Brief October 2015

Volume 42 | Number 9 | October 2015

"MISCARRIAGES OF JUSTICE"

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Contents

GO DIGITAL!

Volume 42 | Number 9 | October 2015

Take me with you.

14 02

President's Report

Elizabeth Needham

03

Your voice at work

04

Editor's Opinion

Julian Sher

06

Eschewing 'tit for tat' in client (dis)courtesy

Gino Dal Pont

08

2015 Sir Ronald Wilson Lecture

10

Law Society Reconciliation Action Plan Launch Speech

26 30

Double Trouble - The Giving of Guarantees with Others

Cayli Bloch

33

"Tough on Crime": Discrimination by another name

Tammy Solonec

36

Legal Ethics: Navigating the daily minefields

The Hon Justice Kenneth Martin

42

Young Lawyers Case Notes

44

Book Review: Preventing Violence in Australia: Policy, Practice and Solutions

Krista McMeeken

Review by the Hon Peter Dowding SC

12

Western Australian Circuit High Court Dinner Speech

45

Lawyer on the Street

46

Family Law Case Notes

The Hon Justice Geoffrey Nettle

47

Thomas Hurley Case Notes

14

FEATURE "Miscarriages of Justice"

48

Law Council Update

Malcolm McCusker AC CVO QC

49

Pam Sawyer

24

2015 Practical Advocacy Weekend for Junior Practitioners

50

Professional Announcements

51

New Members

Gemma Cronin and Alex Noonan

51

Classifieds

52

Events Calendar

26

The Ethics of Independence: Running your own case

Craig Colvin SC

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

by Brief.

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

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

Published monthly (except January) Advertising enquiries to Eleanor Jackson Manager - Business Development Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Manager Marketing & Communications Moira McKechnie Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

EDITOR Julian Sher

PRESIDENT Elizabeth Needham

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

SENIOR VICE PRESIDENT Alain Musikanth

PROOFREADERS Sonia Chee, David Garnsworthy, Andrew MacNiven Brief is the official journal of THE LAW SOCIETY OF WESTERN AUSTRALIA Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: lawsocietywa.asn.au ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome.

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

VICE PRESIDENT Hayley Cormann TREASURER Marie Botsis ORDINARY MEMBERS Alison Aldrich, Tara Connolly, Hayley Cormann, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Greg McIntyre SC, Marshall McKenna, Denis McLeod COUNTRY MEMBER Georgia Pickering JUNIOR MEMBERS Emma Cavanagh, Ray Christensen, Rosie Hill IMMEDIATE PAST PRESIDENT Konrad de Kerloy EXECUTIVE DIRECTOR David Price

01

report

President's Report Elizabeth Needham, President, The Law Society of Western Australia As members may be aware, a Special Council Meeting was held on Tuesday, 8 September 2015, following the resignation of former President Matthew Keogh in August. I was honoured and delighted to be elected President of the Society at the Special Council Meeting. I look forward to representing the legal profession in Western Australia and continuing to work on behalf of the Society's members.

Alain Musikanth has stepped into the role of Senior Vice-President. At the same meeting Hayley Cormann was elected Vice-President and Marie Botsis was elected Treasurer.

COUNCIL ELECTIONS The forthcoming elections for the Society Council provide an opportunity for members to give back, not only to the legal profession, but also to the wider community. The Council sets the strategic direction for the Society, ensures good governance and acts as the voice of the legal profession (with the assistance of its Committees) through submissions and dialogue with the courts and government.

Nomination forms will be sent out in early October. Nominations close Thursday, 22 October 2015. I encourage all members to consider nominating for a position on the Council.

2015 SOCIETY AGM The 2015 Annual General Meeting of the Law Society of Western Australia will be held on Tuesday, 27 October 2015 at Level 36, QV1 Building, 250 St Georges Terrace, Perth commencing at 5.15pm.

PARLIAMENTARY COUNSEL'S OFFICE PROPOSALS TO MODERNISE PROCESSES FOR PUBLISHING WESTERN AUSTRALIAN LEGISLATION The Acting Parliamentary Counsel, advised the Society, in a letter dated 17 July 2015, of proposals being developed by the Parliamentary Counsel's Office (PCO) to modernise certain aspects of the processes for publishing Western Australian legislation. The proposals involve three components: 1.

2.

3.

replacing the current requirement to publish subsidiary legislation in full in the Government Gazette with publication on the WA legislation website www.legislation. wa.gov.au; giving WA legislation compilations prepared by the PCO in electronic form the same status that statutory reprints in printed form now have; and extending the powers available under the Reprints Act 1984 to the preparation in the PCO of all electronic versions of WA legislation.

The Society approves of the proposal for legislation compilations prepared by the PCO

02 | Brief October 2015

in electronic form to have statutory status.

This will allow the legal profession and much of the wider community to have access to upto-date legislation at any point in time, from an authoritative source.

The Society has noted that hard copy reprints would cease under the PCO proposals, with users able to print their own copies or order commercially printed and bound versions.

The Society is conscious that not all users have printers or access to the internet. For those who are otherwise unable to access a copy of legislation, the Society considers that hard copies should be made available at a reasonable cost.

As a further enhancement of the PCO's proposal, the Society believes it would be very useful to the legal profession if the PCO could make available 'marked up' versions of the Acts. These would show all amendments made, and in respect of each amendment, a notation showing the full name and reference to the Amending Act and the date of commencement of the amendment.

CORPORATIONS AND MARKETS ADVISORY COMMITTEE The Commonwealth Government announced in the 2014-2015 Budget that the Corporations and Markets Advisory Committee (CAMAC) would be abolished. At a 2014 meeting between the Society and the WA Attorney General, it was raised that the proposed abolition of CAMAC had highlighted matters which could usefully be addressed in the context of the renewal of the Corporations Agreement in 2016. It was decided by the Society that the issue of the renewal of the Corporations Agreement would best be progressed by convening a Working Group to prepare a submission to the Attorney General.

The Society approved a draft letter to the Attorney General prepared by the Working Group stating that the Society is generally supportive of the referral of powers being renewed. However, the Society would like to see more clarity in the new Corporations Agreement around processes regarding changes to the Corporations legislation and the appointment of Commissioners to the Australian Securities and Investments Commission (ASIC).

LAW COUNCIL OF AUSTRALIA – INVESTOR STATE DISPUTE SETTLEMENTS At a meeting on 27 June 2015, the Law Council of Australia Directors considered a paper prepared by Dr Gordon Hughes setting out a proposed Law Council policy position on ISDS (Investor-State Dispute Settlement) clauses in Free Trade Agreements and international investment treaties. After discussion, Law Council Directors resolved to defer consideration of the matter to the September meeting.

An ISDS clause in a Free Trade Agreement or International Investment Treaty provides foreign investors with an opportunity to seek compensation from the host government if the government acts in a manner which adversely impacts upon investment decisions taken in reliance upon the treaty. The objective of an ISDS clause is to provide a measure of certainty and reassurance to foreign investors. Critics are concerned that such provisions potentially constrain the government's ability to legislate in respect of public interest issues which may not have been apparent at the time of entering into the treaty. Critics also have concerns about a dispute resolution process which bypasses national courts and which is conducted in closed session.

At a meeting in August, the Society Council agreed to support the Law Council of Australia adopting the following policy position: The Law Council considers that the inclusion of ISDS clauses in Free Trade Agreements does not constitute an insurmountable threat to Australia's sovereignty or the rule of law but must nevertheless be considered on a case by case basis so as to ensure that the authority of the Australian legislature and Australian courts is not unduly compromised.

It is Council's view that this position allows for the proper consideration of each Agreement and the widest possible consideration of such clauses without constraining any review to only those issues which presently concern the critics referred to above.

SOCIETY CONSTRUCTION AND INFRASTRUCTURE COMMITTEE Council has approved the establishment of a Construction and Infrastructure Committee.

Michael Hollingdale, Laurie James, James Healy, Melanie Cave, Chris Ryder, Scott Ellis, Elizabeth Cubbitt, Basil Georgiou, and Rob Shaw are to be appointed as members of the Committee. Michael Hollingdale is to be appointed Convenor of the Committee, for a term expiring on 31 December 2019. Terms of Reference are to be developed by the new Committee and will be submitted to Council for approval in due course.

JOINT LETTER TO CANDIDATES FOR CANNING BY-ELECTION The Society continues to be concerned about the level of legal assistance funding and the effect this has on access to justice. A joint letter on behalf of the Law Council of Australia and the Society was sent to all candidates for the Canning by-election. The letter asked candidates to commit to providing increased legal assistance funding in general, but particularly in the electorate of Canning.

your voice at work

Your voice at work A snapshot of recent Society initiatives THE LAW SOCIETY OF WESTERN AUSTRALIA OPPOSES CRIMINAL LAW AMENDMENT (HOME BURGLARY AND OTHER OFFENCES) BILL 2014 The Law Society of Western Australia is concerned by the passing of the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 that imposes mandatory sentences.

The Law Society opposes mandatory sentencing in any form as it removes judicial discretion to determine a penalty which fits in the individual circumstances of the offender and the crime. Mandatory sentencing also ignores that factual circumstances of the offending may vary greatly in terms of seriousness.

Law Society President Elizabeth Needham said, "Mandatory sentencing tends to disproportionately target vulnerable and disadvantaged groups including juveniles, Indigenous and mentally impaired people.

It also increases the likelihood of recidivism because prisoners are inappropriately placed in a learning environment for crime, which reinforces criminal identity and fails to address the underlying causes of crime".

"Furthermore, the government has no statistics or evidence to support that mandatory sentencing works to deter criminal behaviour, and no specific evidence to show WA's threestrike laws have been working up until now."

The Law Society calls on the government to consider Justice Reinvestment programmes that tackle the underlying and deeper social problems, such as substance abuse, high levels of unemployment and poverty, that affect these vulnerable and disadvantaged groups.

THE LAW SOCIETY OF WESTERN AUSTRALIA ELECTS NEW PRESIDENT Elizabeth Needham was elected President of the Law Society of Western Australia until 31 December 2015 at a Council Meeting on Tuesday, 8 September 2015. Mrs Needham had served as Acting President since the resignation of Matthew Keogh in August.

Alain Musikanth will now assume the position of Senior Vice President. The Law Society Council has also determined that Hayley Cormann will move to the position of Vice President and Marie Botsis to the position of Treasurer until 31 December 2015.

Law Society President Elizabeth Needham said, "I am delighted and honoured to have been elected as President of the Law Society.

I look forward to representing the legal

profession in Western Australia and continuing to work on behalf of the Society's members."

AN EVENING WITH THE SINGAPORE INTERNATIONAL ARBITRATION CENTRE

Mrs Needham is a barrister practising from Francis Burt Chambers. She specialises in the areas of family, crime, human rights and administrative law.

On 26 August 2015 the Law Society hosted a presentation by Kevin Nash, Deputy Registrar of the Singapore International Arbitration Centre (SIAC). Mr Nash was introduced

by Laurie James AM and attendees had the opportunity to meet Mr Nash at drinks following the presentation.

Prior to electing to go to the Bar in 2007, Mrs Needham worked as Director of Legal and Prosecutions at the Department of Consumer Protection and as a Principal Legal Officer working in complex commercial prosecutions at the Commonwealth Director of Public Prosecutions.

Mrs Needham has also worked in community legal centres and legal aid. She has been in practice for over 20 years.

Mrs Needham is a Past President of Women Lawyers of WA and has been actively involved on a number of the Law Society's Committees including Education, Law Summer School, Human Rights and the Joint Law Society/ Women Lawyers Committee.

BE A PART OF THE SOCIETY'S HISTORY OF ELITE LEGAL PROFESSIONALS Did you know that the Society's first president, Sir Walter James KC, was also Western Australia's fifth premier? Nominate for Law Society Council in October and join the historical ranks of judges, Chief Justices, premiers, attorney-generals, governors and managing partners. Nominations will be emailed to all members in early October so make sure your details are up-to-date.

THE LAW SOCIETY INVITES EXPRESSIONS OF INTEREST TO JOIN A COMMITTEE Every two years the Law Society invites members to express interest in joining a committee. For details of this biennial invitation and committee membership generally you are encouraged to read the Committee Standing Orders and Code of Conduct.

If you are interested in joining a Law Society Committee or extending your current committee membership, please submit an Expression of Interest, available at lawsocietywa.asn.au by Friday, 9 October 2015.

A selection panel appointed by the Council will review the Expressions of Interest and will take into account a balance of knowledge and experience, gender and the introduction of new and junior members. Appointments will be made by the Council in December 2015 for a four year term from 1 January 2016.

Mr Nash qualified as a barrister and solicitor with the Law Society of Upper Canada and studied an LL.M in International Commercial Arbitration at Stockholm University. In his previous role as Counsel at SIAC, Mr Nash administered more than 250 arbitrations under various institutional rules including the SIAC Rules and the UNCITRAL Rules.

SIAC was established in 1991 as an independent, not-for-profit organisation to provide neutral arbitration services to the global business community. UNCITRAL Model Laws is the cornerstone of Singapore's legislation on international arbitration. There is no restriction on foreign law firms doing arbitration work in Singapore and non-resident lawyers do not require work permits to carry out arbitration services in Singapore.

Mr Nash provided a general overview of international arbitration, the legal framework for international arbitration in Singapore, how the SIAC functions, its governance structure and recent statistics. SIAC's case management services are supervised by the Court of Arbitration comprising arbitration practitioners from around the world including Australia, Belgium, China, France, India, Japan, Korea, Singapore, UK and USA. Nearly 90% of SIAC's caseload is international in nature, with around 50% of new cases involving foreign parties with no connection to Singapore.

SUBMISSIONS 25/08/2015 Lawyer Prison Visits (C250815C2) Letter to the Commissioner, Department of Corrective Services (State) 25/08/2015 Proposals to Modernise Processes for Publishing Western Australian Legislation (C250815C3) Letter to the Parliamentary Counsel (State) 25/08/2015 Corporations Agreement (C250815C5) Letter to the Attorney General (State/Federal)

03

editor's opinion

"Interesting times" Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal

Imprinted on my mind is the headline and cover story of the 11 September 2015 issue of The Economist newspaper. The word 'Exodus' is emblazoned in bold on the cover page and in the background are figures in silhouette depicting people on the move. The subscript is the legend "refugees, compassion and democracy".

It evokes the Biblical exodus from Egypt and also more recent cataclysms, like the epic displacement after the catastrophe of the Second World War, the events in the former Yugoslavia in the 1990s and of course the chaos in the Middle East.

These events are all well-known to us in the West, but we should not forget the equally tragic proportions of the displacements of millions of people in Africa and Asia, for example, in the wake of the conflicts ranging from Nigeria in the 1960s to Rwanda, Sudan and of course Vietnam.

Current cataclysmic events are occurring on such a scale that it would be inappropriate to simply ignore them without any comment at all. My intention is not to enter into a political debate, but reinforce the self-evident proposition that the current refugee tragedy calls upon reservoirs of compassion, empathy and practical help. It is also appropriate to reflect on the fundamental importance of nourishing societies in which all sections of a population have a stake.

Paradoxically, the Exodus from Egypt was expressed as a positive story in the end, not a tragedy. The message to be gleaned is that waves of immigrants are not to be feared as a potential blight on society, but as energetic participants who will overwhelmingly contribute positively, especially to societies experiencing low or decreasing birthrates and stagnant or non-existent rates of economic growth.

On a completely different topic, it has been interesting to watch the growth of a body of law relating to the adjudication of construction contracts.

The intention of the Construction Contracts Act 2004 (WA) is to ensure an expeditious cash flow for contractors

04 | Brief October 2015

and subcontractors, while preserving the parties' rights to subsequently make claims and counterclaims on the merits of construction disputes. In the spirit of the legislation, adjudicators must be suitably qualified, but they need not be legally qualified. I mention this because of the technical complexity of some of the decisions that have been handed down both at first instance and in the Court of Appeal – particularly in regard to jurisdictional error, the statutory powers of adjudicators and the limited ambit for reviewing adjudications. Even for lawyers, this area is by no means straightforward as the complexity increases. How much more so for adjudicators who are not legally qualified – even those with considerable practical contractual experience? Legal precedent is supposed to clarify the law, not make it more opaque, or uncertain, but the devil is always in the detail. History shows that constraints on the capacity of lawyers to be creative and inventive cannot be taken for granted, so the likelihood is that the complexity will only increase.

As the feature in this month's issue we are delighted to be able to publish an article by the Honourable Malcolm McCusker QC on miscarriages of justice.

Since Mr McCusker is well-known for his eminent role as an advocate in a number of well-known cases in which he successfully secured the rectification of major injustices, this feature will be of interest to all our readers.

To continue the theme of providing eclectic topics, this issue includes an article by Carly Bloch on the giving of guarantees together with others and Tammy Solonec's article with the thought-provoking title Tough on Crime: Discrimination by another name.

In the important area of ethics we are featuring two substantive articles. The first is by His Honour Justice Kenneth Martin on Legal Ethics: Navigating the Daily Minefield. This is the transcript of an address His Honour delivered to law students in preparation for their

entering practice. But it also serves as a comprehensive reminder to practitioners of the fundamental reference points for resolving an ethical conundrum in daily practice. The second is the republication of a significant article by Craig Colvin SC which first appeared in Brief in 2012, entitled Ethics of Independence: Running your own case. Mr Colvin has updated the original article to include some developments since 2012.

Other topics include Justice Nettle's response to the toast proposed at the 2015 High Court dinner in Perth; another book review from the Honourable Peter Dowding QC – this time covering a work

by Andrew Day and Ephrem Fernandez on Preventing Violence in Australia: Policy, Practice and Solutions. Brief takes this opportunity of thanking Mr Dowding for all his many contributions to our regular book review column, for which we are most grateful.

Apart from our regular columns including Lawyer on the Street, Professor Dal Pont's discussion of aspects of professional ethics and various other reports, we include a transcript of Krista McMeeken's speech launching the Law Society's Reconciliation Action Plan. We do so not only because our profession includes professionals and students of Aboriginal and Torres Strait Island heritage, but, particularly, to signify that we as a members of the legal profession understand and show respect for the Aboriginal and Torres Straits Islanders' cultures.

I will end off with what has by now become a regular plea for contributions to Brief. I am pleased to say that the response has proved to be encouraging and the quality excellent.

Brief welcomes your thoughts and feedback.

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

Market Update - October 2015 Beat the end of year rush! Now is the time to secure your dream role, or quality legal talent to support your business. Demand for Corporate and Property specialists continues, with Construction & Litigation opportunities also remaining strong. There is also interest in existing partners with transportable practices, or senior lawyers with the ability to build one, as many firms look to develop existing or complementary practice areas.

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This key appointment will see you act for mining, engineering & construction companies, government clients, contractors, developers and consultants. The team specialise in the provision of front-end commercial advice and management of all contracting arrangements through the full project cycle of major construction, resources, port, rail, road and other infrastructure projects.

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To be successful, you will be an existing Senior Associate, with a minimum of 5-7 years PAE with a top-tier Banking team. Offering a defined career path, top remuneration and future partnership prospects, you will play an active role in the teams continued success.

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This independent local practice, is led by a progressive and down to earth partnership. A mid to senior litigator is immediately required to support the growth of this team.

Acting for an established client base of accountants, financial advisers, SME’s and high net worth individuals, you will directly advise your clients on a range of complex estate planning and business law matters and will draft and negotiate all related commercial documents and contracts.

Acting for an established base of medium to large companies, on complex corporate or contractual based disputes, your role will be to support the partners on large team based matters, or to directly manage smaller files, with responsibility for all client liaison, advice and court document preparation, research and advocacy.

With a strong pipeline of existing work and opportunity to run your matters from start to finish, your role will be to maximise business from the firms existing clients, but also to play a key role in growing and expanding the practice.

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This firm will guarantee you access to a consistent flow of premium legal work that will keep you constantly challenged. With a lively, yet relaxed culture, competitive remuneration package, excellent support and training and wealth of other employee benefits, this role is well worth investigating.

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ethics

Eschewing 'tit for tat' in client (dis)courtesy Gino Dal Pont Professor, Faculty of Law, University of Tasmania

•

Courtesy and respect for clients is a fundamental ethical duty of lawyers

•

Maintaining lawyer-client mutual courtesy and respect in the face of difficult or unreasonable clients is challenging

•

Yet lawyers, as part of their ethical obligations, must suppress the natural instinct to respond in kind to discourteous, disrespectful or difficult clients

Professional rules identify, as a 'fundamental' ethical duty, that lawyers be "courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client".1 As to lawyer-client dealings, treating clients courteously, and with attendant respect, is arguably easiest vis-à-vis clients who exhibit corresponding courtesy and respect, and whose words and actions are punctuated by both reasonableness and deference to the lawyer's advice.

In a utopian world of legal practice, populated by 'model clients', courtesy and respect is hardly too much to ask of lawyers.

Unfortunately, legal practice is not conducted in a utopian environment.

While courtesy and respect ordinarily breed in an atmosphere of mutuality, human nature struggles with courtesy and respect where that mutuality is lacking. In this latter scenario the lawyer's 'fundamental' duty of courtesy may be sorely tested. After all, like other human beings, a lawyer's natural response to a client who is discourteous, disrespectful or unreasonable in relation to the lawyer is one very much 'tit for tat'.

Yet the worth of ethical standards is precisely their call for conduct of a standard exceeding that trodden by the crowd. It is difficult for the legal profession to profess a higher ethical ground if the standards it requires of its own members are no more stringent

06 | Brief October 2015

than those expected of any supplier of services. Moreover, as lawyers hold a (near) monopoly on access to the legal system, and relations between lawyer and client are often characterised in power-dependency terms, the inherent nature of that relation itself calls for a degree of lawyer self-restraint.

The need for self-restraint surfaces most commonly on those occasions where, from some objective standpoint, a lawyer may well feel justified in responding in kind to client discourtesy, disrespect or unreasonableness. It may well be natural for lawyers to respond to difficult clients by going on the defensive, to the extent even of engaging in abusive language.

That this may be natural hardly makes it ethical, however. In a recent tribunal decision, a lawyer who corresponded with difficult clients in a discourteous and abusive manner was found to have committed professional misconduct.2 As few welcome ostensibly unjustifiable criticism, it may likewise be natural for lawyers to respond to client complaints, which they perceive as unfounded, as a slight on their character. Yet complaints seem an increasing corollary of legal practice; another tribunal has observed that "[i]t an arduous profession ... where people often make unreasonable complaints".3 This has in turn prompted some lawyers to respond 'proactively', by pressuring the client to withdraw the complaint(s). Yet, again, a 'natural' response is not always an ethical one.

For instance, the behaviour of a solicitor who, seeking to 'encourage' a former client to withdraw his complaints, in a letter to the client mentioned how the client's career could be prejudiced were the client's criminal record disclosed to his employer, was branded as sufficiently 'disgraceful and dishonourable' to justify his striking off.4 Other lawyers, faced with (unreasonable) complaints, have instead pursued a passive course, hoping (presumably) that the complaints will vanish, an attitude that has sometimes translated to ignoring the legitimate inquiries of

professional bodies. The professional rules make explicit the need to respond to requirements of a regulatory authority,5 and the disciplinary case law is littered with instances of misconduct findings against lawyers who have failed in this duty.6 Another 'natural' response to a discourteous or difficult client is to terminate the retainer. The 'client from hell' can, as most practitioners can vouch, make practice 'hell'. Again, though, a 'natural' (and seemingly reasonable) response may not necessarily reflect an ethical one; it has been judicially observed that 'difficult clients are not unusual', and difficulty to this end is not by itself 'just cause' to terminate.7 There is, accordingly, a price of membership of the legal profession, which in this and other instances is extracted via an expectation that members suppress otherwise prevailing human nature.

NOTES 1.

Legal Profession Conduct Rules 2010 (WA) r 6(1)(b).

2.

Legal Services Commissioner v Lynch [2015] VCAT 772.

3.

Council of the Law Society of the ACT v Legal Practitioner 'D3' [2015] ACAT 7 at [116].

4.

Law Society of New South Wales v Sullivan [2000] NSWADT 167 at [95].

5.

Legal Profession Conduct Rules 2010 (WA) r 50(3).

6.

See, for example, Legal Services Commissioner v Canals [2008] VCAT 576.

7.

Urbaniak-Bak v Prail [2014] ACTSC 171 at [84] per Mossop M.

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2015 Sir Ronald Wilson Lecture

On 5 August 2015, the Law Society's Francis Burt Law Education Programme's annual Sir Ronald Wilson Lecture was held. The Lecture targets Year 11-12 Politics and Law students and teachers and aims to address syllabus items in that learning area.

Established in 1989, the Sir Ronald Wilson Lecture provides an opportunity for a person learned in the law and familiar with the public face of law to address issues of relevance to the Year 11-12 Politics and Law curriculum in a public forum. The 2015 Lecture was presented by Winthrop Professor Stephen Smith and was entitled "Protecting the Human Rights of Australians through Anti Terrorism Laws and their Enforcement."

Dr Tony Buti MLA took the role of Master of Ceremonies and Mr Matthew McGuire conducted the Welcome to Country ceremony as a representative of the Wadjuk people of the Noongar nation.

In the Lecture Winthrop Professor Smith noted: The terrorist threat is evolving and presenting new challenges to nations, including Australia.

