Brief April 2015

Volume 42 | Number 3 | April 2015

THE APPOINTMENT OF SENIOR COUNSEL

WRIGHTS, RIGHTS AND FRIGHTS? HUMAN RIGHTS PROTECTION IN AUSTRALIA AND THE UNITED KINGDOM Part Two

POWER PERSONIFIED.

BMW

Sales Finance Service Parts

THE ALL NEW BMW X6 HAS ARRIVED AT AUTO CLASSIC AND WESTCOAST BMW.

In the all new BMW X6, every drive is a powerful statement. Its extrovert design commands attention; blending the robustness of a BMW X model with the sporting elegance of a BMW Coupé. Inside, it boasts generous space and luxurious ambience. Under the bonnet, you will find an incredible range of engines available, all with stunning power and exceptional fuel economy. The all new BMW X6 puts the power in your hands.

Best of all, as a member of The Law Society (WA) you are eligible to enjoy the many rewards of BMW Advantage, including complimentary BMW Service Inclusive for 4 years/60,000kms and corporate pricing,* to name but a few. To find out how you could start a rewarding journey with BMW Advantage, visit bmw.com.au/advantage or contact our Corporate Sales team at Auto Classic on (08) 9311 7533 or Westcoast BMW on (08) 9303 5888 today.

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533.

A/H 0450 525 025. autoclassic.com.au LMCT 2271

Westcoast BMW Cnr Luisini Road and Hartman Drive, Wangara. Ph 9303 5888.

A/H 0409 803 586. westcoastbmw.com.au LMCT 2271

*Benefits apply to the purchase of a new BMW vehicle and only to the vehicle purchased. Subject to eligibility. Terms, conditions, exclusions and other limitations apply, and can be viewed at bmw.com.au/advantage.

Contents

GO DIGITAL!

Volume 42 | Number 3 | April 2015

Take me with you.

26

14

02

President’s Report

36

National Profession Reform Update

Matthew Keogh

04

Editorial

37

Book Review of Annotated Safety, Rehabilitation & Compensation Act 1988 (Cth), 10th Edition

Julian Sher

Review by Brian Nugawela

38

The Nature of Good Faith Obligations in Contracts

Mark Holler

42

Family Law Case Notes

06

Doing the wrong thing for the right reason

Gino Dal Pont

08

Getting Ready for PEXA

Property Exchange Australia

43

Thomas Hurley Case Notes

Law Summer School 2015

44

Law Council Update

45

Pam Sawyer Professional Announcements

10

14

FEATURE Wrights, Rights and Frights?

46 46

Classifieds

J.J. Hockley

47

New Members

22

Supply Chain Accountability: How far does Responsibility Extend?

47

Submissions

Janine Webster with Reshma Bargon and Megan Carter

48

Events Calendar

24

Women Lawyers High Tea

26

The Appointment of Senior Counsel - An Insider's View

The Honourable Wayne Martin AC, Chief Justice of Western Australia

30

Human Rights Protection in Australia and the United Kingdom: Contrasts And Comparisons (Part Two)

The Hon Robert French AC, Chief Justice of the High Court of 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 Manager - Business Development Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Manager Marketing & Communications Moira McKechnie Communications and Design Officer Brett Syme

EDITOR Julian Sher

PRESIDENT Matthew Keogh

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

SENIOR VICE PRESIDENT Elizabeth Needham

PROOFREADERS Michael Hardy, Leisa Mundy

RRP $15.00 incl GST. Printed by Scott Print

Brief is the official journal of THE LAW SOCIETY OF WESTERN AUSTRALIA Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: lawsocietywa.asn.au

VICE PRESIDENT Alain Musikanth TREASURER Hayley Cormann ORDINARY MEMBERS Alison Aldrich, Marie Botsis, Tara Connolly, Hayley Cormann, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Greg McIntyre SC, Marshall McKenna, Denis McLeod COUNTRY MEMBER Georgia Pickering JUNIOR MEMBERS Emma Cavanagh, Ray Christensen, Rosie Hill

ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome.

For further details, please contact communicationsofficer@lawsocietywa.asn.au

IMMEDIATE PAST PRESIDENT Konrad de Kerloy EXECUTIVE DIRECTOR David Price

01

report

President's Report Matthew Keogh, President, The Law Society of Western Australia I’m not altogether sure I like castiron alibis. They’re the sort that sink quickest - to the bottom of the sea.

Horace Rumpole This month we celebrate the ANZAC centenary. This affords our community a unique time to reflect not only on the literal and mental battles confronted by our forebears, but also the society that they left in Australia and New Zealand to go off to war. Students of Australian legal history at this time will no doubt be familiar with the War Precautions Act 1914 (Cth). This Act gave the executive branch of government the power to govern by decree through regulations “for securing the public safety and defence of the Commonwealth”.

The passage of emergency powers during wartime was not especially remarkable, but in practice it gave the executive extraordinary discretion and arbitrary power. The Act was amended several times, and its regulations constantly increased, imposing restrictions on freedom of speech, freedom of assembly and freedom of the press. During this time the then Solicitor-General Robert Garran was once asked, “Would it be an offence under the War Precautions Act ... ?” to which he responded, cutting the questioner off, “Yes”.

Some MPs at the time were in fact nervous about its potential to introduce “something like martial law”. Yet these reservations dissipated, with MPs seemingly reassured by the argument of the then Attorney-General that “In time of war Governments do ... many things not authorised by law” and the then Prime Minister’s assurance that the Government would use the new powers as sparingly as possible.

Of course, 100 years, some wars, many conflicts later and now in peace time, as a civic society we have learnt and developed a great deal; however, in many respects history does appear destined to repeat itself.

DATA RETENTION LAWS Similar issues have arisen with the proposed mandatory data retention laws 02 | Brief April 2015

(Telecommunications (Interception and Access) Amendment [Data Retention] Bill 2014). The Law Council of Australia (LCA) has made its opposition to these laws clear, noting that “there must be a proper analysis of the proposed provisions, and they must be able to be seen to be for a legitimate purpose and not at the expense of the necessary safeguards.”

While efforts to modernise Australia’s telecommunications interception and access legislation to protect the community from serious crime and threats to national security are supported in principle, the response must be necessary and proportionate. In general, there is a concern that the scheme is not sufficiently defined to allow people to know the extent of interference with their privacy and for service providers to know their legal obligations.

While the Parliamentary Joint Committee on Intelligence and Security’s subsequent report on the proposed data retention laws adopted many of the LCA’s earlier recommendations, there remain measures in the Bill which require rectification, in particular a need for: •

more specific protections for privileged and confidential information;

•

an oversight mechanism before an agency is able to access data, such as a warrant process;

•

proper protections against access of information in civil proceedings, including through discovery; and

•

restrictions to keep such retained data in Australia (and therefore the protections of Australian law).

Despite these very legitimate concerns, in particular the public interest in ensuring that the confidentiality of client/lawyer communications are protected, it appears that the proposed laws will be passed without these issues being addressed.

PROTEST LAWS On the state front, the Society is concerned that proposed legislation to address protests (Criminal Code Amendment [Prevention of Lawful Activity]

Bill 2015) is too broad and may erode fundamental aspects of our criminal justice system.

In particular, the Society is concerned about the reversal of the onus of proof.

As members will be aware, our criminal justice systems operates on the basis of an accused’s right to silence, the belief that a person is innocent until proven guilty and the requirement for guilt to be established beyond reasonable doubt.

The effect of the reversal of the onus of proof is to assume that a person has committed an offence and requires them to prove their innocence. This represents a fundamental undermining of the basic tenets of the criminal justice system.

The Society also believes that the criminal offences to be created by the proposed law are too broad. The criminal law should be drafted so that it is clear to the public, police, prosecutors and the courts whether certain conduct is or is not criminal. As presently drafted, we are concerned that the laws would place too much discretion in the hands of the police and prosecutors, which is not fair on them or the public, with the public having to second guess how the police may enforce very broad criminal laws.

The reversal of the onus of proof must be removed and, at the very least, the remainder of the proposed legislation should be referred to a parliamentary committee to review and consider ways to draft the legislation to target the specific ill that the government wishes the legislation to address.

NON-FAULT CATASTROPHIC COMPENSATION SCHEME Another current issue in Western Australia is the proposal for the introduction of a nofault catastrophic compensation scheme.

Presently, Western Australia has a very effective and efficient third party motor accident compensation scheme managed by the Insurance Commission of Western Australia (ICWA). If you are injured as a result of another person’s negligence, you can claim compensation as a lumpsum under that person’s compulsory third-party insurance policy. In these circumstances, ICWA will immediately

cover treatment, care and support on a pay-as-you-go basis. Eventually the claim is resolved by way of a lump sum, either by negotiation (about 52% of cases), or by the adjudication of the court. It is clear that the current system looks after those who are injured wrongfully, but not those who cannot prove anyone else was at fault, or who have behaved carelessly or recklessly.

Those at fault in an accident, or who injure themselves while using a public road, are not covered. ICWA estimates that this accounts for around 48% of catastrophic injury victims on WA roads.

Further, Western Australia also remains one of two states that does not yet have a catastrophic injury scheme for motor accidents.

The primary argument for a nofault scheme, therefore, is that all catastrophically injured people should receive support. Regardless of how someone is injured, a healthy and caring society will meet the cost of care to assist injury victims and their families.

ICWA has released a green paper outlining options for the implementation of such a scheme. Option 1 is to do nothing, which is generally not supported. Most of the public attention has been focused on Option 2, which is to place all injured people under an administrative scheme for lifetime care and support.

Under option 2, anyone who suffers a catastrophic injury must enter into a life-long relationship with a government delegate. They must seek approval for each home alteration, any change to care arrangements, any purchase of wheelchairs or other necessary supports for the remainder of their lives. These approvals might take weeks or months.

They will involve discretion exercised by government administrators, who have limited or no knowledge of the individual or their daily challenges. If the support decision is wrongfully denied, this must be rectified through the courts on appeal, which can take much longer. Experience of other schemes in other jurisdictions suggests that many accident victims simply give up at this stage, due to the cost and detail required to navigate such a bureaucratic minefield.

Option 3 would give those eligible under the current scheme the freedom to choose their own care and support and add an administrative scheme for those not eligible under the current scheme (which those that would be covered by the current scheme could also elect to be part of). The Law Society and the Law Council of Australia are supportive of Option 3.

Both options proposed are fundamentally the same in terms of care and support available to those who are at fault. The critical difference between the option 2

and option 3 is that option 2 will remove from people covered under current ICWA arrangements – those wrongfully injured – the ability to choose how to direct their care and look after themselves in the future.

While funded care and support would remain equal under either option, those with a right to damages would not be disadvantaged. They could simply choose their own preferred level and timing of care and support. On ICWA’s estimates, option 3 is also more affordable. In these ways, option 3 satisfies the ‘no disadvantage test’.

Ultimately, this is a safety-net worth paying for but, not at the expense of the rights of those injured through no fault of their own.

PRACTISING CERTIFICATE FEE INCREASES Turning now to the legal profession, members will be aware that the Legal Practice Board (LPB) has recently announced an increase in the annual practising certificate fee from $1,000 to $1,250: a 25% increase. The increase has essentially arisen as the State Government has withdrawn its rental assistance to the LPB, and the LPB has had to find funds by increasing revenues.

The Society has expressed its displeasure to the LPB about this increase and has expressed its concerns to the State Government that it has taken this action, in particular in circumstances where state government lawyers are deemed to hold a practising certificate and pay no fee for this.

The Society has also sought to engage with the LPB to look at different ways to reduce the costs of its regulatory functions, while providing the same or possibly even enhanced service to the profession. To date, these approaches by the Society have not been successful.

However, we will continue to look at ways to work with the LPB and government to try and reduce increases in regulatory costs on the profession, while maintaining the independence of our regulation.

NATIONAL ATTRITON AND REENGAGEMENT SURVEY (NARS) – A YEAR ON As promised, an update on the NARS Roundtable attended by the Executive Director of the Law Society, David Price, and I on 13 March.

The NARS was undertaken by the LCA in 2013 and involved current and former legal practitioners, both men and women, to obtain a whole-of-profession snapshot to act as a baseline from which to measure progress in this area. There were over 4,000 respondents to the survey and

a report of the findings was published at the end of 2013.

Some of the NARS findings included that 50% of women surveyed said they had experienced discrimination due to their gender, compared with 10% of men. One in four women said they were discriminated against due to family or carer responsibilities. The report also contained troubling statistics on the level of sexual harassment of female lawyers and bullying and intimidation in the workplace.

The purpose of the Roundtable, attended by law societies and bar associations, as well as members of the Large Law Firm Group (LLFG), was for different legal sectors to share information about which gender diversity initiatives have worked, which were not as effective and what further issues had arisen in implementing programmes to tackle the issues identified in the NARS report. This highlighted differing levels of progress and approaches being taken in different sectors and jurisdictions, and some of the difficulties faced, for example, by smaller law societies, on engaging meaningfully with such issues.

Facilitating the sharing of policies and programmes between law societies, bars and the broader profession will be one of the goals of the LCA’s follow-up event on 8 May, which David and I will also attend.

Two critical issues to be addressed will be: first, how to move past policy and talk into action and cultural change and second, demonstrating the business case and economic reasons that change in this area should be embraced.

RECOGNISING WOMEN LAWYERS IN WESTERN AUSTRALIA Finally, the Law Society congratulates the Honourable Christine Wheeler AO QC on her induction into the WA Women’s Hall of Fame on Friday, 6 March 2015. Together with the other 11 inductees, she is a very worthy addition to the Hall of Fame.

The Society also congratulates its successful nominees for Women Lawyers of Western Australia Women Lawyer of the Year Awards: •

Elspeth Hensler – 2015 Women Lawyer of the Year;

•

Susan Fielding – 2015 Senior Women Lawyer of the Year; and

•

Jessica Bowman and Stephanie Puris – Joint 2015 Junior Women Lawyers of the Year.

Our congratulations also go to the Rural, Regional and Remote Women Lawyer of the Year, Samantha Martella.

To conclude, at the time of the ANZAC centenary, Lest we forget.

03

editorial

Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal The intense media coverage of the tragedy unfolding in neighbouring Bali and on a small offshore Indonesian island has refocused the attention of many Australians on the issue of capital punishment. Just about everything that could be said about this tragedy has been said publicly over the last few months.

Like most people, I sincerely pray that the death penalty is not carried out.

the stairs leading down from the dock.

Remarkably, he was quite calm and clear thinking in that rather Dickensian environment. I was more distressed than he was. I said I wanted him to appeal. But he did not want to appeal, because so he explained, the alternative to a death on the gallows was a miserable lifetime in prison, truncated, probably, by his own eventual murder.

On a personal level, the two convicted Australians and their families must be going through hell. The wait for the final result must be torture enough for those two men as time drags on. They are caught in an emotional limbo, falling between sheer gratitude to still be alive and severe anxiety that it may only be a temporary reprieve.

Nevertheless he appealed. I argued that my client had been acting under duress – unsuccessfully, as it turned out, but unsurprisingly. He was gruesomely hanged some time later at the busy death factory known as Pretoria Central Prison.

After a long and busy subsequent career, mostly acting for commercial clients, this is one client – and one poignant memory that will stay with me forever.

One can only imagine how their lawyers are feeling. When acting for clients on death row, lawyers too, despite our reputation for cynicism, become caught up in the emotional roller coaster that the imminence of an execution involves. I am one of the few lawyers practising in Perth who personally knows what it is like.

Apartheid South Africa had the death penalty for treason, murder, aggravated rape and aggravated armed robbery.

Once an accused person had been convicted of murder, he or (rarely) she, could lead evidence in mitigation of the death sentence. The standard of proof for mitigation of a death sentence was on a balance of probabilities.

I well recall a reported case in which I appeared for the sixth accused, in a murder trial lasting over a period of eleven months. It was a prison murder, in which all the accused were members of a violent prison gang. They all had serious previous convictions for violent crime, including murder or attempted murder. Despite counsels’ valiant attempts, three of the accused, including mine, were convicted and sentenced to death.

Anyone who has been present in court when a death penalty has been imposed will know how grisly and distressing it is. After the court adjourned, I went down into the cells to visit my client, via 04 | Brief April 2015

In his March report, the President of the Society mentioned that the recent Law Summer School commemorated the 800th anniversary of Magna Carta. This is indeed a significant historical event, but it is appropriate that we do not over-egg the pudding, because (to use another dietary simile) like the curate’s egg, the great charter is only good in parts. See Musarri v DPP; on the application of Westpac Banking Corporation Limited (unreported, WASC, 18 January 2002, BC 200200412, per McKechnie, J) at [21].

Moving to more pleasant things, in my first editorial last February, I mentioned that the editorial committee would be tapping colleagues on the shoulder for contributions to Brief. I am pleased to say that the shoulder tapping has borne some fruit. But we are also fortunate to have received unsolicited contributions on topical issues. It is critical that the editorial committee has a steady pipeline of contributions for future issues. It would be virtually impossible to produce Brief without the availability of a pool of articles for forthcoming issues.

At our monthly editorial meetings, the committee assesses the available material for the current and future months. Editors are assigned for each piece to ensure consistency. Their job is to ensure that the material complies with our writing

style guide. We try to include a mixture of material specifically written for Brief and other material which may already have been published, like speeches, Law Society papers etc. The rationale for the republication of some material is to ensure that significant and important issues come to the attention of readers who may not have access to certain publications, or lack the time to access some online resources. In some cases the committee considers that updated past papers stand the test of time and are worthy of wider publication to new audiences.

