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Volume 42 | Number 7 | August 2015


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Volume 42 | Number 7 | August 2015

Take me with you.




President's Report


Matthew Keogh

Thinesh Thillai


Editor's Opinion


Experience and Internships: Employer Obligations


The Society's Employment Relations Committee


Legal practitioners' duties in respect of client testamentary capacity

Julian Sher


Successively conflicted

Gino Dal Pont


Your voice at work


Section 54 of the Insurance Contracts Act: The 'Untidiness' around the Meaning of an 'Act'


Battle on the High Seas: Offshore resources workers and executive versus legislative power

Simon Haag and Sarah Brady


Retirement of Justice Susan Crennan AC and Justice Kenneth Hayne AC

Stefan Sudweeks and Phillip Lovatt

Charity Quiz Night

Janine Webster

Legal Profession Complaints Committee


Book Review: Climate Change & Coastal Development Law in Australia

Review by Brad Wylynko


Book Review: The Australasian Coroner's Manual

Review by Raoul Cywicki


YLC Panel Discussion

Anna Celliers and Ahshiba Sultana


Young Lawyers Case Notes



Family Law Case Notes


Ethical and legal obligations in mediations and other negotiations


Law Council Update

Steven Standing


Pam Sawyer


Launch of the Society's Reconciliation Action Plan


Professional Announcements


2015 Mock Trial Competition Seminar


New Members

Adriana Costanzo




'Conferral of experts' and 'concurrent evidence' – what do experts think of it?


Events Calendar

Bertus de Villiers

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 Ronald Bower, Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Dr Eric Heenan, Rebecca Lee, Jason MacLaurin, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Julian Sher, Moira Taylor


PROOFREADERS David Garnsworthy, Andrew MacNiven

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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




President's Report Matthew Keogh, President, The Law Society of Western Australia I sent out words like soldiers to battle and they never returned. Horace Rumpole Some of you have noticed that this report is now shorter. Fear less, you are not getting short changed, the reason is the creation of a new 'Your voice at work' section of Brief, providing a snapshot of recent Law Society initiatives and work. Make sure you check it out. RECOGNITION AND RECONCILIATION NAIDOC Week was celebrated in early July. NAIDOC stands for National Aboriginal and Islander Day Observance Committee. Its origins can be traced to the emergence of Aboriginal groups in the 1920s that sought to increase awareness in the wider community of the status and treatment of Indigenous Australians. During NAIDOC Week I was proud to represent the Society and WA legal profession at the launch of 'Western Australians for Recognition', which is part of building a coalition of corporate and community leaders in WA who support constitutional recognition of Aboriginal and Torres Strait Islander peoples. The Law Society has expressed its support for the recognition of Aboriginal people in the Australian and Western Australian constitutions. I was very pleased to see not only that the national firm Allens was one of the key supporters but that lawyers from across the WA profession, from firms, not-for-profits and government, were in attendance to show their support. While progress is being made at a state level, there is a long road ahead nationally with many issues to still be resolved. We look forward to the legal profession being involved in assisting in finding solutions in support of recognition and reconciliation. In a similar vein, in late July I was very proud to be able to launch the Law Society's Reconciliation Action Plan, Reflect. This was the culmination of many years work, involving our Aboriginal Lawyers Committee, past and present Councillors, and others on our working group. The Reflect RAP outlines the actions the Society will undertake to achieve its vision of: 1. a profession where Aboriginal and Torres Strait Islander law students, graduates and practitioners feel valued and respected; and

02 | Brief August 2015

2. a community in which members understand and show respect for the Aboriginal and Torres Strait Islander cultures through building relationships and laying the foundation for increased opportunities for Aboriginal and Torres Strait Islander peoples. As the peak body of the legal profession in Western Australia, the Society recognises that it is has the opportunity to affect real change through raising awareness of its commitment to reconciliation, resulting in the profession considering ways in which they can contribute to reconciliation. Of course, an inescapable part of practical reconciliation is closing the justice gap. The recent Amnesty International report, There is always a brighter future: Keeping Indigenous kids in the community and out of detention in Western Australia highlighted that while nationally in 2013–2014, Indigenous young people in Australia were 26 times more likely to be in detention than non-Indigenous young people, in Western Australia, they were 53 times more likely to be in detention. Aboriginal young people make up just over 6 percent of Western Australia's 10 to 17-year-olds, but more than three quarters of those in detention. The situation is bleaker still among Western Australia's youngest children – in 2014 almost nine out of 10 children in detention aged between 10 and 13 were Aboriginal. The State Government's establishment of a Justice Ministers Working Group (Attorney-General, Police and Corrective Services) to oversee the development and implementation of reforms to address the over-representation of Aboriginal people in the justice system and deaths in custody is welcomed by the Society. Three key areas where the State Government will focus its attention include: the creation of safer custody environments; avoiding incarceration for low level offending; and supporting prevention and diversion initiatives that keep people out of the criminal justice system. The Justice Ministers Working Group will publish an annual report tracking the implementation of each agency's policies and providing up-to-date statistics about the representation of Aboriginal people in prisons, particularly in the area of low end offending. We hope that the Government's initiatives in these areas will produce much desired improvements.

LEGAL ASSISTANCE FUNDING Of course, a key part of reducing levels of Aboriginal incarceration is proper access to justice and in particular access to legal assistance services. Unfortunately, despite the State Government's success in obtaining more Federal funding for Legal Aid in WA, the State's own funding of Legal Aid has been reduced, resulting in grants of aid for Magistrates Court matters no longer being provided (except in very limited circumstances). Of course, people can still face imprisonment from the Magistrates Court and significant cuts to the Aboriginal Legal Service have meant that it had already withdrawn its duty lawyers from metropolitan courts, is now closing a number offices around the state and will no longer be able to service the Magistrates Court in Karratha or its associated circuit. So despite the temporary increase in Magistrates servicing that court and circuit, delays and listings will further blow out due to a lack of legal assistance services; let alone the negative consequences on the individuals facing the courts themselves unrepresented. There have also been cuts to funding to Community Legal Centres by both the State and Commonwealth Governments, with the most extreme being the complete removal of all funding for the Environmental Defenders Office and the replacement of previously expiring funding for the Employment Law Centre with significantly less funding and only for the coming year. Legal aid funding in Australia is approximately AU$28 per capita, compared to AU$60 per capita in England (post recent cuts). Legal Aid and Community Legal Centres support those that can't afford and often don’t have a voice for themselves. Our profession has a voice and we must use it with government to fix this issue. FINAL THOUGHTS This month, not one but two: to no-one shall we sell, to no-one shall we deny or delay right or justice Magna Carta 1215 cl 40 and A nation's greatness is measured by how it treats its weakest members Mahatma Ghandi

Latest Opportunities - August 2015 With activity in the Perth legal market on the rise, now is the time to secure your dream job, or quality legal talent to support your business! We currently have a number of exceptional job opportunities and high quality legal candidates registered. Contact us today for a confidential discussion about your career options, or for assistance with your strategic legal staffing requirements. Please find below a selection of our latest job opportunities for August.

Property Lawyer

Commercial Litigator

2-3 years +

2-4 years

This impressive international Real Estate team is experienced in delivering advice and support across every aspect of major real estate deals, property development and infrastructure projects throughout Perth and regional WA. Great opportunity for a quality junior to support the growth of this team.

This prestigious firm has made its mark as one of Australia’s leading firms. Due to business growth, a standout junior Commercial Litigator is immediately required.

Acting for global and Australian clients, you will advise and act on property sales and acquisitions, developments and financings, due diligence and leasing matters, liquor licensing, joint ventures and other commercial contracting arrangements.

Widely regarded as a one of the world’s premier Litigation practices, this group acts for major national and international companies in resources, construction, insurance and industrial sectors and enjoys a consistent flow of premium work. Your practice will focus on complex commercial litigation, international arbitration and insurance litigation work.

As part of a close knit local team, you will have guaranteed mentoring from partners and senior lawyers in the group, a consistent flow of high quality work to keep you challenged, autonomy, regular interface with clients and ample opportunity to progress upwards within this smaller team structure.

You will be mentored by down to earth and technically expert partners and senior lawyers, will play a key role supporting the team on interesting and varied matters, will be included on litigation strategy, encouraged to have regular client contact and to participate in business development activities.

At least 2-3 years PAE and strong technical expertise across all aspects of property law with a reputable local team will ensure your success.

You’ll require 2 years commercial or insurance litigation experience with a top tier firm, strong academics and quality training. An exceptional opportunity to advance your career with this leading practice.

Corporate M&A

Finance & Projects Lawyer

2 years +

2-3 years

With a national presence, this respected boutique Perth firm has an exciting career development role for a high calibre junior to join its renowned Corporate team.

This top tier practice offers true international work, with Perth being the hub for all the firm’s key projects and transactions happening within the region. The team is looking to strengthen its capabilities with the addition of an exceptional junior lawyer.

This is a rare opportunity to gain exposure to major transactions from start to end. Dealing with a premier client base of ASX listed companies, your practice will encompass all aspects of regulated M&A, capital markets, corporate governance, general corporate advisory and commercial related energy & resources work. You’ll benefit from direct mentoring from a respected partner and senior lawyers, a guaranteed investment in your training and progression and genuine work/life balance, without sacrificing quality of work. As the ideal candidate you’ll have 2 years PAE with an outstanding Corporate team, a solid working knowledge of the Corporations Act and ASX Listings Rules and exceptional academics. Consideration will also be given to top-tier candidates who have an interest in specialising, ideally having completed at least one Corporate rotation.

As part of a small team based locally, you will be at the coalface of real cross border finance work and given the autonomy to work across every aspect of project, corporate and property finance transactions, M&A deals and commercial property projects. You will work under the direct guidance of an awarded partner who is genuinely committed to the development of their team and extremely down to earth and personable in approach. Existing exposure to these areas would be well regarded, although candidates with at least 2 years with a top tier firm, outstanding academics, a demonstrated history of strong performance and genuine desire to specialise in front-end project work will also be considered.

Stacey Back Director p





editor's opinion

"My final offer!": the ethics of negotiation Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal A while ago, the Law Society of New South Wales adopted a succinct Statement of Ethics, now displayed in the Ethics section of their website under this quotation from Riley's NSW Solicitors' Manual: "The true profession of law is based on the ideal of honourable service." Subsequently the Law Institute of Victoria adopted a Code of Ethics similarly displayed. Now I believe our own Society is considering the introduction of something similar. Some may ask why do we need another statement of ethics when we have comprehensive legislation and conduct rules as well as practical guidelines published on the Society's website? The short answer is that the law has always been a challenging profession – never more so than now. Technology has made some things simpler, but equally exposed us to greater risk. Lawyers still occasionally lose their way, despite better education programmes. A short statement of core values is surely something that everyone can readily grasp and identify with as the foundation of who we are and what we do. Some years ago I was part of a Law Society panel discussion on professional ethics with the catchy title of How far can you go for your client? One could debate the wisdom of the subliminal suggestion buried within that title, suggesting that professional ethics are all about seeing how much one can stretch the envelope. It certainly attracted a good deal of interest at the time, judging from the size of the audience. The really remarkable thing about that event was the reaction to a paper from one of my co-presenters, whose topic covered practitioners' professional duties during commercial negotiations on behalf of clients. On that occasion it became clear that misconceptions existed about the lengths to which one could go when negotiating for clients, without contravening the professional conduct rules. The discussion addressed the legitimacy of tactics like "poker playing" 04 | Brief August 2015

or "bluff and double bluff". I recall the point being made that saying "this is my client's final offer", when you know it isn't final at all, is misleading and a breach of the professional conduct rules. I had assumed that the presentation all those years ago, which included a discussion of His Honour Justice Chaney's reasons in LPCC v Fleming [2006] WASAT 352, had put to bed any lingering doubts on the issue - but apparently not. Even now there are apparently still some people laboring under a severe misapprehension that commercial negotiations are somehow an "honesty free zone" (to coin the phrase used by the Queensland Legal Services Tribunal in LSC v Mullins [2006] LPT 012) and consequently, in some inexplicable fashion, free from the scrutiny of the court. Nothing could be further from the truth. The lesson of Fleming is that practitioners owe duties to each other, quite apart from and in addition to their duties to the court and their clients. Practitioners should read Justice Chaney's reasons, but, to make it even easier, this month's Brief contains an important feature by Steve Standing bringing us up to date on this topic. It reminds us of the artificiality - and impossibility - of attempting to segregate aspects of our professional lives into 'professional' and 'commercial' parts quarantined from each other. The absurdity of compliance with ethical and professional standards being switched on and off like so many lights, depending on whether one is acting for clients 'professionally' or 'commercially', is patently obvious. This has special resonance for commercial negotiations, where professional reputations can be made or unmade literally in an instant. Negotiations are part and parcel of what we do every day. So more is required from us than mere adherence to the black letter of the law or the professional conduct rules. Critically for an arena where professional relationships rely so much on personal trust between colleagues, compliance with the spirit of

the law is an absolute prerequisite. Our features this month include an article by Bertus de Villiers. With his wealth of practical experience as a senior member of SAT, Bertus has written about conferral between expert witness and the leading of concurrent evidence, interestingly, from the experts' perspective. Stefan Sudweeks and Philip Lovatt have addressed issues concerning the much-litigated section 54 of the Insurance Contracts Act and its uncertainties. Then we have an article by Simon Haag and Sarah Brady, on the unusual topic of the rights of offshore resources workers, entitled Battle on the High Seas. There is also a contribution sure to be of interest to aspirant research clerks and seasonal clerks – and perhaps their employers too – on employers' obligations to interns, by Janine Webster. We also publish a note from the LPCC on practitioners' duties regarding client testamentary capacity. The note is compulsory reading, especially for those who practise in wills and probate. It will have resonance for all concerned about a client's capacity to give instructions. Our new 'Meet the Committee' column this month features the Employee Relations Committee. Our book reviews this month cover topics as diverse as the Coroner's Manual, reviewed by Raoul Cywicki and Climate Change and Coastal Development, reviewed by Brad Wylynko. These reviewers bring to bear a wealth of experience in these areas. Last but not least, I am delighted that our young lawyers have contributed a series of case notes on eclectic topics of interest to our readers. YLC's contributions to Brief are now a regular feature, for which we are profoundly grateful.

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

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Successively conflicted Confidentiality has proven the focus for successive conflict disqualification Gino Dal Pont Professor, Faculty of Law, University of Tasmania

In 2001 Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd,1 in dealing with former client ('successive') conflicts, opined that "the danger of misuse of confidential information is not the sole touchstone for intervention where a solicitor acts against a former client". His Honour, to this end, considered that "it may ... be a breach of duty for a solicitor to take up the cudgels against a former client in the same or a closely related matter",2 which duty could be sourced from, inter alia, an equitable obligation of 'loyalty'. Though not without supporters, the trajectory of subsequent case law has largely steered against a subsisting 'loyalty' obligation in this context. Given its close parallel (or even identity) with fiduciary principle, it was challenged by case law inconsistent with the proposition that fiduciary duties survive the termination of the (usually contractual) relationship that attracted those duties in the first place.3 Moreover, locating the trigger for judicial intervention in (alleged) successive conflict cases as a real possibility of misuse of confidential information, as much of the case law has done, gives the inquiry a greater degree of precision than one grounded solely in an amorphous notion of 'loyalty'. A second reason why the continuing 'loyalty' approach has received little judicial traction is that its main target — a scenario where, absent a misuse of confidential information, it nonetheless appears wrong to allow a lawyer to continue acting against a former client — has been addressed via the courts' long-standing inherent jurisdiction over its own officers. Directed at preserving the proper administration of justice, it affords the court power to determine which of its officers may represent parties to litigation.4 The relevant inquiry is whether a fair-minded reasonably informed member of the public would find it subversive to the proper administration of justice to allow the representation to continue.5

06 | Brief August 2015

Importantly, the inherent jurisdiction is not confined to cases involving successive representation; it has a much broader scope, including instances raising legitimate questions over the independence of a lawyer in the matter.6 Just as importantly is the courts' repeated branding of the jurisdiction as very much exceptional or extraordinary.7 And the reasonable observer, whose perspective the court must adopt, 'does not act on suspicion', nor 'make connections or draw inferences in the absence of evidence'.8 It should not, as a result, be assumed that plaintiffs unable to establish a real possibility of misuse of confidential information in the successive representation context can routinuely resort to the inherent jurisdiction to achieve disqualification. It is an exceptional jurisdiction because its exercise is directly adverse to the important policies of (client) freedom to choose legal representation and (lawyer) freedom to practice a profession. It may also be exceptional because, not unlike the suggested equitable loyalty obligation, it invites a court to intervene on grounds that may be perceived to lack precision. In turn this explains the relatively few instances where courts have been convinced to apply it to restrain an alleged former client conflict. Much more frequently courts have targeted their inquiry at confidential information, even in family law litigation, which has often elicited particular judicial sensitivity in this regard. So where in Cuoco v Cuoco9 the wife sought to disqualify the husband's solicitor on the ground that he had acted for the parties in a conveyancing transaction and advised on a prenuptial agreement, Rees J refused the application because the wife could not point to any confidential information she had communicated in those dealings. Just as a former client will likely find it difficult to substantiate a successive conflict independent of proof of a real possibility of misuse of confidential

information, this is more difficult again for an applicant who was never a former client. In Daher v Halabi10 the husband sought to disqualify the wife's law firm from acting in the family law proceedings, on the ground that his brother-in-law was a partner at the firm (as was the wife). The husband deposed that he had confided in his brotherin-law. That there was no suggestion that the relevant relationship was that of solicitor and client, even if some confidence existed, proved fatal to the application. Loughnan J saw the argument as one that "conflates the idea of private confidences with the important legal privilege that attaches to information that is imparted between solicitor and client".11 That Australian law appears to have ultimately focused on confidentiality as the relevant inquiry in successive conflicts applications bodes well for an area in need of clarity and certainty. NOTES 1.

(2001) 4 VR 501; [2001] VSCA 248 at [52].




See, for example, Collard v State of Western Australia (No 4) [2013] WASC 455 at [1513] per Pritchard J.


Davies v Clough (1837) 8 Sim 262 at 267; 42 RR 171 at 174 per Viscount Shadwell VC.


See Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255 at [181]– [189] per Johnson J.


See, for example, R & P Gangemi Pty Ltd v Luppino Pty Ltd (2012) V ConvR 54-815; [2012] VSC 168 (where the lawyer was propounding a cause on the client's behalf prompted by the lawyer's own error).


See, for example, T J Board & Sons Pty Ltd v Castello [2008] VSC 91 at [30] per Hollingworth J.


Moore v Scenic Tours Pty Ltd [2015] NSWSC 237 at [88] per Garling J.


[2014] FamCA 611.


[2014] FamCA 675.


ibid., at [62].

