Volume 42 | Number 4 | May 2015
JUDICIAL CASE MANAGEMENT AND THE PROBLEM OF COSTS
USING PREDICTIVE DISCOVERY DEFENSIBLY AVOIDING CLAIMS OF BREACH OF GOOD FAITH
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Volume 42 | Number 4 | May 2015
Take me with you.
YLC Beach Volleyball Competition
NBN WA Stage 2 Project
Alison Muller and Jane Stewart
Book Review of Adobe Acrobat in One Hour for Lawyers
Review by Hon Peter Dowding SC
Using Predictive Discovery Defensibly
Young Lawyers Case Notes
Lawyer on the Street
Family Law Case Notes
Thomas Hurley Case Notes
FEATURE Judicial Case Management and the Problem of Costs
Law Council Update
Chief Justice James Allsop
CPD Roadshow to Albany and Bunbury a great success
Enhancements to the Law Society's Law Access Pro Bono Referral Scheme
Avoiding Claims of Breach of Good Faith
Basic Trial Advocacy. a Survival Guide to Court Etiquette
John McKechnie QC
Practice Management Regulation
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EDITOR Julian Sher
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President's Report Matthew Keogh, President, The Law Society of Western Australia You can bet your dear old hair shirt there's going to be an argument! Horace Rumpole May means Law Week, which this year runs from 11 to 15 May. The national theme for Law Week in 2015 is ‘law and justice in your community’. Law Week is a celebration of our law and justice system, the rule of law and lawyers. We should not be ashamed of this. Law is a noble profession, one of the oldest, and we should all be proud to be lawyers. Indeed, we are very privileged to become lawyers, struggling through school and university, some as youngsters, others while holding down other jobs and supporting families in later life. As lawyers, we have a monopoly on appearing in court for others and, in general, providing legal advice. While some are critical of this perceived closed shop privilege, it must be seen for what it is – a public protection measure. The Australian Institute of Architects is currently running an advertising campaign that I think the legal profession can learn from. The advertisement reads: “You wouldn’t ask a butcher about broccoli, so when it comes to building and renovating, ask an architect…”. A similar advertisement from a few years ago read: “Would you ask a mechanic to remove your wisdom teeth? Hire an architect to design your house.” Letting those unqualified in the law loose on the public would cause more harm than good. We are all very well aware of the problems many of us have had to fix for clients that have been caused by accountants, commercial advisors, financial planners, self-help will kits and other well-meaning but unqualified legal assistance. As such, we should all stand tall as the proper purveyors of legal assistance to our community. Of course, with such great power comes great responsibility to help those who require legal assistance but, are not in a position to be able to afford it. Alas, this is an increasing proportion of the population. What is great, however, is the large number of Western Australian 02 | Brief May 2015
lawyers who provide this assistance through workplace pro bono schemes, at the bar, volunteering with community legal centres and many other ways. These are some of the great unsung stories of the legal profession that we try to publicise during Law Week, so that the broader community can see lawyers for what they are – people helping other people with their problems. LAW WEEK EVENTS The Law Society’s Law Week celebrations this year are a change from previous years, seeking to engage more of you in our events, including: •
Law Week launch breakfast and Attorney-General’s Community Service Law Award, featuring Deidre Wilmott, CEO of the WA Chamber of Commerce and Industry, as our keynote speaker, discussing what the legal profession can learn from how business is tackling economic pressures and achieving greater diversity among its leadership; and Law Week Cocktail Gala to conclude the week in celebratory style, including presentation of the Law Society’s Lawyer of the Year Awards and life memberships.
There are of course many other events running throughout the week, such as our Youth Civics Day, Mental Health and Wellbeing seminar, community events and various seminars. LAW ACCESS It is fitting in the month of Law Week to update you on the Law Society’s work in expanding its Law Access service. You will recall that a few years ago the Law Society called together many stakeholders across the legal profession and legal assistance sector to work on expanding the provision of pro bono legal services in Western Australia to better meet the expanding need for such assistance. As part of this, together with the Community Legal Centres Association of Western Australia, the Society engaged Kalico Consulting to conduct a review of the legal assistance needs of our
state and the current services available, including our own Law Access pro bono clearing house. This resulted in the Doing the Public Good report, which is available on the Law Society website and made a number of recommendations, that were endorsed by the stakeholder group. The key development from this work was the agreement of all stakeholders that the Law Society should continue to operate its Law Access pro bono clearing house service, rather than folding it into existing national services based in other States, or establishing a whole separate service, with the requisite cost that this would involve. However, it was agreed that the Law Society’s Law Access service should be enhanced. Our new revamped Law Access service has been established with staff operating from rooms at UWA. This has provided more space to also be able to accommodate a number of lawyers on placement from various firms who assist with in-house processing and merit assessment of applications for pro-bono assistance, as well as student assistance. This has allowed for much faster processing of applications (as compared to when merit assessments were conducted by external volunteer lawyers), along with the processing of more applications. Law Access has also established a permanent Stakeholder Advisory Committee, comprising representatives from community legal centres, Legal Aid, the Aboriginal Legal Service, the bar, different firms, the Law Society, the Courts, and others in the legal assistance sector, to provide guidance in the provision of the Law Access service and a mechanism for better co-ordination of referrals of pro bono work. In particular, Law Access will be working with others in the sector to reduce the bounce of applicants for assistance between services, as well as creating streamlined application processes that better allow for warm referrals between agencies and to the right agencies or law firms. Of course, an enhanced service not only assists in increasing the reputation
of the legal profession and the broader community's perception of lawyers, it also requires more help from the profession in terms of lawyers and firms willing to take on pro bono matters that have been assessed as meritorious by Law Access, together with funding to support Law Access’s activities. As you will all appreciate, funding in the legal assistance space is very tight and under constant threat from governments. The Law Access service provides incredible value for money due to its highly leveraged nature, and should also serve to reduce pressures on other legal assistance services, such as CLCs, by reducing the bounce of applicants between them. If you or your firm can assist with time, staff or funding, please contact Dominique Hansen on (08) 6488 5683 or email@example.com. LEGAL ASSISTANCE FUNDING It will be clear to all of you that one of the most significant providers of legal assistance, especially in the criminal and family law spheres, is the Legal Aid Commission of Western Australia. This is, of course not to downplay the terribly important work undertaken by the Aboriginal Legal Service of Western Australia and many others. The WA Legal Aid Commission was born in 1977, the first in Australia, in some part taking on the work previously performed by the Law Society’s then Legal Assistance Scheme, which was established in 1960. While government funding for such services has never been profligate, funding took a marked turn in the wrong direction, when between 199697 and 1996-98 Commonwealth funding for legal aid services were cut significantly nationwide, resulting in a 33% cut in Western Australia. Prior to this, Commonwealth funding made up approximately 50% of legal aid funding nationally. This is a situation that has never been recovered from. By 200910 Commonwealth funding made up only 32% of legal aid funding nationally. Indeed, WA receives the second lowest amount of funding on a per capita basis of all of the States and Territories (the lowest is Victoria), despite having the largest geography to cover while providing such services (many times greater than Victoria, let alone the Northern Territory, Tasmania or the ACT, which receive the highest amounts per capita). While we are fortunate that the Western Australian government, has in many ways, tried to step in to stem the losses and continue services affected by such cuts, for which we should all be very
grateful, the resources of the state have been such that it has not been able to completely replace the funding lost from the Commonwealth. Subsequently, Commonwealth funding of legal assistance services did not receive a substantial increase until the closing days of the last Federal Government, with the announcement of a $30 million increase in legal aid funding over two years. While substantially less than the $76.2 million called for by the Law Council of Australia at the time, this was halved (i.e. effectively abolished after one year) in the present Commonwealth Government’s 2014 budget. Recently, however, Commonwealth Attorney-General, Senator George Brandis, has thankfully announced that the legal aid funding cuts that were to apply from 1 July 2015 have been withdrawn, following a meeting with Law Council of Australia Directors in March 2015. So the rollercoaster ride that is legal aid and legal assistance funding in Australia continues, despite last year’s Productivity Commission’s Report into Access to Justice Arrangements recommending that an additional $200 million be committed to ensure the legal assistance sector for civil matters is sustainable in the medium term, with annual funding increases thereafter, based on CPI. In addition, a PWC report in 2009 found that “the net efficiency benefits of providing legal aid for Family Court representation, duty lawyers and dispute resolution services range from $15.86 million to $32.90 million per annum. This is a range of benefit-cost ratios of 1.60 to 2.25."
this end, I am pleased to say that the Law Society has supported moves for an increase in fees paid to practitioners for legally aided work. While the funding environment is a constrained one, such work is vital for the community and, even with a modest increase, will still represent a bargain for such advice and, often come on top of much other pro bono work being performed by practitioners. Without at least modest increases, we risk there not being sufficient numbers of appropriately skilled practitioners to take on legally aided work. QUALITY PRACTICE STANDARD (QPS) The Law Society would like to congratulate Bowen Buchbinder Vilensky on 15 years as a QPS firm, as well as Solomon Brothers and HHG Legal Group on 10 years as QPS firms. QPS is an important Law Society initiative that recognises firms that have developed and adhered to documented internal systems and processes. These systems are designed to improve client satisfaction and reduce risks for clients and firms. Interestingly, the Law Society finds that firms that operate under QPS are less likely to have a professional indemnity insurance claim made against them, and for this reason Law Mutual provides a premium discount to QPS firms. While we haven’t surveyed this, we expect their partners and principals sleep better as well. For more information about QPS, visit the Society’s website. VALE HON. JOHN TOOHEY AC QC
So the figures are in, legal aid and legal assistance are chronically underfunded and currently face a great deal of uncertainty, all while it is clear that money spent on legal aid is money well spent, leveraging multiples of benefit for every dollar spent. Let’s all hope that the upcoming State and Commonwealth budgets bring good news in terms of levels of funding and certainty for legal aid and the legal assistance sector. Indeed, we should all be speaking to our local MPs and, when we can, Ministers, to emphasise the point that not only is the money needed to provide valuable access to justice and support to the operation of the rule of law – because if justice is unattainable there can be no rule of law – but that is also a bargain, providing a multiplier effect of benefit for government and our community.
The Law Society of Western Australia extended its condolences today to the family of former High Court Justice, the Hon John Toohey AC QC, following his passing on 9 April 2015. John Toohey was one of Western Australia's and Australia's most eminent jurists and contributors to the law and justice. He held many esteemed roles and made a valuable and lasting contribution, including the Federal Court of Australia, inaugural Aboriginal Land Commissioner for the Northern Territory, independent member of the Bloody Sunday Inquiry, President of the Law Society and of the WA Bar Association, and inaugural lawyer at the Port Hedland office of the Aboriginal Legal Service of Western Australia. John was also a life member of the Law Society. His wit and intellect will be missed. May he rest in peace.
As a final point in relation to this issue, many of you will be aware that the rates paid to practitioners for legally aided work are very low, especially when compared to relevant scale rates (which many will already regard as being too low). To
A final thought in this Law Week month, carpe diem!
Wellness, wellbeing and case management Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal Astute readers will have noticed that this is no longer the 'Editorial', but the 'Editor’s Opinion'. Without further ado and in that spirit, I give my opinions for the month. Imagine having demanding clients. Imagine salary and promotion prospects being dependent almost entirely on achieving financial targets. Imagine, too, that ultimately those prospects were unpredictable. In an environment like that, some level of stress would be perfectly understandable. Where am I heading with all this? Well, recently I stumbled across two significant items on the subject of the mental health of the legal profession. The first is the 'Foreword' to an issue of the 2014 University of New South Wales Law Review, by Her Honour Justice Katzmann, of the Federal Court, canvassing the enormous changes to our profession over the last 35 years or so: (2014) 37(3) UNSWLJ 1023. The other is a report published online, in Lawyers Weekly on 8 April 2015 (“Stress management part of ‘student skill set’”). Justice Katzmann observes: “ ... possibly the biggest issue presently confronting the legal profession is the one it refused to acknowledge for far too long. That issue is the impact of our working conditions on our mental health.” The Lawyers Weekly quotes Professor Sarah Derrington, the academic dean of Queensland Law School, who says: “Learning to manage stress needs to be as much part of a law student’s skill set as mooting, researching and critical thinking.” How true – and how timely. Laudably, our own Law Society has emphatically not dropped the ball regarding the mental health and wellbeing of members of the profession. In 2011, Dr Chris Kendall, then a vice-president of the Society, prepared a prodigious report for the Society’s Council: Report on Psychological Distress and Depression in the Legal Profession. The WA profession 04 | Brief May 2015
has come a long way since the Kendall Report. It holds CPD seminars on mental health and wellbeing issues and promotes discussion through Brief, with practical advice and case studies. Members are entitled to three free counseling sessions annually through LawCare (WA). The Society’s Mental Health and Wellbeing committee advises Council on best practice. Friday Facts of 9 April 2015 reminds us that improving the mental health of the profession is one of the Society’s goals for 2015 – another being combatting gender bias and the retention of women. There were two recent national workshops organised by the Law Council of Australia to develop a national response to the LCA’s National Attrition and Reengagement Study Report, attended by President Matthew Koegh and David Price, our Executive Director.
response was initially to the effect that those costs would be incurred anyway. Nevertheless, the newly resurgent and emboldened solicitors fired back, making the trenchant point that not all matters are necessarily destined for trial. “In that case,” they asked, “wouldn’t the front loaded costs be completely wasted and unnecessary?” Ultimately, the combined judicial riposte was something like: “Yes. But we’re going to do it anyway.” In the intervening period, since that distant event in the early 90s, those identical questions have not gone away, as our cover story this month fulsomely demonstrates. We are privileged to publish (over the next two months) a speech by His Honour the Chief Justice James Allsop AO of the Federal Court, in which he discusses those very same questions, but with the benefit of the experiences of the last 25 years or so.
Law is a tough neighbourhood, where reality and aspirations (and expectations) may be separated by a wide gulf. But contrary to the perception of the general public and the media, not all lawyers are tough streetfighters, willing to take on anyone and anything for money. The Society is to be commended for its programmes to support members who are unwell.
Apart from our regular columns, this month sees the introduction of 'Lawyers on the Street', courtesy of the Young Lawyers Committee. It features the diversity of young lawyers in WA. They are our future leaders, heralding the continuing generational change that characterises our profession. Another novelty is the introduction of Young Lawyer case notes.
On a different topic, in about 1992 I attended a Law Society seminar, at which the then Chief Justice of WA, the late David Malcolm, and the former Justice David Ipp, introduced the fresh new concept of case management to the assembled profession. They explained how the court rules would be changed to require witness statements to replace evidence-in-chief. They warned against writs being issued without witness statements first being taken, amongst other things.
This month we have included an updated version of Clare Thompson’s CPD paper, “Avoiding claims of breach of good faith”. There is also an interesting article entitled “Using Predictive Discovery Defensibly” by Samantha Tomvald and a book review by Peter Dowding SC.
After their presentation there was a slight pause, while we, the assembled solicitors, recovered from the shock. But then one brave soul, whose name is lost in the mists of time, summoned the courage to ask this question: “But if you require witness statements, are you not really front-loading the costs?” The judicial
Lastly, but not least, this issue contains the usual social and professional features, including a report on the CPD Roadshow to Bunbury and Albany. We also mark the appointment of His Honour Justice Martino to the Supreme Court and Judge Sleight as the Chief Judge of the District Court. Brief welcomes your thoughts and feedback. Send all letters to the editor to firstname.lastname@example.org
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JUSTICE PETER MARTINO
JOHN MCKECHNIE QC
JUSTICE MICHELLE GORDON
His Honour Justice Peter Martino joined the Supreme Court bench on Monday, 20 April 2015. His Honour graduated from the University of Western Australia in 1977 and was admitted in 1978.
His Honour Justice John McKechnie retired from the Supreme Court on Friday, 24 April 2015 after sixteen years on the bench. John McKechnie QC commenced as head of the Corruption and Crime Commission on Tuesday, 28 April 2015.
Western Australia's the Honourable Justice Michelle Gordon has been appointed a Justice of the High Court. Justice Gordon will replace the Honourable Justice Kenneth Hayne AC, who will reach statutory retirement age on Friday, 5 June 2015.
His Honour had a distinguished legal career, and in 2000 was appointed to the District Court bench. Following the retirement of Her Honour Chief Judge Kennedy in 2010, Justice Martino was appointed Chief Judge of the District Court. CHIEF JUDGE KEVIN SLEIGHT On Monday, 20 April 2015, His Honour Judge Kevin Sleight was appointed Chief Judge of the District Court, His Honour was appointed to the District Court in 2005. His Honour has served in both the District and Supreme courts and has been the Regional Convenor of the National Judicial College of Australia, as well as the Chairperson of the Inter-jurisdictional Education Committee. He currently presides as the Chairperson of the Child Witness Committee of the District Court.