This month’s cover story is an article by His Honour the Chief Justice of Western Australia on the appointment of silks.

We also feature the second part of His Honour the Chief Justice of Australia’s speech on the constitutional protection of human rights. The recent litigation involving a daughter’s claim against the estate of the late billionaire Michael Wright has attracted intense media attention and discussion among the profession. Dr John Hockley’s piece on this memorable litigation is a significant contribution to the discussion in this area. Janine Webster addresses the topic of supply chain accountability and the degree of which legal responsibility is extended.

To complete this month’s offering, we publish an updated paper by Mark Holler on the nature of good faith obligations in contracts.

But there’s more … there are the regular columns, the Alston cartoon, the ethics column by the renowned Prof Dal Pont, a wrap up on the recent summer school at UWA, the Women Lawyers’ High Tea and getting ready for PEXA. All in all, that should be enough for any reader – at least for this month.

NOTES

*

A French documentary movie (1971) directed

by Marcel Ophuls.

Brief welcomes your thoughts and feedback.

Send all letters to the editor to brief@lawsocietywa.asn.au

Projects & Infrastructure Lawyer aPPLy your exPertIse

BankIng & fInance Lawyer muLtIPLe oPPortunItIes

This top tier legal firm has a strong international presence and works with some of the world’s leading energy and resources companies.

The Perth office has a well established construction practice, which services a varied and growing national and international client base.

An exciting opportunity has become available for an experienced Projects and Infrastructure Lawyer to join the team.

This leading international law firm offers a full business law service to Australian and international financial institutions and corporations. It currently needs a Solicitor and a Senior Associate to join their Banking and Finance team.

Working with a highly skilled team of Lawyers, you’ll work on major construction, engineering and infrastructure projects. Whilst the team has expertise in both front and back end matters, your role will predominantly be front end work and experience in the same will be essential. You’ll be responsible for the legal drafting of documents, to include project deeds and project development agreements, EPC and O&M contracts and bespoke documents. Experience in this type of legal drafting will be essential. You’ll have a commercial awareness of project risk allocation and the financing of major projects, with broad exposure to various sectors, but specifically energy (including renewable).

To ensure your success, you’ll have experience in a similar role with the drive to expand your skills and develop professionally in this collaborative firm. contact cameron Pearce at cameron.pearce@hays.com.au or 08 9254 4598.

Key to the success of this firm has been its strategic growth, focusing on practice areas in which they are true specialists, of a top-tier standard. The banking and finance practice has grown through retaining leading, highly skilled lawyers which has allowed the practice to service a diverse, global client base. Industries 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. You’ll be able to work autonomously in a high performing team and have international experience in the financial services sector from a top tier firm.

In return, you’ll be rewarded with a genuine potential for career progression and an attractive remuneration package. contact cameron Pearce at cameron.pearce@hays.com.au or 08 9254 4598.

hays.com.au

hays.com.au

LegaL secretary you’re In demand

LegaL secretary suPPort fee earners

One of Australia’s leading specialist law firms has an opportunity in their growing Perth offices for an experienced full-time Legal Secretary in the workers compensation/liability practice group.

This thriving boutique firm is 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 support and assistance to two Partners in the Western Suburbs.

Key responsibilities will include supporting partners and the team with transcribing digital dictation of advises, general correspondence and court documents. You’ll also prepare briefs to counsel, manage lawyer’s diaries, file administration, billing and other administrative tasks as required.

You’ll have at least five years experience as a Legal Secretary in insurance litigation. You’ll have fast and accurate typing, skills of 70wpm, sound knowledge of MS Office with an enthusiastic, proactive and highly organised work method.

An excellent salary is on offer commensurate with your experience and proven capabilities. contact Lennie waller at lennie.waller@hays.com.au or 08 9322 5383.

hays.com.au

Working with an established and experienced team this dynamic role will require 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 secretarial experience with solid knowledge of Litigation is essential. You’ll be approachable and thrive in this varied role in a forthcoming and friendly team. contact Lennie waller at lennie.waller@hays.com.au or 08 9322 5383.

hays.com.au

ethics

Doing the wrong thing for the right reason A wholesome motive hardly shields lawyers from breaches of duty Gino Dal Pont Professor, Faculty of Law, University of Tasmania

At the core of perhaps the most challenging ethical dilemmas is the existence of conflicting duties or conflicting loyalties. The very fact that duties or loyalties conflict dictates that fulfilling one duty, or being loyal, will necessarily dictate a failure, in some way, to fulfil another duty or exhibit loyalty. Indeed, it reflects the age-old Biblical notion that a person cannot serve two (or more) masters.1 This, when translated to the lawyer and client relationship (and indeed various others), underscores the application of the core ‘no conflict’ fiduciary proscription. This applies to proscribe not just conflicts between two masters (in this context, clients), but equally to proscribe conflicts between the interests of the servant (here the lawyer) and those of the master (here the client).

The civil and disciplinary case law is littered with instances of lawyers who placed themselves in an impossible position by representing two clients with conflicting interests in the matter of the subject of the retainer; pursuing the interests of one client necessarily prejudiced the interests of the other.

(Far) more often than not, the lawyers fell into this trap with what appears the best of intentions. Take, for example, the solicitor in Stewart v Layton,2 who continued to represent each party to a conveyancing (and financing) transaction, whilst withholding from the vendor information as to the paucity of the purchaser’s financial position, in an ultimately unsuccessful effort to assist each client. Or the solicitor in Taylor v Schofield Peterson,3 who in seeking to assist partners in a partnership, who were longstanding clients, to resolve their differences, failed to protect the financial interests of one partner. In neither case was there any suggestion of dishonesty or bad faith on the solicitor’s part; to the contrary, the respective solicitors acted with the best of intentions to assist their clients in a difficult position. Both nonetheless committed fiduciary breaches, and were 06 | Brief April 2015

liable to compensate the client-victim of those breaches.

The cases reflect the broader notion that, merely because a lawyer acts with a wholesome motive, this does not shield him or her from civil liability to a client whose interests have been prejudiced by those acts. Outside of the fiduciary arena, a lawyer could otherwise make an unauthorised disclosure of confidential client information by pleading a broader public interest,4 or breach an undertaking to the court in the face of an allegedly more compelling public interest.5 The law is clear, to this end: lawyers cannot pursue a utilitarian agenda that drives breaches of duty by a wholesome motive under the guise of the greater good (or something equally ostensibly more beneficial).

In each instance it is therefore critical for the lawyer to be clear as to whom the relevant duty is owed, and the attendant priority to be accorded to that duty. As foreshadowed above, in the fiduciary and confidentiality context, that duty is directed to the client. But in other instances client interests, and attached loyalty, cannot stand in the way of a more compelling interest, namely the broader administration of justice. It is trite to note that, where these conflict, it is the latter that must prevail, at least within its parameters as recognised by the law. Consistent with the foregoing, it stands to reason that a lawyer’s wholesome motive in seeking to benefit the client (or a third party) cannot justify a breach of the paramount duty to the administration of justice.

Lawyers who have sought to justify, or at least ameliorate, acts or omissions inconsistent with the duty to the administration of justice, by resorting to a wholesome motive, have proven misguided. The disciplinary case law, in particular, takes a dim view here of doing the wrong thing for the allegedly right reason. For instance, in Attorney-General v Bax6 the respondent lawyer falsified documents and transactions, antedated

a deed of loan and deceived a creditors’ meeting. That the respondent did so in order to assist a client facing bankruptcy in no way mollified the seriousness of this misconduct. More recently, in Legal Practitioners Conduct Board v Warburton7, the respondent failed to comply with court orders requiring him to pay a sum, held on trust, to an unrepresented opponent, as a result, it appeared, of sympathies for his client. In both cases the respective lawyers were struck off.

In a broader ethical sense, it may be said that lesser fault, or even absolution, should attend a person who does the wrong thing but for the right reason, in particular, to benefit another person, or even the greater good. Indeed, in a disciplinary case Heydon JA once remarked that the culpability of a person who lied, apparently to protect his wife, “must be judged in the light of the fact that many people think that lying to protect one’s family is in many circumstances not blameworthy”.8 Yet legal ethics in the main bucks this belief. Certainly in the face of clearly prescribed duties and priorities, there is no role for some utilitarian ‘balancing’ of the consequences of right and wrong.

It therefore behoves lawyers to attune their ethical radar in each instance as to whom the relevant duty is owed.

NOTES

1.

Matthew 6:24.

2.

(1992) 111 ALR 687.

3.

[1999] 3 NZLR 434.

4.

See, for example, Stewart v Canadian Broadcasting Association (1997) 150 DLR (4th) 24.

5.

See, for example, Solicitor-General v Miss Alice [2007] 2 NZLR 783.

6.

[1999] 2 Qd R 9.

7.

[2014] SASCFC 65.

8.

Prothonotary of the Supreme Court of New South Wales v Del Castillo [2001] NSWCA 75 at [81].

PE R

PA

FR IT E E E W H

They’re the draft guidelines on how to run a ‘paperless’ office.

Discover how your firm can go paperless in just 5 easy steps!

Download your whitepaper today: leap.com.au/paperless

Everything you need to run a small law firm.

1300 886 243

Getting Ready for PEXA Property Exchange Australia

With more than 15,000 property transactions already completed through PEXA, Australia’s online property lodgement and financial settlement platform, electronic conveyancing has well and truly arrived.

In fact, there are currently in excess of 1000 legal and conveyancing firms across the country that have joined or are in the process of joining PEXA. The registration

process is designed with security in mind – security of the platform, your business, and the property of your client. In short, you need to be able to trust who you’re dealing with in an electronic world, and the PEXA registration process is designed to provide that assurance.

Registration to PEXA is now open to all Western Australian legal and conveyancing firms with the ability to

complete online property transactions, including property transfers, scheduled to launch in Western Australia in late May. This functionality is currently available in Victoria and New South Wales.

As of March 2015, 14 banks and financial institutions had subscribed to PEXA (including the four major banks), with an additional 20 currently in advanced deployment discussions.

How do I join PEXA?

STEP 1.

STEP 2.

STEP 3.

Prepare to join PEXA

Register

Get ready to transact

Before you begin your registration, you may like to consider the following:

When you're ready, you can visit the PEXA website (www.pexa.com.au) to complete your registration. This includes:

•

•

Signing the PEXA Participation Agreement.

Once you have completed the above steps, PEXA will send you written confirmation of your successful registration and provide you with login details. From there you simply:

•

Ordering a Digital Certificate, allowing you to electronically sign documents in PEXA. For simplicity, you have the ability to apply online as part of the PEXA registration process.

•

•

Who within your organisation has the authority to sign the PEXA Participation Agreement?

Will your organisation access PEXA directly or through one of its Sponsors (GlobalX Legal Solutions, InfoTrack, SAI Global Property & Veda)?

•

Will you be using your Trust Account or the PEXA Source Account for financial settlements?

Electronically submit all required documentation. This may include: Practising Certificates, PEXA Registration Form, etc …

•

Complete your face-to-face Verification of Identity (VOI) check.

PEXA is obliged to verify the identity of the person(s) who sign the Participation Agreement on behalf of your organisation. This can be completed by PEXA, a PEXA Sponsor, or one of our VOI agents (ZipID & Australia Post).

08 | Brief April 2015

•

Log in to the PEXA platform for the first time & reset your password.

•

Validate that your details in PEXA are correct and assign admin rights as appropriate.

•

Complete your PEXA training.

This can be done through online learning modules, webinars or through live training sessions hosted by PEXA, its Sponsors and Peak Bodies.

•

Begin transacting!

broader horizons Market Update - April 2015 Positive growth continues in projects and transactional areas, with demand for quality Corporate specialists on the rise. Activity in Construction, Property and Commercial Litigation remains strong and multiple partner and strategic senior level positions exist.

For assistance with your next career move, please contact us for a confidential discussion regarding our full range of available opportunities. Please find below a selection of our latest job opportunities for April.

Workplace Relations SA / Special Counsel

Commercial Property Senior Associate

This leading national firm has emerged as one of Perth’s most sought after practices. A readymade partnership opportunity exists for a driven Senior Associate or Special Counsel, to lead and develop the firms Workplace Relations practice in WA.

This progressive and successful firm has long retained a leading Real Estate practice. Due to business growth, a top opportunity exists for a senior Property specialist to join the team.

You will have immediate responsibility for managing the firms existing client base, will be offered ample opportunity to leverage off the firms existing relationships and will have the support of the in-house marketing team, to help you grow the practice.

Your role will include legal and strategic commercial advice to clients on a range of employment, OH&S and IR issues, client training and education, as well as business development activities.

Immediate partnership opportunities will be considered for existing partners, or swift promotion to this level. If you are currently a senior lawyer in a top heavy team, with limited opportunities to progress, this role is well worth considering.

Insurance Lawyer

The focus of your role will be to service the firms existing property clients, who include local and national developers, financiers and other commercial organisations. You will have regular client contact in this role and will provide specialist advice directly to clients on all aspects of commercial property law including; property sales and acquisitions, property developments, property financings, retail and commercial leasing.

If you have the drive and motivation to progress your career and play a key role in the expansion of this growing practice, this opportunity should not be missed!

A consistent flow of high quality work, reasonable work/ life balance, competitive remuneration and future opportunities for progression completes the picture.

5-7 years

Energy & Resources Senior Associate

Widely regarded as one of the leading Insurance practices, this premier team has an immediate requirement for a senior practitioner, with specialist professional indemnity experience.

This prestigious firm has made its mark as one of Australia’s leading practices and requires a mid to senior level Energy & Resources Lawyer to join its renowned Projects group.

Your work will focus on complex professional indemnity claims for clients in energy & resources, engineering and construction and financial services sectors. The team is also regularly called upon for their expertise in advising on legal and insurance risks related to major projects.

Working with a globally recognised partner, you will gain unrivalled experience working on some of the states key resources projects, as well as overseas mineral projects throughout Africa and Asia. You will have regular interaction with international colleagues in the group and as part of a smaller local team, hands on exposure to high quality work.

You will be given responsibility to run your own matters, which will include advice throughout all stages of the claim, preparation and representation on all negotiations and court proceedings, successfully managing the matter through to settlement.

You will work with some of the industry’s leading partners, developing your technical experience on first class matters. The firm has a progressive culture, where direct interaction with clients and partners, ongoing professional development and training is strongly encouraged.

You will directly advise clients across every issues related to the structuring and financing of major resources projects and will develop, manage and negotiate any commercial contracting arrangements for your clients.

Brilliant opportunity for a Senior Associate seeking greater autonomy in their role, consistent workflow, direct access to clients and a clear pathway for progression.

Stacey Back Director

p 08 9380 9914 m 0406 647 577 e stacey@profilelegal.com.au

Profile Legal Recruitment

www.profilelegal.com.au

LAW SUMMER SCHOOL 2015

Friday, 20 February 2015 The University Club, The University of Western Australia The Law Summer School in 2015 was everything for which we had hoped. It was packed with information and learning relevant to everyday practice of law, as well as stimulating ideas and debate to challenge and provoke. The Summer School this year was organised around the theme of the Rule of Law 800 Years after the Magna Carta. The speeches and presentations looked backward into history, as well as forward into the future of the law. For instance, looking backward there were presentations from Professor Paul Craig, Professor of English Law at the University of Oxford, who spoke on the developments in administrative law covering a period from shortly after the Magna Carta and Human Rights Commissioner, Tim Wilson, who spoke of modern Charters and Bills of Rights, the ideals of which, to some degree, can be traced to the Magna Carta. On the side of private law, Professor Craig was joined by his colleague, Professor Robert Stevens, who spoke of developments in the last 100 years in the field of recovery of pure economic loss, where he described wrong turnings in the law which failed to give sufficient attention to the protection of rights.

In contrast with presentations reflecting on the past, there were some stunning presentations that began with the past, but looked forward into the future of the law. A panel session on

10 | Brief April 2015

Indigenous incarceration focused on ways to deal with a chronic and endemic problems, including the manner in which lawyers and judges could act to address the grossly disproportionate rate of Indigenous incarceration. On the side of private law, presentations that focused upon the future included outstanding speeches on the Civil Liability Act, the role of equity and statute, the function and operation of mediation, and the future of tribunals.

The lunchtime period provided a wonderfully engaging talk on politics, the media and lawyers by esteemed political commentator Professor Peter van Onselen, and the day concluded with a particularly propitious presentation concerning the death penalty. Bryan Stevenson spoke of his experiences with the project he established in the United States, the Equal Justice Initiative. It is enough to say that a pin could have been heard to drop in this final hour of the conference, which concluded with a sustained standing ovation.

Over 200 practitioners attended Law Summer School and spent the concluding hours of the day with quiet refreshments and engaging company.

We hope to see you all next year.

The Organising Committee of the Law Summer School 2015

1.

2.

3.

5.

6.

7.

8.

4.

1.

Professor Paul Craig QC FBA, Professor of English Law, University of Oxford, and The Hon Justice Antony Siopis, Federal Court of Australia.

5.

Tim Wilson, Human Rights Commissioner, Australian Human Rights Commission.

6.

Delegates and speakers enjoying Law Summer School.

2.

Law Summer School Delegates.

7.

3.

The Hon Michael Mischin MLC, Attorney General, and The Hon Justice Wayne Martin AC, Chief Justice of Western Australia.

The Hon Justice James Edelman, The Supreme Court of Western Australia; Professor Paul Craig QC FBA, Professor of English Law, University of Oxford; and Immediate Past President, Konrad de Kerloy.

