeing images of women in a magazine who have BMIs under 18.5. The parents then sue the magazine’s editors.18 It may be difficult to prove that an advertisement

“ ... difficult to prove that an advertisement or advertisements caused someone to develop an eating disorder or partially caused someone to develop an eating disorder.” The Relationship between Women, the Media and Body Image When some women see images of other women who are extremely thin or who were photoshopped, it may negatively impact their mental health.4 The women viewing the images may think that the images are realistic, when they are not.5 Women may focus on losing weight to look like the women in the images.6 These women may then start dieting7 and could develop eating disorders.8 Israel’s Photoshop Law The Israeli Photoshop Law came into effect on 1 January 2013.9 As previously stated, the Law requires that models in advertisements, commercials or other media give directors or other relevant people a doctor’s certificate that states that their BMI is 18.5 or greater to work.10 The Law uses the BMI of 18.5 because the World Health Organisation states that 18.5 is a ‘healthy’ BMI.11 The doctor’s certificates need to have been issued three months or less before the photo shoot.12 A BMI is an “objective measurement that doctors can check”.13 If images are modified so that models look thinner, the images must state that they were modified and the reasons for the modification.14 The statement must take up seven percent or more of the image.15 Women who see photographs that comply with the Photoshop Law, may be more likely to think critically when they see the images. They may then think that women don’t look like those images 16 | Brief September 2014

or advertisements caused someone to develop an eating disorder or partially caused someone to develop an eating disorder.19 Also, Israelis may choose not to commence a lawsuit of the kind just described.20 No other Government has passed a law similar to the Photoshop Law to date.21 The international media have given great attention to this law.22 The National Advisory Group on Body Image Kate Ellis, the former Australian Minister for Youth, created the National Advisory Group on Body Image in 2009. The Group advised the Australian Government on different ways to improve Australians’ body image.23 It also created the Voluntary Industry Code of Conduct on Body Image. The Code advises people in the fashion, media and advertising industries about ways that they can improve Australians’ body image.24 The Code recommends that photographers don’t use models whose bodies are “unrealistic or unattainable through healthy practices”.25 The Code does not define that phrase.26 It also states that models must be “clearly of a healthy weight”27. The Code adds that people should ask doctors about what a ‘healthy weight’ is.28 The Code suggests that clothing stores sell clothing in a wide range of sizes.29 It also states that advertisers should “[u]se advertising that supports positive and healthy body image behaviour”.30 The Code does not state that there are negative repercussions for businesses or people that don’t abide by it.31 Two academic researchers, Boyd and

Moncrieff-Boyd, investigated whether seven Australian magazines implemented the Code about a year after the Code was created. They found that one of the seven magazines implemented the entirety of the Code.32 They also found that some of the magazines used images of women who had figures of an average size, but the same magazines also used images of women who were very thin.33 Is a Law Similar to the Photoshop Law Necessary in Australia? If the Australian Government passes a law similar to the Photoshop Law (which would replace the Voluntary Industry


Code of Conduct on Body Image), then Australian women may be less likely to take drastic action to lower their BMIs. It could lower the number of Australian women who suffer from eating disorders. It could also encourage other Governments to pass similar laws.34 If the Australian Government passes a law similar to the Photoshop Law, it could create new jobs for models who have BMIs over 18.5.35 It’s possible that Israeli models who have a BMI under 18.5 could avoid the Photoshop Law by moving to other countries. If the governments of other countries pass a law similar to the Photoshop Law, this would not be a viable option.36

One can argue that if photographers don’t use images of overly thin and photoshopped models, then consumers won’t find the images as attractive.37 Academic studies have found that people feel that images of people who are of average size are just as pleasant to look at as images of people who are very thin.38 Another relevant argument is that reading magazines is a form of escape, so Australians should be able to fantasize about having a body that medical professionals may consider unhealthy.39 Perhaps if the Australian Government passes the 17


“ ... reading magazines is a form of escape, so Australians should be able to fantasize about having a body that medical professionals may consider unhealthy.” and Women’s Body Image and Advertisement Effectiveness’ (2010) 7 Body Image 218, 218. 7. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 863; see C Lumby, ‘Girls and the New Media’ (1997) 56(1) Meanjin 105, 105. 8. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 863; see C Malachowski and SA Myers, ‘Reconstructing the Ideal Body Image in Teen Magazines’ (2013) 27(1) Commmunication Teacher 33, 33. 9. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 867; see Photoshop Law s 7(A). 10. Marilyn Krawitz, ’Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 886; see Photoshop Law ss 1, 2(A). 11. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 867; see Photoshop Law ss 1, 2(A). 12. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 867; see Photoshop Law ss 1, 2(A). 13. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 867.

Photoshop Law, Australians may think differently.40 If the Australian Government passes the Photoshop Law, it would focus attention on eating disorders and body image.41



The Aftermath The University of Notre Dame Australia distributed a media release about my research in this area in June 2014. Within approximately three days, I was interviewed on three radio stations and two television programmes: Channel 7 news and Sunrise. (You can watch the clip here: watch/24209567/fight-for-photoshoplaw/). People who I never met walked up to me when I went shopping and said that they saw me on television. I have also received emails of support from national and international academics and politicians about my article. A little thing, my journal article, has grown into something bigger than I originally intended, and I hope that it will continue to do so.

18 | Brief September 2014


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 867; see R Levush, Israel: Restrictions on Depiction of Underweight Models in Commercials (26 March 2012) Library of Congress < lloc_news?disp3_1205403053_text>. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 867; see Photoshop Law ss 1, 2(A).


I discuss areas one to four in my article ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 862; see CA Soltis, ‘Dying to Be a Supermodel: Can Requiring a Healthy BMI Be Fashionable?’ (2009) 26(1) Journal of Contemporary Health Law & Policy 49, 68.



Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 862; see N Hunter, ‘Beauty Is In the Eye of the Retoucher: Why Photoshopped Magazine Images Require Regulation’ (2011) 33 Women’s Rights Law Reporter 82, 93. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 862; see PC Diedrichs and C Lee, ‘GI Joe or Average Joe? The Impact of Average-Size and Muscular Male Fashion Models on Men’s

14. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868; see Photoshop Law s 3(A). 15.

Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868; see Photoshop Law s 3(B).


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868; see A Fantz, ‘New Israeli Law Bans Use of Too-Skinny Models in Ads’, The Atlantic (online), 20 March 2013 <http://news.blogs.cnn. com/2012/03/20/new-israeli-law-bans-use-of-tooskinny-models-in-ads/>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868; see A Fantz, ‘New Israeli Law Bans Use of Too-Skinny Models in Ads’, The Atlantic (online), 20 March 2013 <http://news.blogs.cnn. com/2012/03/20/new-israeli-law-bans-use-of-tooskinny-models-in-ads/>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868.




Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868; see T Minsberg, ‘What the US Can - And Can’t Learn - From Israel’s Ban on Ultra-Thin

feature 859, 865; see Australian Government, The National Advisory Group on Body Image (2009) <http:// codeofconduct/Documents/Voluntary_Industry_ Conduct_Code_Body_Image_20100627.pdf>.

Models’, The Atlantic (online), 9 May 2012 <http:// what-the-us-can-and-cant-learn-from-israels-banon-ultra-thin-models/256891/>. 22.




Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 868; see T Minsberg, ‘What the US Can - And Can’t Learn - From Israel’s Ban on Ultra-Thin Models’, The Atlantic (online), 9 May 2012 <http:// what-the-us-can-and-cant-learn-from-israels-banon-ultra-thin-models/256891/>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 864; see Australian Government, The National Advisory Group on Body Image (2009) <http:// codeofconduct/Documents/Voluntary_Industry_ Conduct_Code_Body_Image_20100627.pdf>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 864; see Australian Government, The National Advisory Group on Body Image (2009) <http:// codeofconduct/Documents/Voluntary_Industry_ Conduct_Code_Body_Image_20100627.pdf>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 865; see Australian Government, The National Advisory Group on Body Image (2009) <http:// codeofconduct/Documents/Voluntary_Industry_ Conduct_Code_Body_Image_20100627.pdf>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 865.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine

Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 865; see Australian Government, The National Advisory Group on Body Image (2009) <http:// codeofconduct/Documents/Voluntary_Industry_ Conduct_Code_Body_Image_20100627.pdf>. Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 865; see Australian Government, The National Advisory Group on Body Image (2009) <http:// codeofconduct/Documents/Voluntary_Industry_ Conduct_Code_Body_Image_20100627.pdf>. Australian Government, The National Advisory Group on Body Image (2009) <http://www.youth. Documents/Voluntary_Industry_Conduct_Code_ Body_Image_20100627.pdf>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 869; see J Lis and S Shalev, ‘Knesset Passes Bill Banning Use of Underweight Models in Advertising’, Haaretz (online), 20 March 2012 <>.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 869.




Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 872; see PC Diedrichs and C Lee, ‘GI Joe or Average Joe? The Impact of Averaged-Size and Muscular Male Fashion Models on Men’s and Women’s Body Image and Advertisement Effectiveness’ (2010) 7 Body Image 218, 218.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 872; PC Diedrichs and C Lee, ‘GI Joe or Average Joe? The Impact of Averaged-Size and Muscular Male Fashion Models on Men’s and Women’s Body Image and Advertisement Effectiveness’ (2010) 7 Body Image 218, 218 - 219.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 865.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 866; see ER Boyd and J Moncrieff-Boyd, ‘Swimsuit Issues: Promoting Positive Body Image in Young Women’s Magazines’ (2011) 22(2) Health Promotion Journal of Australia 102, 104.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 872; KC Donovan, ‘Vanity Fare: The Cost, Controversy, and Art of Fashion Advertisement Retouching’ (2012) 26 Notre Dame Journal of Law Ethics & Public Policy 581, 581.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 866; see ER Boyd and J Moncrieff-Boyd, ‘Swimsuit Issues: Promoting Positive Body Image in Young Women’s Magazines’ (2011) 22(2) Health Promotion Journal of Australia 102, 105.


Marilyn Krawitz, ‘Beauty Is only Photoshop Deep: Legislating Models’ BMIs and Photoshopping Images’ (2014) 21 Journal of Law and Medicine 859, 872.


ibid., 873.

