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VOLUME 43 | NUMBER 7 | AUGUST 2016

Advocate's immunity – the High Court speaks (yet again)


The essential membership

Did you know?  Your membership costs less than a cup of coffee a day and may be tax deductible*

 You can cap your professional liability for only $50 per year through the Limitation of Liability Scheme (LLS)*  The Law Society’s Find a Lawyer service provides over 21,000 referrals a year and is free for firms with more than 50% of legal practitioners as members  For only $800 you can add CPD Active to your membership and receive unlimited face-to-face seminars, 10 free seminar papers, $20 eLearning seminars and an additional 10% discount off membership events*  Your membership includes subscriptions to Brief, Friday Facts, CPD News and Update from the President keeping you informed with developments in the profession  Your membership helps support those in genuine need of legal assistance through the Law Access Pro Bono Referral Scheme  You can attend all Law Society events and CPD seminars at special member pricing *Conditions and some exclusions apply.

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Contents Volume 43 | Number 7 | August 2016

16

36

06

Discipline in sexual harassment

08

Engaging with Corporate Counsel

10

Law Week Volunteers and Social Justice Address

12

Surrogacy for Western Australians

COVER

16

Speech to open David Malcolm Justice Centre

18

Risk Based Auditing and Internal Service Standards

Advocate's immunity – the High Court speaks (yet again)

20

Seeking Justice

24

Advocate's immunity – the High Court speaks (yet again)

29

Letter from the Hon Carmel McLure

30

Equality, Proportionality and Dignity: The Guiding Principles for a Just Legal System

36

Law Council of Australia Committee formed to guide future of profession

38

Topical matters pertaining to the tort of negligence – the attribution of blame

44

YLC Panel Presentation – Homophobia within the Law

45

2016 Cluedunnit Kids Competition

Disclaimer The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. Copyright Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

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

REGULARS 02 President's Report 03 Your voice at work 04 Editor's Opinion 46 Young Lawyers Case Notes 47 Family Law Case Notes 48 Law Council Update 49 Pam Sawyer 50 Professional Announcements 50 Classifieds 51 New Members 52 Events Calendar

Editor Jason MacLaurin

President Elizabeth Needham

Deputy Editors Andrew Cameron, Moira Taylor

Senior Vice President Alain Musikanth

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Catherine Graville, Melissa Koo, Jason MacLaurin, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor

Vice President Hayley Cormann

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 Tel: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

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

01


President's Report Elizabeth Needham President, the Law Society of Western Australia

NEW CPD PROGRAMME LAUNCHED I am very pleased to advise members that the Law Society recently launched its Continuing Professional Development programme for September-December 2016; you should now have received a physical copy. As Convenor of the Society's Education Committee I can assure members of the profession firsthand that the programme has been designed by practitioners, for practitioners, following extensive consultation. It delivers content that is relevant and responsive to developments in the law and legal practice in Western Australia and the proceeds help support our advocacy and law reform programmes. Please visit lawsocietywa.asn.au to peruse the full range of seminars available. NEW LAW LIBRARY Further to my updates on the Law Library over the past months, the new Law Library opened at the David Malcolm Justice Centre on 1 July. Members will be aware that the new Law Library is an amalgamation of the former Supreme Court library and the library of the Department of the Attorney General. The Legal Practice Board will no longer be responsible for maintaining and managing the new integrated library. The Law Society has worked closely with stakeholders including the Supreme Court, the Western Australian Bar Association, the Legal Practice Board of Western Australia, the State Solicitor's Office and the Department of the Attorney General for many months to bring about the best possible outcome for our members and the legal profession. As part of the Governance Plan for the new Law Library at the David Malcolm Justice Centre, an Advisory Committee is to be established. The Advisory Committee will be comprised of: •

one representative of the Law Society of Western Australia;

one representative of the Western Australian Bar Association;

02 | BRIEF AUGUST 2016

one representative of the Legal Practice Board;

two Supreme Court judges, one of whom will act as chairperson; and

two representatives of the Department of the Attorney General.

The Law Society's Council has agreed to nominate the position of President to be its representative on the Law Library Advisory Committee. Practitioners can access the Law Library by going to Level 23 of the David Malcolm Justice Centre and providing identification. They will then be given access to the Law Library, which is located on Level 2. The Law Library's opening hours are 8.30am to 5.00pm, Monday to Friday. The Law Society appreciates that these security procedures are cumbersome and will continue to work with the Department to address this issue. LAW COUNCIL MEETING IN PERTH On Friday, 9 and Saturday 10 September 2016, the Law Council of Australia will host all of the Law Societies and Bar Associations from around Australia in Perth. This visit coincides with the Gala Dinner which is being co-hosted by the Law Society and Western Australian Bar Association. GALA DINNER I hope you will join me for the premier social occasion for the legal profession this year, our Gala Dinner, marking 10 years of service by the Chief Justice Wayne Martin AC, which will be held on Friday, 9 September 2016 from 6.30pm at the Perth Convention and Exhibition Centre. The event will include great food and wine, live entertainment and dancing to Proof, one of Perth's most in-demand party bands. Why not get a group of friends or colleagues together to book a table, or you can purchase individual tickets by visiting lawsocietywa.asn.au. Part proceeds raised will go to the charity. The Principal Sponsor is Jackson McDonald. Gold Sponsors are Bradley Bayly Legal, The College of Law, DLA

Piper, HHG Legal Group and Law in Order. The Production Sponsor is Herbert Smith Freehills. MEMBERSHIP RENEWALS The 2016/17 membership year commenced on 1 July. If you have not yet renewed your membership, please do so to ensure you continue to enjoy all of the benefits, including your subscription to Brief, weekly updates from Friday Facts, discounted CPD seminars and member events, access to personal and professional support, our advocacy and advisory services and much more. To renew your membership today, simply login to members.lawsocietywa.asn.au and click 'payment details' or call (08) 9324 8692. RETIREMENT OF JUSTICE CARMEL MCLURE The Hon Justice Carmel McLure retired from the position of President of the Court of Appeal in July. Her Honour has made an enormous contribution to the Judiciary in Western Australia over many years, having first joined the Supreme Court in 2001. Her Honour became a member of the Court of Appeal upon its inception in 2005 and was appointed as President of the Court of Appeal in November 2009. Her Honour was awarded Life Membership of the Law Society in 2015. On behalf of the Law Society and the legal profession in Western Australia, I wish Her Honour the very best in her retirement. *Please see letter from Her Honour on page 29 of this edition of Brief. RECENT JUDICIAL APPOINTMENTS In recent weeks there have also been a number of judicial appointments which have had the positive effect of promoting gender equality across the legal profession. You can read about the appointments and other issues in the 'Your Voice at Work' section, directly adjacent to this Report.


Your voice at work A snapshot of recent Society initiatives

LAW SOCIETY WELCOMES ATTORNEY GENERAL'S COMMENTS ON MANDATORY SENTENCING

that mandatory sentencing should not be extended to assaults on school principals or teachers.

The Law Society of Western Australia welcomed comments made by the Attorney General, the Hon Michael Mischin MLC, stating his reluctance to further extend mandatory sentencing. The Attorney General was quoted in a news article as having no plans to expand the current mandatory sentencing regime to cover assaults against security officers or school teachers.

Law Society President Elizabeth Needham said, "Any assault on a teacher is of course a very serious matter, however the prospect of children being imprisoned in such circumstances would be unacceptable.

Law Society President Elizabeth Needham said, "The Law Society has consistently opposed mandatory sentencing, as there is no evidence that it works to deter criminal behaviour and is in fact more likely to result in harsh and disproportionate sentences. "Mandatory sentencing removes the discretion from our Judiciary to ensure that 'the punishment fits the crime'. Instead, our already under-resourced criminal justice system is further burdened, as Judges are forced to send offenders to prison regardless of the circumstances in each individual case. "Mandatory sentencing can push first-time offenders and young people toward a life of crime, by causing them to associate with often hardened criminals when they enter the prison system. Mandatory sentencing also has a significant economic effect; a potential employee and taxpayer instead becomes a burden on the community, costing an average of $350 per day to be kept incarcerated (according to a 2015 Productivity Commission report). "There is a distinct lack of evidence that mandatory sentencing acts as a deterrent to crime. In fact, studies in Australia have demonstrated the opposite. In a 2003 report, the Northern Territory Office of Crime Prevention concluded that for the property offences – the subject of the mandatory sentencing regime – there was up to a 15 percent increase in the prison population." LAW SOCIETY APPLAUDS THE STATE GOVERNMENT AND OPPOSITION ON MANDATORY SENTENCING STANCE The Law Society of Western Australia has welcomed comments in the media by the Minister for Education the Hon Peter Collier MLC and the Shadow Minister for Education the Hon Sue Ellery MLC. Mr Collier and Ms Ellery are each quoted in The West Australian expressing their views

"There is no convincing evidence demonstrating that mandatory sentencing laws have any deterrent effect on crime. Moreover, mandatory sentencing only serves to increase costs to the community, as more accused persons plead not guilty and take matters to trial, further burdening the judicial and prison systems. "Mandatory sentencing also has the potential to increase recidivism, as offenders are placed in a learning environment for crime, further reinforcing a criminal identity while failing to tackle crime's underlying causes." LAW SOCIETY CONGRATULATES APPOINTMENTS TO THE JUDICIARY AND NEW SOLICITOR GENERAL The Law Society of Western Australia has congratulated Sandra De Maio, Anne Longden, Peter Quinlan SC and Pamela Scott on their recent appointments. Ms De Maio and Ms Longden have been appointed to the Magistrates Court of Western Australia and Children's Court of WA. Both are highly experienced legal practitioners who have a great deal to offer in this service to the public. Peter Quinlan SC has been appointed as Solicitor-General of Western Australia. Mr Quinlan SC has a very well respected breadth and depth of experience in constitutional and administrative law. Commissioner Scott has been appointed Western Australia's first female Chief Commissioner of the Western Australian Industrial Relations Commission. Commissioner Scott has served as a commissioner since 1994 and is wellregarded in her role. The Law Society congratulates all four on their appointments. The Law Society also congratulates the Government and the Attorney General on working towards ensuring our judicial system is adequately resourced and the positive move for promoting gender equality across the legal profession. The Law Society sees the promotion of

gender equality across the legal profession, including in our State's Judiciary, as an important part of its commitment to the Law Council of Australia's Diversity and Equality Charter, which commits the legal profession to the promotion of equality, diversity, respect and inclusion regardless of gender, ethnicity, sexuality or any other arbitrary feature. Law Society President Elizabeth Needham said, "The Law Society supports gender equality in Western Australia's Judiciary. All appointments are and should be meritorious, taking into account the appointee's experience and standing, but there will always be more meritorious claimants than appointments and it is vital that when considering the meritorious claimants that the question of equality and diversity is addressed. Ms De Maio, Ms Longdon, Mr Quinlan SC and Commissioner Scott are all well respected legal practitioners, very deserving of their appointments and will serve our State well." LAW SOCIETY CALLS FOR STATE GOVERNMENT ACTION ON STRATA REFORM The Law Society of Western Australia has called on the State Government to take immediate action to pass necessary strata title reform. The State Government should introduce a draft Bill into Parliament to pass changes to the Strata Titles Act as soon as possible. Law Society President Elizabeth Needham said, "Strata title reform is essential to meet the needs of a growing population. The proposed reforms promise improved management, clearer and easier ways to resolve disputes and more effective and relevant information for potential buyers. "Strata title reform has the potential to improve the lives of people living in strata properties. The new proposed community title schemes would reduce the complexity and expense involved in mixed-use property developments." LAW SOCIETY SUBMISSIONS •

Advancing Scrutiny of Suitors' Fund Bills – Letter to the Attorney General (State)

Australian Consumer Law Review Issues Paper – Submission to the Australian Consumer Law Review (Federal)

Fine Default Imprisonment – Letter to the Law Council of Australia (Federal)

03


Editor's Opinion Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This month's feature article by Alain Musikanth concerns the recent High Court reaffirmation of advocate's immunity, it being abolished in many other jurisdictions, with the decision also providing guidance upon its scope1. The article should be of interest to all practitioners, particularly as the immunity is not confined to pure advocates or inCourt advocacy. As with other immunities and privileges, its basis does not lie in any special protection or status being given to lawyers, even though this is an incidental result. But, in the eyes of the general public, this might well be viewed, in an undesirable way, as its principal effect. It is also unfortunate because in popular culture, 'privilege'2 is usually something that, even if inadvertently contracted or possessed – and regardless of whether its alleged source is race, colour, creed, gender, sexual orientation, education, parents, karaoke abilities, lactose tolerance, weight, height, ability to buy clothes off the rack, a good sense of direction, or imperviousness to being easily offended – must be "checked at the door". The popular culture conception of and attitude towards 'immunity' is probably more of a mixed bag, being, for instance, what Ray Liotta obtained to rat on Robert De Niro at the end of Goodfellas, and what hunchbacks or other fugitives run into cathedrals or Ecuadorian embassies, as the case may be, to seek.3 Absolute privilege also presents problems for the public perception of lawyers. After building up a body of defamation and injurious falsehood law, it is sometimes awkward explaining how the principal institutions that absolute privilege attaches to, the Courts and Parliament, co-incidentally have a significant connection to members of the legal profession and politicians. The general member of the public may well believe that lawyers and politicians are the last people who should be given free reign to make derogatory statements about others – preferring that the privilege be conferred upon better candidates, such as WWE wrestlers, AFL

