Brief June 2015

Volume 42 | Number 5 | June 2015

LAW WEEK WRAP-UP FAREWELL SPEECH – JUSTICE MCKECHNIE

John Toohey AC Eulogy

THE BMW END OF FINANCIAL YEAR SALES EVENT.

BMW

Sales Finance Service Parts

LET’S GET THE CONVERSATION STARTED.

It’s time to talk at the BMW End of Financial Year Sales Event. We’ve crunched the numbers to make sure you walk away with the Ultimate Driving Machine you’ve always dreamed of – all you have to do is come in and get the conversation started. Visit Auto Classic or Westcoast BMW and arrange a test-drive before June 30.

MINUS THE GST ON A RANGE OF NEW BMW MODELS ^.

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0450 525 025. autoclassic.com.au LMCT 2271 Westcoast BMW Cnr Luisini Road and Hartman Drive, Wangara. Ph 9303 5888. A/H 0409 803 586. westcoastbmw.com.au

LMCT 2271

^The manufacturer’s recommended drive away price will be reduced by the equivalent of the GST component for new BMW models, excluding BMW i, M, 5, 6, 7 Series models, BMW Z4, BMW X5 and BMW X6. Available on vehicles purchased and delivered from Auto Classic or Westcoast BMW between 18/05/15 and 30/06/15 while stocks last. Excludes fleet, government & rental buyers. Cannot be combined with any other offer. GST is still included in the final reduced drive away price. Consult Auto Classic or Westcoast BMW for further details.

Contents

GO DIGITAL!

Volume 42 | Number 5 | June 2015

Take me with you.

16

08

02

President’s Report

34

Law Week Wrap-Up

Matthew Keogh

03

Your voice at work

36

Address on behalf of the WA Bar Association on the Occasion of the Retirement of McKechnie J

04

Editor’s Opinion

Peter Quinlan SC

Julian Sher

38

Farewell Speech – Justice McKechnie

06

Uncivil advocacy

John McKechnie QC

Gino Dal Pont

08

Indigenous Incarceration Rates

41

Book Review of The Marriage Knot: Marriage and divorce in colonial Western Australia 1829-1900

The Honourable Wayne Martin AC, Chief Justice of Western Australia

Review by the Hon Peter Dowding SC

42

Running an arbitration under the Commercial Arbitration Act – some practical issues

Steven Standing

46

Family Law Case Notes

47

Thomas Hurley Case Notes

48

Law Council Update

16

FEATURE John Toohey AC - Eulogy

Chief Justice Robert French AC

20

Basic Trial Advocacy - Preparation for Cross‑Examination

John McKechnie QC

49

Pam Sawyer

25

Society Club

50

Professional Announcements

26

LPCC Current Issues

51

New Members

28

Judicial Case Management and the Problem of Costs - Part Two

51

Classifieds

Chief Justice James Allsop

52

Events Calendar

33

Letter to the Editor

Cover and feature article image: Photo with permission of the Western Australian Bar Association Inc of the painting of John Toohey AC which hangs at Francis Burt Chambers. Portrait by Drewfus Gates.

DISCLAIMER The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by The Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed

by Brief.

COPYRIGHT Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by The Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Eleanor Jackson Manager - Business Development Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Manager Marketing & Communications Moira McKechnie Communications and Design Officer Brett Syme

EDITOR Julian Sher

PRESIDENT Matthew Keogh

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

SENIOR VICE PRESIDENT Elizabeth Needham

PROOFREADERS Michael Hardy, Andrew MacNiven

RRP $15.00 incl GST. Printed by Scott Print

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

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

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

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

IMMEDIATE PAST PRESIDENT Konrad de Kerloy EXECUTIVE DIRECTOR David Price

01

report

President's Report Matthew Keogh, President, The Law Society of Western Australia I sent out words like soldiers to battle and they never returned.

Horace Rumpole And so endeth another Law Week last month and another financial year this month.

LAW WEEK In case you didn't get to hear from me directly on the topic during Law Week, at the Council and Senior Management strategic planning workshop in February 2015, two strategic campaigns were chosen for 201516 focussed on: • Supporting the practice of law – being about professional practice; and • Supporting lawyers – dealing with wellbeing and mental health, gender bias and retention of women in the legal profession.

Supporting the practice of law This campaign is about the Law Society providing better support and best practice guidance to legal practices of all sizes in the management and running of their practices as well as guidance to practitioners on navigating their career progression.

Part of this work includes: • New Website – with access to the vast range of valuable resources and practice toolkits.

• Best Practice Guides on supervision, healthy work practices, bullying, harassment, discrimination, and flexible working arrangements and other guides, to provide more useful information to the profession.

• Member MyPage - providing access to better manage your membership, CPD needs and find relevant information.

• Promotion of the Quality Practice Standard, for firms to develop and adhere to documented internal systems and processes, designed to improve client satisfaction by clearly establishing and refining internal working procedures and avoiding wastage.

• And of course, our CPD programme, not only delivering training in black letter law and ethics, but in practice management, and soft skills and the things that can make a difference in our practice.

Supporting lawyers This campaign is about ensuring the Law Society:

02 | Brief June 2015

• has appropriate initiatives to limit harm to mental health and wellbeing for lawyers, as well as to support those requiring it; • works towards eradicating gender bias; and • works towards a profession that retains women in its ranks and increases the proportion of women in its leadership.

At a local level, many of you will be aware of the Women Lawyers of Western Australia's 2014 20th Anniversary Review of the 1994 Chief Justice's Gender Bias Taskforce Report. Chapter 2 of this Review is focused on the Career paths for women in the legal profession and contained 18 recommendations directed towards the Law Society. Of these, 12 have either been implemented or are in action, and the Law Society has convened a working group to develop initiatives in response to the remaining six as well as to support the profession in meeting the recommendations made for it.

Of course, we need to ensure we not just talk the talk, but walk the walk and stand up as champions for change, not only for diversity but also for the way we practice.

The standard we walk past is the standard we accept and the legal profession should always be a profession that maintains exceptionally high standards in all areas.

LOOK AFTER YOURSELF It is important as many of us attempt to sprint to the finish line on 30 June to remember to take a breath and preferably a break regularly along the way. It is, of course always important to make sure we can meet our clients' needs, as well as to make sure all our own WIP is cleared but must also ensure that we maintain our physical and mental energy.

Physical energy It will come as no surprise to anyone that inadequate nutrition, exercise, sleep, and down time diminish our energy levels and our ability to manage emotions and remained focused. However, many lawyers (this one included) don't implement health habits or practices.

So try and exercise and to work towards a set bed time that allows you get sufficient sleep. It is also important that we eat properly, eating smaller meals and light snacks throughout the day. This helps to stabilise sugar levels; avoiding the highs and lows that throw us off our game in the office or in court.

Also take brief but regular breaks throughout the day – this means actually leaving your desk. After 1 ½ to 2 hours of work, you will know already that your body gets restless, you yawn, feel hungry and have difficulty concentrating. Don’t ignore this, it’s a sign your body needs to be recharged. So get up, take a lap of the floor or even better, go for a walk around the outside of your building. This has the added benefit that you can give your mind space to process, giving you better insight into the big picture of matters and find creative solutions.

Mental Energy We all know distractions are costly but often we don't realise just how much. Even a momentary distraction, like stopping to answer an e-mail or take a phone call, increases the amount of time necessary to finish the first task by as much as 25%. It is far more efficient to fully focus for 90 to 120 minutes, take a true break, and then fully focus on the next activity.

To assist with this, try to remove the constant interruptions, especially those brought to us by the wonders of technology. Things to consider are leaving your desk to work in a meeting room, away from telephones and email when working on something requiring concentration. Instead of responding to emails constantly, check them at a few set times through the day. Remember, if it’s really urgent, someone will call you.

Times of crisis Often the best laid plans come unstuck in times of crisis, be it to close the deal, settle the litigation or close out the financial year. Amongst all of that, it is even more important to take the breaks, ensure you get to recharge and can think clearly. It not only makes sure the work is done well but it will actually get it done faster. Even better, if you can engage your whole team in these approaches you will improve the whole team's productivity, get on better and be more energetic in the process.

A reminder members have access to LawCare(WA), on 1300 361 008 or visit lawsocietywa.asn.au/lawcarewa.

To conclude, the wise words of Dr Seuss and see you in the new financial year: Be who you are and say what you feel, because those who mind won't matter, and those who matter won't mind.

your voice at work

Your voice at work A snapshot of recent Society initiatives LAW SOCIETY LIMITATION OF LIABILITY SCHEME The Limitation of Liability Scheme (Scheme) caps occupational liability and is therefore a significant benefit of Law Society membership.

From 1 July 2015: •

A $220.00 fee will no longer be payable by each member who participates in the Scheme.

•

The fee payable for participation in the Scheme will be reduced to only $50.00, the amount the Law Society is required to pay to the Professional Standards Council for each participating member.

•

A Law 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.

LAWYER OF THE YEAR AWARDS Congratulations to the winners of the 2015 Law Society Lawyer of the Year Awards: •

Mr John Fiocco for a practitioner with more than five years' experience; and

•

Mr Callum Hair for a practitioner with less than five years' experience.

The recipients accepted their awards on Friday, 15 May at a cocktail celebration to officially close Law Week 2015, hosted by Bankwest.

Mr Fiocco and Mr Hair were presented with their awards by Law Council of Australia President Duncan McConnel.

Mr Dudley Stow was also acknowledged as the Law Society's most recent Life Member.

Law Society President Matthew Keogh said, "The Lawyer of the Year Awards recognise lawyers who go above and

beyond in their contributions to the profession and the community. Mr Fiocco and Mr Hair are outstanding examples of the great work of lawyers helping others in the community."

"The Law Society Lawyer of the Year Awards are an important way to celebrate the achievements of lawyers and to encourage even greater community assistance by the legal profession," said Mr Keogh.

During their time in Perth, the Executive of the Society and Law Council of Australia met representatives from the profession to discuss the Legal Profession Uniform Law, national attrition and re-engagement strategies, graduate numbers, Indigenous incarceration and the Law Council of Australia's international strategy along with a number of other key initiatives affecting the legal profession.

SUBMISSIONS

The Society thanks: •

Profile Legal Recruitment, sponsor of the Western Australia Lawyer of the Year Awards;

•

Bankwest as the host of our awards event; and

•

the Public Purposes Trust for its grant to support Law Week activities this year.

LAW COUNCIL OF AUSTRALIA NATIONAL ATTRITION AND REENGAGEMENT STUDY WORKSHOP President Matthew Keogh, Senior Vice President Elizabeth Needham and Executive Director David Price joined Australian legal profession leaders in Sydney on 8 May 2015 to implement initiatives that promote diversity and equality in the profession.

This workshop arranged by the Law Council of Australia has led to the adoption of a Diversity and Equality Charter that promotes the respect and inclusion of all legal professionals, regardless of sex, sexuality, disability, age, race, ethnicity, religion and culture.

A copy of the Charter is available on the Society's website lawsocietywa.asn.au.

SOCIETY HOSTS THE EXECUTIVE OF LAW COUNCIL AUSTRALIA The Society was delighted to host the Executive of Law Council Australia during Law Week 2015. The executive members attended a number of Law Week events including the Cocktail evening and the announcement of the coveted Lawyer of the Year Awards.

28/04/2015 Officer of Compromise – Proposal for amendment to Order 24A Rule 10 Rules of the Supreme Court (C280415C1) Letter to the Chief Justice of Western Australia (State) 28/04/2015 Senate Finance and Public Administration Reference Committee Inquiry – Access to Legal Assistance Services (C280415C5) Submission to the Senate Finance and Public Administration References Committee Inquiry (Federal) 28/04/2015 Landgate Consultation Paper – Sale of Land Act: Proposals for changes to Section 13 (C280415C6)* Submission to Landgate (State) 28/04/2015 Review of Schedule 4.7.1.1 of the Supreme Court Consolidated Practice Directions – Schedule of Standard Costs Orders for Interlocutory Applications (C280415C10) Letter to the Principal Registrar of the Supreme Court of Western Australia (State) 28/04/2015 Proposed Amendments to the Workers' Compensation (Legal Practitioners and Registered Agents) Costs Determination 2015 (C280415C12) Letter to WorkCoverWA (State) 03

editor’s opinion

Verbal communication: an unnatural talent Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal

This month I want to talk about effective communication. The spur is my various unsuccessful attempts to renew my practising certificate online via the Legal Practice Board website. Like past years, I expected a seamless and painless process, taking but a few minutes of my time. Unfortunately, this year, my naïve expectation has been dashed, with the inability of the Board's IT to cope with the demand for renewals in May. I had assumed that the Board could easily cope with peak demand, having urged us to renew in May, but, disappointingly, not this year. There should have been a communication advising us of the problem and suggesting how best to deal with it, but it was not to be.

My point is not that the whole renewal debacle is Kafkaesque – which it of course is. More to the point is the failure for whatever reason to communicate adequately. Like other well known institutional bureaucracies from time to time, the Board on this occasion has treated the users of its services with a lack of consideration. I fervently hope that by the time of publication, the source of frustration will have been removed – and I will somehow have managed to renew my certificate for another year.

This leads neatly to the apparently commonly held assumption that lawyers are naturally gifted oral communicators.

I infer this from the conspicuous lack of oral communication training for lawyers.

This is surprising, if you stop to think about it, because verbal competency is our bread and butter. Litigators are well served by advocacy training, but there is the added expectation that lawyers will deliver learned papers and give presentations, for internal training or client marketing or networking purposes.

Practitioners of course continue collectively to make huge voluntary contributions of their own time and effort for the general good of the profession, as the Law Society's CPD programme amply shows.

04 | Brief June 2015

My observation, gleaned over many years, is that we, as a profession, may not be as gifted as we may occasionally think we are. The era of "being thrown into the deep end" seems to be well and truly over, with so many training opportunities now available. It follows that practitioners should be offered training in the art of effective speaking to suit the occasion. The use and abuse of Powerpoint should be included, as could guidance for difficult conversations in our professional lives. We as a profession need to consider making available more opportunities for training in this area.

In this month's issue, we continue our efforts to deliver varied and engaging content. We commemorate the life of the late Justice Toohey in recognition of his enormous contribution to the legal profession here and nationally.

We publish the eulogy delivered by His Honour the Chief Justice of Australia and expect to publish further archival material in the next issue.

We include the second and final episode of the thought provoking and timely feature on judicial case management and the problem of costs, by His Honour the Chief Justice of the Federal Court of Australia. This issue also contains the 2015 Law Summer School speech by His Honour the Chief Justice of Western Australia on the perturbing issue of indigenous incarceration rates. The Legal Profession Complaints Committee provides essential clarification this month on the professional obligations when practitioners act for themselves, and Professor Dal Pont's column examines uncivil advocacy. There is also an article

by Steven Standing on aspects of running a domestic arbitration under the Commercial Arbitration Act, as well as social and professional news, case notes and an entertaining book review on The Marriage Knot by Peter Dowding SC. For the first time in a long time, this month's Brief also contains a letter to the editor. The subject is the advantages for Western Australia of

joining a national scheme for the legal profession. Richard Reynolds merits an editor's commendation for taking up my invitation to engage with Brief by going to the effort of actually writing a letter for publication. I again encourage readers to follow Richard's excellent example, by resuming the tradition of writing letters to the editor on topics of relevance to the profession. For the sake of absolute clarity, I should mention that in recognition of the fact that this is the second decade of the 21st century (and to make it even easier for readers), I have decreed that emails to the editor will qualify for publication in the letters to the editor column.

In this vein, since becoming the editor several months ago, I have received positive feedback from members of the profession, which is of course gratifying.

I have also received contributions and promises of contributions of feature articles from colleagues, which will, I hope, be published later this year. I thank all those colleagues who are playing a part in maintaining the quality of Brief by giving me feedback and especially by making my task so much easier by volunteering home grown contributions for publication.

In my first editorial this year, I articulated my intention to publish articles from overseas on topics of interest to domestic readers. Brief is in the process of entering into an arrangement with the Solicitors Journal, the organ of solicitors in England Wales, for the mutual publication of material of interest. I hope to begin the publication of an occasional column containing that material later this year.

Brief welcomes your thoughts and feedback.

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

COMMERCIAL LITIGATION LAWYER PROVIDE EXPERT ADVICE

INSOLVENCY LAWYER DELIVER COMMERCIAL OUTCOMES

This top tier legal firm has a well developed client base and a strong reputation in the Perth market. This firm is currently seeking a Commercial Litigation Lawyer, at the Senior Associate level to join its expert team.

This modern, forward thinking firm in the heart of Perth’s CBD offers a collegiate, professional environment where you’ll get to work on top quality matters. An exceptional opportunity has become available for a mid level Lawyer to join the insolvency and restructuring team in the commercial advice and litigation practice group.

This is an excellent opportunity for a Commercial Litigator to develop their skill set, working in an extremely well regarded team.

You’ll have partnership aspirations for the short term future and a solid background in commercial litigation, ideally with regards to matters within IP/IT, construction and insolvency.

The team acts for major corporate groups, blue chip companies and individuals. With guidance from the lead partner, you’ll be directly involved in all aspects of asset recovery, reconstruction and insolvency.

Advising on a range of complex commercial litigation matters, you’ll work alongside one of Perth’s leading litigation Partners. Exposure to a client base consisting of some of Perth’s high profile businesses will allow you to grow and develop your career.

To be considered for this role you’ll have a minimum of 3 years PQE in banking and finance recovery, insolvency and reconstruction. With a high level of client contact your excellent communication skills and enthusiasm will ensure your success.

In order to be considered for this Commercial Litigator role, you’ll be at Senior Associate level with a solid background in commercial litigation. You’ll hold excellent academics, strong analytical skills and the confidence to network and effectively negotiate.

In return you’ll join a market leading practice which is committed to your continued career development, whilst offering an attractive remuneration package.

Contact Gary Jackson at gary.jackson@hays.com.au or 08 9254 4598.

Contact Gary Jackson at gary.jackson@hays.com.au or 08 9254 4598.

hays.com.au

hays.com.au

LEGAL SECRETARY INSURANCE PROVIDE EXCELLENT SUPPORT

LEGAL SECRETARYRESOURCES YOU’RE IN DEMAND

This leading mid-tier firm has established an excellent reputation in the local market and has attracted an enviable client base. An excellent opportunity has arisen for a Legal Secretary to support the firm’s busy insurance team.

This opportunity will see you directly responsible for electronic diary management, audio and copy typing, preparing and editing legal documents, client liaison, file management, monthly billing and responding to correspondence. To ensure your success in this fast moving firm your hard working, corporate and adaptable demeanour will be essential along with your strong technical ability.

Solid legal secretarial experience is essential and previous experience within this key practice area would be highly desirable.

As a fast and accurate typist you’ll require a minimum typing speed of 70wpm.

Contact Lennie Waller at lennie.waller@hays.com.au or 08 9322 5383.

This well established top tier firm has an excellent opportunity for a Legal Secretary to join the diverse and welcoming environment this firm promotes on a permanent basis.

Operating in a rapidly changing environment, you’ll support a range of Partners, duties will include, but not be limited to, electronic diary management, audio and copy typing, preparing and editing legal documents, client liaison, file management, monthly billing and responding to correspondence.

To ensure your success in this fast moving firm your hard working, corporate and adaptable demeanour will be essential along with your strong technical ability. A minimum of three years of solid legal secretarial experience is essential and previous experience with document management systems is preferred. As a fast and accurate typist you’ll require a minimum typing speed of 70wpm.

In return for your flexibility and adaptability you’ll not only receive an attractive salary package but an enviable work culture and ongoing support and development.

Contact Lennie Waller at lennie.waller@hays.com.au or 08 9322 5383.

hays.com.au

hays.com.au

ethics

Uncivil advocacy An intensifying spotlight on incivility in advocacy cannot be ignored Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Early in 2015 a Canadian court referred to an "increasing concern over the last number of years that the conduct of lawyers is becoming less and less civil — both inside and outside the courtroom".1 The court pondered the drivers for this 'increase in incivility' in the context of advocacy, including vis-à-vis the opposing lawyer, client or witnesses, and also the Bench. One driver, it surmised, could be demands by clients who, completely unfamiliar with what actually constitutes effective advocacy, believe that an aggressive lawyer is an effective lawyer. Competition for legal work may prompt aggressive advocacy in the belief that clients desire an 'attack dog'. The court identified a second, related driver, namely the image of lawyers in television shows, and in other media, where actors portray lawyers in a fashion unrestrained by any need to represent reality and without concern for the reputation of the legal system.