New Roles for August 2015 PARKES LEGAL

Contact Ross Wheatley on 9221 4932

Family Lawyer 1-3 Years Salary Guide $65K ‑ $90K This modern specialist practice has an outstanding reputation and a high-end client base. The Principal is one of the emerging leaders in the field in both financial and children’s matters. They are looking for a talented junior lawyer with a minimum of 1 year of experience in family law. Growing firm. Ref: RCW3315

Commercial and Franchising Lawyer 1-4 Years Salary Guide $70K ‑ $110K This CBD boutique practice is highly successful and a superb alternative to large firm practice. You will work directly alongside a former Top Tier Partner with a loyal client base. Your matters will include: property, commercial, franchising and competition. You will have: a distinction average academic background, attention to detail and an enthusiastic approach. Ref: RCW3254

Commercial Litigation Lawyer

Commercial Property Lawyer

2-4 Years

2-4 Years, International Practice

Salary Guide $80K ‑ $110K This prominent national firm have an in-demand Perth Dispute Resolution Team and require a mid-level commercial litigator. You will be working alongside 2 established Partners who are highly regarded. They operate across areas including: building and construction, contract, commercial disputes, and PI insurance. Step up and run your own matters. Ref: RCW3269

Salary Guide $80K ‑ $105K Work with one of the region’s leading Partners whose clients include international groups, fund managers, developers and investors. Your matters will include: large scale developments, commercial leasing, acquisitions and disposals and financing. You will have a minimum of 2 years of commercial property experience and a passion for this area. Ref: RCW3117

Energy and Resources Lawyer

Corporate Lawyer Associate or Senior Associate

Insolvency and Dispute Resolution Lawyer

Dispute Resolution and Professional Indemnity Lawyer

2-4 Years

2-5 Years

Salary Guide $80K ‑ $110K This leading global practice is seeking a lawyer with insolvency and litigation experience. Work alongside a gun Partner with strong connections and a Special Counsel with cutting edge international experience. Your matters will include: complex insolvency administrations, advising upon receiverships, enforcements strategies and finance litigation. Work with the best! Ref: RCW3303

Salary Guide $80K ‑ $115K This leading international firm has an elite Perth office with a focus upon construction, resources, dispute resolution and insurance. They are currently looking for a dispute resolution lawyer to work with 2 senior Partners. You will work closely with international clients and gain first class experience. Ref: RCW3318

Salary Guide $85K ‑ $130K This leading international practice is looking for a corporate and energy lawyer working across oil and gas, mining and energy. You will be working with a number of different Partners and closely with key clients. You will have previous experience on transactions and projects including M&A, infrastructure projects and finance. Market leading practice. Ref: RCW3319

Construction Front-End

Senior Commercial and Property Lawyer

Senior Employment Lawyer with Ambition

Senior Associate or experienced Associate Salary Guide $110K ‑ $200K If you have a proven record in front- end construction and projects then this global firm is interested. You will be working alongside a busy Partner on “name” projects. This is a client facing role with key players from mining, construction, property and finance. You will have similar experience and enthusiasm for business development. Ref: RCW3265

Commercial Litigation Rare opportunity to join this CBD Boutique law firm in the Commercial Litigation team. Supporting a Partner and his team who can be extremely busy at times, you will need to be able to work well under pressure. To secure this desirable role, you will have around 5 years experience combined with a minimum typing speed of 60wpm with 98% accuracy+. Accuracy, attention to detail and solid formatting skills are paramount for this position. Ref: AMB3313

Salary Guide $110K ‑ $200K This progressive mid-tier practice offers a full suite of benefits and work quality in line with top tier practice. The team is consistently in demand with an impressive pipeline of work. You will be engaged in a full range of transactions including cross border M&A involving companies from Australia, Canada and the USA. Ref: RCW3311

Partnership Opportunities

8 Years+, Equity Partner?

Lead the Perth Practice

Family, Commercial Property, Litigation

Salary Guide $200K ‑ $200K+ Are you a commercial or property lawyer with part of an established practice? This long standing Perth CBD commercial and taxation firm is looking for a senior lawyer with a view to equity partnership. The firm is consistently profitable. With a cohesive and engaged partnership this is a very attractive option. Ref: RCW3316

Salary Guide $200K ‑ $300K+ Join a fully integrated practice with a strong national Employment Law Team. In addition to their national client base, the firm has a local client base with significant potential for further development. You will be an ambitious Senior Associate or a current Partner. No client base required. Ref: RCW3314

Salary Guide $200K+ This impressive Western Suburbs boutique practice is looking to grow. They are interested in senior lawyers with a background in Family, Commercial, Property or Litigation who can bring some clients with them. The firm has a long standing strong reputation, cohesive partnership and is a very well run. Ref: RCW3320


2-6 Years

Contact Angela Bamford on 9221 0944

Intermediate / Senior Legal Secretary Mining and Resources Amazing role in a friendly, close knit secretarial team with an awesome benefits package to boot! You will be supporting a delightful Partner and his team in this international CBD firm. You will possess a minimum of 5 years experience as a Legal Secretary together with strong typing skills (minimum 70wpm) and advanced Word skills. You will be a team player who is willing to pitch in and assist. Ref: AMB3292

Legal Secretary

Temporary Legal Secretaries


Multiple Roles Available

National CBD Law Firm is seeking an intermediate level Legal Secretary to join the Commercial Property team. The role has a fair amount of document work – typing and formatting in addition to running searches, drafting a range of documents and billing. To be considered, you will need around 3 years recent experience in Property Law, advanced level Word skills together with a cheerful, friendly and most of all can do attitude! Ref: AMB3293

Seeking temp work? We have multiple roles available in a wide range of areas of law, for premium clients located in the CBD and surrounds. You will need to have a minimum of 2 years, recent experience as a Legal Secretary, together with dictation and billing experience. A minimum typing ability of 60wpm, with 95% accuracy+, and intermediate knowledge of Microsoft Word is essential. Candidates on working holiday visas are most welcome to apply. Ref: AMBTEMPS

For a full list of all of our available positions please see our website www.parkesrecruitment.com.au PARKES LEGAL Ross Wheatley (BA LLB)

T: (08) 9221 4932 M: 0401 344 040 E: ross@parkesrecruitment.com.au

PARKES LEGAL SUPPORT Angela Bamford T: (08) 9221 0944 M: 0423 471 524 E: angela@parkesrecruitment.com.au


Your voice at work A snapshot of recent Society initiatives facilitating separate magistrate and jury trial rooms. The proposed Broome upgrade is to provide improved facilities, including for victim support and mediation. Society President Matthew Keogh said, "The relocation of the temporary Kununurra Court facilities to Karratha and Broome is an excellent use of resources, especially when budgets for community legal funding are under increased pressure. The State Government's plans should make justice services more accessible to members of these regional communities and complements the moves to increase the frequency of visiting magistrates to Broome." ORAL HISTORIES PROJECT

From left: Martin Connolly, Acting Chief of Staff, Office of the Attorney General; Cheryl Gwilliam, Director General, Department

of Attorney General; Hayley Cormann, Treasurer of the Society; The Hon Michael Mischin MLC, Attorney General; Matthew Keogh, President of the Society; and Alain Musikanth, Vice President of the Society.

EXECUTIVE MEETINGS The Society's Executive meet regularly with various Ministers, groups and associations as a way of keeping in touch and discussing various issues. In July, the Executive met with the State Attorney General, the Hon Michael Mischin MLC and the Director General of the Department of Attorney General, Cheryl Gwilliam. The lunch covered a number of important issues including the legal profession uniform law, admission of experienced foreign lawyers, funding to legal aid and community legal centres, delays with judicial appointments, Aboriginal incarceration and mentally impaired accused as well as Sunday sessions bringing rapid justice to WA. THE SOCIETY CONGRATULATES DR CHRISTOPHER KENDALL The Society congratulates Perth barrister, Dr Christopher Kendall, on his appointment as Deputy President of the Australian Administrative Appeals Tribunal. Dr Kendall is the former President of the Society, Chair of the Society's Education Committee and co08 | Brief August 2015

chair of the Society's Law Summer School sub committee. He was also a member of the Executive of the Law Council of Australia. Society President, Matthew Keogh said, "Dr Kendall will excel as Deputy President of the Administrative Appeals Tribunal in Perth and the Society congratulates him on his appointment." This appointment comes at a time of much change at the Administrative Appeals Tribunal. From 1 July 2015, the Tribunal will be amalgamated with the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal to form a new Administrative Appeals Tribunal. KUNUNURRA COURT RELOCATION The Society commends the decision of the State Government to relocate the temporary Kununurra Court to Karratha and Broome by 2016. The relocation of the court will help strengthen access to justice in the Kimberley and Pilbara regions. It is understood that most of the court will be relocated to Karratha, doubling the number of courtrooms there and

Over the years the Old Court House Law Museum has compiled oral histories of about 40 lawyers admitted to practice between 1929 and 1968 including a few others of persons who have been involved in the development of law in WA without having been admitted. The Oral Histories collection has been built up by the Museum under the guidance of the Oral History, Museum and Building (OHMB) Sub-Committee. To date, the work has been funded by annual grants from the Public Purposes Trust (PPT). Two new initiatives are planned for FY15/16. First, the Society plans to feature some of the oral histories in the collection on its website (those not subject to embargo). Second, the OHMB SubCommittee will develop a more formalised selection criteria. These initiatives will form part of a renewed application to the PPT for funding in FY16/17. Contributions from individuals or firms to fund the taking of oral histories in FY15/16 would be most welcome. If you would like to contribute or to find out more on how to contribute this please contact Caroline Ingram, Museum Curator, cingram@ lawsocietywa.asn.au or (08) 9324 8688. REMINDER THAT YOUR LIMITATION OF LIABILITY SCHEME RENEWAL IS DUE Law practices wishing to participate in the Limitation of Liability Scheme (Scheme)

your voice at work in 2015/2016, including law practices that participated in 2014/2015, need to submit a 'Limitation of Liability Participant Information' form for 2015/2016 which is available from lawsocietywa.asn.au. The fee for each member's participation in the Scheme in 2015/2016 has been reduced to only $50, the fee that must be paid by the Society to the Professional Standards Council. For a law practice to gain the full benefit of the Scheme, all Australian legal practitioners within the law practice, and the law practice itself if it is an Incorporated Legal Practice, must be members of the Society and of the Scheme. A Society membership fee of $170 will be payable by Incorporated Legal Practice members. The $50 participation fee is also payable for ILPs. For more information about the Limitation of Liability Scheme please visit our website at lawsocietywa.asn.au or contact the Scheme Coordinator on (08) 9324 8652 or lls@lawsocietywa.asn.au. HIGH COURT DINNER On the occasion of the visit to Perth of the High Court of Australia, the Society and

the Western Australian Bar Association invites members to the High Court Dinner on Thursday, 13 August 2015 at the Government House Ballroom. For further information please visit lawsocietywa.asn.au. QUALITY PRACTICE STANDARD (QPS)

OPENING OF THE NEW STATE ADMINISTRATIVE TRIBUNAL BUILDING The State Administrative Tribunal (SAT) has moved into its new building. SAT is now located at Level 6, 565 Hay Street, Perth WA.

The Society would like to congratulate CM Legal (trading as Cullen Macleod) who recently celebrated their 15th anniversary as a QPS practice.


QPS is an important Society initiative which recognises practices that have developed and adhered to documented internal systems and processes. These systems are designed to improve client satisfaction. For more information about QPS, visit the Society's website.

In 1941, at 16, Clyde LeBer Langoulant began his career as part of the clerical staff at the WA Crown Law Department (now the State Solicitor's Office). When he turned 18 he joined the RAAF and served in World War Two as a navigator. As an ex-serviceman, Clyde was supported to receive a legal education at the University of Western Australia, commencing in 1947. It was at UWA that Clyde met Ana Stuart, with whom he later married and had three children. He graduated from UWA and was admitted to the legal profession in 1953. Clyde then rejoined the Crown Law Department, later becoming the Crown Solicitor, a position he held for 13 years. Clyde retired in 1985.

CONDOLENCES TO RON CANNON The Society was saddened to learn of the passing of Ron Cannon. Mr Cannon was one of Western Australia's most prominent criminal lawyers, representing a number of high-profile clients over a long and distinguished career. Our deepest condolences go to Mr Cannon's wife and their five children.


Section 54 of the Insurance Contracts Act1: The 'Untidiness' around the meaning of an 'Act'

Stefan Sudweeks, Partner and Phillip Lovatt, Associate Jackson McDonald This article is adapted from a paper recently delivered at the Australian Insurance Law Association (AILA) Insurance Masterclass. There it was commented that since the introduction of section 54 of the Insurance Contracts Act (Act), lawyers have spent the last 20 years coming to the realisation that s54 is not easily understandable. For those readers who have not had the good fortune of contributing to those 20 years of examination, this article briefly explains what s54 is about and why is it in the Act. The focus of this article is to examine an 'untidiness' around the meaning of words 'act' and 'omission' having regard to recent cases. The 'untidiness' to which we refer arises from Chesterman JA's decision in Johnson v Triple C Furniture & Electrical P/L2 that "the thing omitted, the thing not done" must have been "within the power of the omitter to have done"3, which argument was rebadged by the insurers in Highway Hauliers Pty Ltd v Matthew Maxwell4 as a "state of affairs"5 vs act/ omission distinction. The consequence of a 'thing' or a 'state of affairs' not constituting an 'act' (within the meaning of s54) is that the section is not enlivened. Johnson did not reach the High Court, failing at the special leave stage6, due to what we infer was a separate causation point. The Highway Hauliers 'state of affairs' v act/omission point was considered by the WA Court of Appeal7, but by the time it reached the High Court8, that point was not considered. In our view, the Johnson case heard in Queensland and Highway Hauliers

10 | Brief August 2015

considered in Western Australia cannot be read together. Hence the use of the word 'untidiness'. A BRIEF INTRODUCTION TO S54 The Act is remedial legislation designed to strike a fair balance between the interests of insurers, insureds and other members of the public. Once upon a time, insurers were able to draft insurance contracts in such a way that they were entitled to decline all cover where there had been a trivial or non-causative breach of a policy by an insured's act or omission occurring after the inception of the policy. There was a perception that technical drafting could triumph over matters of substance and insureds were missing out on cover unfairly.

Insurer may not refuse to pay claims in certain circumstances (1.) Subject to this section, where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim, either in whole or in part, by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into but not being an act in respect of which subsection (2) applies, the insurer may not refuse to pay the claim by reason only of that act but the insurer's liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer's interests were prejudiced as a result of that act. (2.) Subject to the succeeding provisions of this section, where the act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract, the insurer may refuse to pay the claim. (3.) Where the insured proves that no part of the loss that gave rise to the claim was caused by the act, the insurer may not refuse to pay the claim by reason only of the act. (4.) Where the insured proves that some part of the loss that gave rise to the claim was not caused by the act, the insurer may not refuse to pay the claim, so far as it concerns that part of the loss, by reason only of the act. (5.) Where:

The intention of s54 is to avoid this result and to preclude insurers from declining cover for non-causative breaches, or only allowing insurers to reduce cover proportionately (so a trivial or partially causative breach might reduce total cover but not entirely). But s54 will not find application at all if an insurer can show that the claim does not fall within the terms of the policy. If the insurer's reason for their refusal is not because of some act or omission of the insured occurring after the inception of the policy, but because there is simply no cover, then s54 is not relevant. Determining whether s54 may be relied on is a vexed issue that has been the subject of a lot of consideration, but it is not the focus of this article. Rather this article focusses on the 'untidiness' in the application of s54, which reads as follows:

(a) the act was necessary to protect the safety of a person or to preserve property; or (b) it was not reasonably possible for the insured or other person not to do the act;

the insurer may not refuse to pay the claim by reason only of the act.

(6.) A reference in this section to an act includes a reference to: (a) an omission; and (b) an act or omission that has the effect of altering the state or condition of the subjectmatter of the contract or of allowing the state or condition of that subjectmatter to alter.

JOHNSON V TRIPLE C FURNITURE & ELECTRICAL9 In Johnson a pilot operating a small Cessna aircraft crashed at take off. The pilot did not survive and his wife and another passenger were injured. The injured wife sued the aircraft owner, Triple C, for the negligence of the pilot. Triple C sought indemnity from their insurer. The insurer refused cover on the basis that cover was excluded where the aircraft was operated in breach of CASA regulations, one of which was that the pilot is not to fly a plane unless they had satisfactorily completed a flight review within 2 years (Regulation 5.8110). In that regard, the Court of Appeal found on the evidence that the pilot had not satisfactorily completed a flight review within 2 years of the crash.11 Chesterman JA found that s54 was not enlivened for two reasons. The reason of interest to this article is Chesterman JA's finding that the 'circumstance' being considered was not an act or omission as defined by s54. At [69], Chesterman JA identified the circumstance which was to be filtered through the act or omission definition: … The act identified here was an omission: Mr Johnson not having satisfactorily completed an aeroplane flight review within two years of the flight the subject of the claim. His Honour continued,12:

There is an immediate problem in characterising the prohibition on Mr Johnson’s flying as an omission. The word carries with it an implication or connotation that the thing omitted, the thing not done, was something which was within the power of the omitter to have done. An omission may be deliberate or inadvertent, but whatever its cause one cannot, I think, be said to omit to do something which is beyond one’s capacity to do. A candidate for an examination who fails is not ordinarily described as having omitted to pass. An athlete beaten in a contest does not omit to win.13 Chesterman JA concluded14: The circumstance that he had not satisfactorily completed a flight review was not an omission as the word is ordinarily understood and as it is, in my opinion, used in s54. He may have omitted to undergo the review but what was required was that he complete the review to someone else’s satisfaction. Obtaining that satisfaction was something Mr Johnson might achieve, or fail to achieve, but it was not something he could omit. There are a few reasons to pause to consider Chesterman JA's conclusion that an omission must be "within the power of the omitter to have done". First, Chesterman JA did not make reference to any prior authorities in

arriving at this conclusion, which he does in relation to other findings. Neither did Chesterman JA refer to any dictionary for an ordinary definition nor consider any of the explanatory material for the Act or the relevant ALRC Report No 20. It appears as his own reasoning. Second, it is worth noting that there is more to Regulation 5.81. Chesterman JA noted15 the Regulation 5.81(1) "requires a pilot to have satisfactorily completed an aeroplane flight review" and it is evident from his reasons that his focus is on the flight review testing. Regulation 5.81(1) reads: 1. A private (aeroplane) pilot must not fly an aeroplane as pilot in command if the pilot has not, within the period of 2 years immediately before the day of the proposed flight, satisfactorily completed an aeroplane flight review. [Emphasis added] The insurance policy in question excluded cover where an aircraft was operated 'in breach of' regulations. In our opinion, breach of Regulation 5.81 requires two circumstances: 1. the absence of a satisfactorily completed aeroplane flight review within the 2 year period (that might be either because no flight review was performed at all or because the pilot failed the review); and 11

'state of affairs' argument22, and considered that: … the relevant act is to be characterised by reference to the use of the vehicles involved in the accidents rather than the attributes of the drivers concerned23. His Honour continued:

2. flying the aeroplane in the absence of a satisfactorily completed flight review. The regulation is not simply breached by the absence of a satisfactorily completed review. Breach occurs when the pilot actually flies the plane without a completed review. Although the decision to fly the plane might be more fairly considered an 'act', it is a decision that is 'within the power' of the pilot. TRIPLE C FURNITURE AND ELECTRICAL PTY LTD V RURAL & GENERAL INSURANCE LIMITED & ANOR16 In this matter, special leave was sought, but refused. While there is only so much that can be read into a special leave transcript, we deduce from it that causation was an issue to which the High Court gave close consideration. That issue, ventilated on the transcript, was to the effect that regardless of whether there was an act or omission as defined, the appellate court had made a factual finding that the pilot's failure to satisfactorily complete the flight review was a direct causative factor in the accident. Hence, even if s54 applied, the insurer would have been entitled to reduce its exposure to the loss and the result would be the same as if there was no cover. Whether there was an act or an omission did not feature prominently in the exchanges between the court and counsel. Having said that, Gummow J17 interjected at one point saying: "Wait a minute – the act was flying the plane" and later when discussing the causation point with the insured's counsel: "Now, whether you say the act was the flying of the aircraft, as it seems to me … ".18 It would be going too far however to equate those comments with a High Court position.