04 | BRIEF AUGUST 2016

personalities, and any (blood) Kardashian (clearly, to extend the protections to Kardashians-by-marriage would have the potential to ultimately involve an impermissibly wide and indeterminate class). Of course, the truth is that lawyers are held to strong standards of conduct and are ultimately held responsible, in one way or another, for sub-standard Courtroom conduct. There is the famous "worst Courtroom joke ever cracked in history" from the Roe v Wade SCOTUS hearing where one Counsel decided to open his submissions with a sexist joke (talk about a deft appreciation of a time and a place).4 And it seems inevitable that the limits of these privileges and immunities will be tested when a Counsel or instructing solicitor is fatally distracted by trying to capture a much-prized Squirtle that appears in the witness box or associate's table, while playing Pokeman Go. On the subject of Pokeman Go, interestingly and as an aside,5 the most sought-after Pokémon Go character in the state of Ohio, where the US Republican Party recently held their convention, is 'Dratini' whose characteristics are described as: "Dratini continually molts and sloughs off its old skin. It does so because the life energy within its body steadily builds to reach uncontrollable levels." In some commentator's eyes, this might be a fairly apt description of the Republican nominee.6 Regardless of the immunities, lawyers are in truth, whether through ethical and professional responsibilities, or through other realities, subject to the principle that "with great power comes great responsibility," a phrase which, perhaps unsurprisingly in this era, there is some contest as to its source – the choice being either Voltaire, or Stan Lee in Spiderman, depending on who you think is the more profound public intellectual.7 The past month or so has seen a number of extraordinarily significant announcements, including the retirement of President Carmel McClure of the Court of Appeal (a letter from the

former President being contained in this edition), the elevation of Appeal Justice Michael Buss to President, the appointment of Justice Robert Mitchell to the Court of Appeal, the appointment of Justice Katrina Banks-Smith to the Supreme Court, and the appointment of Larissa Strk as Principal Registrar of the Supreme Court. There is also the appointment of Peter Quinlan SC as Solicitor-General, replacing Grant Donaldson SC. Brief congratulates all of the above upon either their appointments or their extraordinary work in positions retired from, and there will be more items about these developments in upcoming editions of Brief. This edition also contains speeches by the Hon Justice Virginia Bell AC, the Hon Wayne Martin AC, the Hon Justice Kenneth Martin and the Attorney-General of Western Australia as well as, amongst many other interesting items, an article by Michael Nicholls QC and Rachel Oakeley on Surrogacy. NOTES 1.

The majority finding that the immunity did not apply in that case.

2.

Or so the hashtags and university courses would suggest.

3.

Before the one member of the profession that writes to the Editor about cultural references chimes in, I do accept that Quasimodo was technically after 'sanctuary' not 'immunity'.

4.

The 'joke', which infuriated the Bench, was, referring to female Counsel on the opposing side that "It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." The same Counsel also later in oral submissions referred to Justice Thurgood Marshall's questions as "unanswerable questions," to which Marshall replied "I appreciate it." See Geoffrey Sant's article "8 horrible courtroom jokes and their ensuing legal calamities" in Slate Magazine (27 July 2013 – available online).

5.

Though that may be putting it to highly.

6.

Trumpists would however probably contend that the skin-shedding qualities, being serpentine in nature, more aptly describe non-endorser Ted Cruz.

7.

If you're wondering who would hold the latter view, yes, its that skateboarder who has driven into you at 30kms an hour, shattering your shins and ribs, having been distracted by playing Pokeman Go.

Brief welcomes your thoughts and feedback. Send all letters to the editor to brief@lawsocietywa.asn.au


Market Update – August 2016 With activity in the Perth legal market on the rise, now is the time to secure your dream job, or quality legal talent to support your business! We currently have a number of exceptional job opportunities and high quality legal candidates registered. Contact us today for a confidential discussion about your career options, or for assistance with your strategic legal staffing requirements. Please find below a selection of our latest job opportunities for August.

Commercial Litigator

Senior Associate

2-5 years PAE

Insurance

This progressive and highly successful firm is on the wish list of many lawyers. An immediate growth opportunity exists for a standout Litigator to provide support on a range of commercial litigation matters including contractual and corporate disputes, property, insurance and construction litigation.

Widely regarded as one of the leading Insurance practices, this premier team has a rare career progression role for an ambitious and client focused senior practitioner. Your work will focus on general liability matters and professional indemnity claims for clients in resources, engineering & construction and financial services sectors.

As part of a talented and well-structured team, you will be given direct mentoring and support from respected partners and senior lawyers and autonomy to manage your own smaller files, interact directly with clients and develop your advocacy experience.

There will be responsibility for running your own matters, including strategic advice throughout all stages of the claim and representation on complex negotiations and court proceedings, successfully managing the matter through to settlement.

At least 2 years + PAE, previous experience acting for large corporate clients on complex commercial disputes, strong academics and recent local experience with a top-tier or quality second-tier firm is essential.

With a progressive culture, direct interaction with clients and partners, active involvement in business development activities and ongoing professional development and training will be strongly encouraged. You will work with industry leading partners, continuing to develop your technical expertise on first class matters.

You will work on matters that are extremely complex in nature, will have access to state of the art technology and will be given every opportunity to develop professionally. An exceptional opportunity to advance your career with this leading practice.

Your 5 years + PAE with a top Insurance firm or team and outstanding interpersonal and negotiation skills will ensure your success. Excellent time to join a growing team, well placed for growth.

Estate Planning Lawyer

Construction Litigator

5 years + PAE

5 years + PAE

A strategic senior appointment exists for an Estate Planning specialist to join one of Perth’s growing commercial law firms.

This premier top tier team has a career defining role for a Construction Litigation specialist to take a lead role in managing complex construction litigation, arbitration and project disputes.

You will manage and continue to develop an existing base of high net worth clients and private individuals, advising on a range of estate planning, succession, complex trust issues and general commercial law matters. A transportable client base, or strong client following in the local market and ability to develop one, will be key to your success. This is an ideal career move for a senior lawyer in a top heavy team or sole practitioner looking to take a step back from the pressures of running their own firm, as full resources and infrastructure are in place, allowing you to focus on legal work and client management, with full autonomy to run your own practice. You will benefit from top working conditions, lifestyle balance and excellent career progression prospects. Part-time/flexible working arrangements will also be considered.

You will act directly advise and represent major global and national resources companies on the principal side, as well as first tier engineering & construction clients, developers and government entities on disputes for large scale projects in the Asia Pacific region. Unique opportunity to work with a high degree of autonomy, lead matters, get actively involved in client development and develop your professional profile in the market. Candidates at or on the cusp of promotion to SA level, with proven success managing major construction litigation and quality training with a specialist team or firm will be considered. Joining this prestigious firm, you will work on some of the most complex and exciting litigation currently on offer in Australia. Add to this unlimited career progression prospects, investment in your development and market leading package.

Stacey Back Director p

m

e

www.

.au


Ethics Column

Discipline in sexual harassment Gino Dal Pont Professor, Faculty of Law, University of Tasmania

• There is an increasing societal spotlight on the inappropriateness of sexual harassment. • Sexual harassment by lawyers in the workplace is capable of generating a disciplinary sanction. • The same applies, arguably with even greater force, when harassment is directed at clients. The first few days of 2016 saw the topic of sexual harassment grab headlines. It stemmed from the conduct of a wellknown male cricketer in a post-match interview with a female reporter broadcast live on national television. The cricketer relayed his pleasure in meeting the reporter (to see her "eyes for the first time"), before stating that "hopefully we can win this game and we can have a drink after". The reporter was taken somewhat aback by these remarks, to which the cricketer responded "don't blush, baby".1 What some perceived as little more than banter – there was, after all, nothing lewd or overtly sexual regarding the cricketer's remarks – generated widespread media criticism. The prevailing view was that the cricketer's remarks constituted sexual harassment, and the resultant media storm speaks of an increasing (and justifiable) sensitivity to harassment. The groundswell was already there, in any case, reflected in statutory proscriptions on sexual harassment.2 In a profession that has more than once been branded a "boys' club", and to

06 | BRIEF AUGUST 2016

which women's admission in Australia had to await the early twentieth century,3 it is hardly unsurprising that sexual harassment has been an issue. That professional rules now include an explicit proscription on sexual harassment4 speaks to this, independent of empirical data. It follows that, aside from legal consequences, sexual harassment by lawyers clearly has a professional disciplinary dimension. The point is illustrated by a case before the 2014 Victorian Civil and Administrative Tribunal, which suspended a lawyer who had repeatedly harassed a female law graduate who was undertaking practical legal training at his practice.5 While the harassment occurred in private, it was much more explicit in nature than that perpetrated by the cricketer above. Not only did it involve lewd language, the lawyer literally begged (and pressured) the complainant for sex over and over again. While the Victorian Court of Appeal reduced the duration of the suspension from eight months to two months, it upheld the professional misconduct finding, and described the lawyer's subsequent termination of the complainant's employment by insinuating unsupported concerns over irregularities as "despicable unprofessional conduct".6 If sexual harassment of an employee can amount to professional misconduct, there is no doubt that the same applies to harassment directed at clients. There is older Victorian disciplinary tribunal authority to this effect. A practitioner who sexually propositioned three female clients on three separate occasions, detaining

them in his locked office and on two such occasions masturbating in front of them, was ordered not to apply for a practising certificate for 15½ months and until he had demonstrated his fitness to practise.7 The fiduciary backdrop to the lawyer and client relationship, while it may not provide an avenue for civil relief for harassment, nonetheless serves to accentuate the seriousness of any such behaviour. That a client ostensibly reciprocates to the lawyer's advances is, in any event, no guarantee of a genuine consent to sexual involvement. The client's emotional state at the time, coupled with the lawyer's likely dominant position, conspires against this. If American disciplinary case law is any guide, there is scope for disciplinary sanction even in the face of 'consensual' lawyer-client sexual relations.8 The upshot is that while, as a Queensland judge recently observed, "[s]olicitors are no less human than other members of the community",9 this in no way justifies lawyers engaging in sexual harassment in a professional environment. NOTES 1.

See <www.smh.com.au> (5 January 2016).

2.

See, for example, Equal Opportunity Act 1984 (WA) Pt II Div 4.

3.

See Mason, Lawyers Then and Now – An Australian Legal Miscellany (Federation Press, 2012), pp 131–133.

4.

See Legal Profession Conduct Rules 2010 (WA) r 17(5).

5.

Legal Services Commissioner v PLP [2014] VCAT 793.

6.

PLP v McGarvie [2014] VSCA 253 at [87].

7.

Victorian Lawyers RPA v Constantinou, Legal Profession Tribunal Proceeding No T0368 and T0410 of 1998.

8.

See, for example, Iowa Supreme Court Attorney Disciplinary Board v Monroe (2010) 784 NW 2d 784 (albeit against the backdrop of a rule-based prohibition).

9.

Legal Services Commissioner v Mould [2015] QCAT 440 at [50] per Carmody J.


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Engaging with Corporate Counsel Tips for private practitioners to build a trusted legal advisor relationship Elisabeth Edwards Deputy Convenor, In-house/Government Lawyers Committee, the Law Society of Western Australia; Regional Legal Counsel (WA), Brookfield Multiplex

Legal practitioners working in either the government or corporate sectors now account for approximately 30% of the profession and constitute its fastestgrowing segment.1 With more practitioners moving into government and corporate in-house legal positions, it is prudent for private practitioners to be cognisant of the needs of the in-house legal function when delivering services to these practitioners and their clients. This article explores the pressures facing corporate counsel, the role of corporate counsel in being the intermediary between their client and external practitioners and finally offers ten tips to private practitioners to build and strengthen a trusted advisor relationship. Throughout this article the generic term 'corporate counsel' will be used to refer to the group of legal practitioners who are employed by an entity other than a law practice and who provide in-house legal services to their employer entity. Many examples of these dual employer/ client entities exist including corporations, unincorporated entities, not-for-profits, universities, statutory authorities/ corporations, government business enterprises, government agencies and departments, local government, the State and Commonwealth. PRESSURES FACING CORPORATE COUNSEL A corporate counsel's intimate understanding of their client's business, gained by being embedded in that business, is perceived to assist in the proactive management of legal risk for the client organisation and its stakeholders. Notwithstanding that the corporate counsel's client is also their employer, a corporate counsel is under the same professional and ethical obligations as legal practitioners employed by incorporated legal practices or those in sole practice. The corporate counsel must constantly keep front of mind that they are a legal practitioner first and an employee second. In this context, the most paramount is the duty that the corporate counsel owes to the court and the administration of justice.2 The next duty is the corporate counsel's ethical obligations to their client, who as