Yet, as the court went on to note, "[g]ood advocacy often does not make good television".2 In a given case, the line dividing what is legitimate zealous advocacy — including that punctuated by a degree of aggression — as opposed to unprofessional conduct may be fine. What traverses into the realm of misconduct may, in practice, prove very much contextual. 'Uncivil' words spoken by one lawyer in one case may not cross the line into misconduct whereas similar words in a different case may.3 This, of course, does not obviate the need for courts and disciplinary tribunals to at least attempt to conceptualise the distinction in an ostensibly binary fashion. For instance, the New South Wales Court of Appeal, on the way to making a finding of professional misconduct arising chiefly out of a barrister's approach to advocacy, opined that "courage and aggression are acceptable and sometimes necessary weapons in the barrister's armoury; calculated insult and insolence are not".4 Extrapolated under the encompassing banner of undermining the proper administration of justice, the following 06 | Brief June 2015

behaviours have more recently been identified as crossing the line:5 Such conduct will include, but is not limited to, repeated personal attacks on one's opponents or on the judge or adjudicator, without a good faith basis or without an objectively reasonable basis; improper efforts to forestall the ultimate completion of the matter at issue; actions designed to wrongly impede counsel from the presentation of their case; and efforts to needlessly drag the judge or adjudicator 'into the fray' and thus imperil their required impartiality, either in fact or in appearance. Of special concern is any such conduct that could ultimately result in a decision that would amount to a miscarriage of justice.

There are good reasons why incivility in advocacy, whatever its form, is unbefitting of a lawyer. An overly aggressive advocacy style can identify the advocate too closely with the lay client, prejudicing the much-vaunted independence of counsel as critical actors in the administration of justice.

There is the corresponding prospect that this perception may translate to reality, wherein counsel loses at least some semblance of true independence in representing the client. The latter rarely benefits clients. An 'uncivil' advocacy style, in any case, may reek of little short of bullying the other actors in the trial. At a time when bullying, in the profession and elsewhere, is very much in the limelight, an approach that carries connotations of bullying seems difficult to condone.

Moreover, advocates who resort to incivility to pursue their clients' causes feed the widespread belief that lawyers are little more than 'hired guns', who for a (handsome) fee will say and do anything that can be perceived to advantage the payer. While there may well be some (or even many) clients who wish an advocate to pursue this course on their behalf, a profession populated by unbridled 'hired guns' threatens

to undermine the foundations of the adversary process. And it cannot be denied that, in a legal system premised upon open public access to (most) court proceedings, public perception of uncivil ('brawling') lawyers does little to foster public respect for the profession. If "a profession's most valuable asset is its collective reputation and the confidence which that inspires",6 as an English judge has said, incivility has an unfortunate progeny.

There are compelling grounds, accordingly, for disciplinary tribunals and courts to view incivility by advocates as a disciplinary issue. There is, perhaps unsurprisingly, an increasing tide of statements at a judicial level reinforcing the need for civility.7 Advocates have, to this end, been warned. Should the warning not be heeded, aside from disciplinary consequences, regulatory bodies may respond by formulating something in the nature of a 'principles of civility' statement. Yet the fact that this was found necessary in the Canadian province of Ontario, drilling down to some minutiae of professional interaction (including the shaking of hands between counsel after a trial),8 is perhaps no real cause for celebration.

NOTES

1.

Groia v Law Society of Upper Canada [2015] ONSC 686 at [23] per Nordheimer J, delivering the reasons of the court.

2.

ibid., at [24].

3.

ibid., at [68].

4.

Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203 per Glass and Samuels JJA.

5.

Groia v Law Society of Upper Canada, above note 1, at [76].

6.

Bolton v Law Society [1994] 1 WLR 512 at 519 per Sir Thomas Bingham MR.

7.

See, for example, Ken Tugrul v Tarrants Financial Consultants Pty Ltd [2014] NSWSC 437 at [70] per Kunc J; Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 4) [2014] WASC 282 at [59] per Edelman J.

8.

Advocates' Society, Principles of Civility for Advocates, April 2009, cl 63.

a

on EE rsi ve FRCon

at D

*

NEW! Time record whilst creating documents

n

Automatically calculates time taken whilst creating your documents;

n

Creates a time slip within the timesheet and saves the document against the matter;

n

Creates an intelligent default billing description; and

n

Is available within MS Word, Outlook and Excel. *Available for orders made before 19 June 2015. Non LEAP clients only.

Switch to LEAP today and you will receive a FREE Data Conversion!* Invest in your firms future - call a product consultant today.

www.leap.com.au | 1300 886 243

Indigenous Incarceration Rates Strategies for much needed reform 2015 Law Summer School Speech

The Honourable Wayne Martin AC, Chief Justice of Western Australia

ACKNOWLEDGEMENT

MAGNA CARTA

Given the topic which I am addressing, it is more than usually appropriate to acknowledge the traditional owners of the land on which we meet, the Whadjuk people who form part of the great Noongar clan of south-western Australia and I pay my respects to their Elders past and present.

Given the theme of this conference, it is also interesting to note that Noongar law is much, much older than the principles laid out in Magna Carta a mere 800 years ago. It is also worth noting that Aboriginal people have been gathering near where we gather on the banks of the body of water which they know as

08 | Brief June 2015

Derbarl Yerrigan and which we know as the Swan River for thousands of years before the English earls and barons bailed up King John on the banks of the Thames near Runnymede and used coercion to force him to sign the Great Charter. It is an interesting paradox that a document which has been taken to signify the rule of law was procured by coercion. Nevertheless, it was seen by

the land". There is another clause that I think would resonate with Aboriginal people under which the King undertook "to any man whom we have deprived or dispossessed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these".

The Great Charter, is celebrated at least as much in America as anywhere.

Indeed, later this year 600 American lawyers are descending upon Runnymede as part of the anniversary celebrations. That is because the Charter is an integral part of the legal culture which the English took to their various colonies. Had the first inhabitants of this English colony known about the Great Charter, they might have expected its terms to provide them with some protection from oppression.

But, of course, history tells us that they would have been sadly disappointed.

They were not recognised as citizens, or in the words of the Charter, free men until 1967, almost 200 years after colonisation. In practical terms, Aboriginal people still have not achieved the protection of an entitlement to trial by their peers, because around this state they are very often tried by all-white juries or by white judges and magistrates. Regrettably, those magistrates, judges and jurors often have a quite inadequate appreciation of Aboriginal culture, values, traditions and ways of life.

I think it is no overstatement to say that the justice system of this country has not served Aboriginal people well. Certainly it has led to their incarceration at quite extraordinary rates.

INCARCERATION RATES those earls and barons as a charter of redress for despotism and tyranny, and of course because democracy had not made its way from ancient Greece and Rome to Western Europe by then, all the nobles had to fall back on was the rule of law. The document is replete with concepts and propositions that we would now embody under the heading 'the Rule of Law', although those terms are not used in the Great Charter.

Some of the provisions of the Charter are relevant to the topic we are addressing.

One of those provisions was that "no free man" - and that is a term that is used in the Charter to describe a citizen - "shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him or send others to do so, except by the lawful judgment of his equals or by the law of

What is the magnitude of the problem?

Let us look briefly at the statistics.

Criminologists talk of imprisonment rates in terms of people per 100,000. In Western Australia, the adult Aboriginal imprisonment rate is 3,663 per 100,000.1 That compares to the national rate of 2,174, so if you're quick at maths, the rate in this state is about 70% higher than the national rate. The next highest rate is in the Northern Territory at 2,808/100,000, so our rate is about 30% higher than the rate in the Territory.

That compares to the non-Aboriginal imprisonment rate in Western Australia of 164/100,000, so the nonAboriginal:Aboriginal ratio is 164:3,663.

That is a multiple of 22.3 times. That has the result that tonight one out of every 15 adult Aboriginal men will spend the night in prison.2 Aboriginal people tonight will comprise about 40% of the adult prison population of Western Australia even though they only comprise about

3.5% of the general population. The rate of imprisonment of Aboriginal women is rising faster than the rate pertaining to Aboriginal men, and Aboriginal women now comprise more than 50% of the female prison population in this state.3 The statistics relating to Aboriginal children are even more depressing.

The disproportion of Aboriginal children in detention is 58 times greater than non-Aboriginal children per head of population.4 Aboriginal children comprise about 75% to 80% of the population at Banksia Hill.

Happily, the total number of children in custody is declining per head of population both nationally and in this state,5 but the proportion of Aboriginal children among those in detention remains unacceptably high. The juvenile detention rate for Aboriginal children in Western Australia is also about 30% higher than the rate in the Northern Territory.6 COST How much is this costing us? In Western Australia it costs about $120,000 a year to keep an adult in prison,7 so we are currently spending about $260 million a year incarcerating Aboriginal adults.8 Last year it cost $300,000 a year to keep a child in detention in Western Australia,9 although that figure was unusually high because of the costs associated with the riot at Banksia Hill. But on any view, bearing in mind that 75% to 80% of the children in Banksia Hill are Aboriginal children, the cost of detaining them must be measured in many tens of millions of dollars each year.

In 2008, the Auditor-General's review of juvenile justice concluded that the 250 children who have the greatest number of intersections with the criminal justice system in Western Australia will cost the State of Western Australia $100 million (in 2008 dollars) when they pass between the ages of 10 and 17.10 If you are quick at maths, that is $400,000 per child. Inflate that to today's costs and it is probably about half a million dollars per child. We could send those children to Geelong Grammar and to a Swiss finishing school and still have change.

INDIRECT COSTS These are just the direct costs. I could talk for a long time about the indirect costs of incarceration. Incarceration has become a rite of passage for a lot of Aboriginal people. It is often a form of family reunion, although it leaves the family on the outside completely fractured.

09

IS INCARCERATION REDUCING CRIME? Is incarceration at these rates helping to reduce crime and make our community safer? Is all this expenditure reducing Aboriginal offending? It seems not. 80% of the Aboriginal people in prison have been there before.11 Tragically most of the children who are in detention graduate into the adult criminal justice system, including the Aboriginal children.

A REGRETTABLE TRUTH Why are Aboriginal people so overrepresented in our courts and prisons?

The regrettable truth is that the main, but not the only reason why Aboriginal people are overrepresented in our courts and prisons, is because they are overrepresented amongst those who commit crime. But there are two things that need to be immediately said about that proposition.

ABORIGINAL VICTIMS The first is that Aboriginal people are just as overrepresented amongst victims as they are amongst offenders. Most Aboriginal crime is directed against other Aboriginal people. Even lethal harm is often directed by Aboriginal people towards themselves. The Aboriginal suicide rate is three times higher than the non-Aboriginal rate.12 MOST ABORIGINAL PEOPLE ARE LAW ABIDING It is vital to remember that not all or even a majority of Aboriginal people are offenders. The figures might make one think that all Aboriginal people are offenders. The vast majority of Aboriginal people are law-abiding citizens. A relatively small number of Aboriginal people are responsible for an astoundingly large amount of crime. You would think this should make it easier to solve the problem, but it does not seem to have been the case.

Why do some Aboriginal people commit more crime than non-Aboriginal people?

I think the answer to this question is quite obvious and lies in the fact that Aboriginal people are significantly over-represented amongst the most marginalised and disadvantaged people within our society, and it is the most marginalised and disadvantaged people within our society who are much more likely to commit crime. Why are Aboriginal people over-represented amongst that group? Well we all know the history since colonisation which involves dispossession, disenfranchisement, brutalisation, cultural alienation, fracturing of families 10 | Brief June 2015

by misguided policies and so on and so on. The consequences of these various things have been disastrous.

They explain why Aboriginal children are significantly over-represented amongst the children who are the subject of care and protection orders. Around the nation 35% of care and protection orders relating to children involve Aboriginal children whereas Aboriginal children comprise only 4.6% of the juvenile population.13 Tragically the number of care and protection orders relating to Aboriginal children has grown by over 250% since 2005.14 So the number of Aboriginal children under care and protection is rising at an alarming rate.

SYSTEMIC DISCRIMINATION Over-representation amongst those who commit crime is, however, plainly not the entire cause of over-representation of Aboriginal people. The system itself must take part of the blame. Aboriginal people are much more likely to be questioned by police than non-Aboriginal people. When questioned they are more likely to be arrested rather than proceeded against by summons. If they are arrested, Aboriginal people are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted. If Aboriginal people are convicted, they are much more likely to be imprisoned than nonAboriginal people, and at the end of their term of imprisonment they are much less likely to get parole than non-Aboriginal people. Aboriginal people are also significantly over-represented amongst those who are detained indefinitely under the Dangerous Sexual Offenders legislation. So at every single step in the criminal justice process, Aboriginal people fare worse than non-Aboriginal people.

Recently I had the benefit of attending a very interesting lecture given by Professor Catharine MacKinnon who is an expert in the field of gender discrimination.15 Professor MacKinnon drew a very interesting distinction between formal equality and substantive equality. Formal equality relies upon the analysis of equality attributed to Aristotle - that is, like things must be treated alike and unalike things must be treated differently. That is the approach that the High Court has consistently taken.

Using that approach, the legislation providing for move on orders, for example, does not discriminate against Aboriginal people because anybody who is committing a public nuisance can be subject to a move on order. The Bail Act 1982 (WA) does not discriminate

against Aboriginal people because people who do not have a home, and who are not in stable employment and who have a long prior criminal record are treated the same whether they are Aboriginal or not. Mandatory sentencing does not discriminate against Aboriginal people in this lexicon because it applies to everybody who has committed the offences that result in the mandatory minimum sentence. So using a criterion of formal equality, none of those things discriminate against Aboriginal people, but we know that the effect of them both individually and collectively is that we have very, very large numbers of Aboriginal people in prison.

This is where Professor MacKinnon's notion of substantive equality can be applied. Simply put, under this notion if one looks at the outcomes of a system and sees that they are skewed we can safely conclude that the system is not working fairly. We know that the outcomes of the criminal justice system are significantly skewed in the ways in which that system relates to Aboriginal people. That seems to me to lead inexorably to the conclusion that Aboriginal people are significantly disadvantaged within our criminal justice system. Whether one wants to go the next step and call the adverse outcomes for Aboriginal people the consequence of discrimination or disadvantage is really a matter of nomenclature which does not alter these outcomes.

WHAT CAN WE DO? So how do we address the chronic over-incarceration of Aboriginal people?

There are a variety of possible responses worthy of consideration that I would group into three categories: short-term, medium-term and long-term.

SHORT-TERM RESPONSES Driving offences Aboriginal people are grossly overrepresented amongst those who do not have driving licences. There are lots of reasons for this which are well known.

I will not go through them all now. They result in a lot of Aboriginal people being imprisoned for driving offences that do not involve drunk driving or dangerous driving, but repeated driving without a licence. Very often such offenders have had no real opportunity to get a licence for a variety of reasons. Very often there is no practical alternative to driving without a licence. If you are in a remote community, there are no taxis or buses.

There are far too many Aboriginal people in prison whose only crime has been to drive without a driver's licence. Traffic

laws fashioned for the metropolitan area can operate unjustly in remote communities.

Fine default Imprisonment for fine default has been a topical subject recently following the tragic death of Ms Dhu.16 In 2013 1,358 people who were taken into prison were imprisoned only for fine default and for no other reason.17 16% of Aboriginal people who entered prison that year were there only for fine default.18 27% of women entering prison that year were there only for fine default.19 It is a complex problem. We have to have some kind of penalty for offending behaviour and if people cannot pay a fine, it is difficult to work out what that penalty should be. Those figures show that we have not found a solution to this complex problem yet, and the current arrangements are contributing significantly to the over-representation of Aboriginal people in prison.

Bail Aboriginal people often do not fare well by reference to the factors which a court is required to assess when considering bail because they are less likely to have stable accommodation. As it is costing $120,000 a year to keep a person in prison (or about $330 per day), one would have thought we could provide cheaper accommodation and facilitate the grant of bail. Some very good things have been done in this area in relation to children, particularly in the Kimberley and the Pilbara, and in the Goldfields.

Accommodation is now available for children who intersect with the law so they are not now being flown to Perth and put in detention simply because there is nowhere safe for them to live.

In the metropolitan area there is another programme for children which involves looking very hard to locate a responsible

"Of course, it is up to government as to how much money they want to inject into the legal aid system, but there is an obvious and direct connection between the provision of adequate legal assistance and the rate of over-incarceration of Aboriginal people." adult who then provides appropriate care and supervision. So we have done well in relation to bail issues for children recently but we could do better in relation to adults.

into the legal aid system, but there is an obvious and direct connection between the provision of adequate legal assistance and the rate of overincarceration of Aboriginal people.

Legal Aid

Interpreters

Judges like me must show appropriate restraint when talking about government policies, particularly those relating to spending because, of course, it is for the executive government to determine how public resources are allocated, and it has to make decisions between competing priorities. That is the job of the executive and not mine. Nevertheless, it is appropriate for me to make some observations about the consequences of decisions that have had the effect of reducing the resources available to legal aid agencies. In the recent Productivity Commission report on access to justice arrangements, the Commission recommended the immediate injection of $200 million per year into the legal aid systems of this country.20 If you have economists telling you that you need to spend money to save money, there might be something in it.

The same is true of interpreters. The state government has announced that it will discontinue funding for the Kimberley Interpreter Service,21 as it is perfectly entitled to do. However, if we do not have properly resourced and effective interpreter services for Aboriginal people, then they will continue to fare badly in the criminal justice system.

We also know, and the Productivity Commission reported, that it is not just legal aid in the criminal area that we need to consider because unmet legal aid need in the civil area manifests itself in the criminal justice system, so that civil disputes can turn into criminal disputes very quickly.

Of course, it is up to government as to how much money they want to inject

Mandatory sentencing The same is true for mandatory sentencing. Very shortly there will be a debate in the Parliament about some mandatory sentencing legislation that will almost certainly impact more significantly upon Aboriginal people than upon nonAboriginal people.22 Of course, it is up to the members of Parliament to pass those laws if they wish, but they ought to be aware that the consequences of those laws will almost certainly magnify the problem of incarceration of Aboriginal people at a time when there has been government commitment, at the highest level, to reducing that rate.23 Sentencing The last matter I mention in the category of short-term solutions is what I would call culturally relevant sentencing approaches and solution-focused courts

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

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

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au 11

"The mental health court is doing great work, but it does not have nearly enough places for all the people who need attention of that kind." not using this opportunity nearly as effectively as we could. Why are we not making sure that Aboriginal prisoners can read when they leave prison - that they are numerate; that they have a driver's licence; that they have skills that will render them employable; that they have had substance abuse programmes; that they have had anger management programmes. Why are we not doing all of these things? We are doing some of those things but not nearly as comprehensively as we could.

Parole The Honourable Wayne Martin AC, Chief Justice of Western Australia delivers his speech at Law Summer School 2015.

- the community court in Kalgoorlie, the domestic violence courts, the mental health court, the drug court. They focus on the reasons for underlying behavioural problems rather than simply addressing the symptom which is the offending behaviour. There is a great deal to be said for these courts, but there are problems relating to them. The number of offenders going through the community court in Kalgoorlie is going down significantly. I do not know why, but there are fewer people going through that court than there used to be.

The government has announced that domestic violence courts will be discontinued as specialty courts with effect from 1 July 2015. We do not know what is going to fill that space yet. The mental health court is doing great work, but it does not have nearly enough places for all the people who need attention of that kind. During one sample week it was found that about 240 of the 1,100 people who presented themselves to the Central Law Courts during that week were on the records of the Mental Health Commission. About 50% of people in our prison have either significant cognitive disability or mental illness. So the mental health court is important, but we could use more of them. The drug court works very well but there is no alcohol court, and, of course, alcohol is a significant problem for Aboriginal (and non-Aboriginal) people.

12 | Brief June 2015

MEDIUM TERM RESPONSES Diversion Bad things happen to people when they get into the justice system and into the courts - we know that. We have to try to keep Aboriginal people out of the courts, preferably through programmes that are designed, run and presented entirely by Aboriginal people. There are programmes of this kind. There is a very good programme run by the Yiriman Project which is based out of the Fitzroy Valley. The presenters of this programme struggled desperately to obtain funding for years, despite the fact that we know that it works. It is very, very difficult for programmes of this kind to get off the ground and there are other programmes of that kind. Those are the things we ought to be spending money on. We should be addressing the causes rather than the symptoms of offending behaviour, so that programmes should focus on the underlying cause of that behaviour, and in a family and community context, because often these things have a family and community connection.

