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VOLUME 43 | NUMBER 1 | FEBRUARY 2016

Aboriginal Alcohol and Drug Service Launch of Strategic Plan 2015 - 2020


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Contents

GO DIGITAL!

Volume 43 | Number 1 | February 2016

Take me with you.

28 02

President's Report

Elizabeth Needham

03

Your voice at work

04

Editorial

18 28

FEATURE Aboriginal Alcohol and Drug Service Launch of Strategic Plan 2015 - 2020

The Honourable Wayne Martin AC, Chief Justice of Western Australia

Brothers in the Gunpits: the Parker Men

Jason MacLaurin

30

06

A meaningful learning opportunity

Caroline Ingram

Chad Silver

31

End of Year Celebration

08

2015 Mock Trial Competition Grand Final

09

Geraldton Regional Inter-School Mock Trial Competition

32

The role of barristers' clerks – current, historical and the English and Australian approaches

Daniel Perry

Kate Turtley-Chappel

36

Perth Chambers launch

10

50 Shades of 'Legal' Grey: Fiduciary Obligations in Elder Law

41

Lawyer on the Street

Carol Hamilton

12

Directorial Liability for Corporate Fault

42

Book Review: R v Milat: A Case Study in Cross-Examination

Review by Genevieve Cleary

Steven Cole LLB (Hons) FAICD

15

Solicitors' Obligations Under the Financial Transactions Reports Act

43

Book Review: Cybercrime Legislation, Cases and Commentary

Julie Ots

16

Law Society of Western Australia Limitation of Liability Scheme

18

The Disciplinary Provisions of the Legal Profession Act 2008 (WA)

Review by Patricia Aloi

44

Young Lawyers Case Notes

46

Family Law Case Notes

48

Law Council Update

49

Pam Sawyer

Chris Edmonds SC

50

Classifieds

25

Sole Practitioner and Small Firm Forum

51

New Members

26

Directors' Personal Guarantees

Maha Chaar

51

Professional Announcements

52

Events Calendar

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: The 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 Manager Marketing and Communications Moira McKechnie Tel: (08) 9324 8650 Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer Andrew MacNiven Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

Editor Jason MacLaurin

President Elizabeth Needham

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Jason MacLaurin, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Verginia Serdev-Patterson, Julian Sher, Moira Taylor, Lorilee Yu

Senior Vice President Alain Musikanth

Proofreaders Sonia Chee, Ann Kay, 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 Ordinary Members Alison Aldrich, Marie Botsis, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Immediate Past President Matthew Keogh Chief Executive Officer David Price

01


report

President's Report Elizabeth Needham, President, The Law Society of Western Australia Happy New Year and welcome to the first edition of Brief for 2016. I look forward to working with the Executive, our new Council, the Society's staff and of course you, our valued members, throughout the year. In 2016, the Society will continue to strive to be your essential membership and to meet its purpose as the voice of the legal profession in Western Australia. We rely heavily on the contributions and support of our members and so you will continue to be the foundation of the Society. 2016 also sees a change in the editorship of Brief. I would like to take this opportunity to thank former Editor Julian Sher for his outstanding efforts last year – they were much appreciated. We welcome new Editor Jason MacLaurin, who will no doubt continue the fine work of his predecessors in the role. It is my sad duty to report that Thomas Hurley passed away on Sunday, 22 November 2015. Mr Hurley was a member of the Victorian Bar and his regular case notes have been a feature of Brief since March 1998. On behalf of the Society, my sincere condolences go to Mr Hurley's friends and loved ones. CONSOLIDATED PRACTICE DIRECTION 8.1 – DELIVERY OF RESERVED DECISIONS AND REASONS FOR DECISION The Society has written to the Principal Registrar of the Supreme Court to propose an amendment to Consolidated Practice Direction 8.1, regarding the restriction on informing a practitioner's client about the contents of the advance copy of reasons for decision. The effect of paragraph 14 of the Practice Direction is that an unrepresented litigant is permitted to see the advance copy of reasons for decision from the time the advance copy is available for collection from the Court. However, a party who is represented by a legal practitioner is only allowed to be informed of the contents of the advance copy one hour before the reserved decision is listed to be delivered. The Society has proposed to the Principal Registrar that where a party is legally represented, once the practitioner collects the advance copy of reasons for decision from the Court, he or she should

02 | BRIEF FEBRUARY 2016

be permitted to inform the party of the contents of the advance copy straight away. Of course the practitioner would be obliged to comply with the current paragraph 17 of the Practice Direction in relation to informing the client of the confidential nature of the advance copy. REVIEW OF PSYCHOLOGICAL DISTRESS AND DEPRESSION IN THE LEGAL PROFESSION 2011 In 2011, the Society produced a report titled Psychological Distress and Depression in the Legal Profession 2011 (the Report). The Report made 29 recommendations to the Society pertaining to mental health and wellbeing, encompassing a range of awarenessraising, preventative and treatmentfocused measures. The Mental Health and Wellbeing Committee (the Committee) was established and has since assisted the Society in the implementation of the Report's recommendations. Recommendation 28 was that the Committee be requested to undertake a review of the Report in 2015. The review examined the relevance and effectiveness of each of the original recommendations. It found that since 2011, the Society has promoted and raised awareness of mental health and wellbeing within the legal profession, resulting in many of the original recommendations becoming redundant. Many of the initiatives proposed in the Report have become established as Society programmes and member benefits. The result of the review is that the Report's original 29 recommendations have been reduced to 13, which now form the Mental Health and Wellbeing Recommendations 2016 to 2020. The Society's Council has adopted these recommendations. The next formal review of the progress on the recommendations will be conducted in 2020. Whilst pleased with the progress, there remains much to do in this area. Awareness is but the first step, making it somewhat easier to identify and address this area, but the Society remains concerned at the information from recent studies interstate that indicate levels

of stress, anxiety and depression are still very high in our profession. We will continue to endeavour to help individuals and practices address this important issue. MAGISTRATES COURT WEBSITE – PUBLICATION OF DAILY COURT HEARINGS LIST Members may be aware that although the Magistrates Court has a monitor on its premises displaying a daily court hearings list, this list is not published on the Magistrates Court website. In March 2012 and September 2012 the Society wrote to Michael Johnson, Director, Magistrates Court and Tribunals requesting that consideration be given to the Magistrates Court publishing daily court listings on its website in the late afternoon of the day before, as is done by the Supreme, District and Family Courts. In 2012, Mr Johnson advised that Magistrate Court listings could not be published until the Integrated Case Management System (ICMS) operating in the Supreme and District Courts was fully operational in the Magistrates Court. Mr Johnson expected that the ICMS would be fully operational in another two years. Three years have since passed and the Magistrates Court daily hearings list is still not published on the Magistrates Court website. A further letter has been sent to Mr Johnson enquiring as to the progress of the ICMS and requesting advice as to when a daily hearings list will be published on the website. LAW LIBRARY INTEGRATION PROJECT As a result of recent discussions between the stake holders about this project, I have written to the State Solicitor and the Legal Practice Board of Western Australia (LPBWA) to reaffirm that the Society does not support the introduction of any new levy by the State Government to cover running costs associated with the new Law Library. The Society is of the view that any savings made as part of the Law Library Integration Project must be fully 'offset' by the equivalent amount being removed from the cost currently charged for a PC by the LPBWA to fund the existing Supreme Court Library – there should be no reduction in service or additional costs to the profession.


your voice at work

Your voice at work A snapshot of recent Society initiatives THE LAW SOCIETY OF WESTERN AUSTRALIA WELCOMES APPOINTMENTS OF NEW MAGISTRATES

The Law Society of Western Australia congratulates barristers and solicitors Brian Mahon and Mark Millington, who have been appointed as Magistrates of the Magistrates Court of Western Australia.

Strategic campaigns

The appointments of Mr Mahon and Mr Millington follow the resignation and retirement of two magistrates from the Bunbury Magistrates Court.

supporting the practice of law – being about professional practice; and

supporting lawyers – dealing with wellbeing and mental health, gender bias and retention of women in the legal profession.

Law Society President Elizabeth Needham said, "The Law Society is pleased to see the State Government taking action to ensure courts in the South West are adequately resourced. "In a recent interview on ABC Radio's WA Regional Drive programme, I expressed the importance of appointing these Magistrates to the Bunbury Magistrates Court. The appointments should help to improve access to justice for the residents of Bunbury and the surrounding region." ANNUAL REPORT 2014/15 SUMMARY The 2014/15 financial year proved to be an eventful one for the Society, laying good foundations and building upon them to increase the Society's profile within the profession and the wider community in relation to its key activities. Organisational review 2014/15 was the first financial year of the Society's new strategic plan, Delivering the Vision: Strategic Direction 2014-18. The 2013 Member Survey identified that members believed there were opportunities for the Society to strengthen its leadership, lobbying and advocacy role, demonstrate a greater understanding of member needs and foster a greater sense of belonging within the legal community. The Society responded to this feedback by undertaking an organisational review. The final report contained a number of recommendations and a proposed new structure for the Society. This restructuring has now taken place, leaving the Society well positioned to meet its goals, including: •

more targeted communication;

better communication of the Society's advocacy for the profession;

better communication with members of information relevant to them;

being more efficient in our work; and

working across internal teams to ensure enhanced value to members from our work.

At the Council and senior management strategic planning workshop in February 2015, two strategic campaigns were chosen for 2015/16:

Supporting the practice of law The Society's new website now provides access to a range of valuable resources on areas of practice such as ethics and professional conduct, costs, complaints and running a legal practice. The new website allows users to better manage their membership and CPD needs and find relevant information. The Society's CPD programme delivers not only training in black letter law, but also in ethics and practice management, giving practitioners the real-world skills needed to run a successful, modern legal practice.

the actions the Society will take to achieve its vision of a profession where Aboriginal and Torres Strait Islander people feel valued and respected. Advocacy and communication In 2014/15 the Society maintained its role as the voice of the legal profession in Western Australia, making 54 submissions to government, the courts and other organisations. The Society also gives voice to the views of the legal profession through regular media statements and comment to news outlets. For example, in 2014/15 the Society made statements on topics as varied as: •

mandatory sentencing;

opposing the death penalty;

strata management licensing;

protest laws; and

no fault insurance.

Membership In 2014/15 the Society achieved a record membership of 3,626. More importantly, the Society has come a long way in terms of member satisfaction. Over the past eight years, satisfaction has risen by 25%; from 58% in 2007 to 83% in 2015.

In the 2014/15 financial year the Society's CPD programme delivered 100 face-toface seminars for the benefit of over 3,700 participants. The Society continues to attract high quality speakers, including exceptional international speakers such as Professor Gillian Triggs, Professor Richard Susskind OBE and Professor Richard Dawkins, all of whom will appear at Law Summer School on 26 February 2016.

DECEMBER 2015 SOCIETY SUBMISSIONS

Supporting lawyers During the 2014/15 financial year, the Society worked closely with the Law Council of Australia on the response to its National Attrition and Retention Survey. This involved developing a national action plan to help retain women in the profession and eradicate gender bias. In 2014/15 the Society adopted the Law Council's Diversity and Equality Charter. The Charter underlines the Society's commitment to a legal profession that promotes respect and inclusion, regardless of a person's gender, ethnicity, sexuality, or any other arbitrary feature. 2015 also saw the launch of the Society's Reconciliation Action Plan. The Plan outlines

Delivery of reserved decisions and reasons for decision – Letter to Principal Registrar of the Supreme Court of Western Australia

Western Australian Registrar and Commissioner of Titles – Verification of identity and authority requirements – draft paper for comment

Proposal for amendment to Section 12A Sentence Administration Act 2003 – Letter to the Hon Michael Mischin MLC, Attorney General

Legal Costs Committee – Legal Profession (Supreme Court) (Contentious Business) Determination 2014; Legal Profession (District Court Appeals) (Contentious Business) Determination 2014; Legal Profession (Supreme And District Court) (Criminal) Determination 2014; Legal Profession (Magistrates Court) (Civil) Determination 2014; Legal Profession (Magistrates Court) (Criminal) Determination 2014

Magistrates Court Website – Publication of Daily Court Hearing List.

03


editorial

Editorial Jason MacLaurin, Barrister, Francis Burt Chambers, Editor, Brief Journal Welcome to the first edition of Brief for 2016, following what was hopefully an enjoyable and restful break for members of the profession. This edition's feature is the launch by Chief Justice Wayne Martin AC of the (five year) Aboriginal Alcohol and Drug Service's Strategic Plan, being a significant initiative in an area of great social concern. I thank Julian Sher for his fine stewardship of Brief last year and his hard work in ensuring that the publication continued to be of the highest quality. Brief also extends thanks to Ronald Bower and Rebecca Lee (who, for the first time since 1998 and 2003 respectively will not be on the editorial committee) for their outstanding contribution. Ronald was editor 2003 to 2011 and Rebecca was editor 2012 to 2014. If Brief were a cricket team this occasion would, at the least, have demanded a standing ovation followed by the issue of limited edition commemorative framed memorabilia, or commemorative Port, such as are vigorously promoted during the lunch, tea, and drinks breaks of cricket broadcasts. We hope that, in 2016, we will continue to present articles upon a broad and disparate range of topics that are of interest to the profession at large. The ability to do so of course depends upon the receipt of submitted articles, and I encourage anyone interested in contributing to Brief to submit material to us. As to 2016, it is too early and difficult to accurately predict all the major themes and events, affecting lawyers, that will emerge during the year. Only limited assistance in this regard was provided by the United Nations in declaring that 2016 would be the International Year of Pulses (i.e. legumes). This did, however, provide a rare opportunity to include the word 'legumes' in a Brief editorial - something that may not occur again for some time unless, in desperation, Brief has to start publishing recipes (in this respect see the above plea for the submission of articles). So, adopting a more trivial approach, it is at least certain that February 2016 will be special, being a leap year, and during

04 | BRIEF FEBRUARY 2016

which the second season of the excellent lawyer-based television show "Better Call Saul" will air. Real-life legal issues caused by leap years are rare, being more the province of the arts - such as the central plot device in the "Pirates of Penzance" where the main character was apprenticed to serve pirates until his 21st birthday, and, being born on the 29th of February, is embroiled in a dispute as to whether he will in fact have to wait until he is 84 years old until that occurs.1 The significance of leap years for lawyers seems rather to involve wry observations about lawyers being pleased, with the one extra day of work (with all that entails) and the prospect of exotic arguments being run concerning limitation periods. However, real issues do arise in respect to the proper annual salary to be paid to employees. Also, leap years do demonstrate the there are rarely any instances of life that are not potentially affected by the law or capable of giving rise to legal argument. For example, in the United States an amended class action was filed in 2008 against J.P Morgan Chase & Co based upon credit card charges being assessed upon a 365 day year, resulting in an overcharge for the 2004 and 2008 leap years. It was estimated that, for the individual lead complainant, the overcharge in 2008 was in the order of 48 cents. In another United States case2 an issue arose as to whether the Department of Homeland Security could deport a convicted offender under a statute providing for deportation if the term of imprisonment is "at least one year" where the offender was sentenced to 365 days imprisonment to be served in 2000, being a leap year. The leap year should also appeal to lawyers as it involves a situation where the empirical facts of (in this case the natural) world do not, unfortunately, fit entirely and neatly into a human-made paradigm or a case being presented3, leading to the need to adapt the same, so as to create an orderly and workable system or case.

The reference to "Better Call Saul" is an (admittedly clumsy) segue into describing some other aspects of this edition. An article by Carol Hamilton addresses Fiduciary Obligations in Elder Law. Those familiar with the show will recall that the protagonist lawyer, who conducts his practice in a dubious fashion, seeks to specialise in Elder Law for not entirely honourable reasons. Of significant interest to practitioners along this theme is Chris Edmonds SC's article on the Disciplinary Provisions of the Legal Profession Act. Julie Ots also has a useful reminder for practitioners as to solicitors' obligations under the Financial Transactions Reports Act. On a more corporate and commercial front, Steven Cole's article discusses the Directors Liablility Reform Bill and Maha Chaar has an article addressing Directors' Personal Guarantees. There is also an article on Barrister's Clerks, by an Eastern States-based Barrister's Clerk, Daniel Perry. Finally, readers of Brief will be saddened to hear of the passing of Tom Hurley of the Victorian Bar late last year, and also, recently, Emeritus Professor Douglas Payne of the University of Western Australia. Tom Hurley's case notes were a feature of Brief journal for many years and would be well known to readers. In addition to his long and distinguished time at the bar, during which he devoted himself to a large number of pro bono cases, Tom was an editor of many law reports and other legal publications. Many readers would have been lectured by, and known from practice, Emeritus Professor Douglas Payne and would be saddened to hear of his death earlier this year. NOTES 1.

Also, a Sherlock Holmes story involving an inheritance due to be received upon the beneficiary's 21st birthday, where the beneficiary was born on 29 February.

2.

Habibi v Holder.

3.

As regards a leap year, because the Earth completes a revolution around the Sun every (approximately) 365.2422 days, not 365 days exactly. Further, because the astronomical 'year' is not exactly 365 and a quarter days long, but slightly less, some leap years over time have to be 'omitted'- so, a year divisible by 100, but not 400, is not a leap year.


Latest Opportunities - February 2016 With January already behind us, the New Year is well and truly underway! Now is the perfect time to secure your dream role, as employers have identified strategic business needs for the new calendar year. Or, if you are seeking new legal talent to support your business, we have a number of quality candidates registered, ideally positioned for their next career move. Contact us today for a confidential discussion. Please find below a selection of our latest job opportunities for February.

Insurance Lawyer

Senior Associate

2-4 years PAE

Construction Litigation

This premier firm has a unique opportunity at the junior level within its close knit and rapidly growing local Insurance team. Your work will focus on complex professional indemnity claims for clients in resources, engineering & construction and financial services sectors, as well as general liability matters.

This premier Construction group requires a quality Senior Associate to take a lead role in the management of all construction litigation matters within the team.

With autonomy to run your own matters, you will be responsible for claims assessment, advice and management, preparation and representation on all negotiations and court proceedings, through to settlement. There will be direction interaction with your supervising partner and clients, ongoing professional development and training and given the size of the current team, fantastic prospects for long term career progression.

Acting principally for major contractors involved in the disputes of key resources, infrastructure and development projects, you will lead major construction litigation, domestic and international arbitration matters, with responsibility for advice to clients, management of proceedings, delegating tasks to junior lawyers, briefing counsel and advocacy work. As a key team member, you’ll require around 5 years PAE, proven construction litigation experience with a top tier team, outstanding negotiation skills and solid advocacy experience. Ideally, you will be a more recently appointed Senior Associate, or on the cusp of promotion to SA level.

Your proven expertise in PI & general liability matters, 2-4 years PAE with a specialist insurance firm or practice group and solid academics are essential. Excellent time to join a growing team, well placed for growth.

Supported by a collaborative partner, who will ensure you are given every opportunity to develop professionally and progress within this small, but expanding team, this role represents an exceptional opportunity to directly manage matters and clients, develop your profile and advance your career.

Corporate Lawyer

Workplace Relations Lawyer

2-4 years PAE

3-5 years

This leading global practice continues to strengthen its presence in the local WA market. A superb growth opportunity exists for a high-calibre junior Corporate Lawyer.

Top career progression opportunity for a Workplace Relations specialist, with an interest in safety work, to join this prominent firm. Your role will focus on safety prosecutions, workplace investigations and management of complex litigation matters, as well as substantial advice on safety risk and compliance issues.

Led by some of Perth’s most highly regarded Corporate partners, this established team has successfully generated a significant pipeline of premium work, which includes M&A, capital raisings, general corporate advisory and related commercial work for listed Australian and international companies. You will gain excellent hands on experience, close mentoring from senior lawyers and regular interface with clients, as you support with due diligence work, advice preparation, document drafting and negotiation. A strong academic background, 2 years + PAE with a top-tier Corporate team, regulated M&A experience and a solid working knowledge of Corporations Act and ASX Listings Rules, will ensure your success. One of the best junior Corporate roles currently on offer in the Perth market. Top salary, benefits and opportunities for progression.

You will also act on the commercial advisory and litigious aspects of IR & general employment matters, for an established base of leading employers within resources, construction and other key industry sectors. Within a smaller team structure, prime opportunities for progression exist, including short term promotion to SA level. You will be guaranteed direct client contact, active involvement in business development activities, collaboration with a talented and approachable partner and opportunity to manage your own matters. You’ll require 3 years PAE with a reputable firm or in-house team, existing safety and litigation experience and the drive and ambition to progress your career in the area long term.

Stacey Back Director p

m

e

www.

.au


A meaningful learning opportunity 2015 Mock Trial Competition Feature

Chad Silver, Litigation Barrister/Solicitor, Go To Court Lawyers, talks about his experiences as a Mock Trial Judge.

Grand final teams: Hale School and Mt Lawley SHS together with Cheryl Gwilliam, Director General of the Department of the Attorney General; The Honourable Wayne Martin AC, Chief Justice of Western Australia; and Elizabeth Needham, President of the Law Society.

In front of 25 of my law school peers, I rose with confidence to practise my cross examination skills and after several questions I committed a fatal error: "You have committed previous offences before haven't you?" I asked as a young enthusiastic law student practising my criminal defence advocacy skills. "Are you talking about the ones I committed with your client?� replied the witness. The room went silent and I tried to figure out what just happened ... I must thank Mr Tony Power for instructing the now CCC Commissioner, the Hon John McKechnie QC, to enter the witness box before starting my cross examination. I must also thank Justice McKechnie, as he then was, for not holding back although it caused considerable embarrassment for me at the time. From that day on, I have only asked questions that had answers I knew were favourable to my client's case. We often underestimate the value of creating meaningful learning opportunities for others, or the significance of our time when we 06 | BRIEF FEBRUARY 2016

contribute to such learning opportunities and assist others. Each year, the Society runs the Mock Trial Competition, which provides high school students with the opportunity to be involved in a mock court case in which teams contest a fictitious WA legal matter presented in the WA court system. The cases are presented by two teams, a prosecution/plaintiff team and a defence team, and the students take the roles of barristers, solicitors, witnesses and court officials. Being a Mock Trial Competition judge involves volunteering a few hours of your time to preside over a mock trial and provide suitable feedback. After overcoming the anxiety of this daunting task, I volunteered to judge a mock trial. I attended nervously as two teams embarked on a legal battle arguing their respective cases. I somehow managed to get through the night without getting completely lost. The ability to listen and pay attention for a significant period of time was not easy given the convoluted manner in which the facts were being presented. After several rounds, I had figured out

how to manage the Court and those appearing in front of me. By round three, the Mock Trial Coordinator had to drag me away from the Bench and subsequently reprimanded me for going over time. The opportunity to volunteer in this year's competition has been a privilege and an honour. We must recognise the manner in which the many volunteer practitioners contribute to the skill development of the students involved, through either their coaching or adjudicating. In addition, this opportunity taught me how to assist the Bench in proceedings and how to ensure that what I wanted to communicate to the Bench was being understood. I encourage others to volunteer as a judge or coach in the Mock Trial Competition, not only for the personal rewards but also because it provides such a worthwhile learning experience for both the volunteers and the students.