HIGHWAY HAULIERS PTY LTD V MATTHEW MAXWELL19 Although the High Court did not, in its special leave disposition in Triple C Furniture, go on to consider Chesterman JA's findings in Johnson, Corboy J of the Western Australian Supreme Court did (and subsequent courts have followed). In Highway Hauliers the insurers contended, amongst other things, that the failure of truck drivers to obtain a minimum PAQS test score was not an act or omission as defined in s54, but rather a 'state of affairs'20. In Highway Hauliers the insured was a trucking business which transported freight between the western and eastern states. Two of the insured's trucks and trailers were involved in separate accidents in June 2004 and April 2005. The insured submitted a claim for the repair and replacement of those trucks to its insurer. The insurer denied cover, relevantly, on the basis that the drivers involved had not complied with a policy endorsement which required those drivers to achieve a minimum score in a driver test known as the PAQS test. The insurer's submissions were derived from Johnson. Justice Corboy summarised as follows: [c]onsistent with the reasoning in Johnson v Triple C, that state of affairs was said to be created by more than the drivers’ omission to undertake the PAQS test … as the endorsement required the drivers to not just perform the test but also to obtain a minimum score 21. In Johnson, Chesterman JA had used words the words 'thing' and 'circumstance'. However, the insurers in Highway Hauliers rebadged the non-act/ omission as a 'state of affairs', perhaps to avoid verbally confusing the 'state of affairs' with the defined word 'act', an outcome they were obviously trying to avoid at law. Corboy J did not agree with the insurers'

12 | Brief August 2015

… the relevant act or omission for the purpose of s54(1) was the act of Highway Hauliers operating the vehicles on the particular east-west run in which each accident occurred with drivers who did not satisfy the requirements of the policy … Characterising the relevant act for the purpose of s54(1) in that way focuses on the substance of the contract of insurance and the acts of Highway Hauliers as the insured.24 and: … it was the act of Highway Hauliers operating the vehicles by allowing them to be driven by drivers who were non-declared and who did not satisfy the PAQS endorsement or the act of those drivers driving the vehicles in those circumstances that entitled the insurers to refuse the claims under the policy.25 Corboy J considered he was not bound to follow Johnson because, in his Honour's view, Johnson was not a conclusion about the proper construction of s54, but rather a finding concerning the application of that section to the particular facts of that matter. His Honour considered that this was an exercise which depended in each case on the particular circumstances26. Putting conclusions about proper construction to one side, the authors consider that the facts of Johnson and Highway Hauliers are similar and that there is an inconsistency in the application of the section between the courts. Observe, in this regard, our colour coding and and the writers' criticism of Johnson above where the breach of the aviation regulation was broken into two parts (1 - Blue) the lack of testing accreditation and (2 - Green) actually flying notwithstanding the lack of accreditation. Now consider the reasoning of Corboy J27]: … The SRS Policy did not impose an obligation on drivers to undertake the PAQS test or to submit driver declarations. The fact that the drivers concerned were nondeclared drivers who had not completed the test and obtained the required score was not, by

itself, the reason why the insurers were entitled to reject the claims made by Highway Hauliers. The insurers were entitled to refuse the claims because the vehicles were being used by drivers who had not satisfied those requirements. In other words, it could be said that in both Johnson and Highway Hauliers there is an act (as opposed to an omission) which would enliven s54. The writers, with respect, would agree with the finding of Corboy J to the effect that there was an 'act'; though arguably Johnson might perhaps have been approached more directly in a manner similar to the approach adopted subsequently by McLure P on appeal.

consent, in isolation, was outside the control of the insured." McLure P considered that the PAQS endorsement was the same as the relevant insurance provision in Antico and, applying the Antico approach to the facts, that there had been an omission32; specifically, a failure of the insured's drivers to complete the PAQS test satisfactorily before driving the trucks. McLure P therefore rejected the approach in Johnson33 and Chesterman JA's requirement that the omission must be in the power of the 'omitter' to have done, remarking34 that: [w]hen the omission is fully formulated consistently with Antico, it is an omission for the purpose of s54(1). The fact that the insured or another person is not wholly in control of satisfying a requirement for another’s consent or in successfully completing a test is of no significance. The failure is in not meeting the requirement before engaging in the relevant conduct in question.35

MATHEW MAXWELL V HIGHWAY HAULIERS PTY LTD28 An appeal against Corboy J's decision in Highway Hauliers was heard by McLure P and Pullin and Murphy JJA. Each member of the Court of Appeal dismissed the appeal in a separate judgment (though Pullin and Murphy JJA adopted different parts of the judgment of McLure P). While only McLure P directly addressed the insurers' argument about a "state of affairs" relying on Johnson29, each of the justices expressed a view on whether there was an act or omission. In identifying a relevant 'act' as defined in s54, McLure P took her lead from the approach of the High Court in Antico v Health Fielding Australia Pty Ltd30. In Antico the insured had incurred legal costs without consent of the insurer. The failure to obtain consent before incurring legal costs was conduct characterised as an omission. In what might be considered disapproval of Johnson, McLure P commented31 that: " ‌ it is significant that the provision of

Pullin JA considered that there was either an act or an omission, and that this took one of the following forms: 1. the act of giving permission to a driver to drive the trucks when the driver did not have the required PAQS test score; or 2. the omission by the drivers to complete the PAQS test satisfactorily before driving the trucks36. Murphy JA also considered there had been either an act or an omission, and that this took one of the following forms: 1. the act of the insured in operating the relevant vehicles using drivers who did not have the required PAQS qualification; or

2. the failure of the insured to use drivers who had the required PAQS qualification37. The difficulty for the humble solicitor is to attempt to determine whether there has been an act or omission and what conduct constitutes that act or omission. MAXWELL V HIGHWAY HAULIERS PTY LTD 38 The High Court granted special leave to appeal against the decision of the Court of Appeal. A unanimous bench comprising Hayne, Crennan, Kiefel, Bell and Gageler JJ subsequently dismissed the appeal and found that s54 applied. Unfortunately, neither the 'state of affairs' argument nor Chesterman JA's requirement that an omission must have been within the power of the 'omitter' to have been done, feature in the High Court's judgment at all. In the course of their reasons, the High Court did, however, make the following remarks in relation to what circumstances constitute an act or omission as defined in s5439: Here the fact that each vehicle was being operated at the time of the accident by an untested driver is properly characterised as having been by reason of an 'act' that occurred after the contract of insurance was entered into. There was an omission of the insured to ensure that each vehicle was operated by a driver who had undertaken a PAQS test or an equivalent programme approved by the insurers. That omission occurred during the Period of Insurance. The writers' consider that the above remarks should be read as reflecting a view by the High Court to the effect that there had been an omission. That is because the use of the terminology "by reason of an 'act'", suggests that

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the actual driving is not the 'act' as defined under the section. The quotation marks around the word 'act' could be a reference to the full definition of 'act' which includes an omission. The High Court's description of the relevant omission immediately afterwards suggests that this is the conduct which they believe meets the definition. The High Court also commented on Johnson. Whilst it did not deal with Chesterman JA's "within the power of the omitter" reasoning, the High Court arguably dealt with this indirectly in saying40: … The operation of the aircraft in breach of air safety regulations was an 'act' which occurred after the contract was entered into. CONCLUSION In circumstances where the High Court has arguably not considered Chesterman JA's requirement that an omission must have been within the power of the 'omitter' to have been done, the writers consider that there is presently an inconsistency at intermediate court of appeal level between the jurisdictions of Queensland and Western Australia. In the writers' view, there is probably enough in what the High Court said about acts and omissions to infer that they would have agreed with the views expressed by McLure P rather than Chesterman JA. However, without words to that effect being expressed, this is merely our opinion. Prior history shows that attempts to limit the scope and operation of s54 are not often successful and we have considered this relevant in forming our opinion. In FAI General Insurance Company Limited v Australia Hospital Care Pty Ltd41, Kirby J delivered a separate judgment in which His Honour had agreed with the conclusions of the majority (McHugh, Gummow and Hayne JJ). In that judgment, Kirby J identified and rejected: Various judicial attempts, grounded in the language of s54(1) of the Act … offered to confine the section so that the acts (and omissions) that are excused are kept within manageable bounds. The first was Handley JA's view in Greentree v FAI General Insurance Co Ltd42 that an omission required a failure to perform some duty or obligation by the insured or someone else for the benefit of the insured. Kirby J rejected that view as being inconsistent with Antico, stating that no duty or obligation is posited, simply a failure to act. The second was Spigelman CJ's 14 | Brief August 2015

approach in Greentree to distinguish an 'omission' as defined by s54 from a so called 'non-event'. Spigelman CJ's view was that a 'non-event' was 'conduct wholly external to the policy'43. Kirby J considered that: "[i] t seems unlikely that this differentiation would provide a sound, universal touchstone for the correct operation of s54."44 The majority also rejected this approach, stating45: The difficulty with referring to events as "wholly external to the policy" is that no question about the effect of a contract of insurance can ever be asked in isolation from external facts and circumstances. The question is inevitably about the application of the contract in light of certain real or hypothesised facts and circumstances. Those facts and circumstances will always be wholly 'external' to the policy. Lastly, there was Hodgson CJ's view in Permanent Trustee Australia v FAI General Insurance Co Ltd46, where His Honour drew a distinction between 'someone's omission to do something' and a relevant event that "did not happen"47. Kirby J deferred to the reasons of the majority. The majority rejected Hodgson CJ's reasoning48 as follows49: Criticism can also be made of the formulation of Hodgson CJ in Eq in Permanent Trustee v FAI, who said that where there is no claim by a third party during the period of cover under a claims made policy "the gravamen of the refusal [by the insurer to meet a later claim on it] is not that someone omitted to do something, but rather that something did not happen" (citation omitted). That distinction is readily applied in cases where, for example, there is no damage by flood to insured premises during the period of cover, but such damage occurs shortly thereafter. The absence of a flood during the period of cover clearly is not an omission; it is much more naturally described as a 'non‑event'. Importantly, however, a flood can be fully described without reference to any act or omission by any person. The distinction drawn by Hodgson CJ in Eq cannot readily be applied when the circumstance or event said to be an omission cannot adequately be described without reference to a person (such as, for example, the failure of a third party to make a claim against an insured during a policy period). By what criteria is a person's failure to take some step to be categorised as a 'non‑event' rather than an 'omission'?.

Perhaps if Chesterman JA's requirement, that an omission must have been within the power of the 'omitter' to have been done, had been put before the High Court, it would find itself on the list of failed judicial attempts to confine 'omissions'. On a final note, the 'state of affairs' argument reared its head recently, though in a different form, in Inglis v Sweeney50. In that case, the state of 'living with someone' was found to be an 'act' for the purposes of s54. The writers are informed that this decision is on appeal and anyone who found this article interesting should keep an eye out for the result. NOTES 1.

1984 (Cth).


[2010] QCA 282.


Johnson, above n 1, [70].


[2012] WASC 53.


Highway Hauliers, above n 3, [57].


Triple C Furniture and Electrical Pty Ltd v Rural & General Insurance Limited & Anor [2011] HCATrans 125.


Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, [39].


Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.


[2010] QCA 282.


Regulation 5.81 of the Civil Aviation Regulations 1998 made under the Civil Aviation Act 1998 (Cth).


Johnson, above, [64].




Emphasis added.






[2011] HCATrans 125.


Triple C Furniture, above n 5, [355].


Triple C Furniture, above, [495].


[2012] WASC 53.


Highway Hauliers, above,[57] and [85].


Highway Hauliers, above, [85].


Highway Hauliers, above, [86] and [87].








Highway Hauliers, above, [88].




[2013] WASCA 115.


Matthew Maxwell, above, [39], [80] and following.


[1997] HCA 34; (1997) 188 CLR 652, 675.




Matthew Maxwell, above, [82].


Matthew Maxwell, above, [84].




Emphasis added.


Matthew Maxwell, above, [121].


Matthew Maxwell, above, [145].


[2014] HCA 33.






FAI General Insurance Company Limited v Australia Hospital Care Pty Ltd (2001) 204 CLR 641; [2001] HCA 38.


(1998) 44 NSWLR 706.


Greentree, above, 710


FAI, above, [80].




(1998) 44 NSWLR 186.


Permanent Trustee Australia v FAI, above, 227.


FAI, above n 22, [39].




[2015] WADC 34.


16 | Brief August 2015

Battle on the High Seas: Offshore resources workers and executive versus legislative power

Simon Haag, Senior Associate, Fragomen (Australia) Sarah Brady, Associate, Fragomen (Australia) SNAPSHOT •

The Full Federal Court in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 (26 March 2015) ruled invalid a recent Legislative Instrument which 'excepts' certain operations and activities from the definition of offshore resources activity, effectively removing the need for these workers to hold a visa. The government has responded by using special Ministerial powers in the Migration Act 1958 (Cth) to deem offshore resources workers to hold a Special Purpose Visa, which in practice reverses the effect of the Full Federal Court decision. It will be interesting to see what the next move will be in the ongoing saga of the immigration status and the rights of offshore resources workers and the competing powers of the legislature and executive.

INTRODUCTION The events leading up to, and since, the Full Federal Court decision in Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 (AMOU) are an interesting example of the competing powers of the legislature and the executive. This case examined the extent of the power conferred on the Minister for Immigration and Border Protection to make a Determination under s9A(6) of the Migration Act 1958 (Cth) (the Act) to except activities and operations from the definition of 'offshore resources activity' and the validity of the Determination (registered as Legislative Instrument IMMI 14/077) made under this power. BACKGROUND The immigration requirements for foreign workers engaged in work within Australian waters have not been without controversy. In recent years there have been a number of changes introduced by

successive governments culminating in the events leading to the recent AMOU decision. The Act requires all persons who are not Australian citizens to hold a visa to travel to, enter and remain in the Australian migration zone. In order to work in the migration zone, the visa that a non-citizen obtains must grant them permission to work. In general terms, the migration zone consists of the territorial seas of the states and mainland territories at low tide mark, and areas that form part of declared ports under the Customs Act 1901 (Cth). Over the years, outlying islands and territories have progressively been excised from the migration zone (such that making land there does not constitute 'entry' into Australia). The definition of migration zone also includes certain structures a long way out to sea in Australia's exclusive economic zone: Australian resource installations attached to the Australian seabed (such as a traditional oil rig) and Australian sea installations attached to the seabed (such as a fish farm) (ss8-9). The effect of these sections is that foreign workers require a visa to work on such fixed installations. ALLSEAS DECISION In Allseas Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529 (Allseas) the Federal Court of Australia considered whether non-citizens engaged on vessels involved in the installation of pipelines in the gasfields off the Western Australian coast were constructively working 'in' the migration zone. Allseas Construction S.A., the owner of two pipelaying vessels, sought a Declaration from the court that the vessels were not Australian resources installations within the meaning of the Act, because they were floating and not fixed. McKerracher J agreed, on the basis that the vessels only manoeuvred a resources installation (being the pipeline) into place, but were not themselves ever fixed to the seabed. As the vessels were not physically in the migration zone, nor part of the migration zone by virtue of

being a fixed installation, foreign workers on board the vessels did not need to hold a visa. MIGRATION AMENDMENT (OFFSHORE RESOURCES ACTIVITIES) ACT 2013 (CTH) Both the Maritime Union of Australia and the AMOU expressed concerns with the outcome of the Allseas decision. In response the then Labor Government established a taskforce whose recommendations were broadly implemented by the Migration Amendment (Offshore Resources Activities) Act 2013 (Cth) (2013 Amending Act) which was passed on 29 June 2013 and came into effect on 29 June 2014. The 2013 Amending Act inserted s9A and sub-ss41(2B) - 41(2C) into the Act. Section 9A broadens the definition of migration zone by incorporating foreign workers who participate in, or support, offshore resources activity in Australia's exclusive economic zone. Offshore resources activity is defined by the new sub-s9A(5) to include a regulated operation within the meaning of s7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 or an activity performed under a licence or a special purpose consent within the meaning of s4 of the Offshore Minerals Act 1994. Relevantly, sub-s9A(6) provides a Ministerial power to except an operation or activity from subs9A(5). Section 41 now provides that, regardless of whether an installation is fixed or floating, a foreign worker engaging in offshore resources activity must hold either a permanent visa, or a visa prescribed by the Migration Regulations 1994 (Cth). The commencement provisions of the 2013 Amending Act mandated regulations to be made no later than 30 June 2014. MIGRATION AMENDMENT (OFFSHORE RESOURCES ACTIVITIES) REGULATION 2014 (CTH) With the change of government at the September 2013 federal election, it was 17

left to the current coalition government to implement regulations to give effect to the 2013 Amending Act provisions. As the government has been unsuccessful in repealing the 2013 Amending Act, the Assistant Minister for Immigration and Border Protection, Senator Michaelia Cash, has taken a number of steps to limit its effects. On 29 May 2014 the Migration Amendment (Offshore Resources Activities) Regulation 2014 (Cth) (2014 Amending Regulation) was made prescribing three existing temporary visas for the purposes of s41(2B): the subclass 457 (Temporary Work (Skilled)) visa, the Subclass 400 (Temporary Work (Short Stay Activity)) visa and the Subclass 988 (Maritime Crew) visa. On 16 July 2014, the 2014 Amending Regulation was disallowed by the Senate, due to concerns that the subclass 400 and 988 visas were not sponsored visa classes and therefore did not guarantee Australian working conditions. The disallowance meant that only Australian permanent residents or citizens could perform offshore resources activity, leaving all foreign workers in limbo. The next day, the Assistant Minister made a Determination under s9A(6), registered as Legislative Instrument IMMI 14/077 (the Determination), with immediate effect. Relying on the power at s9A(6) to except operations and activities from the definition of offshore resources activity, the Determination excepted all operations regulated by s7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and an activity performed under a licence or a special purpose consent within the meaning of s4 of the Offshore Minerals Act 1994. This essentially extinguished the content of the definition of offshore resources activity in s9A(5) and nullified the changes introduced by the 2013 Amending Act.

AMOU DECISION The AMOU's legal challenge in the Full Federal Court was based on ultra vires – simply that the power conferred on the Minister to 'except' an activity or operation from s9A(5) of the Act does not go so far as to allow for all offshore resources activity in s9A(5) to be wholly excepted. The court noted that the task at hand was necessarily one of statutory construction to establish whether the Determination was within the enabling Act. In construing the relevant provisions of the Act, it was the courts' view that particular significance attaches to the word 'except' and that this should be given its ordinary meaning. Furthermore, the court held that the Act and the 2013 Amending Act must be regarded as "one connected and combined statement" of the Parliament [68]. The court also referred to the Explanatory Memorandum for the 2013 Amending Act noting that: Parliament's intention was to confer upon the Minister a power to except or exempt particular activities or operations ... not to reverse the Parliament's desire and intention to bring within the Act non-citizens who are engaged in operations and activities [73]. Parliament's intention was not to restore the position which existed at the time when Allseas was decided [67]. Accordingly, the court by way of declaratory relief, found the Determination to be invalid. THE GOVERNMENT RESPONSE On the 27 March 2015, the day after the AMOU decision was handed down, the Assistant Minister made a further Determination under s9A(6) of the Act,

NOW available from 1 July 2015 to members of the Society for only $50.* For full information visit lawsocietywa.asn.au/lls *Conditions apply.

18 | Brief August 2015

registered as Legislative Instrument IMMI 15/073. This determined, for the purposes of s9A(5), any activity or operation involving a resources installation attached to the seabed. The effect of the 2015 Determination was to limit the meaning of offshore resources activity inserted by the 2013 Amending Act to workers who had been required to hold a visa since before Allseas. The Assistant Minister then made a Declaration under s33(2) of the Act deeming all non-citizens on a floating vessel to participate in, or to support, an offshore resources activity to hold a Special Purpose Visa (SPV), provided the presence of the vessel has been notified to the Department of Immigration and Border Protection. A person holds a SPV as long as they maintain a particular prescribed status in Australia. The Ministerial Declaration added offshore resources activity workers on floating vessels to other prescribed classes of people such as members of the Royal Family; commercial airline pilots entering Australia in their capacity as a pilot; or official guests of an Australian government. This has brought the status of foreign workers on floating resources vessels back to the position in Allseas: foreign workers are not required to hold a work visa in order to lawfully perform offshore resources activity on floating vessels in the migration zone. CONCLUSION Immigration law has historically been a battlefield for the competing powers of the executive and the judiciary. The facts surrounding AMOU are an interesting example of the competing powers of the executive and the legislature and it will be fascinating to see the next step in this ongoing saga.

Retirement of Justice Susan Crennan AC and Justice Kenneth Hayne AC 2015 has seen the retirement of Justice Susan Crennan AC and Justice Kenneth Hayne AC from the High Court of Australia.

JUSTICE SUSAN CRENNAN AC Justice Susan Crennan retired from the High Court on 3 February 2015. Justice Crennan commenced her legal career as a barrister in New South Wales in 1979, reading for the then Commonwealth Solicitor-General David Bennett QC. She later returned to practice in Victoria, joining the Victorian Bar in 1980. Within 10 years she was appointed Queen's Counsel. Following her appointment as Queen's Counsel, Justice Crennan became chairperson of the Victorian Bar Council, and president of the Australian Bar Association. She was the first woman to occupy both of those roles, leading to her being described as a "trailblazer for women at the Bar".1 Justice Crennan was appointed to the Federal Court of Australia in 2003, and elevated to the High Court in 2005. She was the second woman to sit on the High Court bench, following Justice Mary Gaudron who was appointed in 1987. As well as being an exceptional jurist, her Honour was known for her commitment to considering "the human condition of those who came before her".2 As was stated by the President of the New South Wales Law Society, Jane Needham SC, Justice Crennan:3 [B]rought to this court a foundation of a sound understanding of the law, the perspective of history, and the human qualities needed for the impartial dispensation of justice according to law, all this against a significant background of social change and major shifts in public and private values. An example of this is one of her Honour's earliest High Court judgments in Harriton v Stephens,4 which dealt with an appellant born with severe disabilities caused by his mother's undiagnosed rubella. In finding against the appellant, her Honour made the following remarks:5 In the eyes of the common law of Australia all human beings are valuable in, and to, our community, irrespective of any disability or perceived imperfection. The premises upon which cases are conducted

in the parens patriae jurisdiction, which have already been mentioned, do not contradict that proposition. While Alexia Harriton's disabilities are described in the agreed statement of facts, her disabilities are only one dimension of her humanity. It involves no denial of the particular pain and suffering of those with disabilities to note that while alive, between birth and death, human beings share biological needs, social needs and intellectual needs and every human life, within its circumstances and limitations, is characterised by an enigmatic and ever-changing mixture of pain and pleasure related to such needs.

Honour made significant contributions to the development of constitutional jurisprudence; with a notable example being his judgment in South Australia v Totani8 holding that South Australian 'bikie laws' were unconstitutional for infringing the Kable principle. More recently, and significantly for this State, in Australian Electoral Commission v Johnston9 his Honour was responsible for declaring the Western Australian Senate Election void due to a loss of ballot papers by electoral officials. In his farewell sitting, Justice Hayne commented that:10 It is a rare and remarkable privilege to be a member of this court. The work is, and it should be, hard and unrelenting, but therein lies so much of the reward that the work offers. But that is not its only reward. There is also the privilege of witnessing the very finest advocates in the country, instructed by the most able solicitors, performing their indispensable parts in the pursuit of justice according to law, and there is the inestimable privilege of working with colleagues of the calibre who join me on the Bench today. There are the joys of working with the associates who come to work in chambers, and then watching their lives and careers develop as remarkably as they do when they leave chambers.