4.

Professor Hoong Phun (HP) Lee, Sir John Latham Professor of Law, Monash University.

8.

Winthrop Professor Peter van Onselen, The University of Western Australia.

11

Professor Dennis Eggington, CEO, Aboriginal Legal Service of Western Australia; Duncan McConnel, President, Law Council of Australia; Her Honour Judge Gillian Braddock SC, District Court of Western Australia; and The Hon Justice Wayne Martin AC, Chief Justice of Western Australia.

1.

The Hon Justice Jeremy Curthoys, President, State Administrative Tribunal.

2.

3.

5.

6.

4.

WRAP UP GET READY FOR 2016!

12 | Brief April 2015

LAW SUMMER SCHOOL 2015

Matthew Keogh, President of the Law Society of Western Australia; Bryan Stevenson, Founder and Executive Director, Equal Justice Initiative; and Professor Erika Techera, Dean of Law, The University of Western Australia Law School.

7.

8.

9.

10.

1.

Registrar Sandra Boyle, Supreme Court of Western Australia.

6.

2.

The Hon Justice Janine Pritchard, Supreme Court of Western Australian; James Formby, Formbys Legal; and Duncan McConnel, President, Law Council of Australia.

Professor Robert Stevens, Herbert Smith Freehills Professor of English Private Law, University of Oxford.

7.

Professor Dennis Eggington, CEO, Aboriginal Legal Service of Western Australia.

3.

Patricia Cahill SC, Barrister, Francis Burt Chambers.

8.

4.

The Hon Malcolm McCusker AC, CVO, QC, and Professor Erika Techera, Dean of Law, The University of Western Australia Law School.

Professor Paul Craig QC FBA, Professor of English Law, University of Oxford.

9.

Bryan Stokes, Brians Solicitors

10.

The Hon Justice Duncan Kerr, Chev LH, LLB BA(SocW) Judge, Federal Court of Australia; President, Administrative Appeals Tribunal.

The Hon Justice Mark Leeming, New South Wales Court of Appeal.

11.

Brahma Dharmananda SC, Barrister, Francis Burt Chambers.

5.

11.

13

RIGHTS AND FRIGHTS? J.J. Hockley*

“It is the biggest court-determined payout from a deceased estate in Australian history.”

The recent decision by Master Sanderson in the Supreme Court of Western Australia in Mead v Lemon1, has been described in very dramatic terms in the media.

On the radio, it was stated: “Olivia Mead appeared stunned when the Supreme Court awarded her $25 million from her late father’s estate. It was significantly more than the $3 million trust fund that she was left when her father died in 2012.”

The Australian Financial Review, Weekend Edition, 28 February-1 March 2015, stated: “Lawyers, court staff and reporters looked at each other with disbelief. The lump sum was more than twice the $12 million figure her barrister, Lindsay Ellison SC, had asked for, after arguing the $3 million trust left to her was inadequate. It is the biggest court-determined payout from a deceased estate in Australian history.”

The late Michael Wright, whose children included the plaintiff Olivia Mead, left an estate of between $800 million and $1 billion. This was the largest estate to come before the Western Australian Supreme Court in a claim brought under the Family Provision Act (1972), and the largest claim to come before any Australian Supreme Court under the Family Provision Acts.

This case raises many questions: Do courts deal with very large estates differently to smaller estates? Is it correct that this decision gave some people such a fright that they were in a state of stunned disbelief? After reading the reasons for this decision, would or should a person still be suffering from fright?

feature

15

BACKGROUND OF THE PARTIES Olivia Mead is the 19 year old exnuptial child of the late Michael Wright.

Michael Wright was one of the heirs to his father’s share of the fortune derived, initially, from iron ore in Western Australia, by the Hancock-Wright partnership.

Probate on 1 June 2012, the amount left to the Second and Third Defendants under the will was in the order of $400 million each. In written submissions filed by the Plaintiff, it was speculated that the estate was worth in excess of $1 billion.

No issue was taken with this suggestion by the Defendants. The Master observed that “it is difficult for most people to comprehend such wealth”.

“The bulk of the deceased’s estate had been distributed by the First Defendant to the Fourth Defendant, contrary to the rule of practice ... ” Olivia Jacqueline Mead (‘the Plaintiff’) was born on 3 September 1995 following a relationship between her mother, Elizabeth Anne Mead, and Michael John Maynard Wright.

Michael John Maynard Wright’s last will was made on 5 March 2012 and was altered by a codicil dated 11 March 2012. Mr Wright (‘the deceased’) died on 26 April 2012, aged 74 years. David John Neale Lemon was the deceased’s solicitor for many years, and was the executor of the deceased’s last will and trustee of his estate.

On 10 July 2012, the Supreme Court of Western Australia granted Probate on the will of the late Michael John Maynard Wright.

The deceased was survived by his third wife, Mary, whom he married on 2 May 1997. In the last will, the deceased’s wife and his son, Myles, were given specific amounts.

Michael Wright had three children from his marriage to Jennifer Turner. All three were adults, and two were involved in this case. Leonie Angela Maynard Baldock (‘the Second Defendant’) was born on 28 August 1971, and Alexandra Odette Burt (‘the Third Defendant’) was born on 18 December 1973. The third child, Myles Wright, was not a party to the proceedings.

VOC Group Ltd (‘the Fourth Defendant’) is a company jointly owned by the Second and Third Defendants in which the main value of the estate was now found.

SIZE OF THE ESTATE The Master described the deceased’s estate as “colossal”. No attempt at valuation was considered necessary by the parties. The Master agreed that no valuation was required.

In the Statement of Assets and Liabilities, filed in support of the application for 16 | Brief April 2015

The bulk of the deceased’s estate had been distributed by the First Defendant to the Fourth Defendant, contrary to the rule of practice that the estate should not be distributed until after the determination of the claim for Family Provision has been made by the court.

In this case, the executor took the view that the distribution of the estate would not affect the capacity of the estate to meet any award. The Master stated that there was no exception from the rule of practice for large estates, and that the correct course of action was for the executor to seek appropriate directions from the court under the provisions of the Trustees Act 1962 (WA).

At the hearing, there was an undistributed amount in the estate of $45,272,231.18, with just over $3 million of that amount held in cash. The rest represented intercompany loans that could be converted to cash in 30 days.

Counsel for the Plaintiff, whilst reserving his position on the distribution of the estate, indicated that it was highly likely that any award to the Plaintiff could be met from the undistributed assets of the estate.

PLAINTIFF’S ENTITLEMENT TO BRING A CLAIM UNDER THE FAMILY PROVISION ACT 1972 (WA) Ms Mead’s claim was made under the Family Provision Act 1972 (WA), section 6(1), that states: “If any person (in this Act called the deceased) dies, then, if the court is of the opinion that the disposition of the deceased’s estate affected by his will, ... is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf the application may be made under this Act, the court may, at its discretion, on the

application made by or on behalf of any such person, order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose.”

The definition of ‘child’ in s4 (1), includes an illegitimate child.

Olivia Mead was an eligible applicant under s7(1)(c), as she was “a child of the deceased living at the date of the death of the deceased, … ”.

MATTERS NOT IN DISPUTE BETWEEN THE PARTIES A.

B.

Statutory Issues: 1)

The Defendants accepted that the claim was brought within time and there was no limitation issue (see: s7 (2) & (3) of the Family Provision Act 1972 (WA)).

2)

There was no ‘disentitling conduct’ (see: s6(3) of the Family Provision Act 1972 (WA)).

Non-Statutory Issue: 1)

The Defendants conceded that no award made to the Plaintiff would have any effect whatever on any other party who was to take under the will.

This significant concession was highlighted by the Master, as the absence of any competing claim to the testator’s bounty freed up the court in the exercise of its discretion, by removing any requirement for balancing or triangulation between claimants.

OLIVIA’S ENTITLEMENT UNDER THE WILL The will contained a discretionary family trust, identified as the Olivia Trust No 2, that contained some idiosyncratic features found in the definitions of the terms Vesting Date, Beneficiary and Excluded Person. These clauses provided ways in which Olivia Mead could be excluded from receiving anything under the will. The following examples illustrate the uncertainty of Ms Mead receiving anything from the trust: Clause 14 provided: “14. Excluding Beneficiaries Excluded Person 14.1

Any person, whether a Designated Beneficiary or not, who:

feature …

or perhaps, Islam, she would be an ‘Excluded Person’. In fact it is arguable that, if she took a deep interest in, or was associated with persons who practised these faiths, she would fall foul of the provision.

Most Australians would regard freedom of religion a part of their birthright. The plaintiff, in order to be sure the trust would vest, in her when she turned 30 would have to give up that basic human right. That is an extraordinary proposition.”

14.1.3 has become an alcoholic and/or whose capacity for rational behaviour in a competent and satisfactory manner has been impaired by alcohol. …

14.1.5 is or has been, in the opinion of my Trustees, recently suspected or knowingly had any involvement or association whatsoever in relation to illegal drugs. …

14.1.7 is, in the opinion of my Trustees, a member of or in any other way involved with any religious body other than the Roman Catholic, Anglican, Presbyterian, Baptist, Uniting or other similar traditional faiths, or …

THE TESTS TO BE APPLIED In Singer v Berghouse2, the High Court adopted a two-stage test. The test for the first stage, often called the jurisdictional stage, was stated at [21]: The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was adequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationships between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The Master stated at [27] and [28]: 27.

28.

“The strangest aspect of the Trust is cl 14. This provision could operate in an entirely oppressive fashion. It is arguable if the plaintiff were convicted of a drink driving offence she could be excluded as a beneficiary under the terms of cl 14.1.3. The same is true if she were convicted of simple possession of marijuana. It may even be the case if she was suspected of involvement with someone who used an illicit substance she could be excluded under cl 14.5.

The most egregious of all the provisions is cl 14.1.7. If the plaintiff converted to Buddhism,

Their Honours went on to say at [24]: “ … the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing.”

In the process of deciding the jurisdictional question the court looks at all the circumstances of the case, including need and moral claim in an

objective manner and makes a finding of fact that adequate provision has or has not been made for the applicant.

In regard to the second stage the High Court in Singer v Berghouse3 at [19] stated: 19. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.

The second stage, which only arises if the first determination has been made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant (i.e. the quantum or the amount of money).

DID THE DECEASED’S WILL ADEQUATELY PROVIDE FOR OLIVIA MEAD? The Master applied the first or jurisdictional stage of the two-stage test to the facts of the case.

The Master found the will with the trust for Olivia unwieldy and unworkable. The term ‘adequate’ that was almost always used in the context of whether the financial provision was sufficient could also be used to describe the form in which provision is made in the will. The Macquarie Dictionary has, as a definition for ‘adequate’ the word ‘suitable’.

The Master found that the structure mandated by the will and the trust was not a suitable provision for the proper

Shearn HR Legal - Human Resource + Recruitment wishes all our Clients & Candidates a very prosperous New Year, welcoming our 17th year in exclusive legal recruitment! Call Julianna for your 2015 requirements now!

Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au 17

maintenance, support, education or advancement in the life of the plaintiff.

The Master answered the first stage or jurisdictional question as at the date of the death of the deceased (see: Bondelmonte v Blanckensee4). He found it instructive to look at what has happened since the date of death.

The Master concluded that the deceased’s will did not make adequate provision for Ms Mead. The will was structured in a way where there was no guarantee that she would receive $3 million and there was a real prospect that she would receive nothing. In view of the size of the deceased’s estate and the interaction between the will and the trust taken together with the terms of the trust itself, there had not in this case been adequate provision made for the plaintiff.

EVIDENCE OF THE PLAINTIFF The Master found that the picture that emerged from Olivia Mead’s evidence was in many respects unremarkable. She grew up as a normal, well-adjusted child of a single mother. She had sporadic contact with the father. He appeared not to have taken much of an interest in her welfare. Apart from one or two nights,

18 | Brief April 2015

the plaintiff never spent any extended period with her father. This was his choice. The fact that she did not have a close relationship with her father was of the deceased’s choosing.

During her childhood, the deceased provided little material support to Olivia and her mother. He paid child-care, as he was obliged to under the relevant legislation. He paid the fees for a private college and he provided the plaintiff with some pocket money. However, that was the extent of his largess. Any gifts he gave the plaintiff were of nominal value.

The deceased never purchased a home in which Olivia and her mother could live, despite the fact they moved a number of times from one rented premises to another. In no sense, did her father spoil Ms Mead.

‘WISH LIST’ In the course of preparing her evidence her solicitors asked her to specify the expenditure that she was likely to make during the rest of her life. This was a big task for a 19-year-old girl. Ms Mead had sufficient interest in music that she learned to play the guitar.

When specifying what guitar she might purchase if she had funds available, she

specified a guitar valued at $250,000.

The Master stated that no one needs a guitar of that value - particularly a 19-year-old girl who is not now and never will be a professional musician and who has not had guitar lessons for some years. There were other items in a similar vein5. Notwithstanding these components of her evidence, the Master was not left with the impression that the plaintiff was a ‘gold digger’ or in some way a narcissistic, greedy individual.

The Master stated that if a 19-year-old boy in the same position, when asked about a car, would probably have nominated a Ferrari or a Lamborghini.

The Master did not draw any adverse inferences against Ms Mead consequent upon her answers to her solicitor’s enquiries.

EVIDENCE FROM OTHER WITNESSES Each side provided expert actuarial evidence that used different bases for the calculation of the amount claimed or the earnings to be expected on the $3 million left under the will.

The Master found the actuarial evidence of little assistance in determining the outcome of the application.

feature

“The Master found the will with the Trust for Olivia unwieldy and unworkable. The term ‘adequate’ that was almost always used in the context of whether the financial provision was sufficient ... ”

Credit © Jose Photography - Dreamstime.com

19

enough income so that the Plaintiff and her relatives will never want for anything again. All of these considerations were against a background of the award making no difference whatever to the position of the other beneficiaries. Even currently, $25 million was a considerable amount of money. However, in the context of this estate it was, as the Master described it, “little more than a rounding error”.

The Master went on to say that his decision was not about fairness; nor was it about compensating the Plaintiff for the deceased’s limitations as a father.

The evidence from the Second and Third Defendants indicated that they did not have a close relationship with the deceased. The picture that emerged was of a difficult man more at home in the world of business than dealing with emotions and interpersonal relationships.

The Master found that there was real affection between the deceased and his two eldest daughters. Their development of the Voyager Estate winery in such an effective way was clearly a source of great pride to the deceased. However, it would be a mistake to suggest that the deceased and his two daughters constituted one big happy family.

EXERCISE OF THE COURT’S DISCRETION The Master stated that the Act in s6(1) supported by the cases6 provides the court with a discretion. If the jurisdictional question is found in the applicant’s favour, the court can make “such provision as it thinks fit”7.

The Master disagreed with the approach of the Defendants, who stated that if the Plaintiff was entitled to an award then that award should be no more than adequate provision for the proper maintenance, support, education or advancement of (sic “in”) life of the Plaintiff.

From the dozens of cases cited to him the Master held that, when it comes to exercising a discretion, three factors are consistently and universally present: (i) the size of the estate; (ii) the needs of the Plaintiff; and (iii) the interests of other parties having 20 | Brief April 2015

a legitimate call on the bounty of the deceased.

The weight given to each of the factors varies between the cases, resulting in a triangulation or a balancing exercise within the reference points provided by the three factors.

Master Sanderson found that this case was different. The estate was massive and its value was irrelevant in determining the outcome. No individual would be prejudiced, no matter what the award might be to the Plaintiff (within reason). There was no way of triangulating in this case, that is, there were no factors to weigh in the balance.

There were no markers for an exercise of discretion.

The Master stated that it is always necessary to remain cautious about reaching a decision in “an evidence-free zone”8.

He was satisfied that the Plaintiff was an honest, level-headed young woman.

She was subject to all the vagaries and uncertainties of youth.

In exercising his discretion, the Master awarded the Plaintiff a cash payment of $25 million, conditional on her forgoing any right or interest in the trust. Subject to hearing from the parties, the Master considered that that amount ought to be paid to the Plaintiff within 60 days.

In explaining his decision, Master Sanderson stated that the one factor that influenced him most was the size of the estate. The award would set up the Plaintiff and her children and perhaps their children for the rest of their lives.

Wisely invested, the fund would provide

Master Sanderson then referred to the concept of ‘moral duty’ of a testator to those entitled to expect to benefit from his bounty. This test, he said, was once in favour, then seemed to have gone out of favour and was now perhaps back in favour again. The Master stated that the concept of “moral duty” feeds into two approaches that are prominent in the authorities: (i) What a wise and just testator would do in the position of the deceased.

The Master afforded himself the luxury of imagining or ruminating as to what provision a wise and just testator would leave his daughter, Olivia. The Master stated that whether those ruminations would have led a wise and just testator to leave Ms Mead $25 million was open to question. In the Master’s view, it would, and it was on that basis that he made the award. (ii) The community expectation test9.

What amount should be left to a person in the plaintiff’s position to meet community expectations?

The Master stated that he might not have been the ideal person to judge community expectations. Community expectations may vary on a scale, with a section of the community believing the Plaintiff should get nothing beyond what her father left her in the will. At the other end of the scale, there would be those who could see no reason why the estate should not be divided equally between the deceased’s children. The majority view no doubt fell between those two extremes. The Master stated that most people would expect the Plaintiff to be more than adequately provided for.