08 | BRIEF AUGUST 2016

noted above, is also their employer. This obligation entails the corporate counsel acting in the best interests of their client, being honest and courteous in all dealings, delivering legal services competently and diligently and avoiding any compromise to their integrity and professional independence.3 Corporate counsel are required to juggle many duties and challenges in discharging their role. A recent survey conducted by the World Law Group identified the following four concerns of corporate counsel in meeting their client's legal needs:4 • meeting the demand for legal services given financial and resource constraints; • effectively covering legal risks in highgrowth/emerging markets; • managing compliance and regulatory challenges, for example data security and data protection; and • keeping up with constant change in their client's business. Many corporate counsel are asking their external legal service providers to help them with their efforts to enhance productivity, improve resource management and implement cost-saving measures.5 The value proposition offered by a private legal practitioner needs to address and respond to the above concerns. ROLE OF CORPORATE COUNSEL IN ENGAGING EXTERNAL LEGAL SERVICE PROVIDERS Employers of corporate counsel, regardless of the size of their internal legal teams, will almost inevitably need to engage external legal services providers to address specific needs that cannot be met by internal resources. The size of the corporate counsel team and their combined skill set and legal experience will influence when the employer of the corporate counsel engages with private legal practitioners. For example, if the corporate counsel team has a specific skill set such as oil and gas, mining or construction expertise, it is most common for private legal practitioners to

be utilised when the employer is engaging in significant activities outside a 'businessas-usual context', for example, a merger or acquisition, dealing with a health and safety incident or fatality, advising on intellectual property protections or resolving a dispute. It is important, therefore, for the private legal practitioner to be aware of the size, composition and experiences of the corporate counsel team when considering what legal services may be of benefit to the corporate counsel. It is also necessary to reassess those services over time as the boundary between retaining work inhouse and outsourcing to private legal practitioners will change if the employer's business diversifies, the corporate counsel legal team expands or contracts and as the relationship with private legal practitioners strengthens. Managing the engagement of external legal practitioners is typically within the remit of the corporate counsel function. The corporate counsel is perceived as best placed to assess what work needs to be outsourced and also review and analyse the returning legal work to ensure that the work is focused, provides value to the client and is appropriately charged.6 In this regard, the corporate counsel is acting as the intermediary between the client organisation and the private legal practitioner. However, whilst instructions may often originate from the corporate counsel, this is not always the case and the external legal practitioner may find themselves approached directly by a board member, senior executive or any other member of the corporate counsel's employer. It is important for the external legal practitioner to seek guidance from the corporate counsel as to whether this direct approach is permissible and whether it should be encouraged or discouraged. When the corporate counsel is instructing private legal practitioners, he or she is a sophisticated client. The corporate counsel has a sound technical legal knowledge coupled with a good understanding of their client's business, its activities and drivers. However, the corporate counsel will not usually be an expert in the area of law that is the subject of the instructions,


such as intellectual property, health and safety or the environment. For the private legal practitioner receiving instructions directly from the corporate counsel, this brings with it the advantages of having a single point of contact and the potential to receive more clarity and precision around instructions.7 However, the private legal practitioner needs to recognise that the corporate counsel will not necessarily be the ultimate recipient of the legal work and advice. This material will often need to be effectively communicated to management in a clear and concise manner. It is worthwhile discussing the issue of 'audience' with the corporate counsel to ensure that the work product is tailored accordingly. TEN TIPS FOR PRIVATE LEGAL PRACTITIONERS TO DEVELOP THEIR TRUSTED LEGAL ADVISOR STATUS With the need for cost control and maintaining efficient operations a top pressure facing corporate counsel legal teams,8 corporate counsels are becoming more sophisticated pursuers of legal services. The corporate counsel, as a buyer of legal services, is seeking to engage private legal practitioners who are technically proficient, provide satisfactory service levels, are competitive with fees, have industry knowledge and can demonstrate strong familiarity with the nature of the work. Once selected, developing strong relationships with those external providers is important for the corporate counsel, because forging relationships offers significant opportunities for corporate legal teams to save both time and money. As a private legal practitioner, consider where you can offer value beyond technical legal advice, such as providing current awareness training, extending invitations to networking events, sharing legal guides, online knowledge and collaboration tools. These services add value and strengthen the business partner relationship. The following are ten tips for private legal practitioners to develop their trusted legal advisor status: 1. Be responsive. Return phone calls and acknowledge receipt of emails in a timely manner. This reassures the corporate counsel that their request for advice has been received and will be prioritised as necessary. 2. Communicate clearly and precisely. Ask whether the corporate counsel has a preference for a particular form of communication, such as phone, email, letter, executive summaries or detailed memorandums. 3. Offer strong legal advice coupled with commercial solutions. The goal is to identify the optimal legal solution

and deploy it in the best way for the client's situation. For an external legal practitioner, this requires obtaining an understanding of the business of the corporate counsel's client through being an active listener and asking questions to drive commerciality of advice. External legal advice needs to be commercial and realistic and ultimately contain a practical solution to address the issue. Opinions and recommendations will always be more valuable than a list of options. Also of value is the ability to anticipate what is 'around the corner' and factor this into the strategic decision making process. 4. Understand who your client is. In the context of large and multinational corporate structures, identifying the client, and therefore instructing entity, is important. Where advice is provided at the parent company level, ensure that the interests of all subsidiary corporate group members align or qualify advice accordingly. 5. Consider the corporate counsel's ultimate audience. Be aware of who will be the ultimate recipient of the legal advice and tailor the length and communication style accordingly. For example, will the advice be distributed within the internal legal team, to the client's commercial team, to the client's Board or to a negotiating counterparty? 6. Manage expectations, be a good project manager and do not deliver any surprises. This relates to both billing and timeliness of advice. At the start of the engagement, be realistic about fee estimates and timing. During the course of delivering the legal services, regularly convey updates on status to provide reassurance to the corporate counsel that the matter is on course. When working within time constraints and deadlines consider what, if any, internal approvals and signatures the corporate counsel needs to obtain before the work can be distributed to meet that deadline. 7. Provide independent, honest and ethical advice. Ensure all legal advice is provided independently, impartially, honestly, competently and fairly. Communicate to the corporate counsel what needs to be heard. 8. Comply with internal requirements. The private legal practitioner needs to be educated on and then abide by the internal requirements that the corporate counsel has set. These may relate to who the private legal practitioner can receive instructions from (i.e. only corporate counsel or also from senior executives or board

members directly) or billing-type arrangements, for example, the time for billings, addressee, format of bill and reporting against fee estimates. 9. Be easy to deal with. Take the time to learn what the corporate counsel's job pressures entail and, where possible, learn some of the key performance indicators relevant to the legal function. For example, if the corporate counsel's client has specific end of year reporting or auditing-related obligations with respect to disputes, strive to work towards achieving closure (on appropriate terms) of a proportion of those claims by that period of time. 10. Deal with commercial conflicts of interest delicately. Carefully consider relationships with existing clients and the potential impact on those relationships when new business opportunities are being pursued and new clients engaged. From a business perspective, consider whether you should simultaneously act for or seek work from clients/project sponsors, contractors and subcontractors. If a new client is part of an existing client's downstream supply chain, taking instructions and acting for a prospective client in an isolated short-term transaction may irreparably impair the strength of the long-term relationship with an existing client. This poses a commercial (but not legal) conflict of interest. Such conflicts frequently manifest themselves in the oil and gas, mining and construction sectors. Ultimately, the corporate counsel is after a private legal practitioner to partner with to deliver commercially savvy and responsive legal services in order to drive value to their employer client. NOTES 1.

Based on statistics prepared by Urbis for the Law Society of New South Wales. In 2015, while the majority of solicitors in NSW work in private practice (70.1%), 19.1% were corporate solicitors and a further 10.7% were government solicitors. Refer 2015 Profile of the Solicitors of NSW â&#x20AC;&#x201C; Final Report 13. Report available at http://www.lawsociety.com.au/cs/groups/public/ documents/internetcontent/1149382.pdf. By way of comparison in 2004, only 24.5% of legal practitioners worked in either the government or corporate sector. Refer 2004 Profile of the Solicitors of NSW page 12. Report available at http://www.lawsociety.com.au/cs/ groups/public/documents/internetcontent/026050.pdf.

2.

Section 5, Legal Profession Conduct Rules 2010 (WA).

3.

Section 6, Legal Profession Conduct Rules 2010 (WA).

4.

Global Agenda Study Report: Issues & Priorities for Senior In-House Counsel Worldwide, conducted by the World Law Group in conjunction with LexisNexis Martindale-Hubbell (World Law Group, Autumn 2012), page 7.

5.

Ibid.

6.

Law Society of New South Wales, Handy Hints for InHouse Counsel, Law Society of NSW, page 4 (available from https://www.lawsociety.com.au/cs/groups/public/ documents/internetcontent/590200.pdf).

7.

Ibid.

8.

Global Agenda Study Report: Issues & Priorities for Senior In-House Counsel Worldwide, conducted by the World Law Group in conjunction with LexisNexis Martindale-Hubbell (World Law Group, Autumn 2012).

09


Law Week Volunteers and Social Justice Address Organised by Consumer Credit Legal Service (WA) Inc, The Humanitarian Group and Mental Health Law Centre (WA) Inc. Delivered in Perth on Monday, 16 May 2016. The Hon Wayne Martin AC Chief Justice of Western Australia

INTRODUCTION I am pleased and honoured to have been asked to address this event, being held during Law Week 2016, for the purpose of illustrating the manner in which three community legal centres (CLCs) utilise volunteers in providing their important services. The three centres are the Consumer Credit Legal Service (WA), The Humanitarian Group, and the Mental Health Law Centre (WA). Before going any further, however, I would like to acknowledge the traditional custodians of this land, the Noongar people, on whose land we are meeting, and pay my respects to Elders past, present and future. VOLUNTEERS I note that this evening's event is not focused on the very significant pro bono partnerships1 with the CLC sector that lawyers and firms enter into, as businesses.2 Instead the focus is upon the no less important contribution of volunteers who commit their personal time: volunteers who include, for the three CLCs mentioned, paralegals and, in the case of The Humanitarian Group, also interpreters. That distinction is made not for the purpose of diminishing the importance of pro bono assistance to CLCs but simply because this evening's event is intended to celebrate the contribution of those volunteers. LEGAL NEED 50% of Australians aged 15 years and over need legal help every year.3 In Western Australia, legal need is more prevalent with 52% of the population facing a legal issue.4 Some 22% of those surveyed across Australia experienced three or more legal problems within the past 12 months.5 An Indigenous Legal Needs Project has also focused on the extent of Indigenous civil and family law

10 | BRIEF AUGUST 2016

needs in Australia and demonstrated that access to legal assistance for Indigenous Australians is particularly limited.6 STRAIN ON INDIVIDUALS AND FAMILIES The experiences of just over half of the Australians who had legal problems is that these have moderate or severe impact on their everyday life.7 The effects include loss of income, attendant financial strain, stress-related illness, and physical ill health. The considerable negative impact that legal problems impose on people's lives can lead to an enormous cost to society at large. In the United Kingdom, the economic impact on health and other public services stemming from the adverse consequences of legal problems was estimated to be at least £13 billion over a 3.5-year period.8 LIMITED OPTIONS AVAILABLE There is no absolute right to be legally represented in Australia. The cost of getting help and securing legal representation can prevent many Australians from gaining effective access. For a well-functioning system, access should not be dependent on the capacity to pay, and vulnerable litigants should not be disadvantaged. A system which effectively excludes a sizable portion of society from adequate redress not only can result in considerable economic and social costs, but can also be regarded as unjust. Barriers that deter or frustrate parties from accessing the civil justice system include financial costs, communication barriers and a lack of awareness and resources.9 Legal Aid may be able to assist some Australians. However it is estimated that only the most seriously financially

struggling 8% of households qualify for Legal Aid assistance.10 Given that 14% of Australians live below the OECD's poverty line, it is clear there is a significant gap for Australians to get legal assistance.11 The majority of low and middle income earners have limited capacity for managing large and unexpected legal costs. This "missing middle"12 comprises the majority of low and middle income earners who cannot afford or access appropriate legal advice when faced with a problem. CLCS ASSIST THE "MISSING MIDDLE" The missing middle relies on the help of the community legal sector. CLCs aim to deliver fair and equitable outcomes as efficiently as possible by resolving disputes early and at the appropriate level. In 2012-13, CLCs across Australia provided: •

172,600 instances of information services;

More than 4,200 community legal education projects;

253,200 instances of advice services.

They also opened around 53,000 cases.13 Later this evening, you will hear more about the work and outcomes of three West Australian CLCs: Consumer Credit Legal Service, The Humanitarian Group and the Mental Health Law Centre. It is worth reiterating however some of the key findings of the Productivity Commission's Inquiry into Access to Justice Arrangements. It found that: •

Given the number and type of cases they see, legal assistance providers are uniquely placed to identify systemic problems affecting disadvantaged Australians.


Addressing systemic problems can be an efficient way to use limited funding. â&#x20AC;˘

Civil law matters are the poor cousin in the legal assistance family. Australia's most disadvantaged people are particularly vulnerable to civil law problems and adverse consequences resulting from the escalation of such disputes.14

CLCS USE VOLUNTEERS Most CLCs utilise volunteers and pro bono support to some extent. Without this alternative, additional resource, CLCs would not be able to achieve as many, or as significant, outcomes for their clients. Volunteer paralegals and interpreters allow for the significant growth in advice and services. The volunteer interpreters ensure there is accuracy and greater efficiency in the communication between the lawyers and their clients while volunteer paralegals take instructions and draft advice under the close supervision of lawyers enabling the lawyers to focus on more complex legal issues. For 2012, the National Association of CLCs' survey showed that of 106 CLCs who responded, over 95% used volunteers.15 Of these CLCs, over 3,637 volunteers contributed 8,369 hours per week.16 For 2013, 131 CLCs reported using 4,588 volunteers, who contributed 24,113 volunteer hours per week in the 2012/2013 financial year.17 For 2014, 125 CLCs reported using 6,543 volunteers, who contributed nearly 15,000 hours per week.18 Some 2,306 hours were spent per week responding to volunteers' queries and otherwise supervising volunteers, as reported by 116 CLCs.19 At only 15% of the volunteer hours contributed, the high return on supervision hours is evident.