Her Honour's statements serve as a reminder of the importance of considering and recognising the impact judicial decisions may have on the wider community. Justice Crennan has been replaced on the bench by Justice Geoffrey Nettle. JUSTICE KENNETH HAYNE AC Justice Kenneth Hayne retired from the High Court on 5 June 2015, after serving for 17 years and 8 months on the Bench. Justice Hayne was appointed to the High Court in September 1997. In his long and illustrious career on the High Court Bench, Justice Hayne served with three Chief Justices and 13 other Justices, and was responsible for writing "412 judgments, 400 of them in Full Court matters", many of which other members of the court joined.6

Justice Hayne will be succeeded on the court by his wife, Justice Michelle Gordon. NOTES

Justice Hayne graduated with degrees in arts and law from the University of Melbourne. He was a Rhodes Scholar in 1969, and graduated with a Bachelor of Civil Law from Oxford University. He joined the Victorian Bar in 1971, and was appointed a Queen's Counsel in 1984. He was appointed as a judge of the Victorian Supreme Court in 1992, and was one of the foundation members of the Victorian Court of Appeal.


Ms J Needham SC, High Court of Australia, Special Sitting - Farewell to the Honourable Justice Susan Crennan, 14 November 2014.


Mr JWS Peters QC, High Court of Australia, Special Sitting - Farewell to the Honourable Justice Susan Crennan, 12 December 2014.


Refer Note 1.


(2006) 226 CLR 52.


Refer Note 3, at para 259.


Chief Justice French, Remarks to Farewell the Honourable Justice Hayne, 13 May 2015.


Chief Justice French, Remarks to Farewell the Honourable Justice Hayne, 13 May 2015.


(2010) 242 CLR 1.

Justice Hayne has been noted to have left "an enduring legacy of thoughtful exposition and development of the law in all the areas in which this court exercises jurisdiction".7 In particular, his


(2014) 251 CLR 463.


High Court of Australia, Special Sitting - Farewell to the Honourable Justice Kenneth Hayne, 15 May 2015.


" ‌ a practitioner must take all necessary steps to correct any false or misleading statement ... as soon as practicable after the practitioner becomes aware that the statement was false or misleading."

20 | Brief August 2015


Ethical and legal obligations in mediations and other negotiations Steven Standing Barrister, Francis Burt Chambers

Over the last few years there has been a steadily increasing emphasis on mediations and other forms of settlement negotiations. This article updates a paper written and presented by Steven Penglis at a Law Society seminar in 2009, and is intended as a reminder of the ethical and legal obligations imposed on practitioners when undertaking such work. This writer has recently heard it suggested that it is acceptable for a lawyer to make inaccurate or exaggerated statements during a mediation or other negotiations for settlement of a matter because both parties expect that sort of conduct to occur and neither party relies on what the other party says. However, when negotiating a settlement (including at a mediation), a legal practitioner is acting as the client's agent. Any conduct undertaken by the practitioner which is misleading or deceptive or likely to mislead or deceive could result in a contravention of legislation such as the Competition and Consumer Act (Cth) and/ or the Fair Trading Act. In that event, not only may the client be exposed to action by the other party who relied upon such conduct to conclude the settlement, but so too may the practitioner (as having been knowingly concerned in the contravention). In addition to being potentially exposed to civil action, a legal practitioner who goes too far for the client in negotiating a settlement may also find themselves exposed to a finding that such conduct constitutes unsatisfactory professional conduct, or even professional misconduct, within the meaning of the Legal Profession Act 2008 (WA). For all papers dealing with legal ethics, the starting point is an acknowledgement that a legal practitioner's paramount duty is to the court and the administration of justice. Whatever a legal practitioner does in the discharge of his or her duties to a client is, at all times, subject to that paramount duty.

LEGAL PROFESSION CONDUCT RULES AND MISLEADING AND DECEPTIVE CONDUCT The Legal Profession Conduct Rules 2010 (WA) (the Rules) have a number of provisions going to the issue of misleading and deceptive conduct. Rule 37(1) of the Rules provides that "… a practitioner must not knowingly make a false or misleading statement to an opponent in relation to a matter (including its compromise)." Rule 37(2) of the Rules deals with the situation where a false or misleading statement is not made knowingly; it provides that " … a practitioner must take all necessary steps to correct any false or misleading statement unknowingly made by the practitioner to an opponent as soon as practicable after the practitioner becomes aware that the statement was false or misleading." Accordingly, even an inadvertently false or misleading statement must be corrected as soon as it becomes known to the practitioner that the statement was false or misleading in some way. Rule 37(3) provides that " … a practitioner who does not correct an error in a statement made to the practitioner by an opponent has not by that omission made a misleading statement, unless by the practitioner's silence the opponent might reasonably infer that the practitioner is affirming the statement." Accordingly, silence can also be misleading for the purposes of the Rules, at least in circumstances where silence might reasonably be inferred to be an affirmation of an opponent's error. There are other, more general provisions in the Rules which are also relevant to the issue of misleading and deceptive conduct. Rule 6(1)(b) provides that a practitioner must " … be honest … in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client 21

… ", Rule 6(1)(d) requires a practitioner to " … avoid any compromise to the practitioner's integrity … ", and Rule 16(1) provides that a " … practitioner must not attempt to further a client's matter by unfair or dishonest means."

with impunity, engage in misleading or deceptive conduct resulting in loss to another under the cover of 'without prejudice" negotiations.

The obligations embodied in these Rules are to be kept firmly in mind when devising and implementing a negotiation strategy. If the negotiation is taking place in circumstances where the facts may not be fully known to all parties, then the scope for unfair or misleading and deceptive conduct is greater. There is a risk in assuming that conduct such as bluff, exaggeration and selective referencing of facts will always be a harmless and legitimate part of the bargaining process.

It goes without saying that a legal practitioner must at all times act honestly and ethically and not attempt to further a client's case by unfair or dishonest means. Whether a practitioner has overstepped the mark will depend on the facts of a particular case. The following cases serve to illuminate the application of the relevant principles to some different factual scenarios.

MISLEADING AND DECEPTIVE CONDUCT UNDER THE COMPETITION AND CONSUMER ACT AND FAIR TRADING ACT Schedule 2 of the Competition and Consumer Act (CCA) comprises The Australian Consumer Law (ACL). The ACL provisions are broadly mirrored in the fair trading legislation of the various states. Section 18 of the ACL contains the wellknown general prohibition of misleading and deceptive conduct - "… a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." It is beyond the scope of this article to consider section 18 in detail. There may in some cases (particularly involving a court ordered mediation) be a question as to whether representations were made 'in trade and commerce.'1 However, section 18 of the ACL is of potentially broad application. Intention to mislead or deceive is not a necessary element of a contravention. Nor does it matter that the person engaging in the conduct was not the author of the information (unless the person makes it clear that he or she is merely passing on information and is not vouching for its accuracy). Further, silence can in at least some circumstances, amount to misleading and deceptive conduct. Some lawyers overlook the possibility that what they say in negotiations might give rise to personal exposure to a misleading and deceptive conduct claim under the ACL or state fair trading legislation. There have been a number of cases where lawyers have been found to be personally liable for misleading and deceptive conduct.2 The fact that the conduct may occur during without prejudice negotiations (for example, to settle a dispute) is unlikely to matter; in Quad Consulting v David R Bleakley3, Hill J observed that " … a party cannot, 22 | Brief August 2015


Williams v Commonwealth Bank of Australia [1999] NSWCA 345 concerned the settlement of Supreme Court proceedings at a mediation conducted by Sir Laurence Street. For the purposes of the mediation the plaintiff forwarded to the defendants various unsigned statements including an unsigned statement of one Peter Neale. Along with other matters, that statement caused the defendants to conclude that they should settle the case on the most favourable terms that they could obtain. The defendants subsequently contended that the plaintiff's conduct constituted a representation that Mr Neale's statement had been approved by him as his statement and/or was not a statement that Mr Neale had rejected or refused to sign as a statement of evidence. The defendants contended that they were led to believe that the statement was one which Mr Neale would be prepared to sign and which would form the basis of the evidence he would give at any hearing of the matter. They were not aware, as was the fact, that Mr Neale had refused to sign the statement as a statement of his evidence. The New South Wales Court of Appeal noted the various authorities indicating that the courts are well aware of the need not to be over zealous in interfering with settlement processes because of the public interest in negotiations leading to agreement. The court held, however, that the process of mediation "is not properly categorised as a process of negotiation alone" [121]. The court held as follows (at [121]): Certainly the mediation was entered upon in an attempt to assist the process of negotiation which had been proceeding but, to use His Honour's expression, had reached a 'Mexican standoff'. The mediation was part of the process designed to bring about the settlement of a long-standing dispute which was the subject of pending litigation which had proved intractable to

settlement. That made it likely that, if the matter were to be settled, the settlement would only be achieved with the assistance which a mediator could give. The primary purpose of the preparation of the statements of both parties was to send them to the mediator to assist him to understand their respective cases. Copies of statements to be relied upon by each party were given to the other so that there would be a degree of common ground between them. Differences in the evidence likely to be given by witnesses called by each of the parties would be disclosed. The extent to which there was a factual dispute would be ascertained. This would enable the mediator to perceive strengths and weaknesses in the case of the parties and to point out factors which might tell for or against one party or the other which might be such as to show that there was substantial uncertainty about critical facts so that the likely outcome of the litigation, if it depended on factual findings, was uncertain. The court concluded that, in such circumstances, the provision of various statements, without any qualification, constituted a representation that the statements, although brief in form, were an accurate indication, albeit in broad outline, of the evidence which the plaintiff would be likely to have at its disposal [122]. As that representation was, to the plaintiff's knowledge, untrue insofar as it concerned the statement of Mr Neale, the Court of Appeal concluded that a misrepresentation had been made by the plaintiff with respect to Mr Neale's statement and remitted to the matter to the Trial Judge for further hearing. Although the court made no express findings with respect to the conduct of the plaintiff's lawyers, it would be a reasonable conclusion, based on the cases next discussed, that the plaintiff's legal representatives involved in the making of the misrepresentation engaged in professional misconduct. Legal Services Commissioner v Mullins [2006] LPT012 concerned a barrister in Queensland who was found guilty of professional misconduct in connection with negotiations for the compromise of a personal injuries claim. In essence, the barrister knowingly misled the defendant's insurer (and the insurer's lawyers) about his client's life expectancy. The barrister was acting for his client in regard to a motor vehicle compensation claim. The barrister's instructing solicitors supplied the defendant's insurer with a

feature report of the then 48 year old claimant's future care needs and an accountancy valuation of the costs of that care. Expressly, the report was based on an assumption that certain information and medical reports were correct. One such medical report concerned the claimant's life expectancy, and was to the effect that the claimant's life expectancy had reduced by 20% of that of a normal male of his age. During a conference between the claimant, his solicitor and the barrister, one topic of discussion was a draft schedule of damages which the barrister had prepared. During discussions the claimant informed the barrister and the instructing solicitor that he had been advised by his doctor that he had cancer spots on his lungs and in other places throughout his body, the cancer was described as 'secondary cancer', the doctor had been unable to find the 'primary cancer' and that he was to receive chemotherapy treatment. On hearing this, the barrister told the claimant that it was his preliminary view that these facts needed to be disclosed to the insurer before the mediation and that the mediation was likely to be adjourned so that the insurer could investigate the issues. The claimant instructed the barrister and his instructing solicitor that he did not wish to reveal these facts unless he was legally obliged to do so and that he wished the mediation to proceed because he wanted the claim resolved. The barrister subsequently conducted some research and spoke to Senior Counsel about his situation. By the time of the mediation he had resiled from his initial impression that these facts should be disclosed. Instead, he came to the view that as long as the claimant's lawyers did not positively mislead the insurer and his lawyers about the claimant's life expectancy, they would not be violating any professional ethical rules. Accordingly, the mediation conference proceeded. At the conference the barrister tabled a document headed 'Plaintiff's Outline of Argument at Mediation' which included reference to a figure for future economic loss recorded as having been arrived at "as per the Evidex Report, and reduced for contingencies by 20%, including the prospect that the plaintiff may not have worked to age 65". The claim was settled at the mediation. The insurer would not have settled had the fact of the claimant's cancer been disclosed. Before the Legal Practice Tribunal of Queensland, the barrister accepted that,

at the mediation, he thought that the claimant's longevity was at least "likely to be further reduced ‌ by the cancer facts". In this regard, the Tribunal held "in other words, (the barrister) then believed, on substantial grounds, that the state of life expectancy was critical to important parts of the claim was, very probably, no longer sound. But he did not disclaim the assumption. Instead, in effect, he asked (the opposing barrister) to have regard to the Evidex Report on which the future economic loss claim was based". Senior Counsel for the barrister submitted that the barrister's conduct in continuing to rely on the Evidex report without disclosing 'the cancer facts' was not tantamount to some representation that he was not aware of facts that could deleteriously impact on longevity. He categorised the compromised negotiations as 'commercial', conducted on a tacit, common assumption that, in deciding whether to settle, the parties would rely exclusively on their own resources and information. There would not, it was submitted, have been a reasonable expectation that influential information communicated during the negotiations would not knowingly be false. Not surprisingly, such submissions were rejected by the Tribunal, holding that Queensland barristers must not approach mediations "on the basis that they were entering an honesty-free zone" [29]. The Tribunal held that by continuing to refer to and rely upon the Evidex report as information supporting the claimant's claim after learning of 'the cancer facts' and recognising their significance to the validity of the life expectancy assumption, the barrister intentionally deceived the insurer and its legal representatives about the accuracy of the assumption. The Tribunal held he did so intending that they would be influenced by the discredited assumption to compromise the claim, which is what happened. The Tribunal described such conduct as a "fraudulent deception ‌ (which) involved such a substantial departure from the standard of conduct to be expected of a legal practitioners of good repute and competency as to constitute professional misconduct" [31]. The barrister was reprimanded, fined $20,000 and ordered to pay the Legal Services Commissioner's taxed costs. The duties of a legal practitioner in relation to settlement negotiations were considered in this state by the State Administrative Tribunal in Legal Practitioner's Complaints Committee and Fleming [2006] WASAT 352. The case involved a legal practitioner who

acted for a client whose husband had not executed a will in accordance with the formalities required by the Wills Act 1970 (WA); he had signed a facsimile of a draft will and his signature had not been witnessed. The practitioner considered that the informal document would be accepted in probate proceedings as the will of the deceased husband, notwithstanding its informality. If it was not accepted as the deceased's will, the practitioner knew that the deceased's siblings had an entitlement to share in the estate with the practitioner's client. The client was concerned that, if a sibling knew that her husband had not left a formally executed will, they might challenge the grant of probate. She therefore instructed the practitioner not to provide a copy of the will to the siblings. In the course of negotiations between the wife of the deceased and the deceased's siblings, the practitioner sought a covenant by the siblings not to challenge the deceased husband's will nor make any claim against his estate. In the correspondence he referred to the informal document as the deceased husband's 'will'. The disputes were settled and the siblings signed a deed of settlement containing a covenant not to make claims on the late husband's estate. The siblings subsequently learned that no formal will had been executed. They immediately commenced proceedings to set aside the deed of settlement on the basis they had been misled as to the existence of a will that was valid on its face and made a complaint to the Legal Practitioner's Complaints Committee (LPCC) against the practitioner. Before the State Administrative Tribunal, the LPCC contended that the practitioner had contravened rule 3.1 of the then applicable Professional Conduct Rules by attempting to further his client's case by unfair or dishonest means. In upholding the complaint, the State Administrative Tribunal held as follows [66]: This is not a case where the opposing party acted under a misapprehension to which the practitioner had not contributed, but which he subsequently took advantage of. Neither is it a case where the subject of the validity of the informal will was not affirmatively raised by the practitioner. Rather, the practitioner, on instructions, was the moving force ‌ in the other side's misconception, pursued by the practitioner to obtain a material advantage for the practitioner's client. 23

practitioner, in some senses, gives up his 'adversary' role in favour of a 'negotiating' role. In that cooperative role it is important that practitioners may be relied upon by the other party and his advisers to act honestly and fairly in seeking a reasonable resolution of the dispute. If everything a practitioner says in negotiations must be checked and verified, many of the benefits and efficiencies of a settlement will be lost or compromised.

"Dishonest or sharp practice by the practitioner to secure an advantage for his client might go undetected ... A level of trust between the advisers involved is therefore essential." The Tribunal held that if having properly advised his client the client's instructions remained not to disclose the informal will "he could not conduct the negotiations in such a way as to suggest that a formal will existed or procured the other side's consent to probate upon a false basis" [68]. The Tribunal concluded that the practitioner had contravened the then professional conduct rules as having been both: ‌ dishonest and unfair, giving those terms the ordinary dictionary meaning and looking at the position objectively. We note also, although such was not maintained by the committee and does not form part of our decision, such conduct was in breach of rule 18, being conduct intended to induce and foster a mistake in a fellow practitioner. [67] The Tribunal then took the opportunity to make some general, but very pertinent, observations with respect to the obligations of legal practitioners in the context of settlements. The Tribunal noted that Senior Counsel for the LPCC disclaimed any obligation on the practitioner to positively inform his opponent of relevant matters of which he was aware. The Tribunal noted that this would seem to reflect the legal position in relation to negotiations generally. The Tribunal noted, however, that in a case such as that before it: The conduct of a practitioner might be regarded as misleading because an affirmative statement is made in circumstances which required 24 | Brief August 2015

some qualification. In this context, misleading and unprofessional conduct might also be made out where a practitioner states a partial truth, or in the context of making statements of fact, omits relevant information. It might extend to statements which are literally true but where a qualification is called for, or where a statement initially true becomes false in the course of the negotiations. And in some circumstances the duty to not bring the legal profession into disrepute and fairness to an opponent may require that the practitioner draw attention to a particular matter, even where the opponent's misapprehension is not induced by that practitioner. [73] The Tribunal continued (at [74] to [77]) as follows: The public interest is served by practitioners encouraging an early settlement of their client's dispute. Indeed, practitioners are under a duty to seek such a settlement (r 5.7). But, just as in litigation a practitioner may not use dishonest or unfair means or tactics to hinder his opponent in the conduct of his case (D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [McHugh J at 111]), so he ought not do so in other areas of practice. Arguably perhaps, for a number of reasons, the proscription against such conduct is more important in settlement negotiations. In seeking to settle a matter pursuant to his client's instructions or the procedures of the court, the

Honesty, fairness and integrity are also of importance in such negotiations because they are conducted outside the court and are beyond the control which a judge hearing the matter might otherwise exercise over the practitioners involved. Outside the trial process, there is no impartial adjudicator to "find the truth" between the opposing assertions. Dishonest or sharp practice by the practitioner to secure an advantage for his client might go undetected for some considerable time or for all time. A level of trust between the advisers involved is therefore essential. The fact that, in the normal course, a practitioner's improper conduct might be exposed, and the harm avoided by a "due diligence" undertaken by his opponent, does not alter the impropriety in any respect. In the same way that practitioners owe duties to the court, such as drawing unfavourable authorities to the attention of the judge, irrespective of the work (or neglect) of their opponents, so in settlement negotiations or other dealings with their opponent, or indeed (and particularly) with a litigant in person, a practitioner must be perfectly candid. It was no answer to the complaint of unprofessional conduct by misleading the court in Kyle v Legal Practitioners'Complaints Committee (1999) 21 WAR 56 that the practitioner acted on the expectation that the true position would be revealed in the course of the case. The implications of the decisions in Mullins and Fleming are not always fully appreciated. For example, this writer has recently heard it suggested that a statement by a lawyer along the lines that "this is my client's first and final offer" is inherently unobjectionable (even if a further offer is intended) because such a statement is regarded as mere puffery or posturing which is never taken seriously. It is apparent from the decisions in Mullins and Fleming that it would be unwise to proceed on such a basis. Of course, it is

feature perfectly in order for a lawyer to say that an offer is his or her client's first and 'final' offer, if that is in fact the case. However, if the client has not decided whether the first offer would be final, or has already decided that there is further room to negotiate if the first offer is rejected, then the lawyer's description of the first offer as 'final' is misleading and deceptive. Any agreement based on acceptance of the first offer would be liable to be overturned, the lawyer is likely to have breached his or her professional obligations and would be exposed to a damages claim, possibly calculated by reference to the difference between the earlier offer and the client's true final position. An example where a practitioner was found to have acted in contravention of the relevant professional conduct rules for taking advantage of another practitioner's mistake which the first practitioner did not induce is the decision of the Full Court of the Federal Court of Australia in Chamberlain v Law Society of Australian Capital Territory (1993) 118 ALR 53. In that case, the appellant was a barrister and solicitor of the Supreme Court of the Australian Capital Territory. He was assessed for income tax for the years 1975 to 1983 in the sum of $255,579.20. The appellant lodged an objection to the assessment with the Taxation Board of Review. The Deputy Commissioner of Taxation commenced proceedings against the appellant in the ACT Supreme Court claiming, in error, only $25,557.92. Realising the Commissioner's mistake, the appellant arranged, through his employee, to have terms of settlement, and a consent judgment against himself, signed and filed by the Commissioner's officers and he paid the amount of the judgment. The appellant also withdrew his objections to the assessment. The Commissioner subsequently failed in 2 separate sets of proceedings to obtain orders for the payment by the appellant of the balance of income tax owed, in the first proceedings because the principal of res judicata and in the second proceedings because the Commissioner's impeachment of the consent judgment was a matter which should have been raised in the first proceedings in accordance with the principal of Port of Melbourne Authority v Anshun Pty Ltd. The Law Society of Australian Capital Territory then commenced proceedings against the appellant for professional misconduct. The ACT Supreme Court found the appellant was guilty of such misconduct in procuring the Commissioner's officers to sign the terms of settlement and procuring the judgment for $25,557.92. The ACT Supreme Court ordered the appellant be suspended from practice for six months.