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2014 Social Justice Opportunities Evening Thinesh Thillai Human Rights and Social Justice Working Group

The Young Lawyersâ&#x20AC;&#x2122; Committee fifth annual Social Justice Opportunities Evening was held on 20 August at the Central Park Theatrette. Over 100 registrants, including young lawyers, graduates, and law students took this unique opportunity to explore career and volunteer opportunities, specifically relevant to law, that are available within social justice and human rights focused organisations. Community Legal Centres formed a substantial portion of the local contingent, with speakers from Consumer Credit Legal Services (WA) Inc, CASE for Refugees, Citizens Advice Bureau, Tenancy WA, Welfare Rights and Advocacy, and the Community Legal Centres Association of WA. They were joined by speakers from a number of local, national and international NGOs, including Law Access, Reprieve, Women on Boards and Human Rights are Aussie Rules. The speakers shared their personal career path tales and some great stories about the exciting work of their organisations. The speakers also outlined the various opportunities they

20 | Brief September 2014

have available to young lawyers. The experiences of the speakers and the opportunities presented by representatives of CLCs and NGOs varied in form between volunteering, pro bono work, and full-time employment; a diversity which served to emphasise the abundance of opportunities for lawyers interested in this area. Following the formal presentations, all the speakers and a collection of social justice and human rights focused organisations came together for some networking drinks where speakers, representatives and attendees alike were provided with a unique opportunity to mingle and share advice, enthusiasm and aspirations about using legal skills to promote human rights and social justice within the community. The YLC and the Society would like to thank all the presenters and representatives who volunteered their time to make the evening a valuable source of information and inspiration for young lawyers. The enthusiasm of everyone present at the event

highlighted the passion and vibrancy with which WAâ&#x20AC;&#x2122;s legal profession engages with organisations focused on furthering human rights and social justice as well as demonstrating the immense satisfaction that can be brought to a career in the law by using legal skills to promote human rights and social justice within the community, be it full-time or part-time.

society events


LAWYERS FOR A CAUSE S AT U R DAY, 2 5 O C T O B E R 2 014 Register as an individual or a team for this charity event and join the legal profession to run, walk or cycle toward a better future for youth in Western Australia.

CHARITY EVENTS Venue: Royal Perth Yacht Club Date:

Saturday, 25 October 2014


Registration from 7.30am Cycle commences 8.00am - 8.30am Run commences 8.30am - 9.00am

In partnership with our sponsors, the Law Society of Western Australia invites individuals and teams to participate in a 5km walk, 10km run or a 40km cycle alongside the magnificent Swan River.


Following the event, relax at a networking brunch at the Royal Perth Yacht Club commencing at 10.00am.

Register: By Friday, 11 October 2014

Walk commences 8.30am - 9.00am Individuals $100 Team (up to six participants) $500

All profits from Lawyers for a Cause will go to The Chief Justiceâ&#x20AC;&#x2122;s Law Week Youth Appeal Trust Account. Donations to the Youth Appeal are distributed to a variety of worthwhile projects and support services that assist with diverting youth from the criminal justice system. We welcome members of the legal profession, and anyone else who would like to contribute to this worthy cause. See you there! Premium sponsor

Supporting sponsors

REGISTER ONLINE Note: All participants in the event do so at their own risk. It is the responsibility of event participants to ensure that activities are undertaken with the requirements of the relevant laws including but not limited to helmet rules for cyclists and local traffic laws.

Dean Curtis Education Services Coordinator, Francis Burt Law Education Programme The fourth Hypothetical event presented by Legal Aid WA and the Francis Burt Law Education Programme (FBLEP) took place on Wednesday, 25 June 2014. Targeting year 7-10 secondary students and teachers, the 2014 event attracted 91 attendees. Entitled The Fast and The Furious, a panel of experts working in the youth justice system engaged in an informative and interactive discussion about numerous legal issues faced by youth and the factors given consideration by the courts, lawyers and juvenile justice workers when dealing with young offenders. The event was moderated by Ms Claire Rossi, Legal Aid WA, and the panellists included Magistrate Catherine Crawford, Children’s Court of WA, Sergeant Garry Corker, WA Police, Ms Tanja Carson, Department of Corrective Services; Youth Court Services, and Ms Sarah Dewsbury, Legal Aid WA.

A volunteer student modelling the standard issue clothing at Banksia Hill Detention Centre.

Feedback from both teachers and students who attended this event was very positive and Legal Aid WA and the FBLEP have resolved to present the event in 2015. The FBLEP extends its thanks to Legal Aid WA, particularly Ms Claire Rossi who developed the hypothetical scenario, and we look forward to working collaboratively on future events. The FBLEP also thanks the panellists who kindly volunteered their time to make the 2014 Hypothetical event a meaningful and worthwhile learning opportunity for students and teachers.

Sergeant Garry Corker, WA Police, Ms Sarah Dewsbury, Legal Aid WA, Ms Tanja Carson, Department of Corrective Services: Youth Court Services, Ms Claire Rossi, Legal Aid WA, and Magistrate Catherine Crawford, Children’s Court of WA.

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Is it time you developed some new tricks? The market for lawyers within private practice remains strong across areas, your new challenge awaits.....

Dispute Resolution and Commercial Lawyer 1-3 Years PAE, Strong CBD Boutique This dynamic boutique firm has a growing blue chip client base and refreshing feel. They are looking for a confident and talented lawyer at around 1-3 years PAE. This firm continues to make an impact in Perth; their reputation is continuing to grow from strength to strength. They provide first class commercial litigation and commercial law services to a higher end client base. The Directors of the firm possess high level experience gained within top tier firms and are very well networked. This position will see you working across both commercial litigation and commercial areas. You will be exposed to high level matters and have significant client contact upon your commencement with the firm. The firm receives high-end instructions from significant players within the construction industry, you will have the opportunity to play a key role in complex litigation. Your matters will include: • Construction disputes • Commercial disputes • General commercial law • Commercial property including property settlements Ref: RW3153

Senior Commercial Litigation Lawyer 6-9 Years, Powerful Mid-Tier Firm This mid-tier practice has a leading reputation and a first class dispute resolution team. They attract a consistent flow of high end instructions. The firm are highly regarded for their expertise in dispute resolution across all areas of law. Their partnership group includes a number of senior lawyers with distinguished backgrounds from international firms who have chosen to practice in a mid-tier environment. In your role you will be working primarily alongside 2 senior Partners as well as other Partners within the practice. If you are wishing to work upon high quality matters and enjoy the autonomy of running your own complex files then this is an ideal option. Your work will include disputed matters across areas including: • Building and construction • Contract • Property • Trade practices and Insurance Ref: RW3151



Contact Ross Wheatley on 9221 4932

Dispute Resolution Lawyer

Energy and Resources Lawyer

Corporate Lawyer

2-5 Years, Top Ranked Large Boutique

2-4 Years, Leading National Boutique Firm

This large boutique Perth Practice is highly rated across all of their core areas particularly dispute resolution, construction, employment and commercial law.

This is an excellent opportunity to join this growing national practice and work directly with a Partner with local and international experience on key transactions. You will be working across jurisdictions on a range of matters including:

2 Years + Play a Key Role on Significant Transactions

They are currently looking for a talented and versatile dispute resolution lawyer to work across the areas of commercial litigation, building & construction and employment law. Careful guidance will be provided by 3 specialist Partners and it is not essential to have practiced across all of these areas. Going forward should you wish, you will have the opportunity to focus on your preferred areas.

This top ranked corporate team presently has key involvement in a couple of landmark deals and a strong pipeline of exciting work. The team is very highly regarded both in Perth and nationally and the 3 Partners have impressive backgrounds both within Australia and internationally. Their client base is exceptional including listed companies across industry sectors (particularly energy and resources), investment banks and private equity firms.

• Multi-Stage Joint Ventures • Mergers and Acquisitions • Royalty Agreements • Farm-in Agreements • Tenement Sale Agreements

Ref: RW3102

The firm is offering a market leading salary and the opportunity to play a key role on exciting transactions working closely alongside highly accomplished Partners. There is significant scope for career progression and development.

Family Lawyer

Real Estate Law

Workplace Relations

Associate or Senior Associate

Partner/Special Counsel $200K+

Senior Associate/Special Counsel

This leading western suburbs practice has a large specialist family law department with an outstanding reputation.

This outstanding national practice is now looking for a Senior Real Estate Lawyer to head their expanding property practice in their Perth Office.

The team consistently attracts matters of the highest quality and have very strong referral networks in place, including from the firm’s other departments. They practice across all areas of Family Law and are particularly well known for their expertise in complex property matters and asset division. The firm has strong relationships with senior Barristers including Queen’s Counsel.

The firm has a strong national property team and has provided key advice on significant and high profile property developments. Their clients include developers, shopping centre owners, retirement village owners and financial institutions. They are involved in a full range of property transactions including:

This long established Perth team has a very strong reputation within workplace relations law and a tier 1 client base. The team is headed by a prominent local Partner who has been at the forefront of Workplace Relations Law and OHS for more than a decade. As the lead Senior Associate you will assume a leadership role within the team and will be the key point of contact for significant clients.

The team is very settled and content and enjoy a healthy camaraderie. They often work together in small teams upon significant matters and are looking for a lawyer who is comfortable working with junior lawyers and supervising their work where required.

• environmentally sustainable projects

This is an opportunity to maintain high quality matters and enjoy direct hands on involvement and autonomy. There will be opportunities to appear in court and develop your advocacy skills.

The firm offers a host of additional benefits to staff and is widely regarded as a firm of choice for lawyers.

Ref: RW3126

Ref: RW3215

Ref: RW2974

• retirement living • industrial /retail • high rise residential developments The firm is recognised as an outstanding destination for lawyers offering attractive benefits and work/life balance.

You will be assisted to develop your own client base over time and enjoy the support of the Partner who is an excellent mentor. This position is a key appointment for the firm and carries with it the opportunity to fast track to Partnership. Benefit from a high market salary package in line with your experience. Ref: RW3103

Ref: RW3108

PARKES LEGAL SUPPORT Settlements Clerk Well known law firm based in West Perth are seeking a highly experienced Settlements Clerk. You will need to have strong experience in settlements (minimum of 5 years recent experience in Australia) and be prepared to assist with some estates and commercial work when required. You will be working alongside a Junior Settlements Clerk who will require some mentoring and supervision from you. A highly generous salary package is on offer for your expertise! Ref: AMB3149

Contact Angela Bamford on 9221 0944 Legal Secretary

Legal Secretary

Commercial Property

Commercial Litigation

Boutique Law firm is seeking an intermediate level legal secretary to join their very busy commercial property team. Supporting two Senior Associates (one who works part time), this role needs an experienced Secretary who can manage conflicting and ever changing deadlines!

Top Tier is seeking an experienced Litigation Secretary to support a Senior Partner and his team. The Partner is the Chairman of in Industry body and there will be work associated with this. The team are often out of the office at Court or in meetings, and need a Secretary who can work independently.

