Page 1

VOLUME 44 | NUMBER 3 | APRIL 2017


Volume 44 | Number 3 | April 2017

COVER VOLUME 44 | NUMBER 3 | APRIL 2017

Law Summer School 2017

FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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.

12 THIS MONTH 06

Strategic Directions 2017 – 2020

10

WA’s most outstanding pro bono practitioners sought

12

You Can’t Choose Your Family

14

Law Summer School 2017 Event Wrap

18

Australian Lawyers in the Asia-Pacific Region

23

New procedural rules for Western Australia confirm the State’s commitment to arbitration

30

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

24

An Outline of Choice, and Conflicts, of Law in Federal Jurisdiction

30

Australia’s Place in the World

38

Clarifications on Notifiable Variations and Avoidance under Part V of the Strata Titles Act 1985 (WA)

Editor: Jason MacLaurin Deputy Editor: Moira Taylor Editorial Committee: Gregory Boyle, Rebecca Collins, Robert French, Melissa Koo, Jason MacLaurin, Alain Musikanth, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor Proofreaders: David Garnsworthy, Ann Kay Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (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 details, contact communicationsofficer@lawsocietywa.asn.au

40 President: Alain Musikanth Senior Vice President: Hayley Cormann Vice President: Greg McIntyre SC Treasurer: Jocelyne Boujos Immediate Past President: Elizabeth Needham Ordinary Members: Jocelyne Boujos, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Elisabeth Edwards, Catherine Fletcher, Rebecca Lee, Marshall McKenna, Denis McLeod, Stefan Sudweeks, Nicholas van Hattem, Paula Wilkinson Junior Members: Deblina Mittra, Jodie Moffat, Noella Silby Country Member: Brooke Sojan Chief Executive Officer: David Price

Four Steps to Having an Effective Mental Health Conversation

42

Motor Vehicle (Catastrophic Injuries) Act 2016

45

Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7

42 REGULARS 02 President's Report 04 Editor's Opinion 49 Young Lawyers Case Notes 51 Family Law Case Notes 52 Law Council Update 53 Pam Sawyer 54 Professional Announcements 54 New Members 55 Classifieds 56 Events Calendar

01


PRESIDENT'S REPORT Alain Musikanth President, the Law Society of Western Australia

Western Australian Parliamentary Elections As all would by now be well aware, Western Australia underwent a change of government last month. I have written to the new Premier, the Hon Mark McGowan MLA, and to the new Attorney General, the Hon John Quigley MLA, extending the Society’s congratulations and good wishes on their respective appointments. A letter has also been sent to former Attorney General, the Hon Michael Mischin MLC, expressing the Society’s appreciation for his service and assistance. Members will have observed, from the March issue of Brief, that prior to the recent State election both the (then Coalition) government and the (then Labor) opposition provided their respective responses to the Society’s policy statements on a variety of significant matters concerning the administration of justice, the Rule of Law and the legal profession. The Society looks forward to engaging with the new Labor government in relation to a number of those matters in 2017.

Legal Profession Uniform Law A particular matter which remains high on the Society’s agenda is national harmonisation of key aspects relating to regulation of the legal profession. Members will recall the hope, expressed in my report in the February issue of Brief, that uniform professional conduct rules providing inter-jurisdictional consistency be achieved without further undue delay. Uniform professional conduct rules are, of course, a significant component of the scheme for regulation of the legal profession in New South Wales and Victoria which came into force in those two states on 1 July 2015, under the umbrella of the Legal Profession Uniform Law 2014 (Uniform Law). The Society considers that the scheme, as a whole, has many features which might benefit the profession in Western Australia. In addition to providing uniform professional conduct rules the provisions under the Uniform Law would, if adopted in this State, also provide: (a) a structure for the regulation of the profession which respects the primacy of the Supreme Court of Western Australia in relation to the admission to and removal from the Roll and

02 | BRIEF APRIL 2017

the role of local regulatory authorities in relation to discipline; (b) uniform admission criteria; (c) uniform disclosure obligations in relation to costs; (d) uniform continuing professional development rules; and (e) a more liberal regime for the admission of foreign lawyers.

On Monday, 15 May 2017, the Society’s annual Law Week Breakfast will take place. The focus of the breakfast will be a presentation chaired by the Hon Chief Justice Wayne Martin AC and delivered by Katie Miller, 2015 President of the Law Institute of Victoria and author of the paper Disruption, Innovation and Change: The Future of the Legal Profession.

On Friday, 19 May 2017, the Society’s Executive will meet with a range of managing partners and other key stakeholders to discuss artificial intelligence. A particular focus of this forum will be the challenge faced by law firms using AI technology to ensure that emerging and future lawyers remain able to develop and refine their practical skills to levels necessary for the performance of competent professional work.

With these considerations in mind, the Society in 2014 resolved to recommend to the Attorney General the adoption of the Uniform Law subject to certain conditions1. As will also be recalled from the March edition of Brief, Labor’s response to the Society’s position on this issue was that it “supports Legal Profession Uniform Law across Australia with proviso that the Supreme Court and the WA Legal Practice Board retain control of the admissions and disciplinary functions of the Board”. It remains the Society’s firmly held view that the adoption of the Uniform Law, as a law of Western Australia, is in the interests of both the profession and the wider community. The Society has, accordingly, commenced steps to progress this matter with the new government.

2017-2020 Strategic Directions Plan As noted in my recent electronic update, the Society recently adopted a new Strategic Directions Plan, effective from 1 July 2017 to 30 June 2020. The new Plan has been developed following consultation with and taking into account suggestions (and, in some instances, frank feedback) by members. Further information about the Plan, and its genesis, may be found on pages 6 to 9 of this edition of Brief.

Future of the Legal Profession Under the new Plan the strategic objectives of the Society include: (a) contributing to the discussion, and providing leadership, on the future of the legal profession; and (b) providing resources and information to members on issues relevant to the future of the profession and legal practice. Consistent with these objectives, Council also resolved to adopt the Future of the Legal Profession as a strategic campaign. This important campaign will be ongoing, and, as announced in my recent electronic update, the first two elements will manifest themselves during Law Week 2017:

180th Anniversary Celebration of the Old Court House On Friday, 24 March I was pleased to welcome invited guests to a celebration of the 180th anniversary of the Old Court House. 180 years before – to the day – the first church service and unofficial opening of the building was held, on Good Friday 18372. Marie Taylor provided a Welcome to Country on the evening, following which I addressed guests and introduced the Hon Chief Justice Wayne Martin AC who provided an interesting account of the history of the Old Court House and launched the final stage of the redesign of the Society’s Old Court House Law Museum. The new exhibition is entitled From Past to Present: The changing face of the law in Western Australia and examines how the law has evolved in our State over the years. I encourage all members to visit the Museum. The event was also an appropriate occasion on which to recognise the 30th anniversary of the Francis Burt Law Education Programme, opened by Sir Francis Burt during Law Week 1987. NOTES: 1.

See the March edition of Brief, p 29.

2.

The first court session in the building having taken place earlier that year on 2 January 1837.


MONDAY, 15 MAY – FRIDAY, 19 MAY 2017

LAW WEEK 2017 A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY Embracing the law as part of our daily lives is important. From knowing our rights under the law, creating employment contracts, how a mediation works, through to setting up a business, having a will prepared or simply knowing what to do and where to go for legal assistance, the law plays a vital role. Each year, Law Week showcases events which provide the opportunity for the community and the legal profession to engage in open dialogue and build a shared understanding of the role of law in society. It is an excellent opportunity for the profession to promote its role in enabling an open, independent and unbiased judicial system. The Law Society of Western Australia showcases a series of events and information sessions focusing on law and justice in the community. Save the Date • Law Week Breakfast and the 2017 Attorney General’s Community Service Law Awards, Monday, 15 May 2017, Parmelia Hilton Perth • Walk for Justice, Tuesday, 16 May 2017 • Quiz Night - profits to Street Law Centre WA (Inc) by Pragma Legal, Tuesday, 16 May 2017 • Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee, Wednesday, 17 May 2017, Supreme Court of Western Australia • Law Week talk entitled ‘180th Anniversary of the Old Court House’, Wednesday, 17 May 2017, Old Court House Law Museum, Stirling Gardens • Law Week Cocktail Party and 2017 Lawyer of the Year Awards, Thursday, 18 May 2017, Bankwest Place, Perth Visit lawsocietywa.asn.au/law-week for more information and to register for these events. With thanks to Law Week supporters and sponsors

Lawyer of the Year Award and Community Events Sponsor

Lawyer of the Year Award Sponsor

Cocktail Evening Host Sponsor

lawsocietywa.asn.au Law Week 2017


EDITOR'S OPINION Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

As will have been gleaned from the cover, this month’s Brief reports upon the Law Summer School, which was held on 17 February. The annual Law Summer School is a key event for the Society. It provides an opportunity for the local profession to hear presentations from, and engage in discussion with, present and former members of the judiciary, senior members of the profession, academics and politicians. Importantly, the speakers are a mix of local, interstate and international figures in the law. Indeed, the theme for this year’s Summer School was Australia’s Place in the World. The President’s welcome detailed some of the history of the Summer School, which dates back to 1961 and continued for about three decades, after which it entered into a decade-long hiatus before then being revived. All of which bears an uncanny resemblance to the history of the Rolling Stones. This edition also contains an invitation for nominations for the Society’s WA Lawyer of the Year awards, the winners of which will be announced at the Law Week Cocktail Evening on 18 May. Readers are encouraged to submit nominations for these awards, having confidence in the process, because unless something goes awry with the arrangements, the announcement of the winners at the Cocktail Evening will almost certainly not be performed by Faye Dunaway and Warren Beatty.1 Having said that, anything is possible, and it may be that a practitioner could have an advantage in these awards if their name was, say, Leon Aaron Lawrence Adrian Land. As far as lawyers are concerned, the Beatty & Dunaway Oscars fiasco demonstrates a well-known truth: no matter how well organised and resourced preparations are, or how big the stage, there is always the potential for something unexpected, for documents

04 | BRIEF APRIL 2017

being missed or misread, or clients or witnesses doing things that aren’t anticipated. However, the incident has a more profound potential impact for lawyers being that, given who ultimately copped the blame for Bonnie & Clyde’s mess up, there may be a happy shift in the volume and frequency of lawyer jokes, to jokes about accountants.2 Of course, had it taken place in April, it might have been passed off as an April Fool’s Day joke. However, given the current environment, April Fool’s Day jokes are perilous endeavours, and likely to result in, not hilarity or an exclamation of a quaint P G Wodehouse story-like sentiment along the lines of “oh, what a jolly jape you scoundrels”, but rather allegations of Wilkinson v Downton intentional infliction of emotional harm, breaches of employers duties and – most seriously of all – failure to provide a safe space or to provide a trigger warning. Office organisers of April Fool’s Day jokes now fall into the class of persons most likely to have to issue grovelling after-the-event job-saving apologies, joining HR staff who covertly organise Secret Santa presents to be allocated to employees who were known to despise each other, or any organiser of a buck’s party or hen’s night for a work colleague. Far from being removed from the perils of April Fool’s Day jokes, lawyers are right in the firing line. A prominent example of an April Fool’s Day joke gone wrong was an international New York-based law firm’s prank release to its employees to the effect that the firm was blocking the sending or receipt of all work-related emails between the hours of 11pm and 6am, as well as on Saturdays, Sundays, and employee vacation days. The outrage was immediate once the joke became apparent, employees seeing it as mocking concern for their welfare in what was an around-the-clock work culture that gave rise to work/life balance issues. One can only assume that the person who considered the joke would be a good idea was immediately

demoted to being in charge of Secret Santa arrangements for later that year. As readers are aware, this being the 90th anniversary of the Law Society, Brief editorials have sought to cast an eye back to the year 1927. However, research revealed only one particularly prominent event on 1 April 1927, being the formation of the Bureau of Prohibition as part of the US Department of Treasury. This may be an example of something that was initially assumed to be an April Fool’s Day joke until terror set in with the realisation of the newly bolstered enforcement of the 18th Amendment, and the implications thereof (mind you, it did provide an opportunity for Sean Connery to deliver one of the most politically incorrect tirades ever about bringing a knife to a gunfight).3 This Edition contains presentations to Law Summer School from the Hon George Brandis QC, the Hon Marilyn Warren AC, and Matthew Howard SC. It also contains a number of other items of great interest, and upon a diversity of topics, including articles by Geoffrey Bourhill upon the Motor Vehicle (Catastrophic Injuries) Act 2016, Peter Beekink on Clarifications on Notifiable Variations and Avoidance under Part V of the Strata Titles Act 1985 (WA), Sophie Manera on the amendments to the definition of “members of the family unit” in the Migration Regulations, Spencer Flay, Kristina Botsis, Ben Stephenson and Hannah Peters on the new arbitration procedural rules for the Supreme Court, and Alex McGlue upon the recent High Court case of Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7. NOTES: 1.

The Editorial of last month, submitted just prior to the Oscar awards ceremony commencing, posed the possibility of La La Land being given more awards than it had in fact been nominated for, and was not that far off in what ultimately transpired.

2.

This involves fertile new ground for new “how many […] does it take to screw in a lightbulb…” gags, that do not involve lawyers.

3.

See (which I suppose includes “a must see”) Brian De Palma’s 1987 The Untouchables.


BUILT TO BE DRIVEN, NOT PARKED. FLEXIBLE OPTIONS TO SUIT YOUR LIFESTYLE AT AUTO CLASSIC.

DAN E S i 0 3 3 BMW LINE. T R O P S WITH

0 0 $69,9 AY DRIVE AW

FROM

*

% 9 9 . 4 9 19

$

K WITH A PER WEEDEPOSIT^ $6,990

ARISON PA COMP RATE#

• Head-Up Display • Real Time Traffic Information • Comfort Access System • Surround View In addition to outstanding opportunities on the BMW 3 Series, as a member of The Law Society of Western Australia, you’re entitled to enjoy the benefits of BMW Advantage, including free 5 year/80,000km scheduled servicing and reduced dealer delivery,~ among many others. To find out how you could start a rewarding journey with BMW Advantage, visit autoclassic.com.au/advantage or contact Steve Heales at Auto Classic on (08) 9311 7533 today. Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0450 525 025. autoclassic.com.au LMCT 2271 *Drive away price for a new BMW 330i Sedan with Sport Line, automatic transmission, metallic paint and no other optional extras, while stocks last, and is based on the vehicle being garaged in WA postcode 6000 and a private owner with a good driving record. Price may vary according to individual circumstances. Not to be combined with any other offers. Consult Auto Classic for further details. ^Offer based on the drive away price of $69,900 with a 10% deposit of $6,990 for the BMW 330i Sedan on a BMW Full Circle agreement with 48 monthly repayments of $860.76, a 15,000 km pa allowance and a Guaranteed Future Value (GFV final payment) of $30,900. Interest rate is 4.79% pa. Total amount payable is $79,207. At the end of your contract, you can trade-in the vehicle; or exercise your GFV rights by paying out or refinancing the GFV or returning the vehicle to BMW Financial Services, provided that the vehicle has not exceeded the contracted km allowance & meets fair wear and tear conditions. Finance from BMW Financial Services (a division of BMW Australia Finance Ltd, Australian credit licence 392387). Offer applies at participating dealerships while stocks last to new vehicles ordered between 01.03.2017 and 30.04.2017. Finance offer valid up to 100% of vehicle RRP only. No other offers apply. Excludes fleet, government & rental buyers. Fees, charges, terms & conditions apply. Offer is subject to BMW Financial Services’ normal lending & approval criteria. Consult your preferred BMW dealership for further details. BMW Financial Services reserves the right to change or extend the offer. #Comparison rate based on monthly repayments for a 5 year secured consumer fixed rate loan of $30,000. WARNING: This comparison rate is true only for the example given & may not include all fees and charges. Different terms, fees or other loan amounts might result in a different comparison rate. ~Benefits apply to the purchase of a new BMW vehicle and only to the vehicle purchased. Subject to eligibility. Terms, conditions, exclusions and other limitations apply, and can be viewed at autoclassic.com.au/advantage.


Strategic Directions 2017 – 2020 The Law Society has recently undertaken an extensive review of its strategic plan. As a result of wide-spread member consultation, strategic analysis, discussions among the Chief Executive Officer, Senior Management Group and the Council, a revised Strategic Directions 2017 – 2020 has been developed.

06 | BRIEF APRIL 2017


This review was undertaken to ensure the Society’s strategic direction remains aligned with key stakeholders’ needs and priorities. The first stage of member consultation saw six focus groups completed in late 2016. The focus groups represented a wide cross-section of members, nonmembers and past members. There was also a range of in-house and government lawyers, as well as sole practitioners, and members who are employed in small, medium and large size firms. Overall the feedback received from the groups was very positive. Participants felt that the Society is moving in the right strategic direction and they want the Society to continue to be the voice of the legal profession in Western Australia. It was also agreed in the groups that the three strategic priorities should remain as: •

Strong advocacy

High value services

Organisational excellence

of participants acknowledged that the Society has been trying very hard to provide greater member value, and that they can see evidence of members’ suggestions being acted on. This is a great result for the Society and is pleasing for staff to see that the strategies being implemented are recognised and appreciated by the membership. The groups were also informative by providing insight for the development of the Society’s strategy going forward. The top 10 challenges facing the profession in Western Australia at present, as reported by the focus group participants, were: 1. A Perfect Storm – members are concerned about the effect of a slowing economy, increasing competition, technological disruption and downward fee pressure. 2. Where is the Profession heading? – members are looking to the Society to have a vision for the future.

Participants also reported that they are noticing positive change. A number

3. Enhancing loyalty and goodwill – practitioners are under pressure,

working longer hours, with less financial return; graduates find it difficult to find employment – the value of the Society needs to be clearly understood by all. 4. High level influence – the Society should continue to strive for 100% membership among the profession; members want to see the Society have a higher profile among the levels of influence. 5. Costs of practising law – the cost of running a firm can be a real disadvantage against new and disruptive entrants. 6. Attracting practitioners into regional areas – can the medical model be replicated for our profession? 7. Health and Wellbeing – a key issue for the profession. 8. Growing the pro-bono pool – there is a growing demand for volunteer legal services. 9. Excessive supply of legal graduates – what can the Society do in regards to advocacy, communication and education?

Market Update – April 2017 Business confidence continues into 2017, with growth roles in energy & resources/projects on the rise. Demand for mid to senior Litigators remains strong, particularly expertise in resources or construction disputes, as WA projects transition into production. Insurance roles remain steady. Please find below a selection of our latest job opportunities for April. For a full list of available opportunities, contact us for a confidential discussion or visit www.profilelegal.com.au.

Commercial Litigator

Energy & Resources/Projects Lawyer

Senior Associate – 5 years +

2-4 years PAE

Brilliant career progression role with one of Perth’s top Litigation practices. Rarely in the market, this prestigious team boasts excellent staff retention, expert lawyers and access to a consistent flow of quality work.

This premier Perth team has a new growth role for a talented Projects Lawyer. Your role will focus on front-end commercial advisory, drafting and negotiations for resources, infrastructure and project development matters. Clients include leading national/ international resources, engineering & construction and industrial companies.

You’ll manage complex corporate/commercial litigation, with a particular focus on resources & project based disputes for major Australian or global corporations. Directly running your own matters and advocacy, managing clients and junior staff, you’ll also be encouraged to grow your own practice and client base. This role offers excellent long term progression prospects for an ambitious and driven junior SA. 2-4 years at Senior Associate level and top-tier litigation experience will ensure your success.

As part of a well-structured team, you’ll be mentored by leading partners and senior lawyers, will have access to state of the art resources, technology and training and will be given every opportunity to develop professionally. You’ll require 2+ years PAE with a top-tier Resources/Projects team and strong commercial drafting skills. Exceptional opportunity to advance your career with this leading practice.

Stacey Back Director p

m

e

www.

.au

07


Our Purpose, Vision and Strategic Priorities

PURPOSE

VISION

10. Public perceptions – a PR strategy is required to improve public perceptions. Given the types of issues raised as concerns for the profession overall, four key areas have been identified to enhance member value – namely: 1. Develop a vision for the legal profession in Western Australia and help members ‘future-proof’ their practices. 2. Strengthen the Society’s profile and member awareness of services and benefits. 3. Shift the focus from activity-based reporting to achievements or outcome-based reporting. 4. Make the perceived intangible tangible. Each of these has been incorporated in the revised Strategic Directions 2017 – 2020 plan.

08 | BRIEF APRIL 2017

STRATEGIC PRIORITIES

Purpose

The voice of the legal profession in Western Australia

Vision

The essential membership for the legal profession

Strategic Priorities

• • •

In addition to the focus groups, in early 2017, all members were sent an invitation to participate in an online survey, the ‘2017 KPI scorecard’, undertaken by Catalyse. This confidential survey’s purpose was to evaluate the Society’s performance against key performance indicators in the strategic plan. In total, 20 items were included in the survey, focusing on satisfaction levels and beliefs on the Society’s performance against ‘Organisational Excellence, ‘Strong Advocacy’ and ‘High Value Services’. Results reported for the significant indicators are: Organisational Excellence (% satisfied; % agree): •

Member satisfaction – 83%

Member Advocacy – 80%

Provides good value membership – 65%

Strong Advocacy High Value Services Organisational Excellence

Strong Advocacy (% agree): •

Has a good understanding of members’ needs – 78%

Keeps members well informed about changes in legislation and key issues affecting the profession – 86%

Is the voice of the legal profession in Western Australia – 84%

High Value Services (% satisfied): •

The Society’s website – 65%

Brief journal – 84%

E-communication – 84%

Continuing Professional Development – 74%

Having collected insight from the membership across both the focus groups and the KPI scorecard survey, the Society then reviewed the 2014 – 2018 Strategic Directions document to ensure it remained aligned with the key stakeholders’ needs and priorities. The


revised Strategic Directions 2017 – 2020 plan was adopted by Council in February 2017. The three key pillars of ‘Strong Advocacy’, ‘High Value Services’ and ‘Organisational Excellence’ remain from the 2014 – 2018 Strategic Directions Plan. Within ‘Strong Advocacy’, we have maintained our commitment to represent the interests of members both individually and as a profession, promote access to justice, drive regulatory reform and continue to pursue strategic campaigns. Given the feedback from the focus groups, and what we as a Society understand are critical changes facing the profession, we have prioritised resources towards providing leadership on the future of the legal profession. In this connection, the Society has scheduled two important events for the first half of 2017. The Society also hopes to be an active contributor to the LCA’s Futures Committee, as well as focusing on our needs here in

Western Australia. Further features of this strategy are being planned. Other key priorities within the ‘Strong Advocacy’ pillar include improving accessibility to the vast amount of resources we have available for our members via our communication channels, as well as focusing on outcomes based reporting where possible. For ‘High Value Services’, we recognise the importance both of providing resources and information to members on issues relevant to the future of the profession and legal practice and to continuing to improve our offering for CPD, ensuring that the model remains competitive and sustainable into the future. A key strategy within the Plan is to undertake a comprehensive, independent review of our CPD programme. We are also committed to improving communication with members. This will focus on what we say (the right message to the right segments on issues which are

relevant), as well as the channel via which we say it (there will be a strong focus on Brief, the website and e-communications). Finally, the pillar of ‘Organisational Excellence’ reinforces our commitment to continually improving the value equation by delivering value propositions across member segments, and to investigate whether we have the right tools to allow us to do this effectively. Given the significant nature of these initiatives, and the fact that we have consulted widely with the membership as part of the review of the Strategic Directions, it was agreed that the timeframe for our current plan would be revised to be 2017 – 2020. The Society believes that the implementation of this plan will ensure a committed and continued focus on being the voice of the legal profession in Western Australia, and is the essential membership for the legal profession.

Master Y O U R P R A C T I C E W I T H T H E L L M ( A P P L I E D L AW )

I would highly recommend The College of Law masters. Not only is it very practical, but it’s taught well and it’s immediately applicable to one’s day to day practice.

– N AT H A N A E L K I T I N G A N

S E N I O R A S S O C I AT E , M A C P H E R S O N K E L L E Y, L L M ( A P P L I E D L AW ) G R A D U AT E

WAT C H N AT H A N A E L’ S S T O R Y @ W W W . C O L L AW . E D U . A U / A L P Contact us: 1300 506 402 or alp@collaw.edu.au

09


WA’s most outstanding pro bono practitioners sought Individuals and legal organisations to be recognised for their free assistance

Attorney General John Quigley MLA is inviting legal practices, practitioners and community organisations to nominate candidates for the 2017 Attorney General’s Community Service Law Awards. Presented as part of WA Law Week in May, the two Law Awards recognise one individual legal practitioner and one organisation which have provided outstanding pro bono legal services to the Western Australian community. “The two awards recognise those legal practitioners and organisations who have generously volunteered their skills and expertise to benefit those who need it most,” Mr Quigley said. The 2016 individual law award winner was Michael Tucak for the pro bono legal services he has provided to the Western Australian arts and cultural community for more than 20 years. The winner of the 2016 organisational law award was King & Wood Mallesons for providing pro bono services since 2011, representing more than $1.7 million

in fees, and equating to more than 5,580 hours in pro bono time. Nominations for the 2017 awards are now open and must be received by the Department of the Attorney General by 2pm on Monday, 24 April 2017. Now it its 11th year, the previous winners of the individual award include: •

Adam Levine (2015) who coordinated pro bono work for K&L Gates Perth office and provided pro bono legal services to Manna Inc

Elspeth Hensler (2014) who acted for refugees, foster carers and war veterans

David Jenaway (2013) who handled the day-to-day management of Herbert-Smith Freehills’ pro bono program

Kylie Groves (2012) who used her legal skills and experience to provide pro bono legal services to individuals, charities and not-for-profit organisations.

For more information, visit www.dotag.wa.gov.au/lawaward.

Bequests Help Save Cats’ Lives As a charity, Cat Haven relies heavily on the kind donations and bequests of West Australians. We are WA’s premier cat welfare organisation, accepting over 6500 cats a year and rehoming as many as possible. We can assure your clients that their cat will be looked after and rehomed if they are left behind if a bequest is

10 | BRIEF APRIL 2017

made to Cat Haven. By suggesting and guiding your clients on how to bequeath a gift, you will also be providing much needed support for the homeless cats of Perth. For more information or a brochure, go to www.cathaven.com.au or call Chandra Woodley on 9442 3600.

Nicholas Creed, King & Wood Mallesons and Michael Tucak, Creative Legal, winners of the 2016 Attorney General’s Community Service Law Awards.

Fact File •

Nominations for the 2017 awards are now open and must be received by the Department of the Attorney General by 2pm on Monday, 24 April 2017

For more information, visit www.dotag.wa.gov.au/ lawaward

Please Donate, Adopt Foster, Bequeath, Volunteer


Enquire today!

First Thursday of each month!