Given the size of the estate and the lack of limitation on any award, it is difficult to believe a majority would not see it appropriate to set up the Plaintiff for life.

How members of the community would settle on a figure is a rather more difficult question. In the Master’s view, an award of $25 million would not be outside the reasonable expectation of most

feature members of the community.

Master Sanderson considered the establishment of a trust into which the fund could be paid and managed on behalf of the Plaintiff. In the end, he concluded that such an approach would be paternalistic and unjustified. The deceased had seen a trust structure as appropriate, but the trust structure he had established was fraught with difficulty, and the ordering of the fund to be paid into the trust was not an option. Establishing a new trust, while it might be possible, would not seem to be practical. The result was a substantial sum of money to be paid to a young woman without any restriction. On balance, the Master found that this was the best outcome.

The Master noted that it would take some time to frame the orders to give effect to his reasons. The parties were directed to confer, with a view to producing orders to facilitate the transfer of the trust assets to the estate and the payment of the funds to the Plaintiff. The costs of the action, including reserved costs, were ordered to be paid out of the estate.

The Plaintiff’s costs were ordered be paid on a full indemnity basis, save

insofar as those costs have been unreasonably incurred.

CONCLUSION In conclusion, the Master stated that functioning adults can choose whether or not they have children. If they do have children, certain statutory duties arise by virtue of the Act. The Master stated that the deceased could have avoided the Act during his lifetime, as he was aware some six months before his death that he had terminal cancer. The Master acknowledged that there would be a cost of giving away his estate during his lifetime, namely a liability for millions of dollars, effectively in gift duty. The price the deceased paid for passing his assets tax-free to his nominated beneficiaries was acceptance of his statutory duty arising under the Act to the Plaintiff.

Master Sanderson stated that, when the $25 million was paid to the Plaintiff, the rest of the residuary estate would pass to the Second and Third Defendants. They would receive about $10 million each, less perhaps $1 million in costs. This would be on top of the $400 million they already had; and they could rest easy in the knowledge that their half-sister would be financially secure for the rest of her life.

Many people have different opinions on this case. It is difficult to succeed in appeals against discretionary decisions.10 NOTES

According to media reports, this case is now being appealed. *

Barrister, Francis Burt Chambers, Level 23, Allendale Square, 77 St Georges Terrace, Perth, WA 6000.

1.

[2015] WASC 71.

2.

(1994) 181 CLR 201 at 209, per Mason CJ, Deane and McHugh JJ.

3.

(1994) 181 CLR 201.

4.

[1989] WAR 305.

5.

A Ritter Royal Flora Aurum bass guitar, which has a nut made out of 10,000-year-old Siberian Mammoth ivory, 24-carat gold in-lay and knobs topped with 3.3 carat diamonds, valued at $250,000; a Kuhn-Bosendorfer art case piano, which is inlaid with more than 200 hand-cut pieces of lead crystal in diamond patterns on the case, lid, legs and fallboard, valued at $1.5million.

6.

Bondelmonte v Blanckensee [1989] WAR 305.

7.

s6(1) of the Family Provision Act 1972 (WA).

8.

Chappell v Hewison [2013] WASCA 15 at [97].

9.

Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [25]; Lloyd-Williams v Mayfield [2005] NSWCA 189 at [32]; the use of ‘community standards’ has been used in subsequent cases on large estates in New South Wales.

10.

House v R (1936) 55CLR 499; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235 at [90] per Buss JA; Chappell v Hewison [2013 WASC 15 at [28]-[32].

21

Supply Chain Accountability: How far does Responsibility Extend?

Recent Enforcement Outcomes in the Trolley Collecting Industry

Janine Webster with Reshma Bargon and Megan Carter

How far down the supply chain does legal responsibility extend? In Australian workplaces we are increasingly seeing labour-intensive jobs outsourced to low-skilled workers. Employers are not recruiting directly, but subcontracting out their services to manpower providers.

Cleaning, security and trolley collecting are notable examples.

In these highly competitive industries, business competes for contracts and the profit margins are low, particularly on the labour component.

Outsourcing can be an entirely legitimate and cost-effective practice, provided that those managing the supply chain are not unwittingly - or worse, deliberately - sanctioning the exploitation of workers on their premises by accepting 22 | Brief April 2015

contracts that make it impossible for subcontractors to pay their staff minimum wages and entitlements.

This raises the question: if an individual or company is involved in procuring services where the cost is lower than seems reasonable, taking into account the market and the industry, could they be at risk of breaching workplace laws?

ACCESSORIAL LIABILITY UNDER THE FAIR WORK ACT Under the Fair Work Act 2009 (Cth) (the Act), an employer is responsible for ensuring that its employees are provided with the minimum pay and conditions prescribed by the Act. Section 550 provides that an individual or company other than the employer is also legally

responsible for any contravention of workplace laws, and thus potentially subject to penalties if they are ‘involved’ in the contravention.

Section 550 is an accessorial liability provision, based on common law criminal principles of accessorial liability.

Such provisions require a person to be ‘knowingly concerned in’ or ‘party’ to a contravention, including by doing or not doing something, directly or indirectly.

Knowledge of a breach can arise from ‘wilful blindness’.

SNAPSHOT •

There are significant benefits for a company at the top of a supply chain in taking responsibility to ensure that contracts throughout

the supply chain meet minimum employee entitlements, including avoiding financial penalties and damage to reputation.

•

On 7 October 2014, a major supermarket chain accepted ethical and moral responsibility to require compliance with workplace laws in its supply chains in relation to trolley collectors. It entered into an enforceable undertaking with the Fair Work Ombudsman, setting an example to other industry participants.

The Fair Work Ombudsman (FWO) is making increased use of accessorial liability provisions, so that it can hold individuals and companies involved in contraventions to account. In 2014, 27 of 35 penalty decisions that were handed down involved penalty orders against an accessory, amounting to a total of $575,270 ordered against accessories.

LIABILITY THROUGH THE SUPPLY CHAIN Pursuant to s550 of the Act, where workplace laws are breached, responsibility for that breach may extend up the chain of contracts, even to the very top of the organisation if that entity has been in any way knowingly concerned with the conduct in question.

The FWO is investigating increasing practices at the top of the supply chain that result in vulnerable employees being underpaid. In 2013, the Federal Circuit Court handed down a decision in an ongoing case of Fair Work Ombudsman v South Jin Pty Ltd (In Liq) [2013] FCCA 1057, accepting that supply chain participants who are not direct employers can be liable under s550 of the Act if they have the requisite knowledge and are associated with the contraventions. That matter related to the underpayment of approximately $160,000 to 49 trolley collectors. The Federal Circuit Court accepted that liability for underpayment contraventions may extend up the supply chain. Despite the absence of a direct relationship with the underpaid employees, the court refused to dismiss the FWO’s claims against the company that sub-contracted to the employer, and against the director of that company.

MAJOR SUPERMARKET CHAIN ACCEPTS RESPONSIBILITY FOR SUPPLY CHAIN CONTRACTS In 2012, Coles Supermarkets Australia Pty Ltd (Coles) was named as a respondent in legal proceedings initiated by the FWO against two subcontractors operating at several of Coles’ sites,

alleging they had underpaid 10 trolley collectors more than $200,000. On 7 October 2014, Coles accepted responsibility for compliance with workplace laws across all aspects of its business, including its supply chains, and entered into an enforceable undertaking with the FWO. On this basis, the FWO discontinued legal proceedings against Coles.

ENFORCEABLE UNDERTAKINGS Enforceable undertakings are an enforcement tool introduced by the Act in 2009. The FWO uses enforceable undertakings when it has formed the view that a party has breached the law, but where the party has acknowledged this and accepted responsibility and agreed to co-operate to fix the problem.

Initiatives included in enforceable undertakings can include training for managers on workplace laws; public notices detailing contraventions and action taken to remedy them; and donations to not-for-profit groups to raise awareness of workplace rights and obligations.

Since enforceable undertakings were introduced in 2009, the FWO has executed 73, achieving strong outcomes against companies that breach workplace laws, without civil court proceedings.

THE COLES ENFORCEABLE UNDERTAKING In its enforceable undertaking, Coles acknowledged that it has an “ethical and moral responsibility” to ensure that all entities and individuals directly involved in the conduct of its business comply with the law and meet community and social expectations to provide equal, fair and safe work opportunities. Coles acknowledged that its traditional trolley collection arrangements (involving multiple levels of subcontracting) were “vulnerable to the exploitation and underpayment of employees of trolley collection contractors and subcontractors”.

Coles has since brought trolley collection services in-house at more than 400 stores, agreed to rectify the $220,000 underpayment that was the subject of the court proceedings, and has to date rectified over $151,000 in underpayments, including a payment of nearly $90,000 to one former trolley collector. Further, Coles has committed $500,000 to rectifying underpayments identified in the future and has committed that, by 2016, it will have entirely replaced its subcontracting model with direct employment of trolley collectors. Coles has also undertaken

to conduct wage compliance audits of at least 20 per cent of trolley collectors employed by subcontractors of its primary trolley collection service provider. These changes to Coles’ procurement practices set an example to other industry participants.

REPUTATIONAL RISKS IN SUPPLY CHAIN ARRANGEMENTS In comparison, in recent FWO proceedings relating to the underpayment of a little over $27,000 to several trolley collectors, the employer subcontracted to perform the trolley collecting work did not accept responsibility for the underpayment until very late in the proceedings. On 19 December 2014, the subcontractor.

Jay Group Services Pty Ltd, and three individuals involved in the contraventions, were ordered to pay more than $190,000 in penalties - more than seven times the amount of the underpayment.

While there was no allegation in this case that the supermarket chain itself was involved, and thus legally responsible for the breaches of workplace law, media articles reporting the decision included headlines that identified the trolley collectors of that supermarket chain as “exploited and in a fight for pay” This illustrates the point that, even if the organisation at the top of the chain of contracts is found not to be legally responsible for underpaying employees at its premises, it may face a reputational risk to the brand and corporate image of the organisation if it does not ensure that labour-sourcing arrangements on its premises comply with workplace laws.

IMPLICATIONS As part of its objective of building a culture of compliance with workplace laws and supporting productive and inclusive Australian workplaces, the FWO is actively investigating top of the supply chain practices that result in vulnerable employees being underpaid.

Simply accepting the provider who offers the lowest price, without looking closer or asking questions about how the provider can offer such low prices, can potentially expose companies to financial penalties and/or reputational damage, in the event that the provider turns out to be underpaying its employees or engaging in sham contracting. All parties should do due diligence when outsourcing work to contracted workers, particularly to lowest cost providers, to ensure lower costs are attributable to legitimate efficiencies in the business and not due to the exploitation of workers on below award rates.  23

1.

2.

3.

4.

SOCIETY 5.

6.

EVENT 7.

5.

8.

Friday, 6 March 2015 Parmelia Hilton Perth

WOMEN LAWYERS HIGH TEA ‘Let’s not wait another 20 years for gender equality’

The fifth annual Women Lawyers High Tea celebrated International Women’s Day on Friday, 6 March 2015 by celebrating economic, political and social achievements of women in the past, present and future.

Held at the Parmelia Hilton Perth, the afternoon programme commenced with an address to the 100-strong attendees by the Honourable Judge Pritchard, who spoke on the International Women’s Day theme of ‘Let’s not wait another 20 years for gender equality’ and the Gender Bias Report.

Allanah Lucas, Commissioner for Equal Opportunity (WA), looked on the progress – good and bad, that society has made since the 1995 signing of the Beijing Declaration and Platform for Action. The audience was asked to close their eyes for a few seconds and visualise a world with gender equality.

As the audience drifted into their own

visualisation one simple question concluded this momentous high tea: “For each of your visions, do you think we, you and others can achieve it?”

Ms Lucas stated that we should continue the progress with men and boys in our lives.

The Women Lawyers High Tea delved into the past struggles and accomplishments, as well as, more importantly, looking ahead to the untapped potential and opportunities that await future generations of women.

The Society President, Matthew Keogh, and WLWA President, Tina McAuly, both spoke briefly and thanked those members who had assisted and contributed to this great day.

The Society would like to extend its thanks to KBE Human Capital, Centia and Bellanhouse Legal.

CAUGHT AT THE EVENT:

1.

Elizabeth Needham, Senior Vice President, Law Society of Western Australia.

2.

Allanah Lucas, Commissioner for Equal Opportunities (WA).

5.

3.

Tara Connolly, Valenti Lawyers; Amanda Blake, Southern Communities Advocacy Legal Centre; and Emma MacLean, Bradford Legal.

Deanna Carpenter, Bellanhouse Legal; Sonny Rahim, Centia Private Financial Office; and Nikki Gash, KBE Human Capital.

6.

4.

Elizabeth Needham, Senior Vice President, Law Society of Western Australia; Tina McAulay, President, Women Lawyers WA; The Hon Justice Janine Pritchard, Supreme Court of Western Australian,

Jane Ensor, Corruption and Crime Commission, and Myra Quartermaine, Valenti Lawyers.

7.

Tina McAulay, President, Women Lawyers WA.

8.

Kim Morrison; Tamara Arapovic, Klimek & Co Family Lawyers; and Hayley Ellison, Culshaw Miller.

Allanah Lucas, Commissioner for Equal Opportunities (WA); and Matthew Keogh, President, Law Society of Western Australia.

Proudly sponsored by

25

26 | Brief April 2015

The Appointment of Senior Counsel - An Insider's View The Honourable Wayne Martin AC, Chief Justice of Western Australia

Recurrent debate with respect to the procedures for the appointment of senior counsel has been an enduring characteristic of the legal profession of this state. That is a good thing. The purpose of this article is to inform that debate by providing my view, as an insider, of how the process works, and perhaps dispel any myths or false assumptions.

MY ROLE AS AN INSIDER This insider’s view of the appointment process is shaped by the important perspective that the Chief Justice performs all roles and functions relating to the appointment process as the delegate of the Judges of the Supreme Court. The protocol which governs the appointment process and which is included in the Consolidated Practice Directions of the Supreme Court1 formalises the role of the Chief Justice as acting on behalf of the court. That particular protocol was adopted by resolution of the Judges and Master of the Supreme Court and it can only be changed with their concurrence. As is made clear in that protocol, all members of the court have the opportunity to participate in the appointment process.

The nature of my role, as a delegate of the court, significantly informs the approach which I take to its performance.

My task is not to decide who should or should not be appointed; it is to oversee and coordinate an extensive process of consultation and consideration, which facilitates the development of consensus. My focus is on process and the maintenance of appropriate standards generally. My views with respect to individual applicants have a very limited part to play in the process.

APPLICATIONS The process takes place annually, and those wishing to be considered for appointment are invited to apply in writing by 31 August. In previous times, when the Chief Justice played a more determinative

role in the process, it was quite common for letters of application to be very brief, augmented by dialogue with the Chief Justice. The nature of the consultation process which is now engaged, and the growth in the size of the profession, necessitates the provision of much greater detail, and applicants are now encouraged to provide a resumé including details of their qualifications, experience and practice. It is not uncommon for applicants to provide a list of significant cases in which they have appeared, and in some cases this can be quite helpful, provided of course that the applicant does not overstate the significance of his or her role in the cases listed. Applicants are not required to nominate referees, because of the extensive nature of the consultation process, but there is no impediment to them doing so.

THE CONSULTATION PROCESS After the closing date for applications, copies of all applications received are sent to the six Judges who serve with me on a committee that makes recommendations with respect to appointment, and to nine nominated office holders who are to be consulted, and which include representatives of various bodies within the legal profession.

A list of the applicants is provided to each Judge and to the Master of the Supreme Court, and copies of any and all applications are made available to them upon request. They provide their views directly to me, either orally or in writing.

Although it has been the practice for the Chief Magistrate to provide me with his views in writing, I meet with the eight other nominated representatives.

We generally discuss each and every application, although sometimes representatives of particular groups (for example the Criminal Lawyers’ Association or the Family Law Practitioners’ Association) only wish to express views in relation to applicants practising in their particular area of interest.

CONFIDENTIALITY The process is undertaken on a confidential basis, although those whom I consult, and members of the committee, are able to consult with others within their organisation or court on a confidential basis. The process is undertaken in confidence, in order to avoid embarrassment to those who are not successful, and to enhance the candour of the consultation process.

ADVERSE VIEWS There are occasions upon which a person consulted, or a member of the committee, will express a view adverse to a particular applicant. If that view derives from a particular incident or occasion, procedural fairness requires that the applicant be given notice of the assertion, and the opportunity to respond to it. Happily, there have been very few occasions where that has been necessary. More common is the situation in which an adverse view is expressed with respect to one or other of the specified criteria for appointment, at a level of relative generality. When views of that kind are expressed, my task is to ascertain whether the view expressed is idiosyncratic or personal to the commentator, and to ensure that the committee has a sufficiently broad base of information to arrive at its own considered view.

THE OUTCOME OF CONSULTATIONS The consultation process takes place over a period of about two months. After the process is complete, I provide a written report to each committee member, setting out the commentary received from each person consulted in respect of each applicant. I do not express any views of my own within that report. I estimate that the consultation process, and the preparation of the report to the committee takes the equivalent of about a week of my time.

27

“My task is not to decide who should or should not be appointed; it is to oversee and coordinate an extensive process of consultation and consideration ... My views with respect to individual applicants have a very limited part to play in the process.”

THE COMMITTEE MEETING Following the circulation of my report on the outcome of the consultation process, I meet with the six other Judges who serve on the committee. Like me, those Judges generally serve as representatives or delegates of the courts they represent, and will report to the meeting the general views of that court, rather than their personal views.