Continued page 8.


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2015 Mock Trial Competition Grand Final

Cheryl Gwilliam, Director General of the Department of the Attorney General; The Honourable Wayne Martin AC, Chief Justice of Western Australia; and Elizabeth Needham, President of the Law Society with winning team Hale School.

The 2015 Mock Trial Competition came to a gripping close with a closely contested grand final trial between Mt Lawley SHS and Hale School in October 2015. Hale School emerged the victors with the Chief Justice of WA, The Honourable Wayne Martin AC, adjudicating and providing feedback. Elizabeth Needham, President of the Law Society, along with the Cheryl Gwilliam,

Murdoch Scholarship Recipient: Professor JĂźrgen Brohmer, Dean of Law Murdoch University; Calum Moultrie, Lake Joondalup Baptist College; and Mrs and Mr Moultrie.

Director General of the Department of the Attorney General, presented both teams with trophies at the event that followed the trial. With Thanks The Society would like to extend a warm thank you to the volunteers who acted as coaches and judges in the 2015 Competition.

Cheryl Gwilliam; The Honourable Wayne Martin AC; and Elizabeth Needham, with runnerup team Mt Lawley SHS.

We are now taking registrations for volunteers for the 2016 Competition. Previous participation is not required and all volunteers are eligible to claim CPD points for their contributions. We will be running information sessions which will explain the competition in detail. Please contact us on mocktrial@ lawsocietywa.asn.au or on (08) 9324 8604 to register your interest.

Many thanks for participation in the 2015 Competition go to: Adam Ebell Alain Musikanth Alan Watkins Alex McGlue Alex Walters Alexander Mossop Andy Hunter Angelina Gomez Anne Durack Aoning Li Asanka Gunasekera Ashley Roberts Belinda Giles Ben King Blake Primrose Brian Mahon Carolyn Moss Catherine Parsons Chad Silver Chloe Gall Chris Mofflin Christopher Townsend Claire Rossi Colin Thorpe Craig Hershowitz Craig McIntosh

Dan McCarthy Danae Aldous Daniel Harrop Daniel Sutherland Daniel Vivian David Bedenham David Marshall Debbie Taylor Deon de Klerk Elle Petrovic Emily Zylstra Gayann Walker Gray Porter Greg Maher Greg Mohen Hannah Milligan Hiruni Alwishewa Huan Vu Ian Sampson Ilya Isakov Isobel Rosenstreich Jade Lucas Jake Lowther James Graham James Marzek James Newton-Palmer

08 | BRIEF FEBRUARY 2016

James O'Hara Jarred Johnstone Jay Raja Jemimah Mills Jessica Berry Jessica Henderson John Park John Rando John Vaughan Jonathon Horne Josephine Hart Joshua Kain Joshua Richards Joy Horwood Jun Wong June Eaton Karina Travaglione Kate Banasik Kate Fitzsimons Kate Offer Kathryn Roach Katie Brennan Keely Liddle Liz Hollingdale Luisa Harris Margaret Breen

Maria Farrar Marilyn Krawitz Marlene Rudland Marshall McKenna Matt Govus Matthew Briggs Matthew Curwood Matthew Thickett Michael Judd Michelle Gaynor Michelle Huber Michelle Linehan Miranda Robertson Natalie Wigg Natasha Burn Natasha Erlandson Natasha Stewart Nathan Landis Nicola Thomas-Evans Nilan Ekanayake Olivia Loxley Paddy Mohen Paige Stephens Patrick Mackenzie Paul Yovich Peter Quinlan

Rebecca Dennison Rein Squires Rhiarne Bruce Richard Hooker Rosanna Maugeri. Rosemary BlakeyScholes Sam Hemachandra Sam Mengler Sarah Jones Scott Wilkins Scott Young Sharon Milton Simon Davis Simon Steenhof Stephanie Smith Stephen Olynyk Tessa Donovan Tim Lethbridge Tim O'Leary Timothy Colcutt Timothy Goyder Timothy Mason Tun Yeo Vlada Lemaic Zoe Lim


Geraldton Regional Inter-School Mock Trial Competition Kate Turtley-Chappel Legal Aid There's something about competing against students from another school that really raises the stakes. Mock trial competitions are no different. I was lucky enough to work as the Mock Trial Coordinator at the Society during my university years. The Society, with funding from the Department of the Attorney General, coordinates one of the biggest inter-school competitions in Western Australia. The competition itself sees students from all over Perth play out criminal and civil trials against other schools. Lawyers and law students act as coaches and judges using case materials prepared and supplied by the Society.

Geraldton Senior High School preparing for trial at the Geraldton Court house.

The benefits students receive from competing in this type of competition are immeasurable. As a former mock trial participant, coach and coordinator, I've seen the competition from all angles and I'm yet to see a downside. At the end of 2014 I wrote to the Society and asked the Council for permission to use the Society's case materials to create a 2015 Geraldton Regional Competition. At that time there were six high schools in the region who had expressed interest in joining such a competition. The Society supported a regional competition being created and provided me with a number of case materials. For the first year, and to simplify things, I asked for criminal cases only. The next step was to arrange coaches for each of the schools and I must say the Geraldton profession were more than accommodating. I then tried to meet with all the teachers and coaches to explain how the competition worked. We were lucky enough to have the support of the Geraldton Courthouse which fitted the mock trials into its busy schedule. It's such a beautiful old building it would have been a shame not to hold the mock trials there. Unfortunately by the time everyone was ready to run the first round of trials some students/schools had withdrawn. The first round of trials were held on Friday, 12 June 2015 and the students'

Students preparing their closing addresses. Morawa Agriculture College v Geraldton Senior High School, Eva Svanberg (from ALS) presiding as Magistrate.

Geraldton Senior High School with coaches Nando Muccilli and Sarah Williams.

nerves were not dissimilar to mine on my first day as a duty lawyer. Morawa Agriculture College had driven 170kms to participate and were great competitors. Geraldton Senior High School and Geraldton Grammar School were lucky enough to compete in the afternoon, this allowed Serco an opportunity to show the students the other side of court … the cells. Thanks Serco! A huge thank you must also go to the teachers who persevered with a competition that was foreign and everevolving. Then there are the coaches and judges, your time is so appreciated: •

Ferdinando Muccilli (Geraldton Community Legal Centre)

Allison Muller (Geraldton Community Legal Centre)

• Gillian Kelly (Nyarlu Miyarnumalgu Indigenous Women's Legal Outreach) • Ryan Arndt (Ryan Arndt Barrister & Solicitor) •

Eva Svanberg (Aboriginal Legal Service)

Rita Simpson (Geraldton Community Legal Centre)

Faye Gibbard (Ruby and Associates)

Hester Coetsee (Geraldton Community Legal Centre)

Sarah Williams (Geraldton Community Legal Centre)

Kelly Beard (Legal Aid Geraldton)

Round two commenced on November 6 and was the final round of trials for 2015. The good news is we're all a little wiser from last year's efforts but still as enthusiastic; 2016 should be even better.

09


50 Shades of 'Legal' Grey: Fiduciary Obligations in Elder Law Carol Hamilton Law Graduate, Northern Suburbs Community Legal Centre Inc.

What follows below is a reflection on my PLT placement at the Older People's Rights Service based at the Northern Suburbs Community Legal Centre.

On my first day at the Older People's Right Service (OPRS), I was asked if I knew what elder abuse was. Automatically, I thought of home invasions and bag snatching. It was quite an eye-opener when faced with the brutal reality that the majority of elder abuse is actually perpetrated by close family members, friends and carers. 10 | BRIEF FEBRUARY 2016

OPRS is a specialist service, created in partnership with the Northern Suburbs Community Legal Centre Inc. and Advocare. It is an innovative programme designed to respond to the specific legal needs of older people subjected to elder abuse. OPRS is funded by the Western Australian Department of Local Government and Communities and the Commonwealth Attorney-General's Department, not only to protect older people's economic security, but also, to defend and value their contributions to society. I was surprised to learn that there is no

legal definition of elder abuse. Indeed, there is no consensus concerning the definition amongst local, national and international organisations concerned with the prevention of elder abuse.1 In Western Australia, the best definition is supplied by the Minister of Local Government and Communities as "Any act which causes harm to an older person and occurs within an informal relationship of trust, such as family or friends".2 At least I had some idea of what I was in for, or so I thought! While elder abuse can take a variety of forms, the majority of elder abuse involves some form of financial abuse.


It is not uncommon for relationships to change over time, and the relationship between parent and child is a classic example. From a legal perspective, transactions between parent and child will typically attract the presumption of advancement.3 But what happens

task of showing that the relationship with their child has changed to such an extent so as to display elements of child dominance and parental dependency. Only once the presumption of undue influence is proved can the transaction be set aside, unless the dominant child

The question remains whether ... a fiduciary relationship is established which prevents adult children from placing themselves in positions where their duty to their parents conflicts with their own interests. when the parent becomes reliant on the child, especially when this reliance imperceptibly develops over time? When what starts off with doing the weekly shopping trip turns into managing the family finances. In the absence of specific legislation preventing elder abuse, the various doctrines and remedies in equity are currently our clients' best avenue for redress.

Staffed by Senior Solicitor Fran Ottolini and nurse advocate Gaynor Noonan, OPRS provides a unique and bespoke service, specifically tailored to suit the needs of its clients. It is the only organisation of its kind in Western Australia, offering its services throughout the entire metropolitan area. I have had the opportunity to attend hearings at the State Administrative Tribunal and to engage with clients through various means. When dealing with OPRS clients the preferred option is to meet in person, as it is essential to obtain some insight into their current level of capacity. While I am finding that capacity can be difficult to gauge, I am assured by Gaynor that lack of capacity is not always obvious. Where capacity is impaired or where an Enduring Power of Attorney exists, the jurisdiction of the State Administrative Tribunal can provide an avenue for cost effective redress. Not all OPRS clients have impaired mental capacity. Most display a remarkable resilience and desire to stay as independent as possible for as long as possible. Some however do fall within … dare I say it … the grey zone!

Our clients often display substantial trust and confidence in their children. It has often been asked of me during my time whether I consider such a relationship to be a fiduciary one – albeit one that falls outside the established recognised categories – and whether the law should be reformed to include it as a recognised category. It is said that a 'critical' feature of the fiduciary relationship is that the fiduciary "undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense."4 In reality, this is what occurs on a daily basis in the majority of our clients' lives. Our clients' interests are being affected in both the legal and practical senses arising from an informal relationship of trust with their child or children. Nonetheless, the courts maintain that "there is no overarching doctrine at law that an adult child otherwise owes a fiduciary duty to his or her parents".5 This is true even where evidence can clearly show that a parent has become increasingly dependent on their children and that an adult child has actively undertaken to control the parent's welfare and financial affairs. Rather, the courts continue to display a preference to address the issue from the perspective of whether the relationship is of such a nature so as to give rise to a presumption of undue influence.

can show that the transaction was the independent and well understood act of the parent.6 Such an approach fails to display any understanding of the true nature of elder abuse. It fails to take into account the nature of the undertaking an adult child may have made to act on behalf of an elderly parent. It also fails to take into account any relationship of trust and confidence that may exist between the older parent and the adult child. The question remains whether, by reason of vulnerability and dependence, a fiduciary relationship is established which prevents adult children from placing themselves in positions where their duty to their parents conflicts with their own interests. Recently, the Victorian Court of Appeal was prepared to concede that an adult child "had become a fiduciary for his parents by reason of the care of and responsibility for them that he had undertaken".7 While our legal system is well-placed to serve the needs of older Australians, a multi-faceted community based approach is needed to ensure that any law reform provides a cohesive framework within which to tackle elder abuse. Only once this is done will the issue of elder abuse be a lot clearer and less grey. NOTES 1.

Clare M, Black-Blundell B., Clare J, Examination of The Extent of Elder Abuse in Western Australia: A Qualitative and Quantitative Investigation of Existing Agency Policy, Service Responses and Recorded Data (April 2011) <http://apeawa.advocare.org.au/uploaded/files/ client_added/Examination%20of%20the%20Extent%20 of%20Elder%20Abuse%20in%20Western%20Australia. pdf>.

2.

Department of Local Government and Communities, Government of Western Australia, Elder Abuse <http:// www.communities.wa.gov.au/communities-in-focus/ seniors/Elder-abuse/Pages/default.aspx>.

3.

Johnson v Johnson [2009] NSWSC 503; Nelson v Nelson (1995) 184 CLR 538.

4.

Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41.

5.

Daunt v Daunt [2013] VSC 706.

6.

Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134-135.

7.

Daunt v Daunt [2015] VSCA 58.

With respect, such an approach burdens OPRS's clients with the unenviable 11


Directorial Liability for Corporate Fault Restoring the Balance Directors Liability Reform Bill 2015 Steven Cole LLB (Hons) FAICD

Corporations continue to play an ever increasing role in the economy and in society. It is a trend that is anticipated to continue. Yet corporations are virtual creations of statute and their regulation poses unique challenges to traditional criminology principles and enforcement tools. Not only might their size and economic strength diminish the threat of monetary penalties for offences, but relative to an individual, they cannot be incarcerated. These concerns have been recognised for centuries. "Did you ever expect a corporation to have a conscience when it has no soul to be damned and no body to be kicked" (Edward, First Baron of Thurlow, Lord Chancellor of England; 1731-1806) In response, legislators and regulators have sought those souls to damn and bodies to kick in the form of the directors and officers of corporations. Increasingly, ipso facto or derivative liability for directors and officers of corporations, by virtue of their office or designation within the corporation, has become commonplace when prescribing liability for corporate offences in legislation and regulations. Alternatively, legislative enactments may oblige a designated officer of a corporation effectively to prove their innocence from being involved where an offence may have been committed by the corporation (reverse onus of proof). Based on research by Minter Ellison in conjunction with Australian Institute of Company Directors around 2008/09, it is believed that there were over 700 pieces of legislation around Australia with such provisions. Western Australia was no exception. The Directors' Liability Reform Bill 2015 (Bill) now introduced into the WA Parliament recognises at least 60 different WA legislative enactments to be given attention in this respect. Evolution of Reform Agenda CAMAC's Considerations In September 2006 Corporations and 12 | BRIEF FEBRUARY 2016

Markets Advisory Committee (CAMAC) in its report Personal Liability for Corporate Fault addressed the issue relating to directors' duties and personal liability. In particular CAMAC stated: … as a general principle, individuals should not be made criminally liable for misconduct by a company except where it can be shown that they have personally helped in or been privy to that misconduct, that is, where they were accessories.

the seriousness of the risk to reputation and the apprehension, effort and expense to which he or she is subject by being exposed to criminal liability on a prima facie basis. •

as a practical matter, whatever justification there may be, in the context of a small or closely-held company, for treating the individuals who run the company as personally responsible for its conduct, this approach becomes increasingly problematic in the case of larger corporate organisations. It does not fit at all well with the current Australian preferred governance model of boards constituted by a majority of non-executives.

an undue skewing of personal liability provisions, towards the interests of corporate compliance at the expense of individual fairness, will discourage people from accepting board or managerial positions in corporate enterprises.

CAMAC continued … The Committee is concerned about the trend in various pieces of legislation to treat directors or other corporate officers as criminally liable for misconduct by their company unless they can make out a relevant defence. Provisions of this kind are objectionable in principle and unfairly discriminate against corporate personnel compared with the way in which other people are treated under the criminal law: •

the deeming of individuals to be guilty of an offence, by reason of an office they hold or a role they play, unless they can establish a defence, offends ordinary notions of fairness.

the reversal of the onus of proof inherent in such provisions is contrary to the general presumption of innocence in criminal law.

the fact that someone is a corporate officer should not subject that person to criminal liability in a way that an individual in other circumstances, or an individual in a responsible position in a non-corporate organization, would not be so subject.

the fact that a corporate officer may be able, in the circumstances or a particular case, to make out a relevant defence and thereby avoid conviction does not remove

Apart from objections in principle to this extended form of personal liability, the range and disparity in the form of the deeming provisions found in various pieces of legislation create complexity and work against clear understanding and effective compliance. CAMAC's considerations were the culmination of various prior considerations of regulatory and parliamentary committees, authorities and agencies relating to the subject including: the Senate Standing Committee on Legal and Constitutional Affairs Company Directors' Duties (1989); the Corporate Law Economic Reform Programme Paper No 3 Directors' Duties and Corporate Governance (1997); the Australian Law Reform Commission (ALRC)'s report Principled Regulation (December 2002); and the Regulation


Taskforce 2006 in its report Rethinking Regulation: Report of the Taskforce on Reducing Regulatory Burdens on Business.

to influence the conduct of the corporation in relation to the offending; and

1. Where a corporation contravenes a statutory requirement, the corporation should be held liable in the first instance. 2. Directors should not be liable for corporate fault as a matter of course or by blanket imposition of liability across an entire Act. 3. A 'designated officer' approach to liability is not suitable for general application. 4. The imposition of personal criminal liability on a director for the misconduct of a corporation should be confined to situations where: (a) there are compelling public policy reasons for doing so (for example, in terms of the potential for significant public harm that might be caused by the particular corporate offending); (b) liability of the corporation is not likely on its own to sufficiently promote compliance; and

(iii) there are steps that a reasonable director might take to ensure a corporation's compliance with the legislative obligation.

COAG's Principles In 2012 the Council of Australian Governments (COAG) endorsed a set of principles and guidelines concerning personal liability for directors and officers arising from criminal offences by the corporation. The following are the 6 COAG Principles:

corporation did not engage in the conduct constituting the offence [emphasis added].

5. Where principle 4 is satisfied and directors' liability is appropriate, directors could be liable where they: (a) have encouraged or assisted in the commission of the offence; or

3. Type 3 provisions •

(b) have been negligent or reckless in relation to the corporation's offending. 6. In addition, in some instances, it may be appropriate to put directors to proof that they have taken reasonable steps to prevent the corporation's offending if they are not to be personally liable. Application of the COAG Principles Under the COAG Principles director and officer liability provisions should fall into 3 categories (assuming the corporation itself is in breach of the relevant legislation): 1. Type 1 provisions •

Importantly the COAG directors' liability reform approach is not intended to affect: •

Direct liability of directors and officers for their own acts: Directors and officers should continue to be criminally liable for offences committed by them personally. In such cases, the person is not liable because of the office they hold, but because they are the offender.

Accessorial liability: Directors and officers should continue to be criminally liable if they have acted as an accessory in the perpetration of an offence by the corporation. The wording of accessorial liability provisions varies, but commonly

the prosecution must prove every element of the offence against the director or officer.

(i) the obligation on the corporation, and in turn the director, is clear; (ii) the director has the capacity

the director or officer is presumed to be guilty of the offence (by virtue of their holding office) unless they can raise a rebuttable presumption of innocence by producing at least enough evidence to suggest that there is a reasonable possibility that the director or officer took reasonable steps to ensure the

similar to type 2, in that it is presumed that the director or officer (by virtue of their holding office) is guilty, but to avoid liability, the director or officer is required to prove, on the balance of probabilities, that they took reasonable steps to prevent the commission of the offence by the corporation and therefore they should not be culpable.

It was to be expected that under the legislative reform agenda some Type 2 and Type 3 offences would be reduced to Type 1 offences, and some Type 3 offences reduced to Type 2.

2. Type 2 provisions

(c) it is reasonable in all the circumstances for the director to be liable having regard to factors including:

once this rebuttable presumption is established, the prosecution bears the onus of proving (beyond reasonable doubt) that those reasonable steps were not taken, or that there were other reasonable steps that should also have been taken.

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COAG Principles, it is not 'uniform' in its application or scope. Directors' Liability Reform Bill 2015 (WA)

officer took all reasonable steps to prevent the commission of the offence" by the corporation. 3. S44E (COAG Principle – Type 3)

The framework of the intended legislation operates by: •

a person is liable as an accessory where that person aided, abetted, counselled or procured the offence by the corporation. As a result of the COAG endorsement, all jurisdictions within Australia have committed to amend their statutes regarding directors' and corporate liability to be consistent with the COAG Principles. The legislation dealing with this in other jurisdictions at least includes: •

ACT – Directors Liability Legislation Amendment Bill 2012, assented on 21 February 2013 as Act No 4 of 2013;

NSW – Miscellaneous Acts Amendment (Directors' Liability) Bill 2012, assented on 26 November 2012 as Act No 97 of 2012;

QLD – Directors' Liability Reform Amendment Bill 2012, assented on 29 October 2013 as Act No 51 of 2013;

SA – Statutes Amendment (Directors' Liability) Bill 2012, assented on 23 May 2013 as Act No 16 2013; and

VIC – Statute Law Amendment (Directors' Liability) Bill 2012, assented on 13 March 2013 as Act No 13 of 2013.

The Directors' Liability Reform Bill 2015 is Western Australia's relatively delayed response. It should also be noted that although the legislative response across the various jurisdictions is complementary to the 14 | BRIEF FEBRUARY 2016

creating a new Chapter VI, ss44A-G of the Criminal Code which establishes a generic regime to apply to criminal liability of officers for corporate offences and to which other legislation can cross refer and incorporate by reference; prescribing some 60 separate pieces of existing legislation (from Litter Act 1979, to Marketing of Potatoes Act 1946, to Mines Safety and Inspection Act 1994, to Exotic Diseases of Animals Act 1993 to Workers Compensation and Injury Management Act 1981 – to mention but a few) which are to be amended by the legislation by way of cross reference to the new Chapter VI provisions of the Criminal Code.

The Bill is intended to be complementary to and substantially reflective of the COAG Principles by establishing 3 categories of liability for directors and officers (defined consistently with the meaning in s9 of the Corporations Act 2001 – refer s44B of the Bill): 1. S44C (COAG Principle – Type 1) •

the corporation is guilty of an offence;

the relevant director or officer is also guilty 'if the officer failed to take all reasonable steps to prevent the commission of the offence' by the corporation;

the prosecution has the onus of proving all relevant elements of the offence by the director or officer to the appropriate standard of proof.