Anti-terrorism laws must strengthen, where necessary and appropriate, our ability to respond to an evolving and serious threat at home and abroad, in a manner which protects Australia and Australians, a country and a people whose identity, values and cultural heritage are inextricably interwoven with safeguarding rights and freedoms.

There is an important philosophical, legal and practical tension here that we cannot afford to lose sight of.

As a society, we need ongoing flexibility to ensure operational effectiveness against the threat. The threat is evolving and we have a tough job to stay ahead of it.

Our framework must be nimble but in the process, human rights protection must be required.

And I believe there can be

08 | Brief October 2015

confidence that the system of oversight works well to ensure adequate safeguards.

In the face of such threats, the reality is we need to be pragmatic and in particular circumstances see some rights as less important than others. But balance cannot be lost. That is the responsibility of government, for which it must be both accountable and subject to scrutiny, given particularly that it is government which has access to knowledge of and assessment of the threat.

Matthew Keogh; Winthrop Professor Stephen Smith; Matthew McGuire; and Dr Tony Buti MLA.

There were more than 100 attendees at the lecture, including Student attendees with Matthew Keogh and Winthrop Professor Stephen Smith. students and teachers from the Mt Lawley SHS, Newman College, Willetton SHS, All Saints' College, Sacred Heart College, Mercedes Sponsored by College, Woodvale Secondary College, South Coast Baptist College, Ashdale Secondary College, Rossmoyne SHS, Chisholm Catholic College and Scotch College.

The 2015 lecture paper has been posted online as an education resource on the Sir Ronald Wilson Lecture page of the Law Society website.

The 2015 lecture was filmed and the video file will be uploaded as soon as post-production work is completed.

The Society thanks Murdoch University School of Law for sponsoring the 2015 lecture and DLA Piper for facilitating the use of the Central Park Building Theatrette.

New 2015 New Roles RolesforforSeptember October 2015 PARKES LEGAL

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This position is ideally suited to a lawyer who has completed rotations at a large firm. You will have a passion for corporate law and enjoy dealing directly with significant clients.

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In addition to the Partner, the team includes two talented Senior Associates and 2nd year lawyer. They work together extremely effectively and you will be encouraged to work with a high level of autonomy with guidance from the Partner and SA’s.

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This leading international practice is looking for a senior construction and dispute resolution lawyer with experience in arbitrations.

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You will be engaged in running significant matters across construction, engineering and energy. You will be working with blue chip local and international clients on high value matters.

Your role will have a disputes focus but will also involve a front-end advisory component.

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The team has a solutions driven approach and work closely with their clients making this a perfect option for lawyers with prior in-house experience. The team has a consistent workflow and strong future pipelines of matters.

• contracts of employment including contractor agreements • terminations of employment • redundancy and unfair dismissal • discrimination and harassment claims • health and safety strategies • post accident and fatality actions Ref: RW3286

The firm’s Perth Office works seamlessly with its international offices and has experienced continued growth. The firm has steadily attracted some of the region’s leading lawyers and continues to perform very strongly relative to its size.

This is a varied role working alongside engaging and easy senior colleagues.

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A background in Commercial Property is essential combined with a minimum typing speed of 70wpm. Advanced word skills are essential. This is a brilliant firm, with a very strong cohesive culture. Top Salary on offer!

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

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

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

www.parkesrecruitment.com.au

Law Society Reconciliation Action Plan Launch Speech Krista McMeeken, Convenor of the Indigenous Legal Issues Committee Jackson McDonald Good afternoon everyone and welcome to the Law Society of WA's Reconciliation Action Plan Launch.

I would also like to thank Reverend Sealin Garlett for his warm Welcome to Country. For those who are not aware, I would like to share a brief history of the origins of these ceremonies and their adoption into mainstream proceedings.

Protocols for welcoming visitors to country have been a part of Aboriginal culture for thousands of years. Despite the absence of fences or visible borders, Aboriginal groups had clear boundaries separating their country from that of other groups. Crossing into another group's country required a request for permission to enter and when that permission was granted the hosting group would welcome the visitors, offering them safe passage.

The ceremony is a formal part of the greeting of visitors and is also about paying respect to the land upon which we are meeting and sharing its story, as Aboriginal peoples are the custodians of the land.

The 'Welcome to Country' ceremony was first conducted at an official ceremony in 1999 during the NSW Supreme Court's 175th anniversary, arranged by Chief Justice James Spigelman. It was first introduced at the start of Parliament in 2008 and now forms a regular element of the Australian political process.

Incorporating such a welcome into formal events is merely one of the many ways in which the Law Society will continue to demonstrate its commitment to recognising and respecting Aboriginal and Torres Strait Islander culture and traditions.

As a legal practitioner I strive to use my skills and expertise to create a fairer, more equal and ultimately more just society. As a Nyoongar woman, I believe strongly in the acknowledgement of the history of our state and an underlying and overarching respect for the culture and traditions of Australia's first peoples, the Aboriginal and Torres Strait Islander peoples, in all aspects of society.

10 | Brief October 2015

Historically and presently, the law is an area in which justice has not been achieved for our people. However, with the minds of our people, the legal profession and our peak representative body – the Law Society – now focused on this task, I am reassured that there will come a time, in my lifetime, when that justice will be achieved.

sentiment into tangible outcomes both within the Law Society and its broader sphere of influence. With the help of the RAP, and the genuine engagement of each of you present here today not only with its identified goals but also with the broader sentiment expressed by such a document, that passion can ignite change.

The Society's Reconciliation Action Plan (RAP) is central to the achievement of this goal as it provides a focal point to guide the Law Society in its own vision of creating and maintaining:

The current legal and political landscape often fails to reflect the views and aspirations of Aboriginal and Torres Strait Islander peoples, but that does not mean that we should disengage. The power of choosing to properly consider and challenge the manner in which the legal profession and our legal system represents and supports Indigenous peoples should not be underestimated, as it is only through considered, strategic and inclusive action that we can expect to achieve change.

•

a profession where Aboriginal and Torres Strait Islander law students, graduates and practitioners feel valued and respected; and

•

a community in which members understand and show respect for the Aboriginal and Torres Strait Islander cultures through building relationships and creating increased opportunities for Aboriginal and Torres Strait Islander peoples.

The RAP is also a public document to which the Law Society has bound itself to be both transparent and accountable in its actions.

Having joined the Aboriginal Lawyers Committee at the Law Society first as a student, then as a professional and now as Convenor, I have watched the Committee play an active role in encouraging, supporting and advancing Aboriginal lawyers, law graduates and law students, as well as sharing an Indigenous perspective with the legal profession and the broader community on issues of importance to Aboriginal and Torres Strait Islander peoples. The support for this work, while always present at the Law Society, has strengthened and expanded over time and now forms a key element of the President's goals for the next phase of the Society's community engagement.

In working as a member of the RAP Working Group, I have also seen the passion of Law Society staff for demonstrating the proper respect for Aboriginal peoples and incorporating that

This is just the first formal step into the field of formal reconciliation for the Law Society and I look forward to not only achieving all of the outcomes sought in the Reflect RAP, but also in seeing those goals develop and expand over time as the Law Society is able to create new relationships within our community and ultimately achieve its goal of creating meaningful and sustainable change within the legal profession and the legal system.

In speaking at the Great Hall of Parliament on National Sorry Day in 2003, former Prime Minister Malcolm Fraser captured the essence of this movement, he said: I want to make three points.

First, there have been achievements.

We are seeing healing among the stolen generations, and initiatives which are enabling Indigenous people to make their distinctive contribution to our national life.

Second, much remains to be done. We are lagging far behind comparable countries in overcoming the disadvantages Indigenous people face.

And third, the situation can be transformed. In this task, governments, Indigenous communities, the private sector and the wider Australian community all have a vital role.

12 years later, those points are equally valid and pertinent to how we choose to move forward as a cohesive, inclusive and representative society. On the second point Mr Fraser made, I travelled to the United States recently to engage with Native American law, policy and experience and I walked into my first meeting thinking that Australia was 10 years behind the legal and political framework of the U.S. with respect to Indigenous issues. I left America four weeks later with the realisation that we were almost 50 years behind the U.S. movement, with the Australian government still applying laws and policies which were tried and failed in the U.S. in the 1970's. Rather than being disheartened, I was encouraged, because the strength of culture and unity in each of the tribal communities I visited demonstrated that these obstacles can be overcome.

Which brings me back to Mr Fraser's first and third points: Indigenous peoples make a distinct and unique contribution

to the social and economic fabric of our nation and that contribution must be supported in its growth in order for us to benefit and develop as a nation. And, this will not occur unless each of us steps up to the plate and makes a conscious decision, as individuals, to tackle the issues preventing that growth in the best way we can.

Krista McMeeken delivering her speech at the launch of the Law Society's Reconciliation Action Plan.

Any kind of social change is hard, it is not without conflict or hurdles, but sustainable change occurs at a grass roots level – it is about how you talk about these issues, the relationships you create between yourself and the Indigenous and non-Indigenous community, it is about you asking the questions you don't know the answer to about our history, our culture and our traditions and then sharing that understanding with others and it is about a genuine belief that we are all better,

stronger and more successful if we stand together as a diverse but equal nation.

I challenge each of you not only to read the RAP and think about where you may be able to assist the RAP in becoming a reality, but also to consider your own sphere of influence and practice and how you might be able to effect the goals of reconciliation.

Thank you.

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11

Western Australian Circuit High Court Dinner Speech The Hon Justice Geoffrey Nettle Justice of the High Court of Australia Your Honours, ladies and gentlemen, as I recall, the last time I was in this room was some four years ago for the celebration of the sesquicentenary of Supreme Court of Western Australia. It was a grand occasion. It did not occur to me then, however, that I should be back here so soon; still less in this capacity.

Of course, I am very pleased that it has turned out as it has, on both counts, but I do understand that what may be cause for one's delight is not infrequently the basis of another's disappointment. For example, just last week in Canberra, the court lunched with a respected Canberra-based female academic who, when my appointment was announced late last year, went into print with a vigorous denunciation of the enormity that Justice Crennan's replacement would not be a woman. Then, not to be outdone by his female colleagues as it were, some months later, a respected Queensland-based male academic put out a tolerably well-reasoned piece on why, given that the government was taking the opportunity of replacing Justice Crennnan with a man, my appointment should be viewed as a lamentably wasted opportunity. It is also fair to assume that there would also be similar, as well as perhaps an additional, shall I say, territorially based, regrets expressed on this side of the country; and, being as objective as I can, who am I to gainsay them.

Moreover, looking back to when I was at the Bar, and from time to time had the good fortune to be briefed to appear here, I am reminded of some essential differences between Eastern and Western Australian legal practitioners' attitudes to Western Australian litigation.

For example, ask a Sydney lawyer about Western Australian litigation and they are likely to say that the main thing wrong with it is that the parties did not choose to litigate their dispute in the Supreme Court of New South Wales. Ask a Victorian or perhaps Queensland lawyer, and they will probably tell you that the only thing wrong with Western Australian litigation is that it is such a long way to 12 | Brief October 2015

get here. But, ask a Western Australian lawyer, and the most common response in my experience is that the main thing wrong with Western Australian litigation is that the smarties from the East think that they can come here and run the show.

Now, as you know, the majority of the High Court are not from New South Wales and I suspect that we of the majority are as unexcited by Sydney centricity as any Western Australian.

And, as to regarding Perth as being a long way away to come, even you who are here would have to allow that that is fair. But, as to coming here intent on running the show, contrary to what you might think, there are in fact very few of us from the East who would even begin to dare. Young players might make that mistake for a while, but one soon learns to respect the ferocity of the local combatants.

Much as with the rules of ancient warfare, one learns that Western Australian litigation depends largely on custom and, in the words of Hornblower and Spawforth, "to show a constant conflict between the standards of optimistic theory and the harsher standards permitted by actual usage".1 Thus, just as in ancient warfare, so also in Western Australian litigation, one learns that passion and expediency not infrequently cause fundamental rules to be violated.

Just as in ancient warfare, where the temptation to profit from surprise sometimes led to the opening of hostilities without a declaration of war, so too in Western Australian litigation, one notes a strong predilection for quick and dirty Friday afternoon Marevas, Anton Pillars and other such forensic delights.

Just as in ancient warfare, where it is said that plundering and the destruction of crops was regarded as legitimate, so too in Western Australian litigation, there is evidence of a propensity to appoint receivers and liquidators to pick over corporate carcasses and then to litigate on the back of the takings 'til the fund has run dry.

And just as in ancient warfare, of which it is has been said that what was practised during the Hellenistic age became more humane, but that standards once more deteriorated with the wars of Rome and Philip, one sees here a modern day parallel in the progression in Western Australia from the one time enthusiastic embrace of the relative ruthlessness of SPC v Sali,2 to the later more caring and sharing beneficence of J L Holdings,3 and now, under the guidance of an evidently reinvigorated High Court, a return to the stark post-modern reality of Aon Risk Services.4 More seriously, however, just as in ancient Rome, where it has been said that technical expertise for battle order, command and control resided with the legions, especially at centurial level, and that a continuous tradition of skill was developed and passed on; so too in Western Australian litigation, the expertise to prosecute proceedings both large and small surely resides in a justifiably proud Western Australian legal profession where a continuous tradition of skill has been developed and is constantly improved.

Enough, however, of litigation. Western Australians may not often think about it but, for those of us who come from elsewhere, this state presents as an extraordinary part of the country. As we know, it occupies more than a third of the land mass of the continent, and yet it holds little more than a tenth of its population; it is responsible for more than half the country's mineral and energy exports, and just under half of Australia's total exports, and yet the majority of its land mass is either semiarid or desert; it comprises some of the hottest locations in the country and yet it produces some of the best wines in the world; and, most remarkably, it is vastly over-represented amongst the ranks of Australia's high achievers.

One thinks for example of the great state politician, and federal founding father, John Forrest, without whom Western Australia might now be a foreign country.

Then there are latter day statesmen and

politicians like Sir Paul Hasluck, Bob Hawke and Kim Beazley. In other walks of life, there are wonderful contributors like the great present day physician and noble laureate Barry Marshall, renowned epidemiologist Fiona Stanley, eminent neuroscientist Lyn Beazley, authors like Tim Winton, more controversially, the authoress and sometime communist, Dorothy Hewett, and perhaps best known of all, the legendary Olympians Shirley Strickland and Herb Elliot.

Western Australia's contribution to the law is still more remarkable. Even in my time in the profession, there have been three outstanding Western Australian Chief Justices: the great Red Burt, the very scholarly and dignified David Malcolm and now Chief Justice Martin, against whom I had the pleasure to appear when we were both at the Bar. Then there is the striking depth of legal talent at other levels of the Western Australian judiciary of which, to name but a few examples, I have had the privilege of seeing at first hand judges like Geoffrey Kennedy, Howard Olney, William Pidgeon, Paul Seaman, David Ipp, Neville Owen, Christopher Steytler, James Edelman, and Eric Heenan.

So too, in the High Court, Western Australians have made an inordinate contribution. Granted, it took a little longer than it should have for the first Western Australian to be appointed. But there has been no looking back since then.

The late John Toohey, whose service to the court we commemorated on Monday, was a man of a different generation and of a different kind, but certainly of no lesser stature. And, like Sir Ronald Wilson, and a disproportionately large number of other eminent Western Australians, he was a powerful contributor to the advancement of Indigenous Australians.

As the Chief Justice recalled on Monday, Justice Toohey had a first class private law mind and yet at the same time an innate sense of public right. As such, he was a central constituent of the Mason Court and therefore central contributor to what may be considered some of the greatest advances in judge-made Australian private and public law since federation. One may think of Verwayen,5 Mabo6 and Kable7 as marking out the boundaries of the large land mass of legal advancement in which Justice Toohey was powerfully influential.

In passing it might also be noted that the last of those cases, Kable, could not have occurred but for the work of yet another Western Australian, Walter James, who, much earlier in this country's history, initiated the autochthonous expedient of investing state courts with federal jurisdiction.

Sir Ronald Wilson was not only a fine judge but also an exemplary human being. Lay churchman, Human Rights Commissioner, advocate for recognition and advancement of Indigenous Australians and refugees. Arguably, his contribution would in aggregate be unsurpassed by any other judge of the court to date, and that is even more remarkable than it would otherwise be in view of his humble and difficult beginning and brave wartime service as a Spitfire pilot in Great Britain. How many of us would have had the strength of character to undergo all that and then come back to a post-war law degree from the University of Western Australia, followed by a Fulbright Scholarship and a Master of Laws degree from Pennsylvania, advancement to Crown Prosecutor and then Solicitor-General, and finally appointment to the Court in 1979?

For obvious reasons, I shall not say much of the third Western Australian to be appointed to the High Court, the present Chief Justice, Robert French.

Decorum demands that we wait at least for some years until after his Honour is forced to retire at the statutory age of senility before we say what we really think of his contribution to the jurisprudence. But may I observe, I trust without embarrassing him, that, quite apart from his contribution as Chief Justice, his record really speaks for itself: almost 22 years as a judge of the Federal Court, including four years as President of the Native Title Tribunal and before that three years as Chairman of the Westralian Aboriginal Legal Service, three years as a member of the Westralian Legal Aid Commission, three years as Commissioner of the Australian Law Reform Commission and a time as an Associate Member of the Trade Practices Commission, to name only some of the many of his roles comprising a lifetime of dedicated and distinguished service to the law at the highest level.

Given that Sir Ronald was a Western Australian, it is fitting that, with the possible exception of Justice Callinan, he was also one of the High Court's great federalists – and for that reason, too, his judgments in Constitutional cases, not to mention other areas of law, are of continuing potential significance.

I shall say even less of the fourth Western Australian to be appointed to this court, my sister Gordon, because I know that she would excoriate me if I were to say any more. I content myself with the observation that when my colleagues and I at the Victorian Bar first encountered her as a young solicitor

freshly arrived in Melbourne, still short of 30 years ago, we had no doubt that she was bound to go very far very fast. That she has gone as far and as fast as she has is not the least surprising.

As it happens, my father was a Western Australian, albeit that he left here for Melbourne during the 1950's and thereafter spent a large part of his life in Melbourne and Canberra. Like some other Western Australians are wont to do, however, he retained the habit throughout his life of referring, a little derogatorily I think, to Eastern state residents as "wise men from the East" and he held fairly firmly to the view that any Western Australian who was inclined voluntarily to migrate from West to East must be of such diminished mentality compared to fellow sandgropers that the migration would likely increase the average IQ in both places.

Having a foot in both camps, as it were, I am not inclined to express a concluded view on the validity of that proposition.

But, given the extraordinary volume and quality of this state's contribution to the advancement of the nation in just about every worthwhile walk of life, it would be difficult to deny that there is more than a little in it.

As you know, the court no longer follows the practice of coming to Perth on Circuit once each year. Nowadays we come only when there is sufficient work to demand it and, for the time being, that is proving to be less often than before. Worse, only a few months ago, the intensity of the dispute about this state's share of GST revenue, and the consequent renewed threat of secession, seemed to reach a point where one wondered whether we would ever get here again. But happily that impasse seems to be behind us for the time being and, as citizens of this Commonwealth, may we all hope that it continues to be so.

Your Honours, ladies and gentlemen, I have spoken for long enough and I have possibly said too much. On behalf of all members of the court, we are honoured to share this evening with you and we are indebted to you for your gracious hospitability.

NOTES 1.

Hornblower and Spawforth (eds), The Oxford Classical Dictionary, 3rd ed (1996) at 1618.

2.

(1993) 67 ALJR 841; 116 ALR 625.

3.

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146.

4.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

5.

The Commonwealth v Verwayen (1990) 120 CLR 394.

6.

Mabo v Queensland [No 2] (1992) 175 CLR 1.

7.

Kable v New South Wales (1996) 189 CLR 51.

13

"Miscarriages of Justice" An address delivered by Malcolm McCusker AC CVO QC to the Anglo-Australasian Lawyers Society (Western Australia) Inc. 24 June 2015* It is an honour to address you this evening, on a subject of importance to everyone with an interest in the pursuit of justice – and I know that applies to all members of this Society.

convictions are rare, and that our justice system has demonstrated that any persons wrongfully convicted will ultimately be cleared through the system itself.

The topics I wish to discuss with you are how miscarriages of justice occur and the difficulties faced by a victim of a miscarriage of justice, in seeking to overturn a wrongful conviction. Of particular relevance to a society such as this, with an interest in legal affairs in the UK, Australia and New Zealand, is the experience of miscarriages in the UK, the steps taken there to minimise them, and what we in Australia might learn from and emulate.

Alas, that is wishful thinking, as experience has shown.

At the outset, I would like to pay tribute to two scholars from South Australia, and tireless champions of the cause of justice, Dr Bob Moles and Bibi Sangha, whose excellent forthcoming book, Miscarriages of Justice: Criminal Appeals and the Rule of Law I have been invited to review.1 Bob and Bibi have offered some valuable suggestions to me, in preparing this address. It was partly through their efforts that South Australia amended its laws, resulting in the quashing of the conviction of a Mr Keogh for murder after he had spent 20 years in prison.2 You will all no doubt be familiar with the dictum, stated over 200 years ago by the great English jurist, Sir William Blackstone: "Better that 10 guilty persons go free than one innocent suffer".

The same belief would, I hope, be held by everyone here (although I was once told of a senior law officer who expressed disagreement – in jest, I think). It was recently expressed succinctly by the Hon Justice Cory, in his report of The Manitoba Justice Commission of Enquiry: A wrongful conviction is as much a wrong to the administration of justice and to our society, as it is to the individual prisoner. Wrongful imprisonment is the nightmare of all free people. It cannot be accepted or tolerated.3 However, you may think that wrongful 14 | Brief October 2015

The exoneration of persons wrongfully convicted has, in Australia, almost invariably been due to the prisoner having considerable assistance from supporters who, convinced of his innocence, have fought tenaciously, often over many years, to have the conviction overturned.

In Western Australia, a person in prison, acting alone and without access to resources or outside help, faces almost insurmountable odds.

Varying estimates have been made of the proportion of prisoners in our jails who have been wrongfully convicted. Some put it at 5%. Of one thing I am reasonably sure – that there are some innocents imprisoned. In the UK it is estimated that about 1% of all criminal convictions are wrongful, as a result of miscarriages of justice. As high as 2% has been suggested in the USA, where, with the advent of DNA, 25% of so called 'prime suspects', who would otherwise almost certainly been charged, and at best suffer the trauma, indignity and expense of a criminal trial, and at worst, be convicted for offences they did not commit, have been cleared by DNA testing.

In the 2006 report of a New Zealand Commission of Enquiry headed by Sir Thomas Thorp, who had been a crown prosecutor for 31 years and 17 as a judge, it was opined that, based on UK experience, there probably were at least 20 innocent people in NZ prisons.4 It seems unlikely that NZ has a higher rate of miscarriages of justice than WA. In the USA, over the past two decades some 330 persons convicted of murder, 20 of them awaiting execution on death row, have been exonerated, as a result of DNA testing, and the efforts, largely, of Innocence Project members acting pro bono.7 But that, of course, says nothing of those who have been wrongfully

convicted of murder, and DNA samples have either not been taken, are lost, or are inconclusive. Nor of the numbers wrongfully convicted of other crimes.

In the UK over an 18 year period since the Criminal Cases Review Commission (CCRC) was established, (more of which I will discuss later), the Court of Appeal has quashed over 380 convictions of persons imprisoned through miscarriages of justice. This includes around 100 convictions for murder (4 of which were of people who had been hanged) and 70 for rape.

It is highly unlikely that all persons who have suffered the misfortune of being victims of miscarriage of justice have been fortunate enough to have the kind of assistance to clear their names given to those such as John Button,5 Darryl Beamish, the Mickelbergs and Andrew Mallard6, whose causes were doggedly supported by family, friends, the media (or a combination of them) and in each case, lawyers acting (for the most part) pro bono.

HOW CAN MISCARRIAGES OF JUSTICE OCCUR? Experience shows that the causes of the wrongful convictions are as follows: •

Eye witness misidentification 235 cases – 72%

•

Improper forensic evidence 154 cases – 47%

•

False confessions 88 cases – 27%

•

Informants and jailhouse confessions 48 cases – 15%8

Those percentages are of course based exclusively on revelations of wrongful convictions through the use of DNA, but experience generally tends to support the fact that these are 4 major causes, although I would add to them prosecutorial misconduct (which includes police misconduct, such as 'planting' evidence) jury prejudice, inadequate investigation and, yes, even incompetence of counsel.

feature

15

EYE WITNESSES

FALSE CONFESSIONS

Eye witness evidence is very powerful – when a person in the witness box points the finger at the defendant and says, 'it was him' with absolute conviction, it is hard for the jury to appreciate that it might not be so.9

Perhaps surprisingly, this is one of the major causes of wrongful conviction.11

Where a number of witnesses agree, it is even more convincing. In the USA, a young man, Kirk Bloodsworth, was found guilty of the sexual assault and murder of a 9 year old girl.10 Five eyewitnesses identified him. It was impossible to believe that they all got it wrong, or colluded; even when DNA taken from the girl's underwear proved not to be Bloodsworth's, that was brushed aside: it might simply be that of a person who had had innocent contact with the young girl or her clothing. It was only when the DNA was, much later, matched to the actual perpetrator (who was charged and convicted) that Bloodsworth was cleared.