In dismissing the appeal Black CJ, Lockhart, Whitlam and Beazley JJ, Jenkinson J dissenting, held that the effect of the ACT equivalent of rule 23 revealed (at pp60/61 per Black CJ): … an approach that is generally discouraging of an advantage being taken of an opponent's procedural mistake, and in some circumstances there is a positive obligation to draw the attention of an opponent to a mistake, except where to do so might prejudice the practitioner's own client. Thus a balance is sought to be achieved between a desire to avoid unnecessary expense and delay occasioned by mistakes or oversights on the one hand and interests of a practitioner's client on the other. Paragraph 20.2 does not therefore rule out that, in appropriate cases, advantage may properly be taken of a procedural mistake or oversight that may involve the other practitioner's client in unnecessary expense or delay, but it does speak against a practitioner doing or saying anything to induce or foster a mistake that may have those consequences, and it speaks without qualification against that conduct. In a system of adversary litigation, in which it is accepted that advantage may be taken of an opponent's mistake in some circumstances, it is easy to see how notions of fairness and common decency would point to the drawing of the line where it is in factual by paragraph 20.2. Whilst in some circumstances it may be in order to take advantage of the mistake, in other circumstances the intention of the practitioner should be drawn to a mistake or oversight. But, in any event, where there is a mistake that may involve the other practitioner's client in unnecessary expense or delay a practitioner should not do or say anything to induce or foster that mistake. To induce or foster such a mistake would be detrimental to a relationship characterised by courtesy and fairness that ought to exist between members of the legal profession. A relationship of that nature … has its justification not merely social and ethical mores; it has an additional justification referable to the public interest, in that courtesy and fairness contribute materially to the effective and expeditious performance of legal work … Another vice of conduct that induces or fosters a mistake is that it may easily involve, or in practical terms be close to, misrepresentation. In this way such conduct is, of its

nature, liable to be in tension with the overriding duty of honesty that practitioners owe to the courts, their clients and to their fellow practitioners. It was submitted on behalf of the appellant that it was only in the most attenuated sense that the appellant 'induced' the Deputy Commissioner to execute the terms of settlement or 'procured' the Deputy Commissioner to enter judgement. The court accepted that the appellant did not cause the Deputy Commissioner's initial error and did not do anything to force the Deputy Commissioner to sign the terms of settlement or to agree to judgment being entered by consent for the amount incorrectly claimed. The court held, however, that the only reason the Deputy Commissioner's mistake: … turned out to be fatal (was) as a consequence of the appellant having put into operation a plan that was designed to get him to do what he in fact did. Whether or not, in a technical sense, the appellant induced the second and fatal mistake, he fostered the first mistake by his own deliberate actions created a set of circumstances that brought about the second mistake. … The practical effect, and the object, of what was done was to use the Deputy Commissioner's original mistake as an element in a trap into which, if the original mistake was fostered, the Deputy Commissioner might fall. (page 61) Whilst the court upheld the Supreme Court's finding of professional misconduct, it set aside the penalty of six months suspension and substituted an order that the appellant be reprimanded. CONDUCT WITH RESPECT TO YOUR OWN CLIENT Ethics in negotiating settlements does not only focus on the practitioner's conduct as regards opposing parties, but also governs the practitioner's conduct with respect to the practitioner's own client. In Studert v Boettcher [2000] NSWCA 263, in the context of a negligence action, the New South Wales Court of Appeal had to consider the general obligations upon a legal practitioner when acting for a client in settlement negotiations. The Court of Appeal held that a practitioner's advice to a client to make or reject an available compromise is commonly not concerned only with the client's rights, obligations and hopes. Other matters which the court identified as being matters usually considered included the following: 25

the difficulty in predicting the outcome of litigation with a high degree of confidence;

disagreements on the law;

whether evidence will be accepted at trial;

the delay in obtaining finality (including appeals from any favourable judgment);

factors personal to a client and inequality between the client and other parties to the dispute;

the stress and expense of litigation;

the exposure to pay the costs of the other party if unsuccessful; and

time spent by parties and witnesses which cannot otherwise be devoted to productive activities.

The court held that although it is in the public interest for disputes to be compromised whenever practical, a legal practitioner is not entitled to coerce a client into a compromise even if the compromise is objectively in the client's best interests:

the statement or otherwise adopting the statement. However, the mere fact that a lawyer has been willing to make a claim or statement on behalf of a client arguably brings with it the inference that the claim has substance. This means that lawyers who pursue exaggerated, inaccurate or unfounded claims for clients risk being in breach of their professional and legal obligations regardless of the fact that they are merely reflecting their instructions.4 For this reason, it is suggested that, whenever a lawyer is asked to make a statement or pursue a claim on behalf of a client (including in the context of settlement negotiations) they should first satisfy themselves that there is some foundation for the statement or claim, as well as using appropriate qualifying language in describing the statement or claim.

... broadly, and not exhaustively, a legal practitioner should assist a client to make an informed and free choice between compromise and litigation and, for that purpose, to assist what is in his or her own best interests. Respective advantages and disadvantages of the courses which are open should be explained. The lawyer is entitled, and if requested by the client obliged, to give his or her opinion and to explain the basis of that opinion in terms which the client can understand. The lawyer is also entitled to seek to persuade, but not to coerce, the client to accept and act on that opinion in the client's interests. The advice given and any attempted persuasion undertaken by the lawyer must be devoid of self-interest. Further, when the client alone must bear the consequences, he or she is entitled to make a final decision. ACTING ON INSTRUCTIONS It is always prudent for a lawyer to make it clear whenever he or she is merely passing on instructions from client, and to avoid saying anything that might be taken as vouching for the accuracy of 26 | Brief August 2015

Correct any statement which you have made or which, to your knowledge, your client has made, including any statement prefaced on the basis that it was a statement of your instructions, should you subsequently learn that the statement was when made, or has subsequently become, false or otherwise requires qualification so as not to be misleading;

Do not say or do anything that may reasonably induce the other side to proceed on the basis of a fact or legal proposition which you know to be incorrect;

Whilst it is generally acceptable in the context of adversarial litigation (including settlement) to take advantage of an opponent's mistake:-


It is not acceptable where you or your client have caused the mistake or where you do anything which constitutes an affirmation of the fact or legal proposition in respect of which the opponent is mistaken;

If the mistake is palpable, taking advantage of it may be so unfair as to constitute unprofessional conduct;

With the above in mind, some practical guidelines for lawyers can be proposed – •

"the client, not the lawyer, is entitled to decide whether to compromise or to litigate" [74]. The court identified a legal practitioner's duty to the client with respect to compromise in the following terms (at [75]):

Do not (in any context) make a statement which you know to be untrue or which might be false or misleading. This includes statements that are exaggerated, inaccurate or unfounded, amount to a half truth or which otherwise omit information which should properly be disclosed;

If a statement requires qualification, clearly set out the qualification;

If you are merely passing on instructions from your client, make that clear. Do not say anything that indicates you are personally adopting or vouching for the accuracy of the information. Regardless of that, you should also satisfy yourself that there is some foundation for the information;

Do not say 'in our view' or 'in our opinion' unless that view or opinion is honestly held. If you do not hold the view or opinion, the most you should say (subject to the above observations about unfounded claims) is something along the lines that 'our client contends' for the position being taken; Do not make an absolute statement about a legal proposition or claim unless the proposition or claim is clear beyond doubt. Instead, qualify your statement by saying 'in our opinion' or 'in our view', 'it is arguable that', 'our client contends that' or some other appropriate qualification (and provided, as noted above, you actually do hold that view or opinion and there is some foundation for the opinion or statement);

Whilst it is appropriate to seek to persuade your own client to accept your advice regarding settlement, the advice given and any attempted persuasion undertaken by the lawyer must be devoid of coercion or selfinterest.

Practitioners are generally well aware of their obligations of honesty and integrity, even where they are under pressure to advance their client's case. However, it is an error to think that these obligations are somehow relaxed in the case of settlement negotiations. Indeed, as is apparent from the examples discussed above, the obligations of honesty and integrity are of particular importance in the context of such negotiations. NOTES 1.

Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43 at[411] where Ward J held that ' … I do not consider that statements made in a without prejudice meeting (or without prejudice correspondence) entered into between the parties (not as part of any compulsory or courtordered mediation process) for the purposes of trying to resolve a dispute arising out of or of critical relevance to the business functions of a corporation, are not made in the course of trade of commerce for the purposes of the Trade Practices/Fair Trading legislation.'


See for example Argy v Blunts [1990] 26 FCR 112, ACCC v Sampson [2011] FCA 1165.


Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd [1990] FCA 455, and see also Pihiga Pty Ltd v Roche [2011] FCA 240, and Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43.


See G E Dal Pont, 'Being Demanding', Brief, vol. 41 Number 10 November 2014.

Launch of the Society's Reconciliation Action Plan 1.







This month saw the launch of the Society's Reconciliation Action Plan (RAP). The event at the Old Court House Law Museum was opened by Reverend Sealin Garlett. Reverend Garlett provided a Welcome to Country, before Society President, Matthew Keogh and Krista McMeeken, Convenor of the Society's Aboriginal Lawyers Committee, outlined the origins and vision of the Society's RAP.

The aim of a RAP is to build respectful relationships and create sustainable opportunities for the Aboriginal and Torres Strait Islander community. RAPs have been established by a wide range of community, corporate and government organisations. The Society joins the Law Council of Australia and its constituent bodies in New South Wales, Victoria, South Australia and the Northern Territory in developing a RAP.

Pete Dawson, Youth Campaign Coordinator for Recognise, provided an update on the campaign for constitutional recognition of Aboriginal and Torres Strait Islander peoples. The event formalities were concluded with a song from Dr Richard Walley OAM, one of Australia's leading Aboriginal performers and writers, before attendees made their way to the foyer of the Supreme Court building for a reception.

The Society's RAP Working Group has met monthly or bi-monthly over the past year to work on the RAP. Throughout this process, the RAP Working Group has consulted with the Society's Aboriginal Lawyers Committee for Aboriginal stakeholder engagement, a key aspect of developing a RAP. The Aboriginal Lawyers Committee has reviewed and made comments on drafts of the RAP as it was being developed. Reconciliation Australia has also provided guidance and assistance throughout the process. The Society's RAP has achieved endorsement

The RAP concept has been developed by Reconciliation Australia, a nongovernment, not-for-profit foundation.

by, and registration with, Reconciliation Australia. The RAP outlines the actions the Society will undertake to achieve its vision of a profession where Aboriginal and Torres Strait Islander law students, graduates and practitioners feel valued and respected. The RAP will also promote a community in which members understand and show respect for Aboriginal and Torres Strait Islander cultures, through building relationships and laying the foundation for increased opportunities for Aboriginal and Torres Strait Islander peoples. A copy of the Society's RAP can be viewed on the Society's website or at the Reconciliation Australia website, where you can also find out more about how your firm or organisation can establish its own RAP.


JUNE 2015 – JUNE 2016



Attendees at the Society's Launch of the Reconciliation Action Plan.



The Hon Justice Antony Siopis, Federal Court of Australia, and Raelene Webb QC, President, National Native Title Tribunal.


Adam Ebell; Craig Slater; and Greg McIntyre SC.


Dr Richard Walley OAM.


Mel Thomas and Joanna Blackley.


Dr Richard Walley OAM; Matthew Keogh, President of the Society; Reverend Sealin Garlett; The Honourable Wayne Martin AC, Chief Justice of Western Australia; Krista McMeeken, Convenor of the Society's Aboriginal Lawyers Committee; and Hon Peter Collier; Minister for Education; Aboriginal Affairs; Electoral Affairs. Reverend Sealin Garlett.

28 | Brief August 2015


2015 Mock Trial Competition Seminar Adriana Costanzo Third year Murdoch Law/Criminology student

On Saturday the 6th of June Murdoch University welcomed 43 high school students and their teachers from across Perth to attend the inaugural Mock Trial Competition Seminar. This seminar was a combined initiative of the Law Society of Western Australia and Murdoch Law School. It was designed for high school students from years ten to twelve who are participating in the Law Society's Mock Trial Competition. The focus of the day was enhancing the students' advocacy skills and their understanding of the workings of a trial. The Seminar consisted of a lecture-style presentation, a morning tea where the students had the opportunity to speak with Murdoch law students and a handson workshop. Former Murdoch student, Aoning Li, started the day with a presentation in the Herbert Smith Freehills Lecture Theatre (Murdoch's very own moot court). Despite being a busy solicitor at the Fremantle Community Legal Centre, Aoning volunteered to offer his advice. He gave the students an overview of the purpose of a trial, court procedure and court etiquette. He also covered some parts of a trial which many students find tricky, such as how to avoid leading questions in examination in chief and how to identify hearsay evidence. After morning tea, the students were split into small groups for a workshop. Each workshop was lead by members of Murdoch's Moot Court Bench (MCB). MCB are a group of students who are focused on higher-level advocacy training and legal research and writing skills. Each workshop group conducted its own mock trial with a new problem question. MCB students coached their groups and gave them advice on the intricacies of each element of a trial. After the trials were conducted, each student was provided with feedback. All MCB members were extremely impressed with the high level of advocacy skills displayed within their groups. This is a testament to the quality of the Mock Trial Competition and the hard work that students are putting into it. Evidently, it is a fantastic

opportunity for students to develop their advocacy skills and get a taste of the legal world. Many students expressed that it gave them a better insight as to whether they would like to pursue a career in the law. Murdoch Law School has a strong, ongoing relationship with the Mock Trial Competition. Each year, Murdoch offers a scholarship to the 'Most Outstanding Mock Trial Student'. This scholarship includes a position on one of Murdoch's national or international mooting teams and covers the recipient's airfares and accommodation for the moot. Further, as a member of a mooting team, they will be exposed to extensive legal training in the areas of research, writing and advocacy. Murdoch Law School and the Law Society thank all students and teachers who attended the seminar and

particularly thank Aoning Li, Michelle Barron, Paige Standen-Burrows and the members of MCB who volunteered their time. Without their hard work and participation, this event would not have been possible. Murdoch Law School and the Law Society look forward to planning more seminars in the future and to continue supporting students in the competition. The Society also wishes to thank the Public Purposes Trust and the Department of the Attorney General for their support. 29

'Conferral of experts' and 'concurrent evidence' – what do experts think of it? Bertus de Villiers1

INTRODUCTION Australia has during the past two decades experienced major changes in the way courts and tribunals deal with expert evidence. The predominant adversarial approach whereby experts are called one by one to give evidence is, in many instances, being replaced by experts being called to give evidence concurrently. Often experts also meet prior to a hearing to confer ('conclave' as it is called in some jurisdictions) pursuant to directives of a court or tribunal. Two new concepts, 'conferral of experts' and 'concurrent expert evidence', have become an integral part of the legal vocabulary, theory and practice of Australia. Internationally, Australia is credited for the leading role it has played in the development of these new procedures to deal with competing expert evidence. In the United Kingdom, the USA, Canada and New Zealand the contemporary approach taken to expert evidence has been influenced by our experiences. Much has been written about the theory and practice of expert conferral and concurrent expert evidence and the potential benefits it may bring to parties and to judges who are called upon to assess opinions about complex factual scenarios,2 but little is known about how experts themselves view and experience these processes. The emphasis thus far, generally speaking, in literature has been on the pros and cons of expert conferral and concurrent expert evidence from the perspective of courts and tribunals, for example how much time is saved; how issues are better identified; and the emphasis on the role of an expert as witness of the court rather than an advocate to the client.3 Empirical research about the perspectives of experts of these processes is scant. This article attempts to give some insight into how expert witnesses, who have appeared in the State Administrative Tribunal (SAT) during the past 10 years, assess expert conferral and concurrent expert evidence as conducted by SAT. It is hoped that these research findings 30 | Brief August 2015

will assist experts, the legal profession, and courts and tribunals to identify strengths and weaknesses in these new techniques and to engage in ongoing improvement and refinement of our legal system. BACKGROUND TO THE RESEARCH SAT is one of many jurisdictions in Australia that has been experimenting extensively with conferral of expert witnesses and concurrent expert evidence.4 The principal objective for using these two techniques in SAT is to enable experts to give their evidence in a collegiate fashion as expert witnesses of the Tribunal, rather than an adversarial manner as advocates for a party. Ultimately the aim is to create a framework within which expert evidence can be more effectively assessed and thereby improve SAT's ability to dispense justice. SAT accepts that reasonable minds may differ when assessing complex factual situations, but the Tribunal processes are principally designed to establish a basis from which assumptions and reasons for the different opinions of experts can be clearly articulated by those holding the opinions. Secondary objectives are to identify the real issues in dispute as soon as possible; to save costs by reducing unnecessary examination; to encourage speedy outcomes; to make legal processes more accessible so that litigants in person can conduct their own proceedings effectively; to enable the presiding officer to be more effectively involved in the examination of experts; and to emphasise the primary role of the expert as a witness of the Tribunal and not as an advocate for a party.5 SAT attempts to facilitate the process of expert evidence to ensure that all relevant material and information are disclosed; that experts meet to clarify issues; that time and costs are saved; and that relevant questions are posed during examination.6 In the decade since its inception in 2005,

SAT has had many experts give evidence in its various proceedings. Sixty three expert witnesses who have regularly participated in conferral of experts and concurrent expert evidence in SAT were nominated by members of SAT as potential interviewees for the research.7 In 2015, SAT invited these experts8 (interviewees) to participate in a series of small group interviews to ascertain their views, experiences and opinions about expert conferral and concurrent evidence processes of SAT.9 The interviewees were encouraged to express their views frankly and openly; to exchange views and opinions with each other; to comment on their respective experiences and to make recommendations. Experts from various disciplines were mixed so as to as encourage interdisciplinary exchanges of views. The interviewees were assured that their individual views and opinions would not be disclosed even though there may, from time to time, be a direct reference by way of quotation of an opinion expressed by an expert. The identity of experts who participated in the interviews is therefore public knowledge, but not so the views expressed by them. This article provides insight into their responses. CONFERRAL OF EXPERTS AND CONCURRENT EXPERT EVIDENCE Much has been published about conferral of experts and concurrent expert evidence, but for purposes of this article the concepts entail the following: Conferral of experts generally refers to a court or tribunal directed process whereby experts of the same or related disciplines meet prior to a hearing in order to draw up a report in which they set out the areas on which they agree; the areas where they disagree and the reasons for the disagreement.10 The conferral may be chaired by a person appointed by the court or tribunal, or experts may determine their own process for conferral and meet pursuant to their own arrangements. Parties and legal representatives do not attend the conferral. The report, developed during the conferral and signed by the experts,

is handed to the court or tribunal and to the parties prior to the hearing. The report and particularly the issues identified therein, often becomes the basis upon which evidence in the hearing is dealt with. Concurrent expert evidence11 generally refers to a process where, during a hearing, the court or tribunal will direct expert witnesses to give their evidence at the same time. Experts of the same or related disciplines are therefore sworn/ affirmed at the same time or reminded of their obligation to give truthful evidence; they sit together in the witness table; they respond to the same questions; they may comment on each other's evidence; and they may put questions to one another.12 In SAT the members often play an active role during concurrent evidence in examination of the experts and often commences the examination. In SAT the efficiency of expert examination is said to be enhanced as a result of the composition of the Tribunal, which may include an expert in the relevant field (e.g. an engineer, planner or medical professional),13 and by the objectives of SAT to "make appropriate use of the knowledge and experience of Tribunal members" for the speedy resolution of claims.14 Although expert conferral and concurrent expert evidence are not a panacea or easy way out for dealing with complex and conflicting expert evidence, the following are examples of benefits that are said to arise from these processes

that have been identified in literature: •

Save time and costs;

Facilitate identification of real issues in dispute;

Emphasise the role of expert as witness of SAT rather than being an advocate for a client; and

Improve the quality of questioning and utilise the knowledge of the Tribunal

OPINIONS EXPRESSED BY THE EXPERTS The responses given by the experts were recorded in qualitative and quantitative format. The quantitative data is reflected in the graphs below, while the qualitative responses form part of the assessment of how the processes works; what improvements can be made; and what the strengths and weaknesses are from an operational perspective. In this article the data collected will be used to reflect on the purported 'benefits' listed above to establish if, from the view of experts, those benefits do indeed materialise in practice:15 Saving time and costs Experts were for all practical purposes unanimous that expert conferral and concurrent expert evidence save substantial time, reduce costs, and enable parties to identify the real issues in dispute more effectively.