Recidivism A recidivism rate of 80% is plainly unacceptable. What are we doing when Aboriginal people do go to prison? Are we using it as an opportunity to improve their skills and effect behavioural change so there is less chance they will go back? I think the answer is that we are

I mentioned earlier that Aboriginal people fare poorly when parole decisions are made, and parole generally has diminished very significantly over the last five years or so. One problem with a reduction in parole is that it reduces the incentive for people in prison to do programmes. If you are not going to get parole why would you do a programme?

We might also ask, is it better to just take somebody to the door at the prison and say, "Well, you have done your time now, off you go - we'll see you later", knowing we almost certainly will, or is it better to say, 'Here is your parole officer - he or she is going to keep an eye on you.

You're going to be urine tested every 2 weeks and we're going to make sure you don't fall in with that bad mob you were moving with before'. The answer to this rhetorical question is obvious, but we have reduced the number of people who are given parole because it is seen as a kind of soft option.

A Specific Committee The option that I put in the group of medium term responses is a committee along the lines of that recently created in New South Wales - a committee charged with the responsibility of reducing Aboriginal incarceration comprised with representatives of all the agencies, chaired by the Aboriginal Legal Service of New South Wales, and with the significant involvement of Aboriginal people.24 LONGER TERM RESPONSES If I am right, and the reason for this over-representation is disadvantage

and marginalisation, the only real solution, which is necessarily long term, is to address disadvantage and marginalisation. We know all the areas of disadvantage. We just do not seem to be addressing it very well. The disadvantage can start before children are born, when too many contract Foetal Alcohol Spectrum Disorder (FASD).25 We know that in the north of this state FASD is now a significant problem in our criminal justice system.

We know the first three years of a child's life are absolutely critical for their future, so we have to improve health and nutrition in those important years in Aboriginal children's lives. We have to improve hygiene; we have to improve housing and stop over-crowding. We have to improve education participation and retention. We have to improve employment. We have to reduce substance abuse. We have to try to address the mental health problems in Aboriginal communities and we have to address substance abuse as well.

That all sounds like a big wish list, but it is not rocket science. We can do these things. We have the capacity to do it with a bit of good will and a bit of effort, and if we do, then we should make some progress in relation to reducing incarceration.

If we are going to do those things, it costs money. At the moment there seems to be a reduction of resources available in these areas. Again this is a matter for government and not for me, but if resources are reduced in what I might call the prevention side, then we will be spending additional resources in our prisons. Why not spend the money on prevention rather than punishment?

In Western Australia we have a looming problem in relation to our remote communities as a result of withdrawal of Commonwealth funding.26 If this results

in a lot of communities closing down and people clustering at places like Fitzroy Crossing and Hall's Creek, then that will manifest itself in a problem in our criminal justice system as well.

SUMMARY I have endeavoured to identify some of the possible responses. With a view to finishing on a positive note, retention rates in school are improving.

Participation rates are also improving, although not nearly as fast as we would like. We also have got some very powerful spokespeople for Aboriginal communities; people in whom we can repose great confidence. It is through listening to Aboriginal men and women that the courts will be better able to deliver on the promise of the Magna Carta - and ensure that justice is informed by a person's peers. There are some promising signs but we need to do better and we need to do it a faster, if we are going to make any impact on the chronic over-representation of Aboriginal people in the criminal justice system.

Paper (2014) 13).

9.

$814 per day in 2013-14 (Department of Corrective Services Annual Report 2013-14 (2014)13).

10.

Auditor General of Western Australia, The Juvenile Justice System: Dealing with Young People under the Young Offenders Act 1994 (June 2008) 7.

11.

ABS, 4517.0 - Prisoners in Australia, 2014 (11 December 2014) (Table 28).

12.

Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2014 (2014) Table 8A.8.1 (Age standardised rates).

13.

Secretariat of National Aboriginal and Islander Child Care, 'Community meeting on the crisis of Aboriginal and Torres Strait Islander child removals' (Media release, 4 February 2015).

14.

AIHW, Child protection Australia 2004-05 (2006) 39; AIHW, Child protection Australia 2012-13 (2014) 41.

15.

Professor Catharine MacKinnon, 'Sex Equality in Global Perspective' (Faculty of Law, University of Western Australia, 16 February 2015).

16.

See, for example, Caitlyn Gribbin and Dale Owens, 'Ms Dhu death: Family distressed by details of WA lockup death amid calls for urgent inquiry' (ABC News online, 30 October 2014) at www.abc.net.au/ news/2014-10-23/family-distressed-by-details-ofwa-death-in-custody-ms-dhu/5835084.

17.

Legislative Assembly, Details of Incarceration Figures, for Fine Defaulters for the Years 2008 to 2013 (Tabled Paper LA2027, 16 September 2014).

18.

ibid.

19.

ibid.

20.

Productivity Commission, Access to Justice Arrangements (2014) Recommendation 21.4.

21.

See, for example, NITV News, 'Fear for the future of the Kimberley Interpreter Service' (1 December 2014) available at: www.youtube.com/ watch?v=WpajKHj9pfM.

22.

See also Calla Wahlquist, 'New burglary laws will jail more Aboriginal people in WA, experts fear', The Guardian Australia (24 February 2015) available at: www.theguardian.com/australia-news/2015/feb/24/ new-burglary-laws-will-jail-more-aboriginal-peoplein-wa-experts-fear.

NOTES

1.

Australian Bureau of Statistics (ABS), 4517.0 Prisoners in Australia, 2014 (11 December 2014) (Table 19).

2.

ABS, 4512.0 - Corrective Services, Australia, September Quarter 2014 (4 December 2014) (Table 14).

3.

ibid, (Tables 4, 13).

23.

4.

Australian Institute of Health and Welfare (AIHW), Youth detention population in Australia 2014 (2014) 11.

Paige Taylor, 'Barnet to examine jail deaths' The Australian, (4 December 2014).

24.

5.

ibid, vii.

Corrective Services NSW, 'New focus to reduce Aboriginal re-offending' CSNSW Bulletin Magazine (November/December 2014) 5.

6.

ibid, Table S10.

25.

7.

$334 per day in 2013-14 (Department of Corrective Services Annual Report 2013-14 (2014)13);

8.

Using an Aboriginal adult prison population calculated as 40% of the estimated prison population for 2014-15 (5,293) (Government of Western Australia, 2014-15 Government Mid-year Financial Projections Statement (2014) 140) and based on the daily rate for 2013-14. Note that this is likely to underestimate the cost as a large number of Aboriginal adults are imprisoned in the regional and more costly prisons (Economic Regulation Authority, Inquiry into the Efficiency and Performance of Western Australian Prisons Issues

See Emma Wynne, 'Foetal alcohol syndrome: Fitzroy Valley leader June Oscar hopes study brings long-term change', ABC News online (20 January 2015) available at: www.abc.net.au/news/2015-0120/june-oscar-fitzroy-valley-highest-fetal-alcoholfigures/6028330.

26.

AAP, 'Premier Colin Barnett says remote WA communities face closure due to Commonwealth funding cuts', Perth Now (13 November 2013) available at: www.perthnow.com.au/news/westernaustralia/premier-colin-barnett-says-remote-wacommunities-face-closure-due-to-commonwealthfunding-cuts/story-fnhocxo3-1227121002455.

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

13

activate your essential membership of the legal profession

magnify your voice: aDvocacy anD aDvisory

Representation on Law Council Australia Feedback on submissions

the original network for the legal profession

40+ Committees

Mentoring

Quality Practice Standard

stay connecteD

Networking and business development

Delivering

Events and discussion

the vision

Accreditation

personal anD professional support

Newsletters, social media, website

Find a Lawyer

Access to Limitation of Liability Scheme CPD

leaD the way in professional practice Access Seminar Papers

learn with continuing professional Development

Unlimited CPD events for annual fee* Online Learning

With membership renewal period fast approaching, now is the time to reacquaint yourself with the value of Society membership.

lawsocietywa.asn.au

broader horizons Latest Opportunities - June 2015 Looking to make your next career move?

With a new financial year upon us, now is the time to reassess your career goals and line up your dream role! Please find below a selection of our latest job opportunities for June.

For further information on our services, or for assistance with your job search, please contact us for a confidential discussion regarding our full range of available opportunities.

Senior Associate Corporate M&A

Commercial Litigator

This international firm acts for many of Australia’s leading companies and is regularly involved in major projects and transactions of national and international significance. The team is now looking to strengthen its capabilities at Senior Associate level.

This leading national firm is well known in the Perth market. Currently experiencing an exciting growth phase, an excellent career development role now exists for a talented Commercial Litigator.

2-4 years PAE

This crucial position will see you working with a high degree of autonomy to service the firms existing client base, as well as develop and expand your practice over time. You will work across every aspect of transactions, with the scope of work to include M&A, ECM, joint venture arrangements, general corporate advisory and governance matters.

As part of a premier team which frequently tops the Australian corporate deal lists, you will work alongside recognised industry partners and will mentor juniors in your group. You’ll require at least 5 years PAE and solid experience at SA level, gained with a top tier team or specialist corporate firm.

Acting for a diverse range of Perth based, national and some international clients, you will be immediately engaged on complex commercial litigation matters, with a strong focus on building & construction and contractual disputes. Broader corporate, property, insurance and major project litigation will also form part of your role.

You will work alongside nationally recognised partners, who will contribute to your professional development and will be involved in the active management of litigation strategy, negotiation processes and overall building of client relationships.

At least 2 years solid PAE with a top tier or leading second tier Litigation team, strong academics and some existing exposure to construction litigation work will ensure your success.

Commercial Property

Workplace Relations Lawyer

3-5 years

3-5 years

This recognised firm has undergone a successful expansion in the local market. A crucial appointment now exists for a Commercial Property Lawyer to help drive the continued growth of the firms thriving Real Estate practice.

This prominent firm has emerged as one of Perth’s most sought after practices. A Workplace Relations specialist, with quality employment, industrial relations and advocacy experience is required to support an established base of market leading employers within resources, construction and other key industry sectors.

You will act for a range of listed companies, private clients, government entities and some high net worth individuals with substantial property portfolios on property sales, acquisitions and disposals, leasing matters, property financings, contracting arrangements, property developments and due diligence matters.

The team is experienced in delivering advice and support across every aspect of property and major development projects, ensuring well rounded experience, regular autonomy and interface with clients. You’ll require 3 years PAE with a leading Perth Property team.

Ideal career move for an ambitious and motivated practitioner looking to seriously progress their career with this growing team.

The primary focus of your role will be to advise on and manage any dispute matters, as well as prepare employment contracts, policies, enterprise agreements and other commercial documents. You will also have active involvement in client training, presentations and networking activities as you assist the lead partner with the growth and development of this practice.

Within a smaller, cohesive team structure, prime opportunities for progression exist and quality candidates with a minimum of 3-4 years PAE, through to SA level will be considered for this position. You will be guaranteed direct client contact, mentoring and collaboration with a talented partner and opportunity to manage your own matters.

Stacey Back Director p

m

e

www.

.au

16 | Brief June 2015

feature

John Toohey AC Eulogy

Chief Justice Robert French AC

16 April 2015, John XXIII College Chapel, Mt Claremont Valerie and I last saw John on the Cottesloe foreshore late in an afternoon in January. He was with Loma and another family member. He was very frail and supported himself on a walking frame. A cyclist sped past almost brushing us as we stood on the footpath. John's one word was quick and pungent — 'Oaf' he said in the direction of the vanishing speedster.

That one word was a succinct reminder of important things about John Toohey's character — a calm

In 1974, two decades after they had moved to Philip Road, John was well established as one of the leading Queen's Counsel of the Western Australian Bar, frequently appearing in the High Court in a range of practice areas. He had served as President of the Western Australian Bar Association and President of the Law Society of Western Australia. Our paths began to cross professionally. We had a common involvement in the Aboriginal Legal Service along with George Winterton, Fred Chaney, Ron Wilson, Graham McDonald, Peter Dowding and others. John and Loma's extraordinary

"I won cases and lost cases before him and even when unsuccessful I could not do other than admire the clarity and fairness of the judgments ... My admiration for his work was not unique."

Australian decency, a powerful morality of modesty and good manners and a disconcertingly dry humour. All of those traits, as his life and work demonstrate, were shot through with intelligence, compassion and a large vision of justice.

John and Loma were my parents' friends and neighbours from the time when, newly married and in their early twenties, they moved in across the road from us in Philip Road, Dalkeith in 1954. They often came to social events at our home and vice versa. I remember hearing from my bedroom at night songs such as 'Fascination', 'One Enchanted Evening' and 'Smoke Gets in Your Eyes' played on the piano by my mother with vocal accompaniments from the guests including John and Loma. They were part of the landscape of my youth.

offer to go to Port Hedland for a year and to work for the Aboriginal Legal Service representing Aboriginal people in the Pilbara area was a step of historic significance in indigenous and non-indigenous relations in this state — not only for what they did but for the thoughtful and astute way in which they did it. They engaged with the non-indigenous as well as the indigenous community so as to offset the cultural shock and perhaps resentment engendered by the appearance of a senior white lawyer representing people historically bereft of such assistance. That step was also an historic one for John for it was to set him on the path that took him to appointment as the first Aboriginal Lands Commissioner for the Northern Territory, as a Judge of the Federal Court of Australia and the Supreme Court of the Northern Territory

17

"He is remembered with deep affection and respect by his former colleagues on the Bench and by all who knew him."

for a judge who was short tempered or impatient.

None of the code words could be applied to John.

and eventually, in February 1987 to appointment as a Justice of the High Court of Australia.

When his term as Land Commissioner ended in April 1982, John returned to Perth where he was a resident Federal Court Judge. Like a number of those present at this service, I appeared before him in a variety of cases. His personal characteristics when at the Bar suited perfectly the requirements of his judicial office. The dry humour had not disappeared. A rather bumptious counsel from Sydney, appearing before him in Perth, once said to him — "What your Honour proposes to do is not the practice of any of your colleagues in the East." John replied without the least sign of irritation — "You are not on your home ground now". I won cases and lost cases before him and even when unsuccessful I could not do other than admire the clarity and fairness of the judgments which had led to those unhappy outcomes. My admiration for his work was not unique. He was described by a spokesman for the Law Society and the Bar Association of Western Australia at his swearing in to the High Court, as "a most accomplished, courteous, benevolent and popular Judge". We all know the polite code words that barristers use on occasions such as 'a very human judge' for someone who wasn't very good at the law, or 'didn't suffer fools gladly'

18 | Brief June 2015

Briefly, we were colleagues as resident Judges on the Federal Court. We sat together with the late Nigel Bowen on John's last two appeals in the Full Court of the Federal Court on 10 December 1986. But having sworn me in two weeks earlier and given me a complimentary copy of the King James Bible, John took his leave and took up his well-deserved office in February 1987 as Western Australia's second appointment to the High Court of Australia. John's judicial philosophy had emerged during his time as a judge of the Federal Court.

It was well summed up at his welcome to the High Court by Robert Anderson QC, speaking on behalf of the WA Bar Association and the Law Society, as: the belief that whilst it is necessary for the law to be stable it need not stand still.

John was also committed to trying to make the law comprehensible. As a young graduate he had delivered Adult Education lectures on 'Law for the Layman'. He recalled that experience at the time of his swearing in to the High Court: I was struck by how remote and unknown the law was to those people, even in areas that touched them so much in their daily lives.

There is a heavy onus on all connected with the law, those who make it, those who administer it and those who apply it. In part, it is an onus to strive for clarity and simplicity.1 He said: In the law, at any rate, mystique is no substitute for intelligent understanding.2 There is a variety of ways in which one

can try to describe John Toohey's work as a Justice of the High Court. One way is to walk into a law library, point to Volume 162 of the Commonwealth Law Reports which contained his first judgments on the Court in 1987 and say — that is where he started — then point to Volume 194 which contains his last reported judgments and say — that is where he finished — read them for yourself. That is not as trivial as it sounds. For in those volumes we find his contribution to the great body of jurisprudence of the court, the making and maintenance and refurbishment of which is part of the dynamic of the rule of law in this country. It is the rule of law which provides the space within which members of our society may enjoy their freedoms, exercise their rights, develop their talents, take their opportunities, raise their children and help each other in doing all of those things. As John put it in a public lecture delivered at the University of Western Australia in April 1998: The rule of law, the concept that we are all subject to the law and that no one is above it, is an essential element of a free society.3 For those who would argue that a judge's personal sense of justice should trump the law, he quoted the well-known words of Thomas More from Robert Bolt's play A Man for All Seasons.

More's son-in-law, Roper, had said he would cut down every law in England to get after the Devil. More responded: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.4 John added: More's words, as Bolt has

feature conjured them up, give us some understanding of what the term 'law' means to society and hence what the courts are about.5 And so we have some understanding of what John Toohey was about in his work as a judge. It was within that framework that his great contributions to the common law of native title and to the law generally were made. And as the Justices of the High Court said in a public statement, published on the High Court website, his contributions were "deep and enduring".

John's judicial work cannot be summed up in one or two laudatory phrases. He could not be labelled. Some judgments some would call conservative, others some would call progressive — largely by reference to their outcomes. He shrugged off labels. Of the meaningless description 'activist' he said: A decision not to change the law or not to develop the law is just as 'activist' as a decision to change the law.

John's contribution to the work of the High Court may be measured not only

by his judgments but also by the way he worked with his colleagues. The court is a collegial institution. Its authority and efficiency depend critically upon the cooperative endeavours of seven people, each of whom has an independent personal responsibility for the judgments he or she writes or joins in. Sir Gerard Brennan remembers John as one of the most collegial of colleagues.

The significance of the interpersonal relationships within the court to which John so greatly contributed cannot be overstated. As the Justices of the court said in their public statement on Tuesday: He is remembered with deep affection and respect by his former colleagues on the Bench and by all who knew him.

grandchildren and great grandchildren have much to be proud of. We farewell a great Australian. We are proud to have known him and to have counted him as a friend.

NOTES

1.

(1986) 68 ALR xxxvi.

2.

ibid.

3.

John Toohey, 'Without Fear or Favour, Affection or Ill-Will': The Role of Courts in the Community' (1999) 28 Western Australian Law Review 1.

4.

ibid., 1, 11–12 citing R Bolt, A Man For All Seasons (London: Heinemann, 1980) 38–39.

5.

John Toohey, above n 3, 1, 12.

All who knew John Toohey will value his life by his contribution to the law and to social justice for indigenous people but also by far more than that. He was a person in whom many fine elements were mixed. One of the finest was his life-long partnership with Loma whose strength, integrity and intelligence matched his own. Their children,

LOOKING TO FURTHER YOUR CAREER? The College of Law Master of Applied Law (Family Law), LLM (Applied Law) and Graduate Diploma of Family Dispute Resolution Practice (FDRP) can give you the specialised skills you need!

“I now have a more complete understanding of all areas of family law and the subjects were all relevant to my day-to-day work.”

Nicole Smith Senior Solicitor, KDB Holmes Solicitors & Master of Applied Law (Family Law) Graduate

To request a 2015 handbook call 1300 506 402 or visit www.collaw.edu.au/alp

19

BASIC TRIAL ADVOCACY PREPARATION FOR CROSS‑EXAMINATION John McKechnie QC Corruption and Crime Commissioner

"The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependant upon the skill with which the advocate conducts the cross examination."

(Sir James Scarlett, Lord Abinger)

20 | Brief June 2015

Of all the skills of lawyering, cross‑examination is the single most difficult skill to master.

There are many books purporting to give advice about advocacy. All of them to a greater or lesser extent contain good advice. Mostly it is the same advice slightly reworded. To judge from their own reminiscences you will be left with a breathless admiration of the skill the author must have had at the bar.

However, it is not enough to be given good advice or to learn the basic theory.

Successful cross‑examination requires at least three things: i.

Theory

ii.

Skill

iii. Preparation This article is not concerned with the theory of cross‑examination. There are more than enough books on that subject.

Here then are the touchstones for preparation for cross‑examination.

1. AN ADVOCATE IS ONLY AS GOOD AS THE BRIEF This may be more a caution against vanity than a proper touchstone. None the less it is important to remember that not every case is a winner.

In fact cases may be likened to a hand of poker. You are dealt the cards. They may be good or bad. Whatever they are, it is your duty to play them as well as they can be played. If after adopting the steps listed below you are still left with very little material with which to cross‑examine, so be it.