SIGNIFICANCE OF INVESTING IN VOLUNTEER WORKFORCE The capacity of CLCs to attract, train and utilise large numbers of quality volunteers is a major feature that sets them apart from many other legal service providers. It is important that CLCs continue to invest in volunteers as an alternate or additional source of capacity, especially as they face reduced funding. Doing something that benefits others, beyond self or family, remains a core component of how most people see volunteering. Notwithstanding the importance of such external community benefit, we should also acknowledge the mutual benefit derived from volunteering. This element of mutual benefit will become apparent in the comments of others to follow tonight. I wish to also acknowledge the work burden placed on CLCs in their training and supervision of volunteers. Without the commitment to training and supervising volunteers, CLCs would not be able to rely on competent volunteer resources to continue their good work. In conclusion, I hope that these short remarks have provided some indication of the significance of the contribution made by volunteers to the provision of legal services and assistance by the three CLCs represented at tonight's event, but also to the many CLCs operating across Australia. As a community, we owe a significant debt of gratitude to those who are willing to devote their time and energy to the assistance of the many who find our legal system complex, daunting and inaccessible. NOTES 1.

2.

National Association of Community Legal Centers, Working Collaboratively: Community Legal Centres and Pro Bono Partnerships (2014) Sydney South, NSW. National Census of Community Legal Centres Inc, National Census of Community Legal Centres 2014 National Report (May 2015) Sydney South, NSW p 9, note 3.

3.

Coumarelos, C, Macourt, D, People, J, MacDonald, HM, Wei, Z, Iriana, R & Ramsey, S, Legal Australia-Wide Survey: legal need in Australia (2012), Law and Justice Foundation of NSW, Sydney p 161.

4.

Ibid., p 162.

5.

Ibid., p 14.

6.

Indigenous Legal Needs Project, James Cook University. The Legal Australia-Wide Survey was limited by the small numbers of Indigenous respondents interviewed (above n 3, p 178).

7.

Productivity Commission, Access to Justice Arrangements, Inquiry Report No. 72 (2014), Canberra p 88.

8.

Above n 3, 28.

9.

Above n 7, p 6.

10.

Ibid., p 20.

11.

Australian Council of Social Service, Poverty in Australia (2014), Strawberry Hills, NSW p 46.

12.

Above n 7, p 20.

13.

Ibid., p 671.

14.

Ibid., p 703.

15.

National Association of Community Legal Centers Inc, Working Collaboratively: Community Legal Centres and Volunteers (2012) Sydney South, NSW p 1.

16.

Ibid.

17.

Above n 2, p 26.

18.

Ibid. The NACLC acknowledges the decrease in volunteer hours from 2013 to 2014, but cautions against reading the difference as a decrease; for example there were changes in the sample reporting between the two years.

19.

Ibid., p 29.

REFERENCES Australian Council of Social Service, Poverty in Australia (2014) Strawberry Hills, NSW. Available at: http://acoss.wpengine. com/poverty-2/ Coumarelos, C, Macourt, D, People, J, MacDonald, HM, Wei, Z, Iriana, R & Ramsey, S, Legal Australia-Wide Survey: legal need in Australia, Law and Justice Foundation of NSW, Sydney. Available at: http://www.lawfoundation.net.au/ ljf/site/templates/LAW_AUS/$file/LAW_Survey_Australia.pdf Indigenous Legal Needs Project, James Cook University. Available at: https://www.jcu.edu.au/indigenous-legal-needsproject National Census of Community Legal Centres, National Census of Community Legal Centres 2014 National Report, (May 2015) Sydney South, NSW. Available at: http://www.naclc.org.au/ resources/NACLC_NationalCensusofCLCs_2014_COMBINED. pdf National Association of Community Legal Centers, Working Collaboratively: Community Legal Centres and Pro Bono Partnerships (2014) Sydney South, NSW. Available at: www. naclc.org.au/resources/NACLC_probono_WEB.pdf National Association of Community Legal Centers Inc, Working Collaboratively: Community Legal Centres and Volunteers (2012), Sydney South, NSW. Available at: http://www.naclc. org.au/resources/NACLC_VOLUNTEERS_web.pdf Productivity Commission 2014, Access to Justice Arrangements, Inquiry Report No. 72, Canberra. Available at: http://www.pc.gov.au/inquiries/completed/access-justice/ report

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Surrogacy for Western Australians This paper is a shortened version of a paper delivered at a conference held by the Family Law Practitioners' Association of Western Australia in September 2015.

Michael Nicholls QC and Rachel Oakeley1

For good reason, family lawyers are very concerned about the explosion in International Surrogacy Arrangements (ISA). According to a World Bank estimate the international 'fertility tourism' industry is going to be worth up to US$2.5 billion by 2020. Australians are significant contributors to this commercial market, with some Indian clinics saying that in the past they had provided between 25% and 50% of their clients. Because of the obvious risks of exploiting vulnerable women and children, not everyone regards this with equal enthusiasm.2 But whether or not one approves of what is happening, and despite recent events in Western Australia, it is not likely to decrease and is certainly not going to stop. This paper looks at the Western Australian approach to international surrogacy and the legal problems that will arise for Western Australians when they go into an ISA.3 Western Australians who go into an ISA do so for common reasons; they cannot meet the qualifying criteria for a surrogacy arrangement in Western Australia, possibly because of their sexuality or inability to find an altruistic surrogate or inability to meet the statutory criteria. It may also seem to be a great deal easier and have some legal certainty.4 As the House of Representatives Standing Committee on Social Policy and Legal Affairs in its report 'Surrogacy Matters'5 put it, "To access altruistic surrogacy in Australia, intended parents and surrogates are not only required to navigate complex State and Territory legislation, but they are also faced with limited and inconsistent information on which to base their decision." But it is quite clear to the authors that most (if not all) of them going into (or thinking about going into) an ISA have no real idea of the problems they are likely to face. Those problems include uncertainty as to the civil and legal status of the parties to the arrangement and the child that is likely to arise as a result of the conflict between the legal systems of 12 | BRIEF AUGUST 2016

Western Australia and the State in which the child will be born, limitations on what the Western Australian legal system can provide for them and the child (predominantly a failure to understand the difference between parentage and parental responsibility) and problems about the wider recognition of any order that might be made by Family Court of Western Australia and what difficulties that might bring in the future. Added to that, there is the probability of them having committed a criminal offence. All of those problems are likely to arise in a simple surrogacy arrangement when things have gone according to plan. If they do not go according to plan, matters can be much worse. Australian surrogacy legislation suffers from being highly localised and uncoordinated, because surrogacy is a matter for the individual States and Territories, and not for the Federal Government. All of the States and Territories, except the Northern Territory, have passed legislation about surrogacy arrangements. All Australian legislation about surrogacy provides only for unenforceable altruistic arrangements in which payment to a surrogate is limited to reasonable expenses,6 and criminalises (with extraterritorial effect) commercial arrangements, and generally does not differentiate between 'gestational' and 'traditional' surrogacy.7 In other respects the legislation differs between States. In particular, the treatment of same-sex couples and single people varies quite markedly. Surrogacy is not available to same-sex intending parents in SA or WA8, but is available to them in ACT, VIC, NSW, QLD and TAS9. Surrogacy is available to single men in QLD, NSW, VIC and TAS. In WA, a single woman can enter into a surrogacy arrangement but not a single man. None of the legislation makes any provision either for a parentage order to be made in respect of a surrogacy arrangement made other than under its own terms, or for the recognition of an order conferring parentage as a result of a surrogacy arrangement, whether made elsewhere in Australia or abroad.10

In addition to being unable to access the Australian legislation about surrogacy, another significant problem facing people who are involved in an ISA is that the legal status of the various persons is likely to be determined by equally localised Australian legislation relating to artificial fertilisation procedures that is completely incompatible with the intentions of a surrogacy arrangement. The effect of this is that Australians entering into an ISA go into a minefield of social and political objectives (expressed in the form of a regulatory regime supported by a criminal code) that are completely at odds with their intentions. THE LEGAL STATUS OF THE PEOPLE INVOLVED IN AN ISA The first problem that usually has to be grappled with in an ISA is the identification of the legal relationships between the various people involved and the child, so that the child's civil status can be ascertained for the purposes of citizenship. This involves the identification of his or her legal parents (as opposed to genetic or intended parents) and, as a result, the nationality to which he or she is entitled by descent. The problem is not easy to solve, because the rules used to define parentage when an artificial fertilisation procedure is involved are not of much help in a surrogacy arrangement â&#x20AC;&#x201C; in fact, quite the opposite. This is in part because they were developed to deal with circumstances in which a child born as a result of an artificial fertilisation procedure was to be brought up by the woman receiving the treatment and her husband or de facto partner. So if a child was born to a married woman as a result of artificial insemination by donor (AID) it was obviously necessary for her husband to be regarded as the legal father of the child, not the donor of the sperm. But, as we shall see, the application of these rules has a catastrophic effect in a surrogacy arrangement. What makes matters more complicated is that technology has advanced. Before artificial fertilisation techniques reached


their present levels of sophistication, surrogacy usually involved a procedure using the surrogate mother's own egg and the sperm of the intended father (a 'traditional' surrogacy arrangement). The intended father, as the supplier of the sperm, would usually (but not always) be regarded as the child's legal father, and the surrogate mother the child's legal mother, by both the home country of the surrogate and of the intended parents. So at least one of the intended parents, the intended father, would usually be regarded as the child's legal parent. The problem was therefore limited to conferring parentage on the intended mother. But as artificial fertilisation techniques have advanced, and an embryo can be created from a donor egg and donor sperm and then implanted into a surrogate mother (known as a 'gestational' surrogacy arrangement), it is quite possible for neither of the intended parents nor the surrogate mother to have any genetic link with the child. It is that technological advance that made it necessary for the first time to identify, and legally define, a 'mother'. Resolving those questions of identity will involve applying legal rules about who is (and who is not) a parent that are quite likely to be different in the country in which the surrogate gives birth and the home country of the intended parents, because each State will in all probability apply its own internal law to these questions, including applying its own view about the legality of the arrangement. It is very likely that a conflict of laws will arise that will have serious consequences for nationality and immigration. It is quite possible for an ISA to result in a stateless, parentless child. Western Australian rules about parentage In Western Australia, parentage arising from an artificial conception procedure, is dealt with in the Artificial Conception Act 1985 (WA). That Act applies to artificial fertilisation procedures as defined by the Human Reproductive Technology Act 1991 (WA),11 whether carried out within or without Western Australia, both before or after its commencement, and to children born both before or after its commencement (whether within or without Western Australia), and relates to "the status of persons conceived by artificial means and for related purposes". It ascribes to persons who are involved in "artificial fertilisation procedures" parentage in relation to the resulting child. It is important to understand that the social

" ... whether or not one approves of what is happening, and despite recent events in Western Australia, it is not likely to decrease and is certainly not going to stop." and legal objectives of this legislation (in common with similar legislation elsewhere) are to provide a legal mechanism whereby persons who might not otherwise be regarded as parents are, for the purpose of law, regarded as parents.

child's parents are the intended parents to the exclusion of the surrogate mother) and, although to some people it might seem unlikely, it is perfectly possible for a child to have two 'mothers', in two (or possibly more) different legal systems. Who is the child's father?

Who is the child's mother? For the purposes of the law of Western Australia, the question of who is the mother of a child born as a result of an overseas surrogacy arrangement will depend on either the common law of Australia or the law of Western Australia. If the child was born as a result of a traditional surrogacy arrangement using the surrogate's own egg, the surrogate will be the mother of the child by common law. If the child was born as a result of a gestational arrangement, using a donor egg, ss5 and 7 of the Artificial Conception Act 1985 (WA) will apply; by s5 the surrogate is conclusively the mother of the child, and s7 provides that a woman who donates an egg to be used in another woman's pregnancy is taken not to be the mother of the child. The problem is, of course, that the law of the country in which the child is born may not regard the surrogate mother as being the child's 'mother' (whether by operation of law or administrative act, such as providing a birth certificate in the names of the intended parents, or as a result of an order to the effect that the

It is quite possible that a child born as a result of an ISA may have one father, two fathers, or no father at all. In Western Australia, s6 of the Artificial Conception Act 1985 (WA) deals with paternity and provides that the husband of woman who becomes pregnant through artificial conception will be deemed to be the father of the child if he consented to the procedure. So if the surrogate is married, or in a de facto relationship with a man, and she undergoes an artificial fertilisation procedure with the consent of her husband or de facto partner (as will almost certainly be the case if there is a commercial surrogacy arrangement involving a married woman) then her husband or de facto partner is conclusively presumed to have caused the pregnancy and to be the father of the resulting child. From the point of view of the intended father, it does not matter if the sperm used to create the embryo was provided by him, or by a donor, or that the surrogate is not either married or in a 13


de facto relationship, because s7(2) provides that a man, other than a woman's husband who donates sperm for artificial conception is categorically not the father of any resulting child. Summary Applying ss5, 6 and 7 of the Artificial Conception Act 1985 (WA), it would seem that where there has been an ISA the surrogate will be regarded as being the child's mother and her husband or de facto partner, if she has one, the child's father. If she does not have a husband or de facto partner, the child will have no father. Neither the intended father nor the intended mother will be regarded as being the child's mother or father, regardless of whether they provided any of the genetic material that created the child. Could the intended parents be 'parents'? If the intended parents cannot be the mother or father of the child, could they nevertheless be 'parents', given that there appears to be no exclusive definition of 'parent' in Western Australia? In particular, could the intended father, if he supplied the sperm, be a 'parent'? The short answer is 'no'. Although in Blake & Anor12 Crisford, J was prepared to find that one of the two male applicants in that case was a parent, so that orders could be made approving adoption by the other intended parent, that decision was not upheld in the later case of Farnell v Chanbua.13 In that far-reaching case, the Chief Judge decided that there was no scope for the donor of the sperm to be a parent, and accordingly no declaration to that effect could be granted. Applicable law An added complication for Western Australians is that their State is the only one that has not referred its powers over ex nuptial children to the Federal Parliament, so they have to be dealt with under State, not Federal, legislation, which although very similar in most respects is not identical. The effect of this is that in Western Australia children born as a result of an overseas surrogacy arrangement involving a married surrogate would probably have to be dealt with, in so far as an application for a parenting order is concerned, under the Family Law Act 1975 (Cth) but children born to an unmarried surrogate will be dealt with under the State act, the Family Court Act 1997 (WA).