Several experts explained how, if the traditional method of expert examination had been followed, proceedings would have been drawn-out and that the benefit of having experts immediately comment on each other's evidence would have been lost. A senior legal practitioner who participated in the interviews said that in his estimate, SAT consistently disposes of complex matters in at least 50% of the time that would be required in the Supreme Court to deal with a matter of similar complexity. This time and cost saving, he said, were the result of SAT's active utilisation of conferral of experts and concurrent evidence and the 'collegiate culture' that SAT has managed to create. Several interviewees commented about how they see expert conferral as the 'ideal opportunity' to clarify and explain their opinion; to better understand the opinion of the other expert; and to reduce the length of the expert reports to a brief joint report. As a result of the conferral, by far the majority of interviewees said they are much better prepared for the issues that are canvassed during the hearing and those issues are also better defined. Many interviewees were of the view that expert conferral prior to a hearing should be 'mandatory' since the conferral (a) could contribute to a mediated outcome or (b) assist for issues to reduced or better defined. Both outcomes are in the interest of the public since it saves time and cost. 31

Facilitate identification of real issues in dispute Question

Interviewees generally agreed that expert conferral, in particular, enables the experts to better identify the real issues in dispute. By doing so, the hearing only needs to focus on those core issues and not on peripheral issues. Interviewees acknowledged that the difference between a mediation and an expert conferral is that in conferral there is no pressure on experts to agree. Where a mediation 'fails' if no agreement is reached, a conferral process is 'successful' even if it means that the experts only set out the issues in dispute and the reasons for the dispute with greater clarity.

Overall, in your view, do the techniques of expert conferral and concurrent expert evidence (a) reduce time required for a hearing; (b) add to time required for a hearing; or (c) make no difference in time required for a hearing:






There was general agreement that joint reports produced at the conclusion of a conferral are generally much more focused than the original witness statements and expert reports. Several interviewees commented about the benefit of using the conferral to clarify and explain an opinion; to better understand the opinion of the other expert; and to reduce the length of the expert reports to a brief joint report. One interviewee


Question In your experience is Expert Conferral 'not helpful'; 'helpful;' or 'extremely helpful' in regard to the following: 19% 28%

To identify areas where additional evidence or research is required

53% 9%

To settle the entire proceeding

23% 68% 35%

To reduce issues in disputes

55% 10%

To identify areas of agreement between experts 0%

53% 43% 4% 10% 20% 30% 40% 50% 60% 70% 80% Extremely helpful

Emphasise the role of expert as witness of SAT and not advocate for a client Although experts are consistently reminded in courts and tribunals that they are intended to be a "witness of the court" and not an advocate of their client, in practice this often appears 32 | Brief August 2015


Not helpful

to be lip-service when the opinions of the expert habitually coincide with the interests of the client that retains them. This sentiment was expressed in a UK law review report as follows: Today they (expert witnesses) are in practice hired guns. There is a new breed of litigation hangers-on, whose

who participated in an expert conferral summed it up as follows: "Our joint report said in five pages what the two of us tried to say in 50 pages each. We saved the parties reading two dissertations and days of hearing." A potential risk that requires ongoing management by a court or tribunal is that experts from various fields may, during a conferral or even during concurrent evidence, find themselves expressing an opinion on a matter that falls outside their field of expertise. The same can however also occur in the traditional process of examination of experts. Interviewees were generally of the view that the risk of experts 'straying' into other fields is minimised in conferral and concurrent processes because fellow-experts would remind an expert who 'strays' that he or she is venturing outside their area of expertise. The 'peer review' atmosphere of conferral and concurrent processes therefore reduces the risk of an expert 'drifting' into a field where he or she holds little or no expertise.16 None of the interviewees expressed a serious concern about the management of overlapping expertise by SAT.

main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients.17 Interviewees emphasised, however, that reasonable minds may disagree and that within the limits of ethics, they can give a credible opinion that generally falls within the interest of their client. They also emphasised that scientific opinion is not a "black and white affair" but rather contains shades of grey and that only a fraction of disputes reach SAT. An expert cannot always anticipate which matters may escalate to SAT and each expert report cannot be approached as if it may lead to major litigation. It may therefore sometimes seem to SAT as if an expert is part of a 'team', but at the same time it must be acknowledged that experts are bound by a professional code; by their own integrity; and credibility. Several interviewees expressed frustration at the legal profession which, according to the interviewees, assume that an expert takes on 'any client' in similar vein as a lawyer accepts a brief. Experts are, however, not under the same code of conduct as lawyers and can therefore readily refuse clients or refuse to submit a report that is not consistent with the expert's scientific opinion. Interviewees consistently highlighted that they are not under any obligation to 'represent' the interest

of a client in a manner that a lawyer is obligated to represent a client. Several interviewees acknowledged, however, that the reality of commerce is such that an expert may for commercial reasons accept a retainer to express an opinion that may test the limits of ethical conduct. SAT emphasises in its documentation and directions that the purpose of expert conferral is not for experts to engage in 'mediation'.18 Experts are not expected to compromise for the sake of settlement, but rather to exchange professional views and opinions in an effort to clearly indicate what the areas are that they agree on, the areas on which they don't agree and the reasons for the disagreement. The mediation and conferral processes are substantially different. It appears, however, from the interviews that many interviewees confuse the process of mediation and expert conferral and that a substantial number of experts believe the content of the discussion during expert conferral to be akin to mediation (and thus without prejudice) and it is only the final report that is public.19

interviewees were of the view that the ethics of their respective professions and the peer-review that expert conferral and concurrent expert evidence offer, reduces the risk of an expert being an advocate for a party because any opinion can be challenged immediately by a fellow expert.

Question Do you find it easy or difficult to separate the role of expert versus advocate: Easy


34% 66%

Improve quality of questioning and utilising knowledge of Tribunal Question Do you view the discussions that take place during an expert conferral 'without prejudice' or 'on the record'? Without prejudice

On the record



In general, interviewees said they had no difficulty to explain to their clients that the role of the expert as a 'witness of the court' means that the expert is not an advocate for the client.20 Some interviewees acknowledged that in cases where the expert had been involved in a matter from the very early stages, for example in a planning application, it may be more difficult to separate the role of an independent expert from the role of an expert that is "part of the team". In general, however,

Interviewees were unanimous that expert conferral and concurrent expert evidence have improved the quality of questioning in SAT and facilitated the use of the knowledge of members of the Tribunal.21 A consistent response was that the knowledge of, and 'hands on' involvement of, SAT members during expert conferral (when a Member chairs the conferral) and during concurrent expert evidence (when the Tribunal questions experts) have contributed to questions being more specific; detail being better clarified; and experts having a sense that the merit of their opinion is being 'heard'. A senior legal practitioner who participated in the interviews observed that the processes of expert conferral and concurrent expert evidence were "almost unequivocally a good thing" since they save so much time; allow the real issues to be discussed; and help better decisions to be made. Another interviewee who appears in multiple jurisdictions said that "SAT is generally a better informed proceeding" because of several factors such as the practices of SAT; the knowledge of the members; the ability of experts to fully express their opinions; the proper identification of issues at the commencement of a hearing; and the collegiate atmosphere of expertexamination. Another said that the role of the expert members of the Tribunal

is 'pivotal' to make the system work so effectively. One interviewee summarised a generally expressed view as follows: I felt as if I was talking with the members. I felt heard. The lawyers became a sideshow. I could draw on the board what I meant and the other expert commented on it. I think SAT has moved away from legalism and adopted fairness. It works brilliantly. I could finish what I wanted to say without being interrupted. My clients loved it. Several interviewees who had been retained by litigants in person, commented how constructive both processes were since the Tribunal took such a leading role in the hearing, for example by directing the experts; leading in examination; and assisting the parties and experts to clearly identify the issues that were to be determined. An interviewee, who has had more than a hundred appearances in SAT, said the way in which SAT deals with litigants in person and their experts is 'fantastic'. Another interviewee said that if SAT had not assisted his client with examination of experts, the client would have been "lost at sea".

Question Did you feel the Tribunal was objective or biased when putting questions to you? Objective


15% 85%


Question Did you find it positive, negative or neutral that a member of the Tribunal who is an expert in the subject field, put questions during the hearing? Positive


said as follows: "In the courts one has no idea of the knowledge level of the judge. A lot of time can be wasted on examination that is not relevant to the real issue and there is no way of telling the judge because counsel cuts one off if one goes outside the specifics of a question. In SAT the presiding member often sets an agenda of issues and then we go from there. I can quickly assess the level of knowledge of the Member which means less time is spent to educate the panel." A very experienced interviewee said that in building disputes he has seen "many days saved because of the Tribunal focusing on the right issues without wasting time on credibility examination or on issues that are not relevant to the dispute."

matter were the experts had good justification for their differing opinions. It was a very satisfying experience." Several proposals were made by interviewees about how SAT can further improve its processes22 and SAT will in due course consider those recommendations. Expert conferral and concurrent expert evidence are not magic wands that simplify or dumb down complex evidence. The techniques do however provide a refreshing basis for an exchange of experts opinions that meet the section 9 objectives of SAT.


6% 3%



See s9 State Administrative Tribunal Act 2004 which contains the objectives of SAT.


It must be emphasised that these findings reflect the views held in general by interviewees. There are individual instances where an expert may have had a different experience, but the general trend established by the research is highlighted in the article.


One interviewee recalled a specific example where an expert had substantially adjusted his report as a result of exchanges during conferral, but without losing face and without the time it would have taken to 'expose' his lack of expertise in a particular area. Another interviewee explained how both experts during a conferral realised that additional expertise needed to be involved for a specific aspect of building dispute to be properly investigated.


Lord Woolf MR, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1995) at 183.


The SAT produced Guide for Expert Evidence explains as follows: "A conferral between expert witnesses, whether on their own or before a SAT member, is not a mediation and its purpose is not to settle the matter or compromise on issues by negotiation. Rather, the purpose of an experts' conferral is to assist the Tribunal to resolve the matter correctly, quickly and with minimum costs to the parties." (author emphasis) The existing framework within which expert conferrals are conducted is therefore that the content of the conferral is not without prejudice.


There was general agreement amongst interviewees that SAT should, if possible, take steps to ensure that the content of the conferral, other than the final report, is treated as private and without prejudice. The Tribunal has not to date made any order pursuant to s35 SAT Act that a conferral is to be conducted on a without prejudice basis. An expert may therefore, generally speaking, be questioned during a hearing about how a specific position in the joint statement was arrived at. The Tribunal's practice is, however, that a party cannot call contrary expert evidence in regard to a matter in the joint statement, unless leave is granted.


Some interviewees said that they make it clear at the outset to prospective clients that if a matter were to proceed to SAT then they would be primarily duty bound to the Tribunal. Other interviewees said that they are so often called upon to prepare expert reports with a view to matters ending in litigation, that they tend to "cross that bridge" when they get to it. Interviewees were generally of the view that by the time an expert report is produced for SAT, the risk of an expert being principally an advocate for their client and thereby breaching the relevant ethical code, is slim.

NOTES 1. LLD (Constitutional Law): Member of the State Administrative Tribunal and Honorary Fellow of the Law School of the University of Western Australia. The views expressed are those of the author. The author wishes to acknowledge and express appreciation to staff and colleagues of the State Administrative Tribunal and particularly, the President Justice Curthoys, who very kindly supported and encouraged the research on which this article is based; to Sally Richardson who so efficiently coordinated the interviews; and to Stephanie Kabay who diligently kept notes of the interviews. 2.

For an overview of literature about these topics and a more in-depth analysis of the views of experts refer to B De Villiers "From advocacy to collegiality – the view of experts of 'hot tubbing' and 'expert conferral' in the State Administrative Tribunal" (2015) Journal of Judicial Administration forthcoming.


See DR Parry "Concurrent expert evidence" (2010) Brief August: 8-12.


For a general overview of SAT, its jurisdictions and operations refer to Parry DR and De Villiers B Conducting Proceedings in the Western Australia State Administrative Tribunal (Thompson Reuters, Sydney, 2012).


At a practical level the procedures of SAT are highly influenced by the objectives of SAT to resolve disputes fairly and according to substantial merit; to act speedily and with as little as possible formality and technicality as practical; to minimise the cost to parties; and to make use of the knowledge of members. See s9 State Administrative Tribunal Act 2004.

CONCLUSION These research findings strongly endorse the proposition that the use of the techniques of expert conferral and concurrent expert evidence in SAT save time and costs; facilitate the identification of the real issues in dispute; emphasise the role of the expert as witness of SAT; and improve questioning by SAT. The support expressed by interviewees for the use of these techniques by SAT was overwhelmingly positive. Interviewees used many descriptive terms to express their support for the techniques, but the essence of their experiences is perhaps summarised by the following quotations: •

"I felt valued (in SAT) even though the Tribunal might not have accepted my opinion. It was, in fact, a pleasant experience and all the experts walked away with a sense of satisfaction." "The processes are close to perfect and I felt entirely comfortable to give my opinion."

"It was a fantastic experience and my clients felt they got their money's worth."

"Nothing is perfect, but there was a gentleness when we gave concurrent evidence that surprised me."

"I really felt we were assisting the Tribunal to come to the right decision in a very complex

34 | Brief August 2015


One interviewee, who had been retained by a litigant in person, said that the Tribunal was 'marvellous' in the way that it guided and assisted the litigant through very complex building issues. The interviewee said that if he had been called by the litigant in a normal adversarial process, the litigant would have been completely 'lost at sea' trying to examine the experts individually.


This number does not include the number of expert witnesses who appear in the traditional manner in SAT without the use of conferral or concurrent processes.


The experts came from a wide variety of fields, for example building and engineering, planning, environmental, acoustics, traffic experts, valuers, odour, dewatering, medical, law, hydrology, chemistry, dentistry, water resources, meteorology, and air quality.

Section 9 of the State Administrative Tribunal Act 2004 sets as one of the objectives of SAT "to make appropriate use of the knowledge and experience of Tribunal members."


Recommendation were for example made in regard to: improved reading and video materials; organising seminars to educate experts about these processes; clarifying the role of the facilitator during conferral of experts; clarifying whether discussions during a conferral are with or without prejudice; explaining the process of concurrent evidence at the commencement of a hearing; referring a matter for mediation after conferral; and allowing experts to question one another.



53 experts out of the 63 who were invited, participated in interviews. A few lawyers who have regular appearances in SAT, formed part of the interviewees.


Refer to the Standard SAT Orders number 47 for an example of the type of directions that are given to experts prior to expert conferral.


'Hot tub' is a term that is often used to express the process of concurrent expert evidence. Regardless of some views that the process is not being done justice by using such a descriptive and lay-person term, there is no doubt that the term has stuck and it is often used across Australia in literature, by academics, practitioners and even members of the judiciary. This author prefers the use of the term "concurrent expert evidence". Some caution should be exercised when a court or tribunal uses the word 'hot tub' in a formal, court or tribunal setting. A seasoned expert who was interviewed said he was completely 'stunned' and 'dumbfounded' when he was directed the first time to participate in a 'hot tub' with other experts by a Tribunal member without any explanation what the 'hot tubbing' entailed.


Refer to the Standard SAT Orders number 50 for an example of the type of directions that are given to experts prior to concurrent evidence.


One interviewee who appears in several jurisdictions








CHARITY QUIZ NIGHT Thinesh Thillai Human Rights & Social Justice, Social & Sports Working Group If you thought that Kanye West had a big ego, the Society's Young Lawyers Committee's 2015 Charity Quiz Night proved that to be the understatement of the year. Young and not so young members of the legal profession turned out in force to prove that the masterminds on their team deserved the winning title that night, answering conundrums spanning the servers of LexisNexis to the latest Chet Faker hit. This battle of the brains made the Mayweather vs Pacquiao fight look like an episode of Barney and Friends.


Wednesday, 15 July 2015 Hyatt Regency, Perth




John Toohey Chambers team members.


YLC Volunteers.


Rashmi Islam, Minter Ellison.


Attendees at the Charity Quiz Night.


Janine Speirs, Donna Percy & Co.


Herbert Smith Freehills team.


Daniel Morris, HHG Legal (right), presents Genius

The event was hosted by the Hyatt Hotel and took place on a clear winter evening in July. Teams of up to eight put their reputations on the line and competed to be the champion. The threat of taking home the wooden spoon and being crowned loser was not enough to put anyone off. Each round had a different topic allowing every member of the office to participate. Even old Gladys, the twerking Nicki Minaj fanatic from the 3rd floor, had something to say. With fiery spirits and the liquor flowing, the

competition was heating up. Attendees were treated to the MCing skills of the YLC Working Group chairs. The MCs jokes were well received and lighthearted, in keeping with the theme of the evening. The inventive array of team names reinforced the profession's creative skills. However some would say these inventive names were merely a facade to disguise a firm's disgraceful performance! The competition was closely fought with the winner being decided in the final round. The well-attended evening raised over $750 for the Chief Justice's Law Week Youth Appeal. John Toohey Chambers and friends took the top score of the night followed closely by DLA Piper and Herbert Smith Freehills. Thank you to the event premium sponsor John Toohey Chambers and supporting sponsor HHG Legal Group for their ongoing support of the Society.

Special thanks to our sponsors

Round winners.

Premium sponsor

Supporting sponsor


" ... the court sent a clear message to employers that exploitative arrangements will not be tolerated."

36 | Brief August 2015

Experience and Internships: Employer Obligations Janine Webster, Chief Counsel, with Caitlin Baillie and Maria Evangelou, Lawyers, Fair Work Ombudsman

Work experience and internship arrangements are a growing feature of the Australian labour market. These arrangements can be a valuable way for prospective employees to make the transition from study to work, or explore a new career path. However, the boundaries between paid employment and legitimate unpaid internships are not always clear. While many graduates, or other people new to the Australian workforce, might be more than willing to work without receiving remuneration in order to gain experience, employers should be aware of their obligations in relation to these types of arrangements. In research commissioned by the Fair Work Ombudsman, Professor Andrew Stewart and Rosemary Owens of Adelaide Law School concluded that there was a need for increased awareness of unpaid work arrangements. Understanding the issues will assist solicitors when advising clients and when managing intern or work experience arrangements in their own practice. Employers who exploit vulnerable workers through internships or volunteer arrangements that are actually employment relationships, expose themselves to potential court action. Recently, the Federal Circuit Court in Melbourne ordered penalties against a business producing content for radio, TV and online, Crocmedia Pty Ltd, in the amount of $24,000. In its decision, the court sent a clear message to employers that exploitative arrangements will not be tolerated. DEFINING INTERNSHIPS AND WORK EXPERIENCE Although 'work experience' and 'internship' are words we use every day, the public's understanding of the terms can vary. The word 'internship' can be used to describe almost anything from paid entry-level or low-skilled jobs to voluntary work in the non-profit sector.1 For most Australian employers and employees, their rights and obligations in

the workplace are governed by the Fair Work Act 2009 (Act). The Act relies on common law concepts of employment and doesn't directly engage with the concepts of work experience or internships. However, the Act does make clear that a person won't be an employee – and won't be entitled to payment - if they are undertaking a formal vocational placement. Pursuant to the Act, a vocational placement can be unpaid if it meets all of the following criteria: •

There is a placement: This can either be arranged by the educational institution, or directly between a student and an individual organisation, in line with the requirements of their course.

There is no entitlement to pay for the work the student undertakes: There must be a clear, mutual understanding that the student is not entitled to payment.

carefully at the nature of the arrangement to determine whether an employment relationship exists. IS THERE AN EMPLOYMENT RELATIONSHIP? In determining whether an employment relationship exists, each case must be considered on its own facts. When looking at internship arrangements, it is more likely that there will be no employment relationship where the intern's role is primarily observational and the expectation or requirement to perform work is part of a meaningful learning experience. The work performed should not primarily be for the operational benefit of the business or organisation. Generally, a legitimate unpaid internship arrangement will occur over a short, or clearly defined, time period. It is more likely that an employment relationship will exist when: •

the nature and purpose of the arrangement is to have an intern assist with the ordinary operation of the organisation and to perform productive work for the organisation;

the arrangement has gone on for a long period of time, (although even relatively short engagements can still give rise to an employment relationship depending on all of the relevant factors);

the work performed by the intern is normally performed by paid employees and is integral to the organisation;

An example of this type of an arrangement is an unpaid placement with a law firm, that occurs as a part of a law student's Practical Legal Training as a pre-requisite to admission.

the intern is expected to be at the workplace at specified times and for a specified number of hours;

the business is gaining a significant benefit from the arrangement, rather than the intern.