Become a member of The Western Australian Club

Monthly Professional Sundowners @ The Club

As a Club Member; •

Have the opportunity to attend Club Events

Expand your professional network

Please join us on the first Thursday of every month for a fantastic opportunity for you and your guests to socialise with fellow members & to make valuable professional connections all while enjoying the panoramic views of the iconic Swan River.

Hold your next private function @ The Club with special member rates

MEMBERS & VISITORS WELCOME

Dine @ The Club’s restaurant with a delicious A La Carte Menu

Enjoy The Club’s Skyline Bar

Have access to 250 Reciprocal Clubs

Get mesmerised by the sweeping views of the iconic Swan River

E Fr ver id y ay !

& much more!

Time:

5.30pm onwards

Includes:

1 hour Complimentary Canapés & Cash Bar

Dates:

6th April, 4th May, 1st June, 6th July, 3rd August, 7th September, 5th October, 2nd November & 7th December

RSVP PREFERRED BUT NOT ESSENTIAL

Friday Night After Work Drinks @ The Club ** DELICIOUS COMPLIMENTARY CANAPÉS ** HAPPY HOUR DRINKS: • Selected beer, wines & sparkling - $7 per glass • Weekly Cocktail - $10 per glass from 5.30 to 6.30pm!

ADDRESS: The Penthouse, Level 11, 12 St Georges Terrace, Perth CONTACT: (08) 9481 7000 or email: administration@waclub.com.au DRESS CODE: Smart attire & Business attire

11


You Can’t Choose Your Family Amendments to the Definition of ‘member of the family unit’ in the Migration Regulations 1994

By Sophie Manera Partner, Rothstein Lawyers

Sophie Manera

Introduction “A family unit is composed not only of children but of men, women, an occasional animal, and the common cold” – Ogden Nash.

facto partner) who is not engaged to be married and does not have a spouse or de facto partner; (c) a dependent child of (b); (d) a parent;

It’s not difficult to picture American poet Ogden Nash’s idea of the American family unit: mother, father, children – and contagious viruses.

(e) a brother or sister or step-brother or step-sister;

However in many parts of the world, the concept of the family unit varies significantly. Traditionally in many parts of Asia, a married woman may move into her in-laws’ house and live there with her husband.1 In Afghanistan, households may contain three to four generations2, frequently accommodating elderly grandparents or great-grandparents and single or widowed women.3

(g) a grandchild or step-grandchild;

It is a reality that households and their occupants vary significantly across the globe. The nuclear family of mum, dad and children is only one example of a household. When a person wishes to migrate to Australia, family members living in the same household will often want to migrate too. A visa applicant is able to include family members in his or her visa application if the family member fits the definition of ‘member of the family unit’4, defined at Regulation 1.12 of the Migration Regulations 1994.

The old definition of ‘member of the family unit’5 Prior to 19 November 2016, a ‘member of the family unit’ of a visa applicant may include: (a) a spouse or de facto partner; (b) a dependent child (of the visa applicant or his/her spouse or de 12 | BRIEF APRIL 2017

(f) a grandparent or step-grandparent;

(h) an aunt or uncle or step-aunt or stepuncle; (i)

a niece or nephew or step-niece or step-nephew.6

A ‘dependent child’ is defined as a child who has not turned 18, or a child who has turned 18 and is financially dependent on their parent(s), or incapacitated for work due to total or partial loss of bodily or mental functions.7

The new definition of ‘member of the family unit’ The definition of ‘member of the family unit’ was amended by the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016, which commenced on 19 November 2016. This new definition applies to all visa categories except protection, refugee and humanitarian visas (where the old definition still applies). This amendment reduced the scope of who may be included as a ‘member of the family unit’ in a person’s visa application. Under the new definition8, a ‘member of the family unit’ may include: (a) a spouse or de facto partner; (b) a child (of the visa applicant or his/ her spouse or de facto partner) who is not engaged to be married and

does not have a spouse or de facto partner and: i.

has not turned 18; or

ii.

has turned 18, but has not turned 23, and is financially dependent on his/her parent(s); or

iii. has turned 23, but is financially dependent on his/her parent(s) as he/she is incapacitated for work due to total or partial loss of bodily or mental functions; or (c) a dependent child of (b). Other relatives such as parents, siblings, grandparents, grandchildren, nieces, nephews, aunts and uncles can no longer be included in a person’s visa application as a ‘member of the family unit’. According to the Explanatory Statement to the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 (the Explanatory Statement), the amendment to the definition of ‘member of the family unit’ makes the provisions about who can accompany a visa applicant as a family member more consistent with who can be sponsored by an existing permanent resident or citizen as a family member.9

What, then, happens if an aged parent lives with a visa applicant? There are two scenarios: 1) Where a person (the primary visa holder) holds a temporary Australian visa and their aged parent lives with them in Australia and holds a visa as a secondary applicant (i.e. the aged parent has previously been granted a visa as a ‘member of the family unit’ of the primary visa holder). The aged parent is a ‘secondary visa holder’; or


2) The aged parent does not currently hold a visa granted on the basis that they are a ‘member of the family unit’ of the primary visa holder. In the first scenario, the Migration Regulations makes provision for relatives who have already been accepted as a ‘member of the family unit’ in a temporary visa application to be validly included in a permanent visa application.10 This arrangement acknowledges that once a person has satisfied the ‘member of the family unit’ requirements, they may continue their stay in Australia as a ‘member of the family unit’. In the second scenario, an aged parent can no longer migrate to or remain in Australia as a ‘member of the family unit’ and would have to find another visa option. The Explanatory Statement states that “it is estimated that around 5,900 extended family members a year will no longer be eligible to migrate as secondary applicants.11”

Ongoing Implications The Explanatory Statement includes a Statement of Compatibility with Human Rights. The legislative instrument is deemed “compatible with human rights because, to the extent that it may limit human rights under the ICCPR, those limitations are reasonable, necessary and proportionate, by better aligning migration pathways for relatives of new migrants with those for Australian citizens and existing permanent residents”.12 However, neither the Explanatory Statement nor the Statement of Compatibility with Human Rights addresses the cultural appropriateness of the amendments, nor the significant impact that the amendments will have on many prospective migrants.

Consider the following scenarios: 1. A child is brought up by his aunt and uncle as his biological parents decide they cannot afford to raise another child. The child is never formally adopted by his aunt and uncle. The child has limited contact with his biological parents; 2. A widowed woman who previously suffered family violence from her late husband has now lived with her brother for over 10 years; 3. An elderly man lives with his wife, son-in-law and young grandchild. He is the primary carer of the grandchild as his wife and son-in-law work fulltime. These are not common scenarios in Australia. However in many parts of the world, they are. In the above three scenarios, the child, the widowed woman and the elderly man cannot migrate to Australia with their families as a ‘member of the family unit’ (unless they migrate through the protection, refugee or humanitarian visa programme). A more common scenario in Australia is where an adult child lives with his or her parents while completing full or parttime study. Under the new definition, an adult child cannot be included as a ‘member of the family unit’ if they have turned 23 years of age, unless they are incapacitated for work due to total or partial loss of bodily or mental functions. The writer queries how many law students living with and supported by their parents would no longer be classified as a ‘member of the family unit’ of their parents.

Conclusions There is no doubt that the Migration Legislation Amendment (2016 Measures

No. 4) Regulation 2016 will have ongoing implications for families considering migration to Australia. Migration law, a field rife with ‘grey areas’, often provides scope for discretion to assist in obtaining a desired outcome. However, the change to the definition of ‘member of the family unit’ is black and white. There is no ‘wriggle room’ to argue that a widowed sister who has lived with her brother for the past 10 years should be allowed to migrate to Australia with him. Primary visa applicants seeking to bring their extended relatives to Australia (or keep them here) may resort to Ministerial Intervention (if eligible). While the Minister for Immigration and Border Protection maintains a discretion to grant a visa to any person regardless of eligibility under the Migration Regulations, it is only in the most exceptional circumstances that the Minister will intervene. Migration law practitioners should convey this news to their clients with an understanding that this will be an unwelcome and offensive change to many. NOTES: 1.

Perminder Khatkar, Living with the in-laws (28 December 2009) BBC News <http://news.bbc.co.uk/2/ hi/uk_news/magazine/8427120.stm>

2.

Peter R. Blood, ed. Afghanistan: A Country Study, Library of Congress Country Studies <http:// countrystudies.us/afghanistan/57.htm>

3.

Peter R. Blood, ed. Afghanistan: A Country Study, Library of Congress Country Studies http:// countrystudies.us/afghanistan/57.htm

4.

Migration Regulation 1994 (Cth) Reg 1.12.

5.

Migration Regulation 1994 (Cth) Reg 1.12.

6.

Migration Regulation 1994 (Cth) Reg 1.03 for the definition of “relative”.

7.

Migration Regulation 1994 (Cth) Reg 1.03.

8.

Migration Regulation 1994 (Cth) Reg 1.12(2).

9.

Explanatory Statement to the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016.

10.

Migration Regulation 1994 (Cth) Reg 1.12(5).

11.

Explanatory Statement to the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016.

12.

Explanatory Statement to the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016, Attachment B.

Shearn HR Legal - Human Resource + Recruitment is one of the leading, longest standing, legal recruitment agencies in Perth. With Julianna Shearn at the helm, holding more than 20 years’ pure, legal recruitment experience and just under 5 years’ as a lawyer, it is your best resource for career advice and guidance, salary and performance appraisal advice, recruitment solutions and assistance, partner and team movement advice and assistance and overall legal recruitment expertise. Call now for a confidential discussion about your most important asset, you or your firm!

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

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

13


LAW SOCIETY EVENT

Friday, 17 February 2017 The University Club Crawley, Western Australia

Australia’s Place in the World

1.

2.

3.

4.

Law Summer School, the Society’s flagship annual legal education conference, was held on Friday, 17 February 2017 at the University Club, Crawley. This year’s theme of Australia’s Place in the World recognises that the practice of law is now very much a global phenomenon. Australia is certain to feel the effects of the seismic geopolitical events that have dominated the past year, including the election of Donald Trump to the United States Presidency and the decision of the United Kingdom to leave the European Union, not to mention the continued rise of China as a global power. As the Hon Marilyn Warren AC, Chief Justice of Victoria and presenter of Law Summer School’s keynote plenary noted, “Australia’s Place in the World was a prescient yet challenging choice of topic by the organisers of this conference, as it asks us to draw up a map while the ground is shifting beneath our feet.”

14 | BRIEF APRIL 2017

5.

With global events presenting both potential challenges and opportunities for Australia, Law Summer School examined the possible implications for legal practice and our system of justice. The day began with breakfast in the University Club’s banquet hall, followed by a Welcome to Country presented by Barry McGuire. Barry has worked as a cultural advisor for local, State, and Federal Government and is a cultural consultant for the Perth International Arts Festival. The Society was honoured to be able to use the site with the approval of the traditional owners. Society President Alain Musikanth welcomed delegates to the conference and provided some of the history of Law Summer School, which dates back to 1961. The conference was held annually for three decades until, in 1994, it was discontinued in favour of the Society’s yearround seminar programme. In 2006, the conference was reinstated in its current form.


6.

7.

8.

Law Summer School has provided generations of Western Australian legal practitioners the opportunity to learn from, and debate with, the most eminent local, national and international presenters. Some of the leading figures to grace the conference with their presence through the decades include: •

Sir Francis Burt

Sir Ninian Stephen

Sir Gerard Brennan

Justice Michael McHugh

Justice Ken Handley

Lord Justice Sir Paul Kennedy

The Hon Wayne Martin AC, Chief Justice of Western Australia

Malcolm McCusker QC

Dame Sian Elias, Chief Justice of New Zealand

Professor Catharine A MacKinnon

Professor Gillian Triggs

Senator the Hon George Brandis QC, Attorney-General for Australia, presented the breakfast plenary, ‘Australian Lawyers in the Asia Pacific Region’. Senator Brandis noted that, “far from being agents of inertia, far from throwing sand in the gears of change, Australian lawyers have accelerated our country’s commercial and cultural engagement with the world and in particular with our region.” You can read Senator Brandis’ full address in this issue of Brief.

After a short break, in which delegates made their way to the auditorium, the Hon Marilyn Warren AC, Chief Justice of Victoria and speaker for Law Summer School’s keynote plenary, presented ‘Australia’s Place in the World’. Chief Justice Warren states that, “For Australian courts and legal professionals, Australia’s engagement with the world leads to an increase in involvement in disputes and legal work of an international character.” Her Honour notes that, “Opportunities will present themselves in international commercial arbitration, both overseas and at home.” A reproduction of the speech may be found in this month’s Brief. Following a break for morning tea in the banquet hall, delegates split into four streams. The concurrent sessions have always offered Law Summer School delegates the opportunity to focus on their specific areas of law practice and take part in more intimate learning environments. Penny Carruthers, Lecturer at the University of Western Australia, chaired a session on ‘Property Law – Foreign Investment in Australian Property’, and was joined in discussion by Simon Taskunas, Partner, Clayton Utz and Peter Beekink, Partner, Lavan. The session examined why Australia remains an attractive destination for foreign capital investing across all property classes, and provided some practical ‘dos and don’ts’ when acting for overseas investors. ‘Estate Planning – Discretionary Testamentary Trusts’ was chaired by Thomas Henn Managing Director, Willpower Legal, with discussions from Robert Sceales, Senior Partner, Sceales Lawyers, and Sally Bruce, Special Counsel, Jackson McDonald. Issues relating to the drafting of discretionary testamentary trusts were discussed,

Photos: Ron D’Raine Images

1.

The Hon Robert French AC.

5.

Delegates at Law Summer School 2017.

2.

John Fiocco, Convenor, Law Summer School Organising Committee; The Hon Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria; and Alain Musikanth, President, The Law Society of Western Australia.

6.

Barry McGuire.

7.

Delegates listen to Senator the Hon George Brandis QC, AttorneyGeneral for Australia present on 'Australian Lawyers in the Asia Pacific Region'.

3.

Sally Bruce, Special Counsel, Jackson McDonald.

8.

4.

The Hon Kim Beazley AC, Former Deputy Prime Minister of Australia and Australian Ambassador to the United States of America.

Sarah Green, Associate Professor of Law, University of Oxford, United Kingdom; The Hon Justice Nye Perram, Federal Court of Australia; and The Hon Justice Janine Pritchard, Supreme Court of Western Australia.

15


1.

2.

4.

3.

including key offices and concepts, and when a mandatory as opposed to an optional trust might be considered. Professor Richard Bartlett, Director of the Centre for Mining, Energy and Natural Resources Law at the University of Western Australia, chaired the third concurrent entitled ‘Resources and Reform from an Ocean and Mining Perspective’, with Professor Erika Techera, Director of the Oceans Institute, the University of Western Australia and Brad Wylynko, Partner, Clayton Utz as the other presenters. With new challenges constantly being thrown up by changes in the resource industry, this session considered whether ongoing legislative reform is required. Finally, Marshall McKenna, Partner, Gilbert + Tobin, was chair for a session on ‘The Business Case for Work Practices That Promote Good Mental Health’. Dr Rebecca Michalak, Principal Consultant, PsychSafe, Kylie Groves, Partner, Squire Patton Boggs and Samuel Witton, Senior Associate, Herbert Smith Freehills, joined Mr McKenna for the discussion. The ramifications of a stressful workplace can manifest in sick leave, staff turnover and stress claims. The panel examined the tangible benefits of workplace practices that promote good mental health. The second half of the conference delivered three outstanding plenary

16 | BRIEF APRIL 2017

sessions. The first plenary for the afternoon was ‘Federal Jurisdiction and Conflict of Laws’. Brahma Dharmananda SC, Barrister, Quayside Chambers was chair for this session which featured presentations by the Hon Robert French AC, former Chief Justice of the High Court of Australia, and Matthew Howard SC, President, Western Australian Bar Association. Mr Howard’s paper considered the principles applied when there is a choice between different State laws competing for application in contract, and tort claims involving Federal jurisdiction. The paper is reproduced in this month’s issue of Brief. Following from this was a plenary session on ‘Money, Banking and Crypto Currencies: A Legal Perspective’, featured presenters the Hon Justice Nye Perram, Federal Court of Australia and Sarah Green, Associate Professor of Law, University of Oxford, with the Hon Justice Janine Pritchard, Supreme Court of Western Australia, acting as chair. The session provided a history of the use of money, the operation of the banking system, the nature of the current payment system operated by the Reserve Bank and what actually happens when the Reserve Bank adjusts interest rates. The session also examined the emergence of crypto-currencies, such as Bitcoin. The closing plenary was a highly engaging and informative presentation by the Hon

Kim Beazley AC, Former Deputy Prime Minister of Australia, who regaled the audience with ‘Reflections of a Former Ambassador to the USA’. Mr Beazley reflected on the critical character of the Australian-American relationship, both to our security and economy. The role of Ambassador has become even more significant as a new administration emerges in the United States. The conference closed with a great buzz and conversations which then carried over into post-conference drinks at the sunny outdoor balcony of the University Club. The Society thanks our sponsors for their generous support of Law Summer School: •

Marsh, Plenary sponsor, ‘Federal Jurisdiction and Conflict of Laws’;

Thomson Reuters, ‘Plenary sponsor, ‘Money, Banking and Crypto Currencies: A legal perspective’;

Unisearch Expert Opinion Services, Lanyard sponsor;

Leap Legal Software, Tea break sponsor; and

Legalsuper, Concurrent session sponsor.

Thank you to all of the delegates who joined us on 17 February and made Law Summer School 2017 a success.


6.

5.

7.

9.

8.

With thanks to our sponsors

Plenary sponsor Federal Jurisdiction and Conflict of Laws

10. 11.

Plenary sponsor Photos: Ron Dâ&#x20AC;&#x2122;Raine Images

1.

Alain Musikanth, President, The Law Society of Western Australia.

2.

Robert Sceales, Senior Partner, Sceales Lawyers; Sally Bruce, Special Counsel, Jackson McDonald; and Thomas Henn, Managing Director, Willpower Legal.

3.

Samuel Witton, Senior Associate, Herbert Smith Freehills; Kylie Groves, Partner, Squire Patton Boggs; and Dr Rebecca Michalak, Principal Consultant, PsychSafe.

4.

Delegates listen to The Hon Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria present on 'Australiaâ&#x20AC;&#x2122;s Place in the World'.

5.

The Hon Kim Beazley AC, Former Deputy Prime Minister of Australia and Australian Ambassador to the United States of America and John Fiocco, Convenor, Law Summer School Organising Committee.

6.

Delegates at Law Summer School 2017.

7.

Penny Keeley, Partner, Clairs Keeley.

8.

Professor Erika Techera, Director of the Oceans Institute, The University of Western Australia.

9.

The Hon Justice Janine Pritchard, Supreme Court of Western Australia and Malcolm McCusker AC CVO QC.

Money, Banking and Crypto Currencies: A legal perspective

Lanyard sponsor

Tea break sponsor

10. Delegates at Law Summer School 2017. 11. Simon Taskunas, Partner, Clayton Utz.

Concurrent session sponsor

17


Photo: Ron D’Raine Images

Australian Lawyers in the Asia-Pacific Region Speech to Law Summer School 2017

Senator the Hon George Brandis QC Attorney-General for Australia

Friday, 17 February 2017 The University Club Crawley, Western Australia

Good morning ladies and gentlemen. May I begin by acknowledging the traditional custodians of the land on which we meet and pay my respects to their elders past and present. And can I thank Barry McGuire for that welcome to country. One hears a lot of welcomes to country in my line of work. I have seldom, if ever, heard such a beautiful, dignified and moving welcome to country. So Barry, thank you. Can I acknowledge Alain Musikanth, the President of the Law Society of Western Australia; the councillors and members of the executive of the Law Society of Western Australia; the many distinguished members of the profession who join us this morning – members of the Supreme Court of Western Australia, the District Court of Western Australia and of other courts; I don’t know if your other key noter this morning – Marilyn Warren the Chief Justice of Victoria – is here as well yet but I should acknowledge her; the Hon Malcolm McCusker AC CVO QC, a most illustrious member of this profession and a former Governor of Western Australia; my Parliamentary colleague and a distinguished former Attorney-General of Western Australia, the Hon Christian Porter MP joins us here today not just for the CPD points I’m sure; other distinguished guests, ladies and gentlemen. It is a real pleasure to wake up in

18 | BRIEF APRIL 2017

the beautiful city of Perth on such a glorious morning and it is a great pleasure indeed to address the Law Society of Western Australia’s 2017 Law Summer School in the Society’s 90th anniversary year. It is wonderful to see so many distinguished guests contributing to the Society’s mission to advance legal education, promote the administration of justice, and develop and improve the rule of law. I am told that at this law society’s inception in 1927, its membership consisted of only 30 legal practitioners. This was so few that the society could comfortably gather in the library of the Supreme Court. So it is encouraging to see that now we need a ballroom to accommodate all the lawyers who uphold and support the Society’s mission – just a few of the more than 6000 members of the profession in this state. I have been asked to share some thoughts on the topic of Australian lawyers in the Asia-Pacific. Let me begin, though, with some insights from an acute observer of lawyers on the other side of the Pacific. According to Alexis de Tocqueville in Democracy in America, the American legal profession of the early 19th century acted as a kind of aristocratic brake upon the vehicle of democratic change. De Tocqueville wrote when the American people are intoxicated by passion or carried away by the impetuosity of their ideas they are checked and


stopped by the almost invisible influence of their legal counsellors. According to de Tocqueville, American lawyers secretly oppose their aristocratic propensities to the nation’s democratic instincts, their superstitious attachment to what is old to the nation’s love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience. Those observations bear rereading in these times of political impetuosity. Yet today I contend that the character of the Australian legal profession, particularly on the topic of the morning, its engagement with the region, has a vitally different habit of mind from what de Tocqueville observed in the United States, almost two centuries ago. Far from being agents of inertia, far from throwing sand in the gears of change, Australian lawyers have accelerated our country’s commercial and cultural engagement with the world and in particular with our region and there is no body of lawyers in Australia who are more aware of that and more active in that endeavour than those of Western Australia. So instead of setting up old-world bulwarks against the forces of globalisation, Australia’s legal profession embraces the opportunities of enmeshment and cooperation with the Asia-Pacific. There is a range of reasons for the receptiveness of Australian lawyers to change, ranging from government policy to geography. One factor that cannot be ignored, of course, is education. Australian law graduates of today are very fortunate. They are the beneficiaries of a world-class legal education. They may even have had the good luck to gain their degree from this university, which has been kind enough to host this summer school, one of Australia’s leading law schools. Or they may have attended other pre-eminent Australian law schools. When Australian law graduates join the workforce to practise law, well prepared by their education, they enter one of the most liberal legal markets in the world, and one of the most globally interconnected. It is no wonder, then, that Australian lawyers are setting their sights on the Asia-Pacific. Home, as it is, to some of the fastest growing economies in the world, the region that contains most of Australia’s closest trading partners and as I don’t need to tell you, those of you are here in Perth, if only by reason of proximity of time zone, are better placed than any other lawyers to take advantage of those opportunities. As I reflect on the evolving environment of legal practice in our region, it strikes me that three particular observations ought to be made. The first is that

Australia is well-placed to export its legal skills and expertise because we have an excellent reputation abroad for sharing our knowledge with developing legal markets, and, by doing so, contributing to internationalisation. One example is the work undertaken by Australian firms in China, some 30 years ago, to establish a presence there. The second observation to be made is that the export of legal services itself is a facilitator of international trade. It is an invisible export of course, but it facilitates other exports as well. Australian lawyers, by playing a crucial role in international commercial negotiations, are in fact accelerating the growth of trade in the

foreign investment. The proof of this is to be found in the entry of an array of international firms into the Australian market, too numerous to list, over the last 25 years. At the same time, as I have said, the interaction of Australia’s legal profession with its international counterparts has not been one-way traffic. The original route of Australian lawyers to international experience in a generation or so in the past was to Britain and then the United States. That path is still well-worn; indeed, I daresay many in this room are familiar with it. One Australian lawyer well-acquainted with that path, and with whom I’m sure all of you have a least a nodding

I am told that at this law society’s inception in 1927, its membership consisted of … so few that the society could comfortably gather in the library of the Supreme Court. So it is encouraging to see that now we need a ballroom to accommodate all the lawyers who uphold and support the Society’s mission… Asia-Pacific. The third observation is that sending our lawyers abroad ultimately brings innovation and prosperity back to Australia. Engagement with other economies fosters dynamism at home. Indeed, this is one of the reasons why the Government of which I’m a member is so committed to free trade. This morning I will explore some instances where free trade agreements have opened doors for Australian lawyers in our region. Of course, the expansion of the Australian legal sector into regional markets begins at home – as we know Liberalisation is a two-way street. You would be aware that lawyers and policymakers have worked together to remove barriers that prevent lawyers from practising across our own interstate jurisdictional borders. The adoption of the Uniform Law in NSW and Victoria, for instance, is a positive step towards a more harmonised framework for legal practice in Australia, but further development of that harmonisation is something that I look forward to discussing with our own members of the executive of the Law Society during the course of the day. Through smart regulatory frameworks, we can achieve a harmonised legal services market without compromising our stringent professional standards. These frameworks protect clients and the rule of law and help to uphold the high ethical and moral standards of our profession. In turn, such standards mean that Australian lawyers are highly prized abroad. Equally, our liberal domestic legal sector encourages foreign lawyers to practise in Australia, just as harmonised national regulation in other sectors of the economy encourages

acquaintance, is our newest High Court Judge, James Edelman, who made an impressive mark on the British legal profession and the academy as a young scholar, professor and practitioner, before taking a seat on the bench of your Supreme Court. His prodigious career provides a fine example of the way in which Australia’s legal tradition is enriched when our lawyers practise and study abroad. In a sense, the Australian legal profession’s ties with Britain provide a model for our interactions with foreign jurisdictions, in particular jurisdictions in our region more broadly. The AngloAustralian relationship has been fostered by various partnerships and mergers between British and Australian firms. British regulations allow Australian lawyers to offer legal advice freely in England and Wales, often without the need to become a British solicitor, barrister, or otherwise a member of the profession in that country. Liberalisation has mutual benefits, and not just in the case of enriching our respective judiciaries. Firms engaging foreign lawyers gain new perspectives, and lawyers profit from the opportunity to broaden their skills and increase the diversity of their work. The deeper are Australian lawyers’ ties to foreign jurisdictions, the easier foreigners will find it to transact and invest in Australia. As the Prime Minister has observed, every lever of policy should be pulled in the direction of greater investment in Australia and that observation is particularly pertinent as we deal and as the Europeans and the British deal with the consequences of Brexit. Australia is in a fortuitous position to attract investment precisely because 19