2. S44D (COAG Principle – Type 2) • •

the corporation is guilty of an offence; the relevant director or officer is also guilty 'unless the officer took all reasonable steps to prevent the commission of the offence' by the corporation; the prosecution has the onus of proving all relevant elements of the offence by the director or officer to the appropriate standard ONLY IF there is evidence adduced by the director or officer that "suggests a reasonable possibility that the

the corporation is guilty of an offence;

the relevant officer is also guilty "unless the officer took all reasonable steps to prevent the commission of the offence" by the corporation;

the director or officer has the onus of proving they took all reasonable steps to prevent the commission of the offence.

In considering what might be 'reasonable steps', each provision provides the following 'inclusive' guidance as to what the court 'must' have regard to: •

what the officer knew, or ought to have known, about the commission of the offence;

whether the officer was in a position to influence the corporation's conduct in relation to the offence;

any other relevant matter.

Conclusion The Bill is the Western Australian Government's response to the COAG Principles endorsed in 2012. Having regard to the CAMAC considerations and the COAG Principles, the proposed legislation is a sound first step towards re-addressing the balance between legislative enforcement against defaulting corporations and enshrined principles of the Rule of Law, and the rights of directors and officers as citizens before the law, including the presumption of innocence unless proven to the contrary. Of note, the Bill does not address and has no effect on: •

direct criminal liability;

accessorial criminal liability;

civil liability,

of directors and officers of bodies corporate before the law. It will be interesting to see whether this is but a first step of a wider reform agenda that may continue its march to also provide for more effective 'safe harbour' defences to civil liability claims against directors and officers including in the form of an effective 'business judgement rule' or a hybrid derivation of such a rule.


Solicitors' Obligations Under the Financial Transactions Reports Act Julie Ots Ots & Associates, Quality Practice Standard Auditor

All members should be mindful of their obligations under the Financial Transactions Reports Act 1988 (FTR Act). If your law practice receives cash into trust or a cash payment for an invoice of a value of AUD10,000 or more, you are required by section 15A of the FTR Act to submit a significant cash transaction report (SCTR) to the Australian Transaction Reports Analysis Centre (AUSTRAC). Solicitor significant cash transaction reports (solicitor SCTRs)

Whether or not a transaction is entered into "in the course of practising as a solicitor" and "entered into by, or on behalf of, a solicitor" can only be determined on a case-by-case basis. This reporting obligation does not apply to a solicitor in relation to a transaction where all of the following criteria are met: •

What are 'solicitor SCTRs'? The FTR Act requires a solicitor to report cash transactions which are entered into by, or on behalf of, a solicitor, a solicitor corporation, or a partnership of solicitors in the course of practising as a solicitor, where the cash transaction involves the transfer of currency of AUD10,000 or more (or foreign currency equivalent) in value. The following examples indicate when a significant cash transaction reporting obligation may arise: •

A client enters into a transaction with their solicitor and the transaction involves the transfer of cash to the value of AUD10,000 or more to the solicitor. Solicitor A, who is acting on behalf of a client, enters into a transaction with Solicitor B which involves the transfer of cash to the value of AUD10,000 or more to Solicitor B.

A person makes a payment of cash to the value of AUD10,000 or more into a solicitor's trust account.

the solicitor is a reporting entity under the Anti-Money Laundering and Counter-Terrorism Act 2006 (AML/ CTF Act); and

the transaction occurred after 11 March 2010; and

the transaction is a designated service under the AML/CTF Act.

This reporting obligation also does not apply where a solicitor provides a threshold transaction report under section 43 of the AML/CTF Act in relation to the transaction. What are the reportable details for a solicitor SCTR? Schedule 3A of the FTR Act specifies the reportable details for a solicitor SCTR. The details required include the date and nature of the transaction and the amount involved; the name of the solicitor's firm, the address of the firm and the place of the transaction; the names, addresses, occupations and dates of birth for each person involved in the transaction and for any person that they represent; and

details of any cheques also involved in the transaction. What are the reporting periods for a solicitor SCTR? Section 3 of the FTR Act provides that solicitor significant cash transactions must be reported within the following reporting periods: •

If the transaction involves foreign currency, the reporting period ends the day after the day the transaction occurred.

If the transaction does not involve foreign currency, the reporting period ends 15 days after the day the transaction occurs.

Further information on the lodgement of SCTRs by solicitors can be found in the AUSTRAC compliance guide: www.austrac.gov.au/businesses/ obligations-and-compliance/austraccompliance-guide. It is good practice to advise clients making such cash payments to the firm of your reporting obligations.

To register your firm for QPS and for more information on QPS visit lawsocietywa.asn. au/qps or email qps@ lawsocietywa.asn.au.

15


Law Society of Western Australia Limitation of Liability Scheme The Law Society of Western Australia Limitation of Liability Scheme (Scheme) enables Australian legal practitioners and incorporated legal practices to limit their professional liability at $1.5 million, $5 million or $10 million depending on the total annual fee income of their law practice. This article addresses practical issues to assist Law Society members who are participating in the Scheme. MAINTAINING LAW SOCIETY MEMBERSHIP Only members of an occupational association can be members of a limitation of liability scheme (Professional Standards Act 1997). Therefore only members of the Law Society can participate in the Scheme. It is imperative that you maintain financial membership of the Law Society. INCORPORATION If a law practice is incorporated, the law practice needs to be a Law Society member and Scheme participant. If you decide to incorporate, ensure that you arrange for the incorporated legal practice to participate in the Scheme. ENSURING ALL LEGAL PRACTITIONERS IN YOUR LAW PRACTICE ARE PARTICIPATING IN THE SCHEME For a law practice to receive the full benefit of the Scheme, all practitioners within the law practice and the law practice itself (if incorporated) need to participate in the Scheme. When a new practitioner commences with your law practice, before the practitioner provides legal services, you should ensure that the practitioner is a Law Society member and arrange for their participation in the Scheme. You should also advise the Limitation of Liability Scheme Coordinator when a practitioner leaves your law practice. Including Scheme requirements as part of your internal human resources practices for induction/resignation would assist in meeting these obligations.

16 | BRIEF FEBRUARY 2016

ENSURING CORRECT DISCLOSURE ON DOCUMENTATION Scheme participants have an obligation to disclosure their limited liability. The disclosure statement, "Liability limited by a scheme approved under Professional Standards Legislation" (in a size equal to or greater than Times New Roman 8) must appear on letterheads, emails, flyers, newsletters, invoices, statements, receipts and advertising material including websites. The disclosure statement is not required on technical documents if the technical documents are sent out under cover of a letter bearing the disclosure statement. Awareness by your administration staff of disclosure requirements would help to ensure that all communications with clients comply. ANNUAL AUDIT OF COMPLIANCE WITH DISCLOSURE Failure to disclose is an offence and practitioners may be fined by the Professional Standards Council. Each year the Law Society is required by the Professional Standards Council to conduct an audit of law practices' compliance with their disclosure obligations. The Law Society is also required to report any breach to the Professional Standards Council. You must respond if you are included in the audit. MAINTAINING NECESSARY LEVEL OF INSURANCE If your law practice has a higher cap of $5 million or $10 million based on your law practice's total annual fee income, you must maintain professional indemnity insurance of at least $5 million or $10 million.

HIGHER MAXIMUM AMOUNTS A law practice may apply for a higher cap for all cases or for a specific case or client. An application for a higher maximum amount must include evidence of professional indemnity insurance of at least the higher maximum amount and the reason the higher maximum amount is required. Approval of a higher maximum amount is at the discretion of the Law Society's Council. PARTICIPATION INFORMATION AND FEE REQUIRED EACH FINANCIAL YEAR In each financial year, the Law Society must pay to the Professional Standards Council a fee of $50 for each participating member. This is included in the membership fees of a Scheme participant and is subject to change. To ensure that the law practices' caps and participants' information is up-to-date, a Participation Information Form needs to be completed and submitted each financial year. Upon payment of your Law Society membership renewal invoice, you should submit your Notification of Participation Form to the Limitation of Liability Scheme Coordinator. LIMITATION OF LIABILITY SCHEME COORDINATOR If you have questions about the Scheme the Limitation of Liability Scheme Coordinator can be contacted on (08) 9324 8652 or by email to lls@ lawsocietywa.asn.au. USEFUL RESOURCES For more information about the Scheme see Limitation of Liability Scheme Guide and Frequently Asked Questions on the Law Society website.


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The Disciplinary Provisions of the Legal Profession Act 2008 (WA) – Design, divisions, difficulties and developments Chris Edmonds SC1

The Legal Profession Act 2008 (WA) (LPA) and similar legislation in other Australian jurisdictions are based upon the provisions of the national Model Bill (Model Provisions) of 2004.2 In relation to complaints and discipline, the Bill continued to provide for the discipline of lawyers based upon the concepts of professional misconduct and unsatisfactory professional conduct (together, statutory misconduct). Beyond expressly including within these concepts a breach of standards of competence and diligence and conduct evidencing unfitness for practice, there is no attempt to define either concept in an exclusive manner. This provides a gateway to other forms of misconduct constituting statutory misconduct. The Bill did provide some assistance in this respect by identifying instances of conduct capable of constituting statutory misconduct, both within the Part containing the 'definition' sections and generally in the context of regulating specific conduct. Several issues arise from the manner in which this legislation has been designed and its intersection with common law concepts of misconduct. The first part of this article includes a Disciplinary Diagram which, by reference to the relevant disciplinary provisions, outlines the statutory path for a finding of statutory misconduct. The second part of the article identifies difficulties arising 18 | BRIEF FEBRUARY 2016

from these statutory divisions and how, as the case law has developed, they have been resolved by reference to common law precepts. The final part of the article suggests how these issues might alternatively be resolved so as to better reflect the language and purposes of the legislation. Statutory definitions Under Part 13 of the LPA, the following 'key concepts' are provided: 'unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner' (s402).3 'professional misconduct includes: '(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;4 and '(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of

the law or occurring otherwise … that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice5 (s403 (1)).' Without limiting the effect of these 'definition' provisions, conduct capable of constituting statutory misconduct includes (s404): (a) conduct consisting of a contravention of the Act, which (by the operation of s583 and s46 (1) of the Interpretation Act 1984 (WA)) includes the Legal Profession Conduct Rules 2010 (Conduct Rules),6 or a previous Act; (b) charging excessive legal costs; (c) conduct for which there is a conviction for a serious offence, a tax offence, or an offence involving dishonesty; (d) conduct as or in becoming an insolvent under administration; … DESIGN AND DIVISIONS The various categories of misconduct under the statutory scheme based on these provisions may be represented as follows:


Disciplinary Diagram unfitness conduct (s403(1)(b)) seriously incompetent conduct (s403(1)(a))

PROFESSIONAL MISCONDUCT (s403)

statutory instances of misconduct

unspecified misconduct under the 'inclusive head'

connected with legal practice

suitability matters (s403(2); s8)

not connected with legal practice breach of Act, overcharging etc (s404) generally e.g. disclosure re costs (s268(7)) common law 'disgraceful conduct' novel instances

misconduct under 1893 Act or 2003 Act (s622)

incompetent conduct (s402) statutory instances of misconduct UNSATISFACTORY PROFESSIONAL CONDUCT (s402) unspecified misconduct under the 'inclusive head'

breach of Act, overcharging etc (s404) generally - e.g. disclosure re costs (s268(7)) common law 'conduct falling short' novel instances

misconduct under 1893 Act or 2003 Act (s622)

Explanation Under the legal profession legislation (including the LPA) the jurisdiction of the regulatory authority and the disciplinary tribunal is confined to hearing and determining cases of 'unsatisfactory professional conduct' (as defined in s402) and (in the case of the disciplinary tribunal) 'professional misconduct' (as defined in s403). However, it will be apparent from the provisions set out above, that there is no content to the defined terms 'unsatisfactory professional conduct' (beyond the inclusion of 'incompetent conduct') and 'professional misconduct' (beyond the inclusion of 'seriously incompetent conduct' and 'unfitness conduct'). It will be apparent also that there are two general categories of conduct for which a description is provided within these provisions; first, conduct described within the definitions ('incompetent conduct' etc) and second, conduct which is capable of comprising statutory misconduct (a contravention of the Act, disclosure as to costs etc). There are important differences as to the scope and operation of these two categories (referred to below).

The reference in the diagram to 'unfitness conduct' both 'connected with legal practice' and 'not connected with legal practice', and reference with respect to both these categories to 'suitability matters,' reflects the operation of s403 (1)(b) and s403 (2). That is, in considering whether a practitioner is unfit for practice, regard may be had to the various suitability matters described in s8 (whether the person is currently of good fame and character etc). The reference in the diagram to 'statutory instances of misconduct' under both 'professional misconduct' and 'unsatisfactory professional conduct' arises because (other than the LPA's treatment of incompetent conduct, seriously incompetent conduct and unfitness conduct under the definition sections), the LPA provides instances of statutory misconduct (specifically under s404 and generally throughout the LPA e.g. s268(7)) without discriminating between them. That is, the conduct referred to may, depending on the circumstances, be treated by the disciplinary authorities as either professional misconduct or unsatisfactory professional conduct.

The reference in the diagram to 'unspecified misconduct under the inclusive head' with respect to both 'unsatisfactory professional conduct' and 'professional misconduct' recognises that the definitions for each of these statutory terms is inclusive only (i.e. each of s402 and s403 'includes' the description which follows). It follows that conduct not expressly included within these definitions (incompetent conduct etc) or instanced in the LPA (breach of the Act, disclosure as to costs etc) may, in the circumstances described below, be treated as professional misconduct or unsatisfactory professional conduct.7 The reference in the diagram to 'common law disgraceful conduct' (in relation to professional misconduct) and 'common law conduct falling short' (in relation to unsatisfactory professional conduct) indicates that where the conduct constitutes 'unspecified misconduct' (i.e. it does not fit into a specific statutory category either under the definition sections or instanced in the LPA), tribunals and courts will make a finding of statutory misconduct where the 'common law' tests for professional misconduct (i.e. 'disgraceful conduct') and unprofessional conduct/ 19


unsatisfactory professional conduct (i.e. 'conduct falling short') respectively are satisfied (concepts discussed below). The reference in the diagram to 'novel instances' acknowledges that it is not a condition for a finding of statutory misconduct that it falls within some recognised category or is specifically proscribed by the Act or some rule of conduct. New categories of misconduct are likely to arise in the context of modern technologies and practices. In the manner in which the common law tests are currently applied, such new instances of misconduct would likely have to satisfy one or other of the common law tests. The reference in the diagram to misconduct under the 1893 Act or the 2003 Act recognises that by s622 (2) of the LPA, where conduct occurring in the period during which the Legal Practitioners Act 1893 or the Legal Practice Act 2003 was current would constitute a contravention of those respective Acts or of the rules made thereunder, Part 13 of the LPA applies. (The LPA commenced 1 March 2009.) That means that where SAT, proceeding under the LPA (s622 (1)), makes a finding that the misconduct contravenes the then current Act, then to the extent of the overlap of liability under the Act and the LPA, that conduct must be treated as either professional misconduct or unsatisfactory professional conduct under the LPA.8 It will be apparent that misconduct may fall within more than one of the categories identified. For example, conduct for which there is a conviction for a serious offence (s404), might also be regarded as unfitness conduct (s403 (1)(b)) and (under the 'inclusive head' in s403) as disgraceful conduct (and so necessarily statutory professional misconduct). DIFFICULTIES AND DEVELOPMENTS Although legislation governing lawyers has been subject to constant revision over the past several decades, this format with respect to the disciplinary provisions has remained largely intact. It has been adopted in the latest version of the legal profession legislation in Victoria and New South Wales.9 There are however a number of difficulties which arise from the design of the statutory scheme and in particular the various open-ended provisions as to what constitutes statutory misconduct. The common law tests10 As mentioned, where the conduct lies outside the definition sections and the express instances of 20 | BRIEF FEBRUARY 2016

statutory misconduct, courts and disciplinary tribunals will make a finding of professional misconduct or unsatisfactory professional conduct under the inclusive head, where the respective 'common law' tests are satisfied to the requisite civil standard.11 'Professional misconduct' under the general law is conduct which would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence (disgraceful conduct).12 If the conduct the subject of the complaint is not specifically referenced in the LPA but is regarded by the disciplinary tribunal as satisfying this test, then it will generally be treated as statutory professional misconduct (under the 'inclusive head' in s403 (1)) under the LPA. 'Unprofessional conduct' (the term used in earlier legislation) has been interpreted to include, as well as disgraceful conduct, "conduct which may reasonably be held to fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency" (conduct falling short).13 Again, if the conduct in question is not included within the definitions or as conduct instanced in the LPA, but is regarded by the disciplinary tribunal as conduct falling short, it will generally be treated as statutory unsatisfactory professional conduct (under the 'inclusive head' in s402) under the LPA. It should be mentioned that there are likely to be few occasions when the conduct under consideration cannot be identified within one of the categories of conduct capable of constituting statutory misconduct referred to in the LPA. In addition to the conduct identified by the definition sections, the categories of conduct capable of constituting statutory misconduct (s404) include a contravention of the Conduct Rules (see above). The Conduct Rules cover a broad range of duties expressed in general terms. It follows that in order for the regulatory authority to establish the statutory basis for a finding of statutory misconduct, it is sufficient if it identifies the conduct as contravening one or more of such rules. The LPA provides instances of conduct which 'is capable of constituting' (rather than which 'is') statutory misconduct (s404, and elsewhere, e.g. s268(7)). It follows that even where the conduct falls within one of the forms of statutory misconduct instanced in the LPA (e.g. a contravention of the Act), there remains the question whether it is serious enough to warrant a finding of statutory misconduct and the

imposition of a penalty and if so whether it should be treated as unsatisfactory professional conduct or professional misconduct. In this respect disciplinary tribunals and courts again apply the common law tests as a condition for a finding of professional misconduct or unsatisfactory professional conduct.14 These tests have also been applied in discriminating between statutory professional misconduct and statutory unsatisfactory professional conduct.15 Note however, that where the conduct satisfies the descriptions within the definition sections (incompetent conduct etc), then statutory misconduct 'is' (arguably) established. The standard against which this conduct is to be evaluated has been defined in relation to incompetent conduct, seriously incompetent conduct and unfitness conduct (i.e. in s402 and s403.) If the disciplinary tribunal were to determine for instance that, in its judgment, the conduct in question satisfied the description of seriously incompetent conduct within the meaning of the legislation (s403 (1)(a)), then, in the absence of exceptional circumstances, that would lead to a finding of professional misconduct. It would seem unnecessary and impermissible to require additionally that the conduct be regarded as disgraceful conduct before it may be said to constitute statutory professional misconduct.16 Whether this application of the common law tests in the several respects mentioned is warranted may be questioned. In the case of professional misconduct, it is not apparent from the provisions of the current legislative scheme that Parliament intended a finding of 'disgrace' or 'dishonour' before a charge of professional misconduct could be made out. Importantly, disgraceful conduct as described in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, was there said not to be the exclusive means of finding statutory 'infamous conduct' (what is now generally described in legislation as 'professional misconduct'). This aspect of Allinson has been emphasised by the High Court, which has on another occasion provided an alternative formulation for professional misconduct appropriate to the circumstances of that case.17 In the case of unsatisfactory professional conduct, it may be argued that conduct which falls short of professional standards (even if not 'to a substantial degree' within the 'conduct falling short test') is sufficient for a finding of statutory misconduct. And in the case of both professional misconduct and unsatisfactory


professional conduct, the LPA's references to protecting the interests of consumers and the public generally (s401 (a)) and the inclusion of members of the public on the regulatory authority and the disciplinary tribunal (s556 (1)(b); s437 (1)) calls into question a standard dependent upon the views or practice of reputable and (additionally?) competent lawyers. Given the composition of SAT for the hearing of lawyers disciplinary cases – judicial member(s), lawyer, informed member of the public, (s437 (1)) it might be supposed that a tribunal so constituted adequately represents the views of the judiciary, the profession, the client and the public. The legislation does not appear to justify the requirement that before finding statutory misconduct this tribunal must hear evidence from, or conjure up, a 'jury' of senior practitioners proffering their views as to whether the conduct is 'disgraceful or dishonourable', or 'substantially falls short' of their standards.18 Support for this position may be illustrated by the treatment under the legislation of 'incompetent conduct' (included within the definition of unsatisfactory professional conduct) and 'seriously incompetent conduct' (included within the definition of professional misconduct). In these instances both the standard of conduct against which the conduct complained of is to be evaluated, and the point of view from which that standard is fixed, are provided. It is sufficient for a finding of unsatisfactory professional conduct that the conduct falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The conduct falling short test is expressly displaced. Indeed, where such conduct involves a 'substantial' (the term used in the conduct falling short test) failure to reach such standard, the legislature specifies that the conduct is to be considered as professional misconduct; and irrespective of whether the profession would (reasonably) find the conduct disgraceful or dishonourable. With the necessary modifications, this standard might be applied beyond incompetence to other forms of misconduct. In legal practice, "the client must depend upon the standards as well as the skill of his professional adviser."19 Unsatisfactory professional conduct generally might be constituted by conduct which falls short of the standards of conduct reasonably expected of a practitioner by the public or the profession.20 Such a formulation would exclude merely formal or inconsequential breaches of the legislation or conduct rules. And where more serious misconduct is involved,