If the other side has all the facts they will in all probability win. Your duty is to press your case as fairly and firmly as it can be pressed bearing in mind that there is (usually) only one winner. If on the other hand the facts are favourable, you must marshal and then present them in a manner that will ensure success.

Advocates don't win cases: they prevent cases being lost.

If in the course of your preparation you discover the facts are generally against you, then of course you have a duty to your client that may involve settlement of the litigation.

2. LIST THE ESSENTIAL ELEMENTS OF BOTH CASES Before cross-examination you must know precisely what has to be proved in order to win and what your opponent must prove before they can win.

Nor is it concerned with the skills of a cross‑examiner for those can only be developed by practice courses, followed by trial work1.

Rather, this article is about preparation for cross‑examiners. Assume you know the legal theory relevant to a forthcoming trial.

You have the skills.

You have been given a brief. It contains your side's witness statements, documentary and other exhibits, the pleadings and the advice on evidence.

You understand the issues.

How then do you go about preparing for the cross‑examination of the opponent's witnesses?

WHAT IS PREPARATION FOR CROSSEXAMINATION? If I can borrow a military analogy (after all, litigation is civilised warfare), cross‑examination is equivalent to making bullets and firing them. Without skill in aiming and selecting targets

(the technique) the bullets may miss their mark. But without possession of the bullets themselves (the material), no cross‑examination has ever been effective.

In the course of practice and since joining the bench, I have been privileged, if occasionally horrified, to witness some telling cross‑examinations. In every one, the cross-examiner was armed with some facts not known or forgotten by the witness.

Of course the skill of the advocate in presenting those facts to the witness has ensured the success of the crossexamination. However, without those facts the cross-examination would have been worthless. If the preparation is thorough and the ammunition is there, even a comparatively unskilled crossexaminer will be successful.

An advocate's first task is to ensure that they have all the facts that are able to be assembled in respect of each witness.

Write out on one half of the paper what must be proved by each party. Usually there will be no more than a half a dozen points for either side. Then write under each point how the point will be proved. This simple task is invaluable for preparing your case generally. It will assist in your opening, closing, general strategy and will rapidly tell you whether to fight or settle. From this second list you will also quickly see where you will need to cross‑examine to destroy the opponent's case, and just as importantly, where cross-examination will enable you to use admissions or additional evidence to build your own case.

All cases are set within a theoretical and a practical framework. This is true of both civil and criminal trials.

The theoretical framework is supplied by the substantive law governing the cause of action. Knowledge of this theoretical framework is of course essential generally, but it is worth considering the framework in the context of cross‑examination.

It will often supply the basis of that 21

which must be established by your side and conversely that which from your opponent's case must be negated.

The practical framework is supplied by the pleadings or in criminal cases the indictment or charge.

These confine the law to specific facts.

Unless these are clearly understood and set out, cross-examination may not be directed to the facts in issue.

opponents are not allowed to impeach their own case.

The list of essential elements showing how the case is to be proved will immediately identify the areas listed above and preparation can proceed accordingly for cross-examination of each individual witness.

Before actually preparing the questions, the next logical step is simple:

3. IDENTIFY THE PURPOSE OF EACH CROSS-EXAMINATION

4. SELECT A MODE OF IMPEACHMENT

Cross‑examination is rarely confined to the one form, that of destructive crossexamination.

There are a number of ways to impeach a witness. Some are more effective than others. The more common forms are:

Far more usually, a cross-examiner will be seeking to:

a) Memory;

(a) elicit more information

b) Prior inconsistent statement;

(b) confirm other evidence

c) Bias, prejudice interest, corruption; and

(c) undermine parts of the evidence.

d) Character.

The first two matters are as important as the third. It somehow gives your case greater weight if you can say in your final address: "This evidence doesn't just come from my witnesses, it was sworn to (confirmed by) the opponent's witnesses."

The immediate reason why it has greater weight is of course because your

Memory It is a truism often overlooked because it is so obvious, that every trial is a remembrance of things past. The actual subject in dispute matters not a whit.

While we still depend principally on oral tradition for receipt and evaluation of

evidence, the question of a witnesses memory must always be a potential subject for impeachment.

Examine the materials with this in mind.

If a witness statement purports to give, verbatim, an account of a conversation held 10 years ago does this provide scope for cross-examination?

Within your brief is there material that might have an impact on a witness' ability to recall an event?

Prior inconsistent statements and opponents' witness statements Of all the modes of impeachment, the prior inconsistent statement is usually the most powerful. It is natural to look askance at the evidence of a witness who says one thing on one occasion and another at a different time.

The first place to look for such statements is in the discovered documents. Read both parties' discoveries with your first list of the essential elements to be proved and your list of how you will prove them beside you.

Ask yourself in respect of every document you examine how it will help you to: (a)

prove your case

(b)

prove your opponent's case

LOOKING FOR A NEW LAWYER? Make sure you ask for a College of Law graduate because they tick all these boxes: Their College of Law training is fully accredited by the Legal Practice Board of Western Australia

Individually assessed in all required competencies

Trained in Western Australian Practice

Intensively trained in core skills area

ADVERTISE FREE on our online job noticeboard at www.collaw.edu.au/careers EMAIL US collaw@collaw.edu.au

22 | Brief June 2015

CALL US 08 9214 0200

VISIT US collaw.edu.au

"Your duty is to press your case as fairly and firmly as it can be pressed ... Advocates don't win cases: they prevent cases being lost." (c)

destroy your case

(d)

destroy your opponent's case.

Items (a) and (c) will aid you in preparing your case. Items (b) and (d) are relevant for cross-examination.

The next place to look is the witness statements for the other side's witnesses.

The importance of the discovery process cannot be emphasised enough. My former teacher, the Hon Paul Seaman QC, himself a formidable cross-examiner, used not to allow his junior to do the discoveries or attend inspections, so importantly did he regard the discovery process in getting up the case for trial.

Too often, the discovery process is regarded as tedious and assigned to lower level lawyers in a firm. This can be a big mistake especially when counsel is preparing for cross-examination.

Any document upon which you propose to cross-examine will probably become part of the trial bundle. You might reflect on how you will use the document on the basis that the witness may have some foreknowledge.

Now is the time for your next list. Enter each document on it together with a note as to who will prove it and why the document is legally admissible. If production in court is later challenged, this list will ensure that you have the answer to the objection at your fingertips.

Let me turn to the use of documents to destroy your opponent's case. You may wish to contradict the witness on a material point. Alternatively, you may wish to use the document simply to attack the credit of the witness. If this latter is your purpose then the documents you seek will often not be found in the discovery.

Ferreting out this material is the job of the instructing solicitor (who may be yourself in another mode). For example, has the witness ever given testimony before? If so, examine the record. There may be something about which they can be confronted. The opportunities are rare, but always to be savoured, when you can ask a witness "Which is correct: your sworn evidence today or your sworn evidence previously?"

It will be unusual to find such a statement on oath, but the possibility should

not be overlooked. Do not overlook either, the earlier pleadings if the pleadings are amended. They often do provide examples of prior inconsistent statements. Then again, if the witness is an expert, have they written anything in the past that might contradict what is now said? If the expert is a regular witness such as a doctor, this is often not too difficult to find. If the witness has not written anything to discredit themself with, are there other writings which may be used. Leading text-books, newspaper reports, television items have at times all been used with conspicuous success to undermine a witness' credit.

Bias, prejudice, interest, corruption These impeaching categories require thought during the preparation phase.

There may be material available that can be used for this purpose. Unless you have specifically thought about these matters in preparation, you may have regarded some material as irrelevant. For example, in the case of an expert, their note of fees or mode of payment may have a bearing on their partiality - is someone on a success fee?

Character The Evidence Act 1906, s20, specifically provides that any witness may be questioned as to whether he or she has ever been convicted of an indictable offence and also provides for a mode of proof of conviction if denied.

While such enquiries are more common in criminal trials than civil trials, in an appropriate case, enquiries might be made as part of general preparation for cross-examination.

Evidence as to a general reputation for untruthfulness may be given, though in my opinion the impeaching value is low. The fact that rumour has it that the witness is a liar, does not generally sway a judicial officer in the absence of some concrete proof of the fact.

5. READ YOUR WITNESS STATEMENTS Having gone through the discovery and other material, or if a criminal case, the depositions, the next step is to study your witness statements. These will contain the contradictions to the opponent's case. If they do not, then settlement would seem to be the order of the day. For each crossexamination, now list the facts which must be put to the witness. How you will actually put them in court will depend on your technique but remember the rule in Brown v Dunne (1894) 6R67 (HL) requires your case to be put with particularity. If, through lack of preparation you neglect

to put a matter which should have been put, your case may be adversely affected.

Furthermore, you cannot entirely depend on the exchange of witness statements to comply with the rule.

If you have followed the previous steps, you are now ready for the penultimate task: 6. PREPARE THE CROSSEXAMINATION FRAMEWORK Now it does not matter whether, depending on experience and nerves, you actually write out each question, make notes of headings or just plan it out in your head. It is essential to do one of these things and failure to do so results in the squander of the greatest advantage an advocate can have: preparation. A cross-examination is played out on your home field. Never give up this priceless advantage by failing to chart out the path through the field. You control the pace, the areas, the mood, the tone, the very questions and answers. Far too often I have seen ill-directed cross‑examinations end in failure, not because the material was absent, but because the crossexamination was aimless. It may at times, tactically, appear aimless: it must never be aimless.

Having followed the previous rules you now have all the facts and material at your fingertips. Now ask yourself some questions: "What is the first area I want to cover?"

The first questions, or series can set up the whole cross-examination. Do you want to go for a quick knockout or do you want to close a few stable doors before the horse can bolt? Do you want the witness disarmed by a quiet approach or unsettled by a previous inconsistency or attack on credit: "What area do I want to use to close?"

"Do I want to achieve a dramatic ending?"

"Do I want to prevent re‑examination?"

"What is the range of possibilities open on a particular question?"

It is axiomatic in cross-examination technique that you never ask a question to which you do not know the answer.

Most books and many advocates will repeat this axiom.

I have always considered the advice glib and wrong.

Advocates every day legitimately ask questions to which they do not know the answer. Rather, the advice should be phrased: do not ask a question unless you have considered the possible range of answers open. Stated this way you will see immediately the relevance 23

What style should I use on this witness?

A final decision on style may not be possible until you have seen and heard the witness. However, what if the case is proceeding on written statements? You may not see the witness until you rise to cross-examine. Part of your preparation then may be to ask those who know the witness what are they like. What is their personality?

Do I need to attack this witness?

With the scent of battle in the nostrils, an advocate will sometimes ferociously attack a witness for no good purpose.

Worse, by undermining credit, any favourable evidence may be damaged. of preparation for cross‑examination.

Consider what a witness might say in answer to a question about a particular matter and then prepare the strategy on each possible answer. You will have a series of "if this, then what about ..." type questions. I can warn you that by this process, about 90 per cent of your preparation will never be used. The remaining 10 per cent however will be deadly, even if your technique is still inexperienced. Unfortunately it has proved impossible in my experience to say in advance which 10 per cent of cross-examination preparation will be useful, so that preparation for a trial is going to mean a lot of hard work, most of which will not finally be put to effect. I am willing to wager that every successful, apparently effortless crossexamination was preceded by long hours in the privacy of chambers, with the advocate thinking through the range of responses to each twist and turn a crossexamination might take.

What areas should be covered?

This will include compliance with the rule in Browne v Dunne and the extent to which you will use the witness to advance some aspect of your case.

What areas should be avoided?

There are always areas in a witness' testimony in which there are unexploded mines. An experienced strategist on the other side will sometimes deliberately leave some mines about, perhaps by not covering or covering in detail a particular area. If you have prepared in advance a list of areas to be avoided, you will be less tempted to stray off the beaten track and into the minefield. Unexploded mines can be present in the witness statements.

They should be identified in advance and thought given to defusing them.

24 | Brief June 2015

Some witnesses must be attacked head on of course. If so, is the attack to be on character, credit or substance?

Cross-examination should be flexible.

Feel free at all times to depart from the plan so long as you have a plan to depart from.

7. THROW AWAY YOUR BRIEF I don't mean that quite literally. It is just a bold statement to capture your attention.

What I do mean is that you ought to be able to cross-examine largely, or preferably, entirely from memory. Careful preparation will give you the confidence to confront witnesses in cross-examination.

By all means have a sheet in front of you with the headings of the topics you wish to cover, enumerated. But that should be all. Before cross-examining you should have committed your brief, including your cross-examination of each witness, to memory. It is said of Sir Patrick Hastings, a very famous advocate, that he never had a note in front of him when crossexamining for fear of the distractions!

If you have not memorised your brief as part of your preparation for cross‑examination, then when you are on your feet, two things will happen.

The first is that by being tied to the written brief, you will lose control of the pace of cross-examination. An evasive witness will be allowed time to recover.

The second is more serious. If you are tied to the written brief you will not be concentrating on the witness. Crossexamination is an exhausting business.

It demands intense concentration of all faculties. You must listen to the witness.

This involves not only what they say but the tone in which it is said. The tone of a witness' answer will tell you how you will frame your next questions, whether the witness is under stress, whether they are evasive. If you are reading your brief, self-

evidently you do not see what is going on around you. All will be missed: the body language of the witness, the reaction of their evidence on the tribunal, the reaction of other prospective witnesses in court such as the opposing party.

Cross-examination (to descend to psychobabble) is a unique interpersonal relationship. The manner of intercourse between a cross-examiner and a witness is not repeated in any other social setting.

Although the interchange will occur in public before observers, only two persons will participate in the encounter. Each will seek to dominate but the cross-examiner has been given numerous advantages in the encounter, the two most important of these being the right to ask questions and the freedom to not answer them.

On the other hand the witness will have advantages also. A witness needs only to concentrate on each question and is free, only within the constraints of previous testimony, to answer in any manner. The witness will generally also have the sympathy of the observers, a not inconsiderable point.

If the cross-examiner relies too heavily on a written brief, the advantage held by the advocate can easily slip from grasp into the ready hands of the witness.

So an essential element of preparation is to prepare so thoroughly that, at least for short cross-examinations (less than two hours), they can be conducted entirely from memory.

That is it. No one ever suggested advocacy is easy. No doubt often after the terror of the first few appearances, advocacy begins to seem easier. Do not mistake relief with ability. Advocacy is a full-time occupation and preparation of cross-examination will take many hours even for simple cases. No‑one can be a good cross-examiner without learning and practising the skills of advocacy. These can be learned through books, courses and ultimately, only by experience.

But even the most skilled cross-examiner is useless without accurate material upon which to question a witness and without comprehensive preparation to ensure that the bullets he fires are loaded, not blanks.

ABOUT THE AUTHOR

The author practised as an advocate for 25 years and now describes himself as a consumer of advocacy. He is an adjunct professor at Murdoch University where he teaches forensic advocacy.

NOTES

1.

The Law Society runs frequent courses for new and experienced lawyers on advocacy. Trial practice is taught at Universities. The Australian Advocacy Institute exists to educate advocates.

1.

2.

3.

4.

5.

On the last day of April, the delightful Deck Café was host to the quarterly Society Club event.

Following on from February's Society Club, which was held within the impressive surrounds of the Terrace Hotel, April's edition was conducted in the shadow of the imposing Central Park tower, Western Australia's tallest building, at The Deck Café.

Thursday, 30 April 2015 Deck Café CAUGHT ON THE NIGHT:

1.

Stacey Back, Profile Legal Recruitment; Doug Martens, TFS Corporation; and Matthew Keogh, President of the Law Society of Western Australia.

2.

Sophie Nauwelaers, Kott Gunning and Erica Thuijs, Jackson McDonald.

3.

Matthew Keogh, President of the Law Society of Western Australia and Julian Sher, Francis Burt Chambers.

4.

Brigitte Monchouguy; Andrew Cameron, Douglas Cheveralls Lawyers; and Rebecca Lee, Francis Burt Chambers.

5.

Natasha Mahabeer and Dragana Blackwood, Hunter Cook Legal.

Proudly sponsored by

The Deck Café provided the open-air experience of alfresco venue, while still being sheltered from the elements by the cocooning embrace of the main Central Park complex, within sight of the park that gives the building its name.

Entertainment was provided by a live singer. The soundtrack to the evening included a cover version of American artist John Mayer's Waiting on the World to Change, perhaps providing subconscious impetus for the assembled throng to put into (legal) practice the Latin motto, carpe diem – seize the day!

Always hosted by a Law Society committee, these complimentary member events provide an invaluable opportunity for members of the Society and the wider legal profession to make important and long lasting business and social connections.

The relaxed atmosphere, complimentary drinks and delectable canapés are merely an added bonus.

On this fine April evening at the Deck Café the Brief Editorial Committee hosted this Society Club and – attendees were updated on the latest happenings at the Society's flagship publication. Matthew Keogh, President of the Society, addressed the packed audience.

Mr Keogh provided a short update on the background and current status of Society Club, before handing over to Julian Sher, the Editor of Brief.

Mr Sher outlined his plans for the Brief journal in the coming year. He put out the call to the assembled crowd and to the wider legal profession to help shape Brief as a journal by contributing via editorial submissions and providing feedback by way of emails or Letters to the Editor, to ensure that it is as useful, accessible and interesting to as many legal practitioners as possible.

Thank you to our event sponsors, Profile Legal Recruitment and TFS Corporation, whose support made this event possible. The generous door prizes, provided by our sponsors, provided for a fantastic raffle competition on the night.

Thank you also to everyone who was able to attend. We look forward to seeing all of you at the next Society Club in July and other events throughout the year.

25

LPCC Current Issues Professional Obligations when Practitioners Act for Themselves Legal Profession Complaints Committee

Most disciplinary matters involve a practitioner's conduct when acting for a client. However, legal practitioners are officers of the court at all times and their ethical obligations can extend to personal disputes. In particular, legal practitioners can breach their professional duties by using their status as practitioners to gain a personal advantage at the expense of lay persons, especially if this leads to intimidation. The 'delicate balance' between legitimate pressure and improper intimidation1 is real and important.

Recently, the State Administrative Tribunal (SAT) stated that it would be "contrary to the intent of the Conduct Rules for a lawyer to be subject to the stated ethical requirements when acting for another person, but not when acting for themselves." 2 In that case SAT considered a practitioner's conduct arising from proceedings commenced by the practitioner in SAT against her neighbour relating to a strata unit dispute.

The proceedings were referred to and then settled at mediation on the basis that the practitioner would withdraw the SAT application. The practitioner subsequently sought and was granted leave to withdraw the application. Under the Strata Titles Act 1985, the practitioner was not permitted to apply for costs and she did not do so. Consequently no order as to costs was made by SAT. The practitioner then sought recovery from her neighbour of the legal costs that she had incurred and paid to her own lawyers in respect of the dispute and eventually commenced proceedings in the Magistrates Court (Minor Case Claim) against her neighbour seeking recovery of these costs.

Following the investigation of a complaint made by the neighbour under section 410(1) (e) of the Legal Profession Act 2008, the LPCC commenced disciplinary proceedings in SAT against the practitioner. Before SAT, the practitioner contended that in demanding payment and in commencing the Magistrates Court proceedings she was "acting in her personal capacity and was not acting in her capacity as a legal practitioner engaged in the course of legal practice." 3 In this regard the practitioner contended that being a minor case in the Magistrates Court neither party could be legally represented without leave and leave had not been sought 26 | Brief June 2015

or granted. The practitioner maintained that she was merely exercising "her rights and responsibilities as a private citizen acting reasonably." Further, the practitioner maintained that, at the time of her commencing the Magistrate Court proceedings, her terms of employment exempted her from the requirement of compulsory professional indemnity insurance on the basis that she undertook not to practise as a legal practitioner other than in the course of her employment.

Unsurprisingly, SAT determined that whether or not the practitioner was "acting as a lawyer" was not the critical issue, and that, notwithstanding that the practitioner was acting in her personal capacity, the "umbrella requirements" of professional conduct applied. SAT referred to and applied dicta in an earlier decision, noting that unprofessional conduct on the part of a legal practitioner may extend to conduct by the practitioner in a private capacity and that legal practitioners, in all of their dealings, are bound by the fundamental duties of fairness, honesty and propriety. 4 These duties owed by a practitioner apply to all conduct even if the practitioner is a specialist in another area of legal practice and has no or limited experience in the jurisdiction in which he or she is engaged.5 Even an honest mistake of law does not excuse conduct that breaches these fundamental duties.