You will need to possess 4-7 years as a legal Secretary, ideally with some Commercial Property experience. A solid typing skill above 70wpm with high accuracy is essential. Ref: AMB3152


T: (08) 9221 4932 M: 0401 344 040 E:

Ideally you will have gained 3-5 years experience in a large law firm and be looking to take the next step in your career. Excellent salary + free gym membership is on offer. Ref: AMB3150

PARKES LEGAL SUPPORT Angela Bamford T: (08) 9221 0944 M: 0423 471 524 E:

The Importance of Providing Estimates of Costs When Entering Into a Costs Agreement The Law Society Costs Agreement

26 | Brief September 2014

Matt Curwood Barrister, Francis Burt Chambers

A service the Law Society of Western Australia provides to its members is a license to use a costs agreement kit which comprises: 1. A standard client/lawyer retainer agreement; 2. Explanatory notes to be given to clients with the retainer agreement; and 3. Explanatory notes for law practices on the completion of a costs agreement, and costs disclosure generally. The Society has reviewed its costs agreement kit and an updated kit will be released to members later this year. The Society’s review is taking into account the Supreme Court of Western Australia decision in Smith v Lewis Blyth & Hooper [2013] WASC 408. In Smith, Justice Jenkins considered an application by a client seeking the cancellation of three costs agreements. The Society’s standard agreement contemplates that a law practice will include an estimate of the likely costs that will be incurred by the client, an estimate of the costs that would be payable if the agreement did not apply, and in litigious matters the estimated likely costs recoverable or payable if the client is successful or unsuccessful in the litigation for which the law practice is engaged. In the case of Smith, Justice Jenkins held that two of the agreements entered into should be cancelled because they were entered into in circumstances that were unreasonable. A failure of the law practice to provide estimates of the likely fees that would be incurred by Mr Smith as a consequence of his entry into the retainer agreements was at the heart of the finding that the agreements were entered into in circumstances that were unreasonable. Smith – the Facts The law practice entered into three written costs agreements with Mr Smith.1 Two of those agreements were ordered to be cancelled. The decision has some factual complexity which is beyond the scope of this article. The decision is subject to an appeal which will be heard by the Court of Appeal in October 2014. Mr Smith and his Family

Disputes Mr Smith was involved in disputes with other members of his family, initially over the will of his mother but later with respect to a number of assets held in a trust connected to his family. Mr Smith was an experienced businessman who had instructed lawyers on numerous occasions to deal with a variety of legal issues. He had experience in receiving and paying lawyers’ accounts.2 Mr Smith first met with the law practice in November 2005 but did not provide any ongoing instructions and four months after an initial meeting the law practice closed its file. Subsequently Mr Smith returned to meet with a solicitor of the law practice on 6 June 2006. At that time Mr Smith had other solicitors acting for him with respect to a dispute that had arisen over his mother’s will (Probate Action). The Probate Action had been listed for a 10-day trial which was due to commence in July 2006. Shortly before the trial was due to commence his previous solicitors had ceased acting for him and he instructed the law practice to make an application to adjourn the trial. On 27 July 2006 a solicitor of the law practice appeared for Mr Smith on an application for an adjournment the trial. That application was successful. The law practice continued to act for Mr Smith in the Probate Action and rendered invoices to him on a regular basis. Between June 2006 and March 2007 the law practice had rendered invoices to Mr Smith totaling $31,000 in the Probate Action. On 13 March 2007 Mr Smith signed a written retainer agreement for the Probate Action.3 The retainer agreement signed on 13 March 2007 contained a statement that the law practice would “endeavour to provide … within 14 days an estimate of costs” likely to be incurred by Mr Smith. The law practice did not provide such an estimate within 14 days (or at all). In April 2007 counsel briefed in the Probate Action provided certain advice including that Mr Smith was likely to be ordered to pay the plaintiff’s party/party costs in the Probate Action and that those costs were likely to be substantial. Shortly after this advice was provided the Probate Action was settled. 27

The settlement of the Probate Action did not resolve the underlying disputes that Mr Smith had with other members of his family about the trust which controlled various family assets (including Mr Smith’s long term residence). In late September 2007 the trustees of the family trust commenced proceedings by originating a summons against Mr Smith. The law practice entered an appearance for Mr Smith in those proceedings. On 30 October 2007 the law practice sent to Mr Smith a retainer agreement with respect to the family trust dispute. Mr Smith did not initially sign that agreement. On 18 January 2008 law practice issued a writ of summons on behalf of Mr Smith seeking declaratory relief with respect to certain trust assets. On 26 March 2008 Mr Smith signed a costs agreement relating to the two proceedings involving the family trust dispute. The family trusts dispute was complex litigation. That retainer agreement was identical to the two earlier costs agreements Mr Smith had signed with the law practice (save that the hourly rates had increased by that

time). The retainer agreement contained a statement that the law practice would “endeavour to provide … within 14 days an estimate of costs” likely to be incurred by Mr Smith. By the time Mr Smith signed the retainer agreement the law practice had invoiced him approximately $75,000 for work undertaken in the family trust dispute. The law practice did not provide any estimate of costs before October 2008. By October 2008 a sum of money which had been deposited in the law practice’s trust account from the sale of an earlier property by Mr Smith was dwindling and it became clear that the sum of money held in trust would not be sufficient to pay the likely costs associated with a trial of the family trust action. A proposal was made for the law practice to continue acting on a fee deferred basis. Counsel briefed to conduct the trial did not agree to act on a fee deferred basis. Counsel provided a combined estimate of their fees for conducting the trial as being $340,000. Mr Smith then borrowed $400,000 from a third party. A trial, which was listed to run for four weeks, commenced on 6 April 2009. The family trust disputes settled on 8

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28 | Brief September 2014

April 2009. The law practice continued acting for Mr Smith until December 2010 (although no invoices were raised after October 2010). On 28 July 2011 Mr Smith filed an originating summons seeking a declaration that the Family Trust Costs agreement be cancelled. On 5 December 2011 he expanded that application to seek the cancellation of the two earlier agreements as well. Justice Jenkins largely upheld Mr Smith’s application and ordered the cancellation of two of the three agreements. A full analysis of the reasons for decision is beyond the scope of this article. Providing Estimates of Likely Costs at the Commencement of a Retainer is Essential The Society’s Client/Lawyer Agreement contemplates that a law practice will provide an estimate of costs (in the case of a litigious retainer) in accordance with the principles set out by Justice Ipp in the case of Brown v Talbot & Olivier (1993) 9 WAR 70, and those estimates will be set out at items 5 – 8 of Part 2 of the Agreement. In Brown’s case Ipp J said that a practitioner should endeavour to provide an estimate of the

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of legal costs, it is difficult for a client to exercise the right to seek independent legal advice on the nature and effect of the costs agreement or to seek a more economical legal service.

approximate amount payable by: (a) the client to the legal practice (inclusive of Counsel fees) under the terms of the proposed costs agreement; (b) the client to the legal practice (inclusive of Counsel fees), if no written agreement exists as to costs applied (namely the amount that could be charged by the practitioner to the client under the relevant scale determination). (c) the other party to the client, if the client was successful in his or her claim or defence under the terms of the relevant scale determination (that figure would not necessarily be the same as the figure in subparagraph b4); (d) the client to the other party if the client was unsuccessful in his or her claim or defence under the terms of the relevant scale determination (on the assumption that the client was ordered to pay the other party’s costs of the litigation). In Smith’s case, Justice Jenkins found the failure of the law practice to provide estimates of the likely costs of the proceedings (in accordance with the principles in the Brown & Talbot Olivier case at (a)-(d)) above was unreasonable. Namely, sufficient information was available to the law practice to provide estimates of the likely costs in the Probate Action and the later family trusts disputes. Her Honour observed at [106] – [108]: 106


Except in difficult cases where it is impracticable to do so, the client should have the benefit of the estimate of legal costs prior to entering into a costs agreement. Otherwise, the client runs a substantial risk of incurring and (over) committing to payment of future costs to the practitioner without a fair idea of what those costs may be. That may result in the client instructing the practitioner to do work which the client would not have instructed to be done if the client had been aware of the estimated total cost of the proceedings. The longer the practitioner client relationship continues without an estimate being given the more difficult it may be for the client to withdraw instructions once the client either receives an estimate of costs or appreciates through other means what the costs are likely to be. Further, without an estimate


Thus, a practitioner’s failure to provide an estimate of legal costs before a costs agreement is required to be signed is likely to provide an unfair advantage to the practitioner in his or her relationship with the client.

In Smith’s case the law practice argued that Mr Smith’s familiarity with instructing solicitors and receiving and paying legal accounts were reasons why he was able to independently exercise an informed judgement to enter into the cost agreements without disclosure of an estimate of the likely total costs. Further, both agreements were signed after numerous accounts had been rendered for work already carried out in the proceedings. Accordingly, the law practice argued that Mr Smith was aware of the nature of the costs likely to be charged.5

“ ... Justice Jenkins held that two of the agreements entered into should be cancelled because they were entered into in circumstances that were unreasonable.”

Conclusion Estimating costs in litigation matters commonly raises difficult issues even for the most experienced practitioners. The case of Smith is a reminder that a failure to provide an estimate where it is reasonably possible to do so may ‘taint’ any costs agreement entered into (even an agreement which is otherwise reasonable in its terms). Further, estimates are not only important in the context of ensuring that a valid costs agreement exists but because a failure to provide an estimate of the total legal costs that are likely to be incurred (or an estimated range of costs together with an explanation of the major variables that will affect the likely total costs) may contravene section 260 (1) of the Legal Profession Act.6 The Society has scheduled a seminar for 14 November 2014 which will touch upon the issue of providing estimates of legal costs in litigation matters and the amendments to the Society’s client/ lawyer retainer agreement.

detail in this article. The agreement relating to the property transaction was not cancelled by Her Honour. 4.

For example, in subparagraph b, on a solicitor/client basis item 33 of the Supreme Court determination may apply.


Another significant argument raised by the law practice was the delay by Mr Smith in making his application for the cancellation of the costs agreements. Further, with respect to the costs agreement in the family trust actions Mr Smith had made a request for itemisation and ultimately taxation of certain invoices rendered. The argument of the law practice was that an application under section 222 of the Legal Practice Act 2003 for a review of the costs agreement in the family trust litigation constituted an attack on the law practice‘s charges which was collateral to the taxation proceedings.