In legal practice, "the client must depend upon the standards as well as the skill of his professional adviser." it might be thought sufficient that the conduct constituted "a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act."21 Such a standard would in each case appear better to advance the purposes of the disciplinary provisions of the LPA, including protection of clients and the public generally and the promotion and enforcement of professional standards, competence and honesty of the profession. Categorisation of misconduct It is significant that the LPA, in identifying instances of statutory misconduct by reference to subject matter (contravention of the Act or Conduct Rules, disclosure as to costs etc), does not in general distinguish as to whether the conduct is to be regarded as professional misconduct or unsatisfactory professional conduct. (The exception is the treatment in the definition sections of a breach of the standards of competence and diligence and unfitness conduct.) How the conduct is treated is left for decision by the regulatory authority (which in some circumstances determines complaints of unsatisfactory professional conduct and otherwise frames the charge and the ruling sought from the disciplinary tribunal) and the disciplinary tribunal (subject to s442). Moreover in providing for the various penalties which may be imposed by the disciplinary tribunal (s438 (2)), no distinction is made between those appropriate to a finding of professional misconduct and those appropriate to a finding of unsatisfactory professional conduct. Again, determination of penalty is a matter for the disciplinary authority taking into account all relevant circumstances.22 However, it is reasonably clear from the LPA that professional misconduct is regarded as reserved for the more serious forms of misconduct and will therefore likely attract more severe penalties. This is apparent from the definition provisions, for example, in that unfitness conduct, which by its nature may well lead to disqualification from practice, is a division of professional misconduct. Further, whilst evidence of a breach of the stipulated standards of competence and diligence may constitute unsatisfactory professional

conduct, a 'substantial or consistent' breach of reasonable standards of competence and diligence is treated as professional misconduct. Moreover, by s426, the Complaints Committee may, in certain circumstances, summarily determine a case of unsatisfactory professional conduct, but must refer cases of professional misconduct to SAT. At a more fundamental level, some assistance in distinguishing between the two forms of statutory misconduct may be found in the dictionary meaning of the respective terms. The Macquarie Dictionary describes 'misconduct' relevantly as "improper conduct; wrong behaviour". And 'unsatisfactory' relevantly means "not satisfying specified … requirements; inadequate". That would suggest that professional misconduct, including by reference to unfitness conduct, connotes impropriety, whereas unsatisfactory professional conduct, including incompetent conduct, indicates some inadequacy in the services provided. Miscategorisation of misconduct Under the legal profession legislation, disciplinary tribunals have jurisdiction (only) to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct (s438 (1)). Given these are defined concepts, in order to found the tribunal's jurisdiction it is necessary that the statutory basis for a finding of professional misconduct or unsatisfactory professional conduct, including where based upon 'common law' concepts (i.e. under the 'inclusive head' in the definitions), is clearly established. Moreover, as a disciplinary tribunal, and the court on an appeal, are as a matter of procedural fairness, confined to determining the matter on the basis of the charge formulated and prosecuted against the practitioner, it is important in this respect also for disciplinary authorities to identify under which statutory heading the complaint is brought and heard.23 Clearly: "It is the underlying conduct upon which the charge is based that determines the proper characterisation of the conduct: in this case, either unsatisfactory professional conduct or professional misconduct."24 In some instances it is not clear that the regulatory authority and the disciplinary 21


(c)(iii)) as do the Conduct Rules (r6, r16). Where the conduct involves a knowingly or recklessly made false statement, especially where made to the court, it would seem more appropriate that this be characterised by the disciplinary authorities as dishonest conduct and therefore demonstrating unfitness, or as a serious contravention of the Act (e.g. breach of a conduct rule), or as disgraceful conduct (or a modern version of Allinson), rather than incompetent conduct or seriously incompetent conduct.

tribunal has matched the 'underlying conduct' with the appropriate statutory classification. This is particularly evident with respect to the categorisation of incompetent conduct. It is clear that whilst incompetent conduct may constitute unsatisfactory professional conduct (and, if serious enough, seriously incompetent conduct) it is not intended to supplant other forms of misconduct which may constitute unsatisfactory professional conduct. Apart from the dictionary meaning of 'competence' (capability, skill) and 'diligence' (constant effort), and their use in combination, this is evident from the statutory context. The definition of unsatisfactory professional conduct includes incompetent conduct. Section 401, which describes the purposes of Part 13, refers to 'professional standards, competence and honesty' and s404 identifies conduct, unrelated to competence, which may constitute unsatisfactory professional conduct or professional misconduct (charging excessive legal costs, conduct for which there is a conviction for an offence involving dishonesty etc). The legislature added incompetent conduct to the existing forms of misconduct because there was a perception that disciplinary authorities sometimes neglected conduct falling short of proper standards of competence and diligence.25 This does not suggest any such conflation of the heads of misconduct into a form of 'professional incompetence'. There have been occasions however where disciplinary tribunals and courts have characterised serious misconduct involving dishonesty as a breach of the required standards of competence and diligence.26 That approach might (with 22 | BRIEF FEBRUARY 2016

respect) be questioned. The decision in Dona v Council of the Law Society of New South Wales [2014] NSWCA 444 provides a recent example. A finding of acting in pursuit of personal interests contrary to the interests of the client (a paralegal prevailed upon an old and unwell client, at her home, to lend to him a substantial sum representing a substantial portion of her assets on inadequate security and without independent advice) was described (at [58], [62]) as "a substantial failure to maintain a reasonable standard of the diligence required of a legal practitioner" (i.e. seriously incompetent conduct) so as to constitute professional misconduct for the purposes of the relevant Act.27 In other cases, findings against a practitioner of knowingly or recklessly making false representations have, by reference to the manner in which the charge has been framed, and has been determined by the disciplinary tribunal, been described by the courts in terms of a breach of required standards of competence and diligence.28 If in this context the common law principles of deceit and negligent misstatement are held to apply, then whilst the making of a negligent statement (where an objective standard is applied) might be described as incompetent conduct or seriously incompetent conduct as defined, these defined terms relating to competence and diligence do not appear apt to describe the making of a fraudulent statement. Deceit, including based on recklessness, involves personal (subjective) dishonesty (i.e. no honest belief in the truth of the statement). The legislation expressly recognises the concept of honesty (e.g. s401 (b); s404

There would seem to be only one case where consideration has been given to the proper categorisation of the misconduct and specifically whether it properly fell within the scope of the statutory provisions dealing with standards of competence and diligence. In New South Wales Bar Association v Meakes [2006] NSWCA 340 the issue was whether gross overcharging, either dishonest or reckless, constituted statutory professional misconduct (defined to include seriously incompetent conduct) or unsatisfactory professional conduct (defined to include incompetent conduct). The Court held ([85], [97], [98], [118]) the conduct constituted professional misconduct on the basis that it was disgraceful conduct (i.e. under the common law test). Tobias JA, with whom Bryson JA agreed, also found the overcharging constituted statutory professional misconduct because "it involved a substantial failure on the part of the respondent to reach reasonable standards of competence and diligence" within the meaning of the Act.29 Basten JA, in a separate judgment, revealed what might (respectfully) be described as the error: [T]he definition [of professional misconduct and unsatisfactory professional conduct under the subject Act] relevantly deals with reasonable standards of competence and diligence. The conduct involved in the present case did not demonstrate a lack of reasonable competence or diligence. Rather, the practitioner failed to comply with a statutory obligation of disclosure and charged excessive fees for the services provided. The latter misconduct involved a contravention of the high standards of honesty and integrity required in accordance with general law principles governing professional responsibility.30 Meeting the requirements of the statutory scheme On this analysis, the disciplinary provisions of the legal profession legislation (in WA, the LPA) will be


met where proceedings before the disciplinary tribunal take this form: (1) The regulatory authority, having set out the particulars of the charge, and identified the breach of the relevant provision of the Act or Conduct Rules, will seek a finding of professional misconduct (typically where impropriety is involved) or unsatisfactory professional conduct (typically where inadequate services are provided); (2) The disciplinary tribunal will determine on the evidence whether those particulars have been established and the relevant provision breached; (3) Having regard to the nature of the charge and all the circumstances, the disciplinary tribunal will determine whether unsatisfactory professional conduct or alternatively professional misconduct has been established; (4) In this respect, first, a finding of professional misconduct will be justified based on a serious breach of the relevant provision, or alternatively based on a substantial departure by the practitioner from the standards of conduct

reasonably expected by the public or the profession, warranting such a finding and a substantial penalty. Where very serious misconduct is involved, including that which is unconnected with legal practice, it may alternatively be expressed in terms of conduct which reflects that the practitioner is not a fit and proper person to engage in legal practice; (5) In this respect also, a finding of unsatisfactory professional conduct will be justified based on a substantive breach of the relevant provision, or alternatively based on a departure by the practitioner from the standards of conduct reasonably expected by the public or the profession, warranting such a finding and a penalty; (6) Where the charge against the practitioner relates to competence and or diligence, the finding will necessarily reflect the statutory descriptions (s402, s403 (1)(a)). It is of course of fundamental importance that practitioners in Western Australia recognise and practice their statutory, ethical and fiduciary obligations as revealed, for instance, in the LPA and the Conduct Rules. It is of importance also that practitioners understand how

the statutory provisions governing disciplinary proceedings under the LPA function where a complaint of a breach of those obligations has been made. The Disciplinary Diagram showing by reference to these provisions the pathway to a finding of statutory misconduct, and the operation of these provisions as revealed in this discussion of some difficulties arising from the statutory scheme, may assist practitioners in that regard. NOTES 1.

Retired barrister, part time senior sessional member, State Administrative Tribunal, WA.

2.

Revised, 2nd Ed, August 2006. All references to statutory provisions in this article are to the LPA. Equivalent provisions are to be found in each of the other Australian jurisdictions (except South Australia). In WA, the disciplinary authorities comprise; as the disciplinary tribunal hearing serious complaints the State Administrative Tribunal (SAT); and as the regulatory authority which determines some complaints and prosecutes more serious complaints before SAT, the Legal Profession Complaints Committee (Complaints Committee).

3.

The conduct described relating to competence and diligence is here referred to as 'incompetent conduct'.

4.

Such conduct is here referred to as 'seriously incompetent conduct'.

5.

Such conduct is here referred to as 'unfitness conduct'.

6.

This appears to be the effect of these provisions, and r4 (2) of the Conduct Rules provides that a breach of the rules may constitute statutory misconduct, although there does not appear to be an authority confirming this position. A contravention of a Conduct Rule would in any event be capable of constituting statutory misconduct under the 'inclusive head' (below).

7.

With respect to s403 (1), the reference to 'includes' also means that both (a) seriously incompetent conduct and

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(b) unfitness conduct, are each possible grounds for professional misconduct. 8.

The position is succinctly summarised in Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [5]-[7] (Giudice) (the misconduct common to the 2003 Act and the LPA referred to being 'incompetent conduct'). Note in this respect that complaints in respect of the 1893 Act in particular are now likely to be time barred: s411 (2). Under the 2003 Act there is a compendious description of 'unsatisfactory conduct' which includes unprofessional conduct (i.e. both disgraceful conduct and conduct falling short as here described), such that there will be few cases where the necessary overlap with the LPA is absent.

9.

The Legal Profession Uniform Law Application Act 2014 (Vic) and the Legal Profession Uniform Law Application Act 2014 (NSW).

10.

This is the subject of the author's article 'Misconduct of Australian Lawyers under Legislation based on the National Model — Aligning the Common Law Tests with the New Statutory Regime' (2013) 39(3) Monash University Law Review 776. The present article draws on some aspects of that publication. The views here expressed are, again, personal.

11.

SAT is not bound by the rules of evidence (s32 (2) State Administrative Tribunal Act 2004 (WA)) but the convention is that the Briginshaw test applies i.e. proof commensurate with the seriousness of the charge: Briginshaw v Briginshaw (1938) 60 CLR 336. The position is explained in Kyriackou v Law Institute of Victoria Limited [2014] VSCA 322 [26].

12.

This 'common law' concept of professional misconduct is derived from the test formulated in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Allinson) for determining what conduct of medical practitioners satisfied the statutory term 'infamous conduct in a professional respect'. The test has since been applied to lawyers.

13.

14.

15.

This 'common law' concept of unprofessional conduct is derived from the test in Re R, A Practitioner of the Supreme Court [1927] SASR 58 (Re R) for determining what conduct satisfied the statutory term 'unprofessional conduct'. In Scroope v Legal Services Commissioner [2013] NSWCA 178 [16]-[17] (Scroope) it appears to have been accepted as a matter of principle that the test for unprofessional conduct (i.e. conduct falling short) was equally applicable to a finding of unsatisfactory professional conduct (although the case was decided on the basis of incompetent conduct as defined). For example, in Legal Services Commissioner v Bone [2013] QCAT 550 (Bone) the charges were of unsatisfactory professional conduct (1) in failing to give notice in relation to costs being conduct (a) in breach of a conduct rule (i.e. conduct capable of constituting unsatisfactory professional conduct) and (b) constituting incompetent conduct; and (2) in the claiming of certain costs, constituting incompetent conduct. The tribunal referred to Scroope [2013] NSWCA 178 and other cases in support of the requirement for a 'substantial' breach before unsatisfactory professional conduct could be established. (A proposition subsequently adopted in Legal Services Commissioner v Given [2015] QCAT 225 [104]-[105].) Both charges were dismissed as the conduct in each case was found to constitute less than a substantial breach so that the threshold for a finding of unsatisfactory professional conduct was not reached (see [64]-[65], [77]-[78]). (An alternative basis for the decision, with respect, might have been that there was no breach of the standard 'reasonably' required of the practitioner (an approach adverted to at [57])). For example A Legal Practitioner v Law Society of Tasmania (2005) 13 Tas R 448, 454 [18] which applied the common law tests to determine whether in the

particular circumstances conduct within the statutory definition (neglect or delay) constituted professional misconduct or unprofessional conduct. 16.

17.

See Law Society of Tasmania v Turner (2001) 11 Tas R 1, 19-20 [51]-[56]; where the common law tests were treated as constituting additional categories of professional misconduct and unprofessional conduct respectively but did not qualify the relevant statutory description ('unprofessional conduct' included 'professional conduct that falls short of a standard of conduct that a member of the public is entitled to expect of a practitioner of good repute and competency'). However, the suggestion in the case that a literal reading of this statutory description might mean technical or minor breaches would qualify as unprofessional conduct (which, with respect, would clearly be an unintended and unsatisfactory consequence) might be questioned, at least as regards the current definition of unsatisfactory professional conduct (as concerns 'incompetent conduct'). What the public is 'entitled to expect' of a 'reasonably competent practitioner' involves the application of an objective criterion based on reasonableness. Note however, there are instances under earlier legislation where the statutory definitions were made subject to satisfying the common law tests: for example, Re a Solicitor [1960] VR 617 (professional misconduct as defined subject to disgraceful conduct test) and Pg v The Law Society of The Australian Capital Territory [2004] ACTSC 99 [22] (incompetent conduct as defined subject to conduct falling short test). And Bone [2013] QCAT 550 (discussed in fn 14 above) provides a recent illustration of the definition of unsatisfactory professional conduct (in relation to incompetent conduct) in effect being subject to the 'substantial' element of the 'conduct falling short' test. Wong v Commonwealth (2009) 236 CLR 573 at 637 [220]: The test in Allinson "identified one form of conduct amounting to 'infamous conduct.'" An alternative description of conduct found to constitute statutory professional misconduct was provided by Rich J in Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563, 563: "it amounted to grave impropriety affecting [the practitioner's] professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, [the practitioner's] clients or the public."

18.

Moreover, the requirement under the Allinson test that the views of senior members as to disgrace or dishonor be 'reasonable' appears to bring the matter back to the judgment of the disciplinary tribunal.

19.

New South Wales Bar Association v Evatt (1968) 117 CLR 177, 184.

20.

The discussion in NSW Bar Association v Harkin [2015] NSWCATOD 11 [24], [25], serves to highlight that inclusion of consideration of the public is presently confined to cases of incompetent conduct and seriously incompetent conduct.

21.

Adopting the language of Martin CJ in Giudice [2014] WASCA 115 [8] in relation to the LPA. This is not to suggest that the Chief Justice is addressing the argument here advanced.

22.

In determining penalty the disciplinary tribunal (and a court) may be aided by submissions from both parties. The principle in Barbaro v R (2014) 253 CLR 58, that it is impermissible for a prosecutor in criminal proceedings to make submissions as to the appropriate sentence, does not apply to civil penalty proceedings (as are professional disciplinary proceedings): Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 (9 December 2015).

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23.

As to the requirements for procedural fairness, see Walsh v NSW Law Society (1999) 198 CLR 73; Mijatovic v Legal Practitioners Complaints Committee (2008) 37 WAR 149, 153 [3]-[14], 166-168 [55]-[61]. It follows that at the outset of proceedings the regulatory authority must correctly identify and articulate the statutory basis (including those at 'common law') for the charge: Legal Profession Complaints Committee v A Legal Practitioner [2013] WASAT 37 [17]-[20]. The disciplinary tribunal must also do so in its determination: Fidock v Legal Profession Complaints Committee [2013] WASCA 108 [104] (Fidock).

24.

Scroope [2013] NSWCA 178 [28].

25.

Walsh v NSW Law Society (1999) 198 CLR 73, 94 [60].

26.

It sometimes appears as if disciplinary authorities are concerned to characterise the conduct as incompetent conduct or seriously incompetent conduct within the statutory definitions (and otherwise that it falls within the common law tests). Given the various statutory bases for a finding of statutory misconduct e.g. breach of a conduct rule (and the alternative formulations to that in Allinson and Re R) that approach might be thought a 'possibility restrictive exegesis' (New South Wales Bar Association v Murphy (2002) 55 NSWLR 23, 50 [105].)

27.

The issue was whether the lay associate engaged in conduct that, if he were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct under the Act. The Tribunal had found conduct in breach of certain rules sufficient to constitute statutory misconduct but additionally that the conduct met the disgraceful conduct test: Council of the Law Society of New South Wales v Dona [2014] NSWCATOD 27 [30].The Court, rather than adopting this reasoning, appeared to construe the finding as one of professional misconduct in the form of seriously incompetent conduct, which it supported. See at [57]-[58], [62].

28.

For example Legal Profession Board of Tasmania v Haque [2015] TASSC 5 where making knowingly false statements was described ([27], [31]) as conduct that "fell short of the standard of diligence to be expected of a reasonably competent Australian legal practitioner in the sense that practitioners must be expected to be diligent in providing accurate information, as distinct from misleading information, to the bodies that issue practising certificates". This seems (with respect) to treat the practitioner's making a statement, false to his knowledge and reckless as to its consequences (for which he was suspended for 2 years), as merely a lack of effort (diligence) to convey the correct information. See also Fidock [2013] WASCA 108 [105]–[106] (conduct, "not the conduct of an honest solicitor" and a recklessly made statement in an affidavit, each held capable of being seriously incompetent conduct). In Giudice [2014] WASCA 115 the charge was professional misconduct by seriously incompetent conduct by making a knowingly or recklessly misleading statement to the court. The Court, in discussing SAT's finding of a recklessly made statement held to constitute incompetent conduct, posited that had the correct (subjective) approach been adopted, such conduct would likely have led to a finding by SAT of seriously incompetent conduct (i.e. professional misconduct). See at [8], [50], [115], [149]-[151].

29.

New South Wales Bar Association v Meakes [2006] NSWCA 340 [24], [86].

30.

Ibid., [101]. It should be acknowledged, but it does not detract from this argument, that the comment was made in the context of the jurisdiction of the Court in relation to penalty and did not expressly refer to the decision of Tobias JA on the alternate finding of seriously incompetent conduct.

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1.

2.

Sole Practitioner and Small Firm Forum Law Society Event Wrap 3.

4.

The Law Society held its Sole Practitioner and Small Firm forums in October and November last year at the Esplanade Hotel, Fremantle and the Rose and Crown Hotel, Guildford. Both forums were well attended and provided a networking opportunity for sole practitioners and small firms to make business and social connections in a casual setting. Practitioners enjoyed drinks and canapテゥs, whilst learning about a topical subject from a sole practitioner and small firm perspective. The topic of discussion at the Fremantle forum was Knowledge Management and the both speakers, Susan Thick, Knowledge Manager at IRDI Legal and Joanne Casey from The Right Mix presented an insightful talk with practical tips on knowledge management for sole practitioners and small firms. The topic of discussion at the Guildford forum was on the proposed compulsory practice management scheme. Libby

5.

Fulham, Deputy Executive Director, and Julie Bain, Legal Education Coordinator at the Legal Practice Board of Western Australia discussed the implementation and content of the proposed new practice management requirements with particular emphasis on sole practitioners and small firms. Given the relaxed and convivial nature of both forums there was plenty of opportunity for practitioners to ask questions to the presenters both from the floor and in person after the talks with drinks and canapテゥs. Practitioners also took the opportunity to share their experience and insight on the challenges of running their own firm.

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Fremantle Sole Practitioner and Small Firm Forum.

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David Davidson, Office of the Director of Public Prosecutions for Western Australia, and Philippa Rezos, Legal Profession Complaints Committee.

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Joanne Casey, The Right Mix and Susan Thick, IRDI Legal.

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Denis Barich and テ(ne Whelan, Law Society; and Greta Dye, Thomson Reuters.

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Anna Sinagra, Western Legal Pty Ltd; Jeanette Pedulla, Pedulla and Associates; Elisha Rose, ER Legal; and Kate Walawski, KRW Legal.

Proudly sponsored by

The next Sole Practitioner and Small Firm Forum will be held in Joondalup on Wednesday, 17 February 2016. The forum is a non CPD social event free to members of the Law Society and a nominal fee to non-members.

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Directors' Personal Guarantees Maha Chaar Senior Associate, Tottle Partners It is well enshrined in law that a company is a separate legal entity and is responsible for its own debts. However, for companies that have a proprietary limited status, are smaller in size and/ or are owner-managed it is often the case that third parties such as financial institutions, landlords and even suppliers will require the directors to give personal guarantees to support the company's obligations by agreeing to pay its debts or otherwise discharging its liabilities in the event of default. This can lead to considerable pressure being applied to directors to give personal guarantees in circumstances where the company's prospects may have been viewed through rose-coloured glasses, where there is a need to borrow working capital to get the business up and running, or to complete a significant purchase. Directors need to be aware of the full implications of giving such a guarantee, particularly as this may mean that a director's personal assets are at risk. Creditor Expectations Pursuant to s129 of the Corporations Act 2001 (Cth) (Act), a creditor is entitled to assume that a director has authority to exercise the powers and perform the duties expected of directors in a similar position to giving a personal guarantee as when executing a loan document. Creditors are entitled to assume under statutory provisions (e.g. s180(1) of the Act) and common law standards that directors are familiar with, and have an understanding of, the affairs of the company. This in turn leads to an expectation by creditors that a director is familiar when providing a personal guarantee. Term of Guarantee Directors need to be cautious about the duration of any personal guarantee which they agree to give. Most personal guarantees are not limited in time and a director's obligations under the guarantee may be continuing. This

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in effect means that a guarantor may be liable for past, present and future obligations of the company.

Director Ceasing to Hold Office

The term of a director's personal guarantee needs to be considered because if the liability is a continuing one, even when the company's current indebtedness has been discharged, a director could still be held liable for subsequent borrowing by the company.

There is a common misconception that if a guarantor ceases to hold office, this will result in an automatic release of the director's obligations under the guarantee. The principal way a guarantor can ensure that they are released from their obligations under the guarantee is to make such a release a term of the guarantee.