SAT found that in making a demand against the neighbour when he could not have had a liability to pay the practitioner's legal costs, and in threatening to, and then commencing the Magistrates Court proceedings, the practitioner engaged in professional misconduct. The practitioner breached duties of fairness and propriety, which she owed to the neighbour and to the Magistrates Court as a legal practitioner engaged in a legal dispute and in a legal proceeding. Her conduct was "clearly intended to apply inappropriate and improper pressure"6 on the neighbour to pay the legal costs. SAT considered the importance of the observance of a legal practitioner's fundamental ethical obligations including not engaging in conduct (in the course of providing legal services or otherwise) which may be prejudicial to the administration of justice (Conduct Rule 6(2) (b)) and conduct which may bring the profession into disrepute (Conduct Rule 6(2) (c)).

In noting that at the time of making the demand the practitioner had no entitlement to any legal costs, SAT referred to the general proposition (as confirmed in Conduct Rule 18(1)) that a legal practitioner must not, on a client's behalf, demand the payment of any costs from another person unless the client has a right to recover those costs. This obligation not to demand payment in the absence of an existing liability to pay "is no less the case where the lawyer demands payment on behalf of himself or herself, rather than on behalf of a client."7 SAT confirmed that "The case of misconduct is arguably all the stronger when it is the practitioner's own position which he or she is seeking to advance by such an unfair or improper demand."8 Although the practitioner did not write the letter of demand seeking recovery of her legal costs on her professional letterhead, the neighbour was aware that she was a lawyer and SAT considered that there was a "clear implication"9 from the letter of demand that the neighbour had an obligation to pay the demanded amount.

A letter sent by a practitioner in a personal dispute that expressly or implicitly uses their professional status to intimidate another person can amount to "improper intimidation". This decision serves as a reminder that legal practitioners owe a paramount duty to the court in both their professional and personal dealings and that practitioners must be prudent about where and when to apply their legal professional status. It is also a reminder that the professional obligation of "complete truthfulness and absolute candour"10 is not diminished where practitioners are acting in their personal capacity.

NOTES

1.

Legal Services Commission v Sing [2007] 2 Qd R 158 at [29]-[30].

2.

Legal Profession Complaints Committee and Amsden [2014] WASAT 57 at [58].

3.

Amsden at [59].

4.

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 at [15].

5.

A legal practitioner at [22].

6.

Amsden at [50].

7.

ibid., at [46].

8.

ibid., at [46].

9.

ibid., at [51].

10.

Legal Profession Complaints Committee and Segler [2010] WASAT 135 at [69].

28 | Brief June 2015

Judicial Case Management and the Problem of Costs Part Two

Chief Justice James Allsop*

This is the transcript of a speech delivered

by His Honour, the Chief Justice of the Federal Court of Australia (subsequently published in the Australian Bar Review) which warrants republication because of the importance of the issues raised. His Honour has kindly allowed us to republish his speech in Brief over two issues. The first portion addresses case management as a costs reduction measure; the second portion discusses the perils of case management and the responsibilities of practitioners.

PERILS OF CASE MANAGEMENT The picture that emerges from these studies is, at best, blurry. It seems tolerably clear, however, that judicial case management, if it is done badly, will either have no impact on litigation costs or, worse, increase them. In light of this, I propose to make some remarks about the perils of case management that must be borne in mind whenever it is proposed to deploy it as a means to reduce costs.

Front-loading and unnecessary running-up of costs As observed in the American and English studies to which I have alluded, case management has the potential to cause parties to bear costs that might not otherwise have been incurred. It may happen in at least two ways. First, costs may be 'front-loaded', with the result that parties who would in any event have settled their disputes are nonetheless forced to pay significant amounts for work done by lawyers in complying with case management requirements. This was a point made by the Hon James Spigelman, then Chief Justice of NSW, in an address in 2004: I recognise that some of the case management practices that the courts have adopted, in order to reduce delays, may have resulted in increased costs. In particular, they have resulted in the front loading of costs by bringing forward expenditure that may not occur if a case settles, as most do. Some aspects of court practice may show insufficient regard

for the costs that are imposed on others.1 The authors of the 2002 report on the Federal Court's docket system put a related point as follows: [I]t may be advantageous to let some cases stay dormant if that would assist the parties in reaching a resolution out of court, in which case it would be inappropriate for the court to attempt to hurry the matter through the court.2 One must be careful not to overstate the point, however. Effective judicial case management, by clarifying and stripping the issues early, may greatly hasten any settlement that would in any event have occurred. Settlement negotiations may thereby be truncated. That, in turn, would exert downward pressure on expenses.

Furthermore, parties who are destined to settle are nevertheless, as we all know, perfectly capable of running up litigation costs, whether or not judges become involved in case management.

The second way in which judicial case management has the potential to drive up expenses is simply by being excessive. This is a danger irrespective of the propensity of most litigants to settle out of court. A case that ultimately goes to trial may be made even more expensive by judicial over-management.

A requirement that practitioners attend multiple directions hearings may be counterproductive if any cost savings ultimately resulting from the matter being better prepared for trial have already been wiped out by the need to pour funds into the directions hearings themselves.

Practitioners expressed concern about unnecessary directions hearings at the time of the docket system's adoption in the Federal Court: Although directions hearings were seen as useful in situations where one party was continually in default, a number of practitioners felt that many stages in the process did not require appearance in court if both parties were complying with orders or alternatively were in agreement that

the matter should be adjourned.3 A related issue is the risk that directions hearings become excessively lengthy.

In docket systems, where a matter is assigned to an individual judge to manage right through to completion, there is a danger that the judge's enthusiasm for the case might outstrip what is warranted in light of the expense to which parties are put in order to comply with judicial directions.4 There is a particularly bitter irony where case management undertaken specifically to curb costs in fact adds to them. It has been suggested that the requirement to file costs budgets and attend cost management conferences under the Jackson reforms in the UK actually increases the length and cost of litigation.5 One is presented with the macabre spectacle of lawyers running up costs negotiating, preparing and filing costs budgets, and then running up more costs arguing about those budgets before a judge.

On the other hand, one ought to acknowledge the salutary educational potential of the interaction between judge and profession that occurs in the process of case management. If it is done properly, judicial management of a case may inculcate habits and practices that are carried over into the practitioners' next matter. A few careful words uttered in one directions hearing may forestall the need for such a hearing in a later case. I will forever recall Justice Andrew Rogers saying in his court in his gently modulated English: "Not in my court you won't". It is possible, therefore, that judicial case management in one case will have an impact on costs not only in that proceeding but also in others down the track. Of course, it is also true that one should be slow to force unnecessary expense upon litigants in one matter for the sake of educating the profession and thereby ensuring that those expenses are not later incurred by litigants in other cases. Using people as means to ends always raises difficult moral questions.

29

Risk of a cookie-cutter approach As I have discussed, judicial case management is a response to the deleterious effects of a civil litigation system governed only by rules, where judges' involvement is limited to enforcing those rules (and then only on a party's motion). It would seem paradoxical, then, to adopt a rule-oriented, overly prescriptive regime of case management.

Yet this sometimes appears to be a temptation for legislators and judicial administrators. Cookie-cutter case management is likely to increase litigation expenses, not decrease them.

If I may say so, I think the correct approach has been adopted by the Federal Court. Upon the introduction of the current docket system, "no definitive case management structure or set directives were implemented by the court and individual judges were ultimately left to manage cases and adopt suggestions as they saw fit."6 The Rules reflect this approach.7 The opinion of judges has been summarised in this way: It was generally felt that case management had to be flexible and adaptable, to be useful. A few ... said that by trying to manipulate a case to fit a model a judge may in fact be significantly altering the nature of the case.8 No doubt the risk of altering the nature of a case may often be attended by the danger of unnecessary litigation cost blowouts. Nevertheless, there is an imperative in making sure that judges know what they are trying to do in case management and what the costs involved are.

An example of a cookie-cutter case management horror story is provided by the experience of courts in the Toronto Region of the Ontario Superior Court of Justice (the largest civil trial court in Canada) under the so-called Rule 77 regime for case management from 2001 to 2004. That system required certain steps to be taken in all cases, including mandatory mediation to tight timetables, the early setting of trial dates, the filing of timetables for the running of the matter, case conferences where such timetables proved unworkable, and so on. Costs ballooned, judicial resources were stretched, and delays spiralled out of control. Routine motions had dates set more than six months out.9 The Ontario Chief Justice reported on the system's failures thus: [L]itigants ... bore the cost of the numerous procedural steps that Rule 77 added to all cases at the outset of the civil litigation process. The various case conferences, filings, extensions 30 | Brief June 2015

and mandatory mediations more often than not, did very little to move the cases along. Regrettably, clients were paying their lawyers for what were frequently premature or unproductive steps.10 Eventually, the problems were addressed when the 'universal case management' approach was replaced by a more flexible arrangement under which management was undertaken only for those "cases that truly required court intervention."11

should not be required to undertake, then the results may be counterproductive.

It will be tempting for such a judge to apply standardised case management to any given matter, without being attentive to its particular characteristics.

In such instances, it is likely that case management will inflate costs with no offsetting benefits. It will become process, separate from the resolution of the dispute: a necessary hurdle to be jumped before the real task begins.

The attitude of judges

A RETURN TO ALOOFNESS?

Judges also bear some responsibility for avoiding the pitfalls of an excessively inflexible approach to case management.

The risk is that judges given a large amount of leeway to control cases before them will simply develop their own cookie-cutter procedures. In this connection, history is important (as it always is). The common law developed as a liberal institution that accords parties the freedom to run their cases as they see fit. Inquisitorial justice is a civilian concept upon which Englishmen and their progeny in the common law world have traditionally looked askance. To a degree party autonomy is a virtue. It is one of the attractions of arbitration.

If, in the face of these risks posed by judicial case management, we were overcome by cynicism about the prospects of reducing litigation costs, one tempting option would simply be to set a date for hearing very early in the process, focusing the practitioners' minds on the need either to settle or to adhere to a timetable to have the matter ready for trial. Exceptionally good reasons would need to be given for any delay requiring vacation of the allotted date. It should be recalled that one of the conclusions of the RAND Corporation study was that this case management method had a significant degree of success in shortening the length of time a case would remain in the list, though it had no impact on costs.16

"Managerial judging",12 therefore, is at odds with the habits of mind in which common law judges have traditionally been steeped. One Australian Federal Court judge expressed this view as follows: I think it's a most na誰ve notion of all to suggest to the court that judges should be managerialist judges, taking cases by the throat, and forcing them to a quick judgment, despite what the parties say, despite what the lawyers say.13 In the rise of judicial case management, we are witnessing no less than a shift in common law philosophy.14 In some judges, resistance to it may take the form of a rule-based, inflexible approach to the task of case management, infecting the new system with the ethos of the old. As one judge has observed, I suppose the success of the system so much depends on the approach and enthusiasm of the judges who are administering it. If you just treat it as a formal standardised process, oh well we've got to go through it, I don't think you are going to find any change between this system and the old. But if you try and implement the underlying philosophy of it, I think there is a chance of change.15 In other words, if a judge's attitude to case management is that it is an onerous administrative burden that he or she

Nevertheless, such an approach would not be without its difficulties. Indeed, most judges and practitioners who responded to the Law and Justice Foundation's study of the Federal Court docket system were of the view that "it was generally inappropriate for hearings to be set down at the beginning of the case."17 The response of one solicitor probably reflects the views of many: I think it's more sensible to wait for the steps to be undertaken, it's my experience that it's rare that people go through those steps without them changing or something else being required to be done. And it could easily be the case if a date is set down that other things need to be done and I could see a whole lot of cases having to be adjourned and just turning into chaos if they have dates set at the beginning.18 On the other hand, it might be thought that the likelihood of "something else being required to be done" will always be higher where there is no trial date to focus the practitioner's mind. There is less scope for parties and practitioners to treat litigation as a strategic game when the timetable leading up to trial has been established at an early stage.19 And with the reduction of adversarial games should come a reduction of cost.

"Effective judicial case management, by clarifying and stripping the issues early, may greatly hasten any settlement that would in any event have occurred."

THE RESPONSIBILITY OF PRACTITIONERS Now that we have reached the subject of focusing practitioners' minds, allow me to step back for a moment. As I have observed, the argument for greater judicial intervention in the litigation process typically begins with a jeremiad on the perils of an adversarial culture that gives free rein to the practitioners.

Somehow, though, one arrives at the conclusion that those who need to change their behaviour are not practitioners so much as judges. Alfred Hitchcock is rumoured to have said film actors were like cattle, and should be treated accordingly. A not dissimilar opinion of legal practitioners appears to be the unarticulated premise in any argument that since lawyers run up unnecessary costs for their clients, judges need to do their job differently.

Implicit in the zealous call for judicial case management, in other words, is the notion that solicitors and barristers lack control over their own behaviour or are otherwise irredeemably refractory.

Yet unlike, perhaps, screen actors, legal practitioners are not Brown's cows, responsive only to the sting of the prod.

They are professionals. And they are paid accordingly. Surely, as a profession, they must bear some responsibility for the way in which matters are litigated.

The duty of lawyers to promote the just, timely and cost-effective resolution of court proceedings has been given legislative imprimatur in several jurisdictions, including the Federal Court.20 The penalty for dereliction of this duty may be a personal costs order.21 Prior to the introduction of the relevant provisions, in White v Overland,22 I discussed courts' expectation of a reasonable degree of co-operation between parties. I made the following observation about the culture of litigation: To paraphrase Roscoe Pound from "The Causes of Popular Dissatisfaction with the Administration of Justice" (1906) 29 ABA Rep 395, 404-406, the "sporting theory of justice" and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans.23 I also said something of the cost consequences of parties' failure to cooperate: In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone.24

Let me turn to the profession. Let me posit two methods or styles of practice.

Perhaps there are more; perhaps neither exists; but humour me by allowing me to posit the dichotomy. I will let you judge for yourselves whether they exist. A little plain speaking is required. The distinction between them lies in divergent responses to the stimulus of a client's instructions in relation to a dispute. In type A practice, the client's problem is examined and a way is sought to arrive at the best possible result for the client at the lowest possible cost. In some cases, this may entail the sacrifice of fees that might have been "earned" (if that verb may sensibly be deployed in this context), had a less efficient approach been adopted. If a fight is necessary, it is had; but only on the real issues worthy of the trouble and cost of the fight.

In type B practice, when faced with the client's instructions, the response is to think of the fees that might foreseeably be derived by dealing with the dispute, without an eye to any parsimony of issues or costs. Disputes are treated as an instrument of fee generation.

Like the litigants described by Gibbon, clients of the second species may well come out at the other end of litigation with patience and fortune almost exhausted.

When next they have a problem, they do not return to the lawyer who has denied them true value for money.

31

" ... one tempting option would simply be to set a date for hearing very early in the process, focusing the practitioners' minds on the need either to settle or to adhere to a timetable to have the matter ready for trial."

I accept that this may be a crude and inadequate paradigm. But, is it truly to be said that type B is not a problem? Is not the risk of it present when the practice of law is viewed as a fee earning business, the profits of which are maximised by fee delivery?

One danger of excessive judicial case management is that it provides comfort to the second species of practice by fostering passivity in the profession as a whole. It risks encouraging over-reliance upon the court to dictate to parties how their litigation will run. That makes it all too easy for lawyers to abdicate their statutorily mandated responsibility to resolve disputes in a cost-effective manner for their clients. Initiative and responsibility are shifted to judges. Also it may provide detailed and unnecessary process around which much work must be done. Litigation practitioners are reduced to fee-collection machines.

Such a development would have a profoundly deleterious impact upon the administration of justice. If costs cannot be controlled, the client comes to the view that law itself is useless and irrelevant: a deeply dangerous outcome. Judges and practitioners must strive to prevent this happening.

How can it be avoided? One way of avoiding it, perhaps, is by thinking about court rules, procedures, trial processes and all aspects of litigation by reference to the dichotomy that I have posited.

Will the procedure permit exploitation, whether conscious or unconscious, driven by process-based activity? If so, how can a substitute procedure be put in place that will achieve the valid end in question, without feeding process-driven costs.

If process-driven costs can be reduced to a bare minimum, fees for true skill and acumen will not seem so painful. The role of "but say" may re-emerge.

Clients truly despise a system of 6 minute units (at say $50-$75) for 60 second tasks; not only because the task took 60 seconds, but also because it was brainless in its character. If you think clients do not sometimes feel like this, I think you need to get out more. Clients should not have to pay like this for process, and they should not do so. What they should be prepared to pay for, and what they do not begrudge, is paying for real skill and experience.

32 | Brief June 2015

For instance, who said that $100,000 is a proper sum for security for costs of a not complicated half to one day appeal in the Court of Appeal? The answer was, unfortunately, two practitioners in early 2013 who put forward the assertion, which was significantly based on processdriven costs.

be encouraged to run cost-efficiently. I suggest a new dialogue based on these fundamentals. How case management works or not, as the case may be, should be part of that dialogue.

NOTES

1.

James Spigelman, 'Opening of Law Term Dinner, 2004' (Address at the Law Society of NSW, Sydney, 2 February 2014) (available at <http://www. supremecourt.lawlink.nsw.gov.au/agdbasev7wr/ supremecourt/documents/pdf/spigelman_ speeches_2004.pdf>).

1. The profession is primarily responsible for the skilful conduct of cases.

2.

C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 80.

2. The lawyer is a fiduciary – to be held to the highest punctilio of an honour. If there is a choice to undertake a cheaper more efficient way to operate, the fiduciary duty is engaged.

3.

ibid., at 89.

3. Courts should organise their structures to facilitate efficient and skilled lawyers, and to impede or prevent process-based costs that are unnecessary.

A number of fundamental propositions need to be grasped and applied on a daily basis:

4.

ibid., at 89.

5.

Association of Personal Injury Lawyers (UK), 'The Impact of the Jackson Reforms on Costs and Case Management' (March 2014) (available at <http:// www.judiciary.gov.uk/wp-content/uploads/JCO/ Documents/CJC/Publications/APIL+_1_.pdf>) at [39].

6.

C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 77.

7.

Federal Court Rules 2011 (Cth), rr 1.31, 1.32.

8.

4. Disputes in society are inevitable. It is a social and constitutional imperative to make reasonably available the process of court adjudication.

C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 83.

9.

5. The basal considerations are trust, skill and service – in, and of, the profession, and the judiciary.

The Hon Chief Justice WK Winkler, Evaluation of Civil Case Management in the Toronto Region: Report on the Implementation of Practice Direction and Rule 78 (February 2008) (available at <http:// www.ontariocourts.ca/coa/en/ps/reports/rule78. pdf>) 13.

10.

ibid., at 13-14.

It is unlikely that any one structure or one step, alone, will achieve and maintain a workable legal system of which we are all proud. But the recognition of what we do, and who we are, will go some way towards that: We are not in a business or an industry; we are a profession, that is founded on duty (fiduciary duty) that, as Cardozo CJ said in 1928, is not governed by the morals of the market place (by which he meant honesty and reasonable good faith) but by the punctilio of an honour the most sensitive. The courts are entitled to expect and demand no less from the profession and should organise their structures accordingly. The failure to recognise the strictness of the fiduciary duty may well have been at the base of many of the troubles of the financial sector in the last 20 years. It should never be allowed to undermine the practice of the law.

The court's task is to understand how litigation should run, and how it can

11.

ibid., at 15.

12.

J Resnik, 'Managerial Judges' (1982) 96 Harvard Law Review 374.

13.

C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 79.

14.

ibid., at 45.

15.

ibid., at 45.

16.

JS Kakalik et al, Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 14.

17.

C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System (Law and Justice Foundation of New South Wales, June 2002) 98.

18.

ibid., at 98.

19.

ibid., at 99.

20.

Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 43(3)(f); Family Law Rules 2004 (Cth), rr 1.07, 1.08, 19.10; Civil Procedure Act 2005 (NSW), s 56; Civil Procedure Act 2010 (Vic), ss 7, 28.

21.

ibid.

22.

[2001] FCA 1333; applied by the New South Wales Court of Appeal in Nowlan v Marson Transport Pty Limited [2001] NSWCA 346; 53 NSWLR 116 at [28] 128.

23.

White v Overland [2001] FCA 1333 at [4].