The provision of high quality expert legal services has been, and must continue to be, a key enabler of trade in the Asia-Pacific region. … As Asia’s economies modernise, the demand for world-class lawyers ... – will increase exponentially. Photo: Ron D’Raine Images

of our existing and potential ties with our region. During a recent visit to this country, the President of the UK Law Society, Lucy-Scott Moncrief, observed that Australia is not only an interesting legal services market in itself. It is increasingly being seen by our members as the gateway to the Asia-Pacific. Her comments speak to the enormous potential for Australian legal firms to help navigate opportunities for growth in our region. So the Turnbull Government is committed to supporting free trade which has encouraged, among many other beneficial effects, home-grown lawyers to beat a path to the Asia-Pacific. As we speak, Australian lawyers can be found working in endless capacities across the region. They work as foreign lawyers in Asian firms. They work in Australian firms that have formed strategic partnerships with regional firms. Many also work in global firms, which increasingly are establishing a presence on our doorstep. Research conducted at the end of 2015 by the Asia-Pacific Brand Power Index found that eight of the top 11 firms with the greatest brand power in the Asia-Pacific region have offices in Australia. Most were global giants, such as Allens Linklaters, Ashurst, and Herbert Smith Freehills. The Index also included a national firm for which I myself have worked, MinterEllison. The same study predicted that legal services expenditure in the Asia-Pacific would increase at double the global average rate in coming years. It would be safe, therefore, to predict that those firms with the foresight to establish themselves in the region will be best placed to take advantage of that growth. Of course, whenever one mentions the word growth in a speech like this, a reference to China can never be far away. As it stands, Australia’s two‑way trade with China is worth more than $150 billion. Last year, Australia’s export in services to China were worth over $10.7

20 | BRIEF APRIL 2017

billion, making China our largest export market of professional services. For instance, MinterEllison has worked with Chinese clients since the 1980s and was one of the first foreign firms to establish offices in that country. Minters opened offices in Hong Kong and Shanghai in the late 1990s, and in the past decade the firm has expanded into Beijing. Since the 1990s, the Chinese legal market has seen widespread change and undergone rapid evolution. Our lawyers’ engagement in the region has meant that Australian firms have been present at every stage of the recent development of the Chinese legal profession. No doubt Australian lawyers played their part in its maturation and indeed its internationalisation just as they have done with other local legal sectors across the Asia-Pacific. That engagement extends to the judiciary as well. Shortly the Deputy Chief Justice of China will visit Australia where he will be hosted at the High Court – the most senior judicial officer from China ever to visit Australia. And other Australian, various Australian states and various jurisdictions have established their own bilateral relationships with tiers of the Chinese judiciary. Australian lawyers have therefore been able to develop a sophisticated understanding of the cultural particularities of the Chinese legal sector, as those familiar with the sector and the region recognise. Dr Geoff Raby, a former Australian Ambassador to China, is co-chair of Corrs Chambers Westgarth’s China practice. Dr Raby has said that in his view the things that matter more in China than they do in the West are relationships. Of course, relationships are undeniably important to Australian corporate culture as well, yet the uniquely Chinese manifestation of this phenomenon is encapsulated by the concept of Guanxi, which describes a culture in which personalised networks of influence are vital to business. Australian firms have the acuity to see that the buying and selling of legal services is

no exception. King & Wood Mallesons may be held up as another success story of an Australian firm becoming deeply enmeshed in the Chinese legal market. As a result of Mallesons’ merger with the Chinese firm King & Wood, the resulting entity placed itself uniquely to practise Chinese, Hong Kong and Australian law. A key factor in this success is an understanding of cultural values and context. Stuart Fuller, global managing partner of King & Wood Mallesons, noted that establishing the right contacts, connections, and local know-how is crucial to the success of transactions in the Chinese market. He emphasised the importance of having firms on the ground in China rather than simply importing flyin-fly-out lawyers. Above the level of the individual firm, there is much that government can do, and much the Federal Government is doing, to help the Australian legal services sector take advantage of the opportunities in our region. The Australian government is acutely conscious of China’s importance as an export market for Australian legal services, and the China-Australia Free Trade Agreement, which came into force in 2015, delivers China’s best ever trade commitments when it comes to professional services. That is something worth reflecting upon. There is no country in the world with a trade agreement with China, more favourably treated when it comes to the export of professional services. These include market access not granted in any of China’s previous free trade agreements. Uniquely, ChAFTA secures China’s first ever treaty commitments on commercial associations between law firms. It guarantees existing access for Australian law firms in China and their ability to establish commercial associations with Chinese firms. China and Australia also agreed to promote increased mobility for Australian and Chinese lawyers. Respective peak legal


professional bodies are cooperating to promote professional secondments between firms and while individual lawyers stand to gain from these arrangements, the region also stands to gain from the greater expertise in the sharing of knowledge and technique in the provision of trans-national legal services. While the Chinese-Australian free trade agreement will accelerate the export of Australian legal services, other free trade agreements in the region made by the government in the past several years, have also enabled Australian lawyers to gain a foothold in other parts of the region. Singapore is a case in point. Singapore is our largest trading partner in South East Asia, and has operated as an established centre for the provision of legal services in the region, as many of you know. I daresay there are many in this room whose legal practice has taken them to Singapore on many occasions. In 2003 the Howard Government negotiated the Singapore-Australia Free Trade Agreement, or SAFTA, which provided increased market access for Australian exporters of professional services. In particular, the SAFTA eased some of the conditions for the establishment of joint ventures in Singapore involving Australian firms. And of course, Australian law firms

took advantage. In 2007, Allens Arthur Robinson became Australia’s first law firm to sign a joint law venture in Singapore under SAFTA. The agreement also lowered the number of foreign lawyers that must be resident in Singapore, and how many years of experience they require, in order to establish joint ventures. Now, more Australian lawyers can access the Asia-Pacific market through a Singaporean firm, and younger, less experienced lawyers can cut their teeth in one of the economic powerhouses of the Asia-Pacific. At the end of last year, my colleague, the Hon Steven Ciobo, the Minister for Trade, Tourism and Investment, successfully negotiated amendments to SAFTA, as a result of which, Singapore now recognises the Juris Doctor degrees of Australian universities. This has a significant consequence of opening Singaporean employment opportunities to Australians and others with graduate degrees from Australian law schools. The Australian government’s commitment to opening up markets from which the legal profession is able to benefit extends to Korea. In 2014, the Abbott Government ratified the Korea-Australia Free Trade Agreement, which among many other things, lifted restrictions on Australian lawyers opening representative offices

in Korea. Since then, Australian firms have been able to establish offices and enter into cooperative agreements with Korean firms, joining a legal market in that country worth over $3 billion. I note that the global firm Ashurst has one of the largest dedicated Korean practices of any international law firm. One of its partners, Ian Williams, is also the deputy chairman of the Australia-Korea Business Council, and has echoed a theme we have seen across the Asia-Pacific when he emphasised the emotional element and symbolism of having Australian lawyers living and working in regional offices in South East Asian and North Asian nations. As Australian lawyers build networks and relationships across the region, it is all the more important to have this form of boots on the ground. Meanwhile, in Vietnam and Indonesia we see that the ASEAN-AustraliaNew-Zealand Free Trade Agreement has also increased opportunities for Australian lawyers. In 2015, Allens was named Vietnam law firm of the year by the international law firm directory, Chambers Global. This followed the firm’s involvement in some of Vietnam’s most significant projects, including the $9 billion Nghi Son petroleum refinery project. It was the largest foreign investment project ever undertaken in Vietnam, and one of

Introducing a new LawCare WA service – Employee Relations Advice Line

Free help for you when you need it on serious employment issues The Law Society is trialling a six month arrangement with the Chamber of Commerce and Industry of Western Australia whereby members can access a team of industry experts within the CCIWA Employee Relations Advice Centre, free of charge, for telephone advice on a range of human resources and employee relations issues relating to: • Wage rates • Award and agreement interpretation • Performance management and termination • Equal opportunity, bullying and harassment • Employee minimum entitlements • Unfair dismissals

Contact (08) 9365 7660 or visit lawsocietywa.asn.au/lawcarewa The telephone advisory service is available to Law Society members from 8am to 5pm, Monday to Thursday and 8am to 4pm on Friday. The phone service is closed on weekends and public holidays. Where assistance beyond the telephone advice is required, the CCIWA Employee Relations Consultancy team can offer support and representation at your cost. This service is not included as part of the Law Society’s LawCare WA programme.

LawCare WA is available to members of

Service provided by CCIWA

21


Photo: Ron D’Raine Images

the largest in South East Asia, which rely heavily on professional services, including legal professional services, supplied by Australia. The firms and countries I have mentioned are but the tip of the iceberg of Australian engagement with the Asia-Pacific legal sectors. Recently, the Law Council of Australia engaged in productive talks with the Japan Federation of Bar Associations. The year before last I travelled to India to discuss the opening to the Australian market of the Indian legal services market – a lucrative but dense legal market indeed. One of the consequences of increased trade is a rise in demand for legal services to assist with the resolution of commercial disputes – often, as many of you know, multi-party, complex, and if not resolved, representing a risk to trade and commerce. The legal profession plays an important role mitigating this risk, including through its facilitation of alternative dispute resolution. As the Asia-Pacific experiences enormous economic growth, there has been an associated demand for international courts of mediation and arbitration in the region. The days when London or perhaps New York was seen as the natural seat of resolution of international commercial disputes are long gone. In 1985, Hong Kong became one of the first to open an arbitration centre. That centre is now one of the world’s leading dispute resolution centres and one of its most respected. In 2011, Malaysia followed suit, and opened the Kuala Lumpur Regional Centre for Arbitration. Australian lawyers have played their part in the emergence of the Asia-Pacific as a

22 | BRIEF APRIL 2017

centre for international commercial arbitration and dispute resolution. In 2015, the Kuala Lumpur Regional Centre for Arbitration held its first International Arbitration Week, attended by Australian lawyers and arbitration specialists across the globe. Singapore’s Attorney‑General, VK Rajah, who spoke at the conference, appeared alongside internationally respected Australian arbitrator and a partner of Minters in the days when I worked there 30 years ago, Doug Jones. They predicted an increase in the use of mediation, a very significant increase in the use of mediation in the region in coming years. Doug Jones’ presence at the conference in Malaysia illustrates the important contribution Australian lawyers are making as skilled arbitrators in significant international commercial disputes. And of course, here in Perth, I should mention the Perth Centre for Energy and Resources Arbitration – PCERCA – which was established in 2015. Australian lawyers want to be participants in the regional market for international commercial arbitration and mediation services and centres in Sydney, in Melbourne, and in Perth are striving with the support of the Australian Government to compete with the established centres in places like Hong Kong and Singapore. Let me make some remarks to draw together the observations that I have made. Even EP Thompson, the Marxist historian, was driven to the conclusion that the rule of law, a thoroughly bourgeois concept, is nevertheless in his words an unqualified human good. One reason why the rule of law is an unqualified human good is that it facilitates private commerce and thus undergirds our prosperity. My speechwriter has said here, any Marxist in the room may dissent, but I suspect there are none to be found. Yet the rule of law counts for little without skilled lawyers to uphold and maintain it. Without good lawyers, good commercial deals don’t get done. Many of you in this room have dedicated your professional life to ensuring that good commercial deals do get done for the benefit and prosperity of this state and of Australia. The provision of high quality expert legal services has been, and must continue to be, a key enabler of trade in the Asia-Pacific region. There are therefore enormous opportunities for Australian lawyers and firms in this region. As Asia’s economies modernise, the demand for world-class lawyers – the kinds of lawyers that law schools like this and the other great Australian law schools produce – will increase exponentially. In 2015 the University of Melbourne

released a report entitled Australia’s Jobs Future: the Rise of Asia, and the Services Opportunity. It forecast that by 2030, Australia’s annual services exports to Asia could be worth $163 billion, up from $69 billion in 2013. Services are on track to become our number one export to Asia, and to support more jobs than all other categories of exports combined. Legal services are crucial to that trend. As the Government continues to negotiate significant trade agreements across the region, that demand will grow and in turn, notwithstanding ill-informed protectionist noises emanating from some quarters, the Australian Government is confident of this continued engagement of Australian lawyers with our region, as historically we have engaged across the world. Australia must do what it can to prevent a retreat to what the Prime Minister recently called the bleak dead end of protectionism. Not only at home, but throughout the developed world, we are witnessing the resurgence of that phenomenon. As a leader in the AsiaPacific, Australia has a responsibility to continue to argue against that trend. We provide a model of the power of free trade as an engine of growth and there is no sector of the economy in which the benefits are more obvious to be seen than in the trade of professional services. Australian lawyers have long been the perfect ambassadors and role models for vibrant, open markets in the AsiaPacific and the profession’s knowledge and understanding of the opportunities of the region have been, and will continue to be, vital to the growth not only of the profession itself but to the prosperity of our country and the region as a whole. Needless to say, we are still a way from seeing a complete erasure of differences between our countries’ legal systems. Nor are we likely soon to see the emergence of a supreme lex mercatoria to govern all transnational commercial transactions. Absent the realisation of such a utopian agenda, I venture, in closing, to suggest that international commerce will always require lawyers fluent in the legal and cultural norms of foreign jurisdictions. And as lawyers grow more adept at seamlessly navigating these norms, a species of transnational legal order does begin to emerge. It is not an order imposed by some supranational entity. It does not entail any loss of sovereignty on the part of any state. And yet it is a form of order nonetheless. It is a form of order which, I have little doubt, is an unqualified human good and in the export of legal services in the Asia-Pacific region in the service of that unqualified human good Australian lawyers are at the forefront. Thank you.


New procedural rules for Western Australia confirm the State’s commitment to arbitration By Spencer Flay (Partner), Kristina Botsis (Senior Associate), Ben Stephenson (Lawyer) & Hannah Peters (Law Graduate), Corrs Chambers Westgarth

On 3 January 2017, the Supreme Court of Western Australia introduced the Supreme Court (Arbitration) Rules 2016 (WA) (Arbitration Rules).1 The Arbitration Rules outline procedures and contain the forms relevant to the commencement of actions in the Supreme Court that relate to domestic and international arbitration.

Why are the Arbitration Rules important? The Arbitration Rules are important for three reasons. 1. Firstly, they simplify and clarify the process of initiating court actions relating to international and domestic arbitration in Western Australia. 2. S econdly, they promote consistency across other Australian jurisdictions in relation to arbitration. 3. T hirdly, they demonstrate the willingness of the courts in Western Australia to embrace arbitration as a method of dispute resolution.

What do the Arbitration Rules cover? The International Arbitration Act 1974 (Cth) (IAA) and Commercial Arbitration Act 2012 (WA) (CAA) provide a role to the Supreme Court of Western Australia in the context of enforcement and support in international and domestic arbitrations, respectively. The Arbitration Rules outline the procedures that parties need to follow when making applications to the WA Supreme Court under the IAA and CAA for: •

staying proceedings or referring proceedings to arbitration;

s etting aside and enforcing arbitral awards;

subpoenaing witnesses or evidence;

disclosure of confidential information;

i nterim measures, including injunctions;

nforcement of procedural orders; e and

t he appointment of arbitrators and jurisdiction of arbitrators.

The Arbitration Rules operate in conjunction with the Rules of the Supreme Court 1971 (WA) and prescribe specific requirements for various applications, and specific forms to be used in making applications, under the IAA and CAA. By centralising the risks relevant to arbitrations, the legislature has sought to assist practitioners and parties to arbitration.

form of alternative dispute resolution”. At that conference (which occurred prior to the enactment of the Arbitration Rules), his Honour discussed the role of the WA Supreme Court in support of arbitration and went on to say that “[i]n the future there may be opportunities for the court to provide more practical assistance to the facilitation of commercial arbitration”. Since that conference, developments have occurred in Western Australia which have facilitated a supportive environment for arbitration. These have included: •

the launch of the Perth Centre for Energy & Resources Arbitration as a dedicated arbitration Centre in Western Australia by (then) Attorney General the Hon Michael Mischin MLC;

the provision of new facilities within the new WA Supreme Court premises at the David Malcolm Justice Centre which includes facilities that may be used for arbitral hearings; and

the handing down of recent decisions by the WA Supreme Court4 granting stay applications and upholding parties’ arbitration agreements.

Consistency across other jurisdictions In November 2009, the Australian government announced an overhaul of the domestic arbitration regime proposing uniform arbitration legislation. Subsequently, each state and territory enacted uniform legislation to give its own Supreme Court jurisdiction to enforce domestic arbitration in each Australian jurisdiction and across those jurisdictions. Nearly all states and territories in Australia have already introduced specific and detailed procedural rules for actions relating to domestic and international arbitration.2 With Western Australia now having introduced its own procedural rules, the trend of uniformity and commitment to arbitration across Australia continues.

Support for arbitration as a method of dispute resolution The Supreme Court of Victoria has declared its support for providing assistance to disputants wanting to resolve all or part of their dispute by arbitration.3 In Western Australia the Chief Justice, the Honourable Wayne Martin AC, has made many comments on the important role the courts of Western Australia play in supporting commercial arbitration. At the Western Australian launch of the online publication ‘Australian Commercial Arbitration’, his Honour stated that “it is important for the courts to do whatever they can to encourage and facilitate that

These measures show a willingness by private enterprise, government and the courts to make arbitration in Western Australia as simple, effective and efficient as possible. The introduction of the Arbitration Rules is the latest initiative of the Supreme Court and is a clear sign of a commitment by the WA Supreme Court to international and domestic arbitration which should give practitioners and their clients confidence in the courts’ ability to deal with arbitration matters. NOTES: 1.

Part 1 (Preliminary matters) came into effect on 20 December 2016 and the substantive provisions of the Arbitration Rules came into effect on 3 January 2017.

2.

Supreme Court (Chapter II Arbitration Amendment) Rules 2014 (Vic); Uniform Civil Procedure Rules 2005 (NSW) Part 47; Supreme Court Civil Rules 2006 (SA) Chapter 15 Part 4; Supreme Court Rules 2000 (Tas) Part 32, Division 1; Supreme Court Amendment (Commercial Arbitration) Rules 2013 (NT).

3.

Practice Note 8 of 2014, Commercial Arbitration Business (Vic).

4.

Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2016] WASC 193; Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2016] WASC 52; KNM Process Systems SDN BHD v Mission Newenergy Ltd (formerly known as Mission Biofuels Ltd) [2014] WASC 437.

23


An Outline of Choice, and Conflicts, of Law in Federal Jurisdiction This article is adapted from a paper presented at the Law Society’s Law Summer School 2017 Friday, 17 February 2017 The University Club, Crawley, Western Australia

Matthew Howard SC Honorary Fellow of the Law School of the University of Western Australia President, Western Australian Bar Association Conflict of laws or choice of law? The subject matter of this outline concerns ‘Federal Jurisdiction and Conflict of Laws’, although it may be accepted that there is no perfect name for this area of the law. In a break with its use of the expression ‘conflict of law rules’, the High Court in the 2000 decision of John Pfeiffer Pty Ltd v Rogerson1 preferred the expression “choice of law rules” rather than “conflict of laws”. That was because it was said that: … the term “choice of law” correctly indicates the existence of the possibility of the application of one or other system of law to the facts of the case under consideration. In the Australian federation, the term “conflict” is better used to identify inconsistency between laws … (citation omitted). I have sought to outline below how a court exercising federal jurisdiction chooses the law to be applied (choice of law) and resolves inconsistencies between potentially applicable laws (conflict of laws).

The basics of choice of law Broadly, choice of law rules are the rules which determine which system of law should be applied when a fact situation is linked to more than one legal system. It must be remembered that questions of choice of law arise only when the question of ‘jurisdiction’2 is settled.

24 | BRIEF APRIL 2017

Photo: Ron D’Raine Images

Stated simply, outside of matters ‘in’ federal jurisdiction, the ‘choice of law rules’ in a particular State forum derive from the common law as it is modified by any applicable statute. In speaking of the common law, it is important to bear in mind that in Australia there is only one common law3, rather than there being a separate common law for each of the States and Territories. Notwithstanding there is one common law of Australia, a statute of a particular State or Territory may modify the otherwise applicable common law (including the choice of law rules) and create different outcomes in that particular State or Territory from that which would result from exactly the same facts in another State or Territory. In a Western Australian court, for example, the common law of Australia, as modified by any relevant statute of Western Australia or by any valid enactment of the Commonwealth parliament, will supply the choice of law rules when a matter is not in federal jurisdiction. Broadly, a forum court will select the applicable choice of law rule after it has classified or categorised the issue before it4. The resultant classification usually has a common law choice of law rule. For example, if the issue is classified as ‘contractual’, then the applicable choice of law rule is that the ‘proper law of the contract’ governs the issue. Further by way of example, if the issue is classified as ‘tortious’ then the applicable choice of law rule is that the law of the place of the wrong governs the issue5.

The forum court will then apply the law selected pursuant to the relevant choice of law rule and it is then the ‘governing’ law or the lex causae. This assumes that there is no applicable statute which ‘interferes’ or changes the classification of the issue, or the choice of law rule to be employed. For present purposes, the above process takes place without any necessary recourse to a State or Commonwealth statute. As will be seen, when a matter is ‘in’ federal jurisdiction the route by which the applicable law is chosen is distinct from how it is chosen when a matter is in State jurisdiction.

The significance of being in federal jurisdiction This outline does not seek to identify when a matter is in federal jurisdiction. ‘Federal jurisdiction’ is conventionally defined as “the authority to adjudicate derived from the Commonwealth Constitution and laws”6. However, the concept has more complexity to it than that7. The potential significance of a matter being in federal jurisdiction should never be overlooked and it has been stated that it is a primary question for a court as to which jurisdiction it is exercising8. Chapter III of the Constitution which is the source of the judicial power of the Commonwealth and federal jurisdiction, creates a single “law area” in which federal jurisdiction is exercised.


The ideas of federal jurisdiction creating one “law area”9 and an integrated judicial system, were effectively referred to by Gaudron J in Commonwealth v Mewett10 where she said: And when matters fall for determination in the exercise of the judicial power of the Commonwealth, they fall for determination by courts in an integrated Australian legal system, comprised of federal courts created by the Parliament and State courts invested with federal jurisdiction, with this court at its apex. It was said in John Pfeiffer v Rogerson11: “… the Commonwealth of Australia is a single law area with respect to matters within federal jurisdiction …”. Within that single law area of “federal jurisdiction” it appears to be accepted that certain State statutes do not and cannot apply of their own force to matters in federal jurisdiction. The State statutes which are accepted as not applying of their force are State laws going to the “conferring, defining and investing of federal jurisdiction”12 or those providing for and regulating the exercise of federal jurisdiction13. The rationale for at least those State laws not applying of their own force is that it is within the exclusive power of the Commonwealth to legislate for the exercise of federal jurisdiction. Hence, State statutes of this kind are beyond the legislative power of the States. As State statutes going to, amongst other things, procedure, evidence, the jurisdiction of courts etc. are not applicable in federal jurisdiction (whether exercised by a State court or a federal court) there will be gaps in the law as to how such a court should exercise its jurisdiction. Those gaps for courts exercising federal jurisdiction are filled by ss79 and 80 of the Judiciary Act 1903 (Cth).

Sections 80 and 79 of the Judiciary Act Section 79(1) provides: The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. Section 80 provides:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters. The operation and interpretation of ss79 and 80 of the Judiciary Act are, simply, a mess14. Without tracing how the sections have been read over time15, which I think does nothing much to illuminate the present reading, the current orthodox position is that when one is considering the application of the common law choice of law rules in federal jurisdiction, one starts with s80 of the Judiciary Act16. (By way of contrast, one can see a more relaxed attitude to the interaction of the sections in a case such as Parker v the Commonwealth17. In that case, Windeyer J found that he did not need to resolve whether it was s79 or s80 of the Judiciary Act which applied the Victorian statute in question to the matter in federal jurisdiction18). In ASIC v Edensor19 Gleeson CJ, Gaudron and Gummow JJ stated: “Section 80 indicates the starting point as the common law of Australia and is supplemented by s79”. Section 80 of the Judiciary Act will apply the common law of Australia, in the absence of any statutory modification, to the proceedings brought in the exercise of federal jurisdiction. That will include the common law choice of law rules, again absent any statutory modification, being applied by a court exercising federal jurisdiction20. Consequently, absent any statutory modification, the common law choice of law rules will apply in federal jurisdiction and in non-federal jurisdiction. However, the route by which they are applied is, now, conventionally, understood to be different. So, in Blunden v Commonwealth21 it was said: “That enquiry as to the applicable law in federal jurisdiction is distinct from, though it may involve, the identification of choice of law rules. The distinction was emphasised in the joint judgment in Pfeiffer22”.

A question which has not had to be resolved so far is how the common law applies in federal jurisdiction without the intervention of a Commonwealth statute. The suggestion was made in John Pfeiffer v Rogerson23 that the common law may apply in federal jurisdiction “as part of the ultimate constitutional foundation”. That is, the common law predated the Constitution and the common law's continued application may be taken to have been assumed by the Constitution. In any event, the reason the question has not needed to be decided is because of the presence of s80 within the Judiciary Act 1903 (Cth). Leeming JA, extra curially, under cover of the question of whether ss79 and 80 of the Judiciary Act are necessary to make rules other than federal laws applicable to courts exercising federal jurisdiction said: Application laws are complex, and there is no reason to expect that their interrelationship with federal jurisdiction and choice of law will be simple. However, the source of many of those perceived difficulties is the proposition that s79, and perhaps also s80, are necessary in order for State or Territory laws to apply to State or Territory courts exercising federal jurisdiction24. His Honour then, by reference to a significant passage in the judgment of French CJ in Momcilovic v R25 considered the “direct application” of State statutes in federal jurisdiction: that topic is the beyond the scope of this outline.

It is really the ascertainment of the applicable law rather than a choice In John Pfeiffer Pty Ltd v Rogerson26 it was said: [43] … in actions commenced in federal jurisdiction, the question is not so much a question as to choice of law, but identification of the applicable law. [53] … strictly the question that arises in matters of federal jurisdiction does not involve any choice between laws of competing jurisdictions, but identification of the applicable law in accordance with ss79 and 80 of the Judiciary Act. In Sweedman v TAC27 it was said that in the exercise of federal jurisdiction which is national in nature: “there was presented no direct choice between laws of competing States. Rather, federal law controlled and required the ascertainment under the Judiciary Act of the applicable law”.