06 | Brief May 2015
John McKechnie QC attended Scotch College, before completing his Bachelor of Laws from the University of Western Australia in 1972. Mr McKechnie was articled at Jackson McDonald and was admitted to practice in 1974. He joined the Crown Law Department (now State Solicitors Office) in 1976. Taking silk in 1989, Mr McKechnie was appointed Chief Crown Prosecutor in 1990, and the following year became the inaugural Director of Public Prosecutions, a position he held for eight years. John McKechnie QC was appointed to the Supreme Court in 1991. He had the responsibility for introducing information and communication technologies into all the courts, and was the Senior Judge of the general division. Mr McKechnie is also an adjunct professor at Murdoch University, where he teaches Forensic Advocacy.
Her Honour has had a distinguished career as lawyer, barrister and judge, specialising in taxation law, trade practices and constitutional law since graduating from the University of Western Australia and commencing legal practice in Perth in 1987. Her Honour attended St Mary's Anglican Girls' School and the Presbyterian Ladies' College in Perth, before completing jurisprudence and law degrees at the University of Western Australia. Her Honour was first employed at the firm of Robinson Cox (now Clayton Utz) in Perth, and moved to Melbourne in 1988 to work at Arthur Robinson and Hedderwicks (now Allens), becoming a barrister in 1992, and taking silk in 2003. Her Honour was appointed to the Federal Court of Australia in 2007. The Honourable Justice Gordon will be sworn in on Tuesday, 9 June 2015.
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Using Predictive Discovery Defensibly Samantha Tomvald Senior Consultant, FTI Consulting In the past decade there has been an exponential increase in the volume of electronically stored information that is retained by organisations.1 The societal shift towards a preference for electronic media means it is far too easy to create and retain virtually limitless amounts of information. It is now common for firms to review evidence that has been collected and preserved on hard drives likely to contain gigabytes or even terabytes of data, and it is no longer practical to print and operate a hard copy review, as to do so would quickly become a profligate review strategy. It is no surprise that legal review has so often been identified as the most expensive phase of the discovery process. Manual reviews are timeconsuming and expensive, and when keyword searching is used by itself, it can be ineffective and too imprecise in its application. By continuing to advance in line with developments in technology, e-discovery expertise has transformed the way we are able to approach the discovery phase of litigation. However, with the increase of material to digest and fewer resources at their disposal, litigators still need a more effective way to run their analysis and review, whilst still preventing unnecessary discovery costs and delay.2 To ensure defensibility, there needs to be evidence of an indisputable review process and perhaps one that includes the use of specific domain experts who can assist, via expert evidence or otherwise, to validate the use of the particular technology, as well as the defensibility of the entire approach. Predictive discovery offers a compelling alternative to traditional electronic legal review by giving lawyers important new tools to help them defensibly manage their growing data volumes. Through the use of well-founded mathematical principles of statistical sampling, and the extraction of noun and noun phrases from electronic data sets, predictive discovery technology can assist with prioritising documents for review, eliminating irrelevant data, or finding additional responsive material. The end result is an expedited review process at
a reduced cost, which is still justifiable and defensible. Unsurprisingly, predictive discovery has sparked unprecedented discussion among e-discovery practitioners, from conference panels to blog posts. There is constant debate regarding judicial acceptance of this ‘black box’ technology, questions concerning its capacity to defensibly automate and reduce e-discovery costs, and a strong scepticism as to whether it will ultimately eliminate the role of human reviewers.3 The use of predictive discovery technology invariably presents the court with methodologies and forensic techniques beyond the knowledge or skills of a layperson, and outside the experience of most judges. The party selecting the methodology must therefore be prepared to explain the rationale for the chosen process to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.4 To do this, practitioners need to understand the tools they deploy and how they fit into the discovery process; for most this can be a daunting challenge. A party to litigation must structure any document review proactively and build a case that can withstand legal
discovery. It is well-known that a poorly planned and executed review strategy can be detrimental to a case. As such, a sound discovery plan is a must, and ultimately should lead to the accurate identification and production of appropriate materials, through the use of methods that are reasonably transparent and justifiable in light of the circumstances of the case.5 Innovative practitioners have realised that, as providing discovery has become such a major project, it makes perfect sense to adopt a project management approach to this work. Litigation is no different to running any other major project, in that both have a starting and finishing point and both are scoped, costed, and resourced. Adopting a project management approach helps parties to plan for the possibility of unforeseen issues and to put contingency strategies in place to address them6, and while this approach is not technology in itself, it must not be underestimated as part of a defensible process. A premeditated discovery strategy will invariably increase the quality of the output from the review process and assist to contain costs. This is particularly important with predictive discovery, which uses classifiers to extrapolate human
“The use of predictive discovery technology invariably presents the court with methodologies and forensic techniques beyond the knowledge or skills of a layperson, and outside the experience of most judges.” scrutiny, while demonstrating that it has acted diligently and made informed and reasonable decisions. As new technologies are developed, processes and safeguards for implementing those technologies defensibly are also established. How, then, can new technologies such as predictive discovery be used in a defensible manner?
coding decisions made on a subset of a larger data set. Quality control is paramount to achieving the benefits of predictive discovery, and a collaborative attitude is necessary to ensure that the technology, practitioners and experts are coordinated in a demonstrable and defensible manner, rather than relying on a ‘one size fits all’ approach.
In some ways, the starting point for using predictive discovery is no different than if a party were providing traditional
It is important to leverage people, processes, and technology cohesively, because ultimately, the defensibility of a 09
party’s approach to the review will rely more on the expert orchestration and coordination of the process employed, rather than on which particular technology is used.7 Even the best technology in the wrong hands is a disaster.8 However, if managed and administered properly, predictive discovery technology ultimately will help revolutionise document review by increasing accuracy and shortening review time (and therefore cost). This in turn means that we can improve the way we discover documents, while more efficiently meeting the client’s objectives and managing costs constraints. Whether the use of predictive discovery tools is defensible will come down to whether the party that used the technology can demonstrate that they followed a process and produced reliable results.9 Comprehensive audit trails are absolutely central, as a lack of visibility into such sophisticated technology can confound the process. As with any discovery, practitioners should ensure that there is a full audit trail starting from collection through to production, which includes documentation of all findings, even if those findings are unresponsive. Ultimately, predictive discovery allows a party to tailor an effective and defensible search process by refining searches to defined levels of recall and precision10, by utilising sampling methodologies backed by advanced statistical concepts, to test results and to create efficient iterative feedback loops.11 In simpler terms, the accuracy of discovery versus the scale of documents requiring manual review can be balanced to meet a client’s objectives or obligations. Predictive discovery technology is a relatively recent innovation within the Australian legal industry and there is not as yet any significant local judicial guidance on the use of this technology in litigation. Although a high level of interest
in this technology has been generated in Australia and New Zealand, this may be at least part of the reason why we have not yet adopted the tools as well as our American and European counterparts.12 The landmark American decision of Da Silva Moore13 saw a court consider and approve the use of advanced document review software, including predictive coding, in place of more common approaches such as keyword searches or linear review by humans. What should be taken away from this decision is serious consideration of the use of technology assisted review in large data volume cases where it will save all parties significant expense in document review. Technology is only reliable when it is used in conjunction with the right processes. This is especially true in the context of litigation, where the process is just as important, and perhaps even more important, than the technology itself.14 The growing need for this very specific skill set will impose an increasing burden on legal teams trying to deliver and implement defensible predictive discovery programmes.15 Fortunately, discovery technology brings with it the ability for varying experts and resources to be utilised by legal teams managing discovery. Because of this, the idea of a legal team working in conjunction with technology, and appropriate experts to help drive discovery, becomes not only practical, but preferred. The utilisation of expert e-discovery resources will strengthen the review process and limit potential gaps in the overall defensibility of the methodology, and if the review process does need to be defended, these expert resources can then provide expert testimony addressing any issues raised.16 Ultimately, a process is only as strong as its weakest link, and even the most sophisticated discovery technology still requires human reviewers.17 Defensible practices demand a well-chosen strategy
and a disciplined execution. As parties continue to use this technology in conjunction with these ideals, predictive discovery may soon enough become the new ‘gold standard’ of modern document review.18 Technology and electronic discovery will always present challenges, however, at the end of the day, electronic discovery should be a solution and not another problem.19 NOTES
Technology-Assisted Document Review: Is It Defensible? Richmond Journal of Law & Technology 2012, Vol.18. <http://jolt.richmond.edu/v18i3/ article10.pdf>.
Advice from Counsel: Can Predictive Coding Deliver on its Promise? FTI Technology Whitepaper 2012.
'Defensible' by What Standard? The Sedona Conference 2012. <https://thesedonaconference. org>.
Legal Project Management Scoping: Why is this so vital? The Australian Corporate Lawyer, 2014. <www.acla.com.au>.
Best Practices for a Defensible Review. Asian Legal Business 2012. <http://www.quislex.com/files/ALBBestPracticesforDefensibleReview.pdf>.
Refer Note 1.
‘Recall’ measures how well a process retrieves relevant documents, whereas ‘precision’ measures how well a process retrieves only the relevant documents.
Refer Note 7.
Federal Judges Consider Important Issues That Could Shape the Future of Predictive Coding Technology. Forbes 2012. <http://www. forbes.com/sites/benkerschberg/2012/02/20/ federal-judges-consider-important-issues-thatcould-shape-the-future-of-predictive-codingtechnology/>.
Da Silva Moore v. Publicis Groupe SA and MSL Group, Case No. 1:11-civ-01279 (ALC) (AJP), 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012).
Refer Note 1.
ibid., page 10.
Refer Note 5.
Refer Note 7.
Establishing a Defensible Approach to TechnologyAssisted Review. The Metropolitan Corporate Counsel 2012. <http://www.metrocorpcounsel.com/ articles/21729/establishing-defensible-approachtechnology-assisted-review>.
Refer Note 1.
INSURANCE GANGNAM STYLE (RELOADED) Sir Ninian Stephen insurance law masterclass
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10 | Brief May 2015
Lawyer on the Street
This is the first instalment of a new Brief column, by the Young Lawyers Committee (YLC) that will profile junior Western Australian lawyers across the full spectrum of legal practice areas. As well as addressing legal work, the profiles will also seek to cover what motivates people to pursue a career in law, the challenges facing junior practitioners, issues of work-life balance, and the practical realities of law that are not learned at university. YLC hopes that these profiles may provide some support and encouragement to our fellow junior practitioners as they build their own careers. It is often inspiring, or at the least supportive, to hear the stories of others. The YLC also hopes that the profiles will show the value that being an active participant in a collegiate profession can bring to us as individuals, and as a community. In this first column, we profile three members of the Human Rights and Social Justice Working Group of the YLC of the Law Society of Western Australia.
12 | Brief May 2015
I’m a junior lawyer at Rothstein Lawyers (admitted November 2013) and I advise in all areas of Migration Law, with a particular interest in Refugee Law. I’ve been fascinated with Migration Law since learning about the Tampa Affair in my high school political and legal studies class. (I’m too young to remember the actual event!) Migration Law is shaped by many factors: the government, public opinion, international organisations, international law and, of course, migrants and lawyers themselves. I was fortunate enough to be offered a position at Rothstein Lawyers, a boutique Migration and Commercial law firm, during my final year of university. I am now able to make my own (small) impact on Australian Migration Law, or at least to make a difference in the lives of my clients. My ambition is to have my own Migration Law firm one day. Outside of work, I further pursue my interest in human rights through my involvement in the WA Law Society’s Human Rights and Social Justice Working Group and by volunteering as a Migration Law consultant at Centrecare Migrant Services' evening walk-in advice service. I’m a strong believer in practising hobbies to give one’s mind a rest from work, whilst keeping the brain and body active. I’ve been studying Spanish for the past four years and have recently completed a 1920s Charleston dance course!
lawyer on the street
I am a solicitor at Herbert Smith Freehills in the disputes resolution team and a member of the Human Rights and Social Justice Working Group (HRSJWG). The HRSJWG is aimed at raising awareness and instigating debate about important human rights and social justice issues relevant to the legal profession. As a solicitor and a member of the HRSJWG, I am able to identify, and engage in discussions regarding issues faced by the legal profession, as well as organise events aimed directly at raising awareness of those issues.
After spending a year at Jarman McKenna doing my articles, I joined Shine Lawyers as one of three new junior solicitors. In my short time in the legal profession, I have had the opportunity to be part of some significant medical negligence and public liability matters on both sides of the fence and my long-term goal is to specialise in Health Law.
The main motivating factors in my career (and life) can be summed up quite succinctly by reference to the prologue to Bertrand Russell’s autobiography: "the longing for love, the search for knowledge, and the unbearable pity for the suffering of mankind." I strongly believe that in order for people to find fulfilment in their career, they must focus their career on causes they strongly believe in and challenge themselves daily. One of the biggest challenges faced by all practitioners in the legal profession is finding a balance in their lives and prioritising competing interests. I find balance in my career by maintaining perspective, setting boundaries and working towards pre-set goals. In my short career, I have been fortunate enough to work at an organisation which prides itself in providing worldclass coaching for junior practitioners and encouraging all employees to get involved in community initiatives. As a solicitor at Herbert Smith Freehills, I am involved with various pro bono matters and am part of the Diversity and Inclusion Committee which is focused on, among other things, cultivating a diverse and inclusive workplace. My main motivation for joining the HRSJWG was to contribute to larger scale projects aimed at human rights and social justice issues.
As a result of meeting some incredibly talented practitioners, who have in turn become my career mentors, I have had the privilege of being published in the Australian Yearbook of International Law as well as a number of Lexis Nexis publications. This has allowed me to gain a deeper understanding of the issues that plague private international law, as well as topical discussions about Flo Rida and his legal woes1. Since joining the Human Rights and Social Justice Working Group in 2013, I have had the privilege of participating in some great initiatives to raise awareness on some important topics that often don’t get the attention they deserve. Similarly, I have been made aware of many issues and projects pushing to the forefront. I have also had the opportunity to represent the HRSJWG/YLC at panel discussions with the Ambassador General John Berry to advance the interests of the LGBTQI community of Western Australia. All in all, it’s been an incredible year full of growth and opportunity. I highly encourage all young lawyers to get involved and connect with the HRSJWG/YLC. Be part of the conversation and share your ideas about what we can all do to be better. An idea that is developed and put into action is more important than an idea that exists only as an idea. 1.
Flo Rida v Mothership Music Pty Ltd  NSWCA 268). For those who do not recognise the name, he is the music legend who coined the phrase “Shawty had them Apple Bottom Jeans, Boots with the fur”. Yes, ‘music legend’ indeed.