24.

ibid.

letter to the editor

Letter the Ed to itor

Mr Julian Sher Editor "Brief" The Law Society of WA Email::brief@lawsocietywa.asn.au

Dear Mr Editor, When I first read your excellent editorial in the March Brief, I noted and muttered agreement with your scepticism of the advantages for the legal profession in WA of joining the national scheme.

Brief welcomes your thoughts and feedback.

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

My own past experience of many years ago being connected with WA organisation members of a national body was that we were largely irrelevant until NSW or Victoria wanted something. Then they would both phone me for support!

The recent GST debate and demonstration of underclothing by the other states surely makes joining the national scheme out of the question!

I would certainly not want to see our legal profession controlled by a body dominated by NSW and Victorian residents and I am not forgetting that I once practiced in Melbourne, now over 40 years ago!

With kind regards, Richard Reynolds

Discover your relevant evidence, focus on the matter at hand.

e-Discovery Relativity/Document Review Analytics Early Case Assessment Assisted Review Contact us today to find out how.

No matter how many documents you need to review, no matter how tight your deadlines are, we can quickly give you the full picture of every litigation matter and an unprecedented level of control over your documents – saving you time, money and resources.

Sydney | Melbourne | Brisbane | Perth | Singapore  lawinorder.com.au  focus@lawinorder.com.au  1300 004 667 33

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY Law Week 2015 ran from Monday, 11 May 2015 to Friday, 15 May 2015. With the help of a broad range of community and professional organisations, the Society supported 40 events throughout the week and across the state. These included free information sessions, legal advice for the community and a careers fair for law students and young lawyers.

Law Week kicked off in style with the Society’s Law Week Breakfast, with keynote speaker Deidre Willmott, on Monday, 11 May. The breakfast was held in the pleasant surroundings of the Argyle Room at the Parmelia Hilton, in the heart of Perth's CBD, and was sponsored by the Department of the Attorney General.

Society President Matthew Keogh opened proceedings by welcoming members and a number of distinguished guests. These included the Chief Justice of Western Australia, the Honourable Wayne Martin AC and the Attorney General of Western Australia, the Honourable Michael Mischin MLC. Following breakfast service, attendees were treated to a thought-provoking address by Deidre Willmott, who has been Chief Executive Officer of the Chamber of Commerce & Industry of Western Australia since March 2014.

Ms Willmott, a former lawyer at Parker and Parker, spoke about the need for the legal profession to increase diversity of roles and gender equality in the workplace.

Ms Willmott said it was essential for legal practices and individual practitioners in positions of authority to take the lead when it comes to addressing gender bias in the profession, whilst urging women to be more confident in their expertise and

take leadership roles when offered.

Following the keynote address, the Attorney General, the Honourable Michael Mischin MLC, presented the Attorney General's Community Service Law Award. The award was received by Adam Levine of K&L Gates, for his work at Manna Inc, a local charity that provides assistance, including hot meals and food/ blanket parcels, to the homeless and disadvantaged.

Monday also saw a Mental Health and Wellbeing Seminar take place at the Central Park Conference Centre. A packed audience was in attendance as John Poulsen, Managing Partner Australia of Squire Patton Boggs, discussed his firm's approach to building and maintaining a sustainable, mentally healthy and resilient legal practice. Mr Poulsen also spoke on Squire Patton Boggs’ experience in implementing the Tristan Jepson Memorial Foundation Best Practice Guidelines.

Law Week also featured a wide array of community events and initiatives, taking place across the Perth metropolitan area and regional centres across WA. The Geraldton Resource Centre organised a sensational Amazing Race (Law Edition).

In Albany, Latro Lawyers conducted free reviews of wills for senior card holders. In Kalgoorlie, Goldfields Community Legal Centre provided free legal information to the public. Legal advice was also offered to the community at centres across the Perth metropolitan area. Law Week truly had something to offer every member of the community.

Law Week 2015 wrapped up with a Cocktail Evening at Bankwest Place. As a long-standing partner of the Society

for more than 40 years, Bankwest was delighted to host the celebrations, which included entertainment by a quartet from the West Australian Youth Jazz Orchestra.

Society President Matthew Keogh provided a brief overview of the myriad Law Week events, before discussing the work of Law Access and their recent move to larger premises at the University of Western Australia. In its new surroundings, Law Access will be able to continue its work in assisting disadvantaged members of the community.

Mr Keogh also announced the winners of this year's Clued up Kids competition, Homeschool – The Scooby Gang from Mandurah. The Ambassador School award was won by Geraldton Grammar School.

This initiative was proudly sponsored by Curtin Law School.

M Keogh then took time to recognise the contributions of the Society's most recent Life Member, Mr Dudley Stow. Mr Stow served as Society President and Law Council Director for two years in 2008 and 2009 and as Immediate Past President in 2010 and 2011.

The prestigious Lawyer of the Year Awards, kindly sponsored by Profile Legal Recruitment, were then presented by Duncan McConnel, President of the Law Council of Australia. Congratulations to the recipients, Mr John Fiocco (more than five years' experience) and Mr Callum Hair (less than five years' experience).

The evening was a great celebration and a chance for attendees to network in a relaxed atmosphere. It was a wonderful way to close Law Week 2015, with a superb time enjoyed by all.

1.

Attendees at The Rule of Law in the 21st Century: How far have we really come?

8.

Amazing Race Event participants.

2.

Dudley Stow; John Fiocco, Slater and Gordon; and Callum Hair, Northern Suburbs Community Legal Centre Inc.

9.

3.

Attendees at Law Week Breakfast.

Dr Christopher Kendall, John Toohey Chambers; The Hon Justice Jeremy Curthoys, Supreme Court of Western Australia; and Raelene Webb, National Native Title Tribunal.

4.

Attendees at Youth Civics Leadership Day.

10.

John Poulsen, Managing Partner Australia of Squire Patton Boggs.

5.

Jennifer Snell; Stephen Clarke; Commissioner for Victims of Crime, Jennifer Hoffman; Aaron Sawmadal; Ann O’Neill; Greg Mahney; Leanda Verrier; and Ron Fyneman.

11.

Craig Slater, Francis Burt Chambers; Elizabeth Needham; Senior Vice President of the Law Society of Western Australia; and Martyn Hagan, Law Council of Australia.

6.

Law Week Cocktail Evening attendees.

12.

The Hon Michael Mischin MLC, Attorney General and Adam Levine, K&L Gates.

7.

Dr Colin Hunt, Advisory Officer, Western Australian Legislative Council; Duncan McConnel, President, Law Council of Australia; The Hon Wayne Martin AC, Chief Justice of Western Australia; Helen Creed, Executive Director, Community Legal Centre Association of Western Australia; and Matthew Keogh, President of the Law Society of Western Australia.

13.

Attendees at Perth Law Careers Fair.

14.

Matthew Keogh, President of the Law Society of Western Australia and The Hon Robert Nicholson AO.

Special thanks to

Law Week Cocktail Host

Lawyer of the Year Awards Sponsor

Clued Up Kids Competition Sponsor

In partnership with

ADDRESS ON BEHALF OF THE WA BAR ASSOCIATION ON THE OCCASION OF THE RETIREMENT OF McKECHNIE J Peter Quinlan SC Barrister, Francis Burt Chambers

" ... your Honour's reputation has always been one of good humour, an inherent sense of justice and straightforward attention to the issues at hand."

May it please the court.

The young crown prosecutor, fresh from his restricted practice year and eager to impress the then Director of Public Prosecutions, J R McKechnie QC, was allocated as the Director's junior in a difficult attempted murder trial involving four co-accused.

Being prior to the days of videotaped records of interview, the confessional material for one of the accused was to be tendered in the form of a typed record of interview signed by the accused. In the usual course, the document would be tendered through the investigating police officer.

Objection, however, had been taken to two of the questions and answers in the record of interview and it would be necessary to redact the document prior to its tender.

The preparation of the redacted

36 | Brief June 2015

document was a task assigned to the eager young prosecutor. Indeed it was the only task assigned to him.

The following day the young prosecutor strode proudly into court 3, behind his leader, when it suddenly struck him. He had neglected to do the one simple task assigned to him.

"Never fear", he thought to himself, "I will simply do it during the morning break.

There will be plenty of time."

Justice Franklyn entered the courtroom and the jury arrived. Much to the eager young prosecutor's surprise, and horror, your Honour called the investigating officer though whom the document was to be tendered. "It's OK", the young prosecutor attempted to reassure himself, "there is no way he will get to the interview before the morning break. There will be plenty of time".

But the clock seemed to stand still and as the officer's evidence in chief moved inexorably to the moment of tender, the young prosecutor's sense of terror grew.

There was not going to be plenty of time after all.

The moment arrived. Your Honour's hand reached out to receive the document only to find that it did not materialise.

Your Honour looked to the young prosecutor, who by this time was a cowering, quivering mess. "Where is it?" your Honour whispered.

"I haven't done it", the now not so eager young prosecutor ultimately confessed.

Your Honour leaned closer, so as not to be heard by the judge or jury, "Why not?"

The young prosecutor's only response was a mingled look of terror and shame as he vainly hoped the ground would open up and swallow him whole.

Your Honour sighed, inaudibly, paused, and turned to Justice Franklyn: "Your Honour, there's a bit of a problem.

It is entirely my fault. May we seek a short adjournment."

The adjournment was granted, the task performed, and the eager young prosecutor's reputation left safely intact.

It is with great honour for me appear on behalf of the Western Australian Bar Association, on this occasion of your Honour's retirement, to acknowledge the significant contribution that your Honour has made to this court and to the community of Western Australia. As has been already mentioned, your Honour leaves the court having served as a Judge of the court for more than 16 years.

I commenced with the parable of the young prosecutor, as its wide circulation

illustrates the high esteem in which your Honour is held. That an incident described by its subject as the worst day of his career, should be redeemed by your Honour's small moment of self-sacrifice, speaks volumes as to your Honour's sense of service, responsibility and conscience; and to your Honour's style of leadership, about which I will say more a little later.

Your Honour's service to the public of Western Australia is now in its fortieth year, having commenced in the Crown Solicitor's Office in 1976. After such a long period of public service, your Honour could be forgiven for leaving the public glare and the burdens of executive and judicial power, for more peaceful surroundings. And yet your Honour embarks on a further venture into one of the most difficult public offices in this state, the Commissioner of the Corruption and Crime Commission, where the glare is brighter still and the pressures many and varied, both internal and external.

Your Honour's achievements in practice, have been recounted by others and do not require repetition by me. To complete that picture, however, it is appropriate that I record, on behalf of the Bar Association, that when your Honour accepted appointment to this court, your Honour did so as one of our own. In that regard, while your Honour practiced as an officer of the Crown throughout your career, your Honour took the step, following your appointment, as Queen's Counsel, you were invited by then President, Templeman QC, to apply for membership of the WA Bar Association, to which you were unanimously elected on 15 March 1990. Your Honour's membership of the Association served to recognise the unity of the independent Bar, as including both public or private practitioners, and to underscore the independence which is the hallmark of Crown service.

On the bench, your Honour's reputation has always been one of good humour, an inherent sense of justice and straightforward attention to the issues at hand. Though your Honour served with distinction on all areas of the court's jurisdiction, your Honour's particular skill in the criminal law was to the fore, as was your Honour's preparedness to undertake some of the more distressing matters that have come before the court.

Your written judgments, in particular, were known for their directness and clarity. One of the more self-deprecating members of the Association commented to me this week that he would miss your Honour's published judgments, because they were the only ones he could ever understand.

And in that regard, your Honour leaves a significant body of work; according to a

search on Austlii, over the past 16 years, your Honour has written or participated in many hundreds of judgements; and even then it must be remembered that the Austlii database for this court does not go back as far as your Honour's appointment.

As your Honour leaves this court to take up leadership of the Corruption and Crime Commission, might I focus on two character traits of your Honour's which deserve particular mention and which will continue to serve the community well in your new role.

The first is what I might describe as loyalty and leadership. All those who have worked closely with your Honour over the years as juniors, instructors, colleagues, associates and staff, (a large number of whom are here today) speak admiringly of your Honour's style of leadership and the strong loyalty it engenders.

It is fair to observe, in that context, that your Honour expects much of those with whom you work. Your Honour is known to impose high standards on others and woe betide the poor soul when those standards are not met. Your Honour can therefore be, at times, in the privacy of your chambers, in your expectations of others, just a little bit frightening.

But there is an important corollary of this: that is this; to those who meet your Honour's standards, or at least strive to do so, your Honour is always unfailingly generous and fiercely loyal in return. And loyalty of that kind begets loyalty in return.

As the parable of the eager prosecutor shows, the buck always stopped with your Honour.

This style of leadership is one which requires both humility and strength.

And it has served your Honour and the community well.

Which leads me to the second character trait: responsibility and conscience.

Your Honour has, over the course of your career, consistently demonstrated not only the capacity to be decisive when faced with difficult issues or hard decisions, but perhaps more importantly, your Honour brings with those decisions an acute sense of the importance of those decisions and of human cost that they can involve.

As your Honour once said, of your time as Director of Public Prosecutions, "Every time I advised the police to charge, every time I signed an indictment, everytime I signed a nolle prosequi, I was aware that I was changing somebody's life" Such an approach is the epitome of good conscience. And it is this sense of 37

conscience, of the responsibility attached to governmental power, that distinguishes the administration of justice from mere cold calculation.

This too is a trait which, with those others already mentioned, make your Honour ideally suited to your Honour's new position within what former Chief Justice Spigelman of the NSW Supreme Court memorably described as the integrity branch of government. For as important as the investigation and exposure of corruption and public maladministration is, so too is the need for extraordinary and coercive power to be exercised conscientiously, responsibly and soberly.

The community of Western Australia can have confidence that your Honour will achieve both objectives and at the same time provide the necessary leadership which the integrity branch requires.

On behalf of the Bar Association can I once again extend our gratitude to your Honour for your contribution to the administration of justice, this court and the community of Western Australia.

We extend our best wishes to your Honour in your new role, and, when that time finally comes, for an enjoyable retirement with family and friends.

May it please the court.

FAREWELL SPEECH JUSTICE MCKECHNIE John McKechnie QC Corruption and Crime Commissioner

Thank you Mr Tannin for your kind words and your friendship from our first days working together 34 years ago.

Thank you Mr Quinlan for your words also. I have known you since you were a beardless youth. The Bar of this state is one of its most important institutions and a strong Bar in turn helps an independent judiciary.

And thank you too Mr Keogh. I can't imagine where you got your information from.

I am especially honoured that Chief Justice French has joined us today. It is a little known fact that I manned a polling booth for him many years ago - we didn't do too well.

I will carry on with some thank yous. My long time and loyal Associate, Kate, has been with me through thick and thin for nearly 30 years and has proved a fierce and loyal friend and colleague.

I thank my Orderly and acting Associate, Julie, for her quiet efficiency and her ability not to take me too seriously.

I also thank my long term secretary, June, who must have a degree in cryptography to read my amendments to draft judgments.

We are not one for PDAs (public displays of affection) in our family and Beth told me she would kill me if I mentioned her by name, so I won't. I can tell you 38 | Brief June 2015

though that years ago a friend gave Beth a fridge magnet that said, 'Behind every successful man is a surprised woman'.

We are grateful that all the family are here today as Ranald usually lives in South Africa. The way he combines his cheffing and surfing shows a lifestyle balance that lawyers and judges only dream of.

I had supposed that this speech would be delivered on my 70th birthday. I had already chosen a musical accompaniment - The Wolverines What a Great Day to Go Sailing but other challenges have beckoned and I look forward to embracing them.

With my departure, the only member of this court appointed last century who remains is Master Sanderson.

Ut flatus venti, sic transit Gloria mundi.

Like a breath of wind thus passes the glories of the world.

I said that in Latin especially for the Chief Justice. When he arrived at the court he suggested that we should modernise lots of things including our language by eliminating Latin phrases from judgments.

He proposed we could discuss this at a forthcoming judge's colloquium. It was left to Justice Barker to point out that the word 'colloquium' itself is a Latin word.

I studied five years of Latin because my father was under the impression that it was required entry for law or medicine and indeed it may have been in 1922

when he was at university. It's main use now is to enable me to pretend I understand what Justice Heenan sometimes says.

I want to pay tribute to the court staff with whom I have closely worked especially in bringing IT into Western Australian courts and in later years general court administration.

It was a challenge. An early judges' meeting spent considerable time debating whether we should use email to circulate memos rather than the old fashioned folder initialled in order of seniority. As the junior judge, I often was asked to approve and propose or change rules that had been completed weeks before. Email won out by a narrow squeak. The best thing about the process was watching Justice Ipp learn to type.

Starting with Gavin Jones I have watched a succession of very capable Executive Officers revitalise a creaking administration. The current Executive Officer we pinched from the District Court, along with their Principal Registrar, their Chief Judge and lots of their other judges.

Well done us!

Sitting of the Supreme Court of Western Australia to farewell the Honourable Justice John McKechnie.

Rob Christie is a great Executive Officer battling the twin and occasionally conflicting demands of two powerful initials, CJ and DG. Back in 2000 when we were conducting focus groups about the Case Management System now known as ICMS I was told that it took eight years to train a counter clerk for the front office.

This was two years longer than it took to become admitted as a lawyer. There were no women. How things have changed for the better.

I also want to acknowledge the work of the Registrars. Over my time, their work has moved from an administrative to a mainly judicial role which they fulfil with despatch and efficiency. The court simply could not run without them and the breadth of work that they do. From the appeal registrars to the Stirling Gardens Magistrates to their invaluable work in mediations they are the unsung champions of the court. Our clearance times in probate are a constant source of pride.

There have been many achievements and some occasional misses during the last 16 years.

One major win was the decision to change the judicial attire. Justice Brinsden once memorably described a sitting of the Full Bench as akin to a bank of faded geraniums. Our present robes are contemporary and comfortable. If we now look like a murder of desiccated crows, well, you can't have everything.

A major miss is accommodation. Even after spending hundreds of millions of dollars, from 2016 the Supreme Court will still operate on three sites.

I turn to my colleagues.

I am in constant awe of the wisdom and learning of judges with whom I have served - past and present. One of my greatest privileges was to serve for a time with one of my heroes - the late Justice Geoffrey Kennedy. He was the intellectual powerhouse of the court. His mantle has fallen on President McLure who can't be with us today. And seeing she is not with

us I can say this - she really is a clever clogs.

I have served happily with two Chief Justices, the late David Malcolm and the present Wayne Martin. Different personalities but the same dedication to the role and determination to demystify the law and its processes. I have enjoyed working with Wayne and it will come as no surprise to learn that on occasion we have had the odd disagreement. He tells me what he thinks. I tell him what I think, of course much more moderately, and then we move on. I will miss his leadership but continue our friendship.

I have appeared before or served alongside four Chief Justices, I have appeared before 27 judges. Since I joined the court as number 16 in 1999 in addition to those I had appeared before and who became my colleagues I have served with 20 more judges appointed since that time.

If you think this recitation of statistics is boring kindly remember the statistics at the close of the legal year before the incoming Chief Justice mercifully killed 39

colleagues exemplify public service and commitment.

I also want to pay tribute to the thousands of men and women I have had the privilege of observing as they carry out their functions as jurors. There are sometimes fierce criticisms of the jury system. It is, I think, a peculiar arrogance that some lawyers and even judges fall into thinking that a judge is necessarily better than the commonsense and wisdom embodied in 12 ordinary men and women. With few exceptions I have seen them conscientiously carrying out their task, sometimes in difficult and distressing circumstances.

Anyone who wishes to establish an autocracy should first abolish juries. They are a powerful democratic corrective to tyranny.

John McKechnie QC at the Corruption and Crime Commission.

"I am thankful that we have such highly rated judges who are prepared to do the work. Their intellectual heft is inspiring." the sitting.

After the example set recently by my friend Justice Alan Wilson of the Queensland Supreme Court, however, I feel it is my duty make public a contentious issue which sharply divides the judges of this court.

There are those who are avid Eagles supporters ranged against a significant cohort of die‑hard Dockers fans, currently in the ascendant.

And if that is not enough, in the western reaches of the jurisdiction is a small pocket of fanatical resistance which recognises only Liverpool FC. And of course there are those of us who could care less.

Seriously, this is a highly collegial court where respect for each other is the order of the day.

people's homework. I am thankful that we have such highly rated judges who are prepared to do the work. Their intellectual heft is inspiring.

I have always preferred to be a trial judge where, as my friend and colleague Nick Hasluck would say, you see the whole procession of the human condition.