The purpose of the meeting is to endeavour to place each applicant in one of four categories: (a) those who are to be appointed; (b) those who are not to be appointed, but who are to be encouraged to reapply; (c) those who are not to be appointed; and (d) those who are not to be appointed, and from whom a further application is not encouraged.

Often we will discuss each application generally before endeavouring to place the application into one or other of the categories to which I referred. That process comes towards the end of the meeting, against a context of discussions with respect to applications generally.

I chair the meeting and encourage discussion aimed at forming a consensus with respect to the merits of each application. It is seldom, if ever, necessary to take a vote, although it is my practice, as chair, to solicit a view from each committee member in relation to each applicant. Because of the nature of that process, it is often unnecessary for me to express a view in relation to individual applicants.

Since the committee was created in 2006, it has consistently adopted what I describe as ‘the precautionary principle’ - namely, unless there is a significant consensus in favour of the appointment of an applicant, that person will not be appointed. That principle has been adopted, because of the potential harm which could be caused by an unworthy appointment, as a result of clients assuming that the appointee has the requisite expertise to justify appointment.

The protocol embodied in the Practice Direction confers the power of appointment on the Chief Justice and so, theoretically, would enable the 28 | Brief April 2015

Chief Justice to act otherwise than in accordance with the recommendations of the committee. It should, however, be clear from my description of the process that, so far as I am concerned, such an outcome is entirely theoretical and so improbable as to be unthinkable.

During the nine years I have facilitated the process, each and every decision with respect to appointment or refusal has been made on the basis of the consensus of views expressed at the committee meeting, informed by the prior consultation. So, although the decisions are nominally made in the name of, and are announced by the Chief Justice, in practice they are made by the committee, informed by extensive consultation.

SPECIALITIES There is no quota upon appointments, or expectation as to the numbers likely to be appointed in any one year. While the committee will take account of a perceived need for appointments in a particular field of practise, the committee has consistently taken the view that such a perceived need does not justify any reduction in standards. While the protocol contemplates the requirement of an undertaking that an applicant will only practice in a particular field, the committee has not favoured the solicitation of such undertakings because, as one applicant put it “if you don’t trust me to only accept briefs which I can adequately discharge, you shouldn’t appoint me”.

GENDER The committee takes a similar approach to gender issues as it does with respect to practice in specialised fields.

The desirability of appointing more women to the ranks of senior counsel is acknowledged and respected by the committee in its deliberations, but does not result in any diminution of the standards applied to individual applicants.

OUTCOMES Sometimes the committee will require further information before making a decision in relation to a particular applicant. When all applications have been decided, letters are prepared, generally corresponding to the four categories to which I have referred and those letters are delivered to

each applicant, as simultaneously as possible, usually in late November or early December. I telephone each successful applicant and convey my congratulations. A small ceremony is held early the following year, in which I present certificates of appointment to each successful applicant, in the presence of their immediate family and the Judges of the court.

FEEDBACK The letters to which I have referred do not provide reasons, and neither the court nor the committee favours the provision of written reasons in respect of each application, for a number of reasons.

However, the protocol provides that any unsuccessful applicant may call upon me to discuss his or her application, and it is not uncommon for that opportunity to be taken up. During such meetings I report candidly upon the outcome of the consultation process and the general tenor of the relevant deliberations at the committee meeting, without of course identifying the source of any particular view.

Sometimes the committee will ask me to initiate a meeting with an unsuccessful applicant. Usually the purpose of the meeting is to enable me to convey a particular aspect of concern to the committee, so that the applicant might address that concern and thereby improve their prospects of appointment in future years.

CONCLUSION Any process which selects some and rejects others for advancement will inevitably generate dissatisfaction and, sometimes, controversy. Informed debate with respect to the process of appointment of senior counsel is to be encouraged. I hope that this insight into how the process works from an insider’s perspective provides more information on this topic, both to the profession and the community.

NOTES

1.

Supreme Court of Western Australia, Consolidated Practice Directions (as at 27 October 2014), 10.3 (available at: www.supremecourt.wa.gov. au/C/consolidated_practice_directions. aspx?uid=1493-1346-5092-3074).

HUMAN RIGHTS PROTECTION IN AUSTRALIA AND THE UNITED KINGDOM CONTRASTS AND COMPARISONS Part Two The Hon Robert French AC, Chief Justice of the High Court of Australia Anglo-Australasian Lawyers Society and Constitutional and Administrative Law Bar Association 5 July 2012, London

Following Part One of this article, which appeared in the March edition of Brief, the Hon Robert French AC, Chief Justice of the High Court of Australia, continues to delve into the protection of human rights in Australia and abroad.

30 | Brief April 2015

THE IMPLIED CONSTITUTIONAL FREEDOM OF POLITICAL COMMUNICATION IN AUSTRALIA In two decisions delivered on 30 September 1992, the High Court recognised an implied constitutional freedom of communication on political matters in Australia. The first case, Nationwide News Pty Ltd v Wills1, involved a prosecution of The Australian newspaper, which had published an article highly critical of the Australian Industrial Relations Commission. The article said, inter alia: The right to work has been taken away from ordinary Australian workers. Their work is regulated by a mass of official controls, imposed by a vast bureaucracy in the Ministry of Labour and enforced by a corrupt and compliant ‘judiciary’ in the official Soviet-style Arbitration Commission.2 The newspaper was prosecuted under s299 of the Industrial Relations Act 1988 (Cth), which provided that: A person shall not … (d) by writing or speech use words calculated: … (ii) to bring a member of the [Industrial Relations] Commission or the Commission into disrepute.

The High Court held the section invalid. A

majority of the court (Brennan, Deane, Toohey and Gaudron JJ) held it was invalid as infringing an implied freedom of political discussion.3 In their joint judgment, Deane and Toohey JJ discerned in the doctrine of representative government “an implication of freedom of communication of information and opinions about matters relating to the government of the commonwealth”.4 The implication operated at the level of communication and discussion between the people of the commonwealth and their members of Parliament and other commonwealth authorities. It also operated at the level of communication between the people of the commonwealth themselves.

The other case in which judgment was delivered on 30 September 1992, Australian Capital Television Pty Ltd v Commonwealth,5 involved a challenge to new commonwealth legislation proposing to impose a blanket prohibition on political advertisements on radio or television during federal election periods. The majority (Mason CJ, Deane, Toohey and Gaudron JJ) held that the new provisions were invalid, because they infringed the constitutionally guaranteed freedom of political discussion.6 Mason CJ acknowledged the historical fact that the framers of the Constitution had not adopted the United States model of a Bill of Rights. He accepted that it was difficult, if not impossible, to imply general guarantees of fundamental rights and freedoms in the Australian Constitution. He went on to say, however: 31

"The role of constitutions and constitutional law can be of great significance in the protection of fundamental human rights and freedoms." the existence of that sentiment when the Constitution was adopted and the influence which it had on the shaping of the Constitution are no answer to the case which the plaintiffs now present. Their case is that a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the provision which the Constitution makes for a system of representative government. The plaintiffs say that, because such a freedom is an essential concomitant of representative government, it is necessarily implied in the prescription of that system.7It is important to note that the implied freedom of political communication did not confer enforceable rights on individuals. Rather, it operated to limit the law-making power of the parliament to prevent it from encroaching upon that freedom.

The scope of the implied freedom has been considered in a number of cases involving defamation actions brought by politicians against media outlets.8 As expounded in those cases, the implied constitutional freedom of political communication does not confer rights on individuals. Rather, it invalidates any statutory rule which is inconsistent with that freedom. In the context of defamation law, it also requires that the rules of the common law conform with the Constitution. This affects, inter alia, the scope of the defences of qualified privilege that might be raised by media publishers. It does not extend to invalidate laws which are reasonably appropriated and adapted to serve legitimate public ends, particularly relating to criminal conduct.

The freedom does not extend to matters traditionally controlled by the criminal law. Deane and Toohey JJ said in Nationwide News that: a law prohibiting conduct that has traditionally been seen as criminal (e.g. conspiring to commit, or inciting or procuring the commission of, a serious crime) will readily be seen not to infringe an implication of freedom of political discussion, notwithstanding that its effect may be to prohibit a class of communications, regardless of whether they do or do not relate to political matters.9

32 | Brief April 2015

Subsequent High Court decisions dealing with the implied freedom have held that it is not infringed by restrictions on the advertising of legal services.10 Nor by orders made under a statute restricting publication of the identity of sex offenders who have served their sentence and are subject to postcustodial restrictions.11 The implied freedom of political communication is not limited to citizens or individuals. On the other hand, it offers no greater protection to the press or the media than it does to individuals.

As one commentator has observed, “the beneficiaries of the freedom are consistently described as ‘citizens’ or ‘electors’ or ‘the community’, without the media being accorded favourable, or indeed unfavourable, treatment by virtue of any claimed role as watchdog.”12 THE COMMON LAW RIGHTS AND FREEDOMS The common law has a constitutional dimension, because amongst other things, as Sir John Latham wrote in 1960: in the interpretation of the Constitution, as of all statutes, common law rules are applied.13 That constitutional dimension is also reflected in the institutional arrangements which the common law brings with it. At its core are public courts, which adjudicate between parties and which are the authorised interpreters of the law which they administer.14 As Professor Goodhart said, the most striking feature of the common law is its public law, it being “primarily a method of administering justice.”15 In a lecture delivered in 2008, Chief Justice Spigelman of the Supreme Court of New South Wales recounted the role of ‘natural rights’ in Blackstone’s formulation of the common law. Bentham attacked the idea of such rights as “nonsense on stilts”.16 Blackstone’s language of natural rights does not have the same force today, but the role of the common law as a repository of rights and freedoms is of considerable significance. A recent, non-exhaustive list of what might be called rights said to exist at common law, include:17 •

the right of access to the courts;

•

immunity from deprivation of property without compensation;

•

legal professional privilege;

•

privilege against self-incrimination;

•

immunity from the extension of the scope of a penal statute by a court;

•

freedom from extension of governmental immunity by a court;

•

immunity from interference with vested property rights;

•

immunity from interference with equality of religion; and

•

the right to access legal counsel when accused of a serious crime.

To that list might be added: •

no deprivation of liberty, except by law;

•

the right to procedural fairness when affected by the exercise of public power; and

•

freedom of speech and of movement.

These rights are, of course, of a limited nature and are contingent in the sense that, subject to the Constitution, they can be modified or extinguished by Parliament.

Professor Daryl Lumb wrote, in 1983, of judges in a common law system without a constitutional Bill of Rights: The creativity of the judges is … restricted by the ground rules of the system which does not have its source in a fundamental constitutional document which is subject to final review by a constitutional court. As a corollary of this, the doctrine of parliamentary sovereignty enables the rules to be changed and, even abrogated.

Judicial decisions even of the most basic nature (whatever may be the conventions which restrict the legislative power), are subject to being superseded by legislation, which although open to interpretation, is not open to invalidation by a constitutional court.18 He went on to suggest that rights and freedoms at common law might be regarded as ‘residual in nature’. In my opinion, however, the word ‘residual’ is too weak, having regard to the way in which the courts have approached the interpretation of statutes by reference to those rights and freedoms.

COMMON LAW RIGHTS AND FREEDOMS AND THE PRINCIPLE OF LEGALITY Like the United Kingdom, the exercise of legislative power in Australia takes

place in the constitutional setting of a “liberal democracy founded on the principles and traditions of the common law”.19 The importance of the principles and traditions of the common law in Australia is reflected in the longestablished proposition that statute law is to be interpreted consistently with the common law where the words of the statute permit. In a passage still frequently quoted, O’Connor J in the 1908 decision Potter v Minahan20 said, referring to the 4th edition of Maxwell’s On the Interpretation of Statutes: It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.21 That statement was based upon a passage in the judgment of Marshall CJ in United States v Fisher.22 The principle enunciated in Potter v Minahan has evolved into an approach to interpretation which is protective of fundamental rights and freedoms. It has the form of a strong presumption that broadly expressed official discretions are to be subject to rights and freedoms recognised by the common law. The principle is one which we share with the United Kingdom. It has been explained in the House of Lords as requiring that Parliament “squarely confront what it is doing and accept the political cost”.23 Parliament cannot override fundamental rights by general or ambiguous words.

The underlying rationale is the risk that, absent clear words, the full implications of a proposed statute law may pass unnoticed: In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.24 The application of the interpretive rule has not been limited to only those rights and freedoms historically recognised by the common law. Native title was not recognised by the common law of Australia until 1992. It is, nevertheless, the beneficiary of the rule in its application to interference with property rights. For native title is taken not to have been extinguished by legislation unless the legislation reveals a plain and clear intent to have that effect.

This presumption applies to legislation

which may have predated the decision in Mabo (No 2) by many decades, and in some cases by more than 100 years. It is a requirement which was said, in the Mabo (No 2) decision, to flow from “the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land”.25 The interpretive rule can be regarded as ‘constitutional’ in character. It suggests a view that common law freedoms are more than merely residual. As T R S Allan put it: The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal.26 By way of example, there has long been a particular recognition at common law that freedom of speech and the press serves the public interest. Blackstone said that freedom of the press is “essential to the nature of a free state’.27 Lord Coleridge in 1891 characterised the right of free speech as ‘one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done”.28 Despite its limits and vulnerability to statutory change, the common law gives a high value to freedom of expression, particularly the freedom to criticise public bodies.29 Courts applying the common law may be expected to proceed on an assumption that freedom of expression is not to be limited, save by clear words or necessary implication.

The common law interpretive principle protective of rights and freedoms against statutory incursion retains its vitality, although it has evolved from its origins in a rather anti-democratic, judicial antagonism to change wrought by statute. It has a significant role to play in the protection of rights and freedoms in contemporary society, while operating in a way that is entirely consistent with the principle of parliamentary supremacy. Whether it goes far enough, or whether we need a Human Rights Act to enhance that protection with judicial and/or administrative consideration of statutory consistency with human rights and freedoms, is a matter for ongoing debate.

AUSTRALIAN DEBATES ABOUT CONSTITUTIONAL AND STATUTORY PROTECTION OF HUMAN RIGHTS The national consultation process to which I referred at the beginning of this presentation was not the first initiative relating to national protection of human rights in Australia.

Debate about the desirability of both constitutional and statutory Bills of Rights has been going on in Australia for many years. Attempts to introduce statutory Bills of Rights as commonwealth law were made in 1973 and 1985. The 1973 Bill was strongly opposed and was not enacted. It lapsed in 1974 when Parliament was prorogued.

The 1985 Bill was passed by the House of Representatives, but did not secure a majority in the Senate.

In 1985 the Attorney-General, Lionel Bowen, established a Constitutional Commission. That Commission recommended the inclusion in the Constitution of a new Chapter VIA, guaranteeing specified rights and freedoms against legislative, executive or judicial action. A proposed new section, 124E, specified a number of rights.

A constitutional alteration referendum was conducted in September 1988. It did not involve the full suite of rights proposed by the Commission. Rather, it would have extended existing rights relating to religious freedom, compensation for the acquisition of property and trial by jury. It also proposed a one vote, one value principle. It was overwhelmingly defeated. The reasons for its defeat had to do with an associated proposal for four year parliamentary terms and a perception that somehow the changes were going to enhance the powers of the Commonwealth Parliament to the disadvantage of the states. No further attempt has been made to incorporate guaranteed rights and freedoms into the Australian Constitution.

THE VICTORIAN CHARTER There have been initiatives at state and territory level in Australia to provide statutory protection for human rights.

In 2004, the Australian Capital Territory enacted the Human Rights Act 2004 (ACT). The Act broadly follows the socalled ‘dialogue model’ of the Human Rights Act 1998 (UK). It declares a number of rights. All of the rights declared are said to be “subject only to reasonable limits set by territory laws that can be demonstrably justified in a free and democratic society”.30 The State of Victoria in 2006 enacted a Charter of Human Rights and Responsibilities Act 33

2006 (Vic) (the ‘Victorian Charter’) along similar lines.

Neither statute can affect the validity of any other law of the territory or the State of Victoria. Nor of course can they affect commonwealth laws which apply in the territory or the state. Each statute requires legislation to be interpreted, so far as possible, consistently with the human rights which it declares. When a law is held by the Supreme Court of the territory or state to be inconsistent with a human right protected by the Act, the court may make a Declaration of Incompatibility.31 Such a declaration does not affect the validity, operation or enforcement of the law, or the rights or obligations of anyone. However, the relevant Minister must prepare a response to the Declaration and present it to the Parliament.

The High Court of Australia considered the operation of the Victorian Charter in its decision delivered on 8 September 2011 in Momcilovic v The Queen.32 Central to that consideration was the operation of the interpretive provision, s32 of the Victorian Charter, which provides: So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The case came to the High Court on appeal from the Court of Appeal of Victoria. It involved the interpretation of a reverse onus provision in the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The section in question provided that a substance on premises occupied by a person is deemed, for the purposes of the Act, to be in possession of that person unless the person satisfied the court to the contrary. To the extent that that section placed the persuasive burden of proof on a person charged with possession of drugs on their premises, it was said to be inconsistent with the presumption of innocence, one of the human rights set out in the Victorian Charter. The appellant submitted that the section should be interpreted pursuant to s32 of the Victorian Charter, as imposing upon her only the evidential burden of introducing evidence tending to show that the drugs found on her premises were not in her possession.