The Consequences

Directors' Duties

If a personal guarantee is called on, a director's liability to discharge the company's obligations will be governed

A director who has given a personal guarantee in respect of a transaction will need to declare his or her interest in the

Directors need to be aware of the full implications of giving such a guarantee, particularly as this may mean that a director's personal assets are at risk.

by the terms of the guarantee. If the director fails to comply with a demand, it is open to the creditor to commence legal proceedings and ultimately obtain and enforce a judgment debt against the director's assets. If a director's assets are insufficient to satisfy any judgment, a director may be made bankrupt. This would have a number of significant consequences not only on the director's credit rating and the ability to obtain financial services, but also on the director's ability to continue to hold office. An undischarged bankrupt may not act as company director without leave of the court: s206B(3) of the Act. In situations where several directors of a company give joint and several personal guarantees to the same creditor, that creditor need not call on all the directors to pay the debt and usually has absolute discretion to claim the guarantee amount from one or more of the guarantors. It is often the case that a creditor will focus its recovery attempts on the director with the most assets, such as real estate.

relevant transaction to all other directors. Directors also need to be mindful of the fact that giving a personal guarantee may place the director in a situation where a conflict of interest may arise between the director's personal interests and those of the company. A director who causes a company in financial difficulty to pay off a creditor to whom he or she has given a personal guarantee ahead of other creditors is liable to have that payment set aside as a preferential payment, and it would be a breach of the director's duty. Conclusion Directors need to appreciate the full extent of their potential exposure under a personal guarantee and question whether it is really necessary. If a director must give a personal guarantee, then he or she should seek to ensure that the terms of the guarantee are limited to an acceptable amount and are linked to a specific loan or transaction, rather than being an 'all monies' guarantee of all the company's debts.


Aboriginal Alcohol and Drug Service Launch of Strategic Plan 2015 - 2020

The Honourable Wayne Martin AC, Chief Justice of Western Australia Transcript of speech delivered Friday, 23 October 2015

Introduction I am greatly honoured to have been invited to address this gathering which marks the launch of the strategic plan which has been developed by the Aboriginal Alcohol and Drug Service (AADS) in order to guide the continuing development of the service over the next five years. The over-representation of Aboriginal people in the criminal justice system I have said many times since my appointment as Chief Justice of Western Australia that the gross overrepresentation of Aboriginal people within the criminal justice system of this State is by far the biggest single issue which confronts our justice system. The link between substance abuse and offending One does not need to be a criminologist or a judge to appreciate the very strong connection between substance abuse and criminal behaviour. That connection is very strong regardless of the ethnic background or culture of the offender. In the Supreme Court of Western Australia, where I sit, we deal with the most serious offences committed in this State, being mostly homicides and armed robberies. I cannot recall ever seeing an armed robbery case that did not have a connection with illicit drugs. Alcohol and drug abuse is very strongly connected with our homicide jurisdiction, and is a significant feature of many of the cases within that jurisdiction. Tragically, Aboriginal people are significantly over-represented in the homicide jurisdiction, very often in cases of family violence. Sustained abuse of alcohol is a very common characteristic of such cases. Substance abuse has other deleterious consequences Of course, I do not mean to suggest that the only adverse consequence of abuse of alcohol and the use of illicit drugs is criminal behaviour. Misuse and abuse of such substances has many other 28 | BRIEF FEBRUARY 2016

very adverse effects, including a wide variety of adverse health consequences, and connections to unemployment, mental illness, homelessness and social dysfunction generally. Some of the adverse health consequences can be intergenerational, such as when the development of a foetus is affected by foetal alcohol spectrum disorder or the use of illicit drugs. Why have an Aboriginal Alcohol and Drug Service? There are many good reasons for the existence of a drug and alcohol service managed by Aboriginal people for Aboriginal people. In the short time available, I will mention just three of those good reasons. Some common causes The causes of substance abuse are many and varied, and defy generalisation or simple classification. The causes of substance abuse amongst Aboriginal people are no different and are as many and varied as the circumstances of anybody affected by substance abuse. Nevertheless, in the case of Aboriginal people there are some common causal factors which can be traced back to the days of colonisation. Of course, in a very real sense, all drug and alcohol abuse by Aboriginal people can be traced back to colonisation because before the European settlers arrived, there were no drugs or alcohol (at least nothing like in its European form) on this continent. In addition to bringing with them the substances which have had such an adverse effect upon the original inhabitants of this country, the European settlers did many other things which have contributed to the devastating effect which substance abuse has had upon the lives of too many Aboriginal people. Those things include dispossession and removal from traditional land, cultural dislocation, the fracture of families, the marginalisation of Aboriginal people as a minority cultural group in a country in which the dominant culture is alien to Aboriginal ways

and traditions, and the multi-faceted disadvantage experienced by too many Aboriginal people across a spectrum of fields including health, education, employment and housing. A true comprehension of these causal factors, which are present in differing degrees in many Aboriginal people suffering the adverse effects of substance abuse, is critical to the successful delivery of programmes and services designed to mitigate the effect of substance abuse. It is Aboriginal people who most truly comprehend those factors. Cultural sensitivity and relevance The second reason why it is vitally important for there to be a drug and alcohol service presented by Aboriginal people for Aboriginal people is that it facilitates the delivery of programmes, services and responses which are sensitive to and responsive to the particular needs, expectations and culture of Aboriginal people. Too many times we have seen the failure of programmes and services designed and delivered to Aboriginal by non-Aboriginal people. Responsibility Third, in my view it is of the utmost importance that Aboriginal people take responsibility for their own people and community, and are provided with the powers and resources which they need to discharge that responsibility. The continuing gross over-representation of Aboriginal people within the criminal justice system of this country provides tangible evidence of the failure of policies, programmes and services designed and presented by nonAboriginal people. Albert Einstein is often attributed with observing that the definition of insanity is continuing to do the same thing again and again expecting different outcomes. (Interestingly others attribute it to either Narcotics or Alcoholics Anonymous, which seems particularly appropriate given the occasion today.) As the over-


feature representation of Aboriginal people in the criminal justice system has generally worsened over the last few decades, plainly what we have been doing in order to address that issue has not worked. I have many times expressed the view that the empowerment of Aboriginal people who are provided with the resources and capacity to take responsibility for Aboriginal issues is much more likely to produce long-term gains than the various policies and programmes developed by non-Aboriginal people which have been tried and which have failed in the past. The Aboriginal Alcohol and Drug Service I would like now to say a bit about the Aboriginal Alcohol and Drug Service. It is significant that the Service is the only service of its kind specifically designed for Aboriginal people in the metropolitan area or in the south-west of Western Australia. It is the only Aboriginal organisation to own and control a women's refuge. Looking around these fantastic premises, there is very tangible evidence of the way in which the Service has flourished since 1988 when a group of 40 or so Aboriginal people gathered to discuss their concern that mainstream services were not responding effectively to the particular needs of Aboriginal people in relation to drug and alcohol abuse. From humble beginnings, a staff of two workers overseen by a committee without any government funding, the Service has developed to a substantial and professional organisation which employs 40 staff, hosts students and volunteers, and which is provided with financial backing by a broad range of State and Federal funding partners. The professionalism characteristic of the Service was officially recognised in 2013 when the AADS gained accreditation status in relation to internationally recognised standards in the area of health and community service promulgated by the Quality Improvement Council. The Service has maintained accreditation through reviews conducted since then. In the same year, 2013, the Service delivery model for the women's refuge was acknowledged as "the way forward" for this important sector, and the refuge secured the support of a range of State and Federal agencies. More recently, last year in July the Service was acknowledged as leaders in the delivery of Aboriginal services by the award of the Drug and Alcohol Office's 2014 Alcohol and Drug Excellence Award in the category "Aboriginal: Outstanding Outcomes for Aboriginal People".

Key features There are a number of key features of the approach taken by the AADS. They include, significantly, not only recognising Aboriginal culture and diversity in everything they do, but adopting an holistic approach to therapy, which recognises that substance abuse by Aboriginal people can only successfully be addressed by recognising and dealing with the multifaceted problems and issues which very often contribute to such abuse by Aboriginal people and to which I have already referred. The Service also recognises the great desirability of collaboration with the Aboriginal community as well as other agencies, and has developed close and effective relationships with a large number of Aboriginal and mainstream organisations in the Perth metropolitan area. The AADS also recognises that strong leadership is essential to the development of community participation and engagement, and has actively embraced strategies to facilitate the development of capacity and the identification of future leaders. Having had the opportunity to meet with a number of members of the Board of this Service, it is clear that these strategies have been very successful and I gained the firm impression that there is a very strong Board committed to a very sound governance model. Of course, any service of this kind needs human and financial resources in order to develop and deliver good quality treatment programmes designed and presented by Aboriginal people and which support long-term change in the lives of those afflicted by substance abuse. It is to be hoped that the various agencies with which the Service has developed strong relationships continue to provide the resources required to enable this extremely valuable service to continue. The Strategic Plan As this is, after all, the launch of the strategic plan for the next 5 years of the Service, I will close these short remarks by referring to the key principles which have been developed in that plan. The overall vision is for the rebuilding of a healthy, safe, strong and sustainable Aboriginal community. In order to assist in the pursuit of that vision, the purpose of the AADS is: to provide culturally secure and holistic programmes and strategies that inform, educate and address

the harmful effects of alcohol, drugs and other substances on individuals, families and communities, and strengthen the mind and body, and heal the spirit. That purpose in turn is to be achieved by key actions and performance measures that have been developed in order to facilitate the achievement of five strategic objectives. Those objectives are: 1. Raise the public profile of the AADS. 2. Work towards securing a sustainable financial future. 3. Develop, build and expand the delivery capacity for services. 4. Work towards being recognised as a centre of excellence. 5. Strengthen and develop the organisational foundation of the service. As you will see from the document which records the strategic plan, detailed actions and measures of performance have been developed in support of each of these important strategic objectives. Successes of the kind which have characterised this organisation since its humble beginnings in 1988 do not occur by chance or coincidence. In a complex world in which many notfor-profit organisations are competing for increasingly limited resources, no organisation can take its continued existence for granted, and all who wish to continue in existence must demonstrate their capacity to change with the times and demonstrate their capacity to achieve measurable outcomes which justify continued funding. Those outcomes are much more likely to be achieved through the development of a framework within which specific actions are taken, consistently with the overall strategy and objectives of the organisation. The strategic plan which we are launching today provides an admirable framework for the Aboriginal and Alcohol and Drug Service to continue to go from strength to strength and expand the range and quality of the vital services which it delivers to descendants of the original inhabitants of this continent, with the longest unbroken culture in human history, who have been so adversely affected by the scourge of substance abuse. I would like to conclude by congratulating all those involved in the development of the strategic plan which we are launching today, and to wish them every success in its implementation.

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Brothers in the Gunpits: the Parker Men A new display at the Old Court House Law Museum Caroline Ingram Curator, Old Court House Law Museum The 5th Chief Justice of Western Australia, Sir Stephen Henry Parker, and his wife Amey Leake had a large family of 14 children with 11 surviving to adulthood.1 Of his four sons, two chose to follow their father into the legal profession. Francis 'Frank' Maitland Wyborn Parker, the oldest son, became an articled clerk in his father's firm of Parker & Parker and was admitted to the Western Australian bar in 1899. He served in the Boer War where he was awarded the Distinguished Service Order after commanding a group of 22 men in a day long occupation of a kopje against a force of 400 Boer troops2. After returning to Western Australia he decided to leave the family firm and set up on his own, eventually becoming a Crown Prosecutor. Frank re-enlisted at the outbreak of World War I, and embarked as Captain BrevetMajor with the 8th Battery from Fremantle on HMAT Medic on 31 October 1914. However, he was destined never to fight. Following his arrival in Egypt, he became ill with cerebrospinal meningitis and on 18 March 1915, aged 38, he died and was buried in the Cairo War Memorial Cemetery, Egypt.3Â One of his men described the funeral:It started from Mena House at 2.30 and had to be taken eight miles to the cemetery; where we arrived at 5.15 p.m. Two hundred men with rifles led the way, and after the hearse came the band; then the chief mourners, his two brothers, a few relatives and his horse. Our major rode alongside the team; next came officers from all units, followed by the Western Australian Light Horse Regiment and the Army Medical Corp. The cortege must have been over a mile long. The band, played the 'Dead March' in 'Saul'. It was very hard driving, so we had to pull up every few yards, the pace was so slow. At the graveside the men fired three volleys over the grave, and the trumpeter sounded the 'Last Post'. I will never forget the scene as long as I live.4

30 | BRIEF FEBRUARY 2016

situation. He is a very fearless Officer, fighting his battery from forward observation posts.11

Hubert Stanley Wyborn Parker was the youngest son of the family and also followed his father and older brother into a career in law. Like his brother, Hubert did his articles with the family firm of Parker & Parker. In fact, at various times, six of Sir Henry's children were employed in the firm5. Hubert was admitted in 19066 and by 1907 he was in business with his brother in Port Hedland and Marble Bar operating as F. and H. Parker7.

After World War I ended, Hubert became a partner in the family firm but resigned to serve as a Crown Prosecutor. He became a King's Counsel before beginning a career in politics and was AttorneyGeneral for two months in 1933. During Hubert's time in Parliament, he continued to practice law and maintained his legal practice.12

At the outbreak of World Brothers in the Gun Pits: the War I, Hubert and Frank Parker Men, is one of a series both joined the artillery of displays at the Old Court at Blackboy Hill training House Law Museum to mark camp and were among the centenary of World War I. the first to do so. Hubert It looks at the stories of three was appointed a lieutenant brothers, Frank, Hubert and with the 1st Division Artillery Francis 'Frank' Maitland Harold Parker and the part Headquarters.8 He served Wyborn Parker they played during the war. Western Mail (Perth, WA : 1885 throughout the Gallipoli - 1954), Friday 26 March 1915, The display runs until 25 page 25. campaign, where he was February 2016. The Old aide-de-camp to General Court House Law Museum is 9 Sir Talbot Hobbs. He served for a time situated in Stirling Gardens on the corner in the Camel Corps and also in France of Barrack St and St George's Tce and is where, in 1917, he was severely gassed open Tuesday to Friday. and sent back to hospital in England. While recuperating at the home of NOTES Lieutenant-Colonel Riall, Hubert met 1. Bolton, G, C. & Birman, W. (1988) Australian Dictionary and married the Lieutenant-Colonel's of Biography Vol 11, (Melbourne University Press, 1988). daughter Helen, notifying his family 2. The Press, 20 March 1915 (1915): 10. of his change of marital status with a 3. Australian war Memorial Collection P12296.002 https:// telegram10. www.awm.gov.au/collection/P12296.002. Hubert returned to France and, in January 1919, he was awarded the Distinguished Service Order. The citation read: â&#x20AC;Ś He has made many useful reconnaissances, in particular he made several useful reports as a result of his work in the front line at MARETT WOOD, VILLE-sur-ANCRE and in front of MORLANCOURT. On 8th August he went forward in advance of the Brigade, reconnoitred the positions to be occupied and rendered an excellent report on the

4.

Kalgoorlie Western Argus, Tuesday 27 April 1915 (1915).

5.

Parker & Parker, Parker & Parker 125 Years of Legal Service (Perth, Parker & Parker, 1993) : 6.

6.

The West Australian, Thursday 10 May 1906.

7.

The Pilbarra Goldfields News, 22 June 1907.

8.

Service Record Hubert Stanley Wyborn Parker http:// discoveringanzacs.naa.gov.au/browse/records/527351.

9.

Coombes, David, The Lionheart (Loftus, N.S.W. : Australian Military History Publications, 2007).

10.

The West Australian, 23 January 1918.

11.

Australian War Memorial Honours and Awards (2004) http://static.awm.gov.au/images/collection/pdf/ RCDIG1068383--36-.pdf.

12.

Black, D and Bolton, G, eds, Biographical Register of Members of the Parliament of Western Australia: volume two 1930-1990 (Western Australian Parliamentary History Project, Perth, WA, 1990) p. 134.


End of Year Celebration Law Society Event Wrap 1.

3. 2.

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On Wednesday, 2 December the Society celebrated the end of 2015 with a cocktail function for the legal profession. The setting for this festive occasion was the Flour Factory, a unique Perth venue converted from a 100-year-old flour mill. More than 150 Society members and legal professionals had the opportunity to mingle and share a relaxed drink and canapĂŠs in the contemporary atmosphere. Great conversation, sumptuous food and beverages all flowed to music provided by talented musicians from the Perth Symphony Orchestra. Congratulations to Mark Williams of Valenti Lawyers, who won the main door

prize of a large food and wine hamper from Burgess Paluch Legal Recruitment. President Elizabeth Needham thanked those members who had assisted and contributed to the work of the Society throughout 2015. She also outlined the implementation of the Society's strategic campaigns: supporting the practice of law and supporting lawyers. We look forward to building on these campaigns in 2016. The celebration was the perfect way to welcome the early days of summer and to celebrate a successful 2015.

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Elizabeth Needham, President, Law Society and Doron Paluch, Burgess Paluch Legal Recruitment.

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Wendy Davies, Moore Stephens; David Greenhough, LEAP; and Sam Gray, Incito Wealth.

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Chris Bates, KBE Human Capital and Richard Norton, Norton & Smailes.

4.

Greg McIntyre SC, John Toohey Chambers; Hayley Cormann, Vice President, Law Society; Jocelyne Boujos, Sceales & Co; and Craig Alan Gregson, Flinders Legal.

With thanks to our premium sponsor Burgess Paluch Legal Recruitment, and supporting sponsors Incito Wealth and LEAP Legal Software.

Incito Wealth Identity - Logotype 29.04.10

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31


The role of barristers' clerks â&#x20AC;&#x201C; current, historical and the English and Australian approaches Daniel Perry Practice Manager, Level Twenty Seven Chambers Introduction There have been various dramatic representations of the barristers' clerk, most notably Rumpole of the Bailey's clerk Henry, the Machiavellian chief clerk Peter from North Square, and the scheming shadowy figure of Billy from Silk. While not part of the Western Australian tradition or current practice, the barristers' clerk is part of the practice of chambers in NSW, Queensland, South Australia and Victoria. This article addresses the historical and current role of the barristers' clerk, including a comparison between the United Kingdom and Australian practices. When, where and why were clerks introduced in the United Kingdom? Little is known of the origin of the barristers' clerk. However, one of the first recorded accounts can be traced back to 1660 when Mr Francis North, a barrister, is reported as having been drunk at a circuit dinner. On his way home his horse bolted and it is said that he would have fallen into a pond, had he not been rescued by a barristers' clerk by the name of Mr Anthony Card. So here we have the mention of a barristers' clerk in 1660. Interestingly, this clerk subsequently became an eminent barrister in his own right in Gray's Inn. Charles Lamb, the great English writer, was the son of a barristers' clerk. His father, John Lamb, Clerk to Mr Samuel Salt KC, a Bencher of the Inner Temple, also used to live, with his family, on the same premises as his King's Counsel. Mrs Lamb used to act as laundress, to do the laundering for the barrister, undertake housework and cook his meals. Perhaps these early reports explain the naming of fictional Senior Clerk, Billy Lamb, who was recently brought to the small screen in the BBC1 drama series Silk. In the early nineteenth century, barristers practised individually, each assisted by his own clerk and, perhaps, by pupils

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and recently admitted barristers without tenancies. Reports from the pre-1914 era indicate a clerk served one or two barristers only. Expansion of chambers in London The post-First World War boom of commercial litigation resulted in larger chambers, consisting of about five or six barristers. Reports indicate that the larger chambers had more than one clerk in the form of the 'senior' clerk along with a 'boy'. In light of the increasing volume of work in the 1950s and early 1960s, many chambers felt the need to expand. It was around this time that my father started his clerking career, joining a small set of chambers in The Temple. At the time, the set consisted of two silks and six juniors. In the decade 1965-75 the Bar doubled in size. Despite this, the number of chambers did not increase and instead each set expanded its capacity with numbers being, on average, 15 barristers. The largest sets consisted of about 20 to 30 barristers. My father's chambers housed many of the star names of the Bar, including Lord Devlin, Lord Pearson and a young Robert Alexander. Robert Alexander (who eventually became Lord Alexander) acted in many of the most significant cases of the 1970s and 1980s, including Broome v Cassell & Co Ltd, Geoffrey Archer's libel case, 'Spycatcher' and Greig v Insole (Kerry Packer's Cricket Circus). Nicholas Phillips became the Senior Law Lord after a spell as the Master of the Rolls and Nicholas Lyell became Attorney General. Robert Gatehouse appeared in several cases in the Privy Council being led by the great Australian lawyer Sir Garfield Barwick QC. The Senior Clerk, Ron Burley, was cited by The Times in his obituary in 2010 as "the most powerful clerk the Bar has seen". Described as "reserved, often austere", Burley detested being called by his forename and was hence known to all simply as Burley. No barrister ever called him by his forename, nor did my father

despite 35 years of working with him. Once when Burley went to the House of Lords with a new silk, the official thought he was the silk and that the silk was his clerk, so distinguished did Burley look. Hardly the traits depicted of the barristers' clerk in the aforementioned TV dramas. Although the sets of this era were growing rapidly, they remained, by and large, harmonious and close-knit. My father's early memories include regularly speaking with the Duke of Windsor, who when calling upon counsel in chambers, would insist on calling the newly employed teenage office-boy from South London 'Mr Perry'. A real bond existed between barrister and clerk. A firm sense of togetherness permeated through chambers (something that has sadly been lost in some of the larger chambers of the modern era). When presented with two tickets for the World Cup Final between England and West Germany in 1966, Lord Alexander decided to take my father, his clerk, with him. Today that set houses 75 barristers. The close bond that existed between barrister and clerk is illustrated by the large number of clerks of this era who joined their principals 'on the corridor'. It was a common feature of legal life for a respected principal on appointment to the Bench to ask his clerk to join them as the judge's clerk. The growth of the Bar and the physical limitations of the Inns undoubtedly magnified the tendency towards concentration in London. As barristers and clerks adopted computer technology for scheduling, accounting and billing, the capital investment of practitioners became substantial. The economies of scale encouraged the growth of chambers. Running a modern chambers, with a team of clerks, support staff, client facilities, IT, an online library, a website and a marketing budget became an expensive business. Therefore many sets realised that significant savings could be achieved by way of a merger. Some of the successful mergers produced large


specialist sets that made stronger claims for market dominance. Of course, there is no point in trying to achieve a merger without genuine cohesion. If the mix is not right or the motives for a merger are muddled, problems can and will occur. Some large newly merged sets have folded and there has been at least one merged set that promptly demerged. Behind this, there were many proposed mergers that failed to get over the initial hurdles – something I witnessed first-hand. Ultimately, London sets became increasingly different from each other in terms of their specialisation, composition, income and prestige. The structure of chambers in the United Kingdom Chambers in the UK are structured in much the same way as ours in Australia: that is, chambers comprise a group of barristers sharing facilities, but practicing independently. Services are usually provided by a service company owned by the barristers. That company will rent the buildings, employ staff and provide modern, user-friendly facilities to barristers and clients alike. The larger commercial sets are now run as multi-million pound businesses, many with international offices. By way of example, my former set of chambers in the UK now houses over 130 barristers, with premises in London, Manchester, Singapore and Kuala Lumpur. Most larger chambers will have, alongside 10-15 clerks, a separate marketing department, on-site IT functions, HR, accounts teams, catering and in some instances a chief executive or chambers director. Obviously this comes at a cost. The English approach is in part influenced by the fact that the set, as a whole, has an interest in the chambers' image and reputation, and accordingly in the performance of each member. The process of securing a tenancy is very structured. At the end of the pupillage period, the senior clerk is consulted (in conjunction with the other key decision makers within chambers) to determine, not only merits and demerits of individuals, but also work patterns and volumes of work at the entry levels. Will there be enough work to support the proposed number of new tenants? This approach is also applied to the issue of cross-recruiting, another area where the clerks have a critical role to play. With the clerking team at the coalface, UK sets are able identify gaps in the groups' composition; what are their strengths and weaknesses – in what areas of practice and at what

levels of seniority are chambers not able to service the needs of their clients? This analysis is supported by high-tech computer software that categorizes all work that arrives in chambers by origin, value, volume, area of law, geographical location and even how that work was won.