14 | BRIEF AUGUST 2016

Criminal offences In Western Australia there is an offence of "Making surrogacy arrangement that is for reward". Section 8 of the Surrogacy Act 2008 (WA) provides that: "Making surrogacy arrangement that is for reward A person who enters into a surrogacy arrangement that is for reward commits an offence." In addition, "commercial trading in human eggs, human sperm or human embryos" is also a criminal offence.14 And it is a criminal offence in Western Australia to "cause or permit" an artificial fertilisation procedure except pursuant to a licence or exemption by which it is authorised by the Human Reproductive Technology Act 1991 (WA). In some States, there are specific extraterritorial prohibitions on commercial surrogacy arrangements, but in Western Australia offences relating to surrogacy arrangements and reproductive technology have extraterritorial effect by virtue of s12 of the criminal code of Western Australia. The route to parentage States to which intending parents bring children born as a result of an ISA are faced with something of a fait accompli â&#x20AC;&#x201C; if the child's legal parents, as they are perceived to be, want nothing to do with the child, and may well not be regarded in their home country as her parents at all. The only people who want to be parents are the intended parents. In those circumstances, all other things being equal (in the sense of them being capable of being adequate parents) the intended parents may well get parental responsibility by way of a parenting order under either the Family Law Act 1975 (Cth) or the Family Court Act 1997 (WA). But that does not make them 'parents'. They cannot apply for a parentage order, because the surrogacy arrangement would not have been approved in writing by the Western Australian Reproductive Technology Council,15 so adoption would seem the only way forward. Adoption is, however, not without its problems. As the West Australian Department of Child Protection and Family Support points out, adoptions are arranged within a highly regulated framework, and "The Adoption Act sees no link between surrogacy and adoption. The principle behind surrogacy is to provide a child for those unable to have their own. The principle behind adoption is to provide a new family for a child who

cannot be raised by their birth family."16 Nevertheless, despite this less than encouraging stance, adoption may well be the only way to parenthood. The future The criminalisation of commercial surrogacy arrangements by the various State legislative regimes shows no signs of being reversed17 and there are calls for the legislation to be tightened. But whether that will deter the Australians who are engaging in what might be described as "fertility tourism", is another question.18 Although hundreds of babies have entered Australia as a result of international commercial surrogacy arrangements, there have been very few prosecutions, although that could well change, particularly in relation to individuals or organisations who are acting as agents to facilitate commercial ISA. The hopes of intended parents might have been raised by a report on Parentage and the Family Law Act that the Family Law Council released in August 2014 in which it recommended (among other things) a Federal Status of Children Act specifically dealing with applications for transfer of parentage in surrogacy cases where State and Territory Acts do not apply. The report states: Council is of the view that it is in the best interests of children born from international surrogacy arrangements that a child has at least one parent in Australia who is legally recognised as a parent. As noted above, Council believes that a process of parentage transfer, subject to judicial oversight, is the preferred option pending an international regulatory response to the issue of overseas surrogacy arrangements In April 2016 the House of Representativesâ&#x20AC;¨Standing Committee on Social Policy and Legal Affairs released its report 'Surrogacy Matters', in which it made a number of recommendations, including that, whilst commercial surrogacy should remain illegal, the Australian Government should, in conjunction with the Council of Australian Governments, consider the development of a model national law that facilitates altruistic surrogacy in Australia. The model law should have regard to four guiding principles: (a) that the best interests of the child should be protected (including the child's safety and well-being and the child's right to know about their origins); â&#x20AC;¨ (b) that the surrogate mother is able to


make a free and informed decision about whether to act as a surrogate; 
 (c) that sufficient regulatory protections are in place to protect the surrogate mother from exploitation; and 
 (d) that there is legal clarity about the parent-child relationships that result from the arrangement. Internationally, matters are changing quickly. The Hague Conference is undertaking a comprehensive review of the position, in which Australia is represented by Federal Circuit Court Chief Judge Pascoe. Some States that permitted foreigners to enter into surrogacy arrangements no longer do so. In July 2015, the Thai Government effected a ban on commercial surrogacy. In September 2015, the Nepalese Government issued a ban on all surrogacy services. In November 2015, the Government of India issued advice confirming surrogacy was no longer accessible to foreigners. In January 2016, the Congress of the Mexican state of Tobasco enacted a ban on surrogacy for foreigners.19 In contrast, China reversed its ban on surrogacy through legislative amendment, which came into effect in January 2016. Crossborder surrogacy remains available in some states of the USA and a number

of countries including the Ukraine, Russia, Guatemala, Kenya, Uganda, Mozambique and Ghana. NOTES 1.

© Michael Nicholls QC practices from Francis Burt Chambers in Perth. Rachel Oakeley practices from John Toohey Chambers in Perth.

2.

See, for example, "Intercountry surrogacy - A new form of trafficking?" Chief Federal Magistrate John Pascoe AO CVO (paper delivered on 19 September 2012). And see Centre for Social Research, India (< www.csrindia. org >), "Surrogate Motherhood – Ethical or Commercial" (March 2012). Based on interviews with 100 surrogate mothers, 50 intending parents and clinics, concerns reported included: illiterate surrogates given inadequate, or no, independent advice; contracts often not signed until mid-way through the fourth month of a pregnancy; the overwhelming majority of surrogates indicated that they had decided to become a surrogate due to 'poverty'; there were concerns about pressure from others (e.g., agents, husbands) to become a surrogate; a lack of transparency regarding the fees paid to surrogates.

3.

For an extensive overview of international surrogacy, see the website of the Hague Conference on Private International Law, www.hcch.net "The Parentage/ Surrogacy Project". The Hague Conference on Private International Law has recently been carrying out extensive work on the private international law issues being encountered in relation to parentage, filiation and, in particular, international surrogacy arrangements.

4.

Paragraph 1.75.

5.

April 2016.

6.

So commercial surrogacy is illegal in every State of Australia – see Farnell v Chanbua [2016] FCWA 17 at [195]; 'Surrogacy Matters', Foreword, p v.

7.

In a 'traditional' surrogacy arrangement, the surrogate mother uses her own egg to conceive; in a 'gestational' surrogacy arrangement an embryo created from gametes supplied by the intended parents or from donated material is implanted into the surrogate. Section 40(1)(ab) of the Assisted Reproductive Treatment Act 2008 (VIC) prohibits the surrogate's own egg being used.

Family Relationships Act 1975 (SA). 9.

Sections 7(1), 23(b) Parentage Act 2004 (ACT); Section 40, Assisted Reproductive Treatment Act 2008 (VIC), s3 Status of Children Act 1974 (VIC); s30 Surrogacy Act 2010 (NSW); s14 Surrogacy Act 2010 (QLD), ss7(1)(b) and 16(2)(h) Surrogacy Act 2012 (TAS).

10.

In so far as Australia is concerned, parentage orders made as a result of surrogacy arrangements by the various States will be recognised throughout the Commonwealth of Australia by virtue of s118 of the Constitution: "Full faith and credit shall be given, throughout the Commonwealth to the laws, the public acts and records, and the judicial proceedings of every State."). And if a person or persons are regarded as being the parents of a child born as a result of a surrogacy arrangement by an order made in a State or Territory, the child is regarded as being their child for the purposes of the Family Law Act 1975 (Cth) and its associated rules of court – see Family Law Act 1975 (Cth), s60HB.

11.

An artificial fertilisation procedure is defined by s3 of the Human Reproductive Technology Act 1991 (WA), to mean any artificial insemination procedure or in vitro fertilisation procedure.

12.

[2013] FCWA 1.

13.

[2016] FCWA 17.

14.

Human Reproductive Technology Act 1991 (WA), s53Q. However, "valuable consideration" does not include "reasonable expenses" – see s53Q(4), so provided only "reasonable expenses" are paid, no offence is committed.

15.

Surrogacy Act 2008 (WA), ss16 and 17.

16.

Department of Child Support and Family Protection (WA) website.

17.

The collective approach of the Australian AttorneysGenerals is that "the rule against commercial surrogacy, will preclude exploitative arrangements with third-world surrogates" – see Standing Committee of Attorneys General 'A Proposal for a national Model to Harmonise Regulations of Surrogacy' 2009.

18.

The Department of Immigration and Border Protection estimates that it deals with approximately 250 offshore surrogacy cases each year, a number that has held steady in recent years. ("Surrogacy Matters", para 1.69.)

19.

Only heterosexual couples who are Mexican citizens will be allowed to participate in surrogacy.

Section 19(2) Surrogacy Act 2008 (WA), s10HA(2)(b)(iii)

8.

LEGAL PRACTICE MANAGEMENT COURSE Making a Move? This course is approved under the Legal Profession Rules for those required to undertake a Legal Practice Management Course.

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15


Speech to open David Malcolm Justice Centre The Hon Michael Mischin MLC Attorney-General of Western Australia

Thank you. Pauline Bagdonavicius, Acting Director General of the Department of the Attorney General, and I note and endorse your acknowledgment of the special guests present today. Thank you also to Dr Richard Walley for his warm welcome to country. I also acknowledge that the Chief Justice of Western Australia, the Hon Justice Wayne Martin AC, is unable to attend today due to his commitments as Lieutenant-Governor. On 14 September 2009, Chief Justice Martin, delivered his Law Week address, 16 | BRIEF AUGUST 2016

and mentioned the challenges facing the administration of justice in this state. He opened on the theme of court infrastructure, and was critical of the condition of some of the courts around this State. In respect of regional courts, he spoke of the inadequacy of the courts in Kununurra, Broome, Karratha, Carnarvon and Kalgoorlie, and complained that although Fitzroy Crossing had been blessed with funding for a new police complex, there was none for the

courthouse. He also made specific reference to the failure, notwithstanding some 20 years of proposals, submissions, arguments and promises, to provide adequate and contemporary facilities for the Supreme Court of Western Australia. Fast-forward to today. I am proud to be part of the Government that in the past seven years has addressed many of these inadequacies to an unprecedented scale.


The Kalgoorlie Courthouse – which the Chief Justice complained had been planned but that there were no funds set aside to refurbish – has been completed in a manner that has preserved the heritage-listed building in Hannan Street. Kununurra has a new state-of-the-art Justice Complex as does Carnarvon. Late last year I opened the Fitzroy Crossing courthouse, a fitting complement to its new Police station. While Broome still requires attention, Karratha is a work in progress, with plans to move the temporary facilities that served Kununurra to Karratha pending a more permanent facility in a revitalised regional city centre. Land is in the process of acquisition upon which to locate a new Armadale Court and Police complex. In short, there has been over $150 million of unprecedented investment in the regions alone to address the very issues of which the Chief Justice rightly complained, and which will serve our State's needs for the next half century. And now we open the latest addition to that – the David Malcolm Justice Centre – fittingly named in honour of the Chief Justice who, during his distinguished term in office of some 18 years, did so much to try to have it built. It is unfortunate that the Hon David Malcolm is not here to witness the

fulfilment of his hopes and efforts in that regard. But If I may be so bold, I think he would be pleased with what we have done. It may not be in the form that he imagined, but we now have what he and others have strived for – a new, state-ofthe-art home for our Supreme Court's civil jurisdiction and its judicial officers and staff, in the largest fit-out undertaken by government in a single project. The building itself is designed with the environment in mind, with a five-star green office design rating and the first gas-fired tri-generation plant to be installed in a Perth office building. Court facilities will include 26 hearing rooms, including eight trial courts, 10 multi-purpose hearing rooms, and eight mediation rooms. The courtrooms will incorporate the latest audio-visual technology, including touchscreens, high definition displays for the presentation of evidence, and remote video feeds. The multi-purpose rooms are designed to allow for maximum open space, natural light, comfortable furniture, and flexible usage. They can be joined together when more space is needed, or divided for separate rooms. A larger-than-usual number of mediation and break-out rooms are also available, facilitating the non-court resolution of disputes. It will house a dedicated law library,

combining the collections of the existing Supreme Court and Department of the Attorney General libraries, to make the State's largest single legal collection outside a university. The building will also house the Department of the Attorney General, the State Solicitor's Office, SolicitorGeneral's Chambers, Parliamentary Counsel's Office and the Public Advocate, as well as the Department of Treasury. This building is not only the centrepiece of a rejuvenated Cathedral Square area and revitalised city centre but, along with the new State Administrative Tribunal building and the Public Trustee's offices completed by this government, will create a "legal and justice precinct" for our capital city, proximate to the Magistrates and District and Family Courts. It has been a complex and expensive project delivered, I am pleased to say, on time and on budget, and one that is an investment in our State's future as well as being an ornament to our city. I thank everyone involved in bringing this project to fruition. I think that the Hon David Malcolm, whose name it bears, would not be unhappy with what has been achieved here and, on that note, declare this building open for business.