That contention was rejected on the basis that the interpretive rule in s32(1) of the Victorian Charter could not be used to rewrite the section, the propounded construction not being open on the language of the section. The appellant nevertheless succeeded on the appeal, on the basis that the reverse onus

34 | Brief April 2015

provision did not apply to the trafficking offence with which she was charged, so as to lift from the prosecution the burden of proving that she knew of the existence of the drugs she was said to be trafficking.

In its approach to the interpretive provision, the majority of the court took the view that s32(1) operated as a valid rule of statutory interpretation. It did not confer on the courts a function of a law-making character, repugnant to the exercise of judicial power by a state court. There was nothing to suggest that the interpretation process required by s32(1) involved any new approach to the court’s role in construing legislation.

A majority of the court rejected the proposition that s32(1) should be applied in the same way as the equivalent provision of the Human Rights Act 1998 (UK), as explained in Ghaidan.33 A majority also held that the power conferred upon the Supreme Court to make a declaration of incompatibility was valid.

There are important differences between the constitutional framework within which the Victorian Charter was considered and the setting of the Human Rights Act 1998 (UK). The UK Act also has a particular history defined by the relationship between the United Kingdom courts and the European Court of Human Rights that did not inform the Victorian Charter. The strong interpretive approach undertaken by the House of Lords in Ghaidan might be seen in the Australian context as altering the constitutional relationship between the court interpreting a statute and the parliament which enacted it.

There is an apparent difference in the interpretive approach adopted in Ghaidan and that adopted in the later decision of the House of Lords in R (Wilkinson) v Inland Revenue Commissioners34, which does not seem to have held sway. In that case Lord Hoffman drew an analogy between s3 of the Human Rights Act 1998 (UK) and the principle of legality.

The other Law Lords agreed with Lord Hoffman. Nevertheless, Lord Phillips said later in Ahmed v Her Majesty’s Treasury: I believe that the House of Lords has extended the reach of s3 of the HRA beyond that of the principle of legality.35 A prominent element of the arguments advanced against the introduction of constitutional and statutory charters in Australia is that they would shift power on important matters of social policy from elected politicians to unelected judges.

There is no doubt that human rights and freedoms guaranteed in constitutions and statutes around the world are broadly

expressed. The definition of their limits in particular cases by reference to public interest considerations necessarily requires normative judgments which may be seen to have a legislative character.

The phenomenon of judges interpreting and applying broad legal language, and making normative decisions in that interpretation and application, is not new. Such concepts as ‘reasonableness’, ‘good faith’ and ‘unconscionable conduct’ found in the common law and in many statutes involve that kind of decisionmaking. The particular sensitivity of judgments about the scope of human rights guarantees is their impact on legislation. If a right is constitutionally guaranteed, then legislation held by a court to be incompatible may be invalid.

If the human right is guaranteed by a statute, then a subsequent inconsistent statute will not thereby be invalid.

But the Declaration of Incompatibility mechanism, for which the Australian Capital Territory and Victorian legislation provides, is intended to impact on the parliamentary process, by requiring the Attorney-General to present the Declaration to the parliament and respond to it.

Significant controversy or lack of bipartisan political support will generally defeat any attempt to change the Constitution in Australia. For the foreseeable future there are unlikely to be any express provisions introduced into the Australian Constitution which protect or guarantee fundamental rights and freedoms of the kind set out in the ICCPR, or the economic and social rights set out in the ICESCR. The introduction of a national statutory Charter of Rights would not require an amendment to the Constitution, but would be politically contentious, not least because of its potential impact upon the laws and legislative powers of the states.

As mentioned earlier in this paper, the Commonwealth Parliament, by virtue of its power to make laws with respect to ‘external affairs’,36 has legislated to give domestic legal effect to certain human rights treaties, but not the ICCPR or the ICESCR. Laws giving effect to those conventions, being laws passed by the commonwealth, would override inconsistent state laws and thus could be seen as providing a quasi-constitutional guarantee of human rights and freedoms against state laws impinging on them. At the commonwealth level, human rights statutes would not affect the validity of a subsequent inconsistent commonwealth law.

CONCLUSION The role of constitutions and constitutional law can be of great significance in the protection of fundamental human rights and freedoms. So too can statutory provisions and the common law.

Ultimately, however, these things will only have the importance attached to them by the people who are served by the Constitution and the laws made under it, and those who exercise power under that Constitution and those laws.

It is useful to finish with two cautionary observations. One was made by a great American judge and the other by the drafters of the Indian Constitution.

In a short but celebrated speech entitled ‘The Spirit of Liberty’, delivered in 1944, Judge Learned Hand of the United States said: Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court, can even do much to help it. While it lies there it, needs no constitution, no law, no court to save it.37 I do not adopt that in its full generality, but it underlines the importance of a culture of respect for human rights and freedoms within society. The debate is to what extent such a culture may be supported, nurtured and protected by law.

The other remark which I think is worth quoting was made by Dr BK Ambedkar, who was Chairman of the Drafting Committee of the Constituent Assembly, which drafted the Constitution of India.

On 25 November 1949, the day before that Constitution was enacted, he said:

I feel however good a Constitution may be, it is sure to turn out bad [if] those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot. 38 Both of these observations should be treated as worthy of continuing consideration. They may help place existing debates about human rights and freedoms in a larger perspective.

NOTES

1.

(1992) 177 CLR 1.

2.

(1992) 177 CLR 1, 96 (McHugh J) (emphasis in original).

3.

(1992) 177 CLR 1, 53, 61 (Brennan J), 78-81 (Deane and Toohey JJ), 94-95 (Gaudron J).

4.

(1992) 177 CLR 1, 73.

5.

(1992) 177 CLR 106.

6.

(1992) 177 CLR 106, 145-147 (Mason CJ), 174-176 (Deane and Toohey JJ), 218-221 (Gaudron J).

7.

(1992) 177 CLR 106, 136.

8.

Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Roberts v Bass (2002) 212 CLR 1.

19.

R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, 587 (Lord Steyn).

20.

(1908) 7 CLR 277, 304 (citations omitted).

21.

J A Theobald, (Maxwell) On the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905) 122 (citations omitted).

22.

6 US (2 Cranch) 358, 390 (1805).

23.

R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffmann). See also R v Lord Chancellor; Ex parte Witham [1998] QB 575 and D Dyzenhaus, M Hunt and M Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 5.

24.

[2000] 2 AC 115, 131 (Lord Hoffmann).

25.

Mabo v Queensland (No 2) (1992) 175 CLR 1, 64 (Brennan J).

26.

T R S Allan, ‘The Common Law as Constitution: Fundamental Rights and First Principles’ in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press, 1996) 146, 148.

27.

W Blackstone, Commentaries on the Laws of England (Dawsons of Pall Mall, first published 1769, 1966 ed), bk 4, ch 2, 151.

28.

Bonnard v Perryman [1891] 2 Ch 269, 284 and see R v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150, 155 (Lord Denning); Wheeler v Leicester City Council [1985] AC 1054; Attorney-General v Observer Ltd [1990] 1 AC 109, 220 (Bingham LJ).

29.

Halsbury’s Laws of England (Butterworths, 4th ed reissue, 1996) vol 8(2), 104-105 [107].

30.

Human Rights Act 2004 (ACT), s28(1).

31.

Human Rights Act 2004 (ACT), s32.

32.

(2011) 85 ALJR 957.

9.

(1992) 177 CLR 1, 77.

10.

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322.

33.

Ghaidan v Godin-Mendoza [2004] 2 AC 557.

11.

Hogan v Hinch (2011) 243 CLR 506.

34.

[2005] 1 WLR 1718.

12.

M Chesterman, Freedom of Speech in Australian Law: A delicate plant (Ashgate, 2000) 44.

35.

[2010] 2 AC 534, 646 [112].

36.

Constitution, s51(xxix).

13.

J Latham, ‘Australia’ (1960) 76 Law Quarterly Review 54, 57.

37.

14.

F Pollock, The Expansion of the Common Law (Stevens and Sons, 1904) 51.

15.

A L Goodhart , ‘What is the Common Law’ (1960) 76 Law Quarterly Review 45, 46.

Judge Learned Hand, ‘The Spirit of Liberty’ (Speech given at an ‘I Am An American’ celebration, New York, 21 May 1944). This speech was later turned into a book of the same name: see I Dillard (ed), The Spirit of Liberty: Papers and Addresses of Learned Hand (Alfred A Knopf, 1952) 144.

16.

Chief Justice Spigelman, ‘The Common Law Bill of Rights’, Speech delivered at the 2008 McPherson Lectures, University of Queensland, Brisbane, 10 March 2008.

38.

17.

J Corrin, ‘Australia: Country Report on Human Rights’ (2009) 40(1) Victoria University of Wellington Law Review 37, 41-42.

Prime Minister of India, Shri Atal Bihari Vajpayee (Speech given on the Occasion of the 50th Anniversary of the Republic of India, Parliament of India, 27 January 2000 citing Dr B K Ambedkar participating in the Constituent Assembly Debates): <http://parliamentofindia.nic.in/jpi/MARCH2000/ CHAP1.htm>.

18.

R D Lumb, Australian Constitutionalism (Butterworths, 1983) 103.

35

National Profession Reform Update

In 2014 the Law Society made a submission to the State Government, calling on it to commence work towards taking Western Australia into the new national legal profession by adoption of the Uniform Legal Profession Law in Western Australia. The Society’s recommendation called for a number of specific issues to be agreed between Western Australia and the original participating states, New South Wales and Victoria, with a particular request that Western Australia get a direct representative seat at the table with a member of the new national Legal Services Council. The Legal Services Council is the new rule-making body for the national scheme.

The Society’s essential position is one of seeking benefits while causing no harm. The Law Society’s submissions to government are premised on the new national scheme: •

providing benefits to all practitioners in relation to costs disclosure issues for small matters;

•

providing additional benefits for some firms and practitioners (mainly national and international firms) through harmonisation of regulation across the country (or at least the major jurisdictions); and

•

not resulting in increased material burdens on any practitioners in Western Australia.

The Society believes these objectives can be achieved.

36 | Brief April 2015

As part of progressing work towards Western Australia joining the national profession (subject to meeting Western Australia’s requirements), in January 2015 the Society reviewed relevant WA legislation and rules against the proposed uniform rules relating to admissions, solicitors’ professional conduct, solicitors’ CPD, and general practice. It was agreed by the Ad Hoc Committee that compiled the review that the Society’s submission would only address those rules on which the Society has specific comment, and those parts of the LCA submission that are supported. It was agreed not to comment on the rules for barristers. The Society has previously resolved to support the Australian Solicitors Conduct Rules to achieve national consistency, whereas the Legal Practice Board has advised that there is no need to change the Legal Profession Conduct Rules 2010 at this time as they are working well.

Council approved the submissions to the Legal Services Council and the Law Council of Australia at the January Council meeting, and presented a copy of them in a meeting between the Law Society President, Matthew Keogh, Senior Vice President, Elizabeth

Elizabeth Needham, Senior Vice President of the Law Society of Western Australia; The Hon Michael Mischin MLC, Attorney General and Matthew Keogh, President of the Law Society of Western Australia.

Needham, and the State AttorneyGeneral the Hon Michael Mischin MLC. The Attorney-General has advised that at this stage he wishes to take a ‘wait and see’ approach in respect of the new national profession scheme, to understand how it operates in practice once it commences operation on 1 July 2015.

The Law Society will continue to monitor the work towards commencement of the national scheme, in co-ordination with the Law Council of Australia, and by regular liaison with the relevant professional representative bodies, the Legal Services Council, the Legal Practice Board of Western Australia and the Western Australian Bar Association.

book review

Book Review Annotated Safety, Rehabilitation & Compensation Act 1988 (Cth), 10th Edition Written by Peter Sutherland, John Oman Ballard and with Allan Anforth Review by Brian Nugawela, Barrister, Sir Clifford Grant Chambers For those intending to, or already practising in, the area of Commonwealth statutory compensation for workplace injuries, the tenth edition of Sutherland & Ballard’s Annotated Safety, Rehabilitation and Compensation Act 1988 (Cth) is, and will be your necessary bedfellow.

This book is 847 pages long.

The initial 467 pages are devoted to the first 59 sections of the Act, covering primary definitions; liability to pay compensation; incapacity and permanent impairment payments; household and attendant care services; rehabilitation; statutory claims; and common law restrictions. Naturally, these form the bulk of the approximately 1,550-plus cases referred to, concerning rights and liabilities arising under the Act. The remaining 380 or so pages, concerning sections 60 - 161, discuss provisions relating to the determination of claims, administration and finance, licences, miscellaneous provisions, transitional provisions and defencerelated injuries/deaths.

Whether accidental or intentional, I found the authors’ emphasis upon, or predominant devotion to examining the principal sections governing rights and liabilities under the Act very reassuring.

By way of given examples, the exclusion of compensable injury where there has been a ‘failure to obtain a promotion, transfer or benefit’ alone occupies six pages of commentary on the decided cases. I also found the commentary on diseases very useful - whereas section 5B of the Act defines the concept of compensable ‘disease’ in less than 13 lines, the annotated commentary discusses 41 categories of physical and mental diseases (arranged alphabetically from ‘asthma’ to ‘suicide’), by reference to the decided cases.

Apart from the annotated statute itself, I found the following inclusions and appendices very useful: •

The (unannotated) regulations and prescribed forms - very handy for those practising or intending to practise at the ‘coalface’;

•

A detailed legislative history to the 1988 Act, its statutory modifiers, regulations and current bills (an especially useful platform for detailed statutory interpretation research);

•

The various Declarations made under section 4 (declarations and revocations as to ‘commonwealth authorities’ to which the Act applies), section 5 (declarations as

to persons deemed to be employed by the Commonwealth) and section 7 (deemed lists of work-related diseases). These would save so much time otherwise spent researching delegated legislation databases and gazettal notices; •

List of tables – for example, Table 1 provides seasonal data (obtained from Comcare) for indexation of compensation payments under section 8 of the Act. There are a total of 16 tables providing such ancillary information relevant to the ‘coalface’ operation of the Act.

•

Settlement guidelines.

Finally, the co-author contribution from Allan Anforth, in the form of a ‘Practitioner’s Guide’ extends over 55 pages and discusses (also with reference to key authorities), the principal concepts underpinning the Act, before usefully advising on practice and procedure in the Administrative Appeals Tribunal (AAT).

Overall, I found this book very comprehensive, easy to use and very considerate of the various needs of practitioners at all levels within this interesting area of practice.

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 www.dogshome.org.au 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 chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to 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”.

37

38 | Brief April 2015

The Nature of Good Faith Obligations in Contracts The Law Society of Western Australia CPD Seminar Paper Delivered on 4 November 2009, Updated March 2015

Mark Holler Barrister, Francis Burt Chambers

CONTENT AND NATURE What can contracting parties do at the outset to create more certainty, so as to avoid later imposition by a court of a new, unbargained-for, right or obligation? Contracting parties need to start taking practical steps to be masters of their own destiny in commercial contracts. This paper discusses those practical steps by reference to the nature of good faith obligations in contracts.

One of the other major areas of controversy with regard to implication of a duty of good faith is not just if and when it is to be implied, but what the content of the duty is. There seems little support for the imposition of a duty of good faith in negotiation of contracts, with most of the cases concerning performance, enforcement and termination. There is an ongoing issue as to whether anything is gained by seeking to argue some general obligation of good faith, rather than relying on the many specific implications that have been made in past cases and are well established. For example, these past implications include: 1. Co-operation – the High Court held in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd1 that both parties had an obligation to do all that was necessary to “secure the success of the contract”.

2. Reasonableness – this requires that a degree of fairness and justice is to be carried out by both parties in their contractual relationship. See Renard Constructions v Minister for Public Works2 as authority for this implication.

3. Proper purpose – an obligation has been implied not to act capriciously in the exercise of a contractual discretion. See Commonwealth v Amman Aviation Pty Ltd3 and Burger King Corp v Hungry Jacks Pty Ltd4.

Similarly, the High Court has held in Foran v Wight5 that there was an obligation not to exercise the power to terminate for non-fulfilment

of a contractual condition in an unreasonable way.

It is to be emphasised these terms have been implied not out of a general unifying principle of good faith, but on a traditional case by case basis.

There is still a great deal of uncertainty about what good faith means.

Accordingly, I suggest that, when pleading implication of a term, the first question should be whether it is necessary for your purposes to plead a term any different or greater than

a contrary intent, i.e. an implication in law framework, or whether the criteria for implication in fact under the well recognised principles, predominantly the ‘business efficacy’ test, is used. The practical advice for front end drafting of contracts is still the same.

FACTORS EXCLUDING IMPLICATION OF GOOD FAITH As noted by Giles J. in Vodafone Pacific Limited v Mobile Innovations Limited9, in addressing contrary intent it is necessary to have in mind a content for the

“If it is intended that there be a limit on the exercise of a power then rather than use an uncertain or vague expression such as ‘good faith’ consideration should be given to something with more recognised content.” those listed above as being already established.

Some important good faith implication cases are Vodafone Pacific Ltd v Mobile Innovations Ltd6 and Esso Australia Resources Pty Ltd v Southern Pacific Petroleum Pty Ltd7. Caratti Holdings Co Pty Ltd v Coventry Group Ltd8 collects more recent authorities. Whilst the High Court is yet to speak directly on this topic the better view and the balance of reasoned authority is now in favour of the following propositions: 1. Implication of a duty of good faith in commercial contracts will be on a fact specific, ad hoc basis and not as a matter of law by reference to classes of contracts.