Unless one of the exceptions in section 263 (2) of the LPA applies, namely, the total legal costs are not likely to exceed $1500, the client is a sophisticated client or the client has previously received costs disclosure and has agreed in writing to waive the right to disclosure. Further, a failure to review and update estimates where there is likely to be a substantial change from the sum estimated may contravene s267 of the LPA. It is important to note that in Smith the costs agreements under challenge were not regulated by the Legal Profession Act 2008 but the 2003 Legal Practice Act, hence s 260 of the Legal Profession Act did not apply to the case.



All retainer agreements were regulated by the Legal Practice Act 2003.


[12] reasons for decision.


Mr Smith signed two written retainer agreements on 13 March 2007. The other retainer agreement related to a property transaction which I will not


30 | Brief September 2014

Part 2


JUSTICE SYSTEM: IDEAS AND INNOVATIONS: “BECAUSE DELAY IS A KIND OF DENIAL” The following is the second extract from a speech on 17 May 2014 by the Honourable Wayne Martin AC, Chief Justice of Western Australia, to the Australian Centre for Justice Innovation. The full speech is available on the website of the Supreme Court of Western Australia.

The third branch of government Timeliness in the third branch A proper appreciation of the constitutional role of the courts in a system of government according to the rule of law necessarily underpins a proper appreciation of the time taken by the courts to administer justice.1 The quality of justice provided by the courts is related to the time taken by the litigation process. That proposition can be graphically illustrated by the observation that any significant lapse of time taken for the disposition of cases could be avoided by resolving cases on the toss of a coin. However, any relationship between the outcome of such a process and a just outcome would be entirely coincidental. Spigelman CJ used examples that are a little more real than my postulated toss of the coin when he wrote: We should recognise that inefficiencies in the administration of justice in common law countries are not unintentional. There is no doubt that a much greater volume of cases could be handled by a specific number of judges, if they could sit in camera, not be constrained by obligations of procedural fairness or the need to provide a manifestly fair trial, and not have to publish reasons for their decisions.2 … As the Privy Council observed in 1936, “publicity is the authentic hallmark of judicial as distinct from administrative procedure”.3 When one is endeavouring to construct a system for the administration of justice which strikes the right balance between the fairness

and justice of the process and the time which it takes, it must always be remembered that the interests served by the courts extend beyond the interests of the parties to any particular dispute and include the broader public interest which includes the affirmation of the rule of law and the delivery of outcomes which can be qualitatively assessed as just, as compared to dispositions quantitatively assessed as timely. This is why I have chosen Coke’s description of delay as ‘a kind of denial’ as the title for this address. It helps to underscore the proposition that reforms undertaken in order to improve timeliness should not view expedition as an end in itself, but must view timeliness in the context of the broader objectives of the civil justice system including most particularly of all, the provision of qualitatively just outcomes. … Defining timeliness Numerous attempts have been made to define ‘timeliness’ and its obverse ‘delay’ in the context of the civil justice system. All must confront the difficulty of distinguishing between the lapse of time which is necessary for the just and efficient resolution of civil disputes, and the lapse of time which does not contribute to that outcome and is, in that sense, avoidable. … Lapse of Time v Delay All definitions recognise that the lapse of time cannot be equated with delay. They recognise that some lapse of time is inevitable and unavoidable and that there will be some cases in which a significant lapse of time is essential for the proper administration of


justice. So in some cases, time must be taken to prepare for a mediation or trial so that the outcome of the process will be fair and just - for example, by the preparation and exchange of expert reports or the disclosure of documents. In other cases, the time which must elapse to ensure a fair and just outcome may be unconnected with the process of dispute resolution - such as cases in which damages for personal injury are claimed but cannot be properly assessed until the plaintiffâ&#x20AC;&#x2122;s medical condition has stabilised to the point at which a reasonable prognosis of his or her future can be made. The vanishing trial â&#x20AC;Ś It is essential to bear steadfastly in mind the fact that only a very small proportion of civil disputes in the higher courts are resolved by adjudication after trial,4 and that the majority of disputes are resolved by consensus. The achievement of consensus can be influenced by factors which are not directly related to the particular dispute, and which can be influenced by the effluxion of time. Many with extensive experience in the civil justice system assert that cases will settle when they are good and ready, and not before. Those sentiments reflect the fact that sometimes parties need time to reflect upon the issues and sometimes for emotions to subside before they can seriously contemplate consensual resolution. In those cases the lapse of time can be beneficial, rather than detrimental. In those cases it is at least arguable that requiring the parties to actively participate in case management processes is counterproductive, not only because it requires them to incur irrecoverable costs unnecessarily, KBE-Brief-Final.pdf 1 4/03/2014 but also because it requires them to









32 | Brief September 2014

participate in an adversarial process which is antithetical to consensual resolution of the dispute. So, in at least some cases, insistence upon the speedy performance of interlocutory steps properly undertaken to prepare for a trial can be contrary to the interests of justice. Measuring timeliness As Spigelman CJ has famously pointed out, there is an almost unquenchable contemporary enthusiasm to count things simply because they can be counted, rather than because they should be counted. But as he noted not everything that can be counted matters and not everything that matters can be counted.5 Contemporary information technology enables data with respect to the lapse of time in the justice system to be captured and presented quite easily. Because it is easy to do, it is done. And once it has been done, there is an almost irresistible drive to use that data as a surrogate for measures of timeliness when, in fact, the data only measures the lapse of time. The data sheds no light upon the vital distinction between the lapse of time which is appropriate and necessary for the just resolution of a dispute, and avoidable delay. â&#x20AC;Ś some [measures are] incapable of ready quantitative measure - obvious examples being the opinions of the participants to the dispute, the fairness of the process and the justice of the outcomes. As far as I am aware, none of the measures commonly used by courts around Australia or by the Productivity Commission in its annual Report on Government Services shed any light on these issues. Further, for the reasons which follow, not only are those measures ineffective as a surrogate measure of timeliness, but in 4:32 pm

many instances they can be positively misleading. Current measures of timeliness The fundamental problem with the measures currently used as a surrogate for timeliness is that equal weight is given to all cases within the class in which the lapse of time is measured, without differentiation or weighting by reference to the particular circumstances of each case. If all cases within the class measured have identical characteristics, the median lapse of time between two identified points in the processing of those cases (often commencement and finalisation) can shed light on timeliness by identifying fluctuations over time. In some areas of civil jurisdiction, the cases are relatively homogenous, so that there are not significant variations in the characteristics of the cases within the class over time. So, for example, because the general character and composition of non-contentious cases seeking a grant of probate does not alter over time, fluctuations in the median time which elapses between lodgement of an application for probate and finalisation provide a useful measure of the timeliness within which the court is discharging that area of its jurisdiction. However, the more heterogeneous the cases within the class measured, the less effective is the measure of the lapse of time as a surrogate for timeliness. Most civil courts in Australia have widely divergent areas of jurisdiction and the characteristics of the cases brought within those areas of jurisdiction diverge widely. As a consequence, measures of time taken across all the cases within the civil jurisdiction of a court, which are the most common measures adopted, are at best

meaningless and sometimes misleading as a surrogate for timeliness. I will endeavour to illustrate this point first by reference to the statistical data collected by the Supreme Court of Western Australia with respect to the lapse of time and then by reference to the measures used by the Productivity Commission in its annual report on government services. Supreme Court of Western Australia data Lapse of time to case finalisation In the Supreme Court of Western Australia, the data collected with respect to the lapse of time taken to finalise a case cannot be differentiated by reference to the particular circumstances and characteristics of the case. So, in the data collected by our court, the Bell case6 which occupied 404 hearing days in which 166 witnesses were called, nearly 800,000 documents tendered and in which the reasons for decision extended to more than 1,000,000 words, is given equal statistical weight in the timeliness data as an uncontested application to wind up a company, or even an application for admission to be a lawyer. Because in most courts the simpler cases significantly outweigh the complex cases numerically, statistical measures which do not differentiate between the simple and more complex cases will give much greater weight to the time within which less complex cases are resolved. This point can also be illustrated using the data collected by the Supreme Court of Western Australia. Each year around 3,000 cases are commenced in the general civil jurisdiction of the court. Less than 100 of those cases are finalised following trial. Consequently the time lapse data collected in respect of those 3,000 cases is dominated by the 2,900 cases which are finalised by some means other than a trial. The most common means of finalisation within that class is by judgment in default of appearance or in default of defence. Because of the numerical significance of those cases within the class measured, the median time between commencement and finalisation of cases measured across that class never fluctuates significantly, and generally ranges between 17 and 19 weeks. Such fluctuations as can be observed are either the consequence of fluctuations in the time taken for the administrative processing of applications for default judgment due to fluctuations in the levels of staff available to process those applications, or due to changes in the characteristics of the cases within the class.

Changes in caseload A good example of changes in the composition of the class of cases brought within the civil jurisdiction of a court can be found in the aftermath of the global financial crisis in 2008. The years following that crisis saw a dramatic increase in mortgagee applications for possession of property. Those cases came to represent about oneâ&#x20AC;&#x2018;third of the civil lodgements in the Supreme Court of Western Australia, and changes in the rate and number of total lodgements over time were driven almost entirely by changes in the rate and number of lodgements of applications for possession of land. Under Order 62A of the Rules of the Supreme Court of Western Australia, a special procedure applies to applications for default judgment in actions by mortgagees for the possession of land. In those cases the defendants must be summoned to a hearing and additional information must be provided to the Court by the applicant for default judgment. Because of the numerical significance of those cases, data collected with respect to the lapse of time prior to finalisation of cases within our civil jurisdiction was heavily influenced, indeed dominated, by the time taken to process applications for default judgment in mortgagee actions. More recently, fluctuations in the time lapse data collected by the court can be attributed to the reduced numerical significance of those cases within our general jurisdiction, as the impact of the global financial crisis diminishes. Time lapse between entry for trial and trial Of course, we use other statistical data to try to assess timeliness. For many years in our court, the time which elapsed between the entry of a case for trial and the commencement of the trial was regarded as a surrogate for timeliness. However, that was at a time before we introduced docket case management and in which all cases had to be formally entered for trial in order that they could join a queue of cases awaiting the allocation of trial dates. In that system, the time taken between joinder of the queue and the commencement of the trial provided some measure of the courtâ&#x20AC;&#x2122;s capacity to respond to the needs of the litigants. However, under our contemporary system of seamless docket case management, likely trial dates are usually allocated well in advance of the case being ready for trial, or being entered for trial, and a timetable is set which will ensure that the case is ready to go to trial at the time allocated. The formal entry of a case for trial is no longer a significant milestone in the preparation of a case for trial - its contemporary function is

essentially to provide an occasion upon which the court can collect the fees for trial. Because of these changes in our case management systems, the lapse of time between the time at which a case is formally entered for trial and the time at which it is tried no longer measures anything of any significance. Only counting cases tried We have attempted to avoid the problem to which I earlier referred, that is, of the time lapse data being dominated by the large numbers of cases resolved administratively by separately counting the data in respect of those cases which have been finalised by trial. However, because the class of those cases is relatively small, unless there is some qualitative assessment of the characteristics of the cases within that class, the measure is not particularly helpful. So, when judgment in the Bell case was given in 2008, almost 13 years after the case was commenced in the Federal Court of Australia,7 that entry in the data set had a significant impact upon the average time to finalisation of the less than 100 cases tried that year, although no significant impact upon the median time taken to finalise the cases tried that year. Because a simple contract case which can be quickly prepared for trial and tried within a day or two receives the same statistical weighting in that data set as a large and complex case between two major mining companies, changes within the characteristics of the cases tried in any given accounting period8 will cause changes in the time lapse data which are unrelated to timeliness in the sense in which we are using that word. Time taken to deliver reserved decisions Another measure which we use is the time between the completion of trial and delivery of judgment. Generally speaking, however, this is more of an index of the workload imposed upon the judges of the court and the efficiency with which that workload is managed, rather than anything else. This measure also has the same vulnerability to changes in the complexity of the caseload of the court as the other measures to which I have referred - so that, if the cases tried are predominantly complex commercial cases, a median time between trial and delivery of judgment of, say, three months may be entirely acceptable, whereas a different conclusion might be reached if the caseload was predominantly relatively straightforward debt claims. So, in our court, we have been unable to identify or capture any statistical data which sheds any meaningful light upon the timeliness with which we are 33