17


Risk Based Auditing and Internal Service Standards Julie Ots Ots & Associates

The Quality Practice Standard (QPS) was written with the aim of addressing the key risk issues found within legal practices. While the aim of this article is to assist with the successful implementation and maintenance of the QPS, the concepts are applicable to all firms. It is highly recommended that management consider the establishment of relevant key performance indicators for their firm and introduce a system of regular internal audits based on the areas of identified risk. RISK BASED AUDITING Internal auditing based on areas of identified risk will give management an ongoing assurance of compliance and will promote a risk minimisation culture within the firm. HOW TO UNDERTAKE MEANINGFUL INTERNAL AUDITS The firm should start the process of risk based internal auditing by determining the objectives of the firm. From a QPS perspective, these objectives should have a client and compliance focus. An example of a common simple objective is "completion of file registration information within two working days of instructions." 18 | BRIEF AUGUST 2016

Once the objectives have been established, the firm needs to consider what obstacles or risks exist that can hinder the achievement of the firm's objectives. This may entail some teasing out of the underlying root causes of these obstacles and risks. An example of an obstacle to finalised registration of a matter is the absence of a single place for the information or a standard set of data collected for each matter. Finally, the firm needs to develop internal processes and procedures aimed at reducing the impact or eliminating the identified obstacles and risks. An example, consistent with examples above, may be the creation of a standard file opening form and asking a person to check the forms or remind others about the need to complete forms. Part of the successful implementation of the developed processes and procedures is the establishment of relevant Internal Service Standards that can provide qualitative and quantitative assurance that the identified risk areas are successfully controlled. Once the procedures are implemented and the relevant internal service standards have been established, the risk based auditing process can proceed.

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A more sophisticated example of how this process works could be as follows: Objective: To run profitable matters. Risks and Obstacles: 1): Client's not paying accounts on time Underlying reasons for slow payment

How to mitigate this obstacle

Internal Service Standards example

Work undertaken was not in Document all conversations Acknowledge and confirm accordance with the client's with client and confirm scope instructions within two working instructions or expectations. of work with client in writing. days.

Audit Points Have instructions been acknowledged within two working days?

Invoice exceeds initial cost estimate.

Confirm cost estimate based Review WIP against agreed cost Is there a review of WIP against on the agreed scope with estimate at least monthly and estimates at least monthly? client in writing. advise client of any costs above the agreed estimate. Has the client been provided with revised cost estimates where necessary?

Large invoice difficult for client to budget.

Establish billing interval and maximum invoice amounts with client.

Using the above approach, a meaningful method for auditing can be established. The internal service standards provide clear evidence of how successful the firm has been in reducing the impact of the identified risks and for that reason provide information on the progress towards meeting the firm's objectives. Once the audit points are established, the firm should consider how the audits will be coordinated. •

Will each matter be audited or will a random selection of matters be audited?

At what frequency will the audits be conducted – monthly, quarterly, six monthly?

Who will conduct the audits – administration staff, supervisors, peers?

What action will be taken on any identified breaches of the service standards?

Review WIP against agreed Are bills raised at the frequency billing amounts weekly and agreed with the client? invoice at the agreed frequency.

What records are retained to follow up past areas of concern?

determining the risks and controls that are relevant to them.

What discussion has there been about relevance of the objective the process for checking and improvements to assist the firm?

The Risk and Control Map is available at lawsocietywa.asn.au/risk-management.

Management should aim for open communication on what it is trying to achieve and should encourage feedback from staff. The goal of this process is to introduce a risk awareness culture within the firm. Law Mutual (WA) has developed a Risk and Control Map that sets out the key professional liability risks facing law firms, along with measures for reducing them. It was introduced to Law Mutual (WA) insured practitioners during the 2015 Risk Management Seminars. While this Risk and Control Map is only a guide, it is a very useful tool for practitioners to use when considering the particular circumstances of their practice when

CONCLUSION There can be no simple "prêt–à–porter" method for addressing risk in a firm due to the diversities of practice areas, differing firm structures and varying management styles. However, by engaging staff in the analysis of the risks and the development of process and procedures to mitigate those risks, a risk minimisation culture will be developed within the firm. This will lead to a reduction in client complaints, compliance breaches and loss revenue.

For more information about Quality Practice Standard, visit lawsocietywa.asn.au/qps or contact Francesca Giglia on (08) 9324 8606 or qps@lawsocietywa.asn.au.

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding. E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth. We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

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

19


Seeking Justice This article was first published in Law Council Review, May 2016.

Access to justice is fundamental to a civilised society, yet it is out of reach for many Australians. In a country that cites 'a fair go' as a defining value, access to justice surely goes to the heart of what it means to live in a truly fair nation of laws. The right to access justice should occur regardless of where one lives, one's wealth, one's social status, one's capacity to speak English or any other factor. The inescapable reality about ensuring meaningful access to justice, however, is that it costs money. Citizens and other legal entities need more than the formal legal right to access legal institutions and defend their interests; they also require the practical means to do so. 20 | BRIEF AUGUST 2016

This fact is broadly understood by Australians. In fact, most Australians believe that if they encounter legal difficulty and cannot afford a lawyer, they will be entitled to legal aid. Unfortunately, in 2016, this is not the case. A severe drop in funding for legal aid aver the past 20 years means that a strict means test is now applied. At current funding levels, civil law assistance is virtually unavailable to anyone who is not in receipt of Centrelink benefits, meaning just five per cent of Australians now qualify for legal aid. Even in cases where people pass the means test and other applicable tests, Legal Aid Commissions (LAC) in each State and Territory may still not have

enough funding to help them in criminal, family or civil law matters. This leaves the vast majority of Australians without legal protection when they most need it. Many of those who do not qualify for legal aid are completely unable to afford the services of private lawyers to conduct their cases, or are unable do so without significant hardship. Increasingly restrictive means testing has left many people who live below the Henderson Poverty Line (an established measure of disadvantage) being denied legal aid. In short, Australians are being denied access to justice because there is simply not enough government funding. Furthermore, legal aid is not provided for every type of legal problem. Due to the scarcity of resourcing, the focus tends to be on matters Involving children, such as family law, or on people who are at high risk of imprisonment.


As a result, other important matters such as housing, financial or employment issues are forced off the agenda. Small wonder then that the number of unrepresented litigants In Australian courts and tribunals has been growing significantly over the past two decades. Individuals are being left to battle well-resourced corporate opponents, abusive former partners or government agencies without any legal assistance or representation at all. So how did we get to this point?

THE SITUATION TODAY The Commonwealth Government may have reversed the most devastating single round of cuts to legal assistance services in the 2015 budget, yet failure to commit any additional funds to legal aid has still left a huge gap in service access. A substantial further decline in Commonwealth funding for LACs is expected over the forward estimates, a funding decline that looks set to have serious consequences not just for the availability of legal aid, but also on the functioning and cost of the justice

Commission made it crystal clear that greater funding was the only genuine solution. "While there is some scope to improve the practices of legal assistance providers, this alone will not address the gap in services. More resources are required to better meet the legal needs of disadvantaged Australians," it found. It recommended that civil legal aid needed an immediate $200 million injection in additional funding from the Federal Government. The Commission noted that while $200 million was never

THE DECLINE OF LEGAL ASSISTANCE In July 1997, the Australian Government changed Its arrangements to directly fund legal aid services for Commonwealth law matters only – part of what is generally known as the 'Commonwealth/State funding divide'. The drop in funding coupled with restrictive Commonwealth guidelines on where Commonwealth-funded assistance can be given has resulted In a significant reduction in Commonwealth responsibility for national legal aid. Subsequently, the ratio of federal-tostate funding, once matched dollar for dollar, has slumped dramatically. The Commonwealth's share of total spending on legal aid has declined from 55 percent before 1996-97 to 32 percent today. In dollar terms, the Commonwealth's contribution to Legal Aid Commission funding has reduced significantly, from around $10.88 per capita in 1996-97 to around $8.01 per capita. In addition to Commonwealth and State Government payments, Legal Aid Commissions receive funding from the Public Purpose Funds, which are largely derived from the interest on funds held in trust by solicitors. Yet this source of revenue is vulnerable to economic fluctuations and the changing nature of transactions. With the economic downturn, distributions from these funds have been greatly reduced. The gradual but steady erosion in Commonwealth funding was dramatically accelerated in 2014 when a new Federal Government used its first budget to drastically slash legal assistance services as part of its cost saving drive. Multiple representations from the Law Council and other law societies and bar associations throughout 2014 fortunately resulted in the reversal of this decision in the 2015 budget. The pre-existing structural problem, however, remains.

" ... Australians are being denied access to justice because there is simply not enough government funding." system as a whole. In a 2009 report, PwC estimated that a $1 cut in legal aid funding costs the Australian Government between $1.60 and $2.25 in reduced efficiency of the courts alone. This figure is shocking enough, but consider what it does not include. The unmet legal need leads directly to costly social problems like unemployment, homelessness, familial breakdown, crime and recidivism. We know that lives – especially those of vulnerable Individuals – are often derailed by adverse justice outcomes or unmet legal need. Without legal aid to mitigate against this risk, there are unquestionably greatly increased demands on public health utilities, mental health services, unemployment benefits, community programmes, and police resources. The broader economic ramifications were rammed home In December 2014 when the Productivity Commission published the findings of its inquiry into legal assistance. Advocating for increases in funding (however modest) in a time of fiscal tightening is challenging, the Commission wrote. However, not providing legal assistance in these instances can be a false economy as the costs of unresolved problems are often shifted to other areas of government spending such as healthcare, housing and child protection. Observing that "numerous studies" had shown that "efficient government-funded legal assistance services generate net benefits to the community," the

easy to stumble upon in the modern climate, in this case, such an investment was wholly warranted. Yet despite the Productivity Commission's careful research and rational conclusions, meaningful action from the Federal Government remains – at this stage – non-existent. To address the growing gap in funding, the legal profession has increasingly stepped up efforts in the field of pro bono work and reduced-rate legal services. In many cases, firms have also accepted legal aid briefs at unreasonably and unsustainably low rates. The problem is that this situation simply cannot be relied upon to continue. Furthermore, the early signs of a collapse in the good faith necessary to provide these services are already showing, with the withdrawal of law practices from legal aid work. The simple fact is that the legal profession's pro bono contribution can never truly replace the responsibility of government to provide access to legal assistance for those who cannot afford it. If Australia is serious about providing access to justice then there is no escaping that the Commonwealth, as the largest revenue-raising entity, must bear primary responsibility for the substantial shortfall in funding for legal assistance services. IT IS TIME FOR CHANGE The Law Council of Australia has long been committed to fighting for a revitalisation of legal assistance, and the victory in reversing the 2014 budget cuts was a significant one.

21


Nevertheless, it is the Law Council's view that as a profession we need to recognise that if Federal Government funding for legal aid has been allowed to slip for a generation, it is because the case for its retention has not been persuasive enough. It has been too easy for a list of Federal Treasurers to simply bump legal assistance down the list of priorities until it falls off the bottom. Despite the abundant evidence – including the Productivity Commission's detailed report – Attorneys General from the late 1990s onward have been unable to make the case that funding for legal aid should leapfrog other priorities. That is why in this election year the Law Council has been campaigning to urge the Commonwealth to increase its legal aid funding to equal the current

contribution of the States and Territories. As the legal year opened on 1 February 2016, the Law Council, together with its constituent bodies from across the nation, announced a coordinated national campaign on legal aid funding. The key objective is raising public awareness of the need for greater Commonwealth funding for legal assistance services, specifically Legal Aid Commissions, Aboriginal and Torres Strait Islander Legal Services, Community Legal Centres and Family Violence Prevention Legal Services. The key messages of the campaign are simple: •

The Commonwealth needs to increase its share of funding to legal aid commissions to equal that of the States and Territories;

The Commonwealth, States and Territories should immediately and additionally contribute $200 million to cover civil legal assistance, as recommended by the Productivity Commission.

During 2016, the Law Council has and will continue to work with law societies and bar associations and with political representatives. Those of us in the legal profession understand how critical an issue legal assistance is, and the devastating impact the structural funding crisis is having on our court system and beyond. The current election year provides a perfect opportunity to make the case for adequate legal aid funding.

JUSTICE OUT OF REACH A solicitor at the coalface of legal aid services recounts the lived experience of those impacted when access to justice is out of reach:

"We are one of a small number of specialist centres that are part of a National Welfare Rights Network across the country that assist people who are having legal problems with Centrelink. Many of our clients are simply mums and dads who developed serious illness and don't know their options or have experienced difficulty accessing entitlements from the opaque and complicated social security system. We are swamped with people needing assistance and on a daily basis we need to make difficult decisions about who we can and can't help. If we meet someone with a complex situation, we need to weigh that up against the possibility of helping several people with less complex issues. Either way, people miss out.

22 | BRIEF AUGUST 2016

Sometimes the best we can do for people is give them a kit of information and send them on their way. We seldom know the outcome for these people. We do know that many become homeless without access to justice. Many of our clients have already or are likely to lose the roof over their heads through no fault of their own. For example, Bill had an acquired brain injury but was working and was married with three children living at home. His partner became seriously and suddenly ill and epileptic and could no longer work or care for the family. Bill needed to stop working to look after their insulin dependent baby, his wife and the other school-age children. He would have been eligible for social

security had it not been for the fact that he had received a compensation payment for his acquired brain injury, which he used to buy a house. We were able to have the Centrelink exclusion period varied, but without such assistance, it is likely his whole family would have become homeless. We see similar cases again and again and our service is oversubscribed by 50 to 100 percent. We would love to be able to contribute to solutions that resolve the systemic access to justice problems, but our resources are so stretched, there's little opportunity to focus on the big picture. This is the challenge for policy makers — and we hope they rise to this challenge. Soon!" Graham Wells, Principal Solicitor at Social Security Rights Victoria.