25


Conflict of State statutes competing to be applied in federal jurisdiction Addressing, apparently, a case not in federal jurisdiction the plurality in John Pfeiffer v Rogerson28 said: “Other and more difficult questions arise where, in the case of the States and Territories of Australia, the statute law of two law areas differs and it is sought to apply one rather than the other as the governing law”. Later the plurality identified that there might still be ‘conflicting’ State statutes presented to a court exercising federal jurisdiction: Although the Commonwealth of Australia is a single law area with respect to matters within federal jurisdiction, a question can, nonetheless, arise in such matters as to whether the legislation of one State … is to be applied rather than that of another. That question can arise in State and Territory courts exercising federal jurisdiction, in federal courts and in this Court.29 There is a real question, in my mind at least, as to whether there could ever be inconsistent State statutes both apparently applicable where a court was exercising federal jurisdiction. In my view, the ‘conflict’ of different State statutes which may potentially apply in federal jurisdiction will be resolved in almost all, if not all cases, via the identification of the applicable law through ss79 and 80 of the Judiciary Act.30

State statutes applied through ss79 and 80 are federal laws There are numerous statements made in the High Court to the effect that a State statute law made applicable by a federal law operates as federal law. See, for example the statements made in Mok v DPP (NSW)31 and Ruhani v Director of Police32. The expression ‘surrogate federal law’ has been used widely, but seems to add little of substance to the analysis. That ‘federalising’ effect of ss79 or 80 of the Judiciary Act has an important consequence, as identified in Northern Territory v GPAO33. Once a State statute may potentially be applied through s79 (and the analysis holds equally, I think, for s80), then a question may arise as to whether it ‘conflicts’34 with a law directly enacted by the Commonwealth Parliament. Section 79 provides for the State statute to be binding “except as otherwise 26 | BRIEF APRIL 2017

provided” by laws of the Commonwealth. The language in s80 is that the State statute modifying the common law will ‘govern’ so far as it is “not inconsistent with” laws of the Commonwealth. The resolution of that ‘conflict’ will be arrived at by a distinct process of interpretation. Gleeson CJ and Gummow J said the problem was one of “conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth”35.

Some examples from the cases Most commonly, a ‘conflict’ or a ‘choice of law’ between potentially applicable laws will be between a State statute and the common law. An example of that is John Pfeiffer v Rogerson36. But there have been examples of where two State statutes are potentially applicable to a matter in federal jurisdiction such as R v Oregan; ex parte Oregan37 and Sweedman v TAC38.

John Pfeiffer In John Pfeiffer, the plaintiff sued in the Supreme Court of the Australian Capital Territory in relation to a workplace accident which had occurred in New South Wales. There was a New South Wales statute which limited the recovery of damages available to the plaintiff. There was no equivalent, nor competing, statute of the ACT. The resolution of the competition between the common law applicable in the ACT, and the law to be found in the New South Wales statute, was arrived at by the application of the choice of law rules to tortious actions. That choice of law rule (which was developed and stated in the case) was that the place of the wrong would provide the applicable law. So, the New South Wales statute was to be applied by the ACT Supreme Court as the applicable law chosen by the choice of law rule. That conclusion was reached via the operation of s80 of the Judiciary Act applying the common law rules for choice of law39.

Oregan In Oregan40 the question was whether the husband (resident in Tasmania) or wife (resident in Victoria) should have custody of an infant. The matter was in federal

‘diversity’ jurisdiction.41 The matter was heard at first instance in the High Court sitting in Victoria42. At the time of the application the child was living with his father in Tasmania. Webb J noted that the relevant and potentially applicable statutes of Tasmania and Victoria were not identical43. Interestingly, the resolution of which was the applicable statute was not arrived at by using common law choice of law rules. Rather, Webb J applied the Victorian statute through s80 of the Judiciary Act as being the common law as modified by the Victorian State law44. Presumably, that was because the court was exercising its jurisdiction in Victoria. Webb J had earlier held that the Victorian statute was not applicable through s79 of the Judiciary Act. That was because he construed the statute as not being applicable to a person domiciled and residing in Tasmania who had the legal custody of the child in Tasmania. In effect, the law which may have been picked up (through s79) did not apply to the particular facts. The case is interesting for a number of reasons. Amongst those, it raises the question as to whether the case (or analogous one) would be resolved in the same way today. One might think that the choice of law rules would be employed through s80 of the Judiciary Act. Secondly, and perhaps more significantly, the case is a reminder that just because a State statute might be applied, or might potentially be applied, through s79 of the Judiciary Act, there will remain a question of statutory interpretation as to whether the law ‘picked up’ as a matter of interpretation applies to the facts at hand.

Sweedman In Sweedman v Transport Accident Commission45, the TAC brought an action against Sweedman pursuant to a Victorian Act, but the claim arose out of an accident which occurred in NSW. Sweedman was a resident of NSW and the TAC was the State of Victoria; so the matter was within s75(iv) of the Constitution. The County Court of Victoria consequently was exercising federal jurisdiction. A New South Wales statute placed various restrictions and limitations on the common law remedies available in respect of, inter alia, personal injury litigation. The plurality held that s80 was engaged (and s80 applied in precedence to


s79.). Gleeson CJ, Gummow, Kirby and Hayne JJ said46: “The upshot was that s80 required the County Court to apply that common law choice of law rule determining the law to govern the action.” The action brought was not classified as being tortious, so there was no scope then for the application of the New South Wales statue as being part of the law of the place of the wrong. The matter, properly characterised, was held to be either a quasi-contractual claim47 or a claim arising under the Victorian statute48. Once that classification had occurred, then both of the possible characterisations would, via the applicable choice of law rule, have selected the law of Victoria as the applicable law49.

the justiciable controversy, being one which answers one of the nine descriptions in ss75 and 76 of the Constitution.” Burns v Corbett [2017] NSWCA 3 at [13] per Leeming JA for the court.

21.

(2003) 218 CLR 330 at [10] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

7.

Austral Pacific v Air Services (2000) 203 CLR 136 at [50] fn 54 per McHugh J.

22.

The references to John Pfeiffer were to [43], [53] – [54].

23.

8.

CSL Australia v Formosa [2009] NSWCA 363; (2009) 261 ALR 441 at [22] per the court; Eberstaller v Poulos [2014] NSWCA 211; (2014) 85 NSWLR 688 at [1] per Leeming JA for the court.

(2000) 203 CLR 503 at [56] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

24.

Refer Note 15.

25.

(2011) 245 CLR 1 at [99]-[100].

26.

(2000) 203 CLR 503 per Gleeson, Gaudron, McHugh, Gummow, Hayne.

27.

(2006) 226 CLR 362 at [33] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

28.

(2000) 203 CLR 503 at [3] per Gleeson CJ, Guadron, McHugh, Gummow and Hayne JJ. The topic was further considered by Leeming JA in Resolving Conflicts of Laws 2011 Federation Press in Chapter 6.

29.

(2000) 203 CLR 503 at [18] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

30.

A more sophisticated thesis as to why there will never be a true ‘conflict’ between the statutes of different States was developed (albeit mostly in a non-federal context) by Long Pham in an Honours Thesis submitted at UWA in 2011 entitled “Conflicts between Statutes of different States: Recasting the problem”.

31.

(2016) HCA 13; (2016) 90 ALJR 506 at [35]-[36] per French CJ and Bell J; see also at [84] per Gaudron J.

32.

(2005) 222 CLR 489 McHugh J at [66], [70], [73]; Gummow and Hayne JJ at [113] and Calinan and Heydon JJ at [273].

33.

(1999) 196 CLR 553.

34.

I am using ‘conflicts’ as a shorthand for the two expressions identified already in ss79 and 80 of the Judiciary Act.

35.

(1999) 196 CLR 553 at [80].

36.

(2000) 203 CLR 503.

37.

(1957) 97 CLR 323.

38.

(2006) 226 CLR 362.

39.

(2000) 203 CLR 503 at [103] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

40.

(1957) 97 CLR 323.

41.

ibid., at 332-333.

42.

Windeyer J sat at first instance in Parker v the Commonwealth (1965) 112 CLR 295 but delivered his judgment in New South Wales. His Honour, with the consent of the parties, proceeded on the basis that the jurisdiction was being exercised in Victoria (at 306) which, of course, has a significance for the application of ss79 and 80 of the Judiciary Act.

9.

The concept of a “law area” was explained in John Pfeiffer v Rogerson (2000) 203 CLR 503 at [2].

10.

(1997) 191 CLR 471 at 524, citations omitted.

11.

(2000) 203 CLR 503 at [18] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ: see also at [2] to similar effect.

12.

APLA v Legal Services Commissioner of NSW (2005) 224 CLR 322 at [230] per Gummow J.

13.

Alqudsi v R [2016] HCA 24; (2016) 90 ALJR 192 at [171] per Nettle and Gordon JJ. It is noted that the question of whether State statutes more generally, and not just of the categories referred to above, may apply of their own force (without Commonwealth legislation) to a matter in federal jurisdiction is the subject of the recent appeal in Rizeq v Western Australia argued in the High Court on 1 and 2 February 2017.

14.

NOTES: 1.

(2000) 203 CLR 503 at [43] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

2.

‘Jurisdiction’ may be used in a number of different senses: for some of the different meanings see Lipohar v R (1999) 200 CLR 485 at [79] per Gaudron, Gummow and Hayne J. Here, it is used to denote the court’s authority to decide the case before it.

3.

Lange v ABC (1997) 189 CLR 520 at 563.

4.

Macmillan Inc v Bishopsgate Trust (No. 3) [1996] 1 WLR 387 at 398-399 per Staughton LJ; see also Auld LJ at 407 and Aldous LJ at 418. This approach was approved of by Callinan J in Sweedman v TAC (2006) 226 CLR 362 at [116].

5.

6.

While generally, classification of familiar actions, like contract and tort, present no difficulties, complexities may arise where a statute is sought to be classified. In John Pfeiffer v Rogerson (2000) 203 CLR 503 at [21] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said “… ‘tort’ is used in this context to denote not merely civil wrongs known to the common law but also acts or omissions which by statute are rendered wrongful in the sense that a civil action lies to recover damages occasioned thereby”. Ah Yick v Lehmert (1905) 2 CLR 593 at 603 per Griffith CJ; Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142 per Isaacs J. The expression may also be used to “describe the subject matter of

15.

16.

The Australian Reform Commission was more polite in its Report #92 in 2001 entitled “The Judicial Power of the Commonwealth” where it said that the “two provisions are complex, confusing and lead to uncertainty in the application of the law … The problems of complexity and uncertainty arise not merely from ambiguities in interpretational difficulties within each section but from the uncertain relationship between the sections” at [34.62]-[34.63]. The ALRC recommended the repeal of the two sections and their replacement with a single provision. Leeming JA, writing extra curially, has traced the history of the sections, including their antecedents in United States’ statutes, in “The Constitutional Aspects of Commonwealth and State Application Laws (with special attention to ss79 and 80 of the Judiciary Act 1903 (Cth))” a paper presented to the NSW Bar Association Public Law Section on 27 July 2015. I would maintain that the history provides at most only very limited guidance as to the interpretation of the sections today.

per Gleeson CJ, Gummow, Kirby and Hayne JJ.

Leeming JA in his paper ibid. identified only eight difficulties with the conventional analysis now applied to ss79 and 80. His Honour was careful to make it plain that he was not seeking to be ‘exhaustive’.

17.

(1965) 112 CLR 295.

18.

ibid., at 307.

43.

(1957) 97 CLR 323 at p.325.

19.

(2001) 204 CLR 559 at [57]. The order of precedence (s80 and then s79 of the Judiciary Act) was affirmed in Blunden v Commonwealth (2003) 218 CLR 330 at [16][18]: Gleeson CJ, Gummow Hayne and Heydon JJ.

44.

ibid., at p.331.

45.

(2006) 226 CLR 362.

46.

ibid., at [33].

John Pfeiffer v Rogerson (2000) 203 CLR 503 at [3] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and Sweedman v TAC (2006) 226 CLR 362 at [33]

47.

ibid., at [29].

48.

ibid., at [31].

49.

ibid., at [32].

20.

FOR BUSINESS Bankwest, a division of Commonwealth Bank of Australia (Bankwest) ABN 48 123 123 124 AFSL / Australian credit licence 234945. BWA-AD239 290916.indd 1

BWA-AD239290916 29/09/2016 2:34 pm

27


KBI is a specialist insurance brokerage that partners with clients seeking insurance advice and commercial solutions to complex risks. KBI has developed a reputation as a leader within our niche areas. We work closely with our clients to manage their business risks and protect their key people.

A NEW STANDARD IN INSURANCE DID YOU KNOW? ¾ We currently partner with many of Western Australia’s leading law firms to manage their insurance programs ¾ We assist our clients with their cash flow by financing their existing Law Mutual Professional Indemnity insurance policies, Practising Certificates and all other insurance policies, into monthly payment plans ¾ We can secure extremely competitive rates on Professional Indemnity Top Up Insurance ¾ We are experts in Cyber Insurance for law firms and Travis Kenzle is a regular presenter on the topic to the Western Australian legal community ¾ KBI has partnered with Employee Benefits specialist Steadfast Life to provide Group Life and Salary Continuance Insurance solutions to law firms. Benefits under our program include automatic acceptance for Life Insurance/Salary Continuance/TPD, comprehensive coverage and competitive premiums

To discuss the above and find out more about the innovative developments occurring within the insurance sector, contact Travis Kenzle, Managing Director.

www.kbigroup.com.au | 08 6467 7999 | info@kbigroup.com.au KBI Pty Ltd. Authorised Representative (AR 450152) of PSC Connect Pty (AFSL 344648).


KBE Human Capital is Western Australia’s leading Legal Recruitment firm. Our Consultants have developed a reputation for providing a highly personalised service and adding value to our networks, over and above recruitment. We have long established relationships with the leading national/ international and most prominent Western Australian law firms and always aim to provide lawyers with an unrivalled level of knowledge and exceptional level of service. M&A Activity/Partnership Opportunities KBE Human Capital has been engaged to establish several new law firms who are looking to enter the WA market in 2017. We are also advising a group of top/mid-tier Partners with transportable fee bases of varying sizes who are seeking Partnership opportunities within boutique practices. We regularly assist Partners/firms looking to transition out of practice and/or join larger teams in benefiting from economies of scale and sharing fixed costs to increase overall profitability. We have ongoing mandates to secure high calibre Partners across various Practice Groups. To be considered by our clients, you will be a Salaried/ Equity Partner or Senior Associate/Special Counsel with the ability to bring across some form of transportable fee base. In the alternative, you will demonstrate a track record of rapidly developing a client base using your existing networks, across one of the following areas: • • • • • •

Construction & Projects Corporate/M&A Environment & Planning Family Insolvency Insurance

• • • • • •

Litigation Local Government Property Tax Wills & Estate Planning Workplace Relations

Market Snapshot Commercial Litigation/Commercial Lawyer for 2IC role with medium sized firm. Expanding firm with a unique and relaxed culture is seeking a Commercial Litigation Lawyer with some Commercial Law experience to work as the 2IC to the firm’s Litigation Partner. You will play an important role in BD and oversee litigation in the Supreme, District and Magistrates Courts. The role will be 80% litigation focused with scope to broaden your skill set with exposure to Property, Employment, IT and IP, general Business/ Commercial Law, and Wills and Estate Planning. Construction/Projects Lawyers for leading boutique, national and international firms. KBE Human Capital has been briefed by four Construction and Construction/ Projects teams to secure high quality Construction Lawyers with 2-6 years’ PAE. Working closely with Partners and advising tier one Principals and Contractors, these positions are career development roles offering exposure to front end advisory matters as well as extensive responsibility running high end disputes. Corporate/M&A Lawyers for multiple firms across all tiers. If you are an Associate or Senior Associate with 2 5 years’ PAE or 5-10+ years’ PAE, then you are in high demand. With the resources and commodities markets beginning to rebound, now is an excellent time for Corporate/M&A/ ECM Lawyers with quality experience to assess your career options and ensure your salary levels remain in line with current market trends. We have active roles with quality boutiques through to the largest international firms, with an overview of some urgent roles below:

• Boutique firm with unique culture and no billable targets. Following rapid growth and gaining an increased market share, you will receive extensive client contact with excellent exposure to the micro/junior market. • Rapidly growing national firm. Work closely with three highly regarded Partners. Two positions available for lawyers with 1-5 years’ PAE. The successful lawyers will be provided with primary conduct of matters across IPO’s, RTO’s, ECM and related ASX/ASIC compliance advice. The Partners are known for their relaxed approach and attracting a high profile client base across the junior and mid-cap markets. • Small national boutique completing extensive cross border work. This would suit mid-level lawyers looking to upgrade to a high quality mix of public and private deals. • Large national Corporate/M&A team, working alongside well-known Partners who are recognised internationally for their expertise. • Top-tier international firms. Career development roles for lawyers looking to step up and gain exposure to major transactions and significant deal flow across both public and private M&A, Corporate Advisory/ Compliance and ECM. Corporate/Commercial Lawyers from boutique firms seeking career advancement are encouraged to apply. Most of these positions are client facing roles where you will enjoy high levels of responsibility and extensive client contact. You must be comfortable advising senior stakeholders and dealing with boards of directors, company secretaries, in-house counsel, regulatory bodies and managing high profile transactions with supervision/guidance from the Partners. • New to market global firm. Unique opportunity to join this premier international brand at ground level and become part of a global team with plans to disrupt the Perth market. Excellent career prospects. Family Lawyers to take over existing firms/client bases. KBE Human Capital is actively assisting a number of clients on multiple exclusive briefs. We are interested in speaking with family law practitioners with 3+ years’ PAE. Our clients include leading national, full service WA firms and long established boutique firms who are looking to add high calibre lawyers to their teams. Several roles are leadership positions, mentoring junior lawyers with a lesser focus on billing and technical work, and the rare ability to take over existing practices as Senior Lawyers transition to retirement. Family Lawyers with 2-6 years’ PAE for multiple firms. KBE Human Capital has been briefed exclusively by a national, medium sized full service, and three boutique firms to secure quality junior to mid-level Family Lawyers. All of these firms advise HNW individuals with asset bases ranging from $500,000 to multi-millions, providing exposure to complex asset structures with mentoring/ training from high profile Partners. If you are a Family Lawyer with 2-6 years’ PAE, then we would be pleased to meet with you to discuss your options. Insurance/PI Lawyers for two top-tier firms. Opportunities for junior and mid-level lawyers with 1-3 years’ PAE and 3-7 years’ PAE to join two of Perth’s best regarded specialist insurance practices, within a national and international firm. The firms have very strong reputations and Partners who are recognised as experts in the insurance field, with exposure to matters across a variety of insurance areas, including professional indemnity, commercial property claims, workers’ compensation, product liability and property liability, employers’ indemnity, and medical malpractice.

Chris Bates

Maryann McKenna

Managing Director

Principal Consultant

M: 0411 645 984 E: chris@kbehumancapital.com.au

M: 0423 867 110 E: maryann@kbehumancapital.com.au

Litigation Lawyers for top-tier firm. This is a new opportunity for a junior (2-4 years’ PAE) and mid level Litigation Lawyer (3-8 years’ PAE) to join a rapidly growing top-tier firm and work alongside Partners who are regarded as among the best strategic litigators in Australia. You will act for domestic and international clients across a range of industry sectors, and complete a diverse mix of energy and resources, construction and insolvency litigation within Australia and multiple foreign jurisdictions. Litigation Senior Associate to build and lead a team. A long-term client of KBE Human Capital is seeking a Senior Associate level Litigation Lawyer to replace a retiring senior lawyer and build/lead a team. With a focus on Construction, Property, Environment and Planning, and related Commercial Litigation, you will inherit a small client base and leverage your network/BD skills to rapidly develop your own client base. This firm is located north of the river and would suit a Senior Associate who is looking to transition to Partnership within 2-5 years. Tax Lawyer to take on a 2IC role within genuine boutique firm. A highly regarded top-tier Partner seeks a quality Tax Lawyer to join their boutique team. Working closely with public, large private and significant SME clients, this role will allow the successful candidate to work closely with one of WA’s leading tax and business law minds. You will have 2-7 years’ PAE with exceptional black letter law skills, and more importantly, the ability to provide direct advice with a focus on delivering commercial outcomes rather than simply providing tax advice. If you are ambitious and interested in an opportunity to take over a firm within 2-5 years, then we would like to speak with you. Workplace Relations Lawyer to join a rapidly growing mid-tier practice. This national firm is seeking a highly ambitious Workplace Relations Lawyer with 2-3 years’ PAE to work in the team’s expanding Perth office. You will gain broad work exposure across a number of industries and direct access to the firm’s most highly valued clients, working closely with Partners and Special Counsel locally and across the National Workplace Relations team. This role will see you providing specialist advice to clients (predominantly employer) across all facets of Workplace Relations, Industrial Relations, general Employment Law, and some OH&S. Some exposure to OH&S will be beneficial but is not a prerequisite. Workplace Relations Senior Associate/Special Counsel to lead a tier one practice. The Employment practice group of this international firm has engaged KBE Human Capital to secure a Senior Associate or Special Counsel to head the Workplace Relations, Health & Safety practice for the firm’s Perth office. The role will involve working closely with Employment/OH&S Partners across Australia as well as managing existing panel and non-panel work, servicing long standing WA government, ASX listed and global company clients of the firm. You will handle a range of contentious and non-contentious matters, conduct training for clients and advise boards on a broad range of Workplace Relations matters. The successful candidate will be of at least Senior Associate standing with 5+ years’ PAE. Candidates with strong Workplace Relations/OH&S experience with backgrounds outside of private practice will be considered, as long as they have the relevant level of experience. We are currently working on numerous exclusive briefs to source high calibre lawyers from 2 years’ PAE through to Equity/Salaried Partners, in addition to the roles listed above, and it would be a pleasure to meet with you to discuss the opportunities currently available in the WA legal market. Please contact Chris Bates or Maryann McKenna for further information. KBE Human Capital is a proud supporter of Parkerville Children & Youth Care

KBE Human Capital P: 08 6467 7889 A: 1322 Hay Street, West Perth 6005 W: kbehumancapital.com.au


Australia’s Place in the World Speech to Law Summer School 2017

The Hon Marilyn Warren AC Chief Justice of the Supreme Court of Victoria

Friday, 17 February 2017* The University Club Crawley, Western Australia

Photo: Ron D’Raine Images

Introduction First things first, what is the world in which Australia is placed? The rate of change seen particularly in 2016 with Brexit and the election of Donald Trump to the Presidency of the United States is astonishing and must have far ranging and reaching consequences beyond the short term. The changes taking place abroad will have an undeniable impact at home. ‘Australia’s place in the world’ was a prescient yet challenging choice of topic by the organisers of this conference as it asks us to draw up a map while the ground is shifting beneath our feet.

Overview Perth is a fitting location to discuss Australia’s place in the world. At the Asia-Pacific Regional Arbitration Group conference some years ago, Chief Justice Martin noted that Perth is closer to Singapore than it is to Sydney, and that it enjoys the same time zone as many Asian commercial centres. He said that to appreciate Western Australia’s orientation to Asia, he need only speak to his neighbours.1 With our location in mind, today I would like set the scene by looking at the shift from the old world to the new. I will look at some recent developments in global politics and trade, including President Trump’s inauguration, Prime Minister May’s Brexit plans, and China’s 30 | BRIEF APRIL 2017

increasing engagement with the global economy. I will then discuss the internationalisation of litigation in Australian courts and arbitral tribunals, the challenges posed by investor-state arbitration, and opportunities for the Australian legal profession. In the course of this discussion I will suggest some ways in which Australian courts and tribunals and the Australian legal profession might enhance the reputation and appeal of Australia as a centre for the resolution of international disputes.

Setting the scene Michael Wesley, Professor of International Affairs and Dean of the College of Asia and the Pacific at the Australian National University, recently observed that ‘we do stand at a cross roads of world order’. Almost a month ago President Donald Trump was sworn in as President of the US. He delivered a relatively brief inauguration speech with a clear message. Nationalism, protectionism and isolationism are back. Globalism is out, unless of course it promises to make America win again. The President tied globalism to the striking image of ‘rusted-out factories scattered like tombstones across the [American] landscape’. He blamed it for wealth being ‘ripped’ from middle-class American homes and

being redistributed across the world. He emphasised that from now on, it will be ‘America first’, saying ‘Every decision on trade, on taxes, on immigration, on foreign affairs will be made to benefit American workers and American families. We must protect our borders from the ravages of other countries making our products, stealing our companies and destroying our jobs. Protection will lead to great prosperity and strength’. In line with his inauguration speech, and just three days after it, the President signed an executive order to withdraw from the Trans-Pacific Partnership. The UK Prime Minister Theresa May gave her Brexit speech just days before the President’s inauguration. In stark contrast to President Trump’s speech, the pervasive themes of Prime Minister May’s speech were ‘a global Britain’, free trade, diversity, ‘old friends and new allies’ and being outward-looking. The Prime Minister explained that the Brexit vote ‘was not a decision to turn inward and retreat from the world…[it was] not the moment Britain chose to step back from the world. It was the moment [Britain] chose to build a truly Global Britain’. The essence of the speech was that Britain would be not just a European Britain but a Global Britain. While the ‘hard Brexit’ foreshadowed by the UK government suggests the raising of barriers and a corresponding retreat from freedom of trade and movement,


number two investor, and the leader of Australia’s number one trading partner, all put forward their positions on globalisation and global trade. A clear tension can be seen between communitarianism and individualism; globalism and nationalism. Professor Wesley explained that US leadership of the world order is fraying, that the US and Europe are entering into an introspective phase, and that opportunities are arising for countries like China, India and Brazil to play a greater role in the institutions of world order. He said the world has been waiting for a long time now for those countries to play a more responsible leadership role. Peter Varghese, former Australian High Commissioner to India and Secretary of the Department of Foreign Affairs and Trade, takes a different view, and thinks that ‘the capacity of the US system to regenerate is not only historically proven but likely to be a feature of the next 1015 years’.2 Although he does say that strategic and economic weight is shifting from the US to China, and an organic process of the two countries sharing strategic power has been set in train. Prime Minister May made it plain that Britain is ‘one of the firmest advocates for free trade anywhere in the world’, and that Britain would seek to ‘remove as many barriers to trade as possible’, because ‘the erection of new barriers to trade… means…less trade, fewer jobs, lower growth’. In the course of her speech the Prime Minister emphasised Britain’s ‘profoundly internationalist’ history, culture and mindset, and its desire to ‘trade and do business all around the globe’. In this context she mentioned China, Brazil, India, Australia and other countries. Prime Minister May said that Britain will be able to strike its own trade agreements now, and would ‘become even more global and internationalist in action and in spirit’. On the very same day as Prime Minister May’s Brexit speech, Chinese President Xi Jinping spoke at the World Economic Forum in Davos and expressed even firmer support for free trade. He recognised that economic globalisation is a double-edged sword that creates opportunities but also poses challenges. Instead of being feared or avoided, however, globalisation should be guided and made more inclusive. President Xi spoke of balance and equity, and the need for improved global economic governance and a relentless pursuit of innovation. He called for openness and warned against protectionism. He said that countries: should view their own interests in

a broader context and refrain from pursuing them at the expense of others. One should not just retreat to the harbour when encountering a storm, for this will never get us to the other shore of the ocean. We must redouble efforts to develop global connectivity to enable all countries to achieve inter-connected growth and share prosperity. We must remain committed to developing global free trade and investment, promote trade and investment liberalization and facilitation through opening-up and say no to protectionism. Pursuing protectionism is like locking oneself in a dark room. While wind and rain may be kept outside, that dark room will also block light and air. No one will emerge as a winner in a trade war. Echoing President Xi’s call for more inclusive global institutions, Professor Wesley has observed that a more multilateral world order is ‘very much in the interests of countries like little old Australia’. President Xi said China ‘will keep its door wide open and not close it’. He welcomed all people ‘aboard the express train of China’s development’, which he said is ‘an opportunity for the world’. So we have it that in the space of four days in January, the leader of Australia’s closest strategic ally and largest investor, the leader of Australia’s oldest ally and

Australia’s dilemma has been identifying the extent to which it can pursue its economic interests with China without fracturing its strategic alliance with the US. Wesley calls this security-prosperity dualism.3 After China re-emerged as the ‘industrial heart and economic hinterland of Pacific Asia’, the ‘alignment of security and prosperity dynamics’ ended.4 This dilemma is not unique to Australia. The bifurcation of security and prosperity interests ‘dominates most regional countries’ foreign policies’, with countries that are not major powers seeking to balance the ‘new dualism’ and not be forced to choose between China and the US. Varghese puts it this way: ‘for Australia the challenge has always been to know when you can say no to the United States and when you must say yes’. How does Australia, as a middle power,5 manage this meat in the sandwich role? Middle powers do not impose their policy preferences on other states. Rather, they build coalitions with like-minded states.6 Middle power diplomacy requires flexibility and adaptability, because like-mindedness is not constant. The countries with whom Australia has shared like-mindedness have changed over time, from the UK, to the broader Anglosphere, and now to more immediate neighbours. This shift in attitude is seen in the 2016 Lowy Institute poll, in which China and the US tied when Australians were asked which relationship was the more important to Australia.7 Just two years 31


earlier, the US had come out on top.

the US and China.14

If the US persists with its inward gaze, there may be increased opportunity for Australia to forge closer economic ties with its neighbours. With the exit of the US from the TPP, many expect that Australia’s relations with China, building on its trade partnership and the shared preference for a global outlook would gain ascendancy. It would appear that Australia identifies to a large degree with the sentiments expressed by President Xi Jinping in Davos.