“ … It is essential to bear steadfastly in mind the fact that only a very small proportion of civil disputes in the higher courts are resolved by adjudication after trial ... ”

discharging our civil jurisdiction. For the reasons which follow, I respectfully suggest that the data provided by the Productivity Commission in its annual report on government services has not solved this problem either. Report on Government Services The annual Report on Government Services (ROGS) published by the Productivity Commission reports data collected by Australian courts which is used for the purposes of comparative analysis of cost, efficiency and timeliness. The Background Report prepared for this forum conveniently identifies the data sets in the ROGS report which might be thought to provide some measure of efficiency and timeliness.9 They include: •

Backlog indicator;

Attendance indicator;

Clearance indicator;

Cost per finalisation.

each finalised case. Presumably it is underpinned by an assumption that the less attendances per finalised case, the more efficient is the court. It is another measure which is heavily dependent upon changes in the characteristics of a court’s caseload. Again, our influx of mortgagee actions provides an example. They have the effect of reducing our average attendances per finalisation, but there was no change in our relative efficiency.

be 125% and all will be congratulated. But if the following year 125 cases are lodged, and 100 cases are again finalised, the clearance ratio will be 80% and an inquiry may be launched into the apparent inefficiency of the court. However, all that has happened is that the court has used the resources available to it to consistently finalise cases at the same rate, but the rate of lodgements has changed.

It also seems to me that the assumption which appears to underpin this indicator is questionable. It seems reasonable to infer that contemporary systems of docket case management have increased court attendances per case finalised. However, if those systems are also having the effect of encouraging the early identification of issues and the elimination of delay, with the result that cases are brought to finalisation more quickly and overall less expensively, an increase in attendances may in fact be an index of efficiency, not inefficiency.

Second, the indicator has the same vulnerability to changes in the characteristics of the caseload of a court as all the other indicators I have mentioned. So, if the proportion of cases resolved administratively increases in any accounting period, the clearance indicator will appear better, and if it decreases, the clearance indicator will appear worse. But those changes in the clearance indicator tell one nothing about the efficiency of the court.

Backlog indicator

Clearance indicator

The backlog indicator presents a profile of the age of pending cases within a court’s inventory of unresolved cases. It provides a measure of the number and proportion of cases on hand which exceed specified time standards (eg, all cases more than 2 years old). Because the measure is applied to all unresolved cases within a civil court’s inventory of cases on hand, the measure is heavily dominated by the proportion of cases within that inventory that are resolved administratively, as compared to the proportion that go to trial. So, over the period when the inventory of cases pending in the Supreme Court of Western Australia came to be dominated by cases involving applications for the possession of land which were mostly resolved by default judgment, our backlog indicator improved significantly, but it did not reflect any change in the timeliness with which we were managing our cases, but only a change in the composition of the workload.

This indicator compares the number of lodgements in any court during a particular accounting period, with the number of finalisations during that same period. So, using simple numbers, if during the relevant accounting period a court receives 100 new cases and finalises 90, it has a clearance ratio of 90%. If, in the next accounting period, it receives 100 new cases but finalises 110, it has a clearance ratio of 110%.

Attendance indicator This indicator measures the average number of attendances recorded for 34 | Brief September 2014

Bizarrely, this indicator is commonly taken as a surrogate for court efficiency. Clearance ratios equal to or greater than 100% are said to indicate an efficient court, whereas clearance ratios less than 100% are said to indicate an inefficient court. This is bizarre because clearance indicators provide no real indication of the efficiency of a court, for the reasons which follow. First, clearance indicators are dominated by a factor which is entirely outside the control of the court - namely, the number of new lodgements. Let us suppose that a court has the staff and judicial resources sufficient to finalise 100 cases per annum. If 80 cases are lodged in a year, and 100 cases finalised, the clearance ratio will

Third, the indicator compares cases lodged within one accounting period, with cases finalised in that same accounting period. Often they will not be the same cases, because a case lodged in one accounting period will be finalised in the next. This has two consequences. First, the comparison of a clearance indicator in one accounting period to the clearance indicator in the next accounting period may be distorted by changes in the composition of the caseload over those periods. Second, a significant increase in caseload at the end of one accounting period may significantly reduce the clearance indicator for that period and then significantly improve the clearance indicator in the next accounting period, when those cases are finalised. So, ‘bubbles’ in the numbers of cases lodged with a court - a matter entirely beyond the control of any court - may have a profound effect upon the clearance indicator. For these reasons I am continually bemused that anyone would take the clearance indicator, on its own, to be a meaningful index of anything.10 No doubt the clearance indicator shows whether cases on hand are increasing over time. But that can be easily assessed simply by counting cases on hand.

Cost per finalisation This indicator divides the total cost of a court’s civil jurisdiction by the number of finalisations achieved during the relevant accounting period. Like the other measures to which I have referred, it is vulnerable to changes in the composition of a court’s caseload, so that an increase in the proportion of cases resolved administratively will reduce costs per finalisation without shedding any light upon the efficiency of the court. Further, because it is assessed by reference to a particular accounting period, it suffers the same vulnerability as the clearance indicator to which I have just referred, so that the finalisation of cases during one accounting period which were lodged and worked upon in another, will result in a reduction in the cost per finalisation in that accounting period without shedding any light upon the efficiency of the court. Measuring timeliness conclusions on the statistics Two conclusions follow from these observations. First, if there is a quantitative measure of timeliness available to be extracted from the statistical data maintained by courts, we have not yet found it. Second, notwithstanding the clarion call made by Spigelman CJ more than a decade ago, in the area of court administration we are still counting things just because we can, and not because we should, and we are still drawing entirely unjustified conclusions from the data which is extracted from our computer systems. How can we measure timeliness? So what can we do to measure timeliness? This is I think one of the big challenges which the timeliness project must confront, and I will be very interested to hear the views of others at this forum on that topic. My own view is that we need to move toward more

qualitative and subjective assessment of timeliness, and away from our apparent dependence upon statistical data. Timeliness audits It occurs to me that in this area, auditors may have more to offer than statisticians. Perhaps instead of relying upon statistical data collected across entire fields, it would be preferable to use audit techniques to qualitatively assess a representative sample of cases. By this means the particular characteristics and circumstances of each case would be taken into account in assessing whether the time taken between initiation and finalisation was any longer than necessary and appropriate for its fair and just disposition as perceived by the parties to the dispute. In respect of cases where delay was identified by this process, the causes of delay could then be assessed and steps taken to reduce the prospects of delay in similar cases in the future. Such a process would also enable the characteristics of cases likely to experience delay to be identified - for example, cases involving self‑represented litigants, or claims for damages for personal injury, or involving significant components of expert evidence etc. Case management techniques could then be developed and utilised with a view to minimising delay in cases having those characteristics. Case management data If one was to succumb to contemporary enthusiasm for quantitative analysis, contemporary systems of case management may provide opportunities for the collection of data which is relevant to timeliness. For example, it would be possible to identify the number of occasions upon which a timetable set by the court was breached or the time fixed by the court for the taking of any act had to be extended. Assuming that the time fixed by the court for the taking of any

step in the litigation was a reasonable estimate of the time properly allowed for that step, failure to comply could be taken as a departure from timeliness. However, I am concerned that if such a measure came to be seen as a general index of timeliness, or even of court efficiency, it might result in behavioural modification - not by the parties subject to the timetables imposed by the court - they have no interest in the perceived efficiency of the court, but by the court itself. If this were to become an index in general use, I think there is a risk that case managers would incline towards protracting the times within which steps are to be taken by the parties when fixing the litigation timetable, so as to avoid adverse inferences of inefficiency being drawn from non‑compliance. NOTES


Note that in this context I am referring to time, rather than delay.


Hon JJ Spigelman AC, ‘Judicial Accountability and Performance Indicators’ (1701 Conference: The 300th Anniversary of the Act of Settlement, Canada, 10 May 2001) p 7.


McPherson v McPherson [1936] AC 177, 200.


In the Supreme Court of Western Australia, less than 3% of lodgements are finalised by trial.


Hon JJ Spigelman AC, ‘Judicial Accountability and Performance Indicators’ (1701 Conference: the 300th Anniversary of the Act of Settlement, Canada, 10 May 2001) p 7.


The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239.


The litigation commenced in December 1995 (The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 at 67).


The shorter the accounting period the more vulnerable to influence by changes in the characteristics of the cases.


Australian Centre for Justice Innovation, The Timeliness Project Background Report (October 2013), pp 19, 20.


If there were a means of quantifying consistent and efficient delivery of services by the court through other measures, clearance measures could be an indicator of whether the court is sufficiently resourced to meet demand.

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding. E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth. We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

For information, visit or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or Our recommended wording is: “I the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.