2. Such a term will not be implied in fact or in law if it is excluded by express provision or because it is inconsistent with the terms of the contract.

Accordingly, in my view, it makes little practical difference, then whether the starting point for the implication enquiry is an assumption that the term is to be implied, unless there is expression of

obligation of good faith. It is only then that one can sensibly enquire whether there is inconsistency with the terms of the contract.

When drafting a commercial contract, the cases support the following: Sole Discretion Clause Where a power is given to one party by a contract to be exercised in its sole discretion so as to bind the other, the terms of the contract are inconsistent with a constraint on the exercise of that power, by considerations of reasonableness or good faith. See Giles JA. in Vodafone10, cited with approval

by MacDougall J. in Tomlin & Ors v Ford Credit Australia11.

Accordingly, contractual expressions which are familiar such as ‘absolute discretion’ or ‘sole and unfettered discretion’ will all be strong indicators that good faith considerations are excluded. Note, however, that MacDougall J. identified that it may still be possible that an exercise of such a power could be vitiated by the existence of actual bad faith. He says at [110] “for example, it may be that an exercise of 39

on the matter, I suggest that the parties pay particular attention to the recitals in a commercial contract. The recitals set the background to the contract and create an estoppel. So if the parties wish to include an express term of good faith, then a useful starting point would be to record in the recitals that, for example, the parties are entering into a contract based on mutual trust and confidence, and agree to act towards each other in good faith for the purposes of the contract. There would then be detailed terms in the operative parts of the contract giving content to that general statement.

“ ... a power to terminate a contract for nonperformance could specify it shall not be exercised until after the non-performing party has been given notice ... ” the … power not for the purposes for which it was given, but for some ulterior and impermissible purpose, may be no exercise at all. Considerations akin to the doctrine of fraud on a power may be relevant.” It is worth noting that His Honour says that such a ‘conscious bad faith’ point should be pleaded if it is to be taken.

Entire Agreement Clause Equivocal Is an entire agreement clause inconsistent with the implication of an obligation to act in good faith?

A warning should be taken from the comments of Finn J. in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd12. Finn J. states that he considers the law to be that an entire agreement clause does not preclude implications ad hoc, and finds the suggestion that an entire agreement clause is of itself sufficient to constitute an express exclusion of an implied duty of good faith to be an arresting suggestion.

In Vodafone Giles J. at [198] took into account as one of a number of factors a provision that said “to the full extent 40 | Brief April 2015

permitted by law and other than as expressly set out in this Agreement the parties exclude all implied terms …”.

His Honour felt that contrary intent was clearly expressed by such a provision, whereas an entire agreement provision is not so clear.

Express Exclusion of Good Faith. A Good Idea?

It needs to be borne in mind that by attempting to exclude any implication of a term of acting in good faith, by expressing a contrary intent in the language used, your client then makes it much more difficult for it to seek to imply such a term if it later discovers that would be advantageous to it. At best it would make the content of such a term far more limited than would be the case, absent a clearly expressed attempt to exclude the implication of a term of good faith. In relational or long term contracts, as discussed below, rather than exclude the implication, it is more likely to be more appropriate to expressly include the obligation to cater for unforeseen events.

While I have not found any discussion

In this context it is worth noting that there are certain contracts, sometimes referred to as relational contracts, which recognise the existence of an ongoing business relationship between the parties and the need to maintain that relationship; the difficulty of reducing important terms to well defined obligations; the impossibility of foretelling all the events which may impinge upon the contract; the need to adjust the relationship over time to provide for unforeseen factors or contingencies which cannot readily be provided for in advance; the commitment, likely to be extensive, which one party must make to the other, including significant investment; and that they are in an economic sense likely to be incomplete in failing to allocate the risk between the parties in the event of all future contingencies. It is those contracts characterised by the parties having a mutual interest in the successful performance of the agreement, such as agency relationships, distributorships, partnerships, franchise agreements and joint ventures, where a deliberate measure of communication, co-operation and predictable performance based on mutual trust and confidence point to a mutual good faith requirement for the advantage of both parties. See the discussion by the Court of Appeal of New Zealand in Bobux Marketing Limited v Raynor Marketing Limited13. It is submitted that this type of relational contract, based upon mutual trust and confidence, strongly points to an implication of a term of good faith.

If, which is unlikely, a party to such a relational contract expressly wishes to exclude such a term then the contract should plainly do so in express terms.

Express Inclusion of Good Faith Examples of express terms of good faith having been upheld by the Western Australian Supreme Court are as follows: 1. Where the plaintiff was “to act in good faith towards the defendant

and take all reasonable actions to operate the Resort for the financial benefit of both the plaintiff and the defendant”. See Casinos Austria International (Christmas Island) Pty Ltd v Christmas Island Resort Pty Ltd14; 2. Where it was agreed that “the successful operation of this Contract requires that [the contractor] and [principal] agree to act in good faith in all matters relating both to carrying out the works, the derivation of rates and interpretation of this document”. See Thiess Contractors Pty Ltd v Placer (Granny Smith)15.

3. Where an MOU provided for negotiations by the parties “acting in good faith”. Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd16.

However, having regard to considerations of certainty and ambiguity, it would be more useful for parties to give more content to such obligations when drafting their commercial agreements. If what is meant is that parties are to use ‘best endeavours’ or ‘reasonable endeavours’ in certain respects, then say so in those clauses. Similarly, if consents are intended to be not unreasonably withheld, then, again, say so, as that concept is certain and well understood.

As mentioned earlier, if parties have discretionary powers under the contract and it is intended that the exercise be unfettered for the sole benefit of the party exercising the power, then use language that reflects that intention. For example ‘sole and unfettered discretion’ or ‘absolute discretion’. If it is intended that there be a limit on the exercise

of a power, then, rather than use an uncertain or vague expression such as ‘good faith’ consideration should be given to something with more recognised content. For example, a power to terminate a contract for non-performance could specify it shall not be exercised, until after the non-performing party has been given notice of the alleged lack of performance and an opportunity to remedy within a reasonable time.

Similarly, a termination for convenience clause should not be left to stand in isolation, but should provide for the consequences of such termination in terms of compensation to the other party for work performed and costs incurred prior to termination, and that a reasonable period of notice be given of the termination.

It may be that after due consideration the parties to certain contracts cannot comfortably predict all the likely circumstances in which various powers may be exercised. A combination of informative recitals, specific comprehensive clauses dealing with the major predicted contractual events and discretions, and a general overriding clause obliging the parties to act towards each other in good faith might then be appropriate. All these items will then allow the court to conclude not only that there are clear contractual intentions and express obligations of good faith in various guises, but that there is also a basis for the court implying additional terms giving content to the overall express term of good faith, to cater for the unforeseen events that can arise in, for example, long term relational contracts based on mutual trust and confidence, such as distributorship and franchise agreements.

There is now so much written on the topic of good faith in commercial contracts that it would be foolish for legal advisers to not address this matter at the contract negotiation stage. For legal advisers who are involved in a dispute over a contract, where it is apparent that an implied duty of good faith was not in contemplation at the time of the agreement then, any attempt to imply such a term should be based on properly pleading the term as an implication in fact or of proper construction17.

Try to fit the content of the good faith term into one of the established and recognised categories of co-operation, reasonableness or proper purpose. To not do so is to leave open a large debate about the content of any implied term of good faith and the objection that it should not be implied, as it is too vague and uncertain to be given any content and enforced.

NOTES

1.

(1979) 144 CLR 596.

2.

(1992) 26 NSWLR 234.

3.

(1991) 174 CLR 64 at 96.

4.

(2001) NSWCA 187.

5.

(1989) 168 CLR 385 at 397-402.

6.

[2004] NSWCA 15.

7.

[2005] VSCA 228.

8.

[2014] WASC 403 at [67] - [79].

9.

[2004] NSWCA 15 at 192.

10.

[2004] NSWCA 15 at paras [194] to [197].

11.

[2005] NSWSC 540 at [119].

12.

[2003] FCA 50 at [922].

13.

[2001] NZ CA 348.

14.

[1998] WASC 387.

15.

[2000] WASCA 102.

16.

[2010] WASCA 222.

17.

See Strzelecki [2010] WASCA 222 at [79] – [80].

eConveyancing

Getting your practice ready New eLearning Course

Discover more at elearning.lawsocietywa.asn.au

41

case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Children – Mother took children into hiding, fearing father posed a threat to their lives – He to spend no time with the children – Suppression order In Dunst [2014] FamCA 964 (11 November 2014) a mother had taken five children into hiding while the father was imprisoned, due to her fear that the “father threaten[ed] their lives” (at [2] and [8]). Austin J found that the father did pose risks of harm to the children, “which he either deceptively denied, or of which he was bereft of insight”, such that there “was no safe alternative but to eliminate all personal contact between the father and the children” ([4]). Austin J said that the “eldest two reject the father outright, either through contempt or fear, but the youngest three” had “more positive memories and attitudes towards him”, but also “ambivalent feelings” ([56]). Austin J continued ([61]-[63]): “Restoration of the three youngest children’s relationships with the father would most likely benefit them, but there is no utility in setting about restoring such relationships if other evidence powerfully motivates a contrary outcome. There would almost certainly be countervailing emotional disturbance for the two eldest children and the mother if the three youngest children’s relationships with the father were restored, which is a consideration properly addressed under s60CC(3) of the Act. Moreover, while children usually benefit from both the development and maintenance of good relationships with both their parents, that benefit is annulled when such relationships are abusive (see U v U [2002] HCA 36 … at 285-286; M v M (1988) 166 CLR 69 at 76). ( … )” The court found that an order could not “safely be made” for the children to spend unsupervised or supervised time with the father ([145]-[146]), but did order ([151]) that he may communicate in writing with the children, so as to facilitate any prospect of reconciliation. The court said that the suppression order and injunctions would “impede the father’s ascertainment of the mother’s residential location, and, if he learns of it anyway, prohibit his attendance at or near [their] home and the children’s schools” ([153]). The court (at [155]) dismissed the father’s application for permission to obtain details of the children’s medical treatment and school progress “as it would compromise the mother’s ability

42 | Brief April 2015

to maintain the secrecy of her residence [which would be disclosed in the children’s medical records and school reports]”.

Property – Children placed husband in home – Doctor’s report that husband had said he wanted a divorce – Wife argued abuse of process, as she and husband not separated In Stevens [2015] FCCA 63 (15 January 2015) an 87 year old husband was admitted by his son to an aged care facility on the Gold Coast and later removed, but placed in another one in New Zealand near his daughter’s home ([5]). In 2011 the Queensland Civil and Administrative Tribunal appointed the Public Trustee of Qld as administrator of the husband’s affairs, finding he was “easily influenced, that he exhibits short term memory loss, and as a result is unable to retain the consequences of decisions in his memory” ([6]). The wife alleged the husband’s removal from the home was without her knowledge or consent, and that the husband’s application for property adjustment should be summarily dismissed, as the parties had not separated.

Judge Lapthorn dismissed the wife’s summary dismissal application, and appointed the Public Trustee of Qld as the husband’s litigation guardian. The court (at [20]-[21]) distinguished its ruling in similar circumstances in Shearer & Defazio [2013] FCCA 1596 (that it would not in that case be just and equitable to make a property adjustment order in the absence of evidence that the parties’ marriage had broken down), by referring to a letter from a doctor, annexed to the affidavit of the husband’s solicitor, saying that the husband had told him he wanted a divorce. Judge Lapthorn said that such issues, as to whether the husband had been influenced by the children or that the relief sought was an abuse of process, the proceedings being “driven by the … children for their own ultimate benefit”, could not be determined, “without the benefit of having evidence tested” at the final hearing.

Property – Sex worker failed to prove ‘de facto relationship’ – No financial interdependence, children or evidence she gave up her sex work for him In Kristoff & Emerson [2015] FCCA 13 (13 January 2015) a sex worker alleged a de facto relationship with the respondent (originally a client of hers) from 2003 (when their relationship “ceased to be a

commercial one”) until 2011 ([2]).

Judge Brewster found that by 2002 the applicant had given up her sex work, “and obtained employment elsewhere” ([5]), that from 2003 she lived at the respondent’s property up to five nights per week ([10]), that sexual intercourse was ‘regular’ ([11]), that the relationship was “more significant than a ‘friendship’” ([12]), but that the parties “never shared an economic life” ([13]).

After considering s4AA(2) FLA and the evidence Judge Brewster dismissed the application, saying (at [40]): “In this case I am not satisfied that there was a de facto relationship between the parties. Some of the indicia of a de facto relationship were present, some were not. The factor to which I attach most weight is the lack of any financial relationship between the parties.”

Procedure – Litigation guardian not needed by mother with personality disorder In Somerville (No. 2) [2014] FCCA 2439 (31 October 2014) Judge Altobelli heard a property and parenting case, where the mother’s counsel raised the issue of the mother’s capacity to conduct the litigation, the court taking “upon itself the responsibility for determining whether a litigation guardian should be appointed for the mother” ([5]). After considering FCCR 11.08(1) and L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, the court said (at [9]-[11]), said that there was “ample expert medical evidence before the court”, including that of the courtappointed single joint expert Dr. K, whose opinion was that “the mother [was] capable of understanding the nature and possible consequence of the court proceedings”.

In determining that there was no evidence justifying the appointment of a litigation guardian, Judge Altobelli said (at [23]): “Whilst it is unwise to generalise, what this case demonstrates is that, just because a person suffers from a personality disorder, it does not necessarily mean that they meet the alternative criteria set out in r.11.01(1) ( … )”.

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

case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Migration Tribunals – what is ‘information’ that may lead tribunal to refuse review In SZTGV v Minister for Immigration and Border Protection [2014] FCAFC 3 (23 January 2015) a Full Court considered how the Refugee Review Tribunal was to identify ‘information’ that could provide a reason for rejecting the review for s424A and 424AA of the Migration Act 1958 (Cth). The court considered when answers to questions from the RRT constituted ‘information’, and whether there was any obligation on the RRT in asking questions concerning complex information. In one of the appeals the court concluded the RRT had not made an unreasonable decision by failing to call for a mental health report on the applicant, and had not acted contrary to the RRT Guidelines on Vulnerable Persons.

Migration Visa application – fraud – applicant not entitled to visa, but seeking relief from exclusion period – utility of orders In Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (29 January 2015) the Migration Review Tribunal found P was not entitled to a visa holding the qualification as a cook, because the documents claiming this were fraudulent. The MRT found the agent had acted fraudulently, and P was indifferent to this. This was affirmed by the Federal Circuit Court. P appealed. The Full Court of the Federal Court noted the appeal was brought to set aside the finding that false documents had been provided by P, and thus remove, on public interest grounds, the three year exclusion from him making further application for a visa. The Full Court found the FCC had erred by applying s140 of the Evidence Act 1995 (Cth) (civil proceedings – standard of proof) in finding P had failed to prove the fact of fraud, when that fact was not in dispute. The Full Court concluded that there was no utility in granting relief, as P did not contest that he was not entitled to the visa. The Full Court concluded that setting aside the orders of the FCC, and removing the decision of the MRT as one it did not have jurisdiction to make, and would leave the decision of the delegate in place.

The Full Court found that, as the delegate was not named as a party, and permission to add the delegate would be refused (as by s476 of the Migration Act it was not a decision the FCC or the Federal Court had

jurisdiction to consider), no orders could be made against that decision anyway. The Full Court concluded that, while the FCC had erred, the appeal would be dismissed.

Patents Inventive step In Garford Pty Ltd v DYWIDAG Systems International Pty Ltd [2015] FCAFC 6 (30 January 2015) a Full Court rejected an appeal, where it was asserted the primary judge’s conclusions as to ‘obviousness’ of the claimed patentable invention focused impermissibly on the obviousness of the individual integers, and not the combination.

Sport Anti doping enquiry – whether ASADA can rely on information obtained by state body under its compulsive powers In Hird v CEO Australian Sports Anti-Doping Authority [2015] FCAFC 7 (30 January 2015) a Full Court, in a joint judgment, concluded the primary judge did not err in holding that nothing in the Act or the anti-doping scheme prevented ASADA from relying on evidence gathered by a state football competition from players under compulsive powers the state body possessed.

HIGH COURT Constitutional law Executive power – detention and rerouting foreign vessel on the high seas carrying asylum seekers to Australia – whether authorised by Maritime Powers Act 2013 (Cth) In CPCF v Minister for Immigration and Border Protection [2015] HCA 1 (28 January 2015), in June 2014, CPCF (a Sri Lankan Tamil who claimed to be a refugee) was on an Indian-flagged vessel in Australia’s contiguous zone (Submerged Land’s Act 1973 (Cth)) near Christmas Island with 156 other persons. Due to a fire in the engine room the vessel was unseaworthy. A Commonwealth vessel intercepted the Indian vessel. An officer on the Commonwealth vessel suspected it was involved in a contravention of the Migration Act 1958 (Cth), and relying on s72 of the Maritime Powers Act 2013 (Cth), detained the persons on the Commonwealth vessel, and took them towards India.

The Commonwealth vessel remained in the vicinity of India for many days. On it becoming apparent that the Australian government was not able to obtain the agreement of the Indian government for

the discharge of the persons to India, they were taken to Cocos Islands, and detained under the Migration Act. CPCF commenced proceedings in the original jurisdiction of the High Court, seeking injunctive relief to end the detention under the Marine Powers Act and damages for false imprisonment.

Questions were reserved in that case for the opinion of a Full Court. The court answered the questions to the effect that s72 of the Marine Powers Act authorised the detention.