Ronald Cotton and Jennifer Thompson is a well-known, and very disturbing, illustration of how a perfectly innocent person can be convicted on the identification evidence of a perfectly honest witness. Jennifer, who was sexually assaulted, positively identified Ronald as the perpetrator. She was a most convincing witness. She said she had studied Ronald's face during the assault. She later identified him from a photo in a book of photos; then a live line-up, and then in court. He was, not surprisingly, convicted. It later turned out that when Jennifer looked at the photos, she assumed that the perpetrator must be amongst them, so she picked the person she thought looked most like him.

After that she identified, in the live lineup, the person she had seen in the photo (i.e. Ronald), whom she identified when she gave evidence at his trial. It was only through DNA that, after 11 years in prison, it was conclusively proven that she had been mistaken in her identification. She said she suffered terrible, "suffocating, debilitating shame" when she realised that her evidence had convicted someone who was innocent. She arranged to meet Ronald at a local church: I started to cry immediately. And I looked at him, and I said, 'Ron, if I spent every second of every minute of every hour for the rest of my life telling you how sorry I am, it wouldn't come close to how my heart feels. I'm so sorry.' And Ronald just leaned down, he took my hands ... and he looked at me, he said, 'I forgive you' Subsequently they lectured together around the US about the dangers of eye witness identification, and went on television to raise peoples' awareness of it.

16 | Brief October 2015

Confessions may be due to threats and prolonged pressure (as in the case of young John Button): or wrongly interpreted (as with deaf-mute Darryl Beamish) or simply false evidence of admissions, sometimes by prison inmates, seeking to curry favour with the police; or even by police who may truly believe they've got the right man, and engage in what some euphemistically called 'noble cause' corruption. The Mickelbergs are a well publicised example. Years after they had served lengthy prison terms, it was proved that their alleged confessions were total fabrications, made up weeks after the Mickelbergs had been arrested on the flimsiest of evidence, by Detective Inspector Hancock, dictating fictitious questions and answers, to his 2IC, Detective Lewandowski, who carefully transcribed the fake 'record of interview' in longhand; or disputed oral interviews of someone suffering from mental disability (like Mallard, who was bipolar, and was interviewed by detectives at Graylands Mental Hospital).

The likelihood of falsified confessions (or 'verbals') has now been reduced by Section 57OD of the WA Criminal Code, excluding confession evidence unless videotaped. However, there are two exceptions: where there is a "reasonable excuse" for not videotaping, or the court is satisfied that there are "exceptional circumstances" for not videotaping.

As The Kennedy Royal Commission observed: "Verballing was a widespread practice in the CIB before videotaping.

There is some evidence that the practice thereafter declined; but it should not be assumed that it passed into history."

There is a plethora of cases involving false confessions, some made under extreme pressure, in combination with a mental condition not always readily apparent.

Research in the USA has shown that since 1976 over 40 people have confessed to crimes they did not commit. In one case, Eddie Lowery served 10 years after being convicted of rape, based on his own confession. He was later cleared, after DNA evidence proved that another had committed the crime. When asked why he had confessed to a crime he didn't commit, Lowery said "I thought I was the only dummy who did that". He said he had been pressed so hard that in the end he confessed. In the course of a 7 hour interrogation, with the police insisting he was the rapist, he had declared his innocence. He asked for and took a lie detector test, which the police – falsely – told him he had failed. In his confession, he said that he had hit the victim over

the head with a silver-handled knife. The prosecution said this detail was something only the rapist would have known. In fact, during his interrogation, he was told that by the police.

In the UK, in the notorious case of Treadaway12, in 1994, the West Midlands Major Crime Squad used a practice of 'bagging the suspect'. They invited Treadaway to sign a confession they had already prepared for him, and when he was unwilling to do so they placed a plastic bag over his head and tied it, not so tightly as to choke him, around his neck, until he signed. When these outrageous events were ultimately revealed, his conviction was quashed and he was awarded exemplary damages.

A later UK case R v Twitchell, in 2000 involved the same conduct.13 The Court of Appeal, quashing Twitchell's conviction, said: (This is) another appeal arising from the lamentable history of the now disbanded West Midlands Serious Crime Squad. During the 1980s a significant number of police officers in that squad (some of whom rose to very senior rank) behaved outrageously and, in particular, extracted confessions by grossly improper means, amounting in some cases to torture. During the 1990s, it has been the melancholy task of this court to examine the safety of many convictions recorded during that period, and approximately 30 have been quashed. It is to be noted that the task of this court is not to proclaim guilt or innocence. Our duty is to assess the safety or otherwise of the challenged conviction and to allow an appeal if we think the conviction is unsafe.14 Although one might usually think of false confessions as being extracted under duress, for example in the cases of Max Stuart15 and John Button in Australia, and Treadaway and Twitchell in the UK, that is not always so. A number of cases have been successfully referred to the Court of Appeal by the CCRC in the UK, as a result of work by Gisli Gudjonsson, a professor of Forensic Pathology, and internationally renowned authority on suggestibility and false confessions. His expert evidence was a factor which led to the quashing of the convictions of the Birmingham Six and the Guildford Four.16 A sample of these: R v Steele 197917 - mental vulnerability resulting in unreliable confession.

R v Fell 198318 - The sheer length of the interviews, depriving him for 54 hours of any outside communication, lack of food, and the method of interrogation all

feature contributed to the confession by Fell, who was described as a "pathological confessor".

R v Green 198719 – confession made following physical and mental pressure by the interviewing officers who had shouted that he was a liar, a murdering bastard, and made obscene remarks about his mother and girlfriend.

R v O'Brien, Sherwood and Hall 198820 - Hall had personality traits associated with those who make false confessions.

Had the jury which convicted him known that, and the unsatisfactory way in which the police interviews were conducted, it would probably have taken a different view of the reliability of Hall's statements.

Professor Gudjonsson has examined various circumstances which can give rise to voluntary but false confessions.

Thus, depression after the birth of a child resulted in one woman, who had intense feelings of guilt and persecution, confessing to crimes she hadn't committed, in the belief that this would relieve those feelings.

One person suffering from a personality disorder confessed to eight murders between 1979 and 1985. He was eventually charged with and convicted of two of the eight. He said he 'felt guilty' about them but had no clear recollection of them. He continued to confess to murders he could not possibly have committed. Gudjonsson told him of a fictitious murder to which he immediately confessed. He was of borderline intelligence, with depressive symptoms, and highly suggestible. He said he found confessing to gruesome murders exciting.

He enjoyed the notoriety and attention.

In 1987 two elderly women were battered to death, after being sexually assaulted.

A 17 year old neighbour was arrested and interrogated for 14 hours. When mocked about his failure with girls he falsely confessed to the murders. When he later withdrew the confession he was subjected to similar pressures. He confessed again. The real murderer was apprehended whilst he was in custody.

Two psychiatrists had failed to identify his vulnerabilities, but a psychologist had identified his anxiety prone and suggestibility factors. His apparent esoteric knowledge of the crime had been obtained from media articles and the police. He naively believed that his alibi witnesses would prove his innocence.

One person who had significant intellectual impairment and was illiterate confessed to the murder of a mother and five year old daughter. He spent ten weeks in custody before DNA established he was not the murderer. His confession included incriminating 'special

knowledge', which must have been given to him by the police. He was told by the police that if he confessed he would be allowed to go home and receive medical help, otherwise he would go to prison; so, trusting the police, he confessed to avoid going to prison. As Gudjonsson said, he was an easy target for manipulation by the police.

In another case a 21-year-old was interviewed by police for 90 minutes about a robbery. He made some damaging admissions. The officer said that in view of the admissions an identification parade was not necessary. He was found to be abnormally suggestible and said he confessed to avoid being locked up. At court, the victim of the robbery said it was not him.

In a Canadian case, Romeo Phillion, wanting (he said) to impress his boyfriend, falsely confessed to a murder and was convicted. His conviction was subsequently overturned. He claimed the police knew that he had an alibi for the time in question but had suppressed their knowledge of it.21 Another example is the Australian case of John Kerr, who in 2006 publicly confessed to the murder of a beauty queen; but his confession was later falsified by DNA evidence.

FORENSIC EVIDENCE In the famous Lindy Chamberlain case, 3 forensic experts gave evidence.22 One, Joy Kuhl, said that a spray pattern she found near the front door of the Chamberlains' car was foetal blood. A UK expert, Professor Cameron, gave evidence (without objection) that he had seen a tiny handprint in blood.

Years later, after Lindy had served a term of imprisonment for the murder of her baby, Azaria, a Royal Commission was held, following private and public pressure. Commissioner Morling observed that the forensic evidence would have had a considerable impact on the jury, but it was now completely refuted by the expert evidence given to the Commission, and that it was highly probable that the spray was traces of an inorganic sound deadening compound used in the manufacture of the car. The Commissioner concluded that this, and virtually every other piece of scientific evidence given at the trial (including Prof Cameron's) was flawed and of no evidentiary value: and that there was no evidence whatever of human involvement in Azaria's death.

Expert medical opinions, given in good faith, may be wrong, and lacking any scientific basis.

In 1983 (in WA) a teenager (Von

Malcolm McCusker AC CVO QC delivering his address.

Deutchberg) was convicted of murder.23 He had broken into a home, assaulted and knocked over the occupant, an elderly man, but not so as to cause him serious injury. The victim was later taken to hospital, suffering from chest pain.

He died in hospital, not from any injury inflicted on him, but from a bleeding duodenal ulcer. A medical expert, called by the prosecution, said that trauma and stress were 'believed' to be the cause of ulcers, and that the trauma of the attack would, in his opinion, have caused the death. The foreman of the jury which convicted Von Deutchberg, and other jury members, agonised over their decision.

The foreman even got in touch with the convicted man, later, expressing remorse for convicting him of murder. He said that, faced with the uncontradicted medical opinion, they thought (and were in effect directed) that they had no option but to convict. Years later, after Von Deutchberg had served a long term of imprisonment, Prof Barry Marshall and Robin Warren of UWA won a Nobel Prize for their research, showing that it is not stress, but a bacterium, that causes ulcers. On behalf of Von Deutchberg I settled a petition to have his case referred back to the Court of Appeal. Barry Marshall swore an affidavit in support. The conviction was quashed; but the trauma, the conviction and jail term had blighted his life.

Compare this with a Canadian case over 40 years ago, in Toronto; John Salmon was convicted of killing his wife.24 The prosecution medical expert said she had been killed by a forceful blow to the head. Salmon maintained his innocence, asserting that her death was due to a fall.

Years after his release from prison, he approached The Association in Defence of the Wrongly Convicted. A decade later, four experts, including a neuropathologist retained by the Crown, expressed the unanimous opinion that the death was due to a fall. Only advances in forensic 17

pseudo-statistical evidence.

These two cases, and others, did much in the UK to shake public confidence in scientific evidence. They are reminders that scientific evidence is not infallible, and that there is a danger that supposedly independent and objective scientific evidence may be in fact be partisan and unreliable.

The case of Henry Keogh, to which I will refer in more detail, is a paradigm example of the dangers inherent in unchallenged so-called expert evidence.

PROSECUTORIAL MISCONDUCT

From left: Shirley Feng, Committee Member; Kristian Cywicki, Committee Member; Malcolm McCusker AC CVO QC; Alexander Hickman, Vice-President; Anthony Aristei, President; Brigitte Monchouguy, Treasurer and Secretary; and Aimee Hackett, Committee Member, Anglo-Australasian Lawyers Society (Western Australia) Inc.

medical science made the revised opinion possible. As one expert said, "I don't know who in Ontario could have offered such a review in 1970. The Crown conceded that this fresh evidence would not only have affected the verdict but "eliminated the basis for a criminal prosecution" if the evidence had been available in 1970.

There are some tragic cases where an expert has given an unchallenged opinion, which in reality lacks any science, resulting in a miscarriage of justice.

Imagine that you are a woman, that you have lost your baby, and if that were not grief enough, you are charged with the baby's murder, tried and convicted by a jury, and sent, innocent though you are, to prison. Surely, you would think, this is a nightmare, a bad dream, from which you must eventually awaken. This can't be happening to me.

That is what did happen to a young mother, solicitor Sally Clark, in the UK.25 Her first child, 15 months old, died. A forensic pathologist, a Dr Williams, of many years experience, concluded that the cause of death was a lower respiratory tract infection. Just over a year later, her second child, 3 months old, died. Dr Williams concluded in his expert report that the child had not died of natural causes, but of "shaken baby syndrome".

He also revised his opinion as to the cause of death of the first child, and said that in his opinion the baby was smothered.

During Williams' investigation, samples had been taken of cerebrospinal fluid from the second baby's corpse. The lab microbiologist reported the CSF as 'staphylococcus aureus' (golden staph).

At Sally's trials, Dr Williams, a prosecution witness, gave no evidence about the microbiologist's report, which showed the probable cause of death to be an infection – golden staph. She was sentenced to life 18 | Brief October 2015

imprisonment for the murder of both infant sons, on the basis of Williams' evidence, and the (later discredited) 'statistical probability' evidence of another highly prestigious and convincing prosecution expert, the eminent Professor Sir Roy Meadow. She went to prison, in anguish and grief, protesting her innocence, in 1989. Over 10 years later, her husband discovered, by diligence and chance, the microbiology reports, still stored on the laboratory computer. The only hard copies had been given to Dr Williams, who had kept them on his file, and later claimed to have mislaid them. The case was (ultimately) sent back to the Court of Appeal, which was trenchant in its criticism of Dr Williams. Sally was released from prison in 2003. She never recovered from the trauma of her ordeal – the loss of her two babies, her wrongful conviction for their murder, her 14 years in jail. She died 4 years after release, still a young woman, of acute alcohol intoxication! She drank herself to death.

A similar case, also in the UK, was that of Angela Cannings.26 She lost three babies, all in similar circumstances. She was convicted of the murder of two, mainly on the basis of statistical evidence, again given by Professor Sir Roy Meadow, who solemnly expressed the opinion that, in a healthy family, one SID is a tragedy, two suspicious, and three murder "until proved otherwise". The Royal Statistical Society later issued a public statement about his "misuse of statistics in court", and said there was no valid statistical basis for Professor Meadow's opinion. They tore it to shreds. Angela Cannings spent four years in prison before being vindicated and freed by the Court of Appeal. The revelation about the invalidity of Professor Sir Roy Meadow's evidence caused a review of over 300 cases involving deaths of infants, in which he had given similar

This may take many forms. One, the most likely to result in miscarriage, is a failure to disclose material which may assist the defence. Mallards' Case was a striking example of this. His alleged confession, that he had struck the murdered woman over the head with a wrench, which at the police request, he helpfully drew, was put to the jury (together with the sketch) as proof that he had confessed. What the jury was not told was that experiments with a wrench had shown the wounds could not have been caused by a wrench.

MEDIA INFLUENCE OR JURY BIAS The possibility of an unfair trial due to widespread pre-trial publicity, adverse to an accused, is recognised by the provision in WA law permitting trial by judge alone, where the court is satisfied that it would be in the interests of justice to do so. In the high profile case of Lloyd Rayney, he sought and was granted trial by judge alone.27 The extraordinary and extremely adverse pre-trial publicity given to his case meant that he was unlikely to get a fair trial before a jury. As Rayney put it, he would probably have been convicted before the trial began. Justice Brian Martin, in a thorough and carefully reasoned judgment, acquitted Mr Rayney of the charge of murder.

In another trial, in which I represented Mr Fazzari, one of 3 accused of murdering a young man, Mr Walsham, it was my opinion (which I expressed to him and his co-accused before the trial) that although the objective facts showed that they could not have committed the murder, a jury would probably convict them, because Fazzari and one other had, on the evening of his death, assaulted Mr Walsham; and there had been widespread adverse publicity and highly damaging media (both press and television) reports.28 We therefore sought a trial by judge alone.

The judge who heard the application was also to be the trial judge. He dismissed the application, saying that the case raised matters of such public interest that a trial by jury would be in the interests of justice.

feature I must say, with respect, that I never understood that reasoning; reasoning with which the Chief Justice, in a later trial, expressed his strong disagreement. As I predicted, the jury convicted Fazzari and his co-accused but that was reversed on appeal (as I had also predicted).

This caused some of the jury to send an indignant letter to the newspaper, protesting that the Court of Appeal (whose judgment they apparently had not read) should set aside the decision of 12 (self-proclaimed) intelligent and objective people. Of course, as jurors, they did not – indeed could not – disclose their reasons for convicting the young men.

(But don't get me started on the problems of the jury system).

The well-known writer and scientist, Richard Dawkins, who has had, he says, the 'misfortune' to serve on 3 different juries, observed that his experience as a juror had left him convinced that if he were ever charged with a crime he did not commit, he would wish to be tried by a judge alone; but if he were guilty, he would opt for a jury, "the more wayward, unpredictable and emotional, the better".

fixated with a theory or hunch as to 'who did it', and disregard, or do not seek, other evidence which may not be consistent with that theory. The 'prime suspect' becomes the only one in their sights, and that, in turn, may sometimes lead to the production of false evidence, to support their belief as to who committed the crime. That is what happened in Mallard, where evidence of a handprint in the blood at the murder scene – not Mallard's – was ignored and never disclosed by the police – although it was many years later disclosed, and found to be that of a man who was convicted of the murder of another woman, with a similar modus operandi.

Bret Christian's book, Presumed Guilty, gives a number of examples of this dangerous reliance on a 'hunch', or early fixation.29 He quotes from Justice Brian Martin, in the Rayney Case: "It is inappropriate to begin with a presumption of guilt and then look to speculate as to whether particular evidence might be consistent with guilt".

As Bret puts it:

INCOMPETENT COUNSEL Such cases are, I hope, rare; but unfortunately they occasionally occur: For example - In the Chamberlain Enquiry, Commissioner Morling remarked that he was surprised that a damning expert opinion by Professor Cameron had been admitted, without objection by defence counsel. Incompetence of counsel must be more than simply mistakes or errors of judgment, to be a ground of appeal. It had been said that the incompetence must be so egregious as to be 'flagrant' – whatever that means: Nudd v The Queen (2006) 80 ALJR – 614.

TUNNEL VISION AND "NOBLE CAUSE" CORRUPTION This is a common problem, where prosecutors and investigators become

"the legendary 'copper's instinct' has been proven catastrophically wrong too many times ... (it) is no more than cognitive conceit wrapped in blue".

THE FUTURE: HOW TO RECTIFY MISCARRIAGES OF JUSTICE POST APPEAL There are three reforms of the law which, in my opinion are desirable, in the interests of justice.

The first reform is the enactment of legislation, along the lines already passed in South Australia, and expected to be enacted this year in Tasmania, to enable persons who claim to have been wrongfully convicted to apply to a Justice of the Court of Appeal to determine whether there is such 'compelling evidence' that the case should be referred

for hearing to the full Court of Appeal.

Under our present system, once a person has exhausted all appeal rights, the only course available to someone who claims that there is fresh and compelling evidence that his or her conviction is a miscarriage of justice, is to petition the Attorney-General to exercise his or her discretion to have the case referred back to the Court of Appeal, (a provision which, oddly enough, is found in Section 16 of the WA Sentencing Act).

The difficulty of persuading the AttorneyGeneral to exercise his discretion to refer a case back to the Court of Appeal was graphically illustrated in the South Australian case of Keogh, to which I will refer again later. It was also demonstrated in WA, in Yates v The Queen (2013) HCA 8.

In 1987, Yates had unsuccessfully appealed against an indefinite detention order made against him. Many years later, a High Court decision in another case showed that the WA Court of Appeal had applied incorrect legal principles, in deciding that the detention order should stand. Yates then petitioned the AttorneyGeneral to refer his case back to the Court of Appeal. The Attorney-General refused, to the astonishment of his counsel, Karen Farley SC, who then took the only course available, and applied to the High Court, 26 years out of time, for special leave to appeal the 1987 Court of Appeal decision.

The High Court extended time, granted special leave, and unanimously allowed the appeal, quashing the s662 order. Why the Attorney-General had refused to refer the case back to the Court of Appeal remains a mystery.

I am aware of several other cases which, in my view, warranted a referral to the Court of Appeal, but have been refused, leaving probable victims of miscarriages of justice in prison.

It is undeniable that miscarriages of justice may, and sometimes do, occur, when

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accused persons are wrongly convicted and imprisoned. The cases of Beamish, Button, Mallard and Mickelberg in WA, Chamberlain, Eastman30 are some wellknown examples, but it is likely – indeed virtually certain that there are others, not brought to light, and that innocent persons remain in prison.

The petition procedure is unsatisfactory.

It does not meet the essentials of proper system of justice. Indeed, in submissions put to the South Australian Parliament to support the legislation enacted there, it was asserted that "The current system may not adequately meet Australia's obligations under The ICCPR (International Covenant on Civil and Political Rights), which Australia ratified in 1980".31 There are several other criticisms.

First, the Attorney-General is not obliged to give any reasons at all for refusing a referral; and if (as sometimes happens) reasons are given, they are not reviewable.32 That is so, even if they are demonstrably wrong in law, or show a failure to appreciate the significance of the fresh evidence. I should, in fairness, mention that the current Solicitor-General Grant Donaldson SC, who advises the Attorney-General on petitions, tells me that his practice is to provide full reasons to the Attorney-General, if he advises that the Petition be dismissed, and that he understands that those reasons are sent to the Petitioner, with an invitation to respond if it is contended that the reasons reveal an error of fact of law. But this is really a case of "appealing from Caesar to Caesar". The reasons are not reviewable by a court. Secondly, there is no time limit whatever in which the Attorney-General must give a decision on a request for a referral. He or she may take years to give an answer. (The Attorney-General in South Australia took four years to respond to, and then reject, one of Mr Keogh's five petitions).33 Thirdly, the Attorney-General is a politician, appointed by the government of the day. His or her decision may not be seen as independent of politics, populist or other irrelevant influences.

"Justice must not only be done, but seen to be done". If the government of the day wishes to be viewed as taking a hard line on 'law and order' (and most governments do) there will probably be an actual or perceived bias against referring a conviction, especially in a high profile case, back to the Court of Appeal.

Fourthly, the applicant has no right to be heard before a decision on a petition is made, not even the right to be told who the Attorney-General has consulted before rejecting the petition, the advice received, what evidence he has relied on, or the right to be told the reasons for rejection.

20 | Brief October 2015

In recognition of these manifest defects in the justice system, in 2013 the South Australian Parliament passed a law which took the referral decision out of the hands of the Attorney-General (the Statute Amendment Appeals Act, which came into force on 5 May 2013). A person claiming that his or her conviction was a miscarriage of justice may now apply directly to a judge of the Court of Appeal in South Australia, to decide whether or not the case is one which should be referred to the full Court of Appeal, to determine, after a full hearing, whether there has been a miscarriage of justice.

The decision whether to do so is no longer made by a politician. The applicant has the right to be heard, and deal with counterarguments. Reasons must be given by the judges, and they are reviewable.

The first case decided under this new system (and indeed, the one which prompted it) is a paradigm illustration of the reasons why it should be adopted, throughout Australia, unless we have a CCRC (which I will discuss later). Henry Keogh was convicted, over 20 years ago, of the murder of his fiancée by drowning her in a bath.34 The case was entirely circumstantial, and relied very heavily on the evidence of a pathologist, Dr Manock, which was later totally discredited by four forensic experts and which he himself, years later, recanted in part. But by then Keogh had exhausted his appeal rights.

So, on the basis of fresh and compelling evidence (which included evidence of Dr Manock's professional incompetence) Keogh petitioned the SA Attorney-General to refer his case back to the Court of Appeal. That was some 15 years ago.

The petition was rejected, as were two subsequent petitions35, each supported by even stronger medical evidence (including the evidence of proceedings against Dr Manock before the SA Medical Board for his professional misconduct, which eventually proved to be decisive at Keogh's subsequent appeal). Three petitions were rejected, some after lengthy and unexplained delays. In 2004, the SA Attorney-General had obtained a report from a South Australian expert, Professor Barry Vernon-Roberts, that the forensic evidence at trial did not support a murder conviction – but this was not disclosed to Keogh and his advisers until 2013, after he instituted an appeal under the new legislation – the DPP then being obliged to disclose it. It was only after the passing of the new law, that Keogh was able to by-pass the Attorney-General, and have his claim (that his conviction was a miscarriage of justice) heard by the Court of Appeal in South Australia, which heard the appeal in late September 2014 and unanimously allowed it on 19 December 2014, with 119 pages of reasons, in the course of which they said:

" ... The Trial court and the jury were materially misled in respect of important matters. Material aspects of the evidence of Dr Manock were incorrect and should not have been led ... " The Court of Appeal concluded that there had been a substantial miscarriage of justice. Much of the evidence presented to that court (and certainly its substance) had been given to successive Attorneys General in South Australia with Keogh's petitions. The first petition was presented over 15 years ago, but no AttorneyGeneral had been prepared, in response to the successive petitions, to refer his case to Court of Appeal. And none has, to this day, given any satisfactory explanation for refusing to do so, or for the extraordinary delays which occurred in replying to Mr Keogh's petitions.

Dr Manock did not have impressive qualifications. He had been given his fellowship in forensic pathology after no more than a 20 minute oral test.36 He had given evidence in trials which led to over 400 criminal convictions. They all must now, as a result of the exposure of his lack of qualifications and his incompetence, be reviewed.