it is sometimes difficult to pinpoint exactly what clerks do because what is expected in their role can be so diverse. A commercial set of chambers would have a very different business model to a criminal set. Both have different expectations from their clerks. Business development

A barristers' clerk - what exactly do they do? The term 'clerk' is historical and does not accurately reflect the co-ordination of workload, marketing and financial management undertaken. Barristers' clerks are, if you like, the middle-men and women between the barristers and the instructing party – the conduit between the two sides of the profession. They have unrivalled knowledge of the skill-sets (and personalities) of the barristers in their respective chambers, providing solicitors or other instructing agents with the most suitable counsel for the problem at hand. The tendency has been to describe the barristers' clerks' role as an agent responsible for looking after his or her barristers. The crucial difference being that the clerk concerns themselves with the welfare and profitability of the individual, but only in so far as the individual does not impede the progress of the collective set. The clerk is also the point of contact for managing fees, work scheduling and other issues as part of the wider client care commitment. If an opportunity for new work is still in a development phase, the clerks will work with solicitors to ensure they have the necessary information to include the barrister as part of the pitch team – a positive selling point in any client proposal. Fee negotiations for significant and lengthy court hearings involving multiple counsel can be extremely complex and protracted affairs. Solicitors and barristers depend on the clerk to keep track of the progress of cases through the court system. The mechanics of listing are determined, by and large, between the list officers of the various courts and the barristers' clerks who transact business in those courts. Efficient listing requires careful exercise of the clerks' interpersonal skills. In time a relationship of trust and mutual dependence is built between the listing clerk and barristers' clerk. Any clerk will tell you that there is an element of having to be sensitive to the 'politics' of chambers, given the diversity of views and approaches that naturally come with dozens of well-educated, self-employed professionals. However,

Working within an increasingly competitive market, the ability to identify and cultivate new work streams is a key component of the 'psyche' of the modern barristers' clerk; a powerful tool indeed for those large chambers fortunate enough to have a ten-strong clerking team all pulling in the same direction. This requires high-level communication among the members of chambers and clerking teams if chambers are to capitalise on opportunities efficiently. Barristers see that working in tandem with the clerks teams is an effective way of ensuring a steady workflow. Branding Against this backdrop, the question of branding, and what chambers stand for, comes into play. Again this is an area in which clerks have a critically important role to play. I use the word brand reluctantly as we market the reputations of individuals. However, as with every collective, with every entity that shares values, there will be a brand. Chambers are increasingly offering their existing and target clients a deeper understanding of who they are, what they are like to work with, the services they can offer and the locations in which they can undertake business. The 'corporatisation' and commitment to marketing of UK chambers shows no signs of abating. For example, a large set of chambers in Birmingham has recently announced a sponsorship deal with a Championship soccer club with their logo appearing on their home shirts for the coming season. Relationship marketing is the key component in the role of the clerk. This is where the best clerks can add real value, if they have the right level of knowledge of members' practices and chambers' clients. The most successful clerks and barristers have recognised this and continue to do so both domestically and internationally. The role of clerks in developing an international practice In recent years we have seen a huge increase in big-ticket international cases centred in London and a marked uptake in arbitrations worldwide. Significantly, 33


London chambers. It is now common for clerks to gain vocational qualifications with the IBC (Institute of Barristers' Clerks). A number have now gone a stage further and obtained qualifications with The Chartered Institute of Marketing. Some of the more politically motivated chambers have, in recent years, employed clerks or practice managers from outside the conventional fields, with a view that they may make better clerks because they are less bound by tradition and conservatism and are able to offer external managerial and administrative experience acquired in business elsewhere. However, the fact that there are a very small number of clerks (many with similar backgrounds and values), has generated a degree of interdependence rarely encountered in other occupations. Nowhere is there so much competition with so much cooperation. This kindredship even transcends borders and jurisdictions. When and where were clerks introduced in Australia? Above: Barristers' Clerks - Brick Court Chambers board 1972 with Simon Perry (Barristers' Clerk). Above right: Barristers' Clerks - Essex Court Chambers board c1968.

London chambers receive a greater number of instructions from foreign lawyers. Many London chambers now have international outposts; offices in Abu Dhabi, Brussels, Dubai, Geneva, Kuala Lumpur, Hong Kong, New York and Singapore all displaying shiny brass plaques bearing the name of London chambers. However, a brass plaque or a postal address does not necessarily make you part of a legal community. A barrister's international reputation is based on his or her and the clerks' ability to maintain relationships with foreign lawyers and his or her expertise to get the results the client expects. Many of the senior clerks at the large commercial chambers regularly undertake international marketing trips to build upon and develop these relationships. Strong links within a jurisdiction are obviously conducive to a healthy relationship, however it is beyond geography. It is more to do with attitude and relationship management. The London clerk travelling to the AsiaPacific is not a new phenomenon. The senior clerk at Essex Court Chambers, David Grief, first visited Singapore in 1978. My former Senior Clerk, Les Page, was the first clerk to visit Hong Kong in the 1970s. Les was the clerk to Richard Yorke QC, the pre-eminent 34 | BRIEF FEBRUARY 2016

banking lawyer of the time. Richard Yorke was very forward-thinking and saw an opportunity of promoting himself and Chambers in the region, and when instructed to appear on a heavy six-week banking case in Hong Kong, he took the decision to take his clerk with him. David Grief spoke on this very topic at the inaugural NSW Barristers' Clerks Association Conference in October 2011. His theme was how to develop an international brand for a set of chambers (building on the brand already established in London). Clerks as a 'profession' It used to be the tradition for clerks to start their career straight from school, at the bottom of the ladder and work their way up to the top. Young junior clerks entering the profession usually had no expectations of a specific career. Recruitment was traditionally mediated by contacts, often a relative who was a clerk. My clerking career began in 1993, when I joined a set of chambers in Gray's Inn, where I was privileged to work under the guidance of Les Page. He had joined as a 15 year old and had firmly established Chambers as one of the leading sets in London. At the time, my father and brother were both clerks at leading

There is no known record of the early clerks in Sydney, although a paper by Ken Hall to the NSW Clerks Association in 1980 makes reference to a clerk by the name of Tom Ozard in 1912, who remained a clerk until the late 1950s. The chambers of the post-Second World War period were scattered in and around Phillip Street. There were likely to have been no more than ten clerks working within these chambers at that particular time. The opening of Wentworth Chambers in 1957 and Selborne Chambers in 1959 brought all the chambers and clerks under one roof. The clerks of this era performed a role not dissimilar to their UK counterparts. In the late 1970s and early 1980s, the numbers at the Bar in Sydney increased significantly. However, it is within this period where the role and functions of the Sydney clerk began to change. The causes are the source of much conjecture. The clerks number some 75 in Sydney now. It would be fair to say that the traditional clerking model seen in the 1950s and 1960s is a thing of the past. There are some exceptions. The majority of clerks in Sydney now perform an administrative role, where tasks include: running of floor accounts; collection of floor fees and floor banking records; paying of staff wages; floor housekeeping; floor library; staff supervision; and so on.


The Victorian clerking system originated from that in England. Victoria's first clerk, William Theophilos Druce, established his business in 1860, almost 20 years after the admission to practice of the first barristers and solicitors. His business survives as Dever's List. The only material difference between Victorian clerks and those elsewhere is that they are not geographically colocated with the barristers on their lists. In many other respects they operate like the English clerks: they provide solicitors with recommendations; negotiate fees; send out bills and collect payments; undertake marketing; and provide pastoral care to their barristers. However, they do so with a far lower ratio of clerks to barristers than the UK model. Until 1961, when Owen Dixon Chambers opened, Victoria had only three clerks. As the Bar expanded (currently almost 2000 members) more clerks set up businesses. The clerks operate with two basic business models: clerks who own and run their own businesses to their own profit; and clerks who are employees of the business which provides clerking services, on a nonprofit basis, and which is owned by the barristers of that list. The attraction of this model to the Bar has led to a number of lists converting from private to barrister ownership. In Adelaide, the clerks primarily perform an administrative role: running of chambers accounts; housekeeping; library; and so on. Some also provide general secretarial assistance to their barristers. In the past, a 'court diary' was administered and recommendations

were provided to solicitors. This now occurs on a very infrequent basis. The 'traditional' clerking functions here have also receded over time. Without the size of chambers generally increasing, it was perhaps not economically viable to introduce a clerking system in Queensland. Until very recently, most sets numbered less than 15 barristers. In late 2014, and in a move that is believed to be a first for the Queensland Bar, Level Twenty Seven Chambers (a leading commercial set in Brisbane) engaged me as the clerk. Head of Chambers, Shane Doyle QC, had experienced the benefits of the clerking system at first-hand in London as a member of Essex Court Chambers. Differences in the UK and Australian clerking model This historical backdrop may explain some of the key differences between the various clerking models. In the UK, barristers are, on the whole, happy that the clerks manage the business as they earn fees. The clerks enjoy a very high degree of autonomy in how they run chambers and as long as they are successful this is unlikely to change. The Australian business model has comparatively low overheads. The clerk/ barrister relationship is less defined. The barrister has more control over what he or she does and who he or she does it for and is, on the whole, responsible for his or her own fee negotiations and business development. The Australian barrister is perhaps better equipped to do this than his or her UK counterpart, as the route to the Bar in Australia tends to be via being a solicitor, bringing with it

exposure to the required core skills and a potential client base. However, there is a real collegiate sense when it comes to marketing in the UK (an approach that is beginning to gain traction in Australia). UK clerks can market chambers in its widest sense, based upon the collective reputation, which is of particular benefit with international work. Are barristers' clerks really like those depicted on television? The UK legal marketplace has recognised the important role that barristers' clerks play in the smooth running of the litigation process. For the aspiring barristers' clerk, it certainly is an occupation that provides exciting opportunities and challenges for all that enrol â&#x20AC;&#x201C; those opportunities even extend to overseas shores, as my recent employment at Level Twenty Seven Chambers in Brisbane illustrates. The clerk's world no longer exists as a subterranean area of the law invisible to most people, although the aforementioned TV dramas' melodramatic depiction of the barristers' clerk has, to date, been wide of the mark. Barristers' clerks aren't like those you see on TV â&#x20AC;&#x201C; by quite some way.

*The formulation of this article relied on contributions from a number of current and former clerks, along with their combined c.200 years of clerking experience. I would like to thank (in no particular order), Les Page, Simon Perry, Nick Tiffen, David Grief, David Andrews and Ben Perry.

35


1. 1.

2.

3.

Perth Chambers launch 4.

5.

On 11 November 2015 approximately 50 people attended a social event at the Western Australian Club to mark the launch of Perth Chambers, a new barristers' chambers specialising in administrative, civil and commercial law.

6.

Officer and Education Coordinator of the Association; and Elspeth Hensler, President of Women Lawyers Australia, who gave a short speech.

Guests enjoyed the hospitality of the Club and music performed by Mary-Anne Blades (flute), Margaret Blades (violin) and Fleur Challen (violin).

Speeches were also given by the chambers founder David Blades, and Rev'd Dr Gregory Seach, Warden of Wollaston Theological College, who spoke in a powerful and illuminating way on the lawyer's role in the search for truth.

Among the guests were Matthew Howard SC, President of the Western Australian Bar Association; Debbie Cole, Executive

Further details of the chambers are available at the website perthchambers.com.au.

1.

David Blades, Perth Chambers and Richard Grauaug, Thames Legal.

2.

Ann Kay, Perth Chambers and Elspeth Hensler, Francis Burt Chambers.

3.

Jessica Bowman and Stephanie Puris, King & Wood Mallesons, and Felicity Cain.

4.

Adam Ward, Thames Legal; SanLing Chan, Solicitor and Migration Agent; Lester Ong, Munro Doig; and Paul Meyer, Thames Legal.

5.

Fleur Challen; Mary-Anne Blades; and Margaret Blades.

6.

Matthew Howard SC, Francis Burt Chambers and Rev'd Dr Gregory Seach, Warden of Wollaston Theological College.

The Essential Legal Assistant 12 week course commencing Monday, 11 April 2016 The essential legal assistant course is a must for legal assistants wanting to build meaningful skills and knowledge, necessary for working in a contemporary practice.

lawsocietywa.asn.au 36 | BRIEF FEBRUARY 2016


ACTIVATE YOUR ESSENTIAL MEMBERSHIP OF THE LEGAL PROFESSION

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THE ESSENTIAL MEMBERSHIP FOR THE LEGAL PROFESSION Our initiatives and programmes addressing mental health, wellbeing and retaining lawyers in the legal professional

Supporting the current and next generation of lawyers •

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Supporting recruitment through the Grad-Match service, a resume clearing house service for graduates seeking employment Mentoring programme for practitioners admitted for fewer than five years Promoting regional employment opportunities through our Country Lawyers Committee WA and National Young Lawyers Committees collaborating to set guidelines for minimum working standards for graduates Connecting law practices with lawyers available for locum or temporary work through the Locum Register Referral database service available to anyone in the community seeking a legal practitioner in a particular area of law Practical Advocacy Weekend workshops

Promoting equal opportunity in the profession • •

• • • • •

38 | BRIEF FEBRUARY 2016

CPD seminars on topics of unconscious bias and flexible work practices Joint Law Society of WA and Women Lawyers Committee to encourage, support and advance the interests of women in law; represent and advocate for women; and promote gender equality Working group to review the recommendations and initiatives in the Law Council of Australia National Attrition and Re-engagement Study Report and the Women Lawyers WA 2014 Gender Bias Report Equitable briefing policy for the promotion and career progression of women at the Independent Bar Aboriginal Lawyers Committee dedicated to the issues facing Aboriginal lawyers and Aboriginal peoples Mentoring programme for Aboriginal law students Human Rights and Equal Opportunity committee Member privilege offer for emergency childcare and home service provider, Dial an Angel


For more information please visit lawsocietywa.asn.au or call (08) 9324 8600

Focusing on mental health and wellbeing •

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Access to member assistance programme LawCare (WA) providing online resources and complimentary counselling sessions Mental Health and Wellbeing Committee advising on best practices for individuals and firms Access to Towards Dignity & Respect at Work: An exploration of work behaviours in a professional environment (2010) and Report of Psychological Distress and Depression in the Legal Profession (2011) reports CPD seminars on topics of mental health and wellbeing issues Guidelines for flexible work practices Promotion through Brief with practical advice and case studies On leave Society membership for study, carers, maternity and paternity leave. Members maintain networking and CPD benefits while on leave Complimentary yoga and pilates classes for members provided by HBF Up to 23% discount on HBF insurance

Supporting the profession in advisory and advocacy roles • • •

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Access advice on ethical issues through the Senior Advisors Panel Ethics on Friday CPD seminars Access advice and representation for unprofessional conduct or professional misconduct complaints/prosecutions through the Practitioners Advice Referral Service CPD seminars dedicated to the unique issues faced by sole practitioners and small practices Accreditation for mediators and arbitrators Accreditation for Family Law Specialists In-house Counsel and Government Lawyers Committee dedicated to the unique issues for these lawyers List of Independent Lawyers with a willingness to execute Anton Piller orders Access to professional resources relating to costs, template forms and protocol guidelines Commitment to professional standards through the Limitation of Liability Scheme

39


TECHNOLOGY AND THE LAW LOOKING INTO THE FUTURE

Widely regarded as Western Australia’s pre-eminent legal education conference, Law Summer School promises to engage you in active discussion with an extraordinary calibre of speakers as we consider the future of law and legal thinking in Western Australia and beyond.

LAW SUMMER

SCHOOL 2016

The theme of Law Summer School 2016, Technology and the Law - Looking into the Future, will delve into the important topics of technology, human rights, privacy, social media, employment law, and property law, and will question how the law should respond to new and changing technologies.

FRIDAY, 26 FEBRUARY 2016

THE UNIVERSITY CLUB CONNECTED • INFORMED • GLOBAL

With thanks to our sponsors

EVENT PRICING Full-day Registration Law Society Members Individuals at least 5 years practising Individuals less than 5 years practising, articled clerks/practical legal training (PLT) and students Law Society Non Members CPD Active Member

6 CPD Points across 3 competencies $1,170 $710 $1,695 $700

2.0 – 3.0 points / Comp. 1 / Practice Management 1.0 – 1.5 points / Comp. 3 / Ethics and Professional Responsibility 1.5 – 3.0 points / Comp. 4 / Substantive Law

PROGRAMME Time

Description

Introduced by/Chair

7.15am

Registration and breakfast

7.45am

Welcome to Country and welcome speech by the President of Law Society Elizabeth Needham, President of the Law Society

8.00am – 9.00am

1. Breakfast plenary: Back to the future – the future is now, what does it look like? Tony Joyner, Managing Partner, Herbert Smith Freehills Michael Paterson, Principal, Michael Paterson & Associates Emma Cavanagh, Convenor, Young Lawyers Committee

Kate Offer, Assistant Professor, Law School, The University of Western Australia

9.00am – 10.30am

2. Keynote plenary: Privacy and proportionate limits on human rights Professor Gillian Triggs, President, Australian Human Rights Commission

The Hon Justice Janine Pritchard, The Supreme Court of Western Australia

10.30am – 11.00am

Morning tea

11.00am – 12.30pm

3. Concurrent Sessions 3.A Criminal Law – the challenges posed by technology Commissioner Karl O’Callaghan, Western Australia Police The Hon Justice Lindy Jenkins, Supreme Court of Western Australia Joe McGrath SC, Director of Public Prosecutions for WA, Office of the Director of Public Prosecutions for WA Paul Yovich SC, Barrister, Francis Burt Chambers

The Hon John McKechnie QC, Corruption and Crime Commissioner

3.B Employment Law – Adverse Action; Common Law Contracts; and Enterprise Bargaining Agreements Harry Dixon SC, Barrister, PG Hely Chambers The Hon Jennifer Smith, Acting President, Western Australia Industrial Relations Commission

Maria Saraceni, Barrister, Francis Burt Chambers

3.C Social Media and its impacts on civil litigation Carmel Galati, Sole Practitioner, Carmel Galati Rick O’Brien, Partner, O’Sullivan Davies

Gail Archer SC, Barrister, Francis Burt Chambers

3.D Property Law – Developments in real property and PPSA Katrina Banks-Smith SC, Barrister, Francis Burt Chambers Linda Widdup, Lecturer, Curtin Law School

The Hon Justice Andrew Beech, The Supreme Court of Western Australia

12.30pm – 1.30pm

Lunch

1.30pm – 2.30pm

4. Plenary: Legal ethics in the digital age: the same, but different Jacinta Dharmananda, Assistant Professor, Faculty of Law, The University of Western Australia Joshua Thomson SC, Barrister, Francis Burt Chambers

2.30pm – 3.00pm

Afternoon tea

3.00pm – 4.00pm

5. Plenary: The future of the law Richard Susskind OBE, author of the book, Tomorrow’s Lawyers (2013), speaker and independent adviser, via video link

John Fiocco, Special Counsel, Slater and Gordon Lawyers

4.00pm – 5.00pm

6. Closing plenary: Science and the law Richard Dawkins, English ethologist, evolutionary biologist, and writer

Elizabeth Needham, President of the Law Society

Register online at lawsocietywa.asn.au/law-summer-school Enquiries (08) 9324 8600 I Fax (08) 9324 8699

The Hon Justice Kenneth Martin, The Supreme Court of Western Australia


lawyer on the street

Lawyer on the Street Laura Pilsworth

Since January 2015, I have been working as a law graduate at Jarman McKenna in the areas of workers' compensation and medical negligence. Prior to this I was a volunteer paralegal with the Consumer Credit Legal Service (WA) for 3 years.

issues affecting Australia and the world, and my involvement in the HRSJWG allows me to connect with other lawyers with similar interests and to be involved in projects that allow lawyers to use their skills to make a difference in this area.

I am currently involved in the Human Rights and Social Justice Working Group (HRSJWG) of the Young Lawyers Committee. My background in the community legal centre arena led to me developing a keen interest in human rights

As a law graduate at Jarman McKenna, I have had the opportunity to become involved in pro bono files which assist in helping disadvantaged members of our community. Being involved in these files also allows me to develop my awareness

in utilising 'outside of the box' strategies and my client communication skills. Since being involved in the HRSJWG I have had the opportunity to organise events, practise my drafting skills and become involved in a number of different initiatives. I would encourage anyone who is looking to branch out and connect with like-minded people to consider joining one of the many working groups the Law Society has to offer.

Justin Kwok

I'm the Director of Orion Law, my own commercial law firm, but the simplicity of that statement belies the complexity of the challenges and paths I have travelled in both my personal and legal life to reach this point. I officially commenced my legal career back in 2009 at a firm dear to my heart â&#x20AC;&#x201C; Deacons and I stayed on through the firm's evolution into Norton Rose and up until late 2012 when I made the decision to assist Sparke Helmore Lawyers with the establishment of its corporate and commercial team in Perth. This move appealed to me as an opportunity to be more acutely involved with the development and growth of a legal practice, essentially from scratch. Unfortunately, my time at Sparke Helmore Lawyers only lasted until late 2013 when the national partnership decided to place the Perth corporate and commercial expansion on hiatus. Despite this, my time there gave me an insight into setting up a

new practice and a taste of the adrenaline in doing so and I was suddenly unwilling to return to the safety and structures of a large firm.

and financial management, just to name a few, and doing all of these myself (at least in the beginning) put me on a very steep learning curve.