However, Australia’s ability to play such a role is disputed. Former Prime Minister Paul Keating thinks Australia’s influence in the world is waning.15 In response, Varghese said that influence flows from weight, and Australia brings a certain weight to issues. This weight comes from Australia:

However, Australia would miss the US’ contribution to a global rule of law mentality. Professor Wesley says the US’ great contribution to world order has been convincing all the other countries that their interests are served by following the rules and playing the game.8 When countries do not follow the rules, and instead carve out for themselves exceptions to global norms when it suits them, such as China in the South China Sea, global norms and security and trading interests are all put at risk.9 In this vein, the Australian Foreign Minister Julie Bishop gave a speech to the US noting Australia’s ‘concer[n] about continued construction and militarisation of disputed features in the South China Sea, in particular the pace and scale of China’s activities’. The Minister called the US an ‘indispensable power’ in the region and said ‘[m]ost nations wish to see more US leadership, not less, and have no desire to see powers other than the US calling the shots’.10 Varghese says that it is hoped that China ‘will be more and more a player in a rules based system’. He also asks what kind of strategic culture we want — a strategic culture that rests on the rule of law and responsible behaviour, or one that approximates the law of the jungle, where might is right?11 As a staunch advocate of the rule of law, Australia may need to pick up some of the slack if the US retreats from the role it has played in encouraging countries to play by the rules. To this end Dr Michael Fullilove, Executive Director of the Lowy Institute for International Policy, says Australia needs to work with its allies and ‘likeminded partners in Europe and in Asia to try to hold together this global liberal order … and need[s] to try to protect the international institutions like the United Nations’.12 He also says Australia must be a vigorous participant in international institutions and a leader in Asia.13 Hugh White, Professor of Strategic Studies at the Australian National University, says that Australia needs to do whatever it can to help bring about a regional order that avoids escalating strategic rivalry between

32 | BRIEF APRIL 2017

having the 12 or 13 largest economy;

having the 12th or 13th largest most effective military;

being an energy super power;

ranking in the top half dozen in terms of soft diplomacy; and

being close to a world leader in international education.

th

th

Fullilove points out that Australia’s ‘diaspora is one million strong: our own world wide web of ideas and influence’.16 He urges against the cliché that Australia punches above its weight in the world, and argues that Australia is in fact significant. Putting aside the dispute about whether Australia is a middle power or whether it is significant, these factors I have mentioned afford Australia the ability to be creative. From the commentary it seems being creative means looking not just to China and the US. The focus for Australia will not only be on China and the US. Australia-India relations may now assume greater prominence,17 and getting the Australia-Indonesia relationship right will also be a priority.18 Creativity will be needed to engage with what Varghese calls a multi-polar Asia and multi-polar Indo Pacific. George Megalogenis, journalist and political commentator, also calls for long term planning rather than speeding up the political cycle by thinking in the short term. For Megalogenis, long term thought would involve reflection on Australia’s true source of success; its people and its status as a great migrant nation. Migrants account for more than a third of the population in Perth, Melbourne and Sydney.19 In Perth, the proportion is 37 percent. Such proportions were last seen in the 1870s. And while the US has been losing its migrant diversity, Australia’s migrant diversity has been increasing.20 Megalogenis says that the migrants being drawn to Australia are the best qualified since the golden intake of the 1850s. Australia’s prosperity is contingent on their continued arrival, and if they are not met with cultural acceptance, they will simply go elsewhere and Australia will suffer a diminution in demand,

output, creativity and energy.21 He says that one of Australia’s unique strengths is its ability to turn the disparate, querulous cultures of the world into a unified people.22 Megalogenis says that Australia’s standard of living depends on the migrant,23 and that an open, globally minded Australia will thrive.24 Similar sentiments were expressed by John Edwards, Non-resident Fellow at the Lowy Institute. Edwards produced an analysis entitled ‘How to be exceptional: Australia in the slowing global economy’.25 He sees Australia’s greatest strength in the context of global economic gloom as its human capital. The Australian government is in the process of preparing a foreign policy white paper that ‘will provide a roadmap for advancing and protecting Australia’s international interests and define how we engage with the world in the years ahead’.26 Australians will eagerly await to see where this roadmap places Australia in the world. I have tried to set the scene as to the world Australia is within. It is now relevant, as lawyers, to ask: what part does the law play in these tricky times? Our law is shaped by the policies our legislators choose to implement, and by the courts. For some, a legal system that is internationally engaged might involve exporting a state’s hard-won, closely-held principles far and wide. Last year, the Royal Commonwealth Society, reflecting on the Commonwealth, noted some of the crucial links that bind the Commonwealth, include ‘shared values, common language and the rule of law’.27 For others, such as the former judge of the International Court of Justice, Professor Weeramantry of Monash Law School, an internationally-aware legal system is one that is informed by numerous sources, that can accommodate the lessons from many countries across millennia.

Internationalisation of matters before Australian courts One gauge of Australia’s place in the world and its participation in international organisations is the extent of international interest in the jurisprudence of Australia’s highest Court. A survey of recent High Court decisions in the last five or so years reveals an undeniable international interest. I will provide a snapshot. In Firebird Global Master Fund II Ltd v Republic of Nauru28 the High Court considered principles of public international law, in particular, foreign


state immunity. Firebird held bonds issued by a Nauruan statutory corporation and guaranteed by the Republic of Nauru. Firebird obtained judgment against Nauru in Tokyo and registered that foreign judgment under the Foreign Judgments Act 1991 (Cth). Firebird later obtained a garnishee order against the Australian bank in which Nauru’s accounts were kept. Nauru applied to have the registration and garnishee order set aside, relying on its entitlement to foreign state immunity from the jurisdiction of Australian courts and from execution against its property. The High Court held that under the Foreign States Immunities Act 1985 (Cth) Nauru was not immune from the jurisdiction of Australian courts, but it was immune from execution against its property. Foreign state immunity was also considered by the High Court in PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission.29 In that case, Garuda, which was 95 percent owned by the Republic of Indonesia, was unable to claim immunity under the Foreign States Immunities Act 1985 (Cth). The High Court looked at the legality of a foreign government’s actions in Moti v R.30 The appellant was extradited from Solomon Islands to Australia. It was alleged that he had committed extraterritorial child sex offences under the Crimes Act 1914 (Cth). The High Court permanently stayed the prosecution due to the deportation being illegal under Solomon Islands law, and the Australian authorities’ knowledge of such illegality. Extradition was also at issue in Minister for Home Affairs v Zentai.31 The Republic of Hungary requested the Australian government extradite the respondent for prosecution for a war crime. It was alleged that the respondent had fatally assaulted a young Jewish man in 1944. The war crime offence in Hungary was enacted after the offence was committed, but it had retrospective effect. Murder, however, was an offence in Hungary at the time. The High Court was required to interpret the extradition treaty between Australia and Hungary, according to the Vienna Convention, and ultimately decided that the Minister was not empowered to accede to the extradition request. There are many more international disputes resolved by courts below the High Court. I will provide some local examples. In PT Bayan Resources TBK v BCBC Singapore Pte Ltd32, the Court of Appeal considered whether the Supreme Court had jurisdiction to make freezing orders

in anticipation of a money judgment from the Singaporean High Court, on the basis that the party would seek to register and enforce the Singaporean judgment in the Supreme Court of Western Australia. The Court of Appeal found that it did. In Samsung C&T Corp v Duro Felbuera Australia Pty Ltd,33 pursuant to the International Arbitration Act 1974 (Cth), the Supreme Court stayed proceedings brought by Samsung and referred the subject matter of the proceeding to arbitration. In the course of reaching his decision Le Miere J considered jurisprudence from the UK and Singapore. In Ship “Sam Hawk” v Reiter Petroleum Inc34 the Full Federal Court, in the Western Australia registry, determined a maritime law dispute. A ship flagged and registered in Hong Kong had been supplied with fuel in Turkey under a contract alleged to be governed by US or Canadian law, and then arrested in Western Australia by the fuel supplier. The ship’s owners sought to set aside the arrest. In setting aside the arrest, the five judge bench considered international conventions and jurisprudence. These cases highlight the international nature of matters before Australian courts. This brings me to international commercial arbitration.

International commercial arbitration In a 2015 International Arbitration Survey, 90 percent of respondents indicated that international arbitration is their preferred dispute resolution mechanism.35 The most valuable characteristic of arbitration was enforceability of awards, and the most preferred and used seats were London, Paris, Hong Kong, Singapore and Geneva. Singapore, followed by Hong Kong, rated as the most improved seat over the last five years. Seat selection is predominately based on parties’ ‘appraisal of the seat’s established formal legal infrastructure: the neutrality and impartiality of the legal system; the national arbitration law; and its track record for enforcing agreements to arbitrate and arbitral awards’. Australia is recognised as a safe and neutral seat for arbitration. It offers strong legal, institutional and administrative support for parties choosing to resolve their disputes through arbitration in Australia. In terms of legal support, Australia is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Commonwealth Parliament enacted the International Arbitration Act 1974 (Cth) to give effect to the New York Convention

and also the UNCITRAL Model Law on International Commercial Arbitration. Australia’s framework for the recognition and enforcement of international arbitral awards was challenged in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia.36 In that case TCL argued that the International Arbitration Act 1974 (Cth) was incompatible with Ch III of the Constitution and therefore invalid, to the extent that it precluded the Federal Court from reviewing arbitral awards for errors of law. Had the challenge been successful, Australia’s hopes of becoming a world-class centre for the resolution of international commercial disputes, would have been severely dampened. In the result, the High Court rejected TCL’s constitutional challenge to the arbitration regime, holding that the ‘arbitrator is the final judge of questions of law arising in the arbitration’.37 In their judgment the plurality referred to the ‘widely shared modern policy of recognising and encouraging private arbitration as a valuable method of “settling disputes arising in international commercial relations”’.38 They also spoke of a ‘legitimate legislative policy of encouraging efficiency and impartiality in arbitration and finality in arbitral awards’.39 Further legal support for commercial arbitration in Australia is found in the several Australian courts that have specialist arbitration lists headed by judges with expertise in international commercial arbitration. In the Supreme Court of Victoria there is an arbitration list available 24/7. Justice Croft is the judge in charge. There has been plenty of business, such as the Formula 1 case of Giedo van der Garde BV v Sauber Motorsport AG.40 Australian judges are of course aided by a highly competent legal profession with ‘specialist expertise in international business law and cross-border disputes’.41 Australian lawyers are active in dispute resolution in Asia, as arbitrators and legal representatives, which enhances Australia’s reputation for expertise in arbitration.42 In terms of institutional and administrative support, in 1985 the Australian Centre for International Commercial Arbitration (ACICA) was established. ACICA maintains panels of international arbitrators and mediators from which parties may appoint arbitrators; it provides rules and model clauses for the conduct of arbitration and mediation; and it hosts seminars and conferences to provide thought leadership in international arbitration.43 ACICA played a key role in the establishment of the Asia-Pacific

33


Regional Arbitration Group. Arbitration centres in Sydney and Melbourne provide hearing facilities for arbitrations. As part of the national arbitration grid, it is hoped that Perth will have facilities available very soon. As would be expected of a modern

Australia Free Trade Agreement was signed. The amendment provides ‘greater certainty for Australian lawyers and law firms operating in Singapore, putting them on an equal footing with foreign competitors … [and locks] in existing opportunities in the legal sector, including the ability for Australian lawyers

Photo: Ron D’Raine Images

As a staunch advocate of the rule of law, Australia may need to pick up some of the slack if the US retreats from the role it has played in encouraging countries to play by the rules. arbitration seat with a global outlook, there is close co-operation between ACICA and the courts. ACICA has a Judicial Liaison Committee that promotes harmonisation of approach to arbitration-related court proceedings. On the Committee are judges and former judges from eight Australian jurisdictions. The Committee enhances the lines of communication between the different Australian jurisdictions, which assists with consistency in thinking and decision-making. Consistency, certainty and reliability are key considerations for parties selecting an arbitration seat. Whether the chosen seat of arbitration is Australia, Singapore, London or Hong Kong, or elsewhere, opportunities for the Australian legal profession abound. In international commercial arbitration there are not the same restrictions on legal services as apply in domestic proceedings. For instance, while an Australian lawyer cannot appear for a party in the Singaporean courts unless s/he is admitted there,44 s/he can act for a party in arbitration proceedings without local admission, including when Singaporean law governs the dispute.45 Australian lawyers, and in particular dispute resolution lawyers, think and act globally. The profession needs to be acutely conscious of the competition with the presently dominant English Bar in arbitration in Singapore. In 2015 Australia exported $713m in legal services. The five year trend in legal services exports was 5.8 percent growth.46 In the same year Australia imported $239m in legal services. The top importer of Australian legal services is North America (US and Canada), followed by the EU.47 As trade in legal services in Asia is liberalised further, our closer neighbours can be expected to grow as export markets for Australian legal services. Liberalisation is being seen with Singapore; on 13 October 2016 the Agreement to Amend the Singapore 34 | BRIEF APRIL 2017

to practice Singapore law and to work in international commercial arbitration’.48 The amendment also provides for Singapore to recognise Juris Doctor degrees from certain universities, including Western Australia and Murdoch. Former president of the Law Council of Australia Stuart Clark has noted that: ‘Increasing opportunities for Singaporean students to study law in Australia will assist in the internationalisation of the legal sector in both countries. It will also expand people-to-people links that inevitably foster increased understanding and cooperation between the legal professions of both countries’.49

Investor state dispute settlement DFAT defines investor state dispute settlement (ISDS) as ‘a mechanism that is included in a Free Trade Agreement (FTA) or an investment treaty to provide foreign investors, including Australian investors overseas, with the right to access an international tribunal if they believe actions taken by a host government breach its investment obligations’.50 ISDS allows investors in foreign states to challenge the actions of those states in a neutral arbitral tribunal, rather than in the foreign state’s domestic courts. It also gives investors more freedom of choice when it comes to legal representation. When forced to resort to domestic courts, the host state’s restrictions on legal representation come into play. Australia has ISDS provisions in six operative FTAs – namely the FTAs with China, Korea, Chile, Singapore, Thailand and the ASEAN-Australia-New Zealand FTA. There is also an ISDS provision in the Trans-Pacific Partnership, the fate of which is now uncertain. Australia also has ISDS provisions in 21 bilateral investment treaties, including with China, Hong Kong, Indonesia and India.51 When the Australian government negotiates trade and investment treaties,

as Chief Justice French observed,52 it seems to assume that Australian domestic courts are good enough for inbound foreign investors, but that foreign courts might not be good enough for Australian outbound investors. Where the foreign courts are up to standard, the Australian government would not see the inclusion of ISDS provisions as necessary. Indeed, the Australia-USA FTA and the Japan-Australia Economic Partnership Agreement do not have ISDS provisions.53 By contrast, the proposed TPP does include an ISDS provision. Where the Australian government perceives that foreign courts are not efficient, functioning and independent, it may push for the inclusion of an ISDS provision.54 There seems to be a double standard in that governments tend to favour ISDS to restrain interference by foreign governments with Australian investors, but disfavour ISDS proceedings filed against them.55 When foreign states negotiate investment treaties with Australia and consider whether to insist on an ISDS provision, they will be looking at Australia’s courts and legal profession, just as Australia assesses the integrity of the foreign state’s courts and legal profession. In other words, Australian courts and lawyers go under the microscope when Australia negotiates treaties. What foreign


states see, and what we think or hope they will see, may differ. It is worth considering then, how do foreign governments and businesses see Australia’s courts and legal profession? Self-evidently, the higher the rating in terms of expertise, efficiency and neutrality, the more opportunities there will be for Australia’s courts and lawyers in the area of international dispute resolution.

class actions and mediation, improve budget and finance management and reduce case backlogs. The two Courts last year discussed the prospect of the Supreme Court of Indonesia establishing a Commercial Court;56

which were later echoed by Chief Justice French.59 Recently, Chief Justice French noted that ‘[t]here are many areas of international engagement in which Australian judges and legal professionals with relevant expertise can both give and receive’.60

The Federal Court also managed the Pacific Judicial Development Programme, which provided regional capacity building assistance to judiciaries in 14 Pacific Island countries. In the coming years it will manage and implement the Pacific Judicial Strengthening Initiative.57

In 2016 the Asian Business Law Institute was established. It has many founding partners including large law firms and legal organisations across Asia and Australia. The Institute has a Board of Governors including Chief Justice Menon of the Supreme Court of Singapore, the Honourable Robert French, judges from across Asia, the Honourable Kevin Lindgren AM QC, and myself, academics and others. The Ministry of Law of Singapore has committed funding in the amount of $1.1 million (Singapore) dollars for the Institute’s first year of operation. The Institute will be an active organisation supporting UNCITRAL and promoting seminars about engagement with Asia.

In terms of receiving, in February last year, the Judicial College of Victoria collaborated with the Asian Law Centre at Melbourne University to host a workshop called ‘Asian Cultural Awareness in the Courtroom’. When opening the workshop, the Victorian Attorney-General said that “Understanding different cultural perspectives is the first step towards helping our courts and tribunals provide culturally appropriate services.” The workshop focused on issues arising in commercial litigation and mediation, and it had three aims:

Increasing Australia’s appeal as a centre for dispute resolution Neutrality Foreign parties litigating against Australian governments or Australian nationals may choose arbitration over our domestic courts for a variety of reasons. Many of those reasons are not cause for alarm for Australian courts. However, if foreign parties avoid domestic courts out of a fear of discrimination or perceived lack of impartiality or independence, there is work to be done by our courts. If the Australian courts and legal profession are to give foreign litigants confidence that they will receive ‘national treatment’, meaning they will receive the same treatment that Australian nationals receive — equality — the Australian judiciary and the Australian legal profession will need to focus on two things. First, on how Australia can educate and train our foreign counterparts in developing countries about Australian courts and what we do and how well we do it. Secondly, on what knowledge Australians may receive and learn from foreign counterparts. For many years now, Australian courts and judges have been active in education and exchange programmes in the Asia-Pacific region. Australian judges and retired judges have undertaken judicial service in countries including Tonga, Vanuatu, Samoa, Kiribati, Fiji, the Solomon Islands, and Hong Kong. Library and legal resources have been provided to the courts of developing countries, and training programmes have been conducted for foreign judiciaries. Some examples: •

Since 1999 the Federal Court has had a strong relationship with the Supreme Court of Indonesia. The Federal Court has conducted training sessions in Indonesia and Australia to assist the Indonesian judiciary in building a strong and effective judicial system. Assistance has been given to develop and promulgate consumer protection regulations, develop institutional frameworks for

In May 2017 the High Court of Australia will host the visit by a delegation of senior Chinese judges in Melbourne, Canberra and Sydney. The visit follows a delegation from Australia to Beijing in 2016 led by Chief Justice French. For example, on the visit to Melbourne the delegation will observe a criminal trial and a civil trial and engage in a round table discussion with Supreme Court judges on the operation of the uniform evidence law.

Of course, LAWASIA, the Law Council of Australia and the Australian Bar Association play a very important role in engagement with Asia and other countries. There is growing recognition, however, that the engagement between Australian and overseas judges and legal professionals should be an exchange of learning and ideas. In 2002 Chief Justice Gleeson noted that engagement between Australian and foreign judges is essential, and that training and exchange activities enhance the level of performance of Australian judges. The Chief Justice said, ‘We also accept that there are valuable lessons for us to learn from others’,58 comments

1. To provide judicial officers with insights and practical tools to ensure effective communications and court management in proceedings involving parties from an Asian background; 2. To give judicial officers a better understanding of the culture and perspectives of parties from an Asian background so that they can more effectively assess evidence and behaviour; and 3. To explore ways to increase the effectiveness of mediation within the context of commercial disputes. In sessions chaired by judges of the Supreme Court of Victoria, the workshop covered topics including the legal systems in China, Vietnam and Indonesia, the effect of culture on communication, western and non-western approaches to mediation, and the legal profession’s role in educating foreign litigants on the Australian system of dispute resolution. The programme was attended by 24 judges, mostly from the Supreme Court of Victoria. All of the Victorian Supreme Court’s Commercial Court judges attended. The ‘Asian Cultural Awareness in the Courtroom’ workshop was innovative and cutting edge. Importantly, it demonstrates the readiness of the courts to improve their understanding of cultural differences and to ensure their actual and perceived neutrality. This type of training may go some way toward assuring foreign litigants that they will receive national or equal treatment in Australian courts. Similarly, Chief Justice Martin chairs the national Judicial Council on Cultural Diversity, which was an initiative of Chief Justice French and endorsed by the

35


Council of Chief Justices of Australia. Chief Justice Martin has noted that a lack of experience of cultural and linguistic diversity in the judiciary ‘has the capacity to impede the provision of equal justice to all in a community which has become multicultural rather than monochromatic’.61 The Judicial Council on Cultural Diversity is an ‘advisory body formed to assist Australian courts, judicial officers and administrators to positively respond to our diverse needs’.62 It aims to ‘promote public trust and confidence in Australian courts and the judiciary’.63 Diversity is not only present in Court users. I have the privilege of presiding over most Victorian admission to legal practice ceremonies. Last year almost 1,400 new lawyers were admitted to the profession in Victoria. 59 percent were female. In the 2016 financial year 49 foreign lawyers and foreign graduates were admitted in Victoria, 14 of whom were educated or qualified in Asia. The names of the admittees, the accents of counsel moving their admission, and the religious texts on which admittees choose to swear their oath, are becoming more and more reflective of the diversity in the Australian legal community. Recognition of human rights, and protections against discrimination, provide the fertile ground for diversity to flourish. Since retiring, the Honourable Robert French, delivering the Victoria Law Foundation Oration just last week said that the rule of law ‘might … be thought, because it supports a society with respect for the human rights and freedoms of its members, to attract human capital in the form of people coming from other places to live and work here and contribute to the common good. It gives shape and definition to Australia as a particular kind of society in the global community of nations’.64 In Victoria, human rights are largely recognised and enforced in the courts. This is an area in which Australia learns and borrows heavily from the world. When interpreting the Charter of Human Rights and Responsibilities Act 2006 (Vic) the Victorian Supreme Court and then the High Court have looked to the International Covenant on Civil and Political Rights (1966), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Canada’s Charter of Rights and Freedoms, the UK’s Human Rights Act 1998, New Zealand’s Bill of Rights Act 1990, the American Convention on Human Rights (1969), and to jurisprudence from those jurisdictions. The extent to which we look to UK jurisprudence may increase after Brexit. In any event, there is much Australian courts 36 | BRIEF APRIL 2017

and lawyers may take from the world, but as Australia’s human rights jurisprudence matures, it is expected we will also have something to give back.

Relevance of the Australian Federation Finally, I will say something about Australia’s federal structure. It is a structure that presents the country with challenges and opportunities. Constitutional Law Professor Anne Twomey of the Sydney Law School has propounded the advantages of federalism. We might not all agree with her, however, Professor Twomey says:65 •

it is a system of government that is modern, flexible, efficient, highly competitive and best suited to deal with the pressures of globalisation;

it is the best suited system for geographically large countries, because it allows differing local needs to be satisfied;

federations tend to have smaller and less costly public sectors than unitary countries, and a study over 50 years showed that federal countries economically out-performed unitary countries; and

Australia’s federalism is based on competition and cooperation. Competition among the states leads to greater efficiency, better economic performance, and innovation. Cooperation among the states and the Commonwealth results in greater scrutiny and legitimacy of proposals.

On the other side of the coin are the challenges. Kenneth Wiltshire, Professor of Public Administration at the University of Queensland, has looked at the business perspective on Australian federalism. He writes that the business community argues ‘for the creation of truly national markets, greater uniformity in policies, greater certainty in policy regimes … harmonisation of laws, and removal of other impediments to global competition for Australian business’.66 Essentially, business has pressed for changes to federalism that would make its operations more certain. Certainly the Australian Productivity Commission has driven such a national approach, indeed, as shown in its Access to Justice Arrangements report.67 In 2006 the Business Council of Australia published a report entitled ‘Reshaping Australia’s Federation: A New Contract for Federal-State Relations’.68 The Business Council estimated that weaknesses and inefficiencies in Australia’s federal system were costing Australians at least

$9b annually. It said we need to fasttrack ‘a ‘common market’ for Australian business and consumers by removing the significant barriers to the movement of people, goods and services within Australia’. The Council also reported that ‘[t]he burden of regulation on the community and business grows yearly as governments add to the stockpile of overlapping, duplicated and inconsistent laws’. ‘At a time when globalisation is reducing the trade barriers and differences between countries, the differences across our states are growing.’ An example was given of the deleterious effects of competition among states — states compete for foreign investment, and incentives given by one state may benefit that state to the detriment of the nation as a whole. It was said by the Business Council that this competition has the potential to confuse foreign investors and leave them wary of investing in Australia. There is a push for change. Twomey suggests, ‘it is in the interests of all of us to make federalism work better’. For those of us from a state base within the Federation, there is often hesitation even suspicion about federal centralism and the loss of our innate state differences and characteristics. In terms of legal matters, as Australian lawyers, we understand the importance of uniformity in regulations, practices and procedures that affect foreign parties and parties doing business across state borders. In this respect at some point it may be relevant for Australia to revisit a national legal profession. So far the uniform profession merging New South Wales and Victoria has worked well and not led to any diminution of pre-existing, long established local standards. For courts, harmonised court rules, harmonised practice notes, and the principle of comity as expounded in Farah Constructions Pty Ltd v Say-Dee Pty Ltd69 are also important. The Corporations Rules are an example of harmonised court rules. Bodies such as the Council of Chief Justices and ACICA’s Judicial Liaison Committee assist the courts in achieving harmony. The aim of uniformity is to eliminate complexities and inconsistencies and provide for certainty. The aim is not necessarily to rob the federation of the benefits of diversity. In areas of State concern, uniform legislation and regulatory bodies cannot be imposed on the Australian States. Instead, they must be agreed to through a cooperative process that is enhanced by diversity and creative thinking. The national operation of the Corporations Law 2001 (Cth) is an


obvious example. In other words, in the suitable context, the uniform outcome is a better result.