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JUDICIAL CASE MANAGEMENT AND THE PROBLEM OF COSTS 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. INTRODUCTION The problem of litigation costs and delays may be as old as law itself. That, however, is not a reason to give up the struggle; rather to reflect on the difficulty of the task. Writing in the late eighteenth century, Edward Gibbon had this to say about Roman advocates in the centuries following the foundation of Constantinople: The splendid and popular class was composed of the advocates, who filled the forum with the sound of their turgid and loquacious rhetoric. Careless of fame and of justice, they are described for the most part as ignorant and rapacious guides, who conducted their clients through a maze of expense, of delay, and of disappointment from whence, after a tedious series of years, they were at length dismissed, when their patience and fortune were almost exhausted.1 Later in his celebrated history, Gibbon returned to the pitfalls of litigation in a declining Empire: The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only 14 | Brief May 2015
to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge.2 Two centuries later, Lord Woolf echoed these observations in his report on Britain’s civil justice system, in which it was concluded that costs were the most serious problem facing the British civil justice system: The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant.3 Jeremy Bentham had been of the same view; he labelled costs “the grand instrument of mischief in English practice.”4 There is, plainly, an impulse to eliminate delay and expense in civil proceedings. Again, Gibbon’s observations in this connection are of more than mere historical interest for present purposes: The experience of an abuse, from which our own age and country are not perfectly exempt, may sometimes provoke a generous indignation, and extort the hasty wish of exchanging our elaborate jurisprudence for the simple and summary decrees of a Turkish cadhi. Our calmer reflection will suggest, that such forms and delays are necessary to guard the person and property of the citizen; that the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry.5
This was once the perception: perhaps a false dichotomy between intricate rules, forms and procedures, with their associated costs and delays, or le déluge in the form of summary justice, based more on discretion than on rules. It is now our objective, enshrined in legislation,6 to have a sophisticated, but swift and inexpensive system. We aim to guard the person and property of the citizen without surrendering to summary discretion. Yet even the enshrinement of such worthy goals is not new. It is at least as old as Magna Carta, in which King John made the following promise: To no one will we sell, to no one will we deny or delay right or justice.7 As Professor Jolowicz observed in the 1970s, “[t]he essential question … concerns the extent to which the powers of the court can be increased without thereby sacrificing other values which are held to be vital to the due administration of civil justice.”8 CASE MANAGEMENT AS A SOLUTION TO THE COSTS PROBLEM In the so-called bad old days, litigation was left entirely to the parties, with the court taking no interest in its progress unless an issue was put before it by the litigants.9 It was the perceived (and real) inadequacies of this rigidly adversarial system, with its aloof judges, that led to the Woolf reforms of procedure in England and Wales. Lord Woolf put the interrelated problems of cost, delay and complexity squarely at the feet of judges and the role they played in the litigation process: These three [problems] are interrelated and stem from the uncontrolled nature of the litigation process. In particular, there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.10 This is no mere truism or platitude. One may conceive of many reasons for the cost, delay and complexity of civil litigation. The intricacy of substantive laws, the conduct of the legal profession and the conduct of the courts are three distinct possible reasons. Yet Lord Woolf nominated the lack of judicial case management as the overriding concern. “Without effective judicial control”, he wrote, the adversarial process is likely to encourage an adversarial culture and to degenerate into an environment in which the litigation process is too often seen as a battlefield where no rules apply. In this environment, questions of 16 | Brief May 2015
expense, delay, compromise and fairness may have only low priority. The consequence is that expense is often excessive, disproportionate and unpredictable; and delay is frequently unreasonable.11 It has been suggested that while cost and delay are problems of ancient lineage, the analysis that identifies excessive adversarialism as the source of these dual problems is more recent.12 Nevertheless, the call for a more active judiciary had been made in England as far back as 1953, when a committee chaired by Sir Raymond Evershed MR recommended that judges “should pursue a more active and dominant course in the interests of the litigant”.13 As long ago as 1906 Roscoe Pound identified one cause of dissatisfaction with the administration of justice as the “sporting theory of justice” and its behavioural manifestations.14 The result of such diagnoses is case management. What do we mean by this? It emerged under the label of 'caseflow management' in the United States in the early 1970s.15 An early proponent was Maureen Solomon, whose recommendations led to the Australian Federal Court’s adoption of the docket system.16 She described ‘caseflow management’ as follows: [A]s now generally accepted in the courts community, caseflow management connotes supervision or management of the time and events involved in the movement of a case through the court system from the point of initiation to disposition, regardless of the type of disposition.17 Where the principles of ‘caseflow management’ hold sway, law ceases to be impassive and distant.18 Sword and scales are put to one side and practitioners are engaged by the court. Plainly enough, though, this kind of management need not be carried out by a judge. Registrars or other court staff may provide the necessary form of supervision. Nevertheless, the trend has been to assign ultimate responsibility for case management to judges. Partly this is due to what may be described as the ‘clout’ of judicial officers; partly it is a function of the fact that matters, if they go to trial, will be heard by a judge rather than by anyone else.19 Partly it is seen, rightly so, as the judge becoming familiar with the case through its interlocutory processes. The need for judicial management of individual cases is now the received wisdom across Australia. By the end of the 1990s, most Australian courts had implemented case management procedures, which take various guises.20
In the court of which I am Chief Justice, a docket system has been in place since 1997. Like the concept of ‘caseflow management’ itself, the docket system is an American innovation.21 Space and time do not permit a detailed tribute to and comparison with the United States federal district court model upon which the Australian Federal Court’s initiative in the 1990s was based. Each judge is responsible for the matters in his or her docket. The system’s rationale is to “promote more active and effective judicial case management in order to streamline processing, encourage early settlement and, overall, to dispose of cases more efficiently.”22 ‘Efficiency’ in this context denotes the reduction of delays and costs.23 One of the promised benefits of the new system was cost savings brought about by judges’ familiarity with matters in their dockets.24 There would no longer be any need to explain the case afresh each time it came before a judge.25 There would also (so the theory goes) be fewer court events requiring appearances and thus outlay of fees.26 Where case management is not only undertaken, but is the responsibility of a single judge in any given proceeding, another perceived benefit is the removal of the temptation to pass the judicial buck. As one judge said to researchers conducting an early study of the individual docket system, if you’ve got control of the case, you have to solve it because you’re not going to solve it as you could under the previous system by saying, ‘I haven’t seen this case before … I’ll postpone it. Or, I won’t hear the matter. Someone else will. Let them worry about it.’27 More generally, there are two broad ways in which case management is thought to put downward pressure on litigation costs. First, by ensuring that cases continue to progress in a timely fashion, the efficiency of their preparation should increase.28 Less time should be spent by lawyers and advocates refreshing their memory of any given matter after an unnecessary delay, while the necessity to adhere to a timetable should focus practitioners’ minds on the essential issues.29 Second, the length of litigation is supposed to be decreased by the encouragement of earlier and more frequent settlements, which in turn bring down litigants’ expenses.30 DOES CASE MANAGEMENT REALLY REDUCE COSTS? The relationship between the level of case management and litigation costs, however, is by no means linear. With
feature our spurning of the fierce adversarial procedures of yesteryear, there may be a tendency to think more case management by judges will necessarily reduce costs and delays. Empirical support for this hypothesis is shaky. RAND study A landmark study of the effects of judicial case management was undertaken by the RAND Corporation’s Institute for Civil Justice, published in 1996. It concerned the impacts of case management in several United States federal district courts. Unusually, the study was mandated by statute. The Civil Justice Reform Act of 1990 (which, incidentally, was the result of proposals of a taskforce initiated by then Senator Joseph Biden, leading to the eponymous appellation, the ‘Biden Act’) designated ten ‘pilot’ district courts, which were required to adopt certain case management principles, while ten others (what we might call the ‘control’ districts) were not so required.31 The pilot districts were mandated to implement the following principles:32 •
Differential case management;
Early judicial management;
Monitoring and control of complex cases;
Encouragement of cost-effective discovery through voluntary exchanges and cooperative discovery devices;
Good-faith efforts to resolve discovery disputes before filing motions; and
Referral of appropriate cases to alternative dispute resolution programmes.
It was left to the courts in question to formulate the precise manner in which these principles were put into practice. One of the purposes of the RAND study
was to assess how these principles, and the techniques used to implement them, affected litigants’ costs (measured by attorney work hours and fees).33 This was, in effect, a statutorily mandated controlled experiment on a large scale. The findings of the study with respect to the effects of “early judicial management” are of considerable interest. The report’s authors defined 'early judicial management' as “any schedule, conference, status report, joint plan, or referral to ADR within 180 days of case filing.”34 This may be considered a very broad definition. Even so, the study found that 'early judicial management', so defined, had significant effects on both the length and cost of litigation: We estimate a 1.5 to 2 month reduction in median time to disposition for cases that last at least nine months, and an approximately 20-hour increase in lawyer work hours. Our data show that the costs to litigants are also higher in dollar terms and in litigant hours spent when cases are managed early. These results debunk the myth that reducing time to disposition will necessarily reduce litigation costs.35 In other words, for cases that lasted at least nine months, the additional costs run up by lawyers complying with early judicial case management instructions were not, across the board, offset by any savings in time that resulted from a quicker disposition. Similarly, although the study found that the early setting of a trial schedule was the “most important component of early management”, yielding “an additional reduction of 1.5 to 2 months in estimated time to disposition”, it had no effect on litigant costs.36 The authors explained the additional costs incurred as a result of early case management as follows: Lawyer work hours may increase as a result of early management because lawyers need to respond to a court’s
management — for example, talking to the litigant and to the other lawyers in advance of a conference with the judge, travelling, and spending time waiting at the courthouse, meeting with the judge, and updating the file after the conference.37 Though we might put matters in slightly different terms, those observations appear transferable to Australian jurisdictions. Of course, caution is also necessary as a result of some of the idiosyncrasies of American procedure. One explanation the authors proffered for their findings related to the American system of discovery: [O]nce judicial case management has begun, a discovery cutoff date has usually been established, and attorneys may feel an obligation to begin discovery. Doing so could shorten time to disposition, but it may also increase lawyer work hours on cases that were about to settle when the judge began early management.38 As has elsewhere been observed, the American form of ‘discovery’ is “a beast of an entirely different order of magnitude compared to the Australian procedure. In general terms, the American document discovery procedure is more complex and liable to be more contentious.”39 Accordingly, if one of the effects of early judicial management in the American context is to make the costly discovery procedure more likely, that needs to be borne in mind when assessing the extent to which the RAND study findings are applicable to other jurisdictions. Nevertheless, the results of the study are uncomfortable for the more zealous proponents of judicial case management. It has been said that the report’s publication led to “much tearing out of hair and gnashing of teeth by the ‘case management faithful’.”40 Predictably, its methodology has been attacked.41 The authors of a study into our own Federal Court’s docket system labelled such
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â€œThe problem of litigation costs and delays may be as old as law itself. That, however, is not a reason to give up the struggle; rather to reflect on the difficulty of the task.â€?
18 | Brief May 2015
feature attacks ‘unwarranted’.42 Despite the unique features of American civil procedure, it would be unwise to dismiss the RAND findings out of hand as somehow inapplicable or irrelevant. That is partly so because the authors’ principal conclusion as to the effect of early judicial case management on litigant costs was largely borne out by a subsequent study conducted on the other side of the Atlantic, following implementation of the Woolf reforms to civil procedure in England and Wales. Study of the Woolf Reforms Despite the intuitive appeal of Lord Woolf’s conclusions about the best method to reduce costs, the empirical evidence gathered after implementation of the Woolf reforms does not bear those conclusions out. In a qualitative study conducted for the UK Department of Constitutional Affairs, Professors John Peysner and Mary Seneviratne concluded, on the basis of interviews with practitioners, judges and court officials: case management (which in this context includes pre-action protocols, the Fast Track and individual case control) is effective in cutting delay but it is ineffective in cutting costs or, indeed, may increase costs. Lord Woolf’s aspiration that case management would achieve his aims in relation to costs has not been achieved.43 The echoes of the RAND study findings are clear. The authors’ conclusion was due in part to the pre-action protocols introduced under the Woolf reforms (including the requirement to file statements of case and the like) that required greater preparation than pleadings under the old system.44 Such pre-action protocols resulted in front-loading of costs, meaning that some proceedings that would have settled before the costs associated with a trial were incurred nonetheless required considerable resources to be expended. One solicitor described the process as follows: Once you do litigate you are frontloading, even in fast track claims. If you are going to be ready for trial, you would get in all your witnesses and everything lined-up, which in the old days you weren’t really doing until the eleventh hour because you’d think it’s going to settle. I’ve got a gut feeling it’s going to settle, if not we’ll run around at the end and get the witness evidence, so again we’ve been forced to be ready for trial, so you’ve got to get your good proofs of evidence in the right order, in the
right format, done, sent to clients, and all this sort of stuff and make sure they’ve signed and done them, that’s bound to increase the cost.45 In other words, while it might sound desirable to have issues and evidence clarified at an early stage of litigation, the risk is that parties will be forced to bear costs with which they might not otherwise have been burdened. On the other hand, it appears this risk of front-loading led to a reduction in the number of matters filed in English courts after the Woolf reforms,46 since litigation was now seen truly as a last resort only to be launched when a case was in order.47 That may be a desirable by-product of an increased judicial propensity to take an active role in managing cases: litigation is less able to be used as a strategic bargaining chip. Professors Peysner and Seneviratne observed that their findings in relation to the effect of the Woolf reforms conform to what is referred to in business as the ‘Quality Triangle’. The thesis is that “of the three objectives in a business — speed of delivery, cost of production and quality of production — it is possible to improve two out of three, but rarely all three.”48 In supposed conformity with this ‘iron law’, the study found “that the case managed court-based dispute resolution system is delivering quality (justice) at a much improved pace, but not any more cheaply, and possibly, at higher cost.”49 While this type of analysis may be taken for what it is worth, we ought to be careful, lest the use of corporatebabble lead us to misconceive of courts as businesses providing a disputeresolution service. Justice and law are not ‘products’ or ‘services’ to be delivered at higher or lesser ‘quality’, depending on the priorities of the day. They are not to be reduced to mere variables in a management consultant’s matrix. Nor is justice somehow able to be analysed as a concept distinct from the speed or cost of its delivery. Justice delayed is justice denied; cannot the same be said of justice at an unreasonable cost? Law and Justice Foundation of NSW study Evidence from Australia as to the effects of judicial case management on litigation costs is somewhat more encouraging. On precisely the same day in 1996 — 1 January — the District Court of New South Wales and the County Court of Victoria instituted new case management regimes. Given the courts’ similarities (their places in the judicial hierarchy of their respective states, their jurisdiction, size and volume of work50), this was a naturally occurring experiment affording an opportunity to examine the efficacy of two different case management
frameworks. The chief difference between the regimes adopted by the two courts was that the NSW system was ‘defaultbased’ and ‘rule driven’, while the Victorian County Court went down a path more akin to that of the Federal Court, with judges actively managing cases at directions hearings.51 A study of the impacts of the new regimes in the two courts was conducted under the aegis of the Law and Justice Foundation of NSW, the report being published in July 2003. On the question of costs, the authors of the study drew upon sample data from 1994 and 1997 (on either side of the commencement of the new regimes in each court). The source of data about litigant costs was a collection of surveys of solicitors.52 According to the report, litigant costs increased from 1994 to 1997 in NSW, but either decreased or remained steady in Victoria.53 One possible explanation was the presence, under the Victorian regime, but not that in NSW, of a requirement for leave to discover or interrogate.54 In addition, the Victorian County Court pursued an active policy of limiting the use of these procedures.55 By contrast, the New South Wales case management system confined the time within which the parties had to complete their interlocutory preparations but did not otherwise seek to control these activities.56 The authors concluded that, while the cost increases in NSW were due to factors unrelated to the new case management regime, it could be observed “that the court’s reforms have not contained litigation costs.”57 Case management reforms in Victoria, by contrast, had been successful in containing costs, because of the active role of judges in controlling the development of cases, particularly the use of discovery and interrogatories.58 NOTES
Edward Gibbon, Decline and Fall of the Roman Empire (Vol II, 1781), Ch 17 (available at <http:// www.ccel.org/g/gibbon/decline/volume1/chap17. htm>).
Edward Gibbon, Decline and Fall of the Roman Empire (Vol IV, 1788), Ch 44 (available at <http:// www.ccel.org/g/gibbon/decline/volume2/chap44. htm>).
Lord Woolf MR, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London, HMSO, 1996) 2.
Jeremy Bentham, Principles of Civil Procedure, with the Outlines of a Procedure Code (1843 ed) (available at <http://oll.libertyfund.org/titles/1921>).
Edward Gibbon, Decline and Fall of the Roman Empire (Vol IV, 1788), Ch 44 (available at <http:// www.ccel.org/g/gibbon/decline/volume2/chap44. htm>).
See, e.g., Civil Procedure Act 2005 (NSW), s56; Federal Court of Australia Act 1976, s37M.
Magna Carta (1215), Cap 39.
M Cappelletti and JA Jolowicz, Public Interest Parties and the Active Role of the Judge in Civil
Litigation (New York, Oceana Publications, 1975) 272. 21.
ibid., at 1.
Lord Woolf MR, Access to Justice: Interim Report, ch 3 at  (available at < http://webarchive. nationalarchives.gov.uk/+/http://www.dca.gov.uk/ civil/interim/chap3.htm>).
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) 1.
ibid., at 48.
ibid., at 12.
ibid., at .
ibid., at 12.
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) 13-14.
ibid., at 12.
ibid., at 78.
A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 61.
A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 4.
Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 2-3.
Final Report of the Committee on Supreme Court Practice and Procedure (Cmd 8878), quoted in P Cashman, The Cost of Access to Courts (Victorian Law Reform Commission, 2007) 10. R Pound,‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 29 ABA Rep 395, 405-406. A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 1.
ibid., at 61.
ibid., at 61.
JS Kakalik et al, Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act (RAND, 1996) 1-4.
ibid., at 3.
ibid., at 5.
ibid., at 14.
ibid., at 14.
ibid., at 14.
ibid., at 14.
ibid., at 14.
See J Resnik, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374, 376-7.
A Eyland, ‘Legal Costs and Case Management’ (2004) 27 UNSW Law Journal 231, 232.
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) 91.
A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 10.
A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County
See S Flanders, ‘Case Management: Failure in America? Success in England and Wales?’ (1998) 17 Civil Justice Quarterly 308; A Eyland et al, Case
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) 3. M Solomon and D Somerlot, Caseflow Management in the Trial Court: Now and for the Future (American Bar Association, 1987) 3.
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Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 10; 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) 25. 42.
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) 25.
J Peysner and M Seneviratne, The Management of Civil Cases: The Courts and Post-Woolf Landscape (UK Department of Constitutional Affairs, DCA Research Series 9/05, November 2005) 71.
ibid., at 58-59.
ibid., at 62.
ibid., at 8-9.
ibid., at 62.
ibid., at 72.
ibid., at 72.
A Eyland et al, Case Management Reform: An Evaluation of the District Court of NSW and County Court of Victoria 1996 Reforms (Law and Justice Foundation of NSW, July 2003) 14-16.
ibid., at 17.
ibid., at 63.
ibid., at 71.
ibid., at 71.
ibid., at 71.
ibid., at 71.
ibid., at 75.
ibid., at 75.