ABOVE David Davidson1 A/Senior State Prosecutor, Office of the Director of Public Prosecutions (WA)

36 | Brief September 2014


Life as a lawyer is not only a taxing one but also one that has never-ending demands. As a result of the demands being placed on us on a daily basis our work-life balance monitor occasionally becomes unbalanced. This is bearable on a short term basis as it enables you to recalibrate when the task is completed. However, what happens to you and more importantly, to your mental health and wellbeing when you have demands on your work-life balance over prolonged periods? The way people deal with life and work stressors is varied. Some people cope very well. Whether that is because of someone’s DNA, or life-learnt coping strategies, or a combination of both, is a debate for another time. The literature in the last few years is to the effect that lawyers are one of the most stressed, drug dependent (prescription medication) and mentally unwell group of people in our society. The focus of this article is to outline measures that some law firms and government legal departments are doing to deal with this issue with the aim of raising awareness. This article is not an exhaustive list of what is being offered, nor does it in any way detract from the most important factor, which is to monitor your own mental health and wellbeing and to seek professional help if you feel you are not coping. Furthermore, do not be embarrassed or ashamed to call out for help. Personally, I was completely unaware of how stress was affecting me. My first experience was early on in my legal career when I was drafting written submissions. These are not easy for the most experienced of lawyers. A tear rolled down my face whilst I was working at my computer. I wiped the tear away and got on with my submissions. A short time later another tear came down my face and I started to feel short of breath. I looked at my watch and realised that it was 2.30am and I was on my 18th hour of straight work.

I have spoken to a number of lawyers both junior and senior in the legal profession and my experiences are not dissimilar to theirs. All I can say is that the need to monitor your mental health and wellbeing is essential. One thing I have learnt is that the longer you stay in the legal profession the more skills you acquire (somehow osmotically) to cope with the daily stressors of being a lawyer. The following are some of the activities that law firms and legal government departments are doing for their employees: 1. Yoga – having an external facilitator come to the office and provide classes. You can learn things such as “the meaning of downward dog.” 2. Pilates – again having an external facilitator attend your office. 3. Extensive lunchtime health and wellbeing seminars such as ‘resilience and mental toughness’, ‘heart health’, ‘breast cancer awareness’ and ‘sleep and fatigue’. 4. Subsidising a gym membership. The literature is clear that physical exercise aids in controlling your stress. 5. Winter cooking demonstrations – learn how to make a yummy laksa or a delicious curry. Eating well and having a balanced diet is essential to maintaining mental health and wellbeing. 6. “R U OK” day – which is hosting a morning tea and awareness session for staff and allows them to have a morning break and social chat with colleagues about themselves and their lives. 7. Free counselling sessions to employees and their immediate family. As a member of the Law Society of WA you are entitled to free counselling.

HBF Fun Run, corporate triathlons and Ride to Work Day. Personally, doing a triathlon would increase my stress levels rather than reduce them, but hey whatever works for you go for it! 9. Massage – having an external massage therapist attend the office. This is more up my alley. A day spa treatment would be better - just putting it out there employers. 10. Launching a ‘Personal health optimiser’ – which is an interactive online health and wellbeing community that generates personalised health reports, assists staff to set and monitor their progress against health and fitness goals, provides ongoing support in terms of tips and discussion forums. 11. Group walking – working at the Office of Director of Public Prosecutions (WA) we have formed a group of employees who go for walks along the river. 12. Providing fruit to employees – healthy body, healthy mind as the saying goes. As can be seen from the above there are many things that employers can provide to employees to assist in monitoring their mental health and wellbeing. From an employer’s perspective the mental health and wellbeing of employees will not only result in a more positive working environment but ultimately be more productive and cost effective when compared with employees who are disgruntled, take sick leave, make stress claims or resign. This places more pressure on other lawyers in your firm to take up the slack with the absence of these lawyers who are off work due to mental health issues. NOTES


Any view expressed in this article does not reflect the views of the Director.

8. Sponsoring employees to participate in such activities like the


for Members

Caring for the Legal Profession in Western Australia

What is LawCare(WA)? LawCare(WA) is a range of initiatives by the Law Society of Western Australia to support the mental health and wellbeing of members. The initiative includes professional, confidential and free counselling and information services to support members. As part of the service, members can access up to three free counselling sessions and a range of online information resources. Who provides the service? LawCare(WA) is provided by Optum, an international organisation with their main focus on employment wellbeing and Employee Assistance Programmes (EAPs). In Australia, Optum provides EAPs to a large number of private, public, government, manufacturing and not-for-profit organisations.

These can be delivered as face-to-face, telephone or online sessions. Some additional services are provided by Optum at a cost to members.

Other services of LawCare(WA)

Where does the counselling take place?

Email assist

Exec assist

Finance assist

Mortgage assist

Ask the Psychologist

Health Steps Online

Managers’ Hotline

Skype Counselling

Optum has eight locations in the Perth metro area and more than 30 locations in regional Western Australia. Optum will work with you to find the best location for counselling. They also have after hours and Saturday appointments available in some locations. Phone and online counselling sessions can also be arranged depending on your preference. About the counsellors

More information

All Optum counsellors are qualified psychologists or social workers with peak industry accreditation and substantial experience.

Call 1300 361 008 with any questions about LawCare(WA) and the services you can access as a member of the Law Society of Western Australia.

How do I access LawCare(WA)?


Simply call 1300 361 008. Phone Optum and reference LawCare(WA). You will then be asked to provide some basic details if necessary.

Confidentiality is guaranteed. Optum is completely independent to the Law Society of Western Australia and no identifying information will be passed on.

Who pays for the service? As a member of the Law Society of Western Australia you have access to a comprehensive range of online resources and information. It is a free member benefit. The Society will also pay for up to three sessions of counselling support. 38 | Brief September 2014

In addition to the telephone, online and counselling services, members have access to the following:

pam sawyer


An Interview with Gabrielle Sammon Gabrielle Sammon, Restricted Practitioner, Tottle Partners How did you come to take on this Law Access pro bono referral? My principal, Paul Tottle, expressed an interest with the Law Society on behalf of the firm in assisting refugee applicants requiring legal assistance. This led to Law Access contacting Tottle Partners with this referral. Can you describe the matter you took on? Our client was seeking judicial review of a decision of the Refugee Review Tribunal in relation to his application for a protection visa. What were you able to do for the client?

What aspects of the matter differ from your usual role? Our client does not speak English and is in detention so all of our conversations took place using a telephone interpreter service, which was challenging at times. It was also my first time acting in an application for judicial review under the Migration Act. What did you enjoy about this matter? It was very rewarding to assist a person so acutely in need of legal assistance and who may not otherwise receive such help without pro bono schemes like Law Access. From the perspective of a junior lawyer, it was also a great opportunity to further my litigation skills in the area of administrative review generally. Assistance was very willingly provided by members of the independent bar with extensive experience in these cases. It was also a pleasure dealing with the Australian Government Solicitor’s staff, who recognised the difficulties


We filed an application for judicial review in the Federal Circuit Court and the Minister for Immigration conceded

that the Tribunal had not considered an integer of our client’s claim for protection. The Tribunal will now consider our client’s claim for a protection visa a second time.

I confronted and were appropriately helpful. Would you take on another pro bono referral for judicial review? This was my first pro bono referral and I would certainly accept another. Have you got any tips for a practitioner taking on their first pro bono judicial review matter? I would recommend that other young lawyers interested in pro bono work view it as both an opportunity to provide much needed legal assistance to the broader community, but also as an opportunity to further their skills. This matter was a challenge for me but I learnt a lot and it was definitely worth it.

If you would like to be involved with Law Access Pro Bono cases, please contact for more information.

Say bon voyage to late water bill payments

We W e’v ve ap appl ppl plie ied a li ie l tt ttle l fre le esh wat ater er t h hiink kin ing g to o My Wa W te t r an nd ou our tw t wo o mont montthl mo h y biillin llin ll ing ng pr p oc oces oces ess s by by add ddin ing ne ing in n w fe feat atur at ures ur ures e to hel elp py yo ourr cli lien ients ents man en anag ag a ge th th hei eiir bill eir billls. bi s Inv n es esttm m men en nt pr prop rop perr ty y own wner errs ca an no ow pr p e ep pay y the eir ir ser e vi vice c cha ce h rg rges es for o the h f ina fi nanc na ncia nc ial ye ia y ar a an nd d hav ave thei ave th hei eirr wa wate terr us te use eb biill lss se ent diirrec c tlly to the eir ten nan nts ts. Find Fi nd d out mor ore e att wat ater erco er co cor orp rpor rpor orat atio at ion. io n. om. m. au au/m /m myw wat aterr

40 | Brief September 2014



case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – High Court holds that husband should be held to his promises to transfer a property to his lover In Sidhu v Van Dyke [2014] HCA 19 (16 May 2014) the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) considered promises by the appellant husband to transfer to the wife’s sister-in-law (with whom he had had a sexual relationship) a cottage on a rural property in the homestead on which the husband lived with his wife. Relying on his promises the respondent lover was prevailed on by him not to pursue her own husband for property settlement and she carried out work on the cottage and adjoining property. In the Equity Division of the Supreme Court of NSW the respondent won an appeal from the first instance decision to the NSW Court of Appeal which held the appellant estopped in equity from resiling from his promises on which the respondent had relied to her detriment, ordering him to pay her a sum equal to the value of the property promised. Upon the appellant’s appeal to the High Court, French CJ, Kiefel, Bell and Keane JJ discussed equitable estoppel and the evidence at paras 58-78, concluding at para 86: … no reason has been identified by the appellant to conclude that good conscience does not require that [he] be held to his promises. In particular, it is no answer for [him] to say that the performance of his promises was conditional on the completion of the subdivision and the consent of his wife to the transfer to the respondent. His assurances to [her] were expressed categorically so as to leave no room for doubt that he would ensure that the subdivision would proceed and that the consent of [his] wife would be forthcoming. Property – Personal insolvency agreement frustrated an interim costs order – Controlling trustees ordered to release control of property In Beaman & Bond [2014] FCWA 21 (4 April 2014) the respondent was ordered to pay $100,000 for forensic investigation 42 | Brief September 2014