The benefit of a federal system is that each state can learn from the experience of others. The South Australian experience has shown the desirability of dealing with miscarriage of justice claims by the courts, and not at the absolute discretion of a politician. The Government of Tasmania has already signalled that it intends to enact a similar, if not identical law this year.37 Is there any good reason against WA doing so? It would be in the interests of a sound system of justice, and would also relieve the Attorney-General and his office of a task which is more properly one for the courts, not a politician.

I understand that the WA AttorneyGeneral, Mr Mischin, has said (before the decision in Keogh was given) that he would follow the Keogh case with interest.

The unanimous decision of the SA Court of Appeal must surely emphasise the desirability of WA now adopting the same process which recognised, at last, that a miscarriage of justice had kept Mr Keogh in prison for almost two decades – recognition which successive AttorneyGeneral's had denied him, by their refusal to refer his case for adjudication by the courts.

The WA Attorney-General has advanced several arguments against such a change in the law.

He has opined that such a system would provoke a flood of applications to the court; but is there any reason to think that more persons would claim they have been wrongfully convicted than petitioners under the present system?

feature He has also said that there is no need for such legislation, as "There are no innocent persons in WA jails". With great respect, that ignores the evidence and experience of other jurisdictions.

CRIMINAL CASES REVIEW COMMISSION Under the present system, as I have said, a person who has been convicted of a crime as a result of a miscarriage of justice faces serious obstacles.

That is so, even with the assistance of outside supporters. There is no right of access to relevant papers and materials in the hands of the police or DPP, which may lead to further enquiry. That can only be done, by subpoena, if an appeal has been instituted. But the appeal must be based on fresh evidence, which may be impossible to obtain without a subpoena.

A classic 'Catch – 22'.

The Mallard's appeal was only possible because the Attorney-General of the day, Mr McGinty, was persuaded by John Quigley, a fellow Labour Parliamentarian, to request the DPP to give Quigley access to the DPP's file on the Mallard prosecution. It contained significant exculpatory material never disclosed to the defence or the court, as the AttorneyGeneral at once appreciated, and referred the case to the Court of Appeal.

Once that happened, Mallard's lawyers were able to subpoena from the police other highly relevant and previously undisclosed materials which supported Mallard's appeal.

An independent CCRC would avoid those problems. If modelled on the UK Commission, it would have wide powers of investigation, the right to demand production of documents and the power to refer the case to the Court of Appeal itself if, having fully investigated the case, it concluded that there were reasonable grounds to conclude that there had been a miscarriage of justice and a "real

possibility" that an appeal would be allowed.38 After the CCRC was established in the UK, the number of quashed convictions rose from 4 or 5 a year, to between 20 and 30. About 96% of all applications to the CCRC are investigated but rejected; but of the 4% referred to the Court of Appeal, about 70% have succeeded in having their convictions quashed.

The CCRC acts as a kind of filter, to avoid clogging up the courts with undeserving applications. When it is proposed by the CCRC not to proceed, after due investigation, it gives the applicant a draft of its reasons, and invites and considers comments before a final decision is made.

If such a CCRC were established in WA, with the power to refer cases to the Court of Appeal, that would avoid the need for the present procedure of a petition to the Attorney-General, or for legislation enabling an application to be made directly to the court, seeking a second appeal, as in South Australia.

It would not only facilitate, with its wide powers of investigation, determination of whether there was, prima facie, a miscarriage of justice, and do so in an efficient and transparent manner; it would also remove the AG's apprehension that if legislation enabling an application directly to the court, and not by petitions to the Attorney-General, it might clog up the courts.

COMPENSATION How can persons wrongfully imprisoned ever be truly compensated?

The effects on persons wrongfully convicted and imprisoned are usually quite devastating. Many experience ongoing psychiatric problems; they often lose family or friends, their assets, their business, their employment. The effects have been likened to post-traumatic stress disorder, in their long term impact.

A person wrongfully convicted also faces

a dilemma when he or she becomes eligible for parole. A refusal to admit guilt, or take part in a rehabilitation programme, will significantly reduce the prospects of early parole. Where an accused is convicted on a plea of guilty, or on evidence which is so clear as to be irrefutable, (even though the plea was not guilty) it is perfectly understandable that refusal to undergo rehabilitation may be a ground for refusing parole. But to do so in the case of a person who has defended the charge, the evidence is not clear cut (e.g. circumstantial), and innocence is maintained, is to imply that there are no innocent persons in prison.

Experience has shown that is not so. In South Australia, Mr Bromley, an Aboriginal man is still in prison some 10 years after the expiry of his non-parole period.

Because he maintains his innocence, it is said he has failed to show remorse for the crime of which he was convicted, and is therefore not eligible for parole.39 Under WA Law, there is no law entitling a person wrongly convicted and imprisoned to be compensated.

Article 46 of the ICCPR provides that persons wrongfully convicted and punished "shall be compensated according to law". This has been adopted by the UK and number of other parties to the Covenant as part of their domestic law. However, Australia signed it with an express reservation – that compensation may be granted through administrative action (meaning, it seems, not necessarily by legislation). In the UK, under the Criminal Justice Act, application for compensation may be made to the Secretary of State, who decides whether the statutory criteria for compensation are met. If yes, the claim is referred to an assessor to determine quantum, in accordance with principles analogous to civil damages for a tort. (However, a controversial amendment to that Act, made in 2014, requires an acquitted claimant to prove his or her innocence before the claim will be met).

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21

In NZ the compensation regime is one of "guided discretion". Guidelines for the exercise of the discretion to compensate are publicly available. The Minister for Justice refers any claim to a QC to decide whether, according to the Guidelines, compensation should be paid, and if so, how much. The Guidelines state that as a matter of policy the compensation should be determined as for a claim in tort.

wildly implausible). She was convicted, and spent 2 ½ years in jail before an experienced and skilled defence lawyer brought her case before the Court of Appeal; which unanimously quashed the convictions as unsafe and unsatisfactory.

She has received no compensation for her harrowing ordeal; and no action has been taken against the two men who falsely and maliciously accused her.

But in WA, compensation for wrongful conviction and imprisonment is said to be 'ex gratia'. A decision whether to compensate at all, and if so, how much, is made by the government of the day. There are no published criteria or guidelines. Much may depend on likely public reaction, which in turn is strongly influenced by the media.

There should be a clearer and more definite method of compensation for those who have suffered as a result of a miscarriage of justice. It should not be left to be decided arbitrarily. Surely it would be a simple matter to achieve this – to follow the UK, or the NZ, examples perhaps.

The result of the unguided and unfettered discretion in Australia is that there are significant discrepancies in the awards of compensation. Take for example, Ray and Peter Mickelberg (whose convictions were ultimately and after many years in prison, quashed). They went through a horrific time, both before and after being imprisoned. Young Peter was stripped, threatened and bashed by police, Ray was savagely assaulted in Fremantle Prison then a hellish place, and certainly not the tourist destination it now is – seriously injured, his finger bitten off. All of their assets were lost. Ray's wife divorced him and he lost contact with his daughter.

Their lives were shattered.

1. Give persons claiming to be victims of miscarriage of justice the right to apply to a judge of the Court of Appeal to determine whether to refer the case to the CA.

They received as ex gratia compensation for their ongoing, endless ordeal, at a rate per month for their imprisonment (and for nothing else) considerably less than the monthly rate paid to some fine defaulters who (as it turned out) had been improperly imprisoned – even though there was no dispute about their default.

This entirely discretionary approach is not unique to WA. For example, in Tasmania, not long ago, a person was charged with murder, despite there being no evidence which could possibly support the charge, a charge which was only dropped after he had spent 8 months in prison. When he sought compensation, the AttorneyGeneral said he saw no reason to give compensation. As one commentator, Greg Barns, a Tasmanian SC suggested, "try common decency and humanity".

You may have seen on ABC TV a few weeks ago, an episode of Australian Story. A retired and well respected NSW schoolteacher, Josephine Greensill, was falsely accused by two of her former students of having sexually abused them, some 30 years ago.40 She was represented at trial by an inexperienced lawyer. The police had failed to properly investigate the allegations (which would have shown them to be spurious, internally inconsistent and 22 | Brief October 2015

SUMMARY OF SUGGESTED REFORMS

2. Alternatively (and preferably) establish a CCRC, either for this state, or by joining the other states to establish one national CCRC. In 2011, the WA Attorney-General was reported as saying that he favoured a national CCRC. His support for such a body was mentioned in a June 2011 speech in the SA Parliament when a motion was carried, calling on the South Australian Attorney-General to move at the next SCAG meeting that an 'assessment' be made of the value of a national CCRC. So far, however, there has been no move to create such a body.

Criminal Appeals and the Rule of Law, LexisNexis, September 2015.

2.

Details of the amended appeal provisions are available at http://netk.net.au/AppealsHome.asp.

3.

The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation, Winnipeg, AttorneyGeneral, 2001.

4.

New Zealand Herald 21 January 2006, "Up to 20 Wrongly in Jail Says Judge" at <http://www.nzherald.co.nz/nz/ news/article.cfm?c_id=1&objectid=10364743>.

5.

Further details about these cases are available at <http:// netk.net.au/WAHome.asp>.

6.

See the ABC Australian Story programmes on Andrew Mallard, The Wronged Man Part One, and The Wronged Man Part Two, October 2010.

7.

Current statistics are available at http://www. innocenceproject.org/.

8.

See the Innocence Project at http://www. innocenceproject.org/causes-wrongful-conviction as of 12 June 2015.

9.

Further information on these issues and on the case of Ronald Cotton is available at http://netk.net.au/ IdentificationEvidenceHome.asp.

10.

'Eyewitness Evidence Improving Its Probative Value' Psychological Science in The Public Interest, Vol 7 (2) 2006, Association for Psychological Science at p 45 at http://netk.net.au/Identification/WellsIntro.asp as of 12 June 2015.

11.

Further information on this issue is available at http:// netk.net.au/ConfessionsHome.asp .

12.

Treadaway v Chief Constable of Police for the West Midlands (1994) QBD (unreported) Times 25 October 1994; and R v Derek Treadaway [1996] EWCA Crim 1457.

13.

R v Keith Twitchell [2000] 1 Crim.App.R 373

14.

R v Twitchell [2000] 1 Crim App R 373 at 375.

15.

Further information on this case is available at <http:// netk.net.au/StuartHome.asp>.

16.

Details of these cases are available at <http://netk.net.au/ IRAbombingsHome.asp>.

17.

R v Anthony Steel [2003] EWCA Crim 1640.

18.

R v Peter Fell [2001] EWCA Crim 696.

19.

R v Thomas Green [2002] NICA 14.

20.

R v O'Brien, Hall and Sherwood [2000] EWCA Crim 3.

21.

The law reports and media reports in relation to the Phillion case are available at the NetK Canada Homepage: http://netk.net.au/CanadaHome.asp.

22.

Further details of this case are available at <http://netk. net.au/NTHome.asp>.

23.

Christian Wilhelm Michael Von Deutschburg v The Queen [2013] WASCA 57.

24.

See 22 June 2015, Rachel Mendleson, Toronto Star,"John Salmon to be exonerated after 45 years".

25.

More details on the Sally Clark case are available at <http://netk.net.au/SallyClarkHome.asp>.

26.

More details on this case are available at <http://netk.net. au/UK/Cannings.asp>.

27.

Further details on the Rayney case are available at <http://netk.net.au/RayneyHome.asp>.

28.

Further details of the Fazzari case are available at <http:// netk.net.au/FazzariHome.asp>.

29.

Bret Christian Presumed Guilty – When cops get it wrong and courts seal the deal Hardie Grant Books, Melbourne, 2013.

30.

Details of the case of David Eastman are available at <http://netk.net.au/EastmanHome.asp>.

31.

See the Australian Human Rights Commisssion Submission to Legislative Review Committee of the South Australian Parliament 25 November 2011 at [2.6].

32.

See Von Einem v Griffin and Anor (1998) 72 SASR 110.

33.

The details of the Keogh petitions are available at <http:// netk.net.au/KeoghHome.asp>.

34.

The details of this case are taken from R v Keogh (No 2) [2014] SASCFC 136 and further background to the case is available at <http://netk.net.au/KeoghHome.asp>. The full text of the book on the Keogh case, Robert N Moles, Losing Their Grip: The Case of Henry Keogh, 2006, is available online.

35.

One petition was withdrawn and one remained unresolved by the time the appeal was allowed.

36.

See the discussion of this in ABC 4 Corners "Expert Witness" 22 October 2001.

37.

For details of the Tasmanian position on this issue see <http://netk.net.au/TasmaniaHome.asp>.

38.

Materials on the UK CCRC are available at <http://netk. net.au/CCRCHome.asp>.

NOTES

39.

Details of the Bromley case are available at <http://netk. net.au/BromleyHome.asp>.

*This seminar was generously hosted by Clayton Utz.

40.

See ABC Australian Story "Suddenly One Summer" 20 June 2015.

3. To establish, either, by statute or regulation, guidelines for compensating all victims of miscarriages of justice.

Some might shrug their shoulders and say that the risk of injustice in WA, in a comparatively small number of cases, is the price we pay for a system which is dependent on human beings, and therefore necessarily fallible; and that there is no need to be concerned about those who suffer injustice, that the numbers are too small. Indeed, I understand that some have expressed the view – I hope in jest – that it is better that a few innocents are wrongly convicted, if that is the price to be paid for ensuring the guilty are punished.

I am one of many who do not share that view. As Martin Luther King wrote, from a prison cell in Alabama in 1964, "Injustice anywhere, is a threat to justice everywhere".

1.

Bibi Sangha, Robert Moles, Miscarriages of Justice:

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2015 Practical Advocacy Weekend for Junior Practitioners Friday, 7 August 2015 - Sunday, 9 August 2015 Seashells Resort Mandurah

Gemma Cronin and Alex Noonan YLC Education and Advocacy Working Group Once again the Practical Advocacy Weekend for Junior Practitioners was a roaring success and continues to be a highlight of the Law Society's Young Lawyers Committee CPD calendar. The weekend provided a unique opportunity for young lawyers to work directly with, and learn from judges and senior members of the bar, all of whom were all too willing to share their collective wealth of knowledge and anecdotes of their own court room experiences.

As always the weekend was a sell-out with attendees from a wide range of practice areas including prosecution, criminal defence, commercial litigation, personal injuries, family law and local government.

We thank our esteemed coaches in the Honourable Justice Mazza, the Honourable Justice Hall, Her Honour Judge Sweeney SC, Her Honour Judge Petrusa SC, Craig Colvin SC, Stephen Davies SC, Katrina Banks-Smith SC, Martin Cuerden SC, John Prior, Carmel Barbagallo, David Davidson and Mara Barone.

24 | Brief October 2015

The weekend provided the attendees with the opportunity to work in small groups and learn from judges and respected barristers in a relaxed, collegial setting.

The various social events occurring throughout the weekend also provided an opportunity for coaches and participants to mingle on a more informal basis.

This year, attendees saw Her Honour Judge Troy Sweeney SC and Ms Carmel Barbagallo show off their impressive advocacy skills in closing statements in a mock criminal trial. One group was also lucky enough to see the Honourable Justice Hall do a cross-examination of Ms Mara Barone, who was playing the accused. These performances helped give participants something to which to aspire for their future careers in advocacy.

This event highlights the importance of junior practitioners practising their advocacy skills and in one weekend there was significant improvement seen by the coaches in the participants' speaking and case presentation skills. The skills learnt will help develop the participants' careers as advocates and with future client relations in legal practice.

This annual weekend is an important reminder of the collegiality that exists in the legal profession. The sense of community that comes from practising the law can sometimes be lost in our adversarial court system. However, this seminar shows the immense generosity of the coaches in assisting the junior members to improve their abilities and advance the legal community as a whole.

With thanks to the members of the Society's Young Lawyers Committee who volunteered and gave up their weekend to assist logistics for the weekend.

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The Ethics of Independence: Running your own case Craig Colvin SC Barrister, Francis Burt Chambers

Sometimes clients want to take a very active role in how their court case is to be run. Is there any problem with a client giving directions about the conduct of their own case?

All clients are entitled to express their wishes about the conduct of a case and have them considered by their lawyers. They are also entitled to an explanation as to what is being done and why. However, it is improper for a lawyer to act as the mere mouthpiece of a particular client in court. It is up to the lawyer to decide what is to be said and done in court. The same goes 26 | Brief October 2015

for all written submissions and other documents filed in court.

All decisions about how to run a court case must be made by the lawyer and not by the client. Clients do not provide instructions about how to plead a case, what applications to bring, what should be included in affidavits or witness statements, the scope of discovery, who should be cross-examined or how a case is to be presented at trial. All these forensic decisions are matters for the lawyers responsible for the conduct of the case in court. It is an important responsibility of lawyers to make their

own independent decisions about how to run the case. Those decisions must be guided by the duties of lawyers as officers of the court, not by instructions from the client.

Sometimes this obligation may be difficult to communicate to a client. However, it is of fundamental importance. The court process is part of the government of a civil society.

Judges depend upon lawyers fulfilling their duties as court officers to be able to conduct court proceedings that are fair and efficient. The duty of lawyers to the court is paramount and must

be performed even if the client gives instructions to the contrary. The duty is sometimes described in very general terms, such as "candour, honesty and fairness". However, it has very specific content.

One particular manifestation of the duty concerns the way cases are conducted. It has been described as "a general duty to conduct cases efficiently and expeditiously"1. It has also been described as a "public duty ... to participate in and contribute to the orderly proper and expeditious trial of causes"2. It is captured with eloquence in the well-known statement of Sir Frank Kitto3: ... the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretention. They should be understood as a reminder that a barrister is more than the client's confidante, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. The barrister is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with other members of the Bar in the high task of endeavouring to make successful the service of the law to the community. This is a delicate relationship, and it carries exceptional privileges and exceptional obligations.4 Obligations to exercise an independent forensic judgment in the conduct of a case, to confine the case to the real issues and to present the case as quickly and simply as is possible were recognised by the High Court in Giannarelli v Wraith5. Mason CJ put the matter in the following way: The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary ... the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which there is an eye, not only to the client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that

the client may wish to chase every rabbit down its burrow ... in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.6 The obligation is also part of the foundation for modern case management practices which depend upon lawyers acting independently in making decisions about the proper conduct of a case.

In almost all jurisdictions in Australia, the rules of the superior courts now contain a statement to the effect that the overriding purpose of the rules is to facilitate the just resolution of the real issues in civil proceedings with minimal delay and expense7. Principles of case management are now an accepted aspect of the system of justice

submissions or express views to the court on any material evidence or material issue relevant to the matter in terms which convey, or appear to convey, the practitioner's personal opinion on the merits of that evidence or issue, unless required to do so by law or by a court.

These aspects of the law in Australia require careful consideration of the views expressed in cases such as Ridehalgh v Horsfield that it is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved because they are there to present the case and it is for the judge and not the lawyers to judge it10. Do lawyers have an obligation to refuse to advance hopeless cases?

"In Western Australia, the duty of honesty and candour has been held to require lawyer to refrain from denying or putting another party to the proof of a fact where to do so would be inconsistent with the facts with which the lawyer is instructed." administered by courts in Australia. They represent a new approach8.

These obligations are now reflected in a specific rule in The Legal Profession Conduct Rules 2010 (WA) which expresses the obligation of independence in the following terms9: 32 Independence (1) A practitioner engaged to represent a client in a matter that is before a court must exercise the judgment called for during the hearing of the matter independently, after giving appropriate consideration to the wishes of the client and any instructing practitioner.

(2) A practitioner must â&#x20AC;&#x201C; (a) confine the hearing of a matter to issues which the practitioner believes to be the real issues; (b) present the client's case as quickly and simply as is consistent with its robust advancement; and (c) inform the court of any persuasive authority against the client's case.

(3) During the hearing of a matter, a practitioner must not make

In Steindl Nominees Pty Ltd v Laghaifar, the Court of Appeal in Queensland expressed the obligation in the following way: I would prefer to say that it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.11 Examination of the nature of the independent obligation upon a lawyer not to bring a hopeless case most often arises where special costs orders are sought. In re The Black Stump Enterprises Pty Ltd and Associated Companies (No 212), the Court of Appeal in New South Wales referred to both Ridehalgh and Steindl with apparent approval in deciding whether to order the lawyers to pay the costs of an appeal13.

The view was then expressed that one of the difficulties for a court when applying those authorities was in making an assessment whether it was the solicitor or the client that is the real cause of the problem14. It is difficult to see how such 27

as to the conduct of a case do not stop there. In all stages of the court process lawyers have an obligation to exercise an independent judgment so as to present the case "as quickly and simply as may be consistent with its robust advancement".

Independence is a posture that lawyers should strive to adopt in every aspect of their practice. It means the avoidance of exaggeration and hyperbole. It means confronting the difficulties in a case, advising the client of them and addressing them in the conduct of the case in court. It means fulfilling an obligation to have a mastery of the issues so that they can be explained clearly and dispassionately.

an approach could be maintained given the terms of the new Conduct Rules and modern case management. The lawyer cannot blame the client for insisting upon bringing a hopeless appeal where there is an obligation upon the lawyer to exercise an independent judgment as to whether there is a real issue to advance.

The authorities concerning indemnity costs orders against parties to litigation were summarised by the Court of Appeal in Western Australia in Swansdale Pty Ltd v Whitcrest Pty Ltd15. The court said: To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against the unsuccessful party. In J-Corp16 ... French J by reference to the observations of Woodward J in Fountain Selected Meats17 said, It is sufficient, in my opinion, to enliven the discretion towards such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case. ...

Competing principles need to be balanced in assessing the making of a potential award of indemnity costs. In Quancorp18 ... Wheeler J observed: On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. ...

It is inappropriate that a case be too readily characterised as 'hopeless' so as to justify an 28 | Brief October 2015

award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as 'hopeless' is an example of the type of conduct which may lead the court to a view that the party whose conduct gave rise to the costs should bear them in full.19 Of course, it is not for the lawyer to adjudicate the claim that a client wishes to advance. It is for the court to decide whether witnesses are to be believed and to resolve conflicting testimony and contentious issues as to the state of the law and how it should be applied. It is to be expected that the court would not lightly impose a cost burden upon a lawyer. There is a real risk that such orders, if imposed, would stifle access to representation in difficult cases. It would not be appropriate to do so where the lack of merit in a case was only evident after careful scrutiny at trial or because the evidence of a particular party was not accepted. Clarity can emerge with analysis and the conduct of lawyers should not be judged with the benefit of hindsight.

However, these considerations do not excuse lawyers from the obligation to make a judgment as to whether there is sufficient evidence to support a case and whether the evidence, if accepted, provides the foundation for an arguable case. It is unprofessional for a lawyer to advance a hopeless case. Costs consequences may be expected for those lawyers who do so.

The obligations associated with the duty to exercise an independent judgment

In Western Australia, the duty of honesty and candour has been held to require a lawyer to refrain from denying or putting another party to the proof of a fact where to do so would be inconsistent with the facts with which the lawyer is instructed20. In doing so, the court said "inherent in the case management system now in operation in this jurisdiction is a general duty upon lawyers, in appropriate circumstances, to co-operate so as to avoid needless disputes"21. Importantly, the court also said that it was not intended by such principles to indicate that there is any obligation upon lawyers to exercise some credibility judgment as to the merits of their factual instructions22.

In deciding whether an allegation should be pleaded and argued, a lawyer must be satisfied that there is a reasonable factual basis for the allegation and that it is necessary for the case to raise the issue. In conducting discovery, the lawyer is fulfilling a duty of disclosure as an officer of the court. There is no adversarial aspect to disclosure. The client has no proper interest in seeking to confine the extent of discovery to prevent disclosure of prejudicial materials. Nor is there propriety in expanding the scope of discovery so as to burden an opponent or bury key documents. The lawyer must confine requests for discovery to that which is necessary for the robust advancement of the client's case and avoid unnecessary costs.

Witness statements may give rise to real difficulties because they are the point at which the client is closely involved in what is to be presented to the court. It is here that particular care must be taken to adhere to the duty of independence. In Thomas v SMP (International) Pty Ltd23, the court considered the nature of the duty in the context of preparing witness statements and said: ... it is common for some litigants

to want to use their evidence as an opportunity to unburden themselves in unmanageable detail of the many facts which have preoccupied them in the years preceding the hearing of their case. But a fair hearing of their case can be seriously hindered by such unfiltered outpourings.

That is why, among other things, counsel have a duty to the court which is additional to their duty to the party whom they represent.

This duty is a legal duty, not merely a rule of practice or etiquette ...

Counsel's duty to the court requires them, where necessary, to restrain the enthusiasms of the client and to confine their evidence to what is legally necessary, whatever misapprehensions the client may have about the utility or the relevance of that evidence.24 When it comes to submissions, the advice of Justice Heydon writing in the Australian Law Journal on the reciprocal duties of Bench and Bar is to be commended25.

Submissions should be of such a character that they are capable, if concurred in by the judge, of forming the substance of the judgment. From this follows many things â&#x20AC;&#x201C; the need to be accurate, the need to be restrained, and the need to cite sufficient, but not too much, authority. On that approach, counsel should not make merely ambit submissions, which are so extreme that if they are accepted an appeal would inevitably succeed and which cast on the judge the burden of remoulding them into something more realistic. They should avoid extravagant language.