To Bunbury and Albany, a Great Success March 2015
The Law Society of Western Australia, Law Mutual WA and the Legal Practice Board joined forces to present a full day of training and networking in the regional centers of Bunbury and Albany in March 2015. Law Mutual WA visits each town once a year to present the compulsory risk management training, but this year extra CPD and social events were added to create the roadshow. The full three hour e-Conveyancing Forum that had already been presented in Perth and Fremantle was on offer. CPD was grateful to the presenters from PEXA, Landgate, Bankwest and GlobalX Legal Solutions for making the trip to ensure that country practitioners in these areas are offered the same opportunity to learn about the new PEXA platform for electronic settlements. This was of particular interest to those practising outside of Perth and the questions from the floor showed that there was much interest in this topic. Bruce Bentley, the Senior Trust Account
Inspector for the LPB, visited both places and brought his particular brand of training to lawyers and legal assistants. Bruce is a regular visitor to many towns throughout WA, carrying out training to ensure trust accounts are being properly maintained. The Society appreciates Bruce being able to fit into the roadshow timetable and the feedback from his sessions was very good. The LPB also visited Bunbury and provided an update to practitioners. Many practitioners from Perth travelled to Bunbury or Albany to take advantage of being able to tick off their compulsory risk management and pick up extra CPD points by enrolling in these other sessions. It was certainly a cost and time effective way of accruing points toward the end of the CPD year. The roadshow rounded off in Bunbury and Albany with Society Club drinks, the regular networking session held by the Society in Perth, being taken to the regions and many practitioners in both
places took the opportunity to stay for a drink and catch up with colleagues. These drinks were sponsored by LEAP and David Greenhough was on hand to welcome guests. The Society is grateful for LEAPâ€™s ongoing support and enabling events such as this to be held. Legalsuper also supported the roadshow. In both Bunbury and Albany, the sponsorship of Legalsuper enabled the Society and Women Lawyers of WA to invite local female practitioners to get together for informal drinks the evening before the roadshow. An engaged crowd gathered in each location with Sue-Ellen Soulie of Legalsuper hosting the event. The support of local and city-based practitioners enabled the roadshow to be a resounding success, one that can hopefully be repeated in subsequent years. Visit lawsocietywa.asn.au for details on the CPD Roadshows to Geraldton and Kalgoorlie in May 2015.
CAUGHT AT THE BUNBURY ROADSHOW:
Delegates at Bunbury CPD Roadshow
Georgia Pickering, Bunbury Community Legal Centre Inc and Country Member of the Society Council ; Tracey Tran, Young & Young; and Cathryn Urquhart, Law Society of WA.
Josephine Newman, Aboriginal Legal Service of Western Australia.
Cathryn Urquhart, Law Society of WA and Mike Cameron, Property Exchange Australia Limited.
Proudly sponsored by
THE ESSENTIAL MEMBERSHIP FOR THE LEGAL PROFESSION Our initiatives and programmes addressing mental health, wellbeing and retaining lawyers in the legal professional Supporting the current and next generation of lawyers •
• • •
Supporting recruitment through the Grad-Match service, a resume clearing house service for graduates seeking employment Mentoring programme for practitioners admitted for fewer than 5 years Promoting regional employment opportunities through our Country Lawyers Committee WA and National Young Lawyers Committees collaborating to set guidelines for minimum working standards for graduates Connecting law practices with lawyers available for locum or temporary work through the Locum Register Referral database service available to anyone in the community seeking a legal practitioner in a particular area of law Practical Advocacy weekend workshops
Promoting equal opportunity in the profession • •
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22 | Brief May 2015
CPD seminars on topics of unconscious bias and flexible work practices Joint Law Society of WA and Women Lawyers Committee to encourage, support and advance the interests of women in law; represent and advocate for women; and promote gender equality Working group to review the recommendations and initiatives in the Law Council of Australia National Attrition and Reengagement Study Report and the Women Lawyers WA 2014 Gender Bias Report Equitable briefing policy for the promotion and career progression of women at the Independent Bar Aboriginal Lawyers Committee dedicated to the issues facing Aboriginal lawyers and Aboriginal peoples Mentoring programme for Aboriginal law students Human Rights and Equal Opportunity committee Member privilege offer for emergency childcare and home service provider, Dial an Angel
For more information please visit lawsocietywa.asn.au or call (08) 9324 8600
Focusing on mental health and wellbeing •
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Access to member assistance programme LawCare (WA) providing online resources and complimentary counselling sessions Mental Health and Wellbeing Committee advising on best practices for individuals and firms Access to Towards Dignity & Respect at Work: An exploration of work behaviours in a professional environment (2010) and Report of Psychological Distress and Depression in the Legal Profession (2011) reports CPD seminars on topics of mental health and wellbeing issues Guidelines for flexible work practices Promotion through Brief with practical advice and case studies On leave Society membership for study, carers, maternity and paternity leave. Members maintain networking and CPD benefits while on leave Complimentary yoga and pilates classes for members provided by HBF Up to 23% discount on HBF insurance
Supporting the profession in advisory and advocacy roles • • •
• • • • • • •
Access advice on ethical issues through the Senior Advisors Panel Ethics on Friday CPD seminars Access advice and representation for unprofessional conduct or professional misconduct complaints/prosecutions through the Practitioners Advice Referral Service CPD seminars dedicated to the unique issues faced by sole practitioners and small practices Accreditation for mediators and arbitrators Accreditation for Family Law Specialists In-house Counsel and Government Lawyers Committee dedicated to the unique issues for these lawyers List of Independent Lawyers with a willingness to execute Anton Piller orders Access to professional resources relating to costs, template forms and protocol guidelines Commitment to professional standards through the Limitation of Liability Scheme
Enhancements to the Law Society’s Law Access Pro Bono Referral Scheme Dominique Hansen Manager, Law Access
also by volunteer lawyer Robin Tapper.
NEW CHARITABLE ENTITY ESTABLISHED TO CO-ORDINATE AND DELIVER PRO BONO SERVICES IN WESTERN AUSTRALIA. Law Access Limited, a wholly owned subsidiary of the Law Society of Western Australia, was established on 11 December 2014. The Chairperson of Law Access Limited is Matthew Keogh. The Directors of Law Access Limited are Alain Musikanth and Adam Ebell. David Price is the company secretary and public officer. The aim of Law Access Limited is to enhance the coordination and delivery of pro bono services in Western Australia, in line with the key recommendations of Doing the Public Good, the Lotterywest funded feasibility study prepared by Kalico Consulting in 2013. On 16 March 2015, Law Access Limited obtained public benefit institution/charitable status through the Australian Charities and Not-for-Profits Commission. The Law Society plans to transfer existing funding and staff of its Law Access Pro Bono Referral Scheme to Law Access Limited. IN-HOUSE MERIT ASSESSMENTS Law Access merit assessments were previously conducted by a panel of volunteer solicitors. This could take a number of weeks. From November 2014, Katrina Williams has been operating as a part-time principal solicitor, conducting inhouse merit assessments and advising unsuccessful applicants of reasons for refusal. Katrina works on Thursdays and Fridays, and has been ably assisted by secondee lawyers generously provided by Minter Ellison, the Australian Government Solicitor, DLA Piper and 24 | Brief May 2015
This has sped up our triage process. This new process has also provided the added benefit of helping unsuccessful applicants to understand why their case lacks legal merit. It is hoped that this will reduce ‘bounce’ between legal assistance agencies, and hopefully will discourage unmeritorious plaintiffs from commencing in-person litigation. LAW ACCESS IS NOW IN NEW LARGER PREMISES GENEROUSLY PROVIDED AT NO COST BY THE FACULTY OF LAW, THE UNIVERSITY OF WESTERN AUSTRALIA (UWA) The facilities provided by the University of Western Australia include use of the excellent Law Library. Our relocation also allows us to enhance our service with the support of UWA law student volunteers. We recently advertised four volunteer positions and were overwhelmed with applications from 50 students keen to assist. The Law Society will continue to provide back office and other supports for Law Access Limited. OUR STAKEHOLDER ADVISORY COMMITTEE On 10 March 2015, Law Access Limited appointed a Stakeholder Advisory Committee to help Law Access Limited drive improvements to the coordination and delivery of pro bono services in WA. The group, which will be chaired by the Community Legal Centres Association of Western Australia, includes representatives from remote Western Australia, small, medium and large law firms, the Family Law Practitioners Association of Western Australia, the Western Australian Bar Association and the courts. THE PRO BONO CO-ORDINATORS’ COMMITTEE We are also providing secretariat support for a committee of firm pro bono coordinators. We met on 11 February
2015, and will meet again on 6 May 2015 at 1pm in the Red Burt Room, Level 4, 160 St Georges Terrace, Perth. If you undertake pro bono coordination functions for your firm and want to meet like-minded colleagues and stay up to date with relevant developments, please let us know and we will add you to our circulation list. LAW ACCESS LAWYERS FOR REFUGEES NETWORK The network, a collaboration with Case for Refugees, met twice in the second half of 2014, and will have met again in 2015 by the time this article goes to press. We have a large number of solicitors, barristers and law students who are keen to assist asylum seekers. We have been able to use barristers and solicitors in this important network to merit assess and place applications for judicial review by asylum seekers. UNMET LEGAL NEED Applications for pro bono assistance continue to increase. This is without widely publicising our pro bono referral service. At the time of preparing this article we are receiving between 10 and 15 applications for pro bono assistance every week. Between 30-50% of these applications are found to be meritorious. Many of our most meritorious referrals are from members of the profession and from community organisations, although many applications received directly from members of the public are found to be meritorious. We refer individuals, community and not-for-profit organisations with civil, family and criminal law matters. Some matters involve one-off advice or assistance in drafting a contract or documents, whilst others involve representation in courts or tribunals. Below are some examples of the types of matters we have referred: •
An elderly blind man, whose
first language is not English, obtained assistance in pursuing a financial adviser who had ‘disappeared’ after misappropriating the client’s life savings. •
A homeless victim of domestic violence was staying in a women’s refuge, when she obtained representation in relation to a small property settlement. With the lawyer’s help she ended up obtaining $160,000. The money will help her to make a new start in life.
An elderly Aboriginal pensioner with multiple health problems obtained representation to prevent repossession of her home by a large financial services institution.
A not-for-profit organisation working with children with disabilities received pro bono advice on a series of potential scenarios concerning its duty of care.
ACKNOWLEDGEMENTS The generous lawyers to whom we refer applicants come from all segments of the profession, from junior lawyers to Senior Counsel, and from sole practitioners and barristers to large multinational firms. We are pleased to note the growing numbers of responses to our calls for pro bono assistance, and never cease to be humbled and impressed by the professionalism and dedication of our colleagues. Whilst we cannot mention them all by name in this column, we wish to convey our sincere gratitude. We also wish to acknowledge our funders, partners and those who have provided important in-kind support (and we are always happy to receive more). Our funding comes from the Law Society of Western Australia, the Public Purposes Trust and the Allen & Overy Foundation. Our partners include the Faculty of Law, the University of Western Australia; the Australian Government Solicitor; Minter Ellison; DLA Piper; Edith Cowan University School of Law and Justice; and the Law Society of Western Australia (which provides in-kind as well as financial support).
TERESA LING Senior Executive Lawyer, Australian Government Solicitor Why did you take up a secondment with Law Access? Under the Judiciary Act 1903, the Australian Government Solictor (AGS) is restricted in who it can act for but, nevertheless, it has had a very long tradition of using the professional skills of its lawyers to serve the public interest though their work in government and in supporting community interest through pro bono work. Since November 2008, AGS has been a signatory to the National Pro Bono Aspirational Target and, in 2014, it won the Excellence in Corporate Social Responsibility Award for its 2013-2014 pro bono programme at the Australian Corporate Lawyers Association Lawyer of the Year awards. Among the pro bono initiatives that AGS has undertaken, one entails providing lawyers on a secondment basis to pro bono/public interest clearing houses in various parts of Australia, including the Law Access Pro Bono Scheme that is managed by the Law Society of Western Australia. When the opportunity came up in the Perth AGS office in June 2014 to take on a secondment role with Law Access, I put my hand up, because it represented, to me, an opportunity to contribute to the wonderful work that Law Access does in striving to increase the community’s access to justice, particularly for those who are clearly disadvantaged. It was also an opportunity for me to fulfil what I saw as an ethical, professional responsibility of a lawyer to society generally. What sort of work is involved? The work involved largely includes preparing merits assessments of the applications and referral briefs to lawyers and barristers who have very kindly agreed to take on matters, liaising with applicants, and, from time to time, also initiating contact with lawyers and barristers to try to place matters which have been assessed as meritorious. What do you most enjoy about the secondment? The feeling of satisfaction in seeing justice being done for people who, otherwise, would not have had the opportunity to get legal representation. It can be a truly uplifting feeling to see a ‘deserving’ matter being placed, or a great outcome being achieved for someone who is clearly disadvantaged.
What have you enjoyed the least? What is there not to enjoy ... great people, great organisation, great set-up and doing rewarding work. As an experienced Senior Executive Lawyer, you have taught Law Access a lot during your secondment, including providing us with some great contacts of yours to add to our pro bono referral list. Is there anything new that you feel that Law Access has taught you? Working at Law Access has opened my eyes to how many disadvantaged people there are in the community who have little understanding of their legal rights and the legal process and who do not have access to legal representation and assistance simply because of their poor financial standing and/or other disabilities. As a result, I am now far more aware of the difficulties faced by many in the community, and of the need that exists for pro bono legal services. It has also given me an insight into the diversity of problems and legal issues that are encountered in the lives of ordinary people, and given me another perspective on the law. I have received an enormous amount of satisfaction in being able to hopefully make some difference in some people’s lives. For the bulk of my law practice, I have worked principally for large to medium legal firms, and have been involved in large matters for large corporations, and subsequently for government departments. Working at Law Access with its limited resources, has in many respects taught me to be more resourceful, and that has been truly worthwhile for me. Do you have any tips for lawyers and firms who may be considering secondments with Law Access? Go in with an open mind, because there is a wide and diverse range of matters which can be challenging at times; work hard because it is rewarding and you can make a difference to people’s lives; and be resourceful because Law Access has a great deal to accomplish, but has limited resources. Do you have anything else you would like to say about your secondment? It is such a pleasure working with the fantastic people at Law Access and lawyers and barristers who are all passionate about social justice and the protection of the disadvantaged.
Our in-kind supporters in addition to all the solicitors and barristers who take pro bono referrals pro bono, special thanks are owed to K&L Gates, which has provided extensive pro bono assistance to establish Law Access Limited, Herbert Smith Freehills, who provided pro bono advice in 2014 on the proposed structure of Law Access Limited, which informed the development of our business case; and Kalico Consulting which has provided in-kind assistance with our monitoring and evaluation plan and our application to Lotterywest for seed funding.
JENNIFER SOLLISS Minter Ellison secondee
CONTACT LAW ACCESS Phone: (08) 6488 5683 Email: email@example.com
Why did you undertake a secondment with Law Access? Law Access is one of the pro bono secondment opportunities provided by Minter Ellison for junior lawyers. I was very keen to be involved because, Law Access undertakes such an important role in finding lawyers to assist people who would not otherwise be able to get legal advice and/or representation. It was a great opportunity to do something a bit different and get experience in areas of law that I might not otherwise come across very often. What sort of work was involved? I reviewed files and documents, sent letters to clients, researched and drafted merit assessments. The applications and legal issues raised were really diverse. One day, I even spent an afternoon at the Public Trustee reviewing files and talking to the staff about their role, which was really interesting. What did you most enjoy about the secondment? Law Access assists people who need legal advice or representation when they are unable to get it elsewhere, so being part of that process was very rewarding. The diversity of the work and the positive culture at Law Access were also fantastic. What was the hardest thing about the secondment? Sometimes distilling legal issues from applications was a little bit challenging, but that was usually because the applicants had not had any advice and did not really understand what their legal issue was. They were applicants who really needed assistance, so that was actually the most rewarding kind of work to do. Did you learn anything new that you or your firm will benefit from? It was a great opportunity to learn about areas of law that I would not otherwise come across very often: working in commercial dispute resolution, for example, as well as family law and refugee issues. I think having well-rounded legal training creates better perspective and legal analysis skills. Do you have any tips for lawyers and firms who may be considering secondments with Law Access? Don't consider it, just do it! If you are not able to act on secondment, then find out if your firm can assist by accepting referrals from Law Access. Do you have anything else you would like to say about your secondment? Thank you to the Law Society and to Katrina Williams and Dominique Hansen of Law Access for having me. It was a great experience and I would strongly recommend it to anyone else.
26 | Brief May 2015
Post: Law Access, M249, The University of Western Australia 35 Stirling Highway, Crawley, WA 6009 New applicants' first contact should be through: Form on the Law Society web site: lawsocietywa.asn.au/pro-bono-scheme, or calling the Law Society’s switchboard on (08) 9324 8600.