fees and future legal costs of the applicant after which he signed an authority under s 188 of the Bankruptcy Act 1966 (Cth) for controlling trustees (second respondents) to take control of his property under a personal insolvency agreement (PIA). The de facto wife applied under s208 BA for the release of the respondent’s property from the controlling trustees on the ground that the PIA was an abuse of Part X BA and would frustrate the Family Court proceedings. Holding that ‘special circumstances’ under s208 existed to justify an order releasing the respondent’s property from the trustees’ control, Crisford J said at para 130: The considerable investment in the Family Court proceedings in terms of time, effort and investigation will effectively be frustrated if the PIA is executed and given effect. I find that the removal of [the respondent’s] property from the control of the trustees is unlikely to cause unfair prejudice to either the parties … or … creditors. The issues will still be resolved, but in one set of proceedings. Children – Parenting order suspended to allow mother to relocate to Thailand for 18 months despite “Level 2” travel warning In Eades & Wrensted [2014] FCWA 15 (5 March 2014) Walters J granted an application by the mother of children (10 and 4) for suspension of a parenting order (5 nights per fortnight to father) to allow her to relocate from Perth to ‘City A’ in Thailand for 18 months where her partner had obtained employment. The mother proposed 6 trips to Australia during that time. The father opposed the application, citing “political unrest in Thailand … the amount of travel, the effect of the relocation upon the children’s schooling … ”. Walters J (para 72) concluded that “the sojourn [would] not result in [his] having anything other than an ongoing, meaningful relationship with the children” and was satisfied (para 192) as to “the father's reference to City A's unsavoury reputation … that the mother and Mr D [would] ensure that the children are insulated from the city's seamy side”. As

to travel advice Level 2 issued by DFAT (“exercise a high degree of caution”), Walters J (para 208) accepted the mother’s evidence that she and Mr D were “responsible adults who [would] do everything in their power to ensure that the children [were] not exposed to any unacceptable risks”. Children – Absent father, indigenous mother – Child raised in Brisbane as Torres Strait Islander In Waugh & Bannon [2014] FCCA 893 (6 May 2014) Judge Baumann dismissed a father’s application for time with his 8 year old daughter (‘[X]’) where [X] had “spent no time with [him]” prior to the proceedings and “really does not know of his existence or identity”. The mother was “an indigenous woman who identifies herself as Torres Strait Islander”. The parties had a brief relationship in 2004, the father initially disputing that he was [X]’s father. He applied for parenting orders in 2011 after the Child Support Agency reduced his Centrelink benefits when DNA testing proved him to be the biological father. Under interim orders some supervised time had occurred. Judge Baumann (para 41) accepted a forensic psychologist’s evidence that the mother’s family “adopts the practices of the Torres Strait Island culture, even though the child [lives] in suburban Brisbane … a collective family culture in which other family and kin have a significant say in how the child will be raised and by whom”. The Court also (para 45) accepted the opinion of the family consultant that from her observations the father “has not yet grasped the significance to [X] of her extended family and Torres Strait Islander lifestyle”, saying that “if an order is made that is not ‘accepted emotionally’ by the mother and her family it could undermine the ‘collective family structure’ that supports and has nurtured [X] and which is her reality”. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. He is assisted by family lawyer Craig Nicol.

case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Petroleum resource rent tax Profit In PTTEP Australasia (Ashmore Cartier) Pty Ltd v Commissioner of Taxation [2014] FCAFC 71 (13 June 2014) a Full Court concluded that the primary judge had erred in analysing the effect a supplementary deed between the vendor and purchaser of oil had on the calculation of the price for s24(1)(b) of the Petroleum Resource Rent Tax Act (Cth). Trade practices Linked credit providers In Quickfund (Australasia) Pty Limited v Airmark Consolidators Pty Limited [2014] FCAFC 70 (16 June 2014) the appellant finance companies rented office equipment from the respondents as a consequence of misleading statements from the suppliers of the equipment. On the appellants defaulting under the rental agreements, the respondents sued them and the directors who guaranteed them. In response the appellants claimed the respondents were ‘linked credit providers’ within s73 of the Trade Practices Act 1974 (Cth) (as in 2009 and prior to the Competition and Consumer Act 2010 (Cth)) and responsible for the conduct of the suppliers under that and the Contracts Review Act 1980 (NSW). The Full Court concluded the primary judge correctly concluded that the introduction of s51AF of the Trade Practices Act by the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth) did not have the effect of making the ‘linked credit provider’ provisions in s73 inapplicable to the rental contracts. The Full Court also concluded the guarantors were not precluded from claiming under the Contracts Review Act that the guarantee contracts were oppressive because the guarantee contracts were made in a ‘business’ carried on by them (within s6(2)) as the relevant business was carried on by the companies they guaranteed. Appeals dismissed. Contracts Liabilities after agreement ends – new points on appeal

In Austral Masonry (NSW) Pty Ltd v Cementech Pty Limited [2014] FCAFC 72 (17 June 2014) a Full Court concluded the liability of a party to an intellectual property licence agreement to exploit a patent to contribute to litigation to protect the patent continued after the term of the licence agreement ended. The Court considered when a point not raised at trial could be raised on appeal. Patents Inventive step In Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2014] FCAFC 73 (19 June 2014) a Full Court reviewed authority as to when an invention is obvious to the hypothetical skilled addressee of the patent at the priority date. Trademarks Infringement In Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd [2014] FCAFC 75 (20 June 2014) a Full Court considered whether use of a composite mark in the title to a web page in search results on trademark use amounted to use of a deceptively similar sign. Insurance Professional indemnity insurance – claims made policy – whether Commercial List response in NSW – Commercial List a ‘claim’ In Amlin Corporate Member Ltd v Austcorp Project No 20 Pty Ltd [2014] FCAFC 78 (30 June 2014) a Full Court concluded that a response filed and served in the NSW Commercial list was not a suit or civil proceeding ‘brought against’ the insured for the purposes of the claims made policy because a response such as one alleging a set-off was not a claim in the ordinary sense. Competition law Power of ACCC to arbitrate disputes in agreements granting access to the telecommunications system In Telstra Corporation Limited v Vocus Fibre Pty Ltd [2014] FCAFC 77 (2 July 2014) a Full Court concluded the power given to the ACCC under cl 36(3) of Sch 1

of the Telecommunications Act 1977 (Cth) to arbitrate disputes between carriers as to access to the telecommunication network did not extend to the subject dispute as to the exercise of a power given by an agreement to set and vary charges. Migration Refugees – decision not to lift bar set by s46A Migration Act – procedural unfairness In MZYPY v Minister for Immigration and Border Protection [2014] FCAFC 68 (27 June 2014) a Full Court concluded there was no procedural unfairness in a decision not to lift the bar imposed by s46A of the Migration Act 1958 (Cth) (preventing an application for a protection visa without the Minister’s consent) in relation to the appellant. Migration Refugee status – religious belief In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (4 July 2014) a Full Court considered authority as to what level of religious belief, commitment and understanding must be established before a person may be accepted as a refugee for that belief. Appeal dismissed. Migration Refugees – natural justice – failure of reviewer to consider submission – ‘cut and paste’ decisions In SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 (7 July 2014) a Full Court concluded an Independent Merits Reviewer had failed to afford the appellant natural justice by overlooking a submission. The Court considered the practice of a decision maker confronted with the same argument on a number of occasions ‘cutting and pasting’ his own earlier decisions. Appeal allowed.

Thomas Hurley is a Victorian barrister, phone (03) 9225 7034, email The full version of these judgments can be found at 43

law council update

Law Council calls for fair go for those seeking asylum The Law Council of Australia remains concerned at the treatment of asylum seekers in Australia in light of the recent detention at sea of a group of people and the decision to transport them to the mainland for processing. It is a fundamental principle of the operation of the rule of law that all asylum seekers under the control of Australian authorities, regardless of the strength of their claims for asylum, be treated with fairness and dignity and be provided with the opportunity to have their protection claims considered by the Australian government in accordance with law. The interception of two boats by Australian authorities, the subsequent return of a number to Sri Lankan authorities and the detention at sea of others on those boats has raised questions about the extent to which Australia remains committed to the spirit of the Refugee Convention, an instrument which Australia is not only obliged to follow under international law but had a lead role in drafting. At minimum, Australia is obliged not to return people to a place where they have a well founded fear of persecution including torture or the death penalty. The Convention also requires that people be given access to independent legal advice and have the opportunity to articulate any protection claims that they may have – regardless of any arrangements that Australia may have entered into with officials from foreign governments. Law Council of Australia President, Mr Michael Colbran QC, called for the Government to proceed in a transparent manner, saying it is a fundamental tenet of the Rule of Law that the Executive arm of Government is subject to the law and accountable for its actions. “It is of concern to the whole community that the Australian Government adheres to the principles of natural justice and fairness, with due regard for our obligations under international law and our reputation as a key proponent of human rights. “It is critical that, unless some overriding issue of security is invoked, the Government is open and clear about the events which have taken place,” Mr Colbran concluded.

44 | Brief September 2014

The Law Council will continue to monitor the High Court’s consideration of these issues with great interest and urges the Australian Government to ensure that those men, women and children looking to Australia to provide protection get a fair opportunity to make their claims and have those claims assessed according to law. Law Council concerned over proposed Migration Act changes The Government introduced the Migration Amendment (Protection and Other Measures) Bill 2014 (the Bill) into the House of Representatives on 25 June 2014 as part of the Government’s Operation Sovereign Border’s Policy. The key amendments to the Migration Act 1958 (Cth) that are proposed by the Bill relate to: the process and procedures that apply to the assessment of protection visas; the threshold test for when Australia’s non-refoulment (or nonreturn) obligations under the International Covenant on Civil and Political Rights (ICCPR) or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are invoked (known as complementary protection) and the operation if the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT). In its submission to the Committee Inquiry into the legislative amendments, the Law Council expressed its support for the stated rationale for the Bill to increase the efficiency of existing protection status determination processes. The Law Council noted that certainty of the legal framework for the determination protection claims is urgently needed – particularly given the thousands of asylum seekers currently in Australia who continue to await consideration of their protection claims. The Law Council also expressed its support for efforts to ensure complementary protection assessment processes remain codified in legislation, and efforts to clarify procedural matters such as when a decision will be finally determined, and how notice is given. The Law Council previously opposed the removal of the complementary provisions in its 23 January 2014 submission to the Committee on its inquiry into the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2014. The Migration Amendment (Regaining Control

Over Australia’s Protection Obligations) Bill 2014 remains before the Senate, and if it is enacted, the complementary protection provisions in the Bill will not commence. Despite the support for the rationale and certain provisions of Bill, the Law Council expressed its concern that many of the amendments contain features that depart from relevant domestic and international jurisprudence and contrast sharply with existing procedural frameworks for the assessment of protection claims. As currently drafted, these features may in fact fail to improve the efficiency of the existing system and may put protection visa applicants at risk of not having their claims fairly assessed, and of return to a place where they face persecution or other forms of serious harm. The Law Council discussed that the Bill also seeks to significantly alter the existing inquisitorial character of the protection status determination process by introducing procedural changes that import adversarial features into the RRT. For example, the Bill introduces a new onus on lawful and unlawful non-citizens to specify the particulars of their protection claim and to provide sufficient evidence to support their claim, removing the RRT’s existing discretion to assist in the collection of evidence where appropriate, such as where the applicant faces insurmountable practical barriers in the verification of documentation. The Law Council also expressed its strong concerns about the inadequate access to independent legal or migration advice for asylum seekers in Australia which has particularly serious implications for those people whose claims will be subject to the reforms proposed in the Bill, if enacted. The Law Council recommended that the Bill not be passed. However, if the Committee was not minded to follow this recommendation, the Law Council urged the Committee to recommend that amendments be made to the Bill to ensure that it more appropriately aligns with Rule of Law principles, procedural fairness and Australia’s international law obligations, and proposed amendments that it considered to be appropriate. The Law Council is grateful to the Law Institute of Victoria, the New South Wales Bar Association and the International Law Section’s Migration Law Committee for their input to this submission.