For internship and work experience arrangements that fall outside the definition of a vocational placement, this doesn't automatically mean that the intern is an employee and entitled to payment. Employers will need to look

If an employment relationship exists, and the intern is not undertaking a vocational placement, then the intern is entitled to payment for their work. The minimum terms and conditions of employment contained in the Act and industrial

The placement is being done as a requirement of an education or training course: The placement must be a required component of the course as a whole, or of an individual subject or module of the course, regardless of whether that subject is compulsory or an elective. The placement must be one that is approved: The institution delivering the course which provides for the placement must be authorised under a Commonwealth, State or Territory law or an administrative arrangement. Examples of authorised bodies include universities and TAFEs.


instruments apply regardless of their experience. There is no option to pay an employee less than the legal minimum because they are engaged as an 'intern'. Some industrial instruments do, however, provide a different rate of pay for graduates, so it's important to refer to the applicable industrial instrument to determine the correct rate of pay. It is also important to remember that the nature of an internship arrangement may change over time, so make sure to review the nature of the relationship regularly. If the intern who used to come along to observe client meetings and court hearings is now directly helping you out with your caseload, it's time to consider your obligations. INTERNSHIPS AND THE FAIR WORK OMBUDSMAN The Fair Work Ombudsman is the Commonwealth workplace relations regulator. Its role is to promote harmonious, productive and cooperative workplace relations and to ensure compliance with Australian workplace laws. It does this through educating people working in Australia about their rights and obligations, providing assistance in resolving workplace issues and monitoring and enforcing compliance with workplace laws. The Fair Work Ombudsman is concerned about the risk of young and other vulnerable workers being exploited through unpaid work arrangements and the potential impact on workplace participation, and is placing greater scrutiny on unpaid work arrangements. FWO V CROCMEDIA PTY LTD [2015] FCCA 140 In June 2013, the Fair Work Ombudsman commenced proceedings against Crocmedia Pty Ltd, a sports media and entertainment business in Melbourne in

respect of its engagement of two young workers as 'volunteer' producers for various late night radio programmes. The two workers did not receive any wages for their shifts, but instead were given a fixed fee per shift to cover their 'expenses'. The young workers, a university student and a recent university graduate, agreed to work for free in an effort to gain experience in the competitive media industry. During the proceedings, Crocmedia admitted that the two young workers were in fact performing work on a casual basis and were not legitimate volunteers. This resulted in findings that Crocmedia had underpaid the workers and contravened the Act. In ordering penalties against Crocmedia, Judge Riethmuller of the Federal Circuit Court found that although Crocmedia did not engage in a deliberate strategy to exploit the young workers, the 'volunteering' arrangement was, in itself, objectively exploitative. His Honour held that Crocmedia was content to receive the benefits that flowed from the unpaid work. Judge Riethmuller also accepted that systematic use of unpaid internships can undermine the minimum protections in the Act and can potentially create barriers to entry into the labour market. The Fair Work Ombudsman also recently entered into an enforceable undertaking with a Sydney architecture firm that incorrectly relied on an alleged internship arrangement to underpay a student architect. The Fair Work Ombudsman's primary role is to assist employers in understanding their obligations. However, in the event workers are clearly being taken advantage of, it has and will act to protect the interests of those employees as well as seek deterrence through the imposition of penalties relating to that conduct.

TIPS FOR INTERNSHIP AND WORK EXPERIENCE ARRANGEMENTS If your business or organisation is considering engaging people for work experience or internship arrangements, these practical tips may assist you. •

Clearly define the arrangement before an intern or work experience student commences their placement. Consider putting in place a written agreement that includes: -

a role statement or position description;


the duration of the arrangement;


any obligations or requirements the intern must meet; and


whether the role will be paid;

Consider partnering with universities and other training providers that require their students to undertake vocational placements. Your organisation will have the benefit of a pool of work experience students and clear, defined arrangements.

Always make sure to ask at the start and during an internship arrangement: who is getting the primary benefit out of the arrangement? If the person is doing work you would otherwise have to pay someone to perform, you should be cautious.

The Fair Work Ombudsman has a range of educational material on its website. Go to www.fairwork.gov.au for fact sheets on unpaid internships and work experience, unpaid trials and vocational placements. NOTES 1.

Experience or Exploitation: The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Period in Australia. Report for the Fair Work Ombudsman. Andrew Stewart and Rosemary Owens, paragraph 3.52.

Article previously published in Bulletin Journal. Republished with permission from authors.

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.

38 | Brief August 2015

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”.

meet a committee

The Society's Employment Relations Committee

From left: Joseph Burke; Dominique Hartfield; Daniel White, Convenor; Michael Jensen; Vincent Pelligra; Robert French; Renae Harding; Stephen Butcher; and Stephen Kemp. Absent: Melanie Binet; Philip Brunner; Kendra Hagan; Clifford Pettit and Lorilee Yu.

The Law Society's Employment Relations Committee (ERC) is a strong and vibrant group of lawyers in Western Australia who practice in the fields of employment, industrial relations and diversity (including discrimination and harassment). The ERC is bi-partisan committee which comprises lawyers with a range of different backgrounds who act or have acted for employers, employees unions, and government. The ERC is representative of large, small and regional law firms along with those solein-practice and currently at the bar. The ERC currently comprises of the following representatives: 1. Convenor: Daniel White (DLA Piper Australia) 2. Deputy Convenor: Melanie Binet (Gregor and Binet Pty Ltd) 3. Clifford Pettit (Fair Work Building & Construction) 4. Philip Brunner (Bailiwick Legal) 5. Joseph Burke (MDS Legal) 6. Stephen Butcher (Dwyer Durack) 7. Robert French (Francis Burt Chambers) 8. Kendra Hagan (Community & Public Sector Union / Civil Service Association of WA)

9. Renae Harding (Jackson McDonald) 10. Dominique Hartfield (Squire Patton Boggs) 11. Michael Jensen (Lavan Legal) 12. Stephen Kemp (Jackson McDonald) 13. Vincent Pelligra (Slater & Gordon Limited) 14. Lorilee Yu (CS Legal) The fields of law dealt with by the ERC are subject to considerable legislative change from time to time. As a result, the ERC remains committed to its bipartisan approach and largely refrains from making submissions on proposed legislative changes in order to maintain its neutrality. The ERC alongside other industrial and employment bodies, including the Australian Labour Lawyers Association, has planned a series of employment seminars and events. The focus of the events is to hear from leaders in the field and foster collegiality amongst employment, industrial relations and diversity lawyers. Over the next CPD year the ERC is committed to providing seminars designed to appeal to a range of lawyers at all levels of seniority. The seminars will also be open to lawyers who do not practice in the employment space in order to provide an insight into this

dynamic area of practice. The ERC has made the following suggestions for upcoming CPD seminars: •

How to deal with unrepresented applicants

Dealing with harassment and discrimination in the workplace

Bullying in the workplace

Contemporary developments in employment and industrial relations law

The ERC always encourages lawyers interested in the fields of employment, industrial relations and diversity to learn more and attend seminars and networking events. We also welcome expressions of interest for applications to join the committee to positively contribute to the development of these areas in Western Australia.

The committee featured in this article is one of more than 40 active committees of the Society whose work covers a range of substantive law and generic areas of interest. For further information regarding the Society's committees please visit lawsocietywa.asn.au/currentcommittees. 39

Legal practitioners' duties in respect of client testamentary capacity Legal Profession Complaints Committee

There is a basic common law presumption that every adult has legal capacity to make decisions and give instructions. However, there may be occasions when it will not be sufficient, as a practitioner, to rely upon that presumption. WHAT IS TESTAMENTARY CAPACITY? Testamentary capacity involves three elements:1 •

Does the person understand the nature of the will and its effects?2

Does the person understand the extent of their property?

Does the person comprehend and appreciate the claims to which they ought to give effect and in that regard have no disorder of the mind which poisons their affections, perverts their sense of right, or

40 | Brief August 2015

prevents the exercise of their natural faculties? The requirement to understand the nature of a will and its effects does not mean that a person must understand the legal effect of every single clause in the will. However, the person must understand that the person is executing a will. A person must also understand the practical effect of the central clauses of the will; in particular, the dispositions of property.3 The requirement to understand the extent of the property the person is disposing of does not mean that the person must have specific and accurate knowledge of every item of property the person owns. Rather, the person must have a general knowledge of the state of the person's property and what it consists of.4 The ability to comprehend and appreciate the claims to which the

person ought to give effect means that the person must understand which person or persons have a claim on the person's bounty and have an ability to weigh those various claims. HOW DO I MAKE A PRELIMINARY ASSESSMENT? Although each situation is different, some enquiries you can make to assist you in making a preliminary assessment of a client's testamentary capacity are: •

Is the client making any significant changes to a previous will? If so, why? Previous wills can demonstrate an intention that has changed, and such a change requires explanation. 5

Who are the significant people in the client's life? Is anyone mentioned in previous wills that the client has not mentioned now?

Does the client know their assets?

Is the client on any medication, and if so what is the nature of that medication and the dosage?6

What is the client's ability to undertake daily living activities (e.g. drive, clean, cook)?7 Does the client manage his or her own finances?8

No one factor on its own is capable of requiring a conclusion that the client does not have capacity. However, a culmination of factors may be such that they ought to alert a reasonable person to the possibility that the client lacks the requisite legal capacity.9 Other practicalities to consider are: •

take instructions directly from the client (not through a third party, such as an accountant);

see the client on their own - ask family/friends to leave the room whilst instructions are given;

• • •

use open-ended questions rather than yes/no questions; have the client describe back to you the nature and effect of the will; and take and keep detailed notes (these will be invaluable if the will is later challenged).

WHAT DO I DO IF I SEE A 'RED FLAG'? If there are 'red flags' raising doubts as to the client's capacity, speak to them about your concerns and suggest that a medical practitioner assess them for capacity. It can be a delicate subject, so explain why a capacity assessment is needed in terms of protecting the client's

best interests and to ensure that the will is validly made. If you send a client to see their doctor for an assessment, you must write a referral letter that explains the purpose of the referral and the relevant legal standard of capacity to perform the task.10 You should ask the doctor to provide a written report setting out his or her conclusion about the client's capacity and, importantly, the facts that have led to the conclusion. It is important to keep in mind that testamentary capacity is a legal test, not a medical test. You should treat the medical report as a source of evidence, but the final legal judgement about capacity rests with you.11 WHAT IF THERE IS STILL DOUBT ABOUT CAPACITY? There may be lingering doubt about capacity where a client refuses to have a medical assessment, or where the medical assessment is not definitive. What are your obligations as a practitioner in such circumstances? If it is patently clear that a client does not have testamentary capacity, then you may be excused from acting on the client's instructions. But if you are satisfied that the client is capable of giving coherent instructions then, even if there is doubt as to testamentary capacity, you must act on the client's instructions to make the will.12 The rationale is that a client should not be deprived of an opportunity to make a will that may in fact be valid.13 In such cases it is vitally important to properly record the process in case the will is challenged.14

If a client is unable to give coherent instructions, you should endeavour to advise him or her that you cannot make the will so that they know, as far as they are able to, that their testamentary intentions cannot be carried out. In summary, it is important in such matters to take instructions directly from the client, and ask the right questions. If you are still in doubt once all investigations have been carried out (including a medical opinion), then, if the client is capable of giving you coherent instructions, you should proceed to make the will, but you should keep detailed notes of the process. NOTES 1.

Banks v Goodfellow (1870) LR QB 549. Note that all elements need to be present for there to be testamentary capacity.


An affirmative answer to the question "do you understand what this will contains?" is not an adequate reflection of understanding. The client should be asked to explain the effect of what he or she is doing in his or her own words and it is important to record the responses verbatim. See Nicholson v Knaggs & Ors [2009] VSC 64 at paras 384-385.


Nicholson v Knaggs [2009] VSC 64 at para 97


ibid., para 98.


Refer Note 2, at para 664.


Refer Note 2, at paras 290-292.


Refer Note 2, at paras 306-324 and 349.


Refer Note 2, at para 351.


Legal Services Commissioner v Ford [2008] LPT 12, at paras 21-22.


See "When a Client's Capacity is in Doubt – A Practical Guide for Solicitors", Law Society of New South Wales, for an example of a referral letter.


ibid., at page 8 under clause 11 "Making the final legal judgment when the clinical capacity assessment is available".


Fradgeley v Pockington (No 2) [2011] QSC 355, at para 28.


Ryan v Public Trustee [2000] 1 NZLR 700, at para 719.


Brown v Wade [2010] WASC 367, at para 142.

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enquiry@expertconsulting.com.au www.expertconsulting.com.au 41

book review

Book Review Climate Change & Coastal Development Law in Australia by Justine Bell Review by Brad Wylynko, Partner, Clayton Utz

As we head into the 21st session of the Conference of the Parties to the United Nations Convention on Climate Change in Paris this December, the 2014 Intergovernmental Panel on Climate Change Synthesis Report makes clear that even if countries around the world are able to limit global warming to 2 degrees Celsius: Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise. In her book Climate Change & Coastal Development Law in Australia, Justine Bell notes that over 711,000 Australian residential addresses are located within 3kms of the coast, and less than 6 metres above sea level. She also notes that a CSIRO 2010 study determined that there are 35,200 residences in Queensland exposed to storm tide inundation, with a likely damage bill of $1.1 billion if an event occurs. That became a reality when Cyclone Marcia hit Queensland last February. As Justine points out, climate change adaptation has become a priority - and the law will play a major role in that exercise. However, Justine concludes that

although all Australian states have and continue to take limited steps to address the issue, existing planning and regulatory frameworks could be significantly strengthened. Standards are inconsistent and national co-ordination non-existent. Councils, land-owners, developers and insurers will be left with the result (which may have to be resolved through the courts). One of the major difficulties in providing an appropriate legislative and policy framework is fundamental disagreement over the actual adaptation required. When local governments in NSW tried to restrict development near the coast due to the projected implications of sea level increases, controversy erupted. Obtaining accurate data on sea-level rise is expensive and suffers from many layers of scientific uncertainty. In short, sea-level rise remains controversial and to restrict development of a person's property based on an un-yet realised projection presents clear challenges. In chapters 3 and 4, Justine explores the advantages and disadvantages of a number of potential responses that may be implemented by local councils (as in most cases this issue has been left to the local government to solve). These responses range from avoidance (for example, through appropriate development control), to accommodation (building control) to retreat (time limited development approval, compulsory



Visit the back page of this edition of Brief for the full lineup of events, or visit lawsocietywa.asn.au/upcoming-cpd-events

42 | Brief August 2015

acquisition, etc). Justine notes that, as of June 2014, no council in Australia had implemented a planning scheme that prohibited development in an area projected to be impacted by sea-level rise. Justine delves into the thorny questions of compensation, liability and litigation. Although noting that planning legislation generally does not give rise to compensation, she makes the point that if local councils don't take action to avoid future property damage the losses may be enormous, and will affect every person associated with the impacted properties. Justine points out that while many see insurance as the solution, there are limitations to this risk management strategy, particularly if the damage occurs over a long period of time. Justine's review and analysis of the wide range of legislative and policy responses to this issue presents a comprehensive picture. Justine also offers examples of a number of alternative approaches to this problem (from jurisdictions such as the United States) and proposes a number of innovative concepts (such as transferable development rights). Her aim is to examine the range of legal approaches that may be called upon to reduce the likely economic impacts of sea-level rise. The book admirably meets that aim, and should inform all councils and other relevant policy makers in their response to this challenge.

book review

Book Review The Australasian Coroner's Manual by Hugh Dillon and Marie Hadley Review by Raoul Cywicki, Barrister, Sir Clifford Grant Chambers

As the title of this book suggests, the publication is principally aimed at Coroners but will appeal to all those working and appearing in the jurisdiction. The Coroner's Court is a specialist jurisdiction which presents its own unique challenges and calls upon lawyers to exercise skills which those only familiar with the adversarial system may find perplexing. This book, co-authored by Hugh Dillon and Marie Hadley, provides a practical guide to coroners and legal practitioners who appear in the jurisdiction. Marie Hadley is an admitted lawyer and PhD candidate who has completed her Practical Legal Training at the New South Wales Coroners Court. Hugh Dillon is a Deputy State Coroner and Magistrate in New South Wales. The authors deal with most facets of the coronial process including the jurisdiction of the court, the bereavement of the deceased's family members, autopsies, inquests, mistakes, accidents, system failures and advocacy in the

jurisdiction. Although there is a number of textbooks available which deal with the above subject matter in a more comprehensive manner and academic style, the emphasis of this publication is to provide practical assistance to those appearing in the jurisdiction. The authors have formulated helpful check lists for each step of the coronial process and have incorporated lists of on-line resources, textbooks and journal papers to enable the reader to carry out further research. The authors have also included a number of appendices containing information and precedents designed to assist coroners, namely: Appendix A: A Glossary of Terms Commonly Used in Post Mortem Reports. Appendix B: Sample of Coroner's Introductory Remarks at Inquest. Appendix C: Sample of Coroner's Warning to a "Person of Interest" Concerning Privilege against SelfIncrimination.

Appendix D: Sample Precedent for Written Findings. Appendix E: Sample Inquest Findings. Appendix F: Sample Letter to Police Commending Investigator. Appendix G: Sample Letter to Parents of a Child who has Died of a Drug Overdose. Appendix H: Sample Letter of Condolence to Parents of Children who Commit Suicide. The publication is comprised of 219 pages including an index and is written in an unpretentious and consumer-friendly style. It is a book which will appeal to those who simply wish to familiarise themselves with the coronial jurisdiction and to those who wish to have a ready reference book in court. Although the publication is slanted towards the New South Wales jurisdiction it will have utility to those working in the Western Australian jurisdiction.


society event

YLC Panel Discussion Anna Celliers and Ahshiba Sultana, Human Rights & Social Justice Working Group In celebration of Law Week 2015 the Young Lawyers' Committee, through the Human Rights and Social Justice Working Group, hosted a panel discussion on 'The Rule of Law in the 21st Century: how far have we really come?' at the Supreme Court of Western Australia. The distinguished panel was constituted by the Honourable Chief Justice Wayne Martin AC, Dr Colin Huntly, Advisory Officer at the Legislative Council of Western Australia, Ms Helen Creed, Executive Director of the Community Legal Centres Association of Western Australia, and Mr Duncan McConnel, President of the Law Council of Australia. Mr Matthew Keogh, Pressident of the Law Society of Western Australia, chaired the panel.

The topic was inspired by the 800th anniversary of the Magna Carta and Chief Justice Martin started with a discussion about the background to the Magna Carta, the turbulent historical origins of the text and the later romanticised mythology surrounding it, and its influence on documents such as the United Nations Declaration of Human Rights and the United States Declaration of Independence. The Chief Justice also discussed the contemporary relevance of the Magna Carta to issues such as recognition of Indigenous peoples in the Australian Constitution. Dr Huntly, Ms Creed and Mr McConnel discussed several wide-ranging topics concerning how the rule of law can be fragile in practice. This included

discussion about issues such as overregulation, threats like the 'war on terror', difficulties with proper access to justice, the right to a fair trial, and sentencing laws. Questions posed by the audience also raised for discussion issues such as the treatment of asylum seekers and ways in which Indigenous disadvantage and related access to justice issues could best be addressed within our society at a practical level. The panel discussion was another resounding success for Law Week. The YLC would like to warmly thank all of the panellists for their time and the Supreme Court of Western Australia for graciously allowing the committee to host the event.