Conclusion Where does this leave us? We have seen that Australia is placed in a world where isolationism has returned as a temptation in some quarters, while in others the agenda is liberalisation and engagement. We may predict that priorities for Australia will be using its creativity to advance relationships with China, India and Indonesia, and using its influence to encourage to the greatest extent possible multilateralism and respect for the rule of law in the region. For Australian courts and legal professionals, Australia’s engagement with the world leads to an increase in involvement in disputes and legal work of an international character. Opportunities will present themselves in international commercial arbitration, both overseas and at home. Australia offers the world a seat for arbitration that is neutral, safe, and, critically, willing to learn from leading centres around the globe. It is important to reflect not only on what Australian courts, judges and lawyers may offer overseas counterparts in terms of jurisprudence, training and education, but also on what the world has to offer us. There is much to take from foreign jurisdictions in the area of human rights law and in general approaches to dispute resolution. It is also important to reflect on how we are viewed from outside Australia. Opening up to the world and absorbing what it has to offer will assist Australia’s courts and legal profession in their goal of providing, and being seen to provide, equal justice to foreign parties and to all members of Australia’s diverse community.

7.

Lowy Institute for International Policy, The Lowy Institute Poll 2016 <https://www.lowyinstitute.org/publications/ lowy-institute-poll-2016>.

8.

ABC Radio National, ‘World Order Under Threat’, Saturday Extra, 4 February 2017 (Michael Wesley).

9.

Ibid.

10.

Henry Belot, ‘Julie Bishop calls on US to increase role in region, raises concerns over South China Sea’, ABC News (online), 27 January 2017 <http://www.abc.net.au/ news/2017-01-27/bishop-calls-on-us-to-increase-rolein-region/8216704>.

11.

Varghese, above n 2.

12.

ABC News, ‘A big, big time for Australian foreign policy’, The World Today, 3 February 2017 (Michael Fullilove).

13.

ABC Radio National, ‘The Birthplace of the Fortunate’, Boyer Lectures, 18 October 2015 (Michael Fullilove).

14.

ABC Radio National, ‘Let’s talk about going to war with China’, Counterpoint, 14 March 2016 (Hugh White).

15.

Caitlyn Gribbin, ‘Paul Keating warns Australia to prepare for the ‘rise of China’ with strong foreign policy’, ABC News (online), 31 August 2016 <http://www.abc.net. au/news/2016-08-31/paul-keating-warns-australia-toprepare-for-the-rise-of-china/7800062>.

16.

Fullilove, above n 13.

17.

Dhruva Jaishankar, ‘Australia-India relations: Poised for take off’, The Lowy Institute: the interpreter, 10 January 2017 <https://www.lowyinstitute.org/the-interpreter/ australia-india-relations-poised-take-off>.

18.

Evans, above n 6.

19.

George Megalogenis, Australia’s Second Chance (Penguin, 2015) 278.

20.

Ibid.

21.

Ibid., 279-280.

22.

Ibid., 290.

23.

Ibid., 288.

24.

Ibid., 291.

25.

John Edwards, How to be Exceptional: Australia in the Slowing Global Economy <https://www.lowyinstitute. org/publications/how-be-exceptional-australia-slowingglobal-economy>.

26.

Department of Foreign Affairs and Trade, Australian Government, Foreign Policy White Paper <http://dfat. gov.au/whitepaper/index.html>.

27.

The Royal Commonwealth Society, ‘Her Majesty the Queen celebrates Commonwealth Day at the Commonwealth Service at Westminster Abbey’ (Press Release, 14 March 2016) <https://www.thercs.org/ assets/Press-Releases/14.03.16-CommonwealthService-2016.pdf> (emphasis added).

28.

(2015) 326 ALR 396.

29.

(2012) 247 CLR 240.

30.

(2011) 245 CLR 456.

31.

(2012) 246 CLR 213.

32.

(2014) 320 ALR 289.

33.

[2016] WASC 193.

34.

(2016) 335 ALR 578.

35.

Queen Mary University of London and White & Case LLP, ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’ <http://www.arbitration.qmul.ac.uk/ docs/164761.pdf>.

36.

(2013) 251 CLR 533.

37.

Ibid., 575 [107] (Hayne, Crennan, Kiefel and Bell JJ).

38.

Ibid., 559 [45] (Hayne, Crennan, Kiefel and Bell JJ).

39.

Ibid., 574 [105] (Hayne, Crennan, Kiefel and Bell JJ).

40.

(2015) 317 ALR 792 (application for enforcement); (2015) 317 ALR 786 (appeal against enforcement decision); [2015] VSC 109 (stay application).

41.

Deborah Tomkinson and Cindy Wong, ‘Promoting efficacy in arbitration practice: Australia’s pro-arbitration regime and key developments in the ACICA Arbitration Rules’ in LexisNexis Dispute Resolution Law Guide 2017, 9.

NOTES: * The author acknowledges the invaluable assistance of her Research Assistant David O’Loughlin. 1.

Chief Justice Wayne Martin AC, After Dinner Address (Speech delivered at the 10th Anniversary Conference of the Asia-Pacific Regional Arbitration Group, Sofitel, Melbourne, 27 March 2014).

2.

ABC Radio National, ‘Australia and the World’, Between the Lines, 1 September 2016 (Peter Varghese).

3.

Michael Wesley, ‘Trade agreements and strategic rivalry in Asia’ (2015) 69(5) Australian Journal of International Affairs 479, 481.

4.

Ibid.

5.

Andrew Carr, Is Australia a middle power? <http:// www.internationalaffairs.org.au/australian_outlook/ is-australia-a-middle-power/>; the Honourable Gareth Evans, ‘No Power? No Influence? Australia’s Middle Power Diplomacy in the Asian Century’ (2012 Charteris Lecture delivered at the Australian Institute of International Affairs, New South Wales Branch, Sydney, 6 June 2012); Australian Strategic Policy Institute, ‘Are we a top 20 nation or a middle power? Views on Australia’s position in the world’, Strategic Insights, December 2014.

6.

The Honourable Gareth Evans, ‘No Power? No Influence? Australia’s Middle Power Diplomacy in the Asian Century’ (2012 Charteris Lecture delivered at the Australian Institute of International Affairs, New South Wales Branch, Sydney, 6 June 2012).

42.

The ACICA Review, December 2013, 18.

43.

ACICA <https://acica.org.au/>.

44.

Legal Profession Act (Singapore, cap 161, 2009 rev ed) s 32-33; Ministry of Law, Singapore Government, Alternatives for Working in the Legal Field in Singapore <https://www.mlaw.gov.sg/content/minlaw/en/ practising-as-a-lawyer/alternatives-for-working-in-thelegal-field-in-singapore.html>; Law Council of Australia, Fact Sheet: Practise of Foreign Law – Singapore <http:// www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/ Country_Fact_Sheets/Asia/PFL%20Singapore_map. pdf>.

45.

Legal Profession Act (Singapore, cap 161, 2009 rev ed), s35; Singapore Academy of Law, Laws of Singapore, Overview: Ch.04 International and Domestic Arbitration

in Singapore <http://www.singaporelaw.sg/sglaw/lawsof-singapore/overview/chapter-4>. 46.

Department of Foreign Affairs and Trade, Australian Government, Trade in Services Australia 2015 <http:// dfat.gov.au/about-us/publications/Documents/trade-inservices-australia-2015.pdf>.

47.

Law Council of Australia, Submission to Department of Foreign Affairs and Trade, Trade in Legal Services under an Australia-European Union Free Trade Agreement, 2 March 2016 <http://dfat.gov.au/trade/agreements/ aeufta/submissions/Documents/law-council-ofaustralia-eufta-submission.PDF>.

48.

Department of Foreign Affairs and Trade, Australian Government, SAFTA third review – services outcomes <http://dfat.gov.au/trade/agreements/safta/Documents/ safta-third-review-services-outcomes.pdf>.

49.

Law Council of Australia, ‘Legal profession among winners in Singapore-Australia FTA review’ (Media Release, MR 1624, 6 May 2016) <https://www. lawcouncil.asn.au/lawcouncil/images/1624_--_Legal_ profession_among_winners_in_Singapore-Australia_ FTA_review.pdf>.

50.

Department of Foreign Affairs and Trade, Australian Government, Trade and investment topics: InvestorState Dispute Settlement <http://dfat.gov.au/trade/ topics/pages/isds.aspx>.

51.

Ibid.

52.

Chief Justice Robert French AC, ‘National Judiciaries in a Global Economy’ (Speech delivered at the 7th International Conference of the International Association for Court Administration, Sydney, 24 September 2014); Chief Justice Robert French AC, ‘Investor-State Dispute Settlement – A Cut Above the Courts?’ (Speech delivered at the Supreme and Federal Courts Judges’ Conference, Darwin, 9 July 2014).

53.

Chief Justice Robert French AC, ‘Investor-State Dispute Settlement – A Cut Above the Courts?’ (Speech delivered at the Supreme and Federal Courts Judges’ Conference, Darwin, 9 July 2014); Luke Nottage, ‘Investor-State Arbitration: Not in the Australia-Japan Free Trade Agreement, and Not Ever for Australia?’ (2014) 38 Journal of Japanese Law 37.

54.

Jurgen Kurtz and Luke Nottage, ‘Investment Treaty Arbitration ‘Down Under’: Policy and Politics in Australia’ (2015) 30(2) ICSID Review 465, 469, 474-6.

55.

Leon Trakman, ‘Australia’s Rejection of Investor-State Arbitration: A Sign of Global Change’ in Leon Trakman and Nicola Ranieri (eds), Regionalism in International Investment Law (Oxford University Press, 2013) 344, 372-373.

56.

Federal Court of Australia, International Programs: Activities in Indonesia <http://www.fedcourt.gov.au/ about/international-programs/activities-by-country/ indonesia>.

57.

Federal Court of Australia, Annual Report 2015-2016 <http://www.fedcourt.gov.au/__data/assets/pdf_ file/0004/39856/Annual-Report-2015-16.pdf>.

58.

Chief Justice Murray Gleeson AC, ‘Global Influences on the Australian Judiciary’ (Speech delivered at the Australian Bar Association Conference, Paris, 8 July 2002).

59.

Chief Justice Robert French AC, ‘Interacting with Diversity: Australian Judges and Regional Courts’ (Speech delivered at the Australian Institute of International Affairs – ACT Branch, Canberra, 12 March 2010).

60.

Chief Justice Robert French AC, ‘Beyond our Borders: A Judiciary and Profession Looking Outwards’ (Speech delivered at the Australian Bar Association/Victorian Bar National Conference, Melbourne, 27 October 2016).

61.

Chief Justice Wayne Martin AC, ‘Embracing Diversity in the Law: solutions and outcomes’ (Speech delivered at The Hellenic Australian Lawyers Association (Queensland Chapter), Brisbane, 10 June 2016).

62.

Judicial Council on Cultural Diversity <http://jccd.org. au/#section-about-us>.

63.

Ibid.

64.

The Hon Robert French AC, ‘Rights and Freedoms and the Rule of Law’ (Victorian Law Foundation Oration, Melbourne, 9 February 2017).

65.

Anne Twomey, Federalism – the good, the bad and the opportunities (26 April 2007) Australian Policy Online <http://apo.org.au/node/6516>.

66.

Kenneth Wiltshire, ‘Australian Federalism: The Business Perspective’ (2008) 31(2) UNSW Law Journal 583, 584.

67.

Productivity Commission, ’Access to Justice Arrangements’ (Inquiry Report No 72, 5 September 2014).

68.

Business Council of Australia, ‘Reshaping Australia’s Federation: A New Contract for Federal-State Relations’ <http://www.bca.com.au/publications/reshapingaustralias-federation-a-new-contract-for-federal-staterelations>.

69.

(2007) 230 CLR 89.

37


Clarifications on Notifiable Variations and Avoidance under Part V of the Strata Titles Act 1985 (WA) By Peter Beekink Partner, Lavan

The Strata Titles Act 1985 (WA) (Act) is a piece of largely untested consumer protection legislation notorious for imposing upon developers disclosure requirements which are vague and onerous. In Strzelecki Holdings Pty Ltd v Jorgensen1, the court addressed the following matters: •

What constitutes a ‘notifiable variation’ under s69C of the Act;

Whether the contractually agreed permitted variation in the floor area of the lot being sold can reduce a vendor’s disclosure obligation under the Act; and

Whether the termination of a contract extinguishes the purchaser’s right to avoid the contract under s69D of the Act.

This case is particularly pertinent to developers as the off-the-plan apartment market stalls and purchasers start looking for ways to avoid their contracts.

Background Mr and Mrs Jorgensen entered into an off-the-plan sale contract to purchase an apartment from Strzelecki Holdings Pty Ltd (Strzelecki) at The Oceanic Retreat in Mandurah. The use of the apartments at The Oceanic Retreat was restricted to short-term accommodation due to the tourism zoning of the property. Adverse market conditions soon made it difficult to sell short-term accommodation apartments and Strzelecki was successful in lifting the short stay restrictions on the remaining 14 apartments (out of 56) to be sold, by an amendment to the development plan. The strata plan registered at Landgate (Registered Plan) ultimately differed from the strata plan in the Jorgensens’ contract (Contract Plan) in the following respects: •

the Registered Plan, unlike the Contract Plan, contained an

38 | BRIEF APRIL 2017

endorsement which restricted only the use of those apartments already sold by Strzelecki to short stay accommodation (i.e. 42 of the 56 apartments);

Statutory provisions

a 266m2 portion of the basement car park previously shown as common property on the Contract Plan was designated as forming part of strata lot 57 in the Registered Plan; and

the area of strata lot 14, the Jorgensens’ lot, in the Registered Plan was increased from 92m2 to 98m2.

Under s69C(3), a ‘notifiable variation’ includes when the registered or proposed strata plan is varied in a ‘material particular’ or the registered strata plan differs in a material particular from the proposed strata plan.

Peter Beekink

The changes above were not notified to the Jorgensens but were subsequently discovered by them through their own investigations. The Jorgensens did not settle under the contract and Strzelecki issued a default notice, terminated the contract due to the Jorgensens’ default and subsequently began proceedings claiming damages and entitlement to the Jorgensens’ deposit. The Jorgensens claimed that they were entitled to avoid the contract in accordance with s69D(1) of the Act as Strzelecki had failed to disclose notifiable variations to them. Strzelecki denied that the changes were ‘notifiable variations’ and also claimed that the Jorgensens’ right to avoid the contract was precluded by Strzelecki’s purported termination of the contract.

Ss69C(1) and (2) of the Act require the vendor of a strata lot (built or proposed) to inform the purchaser of “full particulars of any notifiable variation” as soon as the vendor becomes aware of the variation.

If the vendor fails to notify the purchaser of a variation in a ‘material particular’ as soon as it becomes aware of that variation, the purchaser has “a right to avoid the contract by notice in writing given to the vendor before the settlement of the contract” pursuant to s69D(1) of the Act. If the purchaser elects to avoid the contract, it is entitled to a refund of its deposit paid under the contract in accordance with s69E of the Act.

Notifiable variations On appeal, the Court of Appeal of Western Australia found that: 1. the additional endorsement of the use restriction on the Registered Plan was not a ‘notifiable variation’ as it is not a difference in a ‘material particular’. This is because the use restriction was contemplated within the contract provisions and the change of use only affected the balance 14 lots which were unsold at the time of registration;


2. the increase of the Jorgensens’ lot by 6m2 (approximately 7.7%) was not a ‘notifiable variation’ as a change of 7.7% was not a change to the strata plan in a material particular. This is discussed below; and, 3. the transfer of 266m2 of common property to strata lot 57 was the only notifiable variation of which Strzelecki was obliged to notify the Jorgensens. It was a change to a material particular of the strata plan. The Court found that the Jorgensens were entitled to avoid their contract and have their deposit refunded as Strzelecki had failed to disclose the notifiable variation to the Jorgensens. This was the case notwithstanding the fact that the Jorgensens were not materially prejudiced by the transfer of 266m2 of common property to strata lot 57.

Change in the area of the strata lot – Can you contract out of your disclosure obligations? The Court found that the increase of the Jorgensens’ lot by 7.7% was not a change to the strata plan in a ‘material particular’ and, therefore, did not need to be disclosed to the Jorgensens. In coming to this conclusion, the Court placed reliance upon special condition 7 of the contract which provided that the Jorgensens: …must not make any objection, requisition or claim for compensation nor terminate this Contract in respect of any variation in the actual floor area of the property as shown on the Strata Plan as registered with [Landgate] of less than TEN PER CENT (10%) to the floor area of the Property shown on the Proposed Strata Plan.2 While variations of this extent can sometimes be considered a change in

a material particular, in this case the Jorgensens’ contract pre-approved any changes of less than 10% to the floor area of the property. Whilst it is not possible to contract out of the disclosure provisions in the Act,3 the Court explained that the variation provision in a contract is relevant in determining the “objective significance of the change” which the parties have agreed to in the contract. The Court referred to Harvey Fields4 where a variation of 7.34% was considered material and, therefore, constituted a notifiable variation as the contract in that case provided for a 5% threshold for changes to the floor area. The contract provision authorising 10% variations to the floor area of the property was clearly beneficial for the seller in this case. However, caution should be exercised by developers in adopting such a robust variation provision in contracts to which the unfair contract terms provisions of the Australian Consumer Law may apply.5 There is a risk that such a provision may be considered unfair on the basis that it goes beyond what is reasonably required to protect the vendor’s legitimate business interests, with the result that the provision could be declared void.

Does termination under the contract prevent exercise of rights under the Act? Strzelecki also argued that it had already validly terminated the Contract and as such, there was no contract for the Jorgensens to avoid. However, both the trial judge and the Court of Appeal found that Strzelecki’s purported termination of the Contract, albeit valid, did not preclude the Jorgensens from exercising their statutory right to avoid the Contract under s69D of the Act.

Once the Jorgensens exercised their right to avoid the Contract, the “rights and liabilities of the parties were no longer to be determined by reference to the Contract. From the point of avoidance, the parties’ rights and obligations were to be determined as if they had never entered into the Contract”.6 From the point when the Jorgensens’ right to avoid the Contract was exercised, the Jorgensens were no longer liable to pay damages claimed by Strzelecki for breach of the terms of the Contract. The Jorgensens were also entitled to the refund of their deposit.

Conclusion This case illustrates the extent and pervasiveness of the protections afforded by the Act to purchasers. In particular, it highlights the importance of developers being vigilant in notifying purchasers of any variations which may be considered to be ‘notifiable variations’ under s69C of the Act. As was the case here, the cost of failing to comply with the obligations under s69C of the Act can mean that the entire contract is avoided. As demonstrated in this case, developers will also benefit from incorporating a realistic objective threshold in relation to potential variations to strata lot areas. Clear drafting in this respect will set an “objectively significant threshold” which may aid a court in determining whether a certain variation constitutes a ‘notifiable variation’ that is required to be disclosed to a purchaser. NOTES: 1.

[2016] WASCA 177.

2.

Above n1 at [64].

3.

Strata Titles Act 1985 (WA) s70A.

4.

Harvey Fields Private Estates Pty Ltd v 33 Malcolm Street Pty Ltd [2012] WASC 218.

5.

Competition and Consumer Act 2010 (Cth) sch 2 pts 2,3.

6.

Above n1 at [101].

39


Four Steps to Having an Effective Mental Health Conversation The Mental Health Project

With 1 in 6 of Australia's working population experiencing a mental health condition at any one point in time, it is highly likely that at some point in your career you will manage or work with someone who has a mental health condition.

One of the most positive and powerful actions you can take when someone is struggling with their mental health is to have a conversation with them. However, it can feel quite daunting and overwhelming to have this type of conversation.

First, remember not to worry about saying the wrong thing or getting the conversation perfect. You are making a positive difference just by having the conversation.

“I am glad we could meet up Sarah. I hope it is okay to checkin with you. It is just that I have noticed a few things about you lately that made me just want to touch base, see how you are going, and if there is anything I can do to help. Is that okay with you?”

Then, follow the steps below to help you have a conversation that will help make a real difference.

1. Get ready for the conversation

“Thanks for reaching out to me Alistair to let me know that things are rough for you right now. I can definitely help. Let’s talk more about what’s going on for you.

Maintain a solid level of knowledge and skills about mental health conditions to feel comfortable that you are able to engage in a conversation when required. Ensure you are aware of your organisation’s relevant HR policies and mental health support processes available. Ensure the conversation is being held in a location that supports the privacy of the person and allows for adequate time. If the conversation is initiated by someone else, this may require a suggestion to change location or clearing your schedule.

3. Explore the situation •

There is no right or wrong way of having a mental health conversation. Just be yourself and be driven by your genuine concern.

It is important to engage in the conversation in a calm and nonjudgmental fashion. Focus on

40 | BRIEF APRIL 2017

The focus here is on listening and asking effective questions to help you to get a thorough understanding of the situation. Good basic listening skills are about: o Not interrupting. o Regular eye contact and general focus on the individual. o Demonstrating “minimal responding” to indicate understanding which are things like nodding your head, and saying things like “I see”; “I understand”; “Really”.

2. Start the conversation •

Here are a few opening statements below that will help you get off to a positive start: “Thanks for your time Matthew. I’ve noticed you have not been your usual self lately. I just wanted to check in that you are okay?”

So, how do you have an effective conversation with someone about their mental health?

o “How do you feel your work is impacted by this?”

listening, a relaxed body posture, and summarising your understanding of what was shared with you.

Examples of effective questions are: o “Can you help me understand your perspective on this?”

o “What support would you like from me and the organisation?”

4. Identify the next steps •

Once all of the issues have been explored, it is important to respond by identifying the next steps. This is best done through exploring options with the individual and coming to an agreement together.

Options to most helpfully respond to an individual who presents with a mental health condition may include: o Providing a period of leave. o Referral to additional support such as your Employee Assistance Program (EAP). o Implementing some practical workplace adjustments. o Provide reassurance and encouragement that the person has been courageous and done the right thing in sharing.

Finally, during a mental health conversation, a person may become distressed or share that they are suicidal. If the person becomes upset or angry, it is best to acknowledge the emotion as you see it and ask how the person would like to proceed. If someone shares suicidal thinking or intention, remain calm and explore the individual’s suicide intention directly and nonjudgmentally. Listen and take all the time it needs. Gain a commitment from them to seek support and provide the details to link them to appropriate services. If you feel someone is of an imminent threat to themselves, it is best to immediately call Emergency Services on 000. Remember, if you’ve noticed someone isn’t their usual self, having a conversation


Remember, just because you have reached out to someone about their mental health, it doesn’t mean your support is wanted. If this happens: •

Let them know you don’t want to intrude on their personal life – only that you want to see if you can provide any practical support.

That you are available in the future if they need you.

Provide information to link them to EAP or other support services available.

with them to understand their circumstances, get them to seek support and provide some practical assistance in the workplace is a helpful thing to do. And finally, look after yourself. Ensure that you take some time out or debrief with someone afterwards (whilst respecting the other person’s privacy), particularly if the conversation has been difficult.

If you like what you have read and are interested in finding out more we would love to hear from you to find out how we can help you with your mental health and wellbeing eLearning requirements. Connect with us via phone or email and we can discuss your needs further and provide you with a no cost initial consultation and course demonstration either at your office or online.

The Mental Health Project

t: +61 8 6102 0706 e: info@thementalhealthproject.com.au w: thementalhealthproject.com.au

We are the world's first company dedicated to digital solutions for mental health and wellbeing in the workplace. The Mental Health Project is revolutionising the way that mental health and wellbeing training is delivered. We provide organisations globally with a proactive and preventative approach to mental health and wellbeing through evidence based, high impact, innovative, and engaging eLearning courses and support resources. Nothing inpires us more than helping you create a mentally happier and healthier workplace.

Need Mental Health Assistance? If you or someone you know needs help, call LawCare WA on 1300 361 008; LifeLine on 13 11 14; Suicide Call Back Service on 1300 659 467; MensLine Australia on 1300 789 978; Kids Helpline on 1800 551 800.

41


Motor Vehicle (Catastrophic Injuries) Act 2016 This paper was first delivered at a Law Society CPD Seminar on Tuesday, 13 September 2016 and is now available online at elearning.lawsocietywa.asn.au Geoffrey Bourhill

By Geoffrey Bourhill Barrister, Francis Burt Chambers

Introduction

Definitions

The second reading speech in which the Motor Vehicle (Catastrophic Injuries) Bill 2016 was introduced describes the purpose of the Bill to be:

Section 4 of the Act defines motor vehicle accident as an incident ‘caused by or arising out of the use of a motor vehicle’. S4(2) defines an incident as being:

….. to establish a scheme to provide for the lifetime care and support of certain people catastrophically injured in motor vehicle accidents in Western Australia, who are not able to successfully claim under the existing Compulsory Third Party (CTP) insurance scheme. The Motor Vehicle (Catastrophic Injuries) Act 2016 (the Act) was assented to on 14 April 2016, and took effect from 1 July 2016. Prior to the introduction of this scheme, the only entitlement to compensation for personal injuries sustained in a motor vehicle accident was governed by the common law. Western Australia and Queensland (which introduced their respective Catastrophic Claims Scheme on the same day), were the last Australian states to implement a scheme of this type in accordance with the directive of the National Productivity Commission.