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Advocate's immunity â&#x20AC;&#x201C; the High Court speaks (yet again) Alain Musikanth Barrister, Francis Burt Chambers Senior Vice President, the Law Society of Western Australia

On 4 May 2016, the High Court handed down its decision in Attwells v Jackson Lalic Lawyers Pty Limited1. The decision involved consideration of whether an advocate's immunity from suit at common law extends to negligent advice which leads to settlement of a case by agreement between parties in civil proceedings. By majority the High Court held that the immunity did not so extend2. The Court also declined to accept a submission advanced on behalf of the appellants that the immunity be abolished.

ADVOCATE'S IMMUNITY At common law an advocate cannot be sued by his or her client for negligence in the conduct of a case in court, or in work done out of court which leads to a decision affecting the conduct of a case in court3. This principle, known as "advocate's immunity", also applies where a legal practitioner gives advice which leads to such a decision â&#x20AC;&#x201C; regardless of whether the practitioner giving the advice is acting as an advocate or as a solicitor instructing an advocate4. The question is not whether some "special status" should be accorded to advocates above that occupied by members of

24 | BRIEF AUGUST 2016

other professions5. Rather, the central justification for the immunity is the notion that "controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances" 6. Put another way, the immunity is grounded in policy that a controversy should not be reopened by a collateral attack which seeks to demonstrate that a judicial determination was wrong7. The extension of the immunity to work performed outside of court has, in turn, been justified on the basis that, "it would be artificial in the extreme to draw the line at the courtroom door"8. However, not all work which is in any way connected to the litigation is covered by the immunity.


A majority of the High Court has explained that: •

the immunity applies to "work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or ... 'work intimately connected with' work in a court"; and in its view those two statements of the test do not differ "in any significant way"9.

As was observed on these pages some 11 years ago,10 in 2005 the High Court resolved by majority11, in D'Orta-Ekenaike v Victoria Legal Aid12, to confirm the position regarding the immunity under Australian common law13 in accordance with an earlier decision of the High Court (also reached by majority14) some 6½ years before in Giannarelli v Wraith15. However, unlike both those earlier cases in Attwells all members of the High Court were unanimous in affirming the continued existence of the immunity under Australian common law16. Their Honours differed, however, in their views as to its scope. ATTWELLS V JACKSON LALIC – THE FACTS Mr Attwells and Ms Lord (the guarantors) guaranteed payment of the liabilities of a company, Wilbidgee Beef Pty Limited (Wilbidgee), to Australia and New Zealand Banking Group Limited (ANZ). Wilbidgee defaulted on its obligations to ANZ, and the bank commenced proceedings against Wilbidgee and the guarantors in the Supreme Court of New South Wales (guarantee proceedings). The guarantors and Wilbidgee retained Jackson Lalic Lawyers Pty Limited (Jackson Lalic) to advise and act for them in relation to the guarantee proceedings. The amount of Wilbidgee's indebtedness to ANZ was almost $3.4 million and was secured by various securities given in favour of ANZ. However, the liability of the guarantors under their guarantee in favour of ANZ was limited to $1.5 million. On the opening day of the trial, 15 June 2010, counsel for ANZ acknowledged in open court that the claim by ANZ against the guarantors on the guarantee was limited, that ANZ accepted that the debt due by the guarantors on the guarantee was $1.5 million plus interest and enforcement costs and that the amount of the debt owed by the guarantors, as certified by ANZ, was $1,856,122. On the same day, senior counsel briefed by Jackson Lalic to appear for the guarantors negotiated a settlement of the guarantee proceedings on terms that there would be judgment for ANZ for $1.75 million, inclusive of costs, and Mr

Attwells and Ms Lord would have until the end of November 2010 to pay that amount. Shortly after the luncheon adjournment on 15 June 2010, senior counsel approached the guarantors and a solicitor employed by Jackson Lalic and said words to the effect, "I have got you [$1.75 million] and November to pay. Is that OK?" The guarantors gave instructions to settle the proceedings on that basis. At about 2.30 pm, the court was informed that the guarantee proceedings had been settled, subject to terms. The hearing of the guarantee proceedings was adjourned to facilitate preparation of the settlement terms to be handed up the following day. During the afternoon, draft terms of settlement, in the form of consent orders, were prepared by the solicitors for ANZ and forwarded to the Jackson Lalic solicitor. On the evening of 15 June 2010, the Jackson Lalic solicitor advised the guarantors that they should sign the consent orders and consent to judgment against themselves, in favour of ANZ, in the sum of approximately $3.4 million because, if they defaulted in payment of the sum of $1.75 million by 19 November 2010, it would not make any difference if the judgment in favour of ANZ was for approximately $3.4 million or any other sum. The guarantors signed the consent orders. The consent orders were submitted to the court on 16 June 2010.

the terms of the consent orders, and in failing to advise them as to the effect of the consent orders. THE IMMUNITY AND SETTLING CIVIL PROCEEDINGS The majority (French CJ, Kiefel, Bell, Gageler and Keane JJ): The majority held that the immunity did not apply on the facts before it. In its reasons, the majority noted that there is a specific concern which justifies the immunity. It is this: once a controversy has been finally resolved by the exercise of the State's judicial power, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination is wrong17. Consistent with that view, the majority reached conclusions, among others, to the following effect: •

the immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court18;

that is so because it is the participation of the advocate as an officer of the court in the quelling of controversies by the exercise of "judicial power" which attracts the immunity19;

the notion of an "intimate connection" between the work the subject of the claim by the disappointed client and the conduct of the case is only concerned with work by the advocate that bears upon the judge's determination of the case20;

negligent advice to plead guilty in a criminal case does affect the determination of the case by the court21 because:

The consent orders comprised two sections – the first reflected orders of the court while the second recorded an agreement between the parties. The first section reflected entry of a "[v]erdict and judgment" for ANZ against the guarantors and Wilbidgee in the sum of approximately $3.4 million (judgment debt). The second section recorded, in effect, that ANZ would not enforce the judgment debt provided, relevantly, that the guarantors and Wilbidgee paid the amount of the judgment debt to ANZ on or before 19 November 2010 and that if the guarantors and Wilbidgee did not do so ANZ and the receivers of Wilbidgee would be at liberty to enforce the judgment debt forthwith.

o the connection of a plea of guilty at committal is intimately connected with the hearing of that matter (as the timing of the plea affects the sentence imposed)22; and o the judicial function is squarely engaged in determining whether to accept a plea of guilty (as a court may not accept the plea unless it is freely made by the accused)23;

The guarantors failed to meet that obligation, and a subsequent attempt to set aside the settlement as an unenforceable penalty was dismissed. Mr Attwells and the second appellant (an assignee of Mr Attwells's rights against the Jackson Lalic) then issued proceedings in the Supreme Court of New South Wales against Jackson Lalic alleging that it had been negligent in advising the guarantors to consent to judgment being entered against them in

the immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings24;

on the facts: o the primary judge had made no finding of fact or law which 25


resolved the controversy between the parties25;

there were also restrictions concerning the reopening of orders once formally made reflecting the general principle of finality of litigation and underpinning the immunity as explained in D'Orta36;

o the substantive content of the rights and obligations established by the consent orders was determined by the parties without any determination by the court26;

o no exercise of judicial power determined the terms of the agreement between the parties or gave it effect as resolving the dispute; and,

the fact that the judgment was entered by admission or consent did not detract from this and the rights of the parties merged in that 'final' judgment37; and,

Jackson Lalic's work was done directly for the final quelling of the guarantee proceedings, by the exercise of judicial power, and was "work intimately connected with" work in a court – ending when the verdict and judgment, recorded in the orders, was made38.

o while the consent orders may have facilitated the enforcement of the compromise, the agreement of the parties settled its terms27. Dissent (Gordon J and Nettle J): In dissent both Gordon J and Nettle J concluded that the immunity applied.

Nettle J agreed with Gordon J and gave further reasons. Those reasons included conclusions to the following effect:

Among other things Gordon J held in effect that:

when a matter is settled "wholly out of court", the settlement does not move the litigation toward a determination by the court. Consequently, advice to enter into such a settlement does not attract the immunity39;

however, where a matter is settled out of court on terms providing for the court to make an order by consent that determines the rights and liabilities of the parties, "the settlement plainly does move the litigation toward a determination by the court"40;

the outcomes in D'Orta and Attwells were similar because both the conviction and sentence in D'Orta (which had arisen following a practitioner's advice to enter a guilty plea at committal), and the verdict and entry of judgment in favour of ANZ in Attwells, were "final"28; the contention that Mr Attwells was not indebted to ANZ in the amount recorded in the judgment was central to the claim against Jackson Lalic. It followed that the claim necessarily disputed the judgment entered in respect of the dispute commenced by ANZ, and this was a direct and impermissible challenge to finality29; the (first) portion of the orders comprising the verdict and judgment for ANZ in the sum of approximately $3.4 million30 was an order of the court31;

that order took effect through the authority of the court and was made consistent with the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW)32;

there was no question that the court could refuse to make consent orders under those rules33;

while the (second) section of the consent orders recorded an agreement between the parties which did not impute any 'finding' to the court, the first section recorded a verdict and judgment34; the verdict and judgment recorded the final quelling of a controversy by the exercise of judicial power35;

26 | BRIEF AUGUST 2016

while in the latter class the determination will largely be the result of agreement rather than a working out by the court of the parties' rights and liabilities, even where the parties are agreed on the proposed orders, it remains for the court to be satisfied as to the appropriateness of such orders being made41; and,

hence, for one party later to contend that it was negligent of an advocate to advise in favour of such a settlement will involve calling into question the rectitude of the court's order42.

also involved the provision of advice which led to a decision to settle proceedings and to the making of consent orders44.) In confirming the continued existence of the immunity in Australia, the majority observed, among other things, as follows: •

the decision in D'Orta stated a rule which was consistent with, and limited by, a rationale which reflected the strong value attached to the certainty and finality of the resolution of disputes by the judicial organ of the State45;

any decision as to whether the High Court ought to reconsider its earlier decisions in Giannarelli and D'Orta had to be informed by "a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law"46;

to overturn those decisions would generate a legitimate sense of injustice in those who had not pursued claims or had compromised or lost cases by reference to the state of the law as settled by these authorities during the years when they had stood as authoritative statements of the law47;

an alteration of the law of that kind was best left to the legislature48;

no argument of principle or public policy had been advanced by the appellants which had not been addressed in Giannarelli and D'Orta49;

although courts in other legal systems had, since Giannarelli, come to a different view as to the resolution of competing considerations of principle and policy, those decisions did not reveal an insight into any issue of principle or policy which had not been appreciated in Giannarelli and D'Orta50;

the common law of Australia, as expounded in those two decisions, reflected the priority accorded by the High Court to the values of certainty and finality in the administration of justice as it affects the public life of the community51;

that was a sufficient basis to reject the appellants' invitation to reconsider those decisions52; and,

at the same time, its review of the majority's reasons in D'Orta, and identification of the public policy on which the immunity was based, showed that the scope of the immunity is confined to conduct of the advocate which contributes to a judicial determination53.

RETENTION OF THE IMMUNITY Of particular significance in Attwells was the High Court's unanimous rejection of an invitation that the immunity be abolished. That invitation was extended more than a decade after the High Court had by majority once again confirmed43 the existence of the immunity following its abolition in England and Wales, and nearly a decade after New Zealand had done likewise. (Interestingly, the underlying facts in each of the cases in which the abolition was confirmed in those two jurisdictions


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CONCLUSIONS The decision in Attwells is important for at least three reasons. First, it usefully clarifies that advocate's immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings (subject to what is said below)54. Second, the decision re-iterates that the immunity continues to apply under the common law of Australia. Third, it confirms that the immunity is confined to conduct of the advocate which contributes to a judicial determination. The conclusion of the majority in relation to the first issue is, perhaps, not entirely surprising. As the majority observed55, McHugh J had previously recognised in D'Orta56 that a practitioner could be sued for the negligent settlement of proceedings despite there being a public interest in the promotion of out-of-court dispute settlement. That conclusion had, in turn, been well-grounded in earlier Australian authority57. Further, some two years after D'Orta, Western Australia's Court of Appeal58 held59, following a review of the authorities, that it was at least arguable that advice in relation to settlement was not connected with "work done out of court which leads to a decision affecting the conduct of the case in court" or "work intermittently connected with work in court"60. As will have been observed, there was a somewhat stark contrast between the approach adopted by the majority in Attwells and that of the dissenting justices as to the potential impact of the consent orders on the existence or otherwise of the immunity. While the reasons of the majority prevail in this regard, it is suggested that, properly understood, the conclusion that the "immunity does not extend to negligent advice which leads to the settlement of a claim in civil proceedings"61 should be read as being qualified in light of remarks made later in the majority's reasons62. In those later remarks, the majority recognised that there were many cases where the making of the order itself requires the court to resolve issues by the exercise of judicial power despite the parties having agreed upon the terms of an order which a court is requested to make63. While the majority observed that it was unnecessary to consider such cases in the context of the matter before it64, it would seem at least open to argue that the immunity may well extend to at least some of those cases given the majority's reasoning. As the majority noted, an incidental result of the immunity is that lawyers enjoy a degree of privilege in terms of their accountability for the performance of their professional obligations (though this is merely a consequence of and not the reason for the immunity)65. However, 28 | BRIEF AUGUST 2016

because this incidental operation comes at the expense of equality before the law, the immunity is not to be expanded "simply because some social purpose, other than ensuring the certainty and finality of decisions, might arguably be advanced thereby"66. The majority's confinement of the immunity to conduct of the advocate which contributes to a judicial determination67 is consistent with that approach. Finally, in once again confirming the continued existence of the immunity under Australian common law, and in articulating the important public policy considerations behind it, the High Court has made it abundantly clear that unless or until legislative change intervenes, the immunity will continue to apply in Australia; whatever the position might be elsewhere.