Trial work is demanding and precise. Civil work involves a form of problem‑solving to do justice to parties and essentially to declare private rights. The reality is that few judgments can be appealed for many reasons so that the trial judge is often effectively the first and last decision‑maker. This is a great responsibility and my amazing colleagues in the general division do this every day. Our CMC list is the envy of other jurisdictions.

The Court of Appeal judges have an unrelenting workload which they bear uncomplainingly, for the most part. I served on Full Courts for nearly five years and recall the day the Court of Appeal was established as the day I got my life back.

On the criminal side we do not have the intensity and variety that confronts our friends and colleagues in the District Court. Every criminal trial at its heart is a life changing experience for many of those involved. My colleagues sit uncomplainingly month after month listening to the worst excesses of violence and death and still ensure that the accused and the state both receive a fair trial. It has been a privilege to be part of and latterly Senior Judge of the General Division.

While the burden of reading transcripts and judgments must of course be done by someone, to me it has always seemed as interesting as marking other

The work of a judge or magistrate is the highest calling to which a lawyer can aspire and two Chief Justices here today, the President and all my

No one likes being overturned on appeal but this court manages better than most to maintain friendship and amity despite divisions of judicial opinion.

40 | Brief June 2015

Finally, I would like to thank all those who have kept me firmly grounded over the years. I would mention my children and grandchildren except that we don't do PDAs. I have been teaching undergraduate students for 30 years. This has been both a pleasure and an inspiration. I treasure my time on PLC Council as an opportunity to see the best in young people rather than those I see in my daily work. One of the greatest pro‑social factors preventing crime is a proper education.

I have also co‑authored many editions of a leading text book on crime; at least I refer to it as 'leading'. This has had two effects. First, it is humbling to see how many great judges there are in Australia.

Secondly, it can be fun to point out errors in the reasons of certain appellate judgments. I may be less constrained in future but now is not the time to talk about Wongawol.

I have also enjoyed the privilege of meeting new and experienced judges through my work with the National Judicial College of Australia preparing them for the life ahead. Australia is remarkably well served by the quality of its judiciary.

My friend and colleague Justice Corboy advised me on no account to mention the two decisions in Russell v The State of Western Australia at my farewell but I couldn't resist.

And so now finally I depart. People have asked me what I will do on my retirement.

I will catch up on some reading. Maybe go supermarket shopping with Beth because I know she will enjoy that.

Definitely do some sailing. Perhaps a little travel. And then on Tuesday I will start the new job.

Thank you very much all for coming.

book review

Book Review The Marriage Knot: Marriage and divorce in colonial Western Australia 1829-1900 by Penelope Hetherington Review by the Hon Peter Dowding SC

"If you don't know history, then you don't know anything. You are a leaf that doesn't know it is part of a tree." So said American 'mega author' Michael Crichton.

Marriage and divorce are events with which almost every Australian is familiar – either because of their personal experience or the experience of a friend or relative. And all are familiar, from those contacts, with the excitement of the wedding or the heartache of the divorce.

But spare a thought for the first white residents of this colony who came into a society which they could not understand and had to establish their own rules and regulations from scratch. The country they had left had a strong moral code and clear procedures for marriage and divorce but transplanting these rules to the new colony was not easy and gave rise to much ingenuity and argument among the settlers. And not all the settlers subscribed to the dominant English religion, the Church of England, so a Catholic minority demanded some say in the laws of marriage.

There were problems with marriage – the law of England was that weddings had

to be celebrated by a minister, and in many parts of the new colonies none existed. In order to protect their virtue, some partners decided that a ceremony was necessary, any ceremony, so the Fremantle harbour master agreed to conduct marriages in his office, which was on a stranded, partly sunken ship in the Swan River.

In the 19th century the control over a woman's property was absolute, but Western Australia was an early mover in the effort to respect the rights of women when it introduced the Married Women's Property Act in 1892, as well as giving women the right to petition for divorce.

The tension between church and state – the Church of England and the political powers in the state as well as the tensions with the Catholic Church – which in the UK has been the cause of so much anger and, in Ireland, war and killing, were tensions felt in this far flung part of the British Empire, but resolved peacefully.

demand by women for equality, the Catholic Church seeking its own voice in the colony – and the lives of ordinary West Australians, loving, marrying, separating and wanting to divorce.

Far from a dry, academic history, this book will be of interest not just to lawyers and historians, but to a community who wish to understand from whence we come, in these short years since Captain Stirling hopped onto a strange beach at what is now Fremantle.

This history is fascinating and important and places into perspective the laws and procedures that we all now understand.

In her book, Penelope Hetherington has explored the tensions – the growing

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding.

E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth.

We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

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

41

Running an arbitration under the Commercial Arbitration Act – some practical issues Steven Standing Barrister, Francis Burt Chambers A number of unexpected issues can arise in relation to the conduct of arbitrations under the Commercial Arbitration Act. This article discusses some of those issues, and how they might be avoided (or their impact minimised) by careful drafting of the arbitration clause.

The Commercial Arbitration Act 2012 WA (Act) deals with arbitrations commenced as a result of private, consensual arrangements between parties to submit disputes arising out of a particular commercial arrangement to arbitration. The Act came into effect in August 2013. It replaced the Commercial Arbitration Act 1985 WA (the 1985 Act), and was part of national reforms to bring all Commonwealth, State and Territory arbitration laws into line with the UNCITRAL Model Law on International Commercial Arbitration. The Act applies to all commercial arbitration agreements of a domestic (rather than international) nature and where the place of arbitration is in Western Australia.

WILL YOUR ARBITRATION BE A QUICK AND COST EFFECTIVE FORM OF DISPUTE RESOLUTION? It is generally assumed that arbitration is a quick and cost effective form of dispute resolution (particularly in comparison with court proceedings). However, that assumption has often not been borne out in practice, with many arbitrations under the 1985 Act being run along very similar lines as court proceedings (with pleadings, discovery, subpoenas and lengthy hearings, and with applications being made to apply for leave to appeal from arbitrator's decisions).

The unsurprising result has been that arbitrations have often taken just as long to resolve as court proceedings, and at similar cost.

The general expectation is that the Act will, over time, reduce the delay and expense associated with arbitrations.

Indeed, s1C of the Act expressly states that the paramount object of the Act is to " … facilitate the fair and final resolution of commercial disputes by impartial arbitral 42 | Brief June 2015

tribunals without unnecessary delay or expense." Some key differences between the 1985 Act and the Act may help in achieving this object – •

There is now a provision that, if a valid arbitration agreement exists and either party seeks to resolve a dispute by arbitration, then any court proceedings regarding the dispute must be stayed, and the parties referred to arbitration.

•

There is a clearer and more detailed regime for appointment of arbitrators.

•

There remains an appeals mechanism in respect of questions of law, but only with the consent of both parties and with the court's leave (all of which makes appeals unlikely).

•

There are very limited grounds upon which an application can be made to set aside an arbitrator's award.

•

Interim orders for injunctions and other measures such as protection and preservation of evidence can now be made by the arbitral tribunal.

•

Arbitrators have the power to appoint experts to assist the arbitral tribunal.

The most important determinant of the speed and cost effectiveness of the arbitration is usually the procedure used to conduct the arbitration. In this regard, s19(1) of the Act provides that, subject to the Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting proceedings. If the parties merely agree (as they often do) that the procedure will be the same or similar to that followed in proceedings in the Supreme Court, then it can be expected that the proceedings will be likely to take a similar amount of time, and incur similar costs, as proceedings in the Supreme Court.

If the parties do not agree on a procedure, then the arbitration will (subject to the Act) be conducted in such manner as the arbitral tribunal considers appropriate (s19(2)). It can ordinarily be expected that the parties will be required to at least lodge points of claim and defence along with supporting documents (see

s23). There is no provision expressly requiring discovery. Absent agreement by the parties, it is unlikely that an arbitrator would make an order for general discovery, but an order for discovery of specific classes of documents may be made.

Overall, it cannot be assumed that arbitration will by default be quicker, cheaper and more efficient than court proceedings. If the parties want to achieve those objectives, they should draft procedural provisions in the arbitration clause of their agreement with those objectives in mind. However, in this writer's experience, arbitration proceedings cannot be expedited merely by including a provision requiring the arbitration to be completed within a particular time period. A short time period will be impractical if the issues to be determined in the arbitration are complex and require considerable evidence. The evidence gathering exercise can be particularly time consuming if third party evidence is required (discussed further below). If a quick and speedy arbitration is required, then a holistic approach is required; time limits should be coupled with a tight definition of the issue for determination in the arbitration, and restrictions on the sorts of evidence that can be adduced and the way in which evidence is to be adduced.

APPOINTING THE ARBITRATOR The Act provides for the court to appoint the arbitrator if an appointment mechanism has failed or if the parties are unable to agree. The court must have due regard to any qualifications required by the arbitrator, and to such considerations as are likely to secure the appointment of an independent arbitrator.

However, some problems can arise if an application is to be made to the court.

A particular problem is that some senior arbitrators will not agree to their name being put forward in competition with other arbitrators for appointment by the court - presumably because of a view that such a competition is unseemly, and embarrassing for the person who

43

" ... arbitrations have often taken just as long to resolve as court proceedings, and at similar cost." is not appointed. This means that your preferred arbitrator may not even be in the running for appointment by the court. Perhaps the best way of dealing with this problem is to pay particular attention to the appointment mechanism when drafting the arbitration clause.

The more detailed the mechanism for appointment of the arbitrator (including the characteristics and qualifications required of the arbitrator) the less scope there is for disagreement between the parties and the need to resort to the court to make an appointment. It may also be useful to have an alternative appointment mechanism, in case the first mechanism fails for some reason.

THIRD PARTIES It is not uncommon for arbitration parties to need information from third parties, particularly where the arbitration deals with the market value or price for a particular good or service. On (relatively rare) occasions, the third party may volunteer the information, subject to appropriate confidentiality arrangements.

However, more commonly, the third party information is commercially sensitive, and will only be produced under subpoena.

The first step is usually to approach the third party with a request for the voluntary production of the information.

The third party will typically seek legal advice, and there will almost always be some debate about confidentiality issues (discussed further below). It is difficult to bring such discussions to finality within a reasonable time frame, and parties will often have little alternative other than to seek compulsive production of the third party information by way of subpoena. In this regard, the first point to note is that s27A of the Act now requires a party to an arbitration to obtain the permission of the arbitral tribunal prior to applying to court for the issuing of subpoenas.

Assuming the arbitral tribunal gives permission, a decision needs to be made as to the best way of getting the subpoenas issued. There are two methods. One is to simply file subpoenas at the central office for issuance by the court – where the subpoena is returnable prior to trial, leave of the court is not required.1 However, it is then open to the subpoena recipient to apply, on the 44 | Brief June 2015

return date of the subpoena, to have the subpoena set aside, and it may take some further time for that application to be heard. For this reason, an alternative course which is sometimes adopted is to apply to the court for leave to issue the subpoenas on notice to the proposed subpoena recipients, the aim being to accelerate any debate with the subpoena recipient regarding the subpoena.

Subpoena recipients are also entitled to be compensated for reasonable loss or expense incurred in complying with the subpoena. This can include the costs of searching for, collating and, where necessary, copying documents, and may involve payment for the cost of diverting executives, employees or consultants such as lawyers to the task. This can be a fertile ground for dispute (which will lead to a taxation by the court if the dispute cannot be resolved) particularly where lawyers have been engaged to advise and assist in the task and very large expenses are run up as a result. This writer is aware of claims for costs in excess of $100,000 being made.

A further consequence of third party confidentiality regimes is that the lawyers for the parties may in some cases be constrained in the way they can explain to their clients the factual basis for their advice, and the parties themselves may only have limited access to the arbitration hearing (if there is one) and the arbitrator's reasons for decision. Parties may have to consider tactical issues (including settlement proposals) without having direct access to all of the underlying facts known to the lawyers and experts. All of this can be disconcerting for clients and presents some potentially difficult client management issues for the lawyers.

Sections 27E to 27I of the Act contain provisions regarding confidentiality. There is a general prohibition on disclosure of confidential information by parties and the arbitral tribunal (s27E). However, s27F sets out some circumstances in which confidential information may be disclosed.

Those circumstances include disclosure – •

to advisors;

•

Overall, parties should understand that, if they draft an arbitration clause raising issues that will require third party evidence, then this will most likely involve considerable delay and expense.

where necessary to ensure a party has a reasonable opportunity to present its case;

•

to establish or protect legal rights in relation to third parties;

•

to enforce an arbitral award;

CONFIDENTIALITY ISSUES

•

if necessary for the purposes of the Act;

•

if in accordance with an order made or subpoena issued by a court;

•

if authorised or required by a relevant law or competent regulatory body.

Arbitration is often part of commercially sensitive and confidential contractual arrangements, and parties generally expect that the arbitration proceedings will also be confidential. However, there are several issues which may impact on the confidentiality of the proceedings. The first such issue relates to third parties.

As noted above, it is not uncommon for arbitration parties to need information from third parties. The third party will of necessity become aware of at least some aspects of the arbitration, and, if leave is sought from the court for the issue of a subpoena (or if the third party challenges the subpoena) then some affidavit evidence will be required regarding the forensic purpose for which the subpoena is sought. Accordingly, parties should keep in mind that at least some aspects of the arbitration will become public knowledge if third party information is required.

Parties should also understand that third parties will require a confidentiality regime to protect their information. Such a regime will often require the confidential information to only be available to identified lawyers and experts, and not the parties themselves. The process of negotiating the confidentiality regime can be time consuming and costly.

In addition, s27G allows an arbitral tribunal to make an order for disclosure of confidential information in circumstances other than those mentioned in s27F. However, s27H allows a party to (in effect) appeal that decision to the court, which can then make orders prohibiting the disclosure of confidential information in relation to the arbitral proceedings (based on an assessment of the relevant public interest factors for and against disclosure). The court also has power (under s27I) to make orders allowing disclosure in circumstances other than those mentioned in s27F. Accordingly, although the Act is more definitive about confidentiality than the 1985 Act, the parties to an arbitration clause should recognise that an arbitration under the Act involves some risk of disclosure of information which either or both of the parties may regard as confidential.

EXPERT EVIDENCE Another potential cause of delay and expense involves expert evidence. It is not uncommon for arbitration clauses to be drafted in such a way as will inevitably require expert evidence. A common example is a clause providing for arbitration to resolve a dispute about the market price or market value of a particular good or service. This sort of clause will often lead to extensive (and expensive) expert evidence regarding market definition, and regarding the particular good or service (and substitutes for that good or service). There are several ways to limit the use of this sort of expert evidence. One method is to include in the arbitration clause some strict limits on the scope of expert evidence that can be adduced, and the number of experts.

However, it is even more effective to draft the issue for arbitration in such a way as to eliminate or limit the need for expert evidence in the first place. For instance, instead of simply referring to the 'market' for a particular good or service (which is an open invitation to economists to prepare lengthy and widely divergent reports), the clause could include expressly exclusive definitions of the relevant market and the good or service.

That would narrow the scope of both the factual and theoretical enquiry.

Sometimes it is simply not worth the trouble and expense of obtaining expert evidence on an issue identified in an arbitration clause. For example, some price review clauses require an arbitrator to compare the value of non-price terms and conditions (such as term, take or pay and interruptability, and the financial and technical capabilities of particular buyers and sellers) under different contracts.

Expert opinion evidence of such issues is likely to be complicated and expensive, and (worst of all) may be inconclusive.

Again, the best solution is to not include such issues in the arbitration clause in the

first place. However, if such an issue does find its way into the arbitration clause, it is always open to the parties to save time and expense by agreeing not to adduce any evidence relating to it.

set aside the award under s34 of the Act. Some of the grounds likely to be considered are – •

whether the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration (s34(2)(a)(iii));

•

the subject matter of the dispute is not capable of settlement by arbitration under the laws of the state or the award is in conflict with the public policy of the state (s34(2)(b)).

VENUE, TRANSCRIPT AND ASSOCIATE The parties to an arbitration clause sometimes overlook the fact that they will have to organise and pay for their own venue, transcript and (often) an associate for the arbitrator. Even practical issues like these (particularly as regards venue) can be the subject of dispute, so the best course is to ensure at the outset that the arbitration clause includes appropriate provisions.

FINALITY AND ITS IMPLICATIONS FOR RUNNING AN ARBITRATION The Act provides a mechanism for appeals in respect of questions of law, but only with the consent of both parties and with the court's leave. It seems unlikely that both parties would agree to an appeal after an arbitration decision has been handed down (unless there is no clear winner from the decision).

Consequently, unless the parties have agreed beforehand that they will consent to an appeal, an arbitration under the Act should be regarded as being final (noting however that in very limited circumstances an application can be made to set aside an arbitral award – see s34 of the Act). This has implications for the running of the arbitration. In the absence of a safety net by way of a right of appeal, parties may be tempted to take a more rigorous approach to all stages of the arbitration. Selection of an appropriate arbitrator will be seen as even more critical, and the duration and cost of the arbitration may be greater than would otherwise be the case. The unsuccessful party is also likely to carefully consider whether an application can be made to

None of the above consequences are necessarily desirable, given that arbitration is usually intended by the parties to provide an efficient and fast method of dispute resolution. Parties will need to pay particular attention to the drafting of the arbitration clause if they want to achieve the objectives of efficiency and speed.

There is some scope for parties to take steps during an arbitration that will assist in achieving a quick, efficient and cost effective resolution to their dispute. However, the parties will be constrained by the terms of the arbitration clause (often been agreed many years previously). If the parties want a quick, efficient and cost effective arbitration, they should draft for that result when negotiating the arbitration clause in their contract. A boilerplate approach to drafting the clause is unlikely to be helpful; what is required is for the parties to turn their minds to the various practical issues that are likely to arise when the clause is actually put into practice, and to draft with those issues in mind.

NOTES

1.

See Order 36Br3(6), Consolidated Practice Directions at para 4.3.7 and Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 at [18-19].

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

45

case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Children â&#x20AC;&#x201C; Mother wins appeal against parenting injunctions In Banks [2015] FamCAFC 36 (12 March 2015) the Full Court (Thackray, Murphy & Kent JJ) allowed the mother's appeal against an interim parenting order made

by Cleary J. The parents were married in Australia but travelled to Thailand (the mother's country of origin) before the child's birth so that the mother could have the support of her family. The child was born in Thailand, the parties moving to Australia when the child was 8 months old.

In May 2013 the parties and child went to Thailand "to visit the maternal family" but when the father returned the mother and child did not ([6]). The mother came to Australia to work in the adult entertainment industry for weeks at a time without the knowledge of the father (and without the child) but when the mother told the father she was in Australia he applied for and was granted an ex parte injunction that the mother deliver the child to the father and be restrained from leaving Australia ([13]).

It was also ordered at first instance that the child live with the mother in Australia (an order "neither party sought" and where "the primary judge did not give notice of her intention to make such an order"). The father's solicitor conceded that the mother "had not been afforded natural justice" and that the appeal should succeed, the Full Court to re-exercise discretion (paras 21-22). Citing Goode [2006] FamCA 1346, the Full Court reviewed the "agreed or uncontested relevant facts" that the father had had no contact with the child, save via Skype, for two years; the mother had been the child's primary carer for much of his life; the father accepted that the mother was an appropriate carer; the child was born in Thailand, lived there for the first five months of his life, visited there in 2012, lived there for the last two years; and the child had been diagnosed as having autistic spectrum disorder requiring behaviour modification and speech therapy and had recently commenced school in Thailand (para 37).

The Full Court noted the father's concession that the child should 'primarily' live with the mother pending trial ([43]-[45]) and the mother's complaint that the court below had allowed s60CC(2)(a) (child's

46 | Brief June 2015

relationship with father) to outweigh "the impact upon the child of being required to leave the settled environment in which he ha[d] been living" ([54]). The Full Court said ([66]) that "[s]ignificant weight must be placed on the fact that the child appears to be well settled in Thailand [being] of special importance because of his developmental delay", concluding (at [72]) that "the child's best interests will be better served by remaining in Thailand pending trial, rather than being uprooted and brought to Australia". The injunctions were discharged and it was ordered that the father spend time with the child in Thailand as agreed and via Skype.

Subpoena â&#x20AC;&#x201C; Objection to production of a will where solicitor had deposed to its contents In Sadek and Ors & Hall and Anor [2015] FamCA 23 (20 February 2015) the wife contended she did not know whether she had any interest in the estate of her deceased father whereupon the husband issued subpoenas to the wife's mother and three brothers ("the appellants") for production of the father's will and probate.