They should descend to appropriate detail, but not excessive detail. Lord Templeman has said: It is a duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge would be capable of fashioning a winner. [It is not right to] make every point conceivable and inconceivable without judgment or discrimination26 The provision of litigation advice and services by lawyers does not involve the sale of a commodity. First and foremost it involves the performance of a professional obligation as an officer of the court in carrying out a governmental function, the adjudication of disputes according to law. Subject always to that overarching obligation, it involves the application of independent judgment to how a case should be conducted.

There remains the long-standing obligation of counsel to present cases "fully and properly ... fearlessly and with vigour and determination"27.

However, it is important to remember that the obligations to act with vigour and determination are bounded by the limits of that which is proper. The proper conduct and presentation of a case requires the exercise of independent judgments throughout.

Case management principles must guide every aspect of practice. A client's wishes should be considered carefully.

However, it is the obligation of the lawyer to only pursue claims and applications that have merit, to confine the case to

the real issues and to present the case as efficiently as possible. Lawyers must refuse to carry out instructions that are inconsistent with these obligations.

NOTES Article first appeared September 2012 Brief Magazine (Perth: The Law Society of Western Australa) at page 10.

1.

Ipp J, "Lawyers' Duties to the Court" (1998) 114 Law Quarterly Review 63.

2.

Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 233.

3.

Zeims v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298.

4.

This quotation has been edited to include women advocates as the author, no doubt, intended.

5.

(1988) 165 CLR 543.

6.

Giannarelli at 556-7, quotation also edited for gender inclusiveness.

7.

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [90].

8.

Aon at [92].

9.

There are equivalent rules in the Conduct Rules of the Western Australian Bar Association, r41, 42 & 57.

10.

[1994] Ch 205 at 234. See the review of Australian authorities as to whether it is improper for a practitioner to present a case that is doomed to fail in Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [83]-[115].

11.

[2003] 2 Qd R 683 at [24], Davies JA (Williams JA and Philippides J agreeing), applied in Dunghutti Elders Council Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporation (No 4) (2012) 200 FCR 154 at [61], cp. Levick v Commissioner of Taxation (1999) 168 ALR 303 at [44].

12.

[2006] NSWCA 60.

13.

Black Stump at [8]-[9], Young CJ in Eq (Santow and Bryson JJA agreeing).

14.

Black Stump at [10].

15.

[2010] WASCA 129.

16.

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No. 2) (1993) 47 IR 301 at 303.

17.

(1988) 81 ALR 397 at 400.

18.

Quancorp Pty Ltd v McDonald [1999] WASCA 101 at [7].

19.

Swansdale at [10].

20.

Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 193 applied in Cameron v Troy [2001] WASCA 400 at [11].

21.

Unioil at 194.

22.

Unioil at 193.

23.

[2010] NSWSC 822.

24.

[2010] NSWSC 822 at [19]-[22].

25.

(2007) 81 ALJ 23.

26.

Ashmore v Court of Lloyd's [1992] 2 All ER 486 at 493.

27.

Lewis v Ogden (1984) 153 CLR 682 at 689.

29

Double Trouble - The Giving of Guarantees with Others Cayli Bloch1

There is often an unfortunate outcome in giving a guarantee.

A difficulty may arise for one guarantor, out of many, who seeks to cut a deal with the financier and pays some money to satisfy the claims against him. But, this may still leave the guarantor exposed to a claim for contribution. This note considers this instance of double trouble.

INTRODUCTION The High Court of Australia's decision in Lavin v Toppi [2015] HCA 4 deals with equitable contribution being available to co-guarantors when one co-guarantor enters into a covenant not to sue with the principal creditor (in this case, the Bank).

This article discusses the differences between a 'covenant not to sue' and a 'release', and the impact each of these has on the liabilities of co-guarantors to one another, and to the principal creditor. Steps may be taken to minimise the opportunity for co-guarantors to seek contribution from one another in circumstances where one co-guarantor enters into a covenant not to sue with the principal creditor.

BACKGROUND Ms Lavin and Ms Toppi were directors and equal shareholders in a company, Luxe Studios Pty Ltd. In 2005, Luxe purchased a property in Liverpool Street, Sydney. The purchase was funded by a loan from the National Australia Bank. The Bank provided further loans in 2007 and 2008. In October 2008, the various loans were consolidated into one loan. The consolidated loan was guaranteed jointly and severally by: Dolores Lavin, Dolores Lavin Management Pty Ltd, Paola Toppi, Neil Cunningham and Luxe Productions Pty Ltd. Luxe went into receivership.

The Bank made demands upon each of the guarantors for payment of the balance of the loan. When those demands were not met, the Bank commenced 30 | Brief October 2015

proceedings against all of the guarantors to enforce the guarantee. The Liverpool Street property was sold. The proceeds of sale were paid to the Bank, but Luxe remained indebted to the Bank for over $4 million. On 21 July 2010, Dolores Lavin and Dolores Lavin Management Pty Ltd filed a cross-claim against the Bank, raising unconscionability.

On 8 September 2010, the Lavin parties and the Bank entered into a Deed of Release and Settlement whereby the Bank covenanted not to sue the Lavin parties if Ms Lavin paid a portion of the guaranteed debt. Additionally, the Lavin parties agreed to release the Bank from all claims in respect of the guarantee. Ms Lavin paid the settlement sum and the proceedings between the Bank and the Lavin parties were dismissed.

In May 2011, Paola Toppi and Neil Cunningham paid the remaining major portion of the guaranteed debt in final settlement of the loan. Upon payment of that amount, the guarantors' obligations to the Bank under the guarantee were discharged.

Toppi then commenced proceedings, claiming contribution from the Lavin parties, in respect of the amount of the Toppi parties' payment in excess of their proportionate share of the guaranteed debt. The Lavin parties resisted the Toppi parties' claim on the basis that the Lavin parties' liabilities and the Toppi parties' liabilities were no longer 'co-ordinate' as a result of the Bank's covenant not to sue. The primary judge rejected the Lavin parties' argument and gave judgment in favour of the Toppi parties.

The Court of Appeal dismissed the Lavin parties' appeal on the basis that the Bank's covenant not to sue did not alter the Lavin parties' liabilities under the guarantee. The High Court unanimously dismissed the Lavin parties' appeal.

Leeming JA, in the Court of Appeal, with whom Macfarlan and Emmett JJA agreed, relied on Carr v Thomas2 to conclude: "In point of principle, a covenant not to sue (in the usual form) does not alter an existing liability. Giving such a covenant

merely means that the covenantor is in breach if it does sue".3 The High Court Judgment The High Court recounted that the Bank's covenant not to sue the Lavin parties did not extinguish, but indeed assumed, the Lavin parties' ongoing liability for the guaranteed debt. The Lavin parties and the Toppi parties shared coordinate liabilities to the Bank under the guarantee both before and after the covenant not to sue. Additionally, the Toppi parties' right to contribution was apparent in equity even before the Toppi parties made their disproportionate payment to the Bank, and this right could not be defeated by the separate agreement between the Bank and the Lavin parties.4 Effect of a covenant not to sue In Craythorne v Swinburne5, Lord Eldon LC made it clear that once a creditor calls upon co-sureties to pay the guaranteed debt, a co-surety's right to contribution cannot be defeated by the acts of the creditor e.g. entering into a "covenant not to sue" one co-surety. French CJ, Gumow, Hayne and Bell JJ confirmed this in Friend v Brooker6 and explained that equity does not interfere with the action of the creditor, but seeks to ensure the sharing of the burden between those subjected to it.

When the Bank made demands upon each of the guarantors for payment of the balance of the loan, each of the guarantors was under a common obligation to pay the Bank the balance of the guaranteed debt. As joint and several guarantors, each of them was bound, among themselves, to contribute equally to the discharge of that liability. A covenant not to sue does not operate as a discharge of the guaranteed liability.7 If the agreement between the Bank and the Lavin parties constituted a release, then it could operate as a discharge of the guaranteed liability. But, the creditor is able to contract with the co-sureties for the preservation of liability in the event of discharge.8

Co-guarantors should proceed on the basis that entering into a 'covenant not to sue' with the creditor does not affect the creditor's ability to recover the monies owed under the guarantee. In fact it benefits the creditor more than the coguarantor as it removes the need for the creditor to contract for preservation of liability in the event of discharge.9 For coguarantors, this device creates something of a 'prisoner's dilemma'. Faced with claims from the creditor, a co-guarantor could seek to do what Ms Lavin did, bring a cross-claim against the creditor in the hope of securing a favourable settlement for herself. But, as Lavin v Toppi10 makes clear, this strategy is ineffective as the co-guarantors are able to seek equitable contribution from the guarantor who settled with the creditor, unless that guarantor is able to show some disentitling conduct on the part of the coguarantor seeking contribution.

Benefit received by the Lavin parties The High Court reaffirmed that Lavin and Toppi continued to share a common liability despite the covenant not to sue.11 So, when the Toppi parties discharged the Lavin parties' and the Toppi parties' common liability, the discharge of the liability inevitably benefitted Lavin and, without Toppi having a right to contribution, Lavin, who paid less than her fair share, would be unjustly enriched.12 The doctrine of equitable contribution is based on principles of fairness and 'natural justice' and requires that if one guarantor has paid more than his proper share towards discharging a common obligation, he is entitled to be recompensed by the co-guarantors who have not.13 When assessing the benefit to the Lavin parties practically, the terms of clause 8(c) of the Deed suggest that the Bank's prospect of recovering the full balance of the loan from the Toppi parties had a positive effect upon the Bank's willingness to give the Lavin parties the benefit of the covenant not to sue.14 Differences between equitable contribution and contribution at common law The rationale of the right to contribution, both at law and in equity, was described

by Kitto J in Albion Insurance Co "as one of natural justice" which ensures "that people who are under coordinate liabilities to make good the one loss (e.g. sureties liable to make good a failure to pay one debt) must share the burden pro rata".15 The doctrine of equitable contribution applies where a "co-ordinate liability" exists, that is where liabilities of cosureties are "of the same nature and to

the same extent".16 A covenant not to sue does not alter this liability.17

shareholdings in the joint venture28, while in Leigh-Mardon Pty Ltd v Wawn, where directors lent funds to, and took profits from, the company in unequal proportions, it was inferred that the right to contribution in respect of losses incurred after the business ceased would likewise be in those proportions.29

A 'co-ordinate liability' is distinct from a 'common obligation', which reflects the narrower, superseded approach to contribution at common law.18 Timing Issues No right to contribution arises at common law until the plaintiff pays more than her proper share.19 But, "in equity the right to contribution can be declared before actual payment is made or loss sustained provided that such payment or loss is imminent".20 In the present case, the commencement of proceedings by the Bank removed any question as to whether enforcement of the Toppi parties' liability to the Bank was imminent.21 Therefore, Toppi's right to equitable contribution arose before she made the disproportionate payment and prior to the Bank's covenant not to sue22 i.e. when the Bank demanded payment from, and commenced proceedings against, the sureties in respect of Luxe Studio's default.

When can a surety's right to contribution be excluded or modified?

1. If the creditor enters into a release with one co-guarantor23 Ms Toppi's right to contribution could only be lost if the Bank entered into a release with Lavin and not just a covenant not to sue, as a release of one co-surety acts to release all co-sureties and thus removes the need for contribution between them.

A surety's right to contribution is not lost if a co-surety enters into a settlement deed with the creditor (like Lavin did in this case).24 2. If the sureties enter into an agreement precluding the right to contribution from one another.25 3. If a surety contracts with the creditor not to enforce any contribution from co-sureties, while indebtedness to the creditor remains unpaid in whole or in part, and the court will enforce this at the suit of the creditor.26 A contract to this effect would not have protected Lavin from Toppi's contribution claim, as Toppi only sought contribution from Lavin once the guaranteed debt was discharged.

4. By a contrary common intention on the part of the co-sureties.27

For example, in Morgan Equipment Co v Rodgers (No 2), it was held that the right to contribution as between joint and several shareholders' guarantees was to be measured by the guarantors' respective

Absent such an intention, express or implied, there is no discretion to depart from equality.30 Lavin would not have been able to rely on the proposition of contrary common intention to prevent Toppi from seeking contribution, as the Toppi parties and Lavin parties were liable for the whole debt jointly and severally.

5. If the terms of the guarantee exclude or restrict rights of contribution.31 Nothing in the terms of the guarantee qualified or detracted from Toppi's right to contribution from Lavin.32 6. If the surety claiming equitable contribution engages in disentitling conduct, for example, lack of clean hands or laches.33 Lavin alleged that Toppi lacked clean hands and therefore should not be entitled to claim equitable contribution, for procuring the discharge of the Basecove Mortgage and failing to pay the whole of the proceeds of sale to the Bank.34 This ground of appeal was addressed briefly in the Appeal decision.

The primary judge found that Basecove was a guarantor in November 2006, May 2007 and March 2008, but was not included in the consolidated guarantee, the subject of the proceedings.35 The Court of Appeal held that the fact that a former co-surety did not pay over the whole of the proceeds of sale of property to the Bank, in circumstances where the continuing debtor and its co-sureties entered into a new agreement with the Bank, did not disentitle the continuing cosureties from seeking contribution against each other.36

EFFECTS OF A RELEASE AS OPPOSED TO A COVENANT NOT TO SUE An important distinction is drawn between a covenant by the creditor not to sue one surety but reserving his rights against the co-sureties (like the Bank did in this case pursuant to clause 8(c) of the Deed), and a discharge of the principal debt.

The release of a surety by a creditor will release other joint or joint and several sureties37, and removes the need for 31

contribution between them. Several sureties are treated differently; 'a several surety is released only if he can show that he had a right to contribution which was taken away or injuriously affected' by the act of the creditor.38 If the creditor obtains judgment against one joint and several surety for the full amount, but then accepts less on a compromise and gives a release, the release destroys any claim by the creditor against the other sureties for the balance of the full amount.39 The surety paying the compromise sum may recover contribution from the co-sureties in respect of the lesser amount.40 The practical solution, which overcomes these complexities, is for the creditor to settle with one joint and several surety, but to give a covenant not to sue and not a release.

A covenant not to sue merely extinguishes the Bank's ability to make a claim against that guarantor but it does not extinguish that guarantor's liability. The co-guarantors are therefore not precluded from seeking equitable contribution.

If the Bank 'released' the Lavin parties' liability, the co-guarantors i.e. the Toppi parties' liability would have also been released, unless the terms of the guarantee or 'release' provided otherwise.41 No right to contribution would then arise. In Lavin v Toppi42, the Bank made a promise to the Lavin parties in respect of their liability under the guarantee. Despite the Deed being referred to as a 'deed of release and settlement', pursuant to clause 8(a) of the Deed, the Bank promised not to sue the Lavin parties in respect of the guarantee, provided Ms Lavin paid the settlement sum to the Bank. The agreement between Lavin and the Bank was therefore construed as a covenant not to sue.

The liability of the Lavin parties was not enforceable by legal proceedings, but their liability remained enforceable by other means, such as reliance on rights of recoupment under other securities (if any) between the Bank and the Lavin parties.43 An express reservation of the Bank's rights against the co-guarantors under clause 8(c) of the Deed, supports the conclusion that the agreement between the Bank and the Lavin parties must be construed as a covenant not to sue. The Lavin parties never suggested that the Bank's covenant not to sue should be construed as a release so as to discharge the Lavin parties' liability under the guarantee.44 Co-guarantors should be aware that obtaining a 'release' from the creditor opposed to a 'covenant not to sue' has a more favourable outcome for the 32 | Brief October 2015

co-guarantors, as the release of one coguarantor operates to release all other co-guarantors, and contribution is not available among co-guarantors when a release is granted. All co-guarantors could join in a cross-claim against the creditor, potentially settling on terms, which are less favourable individually, but securing a final resolution to the claim by a release in favour of all of them.

Prospective guarantors should bear in mind when negotiating with the creditor and prospective co-guarantors, that such a strategy would become more difficult to prosecute in cases involving guarantors who are more numerous or who have more diverse interests. Future guarantors may benefit from seeking to negotiate terms limiting their liability to contribution.

INCONGRUITY IN SITUATION OF INSOLVENCY Creditor's ability to recover monies owed under guarantee not affected If a guarantor becomes insolvent, the guarantor's liability to the creditor becomes a provable debt in the guarantor's bankruptcy.45 The ultimate discharge of the bankrupt guarantor's liability, will not affect the liability of the solvent co-guarantor.46 If one guarantor becomes insolvent this does not affect the creditor, as the solvent co-guarantor still remains liable for the whole debt under the joint and several guarantee.

Guarantor's ability to claim equitable contribution from co-guarantor The right to recover contribution depends on the number of sureties who are solvent at the time when contribution is sought.47 Therefore, a solvent surety who pays a disproportionate sum of a guaranteed debt will not be able to seek contribution from an insolvent co-surety. The insolvency of the one guarantor affects his co-guarantor's right to claim equitable contribution, as contribution cannot be claimed from an insolvent co-guarantor.48 Insolvency is treated differently from the practical reality of a covenant not to sue.

CONCLUSION As a result of the High Court's decision in Lavin v Toppi49, future guarantors need to be aware of the differing effects of a release as opposed to a covenant not to sue, as well as the steps that can be taken to minimise the opportunity for co-guarantors to seek contribution from one another in circumstances where the principal creditor covenants not to sue one of the co-guarantors. The liability of a guarantor to the creditor is strictissimi juris50, but the authorities do not suggest that such a principle is applicable in relation to the rights of co-guarantors inter

se.

NOTES 1.

Cayli Bloch LLB (Murdoch). I am grateful to Kanaga Dharmananda SC, Francis Burt Chambers, Perth, for his assistance, in relation to the preparation of this article.

2.

[2009] NSWCA 208.

3.

Lavin v Toppi [2014] NSWCA 160 per Leeming JA.

4.

Lavin v Toppi [2015] HCA 4.

5.

(1807) 14 Ves 162; 33 ER 482.

6.

[2009] HCA 21; 239 CLR 129.

7.

Lavin v Toppi [2015] HCA 4.

8.

ibid.

9.

ibid.

10.

ibid.

11.

ibid.

12.

See Burke v LFOT Pty Ltd (2002) 209 CLR 282 per McHugh J.

13.

Carr v Thomas [2009] NSWCA 208; Lavin v Toppi [2015] HCA 4.

14.

Lavin v Toppi [2015] HCA 4 per French CJ, Kiefel, Bell, Gageler and Keane JJ.

15.

Albion Insurance Co Ltd v Government Insurance Office of NSW [1969] HCA 55; 121 CLR 342 at 349-350.

16.

Friend v Brooker (2009) HCA 21; 239 CLR 129.

17.

Lavin v Toppi [2014] NSWCA 160.

18.

Friend v Brooker (2009) HCA 21; 239 CLR 129 at 41.

19.

Albion Insurance Co Ltd v Government Insurance Office of NSW [1969] HCA 55; 121 CLR 342; McLean v Discount and Finance Ltd (1939) 64 CLR 312.

20.

McLean v Discount and Finance Ltd (1939) 64 CLR 312 per Starke J.

21.

Lavin v Toppi [2015] HCA 4.

22.

See Friend v Brooker (2009) HCA 21; 239 CLR 129 at 52.

23.

Duncan, Fox & Co v North and South Wales Bank (1880) 6 App Cas 1; Lavin v Toppi [2015] HCA 4.

24.

Duncan, Fox & Co v North and South Wales Bank (1880) 6 App Cas 1; Lavin v Toppi [2015] HCA 4.

25.

Stimpson v Smith (1999) Ch 340; (1999) 2 All ER 833.

26.

J Lipton, 'Equitable Rights of Contribution and Subrogation' (1995) 13 Australian Bar Review 21 at 3337.

27.

Muschinski v Dodds (1985) 160 CLR 583 at 597, 617; 62 ALR 429 at 438, 453.

28.

(1993) 32 NSWLR 467.

29.

(1995) 17 ACSR 741.

30.

Leigh-Mardon Pty Ltd v Wawn (1995) 17 ACSR 741 at 752; Glenmont Investments Pty Ltd v O'Loughlin (No 3) (2001) 79 SASR 288 at 18.

31.

Lavin v Toppi [2015] HCA 4.

32.

ibid.

33.

Carr v Resource Equities Ltd (2010) 275 ALR 366 at 125.

34.

Lavin v Toppi [2014] NSWCA 160.

35.

Toppi v Lavin [2013] NSWSC 1361 at 7[1].

36.

Lavin v Toppi [2014] NSWCA 160.

37.

Walker v Bowry (1924) 35 CLR 48 at 50, 58.

38.

Ward v National Bank of New Zealand (1883) 8 App Cas 755.

39.

See Schnurch v Ploeger (1991) 78 DLR (4th) 598 (BCCA).

40.

ibid.

41.

Lavin v Toppi (2015) HCA 4.

42.

[2015] HCA 4.

43.

Lavin v Toppi [2015] HCA 4.

44.

ibid.

45.

Bankruptcy Act 1966 (Cth) s82(1).

46.

Bankruptcy Act 1966 (Cth) ss153(1) & (4).

47.

Mahoney v McManus (1981) 180 CLR 370.

48.

ibid.

49.

Lavin v Toppi [2015] HCA 4.

50.

See Ankar Pty Ltd v National Westmister Finance (Aust) Pty Ltd (1987) 162 CLR 549.

"Tough on Crime": Discrimination by another name The Legacy of Mandatory Sentencing in Western Australia Tammy Solonec, Indigenous Rights Manager, Amnesty International Australia and member of the Society's Indigenous Legal Issues Committee INTRODUCTION

indeterminate period of detention.14

For almost 25 years, mandatory sentencing laws have been used by successive governments in Western Australia for what has been described as a 'populist approach to sentencing'1 to counter media hysteria, attract voter support,2 and to give the perception of being 'tough on crime'.3 These laws impose minimum sentences for certain offences, preventing judges from considering the personal circumstances and mitigating factors of each case.4 This trend continues with the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 (WA) (Home Burglary Bill) that passed through the Western Australian Parliament in September 2015.

The Act was criticised as a knee-jerk response to moral panic,15 with a WA Crime Research Centre evaluation concluding that the legislation had no impact upon reducing car theft.16 The Act ceased to have effect in 1994.17

Mandatory sentencing laws raise serious concerns as to the State Government's compliance with the 'separation of powers doctrine'5 and international human rights law, especially in relation to their disproportionate impact on Indigenous people, and particularly Indigenous young people.6 THE 1992 SERIOUS REPEAT OFFENDER LAWS The first mandatory sentencing regime in Western Australia was introduced after a spate of car thefts and high-speed car chases in the early 1990s.7 The events were sensationalised in the media causing community concern that culminated in a 20,000 strong 'Rally for Justice'8 led by radio host Howard Sattler.9 On Christmas Eve in 1991, a pregnant woman and her infant child were killed after a 14 year-old boy with 200 previous convictions hit them while driving a stolen car.10 The Lawrence Government responded by introducing the Crimes (Serious and Repeat Offenders) Act 1992 (WA), which was passed within three months.11 The legislation targeted 'repeat offenders' of violent crimes12 who had, within the preceding 18 months, accumulated three or more violent offence convictions, or six or more non-violent offence convictions.13 Such offenders faced a mandatory minimum sentence of 18 months in custody, followed by an

THE 1996 'THREE STRIKES' HOME BURGLARY LAWS In response to community concern about the prevalence of home invasion offences the Court Government introduced mandatory minimum sentences for repeat home burglary offenders.18 On the day the 1996 election was announced,19 the Criminal Code Amendment Act (No 2) 1996 (WA) was passed amending section 401 of the Criminal Code to provide that an adult or juvenile offender convicted for the third time for a home burglary must receive a minimum term of 12 months imprisonment or detention.20 This scheme became known as the 'three-strikes policy'.21 Courts were prohibited from suspending such sentences.22 However, in 1997, the then President of the Children's Court, Judge Fenbury, determined that the laws permitted the imposition of a Conditional Release Order, in place of immediate detention, in two cases concerning children under 15 years.23 The decision was intensely scrutinised by State Government and the media, who labelled it a 'loophole' that would see many offenders escape imprisonment.24 In 2001, an independent review of the state's mandatory sentencing laws found no evidence that the laws had deterred crime, reduced recidivism, or promoted rehabilitation.25 A governmentcommissioned review in the same year also indicated that the laws had little impact upon crime.26 THE 2009 ASSAULTING PUBLIC OFFICER LAWS The third incarnation of mandatory sentencing was introduced in 2009 following the assault of Police Constable Matthew Butcher,27 which left him

paralysed on his left side, and with permanent brain injury.28 A District Court jury found the attackers had acted in selfdefence,29 a verdict that resulted in public anger and 'mistrust' of the courts.30 In response, the Criminal Code Amendment Act 2009 (WA) was passed, aimed at reducing attacks on public officers, including police31 (later amended to include Youth Custodial Officers32).

The amendments to sections 297 and 318 of the Criminal Code applied a mandatory minimum term of six to 12 months imprisonment for adults, and three months for persons aged over 16, for such assaults.33 Again, the sentence to a term of imprisonment could not be suspended.34 THE 2015 HOME BURGLARY LAWS Acting on its 2013 election promise to be "tough on crime" and address the "escalating burglary rate",35 the Barnett Government introduced, in 2014, the Home Burglary Bill.36 Amongst other things, the amendments sought to change the counting rules for determining the 'repeat offender' status of 16 and 17-year-olds to ensure that multiple offences dealt with in a court on one day would no longer be counted as a single 'strike'.37 Under the changes a 16 or 17-yearold charged with three counts of home burglary will be detained or imprisoned for one year38 or be subject to a Conditional Release Order.39 The Bill also introduced mandatory minimum terms of detention of three years for 16 and 17-year-olds who commit certain offences in the course of an 'aggravated' home burglary.40 In May 2015, Amnesty International lodged a petition with the State Parliament asking that the Home Burglary Bill be amended to ensure that it does not apply to young people, that the Act be reviewed after its first year of operation and be scrutinised by a Parliamentary Committee in respect to international human rights standards.