Avoiding Claims of Breach of Good Faith1 The Law Society of Western Australia CPD Seminar Paper delivered on 4 November 2009, subsequently updated
Clare Thompson Barrister, Francis Burt Chambers BACKGROUND Much of the judicial comment in the area of good faith in contracts in the past 25 or so years has been on commercial dealings. These cases often involve well advised, highly sophisticated and highly resourced parties, for example, United Group Rail Services Limited v Rail Corporation New South Wales (2009) 74 NSWLR 618;  NSWCA 177. It is important to note, however, that in practical terms, good faith impacts on some very day-to-day contractual relationships which may not be strictly, or even remotely, commercial in nature. The most obvious example of this is in contracts for the sale of land, which contain several opportunities for a requirement for the parties to operate in good faith; for example, when the contract is 'subject to finance', or when the contract is for a lot which is not yet sub-divided: see, for example, Sunworld Enterprises Pty Ltd v Lacco  WASCA 175. Another significant area where it is contended frequently that an implied duty of good faith forms part of the contractual terms is in disputes involving franchises; see, for example, Vodafone Pacific Ltd v Mobile Innovations Ltd (2004) NSWCA 15; Automasters Australia Pty Ltd v Bruness Pty Ltd (2003) Aust Contract R 90-162;  WASC 286; Meridian Retail Pty Ltd v Australian Unity Retail Network Pty Ltd  VSC 223. This is also an area where the intersection between statutory rights and contractual rights is called frequently into play. An obligation of good faith has been implied in circumstances where the contract concerned was a deed of release, with the specific content of the term being that the parties would do what was necessary to carry out the terms of the deed. Despite the implication of the term, it did not follow that the party who had instituted proceedings was in breach of the implied term, and so the claim for indemnity costs, founded on that alleged breach, failed: Tipperary Developments Pty Ltd v The State of Western Australia  WASC 137.2 The position may be 28 | Brief May 2015
contrasted with that in Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33;  WASCA 94.3 Most recently, in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356;  HCA 32, the High Court declined to imply into a contract of service (an employment contract) an implied duty of mutual trust and confidence, differentiating the law in Australia on this point from that in the United Kingdom. In doing so it found that the UK law, culminating in the House of Lords’ decision in Malik v BCCI  AC 20, developed from a unique history that was not applicable to Australia. The court’s discussion of the rules for implication of terms is useful in a more general context. Earlier, in 2011, in Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd  HCATrans 90, the High Court commented: “This matter is not an appropriate vehicle for this court to consider the principles, if any, relating to terms requiring parties to negotiate in good faith towards a further agreement” (emphasis added). This application for special leave arose out of the Court of Appeal’s decision in Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd (2010) 41 WAR 318;  WASCA 222, a case in which there was an express contractual term between two well advised commercial parties obliging them to deal with each other in good faith. In a very different case, Finch v Telstra Super Pty Ltd (2010) 242 CLR 254;  HCA 10, the High Court considered a duty of good faith in the context of a superannuation fund and the obligation on the trustees to make genuine inquiries, before coming to a decision to reject an application by a member of the fund to be paid out on the grounds of being totally and permanently disabled. The court found the superannuation fund trustees had a duty to give the application genuine consideration, which it had breached, as it had failed to pursue sufficient inquiries to make its decision. While not a contractual case, the court was at pains to distinguish the context of the obligations of these trustees from those in more conventional settlement trusts like wills or discretionary
trusts, relying in particular on the substantial government policy support for compulsory superannuation. Importantly, the case did not turn on the fiduciary nature of superannuation trustees’ duties, there being no discussion at all of that in the judgment. The origins of a contractual duty of good faith are not the subject of this paper, although it is fair to say that there are two schools of thought: implied terms or an infusion perspective by which good faith comprises an underlying construction principle: see for example the discussion of McKerracher QC, as his Honour then was, in The Nature of Good Faith Obligations in Contracts LSWA Seminar paper, 7 June 2006. As explained by Allsop P, with whom Ipp and Macfarlan JJA agreed, in United Group Rail Services Limited v Rail Corporation New South Wales (2009) 74 NSWLR 618;  NSWCA 177: 58 Thirdly, good faith is not a concept foreign to the common law, the law merchant or businessmen and women. It has been an underlying concept in the law merchant for centuries: L Trakman, The Law Merchant: The Evolution of Commercial Law (Rothman 1983) at p.1; W Mitchell "An Essay on the Early History of the Law Merchant" (CUP 1904) at pp.102 ff. It is recognised as part of the law of performance of contracts in numerous sophisticated commercial jurisdictions: for example Uniform Commercial Code ss1-201 and 1-203 (1977); Wigand v Bachmann-Bechtel Brewing Co 118 NE 618 at 619 (1918); Farnsworth on Contracts (3rd Ed) Vol 1 at pp.391-417 § 3.26b; UNIDROIT Principles of International Commercial Contracts (2004 Ed, Rome 2004) Art 1.7; R Zimmerman and S Whittaker, Good Faith in European Contract Law (CUP 2000). It has been recognised by this court to be part of the law of performance of contracts: Renard Constructions
â€œAccepting that good faith has a role to play in contractual relationships which are not founded on a fiduciary relationship, the question then arises as to how a claim alleging a lack of good faith can be avoided.â€?
(ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 263-270; Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91; Burger King Corporation v Hungry Jack’s Pty Ltd at 565-574 ; and Alcatel Australia Ltd v Scarcella at 363-369. In Alcatel Sheller JA (with the express and unqualified agreement of Powell JA and Beazley JA) said the following at 369: The decisions in Renard Constructions and Hughes Bros mean that in New South Wales a duty of good faith, both in performing obligations and exercising rights, may by implication be imposed upon parties as part of a contract. There is no reason why such a duty should not be implied as part of this lease. 59 There are other decisions of Australian courts and discussions by scholars recognising the obligation of good faith in a non-fiduciary context: see J Carter and E Peden, “Good Faith in Australian Contract Law” (2003) 19 Journal of Contract Law 155; Finn J writing extracurially, “Good Faith and Fair Dealing: Australia” (2005) 11 New Zealand Business Law Quarterly 378; H Lucke, “Good Faith and Contractual Performance” in P Finn, (Ed) Essays on Contract (Law Book Company 1987) at p.155; GEC Marconi Systems v BHP-IT  FCA 50; 128 FCR 1 at 208  ff; Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 at 36-37; Far Horizons Pty Ltd v McDonald’s Australia Ltd  VSC 310; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd  FCA 903; (1999) ATPR 41-703 at p.43,014 -; Elfic Limited v Macks  QSC 18 at ; Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd  FCA 288; (2005) Aust Contract Reports 90-213; Aiton Australia Pty Limited v Transfield Pty Limited  NSWSC 996; 153 FLR 236; AMCI (IO) Pty Limited v Aquila Steel Pty Limited  QSC 139. [Emphasis added]. It is also worthwhile taking note of the comments in both the joint judgment of French CJ, Bell and Keane JJ and also that of Kiefel J in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356;  HCA 32, in which there 30 | Brief May 2015
was considerable discussion of the law relating to implying terms into contracts. It appears on the basis of those judgments that the High Court is firmly of the ‘implication of terms’ school rather than the ‘infusion’ school. Accepting that good faith has a role to play in contractual relationships which are not founded on a fiduciary relationship, the question then arises as to how a claim alleging a lack of good faith can be avoided. That question can be answered only once an appreciation is had of the nature and content of the obligation. NATURE AND CONTENT OF THE OBLIGATION OF GOOD FAITH In Automasters Australia Pty Ltd v Bruness Pty Ltd (2003) Aust Contract R 90-162;  WASC 286 at , Hasluck J, in considering a contractual term imposing a duty of good faith, said that the context of the duty was important, being the legal question as to what the term required and, further, that the motivation underlying relevant events may be relevant in determining whether good faith in fact existed, being a question of evidence as to what in fact happened. Automasters remains the most comprehensive discussion of the principles of good faith in this state and is worth considering in any context in which a duty arises, or is said to arise. In Automasters, the issue was an alleged breach of an express obligation of good faith and hence the contextual issues are different from a case in which an obligation is sought to be implied by one of the parties (generally the party alleging a breach). The case illustrates neatly the difficulties encountered by parties in a commercial relationship that requires, in a non-legal sense, a degree of co-operation and good faith to ensure that the obligations and benefits intended to flow under the contract are, in fact, achieved by both parties. As Hasluck J explained in Automasters: 351 The decided cases suggest that good faith takes on different meanings depending upon its context. There is some support for the proposition that ‘good faith’ embraces three notions, being, first, an obligation on the parties to co-operate in achieving the contractual objects (loyalty to the promise itself); second, compliance with honest standards of conduct; and third, compliance with standards of conduct which are reasonable, having regard to the interests of the parties: See Peden: "The Meaning of Contractual Good Faith" (2002) 22 Australian Bar Review, p.235.
That is, good faith requires the parties to act with co-operation, honesty and reasonableness. In line with the views expressed in Automasters, other courts have also considered that motivation is relevant to considering whether a duty of good faith has been breached. For example, in Mangrove Mountain Quarries Pty Ltd v Barlow  NSWSC 492, a case involving an implied obligation of good faith, Windeyer J said4: 27 In this state it is now accepted as the law that even in commercial contracts there is an obligation on each party to act in good faith and reasonably towards the other contracting party, both in performing obligations and exercising or enforcing rights: Renard Constructions (ME) Pty Limited v Minister for Public Works  26 NSWLR 234; Alcatel Australia Ltd v Scarcella  44 NSWLR 349; and Burger King Corporation. 28 Acting in good faith means that a party to a contract should not pretend to rely upon breaches of no importance to him or her to achieve a collateral but desired result of bringing the contractual relationship to an end. In the instant case, what Mr Barlow really wanted was the plaintiff to exercise its option to purchase the quarry. He wanted that to happen, because he thought he was being underpaid in royalties; however, he had little evidence of this ... [Emphasis added]. Perhaps unfortunately, the basis on which a duty of good faith might be implied into an agreement was refused special leave in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304;  HCA 25 at -, so while there has been a number of decisions which give some consideration to the content of a contractual duty akin to one of good faith, for example Electricity Generation Corporation v Woodside Energy & Ors (2014) 251 CLR 640;  HCA 7, only Commonwealth Bank of Australia v Barker (2014) 312 ALR 356;  HCA 32 contains authoritative statements by the High Court on the implication of a term of this nature and that case is in a very specific and quite narrow context. Locally, in Sunworld Enterprises Pty Ltd v Lacco  WASCA 175 at , Martin CJ summarised the position as follows: ... The implied term to the effect that each party to a contract will do all such things as are necessary on their part to enable the other party to have
the benefit of the contract (Butt v McDonald (1896) 7 QLJ 68; 70 - 71; Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607; Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126, 142) cannot be applied to modify the substantive rights and obligations expressly conferred by the contract. In this case, one of those rights is the right of the seller to terminate after 32 months, if registration of the Strata Plan was not achieved within 30 months, despite the use of reasonable endeavours. An implied term cannot be used to defeat that express right (Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 404; BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 282 - 286). Similar comments, on a somewhat differently formulated duty, were made by Buss JA in Secure Parking (WA) Pty Ltd v Wilson (2008) 38 WAR 350;  WASCA 268: 91 The general principle of construction, according to which parties are taken to agree to do all that is reasonably necessary to secure performance of their contract, was reiterated more
recently in Park v Brothers  HCA 73; (2005) 80 ALJR 317  (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Also see Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, 659 (Deane, Dawson and Gaudron JJ); Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215, 219 (Dawson and Toohey JJ), 226 (McHugh and Gummow JJ); Peters (WA) Ltd v Petersville Ltd  HCA 45; (2001) 205 CLR 126  (Gleeson CJ, Gummow, Kirby and Hayne JJ). 92 The duty to cooperate does not, however, rise above the promises made by the parties to the contract. In other words, the duty "cannot over-ride the express provisions of the contract": Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349, 368 (Sheller JA, Powell and Beazley JJA agreeing). Also see Maitland Main Collieries Pty Ltd v Exstrata Mt Owen Pty Ltd  NSWSC 1235  (Bergin J). Allsop P in the NSW Court of Appeal, as his Honour then was, made similar comments in United Group Rail Services Limited v Rail Corporation New South Wales (2009) 74 NSWLR 618; 
NSWCA 177: 70 What the phrase â€˜good faithâ€™ signifies in any particular context and contract will depend on that context and that contract. A number of things, however, can be said as to the place of good faith in the operation of the common law in Australia. The phrase does not, by its terms, necessarily import, or presumptively introduce, notions of fiduciary obligation familiar in equity or the law of trusts. Nor does it necessarily import any notion or requirement to act in the interests of the other party to the contract. The content and context here is a clearly worded dispute resolution clause of an engineering contract. It is to be anticipated at the time of entry into the contract that disputes and differences that may arise will be anchored to a finite body of rights and obligations capable of ascertainment and resolution by the chosen arbitral process (or, indeed, if the parties choose, by the court). The negotiations (being the course of treaty or discussion) with a view to resolving the dispute will be anticipated not to be open-ended about a myriad of commercial
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interests to be bargained for from a self-interested perspective (as in Coal Cliff). Rather, they will be anticipated to involve or comprise a discussion of rights, entitlements and obligations, said by the parties to arise from a finite and fixed legal framework about acts or omissions that will be said to have happened or not happened. The aim of the negotiations will be anticipated to be to resolve a dispute about an existing bargain and its performance. Honest and genuine differences of opinion may attend the parties’ views of their rights and obligations. Such things as difficulties of proof and uncertainty as to fact or law may perfectly legitimately strike the parties differently. That accepted, honest business people who approach a dispute about an existing contract will often be able to settle it. This requires an honest and genuine attempt to resolve differences by discussion and, if thought to be reasonable and appropriate, by compromise, in the context of showing a faithfulness and fidelity to the existing bargain. [Emphasis added]. It follows, therefore, that by instituting litigation, a party may not be acting in breach of any duty of good faith, be it express or implied: Tipperary Developments Pty Ltd v The State of Western Australia  WASC 13; Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33;  WASCA 94. What good faith means in any particular relationship and contractual context will, of course, depend on the facts, although the words of Hasluck J in Automasters remain apposite. AVOIDING CLAIMS My primary thesis is that it is not possible to avoid claims for breach of good faith; all it is possible to do is minimise the prospects of success of one being brought against your client. Having said that, being alert to the possibilities of a claim should underpin good contractual drafting. In his 2006 paper, Murphy SC, as he then was, set out nine ways in which a party could attempt to avoid a claim of breach of good faith at the time of drafting a contract. This useful and comprehensive list is set out in short form below, with some additional updating and commentary and a tenth of my own invention. 1. Avoid an express provision incorporating an obligation of good faith. Automasters is a good example of the problems a party will have if 32 | Brief May 2015
an express obligation is included. More recently, United Group Rail Services included an express obligation of good faith in the context of a dispute resolution clause. These types of clauses are very common and often are negotiated in the context of a long-term contract going forward, where there is a legitimate expectation that the parties will be co-operative, so as to resolve differences that invariably arise. 2. Consider expressly excluding a duty of good faith. The difficulties with this approach include interpreting the clause itself (see for example the discussion in Mid Density Development Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 at 468-9) and the practical problem of attempting to negotiate a contract with a party that says that it expressly wishes to exclude an obligation of good faith. As was pointed out in United Group Rail Services, one can understand why, in the context of negotiating a multimillion dollar rolling stock contract, the parties legitimately expected that some disputes would arise ,and so a dispute resolution procedure is a usual type of clause; expressly excluding good faith may lead to some reluctance on the part of the other party to be involved in a long term contract! 3. Use an entire agreement clause. This approach was relied upon successfully in a number of cases, including NT Power Generation Pty Ltd v Power & Water Authority (2001) 184 ALR 481 and Vodafone Pacific Ltd v Mobile Innovations Ltd (2004) NSWCA 15. However, the approach has been questioned by Finn J in GEC Marconi Systems v BHP Information Technology Pty Ltd (2003) 128 FCR 1;  FCA 50, at 2095: 920 Is the duty one that can be excluded by agreement? On one view, reflected in civilian legal systems and §1-102(3) of the Uniform Commercial Code, the very rationale of the duty in contract law precludes its exclusion. But as a matter of legal doctrine in this country it must be accepted that, as an implied term, it is capable of being excluded by express or by inconsistent provision - although it is, perhaps, difficult to envisage an express provision authorising dishonesty. ...