I find the challenge of surviving on nothing but your own wits and learning to adapt to the needs of the legal market to be a liberating experience and to be able to build a practice from zero to something that can support not only my own family but the needs of others in my team is incredibly satisfying.

Outside of the firm, I try to contribute my skills back to the community through my board work with The Chung Wah Association Inc, a not for profit provider of education, aged care and welfare services to the Chinese community in Western Australia. I also advocate on migrant issues from time to time through publications and public speaking, most recently at the Mobilities and Migration WA Update Conference hosted by UWA where I was a panel speaker on migration and social cohesion.

Being master of my own firm also gives me the freedom to expand my technical horizons into areas which I may not have been able to within the structures of a larger firm and I feel this helps me to become a better rounded practitioner. Of course, running your own firm also requires some level of proficiency in a range of non-legal skills as well including human resource management, website design, business development, marketing

Although sometimes I do miss aspects of working in large firms, especially after watching episodes of Suits, I have very much enjoyed the adventure of operating my own firm and look forward to continuing to do so for many years to come! 41


book reviews

Book Reviews R v Milat: A Case Study in Cross-Examination by Dan Howard SC Review by Genevieve Cleary, Francis Burt Chambers

I am quite keen on a crime novel – I find myself trying to outwit the author, to no avail, of course, thinking that I have seen so much crime (in court), I know all the endings. I am also keen on a good textbook – one that tells you how to do things, in particular. Can you imagine my delight, then, when I was trawling the internet looking to see if Kate Offer's new book Western Australian Evidence Law (Field D, Offer, K, LexisNexis Butterworths 2014) had been published (it had, and it's a great resource, particularly for those studying or just embarking on a legal career in litigation) when I stumbled across R v Milat: A Case Study in Cross-Examination, by Dan Howard SC. Sounds dry, I know it is anything but.

the last known movements of each deceased and describes the scenes at which they were found, and each piece of evidence found there; it tells the story of Paul Onions, an English backpacker who phoned Australian police after seeing an article about the murders in an English newspaper, telling them of his chilling escape on a road at the forest some three years earlier, who ultimately gave evidence for the prosecution against Milat; it describes each item found in the possession of Milat, or someone close to him, which linked him to the crimes. It also reproduces part of Milat's counsel's opening, and gives enough of a background to Milat and his family that the reader understands how Milat came to be giving evidence, and why particular questions were asked of him in cross-examination. It also has pictures of items found, some in situ, none offensive or gory, other than one showing what looks like blood on a shirt.

This book will appeal to anyone who is interested in Australian modern history, particularly legal history, a good crime novel, or mastering the art of cross-examination. Why?

The effect of Howard's straight forward summation, despite its lack of sensationalism, is very powerful – they are the facts, set out in an easy to understand order, so much so that a colleague of mine, who lived in the Belanglo area at the time of the murders, found it difficult to get through the content.

The book has been separated into a number of sections: 1.

A history of the Milat case Let's face it, the Milat case is burned into Australia's psyche, and many of us have watched the corny TV 'documentaries' about the Belanglo State Forest murders, and questioned along with the handsome presenter – was there someone else involved? Are there more we don't know about? Were the items found linking Milat to the crimes planted by someone else? One of the refreshing things about this book is that Dan Howard's summation of the case does not seek to answer these questions, or weave guesses and assumptions through known facts, like some 'historical novels' or TV documentaries, try to do. Instead, the summation of the case in the first part of the book simply presents the facts as known to the prosecution. It traces

42 | BRIEF FEBRUARY 2016

2.

In addition, what becomes clear in the transcript is the level of detail a goodcross examiner must descend to in mastering the brief – both in terms of knowledge of the facts and forensics, and preparation for cross-examination.

Mark Tedeschi QC's cross-examination of Milat

There are only a couple of minor drawbacks to the book – one is that the WA reader must be conscious that they are reading a 1996 NSW cross-examination – for example, Howard identifies a line of questioning intended to lead to a 'Jones v Dunkel' direction (Jones v Dunkel (1959) 101 CLR 298), now out of favour pursuant to Dyers v The Queen (2002) 210 CLR 285. Secondly, I am left wondering, with no disrespect to Tedeschi or Howard, whether Milat was such a model crossexaminee that he fell into every trap set by the cross-examiner. Do all witnesses do so under good cross-examination, even when cross-examined by someone less skilled than Tedeschi? Perhaps I will only know the answer to that when, or if, I become as skilled as he.

This is where the excitement really begins. As Howard says in his preface, so often transcript is filed away after a trial or appeal, with no one looking at it again, and the lessons that could be learned from it are lost. What he has reproduced is the full crossexamination, questions and answers,

You may not need much instruction, or agree with Tedeschi's methods, but, despite the minor issues I have identified, I would still thoroughly recommend this book to anyone with an interest in Australian crime and history (without the handsome television presenter), or in the art of crossexamination, or, both.

Some suggestions on how to develop good advocacy skills Howard also offers some thoughts on how to learn, and practise, the art of cross-examination – probably obvious to senior advocates, but an interesting refresher, none-the-less.

3.

of Ivan Milat, with objections and the decisions made on those objections. But, not only that – the transcript is annotated. It is like watching Tedeschi QC ask a question, and then stop, turn to the audience and explain why he asked the question, or why he stopped where he did in a line of questioning, or why Milat's answers were so important to the next question, or the prosecution's closing. Most notes refer back to the purposes of cross-examination – closing the gate, echoing, probing etc. They also identify questions which are not for the fainthearted. In short, it is like having one of the most experienced cross-examiners in Australia giving you a private lesson in cross-examination, with a real, live case, with all its twists and turns and complexities.


book reviews

Cybercrime Legislation, Cases and Commentary by Gregor Urbas Review by Patricia Aloi, Principal Federal Prosecutor and Work Group Coordinator, Commonwealth DPP

There is an inextricable link between crime and the exploitation of vulnerabilities. The ubiquity of the Internet and crime's migration online forces us to consider what vulnerabilities we expect the law to step in and protect. It forces us to look at the brave new world we live in differently. Who, what and how do we expect the law to regulate in the cyber realm, whose values underpin this regulation and where do we draw the line between the regulation of human behaviour and the restriction of personal freedoms? How do we strike that essential balance between allowing the Internet to flourish as one of the world's most critical resources whilst protecting the vulnerable? Concepts not typically associated with 'street crime' make legal work in the realm of cybercrime intoxicatingly challenging. Anonymity, attribution, vulnerability and the delicate balance between freedom of expression and the need to protect or preserve the position or experiences of others have a heightened significance in the cyber context. Cybercrime: Legislation, Cases and Commentary offers in 332 pages a compact introduction to cybercrime legislation and case law at the state and federal level in Australia. Part 1 introduces the notion of 'cybercrime' confirming it has no precise technical or legal definition. It highlights that criminologists use the term to connote conduct proscribed by legislation and/or common law that involves the use of digital technologies in the commission of the offence; or is directed at computing and communications technologies themselves or is incidental to the commission of other crimes. Part 2 turns to the substantive law with separate chapters on unauthorised access to computers and data, unauthorised interception, unauthorised modification of computers and data (intrusion that goes beyond unauthorised access which results in destructive and unsolicited changes to the functioning of a computer or computer system or to the data contained in a computer) and unauthorised impairment of computers, data and electronic communications as an extension of unauthorised access and modification (interference with computers and their data which results in impaired functioning which might extend to computer-supported services – the internet, telephone networks and other forms of electronic communication).

Part 3 considers online financial and property crimes motivated by economic advantage starting with a consideration of online fraud and forgery and moving to identity crimes and card skimming. It concludes by reviewing online copyright crimes. Part 4 turns to online child exploitation and other privacy crimes starting with a chapter on the misuse of computers and information technologies to abuse and exploit children, mainly through the production, downloading and distribution of child pornography material online. Practitioners will find useful the table at pages 184 to 186 summarising key definitions and additional elements with respect to state and federal child pornography offences. Another table at pages 194 to 199 concisely outlines state and federal child pornography offences listing each provision, physical and fault elements and maximum penalties. Legal responses to online child grooming – the misuse of computers and the Internet to abuse and exploit children, principally by adult or older teen sex predators who 'groom' victims online - is separately considered at Chapter 9. Cyberstalking, online harassment, voyeurism and other privacy invasions including a reference to international developments in the criminalisation of 'revenge porn' receive separate consideration at Chapter 10. Part 5 comprises separate chapters on the investigation of cybercrime and the challenges faced in prosecuting and sentencing cybercriminals. It considers the Cybercrime Act 2001 (Cth) which, whilst updating Australian computer crime offences and relocating them to the Criminal Code (Cth), also introduced a raft of legislative amendments to the Crimes Act 1914 (Cth) and the Customs Act 1901 (Cth) with respect to investigatory powers (including covert investigation powers). Investigating cybercrime is a labyrinthine affair and is not for the faint-hearted or the uninitiated. Complexity brings with it expense with the need to engage experts from a variety of fields including computer forensics, voice-recognition and linguistics specialists, and speech scientists and computational linguists (including specialists who can give evidence identifying and linking a suspect with their online persona by way of an analysis of their chat behavior in internet relay chat forums). Practitioners at the forefront of this area know all too well the unique challenges cybercrime poses for law enforcement officers, prosecutors and judicial officers. When a jury is involved,

the challenge of presenting technical evidence in a way that ensures proper comprehension is taxing – particularly where a juror's elimination of reasonable doubt rests upon evidence they might not fully understand. There is an amplifying media interest in cybercrime prosecutions in part due to some particularly high profile investigations and prosecutions in the United States – the Silk Road/Ross Ulbricht and Aaron Swartz matters coming immediately to mind. Part 5 goes some way to giving context to the intense media interest from an Australian perspective with a table at pages 298 to 299 summarising Australian prosecution statistics at the federal level with respect to some of the more common offences prosecuted. The table demonstrates a steady increase in matters prosecuted under Parts 10.6 and 10.7 of the Criminal Code (Cth) over the last decade. Understandably, given the limited number of prosecutions under these Parts, jurisprudence at the federal level is embryonic, requiring close consideration of authorities from other jurisdictions. Legal work in the cybercrime context requires a fervent commitment to the pursuit of knowledge and understanding of concepts that might not necessarily come naturally to you or be within your sphere of comfort. Concisely presented yet packed with valuable insights, Cybercrime: Legislation, Cases and Commentary offers an excellent starting point. State and federal law enforcement agencies have been dedicating an increasing amount of resources to the cyber realm in an effort to disrupt online criminality. In this brave new world, being learned in the law is one thing. Being in a position to confidently understand and explain the significance of concepts such as 'the Dark Net', 'TOR', 'lulz' or 'doxxing' when you are a 'noob' and definitely not a 'digital native' is a different story. These terms have been deliberately left undefined in the hope this book review might inspire you to satisfy your curiosity online.

43


case notes

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

FAL Management Group Pty Ltd v Denham Constructions Pty Ltd [2015] NSWSC 1035 Procedure – subpoenas – where material to be obtained under subpoena related to a cause of action not pleaded in the defendant's Technology and Construction List Response – consequence that those documents would not be relevant to questions in the proceedings – where subpoenas in any case defective because drafted ambiguously and with excessive width Legal practitioners – communications with the Court – where a solicitor sent an email to judicial chambers without prior consent of other parties – where the communication related to contentious matters – failure to adhere to Solicitors' Rules – usual consequence of referral to Office of the Legal Services Commissioner – whether appropriate in present case The substantive proceedings related to issues arising out of a construction contract made between the plaintiff and the defendant. There were also issues arising in respect of various sub-contracts with third parties. The interlocutory issue, the subject of the decision, related to the defendant's request for orders for leave to serve subpoenas on short notice. The request was sent shortly before the date that the trial was scheduled to commence. The email was sent to the chambers of the List Judge without the prior consent or knowledge of the plaintiff's solicitors. However the plaintiff's solicitors were copied on the email. McDougall J provided further factual context by describing the email as "[setting] out what were in effect written submissions containing the reasons why, it was said, the subpoenas were required. Those submissions set out a number of contentious matters". His Honour emphasised that it is not appropriate for a party to litigation, or its legal advisers, to communicate with the Court, except in very limited 44 | BRIEF FEBRUARY 2016

circumstances, without the prior knowledge and consent of the other party or parties to that litigation. His Honour went on to state that it was 'intolerable' that such practice continues. In respect of the subpoenas, His Honour declined to grant the orders sought by the defendants on the basis that the material sought was not clearly related to an issue arising in the pleadings and the scope of documents sought was too broad, having regard to the commencement date for the trial. Marsh v Baxter [2014] WASC 187 and [2015] WASCA 169 Negligence – Duty of care – Causation – Civil Liability Act 2002 (WA) – Nuisance – Interference with use or enjoyment of land – Organic farming The plaintiffs claimed at trial before Justice Kenneth Martin damages and an injunction against the defendant on grounds of negligence and private nuisance that allegedly caused the plaintiffs to lose organic certification. The parties occupied neighbouring farms in South West Western Australia. The parties' two farms are separated by a road reserve and two lines of trees. Since 2004, the plaintiffs were approved growers of organic produce. The defendant grew canola on his farm. In 2010, the defendant grew genetically modified canola (GM canola) on his farm. In late September 2010, the plaintiffs gave the defendant notice that if the plaintiffs' farm became contaminated with the defendant's GM canola, the plaintiffs would hold the defendant liable. In November 2010, strong winds blew approximately 245 GM canola plants, that the defendant had swathed (cut, stacked and left to dry), from the defendant's farm onto the plaintiffs' farm. In December 2010, the National Association of Sustainable Agriculture Australia (NASAA) decertified the 'NASAA Certified Organic' status of approximately 70% of the plaintiffs' farm,

on the basis that the airborne incursion of the defendant's GM canola posed an 'unacceptable risk' of 'contamination'. The plaintiffs relied on Perre v Apand, Caltex Oil v The Dredge 'Willemstad', and Woolcock Street Investments v CGD to argue that the defendant owed a duty of care, negligently breached that duty, and was liable for economic loss resulting from the breach. Martin J distinguished those on the basis that the plaintiffs suffered only pure economic loss – no physical damage was caused by the actions of the defendant. Martin J refused to accept that a defendant had a duty of reasonable care to ensure that his actions did not cause foreseeable pure economic loss to his neighbour, referring to Tame v New South Wales; Annetts v Australian Stations [2002] HCA 35. Martin J then considered the claim of private nuisance and weighed the parties' respective rights of use of their land to make a value judgment as to whether the defendant unreasonably interfered with the plaintiffs' use of land, pursuant to Elston v Dore [1982] HCA 71 and Southern Properties v Dept Conservation & Land Management [2012] WASCA 79. Martin J held that the defendant's planting and swathing of GM canola did not constitute unreasonable interference with the plaintiffs' land. Martin J also found that NASAA's decision to decertify was not justified, and was based on erroneous application of governing NASAA standards. Martin J found that the defendant did not cause the plaintiffs' economic loss. The plaintiffs' claim was wholly dismissed. The plaintiffs' appeal was dismissed 2:1 with Newnes and Murphy JAA deciding in favour of the respondent and McLure P in dissent. Knowledge The majority upheld the finding that the defendant could not reasonably have expected strong wind to carry the GM


canola swathes onto the plaintiffs' farm, but should have known there was a risk that some GM material could find its way to the plaintiffs' farm. Negligence – Duty of care The majority largely agreed with the trial judge's reasoning. In relation to negligence, the majority quoted McHugh J in Dovuro v Wilkins (2003) 215 CLR 317 that "If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk".

aware that the harm to the plaintiffs if the risk eventuated was severe. Therefore the risk was reasonably foreseeable. The plaintiffs were vulnerable due to their physical proximity and because they could not prevent the swathes from blowing onto their land. The harm could have been avoided without appreciable prejudice to the plaintiffs by direct heading rather than swathing. Due to these and other factors, McLure P held that there was a duty of care, that the duty was breached and that the defendant was liable in negligence.

Nuisance The majority made references to various cases including Gartner v Kidman [1962] HCA 27 supporting the principle that "a person cannot increase the liabilities of his neighbour by applying his or her own property to special uses, whether for business or pleasure [and] … cannot thereby unilaterally enlarge their own rights and obtain a higher right to limit the operations of their neighbours than someone who does not put their land to such a use." The majority found that the defendant's swathing of GM canola would not have affected a non-GM farmer, that organic farming was an isolated practice in the area and therefore the defendant's swathing did not amount to private nuisance. The majority found it unnecessary to determine whether NASAA's decision to decertify was valid. Dissenting judgment - Negligence McLure P found as follows: The winds were not unexpected or unusual and the defendant ought to have known there was a real risk that the GM canola swathes may blow onto the plaintiffs' land. NASAA was entitled to decertify the plaintiffs' land due to the presence of GM canola. The defendant was or should have been

Dissenting judgment – Private nuisance McLure P referred to the proposition in Fleming's Law of Torts 9th Ed that the question in private nuisance is whether the defendant is using his land reasonably, having regard to the fact he has a neighbour. McLure P noted Munro v Southern Dairies Ltd [1955] VLR 332, stating that an abnormally sensitive person is not entitled to additional protection. McLure P found that GM canola farming was not an ordinary use of farm land in the area and was fairly rare in 2010 and that the plaintiffs' organic farming activity was not 'hypersensitive'. Given McLure P's earlier finding that the defendant could have harvested in an alternative manner without appreciable prejudice to his own interests, McLure P found that the defendant's swathing constituted private nuisance. Recent LPCC case [2015] WASAT 99 Duty of disclosure – duty of honesty and candour – concealing information - misleading the State Administrative Tribunal – intention to mislead – professional misconduct – Legal Profession Act 2008 (WA). This case examined conduct of a practitioner in proceedings before the State Administrative Tribunal (Tribunal) in 2008, concerning the issuing of licences to operate camel tours on Cable Beach. The practitioner had prepared witness statements and approved counsel's

submissions which were then tendered and relied upon in the trial. However, the Legal Profession Complaints Committee (LPCC) alleged that these acts were carried out with an intention to conceal the common beneficial ownership of two camel tour businesses by the practitioner's client – a fact known to the practitioner through her previous work for this client. The Tribunal found that this behaviour constituted professional misconduct within the meaning of s403 and s438 of the Legal Profession Act 2008 (WA) (LP Act). The Tribunal restated a number of principles in relation to a practitioner's duty of disclosure including lawyers' duties of honesty and candour to the court, and the general duty of lawyers not to mislead the court by, amongst other things, concealing from the court facts which ought to be drawn to the judge's attention. As to the practitioner's state of mind, the Tribunal held that an allegation of an intention to mislead the court was an allegation of dishonesty and that in order to make such a finding, the Tribunal must be satisfied that the practitioner knew of, and deliberately withheld information relating to, the common beneficial ownership of the camel tour businesses. The Tribunal found that the practitioner's subjective intention was to conceal the common beneficial ownership of the businesses, and that the practitioner knowingly misled, or attempted to mislead, the Tribunal in the course of the proceedings. The practitioner's actions were found to constitute a calculated course of conduct which amounted to professional misconduct within the meaning of s403 and s438 of the LP Act. This case provides a reminder that duties owed by practitioners to their clients remain secondary to their duties of honesty and candour to the court, and that a practitioner's general duty not to mislead the court is of fundamental importance in the due administration of justice. *Please note that this case is currently on appeal.

2016 Diary and Directory Corrections Please note the following erratums to the 2016 Diary and Directory: The Mark Andrews Pty Ltd entry should appear as:

The Richard Simon Legal entry should appear as:

Level 1, 533 Hay Street, PERTH 6000 Email: andrewsm@westnet.com.au Phone: (08) 9221 2991 Fax: (08) 9221 2275

Office 11-12, London Court 647-653 Hay Street, PERTH 6000 Email: richardsimonlegal@icloud.com Phone: (08) 9325 8338 Fax: (08) 9325 3993

The Thames Legal entry should appear as: Office 11-12, London Court 647-653 Hay Street, PERTH 6000 Email: paul.meyer@thameslegal.com.au Web: www.thameslegal.com.au Phone: (08) 9325 8338 Fax: (08) 9325 3993

45


case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Procedure – Litigation guardianship waived for Public Guardian In Public Guardian (Queensland) & Beasley and Ors (No. 2) [2015] FamCAFC 201 (21 October 2015) the public guardian was appointed for the mother by QCAT under the Guardianship and Administration Act 2000 (Qld) and instructed Legal Aid (Qld) to act for her in a parenting case but refused to consent to being appointed as her litigation guardian. Judge Jarrett dismissed Legal Aid's application for an order dispensing with such an appointment whereupon the public guardian appealed to the Full Court. May J (with whom Strickland and Austin JJ agreed) said at [81]-[82]: … The public guardian will be able to take instructions from the mother to the extent she is able to communicate them, and brief Legal Aid to appear on her behalf – confirming an informal arrangement which has already occurred. (…) In circumstances where the court can be satisfied that the mother's interests could be adequately represented and protected, and where there is no barrier to dispensing with compliance with r11.09, it is clear the primary judge should have accepted Legal Aid's application to dispense with the FCC Rules. Children – Injunction against father leaving child alone with father's brother set aside In Solonose & Squires [2015] FamCAFC 190 (30 September 2015) Strickland J heard the father's appeal against Judge Connolly's injunction preventing him from leaving his child alone with the father's brother who had an intellectual disability and was alleged to have been "sexually inappropriate" with the child. The allegation was investigated by the police and the Department of Human Services and although the allegations could not be substantiated the father gave an undertaking to the Department that he would not bring the child into contact with his brother [38]-[39]. He confirmed his undertaking in the court below but the mother expressed concerns about the brother's behaviour [40]. In allowing the appeal Strickland J said at [49]: … it was not open to his Honour to make the order for the reason that it would 'make [the mother] feel a lot more comfortable than the undertaking to the Department' … his Honour needed to be satisfied that there were allegations that

46 | BRIEF FEBRUARY 2016

required an injunction to be made, and that clearly did not occur. … Property – Injunctions requiring husband's consent to wife's business and personal drawings over $1,000 varied In Cao & Hong [2015] FamCA 884 (22 October 2015) Forrest J heard the wife's application for variation of injunctions made by Judge Coates before the case was transferred from the FCC to the Family Court. The parties had assets of $200 million, of which $27 million was the value of property in Australia. The wife managed the Australian investments and the husband managed their assets overseas. Forrest J said at [19]-[21]: The wife seeks variation of the existing restraints because every payment made in the management of the Australian companies over $1,000 requires written consent of the husband without … any exception in respect of payments made in the ordinary course of business or … her reasonable living expenses. The evidence adduced by the wife demonstrated to my satisfaction that she was having difficulty getting the husband to even consider her requests, as well as difficulty getting him to agree to payment for her personal expenses. At the same time, the husband was not subject to any similar … restraint in respect of his management of their Country D interests and his ability to access money there as he needed it. The wife deposed to the Australian companies having regular monthly payments of ordinary business expenses that well exceed the $1,000 limit and she sought exception … for expenses incurred in the ordinary course of business of those entities. At the same time, she deposed to having personal expenses of around $20,000 per month which, in the past, she has caused to be paid from the accounts of the entities which have, she says, been treated by the company accountants as 'wages' paid to her. Finding (at [38]) that the $20,000 sought to be accessed by the wife to meet personal and household expenses was excessive, the Court concluded at [37]: … I will grant injunctions that I consider restrain each of the parties … from withdrawing funds from any personal accounts or accounts of the Australian companies or the Country D companies

in excess of … $10,000 as opposed to the much smaller sum of $1,000 previously provided for, without the consent of the other party or order of this Court, subject to exceptions in respect to drawings made in the ordinary course of business; to meet already existing contractual obligations; for the wife to be able to meet personal and household expenses of up to $15,000 per month; and for each party to pay legal expenses in these proceedings up to a limit of $200,000. Children – Application to exclude unfavourable family report and for leave to obtain another report dismissed In Mullaly & Beddoe [2015] FamCA 891 (23 October 2015) Hogan J dismissed the mother's application to exclude a family report prepared by a psychologist (Ms E) in a case where the mother was seeking a final order enabling her to relocate the parties' child to the USA. Ms E was appointed after a report was ordered, the mother to provide the father with a list of three potential experts ([3]). The mother objected to the admission of Ms E's report inter alia because she was not a Regulation 7 family consultant, "the father's position [being] simply that the mother is dissatisfied with the opinion expressed by Ms E … and is attempting to seek … another opinion … supportive of her desire to relocate with the child to … America" ([13]-[14]). Hogan J said at [22]: Nothing in the Act or Rules requires that all reports prepared by the agreement of parties … be prepared by persons who are 'family consultants'. Section 62G of the Act simply empowers the Court to direct a family consultant to give the Court a report on matters relevant to the proceedings as the Court thinks desirable … and provides that a report … pursuant to the direction may be received in evidence in any proceedings under the Act. … Hogan J also ([33]-[34]) dismissed the mother's application for leave to adduce evidence from another expert witness under FLR 15.49. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.