The court did not find it necessary to answer aspects of the question that asked whether detention was authorised, where persons who feared persecution may be ‘refouled’.

The court found it unnecessary to answer whether the removal of the persons was authorised in any event by the executive power in s60 of the Constitution. The court concluded that persons subject to the power had no right to be heard before it was exercised. French CJ; Hayne with Bell JJ; Crennan J; Kiefel J; Gageler J; and Keane J. Questions answered accordingly.

Real property Torrens title – fraud – fraud by one of two proprietors – transfer by fraudulent proprietor of his interest to other proprietor In Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 (4 February 2015) a company that was a registered proprietor of Torrens system land under the Real Property Act 1900 (NSW) transferred its interest to Mr and Mrs C as joint tenants for consideration, to be satisfied by debiting Mr C’s loan account with the company. Mr C knew the company did not owe him that amount of money. Mr C later transferred his interest to Mrs C for nominal consideration. The High Court concluded that Mr C’s fraud was not brought home to Mrs C. It concluded Mrs C’s initial interest as joint proprietor was not defeasible, but that, as she was not a bona fide purchaser for value from Mr C, the interest she acquired from him (an interest as tenant in common as to half the property) was: French CJ, Hayne, Bell, Gageler JJ; contra Keane J, who agreed with the Court of Appeal that Mrs C had also been “registered through fraud”. Appeal from Court of Appeal (NSW) allowed in part.

Thomas Hurley is a Victorian barrister, phone (03) 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au

43

law council update

AMEND DATA RETENTION LAWS TO PROTECT CLIENT/LAWYER CONFIDENTIALITY The Law Council notes the Government’s intention to amend the Telecommunications (Interception and Access) Act 1979 (Cth) to require law enforcement and intelligence agencies to obtain a warrant to access a journalist’s telecommunications data.

Law Council of Australia President, Mr Duncan McConnel, said this is a welcome development that the Law Council believes should also be extended to protect client/lawyer communications.

the client, lawyer and witnesses; the number of communications and type of communications between a lawyer and a client, witnesses, and the duration of these communications,” Mr McConnel said.

The potential for client legal privilege to attach to the disclosure of a client’s identity and contact details means that heightened protections for client/lawyer telecommunications data should be built into the legislation.

“The introduction of a warrant process to access client/lawyer telecommunications data is a simple but effective safeguard.

“There is no apparent public policy basis for recognising the need to safeguard confidential journalists’ sources, while not also protecting confidential and privileged information between lawyers and their clients.

“As a minimum, a Parliamentary Inquiry should be conducted into access to telecommunications data of lawyers to ensure there are sufficient safeguards to protect privileged and confidential information,” Mr McConnel said.

“People who engage a lawyer need to know their communications are confidential and that legal professional privilege is not lost under the proposed Data Retention Bill.

As the peak body of the Australian legal profession, the Law Council plays a leading role in ensuring proper protections exist against undue interference with the confidentiality of client/lawyer communications.

“The confidentiality of client/lawyer communication is a long-held common law right and we need to be vigilant to protect it,” Mr McConnel said.

Currently, the Bill does not provide any assurance that the confidential relationship between a client and a lawyer will not be compromised.

“It is not difficult to envisage situations where client/lawyer telecommunications data would reveal a range of information that could compromise confidentiality and even legal professional privilege.

“For example, what would happen if a whistle-blower seeks legal advice prior to, or during communication with a journalist? Under the proposed amendments, the journalist’s communication may be confidential, but what of the communications between a journalist or the journalist’s source and the lawyer?

“Data could allow inferences to be drawn from whether a lawyer has been contacted; the identity and location of 44 | Brief April 2015

“The Law Council’s position is simple – lawyer communications deserve the same level of protection to that afforded to journalists,” Mr McConnel concluded.

LAW COUNCIL ANNOUNCES 2015 JOHN KOOWARTA RECONCILIATION LAW SCHOLARSHIP The Law Council of Australia has awarded two recipients the 2015 John Koowarta Reconciliation Law Scholarship: Ms Allison Boland and Ms Tamara Kenny.

Law Council of Australia President, Mr Duncan McConnel, said the Scholarship, established in 1994, commemorates John Koowarta, an inspirational man who pioneered Indigenous land rights in Australia.

“The Law Council's John Koowarta Reconciliation Law Scholarship has helped 27 Indigenous law students in completing their legal studies, many of whom have gone on to make valuable contributions to their communities, the legal profession and Australia. It was a

great honour to add Ms Boland and Ms Kenny to that list.

“Both recipients embody the passion with which John Koowarta lived his life and fought for Indigenous legal rights, and I congratulate them on their achievement," Mr McConnel said.

Ms Boland is a Mardigan and Kooma woman from South-West Queensland, studying a double degree in Bachelor of Justice and Bachelor of Law at the Queensland University of Technology.

Ms Boland said her interest in becoming a legal professional is driven by a desire to break the cycle of contact with the criminal justice system in her family.

Allison will be the first person in her family to become a legal professional.

“By studying law, I am sending a positive message to the young people in my community that gaining higher level qualifications will provide them with life changes and opportunities that are made possible by further education,” Ms Boland said.

Ms Kenny identifies with the Yuin people from the Bodalla community on the far south coast of New South Wales. Ms Kenny is in her third year of a combined Arts/Law degree at the University of New South Wales. Ms Kenny is passionate about social justice, and said she was inspired to study law to help people, especially those in indigenous communities, overcome disadvantage.

“I believe studying law will equip me with the skills and knowledge that are necessary to understand how the law contributes to help address social justice issues, and how it can be utilised to have positive impacts on individuals and communities,” Ms Kenny said.

“The Law Council is proud of what the John Koowarta Scholarship has helped its recipients achieve, and we consider it an important part of promoting Indigenous involvement in the legal profession," Mr McConnel said.

More information about the John Koowarta Reconciliation Law Scholarship, including how to make a tax deductible contribution to the Scholarship Trust Fund, is available online.

pam sawyer

45

announcements & classifieds

Professional Announcements Career moves and changes in your profession Paterson and Dowding

Katherine Morison

Paterson and Dowding are pleased to announce the appointment of the following lawyers to our team -

Katherine has recently completed her degree at Notre Dame University and is now completing her Articles.

Jessica O’Neil

Nic D’Adamo

Jessica has practised exclusively in Family Law for some years, and has considerable experience, particularly in property matters.

We are pleased to welcome Nic back to the P&D team as a Senior Associate. Nic has practised exclusively in Family Law since his admission and has a wealth of experience.

Jessica O’Neil

Sam Fahey Sam is an Accredited Family Law Specialist and has a Masters in Family Law. Sam has extensive experience in complex property matters. Sam is welcomed as a Senior Associate.

Katherine Morison

Nic D’Adamo

Rebecca Hall

Sam Fahey

Rebecca, who has been with P&D for some time, has accepted the position of Senior Associate.

Kim Wilson & Co

Katrina has recently completed her Restricted Practice and is able to assist clients in all areas of Family Law.

Kim Wilson & Co are pleased to announce the appointment of Julia Mansfield and Adam Somerville-Brown as Senior Associates and Sarah Brown as an Associate of the firm with effect from 1 May 2015.

Katrina Kerl

NOTICE

Government of Western Australia Department of the Attorney General

ADAM ELDER late of “Wattle Grove” Wilga Western Australia, Farmer (who may also have been a Country Party candidate) died on 16 March 1961 at Wilga Western Australia.

Would any person holding the last Will and Testament of ADAM ELDER or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 33114829 EM38.

MISSING WILL Anyone knowing the whereabouts of the Last Will made by Vance Ronald Stratton born 12 December 1974 died 28 January 2015, of Ellenbrook formerly Northam, please contact Avon Legal, Suite 7, 9 The Avenue Midland WA 6056.

46 | Brief April 2015

Kath and Miranda are both legal practitioner directors of Pemberton Robertson and bring to the practice many years’ experience in the area of Family Law. Pemberton Robertson Family Lawyers are located at Level 4, Irwin Chambers, 16 Irwin Street, Perth WA.

Rebecca Hall

Katrina Kerl

Telephone 9274 1977 or shemali@avonlegal.com.au

Kath Pemberton and Miranda Robertson are pleased to announce they have commenced practising at Pemberton Robertson Family Lawyers.

Classifieds Government of Western Australia Department of the Attorney General

PHYLLIS TESTER late of 56 Murray Road, Bicton Western Australia died on 9 November 2014 at Fremantle Western Australia.

Would any person holding the last Will and Testament of PHYLLIS TESTER or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 19893511 EM22.

ROOMS AVAILABLE

EQUUS, 580 HAY STREET, PERTH Rooms available at Level 5 overlooking Hay Street and Mall. Shared reception, boardroom, workstation for one support staff and other facilities including gym and pool.

Partitioning and fit out to suit your practice.

Available from 1 May 2015 onwards for fit out. Inspections by appointment.

All initial enquiries to advertiser2516@gmail.com or 0409 113 115.

Considering a change or an upgrade of your office accommodation?

Due to current office market conditions NOW is the ideal time to review your office needs.

Adroit Consulting provides comprehensive commercial property advice to tenants to assist in securing office accommodation on the best available terms and conditions.

Current/recent clients include: The Law Society of WA, The College of Law, HWL Ebsworth, Johnson Winter & Slattery, Gilchrist Connell.

For confidential advice please call: John Adcock on 0413 279 301 or adroitja@bigpond.net.au

new members & submissions

New Members New members joining the Society (February 2015) ASSOCIATE MEMBERSHIP Ms Reem Al Bahadiri Ms Jeany Cheng Mr Sergey Fursa Mr Damien Francis Giglia Ms Kiran Gill Ms Michelle House Miss Alexandra Johns-Putra Ms Anita Kearney Mrs Amanda Kenny Miss Vanessa Kiuna Miss Karrie Louden Mr Sam Macpherson Ms Natalija Macura Mr David Mulligan Miss Laura Pilsworth Ms Annabel Pizzata Miss Sophie Pontifex Ms Elisha Rose Ms Mel Shelley Mr Mitch Bruce-Smith Mr Bradley Sutton

ASSOCIATE MEMBERSHIP Mr Timothy Hammond

Communicare Inc

Hotchkin Hanly Clifford Chance (Sydney)

Williamson & Co Price Sierakowski Paterson & Dowding Jarman McKenna Graham & Associates

ORDINARY MEMBERSHIP Mr Andrew Chelvathurai Mr Brian McCormack Mr James Woodford PART-TIME MEMBERSHIP Mr Michael Cockram AM Ms Helen McNally Ms Suzanne Nash

Francis Burt Chambers

ILAW Barristers & Solicitors

Lawfield Legal Practice

RESTRICTED PRACTITIONERS Mr Jackson Brown D'Angelo Legal Miss Emma Doig Eastwood Sweeney Ms Peta Rapson Separovic Injury Lawyers Ms Abbie Shingler

Submissions Made from 1 January 2015 to 28 February 2015

27/01/2015

Proposal for Mandatory Provisional Assessment of Bills of Costs (C270115C3)

27/01/2015

Review of O 36B – Subpoenas, Rules of the Supreme Court 1971 (C270115C4)*

27/01/2015

Constitutional Recognition of Aboriginal Peoples in the Western Australian Constitution (C270115C5)

27/01/2015

Legal Profession Uniform Law – Consultation on Draft Legal Profession Uniform Rules (C270115C7)

10/02/2015

Landgate Strata Titles Reform – Combined Discussion Paper (E100215C5)*

24/02/2015

Inquiry into Planning and Development (Development Assessment Panels) Regulations 2011 (C240215C1)*

24/02/2015

Draft Planning and Development (Local Planning Schemes) Regulations 2014 (C240315C2)*

24/02/2015

United Nations Universal Periodic Review Shadow Report of Australia’s Human Rights Obligations: Indigenous Specific Responses (C240215C3)*

24/02/2015

Legal Costs Committee Review – Legal Practitioners (Solicitors Costs) Determination 2013 and Legal Practitioners (Solicitors Non-Contentious Probate Costs) Determination 2013 (C240215C4)*

24/02/2015

Senate Economics Legislation Committee Inquiry into Australian Securities and Investment Commission Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014 (C240215C8)*

47

events calendar

Events Calendar Date

Event

Location

Tuesday, 7 April

HBF Wellness Pilates

The Law Society of Western Australia

Friday, 10 April

YLC Lawn Bowls

Mount Lawley Bowling Club

Tuesday, 14 April

Sole Practitioner & Boutique Firm Forum

The Law Society of Western Australia

Tuesday, 21 April

Welcome to the Profession

Pan Pacific Hotel

Wednesday, 29 April

Society Club

TBA

Thursday, 7 May

Quality Practice Standard Accreditation Workshop 1 – Prerequisite workshop to gain accreditation

The Law Society of Western Australia

Monday, 11 May

Law Week – Breakfast

Parmelia Hilton

Wednesday, 13 May

Law Week – Law Museum Tour

Old Court House Law Museum

Thursday, 14 May

Law Week – YLC Panel Discussion

Supreme Court

Friday, 15 May

Law Week – Awards Evening

TBA

Thursday, 21 May

Quality Practice Standard Accreditation Workshop 2 – An elective unit to gain QPS accreditation

The Law Society of Western Australia

Thursday, 28 May

YLC Careers Uncut

Central Park Theatrette

Tuesday, 18 June

Golden Gavel

TBA

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638

elearning.lawsocietywa.asn.au

48 | Brief April 2015

ONLINE LEARNING FOR THE LEGAL PROFESSION

MONDAY, 11 MAY – FRIDAY, 15 MAY 2015

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY What’s happening in Law Week 2015 The Law Society of Western Australia will present a series of law-themed events and information sessions for the legal profession and general public during National Law Week 2015 including: • Breakfast to launch the week’s events • The Attorney General’s Community Service Law Award • A special seminar presented by the Young Lawyers Committee • Mental Health Seminar • Lawyer of the Year Awards • Free Information Sessions and Talks • Activities hosted by councils and community centres across WA • Community events including activities for school students and free legal advice* • Cocktail event to close Law Week * By appointment at specific locations

In partnership with

For a full calendar of Law Week events please visit lawsocietywa.asn.au For more information please call (08) 9324 8600

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

RepResenting thousands of successful caReeRs Encompassing local private practice and in-house roles with access to global vacancies, Hudson Legal has the broad opportunities you need to succeed in law no matter what your specialisation or where you want to go. Our specialist consultants draw upon legal backgrounds as diverse and challenging as your own to understand your needs and ensure you achieve your career ambitions. And with over twenty years of success in the industry and an international network supporting us, you can trust we know what it takes to reach the forefront of legal recruitment and stay there.

au.hudson.com/legaljobs

proJECTS

DISpUTES – GENEraL

Sydney roles

Senior Lawyer

Junior and senior lawyers sought for national firm. Infrastructure, Processing and PPP Projects. EPC/EPCM experience required.

Internationally regarded Partner. ref: BX/41258

Superb boutique. Senior Litigator for high profile Federal Court dispute.

Commercial Litigation, Insolvency and Construction Disputes matters.

Excellent remuneration package. ref: BX/43691

Senior project Lawyer

associate

Strong senior lawyer (5–9 years’ PAE) sought for international firm.

Advise on structuring and financing of mining projects. Finance, Corporate M&A, Commercial and Projects experience required. ref: BX/44049

Market leading team seeking Litigator with 3–5 years’ PAE. Broad general commercial disputes, including Insolvency, Regulatory, Contract Disputes, Corporate Actions and IP. Employer of Choice. ref: BX/43908

projects Lawyer

Magic circle firm. High achieving Commercial Litigator (2–3 years’ PAE) sought for high performing team. Construction/Mining Disputes. Superb benefits package. International travel. ref: BX/42400

Top-tier international firm seeking projects lawyer with 2–4 years’ PAE. Variety of Projects, Infrastructure, Corporate, Energy and Resources matters. Strong, well-regarded Partner& team. ref: BX/43564

Lawyer

CorporaTE & rESoUrCES

DISpUTES – SpECIaLIST

oil & Gas Lawyer

Native Title & Mining

Prestigious world-class firm seeking Oil & Gas lawyer with 3–5 years’ PAE. Internationally recognised Partners and team. Advise major project operators on Project Structuring, Development and Financing. ref: BX/43983

International firm seeking lawyer with Land Access, Native Title and Warden’s Court experience to join leading Projects & Finance team.

1–4 years’ PAE. Exciting opportunity to grow a unique skillset. ref: BX/44055

Junior Lawyer

Construction

National firm with boutique Perth practice. Opportunity for lawyer with 1–2 years’ PAE to work across Corporate, Energy and Resources.

Friendly environment offering work/life balance. ref: BX/44068

Senior associate National top-tier firm (Employer of Choice). Legal 500 Partner. M&A and ECM. Exciting client base including internationally listed diversified companies. 5–9 years’ PAE required. ref: BX/43814

Premier top-tier firm. Senior Lawyer with 6–8 years’ required for impressive, highly regarded team. Construction Disputes specialist practice, with exposure to General Commercial Disputes. ref: BX/43815

property National firm with fresh WA office. Lawyer with 3–5 years’ PAE in Property Disputes, Development, Leasing, Acquisitions & Disposals of commercial & residential property required. ref: BX/42403

The above roles are just a few examples of the many current opportunities Hudson Legal can assist you with.

For further information, please contact aoife Stapleton on 08 9323 0200 or email your CV to aoife.stapleton@hudson.com.