922 The final comments I would make are to indicate that (i) I consider the law in this country to be that an 'entire agreement' clause does not preclude implications ad hoc: see Etna v Arif, above; so that I cannot, with respect, agree with the view to the contrary expressed in NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481 at ; and (ii) I ﬁnd arresting the suggestion that an entire agreement clause is of itself sufficient to constitute an 'express exclusion' of an implied duty of good faith and fair dealing, where that implication would otherwise have been made by law. [Emphasis added] 4. If one party wishes to retain a right to have absolute discretion over a particular area or issue, specify it by ensuring the decision in that area is at the party’s sole or absolute discretion, or by use of similar words. This was the approach which found favour in Vodafone Pacific Ltd v Mobile Innovations Ltd (2004) NSWCA 15, where the question was whether the setting of a target for the number of new subscribers to be achieved under the contract was subject to an implied term of good faith. The target set was zero, which in effect precluded earnings under the contract. In rejecting an implied duty, Giles JA, with whom Sheller and Ipp JJA agreed, said 195 The power in cl 18.4 was emphatically described as a sole discretion. Since there was only one Vodafone (whichever of the entities it was), the point of ‘sole’ lay in the exclusion of any constraint upon Vodafone. Its exercise was excluded from the dispute resolution procedure, with the further emphasis that “Vodafone's decision will be conclusive and binding on the parties” (cl 32.6) and the emphasis again that it could be exercised in any manner Vodafone saw fit (cl 41). These words in the ASP Agreement cannot be passed over, and they weigh against the implied obligation of good faith and reasonableness in the exercise of the power. [Emphasis added]. 5. The corollary to the above is that certain types of words will almost invariably lead to a good faith argument, if not the implication of a term. Words which give one party
power to do something if a particular state of affairs exists are typical of this. The words of the older style finance clause on the standard form offer and acceptance for residential sale are a case in point and invariably led to the implication of a duty of good faith. Notably, that issue has been put to rest, with clause 1.1(a) of the standard form offer and acceptance in use since the 2009 amendments now reading: The Buyer must: (1) immediately after the Contract Date make an application for Finance Approval to the Lender using, if required by the Lender, the Property as security; and (2) use all best endeavours in good faith to obtain Finance Approval. [Emphasis added]. 6. The greater the detail and precision in the contract, the better the prospects of avoiding an implication of any terms. This is, of course, a fairly standard principle of the law of contract and applies well in commercial contexts, where parties are advised or experienced or both. In the vernacular, it is really an expression of the principle ‘prevention is better than cure’. In less sophisticated arrangements, the terms of the contract will, of course, be more difficult to control and cure may be all that your client has available to him or her. 7. In drafting a contract, take care to spell out your client’s legitimate interests in both negative and positive terms. That is, if one party only is to have the benefit of a clause, spell it out. 8. Recognise the importance of the duty and do not try to contract out of it to all extents. There are examples of cases where a contract has been saved from being void for uncertainty
because of an implied duty of good faith. A typical example of this type of case is the plethora of ‘subject to finance cases’ which, given the express duty now found in the standard conditions, appear to have reached their conclusion. Meehan v Jones (1982) 142 CLR 571 is the leading case; see too the discussion in Australian Goldfields NL (in liq) v North Australian Diamonds NL (2009) 40 WAR 191;  WASCA 98. 9. Recognise the role of both equity and statute in governing contractual relationships. While the implied duty of good faith is not equitable in origin or nature (Young PW in Degeling & Edelman (Eds) Equity in Commercial Law, Lawbook Co 2005 at 504), there is a legitimate role to be played by equity, particularly insofar as certain particular types of relationships exist, which are only partly contractual. In that regard, it is also important to note the significant and increasing role of statute, not the least of which is the Competition and Consumer Law, Corporations Law (for example in respect to the provision of financial services) and potentially other statutes relevant to the particular circumstances of a particular contract. 10. Finally, the best way to avoid a successful claim, given my thesis that a claim itself cannot be avoided, is for contracting parties to co-operate, act honestly and be reasonable in their dealings with each other. What that will mean in any given situation will vary, but is legitimately the subject of sound legal advice. NOTES
The paper was originally presented as a seminar at the Law Society of WA on 4 November, 2009, and has been refreshed and updated to include developments since that date. It is very substantially based on, and draws extensively from, a paper of the same title given by Graeme Murphy SC, as his Honour then was, to the Law Society of WA on 7 June 2006. Readers are also referred to Thomson,
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Warnick & Martin, Commercial Contract Clauses Principles and Interpretation, 2012, Thomson Reuters, Chapter 12, which includes an extensive discussion of the area. I do not footnote extensively either source, but a complete understanding of the area is best derived from reading them. Any errors, omissions and inaccuracies are my own. 2.
The issue was not ventilated in the appeal: Tipperary Developments Pty Ltd v The State of Western Australia  WASCA 126.
I’ve consciously not looked at the very many mortgage cases that have been litigated over the past 5 years, e.g. Perpetual Trustee Co Ltd v Burniston (No 2); sub nom A v B1 (No 2) (2012) 271 FLR 122;  WASC 383, frequently involving allegations of bad faith against lenders, sometimes involving allegations of fraud or similar conduct by mortgage brokers and many alleging a breach of an implied duty of good faith. These cases have their own unique jurisprudence and those borrowers who succeed usually succeed either under the NSW Contracts Review Act, or in quite unusual factual circumstances e.g. Permanent Mortgages Pty Ltd v Vandenbergh (2010) 41 WAR 353;  WASC 10.
Nevertheless, compare the decision of the NSW Ct Appeal in Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9. See too Council of the City of Sydney v Goldspar Australia Pty Ltd,  FCA 472, where subjective bad faith was a significant issue in favour of the respondent and where the court implied a relevant term and then found that the Council had acted in bad faith and unreasonably. Given the elements described in Automasters, query whether reasonableness and good faith are separate questions, or whether reasonableness is part of the duty of good faith.
The comments were approved in Alstom Ltd V Yokogawa Australia Pty Ltd & Anor (No 7)  SASC 49 at ; however, this is the only other judicial consideration of these remarks by Finn J, despite extensive reliance on GEC Marconi; see too Testel Australia Pty Ltd v Krg Electrics Pty Ltd and Anor  SASC 91at .
This document (in printed, electronic or any other medium) cannot be regarded as legal advice. Although all care has been taken in preparing these papers, readers must not alter their position or refrain from doing so in reliance on these papers. Where necessary, advice must be sought from competent legal practitioners. Neither the authors nor the Law Society of Western Australia accept or undertake any duty of care relating to any part of the papers, including their contents, index, tables, legislation or case index. COPYRIGHT
The papers included in this document are copyright protected. Apart from any fair dealing for the purpose of private study, research, criticism, or review, as permitted under the Copyright Act 1968 (Cth), the papers included in this document may not be reproduced by any process without written permission from the authors.
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A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY This year’s Law Week provides an excellent opportunity for the profession to engage with the community and to promote its role in enabling an open, independent and unbiased judicial system. Law Week showcases events which provide the opportunity for the community and the legal profession to engage in open dialogue and to build a shared understanding of the role of the law in society. The Law Society of Western Australia will showcase a series of events and information sessions focusing on law and justice in the community including: •
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36 | Brief May 2015
Basic Trial Advocacy A Survival Guide to Court Etiquette John McKechnie QC Corruption and Crime Commissioner
Court cases are the modern equivalent of trial by battle. They have generally replaced warfare as a civilised means of asserting rights. A case is usually extremely important to the litigants. Liberty or property or restoration of rights are at the heart of most cases and these can arouse strong emotions. In order to enable the business of courts to be conducted with efficiency and in peace, over the centuries a set of formal rules of engagement have been developed. To an outsider, these are often regarded as, at best, a quaint anachronism and, at worst, part of the self‑seeking mystification of the legal process by lawyers. Nevertheless, the rules do have a very important part to play in formalising proceedings and thereby enabling issues upon which strong opinions are held to be resolved in public by an independent arbiter. BOWING TO THE COURT One such custom is that of bowing to the bench on entering or leaving a court whenever the judicial officer is present. Another is the custom of rising when a judicial officer enters a court, and bowing to that judicial officer, who will courteously acknowledge the respectful gesture by bowing in return. The bow is not related to the actual judicial officer but is an acknowledgment of the authority of the court which is represented by the Judge or Magistrate present. The custom has been observed since early Babylonian times. ADDRESSING JUDICIAL OFFICERS IN AND OUT OF COURT All judicial officers are addressed in court as “Your Honour”. At an appropriate moment the bench will acknowledge your presence either by looking at you or by saying “Yes Mr or Ms ----”. The usual response is “May it please your Honour”, “If your Honour pleases”, or a similar phrase.
Listen carefully. If the bench says “Yes Mr Johnson” and you respond “May it please your Honour, my name is Johnson and I appear for the plaintiff” you are being disrespectful in not listening to the bench. More importantly, you look silly before you even begin.
use of the post nominal.
A comparatively recent custom is to wish the bench “Good morning!”, especially in the Magistrates Court. Do try to resist. A court appearance is a state occasion, not a social occasion. While some Magistrates condone or even encourage the practice, it will grate with most Judges, even if they say nothing. Does a Judge then have to wish everyone “Good morning” to avoid the appearance of bias?
ADDRESSING THE LAWYER ON THE OTHER SIDE
In court, judicial officers should always be referred to in the third person, not the second person. For example “Your Honour will recall the evidence of ... ” not “You will recall the evidence of ... ” Out of court, any puisne Judge may be addressed as “Judge”. A Chief Justice is addressed as “Chief Justice” and the Chief Judge of the District Court as “Chief Judge”. It is inappropriate to call a Judge by his or her first name unless invited to do so. There is an old one‑liner: “The judge and I are on first name terms. She calls me ‘David’ and I call her ‘Judge’.” A Magistrate may be addressed as “Mr or Ms [surname]”. Masters and Registrars are addressed in court by their title, e.g. “Master” or “Registrar”. Out of court, Masters are referred to as “Master” and Registrars as “Mr or Ms [surname]”.
Letters about a case should never be written to the judicial officer. If it is necessary to write, the letter should be addressed to the judicial officer’s Associate and copied to your opponent.
The lawyer on the other side is referred to as “My learned friend” or once that term has been used in court, “My friend”. If the opponent is a Queen’s Counsel or Senior Counsel, then the correct address is “Learned counsel”. The lawyer on the other side is your opponent, not your enemy. You may legitimately attack the argument advanced on the other side. It is unhelpful and improper to make a personal attack on counsel for the other party. Always proceed with courtesy. ADDRESSING WITNESSES Except in special cases, perhaps children, witnesses should not be addressed by their first names. Although in days past, honorifics were not used, now it is preferable that witnesses be referred to as Mr, Mrs, Ms or Miss. This should apply generally to the accused in criminal trials as well, although “witness” may be acceptable if you refer to everybody by that title. Before conviction, the accused in courts of summary jurisdiction and superior courts is referred to as “the accused”. If convicted the person is then referred to as “the offender”. THE LAYOUT OF A COURT
If corresponding with a Judge of the High Court, Supreme, Federal or Family Courts, the correct form is “The Hon Justice [surname]”.
In civil cases the plaintiff’s counsel sits facing the Judge to the right of the bar table while the defendant’s counsel sits to the left.
Correspondence to a District Court Judge would be addressed to “His/ Her Honour Judge [surname] (QC if applicable)”. Note that a High Court Justice and a Judge of the Supreme, Federal or Family Courts who has been a Queen’s Counsel is not addressed with
In criminal cases the prosecutor sits on the right and counsel for the accused sits on the left. That rule may be varied in superior courts where the jury box is on the left. In those courts the prosecutor will sit on the left and the counsel for the accused on the right. 37
In Judges’, Masters’ and Registrars’ chambers, a bar jacket may be worn in lieu of a suit coat, but generally without jabot and always without gown. In other courts and tribunals, suits for men and formal equivalent for women should be worn. MAKING SUBMISSIONS Counsel make submissions or contend for propositions. A counsel’s thoughts or beliefs are irrelevant. “I submit that the evidence of the plaintiff should be disbelieved.” not: “I believe, as the court should also, that the plaintiff should be disbelieved.” or: “I think that the evidence of the plaintiff should be disbelieved.” When making submissions on law, the same principle applies: In the High Court, counsel can in fact sit anywhere, although the traditional positions may make you feel more at ease in what is probably a nerve‑wracking occasion. Counsel address from a central podium which may be adjusted for height. A seat is left vacant next to the podium for the junior counsel of the leader who is addressing the court.
“I contend that the decision of Justice Deane in Commonwealth v Verwayen (1990) 170 CLR 394 now commands general acceptance.”
You should note that applications for special leave have strict time limits enforced by coloured lights. Leave is required to continue beyond the allotted time.
not: “In my opinion the Deane view of estoppel in Commonwealth and Verwayen is now generally accepted.”
“In my submission, Deane J was right in Commonwealth and Verwayen.”
When addressing a court or being addressed by a judicial officer, counsel must always stand in their place. Counsel never approach the bench or approach the witness. No‑one should pass between the bar table and the bench, except for the Judge’s Orderly.
This last example highlights common error.
DRESSING FOR COURT
Incidentally, some counsel add further confusion by the expression “Kirby P as he then was”. This is tautologous.
In the High Court, Court of Appeal, Supreme Court General Division, Federal and District Courts, counsel wear robes. Wigs are not worn. Jabots and velcro bands have made court regalia easy to wear. Notwithstanding, many counsel seem unable to wear a clean or pressed jabot appropriately. A jabot should cover the open V of the bar jacket. Wing collar velcro bands should be worn so that only the bands are outside the open collar. The white backing must be underneath the bar jacket. Failure to wear court attire correctly marks you as a person unfamiliar with the court process and may well be interpreted as a sign of disrespect to the court. 38 | Brief May 2015
Judges and lawyers use “J” as a written abbreviation for “Justice”. It is not proper to use it as an oral abbreviation. When reading an authority, automatically turn the “J” into “Justice”.
If a Judge starts speaking, counsel should cease speaking immediately until the Judge has finished. If counsel disagrees with the proposition of the Judge, counsel should not say that the Judge is wrong. Counsel may instead say “With respect your Honour, I submit that the case you have cited is not authority for that proposition”, not “Your Honour is wrong in citing that case as authority for the proposition.” It is possible to disagree strongly with the bench, provided you do so courteously and with respect for the office. Also, as this is a survival guide for the junior
lawyer, it is possible that despite your strong disagreement the Judge or Magistrate is, in fact, right. TAKING OBJECTIONS Objections arise from time to time in court. There are a few simple rules: 1. The objector must always stand. If an objector does not stand, a Judge is justified in ignoring the objection. 2. When an objection is made and counsel stands, the other counsel should forthwith resume their seat, remain silent and listen to the objection. 3. The objection should be stated concisely. Judges will become irritated with a rambling objection that does not state its purpose and may believe that the reason for the objection was to put the opposing counsel off their stride or to interrupt a witness. So an objection should be stated: “Objection - irrelevant to the pleaded issues” not “Your Honour I object to this question. I don’t see the relevance of these questions to the issues in the case”. This latter form is regrettably common and apart from being wrong, displays your ignorance. 4. Always address the objection to the bench - not to your opponent. INTERRUPTING YOUR OPPONENT’S ADDRESS Great care should be taken before interrupting a submission from your opponent. Sometimes it is necessary. However, if you have a right to respond, consider whether that is the proper time. If you do not have an automatic right, you can seek leave at the conclusion of your opponent’s address. Generally you will be given leave. The sight of a forensic merry-go-round with counsel rising and sitting while going around in circles is demeaning. CONCLUSION These little courtesies are important to enable the smooth flow of proceedings. Use of them will have another advantage. They will mark you as a person to whom the court is a familiar environment. Where other lawyers pride themselves on the size and furnishing of their offices or chambers, you will show that your workplace is the courtroom. 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.
Practice Management Regulation Update from the Legal Practice Board
In the July 2014 edition of Brief, the Legal Practice Board (the Board) advised of the intention of the Board’s Professional Development Committee (PDC) to consider the introduction of a new regulation relating to a practitioner's entitlement to act in the capacity as a principal of a law practice. Those considerations included the prospect of the introduction of a practice management course. In that article, Joshua Thomson SC and Andrew Pascoe, the Convenor and Deputy Convenor of the PDC, discussed the rationale and reasoning behind this proposal. On 18 February 2015, the PDC resolved to recommend to the Board that it proceed with the introduction of a practice management course, the completion of which will be a prerequisite for those practitioners moving into a practice management role for the first time. The requirement will include practitioners seeking to act as a sole practitioner, principal in a law firm, legal practitioner director of an incorporated legal practice or a legal practitioner partner of a multi-disciplinary practice. The introduction of a practice management course would also enable the Board to use the course or modules from the course as a remedial tool where a requirement may be imposed for those practitioners who may be facing disciplinary action as a result of poor practice management or for practitioners returning to practice after a prolonged period of absence from the profession. The Board will now proceed with the development and implementation of a practice management course and, as
part of this process, the Board will be undertaking the following actions: •
The development of a comprehensive set of rules, guidelines and policy relating to the implementation and administration of the requirements to undertake a practice management course;
The development of criteria and guidelines for the approval of legal education providers wishing to undertake the provision of a practice management course; and
The development of a curriculum that reflects both the concerns of the Board in the areas of identified practice management deficiencies and also the general practical skills and issues that are required to manage a successful practice in the modern and ever-changing legal practice environment.
It is anticipated that areas that will be included in the practice management course will be: •
How to run the business of a law practice, including marketing, practice finances, human resource and occupational safety and health matters, using technology, business planning and business practices; The responsibilities and obligations (both statutory and professionally) of managing a law practice; and Acquiring an understanding of the principles, statutory requirements and rules of trust accounting.