These requests have been reiterated by 11 other organisations in a joint statement to Premier Barnett in similar terms.41 33

of the Supreme Court Chief Justice Wayne Martin,60 have opined that the Home Burglary Bill amendments will heighten the problem of incarceration of Indigenous people, particularly young people.

IMPLICATIONS FOR INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

Photo credit: AIA / Ingetje Tadros Despite this, the Bill passed through the Legislative Assembly on 19 March 2015 and through the Legislative Council on 15 September 2015.42 THE SEPARATION OF POWERS Mandatory sentencing may be viewed as a departure from the separation of powers doctrine,43 which asserts that the three arms of governmentâ&#x20AC;&#x201D;the executive, legislature and judiciaryâ&#x20AC;&#x201D;must remain independent of one another and only exercise their respective powers and functions.44 Mandatory sentencing laws made by the legislature could be regarded as compromising the independence, and judicial functions, of the judiciary.45 Further, mandatory sentencing legislation effectively prevents judicial review of the sentence imposed.

While such laws have been found to be constitutional,46 the High Court has expressed grave concerns about parliamentary interference with the sentencing process and the court's traditional role in determining the proportionality of punishment taking into account all of the circumstances.47 There is a powerful argument that courts are best placed, as neutral arbiters, to make just decisions about punishment.48 THE DISPROPORTIONATE IMPACT On their face, mandatory sentencing laws do not seem overtly discriminatory.49 However, there is clear evidence that the practical operation of the laws has a discriminatory effect upon Indigenous people, especially Indigenous young 34 | Brief October 2015

people.50 Between 2000 and 2013, Western Australia has had one of the highest rates of imprisonment of Indigenous people in Australia.51 In particular, young Indigenous people in this state are detained at rates far higher than the national average,52 are heavily overrepresented at every stage of the youth justice system, and are the most overrepresented at the more punitive stages of the system.53 Between July 2013 and June 2014, young Indigenous people in Western Australia were 52 times more likely than non-Indigenous young people to be in detention - being twice the national average.54 An independent review in 2001 found that mandatory sentencing disproportionately impacted upon Indigenous people by the selection of offences targeted by the legislation (which were more likely to be committed by Indigenous people) and by choices made by police and prosecuting authorities about the processing of individual cases.55 A State Government review found that 81% of the 119 young people sentenced under the three-strikes burglary laws were Indigenous.56 In May 2012, the President of the Children's Court, Judge Dennis Reynolds, speaking extra-judicially, noted that 37 out of the 93 sentenced youths in detention in Western Australia were in detention due to 'third strike' home burglaries.57 It is not clear how many of these were Indigenous youths, however, at that time, 63 of the 93 youths in sentenced detention were Indigenous.58 Further, both the current Judge Reynolds59 and Chief Justice

International bodies have suggested that the disproportionate impact of mandatory sentencing in Australia is discriminatory. Article 1(1) of Convention on the Elimination of All Forms of Racial Discrimination61 (CERD) prohibits any distinction on the basis of race that has either the purpose or effect of restricting the enjoyment of human rights. The Committee on the Elimination of Racial Discrimination has recommended that Australia abolish its mandatory sentencing regimes on the basis that the laws may constitute direct or indirect discrimination.62 The Committee noted that the laws "appear to target offences that are committed disproportionately

by Indigenous peoples", especially for young people, which leads to a "racially discriminatory impact on their rate of incarceration".63 Similarly, the Committee Against Torture has voiced concerns about Australia's compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment64 (CAT). The Committee highlighted that mandatory sentencing 'continues to disproportionately affect indigenous people'65 and recommended that the laws be abolished in Australia.66 In 2012, the United Nations' Committee on the Rights of the Child expressed concern that mandatory sentencing legislation in Western Australia applied to persons under 18 and reiterated its recommendation that the laws be abrogated.67 Article 37 of the Convention on the Rights of the Child68 (CRC) provides that state parties must ensure that the "arrest, detention, or imprisonment of a child ... shall be used only as a measure of last resort and for the shortest appropriate time."

Mandatory sentencing also conflicts with foundational justice principles in the International Covenant on Civil and Political Rights69 (ICCPR). Article 14(5) sets out the right of every person to have a conviction or sentence reviewed by a higher tribunal according to law. By its very nature, mandatory sentencing is not reviewable.70 Article 9(1) of the ICCPR states that detention must not be 'arbitrary'. The Human Rights Committee has reported that mandatory imprisonment legislation in Western Australia has often led to punishments

that were "disproportionate to the seriousness of the crime committed" and raise "serious issues of compliance" with the ICCPR.71

Juvenile Justice, Adelaide, 22-24 September 1992), 88.

8.

ibid.

9.

Lyn Hinds, 'Three strikes and you're out in the west: A study of newspaper coverage of crime control in Western Australia' (2005) 17(2) Current Issues in Criminal Justice 239-253.

Paper, May 2012), 1.

44.

Geoff Airo-Farulla and Steven White, 'Separation of Powers, 'Traditional' Administration and Responsive Regulation' [2004] Macquarie Law Journal 4, 2.

45.

Law Council of Australia, The Mandatory Sentencing Debate (6 May 2014) < http://www.lawcouncil.asn.au/ lawcouncil/index.php/law-council-media/news/352mandatory-sentencing-debate>.

10.

Adrienne Millbank, 'Youth Issues' (Background Paper No 9, Parliamentary Library, Parliament of Australia, 1993), 22.

46.

11.

Neil Morgan, 'Mandatory Sentences in Australia: Where have we been and where are we going' (2000) 24(3) Criminal Law Journal 164, 169.

Palling v Corfield (1970) 123 CLR 52, 10 (Barwick CJ); Kuczborski v Queensland (2014) 314 ALR 528, 236 (Crennan, Kiefel, Gageler and Keane JJ).

47.

Palling v Corfield (1970) 123 CLR 52, 10 (Barwick CJ).

(a) have come about through a mixture of tragic events, sensationalised media and knee-jerk political responses;

12.

Crimes (Serious and Repeat Offenders) Act 1992 (WA) s6(1)(b).

48.

Declan Roche, 'Mandatory Sentencing' (Position Paper No 138, Australian Institute of Criminology, December 1999), 1.

49.

Neil Morgan, 'Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories' [1999] University of New South Wales Law Journal 52.

50.

See, Chris Cunneen, 'Mandatory Sentencing and Human Rights' (2002) 13(3) Current Issues in Criminal Justice 322-327.

51.

Steering Committee for the Review of Government Service Provision, Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2014 (2014), Tables 4A.12.1, 4A.12.4.

52.

ibid.

53.

Amnesty International, There is always a Brighter Future: Keeping Western Australia's Indigenous kids in the community and out of detention (2015), 13, <http:// www.amnesty.org.au/indigenous-rights>.

54.

Australian Institute of Health and Welfare, Youth justice in Australia 2013–14 (2015) Cat No AUS188, Table 2.

TOWARDS COMMUNITY-LED JUSTICE In the author's view, mandatory sentencing regimes in this state:

13.

ibid., sch 2, cl 1.

14.

ibid., ss6, 7.

15.

Jackson, above n 7; Hinds, above n 9.

(b) conflict with international human rights obligations and the doctrine of the separation of powers; and

16.

See, R Broadhurst and N Loh, 'Selective Incapacitation and the Phantom of Deterrence' in R Harding (ed), Repeat Juvenile Offenders: The Failure of Selective Incapacitation in Western Australia, (Crime Research Centre UWA, 2nd ed, 1995, 55.)

(c) have likely (and in the future are likely) to have a disproportionately impact on Indigenous people, especially young people, and such disproportionate impact will also occur under the Home Burglary Bill.

17.

See, Crimes (Serious and Repeat Offenders) Act 1992 (WA) s12.

18.

Western Australia, Parliamentary Debates, Legislative Assembly, 17 September 1996, 5412 (Kevin Prince).

Amnesty International's 2015 report There is Always a Brighter Future72 recommends that mandatory sentencing laws that apply to young people be repealed, and that the government instead take a 'justice reinvestment' approach.73 This includes investing in Indigenous-led and culturally relevant prevention, intervention and diversionary programmes that target at-risk young people and empower communities. Taking such a strategic and holistic approach would, in the author's view, bring Western Australia in line with Australia's international obligations and make communities stronger and safer.

ABOUT THE AUTHOR Tammy Solonec is a Nigena woman from Derby in the Kimberley of Western Australia and the current Indigenous Rights Manager at Amnesty International Australia. Tammy would like to acknowledge the assistance of Amnesty International staff and interns Roxanne Moore, Julian Cleary, Hannah Morris, India Lynn, Richa Malaviya and Ben Dawson.

NOTES • •

20.

Criminal Code Amendment Act (No 2) 1996 (WA) s5.

21.

Lenny Roth, 'Mandatory Sentencing Laws – E-brief' (Research Paper No 1/2014, NSW Parliamentary Research Service, Parliament of New South Wales, 2014), 8.

55.

Morgan, Blagg and Williams, above n 26, 40.

22.

Criminal Code Amendment Act (No 2) 1996 (WA) s5.

56.

23.

DPP v DCJ (a child) (Unreported, Children's Court of Western Australia, 10 February 1997) and DPP v RJM (a Child) (Unreported, Children's Court of Western Australia, 19 March 1997).

ibid., 4-5, citing WA Department of Justice, Review of section 401 of the Criminal Code (2001), 24-25.

57.

Judge Dennis Reynolds, 'Youth Justice in Western Australia – contemporary issues and its future direction' (Speech delivered at Eminent Speakers Series, The University of Notre Dame, 13 May 2014), 19.

58.

Amnesty International, above n 54, 38.

59.

Reynolds, above n 58, 8.

60.

Chief Justice Wayne Martin, 'Indigenous Incarceration Rates - Strategies for Much Needed Reform' (Lecture delivered at Law Society of Western Australia's Law Summer School, Perth, 20 February 2015), 14.

61.

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). Australia ratified on 30 September 1975.

62.

Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on Australia, 56th sess, UN Doc CERD/C/304/Add.101 (19 April 2000) (CERD 2000), [16]; Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on Australia, 66th sess, UN Doc CERD/C/ AUS/CO/14 (March 2005), [20].

24.

See, for e.g., Catherine Fitzpatrick, 'Foss Vows to Act on Jail Law Gaps', The West Australian (Perth) 11 February 1997, 1; David Reed, 'Girl Detained Under 'Three Strikes' Law' The West Australian (Perth) 21 March 1997, 7; see, also, Hinds, above n 9, 246-247.

25.

Neil Morgan, Harry Blagg, and Victoria Williams, Aboriginal Justice Council, Mandatory Sentencing in Western Australia and the Impact on Aboriginal Youth (2001), 5-8.

26.

ibid., 4-5, citing WA Department of Justice, Review of section 401 of the Criminal Code (2001), 24-25.

27.

'Police officer in coma after pub brawl,' Sydney Morning Herald (online), 5 February 2008, <http://www.smh.com. au/national/police-officer-in-coma-after-pub-brawl20080205-1q9h.html>.

28.

The State of Western Australia v McLeod [2009] WADC 35, [2], [13].

29.

ibid.

30.

J Sapienza, 'Police rally outside Parliament House', WAtoday (online), 17 March 2009 <www.watoday.com. au/wa-news/police-rally-outside-parliament-house20090317-90rx.html>.

31.

See, Criminal Code Amendment Bill (No 2) 2013 (WA).

33.

Criminal Code Amendment Act 2009 (WA) ss 4, 5.

For further information, please visit www.amnesty.org.au/action/action/37398/

34.

ibid.

35.

R Spooner, 'Barnett's tough on crime promise', WAtoday (6 February 2013) <http://www.watoday.com. au/wa-news/state-election-2013/barnetts-tough-oncrime-promise-20130206-2dy7n.html>.

2.

Andrew O'Connor, 'Crime looms as a political battleground as Western Australia heads down long road to next election' ABC News (online), 2 March 2015 <http://www.abc.net.au/news/2015-03-01/ crime-looms-as-a-political-battleground-ahead-of-waelection/6269540>.

Richard Court, 'Safer communities important part of Coalition's plan for the future' (Media Release, 28 January 2001); Michelle Roberts, 'WA takes tough action on serious offenders' (Media Release, 16 April 2007); Liza Harvey, 'Home invasions and burglary laws top priority' (Media Release, 19 February 2015).

Brett Le Plastrier, 'Western Australia's Mandatory Sentencing Laws and Australia's International Legal Obligations' (2005) 3(2) Dialogue e-Journal 1, 5.

5.

Anthony Mason, 'Mandatory Sentencing: Implications for Judicial Independence' (2001) 7(2) Australian Journal of Human Rights 21, 25-26.

6.

Julian Cleary, Three Strikes and You're Out: Mandatory Sentencing in WA (24 February 2015), Amnesty International Australia <http://www.amnesty.org.au/ indigenous-rights/comments/36651/>.

7.

Hal Jackson, 'Juvenile Justice - The Western Australian Experience' (Paper presented at National Conference on

63.

CERD 2000, [16].

64.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). Australia ratified on 8 August 1989.

65.

Committee against Torture, Concluding observations on the fourth and fifth periodic reports of Australia, 53rd sess, UN Doc CAT/C/AUS/CO/4-5 (23 December 2014), [12].

66.

ibid.

67.

Committee on the Rights of the Child, Concluding Observations: Australia, 60th sess, UN Doc CRC/C/AUS/ CO/4 (28 August 2012), [84].

68.

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Australia ratified on 17 December 1990.

69.

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Australia ratified on 13 August 1980.

70.

Cunneen, above n 51, 323.

71.

Human Rights Committee, Concluding Observations: Australia, 69th sess, UN Doc CCPR/A/55/40 (28 July 2000), 3.

Explanatory Memorandum, Criminal Code Amendment Bill 2008 (WA), 1.

32.

Megan Davis, 'Mandatory Sentencing and the Myth of the Fair-Go' (Paper presented at the 4th National Outlook Symposium on Crime in Australia, New Crimes or New Responses, Canberra, 21-22 June 2001), 2.

4.

Hinds, above n 9, 248.

This article was first published in the Indigenous Law Bulletin 8(18) 2015.

1.

3.

19.

36.

Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 (WA) (Home Burglary Bill 2014) cl 20.

Lisa Harvey and Michael Mischin, 'State Govt delivers toughest home invasion laws' (Media Release, 12 March 2014).

37.

Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 (WA) (Home Burglary Bill 2014) cl 20.

38.

See, Home Burglary Bill 2014, cl 21(5)

39.

DPP v DCJ (a child) (Unreported, Children's Court of Western Australia, 10 February 1997).

40.

See, Home Burglary Bill 2014 cls 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18.

41.

Joint statement to the Western Australian Government on the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014, 18 March 2015, <http://www. amnesty.org.au/images/uploads/about/Home_Burglary_ Bill_joint_statement.pdf>.

42.

Parliament of Western Australia, Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014, <http://www.parliament.wa.gov.au/parliament/ bills.nsf/BillProgressPopup?openForm&ParentUNID=CA 0C0F1C2399A1EE48257C99000DB9C3>.

43.

Mason, above n 5, 25-26; Queensland Law Society, 'Mandatory sentencing laws – policy position' (Position

72.

Amnesty International, above n 54.

73.

ibid., 20-21; see, also, Mick Gooda, Australian Human Rights Commission, Social Justice and Native Title Report 2014 (2014), 102-116.

35

Legal Ethics: Navigating the daily minefields The Hon Justice Kenneth Martin Address to law students in the Legal Theory and Ethics Course at the University of Western Australia Monday, 17 August 2015

According to the Shorter Oxford English Dictionary, the word 'ethic' derives from the Greek, and relevantly refers to: the moral principles or system of a particular leader or school of thought; the moral principles by which any particular person is guided; the rules of conduct recognised in a particular profession or area of human life.

A study of legal ethics, or ethical principles, arises in the context of your legal studies and perhaps intended entry into the legal profession in due course.

There has been a modern recognition of the fundamental importance of ethical conduct in the practice of law. Hardly a week or month goes by where there is not a reference to some aspect of ethics relevant to an aspect of legal practice. So, for instance, in the current issue of the Law Society's monthly magazine Brief, August 2015, there is a comprehensive article concerning the ethical and legal obligations in mediations and other negotiations by Stephen Standing: see pages 21 to 26 of the Brief magazine.

The requirements for entry into the legal profession in Western Australia are governed by the Legal Profession Act 2008 (WA). In order to be admitted to practice it is necessary to demonstrate that a number of prerequisite requirements have been met.

The completion of legal studies is only one aspect of those requirements. It is fundamentally necessary to demonstrate that the candidate is a 'fit and proper person' to be admitted as a legal practitioner. This must be demonstrated to the satisfaction of the Legal Practice Board of Western Australia and then to the paramount admitting authority, the Supreme Court of Western Australia: see sections 26(1)(a)(ii), 30(b)(ii) and 31(1)(a) (ii) of the Legal Profession Act 2008. The meaning of 'fit and proper person' is not defined in the Legal Profession Act. Its meaning is left to a vast body of common law.

36 | Brief October 2015

Once admitted to the roll of legal practitioners there is more to be done in order to lawfully practise law. It is necessary for the legal practitioner to obtain an annual practice certificate and keep that practice certificate current.

Failure to do that is an offence: see section 5(2), section 12 and section 37 of the Legal Profession Act 2008. In order to keep current an annual practice certificate, annual minimum legal education requirements need to be met by the practitioner each year. One of the fields of study to be completed each year is in the field of legal ethics. It is such a broad topic that it extends its reach to all areas of legal practice.

As a part of the annual continuing legal education requirements, each year there needs to be completed an aspect of study undertaken in relation to a field of legal ethics. There is no shortage of opportunities to participate in programmes conducted by continuing legal education providers throughout Western Australia, including by the Law Society of Western Australia and from other private recognised education providers, to enable your compliance with those minimum annual continuing education conditions.

So life in the legal profession is part of a lifetime of education.

My introductory point is that the ongoing study of legal ethics is likely to be a necessary feature of your continuing education for those who enter and remain in legal practice in Australia for the whole period of your professional lives.

UNIQUE ASPECTS OF LIFE AS A LEGAL PRACTITIONER In my 2012, Australian Bar Review published article "Between The Devil And The Deep Blue Sea: Conflict Between Duty To The Client And Duty To The Court" (vol 35, 3 Australian Bar Review, page 252), I discussed one aspect of the somewhat unique responsibilities of a legal practitioner. That was concerning

a practitioner's paramount duty to the court over that of the practitioner's duty to the client. That obligation is seen enshrined under the Legal Profession Conduct Rules 2010 (WA), made pursuant to the Legal Profession Act: see rule 5 of the Conduct Rules. It is found at Part 2 under the heading 'Fundamental Duties Of Practitioners'. It may be contrasted with rule 6 concerning clients and others, which follows. I will set them both out: Part 2 Fundamental Duties of Practitioners 5. Paramount duty to court and administration of justice

A practitioner's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty, including but not limited to a duty owed to a client of the practitioner.

6. Other fundamental ethical obligations (1) A practitioner must (a) act in the best interests of a client in a matter where the practitioner acts for the client; and (b) be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for the client; and (c) deliver legal services competently and diligently; and (d) avoid any compromise to the practitioner's integrity and professional independence; and (e) comply with these rules and the law.

(2) A practitioner must not engage in conduct, in the course of providing legal services or otherwise, which (a) demonstrates that the practitioner is not a fit and proper person to practise law; or (b) may be prejudicial to, or diminish public confidence in, the administration of justice; or (c) may bring the profession into disrepute.

The position of a legal practitioner (barrister or solicitor) is therefore wholly unique among other professionals. This was recognised by Justice McHugh in the High Court in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, [111] - [113], which I refered to in the 'Deep Blue Sea' article at page 257. In short, his Honour said: Thus, in many situations arising in the conduct of litigation, the common law requires an advocate to act contrary to the interests of his or her client. I doubt if there is any other profession where the common law requires a member of another profession to act contrary to the interests of that person's client ... [t] his factor alone is probably sufficient to preclude reasoning by analogy from the liability of other professions and occupations for negligent conduct.

FUNDAMENTALS OF THE JOB Legal ethics are indispensable to navigating the daily challenges of legal practice. But any attempt at a comprehensive written codification is likely to fail. Real ethical problems are invariably subtle. Few legal practitioners are likely to be troubled by the question of whether or not it is permissible to steal moneys from a client's trust account.

Anyone troubled by the negative answer to that question does not have a future anywhere - let alone in the law.

The ethical problems that emerge in legal practice are usually more nuanced.

What I propose to do in this paper is to briefly examine the underlying factual scenarios in three different classes of case - which I will briefly discuss - where legal practitioners have struck troubled waters.

Towards that analysis, it may nevertheless be helpful to keep the following five fundamental aspects of legal practice in mind: (a) As already mentioned, the legal

practitioner owes their paramount duty to the court. Where that duty conflicts with the interests of the client, then it is clear that those client interests are always secondary considerations. That, of course, does not lessen the importance of the responsibilities to a client. (b) At base the legal practitioner/ client relationship is almost always contractual. The legal practitioner will owe the client a duty of reasonable care to exhibit proper levels of skill and competence in discharging their duties. But beyond the contractual relationship there is a lot more. As you would know, the solicitor/client relationship is fiduciary in character. The legal practitioner owes obligations of loyalty and fidelity to the client.

The interests of the client always come before those of the lawyer.

The confidential legal professional privilege that is enjoyed by the client over legal advice in the relationship can only be waived by the client, never by the lawyer. Conflicts of interest, even potential, must be avoided. Full and frank disclosures must be made in appropriate circumstances to the client of any factors that could detract from the lawyer acting 100% in the client's interests. I could also add in this area the duty imposed by statute - not to engage in misleading or deceptive conduct in trade or commerce. Any failure to respect these responsibilities is likely to be viewed seriously by the regulatory authorities of the legal profession and by the court. (c) A third feature I mention could be bracketed with the second as regards client duties and responsibilities - but it is so fundamental I have separated it out for a special mention. It is the duty of confidentiality which you owe to keep from disclosure the information given to you by a client as well as your advice to the client.

This duty of confidence is wider than just catching the privileged legal advice you give. It covers all of what you learn in the lawyer/ client relationship, save for what is in the public domain. Respecting this duty of confidence to your client will inevitably render you a boring person - in terms of what you can tell friends about your professional day at the office. The truth is not that much. In these days of social media addiction, it will be a challenge to many to respect this duty of client confidentiality.

(d) Nevertheless, it would be naïve to suggest that the practice of law is not implemented otherwise than in accordance with sound business practices. Lawyers are permitted to charge for their services. Clients are expected to pay, generally speaking. There is a measure of regulation in that respect but, subject to those constraints, market forces prevail. Some legal practices are incorporated. This is permitted by the Legal Profession Act. Some legal practices are even listed on Stock Exchanges for the purpose of inviting subscriptions of share capital from the investing public. There is an industry built around providing litigation funding to plaintiffs for the pursuit of actions to trial, with a share of any success proceeds being enjoyed by the litigation funder. Balancing these mercantile interests against the earlier mentioned obligations will present the legal practitioner with daily challenges. In that environment, the knowledge and application of sound ethical principles is indispensable to professional survival. (e) As a legal practitioner, you are privileged to be admitted to a highly trusted and respected position in one of the ancient learned professions. To protect the community, only persons of good character will be accepted to daily legal practice. The privilege of admission to practice also carries with it wider responsibilities for the maintenance, education and good standing of the legal profession itself, the welfare of fellow professionals and to the wider community. Those features and obligations serve to distinguish a learned profession from a commercial business.

I now wish to examine the facts of three sets of cases to consider what they display about a legal practitioner's ethical implications, in a more pragmatic than theoretical context.

THREE SCENARIOS Case study A The first case study concerns the State Administrative Tribunal of Western Australia's recent determination and orders, made in respect of a Legal Profession Complaints Committee of Western Australia (LPCC) complaint concerning the practitioner Mr M, VR 112-215.

The complaint was resolved by a settlement, on the basis that 37

the practitioner accepted he had transgressed by acts of professional misconduct concerning conduct involving his girlfriend/fiancée/wife - Ms T, who had become a legal practitioner at a different firm.

Mr M in the end, accepted a penalty of a four-month suspension of his annual practising certificate and he agreed to pay the LPCC's costs of bringing the complaint, fixed in the amount of $12,000. As the matter was effectively settled, there are no published reasons of the SAT panel comprising President Curthoys and Senior Member Spillane and Member O'Connor.

From an ethical viewpoint, the underlying facts are almost bizarre. The practitioner was a senior associate at the material times employed by his law firm, A. His girlfriend/fiancée/wife was employed at another Perth commercial law firm, D. Whilst they were engaged at separate commercial law firms in Perth, Ms T often sent the practitioner email requests for assistance with her legal tasks at her firm. She would send him copies of correspondence and other documents, thereby disclosing information that was highly confidential within Ms T's firm concerning its clients, or was even the subject of legal professional privilege as advice given in favour of the clients of Ms T's firm. The practitioner was aware of the ongoing disclosures being made to him of confidential or privileged information by his girlfriend.