42 | BRIEF APRIL 2017

caused by or arising out of the use of a motor vehicle if and only if it results directly from the driving of the motor vehicle or the motor vehicle running out of control, or a collision or action to avoid a collision with the motor vehicle, whether the motor vehicle is stationary or moving. Those words are not used in any other legislation for similar schemes in Australia. The only other scheme that seems to use the words ‘results directly from’ is the Tasmanian Compulsory Third Party Scheme, which is not a ‘catastrophic’ scheme. The new Queensland scheme uses different wording to describe what it covers. In a not uncommon scenario, we have a scheme brought in to meet certain minimum benchmark requirements issued by the Federal Treasury with each State choosing different wording. The Scheme also provides cover in circumstances where, under s4(3), "if a person renders assistance or attempts to render assistance at the scene of a motor vehicle accident and, as a result of doing so, suffers a bodily injury, the

injury is taken to have resulted from the accident." That is an extension which does not currently exist under the CTP scheme, because under the CTP scheme, a negligently caused injury is only covered if it is directly caused by, or by the driving of a vehicle, not if injury occurs while providing assistance at the scene of an accident. To date there has been one decision that looked at the meaning of ‘results directly from’ in the context of sustaining an injury under the CTP scheme, (although not catastrophic scheme). Motor Accidents Insurance Board v Wright1 was a case regarding the death of a woman following a motor vehicle accident. She developed peritonitis some six or so months after the accident and died from the peritonitis. The issue was whether there was a connection between the accident-caused injuries and the peritonitis, such that it could be said the death (‘injury’) resulted directly from the motor vehicle accident. The Motor Accidents Insurance Board, was the defendant in those proceedings and argued that because there was a temporal delay between the accident and the death (which was the injury for which compensation was sought), it could not be said to have directly resulted from


the injury. Pearce J concluded that the word ‘directly’ did not require a direct and immediate connection in terms of a close temporal connection. He said: I think that the provision is to be interpreted to require that there should be a close or significant connection between the motor accident and the death. That is that the accident played a close or significant role in bringing about the death (and for death, read catastrophic injury). The Board submitted that something more than the ‘but for’ test for causation is required. I agree. However, that death does not come in time immediately after the accident, that there may have been some other step between the accident and the death, or that there may be concurrent causes, does not mean that the death cannot be the direct result. No more general test can or should be formulated. Once the principles I have enunciated are applied, the question will be one, depending on the facts, and the answer will be one on which reasonable minds may differ. The definition of a ‘motor vehicle injury’ is a bodily injury to a person that results from a motor vehicle accident.

What is Not Covered? A motor vehicle injury is not covered by the Scheme if: •

the owner or driver of a motor vehicle has, as a consequence of the driving of that motor vehicle, or of that motor vehicle running out of control, incurred liability for negligence in respect of the injury. (It can reasonably be inferred that the expression ‘incurred liability for negligence’ means that there has been a judgment against the insured driver. I do not believe this exclusion would apply where there has simply been an admission of negligence. I think ‘incurred liability’ requires there be a judgment); a motor vehicle injury results from a motor vehicle accident which occurs on private land, unless one vehicle involved is the subject of a contract under the Motor Vehicle (Third Party Insurance) Act, or registered under a CTP scheme in another State or Territory. (The Act provides that someone who is injured by a vehicle from another jurisdiction which is the subject of a compulsory third party cover in that other jurisdiction can claim under this scheme and then the Commission can claim back the money from the insurer in that other

scheme, hence the reason why a vehicle registered in another State can still result in compensation being paid if the accident is on private land);

being compensated under this Scheme for gratuitous services.

a motor vehicle injury results from a motor vehicle accident involved in a motor sports event. (an accident on a race track or on an open road that has been classified as being used for the purposes of a race track under the Road Traffic Act);

A person is eligible to be a participant in the CASS if they suffer a relevant motor vehicle injury that is a catastrophic injury.4

a motor vehicle injury results from an act of terrorism.2

The Scheme The Act creates the Catastrophic Injury Support Scheme (CASS), which is the central agency, that operates under the Act and provides care and assistance. The purpose of the Scheme is to provide lifetime care and support for people catastrophically injured in motor vehicle accidents. The CASS provides: (1) The treatment, care and support needs of a person are the needs of the person for or in connection with any of the following — (a) medical treatment (including pharmaceuticals); (b) dental treatment; (c) rehabilitation; (d) ambulance transportation; (e) respite care; (f) domestic assistance; (g) attendant care services; (h) aids and appliances; (i)

prostheses;

(j)

education and vocational training;

(k) home and transport modification; (l)

any other kinds of treatment, care, support or services that are approved by the Commission (either generally, for specified classes of cases, or for a particular person).3

Schedule 1 of the Act provides a list of exclusions, which are for the most part services that a claimant would require in any event, irrespective of whether or not they suffered the catastrophic injury. There is a specific provision in the Act that excludes child care that would otherwise be required, and so it excludes normal, everyday care and attention. It also excludes any services provided gratuitously. There is no such thing as

Who can Participate?

You cannot participate in this Scheme if you have been awarded damages in respect of future care and support needs for the same injury. So, at any stage in the future, if you have already received damages, you cannot come back and try and get into this Scheme. Applications and acceptance to participate must be made within three years of the relevant accident but, not surprisingly, that can be extended in exceptional circumstances. All of the applications must be made to the Insurance Commission. The applications are considered and either accepted or rejected by the Insurance Commission. A claimant can be accepted either as an interim or a lifetime participant. An interim participant accepted in the first instance is for a two-year period. Whilst it does not expressly say, the obvious inference is that a claimant would be accepted as an interim participant if he/she had what, on all the medical evidence, is a catastrophic injury but there is some question as to whether or not it is going to be a permanent catastrophic injury. If it becomes apparent that the injury is going to remain at a catastrophic level, then the claimant can transition to a lifetime participant. A claimant can be suspended from the Scheme in certain circumstances. For the most part, those circumstances are that the claimant does not comply with the directions and the treatment that is offered and properly provided.

Catastrophic Injuries The first threshold issue is that the injury must have occurred after the 1st of July 2016. Catastrophic injuries fall into five categories. The categories are: •

Spinal Cord Injury – ASIA Impairment Score A – D;

Traumatic Brain Injury – •

either or both of post-traumatic amnesia for 7 days + and/ or significant brain imaging abnormality or head injury with coma 1 hr +; and

A score of 5 or less on any item on FIM™ or Wee FIM™ due to the injury; 43


Amputations –

Full thickness to 40% of body if > 16yo, 30% if < 16yo;

a call for a review of either, they are divided into medical and non-medical decisions. Medical decisions are reviewed by an expert review panel of medical practitioners. Non-medical decisions are reviewed by a review officer who is appointed by the Insurance Commission. Up until that point no legal costs are paid for any part of that process.5

Inhalation burns causing longterm respiratory impairment; or

The eligibility decisions are divided into four substantive issues. They are:

Full thickness to hands, face or genitals; and

whether an incident that results in an injury is a motor vehicle accident;

Requisite score on FIM™ or WeeFIM™.

whether under section 5 a motor vehicle injury is a motor vehicle injury to which the Act applies;

whether injury results from a motor vehicle accident or is attributable to some other condition, event, incident or factor; and

whether a motor vehicle injury is a catastrophic injury.6

1 major or more than one lessmajor amputation or equivalent;

Permanent Blindness;.

Burns -

American Spinal Injury Association (ASIA) is a standard neurological classification of spinal cord injury. An injured person can be assessed by reference to that scale and out of five impairment scale ratings of A to E, anything from A to D will be classed as a catastrophic injury, being a significant complete or incomplete level of neurological damage to the spine. FIM stands for Functional Impairment Measure. There is a FIM instrument. It is a basic indicator of severity of disability. The functional ability of a patient changes during rehabilitation and the FIM instrument is used to track those changes. Function change is a key outcome measure of rehabilitation episodes. There are 18 items under these test measures, divided into 13 motor items and five cognitive items. The lowest score a claimant can get is 18, being 1 in each category. The highest a claimant can get is 126. If the claimant gets a score of 5 or less on any item because of a brain injury, then it is classed as catastrophic. The WeeFIM™ is a variant of the measure designed for children.

Admission to the Scheme Anyone involved in a motor vehicle accident who appears to have had a catastrophic injury will normally be treated in a hospital, generally a public hospital. Within the public hospital system are professionals familiar with the Scheme who will assist in assessing the necessity of a particular patient being admitted into the Scheme. The matter would be referred to the Insurance Commission and the Insurance Commission will assess both the claimant’s eligibility to participate in the scheme, and the appropriate treatment that the claimant be allowed.

Dispute Resolution At first instance, any decision of either type will, if disputed, be reviewed by the Insurance Commission. If there is

44 | BRIEF APRIL 2017

In the context of those eligibility decisions, a ‘medical decision’ means a decision as to what is a catastrophic injury, or whether the injury is caused by the motor vehicle accident, (if that decision does not involve a question of law or a question of mixed fact and law). Non-medical decisions are a decision as to whether the cause of the injury is a motor vehicle accident, or whether it is a motor vehicle injury if the decision involves a question of law or a question of mixed fact law. Put simply, it is a medical decision if the decision relates to a medical issue. It is a non-medical decision if it is a matter of law or mixed fact and law. The significance of that distinction comes when one considers appeals from review. Review decisions as to whether an incident is a motor vehicle accident, or whether an injury is a motor vehicle injury to which the Act applies, can be appealed to the District Court as of right. Any other review decision, (e.g. whether the injury is caused by the motor vehicle or whether it is a catastrophic injury), can only be appealed with leave of the District Court. The District Court can only grant leave if the dispute involves a question of law.7 Therefore, if the dispute is only as to a question of fact, there is no right of appeal to the District Court. Further, there is no right of appeal from a review of a treatment, care and support assessment. Once a medical panel has assessed a decision about treatment, care and support, that is a final decision. In terms of any matter that goes to the District Court, the District Court rules apply and a costs issue would follow from that, including cost rules.

Interaction with Common Law The Act does not apply if the owner or driver of the vehicle that caused the injury is liable for negligence. Both the Motor Vehicle (Third Party Insurance) Act and the Civil Liability Act are amended by the Act in question, so that a participant in the CASS cannot claim damages for any treatment, care and support needs that they received or could have received under that Scheme. That is important if are acting for somebody in a damages claim who has been in the Scheme, and either has been or could have been paid benefits under the Scheme. They cannot claim damages for those same needs. The consequence of this is that if you are consulted by somebody who is in the Scheme, but for some reason is not getting paid some of the items listed as being compensable under the Scheme, then it would be very sound to advise them that they should request payment for that item, because they will not be paid that as part of the damages claim. A claimant cannot claim damages for future care and support needs in a claim that is covered by the Civil Liability Act. Therefore a claimant with a catastrophic injury that falls under the Scheme (but who could have an entitlement to damages that would otherwise be governed by the Civil Liability Act), would be poorly advised to pursue a claim for damages rather than compensation under the Scheme. The other amendment to the Motor Vehicle (Third Party Insurance) Act which is very important in the assessment of catastrophic injuries at common law is that, in terms of the assessment of damages for all treatment, care and support needs, there is no reduction for contributory negligence.8 So, notwithstanding how the accident occurs and notwithstanding that there may be a reduction of non-pecuniary loss and economic loss because of contributory negligence, the damages for all other care needs will not be reduced because of contributory negligence, because obviously they would be compensated under this Scheme in any event. NOTES: 1.

[2015] TASSC 1.

2.

Motor Vehicle (Catastrophic Injuries) Act 2016 – s5.

3.

Motor Vehicle (Catastrophic Injuries) Act 2016 – s6.

4.

Ibid., s8.

5.

Motor Vehicle (Catastrophic Injuries) Act 2016 – s17 and Regulation 64 (3).

6.

Ibid., s24.

7.

Ibid., s27.

8.

Motor Vehicle (Catastrophic Injuries) Act 2016 – s46 (which introduces s3 FB of Motor Vehicle (Third Party Insurance) Act.


Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7 By Alex McGlue Senior Associate, Lavan

Overview The High Court in Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7 (Southregal) held by a 4:1 majority that under Part 11 of the Planning and Development Act 2005 (WA) (PD Act), a person who has acquired reserved land cannot obtain compensation for injurious affection with respect to the reservation. The High Court in arriving at this decision overturned the previous decisions of Beech J in the Supreme Court at first instance and Martin CJ, Newnes and Murphy JJA in the Court of Appeal, with the Western Australian judges all having taken the view that a purchaser of reserved land could obtain compensation for injurious affection, so long as no compensation had already been paid to the previous owner. In light of the Southregal decision, landowners and their advisers need to exercise a heightened degree of diligence and caution in identifying and exercising compensation rights in relation to reserved portions of privately owned land. An absence of such diligence and caution may see the State acquire title to privately owned land for public purposes without being required to pay consideration or compensation.

Part 11 of the PD Act The basic concept underpinning Part 11 of the PD Act is that when a planning authority reserves land under a planning scheme, the authority is to compensate the landowner for any reduction in value. Those provisions of Part 11 of the PD Act that were directly considered by the High Court in Southregal are sections 173, 174 and 177. Section 173(1) provides: Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to claim compensation in respect

of the injurious affection from the responsible authority. An interpretation issue with respect to section 173(1) is whether it refers only to the owner of land at the time a planning scheme is made or amended or whether it refers to any owner of reserved land at any time. Section 174(1) provides: …land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if – (a) that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose; or (b) the scheme permits development on that land for no purpose other than a public purpose; or … The question of whether land is injuriously affected is usually quite straightforward. Section 177(1) sets out the triggers for when compensation may be payable and provides: Subject to subsection (3), when under a planning scheme any land has been reserved for a public purpose, no compensation is payable by the responsible authority for injurious affection to that land alleged to be due to or arising out of such reservation until – (a) the land is first sold following the date of the reservation; or (b) the responsible authority – (i)

refuses an application made under the planning scheme for approval of development on the land; or

(ii) grants approval of development on the land subject to conditions that are unacceptable to the applicant.

The major controversy in the Southregal case was whether, once a first sale has occurred following reservation, the effect of section 177(1) is that: 1. the seller is the only person entitled to claim compensation for injurious affection; or 2. if the seller does not make a claim, a subsequent owner may make a future claim for compensation for injurious affection in the event of a refused or unacceptably conditioned development application. Section 177(2) sets out who compensation for injurious affection is payable to and provides: Compensation for injurious affection to any land is payable once under subsection (1) and is so payable – (a) under subsection (1)(a) to the person who was the owner of the land at the date of reservation referred to in subsection (1)(a); or (b) under subsection (1)(b) to the person who was the owner of the land at the date of application referred to in subsection (1)(b). An argument advanced by the claimants in Southregal was that because section 177(2)(b) refers to somebody other than the owner of land at the date of reservation, it supports the interpretation that a subsequent owner of land may be able to claim compensation for injurious affection in appropriate circumstances.

The Temwood decision The High Court had previously considered equivalent provisions to Part 11 of the PD Act in the case of Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 (Temwood). Unhelpfully however, the High Court decision in Temwood did not conclusively answer the question of whether a purchaser of reserved land is able to claim compensation for injurious affection, because:

45


1. two judges answered this question in the negative; 2. two judges answered this question in the affirmative; and 3. the fifth judge did not answer the question at all. Unsurprisingly, since the Temwood decision was handed down, the Western Australian Planning Commission (WAPC) policy on compensation claims has been to follow the conclusions of the two judges who found that purchasers of reserved land cannot claim compensation for injurious affection. The uncertainty left from the Temwood decision would undoubtedly have been a significant factor in the decision of the High Court to grant special leave to hear the appeal in Southregal.

Facts in the Southregal case The claimants in the Southregal case had acquired large parcels of land to the south of Mandurah. Prior to settlement, parts of the land located near the estuary were reserved for “regional open space” under the Peel Region Scheme. The sellers of the land never claimed compensation for injurious affection under Part 11 of the PD Act and the claimants had acquired their land on the understanding that they may be entitled to claim compensation for injurious affection in the event of a refused or unacceptably conditioned development application with respect to the reserved portion. Development applications with respect to the reserved portions of the land were refused by the WAPC and the claimants subsequently claimed compensation from the WAPC for injurious affection under Part 11 of the PD Act. The WAPC denied that there was any compensation entitlement, on the basis that the claimants had acquired the land with the reservations already in place.

Supreme Court and Court of Appeal It was held in both the Supreme Court (General Division) at first instance and in the Court of Appeal that a purchaser of reserved land could be entitled to compensation for injurious affection in appropriate circumstances. The reasoning for this conclusion included the following: 1. section 173(1) does not specifically say that it is only the owner at the date of reservation who is entitled to compensation; 46 | BRIEF APRIL 2017

2. section 177(1) in setting out the triggers for claiming compensation for injurious affection does not contain the words “the first to occur of”; 3. section 177(2)(b) contemplates compensation being paid to somebody other than the owner at the date of the reservation; 4. the extrinsic materials and Hansard extracts are equivocal on the question of whether a purchaser of reserved land may be entitled to claim compensation; and 5. ambiguities in compensation statutes should ideally be resolved in favour of the claimant.

High Court Keifel and Bell JJ and Gageler and Nettle JJ delivered separate joint judgments. The reasoning of Keifel and Bell JJ focused primarily on the words of the statutory regime and can be summarised as follows: 1. section 173(1) refers only to a person who is the owner of land when a reservation is created; 2. section 177(1) must be read such that once one of the triggering events has occurred, no compensation may be claimed if one of the other triggering events occurs in the future; 3. the reference in section 177(1) (b) and 177(2)(b) to somebody other than the owner at the date of reservation is to cover the scenario where a prospective purchaser submits a development application over reserved land to determine development potential before agreeing to purchase (it is unclear how often, if ever, this scenario would actually occur in reality); 4. the inclusion of section 177(2) (b) in the statutory regime was “surplasage” and should not be given a literal interpretation; and 5. the extrinsic materials and Hansard extracts from historical amendments to the legislative regime do not expressly refer to compensation entitlements being extended to purchasers of reserved land, which would have been expected if this were the intention of Parliament. Gageler and Nettle JJ on the other hand did not consider the words of the statutory regime in any great detail and instead focused primarily on the legislative history behind Part 11 of the PD Act. Gageler and Nettle JJ stated at [69]:

Consideration of a statutory provision’s legislative history, and particularly the provision’s predecessors, serves to illuminate the meaning most apt to be attributed to it, especially where its meaning appears equivocal. In summary, Gageler and Nettle JJ reasoned that: 1. up until 1986, the statutory predecessors to Part 11 of the PD Act made it clear that it was only an owner of land at the date of reservation who could claim compensation for injurious affection; 2. it was the 1986 amendments to the legislative regime that introduced the reference to “the owner of the land at the date of application” into the predecessor to section 177(2)(b); 3. if the 1986 amendments were viewed by Parliament as being a fundamental change that expanded the scope of potential claimants, the significance of this change would have been evident in Hansard, but instead the Hansard extracts indicate that Parliament viewed this as being a comparatively minor amendment to the legislation; and 4. Part 11 of the PD Act should accordingly be read as confining compensation to the owner at the date of reservation. Keane J delivered the sole dissenting judgment in the High Court and delivered reasons in favour of the claimants for reasons largely consistent with those of the Supreme Court (General Division) at first instance and the Court of Appeal. As the High Court is the final court of appeal in Australia, and since the composition of justices sitting on the High Court changes very slowly, the majority decision in Southregal must be taken as being a binding and legally correct reading of Part 11 of the PD Act moving forward (unless legislative amendments are made by Parliament).

High Court reasoning on section 173 In relation to the general compensation provision in section 173, Keifel and Bell JJ held at [31]: No reference is made in s173(1) to a person who purchases land which is already affected by a reservation. It does not suggest that anyone but a landowner at the time of reservation will be entitled to compensation. A purchaser does not fall within the description of a person whose land is affected “by the making” of a


planning scheme. Gageler and Nettle JJ arrived at a similar view of section 173 based on their review of the historical predecessors to Part 11 of the PD Act. The conclusions of the majority on section 173 are somewhat interesting, in the sense that section 173 does not actually refer specifically to an owner at the date of reservation and on a literal reading, one may reasonably think that a subsequent purchaser of reserved land is still a person “whose land is injuriously affected by the making or amendment of a planning scheme”.

committing to a purchase. The difficulty with this proposed explanation regarding the language in section 177(1)(b) is that in practice, a developer would presumably never submit a speculative development application over land that they do not own and that has already been reserved and can be used for no purpose other than a public purpose. The scenario of a developer submitting a speculative development application over reserved land that they do not own was not addressed in any significant detail by the parties in their submissions.

High Court reasoning on section 177(1)

High Court reasoning on section 177(2)

In relation to the triggering event provision in section 177(1), Keifel and Bell JJ held at [33]:

In relation to the provision in section 177(2) dealing with the person to whom compensation is to be paid, Keifel and Bell JJ stated at [44]:

It appears to us also to follow from the use of the disjunctive “or” that once one of the three events triggers a claim for compensation, the later occurrence of the other two events cannot trigger a further claim…the reference to compensation being “payable only once” supports this construction. Further, Keifel and Bell JJ held at [34]: The respondents submit that this is not a correct construction of s177(1) and that it requires the words “the first to occur of” to be read into s177(1). That submission should not be accepted. It is not necessary to read words into s177(1) for it to operate in the way described. In respect of the issue of why section 177(1)(b) refers to the “applicant” whereas section 177(1)(a) refers to the “owner”, Keifel and Bell JJ reasoned that this must be to accommodate the scenario where a potential purchaser applies for planning approval with the landowner’s consent in order to gauge development potential prior to a potential sale. Gageler and Nettle JJ also made reference to this scenario in their joint judgment. Keifel and Bell JJ stated at [40]: It is not difficult to understand why these provisions do not assume that only an owner of land could, or would, apply for development approval. Not all landowners could afford to develop their land or wish to bear the cost of an application to develop, particularly over land the subject of a reservation for public purposes. A developer, however, might wish to investigate the likelihood of approval before

It does not seem to us to matter unduly that s177(2)(b) is not really necessary. Further, Keifel and Bell JJ held at [55]: Lastly, whilst it must be accepted that words chosen by the legislature should be given meaning and endeavours should be made to avoid them being seen as redundant, they should not be given a strained meaning, one at odds with the scheme of the statute. Moreover, it has been recognized more than once that Parliament is sometimes guilty of “surplusage” or even “tautology”. The possibility that Parliament may not have appreciated that the reference in s177(2)(b) was not necessary, and was liable to confuse, is not a reason for giving it a literally interpretation. The conclusions in this regard arguably depart from the traditional approach to statutory interpretation from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, which says that all words within a statute should be given meaning. A consequence may be that following the decision in Southregal, lower courts may be more willing to disregard particular words, phrases or provisions in a statute, if it is considered necessary to achieve a harmonious outcome in line with what the court considers to be the practical outcome the statute has been designed to achieve.

Lessons from Southregal for potential purchasers of reserved land The High Court decision in Southregal

reinforces the importance of purchasers undertaking proper due diligence and taking the presence of reservations into account when negotiating a purchase price. Importantly, a potential purchaser cannot negotiate a purchase price on the assumption that they may be entitled to make a claim for compensation from the WAPC under Part 11 of the PD Act following the sale. Purchasers should of course always obtain a copy of a reservation certificate under the relevant region planning scheme from the WAPC as part of their due diligence enquiries. Purchasers should also consider as part of their due diligence enquiries whether there are any known reservation proposals that may potentially be gazetted prior to entering into a sale contract or settlement.

Lessons from Southregal for sellers of reserved land In light of the Southregal decision, purchasers of land are likely to become more diligent in factoring reservations into purchase price, so sellers of reserved land (which is being sold for the first time following reservation) must also be diligent in terms of exercising their compensation rights. Importantly, when reserved land is sold, there will not ordinarily be any notification on the title or similar to advise the seller of their potential compensation entitlement under Part 11 of the PD Act. In many cases, reserved land would be sold without the seller having made a claim for compensation to the WAPC (section 178 prescribes a limitation period of 6 months in which a claim must be made). If a seller has not made a claim for compensation within 6 months of the sale, then following Southregal, the WAPC would have reserved privately owned land without having to pay compensation to anybody for the reduction in value. Advisers and consultants must ensure that their clients who sell reserved land for the first time following reservation are aware of and exercise their compensation rights.

Lessons for owners who submit development applications Following the decision in Southregal original owners of reserved land who have development applications refused or unacceptably conditioned should make sure that claims for compensation

47


are made promptly following the development application being determined, because there will likely be no right for compensation in the event of a subsequent sale or development application. This is because Keifel and Bell JJ adopted a very strict reading of section 177(1), the effect of which is that if one of the three triggering events occurs, then the subsequent occurrence of one of the triggering events cannot give rise to a claim for compensation, even where no compensation has yet been paid. Practically, this means: 1. if prior to the first sale, a development application is refused or unacceptable conditioned, the owner of land must claim compensation for injurious affection within 6 months of the determination; and 2. if no compensation claim is made, then the right to compensation is lost and is not revived when the first sale of the reserved land occurs. This is of critical importance to town planners who are advising landowners on development applications, as such town planners will need to make sure to inform their clients of their compensation rights in the case of a refusal or an unacceptably conditioned approval, in order to avoid all compensation rights being lost.

Lessons for subsequent owners of reserved land The Southregal decision confirms that a purchaser of reserved land cannot claim compensation for injurious affection under Part 11 of the PD Act. Such a purchaser will however remain the legal owner of the reserved land until such time as that reserved portion is formally transferred to the WAPC or the State. If a purchaser has acquired reserved land in circumstances where the reservation has been taken into account in determining purchase price, in many cases (but not all), the purchaser will not have suffered any loss as a consequence of the reservation. Importantly, the decision of the High Court in Southregal does not change the law surrounding compensation for compulsory acquisition of land. If a person has acquired reserved land and the State subsequently needs to compulsorily acquire that reserved land, despite being a successor in title, the landowner would be entitled to compensation under section 241 of the Land Administration Act 1997 (WA) (LA Act), which would include being

48 | BRIEF APRIL 2017

compensated for the market value of the reserved portion, calculated on the hypothetical assumption that the impact on value of the “public work” is discounted. In the case of a “regional open space” reservation, a compulsory acquisition could potentially see the landowner compensated on the hypothetical assumption that the reserved land had its former zoning, which may be something such as residential. In light of the narrowing of potential compensation rights flowing from the Southregal decision, landowners and developers should now consider taking firmer stances in respect of conditions of planning and subdivision approval that require reserved portions of land to be ceded to the State free of cost. In many cases, a condition that requires a reserved portion of land to be ceded to the State free of cost will be reasonable and acceptable to the developer (the High Court recognised as much in Temwood). In any other cases however, a developer may be able to challenge the validity of a condition of planning or subdivision approval that requires a reserved portion of land to be ceded free of cost, for example, by seeking a review of that condition in the State Administrative Tribunal. As endorsed by the High Court in Temwood, in order for a condition of planning or subdivision approval to be valid, the condition must have a proper planning purpose, the condition must relate to the development in question and the condition must be reasonable. If a developer successfully challenges a condition that purports to require reserved land to be ceded free of cost, then in order for the State to acquire title to that reserved land, it would have to either: 1. acquire the reserved land from the developer at market value; or 2. compulsorily acquire the reserved land and pay the developer compensation under the LA Act.