Part of the work of the PDC in moving towards the introduction of a Practice
Management Course will be consideration of mutual recognition for a similar course undertaken in another jurisdiction. The PDC will also consider the best options for the introduction of the requirement for the completion of a practice management course within the current regulatory framework. The preferred option is through the imposition of a condition on practising certificates of those practitioners who do not currently practice in the capacity of a practice principal. The condition on the practising certificate would not be removed until the successful completion of an approved practice management course. The PDC will also have to develop appropriate transitional provisions for inclusion in the rules. Currently, the PDC does not have a specific date for the introduction of the requirement to complete a practice management course, but will provide updates on progress to the profession on the Board’s website. Nearer the implementation date, the Board will conduct information sessions and provide more detailed notifications. The PDC would be pleased to receive any observations, comments or suggestions regarding the implementation of a practice management course. Please forward these by Friday, 31 July 2015 to: The Convenor Professional Development Committee Legal Practice Board of WA PO Box 5720 St Georges Terrace Perth WA 6831 or Email: email@example.com 39
YLC BEACH VOLLEYBALL COMPETITION Friday, 13 March 2015 â€“ Sandsports Australia, Nedlands
Brooke Sojan, YLC, Social & Sport Working Group On Friday, 13 March 2015, over 80 young lawyers joined together again for the annual YLC Beach Volleyball Competition at Sandsports Australia in Nedlands.
Special mention also goes to Wrays, who were the unofficial best-dressed team, as well as the first small firms collaborative team, for getting involved.
As the week drew to a close, the drizzle fizzled out and the teams let down their hair and kicked off their shoes to hit the sand and let their competitive side rule. Volleyballs went flying, as the teams delivered some impressive spiking, blocking and last minute diving.
The night continued on after the games ended, finishing off the celebrations and commiserations on a high note for the evening. Many thanks to the event sponsor Profile Legal, the volunteers and the competitors for making the event such a fantastic success.
After five rounds of competitive play the sand courts were narrowed down to the final four teams, with the semi-finals being a fierce battle. Wrays and HopgoodGanim were the two teams left to battle it out in the grand final. Pizza and drinks were served to spectators and deserving players observing the competitive final round. As the final whistle blew, HopgoodGanim brought their team home to win with a 5-point win.
For more information about YLC and the 2015 event calendar, please visit lawsocietywa.asn.au.
Proudly sponsored by
CAUGHT AT THE EVENT: 1.
Stacey Back, Profile Legal Recruitment with the winning team, HopgoodGanim.
NBN WA Stage 2 Project Alison Muller, Principal Solicitor, Geraldton Resource Centre and Jane Stewart, Director, Legal Practice Development, Legal Aid WA
In June 2013, the NBN WA Stage 2 Project (a partnership between Legal Aid WA and Geraldton Resource Centre Inc) was granted funds under the National Broadband Network Regional Legal Assistance Program. This 2-year project will harness National Broadband Network (NBN) capabilities to deliver new video conferencing facilities and interactive online modules to directly assist disadvantaged and/or vulnerable people in Geraldton and the wider Midwest and Gascoyne regions and the professional staff servicing them. The online modules and video conferencing infrastructure will be able to be re-used in other regional areas when they are NBN ready. The key objective of the NBN WA Stage 2 project (the NBN project) is to harness the NBN to create collaborative and innovative ways to provide legal assistance to disadvantaged and vulnerable people and professional 42 | Brief May 2015
support for legal staff. It will achieve this by: • Increasing the availability of legal assistance services by providing: o video conferencing options for the provision of legal assistance; and o a hosted site for the provision of online community legal education. •
Providing quality online professional support for staff in the form of: o rich, interactive accredited online training; and o video conferencing options to provide synchronous learning opportunities, mentoring, professional supervision and subject matter expert support.
Essentially the project will provide: • 7 online modules. The online modules will be made available:
o directly to clients via a cloud learning system; and o to professional staff via Legal Aid’s existing learning management system, Train-NTrack. • 3 video conferencing units that are available: o directly to clients to facilitate access to legal assistance; and o to professional staff. The project now has 6 online learning modules available covering the topics of: 1. Family Law Recovery Orders (modules are available for professional staff and clients); 2. Preparing an Accused Person to Self-Represent at a Magistrate’s Court Trial, which is in two parts: Before the Trial Day; and On the Trial Day (modules are available for professional staff and clients);
3. Mortgage Default Part 1 (where there has been no default action taken by the creditor). This module is currently available for professional staff, with the client module coming soon. Lawyers can access these learning modules and obtain CPD points for successful completion via Legal Aidâ€™s Train-N-Track Learning Management System, tnt.legalaid.wa.gov.au. Modules created as part of the NBN project are available at no charge for lawyers working in Community Legal Centres. Complementary online modules are also available for clients to selfsupport when there might be limited or no access to legal representation. The client version of the recovery orders module and the Magistrates Court self-representation module have been launched and a module on mortgage stress will be released later this year. The public can access these modules through the Community Online Resource Essentials (CORE) website, legalaid.wa.gov.au/CORE. The video conferencing aspect of the project is still in the establishment phase, but, once completed, will allow both clients and professional staff in Geraldton to use a video link to obtain legal advice or professional support from other locations. Clients are required to come into the Geraldton Resource Centre to make use of the video link facilities, but lawyers and other workers will be able to access the video link from mobile devices, including laptops and tablets.
Stills from the modules referred to in this article.
Book Review Adobe Acrobat in One Hour for Lawyers by Ernie Svenson Review by Hon Peter Dowding SC
Adobe Acrobat in One Hour for Lawyers by Ernie Svenson, published by the American Bar Association (ABA) and now available from many internet sites, is destined to assist lawyers around the world in grappling with the challenges of technology. It is one of the only useful books available on using Portable Document Format (PDF) relating to the latest Adobe Acrobat versions. The book is a detailed guide to transforming the PDF into a tool to better manage one’s practice and to develop useful litigation support protocols. This opens the possibility for smaller practices and barristers to compete with higher cost litigation programmes that require more staff and personal input than many firms can offer, or than many clients can afford. The promise of the book is to offer small firms the tools to affordably achieve this functionality. The author is a lawyer from New Orleans who regularly blogs about technology in the legal environment. In an interview published by the ABA he made clear his belief that “increasingly, technology is making smaller firms more efficient and those firms are getting better at making potential clients aware of the
significant cost savings they offer.” If lawyers are able to manage the paper flow efficiently, both they and the client benefit. Large firms use expensive programmes, often with a database format to manage work flow and litigation support, but these are often not available to small and middle-size firms, nor to barristers and others who are also involved in litigation. Most lawyers know about PDFs, a ubiquitous non-proprietary format which, together with Microsoft Word, email and Comma Separated Value (CSV) formats such as Excel, make up the stable of formats used across legal practices. A PDF document itself is a bit like a still picture, but it can be altered, manipulated and developed to an end product which bears a relationship to a single PDF like a movie relates to a still photo. What can make a huge difference to practitioners and their support staff is the knowledge of programmes that can utilise the power of the PDF format and turn it into a valuable tool, particularly for searching across thousands of pages, preparing search reports and automatic indexes for briefs, pleadings and document discovery.
Understanding the programmes that support PDF management enables one to unleash the power of this technology. For example, one can learn with ease to create searchable binders of documents, even if there are thousands of pages, all automatically page numbered, bookmarked and indexed as well as to conduct searching, commenting and sharing comments between viewers. This book provides the learning opportunity, as it is written in clear and simple terms, with many screen shots demonstrating how to unlock the opacity of Adobe. It concentrates on explaining the great value in converting documents to PDFs, managing them, and at times utilising the binder system. The title Adobe Acrobat in One Hour for Lawyers is perhaps a little overoptimistic, but this is a little gem of a book, and should be beside the desk of every practitioner and personal assistant. Whether it is creating new and efficient workflow patterns, or reducing the litigation trolley to a thumb drive, this book can be your guide. The only restriction on its value will be the reader’s persistence and imagination. The book is thoroughly recommended.
JUNIOR LAWYER SEEKING OPPORTUNITY Interests: • Arbitration, alternative dispute resolution and commercial litigation • Mining, energy and resources • Building, construction and infrastructure • Regulatory matters 44 | Brief May 2015
Should your practice have an opportunity, please email: firstname.lastname@example.org Your confidentiality is appreciated.
young lawyers case notes
Young Lawyers Case Notes – compiled by volunteers coordinated by the Young Lawyers Committee CITY OF SUBIACO -v- HOMEBASE MANAGEMENT PTY LTD  WASCA 54 Fair market rent of a ground lease – Lessons in drafting around dealing with a tenant's improvements The definition of 'Fair Market Rent' requires the rent to be assessed 'ignoring the value' attached to the improvements effected by the tenant. That requirement is fundamentally different in character to assessing the rent as if the improvements did not exist.1
was that the 2003 amendment had the effect of requiring the market rent to be reviewed by reference to a hypothetical negotiation, with respect to the rent payable for land which was entirely unimproved as at the review date. This case turned on the facts, however, and with respect to the drafting of the lease itself, the Court of Appeal commented that: •
The commercial arrangement between the landlord and the tenant was a ground lease, a species of lease which has been known to commerce and to the common law for centuries. Since 1987, the landlord (appellant) granted a succession of ground leases over the land to the tenant (respondent). The tenant carried out works, the ownership of which would revert to the landlord, together with the land, upon the expiry of the lease. However, the tenant derived a commercial advantage from the building and improvements during the life of the lease by reason of rent received from its sub-tenants. It was against these improvements that the tenant was able to amortise the capital costs of these works over the life of the ground leases. A dispute arose as to the proper construction and effect of the term 'Fair Market Rent' for the 'Leased Premises' (as so defined in the ground lease). The relevant definition being rent that the landlord might reasonably command at the review date in a free and open market, taking into account all relevant factors, such as the same lease terms and without taking into account the tenant's improvements and goodwill. In 2003, the definition of 'Fair Market Rent' was amended to expressly ignore any value attached to permanent structural or other improvements to the Leased Premises made at the tenant's expense. The trial judge's conclusion, which was subsequently overturned on appeal,
'Fair Market Rent' requires the rent to be assessed by reference to a hypothetical negotiation for a lease on the same terms as this lease, which lease contains numerous provisions relating to the maintenance of the buildings and other improvements on the land at the time of its execution. The express terms of the lease included that the ‘Leased Premises’, the subject of the 'Fair Market Rent', was defined to mean the land and all buildings and improvements. (Accordingly, any assessment of the ‘Fair Market Rent’ was required to take into account the buildings and improvements in question.)
There was no obligation in the lease to the effect that a hypothetical prospective tenant, negotiating for a lease on the same terms, was under an obligation to carry out works on the land.
The assessment of 'Fair Market Rent', to the extent that the reference creates an obligation on the part of any prospective hypothetical tenant to carry out works to put the land to the use to which it was put at the Review Date, begs a number of very significant questions. These questions relate to the extent, nature, quality and finish of the buildings and improvements to be carried out. An intention should not be attributed to the parties in the absence of clear words having that effect.
If it had been the intention of the parties that 'Fair Market Rent' was to be assessed on the basis of an assumption that any prospective
tenant was to bear the cost of works on the land, it would be expected that the parties would have included a provision in the lease to that effect, having regard to the specificity of other matters included within the definition. •
Any such clause would be contrary to the relevant facts at the time the 2003 amendment was executed, that there were improvements on the land which had been carried out at the tenant's expense.
PYRAMID CONSTRUCTIONS (WA) PTY LTD -v- FORM DOCTORS PTY LTD  WASC 94 Costs orders when the claim is opposed then conceded A defendant, initially as a lay litigant, opposed, but subsequently conceded the plaintiff's claim. After instructing a solicitor, the defendant sought again to oppose the plaintiff's claim. However, the defendant eventually conceded to the plaintiff’s claim. The plaintiff brought a costs order, to follow the event, which the defendant then opposed. The defendant sought to rely on the general principle that, where there has been no adjudication by the court of the merits of a proceeding, there is no basis upon which costs can follow the 'event'. Martin CJ held that in circumstances in which a party, having initially opposed, but ultimately conceded the other party's entitlement to relief, there is an 'event' around which the court can fashion an order for costs. The 'event' is that the moving party has been substantially successful in achieving the objectives of the proceedings, being their curial entitlement to relief.2
City of Subiaco v Homebase Management Pty Ltd  WASCA 54 at para 31.
Pyramid Constructions (WA) Pty Ltd v Form Doctors Pty Ltd  WASC at paras 26-27.
Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Financial agreements – Husband wins appeal against rejection of agreement – Waiver of privilege by wife as to her solicitor’s file In Bilal & Omar  FamCAFC 30 (27 February 2015) the Full Court (Bryant CJ, Murphy and Loughnan JJ) allowed the husband’s appeal against Henderson FM’s decision to set aside a s90C financial agreement because the wife (who had limited English skills) had not been given intelligible legal advice. The appellant argued that the court below erred by rejecting his argument that the wife had waived legal professional privilege as to her solicitor’s file of which he had sought production under subpoena, as proof that she had received such advice. The Full Court accepted (-) the husband’s argument “that her Honour directed her attention to whether … advice … to the wife … was understood … whereas the wife’s … case was that no advice was received”. The Full Court said (-[38)] that her Honour erred by perceiving that “conscious decision on the part of the holder of the privilege” was necessary for there to be a waiver of it. The Full Court (at ) cited s122(2) of the Evidence Act 1995 (Cth) by which privilege is lost by “the behaviour of the holder of the privilege”, not the intention of the holder of the privilege’, concluding (at ) that “the trial judge erred in failing to adopt the appropriate test for waiver of privilege, namely inconsistency”. Property – Husband’s inheritance preceded by parties’ financial contributions to the inherited property In Stone  FamCAFC 18 (19 February 2015) the Full Court (Ainslie-Wallace, Ryan & Murphy JJ) dismissed the husband’s appeal against a property order where he had inherited $2.8m of a net pool of $5.6m. Fowler J, adopting a global approach, had found that contributions favoured the husband 60:40 but made an 8 per cent adjustment under s75(2) for the wife for her care of the child, the husband’s failure to disclose and the likely disparity of income. The parties’ 11 year relationship produced one child (the wife having two children of a prior relationship who lived with them). Both parties worked and each made initial contributions (the wife owned a property bought for $555,000 and sold postseparation for $955,000 and the husband had geared real estate investments and a trust interest). When the relationship began the husband
46 | Brief May 2015
bought his sister’s one-half interest in remainder in their mother’s N Street property for $350,000, then spent $1m on improvements to the property ($150,000 being from the wife which he had largely repaid). On the mother’s death in 2006 the N Street property comprised $2.2m of the $2.8m inherited by the husband. The Full Court (at ) rejected the appellant’s argument that the trial judge “failed to attribute proper significance to the value of and time of [the N Street property’s] introduction into the parties’ relationship”, observing (at ) that “[b]efore his mother’s death both he and the wife moved into the property and made significant renovations to it, expending funds accrued during the cohabitation to do so”. The court added that the cost of acquisition of his sister’s interest and the $1m spent on improvements amounted to about one half of the value of the property. The s75(2) adjustment was also left undisturbed. Children – Contravention – Whether mother’s fear for safety of herself and children was reasonable – No recent act of violence In Tindall & Saldo  FamCAFC 1 (9 January 2015) the Full Court (Bryant CJ, Finn & Strickland JJ) heard the mother’s appeal against Austin J’s finding that she had contravened by failing to facilitate an order that the child have supervised time with the father. Throughout their relationship the mother endured domestic violence by the father (). While the parties separated in 2008, the husband’s ensuing criminal trial, at which the mother gave evidence, began in 2010 (). Finding that the mother had contravened the order without reasonable excuse, Austin J found that the mother’s fear for the safety of herself and the child was genuine, but unreasonable (). Finn & Strickland JJ (at ), noting that “his Honour laid great store in the implication from ... 2008 [as to] how the mother ... had willingly permitted the child to spend time with the father”, said  that his Honour erred in finding that “the commencement of the criminal trial and the father’s pleas of guilty did not change anything from the mother’s perspective”, adding (at -): The mother’s unchallenged evidence was that, as the criminal trial approached, her fear for the safety of herself and the child ‘increased’, believing that the father ‘would not accept the fact that he was going on trial quietly’ ...