For the purposes of assisting her with her requests, the practitioner would often send her copies of correspondence and documents that disclosed information confidential within his firm, or to its clients being the subject of legal professional privilege in favour of the clients of law firm A. As part of the private assistance which he rendered Ms T in response to her requests he: (i) drafted or settled her correspondence; (ii) drafted, or procured others to draft, research memoranda; (iii) drafted, or settled, her pleadings, affidavits or other court documents and did so in the knowledge that Ms T would represent to her firm that the material which she had received back from Mr M and others at law firm A, was her own work.

In the course of providing assistance he would also routinely provide Ms T with: (i) precedents; (ii) internal legal research memoranda; and 38 | Brief October 2015

(iii) professional development documents which were all the property of law firm A and provided without the permission of anyone at law firm A in this conduct.

Mr M also from time to time provided Ms T with: (i) copies of journal articles; (ii) copies of reported and unreported cases; and (iii) copies of statutes when he knew this was unauthorised.

Further acts of professional misconduct which were admitted included having other employees of law firm A, such as seasonal clerks, graduate lawyers, and other legal practitioners undertake legal work for the benefit of Ms T, including the undertaking of research and the provision of written advice. All this happened without the knowledge of anyone at law firm A. On occasion, misrepresentations were made to employees of law firm A about the purpose of legal work that was being undertaken when it was, in fact, for the purpose of being provided to Ms T. Employees of law firm A were told (falsely) by the practitioner that: (i) the work they were doing was for a prospective client of the practitioner's firm; or (ii) the legal work they were doing was a pro bono matter being conducted by law firm A; or (iii) that a matter number would be provided at a later time for the recording of time spent undertaking the legal work commissioned at law firm A by Mr M. That was all false. A moment's pause would surely recognise the deceitfulness of this conduct.

Further, professional misconduct included providing property of law firm A to Ms T, including items of stationery, work trays, a magazine holder, pen holder, assorted bulldog clips, a single hole punch, coloured post-it notes, a card holder, an eraser and pens.

From time to time the practitioner also utilised the printing and other facilities of his law firm A without its knowledge or permission in order to: (i) print copies of legislation for Ms T; (ii) print copies of cases, journals or other legal documents for Ms T; (iii) print personal documents for Ms T such as travel itineraries and, bizarrely, even their engagement

invitations.

One of the more extraordinary acts by the practitioner was his utilisation of the firm's facilities without permission to 'post out the engagement party invitations utilising the practitioner's firm mail system and facilities such that the practitioner's firm paid for the postage in respect of the invitations'.

Yet a further ground of professional misconduct concerned a scenario where law firm A and Ms T's firm were on opposing sides of District Court litigation.

In the course of that aspect of professional misconduct the practitioner had actually settled a letter of advice for Ms T which was intended to be sent out to her client, the plaintiff, in respect of those proceedings. This was in circumstances where law firm A acted for the defendant.

Later, during the development of that action, Mr M sent Ms T by email a copy of a letter of an offer of compromise in respect of the proceedings.

Analysis The underlying facts are unusual, indeed bizarre. This was no 'Adam's Rib' situation - referring to the 1949 Spencer Tracey and Katharine Hepburn classic film.

The present facts display, very tragically, in my view, a basal violation of numerous professional conduct obligations that ought to have been blindingly obvious to a clear-headed, right-thinking legal practitioner. Vital considerations such as client confidentiality, conflict of interest, basic truthfulness and honest dealing, all seem to have been ignored.

In the end, this legal practitioner was fortunate to have only received a fourmonth suspension of his practice certificate. He is under the care of a clinical psychologist, deeply remorseful about and very ashamed of his conduct.

His employment future is now uncertain.

This is tragic. Nothing has emerged to date concerning a penalty, if any, administered to his girlfriend/wife.

Perhaps the excuse was that the practitioner was youngish and was blinded by love. That is a segue to a discussion of case study B. Case study B - LPCC v Love [2014] WASC 389 (Full Bench, Supreme Court of Western Australia, Beech J, Kenneth Martin J, Edelman J) This is another very sad case for a relatively young lawyer. Mr Love, who was a legal practitioner, was struck off under a decision of the Full Bench of the Supreme Court of Western Australia

delivered on 28 October last year.

The basis for the striking of Mr Love from the roll of legal practitioners had involved an elaborate scheme, under which he had caused a web site designer to create a web site called 'applyforlegalaid. com'. The web site contained a form that appeared as a document entitled 'Legal Aid Application Form'. It looked extremely similar to an actual legal aid application form. It had the Legal Aid logo. But when a person completed the form online and submitted it, they were being effectively misled into thinking that they were sending their application for legal aid to the Legal Aid Commission of Western Australia. In fact, their completed form was transmitted by email to Mr Love. He would then complete the form adding or guessing at further details and he would then submit it online to Legal Aid himself but with, significantly, Mr Love's own law firm being designated as the nominated firm by the applicant to receive this legal aid assignment, if it was granted.

In filling out the form before a following online submission by him to the Legal Aid Commission, Mr Love added extra information. Part of this falsely stated that the individual concerned had consulted with him and, further, that Mr Love was of an opinion that the application had legal merit. Moreover, Mr Love inserted answers to a number of questions on the form where he had not received any information from the individual applicant - who knew nothing of Mr Love's involvement.

Nevertheless, Mr Love submitted the online form to Legal Aid, knowing that it contained a declaration on behalf of the individual that the submitted information was true and correct - albeit Mr Love had not, given the deceit, received any such information from the individual. As to that, see the reasons at [1], [8] and [10].

Almost inevitably, the deceitful scheme came to light. Ms P had completed the online form, thinking that it was an online application by her directly to the Legal Aid Commission for assistance in a family law matter. She then received a communication from the Legal Aid Commission advising her that she had been refused legal aid and telling her that her chosen lawyer (Mr Love) had been advised of that refusal decision. She was astonished, having never before heard of Mr Love. Findings of professional misconduct contrary to s403 of the Legal Profession Act 2008 were made by the SAT: see [2011] WASAT 13 and [2014] WASAT 84, with a recommendation to the Supreme Court that he be struck from the roll of legal practitioners in Western Australia. That result carried knock on disqualification consequences against interstate legal practice.

Analysis A moment's clear thought about the nature of this online scheme by the practitioner should have led him to appreciate that using a similar application form and a Legal Aid logo on this web site form which he had caused to be created (without permission), was

likely to be misleading. Worse than that, Mr Love would then receive the applicant's highly confidential personal information by way of an unwitting disclosure by someone filling out the form concerning their private legal affairs and requesting legal aid. This was all in circumstances where the practitioner had not been even spoken to, let alone been engaged as that person's legal practitioner. The deceitful nature of the online scheme also caused the practitioner to receive an advantage in respect of his possibly being allocated a legal aid assignment as the falsely (self) nominated legal practitioner for the job as opposed to merely being a member of a Legal Aid panel who was randomly allocated legal aid assignments from time to time.

It is, of course, tough and competitive in daily private practice. Many lawyers just scrape by. Many don't survive in increasingly challenging times. But the very nature of this practitioner's scheme was inherently likely to mislead and deceive a person about who they were actually dealing with. Furthermore, false statements were then deliberately submitted to the Legal Aid Commission after an intervention of the practitioner.

The practitioner could also hardly be in a position to express a legitimate opinion about the merits of such cases for an allocation of legal aid: see par [10] of the Full Bench's reasons.

A very sad tale of long hours, stress and depression emerged - as is frequently the case in such matters. But, as the Full 39

Bench said at [63]: A diagnosis of depression does not, in itself, automatically excuse or mitigate professional misconduct.

Apart from anything else, it cannot be assumed that the suffering of any mental illness, including depression, is a cause of any professional misconduct, particularly conduct involving dishonesty. Further, the protective function of these proceedings must be borne in mind, particularly where, as here, the professional misconduct involves dishonesty.

The Full Bench of the Supreme Court exercises a protective function for the community - not a punitive jurisdiction over members of the legal profession.

This was a sad case. In all the circumstances, however, the nature of this deceitful conduct was essentially incompatible with being assessed as a fit and proper person to remain as a member of the legal profession. The practitioner's name was struck from the roll of practitioners.

A proper appreciation of the underlying ethical responsibilities of fidelity to a client's interests would have prevented this sad outcome for a relatively young practitioner. The lesson is that slick schemes, half‑truths and nondisclosures of information are always bad choices.

Case study C The third case study contrasts effectively two distinct outcomes in the context of legal conflicts of interest for scenarios of 'changing sides'. The two cases I contrast are, first, Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467, then the more recent second case Ismail-Zai v Western Australia [2007] WASCA 150; (2007) 34 WAR 379.

The latter decision sees a comprehensive discussion by then President Steytler of the Court of Appeal and Justices of Appeal Wheeler and Acting Justice of Appeal Heenan, concerning an appeal against conviction.

This was a somewhat unusual case where the accused had faced a charge in the District Court of aggravated robbery with violence. He gave evidence at his trial and he was cross-examined.

Essentially, his defence was one of his misidentification.

It emerged after all the evidence had been completed and the jury had retired that the complainant had then informed his counsel that he had been 'nervous' whilst giving evidence because he 40 | Brief October 2015

came to realise that the prosecutor at his trial, a Mr Huggins, had previously represented him some 20 months earlier, and 'knew all about his background'.

The accused said that he had not at first recognised the prosecutor at the District Court trial (as the prosecutor had been robed and was wearing a wig - in those days). An application for a discharge of the jury was refused by the trial Judge at the time in the District Court. The prosecutor fully accepted that about two years previously he had appeared for the accused in the Court of Petty Sessions.

He had then made submissions on a plea of mitigation following pleas of guilty to 10 charges of fraud, three charges of stealing and three driving offences. That was all over about 20 months before the appellant's trial. However, the accused did not pay his account to Mr Huggins. It went to debt collectors.

Consistently with the purpose of the pleas in mitigation, the accused said that he had at the time earlier disclosed to his lawyer (later his prosecutor) information about his education, work earnings and family circumstances, and how he was 'not a thief'. The trial Judge had refused to discharge the jury. In the end, the jury convicted. There was an appeal on this conflict ground. It failed.

The Court of Appeal's reasons contain an extensive consideration of the aspects of a legal practitioner's fiduciary duty of loyalty, in a context of assessing whether it can survive the termination of a retainer. Usually, it does not. As part of that assessment, an evaluation of the use of the information imparted to a legal practitioner in circumstances of confidentiality, arose.

The Court of Appeal rejected the contention that there had been a miscarriage of justice. But Justice of Appeal Wheeler at [53] said: I would unhesitatingly accept that the conduct of a prosecution by counsel who had previously acted for an accused could well give rise to a miscarriage of justice. Even where no specific confidential information is relevant, and even where nothing in the transcript suggests that an accused has not been able to give a good account of himself, in my view, the trial would be unfair if the prosecutor were able to crossexamine from a 'position of unfair superiority'.

In the circumstances, however, no member of the court thought that the line had been crossed in that case. The prosecutor had failed to remember the appellant. The inability to recognise the former client emphasised the brevity of

their previous connection.

Wheeler JA also said at [54]: However, whether there is such an unfairness depends upon the nature and degree of previous familiarities.

It cannot arise from every former retainer, however brief, remote in time, or unrelated in subject matter.

That decision may be contrasted with Fordham's case in 1997, where the line was found to be crossed. The appellant had effectively moved from representing one accused to represent a different accused, within a relatively short period of time concerning the same trial. She then conducted a cross‑examination of the first accused about his financial affairs and prior convictions. It was contended the cross-examination had not used confidential information obtained from the accused when he was initially her client but, rather, was based on information supplied by a newspaper reporter during the trial and from other sources which were public. There was a finding of unprofessional conduct by the practitioner continuing to act for the second accused client as she knew or ought to have known that there was a conflict of interest between T and P and that a duty to each was likely to conflict.

Analysis In Fordham's case, there emerged issues concerning the use of confidential information given to a practitioner by a former client to advance the interests of a new client, to the detriment of the first.

Again, an appreciation of the stringent fiduciary duty of fidelity and loyalty owed by a fiduciary to the person whose interests they undertake to advance over their own would have resolved this ethical problem. Fordham's case was referred to the Court of Appeal in IsmailZai, but was distinguished: see par [24] per Steytler P and par [71] per Heenan AJA. Sometimes the line is grey. That is particularly so in so-called 'Chinesewall' situations that you will no doubt encounter if you enter practice.

That completes the three case studies.

THE IMPORTANCE OF FITNESS AND PROPRIETY AND THE ADHERENCE TO ETHICAL PRINCIPLES In the 'Deep Blue Sea' article I made a reference to a very frequently mentioned High Court authority, Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286 (at page 256) of the article. I cited the observations of Kitto J about the importance of barristers as functionaries in the legal system. Even though they are well known, they are worth revisiting

frequently in your future professional lives.

article. But this is a significant privilege recognised in Australia, which is not enjoyed by other professionals.

Sir Frank Kitto said, as regards barristers and advocates, that: ... A barrister is more than his client's confidante, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. [The barrister] is, by virtue of a long tradition, in a relationship of intimate collaboration with the Judges, as well as with ... fellow members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations.

Sir Frank's observations are made in respect of advocates. I appreciate that apart from your (hopeful) admission day, many of you may never see the insides of a court room. That does not in any way diminish the responsibilities which you owe on a paramount basis to the court in the overall administration of our justice system.

•

•

Again from a litigation perspective, the compulsive processes which a lawyer may responsibly cause to be exercised on behalf of the client, including the compelling of the production of documents under subpoena, the compelling of a party's adverse documents through the discovery process, the ability to obtain Mareva injunctions, now called 'freezing orders': see Rules of Supreme Court O 52A.

•

Even more intrusively, the obtaining of a search and seizure order, formerly known as an Anton Piller order, now regulated under O 52B of the Rules of the Supreme Court.

The exercise of those powers could easily trample across the rights of ordinary citizens if abused. But the law recognises that sometimes it is necessary to allow this in the pursuit of just outcomes in litigation.

Sir Frank Kitto's observation about more being required than simply honesty, learning and forensic ability is a very challenging daily threshold. Clearly, it is a threshold that is impossible for some.

The remarks focus upon a context of exceptional privileges and thereby a correlative exceptional responsibility that goes with those privileges of a practising lawyer. I mention in brief passing the following privileges by way of dot points: •

There is an absolute immunity against liability for defamatory statements which are uttered in court as enjoyed by a legal practitioner. The scope of that privilege is recognised as necessary for the lawyer to do their job properly. This can only be entrusted to those who do not abuse the privilege.

•

An immunity of the advocate for incourt professional negligence, as was explained in D'Orta-Ekenaike (supra). The policy considerations underlying that immunity in terms of the task being undertaken are explored in the 'Deep Blue Sea'

In the context of the daily practice of criminal law the entitlement to cross‑examine complainants, including children in sexual assault cases, indeed, the lawyer's power to cross-examine witnesses generally, is of such an intrusive and possibly destructive character that it cannot be entrusted to those who are not accountable and will not accept

the ethical responsibilities and limitations that are associated with its proper and responsible use.

•

Finally, I mention a legal practitioner's ability in the context of civil litigation through court pleadings to put on a public record (potentially accessible by all) allegations of the most serious kind - again in a context where there is an absolute privilege against defamation within that process.

The conferral of rights to invoke these powers can only be entrusted to those who can be relied upon to exercise them responsibly. For the context of serious allegations, I dealt with that issue in a subsequent paper entitled 'Lawyers' Duties To The Court "Between The Devil And The Deep Blue Sea Part 2"' in an address to the Australian Lawyers' Alliance. A link to that paper can still be found on the Supreme Court web site: see http://www.supremecourt. wa.gov.au/S/speeches_2012. aspx?uid=8428-9927-7921-9697.

CONCLUSION It has been a pleasure to deliver the address this afternoon to a group of young and emerging potential professionals. I hope to have conveyed a message that the understanding and respect for legal ethics is not some old-fashioned adherence to upholding antiquated principles of an establishment. Rather, they are an essential daily tool to guide you safely through the tempests and pestilence that will inevitably arise for you to navigate in the professional years ahead. Good luck!

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41

case notes

Young Lawyers Case Notes – Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee -

Canny v Primepower Engineering Pty Ltd [2015] WADC 81 Tort – personal injury – employer's duty of care when alcohol being consumed at a birthday party at work premises – duty to supervise appropriately – contributory negligence by employee.

Primepower's managing director, Mr Allan, threw himself a birthday party at Primepower's workplace. The party occurred on a workday commencing at approximately 11:00am. Mr Allan provided 11 kegs of beer ($3,000 worth) for the staff members to consume during the party. Shortly after the party commenced, Primepower's apprentices decided to try to 'seize' a disused diesel engine (or to run it faster to the point of failure). The engine had been running all afternoon without seizing. At around 7:00 pm, a 20-litre jerry can of petrol was produced.

Mr Canny, a Primepower employee, under the influence of alcohol, decanted some petrol into an open container which he was holding when a fireball unexpectedly flew from the engine. Mr Canny suffered burns to 60% of his body.

Mr Canny sued his employer for negligence and breach of statutory duty.

Primepower denied liability; alternatively, it pleaded contributory negligence by Mr Canny. By third party proceedings, Primepower sought cover under its employers' indemnity policy, held with Allianz. However, Allianz denied it was required to indemnify Primepower as the latter had breached the terms of its indemnity policy by failing to take 'reasonable precautions' to prevent workplace injury.

Stewart DCJ concluded that Primepower failed to discharge its duty to provide a reasonably safe place and a safe system of work, thereby breaching its duty of care owed to Mr Canny.

As to the steps that should have been employed to avoid the risk of harm, her Honour held that the activity with the engine should not have been allowed, and in the event that any such activity was ever contemplated, the staff should 42 | Brief October 2015

not have been permitted to consume alcohol and adequate supervision was essential. In relation to the consumption of alcohol, Stewart DCJ distinguished between one beer drunk after work from a celebration involving 11 kegs consumed over an 8-hour period (which was what had occurred in this case). Mr Canny was found to have negligently contributed to his injuries to a degree of 15%.

Stewart DCJ ultimately concluded that, in all the circumstances, Primepower failed to comply with the 'reasonable precautions' clause of its policy and thus, was not entitled to indemnity from Allianz. Consequently, Primepower was effectively uninsured and required to compensate Mr Canny for his injuries.

This case provides an up-to-date illustration of the application of general principles regarding an employer's duty of care, statutory duties, contributory negligence and third party insurance.

Author anonymous

Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2015] WASC 237 Construction Contracts Act 2004 (WA) – adjudication – powers of adjudicator – duty to form opinion as to whether payment dispute existed – duty to apply logical reasoning – erroneous reasoning may not amount to jurisdictional error – certiorari – leave to enforce adjudicator's determinations as judgment of the court.

Facts In February 2014, Samsung C & T Corporation (Samsung) and Laing O'Rourke Australia Construction Pty Ltd (LORAC) entered into a contract (Subcontract) that provided for LORAC to undertake construction work. In February 2015, Samsung terminated the Subcontract for convenience and entered into an 'Interim Deed', which provided for Samsung to make certain payments to LORAC, including a liquidated sum of $45m.

Subsequent to the payment of that $45m, an adjudicator appointed under the

Construction Contracts Act 2004 (WA) (the Act) made two determinations with the combined effect that Samsung must pay LORAC a total of $44,140,518.

Samsung sought the issue of writs of certiorari to quash the adjudicator's determinations for jurisdictional error.

LORAC sought leave to enforce the determinations as judgments of the court.

Summary Mitchell J granted certiorari to quash the determinations and refused leave to enforce the determinations in the same manner as judgments of the court. There were three main issues to be determined in the reasons for judgment.

The first issue was whether the first of the determinations should be quashed because there was no payment dispute, or alternatively because the adjudicator did not properly form an opinion that there was a payment dispute. Mitchell J found that s6(a) of the Act should be construed as providing that a payment dispute arises when a payment claim is rejected or disputed, even if the time for payment under the construction contract had not yet arisen. This interpretation of s6(a) was preferable because it gave meaning to all of the words in the provision and better achieved the purpose of the legislation, which is the speedy resolution of disputes.

The second issue was whether both determinations should be quashed because the adjudicator failed to exercise or understand his adjudicative function, adopted illogical and irrational reasoning, or made an unreasonable decision.

Mitchell J found that the adjudicator failed to exercise or understand his adjudicative function and so committed jurisdictional error. The adjudicator failed to resolve the payment disputes by reference to the terms of the Subcontract before him, thereby misapprehending the nature of his function. Not every error by an adjudicator in the interpretation of a construction contract is, however, a jurisdictional error. It was unnecessary to resolve the question of whether the reasoning of

case notes the adjudicator 'manifested illogicality or irrationality', or that the determinations were 'so unreasonable in result that no reasonable adjudicator would have so considered'.

The third issue was whether leave to enforce the determinations should be refused because the determinations were invalid, or because the payments on account required by those determinations had already been made under the Interim Deed. The court ought to grant leave to enforce a determination of an adjudicator as a judgment of the court, unless it is satisfied that a valid reason exists to refuse leave. Leave to enforce the determinations as judgments was refused because they were invalid, and because the payment required by those determinations had already been made under the Interim Deed.

Author: Jennifer Solliss, Lawyer at Minter Ellison; Member, Human Rights and Social Justice Working Group

THE OWNERS OF CERESA RIVER APARTMENTS STRATA PLAN 55597 and HAINES [2015] WASAT 72 Strata Titles Act 1985 (WA) – Short-stay accommodation – Not defined in Act – Meaning of 'residence', 'residential

lot', 'occupancy rights' and 'residential tenants' – Ordinary meaning of words.

'occupancy rights' must be interpreted within the context of 'residence' and 'residential tenants'. It considered that 'occupancy rights' in this context means the rights exercised by 'residential tenants' to reside or take up a tenancy or utilise accommodation. The SAT held that such rights are linked to the intention to stay long-term and make the lot home, or to use it as an abode.

The parties owned lots in a strata complex. The respondents were letting out their lots as short-stay accommodation.

The applicant sought an order from the respondents to cease renting out their lots for this purpose. Relevantly, by-law 16 provided that:

The Tribunal considered that the requirement in the by-laws that each 'residential tenant' receive a copy of the by-laws of the strata scheme - so as to understand his or her rights and responsibilities within the scheme - was a further example that the meaning and context to the words 'residence', 'occupancy rights' and 'residential tenant' intentionally exclude short-stay occupants.

16.1 ... a proprietor of a residential lot may only use his lot as a residence.

16.2 Notwithstanding bylaw 16.1 a proprietor of a residential lot may: 16.2.1 grant occupancy rights in respect of his lot to residential tenants; The terms 'residence' and 'residential tenant' are neither defined in the relevant by-laws, nor the Strata Titles Act 1985 (WA). In the absence of statutory definition, the SAT considered the ordinary meaning of the words. The SAT found that these words entail a sense of permanence, a place of abode, or a place the occupant intends to call 'home' for a substantial period of time.

The SAT ordered that the respondents not utilise their lots for short-stay accommodation.

Author: Ray Christensen, Solicitor at Zilkens and Member of the Young Lawyers Committee

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43

book review

Book Review Preventing Violence in Australia: Policy, Practice and Solutions Edited by Andrew Day and Ephrem Fernandez1 Review by the Hon Peter Dowding SC

Is 'The Lucky Country' beset by violence? Recent media campaigns directed at reducing violence in our community are testament to the public's concern about this question. Horrific one-punch deaths, methamphetaminefuelled psychotic killings and an increased public debate about domestic and family violence fill the news media and social networks. Yet there are more fundamental questions that can be posed. Why is there so much violence?

Are we different from other societies?

Are there reduction strategies? Is there a 'one size fits all' mechanism to reduce this phenomenon? Indeed, is violence in Australia a phenomenon or just the ordinary course of a society?

Knowing I had to review this book on my return from a holiday overseas, I reflected on these issues as I sat under a shady tree in a square in Brussels as hundreds of people drank and talked the evening away without the slightest hint of alcohol-fuelled aggression - not even raised voices. Perhaps there is a view of violence in Australia that comes from the old image of the ordinary bloke settling an argument out the back of the pub, or from some belief in male aggression being a sign of manhood.

Certainly, some of our politicians adopt the pugnacious, verbal approach to disagreement - the determination to 'shirt front' the leader of the one of the world's most powerful nations does have a ring of the macho about it!2 And the current debate and demonstrations about racism also create a very contemporary reason to contemplate what gives rise to community violence.

From a practical viewpoint, the questions that confront us are, of course, whether we care sufficiently to want to do something about the level of violence in Australia and, if we are to take the issue seriously, from where does the

44 | Brief October 2015

violence spring and what avoidance methods are appropriate: are they educational, spiritual or political; or are the solutions punitive and legal? Do we need to have an understanding of what levels of violence we experience in the community, how this violence affects our community and what solutions might enable us to build a truly civil society?

A recent book, Preventing Violence in Australia: Policy, Practice and Solutions, published by Federation Press and edited by Professors Andrew Day and Ephrem Fernandez, challenges our understanding of violence and underpins an important conversation about many areas in which violence impacts our community.