The appellants objected, arguing that an affidavit sworn by their solicitor as to the relevant parts of the will obviated its production and that the primary judge could inspect the will to determine whether the affidavit fully disclosed the relevant information. Dawe J dismissed the objection, saying that such a course did "not overcome the obligation to produce the ... document in its entirety if [it] is available" ([2]). On appeal the Full Court (Thackray, Strickland & Aldridge JJ) said (at [24]) that as "the appellants accept[ed] that the documents sought had apparent relevance to the proceedings, the subpoenas were appropriately issued" and ([26]) that it was "in the interests of justice for that relevant information to be provided to the husband". Before dismissing the appeal the Full Court added (at [28]): "Whilst it may be accepted that the solicitor for the appellants has, as far as he is aware, faithfully recorded what he regards as all relevant information from the will in his affidavit, it is possible that others might not take the same view."

Property â&#x20AC;&#x201C; Expert disagreement as to value of property developer's minority interest in a group of entities In Morrow & Steele [2015] FCCA 251 (13 February 2015) Judge Burchardt heard a property case where the husband, a property developer, held minority interests with other investors in "the [Steele] Group" and where each interest was held via a different company with different levels of interest in each. The valuation of those interests by the single expert ("Mr F") was $3.2m as "value to owner" or $2.8m as "fair market value" (the difference being explained at [30]) and by an alternate expert engaged by the husband ("Mr L") was $1.78m, the experts disagreeing (at [28]-[29]) as to the percentage to be allowed for the minority interest discounts and further discounts for lack of marketability. Mr F (at [36]) "was of the view that there was no real industry standard in respect of minority interest discounts", that "there's some crossover in terms ... of what's accounted for under either of those discounts" (at [37]) and that "the minority interest made no difference at all in terms of marketability" ([39]). Upon accepting the lesser of Mr F's two valuations and applying no additional discount for lack of marketability, the court concluded (at [69]):

Bearing in mind that both the experts clearly accepted that there is no precise range to establish minority interest exactly, one is left wondering how it is possible to say which of the rates is appropriate. In the end, however, I am more persuaded by Mr F's 12.5 per cent than Mr L's 16.5 per cent. The first point to be noted is that Mr F was engaged as a single expert witness. He, at all times, conducted himself in that style. Mr L was engaged with the clear aim of reducing the value to be ascribed to the interests of the [Steele] Group.

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.

case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Industrial law Power of agent to sign industrial agreement In Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23 (5 March 2015) an employer claimed that its agent had not had authority to sign an industrial agreement that was approved by the Fair Work Commission (FWC) and it should not have been approved under s186 of the Fair Work Act 2009 (Cth). The employer failed before the initial Deputy President and on appeal to a Full Bench.

The employer succeeded before a single Federal Court judge exercising jurisdiction under s75(v) of the Constitution who quashed the decision of the FWC. The union successfully appealed to the Full Court of the Federal Court which restored the decision of the FWC. Consideration by the Full Court of the difference between an appeal (or application for leave to appeal) within the FWC, establishing jurisdictional error in the Federal Court and an appeal on that question within the Federal Court.

The Full Court concluded the employer's representative had apparent authority to act as a "bargaining representative" (see s185 Fair Work Act) to sign the agreements and they should stand.

concluded that while Parliament may be taken to have authorised incremental decisions it could not be taken to have authorised a determination that in effect suspended the operation of this provision of the Migration Act.

Corporations

Migration

In Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10 (11 March 2015) the High Court in a joint judgment concluded that the power of courts to extend time in which a company's liquidator may apply for orders in relation to voidable transactions under the Corporations Act 2001 (Cth) s588FF(3)(b) was not limited to transactions identified at the time of the order but extended to transactions not able to be identified at the time of the order (known as "shelf orders"): French CJ, Hayne, Kiefel, Gageler and Keane JJ jointly. Appeal dismissed.

Cancellation of visas on character grounds In Fraser v Minister for Immigration and Border Protection [2015] FCAFC 48 (2 April 2015) a Full Court concluded the Minister had given "proper genuine and realistic" consideration to all relevant matters before cancelling a visa of a convicted criminal on character grounds under s501 of the Migration Act 1958 (Cth). A different Full Court made a like decision in Gbojueh v MIBP [2015] FCAFC 43 (24 March 2015).

In Contreras v MIBP [2015] FCAFC 47 (1 April 2015) a different Full Court concluded the Administrative Appeals Tribunal had not erred in performing the balancing exercise required by Ministerial guidelines before upholding a decision to cancel a visa on character grounds under s501 of the Migration Act. In Grass v MIBP [2015] FCAFC 44 (27 March 2015) a different Full Court concluded the fact that the Minister as a politician made general public statements about persons of bad character did not reveal bias in the instant decision.

Statutes

Migration

Subordinated legislation – power of executive to make regulations that effectively negate operation of Act

Refugees – stateless person

In Australian Maritime Officer's Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 (26 March 2015) s9A(5) of the Migration Act 1958 (Cth) defined an "offshore resources activity" as, inter alia, to include an activity carried out "within an area as determined by the Minister". In 2014 (and after regulations permitting visas for foreign workers employed in offshore resource activities were disallowed by the Senate) the respondent Minister determined to exclude all operations and all activities from the definition with the consequence the non-citizen workers involved did not require visas. The primary judge declared the determination valid. This decision was reversed by a Full Court which reviewed authority as to the construction of delegated legislation. The Full Court

In SZUNZ v Minister for Immigration and Border Protection [2015] FCAFC 32 (13 March 2015) a Full Court reviewed the provisions relating to the determination of refugee status for the Migration Act 1958 (Cth) for a stateless person.

Migration Refugees – persecution In BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 (24 March 2015) a Full Court in a joint judgment concluded the Refugee Review Tribunal had not erred in applying the definition of "persecution" in s91R(2)(a) of the Migration Act 1958 (Cth) and that the decision of a single judge in WZAPN v MIBP [2014] FCA 947 (3 September 2014) was not correctly decided.

HIGH COURT Criminal law

Winding up – voidable transactions – extension of time for liquidator to apply with respect to voidable transactions – extension of time where transaction not identified

Constitutional law Chp IV – finance and trade – Commonwealth laws not to give preference to one state or part thereof In Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 (8 April 2015) the plaintiff mined nickel at a mine near Townsville in Queensland and was subject to the tax imposed by the Clean Energy Act 2011 (Cth) as an entity that emitted greenhouse gasses.

In an action in the original jurisdiction it contended that the Clean Energy Regulations 2011 (Cth) contravened s98 of the Constitution by granting greenhouse tax credits by reference to an industry average of gasses emitted per unit of nickel produced and making no allowance for differences between the states. A case stated in the proceeding was determined

by Nettle J (with whom French CJ, Hayne, Kiefel, Gageler and Keane JJ each agreed). The Court observed that while laws were to be analysed by practical effect as well as pure legal effect the mere fact that a law produced different outcomes in different circumstances did not mean the law gave preference.

Questions stated answered accordingly.

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

47

law council update

WA'S NEW NO-FAULT INJURY SCHEME SHOWS WAY FORWARD The Law Council of Australia has welcomed the Western Australian Government's announcement to establish a no-fault catastrophic injury scheme for motor vehicle accidents.

The new model – recommended by the Law Council and the Law Society of Western Australia – maintains common law rights, while introducing a safety net for those who cannot prove a driver was at fault.

"This decision is a significant step towards a National Injury Insurance Scheme that will create a safety net for catastrophically injured road users," Law Council President-elect Mr Stuart Clark said.

"The new WA model provides a good example of how a national scheme should work, and allows access to common law compensation, which is invariably the case with the best performing no-fault schemes around the world."

Mr Clark said such 'hybrid' schemes, generally funded through a levy on motorists, provide low-cost insurance against individual mistakes, while ensuring the scheme remains affordable over the long-term.

SMALL BUSINESS CHANGES A BOON FOR LAW PRACTICES, BUT LEGAL AID FREEZE WILL HURT ACCESS TO JUSTICE

needed, reducing civil disputes and improving rates of small business failure.

This is good for employees, creditors and customers," Mr McConnel commented.

The Law Council of Australia has commended budget measures that assist small businesses, including law firms. However, the peak professional body warned that while continued legal assistance funding was welcome, potential increases in courts fees and an absence of additional legal aid funding will have an immediate impact on access to justice.

While the Law Council President welcomed continued funding levels for legal assistance, he expressed disappointment no increase was announced to meet an unmet legal need in our communities.

Law Council President Mr Duncan McConnel said many law practices are small businesses and concessions for changing business structure are critical for continued service delivery, particularly important in suburban and regional areas.

"These measures will be welcomed by small firms, and for small firms looking to consolidate, merge, or undergo succession planning. It may also be very timely for firms in New South Wales and Victoria transitioning into the Legal Profession Uniform Law," Mr McConnel said.

The immediate deductibility of up to $20,000 in business expenses for small business is another important benefit, according to the Law Council.

"The new scheme will ensure that those who have been injured receive immediate care and support, regardless of whether they were at fault, while ensuring fair compensation for those who were injured due to another driver's negligence," Mr Clark said.

"This will enable small law firms and barristers to invest in technology innovation to become more efficient.

Ultimately, this is good news for consumers as they will be able to access faster, more affordable legal services," Mr McConnel said.

"Those who haven been catastrophically injured on our roads are potentially extremely vulnerable. It is therefore vital that our system supports them and provides a genuine safety net," Mr Clark concluded.

Another positive access to justice measure is the immediate tax deductibility of legal advice for start-up businesses.

48 | Brief June 2015

"New businesses will now be more likely to get legal advice early when it is really

Mr McConnel also emphasised the critical need to find solutions to the growing cost of the Federal and Family Court systems.

"These court systems have already suffered deep cuts and we must consider the nature and extent of further 'savings' which may impact properly funding a critical resource. Appropriately-funded court systems will result in more efficient and timely resolution of cases. For family law matters, this has crucial downstream consequences in mental health and family violence," Mr McConnel said.

The Law Council President expressed caution over funding of the proposed infrastructure spending in courts, flowing from a Royal Commission into Aboriginal Deaths in Custody recommendation.

"It's worth inquiring why the Royal Commission recommendation is only now being implemented 20 years after it was made. In any event, when infrastructure spending is being funded by a potential increase in fees, you immediately have an access to justice issue. We don't make Australian's pay a fee to access public hospitals or schools – why should we have to pay for the courts?" Mr McConnel said.

"Ultimately, the 2015 Budget will mean better delivery of justice by small law firms and barristers, however, access to justice will remain an issue when it comes to legal assistance and court funding," Mr McConnel concluded.

pam sawyer

49

announcements

Professional Announcements Career moves and changes in your profession Independent Legal (WA) Independent Legal Services Pty Ltd, previously trading as Independent Legal, has commenced trading as Independent Legal (WA) as from 1 May 2015. All contact details remain unchanged.

Tina McAulay

Caring for the Legal Profession in Western Australia

•

Professional, confidential and free counselling and information services to support the mental health and wellbeing of members.

• Free access to online resources for life, family and relationship; health and wellbeing; and education, work and career.

• Members can also access up to three free counselling session a year.

24 hours phone support 1300 361 008 or lawsocietywa.asn.au/lawcarewa

LawCare(WA) is provided to members by

50 | Brief June 2015

HHG Legal Group is pleased to announce the appointment of Aleta Shilton, Special Counsel to its Family Law practice.

Aleta has significant experience in negations, mediations and court proceedings and is able Aleta Shilton to represent her client’s best interests with skill and determination. She has successfully acted in a wide range of cases acting for married, de facto and same sex couples as well as grandparents and third parties and also has significant experience in children and property matters both simple and complex.

Tina McAulay Tina McAulay, formerly of Francis Burt Chambers, wishes to announce that she has left the Bar and has joined the team at Pragma Legal. Her main areas of practice remain as advocacy, dispute resolution, construction, property & commercial litigation.

Aleta Shilton Counsel (Family Law)

Services provided by Optum

new members & classifieds

New Members New members joining the Society (April 2015)

ASSOCIATE MEMBERSHIP

ORDINARY MEMBERSHIP

Ms Sarah Bailey

Mr Daniel Loreck

DCH Legal Group

Mrs Bonnie Taylor

Mental Health Law Centre

Mr Craig Dunne Mr Alexander Griffiths

Lavan Legal

Miss Audrey Pieterse Miss Chelsea Rice

RESTRICTED PRACTITIONER

Mr Brett Waterhouse

Mr Paul Crean

Slater & Gordon

Ms Rachel Duckworth

Classifieds

MISSING WILL Anyone knowing the whereabouts of the Last Will (post 2005) made by FREDERICK JAMES CARLSON born 24 June 1929 who died on 6 March 2015, of 25 Anstey Street, South Perth, please contact HLB Lawyers, 8 Morris Place, Innaloo.

T: 9244 8818 E: henrik@hlblawyers.com.au

Litigation lawyers We need imaginative and innovative litigators with a good knowledge of District and Supreme Court practice and procedure to join our professional team. You will have the confidence and skill to conduct lower court trials and at least to participate in and possibly conduct superior court proceedings.

For more information visit litigationlawyers.birmanride.com.au or call Jeremy Birman on 9220 4480.

MISSING WILL Any person or firm having knowledge of any Will made

by TERRY ALAN GRAY born 29/06/1952 died on or about 24/01/2015 late of 116 St Andrews Drive, Yanchep please contact Paul D’Angelo of D’Angelo Legal, PO Box 1953, West Perth 6872 or call (08) 9381 1147

MISSING WILL Any person or firm having knowledge of any Will made

by PECE RAZMOVSKI born 30/10/1977 died on 3/12/2012 late of 14b Grinstead Way, Balga please contact Paul D’Angelo of D’Angelo Legal, PO Box 1953, West Perth 6872 or call (08) 9381 1147

ROOM VACANCY Albert Wolff Chambers A room has become available for immediate occupancy.

Please call Jonathan Davies on 0412 951 785 or email jdavies@iinet.net.au

51

events calendar

Events Calendar Date

Event

Location

Thursday, 18 June

Golden Gavel

Pan Pacific Hotel

Friday,19 June

CPD Geraldton Roadshow

Ocean Centre Hotel

Friday, 19 June – Saturday, 20 June

Advocacy: An Introduction for Junior Practitioners

The Law Society of Western Australia

Thursday, 9 July

HBF Wellness Yoga

The Law Society of Western Australia

Wednesday, 15 July

YLC Charity Quiz Night

Hyatt Hotel

Thursday, 16 July

HBF Wellness Yoga

The Law Society of Western Australia

Wednesday, 22 July

Society Club

TBC

Thursday, 23 July

HBF Wellness Yoga

The Law Society of Western Australia

Thursday, 30 July

HBF Wellness Yoga

The Law Society of Western Australia

Thursday, 6 August

HBF Wellness Yoga

The Law Society of Western Australia

Friday, 7 August – Sunday 9 August

Practical Advocacy Weekend for Junior Practitioners

Seashells Resort Mandurah

Thursday, 20 August

YLC Social Justice Opportunities Evening

Central Park Theatrette

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

52 | Brief June 2015

Your Essential Update

CPD EVENT: eCoNVEYaNCiNg UPDaTE •

The Electronic Conveyancing Annexure to the Joint Form of General Conditions for the Sale of Land, presented by Frank Poeta, Partner, Herbert Smith Freehills, member of the LSWA Joint Form Committee

•

Office of State Revenue, recent changes to facilitate eConveyancing

•

PEXA, report on first property settlement in WA and other updates

There are two seminar times available: Tuesday, 16 June 2015 4.30pm - 6.00pm The Law Society of Western Australia, Level 5, 160 St Georges Tce Perth OR Wednesday, 17 June 2015 12.30pm - 2.00pm The Law Society of Western Australia, Level 5, 160 St Georges Tce Perth

CPD EVENT: CPD RoaDSHoW gERaLDToN Friday, 19 June 2015 9.00am – 6.00pm Ocean Centre Hotel, Cnr Foreshore Drive and Cathedral Avenue, Geraldton PROGRAMME 9.00am - 10.30am Trust Accounts: Maintenance and Irregularities, for Legal Assistants and Lawyers

4.30pm - 6.00pm Society Club Drinks

11.00am - 12.30pm Time Management for Legal Assistants and Lawyers

Lawyers from Perth and other regions welcome to attend.

1.30pm - 4.30pm e-Conveyancing Forum: Getting your practice ready

Earn up to six CPD points, update your legal knowledge and network with colleagues.

Proudly sponsored by

CPD NoTiCE: eCoNVEYaNCiNg FoRUM: oNLiNE The recent three hour e-Conveyancing Forums have been developed into a two hour online module, accessible via elearning.lawsocietywa.asn.au.

It is highly recommended that lawyers who did not attend but are practising in this area undertake this module.

This online module also serves as a valuable foundation for attendees absent at the Forum, but are attending the eConveyancing Update.

NEW SPECiaL CoNDiTioN To JoiNT FoRM oF gENERaL CoNDTioNS FoR THE SaLE oF LaND Electronic Conveyancing Annexure to Joint Form of General Conditions for the Sale of Land The Law Society of Western Australia and the Real Estate Institute of Western Australia have prepared an Annexure to the Joint Form of General Conditions for the Sale of Land, Electronic Conveyancing Annexure (Special Condition 1) for use in transactions where the parties agree that settlement and lodgement will be conducted electronically in accordance with the Electronic Conveyancing National Law. The Electronic Conveyancing Annexure will be included with any copy of the Joint Form purchased from REIWA or LSWA. The Electronic Conveyancing Annexure is available on the Law Society’s website.

For full details and event registration, visit lawsocietywa.asn.au Limited places are available for select sessions, so register early to avoid disappointment.

lawsocietywa.asn.au

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

our brief is your career It’s no secret, accessing the wide variety of job opportunities enables you to accelerate your development at every stage of your legal career. And at Hudson Legal, opportunities abound. We work with diverse local and international clients to offer you the widest range of public sector, private practice and in-house roles available. As specialist legal recruiters, we work closely with you to understand your goals and advise how you can best achieve your career objectives. Backed up by more than 20 years’ experience at the forefront of Australian legal recruitment, you can be sure that we can find the ideal role for you every time.

au.hudson.com/legaljobs

DiSpuTeS — GeNeRAL

pRopeRTy & pRojeCTS

Senior Associate

Senior property Lawyer

Premier international firm seeking senior Disputes Lawyers. Opportunities for Litigators to work alongside highly regarded Partners on insolvency, employee relations and general commercial matters. Ref: BX/44186

Top-tier, prestigious firm seeking Lawyer with 5+ years’ PAE. Commercial Property matters deriving from energy, resources and infrastructure sectors. Strong BD and networking focus. Ref: 6B/15225

Associate

environmental Lawyer

Market-leading disputes practice. Litigator with 3–5 years’ PAE sought.

General commercial disputes, including insolvency, regulatory, contract disputes, IP and corporate actions. Employer of Choice. Ref: BX/43908

Premier firm with prominent and highly regarded Environment Partner and team. Lawyer with 2–6 years’ environmental, carbon, native title, land tenure and heritage experience required. Ref: BX/43556

Mid-Level Lawyer

projects Lawyer

National firm servicing a strong resources client base. Mid-level Litigator required to assist the firm’s commercial clients on a variety of commercial disputes. Excellent benefits package on offer.

Ref: BX/41768

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

DiSpuTeS — SpeCiALiST

CoRpoRATe & ReSouRCeS

Land Access

Senior Associate

International firm with leading Projects team seeking litigator with Warden’s Court and Native Title experience. 1–4 years’ PAE required.

Grow a unique skillset as part of this broader projects practice.

Ref: BX/44055

Leading Employer of Choice seeking lawyers with 5–9 years’ PAE. Legal 500 recognised M&A and ECM Partners. Exciting client base including internationally listed diversified companies. Ref: BX/43814

insurance

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

Ref: BX/43983

Senior defendant Insurance Lawyer with expertise in professional indemnity and D&O insurance required for highly regarded international firm with boutique Perth office. Excellent salary and benefits.

Ref: BX/43816

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

Resources Lawyer

Lawyers/Associates National and international firms. Superb opportunity for lawyers with 2–5 years’ Corporate and Energy & Resources experience.

Great benefits and genuine work/life balance on offer.

Ref: BX/44068

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

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