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case notes

Young Lawyers Case Notes – Compiled by volunteers coordinated by the Young Lawyers Committee Colley v State of WA [2015] WASCA 79 Client's instructions – dispute about instructions – duty of practitioners to keep on file proof of evidence, file notes and written instructions – failure to do so 'deplorable'. Practitioner's client was charged with unlawful assault occasioning death. Practitioner met with his client to take instructions on various occasions and concluded self-defence was the client's best strategy. The practitioner also did not call his client as a witness. Client was convicted. Client appealed, arguing that the practitioner had not followed his instructions that he did not commit the assault and that he wanted to give evidence and therefore there had been a miscarriage of justice. At trial, the court considered the practitioner's evidence of what were his instructions, reviewed his file and heard evidence from the client. The court did not accept the client's allegations of what he had instructed the practitioner, particularly because the practitioner had made clear by his conduct how he would conduct the case, the client understood the case being presented and the client had many opportunities before and during trial to raise any issues with the practitioner but instead accepted the way in which his case was presented. Appeal was dismissed. However, in obiter, the court noted that the practitioner did not keep a proof of evidence, contemporaneous file notes relating to the matters in issue of the appeal or written instructions regarding the client's election not to give evidence. The court stated that such omissions are to be deplored. Author: Ray Christensen, Solicitor at Zilkens and Member of the Young Lawyers' Committee

Robinson v Fielding [2015] WASC 108 Statutory interpretation – Aboriginal Heritage Act 1972 (WA) – judicial review meaning of 'Aboriginal site'– 'sacred site' – 'site' does not have a narrower meaning than 'place'. In Robinson v Fielding, handed down in April 2015, the Supreme Court of Western

Australia (WASC) considered the proper interpretation and application of the Aboriginal Heritage Act 1972 (WA) (Act), which establishes a statutory framework for the protection of specified places and objects of cultural significance. The applicants, Kariyarra traditional owners, sought judicial review of a decision made by the Aboriginal Cultural Materials Committee (ACMC) that the Marapikurrinya Yintha land and waters, located near Port Hedland, was not an Aboriginal site within the meaning of the Act. The case ultimately turned on whether the ACMC had misconstrued the term 'sacred site' in determining that the land was not an 'Aboriginal site' under the Act. The WASC found that the expression 'Aboriginal site', as used in s5 of the Act, included 'places' of a nominated kind and the ACMC erred in considering that the word 'site' had a narrower meaning than the word 'place'. The court set aside the ACMC's decision and the matter was referred back to the ACMC to reconsider its recommendation to the Minister for Aboriginal Affairs as to whether the proposed use of land and waters would impact upon any Aboriginal sites. Author: Chloe Gall, Solicitor at Ashurst and Member of the Young Lawyers' Committee's Human Rights and Social Justice Working Group

Uelese v Minister for Immigration and Border Protection & Anor [2015] HCA 15 Immigration review – cancellation of visa – application of s500(6H) of the Migration Act 1958 (Cth) – "best interests of any children" – new information concerning additional children – information arising from cross-examination could be taken into account as not "presented by or on behalf of the applicant" – review must be conducted thoroughly and fairly. In Uelese v Minister for Immigration and Border Protection & Anor [2015] HCA 15 the High Court considered the application of s500(6H) of the Migration Act 1958 (Cth) (the Act).

Due to his criminal record, the appellant's visa was cancelled by a delegate of the Department of Immigration and Border Protection pursuant to s501(2) of the Act. The appellant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. In accordance with Ministerial Direction 55, the Tribunal is required to take into account the 'best interests of any children'. Prior to the hearing, the appellant made submissions regarding three of his children. During crossexamination of the appellant's partner, new information arose that the appellant had 2 other younger children. Section 500(6H) of the Act specifies that the Tribunal must 'not consider information presented orally in support of [a] person's case unless they have provided the information in a written statement to the Minister at least two days prior to their hearing'. The Tribunal determined that s500(6H) prevented them from considering the new oral information presented at the hearing and thus, did not contemplate the best interests of the 2 other younger children. The appellant unsuccessfully appealed to the Federal Court of Australia, and then to the Full Court of the Federal Court of Australia. The High Court found that the Tribunal had erred in its application of s500(6H) and thus, allowed the appeal. The High Court determined that the Tribunal could consider the information arising out of cross-examination as it was not 'presented by or on behalf of the applicant'. The High Court also determined that s500(6H) did not prevent the Tribunal, 'in order to ensure that its review is conducted thoroughly and fairly', from exercising its power under s363(1)(b) to adjourn a matter, so as to allow an applicant to provide the Minister with the requisite notice. Author: Bryanna Ross, Solicitor at Allianz Insurance and Member of the Young Lawyers' Committee's Human Rights and Social Justice Working Group


case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – Deadline for filing de facto financial causes – Meaning of "within the period of 2 years" in s44(5) In Madin & Palis [2015] FamCAFC 65 (29 April 2015) the Full Court (Finn, May & Strickland JJ) allowed Mr Madin's appeal against the dismissal of his de facto property application by Judge Howard who held that it was not filed "within the period of 2 years after the end of the de facto relationship" as required by s44(5) of the Family Law Act. The parties' relationship ended on 9 January 2011, the appellant filing his application on 9 January 2013. The Full Court said (at [11][15] and [19]-[20]): " … the two year period provided in s44(5) commenced on 10 January 2011 by virtue of the operation of s36(1) (Item 6) of the Acts Interpretation Act. That agreed position was undoubtedly correct. The question on this appeal therefore became whether 9 January 2013, being the date of filing of the initiating application, was 'within' the two year period which, it is agreed, commenced on 10 January 2011. … It is interesting to observe that although the expression 'year' or 'years' appears in a number of sections of the Family Law Act (other than s44(5)) for the purpose of prescribing a period of time during which an action must be taken or during which a particular situation must prevail (see: s39(3)(c), s44(1B), s90SB(a), and s104(3) (b) and (e)), the expression is not defined in that Act. Nor indeed is 'year' defined in the Acts Interpretation Act, although in that Act the expression 'month' is defined, and for present purposes that definition is of some interest because of its provision for the end date of a period of a month to be the day immediately before the day which corresponds with the day at the start of the period ( … ) The only authority to which we were taken and which we consider to be of assistance … is the decision of Beaumont J of the Federal Court of Australia in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574. One of the questions which his Honour had to consider in 46 | Brief August 2015

that case was the meaning of the term 'within'. In endeavouring to answer that question, his Honour cited … from the decision of the Full Court of the Supreme Court of Victoria in Morton v Hampson [1962] VR 364 (at 365): 'The modern rule in relation to a period of time fixed by statute 'within' which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and … including the first day.' ( … ) We are … prepared to conclude at least by analogy with Beaumont J's decision in Susiatin that in the present case the two year limitation period provided in s44(5) of the Family Law Act commenced on 10 January 2011 and ended at midnight on 9 January 2013. The appellant's initiating application, having been filed on 9 January 2013, was therefore filed within time, and the primary judge was in error in holding that it was not. That result accords with the plain meaning of the sub-section, and there is no warrant in that sub-section, in s36(1) of the Acts Interpretation Act, or in any relevant authority for, in this instance, excluding from the calculation of when the two year period ends, the last day of that two year period, i.e., 9 January 2013." Financial agreements – Wife refused to sell house at separation pursuant to s90C agreement, arguing husband had repudiated the agreement justifying rescission by her In Donald & Forsyth [2015] FamCAFC 72 (5 May 2015) the Full Court (May, Strickland & Ryan JJ) considered a s90C agreement by which upon separation a property was to "be placed on the market and sold in a state of good repair", the cost of repairs to be paid from the sale proceeds. At trial Judge Demack accepted the wife's argument that the agreement should be set aside as it had "been rescinded by the husband's repudiation" ([50]). Strickland & Ryan JJ (at [56]) referred to a letter from the husband to the wife due to "changes to the wife's circumstances", raising other

ways of achieving "an outcome in line with the agreement". Her Honour held that that conduct did not amount to a repudiation of the contract but held otherwise as to the husband's seeking of orders that "move away from the … financial agreement" including an equal sharing of repair costs. Citing High Court authority which it was noted her Honour failed to address [73], their Honours (at [67]) said that the principles to be applied in determining whether a party to a contract has repudiated that contract entitling the other party to terminate it are that "there must be either a breach or an anticipatory breach of an essential term of the contract, or a sufficiently serious breach of a non-essential term" and "the other party must be ready and willing to complete the contract". Their Honours said [86] that it was 'incontrovertible' that since "the breakdown of the marriage … the wife had not been prepared to sell the … property", adding [94] "that what the husband said in … his affidavit … evinces an intention not to be bound by the term of the agreement … to share the cost of placing the Town A property in 'good repair' for the purposes of its sale. However, [w]e do not accept that either the relevant term was an essential term or that the anticipatory breach was sufficiently serious". Delivering separate reasons and agreeing that the appeal should be allowed May J said (at [26]) that "[i]t was open to the wife to effect repairs herself and then seek that sum be deducted from the sale proceeds or, if not agreed, by way of damages. The wife was not entitled to rescind, she did not intend to have the house readied for sale by attending to repairs, rather she intended to continue living in the house".

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




law council update

NAIDOC WEEK THE PERFECT TIME TO ACKNOWLEDGE – AND STRENGTHEN – EFFORTS IN JUSTICE REINVESTMENT NAIDOC Week presents as a perfect opportunity to acknowledge the importance of Justice Reinvestment efforts and to seek opportunities to expand initiatives, according to the Law Council of Australia. Justice Reinvestment is a relatively new concept, which refers to the diversion of funds that would ordinarily be spent on keeping individuals in prison into the development of programmes and services that aim to address the underlying causes of crime in communities that have high levels of incarceration. Law Council of Australia President-elect Mr Stuart Clark said NAIDOC week is an ideal time to consider the expansion of Justice Reinvestment initiatives. "There is some terrific work being done in Aboriginal communities in Australia on expanding this revolutionary idea of Justice Reinvestment," Mr Clark said. "For example, Bourke's 'Just Reinvest' team has been working tirelessly to show their local corporate and government sectors that Justice Reinvestment will work and is a worthy effort. "And in South Australia, concerted advocacy efforts from the Indigenous community have resulted in the State Government committing to announcing Justice Reinvestment trials in two separate locations. "It's time that Australia really started getting serious about this idea on a national level. "We need to break the cycle of those who get incarcerated, and then released back into problematic communities, only to be locked up again. We can't just keep spending more and more money on the jail section of the cycle and expect to improve lives. We need to shift some of those resources back into the community. "NAIDOC Week is a time to celebrate the diverse history, many achievements, and rich potential of Aboriginal and Torres Strait Islander peoples. The giant steps I see being made on innovative concepts like Justice Reinvestment fit perfectly within that spectrum. "Non-Indigenous Australians should support and assist initiatives like Justice Reinvestment so it can start making a real difference in the communities that need it," Mr Clark concluded. LEGAL PROFESSION DISAPPOINTED BY NATIONAL PARTNERSHIP AGREEMENT ON LEGAL ASSISTANCE SERVICES The Law Council of Australia has said the National Partnership Agreement on legal

48 | Brief August 2015

assistance services announced yesterday by the Commonwealth Attorney-General is a major disappointment that ignores the Productivity Commission's recommendation for a $200 million increase in Legal Aid Commission funding. Law Council Access to Justice Committee Chair Mr Mark Woods said that the fact that this increase would have doubled the Commonwealth's current contribution demonstrates the seriously inadequate current level of funding. "It is clear that the states and territories did not have a choice but to sign this agreement or face immediate funding shortages that would have crippled legal assistance services, courts and rehabilitation," Mr Woods said. "The Commonwealth's heavy handed approach has forced the states and territories to accept a level of funding that is grossly inadequate and which will make the criminal justice system worse. It will severely restrict access to justice and increases the risk of injustice. "The failure to fund civil justice needs means further restriction on the already very limited assistance available. This means that the concerns of all members of the community for victims of crime, particularly family violence, have again been ignored. There is no substitute for effective legal representation being made available to the victims of violent crime. It is fundamental to stopping the cycle of violence. It will inflict untold damage on the community," Mr Woods said. Over the last decade, the Commonwealth Government's contributions to legal aid have continued to diminish, and are currently at 33 percent and falling. In real terms, a 50 percent share of legal aid commission funding would have required an additional $115 million from the Commonwealth in this year's budget. "Most of the Commonwealth funding is spent on family law cases. Other areas of Commonwealth civil law responsibility receive no funding at all," Mr Woods said. "Successive Commonwealth governments have treated the importance of equality before the law with contempt. This has got to stop. The Law Council of Australia will launch a national campaign this year to make sure that the Australian public is fully aware of the Commonwealth Government's failure to address the serious crisis in legal aid," Mr Woods concluded. NO EXCUSE FOR GOVERNMENT'S FAILURE TO REPLACE RETIRING FAMILY COURT JUDGES The Law Council of Australia has called on the Federal Government to make a clear

public commitment to immediately replace retiring judges in the Family and Federal Circuit Courts, with recent replacement delays causing unacceptable hold-ups in justice for at-risk children and families. In the most recent example, Justice Robert McClelland commenced work in the Sydney registry of the Family Court last week, but the Judge he replaced retired 20 months ago. The Law Council noted there was no surprise about the timing of the retiring judge, who had simply reached his mandatory retirement age. Mr Rick O'Brien, chair of the Law Council's Family Law Section, said the delays were inexplicable. "There is absolutely no excuse for a failure by any government to ensure that retiring judges are replaced immediately," Mr O'Brien said. "Judges do not retire on short notice. Many retire at the mandatory age of 70. Even those who retire short of the mandatory retirement age inevitably give many months' notice of their intention to depart." Mr O'Brien noted that the family law system was already stretched to breaking point in terms of under-resourcing, and that delays with judge replacement are making a bad situation much worse. "The inexcusable and unexplained neglect by governments on the resourcing of the family courts is nothing new, and the courts need more judges. In the meantime, the very least governments can do is maintain existing resources by replacing judges quickly," Mr O'Brien said. "By the end of this year, 14 of the 32 justices of the Family Court will be eligible to retire. Our courts will hit breaking point if the Government does not lift its performance in terms of replacing judges." Law Council of Australia President, Mr Duncan McConnel, called on the Federal Government to urgently commit to being more responsive in replacing retiring judges. "At a time when the horror of child sex abuse and domestic violence have been rightly brought into the public spotlight, the Government should at least be ensuring there are not gaping holes in our Family Court judicial roster," Mr McConnel said. "Yes, the family court system desperately needs more funding. Yes, we need to increase the number of judges. But at a bare minimum, we need to ensure that when judges predictably retire we are able to replace them immediately so that cases can continue to be heard in something resembling a timely manner."

pam sawyer



Professional Announcements Career moves and changes in your profession Jarman McKenna

Andre Maynard

Jarman McKenna are pleased to announce the following appointments:

Andre Maynard has joined Castledine Gregory Law and Mediation as a Senior Lawyer.

Dr Andrew Lu and Paul Graham to Partner, Heather Osborne to Special Counsel, Joanne Clarke and Victoria Branson to Senior Associate, and finally Alen Sinanovic and Taleen Kopti to Associate.

Kim Wilson & Co Kim Wilson & Co are pleased to announce the appointment of Dianne Caruso as an Associate of the firm with effect from 1 July 2015.

Andre Maynard

Andre advises on regulatory approvals and compliance matters with a speciality in environmental, planning, native title and project development law. Andre’s experience includes providing advice on commercial developments and infrastructure, mining, power and oil and gas projects.

Hogan Lovells

Borrello Legal together with Graham & Associates are pleased to announce that as of 1 August 2015 they will be merging to form Borrello Graham Lawyers and will continue to provide quality, solution based legal services.


Leading global law firm Hogan Lovells has now launched their Australian operations with offices in both Perth and Sydney on 1 July Tim and Nicky Lester 2015. Nicky Lester will be spearheading the banking and finance practice and Tim Lester the corporate finance practice for the firm, with a particularly strong focus on the energy, natural resources and infrastructure sectors. Corene Baird will also be joining Nicky and Tim as their Practice Manager of Australian operations.

Allens Perth are pleased to announce its most recent promotions Jeremy Quan-Sing to Partner of Commercial Litigation & Dispute Resolution and Eve Lynch to Managing Associate of Energy, Resources & Infrastructure.

Kott Gunning is delighted to announce two promotions effective from 1 July 2015. Katrina Welch has been made a Senior Associate in Commercial Dispute Resolution, Regulation and Compliance, and Claire Hawke-Gundill has been made an Associate in Property, Estate and Trust Services.

Hopgoodganim Hopgoodganim Lawyers Perth is pleased to announce the promotion of Gulshan Price to Associate within its Property practice.

Gulshan Price

HHG Legal Group acquires Nicholson Clement, Mandurah The Directors of HHG Legal Group are pleased to announce the purchase of Mandurah law firm, Nicholson Clement (effective 1 July 2015). John Reyburn, the former Principal of Nicholson Clement, remains employed as a part time Consultant. HHG Legal Group now has full time offices in West Perth, Mandurah and Albany, as well as a visiting practice to Mt Barker. See hhg.com.au for details.

Volume 42 | Number 6 | July 2015

| Number Volume 42

Law week

AN INterVIew wIth ChIef Judge SleIght

2015 5 | June


Speech – FareweLL chNie JUStice Mcke

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Events Calendar DATE




HBF wellness yoga

The Law Society of Western Australia

Thursday, 13 August

High Court dinner

Government House Ballroom

Thursday, 20 August

YLC: social justice opportunities evening

Central Park Theatrette

AUGUST CPD EVENTS Friday, 7 August – Sunday 9 August

YLC: practical advocacy weekend

Seashells Resort Mandurah

Wednesday, 19 August

Legislation unravelled

The Law Society of Western Australia

Monday, 24 August

The essential legal assistant

The Law Society of Western Australia

SEPTEMBER CPD EVENTS Wednesday, 2 September

Arbitration clauses

The Law Society of Western Australia

Thursday, 3 September

Overview of Commonwealth sentencing

The Law Society of Western Australia

Thursday, 10 September

Recent developments in environmental law - state and federal perspectives

The Law Society of Western Australia

Tuesday, 15 September

How to run effective meetings

The Law Society of Western Australia

Wednesday, 16 September

Injunctions and freezing orders

The Law Society of Western Australia

Friday, 18 September

Sourcing and managing free legal information

The Law Society of Western Australia

Friday, 18 September

Ethics on Friday: ethics for in-house counsel

The Law Society of Western Australia

Tuesday, 22 September

Effective case management in the Family Court

The Law Society of Western Australia

Wednesday, 23 September

Current issues in costs for commercial litigators

The Law Society of Western Australia

Thursday, 24 September

YLC: emotional intelligence for high performance

The Law Society of Western Australia

OCTOBER CPD EVENTS Wednesday, 7 October

Driving offences

The Law Society of Western Australia

Wednesday, 7 October

Managing firm cash flow

Macquarie Bank, Seminar Room

Thursday, 8 October

The mindfulness brief: the latest evidence showing improved performance and wellbeing for professionals

The Law Society of Western Australia

Tuesday, 13 October

The crossover between family law, bankruptcy and insolvency

The Law Society of Western Australia

Wednesday, 14 October

Employment law forum: overview of the Fair Work Act and anti-bullying legislation

The Law Society of Western Australia

Wednesday, 14 October

Employment law forum: occupational health and safety and preparing employment contracts

The Law Society of Western Australia

Friday, 16 October

Ethics on Friday: balancing duties to the court and to your client

The Law Society of Western Australia

52 | Brief August 2015

events calendar OCTOBER CPD EVENTS Tuesday, 20 October

Evidence in alternative forums

The Law Society of Western Australia

Tuesday, 20 October

Protecting and promoting yourself online

The Law Society of Western Australia

Thursday, 22 October

YLC: mental health hypothetical

The Law Society of Western Australia

NOVEMBER CPD EVENTS Tuesday, 3 November

Negotiation skills: the academic and the practitioner conversation

The Law Society of Western Australia

Wednesday, 4 November

Criminal law update

The Law Society of Western Australia

Thursday, 5 November

The Family Provisions Act and wills disputes

The Law Society of Western Australia

Tuesday, 10 November

Trusts and estate planning

The Law Society of Western Australia

Tuesday, 10 November

SMSF and interaction with estates

The Law Society of Western Australia

Wednesday, 11 November

eConveyancing and associated risks

The Law Society of Western Australia

Wednesday, 11 November

Property forum: Commercial Tenancy (Retail Shops) Act, Residential Tenancy Act and case law update

The Law Society of Western Australia

Thursday, 12 November

Subpoenas in modern practice

The Law Society of Western Australia

Wednesday, 18 November

Security of tenure for the elderly

The Law Society of Western Australia

Thursday, 19 November

YLC: practical tips for junior transactional lawyers

The Law Society of Western Australia

Friday, 20 November

Ethics on Friday: more than just a mouthpiece

The Law Society of Western Australia

Tuesday, 24 November

Pre-action and non-party discovery

The Law Society of Western Australia

Wednesday, 25 November

Planning for non-planning lawyers

The Law Society of Western Australia

Wednesday, 25 November

What you need to know about franchising

The Law Society of Western Australia

Thursday, 26 November

Personal injury law update

The Law Society of Western Australia

DECEMBER CPD EVENTS Tuesday, 1 December

Strategies for being an effective supervisor

The Law Society of Western Australia

Thursday, 3 December

The protection of business, domain names and trademarks

The Law Society of Western Australia

Wednesday, 9 December

Planning financially for the next step

Macquarie Bank, Seminar Room

Thursday, 10 December

YLC: a view from the bench

The Law Society of Western Australia

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

ONLINE LEARNING FOR THE LEGAL PROFESSION elearning.lawsocietywa.asn.au


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Profile for The Law Society of Western Australia

Brief August 2015  

Brief August 2015  

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