Sixteen separate contributors provide in-depth analyses of areas in which violence is endemic; examining the issue from the point of view of perpetrators and victims and tackling areas such as the effects of drug use and mental health problems, crime, bullying at school and in the workplace as well as the issue of domestic violence.

Importantly, instead of simply repeating the appalling statistics of violence, there are chapters in which the authors search for solutions and identify areas in which evidence demonstrates successful violence avoidance strategies. Many in the legal profession will be familiar with the issue of violence - whether in family, criminal or compensation law - and chapters addressing legal responses to violence will be of particular interest.

One contributor (who is from Anglicare Victoria's Policy Research and Innovation Unit) provides a fascinating analysis of violence in Australia and its relationship to masculinity and age and examines some policy recommendations as to how to move forward on this issue.

The authors propose that "rates of violence are not only relatively high in

Australian youth, but have increased over recent decades", that a close association exists between alcohol and violence and that in order to design prevention strategies, one needs to understand violence and the nature of the stimulants and community mores that lead to this violence. This book asks: is there the possibility of fundamental social change that could remove the 'cultural supports' underpinning violence in Australia?

As one who has watched the deterioration of family and community safety within indigenous communities over recent years, I am utterly in agreement with the editors' views that violence in these communities is one of the most "pressing social issues in contemporary Australia".

This book is an important contribution to informing all of those who ought to be concerned about issues of violence (and that really is most of us) and while the political debate at present seems to be more about how best to provide lower or higher taxation regimes rather than building a better society, this book provides some signposts for those involved in policy determination.

This is not a book for the bedside reading table, but rather is an important addition to the library of anyone involved in a multitude of legal issues from licensing policy to social development in indigenous communities. This book is highly recommended.

NOTES 1.

The Federation Press 2015. Paperback/272pp ISBN 9781862879942 Australian RRP $69.90.

2.

Tony Abbott vows to 'shirtfront' Vladimir Putin over MH17 tragedy. Sydney Morning Herald 13 October 13 2014: http://www.smh.com.au/federal-politics/ political-news/tony-abbott-vows-to-shirtfrontvladimir-putin-over-mh17-tragedy-20141013-115cm3. html#ixzz3jExc7rC0.

lawyer on the street

Lawyer on the Street Daniel Estrin

Reuben Saul

Partner, Estrin Saul Lawyers

Partner, Estrin Saul Lawyers

After graduating, I was adamant about not wanting to be a lawyer and wanted to balance my musical endeavours with whatever career I chose. However, a love of legislation, passports, capital cities, languages and obscure breakaway states (ever heard of Nagorno-Karabakh?) inevitably led me down the path of immigration law. After a graduate programme with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was) and a stint at the Australian Embassy in Berlin, I completed my articles at the Australian Government Solicitor (AGS). It was here that my love for the tomes of legislation (and my loathing of transitional provisions) became firmly entrenched. After several years at AGS, having had the opportunity to run AAT and Federal Magistrates Court matters, it was natural curiosity that drove me to the other side; I joined a large international corporate migration firm, looking after global mobility visa issues of large multi-nationals. It was at this firm that I met Reuben Saul, whose smarts, work ethic and understanding of clients' needs I consider exceptional.

It took someone on the same wavelength to embark on the venture of starting our own law firm.

My career has always revolved around immigration law. In my final years of university, I worked as an intern with an organisation in the Philippines tasked with resettling the remaining Vietnamese refugees in Southeast Asia. It was a brief introduction to the field that left a lasting impact. I was fascinated with international protection obligations and what – in my view – was one of the most practical areas of human rights law.

When you work for yourself the buck stops with you because your name, your business and your reputation are at stake. That motivates you to keep working hard, especially in a small city like Perth. At the start, we thought people might be suspicious of our youthful complexion, but soon found that what mattered was to perform well and earn the client's trust from the first consultation.

It's an amazing feeling to know that you have done quality work and guided clients through the legal labyrinth with confidence and a sense of achievement.

Starting a new law firm is a risky and challenging task, so it is important to have a well-rounded set of skills. A good business partner is also invaluable – Reuben and I bounce ideas off each other and complement each other's work styles knowledge and skills base extremely well.

Work-life balance is a common theme in the legal profession these days. As an extracurricular heavy rock musician, this is also extremely important to me. The creative right side of my brain needs to offset the left, logical, law-loving side once in a while. As a Partner in a small firm with such flexibility, I can say I've achieved a life goal. The next goal is being able to afford the immigration law looseleaf (with updates).

After graduating, I went on to work in the community legal sector before eventually taking up a position in a global law firm specialising in broader aspects of immigration law – beyond refugee law. My work in a large-firm environment exposed me to a whole raft of immigration issues from securing work visas for multinational mining companies through to representing asylum seekers on Christmas Island.

Eventually, I reached a point in my career where I was looking for more control over the types of matters to which I was dedicating my time. Starting my own firm seemed like the natural progression in achieving this goal.

I feel there is a lot to be said for starting a new venture with the right people. I was very fortunate to have had the benefit of knowing (and even working with) Daniel Estrin professionally for several years prior to us starting our own firm. I shared his work ethic and near obsession with immigration law.

Starting a firm with a trusted partner means that you have the benefit of constant oversight of each other's work – which is great from a risk management perspective. Daniel and I are also very adaptive to the technical advancements in the field which are making legal processes leaner and more client friendly.

One of the most tangible changes I have noticed since starting the firm has been the impact on work-life balance. Maintaining work-life balance is a constant battle for lawyers but working for yourself allows you to create a schedule that complements the other aspects of your life. Also, by specialising in the areas you enjoy most, you are able to ensure that you remain passionate about the work you do. Long hours are inevitable, but so long as your heart is in your work, you barely notice.

I am also a firm believer that, as lawyers, we service our clients best when we hone our skills in a speciality. It is important to build a reputation within your particular field and to resist the urge (however tempting) to overreach.

At the end of the day, our job satisfaction comes from achieving practical outcomes for our clients. With immigration law, a successful outcome can change the entire direction of an individual's life. Immigration law provides you with the opportunity to see how the work you do tangibly benefits your clients – I believe this is key to career satisfaction.

45

case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – Husband's expenditure of sale proceeds added back in error – What was spent on "ordinary living expenses" not considered In Talbot [2015] FamCAFC 132 (3 July 2015) the Full Court (Bryant CJ, Murphy & Duncanson JJ) allowed the husband's appeal against a property order where Moncrieff J notionally added back a premature distribution to the husband of $252,251, being proceeds of sale of real estate just before separation. The Full Court said ([31] and [51]-[53]): Where one party unilaterally distributes to themselves property which no longer exists and which, but for that premature distribution, would be susceptible to s79 orders, justice and equity may require the Court to take account of the dissipated property by adding it back as against the dissipating party (Townsend [1994] FamCA 144 … Whether that should occur, or whether the dissipation should be taken into account pursuant to s75(2)(o), or indeed at all, are all matters requiring the exercise of the trial judge's discretion (Townsend; Omacini [AJO & GRO] [2005] FamCA 195 …

Cerini [1998] FamCA 143). ( … ) … it was necessary for the trial judge to take account of a number of relevant considerations, one of the most important of which was what the evidence revealed about expenditure from the account into which the funds were banked. That is because, among other things '... parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives' (Cerini, supra) and, if money is to be 'added back' some three years after it was spent, account must be taken of what the evidence reveals about what was spent on 'ordinary living expenses' and of the financial circumstances of the parties more generally. (See, for example, Marker & Marker [1998] FamCA 42.)

Here … the bank statements … revealed … expenditure falling within the rubric of living expenses … such as $66.37 spent at Coles, $116.50 spent at Australia Post, $249.00 spent at Kmart, $54.95 spent at Suburb T Pharmacy … We consider, then, that his Honour erred in the exercise of his discretion by

46 | Brief October 2015

… failing to consider matters relevant to the exercise of that discretion.

Children – Estrangement – Mother's alleged fear of father – Father made proposals to reintroduce himself to child – Prohibition of contact in error In Blinko [2015] FamCAFC 146 (23 July 2015) the Full Court (May, Murphy & Tree JJ) allowed the father's appeal from an order that he spend no time with nor communicate with his child, having not seen her since 2009 when she was 11 months old. The mother alleged that "her fear of the father, based upon [a] … history of violence, was so profound that she would not even be able to cope with the child only spending supervised time … with the father" while he argued that her fear "was either not real, or not rational, or both" ([16]). At first instance, Judge Coates accepted the evidence of the mother and that of a psychiatrist "that if the child had anything to do with the father … the mother may decompensate to the point where her parenting capacity would be seriously impacted"([17]). The Full Court said ([30]-[32]): ( … ) Such an outcome [as an order for no time or communication] needs to be arrived at only after a careful evaluation of all of the other options which might work to enable the child to have the benefit of some kind of relationship with the non-resident parent ( … ) [given that] what is at stake is the potential for a child to never know their parent.

Here the father's proposals … identified a range of potential means by which the child could have some relationship with the father. ( … ) Not only was it incumbent on the trial judge to consider such options, but in considering each of those alternatives, his Honour ought to have made an informed determination as to the magnitude of any risk to the mother's psychological health, and hence parental functioning, which attended each of these, to enable him to then consider whether, notwithstanding the safeguards, the risk of harm to the child still remained unacceptable.

Spousal maintenance – Limit of four years unsupported by evidence In Raine & Creed [2015] FamCAFC 133 (8 July 2015) the Full Court (Finn, Thackray & Strickland JJ) allowed the wife's appeal

against Aldridge J's spousal maintenance order. A year after separation the husband claimed and began receiving payments for severe depression under a disability insurance policy taken out during the parties' 23 year relationship throughout which the husband "suffered from alcoholism" ([14]). The husband received $135,495 as a lump sum and thereafter $3,756 per week which could "continue … up to the age of 70 … [but the] insurer could … at any time cease the payments if the insurer determined that the husband was only partially disabled, or was able to resume work" ([35]).

The wife appealed the order that the husband pay maintenance of $534 per week for four years, "those payments being conditional upon the husband continuing to receive disability insurance payments based on him having a 'total disability'" ([3]). Upon varying the order by removing its four year limit, the Full Court said (at [127] and [133][134]): ( … ) … given that his Honour found that the husband's ability to [pay] maintenance 'will be adversely affected' when the insurance payments cease or lessen, we consider that it was appropriate for his Honour to make his order conditional upon the receipt of those payments. ( … ) [However] there was no basis on the evidence to terminate the … maintenance in any event after four years. As emphasised by the wife's senior counsel … [t]here was no evidence to suggest that the wife's needs would be any different in four years time … [or] that the insurance payments were likely to cease in four years time … [t]he joint contribution to the events that entitled the respondent to the insurance payments … would not suggest that it is unjust for the appellant to continue to receive part of that income stream whilst it is available … [and] [t]he limit of four years was 'entirely arbitrary and unsupported by any view of the evidence'.

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

case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT Competition law Whether airline and travel agents compete in distribution market In Flight Centre Limited v Australian Competition and Consumer Commission [2015] FCAFC 104 (31 July 2015) a Full Court in a joint judgment found the primary judge had erred in finding that the appellant travel agent and the international airline (who sold seats directly and via travel agents) whose products it sold competed contrary to ss45 and 45A of the Trade Practices Act 1974 (Cth) in a market for booking and distribution services for international airline travel.

Competition law Market – whether bank in same market as mortgage brokers In Australian Competition and Consumer Commission v ANZ Banking Group Ltd [2015] FCAFC 104 (31 July 2015) a Full Court concluded that by providing mortgage finance through its branch system the ANZ bank was not in the same market as mortgage brokers so that the bank's complaints to one of its agents about commission sharing with customers was not an "agreement controlling a discount or rebate" for s45A of the Trade Practices Act 1974 (Cth).

Industrial law Calculation of untaken long service leave In Centennial Northern Mining Services Pty Ltd v Construction Forestry Mining and Energy Union [2015] FCAFC 100 (23 July 2015) a Full Court considered how untaken accrued leave was to be calculated for s90(2) of the Fair Work Act 2009 (Cth).

Industrial law Enterprise agreement – approval by vote of all employees "employed at the time" – sessional employees In National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (17 July 2015) a Full Court found the Full Bench of the Commission had made a jurisdictional error in failing to make enquiries that would exclude sessional employees from voting

on approval of an enterprise agreement under s181 of the Fair Work Act 2009 (Cth).

HIGH COURT Criminal law Limits of discretion to exclude evidence to avoid miscarriage of justice In Police v Dunstall [2015] HCA 26 (5 August 2015) the Full Court of the Supreme Court SA in R v Lobban (2000) 77 SASR 24 recognised a discretion to exclude evidence untainted by illegality or impropriety where admission of the evidence would render the trial of an accused an unfair trial. D was detected driving a vehicle with a blood alcohol content revealed by a police breathalyser to exceed the prescribed amount. D was taken by the police to a hospital where a blood test was taken. At the hearing before a magistrate D pleaded not guilty.

In answer to the certificate of the police operator (which created a statutory presumption of the level of blood alcohol content) D would have relied on the analysis of his blood sample taken at the hospital. Evidence was given that due to an error at the hospital insufficient blood was taken and the sample was denatured.

The magistrate relied on the Lobban discretion to conclude the medical error had denied D the opportunity to challenge the police evidence and this rendered the trial unfair unless the police evidence was excluded. The Magistrate excluded the certificates and D was acquitted. An appeal by the police to the Supreme Court (SA) was dismissed as was an appeal to the Court of Appeal (SA) (by majority). The appeal by the police to the High Court was allowed by all members: French CJ, Kiefel, Bell, Gageler and Keane JJ jointly; sim Nettle J. The Court concluded questions of unfair evidence were properly addressed by determining whether the circumstances warranted a permanent stay. Appeal allowed. Matter remitted to magistrate.

disclosed its interim voting results. The trial judge dealt with the questions referred but did not disclose to the prosecution or the defence the revealed voting results.

All members of the High Court (French CJ, Kiefel, Bell, Gageler and Gordon JJ) concluded in a judgment (delivered by Gordon J) that this did not result in an unfair trial. Appeal dismissed.

Income tax Deductions – whether payment on income or capital account In AusNet Transmission Group Pty Ltd v Federal Commissioner of Taxation [2015] HCA 25 (5 August 2015) in 1997 the taxpayer acquired the assets of a Victorian state-owned electricity transmission company. The sale agreement required the taxpayer/purchaser to pay additional charges as imposed by notices under s163AA of the Electricity Industry Act 1993 (Vic) in addition to the price. The taxpayer made the payments and then self amended its tax returns for 1999 to 2000 to claim the payments as a tax deduction. These claims were disallowed in amended assessments issued in 2008 and objections to these assessments were disallowed in 2012.

The taxpayer's appeal under s14ZZ of the Taxation Administration Act 1953 (Cth) to the Federal Court was dismissed at first instance and on appeal. The taxpayer's appeal to the High Court was dismissed by a majority who concluded the charges were on capital account for s8-1 of the Income Tax Assessment Act 1997 (Cth) and not deductable from income: French CJ, Kiefel, Bell JJ jointly; sim Gageler J; contra Nettle J. Appeal dismissed.

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

Criminal law Practice – juries – jury disclosing its voting results to trial judge – whether judge required to disclose this to parties In Smith v The Queen [2015] HCA 27 (5 August 2015) a deadlocked jury, in referring questions to the trial judge,

47

law council update

GOVERNMENT SHOULD EMBRACE THE CHILD SEXUAL ABUSE ROYAL COMMISSION'S RECOMMENDATION FOR A NATIONAL REDRESS SCHEME The Law Council of Australia has called on the Federal Government to embrace a key recommendation from the Royal Commission into Institutional Responses to Child Sexual Abuse: the establishment of a single national redress scheme.

Law Council President Mr Duncan McConnel said it was critical that survivors of institutional child sexual abuse had access to redress.

"The injuries that have been suffered by people who were subjected to child sexual abuse in institutions are often uniquely severe and long lasting," Mr McConnel noted.

"The severity and taboo nature of the abuse suffered has often meant survivors of child sexual abuse have been unable to seek compensation for their injuries in the normal way that Australians would generally expect.

"A national scheme is therefore needed, as the most effective structure for ensuring justice for survivors of child sexual abuse. The lack of consistency between institutional and State and Territory Government responses has created inequality between survivors of abuse in institutional settings. This should be addressed as the Commission recommends."

The Law Council welcomed a range of recommendations made by the Royal Commission in its final report on redress and civil litigation.

A number of key recommendations made by the Law Council in its submission and appearance before the Royal Commission have been supported in the report, including: •

•

The establishment of a single national redress scheme, with the Australian Government and State and Territory Governments as funders of last resort Funding for support services and community legal centres to assist applicants in applying for redress

48 | Brief October 2015

•

Legislative reforms by State and Territory Governments so that liabilities can be met by an institution's property trust and limitation periods for child sexual abuse claims

"The Commission's report makes it clear that our society's failure to protect children across generations means there is now a pressing need to provide avenues through which survivors can obtain appropriate redress for past abuse," Mr McConnel said.

"If we are to do this effectively then we have to recognise that many of the institutions in question may be unable to provide that redress. This might be because they operate in a different form, because they are insolvent, or because they have simply closed completely.

"A national redress scheme should be in addition to protecting a claimant's rights at common law. Civil litigation should still be available as an option.

Legislative reforms are vital to removing unnecessary obstacles and ensuring that justice can flow to survivors of child sexual abuse.

"I am very happy to see the Royal Commission agrees with the recommendations made by the Law Council. I will be strongly urging the nation's elected representatives to back the important reform the Commission recommends."

FUTURE LOOKS BRIGHT FOR INDIA-AUSTRALIA TRANSNATIONAL PRACTICE A bright future of cooperative and mutually beneficial transnational legal activity looks possible between Australia and India, following a productive and positive visit by the Bar Council of India (BCI) this week.

The BCI delegation is in Australia to review the accreditation of Australian law schools to ensure Indians studying in Australia will have their qualifications recognised in India. The BCI delegation also attended a roundtable discussion hosted by the Law Council of Australia regarding the future of two-way professional mobility of lawyers between

Australia and India. The roundtable included officers from the Law Council secretariat and government officials from the Attorney-General's Department and the Department of Foreign Affairs and Trade.

Law Council of Australia President Mr Duncan McConnel said relations between the legal professions of India and Australia were strong, and exciting opportunities lay in the future.

"If you want to increase trade, legal services are an important prerequisite for underpinning that. It makes sense to include good access for lawyers from other jurisdictions with the capacity to provide advisory services," Mr McConnel said.

"The nature of legal practice, particularly in the commercial area, is becoming increasingly global.

"Clients who wish to do business in other jurisdictions want to be able to take their team of advisors with them. That works for Indian companies wanting to do business in Australia as much as it does for Australians who might want to do business in India."

Mr McConnel noted that the roundtable discussions were encouraging, and provided an opportunity to discuss issues of importance to the Indian legal profession on the availability of transnational legal services in India.

"Of course, it's most unlikely that an Australian lawyer would want to expand into India for the purposes of providing local law in competition with Indian firms. That's not really what transnational practice is about," Mr McConnel said.

"To the extent that Australia wants the right to establish on-the-ground commercial presence, we are talking about providing legal advisory, arbitration, and mediation services in relation to foreign law.

"We want to create opportunities to work in commercial association with Indian law firms to provide fully integrated legal services that cover the laws of multiple jurisdictions," Mr McConnel concluded.

pam sawyer

49

announcements

Professional Announcements Career moves and changes in your profession O’Sullivan Davies O’Sullivan Davies is pleased to announce the recent elevation of Hayley Corin, Sarah Jones and James Eley to Associate.

Stuart Taylor has moved to Unit 1, 103 Colin Street, West Perth WA 6005

Sceales & Company appoints Senior Associate

Hayley Corin

Sarah Jones

Perth-based tax law firm Sceales & Company is pleased to announce the appointment of Neil Henderson as a Senior Associate of the firm with effect from 1 September 2015.

James Eley

David Heldsinger David Heldsinger has left HLS Legal and established his own law firm specialising in workplace relations law.

We are pleased to announce these recent appointments:

His new contact details are: David Heldsinger

Heldsinger Legal Unit 1, 103 Colin Street West Perth WA 6005 T: (08) 9226 3548 M: 0409 341 766 E: david@heldsingerlegal.com.au W: www.heldsingerlegal.com.au

Rebecca Cifelli

Joanna Yoon

Kirsten Young

Rebecca Cifelli Senior Associate Projects and Infrastructure

Joanna Yoon Associate Banking & Finance

Kirsten Young Associate Corporate Resources

The Law Society of Western Australia

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new members and classifieds

New Members New members joining the Society (August 2015) ASSOCIATE MEMBERSHIP

BARRISTER PART-TIME MEMBERSHIP

Mr Thomas Burke

Professor Sharkey

Miss Claudia Dudek Miss Imelda Williamson

Edith Cowan University

Ms Scarlette De Lavaine

Murdoch University

ORDINARY MEMBERSHIP

Mr Stephen Puttick

Mr Matthew Cowcher

King & Wood Mallesons

Mr Ibrahim Afzaal

Mr Richard Winter

King & Wood Mallesons

Miss Anne McGuire

Ms Bettina Collins

Westrac Pty Ltd

Mr Justin Harker

Miss Ivin Lim

Department of Planning

Mr Daniel Gribbon Dr Lucja Nowak

University of Western Australia

RESTRICTED PRACTITIONER

Ms Layla Langridge

Sparke Helmore

Ms Bethany Moller

Ms Angela Hunter

Murdoch University

Mr Thomas Scott

Murdoch University

Birman & Ride

Miss Laura Jackson Miss Zeynep Atasoy

Classifieds Government of Western Australia Department of the Attorney General

AH BEE MACK (also known as PAULINE MACK) late of 144 FairďŹ eld Street, Mount Hawthorn, Western Australia died between 18 December 2008 and 29 December 2008 at Mount Hawthorn Western Australia.

Would any person holding the last Will and Testament of AH BEE MACK (also known as PAULINE MACK) 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 33046410 EM313.

Litigation assistance for your firm An experienced Commercial Litigation Lawyer (sole practitioner) has capacity/ availability to assist your practice on a casual basis in relation to any commercial litigation or related instructions (regardless of complexity).

Confidential enquiries to Commercial Litigation Lawyer PO Box 5665, 66 St Georges Terrace PERTH WA 6831

MISSING WILL Any person holding or knowing the whereabouts of the last Will and Testament of the late LANCE STANLEY JOHN of 389 Carrington St, Hamilton Hill, WA who, died on 23 October 2006, please contact FourLion Legal at Ground Floor, Suite 16, 185 High St, Fremantle on (08) 9335 6643 or enquiries@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref:15258.

adcorp WG11718

51

events calendar

Events Calendar DATE

EVENT

LOCATION

OCTOBER SOCIAL EVENTS Saturday, 17 October

Young Lawyers Ball

Hyatt Regency Hotel

Wednesday, 21 October

Sole Practitioner and Boutique Firm Forum

The Esplanade Hotel, Fremantle

Thursday, 29 October

Society Club

Howling's Bar

OCTOBER CPD EVENTS Thursday, 8 October

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

The Law Society of Western Australia

Tuesday, 13 October

The crossover between family law, bankruptcy and insolvency

The Law Society of Western Australia

Wednesday, 14 October

Employment law forum: session 1 - overview of Fair Work Act and anti-bullying legislation

The Law Society of Western Australia

Wednesday, 14 October

Employment law forum: session 2 - occupational health and safety and preparing employment contracts

The Law Society of Western Australia

Friday, 16 October

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

The Law Society of Western Australia

Tuesday, 20 October

Evidence in alternative forums

The Law Society of Western Australia

Tuesday, 20 October

Protecting and promoting your 'brand' online

The Law Society of Western Australia

Thursday, 22 October

YLC: mental health hypothetical

The Law Society of Western Australia

NOVEMBER SOCIAL EVENTS Friday, 6 November

YLC Mixed Netball

Matthews Netball Centre

Wednesday, 11 November

Sole Practitioner and Boutique Firm Forum

Rose and Crown Hotel, Guildford

NOVEMBER CPD EVENTS Tuesday, 3 November

Improve your negotiation skills today

The Law Society of Western Australia

Wednesday, 4 November

Criminal law update

The Law Society of Western Australia

Thursday, 5 November

Family Provisions Act and wills disputes

The Law Society of Western Australia

Tuesday, 10 November

The use of trusts in effective estate planning

The Law Society of Western Australia

Tuesday, 10 November

Self Managed Super Funds as they relate to succession planning and estates

The Law Society of Western Australia

Wednesday, 11 November

Property Law Forum: session 1 - eConveyancing, what are the risks?

The Law Society of Western Australia

Wednesday, 11 November

Property Law Forum: session 2 - Commercial Tenancy (Retail Shops) Act, Residential Tenancy Act and case law update

The Law Society of Western Australia

Thursday, 12 November

The role of subpoenas in modern practice

The Law Society of Western Australia

Wednesday, 18 November

Security of tenure in housing for the elderly

The Law Society of Western Australia

Thursday, 19 November

Macquarie Business Insights Series: Managing your firm's cash flow

Conference Room, 235 St Georges Tce

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638 For all upcoming events and further information please visit lawsocietywa.asn.au 52 | Brief October 2015

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