The trial commenced, and after the mother was cross-examined, the father changed his plea. The mother’s unchallenged evidence about this turn of events was that, as far as she was concerned, the father would carry out his previous threats to kill her and the child ‘for taking him to court to accept responsibility for his many assaults on [her and the child]’ ... The mother’s evidence was that she believed that the only way to prevent this was to avoid any interaction with the father, and she contravened the order providing for the child to spend time with him. We accept that his Honour erred by failing to have regard to ... the events ... surrounding the criminal trial, in finding that the mother’s belief was not based on reasonable grounds.” Finn & Strickland JJ continued (at ): ... Although there is no rule of law that a judge must accept evidence which is unchallenged ... a number of authorities establish that it may be ‘wrong, unreasonable or perverse to reject unchallenged evidence’ (original emphasis) (Scott & Scott  FamCA 12) ( ... ) The majority concluded that the trial judge was ‘wrong’ in not accepting the mother’s evidence, as there was “nothing inherently incredible or improbable in the evidence she gave about the events that occurred at the trial, or as to her beliefs, and the basis thereof”. Finn & Strickland JJ also found error in the trial judge’s rejection of the mother’s claims that she had been bullied into consent orders by her solicitor, saying “[w]e can find nothing in that evidence that demonstrates the inherent improbability of the mother’s claim of being coerced and therefore there was no basis to reject her unchallenged evidence to that effect” (para 93). Bryant CJ agreed with Finn & Strickland JJ except as to duress. The appeal was allowed in part. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. www. thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol.
Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Civil procedure in proceedings for civil penalty In Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd  FCAFC 25 (6 March 2015) a Full Court considered how the civil pleading rules apply in proceedings for a civil penalty under the Fair Work Act 2009 (Cth). The court concluded the primary judge had erred by finding the appellant union had promulgated an overtime policy contrary to the award rather than the document containing it. Bankruptcy After acquired property In Di Cioccio v Official Trustee in Bankruptcy  FCAFC 30 (11 March 2015) a Full Court concluded shares purchased by an undischarged bankrupt from income below the actual income threshold were after acquired property within s116(1) of the Bankruptcy Act 1966 (Cth) that vested in the Trustee in Bankruptcy. Employment Misconduct justifying summary dismissal – costs in unfair dismissal claims in State Courts In Melbourne Stadiums Ltd v Sautner  FCAFC 20 (26 February 2015) a Full Federal Court of five justices allowed an appeal against the conclusion of the County Court of Victoria that the conduct of respondent employee (S) did not justify summary dismissal and he was entitled to pay in lieu of notice and for redundancy. The Full Court concluded the findings of the primary judge were not immune from review in an appeal that was not against the type of discretion reviewed in House v R (1936) 55 CLR 499. The plurality concluded that the principle in Sheppard v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 (that actual termination on notice could be justified as a summary dismissal on subsequent discovery of grounds for summary dismissal) had no application, as the initial termination was defective and S was lawfully summarily dismissed. S had brought proceedings in the Victorian County Court at common law for breach of contract and under the Fair Work Act 2009 (Cth). The County Court had jurisdiction as an “eligible State Court” (s539) and an appeal lay to the Federal Court (s565(1)). The County Court awarded S an aggregate sum that exceeded the employer’s offer of compromise made under the County Court Rules. It awarded S costs. The Full Court observed (obiter)
that authority suggested the provisions that limited orders for costs (s570(1)) operated on both the common law and statutory claims. The Full Court considered that it was not unreasonable (s570(2)) for the employer to not accept an offer of compromise that did not distinguish between the statutory and common law claims. Appeal
in the decision of the same Full Court in CFMEU v John Holland Pty Ltd  FCAFC 16 (24 February 2015), focussing on the issue of whether an enterprise agreement made with three employees who represented those who may be covered by future site or project specific agreements was made with employees who were fairly chosen for s186(3) of the Fair Work Act 2009 (Cth).
Questions of law
In Tarrant v Australian Securities and Investments Commission  FCAFC 8 (6 February 2015) a Full Court considered when an appeal from the AAT that essentially challenged findings of fact and exercise of discretion as to penalty could be the subject of an appeal on a question of law.
Migration Costs of litigation In Plaintiff B9/2014 v Minister for Immigration and Border Protection (No 2)  FCAFC 27 (10 March 2015) a Full Court that dismissed the infant plaintiff’s appeal against the conclusion the plaintiff was not entitled to apply for a protection visa concluded there was nothing in the proceedings that warranted departure from the usual order that costs follow the event. Industrial law Enterprise agreement – effect of cancellation In Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union  FCAFC 11 (12 February 2015) a Full Court considered the operation of an enterprise agreement under s186 of the Fair Work Act 2009 (Cth) that was approved by a deputy president of the Fair Work Commission, then quashed by a Full Bench of the Commission, to be revived by the decision of the court. Industrial law Enterprise agreements – greenfields agreements In MI&EJ Holdings Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union  FCAFC 15 (24 February 2015) a Full Court concluded in an action in the original jurisdiction that the Full Bench of the Fair Work Commission had made a jurisdictional error in quashing an enterprise agreement by concluding s30 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) did not accommodate new greenfields agreements. A like result obtained
In Patel v Minister for Immigration and Border Protection  FCAFC 22 (3 March 2015) a Full Court concluded the MRT had not erred in finding test results submitted by the appellant that were not her results constituted a “bogus document” for s97 of the Migration Act 1958 (Cth), notwithstanding that she could not explain the document and the MRT was not required to enquire into the appellant’s explanation that she could not account for the discrepancy. Statutes Time limits – extradition In Hala v Minster for Justice  FCAFC 13 (16 February 2015) a Full Court concluded the requirements in the Extradition Act (Cth), that steps be taken “as soon as practicable” did not show a parliamentary intention that the power to make the decisions would cease if this did not occur. Snedden v Minister for Justice (Cth)  FCA 2012 applied. The court concluded the appellant had not been denied natural justice, as nothing in the requesting country’s response was new material. HIGH COURT Equity Trusts – requirements of express trust In Korda v Australian Executor Trustees (SA) Ltd  HCA 6 (4 March 2015) all members of the High Court concluded the Court of Appeal (Vic) had erred in concluding commercial agreements for a timber plantation investment scheme were such that the corporate trustees received funds on an express trust for the investors in the scheme: French CJ; Hayne with Kiefel JJ; Gageler J; Keane J. Consideration of requirements to create express trust. Appeal allowed. Thomas Hurley is a Victorian barrister, phone (03) 9225 7034, email tvhurley@ vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au
law council update
FORMER LAW COUNCIL PRESIDENT ELECTED PRESIDENT OF COMMONWEALTH LAWYERS’ ASSOCIATION The Law Council of Australia congratulates former President, Mr Alexander Ward, on his election to the position of President of the Commonwealth Lawyers’ Association (CLA). Law Council of Australia President, Mr Duncan McConnel, said the election of Mr Ward as President of the Commonwealth’s pre-eminent rule of law and human rights advocacy group is well deserved. “The Law Council applauds the selection of Mr Ward - a well recognised and dedicated member of the Australian legal profession - to this significant role. “The Law Council also congratulates former Law Council President, Mr Ron Heinrich, and Chair of the Law Council’s Access to Justice Committee, Mr Mark Woods, on their election to the CLA Council,” Mr McConnel said. The Commonwealth Lawyers' Association (CLA) exists to maintain and promote the rule of law throughout the 53 member countries of the Commonwealth by ensuring that an independent and efficient legal profession serves the people of the Commonwealth. “On behalf of the Australian legal profession, I congratulate the appointees, all of whom I am sure will provide outstanding service to the CLA,” Mr McConnel concluded. LAW COUNCIL WELCOMES REVERSAL OF FUNDING CUTS TO LEGAL ASSISTANCE The Law Council welcomes the announcement by the Attorney-General that cuts to legal aid, due to take effect from 1 July 2015, have been withdrawn. The President of the Law Council, Mr Duncan McConnel, congratulated the 48 | Brief May 2015
Government on its willingness to listen to the warnings being sounded about the damage the cuts would have inflicted on the most disadvantaged in our community. “The Law Council has urged the Government to rethink these cuts for months. We have demonstrated that legal aid services and family violence legal services play a critical role in the administration of justice. We faced an immediate crisis in the courts if these decisions had come into effect,” Mr McConnel said. “Our ability to work constructively with the Government on these important issues of justice, and the Government’s willingness to listen, has led to an important change of direction that will benefit the whole community. “We met with the Attorney-General in Sydney a week ago and put the case very strongly to him. I know he has a strong commitment to justice and fairness. I am very grateful that he has listened to our concerns and acted upon them,” Mr McConnel said. This decision will benefit victims of family violence and those who are facing myriad legal problems. It will diminish pressure on families and enable legal assistance providers to continue assisting those in custody, those facing terms of imprisonment, and people seeking to successfully transition from prison back into the community. “It is important, however, not to lose sight of the need for greater Government funding of the legal assistance sector. The Productivity Commission’s Report into Access to Justice Arrangements recommended that an additional $200 million be committed to ensure the legal assistance sector is sustainable in the medium term, with annual funding increases thereafter, based on CPI. “While the announcement is welcome relief, there is much more that needs to be done. The Law Council will continue to work with the Government and
other stakeholders to advance much needed reforms in legal aid funding,” Mr McConnel concluded. LAW COUNCIL AWARDS 2015 YOUNG MIGRATION LAWYER OF THE YEAR TO FORMER REFUGEE The Law Council of Australia has awarded Ms Marina Brizar the 2015 John Gibson AM Young Australian Migration Lawyer of the Year. Chair of the International Law Section of the Law Council’s Migration Law Committee, Mr Erskine Rodan OAM, said that despite Ms Brizar’s youth, she has already made a significant contribution to the field of migration law. “Ms Brizar has not only contributed through her corporate immigration law work for clients, but she has also undertaken extensive pro bono work for a number of community organisations. “Ms Brizar has been employed as a research assistant to a number of academics, and as a team leader and claims assistance provider for two offshore processing deployments, which are both very challenging roles,” Mr Rodan said. Ms Brizar, a University of Technology Sydney graduate, arrived in Australia as a refugee in 1995, aged five, with her family from Croatia and Bosnia. Ms Brizar is now a Supervising Solicitor and Migration Agent with the legal practice Playfair Visa and Migration Services. The award, which was presented at the 2015 CPD Immigration Law Conference Dinner in Melbourne on Friday 20 March, recognises John Gibson AM (1950–2012) – one of Australia's most admired advocates, who worked tirelessly to promote the rights of refugees and asylum seekers for more than 25 years.
announcements & classifieds
Professional Announcements Career moves and changes in your profession Asanka Gunasekera
Asanka Gunasekera has commenced practice at the Bar. His areas of practice are general litigation, employment and personal injury. Asanka’s contact details are:
Integra Legal is pleased and honoured to announce that from 1 April 2015, the respected legal firm of Pye & Quartermaine transferred its significant commercial, corporate and property law practice to Integra Legal.
Francis Burt Chambers Level 12, 77 St George’s Terrace PERTH WA 6000 Telephone: (08) 9220 0444 Mobile: 0409 104 430 E-mail: email@example.com McKay Legal WA McKay Legal WA has opened its new office at Suite 7, 175 Main Street, Osborne Park, WA 6017. The team at the McKay Legal WA Osborne Park office comprises: Agnes McKay - Principal Susan O’Brien - Special Counsel Shzan Plandowski - Law Graduate Trainee Contact Details: P: 08 9261 7706 or 08 9349 1986 F: 08 9349 5217 E: firstname.lastname@example.org
Aleta Shilton Counsel (Family Law)
AHHG Legal Group is pleased to announce the appointment of Alita Shilton, Special Counsel to its Family Law practice.
Graham Quartermaine will continue to act as a full time Consultant, and the previous Pye & Quartermaine’s professional and most support staff also joined Integra Legal. Thus, the provision of quality, value based legal services by Integra Legal to current and new clients will continue without interruption.
Aleta has significant experience in negations, mediations and court proceedings and is able to represent her clients' 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.
Legal Practice Board Elected Members
It is hereby notified for general information in accordance with Rule 36 of the Legal Professional Rules 2009 that, at a duly convened meeting of the Board, the following practitioners were declared to be elected members of the Legal Practice Board for a two year term, commencing Thursday, 9 April 2015:
Peter Lochore, formerly of the State (Crown) Solicitor’s Office, wishes to announce that he has commenced practice as a barrister at Francis Burt Chambers.
John Gaetano Mario Fiocco Rebecca Tenille Heath Valerie Jean Hodgins Elizabeth Eileen Macknay Sabina Marie Schlink Melvin Poh Chuan Yeo
Classifieds Government of Western Australia Department of the Attorney General
JOHN LOUIS MORIN late of 40B Searle Road, Ardross Western Australia died on about 30 March 2014 at Ardross Western Australia. Would any person holding the last Will and Testament of JOHN LOUIS MORIN or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 33116204 EM32.
50 | Brief May 2015
Government of Western Australia
FOR SALE OR LEASE PARTITIONED OFFICES 12 St Georges Tce Perth
Department of the Attorney General
DAVID TOYE formerly of 16A Allnutt Street, Mandurah Western Australia late of Bethanie Waters 18 Olivenza Crescent, Port Kennedy Western Australia died on 12 July 2013 at Port Kennedy Western Australia. Would any person holding the last Will and Testament of DAVID TOYE or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 33097916 EM23.
• • •
4 Adjoining Strata Suites Areas from 81m2 to 271m2 Legal Precinct location
Greg Radin 0411 883 995
new members & submissions
New Members New members joining the Society (March 2015) ASSOCIATE MEMBERSHIP Mr Liam Blackford DLA Piper Australia
Mr Gary Prior Mr Jacob Reynolds
Herbert Smith Freehills
Ms Jessica Blades
Mr Matthew Roberts
DLA Piper Australia
Miss Sian Blakemore Mrs Natasha Blycha Mr Isaac Boon Mr Hanwen Chan
Ms Anna Crosby Mr Callum Davidson Mr Thomas De Bes Mrs Sarah Di Rosso Mr Darcy Doyle Mr Elliott Clutterbuck Mr Simon Hall Ms Sophie van Hattem Miss Justine Howard Ms Karess Dias Miss Kayshavani Kuppusamy
DLA Piper Australia Herbert Smith Freehills
Mr Timothy Kennedy Mr Ali Khan Mr Alex Knoop Miss Pauline Koh Ms Rachel Lee Mr Brian Liau Mr Jarred Lockhart
DLA Piper Australia
Archon Legal Allens Allens DLA Piper Australia
Miss JoJo Siu Mr Mathew Stone Miss Theresa Sutherland Mr Mitchell Tatam Ms Emma Tormey Miss Grace Williamson Miss Ella Whyte Miss Emily Zylstra
Herbert Smith Freehills
University of Notre Dame Australia Herbert Smith Freehills Herbert Smith Freehills Herbert Smith Freehills Allens Herbert Smith Freehills
ORDINARY MEMBERSHIP Miss Rebecca Browder Archon Legal Curtin University of Technology Mrs Sanella Naumovski Mr Joel Vagnoni Mr Zile Yu Herbert Smith Freehills Mr David Winch Herbert Smith Freehills
Miss Catherine McShane Mr James Nagle Mr Jeremy Nichole Mr Brenton Panzich
Miss Saanti Rodda Mr Nicholas Scott Dr Alpesh Shah Mr Robert Simpson
Herbert Smith Freehills
RESTRICTED PRACTITIONERS Mrs Lucie Ingram Dwyer Durack Mrs Jessica Matena Murcia Pestell Hillard Ms Diana Velevski
Submissions Recent Society Submissions
Bundles of Trial Materials in the District Court of Western Australia (C240315C3)*
Review of WorkCover WA Legislation (C240315C4)
Legislative Council Standing Committee on Public Administration â€“ Inquiry into the Transport of Persons in Custody in WA (C240315C5)
Delay by Landgate in processing registration of transmission applications (C240315C7) 51
Events Calendar Date
Thursday, 7 May
Quality Practice Standard Accreditation Workshop 1 – Prerequisite workshop to gain accreditation
The Law Society of Western Australia
Friday, 8 May
CPD Kalgoorlie Roadshow
Kalgoorlie-Boulder Chamber of Commerce & Industry Inc
Monday, 11 May
Law Week – Breakfast
Argyle Ballroom, Parmelia Hilton
Wednesday, 13 May
Law Week – Law Museum Tour
Old Court House Law Museum
Thursday, 14 May
Law Week – YLC Panel Discussion
Friday, 15 May
Law Week – Awards Evening
Wednesday, 20 May
Mentoring for Success
The Law Society of Western Australia
Thursday, 21 May
Quality Practice Standard Accreditation Workshop 2 – An elective unit to gain QPS accreditation
The Law Society of Western Australia
Thursday, 28 May
YLC Careers Uncut
Central Park Theatrette
Thursday, 18 June
CPD Geraldton Roadshow
Ocean Centre Hotel
Advocacy: An Introduction for Junior Practitioners
The Law Society of Western Australia
Friday 19 June – Saturday 20 June
For all CPD-related enquiries please contact email@example.com or (08) 9324 8614 For all membership-related enquiries please contact firstname.lastname@example.org or (08) 9324 8638
MeMbership renewals are coMing....
Update your details online today! Login to lawsocietywa.asn.au Click Update Details (top right hand corner) 52 | Brief May 2015
New eLearning Courses eConveyancing - Getting your practice ready An Introduction to Drafting Wills by Susan Fielding
Discover more at elearning.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.
DiSpuTeS — GeNeRAL
pRopeRTy & pRojeCTS
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
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
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
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
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
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 email@example.com.