Opportunity for original owners of reserved land The majority of the High Court in Southregal went to great lengths in hypothesising that the statutory purpose of section 177(2)(b) is to cover the scenario where an applicant who does not own reserved land makes an unsuccessful development application with respect to the land with the consent of the owner. The recognition of this scenario by the

High Court arguably creates opportunities for original owners of reserved land who do not have the funds or expertise to submit a sophisticated development application to trigger compensation under section 177(1)(b). In particular: 1. such a landowner could enter into an agreement with a developer whereby the developer will, with the landowner’s consent, submit a “good faith” development application over the land, including the reserved portion; 2. in the likely event that the development application is refused for contemplating development on reserved land, the landowner would be entitled to claim compensation under Part 11 of the PD Act; and 3. having regard to section 179 of the PD Act, the compensation entitlement would be expected to be in the order of the difference between the value of the land as reserved and the value of the land had the developer’s development proposal been allowed. Such arrangements could potentially unlock significant compensation entitlements which may not otherwise have been sought by the landowner. Developers could potentially seek out such opportunities and enter into agreements with the landowners for a share of any compensation money received at the end of the process. Having regard to section 177(3), any such development applications would need to be made in “good faith”, which is taken to mean that the developer would implement the development if approved.

Conclusion The decision of the High Court in Southregal resolves the uncertainty surrounding Part 11 of the PD Act following the Temwood decision and limits the scope of potential claimants for compensation for injurious affection. The decision also confirms a particular interpretation of Part 11 of the PD Act, which should cause all landowners and their advisers to actively reconsider whether they have potential compensation claims for injurious affection and how those claims could potentially be triggered and argued moving forward. Time will tell how the landscape of compensation claims under Part 11 of the PD Act will change as a consequence of the Southregal decision.


YOUNG LAWYERS CASE NOTES Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Sutton Investments Pty Ltd & John Henry Reyburn v Realistic Investments Pty Ltd & Jaemal Pty Ltd [2017] WASCA 14 This Court of Appeal decision allowing an appeal against summary judgment serves as a useful reminder of the importance of intention when executing an option to renew. Sutton Investments was a tenant and its director, John Reyburn, was a guarantor pursuant to a lease agreement with the landlords, Realistic Investments and Jaemal. The term of the lease was to expire on 30 June 2015 and contained an option to renew for three more years. In January 2015, Mr Reyburn had a discussion with the managing agent to raise his concern that the current rate of rent was too high and whether the option would be exercised. Mr Reyburn later forwarded to the agent an executed notice to exercise the option and an acknowledgment to act as guarantor. On their own, these documents clearly and unequivocally demonstrated that Sutton Investments wished to exercise its option to renew. However, a “with compliments” slip was enclosed and contained the following handwritten message: Just to confirm our recent discussion, I am not happy with the current rent; it is now way above market rent; we must agree on the rent for the next three year term if I am to proceed. On 26 June 2015, after negotiations with a third party, Sutton Investments notified the landlords that it would not be exercising the option. This was disputed and the landlords sought a declaration that the option had been validly exercised and applied for summary judgment. When the application was heard, Master Sanderson held that there was an enforceable lease between the parties as the option had been validly exercised on the basis that the execution of the documents was unequivocal, despite the inclusion of the “with compliments” slip.

However, on appeal, the Court outlined the relevant principles; namely, that there must be a clear and unequivocal intention, assessed in the context of surrounding circumstances, to renew the lease in accordance with the option. The inclusion of the “with compliments” slip required that it be read along with the executed documents. The handwritten note was inconsistent with any intention to exercise the option in accordance with its terms (i.e. at the prescribed rate of rent). Therefore, it was arguable that Sutton Investments did not intend to exercise the option, but to only enter into a lease at a lower rate of rent. The Court took care in emphasising that it was not foreshadowing any final outcome of the proceedings and that this was simply not a clear case to grant summary judgment. As such, the appeal was allowed. Author: Giuseppe Zagari, Solicitor, Solomon Brothers

Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 This case concerns an appeal against orders entering judgment in the Plaintiff’s favour on the basis of a purported failure of the Defendant to comply with a springing order requiring the filing and service of a witness statement. In a joint judgment of Martin CJ, Buss P and Mitchell JA, the Court of Appeal seized the opportunity to helpfully enunciate a framework of guiding principles, outlining a best practice approach with respect to the use of springing orders, applicable to both case managers and practitioners alike. Relevantly, a springing order is “an order that judgment will be entered unless a party takes a nominated procedural step within a specified time” [2]. In this instance, the relevant springing Order required the Defendant to file and serve a Witness Statement complying with the Western Australian Bar Association Best Practice Guide with failure to do so resulting in the

Defendant’s defence being struck out and judgment entered in the Plaintiff’s favour without trial. Their Honours, in allowing the appeal and determining that a springing order should not have been made in this instance, enumerated 6 general principles with respect to the granting of springing orders: (1) Firstly, because the execution of springing orders can potentially result in an injustice, they should generally only be granted in circumstances in which the conduct of the defaulting party amounts to a “contumelious disregard” for the procedural orders of the Court [44]; (2) Secondly, they should “only be made in circumstances in which there are no other less severe, sufficient and appropriate sanction available” which is procedurally fair to all parties without depriving either of the opportunity to put forth their arguments to the Court [45]; (3) Thirdly, springing orders should not be made if it serves to prevent a party from developing an argument distinct from the procedural issue the subject of the order [46]; (4) Fourthly, the terms of the order must express the criteria for compliance with clarity, without ambiguity and in a manner enabling a simple assessment of whether compliance has indeed occurred [47]; (5) Fifthly, springing orders should, in the absence of exceptional circumstances, only be made as a “last resort” and when necessary to facilitate the just resolution of the substantive issues in dispute [48]; and (6) Lastly, that practitioners should always contemplate the existence of any basis to support an application for an extension of time to comply with a springing order when faced with an application for judgment on the basis of non-compliance with that order [49].

49


This case illustrates that, whilst case management powers are an important means to ensuring that the business of the Court is disposed in an efficient manner, their use should not come at the expense of the just determination of the substantive issues in dispute between parties to litigation.

his outgoing call records (including dates, duration and locations of the calls or SMS);

his bills;

his customer service history; and

his handset details (including colour, handset ID and International Mobile Station Equipment Identity (IMSEI) and network type),

Author: Jack Carroll, Solicitor, Park Legal Solutions

but refused to provide information about:

Privacy Cmr v Telstra Corporation Limited [2017] FCAFC 4 In Privacy Cmr v Telstra Corporation Limited [2017] FCAFC 4, the Full Court of the Federal Court of Australia (FCFCA) interpreted the meaning of the phrase “personal information about an individual” in National Privacy Principle 6.1 of the Privacy Act 1988 (Cth) as at 1 July 2013 (Act). While the Act has since been amended, the phrase “about an individual” is still preserved in the current version of the legislation. In 2013, a journalist made a request to Telstra Corporation Limited (Telstra) for access to all metadata regarding his mobile phone that Telstra held. Telstra gave him the following information:

his IP address and URL;

cell tower location information; and

incoming call records (collectively, the Refused Information).

Telstra disputed that the Refused Information was “about” the journalist, arguing that it went to the way it provided services. The Privacy Commissioner investigated the journalist’s complaint about the refusal and declared Telstra to be in breach of the Act. Telstra successfully appealed the declaration in the AAT. The Privacy Commissioner brought the present appeal on the grounds that the AAT did not apply the correct construction to the words “personal information about an individual”.

The FCFCA disagreed that the AAT fell into error. Kenny and Edelman JJ (with Dowsett J agreeing) accepted Telstra’s interpretation of National Privacy Principle 6.1 and said that while “personal information” has a broad natural meaning, in the context of that clause, it must be “held” by the organisation, be “about” the individual requesting access, and be “about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”. None of these terms were superfluous. The FCFCA also accepted that information “about” an individual would prima facie be information where the individual was the clear subject-matter. However items of information which is shown to relate to the individual when combined with other information may also be personal information. Ultimately, the word “about” looks to the degree of connection between the information and the person, and the connection must not be tenuous. The appeal was dismissed and the AAT decision that Telstra did not have provide the Refused Information stands. Author: Fiona Poh, Restricted Practitioner, Tottle Partners

WHAT’S Building Great Homes since 1988 – Experience the Difference. Call to meet with our designer today and be impressed.

YOUR

STYLE

At Artique, it’s about you. Your ideas combined with our expertise to create your dream home. Comprehensively specified with all costs up front – no hidden extras; consulting directly with the Designer/Builder at all times. Your home will be constructed to award winning quality. We build on a relationship of trust – it costs no more to build a custom home with Artique – Call Artique today.

2 STOREY HOMES

380,000

FROM $

CONTACT ARTIQUE TODAY! info@artiquehomes.com.au www.artiquehomes.com.au

Tel: (08) 9240 1142 Mob: 0417 510 375 11/199 Balcatta Road, Balcatta, WA 6021

Master Builders Excellence Awards Winner 2016 50 | BRIEF APRIL 2017

BC # 9669


FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Property – Court erred in accepting capitalisation of wife’s TPD pension pursuant to s90MT(2) where no splitting order made

Property – Trial judge erred in approach to wife’s case that husband’s domestic violence made her contributions more arduous

(2) A marriage to which this Part applies shall not be recognised as valid in accordance with subsection (1) if:

In Welch & Abney [2016] FamCAFC 271 (22 December 2016) the Full Court (Murphy, Aldridge & Kent JJ) allowed the wife’s appeal against Austin J’s treatment of her non-commutable total and permanent disability pension (TPD pension) as an asset with a present capital value of $972,959. The wife began receiving her TPD pension after the parties separated in 2011. At first instance, the net pool was $2,797,777, but this included the TPD pension at its capital value. The Full Court observed at [20]-[21]:

In Maine [2016] FamCAFC 270 (22 December 2016), the Full Court (Ryan, Murphy and Kent JJ) allowed the wife’s appeal against Judge Vasta’s order that the parties’ assets be divided as to 65 percent to the wife and 35 percent to the husband. The Full Court said (from [47]):

(b) where one of the parties was, at the time of the marriage, domiciled in Australia--either of the parties was not of marriageable age within the meaning of Part II;

“The practical effect of the orders for the husband included that he received the entirety of his 40 percent entitlement of $1,119,111 in cash or other tangible property capable of immediate conversion into lump sum cash or its equivalent ( … ) and the wife received or retained net tangible (non-superannuation) property worth $368,608 in an overall entitlement of $1,678,666. ( … )” The Full Court said (at [6]): “ ... We consider that the trial judge fell into error in the following respects: a. By adopting, as the present value of the TPD pension, the capitalised amount determined pursuant to s90MT(2) of the Act. This value (or, more accurately ‘amount’) is mandated solely for the purpose of a splitting order of a superannuation interest being made. No splitting order was made by his Honour and that decision is not the subject of any challenge on this appeal. b. By disregarding the evidence of the single expert as to the TPD pension entitlement being considered in a similar manner to earnings from employment, and that expert’s evidence as to the different nature of the TPD pension entitlement from normal superannuation interests. c. As a consequence of (a) and (b), ignoring the imposition of taxation upon the TPD pension and making orders which leave that substantial burden entirely with the wife. d. As a consequence of (a) and (b), ignoring contingencies operative upon the TPD pension and making orders which leave those contingencies entirely with the wife, and conversely, relieve the husband of any impact of them.”

“The wife argued at trial that her contributions were made more arduous by reason of family violence … by the husband. His Honour refers to those allegations … and … to the decision of the Full Court in Kennon … [48] His Honour appears to accept that family violence, as defined within the Act, occurred. His Honour … makes a … finding that there was no ‘evidence that illustrates how such conduct has made the contributions by the wife more arduous’. [49] We consider that this finding by his Honour is erroneous. It ignores … direct evidence given by the wife in her affidavit not challenged substantively in cross-examination and not the subject of any adverse finding by his Honour. The wife gave direct evidence that family violence had made the household tasks and care of the children ‘more difficult’ … In addition, given the wife’s detailed evidence of the history of the husband’s drunken violence and abuse over a period of about 20 years; the fact that no finding contrary to that evidence was made; and his Honour’s findings [as to the husband’s ‘propensity to irrationally verbally, and sometimes physically, abuse the wife’] … we are, with all respect, unable to understand how it was not, in any event, an inescapable inference that the wife’s contributions – in particular her s79(4) (c) contributions at the very least – were made ‘more onerous’. Marriage – Court lacks jurisdiction to declare foreign marriage valid where wife was a minor In Eldaleh [2016] FamCA 1103 (21 December 2016) McClelland J heard the husband’s application for a declaration that the parties’ marriage in the Middle East in 2016 was valid pursuant to s88D of the Marriage Act 1961 (Cth). The wife was 16 years old at the time of marriage and 17 at the time of the hearing. The Court said (from [3]): “Section 88D of the Marriage Act … relevantly provides:

[4] Under … s11 … subject to s12, ‘a person is of marriageable age if the person has attained the age of 18 years’. [5] Paragraph (b) of s88D(2) refers to ‘where one of the parties was, at the time of the marriage, domiciled in Australia’ … ‘Domiciled’ takes its meaning from the Domicile Act 1982 (Cth) … which, at s10, relevantly provides: ‘The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country.’ ( … ) [7] Although the courtship and marriage of the applicant and Ms Eldaleh took place in the Middle East, it was acknowledged that the applicant was, at the time of the marriage, domiciled in Australia. [8] … [T]he applicant being domiciled in Australia, s88D(2)(b) … applies and the marriage is not valid if either of the parties was not of marriageable age, that is 18 years of age.” The Court (at [10]) referred to s12(1) which provides that “[a] person who has attained the age of 16 years but has not attained the age of 18 years may apply to a judge or magistrate in a State or Territory for an order authorising him or her to marry a particular person of marriageable age despite the fact that the applicant has not attained the age of 18 years” and said (at [11]-[12]): “However, it is clear that the section is directed toward a prospective marriage, rather than facilitating any retrospective authorisation or validation of a marriage. As such, no mechanism is available under the Marriage Act by which the Court can validate the … marriage ... ”

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

51


Law Council Update

The Justice Project to uncover systemic flaws The Law Council has announced that it is conducting a comprehensive national review into the impediments to justice in Australia, focusing on those facing significant social and economic disadvantage in our community. The Justice Project will uncover systemic flaws and ensure the path towards equal access to justice is clearly mapped-out. It will report its findings by the end of November this year. A Steering Committee of eminent Australians, chaired by The Hon Robert French AC, former Chief Justice of the High Court, will oversee the Project. The President of the Law Council of Australia, Fiona McLeod SC, said that “access to justice is a bedrock principle for our society and a means of protecting, promoting and defending the rule of law and human rights of all people. It is a core tenet of our modern democracy, yet unfortunately there are many who are missing out. “A person’s formal right to justice and equal treatment before the law is of no value if he or she cannot effectively access the legal system or secure protection of basic rights,” Ms McLeod said. “Whether it is the pressures upon court resourcing and long backlogs, lack of access to legal advice or representation, or laws and practices that compound unfairness, the inequity experienced by many can have a devastating impact upon their lives.” The Justice Project will inform its work with a review of the existing research on access to justice issues and explore what is working and why, with constructive, informed recommendations for future action. The Project will seek submissions and involve consultation with individuals and organisations with on the ground experience and focus on case studies that illuminate the key impediments and solutions. “I am delighted that former High Court Chief Justice Robert French AC, has agreed to chair the Steering Committee, and very grateful for the contribution of our expert Committee members,” Ms

52 | BRIEF APRIL 2017

McLeod said. “The review will investigate how these issues affect key groups such as: the elderly, young people, those living in remote areas, the homeless and marginalised and the many in our community who have experienced crisis in their lives, are exploited or face significant discrimination. “This is a significant undertaking to examine critical issues that need to be urgently addressed. “We need to ask ourselves whether our idea of Australia as a free and open society, committed to the fair-go, stands up to scrutiny when it comes to access to justice. At the moment this is a very difficult question to answer,” Ms McLeod said.

Unconscious bias training now available to all Australian lawyers In a national first, a customised unconscious bias training programme aimed specifically at the legal profession is now accessible from this week. Diversity and inclusion specialists, Symmetra, have developed the unprecedented programme offered to lawyers and legal practices via faceto-face workshops, train-the-trainer modules, and online courses. The CPD accredited workshops include an interactive exploration of unconscious cognitive biases and how they affect all decisions. Numerous examples of its impact on legal and ethical decisions will be discussed, and participants will learn to identify and counteract different types of bias. Law Council of Australia President, Fiona McLeod SC, said the training was a clear indication of the profession taking practical steps towards greater inclusion and diversity. “Human beings are hardwired to notice personal characteristics and to prefer those with attributes or experiences similar to their own, without conscious awareness,” Ms McLeod said. “Unconscious bias is an insidious and increasingly-recognised factor undermining organisational culture,

leading to loss of productivity and revenue. “Addressing unconscious bias encourages better decision-making and new approaches to problem solving. “Training that helps lawyers to uncover and address unconscious bias doesn't just improve diversity, it can improve productivity and help firms to attract and retain top talent,” Ms McLeod said. Practitioners should fulfil their CPD requirements by the end of March. To access the training, contact your State/ Territory Law Society or Bar Association. You can learn more about the programme, as well as accessing the online course at: www.diversityinlaw.com.au

Law Council welcomes appointment of Dr James Renwick SC to vital security watchdog role The Law Council of Australia has applauded the appointment of prominent jurist Dr James Renwick SC as Australia’s acting Independent National Security Legislation Monitor (INSLM). Law Council of Australia President, Fiona McLeod SC, said the appointment was an extremely important one. “The work of the INSLM is absolutely pivotal to Australia's national security and its democracy,” Ms McLeod said. “As governments move to alter and strengthen security and counter-terrorism legislation, it is vital that the INSLM is able to assess whether new measures accord with the rule of law and Australia's human rights obligations. “The Law Council advocated strongly for the creation of the INSLM and it is critical that it is appropriately resourced and led by a jurist of the highest calibre such as Dr Renwick. “Dr Renwick has a strong professional background in national security issues, and was a member of the Law Council’s Military Justice Committee for three years prior to this appointment. “We look forward to working with Dr Renwick in continuing the excellent work of previous INSLMs,” Ms McLeod said.


Pam Sawyer

53


Professional Announcements

New Members New members joining the Law Society (February 2017)

Career moves and changes in the profession Ordinary Membership Tahnee Watson joins Taylor Smart Lawyers and Notaries

Mr Benjamin CraigWadham Tottle Partners

Mr Kenis Chu Minter Ellison

Associate Membership

Mr Salemon Weyers Price Sierakowski Corporate

Taylor Smart Lawyers and Notaries have appointed Tahnee Watson as a lawyer in its litigation team as of 1 March 2017. Tahnee Watson

Before joining Taylor Smart, Tahnee has worked with Eastwood Sweeney Law, MJ McPhee, and Kott Gunning. She holds qualifications in law and finance and has experience in the preparation and conduct of large estate and commercial litigation matters.

Mrs Mischelle Hattrick The Australian National University

Restricted Practitioner Mr Jim Zeakis Solomon Brothers

Mr Simbarashe Mukaro Edith Cowan University

Mr Nathaniel Smith Chelmsford Legal

At Taylor Smart, she will work closely with Litigation Partners Peter Nevin and Saul Davies.

Ms Christina Batson

Gary Mack

Mr Cheng Lee Latro Lawyers

Gary Mack commenced on 13 March 2017 as a Senior Associate at Leach Legal, West Perth, practicing predominately in Family Law.

Mr Nate Rampant Deakin University

Ms Caroline Rugero Director of Public Prosecutions Commonwealth

Miss Michelle Quilty Gilchrist Connell Ms Jazelle Francis Murdoch University Mr Simon Ogden University of Western Australia Ms Rachel Kristensen Ms Melissa O'Malley Murdoch University Mr Darren Clark Price Sierakowski Corporate Ms Rebecca Reid

Mr Jack Vidler Massons

Miss Olivia Doray Eastwood Sweeney Law

Ms Carmen Grobbelaar Murdoch University

Notre Dame confers Honorary Doctorate on Justice Neville Owen The Society congratulates the Honourable Justice Neville Owen, who received a Doctor of Laws from The University of Notre Dame Australia on Wednesday, 14 December 2016, for his tireless and faithful commitment to the legal profession, most notably as the Senior Judge of the Court of Appeal.

Justice Owen is a former Chancellor of the University and has been an active contributor to the University community since 1997 when he was a founding member of the School of Law Advisory Board. He was appointed as a Governor of The University of Notre Dame Australia in 1997, and a Trustee and Director of the institution in 2005.

Walk for Justice 7.30am Tuesday, 16 May 2017

Breakfast Sponsor

Walk Sponsors

University Sponsors

Principal Supporters School of

Business & Law Perth | Dubai | Singapore

Register now at mycause.com.au/events/lawaccesswalkforjustice 54 | BRIEF APRIL 2017


Classifieds FOR SALE PARTITIONED OFFICES

Mint House – 326 Hay St, Perth • • • • •

Lots 18 & 19 (second floor) 141m2 or 282m2 available Sold separately or as one parcel One secure car bay per lot Short term lease remaining

Greg Radin 0411 883 995

MISSING WILL Any person knowing the existence or whereabouts of the last Will made by Athanasios Vlahou of 58 Templeton Crescent, Girrawheen in the State of Western Australia, born on 20 March 1927, please contact Henrik Bendtsen of HLB Lawyers, PO Box 1269 Osborne Park BC WA 6916. Telephone: 9244 8818 Email: henrik@hlblaywers.com.au

PETER JOHN COLLIE late of 22/121 Eight Road, Armadale Western Australia formerly of 45 Girrawheen Street, Armadale, Western Australia died on 14 January 2017 at Kalamunda Western Australia. Would any person holding a Will and Testament of PETER JOHN COLLIE or knowing the whereabouts of such Will and Testament please contact the Public Trustee in writing at GPO Box M946 PERTH WA 6843 or by telephone on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE19942954 EM24 MLC/LC. adcorp WG19719A

PERTH’S BUSINESS VALUATION EXPERTS  Family Law Disputes  Partnership Dissolutions

and Admissions  Licensing Applications  Bank Opinions  Purchaser and Vendor Opinions

Vacation Clerk & Graduate Recruitment Dates 2017 The Law Schools of Curtin, ECU, Murdoch, Notre Dame and UWA have put together the following recommended recruitment dates for 2017. In doing so, it is intended that these dates meet the needs of the students and provide some structure for the profession. Summer / Winter Vacation Clerkships 2017/2018 Summer 2017/2018 Winter 2018

Contact:

Graham O’Hehir MBA

Managing Director (08) 9481 4422 or graham@buyabusiness.com.au

Applications open

Monday 17 July 2017

Applications close

Sunday 6 August 2017

Review and interview

Monday 7 August to Friday 15 September 2017

Offers

Friday 22 September 2017

Graduate Recruitment 2017 - 1st round offers Graduate Recruitment 2018 1st Round Offers

www.buyabusiness.com.au

First rounds offers made

Friday 28 July 2017 (9am)

First round offers held open to

Friday 28 July 2017 (5pm)

Graduate Recruitment 2017 - standard offers Graduate Recruitment 2018 Standard Offers Applications open

Law Graduate - HLS Legal

Applications close

HLS Legal is a commercial law firm specialising in employment law, industrial relations, litigation and OHS for local, national and global employers. HLS Legal is seeking a full-time Law Graduate to undertake research and assist with advice and litigation work. Candidates must have a keen interest in employment law and have either studied employment law or worked in the area previously. For more information, please call us on 9322 5202. Please send applications to Amber Roncoroni aroncoroni@hlslegal.com.au

Review and interview

Monday 26 June 2017 Friday 11 August 2017 Monday 14 August to Friday 8 September 2017

Offers made

Friday 15 September 2017 (9am)

Offers held open to

Friday 15 September 2017 (5pm)

For information on vacation clerkship placement dates please contact the firms or relevant department directly or refer to their websites. Organisations will decide their own requirements for first round offers and students should consult relevant websites for further information.

55


Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

APRIL 2017 Membership Event Pilates – Five week course commencing Wednesday, 12 April

MAY 2017 CPD Seminars Monday, 15 May YLC: Mental Health Hypothetical Thursday, 25 May Quality Practice Standard Accreditation workshop one Membership Events Thursday, 4 May Sole Practitioner and Small Firm Forum

Monday, 15 May Law Week Breakfast and the 2017 Attorney General’s Community Service Law Awards Tuesday, 16 May Law Access Walk for Justice Wednesday, 17 May Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee Thursday, 18 May Lawyer of the Year Awards and Cocktail Evening

JUNE 2017 CPD Seminars Thursday, 1 June Quality Practice Standard Accreditation workshop two Friday, 9 June Essentials of advocacy

Friday, 16 June Ethics on Friday: pointing the finger Membership Event Thursday, 15 June 90th Anniversary Cocktail Party

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 8692. For all upcoming events and further information please visit lawsocietywa.asn.au 56 | BRIEF APRIL 2017


2016 WA Lawyer of the Year Awards Winners (L-R): Michael Geelhoed, Glen McLeod and Claire Rossi. Photo: The Scene Team (www.thesceneteam.com.au)

WA LAWYER OF THE YEAR AWARDS

WA Lawyer of the Year award recipients

In the lead up to Law Week, the Law Society invites members to submit entries to the WA Lawyer of the Year Awards.

Practitioner with more than five years’ experience

The WA Lawyer of the Year Awards recognise practitioners who have made particularly noteworthy contributions to the Western Australian legal profession, over and above what might be reasonably expected through paid legal employment.

2015 – John Fiocco

2016 – Claire Rossi and Glen McLeod 2014 – Melanie Cave 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier

Do you know someone who could be WA Lawyer of the Year? Nominations for WA Lawyer of the Year Awards are now open until Friday, 21 April 2017. Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 years’ experience) and Lawyer of the Year (less than 5 years’ experience). Winners are announced at the Law Week Cocktail evening, hosted by Bankwest on Thursday, 18 May 2017. For full criteria and further information, please visit lawsocietywa.asn.au/law-week

2009 – Steven Penglis 2008 – Dr Johannes Schoombee Practitioner with less than five years’ experience 2016 – Michael Geelhoed 2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack 2012 – Tammy Solonec 2011 – Breony Allen 2009 – Toni Emmanuel 2008 – Anna Rakoczy

Proudly sponsored by Lawyer of the Year

(more than 5 years’ experience)

Lawyer of the Year

(less than 5 years’ experience)

lawsocietywa.asn.au Law Week 2017


Manage your matters from the palm of your hand!

n Impress clients with the quality of service you can offer. n Maintain an accurate record of all your out of office activity. n Scan, save and share legal documents on the go. n Enjoy seamless synchronisation with matters on your LEAP desktop.

Only $239 per user per month*

Find out how your firm can make more money by using LEAP. Book an obligation free demonstration today! 1300 886 243 | leap.com.au/mobile

*Plus GST LEAP Mobile is only available with your LEAP subscription.

Brief April 2017  
Brief April 2017