YOUR MEMBERSHIP GIVING BACK TO THE COMMUNITY Your membership fees help support our community service programmes mmes including Law Access, Francis Burt Law Education Programme, Mock Trial competition and the Old Court House Law Museum.

Law Access coordinates the giving of pro bono (free or reduced cost) legal advice by the Western Australian legal profession. The service is targeted at not-for-profits and individuals in genuine need of legal assistance who satisfy a means and merits test.

Want to give back? Law Access accepts donations* and is keen to hear from members of the Western Australian profession willing to take pro bono referrals. Please visit lawaccess.net.au to find out more. *Donations are tax deductible.

Education and Community Services The programmes promote the basic principle that all people must understand the law and the legal system which affect their daily lives.

Cluedunnit Kids competition for Year 6 students

Information sessions and talks from lawyers delivered at schools around Perth

To achieve this the Law Society offers:

Discover the services now by visiting lawsocietywa.asn.au/community

Francis Burt Law Education Programme: Court visits and mock trials for school and community groups

Old Court House Law Museum open to the public

Mock Trial competition for Year 10-12 students


law council update

LAW COUNCIL JOINS UN AND IBA IN CONCERN FOR CHINESE LAWYERS Attributable to Law Council of Australia President Duncan McConnel: • The Law Council of Australia expresses deep concern that more than five months after a crackdown on the legal profession commenced on 9 July 2015 (otherwise known as the '709 crackdown'), many lawyers are still missing, detained, held under residential surveillance or forbidden from leaving China. • According to reports, more than 300 lawyers, law firm staff, human rights activists and family members have been affected since July 2015. 36 lawyers and activists are currently detained or being held incommunicado and 30 lawyers and activists are forbidden from leaving China. The crackdown on lawyers has been comprehensive, destabilising personal and professional lives. • Prominent lawyers, such as Wang Yu (王宇), Li Shuyun (李姝云) and Sui Muqing (隋牧青) are being held in secret locations without access to legal assistance or their families. Chinese authorities have restricted access to information on these and many other cases. • The independence of the legal profession must be protected. Lawyers must be able to work without fear of reprisal and their family members should be treated in a manner consistent with rule of law principles. • The Law Council of Australia joins with the recent comments by the United Nations Committee Against Torture (CAT) and the International Bar Association in expressing deep concern with the treatment of the legal profession in China. As CAT stated in its Concluding Observations issued last week, China should: • stop sanctioning lawyers for actions taken in accordance with recognised professional duties; • ensure the prompt, thorough and impartial investigation of all the human rights violations perpetrated against lawyers; • adopt the necessary measures without delay to ensure the

48 | BRIEF FEBRUARY 2016

development of a fully independent and self-regulating legal profession; and • undertake a review of all the legislation affecting the exercise of the legal profession in accordance with international standards, with a view to amend those provisions that undermine lawyers' independence. • The Law Council of Australia has raised, and will continue to raise, its concerns with senior Australian Government officials, including in the Department of Foreign Affairs and Trade. The Law Council of Australia has encouraged representations to be made by the Federal Government to senior representatives in the Chinese Government, publically and privately. • Greater efforts should be made by the Australian Government to promote and protect the independence of the legal profession in China. The Law Council of Australia will ensure these issues are raised in the lead up to and during the next Australia-China Human Rights Dialogue, scheduled for early 2016. • On behalf of the Australian legal profession, the Law Council of Australia will persist in calling upon the protections in the United Nations Basic Principles on the Role of Lawyers to be respected, the CAT Concluding Observations to be implemented and the rule of law to be upheld in China. ENHANCED SAFEGUARDS NEEDED FOR CONTROL ORDER REGIME, INCLUDING 'SPECIAL ADVOCATE' REGIME The Law Council of Australia has told the Independent National Security Legislation Monitor at a public hearing today that the control order regime needs enhanced safeguards, particularly if proposed counter-terrorism legislation measures are enacted. Speaking after an appearance before the hearing, Law Council of Australia President Duncan McConnel noted that a system of 'Special Advocates' could be introduced to participate in control order proceedings. The system could allow each State and Territory to have a panel of securitycleared barristers and solicitors who may participate in closed material procedures whenever necessary including, but not

limited to, any proposed confirmation of a control order. "Control orders can involve significant restrictions of a person's liberty without following the normal process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt," Mr McConnel said. "Recent counter-terrorism legislation would give expanded powers to law enforcement agencies to monitor compliance with a control order. Secret evidence would also be permitted in control order proceedings without the affected person or their legal representative knowing its content. "A special advocate regime would improve – although not necessarily remedy – any potential unfairness to a person the subject of a control order. It would assist a court in scrutinising national security information prior to any possible admission into evidence. "If a special advocate regime were to be introduced, fundamental minimum safeguards would have to be met. The appointment of the special advocate should be subject to the full and free discretion of the court. It should also be a last resort where no other alternative will adequately meet the interests of justice. "The level of interaction between the advocate, the person the subject of the control order and their legal representative would require careful consideration." In addition, the Law Council argued there the control order regime should require that an issuing court have specific regard to the ordinary entitlement to use of a phone and internet and to require the court to be satisfied that a proposed restriction on such access is necessary in any given case. "The Criminal Code should impose a presumption that a person should not be deprived of basic mobile phone or landline access - and access to at least one internet computer - without being satisfied of necessity," Mr McConnel said. "This approach is desirable given the pervasiveness of modern technology as a necessity for many places of education and employment. However, this presumption of communication technology access could be rebutted by the court if it was deemed necessary for achieving one of the prescribed purposes of the control order regime."


pam sawyer

49


classifieds

Classifieds Now Purchasing Files Shine Lawyers are prepared to purchase your files in the areas of: Personal Injury Medical Negligence

General Counsel

Motor Vehicle Accidents

We are currently recruiting for General Counsel to provide legal support on a range of governance, compliance and enforcement issues.

Work Cover Claims Contact Simon Morrison (08) 9319 5800

SHINE.COM.AU

FOR SALE OR LEASE PARTITIONED OFFICES 12 St Georges Tce Perth • • •

4 Adjoining Strata Suites Areas from 81m2 to 271m2 Legal Precinct location

Greg Radin 0411 883 995

Generalist Lawyer – Commercial Litigation Experience (5+ years PAE) Position will suite a generalist lawyer with commercial litigation experience and ability to build a client base. The position can be based in either our Margaret River or Busselton office. Lane Buck and Higgins is multi faceted regional firm able to proved the successful applicant with sufficient work and support to build a client base and develop their career. Your experience and confidence to take on a range of complex commercial matters relating to agriculture, property, conveyancing, estate planning and family businesses will be very highly regarded. Visit www.lanebuckhiggins.com.au

Office: 9226 3419

• Modern Partitioned Offices • Areas from 90m2, 163m2, 210m2 to 373m2 • Close to District and Supreme Courts • Available now

This is a diverse role, involving the legal oversight of prosecutions under the Animal Welfare Act 2002 and managing the pro-bono Legal Panel. Other duties involve drafting and negotiating contracts, training and assisting RSPCA WA Inspectors and attendance at court. An understanding and familiarity of criminal law is essential. The position is based at our Malaga site. For further information, please email David at dvanooran@rspcawa.asn.au or call him on 9209 9346.

FOR LEASE

Equus Building 580 Hay Street, Perth, WA 6000

Colin Pang Leasing & Sales Representative M: 0401 138 108 | E: cpang@cnicommercial.com.au David Walser Director, Leasing & Sales M: 0451 665 622 | E: dwalser@cnicommercial.com.au

Sole Practitioner Practice for Sale Contact 0414 928 048

Legal Practice Board - election of members Pursuant to Section 536 of the Legal Profession Act 2008, notice is hereby given that the annual election of six members to the Legal Practice Board will be held on Tuesday, 5 April 2016.

50 | BRIEF FEBRUARY 2016

Written notice of intention to seek election, countersigned by at least one practitioner entitled to vote, must be lodged with the secretary no less than 28 days before the date of election, (8 March 2016). If you wish you may

provide a brief resume (maximum of 75 words) with your nomination. P: (08) 6211 3600 E: general@lpbwa.com www.lpbwa.org.au


new members and announcements

New Members New members joining the Society (November and December 2015) Associate Membership Mr Jack Garber

Ordinary Membership Brians Solicitors

Mrs Rehana Zaman

Mr Alexander Bubner

Gilchrist Connell

Mr Damien Hill

WG McNally Jones Staff

Ms Mollie Hartley

Western Australian Police Police Headquarters

Mr Michael Bona

Price Waterhouse Coopers

Miss Ellie Pollard

Templar Legal Pty Ltd

Mr Melville Thomas

University of Western Australia

Mr James McConvill

James McConvill & Associates

Mrs Sarah-Jane White

Royal Australian Navy

Ms Jessica Sheldrick

Edith Cowan University

Ms Peta Griffiths

Fourlion Legal Pty Ltd

Restricted Practitioner

Mrs Amy Pascoe

Coulson Legal

Mr Emmanuel Solana

Kott Gunning

Miss Phillippa Jenkins

Kitto & Kitto

Miss Michelle Brooks

King & Wood Mallesons

Mr Lucius Moser

King & Wood Mallesons

Mr Christopher Browne

Stephen Browne Lawyers

Ms Katerina Manglaviti

Main Legal Studio Pty Ltd

Miss Natalie Knight Miss Nicole Adams

University of Western Australia

Part-time Membership Ms Catherine Johns

Johns Corporate Counsel Pty Ltd

Professional Announcements Career moves and changes in your profession Award-­winning dispersed law firm opens Western Australian office 'NewLaw' pioneers, Nexus Law Group, have continued their national expansion, opening a hub office in Perth.

Avon Legal

Joiners HHG Legal Group:

Avon Legal is extremely pleased to announce that their Legal Practice Director, Tony Fifield has been appointed as the WA Governor of the ANZ College of Notaries.

Alexandra Turner joined the Commercial Litigation Team on 7 December 2015 and is based in our West Perth Offices.Â

Greg Smith

Well-known lawyer, Greg Smith, has joined Nexus Law Group as Principal of the new Western Australian office. Greg is a specialist in Workplace Health and Safety, with a long career advising major corporate clients and government organisations on safety and employment related matters. Greg has previously worked with Freehills, Sparke Helmore and Woodside Energy and is a respected knowledge resource and trainer for many significant companies in the mining and resources, transport, construction, telecommunications, manufacturing and defence sectors.

Taylor Olivier is pleased to announce the appointment of Janelle Collins and Samuel Hagdorn as senior associates of the firm, commencing 1 January 2016.

Amy James joined the Family and Defacto Law Team on 11 January 2016 and will be predominately working our Mandurah offices.

Alexandra Turner

Amy James

Leaker Partners Leaker Partners is excited to announce the appointment of senior lawyer, Michael Lewis, to its ranks. Michael advises on all commercial matters Michael Lewis and wills, estates and succession planning.

New partners continue Borrello Graham's strategic growth Law firm, Borrello Graham Lawyers has continued its strategic growth with the elevation of Hendrik van Aswegen to partner and the addition of Julius Skinner to the partnership team.

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events calendar

Events Calendar DATE

EVENT

LOCATION

FEBRUARY MEMBERSHIP EVENTS Wednesday, 17 February

Sole practitioner and small firm forum

Joondalup Reception Centre

Friday, 19 February

Beach Volleyball Tournament

SandSports Australia, Nedlands

Friday, 26 February

Society Club

The University Club, Hackett Entrance #1 Crawley

Monday, 15 February

The Associations Incorporations Act 2015 (WA): A practical guide to changes to the laws governing incorporated associations

The Law Society of Western Australia

Tuesday, 16 February

Conducting proceedings in the State Administrative Tribunal

The Law Society of Western Australia

Tuesday, 16 February

Achieving best practice through legal benchmarking

Conference Room, Ground Floor 235 St Georges Terrace, Perth

Wednesday, 17 February

Expert Evidence: potential career saving tips

The Law Society of Western Australia

Thursday, 18 February

Structuring your client's commercial affairs

The Law Society of Western Australia

Thursday, 18 February

Building Disputes: trouble in the suburbs

The Law Society of Western Australia

Friday, 19 February

Work smarter not harder: enhancing personal management for healthy high performance

The Law Society of Western Australia

Friday, 19 February

Ethics on Friday: Reducing your risk profile with ethical practice

The Law Society of Western Australia

Monday, 22 February

Statutory Demands: an overview

The Law Society of Western Australia

Tuesday, 23 February

A review of 2015 High Court decisions

The Law Society of Western Australia

Wednesday, 24 February

Nature of evidence and presumptions in Probate actions

The Law Society of Western Australia

Friday, 26 February

Law Summer School 2016

The University Club, Hackett Entrance #1 Crawley

FEBRUARY CPD SEMINARS

MARCH MEMBERSHIP EVENTS Thursday, 3 March

International Women's Day Keynote Address and Luncheon

Parmelia Hilton, Perth

Friday, 11 March

Society Club

Dog Rock Motel, Albany

Friday, 18 March

Society Club

Quality Hotel Lord Forrest, Bunbury

MARCH CPD SEMINARS Wednesday, 2 March

In-House forum: A spotlight on In-House Counsel

The Law Society of Western Australia

Wednesday, 2 March

Pleas in mitigation and restraining orders essentials

The Law Society of Western Australia

Thursday, 3 March

Costs including alternative models and best practice

The Law Society of Western Australia

Thursday, 3 March

Recent developments in Australian Consumer Law

The Law Society of Western Australia

Friday, 4 March

Ethics on Friday: Rake â&#x20AC;&#x201C; Lawyers behaving badly

The Law Society of Western Australia

Tuesday, 8 March

Practical tips for effectively representing clients in mediations

The Law Society of Western Australia

Thursday, 10 March

An exploration of current issues in the medico-legal world

The Law Society of Western Australia

Friday, 11 March

Country Roadshow: Albany

Dog Rock Convention Centre, Albany

Monday, 14 March

Contaminated sites and property transactions

The Law Society of Western Australia

Tuesday, 15 March

Understanding financial statements for family lawyers

The Law Society of Western Australia

52 | BRIEF FEBRUARY 2016


events calendar MARCH CPD SEMINARS Tuesday, 15 March

Business and personal finances: managing the risks

Conference Room, Ground Floor 235 St Georges Terrace, Perth

Wednesday, 16 March

Planning and Development (Local Planning Schemes) Regulations 2015: A practical overview

The Law Society of Western Australia

Wednesday, 16 March

Debt recovery litigation

The Law Society of Western Australia

Thursday, 17 March

Rules of Engagement

The Law Society of Western Australia

Friday, 18 March

Country Roadshow: Bunbury

Lord Forrest Hotel, Bunbury

Tuesday, 22 March

Maximising your billable hour: managing your time and building resilience

The Law Society of Western Australia

Wednesday, 23 March

Hiring the best people for your practice and how to keep them

The Law Society of Western Australia

Wednesday, 23 March

Grants of Aid from Legal Aid WA

The Law Society of Western Australia

Wednesday, 30 March

Criminal practice in rush hour: advocacy in the Magistrates Court

The Law Society of Western Australia

Thursday, 31 March

Becoming a skilled communicator

The Law Society of Western Australia

APRIL CPD SEMINARS Wednesday, 6 April

Preparing for your next performance and salary review

The Law Society of Western Australia

Wednesday, 13 April

Strata Title Reform Update

The Law Society of Western Australia

Wednesday, 20 April

Re-engagement & re-invention: your career, your direction

The Law Society of Western Australia

MAY MEMBERSHIP EVENTS Monday, 16 May

Law Week Breakfast and 2016 Attorney General's Community Service Law Awards

Parmelia Hilton, Perth

Monday, 16 May

Youth Civics Leadership Day – by invitation only

The Law Society of Western Australia, The Old Court House Law Museum

Wednesday, 18 May

Law Week Panel Discussion presented by the Young Lawyers Committee

Supreme Court of Western Australia

Wednesday, 18 May

Alfred Hawes Stone Talk: Early Lawyer and Photographer

The Old Court House Law Museum

Wednesday, 18 May

Domestic Violence Awareness Session

The Law Society of Western Australia

Wednesday, 18 May

Sole Practitioner and Small Firm Forum

The Law Society of Western Australia

Thursday, 19 May

Law Week Cocktail Event and Lawyer of the Year Awards

Bankwest, Perth

MAY CPD SEMINARS Tuesday, 17 May

Mental Health Matters: Review of the Mental Health and Depression in the Profession Report

The Law Society of Western Australia

Wednesday, 18 May

Mental Health Matters: Technology and its effect on the practise of law – Panel Discussion

The Law Society of Western Australia

Thursday, 19 May

Refugee Matters: a seminar for lawyers and non-lawyers

The Law Society of Western Australia

JUNE MEMBERSHIP EVENTS Friday, 17 June

Society Club

Ocean Centre Hotel, Geraldton

Thursday, 30 June

Society Club

TBC

JUNE CPD SEMINARS Thursday, 9 June

QPS Accreditation Workshop 1

The Law Society of Western Australia

Thursday, 16 Jun

QPS Accreditation Workshop 2

The Law Society of Western Australia

Friday, 17 June

Country Roadshow: Geraldton

Ocean Centre Hotel, Geraldton

Friday, 24 June

Introduction to Advocacy

The Law Society of Western Australia

AUGUST CPD SEMINARS Friday, 5 August

Practical Advocacy Weekend

Seashells Resort Mandurah

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 49


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

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

AU.HUDSON.COM/LEGALJOBS

CONSTRUCTION

WORKPLACE HEALTH & SAFETY

SENIOR ASSOCIATE

ASSOCIATE

New vacancy in a construction team with a first class reputation. Disputes focussed role, under a well networked, market leading Partner. Candidates should have 5+ years of top tier construction experience. Fabulous opportunity to gain a challenging caseload of projects at the forefront of the construction industry. Ref: 6B/16197

Growth position on Employee & Labour team at this global firm for an OH&S lawyer. Working directly with the Partner, you will have 3-4 years’ PAE, with a genuine hunger and ambition to specialise in this area. Strong pipeline of prosecutions work acting for well known clients. Excellent career development opportunity. Ref: BX/41385

SENIOR ASSOCIATE

SENIOR ASSOCIATE

Work for leading a global law firm where the Perth office culture is built on collaboration, learning, communication and knowledge sharing. Growth position for a Senior Associate with a proven track record in front-end construction and projects. Client facing role with some of the industry’s leading players. Ref: BX/44811

Senior practitioner required to join a prominent Occupational Health & Safety Partner at this highly regarded national firm. This is a growth position offering front and back-end exposure. You will also support the team by supervising junior lawyers. Excellent culture and work/life balance at this firm. Ref: BX/41839

INSURANCE

CORPORATE

ASSOCIATE

ASSOCIATES

New role for an insurance litigation lawyer with 2-3 years’ PAE at this international firm. With previous exposure to local court process, you will work on a friendly and open team with a Partner and Senior Associate who will offer excellent mentoring and support. Assist in the growth of the professional indemnity, D&O and management liability practice. Ref: BX/45238

Due to increased workload, this Employer of Choice and global firm has opportunities for corporate lawyers with 2-5 years’ PAE. Working with market leaders, you will gain significant exposure to regulated M&A and capital markets work which will truly set you apart from your peers. Superb salary and genuine career progression on offer. Ref: 6B/16186

LAWYERS Multiple opportunities for defendant insurance litigation lawyers to specialise in the growth and demand areas of workers’ compensation and public liability. Enjoy direct client contact and manage your own challenging caseload, acting for insurance companies and other large corporates. Ref: BX/40742

SENIOR ASSOCIATE High quality corporate work for a lawyer at, or approaching, Senior Associate level. Enjoy direct exposure to a first class client base of public and private companies and support from two leading Partners in this award winning employer of choice, known for its friendly and collegiate environment. Ref: 6B/16062

These roles are just a few examples of many current opportunities that Hudson Legal can assist you with. For further information, please contact or email your CV to: Aoife Stapleton on 08 9323 0200 or aoife.stapleton@hudson.com

Brief February 2016