The Clued up Kids Competition Maire Ni Mahuna Education Officer, Francis Burt Law Education Programme Spread over a three month period from March to May ending in Law Week, the Francis Burt Law Education Programme (FBLEP) held its inaugural Clued up Kids competition sponsored by Curtin University Law School. Mrs Catherine Piper, Acting Registrar at Belmont Local Court in NSW, founded the Clued up Kids competition and has been running the competition in NSW for the last five years. She kindly agreed to work with the FBLEP staff to enable the competition to be run in WA in 2014. The competition for Year 6 or 5/6 composite students across Western Australia is designed to develop analytical thinking skills and teamwork. This year the students were given a scenario about a king hit at a cricket match and their task was to find out who hit the victim. During the competition the students were allowed to ask the FBLEP Education Officers up to six questions. With each question they were then given more clues to solve the crime. The winning team not only had to find the correct answer but also had to present their findings in a creative way. Clued up Kids is particularly relevant in

2014, as the Year 6 Australian Curriculum History programme specifically requires students to learn about Australiaâ&#x20AC;&#x2122;s system of law. Twelve primary schools in WA took part with 14 teams of up to seven young people in each team. With 76 children registered, teams completed their work with assistance from other students in their class. The competition therefore involved around 300 primary school students. The judging panel who had the difficult task of choosing the best presentations were the Chief Magistrate of Western Australia, Mr Steven Heath, Dr Michelle Evans from Curtin University, Mrs Claire Rossi from Legal Aid WA and Sergeant Gary Corker from the WA Police. The judging was based on three main criteria: correct identification of suspect; supporting evidence and creativity. The winning presentation by Trinity College was outstanding. It included a video of a television news report, a very creative rap and a powerpoint presentation. The runners up from Mandurah Catholic College submitted a very creative movie using Lego. The

Ambassador School award, selected by the way the team communicates with the FBLEP staff during the competition, was won by the team from Springfield Primary School. All the prize winners attended the presentation hosted by Trinity College on Friday, 13 June. Representing the Law Society, Ms Elizabeth Needham addressed the students before presenting the prizes with Professor Paul Fairall, Dean of Curtin University Law School, and Sergeant Garry Corker from the WA Police. Sergeant Corker then spoke to the students about the issue of the king hit in our society before answering a range of questions from the primary school students. The 2014 Clued up Kids competition also has an interstate element with the entry from the winning WA team from Trinity College, being judged against the winning NSW team. The Society thanks Curtin University for its sponsorship of the competition, the Chief Magistrate, the WA Police and Legal Aid WA for their contributions and Acting Registrar Catherine Piper for agreeing to work with the FBLEP team.

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Professional Announcements Career moves and changes in your profession

Culshaw Miller Lawyers

Graham & Associates

Borrello Legal

The Culshaw Miller team is proud to announce that with effect from Friday 1 August 2014, Mary Basta and Daniel Sampson have been offered and accepted appointments as new Associates of the firm.

James Graham has commenced practice as the Principal of Graham & Associates, a boutique litigation and dispute advisory firm based in West Perth.

Borrello Legal is pleased to announce that Grant Cheesman has been appointed as Special Counsel to the firm. Grant commenced with the firm on 4 August 2014.

We congratulate both Mary and Dan on their significant achievement and look forward to seeing them continue to grow in their new role.

Mary Basta

James Graham

Level 1, 100 Havelock Street, West Perth P: (08) 6160 5991 F: (08) 6160 5901 Kott Gunning Daniel Sampson

SRB Legal SRB Legal is pleased to announce the appointment of Sarah Latham and Angie Gimisis as Senior Associates from 1 July 2014.

Castledine Gregory Castledine Gregory is pleased to announce the appointment of Paul Tolcon as a consultant lawyer to the firm from 5 August 2014.

Paul Tolcon

Kott Gunning advises that Mr Tony Milne has left the firm and commenced practice at Bradley Bayly Legal, effective 22 July 2014. Tony commenced with Kott Gunning in October of 1968 and has been the partner managing the firm’s personal injuries practice since 1973.

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new members & classifieds

New Members New members joining the Society ASSOCIATE MEMBERSHIP Mrs Jeanna Brady Ms Rebecca Collopy Miss Abbey Cross Ms Jocelyn Dossor Miss Jessica Hamdorf Mr Dong Huynh Miss Alyce Jefferies Ms Danielle Johnson â&#x20AC;&#x201C; Kellett Mrs Adriel Knowling Mr Blair Macdonald Miss Johanna More Mr Asoka Ranjith Munidasa Mr Andrew Neagu Ms Tuba Omer Miss Paige Richards Mr Adam Rompotis Miss Bryanna Ross Mr Michael Stone Miss Ariana Tutini Mr Adam Ward

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ORDINARY MEMBERSHIP Mr Mark Edwards Mr Timothy James Mr Edwards Kyle Mr Daniel Messina Ms Sheree Allsop Miss Jane Gallop Mr Mark Lewis Mr Bradley Spiers Mr Samuel Witton Miss Katherine Pole Miss Ariana Skinner

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BRIEF 2014 Volume

41 | Number

6 | July


WEEK LAW 2 0 14 47

events calendar

Events Calendar Date




Wednesday, 10 September

ATO Debt Collection

The Law Society of Western Australia


Wednesday, 10 September

Resources Fundamentals: Lodging Objections and Agreements

The Law Society of Western Australia


Thursday, 11 September

Re-engagement & Re-invention: Your Career, Your Direction

The Law Society of Western Australia


Thursday, 11 September

Security for Costs – A Practical Approach

The Law Society of Western Australia


Tuesday, 16 September

Evidence in SAT: What to do Where the Rules of Evidence Don’t Apply

The Law Society of Western Australia


Wednesday, 17 September

Support Executive Event: From Technical Specialist to Trusted Advisor

Parmelia Hilton Perth


Friday, 19 September

Ethics on Friday: The Line Between Proofing and Coaching a Witness

The Law Society of Western Australia


Saturday, 20 September

YLC Ball - Rêver de Paris!

Hyatt Regency Perth


Thursday, 25 September

YLC Fundamental Evidence Series: Reliability

The Law Society of Western Australia


Tuesday, 2 October

Shareholder and Joint Venture Agreements and Disputes

The Law Society of Western Australia


Monday, 6 October

The Essential Legal Assistant

The Law Society of Western Australia


Thursday, 9 October

Sale of Strata Title Properties ‘off the plan’

The Law Society of Western Australia


Tuesday, 14 October

The Native Title Act: An Introduction to Future Act Procedures

The Law Society of Western Australia


Tuesday, 14 October

Third Party Involvement in Environment and Planning Decision Making

The Law Society of Western Australia


Tuesday, 14 October

Law Office Management Expo

Parmelia Hilton Perth


Thursday, 16 October

Fundamentals of Assessing Damages in Personal Injury Matters

The Law Society of Western Australia


Friday, 17 October

Ethics on Friday: Professional Courtesy

The Law Society of Western Australia


Tuesday, 21 October

In The Black: Essential Financial Literacy

The Law Society of Western Australia


Tuesday, 21 October

In the Black: Budgeting and Financial Analysis

The Law Society of Western Australia


Wednesday, 22 October

Financial Planning and the Banks

The Law Society of Western Australia


Thursday, 23 October

YLC Hypotheticals

The Law Society of Western Australia


For all CPD-related enquiries please contact or (08) 9324 8600 For all membership-related enquiries please contact or (08) 9324 8600 48 | Brief September 2014



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Global firm with boutique Perth office. Construction disputes lawyer with 4–7 years’ PAE required for prominent practice. Prestigious client base with opportunities for global mobility. ref: BX/40925

Senior Associate/Special Counsel

Premier international top-tier firm. Front-end lawyer required. Large team servicing blue chip principals and owners, operating primarily in resources industry. 2–4 years’ PAE required. ref: BX/42754

Established Perth boutique firm in CBD. Senior Lawyer required to assist on general commercial and property matters. Work autonomously or with support of two Partners. Outstanding salary and benefits. ref: 6B/15266

Associate & Senior Associate Well-regarded, mid-tier firm in expansion phase. Three-Partner team seeking lawyers at junior and Senior Associate level. Broad range of commercial property and leasing matters. ref: BX/42403


Senior Associate Dynamic top-tier national firm recognised as an “Employer of Choice”. Work on large construction projects and disputes, predominantly focusing on ADR. High profile matters working under two prominent Partners. Excellent rewards and benefits. ref: BX/40628


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Global law firm. Lawyer with 3–6 years’ PAE sought for busy litigation practice. Opportunity to specialise in insurance and maritime claims. Vibrant, friendly and forward-thinking environment. Above-market salary and benefits. ref: BX/41718

Global top-tier firm. Established, private M&A/commercial team. 2–5 years’ PAE required. Strong E&R client base. Welcoming firm and supportive Partners. ref: 6B/14609

Associates — Commercial Litigation/insolvency

National firm. Senior lawyer with at least 6 years’ regulated and unregulated M&A and resources experience. Fast-paced team with matters requiring immediate assistance. Work autonomously with a “hands-off” Partner. ref: BX/41596

Premier top-tier firm. Two general commercial litigation lawyers with 3–5 years’ PAE required. Opportunity to maintain general litigation focus or specialise in insolvency. Enjoy direct client contact and autonomy. ref: BX/41768

Lawyer/Associate Top-tier international firm in expansion phase. General commercial litigation lawyer with 3–4 years’ PAE required. Collegiate culture. Excellent salary and benefits. Enjoy ongoing training, mentoring and constructive feedback in this progressive environment. ref: BX/42457

Senior Associate/Special Counsel

Senior Associates Exceptional national boutique operating primarily in the resources sector. Large corporate and resources teams enjoying consistent M&A, ECM and corporate advisory work. Unrivalled client base. Globally renowned Partners. ref: BX/41254

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Profile for The Law Society of Western Australia

Brief September 2014  

Brief September 2014  

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