'may'. C.f O 43 r 16 of the Rules of the Supreme Court 1971(WA) which relevantly provides that where parties to proceedings file a written consent to the making of an order "...(2) ...the registrar may settle, sign and seal the order without any other application being made in any case in which in his opinion the Court would make such an order upon consent of the parties or may bring the matter before the Court which may, if it thinks fit and without any other application being made, direct the registrar to settle, sign, and seal the order in accordance with the terms of consent." (emphasis supplied) Such an order is "of the same force and validity as if it had been made after a hearing by the Court.": O 43 r 16(3). 34.

[120]-[121].

35.

[126].

36.

[125], referring to Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).

37.

[126].

38.

[127].

39.

[67].

40.

[67].

41.

[68], referring to an earlier decision by the High Court in The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 326 ALR 476, 491; (2015) 90 ALJR 113 at 127-128 [57] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). That decision had required the High Court to determine whether its earlier decision in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 precluded a court from receiving an agreed or other submission as to the amount of a pecuniary penalty to be imposed under s49 of the Building and Construction Industry Improvement Act 2005 (Cth). In the passage in The Commonwealth v Director, Fair Work Building Industry Inspectorate referred to by Nettle J, [57], the High Court had remarked that: "... in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court-approved custody and property settlements, court-approved compromises in group proceedings and court-approved schemes of arrangement. More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate." (emphasis supplied).

42.

[68].

43.

In D'Orta.

44.

Arthur J S Hall & Co v Simons (above) and Chamberlains v Lai [2006] NZSC 70; [2007] 2 NZLR 7, respectively.

NOTES 1.

[2016] HCA 16.

2.

[45] read with [2] (French CJ, Kiefel, Bell, Gageler and Keane JJ). It is suggested that properly understood the finding at [45] should be read as being qualified in light of the majority's later remarks at [61] and [62] (as to which see below).

3.

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52, [21] (Mason CJ). D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, [86] (Gleeson CJ, Gummow, Hayne and Heydon JJ); [381] (Callinan J); C.f also [167]-[169] (McHugh J).

4.

D'Orta, [91].

5.

D'Orta, [44] (Gleeson CJ, Gummow, Hayne and Heydon JJ), their Honours referring to remarks made in this regard by Lord Steyn in Arthur J S Hall v Simons [2002] 1 AC 615, 680.

6.

D'Orta, [45] (Gleeson CJ, Gummow, Hayne and Heydon JJ). See also Attwells v Jackson Lalic Lawyers Pty Limited (above) [34]-[35] (French CJ, Kiefel, Bell, Gageler and Keane JJ) and [100] (Gordon J).

7.

Attwells v Jackson Lalic Lawyers Pty Limited (above) [66] (Nettle J). See also [45] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

8.

Giannarelli v Wraith (above), [21] (Mason CJ).

9.

D'Orta, [86] (citations omitted). For examples of work to which the immunity has been held to apply, and not to apply, see D'Orta, [154]-[156] (McHugh J) and the authorities referred to by His Honour in those paragraphs.

45.

[30].

46.

[28].

47.

Ibid.

"Advocate's immunity? Court gets it right (twice!)": Brief Vol 32 No. 6 (July 2005), by Ken Martin QC (as he then was).

48.

Ibid.

49.

[29].

10.

50.

Ibid.

51.

[36].

52.

[37].

11.

6 to 1.

12.

Above.

13.

As well as the statutory position in Victoria.

14.

4 to 3.

15.

Above.

16.

[36]-[37] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [64]-[73] (Nettle J) and [131] (Gordon J).

17.

[34].

18.

[38].

19.

[38].

20.

[46]. C.f D'Orta, [86].

58.

Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85.

21.

[43].

59.

22.

[43], referring to McHugh J in D'Orta at [152]-[153].

In the context of an appeal against an order striking out paragraphs in a re-amended statement of claim.

23.

[44], referring to Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141-142; [1995] HCA 41; GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198, 210-211 [29]; [2004] HCA 22.

24.

[45].

25.

[55].

26.

[59].

27.

[62].

28.

[110].

29.

[111].

30.

As distinct from the agreement between the parties which were noted by the court in the orders.

31.

[116].

32.

[116].

33.

[120]. C.f Rule 36.1A(1) which contains the word

53.

Ibid.

54.

[45].

55.

[38].

56.

[166].

57.

E.g. Finamore v Slater & Gordon (1994) 11 WAR 250, Studer v Boettcher [2000] NSWCA 263; Giuca v Coadys (A Firm) [2000] VSC 230 and Algar v Gall Sandfield & Tiley (a Firm) [2000] QSC 85.

60.

Alpine Holdings (above), [86].

61.

[45].

62.

[61]-[62].

63.

[61]. The following examples were given by the majority: where representative proceedings are settled, where proceedings on behalf of a person under a legal incapacity are to be compromised, where agreements are made in relation to proceedings under ss 86F, 87 and 87A of the Native Title Act 1993 (Cth), the judicial discretion to allow an agreement to amend a patent granted under the Patents Act 1900 (Cth) and the compromise of certain debts under ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth).

64.

[61].

65.

[52].

66.

Ibid.

67.

[37].


29


Equality, Proportionality and Dignity: The Guiding Principles for a Just Legal System The Sir Ninian Stephen Lecture, University of Newcastle Conservatorium Concert Hall, Newcastle, 29 April 2016 The Hon Justice Virginia Bell AC Justice of the High Court of Australia

It is an honour to be invited to deliver the Annual Sir Ninian Stephen Lecture. Sir Ninian Stephen is among our most distinguished jurists. He served on the High Court of Australia for a decade commencing in 1972 and in that time he authored many fine judgments. Professor Charlesworth, who served as one of Sir Ninian's Associates, compiled his biographical entry for the Oxford Companion to the High Court. She observed1: While he was personally a liberal and progressive thinker, these views are not consistently reflected in his judgments, which reveal a cautious attitude to judicial review and no particular social or political agenda or judicial philosophy. This is no small compliment. It is not the job of a judge to bring a social or political agenda to the determination of the cases that come before him or her. Sir Ninian made the point powerfully in a lecture that he delivered in 1981 on the subject of judicial independence2. Discussion of that subject commonly centres on the need for separation of the judicial arm of government from the legislative and executive arms. Sir Ninian suggested that there are other dependencies of which judges should be free3: [T]o be committed to an ideology or to a particular faith or doctrine to such an extent that one forfeits the ability to do justice with that moderate degree of impartiality of which the merely mortal judge is capable is also to have forfeited true independence. Sir Ninian's tenure as a Justice of the High Court of Australia proved to be only the starting point of his public career. In 1982, he was appointed GovernorGeneral of the Commonwealth. This was at a time when the controversy surrounding the dismissal of the Whitlam Government was still fresh and Sir Ninian, like his predecessor Sir Zelman Cowan,

30 | BRIEF AUGUST 2016

played an important role in restoring the confidence of the Australian community in the office of Governor-General4. After an extended term as GovernorGeneral, Sir Ninian embarked on a remarkable international career commencing as Australia's first Ambassador on the Environment. In early December 1991, Sir Ninian was invited to join a Group of Distinguished Observers representing the Commonwealth nations at the Convention for a Democratic South Africa. The group engaged in discussions with Nelson Mandela and President de Klerk. The following year, Sir Ninian chaired the Northern Ireland peace talks. In 1993, he was appointed a foundation judge for the International Criminal Tribunal for the former Yugoslavia (the ICTY). He was subsequently elected to the Appeal Division of that Tribunal and of the International Criminal Tribunal for Rwanda. In 1998, the Secretary General of the United Nations, Kofi Annan, asked Sir Ninian to Chair a commission on the establishment of a tribunal to try former Khmer Rouge leaders in Cambodia. Sir Ninian also led UN missions to Burma to explore the extent of forced labour in the Hinterland. And he was appointed by the Commonwealth to facilitate discussions in Bangladesh to avert civil strife. It is more than fitting that the Menzies Foundation, in collaboration with the Commonwealth Government, has established the Sir Ninian Stephen Menzies Scholarship in International Law. I would hope that among members of this audience there will be candidates for the award of that scholarship in future years. Perhaps in recognition of Sir Ninian's status as a great internationalist, Professor Anderson suggested that I speak tonight on the topic "Equality, Proportionality and Dignity: The Guiding Principles for a Just Legal System". These are informing ideas of international human rights law. In the aftermath of World War II, the General Assembly of the United

Nations adopted the Universal Declaration on Human Rights (the Declaration). The first Article of the Declaration proclaims that all human beings are born free and equal in dignity and rights. Underlying the Declaration, and the international treaties that have given effect to it, is the recognition that the rights and freedoms for which it provides all derive from the inherent dignity of the human person5. The principle of equality pervades the Declaration. The emphasis in international human rights law on that principle is largely found in the proscription of discrimination whether on the ground of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Equality has more than one dimension to it. It connotes the idea that every person is to be treated in the same way. This is commonly described as "formal equality". It is in this sense that we may speak of the right to "equality before the law". We require courts and tribunals in a just legal system to treat people equally, applying the same procedures and affording the same fair trial protections to all. However, individuals and groups are differently placed in their ability to fully enjoy all of the rights and freedoms that international human rights law recognises, including social and economic rights. A just legal system needs to acknowledge disadvantage and allow special measures to redress it if disadvantaged groups and individuals are to enjoy substantive equality. Most human rights and freedoms are not absolute and international law recognises that their exercise may be the subject of such restrictions as are necessary in the public interest in a democratic society. Judgments must be made about whether a law that restricts a human right or freedom is justified in the broader public interest. So too must judgments be made about whether a measure that accords special treatment to a group or individual is justified because it is conducive to the


achievement of substantive equality or whether it offends the principle of nondiscrimination. The principle of proportionality is the means by which a court or tribunal applying international human rights law determines whether a particular restriction on a human right is a justified restriction, or whether a special measure is an appropriate means of securing substantive equality for a particular group or individual. The court or tribunal asks whether the measure has a legitimate object, whether the measure is necessary to achieve that object and whether the public interest pursued by the law outweighs the harm that is done to the individual right or freedom. Critics of human rights jurisprudence contend that proportionality requires the balancing of things that are not commensurable, and they suggest that to ask whether a challenged provision of a law is the least restrictive means of achieving the object of the law is essentially a legislative task6. It is concerns of this kind that explains why a progressive thinking, great internationalist like Sir Ninian has been guarded about the suggestion that Australia should adopt a Bill or Charter of Rights incorporating in our domestic law the rights that are set out in treaties to which we are a party, including the International Covenant on Civil and Political Rights. In his 1981 lecture, Sir Ninian identified, as a further stress to judicial independence, the idea that judges should be the interpreters of broadly expressed guarantees of human rights7. This is not to say that within the

common law world there are not other distinguished lawyers who embrace the incorporation of internationally recognised human rights in domestic law. Following his retirement, Lord Bingham spoke very positively of the English experience a decade after the enactment of the Human Rights Act 1998 (UK)8. My purpose tonight is not to engage in this debate. It is to acknowledge that Australia now stands apart from other liberal democracies with which we share a common law heritage in that we do not have a Bill or Charter of Rights containing explicit guarantees of human rights and freedoms. It is also to acknowledge that we have a legal system that recognises and protects, as common law rights and freedoms, the civil and political rights that are proclaimed in the Declaration. The jealous protection of fundamental rights by those schooled in the common law may be illustrated by one of Sir Ninian's judgments in the ICTY. I should start by explaining that international human rights treaties recognise the right to a fair trial of a criminal charge, including the right of the accused to examine, or to have examined, the witnesses against him or her9. These are rights familiar to common lawyers. The first trial of a war criminal since Nuremberg and Tokyo was the trial of Dusko Tadic, the former leader of the Bosnian-Serb Social Democratic Party. Sir Ninian was one the judges. The prosecutor filed a preliminary motion seeking leave to call witnesses in the prosecution case without disclosing the identity of the witness to the accused, or to his counsel. The prosecution feared that its witnesses may be subject to reprisals. By majority, the Tribunal

acceded to the prosecutor's application. Sir Ninian dissented. In his judgment, to permit the anonymity of witnesses would not only adversely affect the appearance of justice but was likely to actually interfere with the doing of justice10. Belief in the strength of our common law heritage explains why we did not adopt a bill of rights at federation. The delegates who attended the Australasian Conventions where the terms of the Constitution were debated were all familiar with the Constitution of the United States and with the first ten Amendments known as the Bill of Rights and the Fourteenth Amendment, which guarantees the equal protection of the law for all persons born or naturalised in the United States. Our Constitution is modelled on that of the United States. The decision not to adopt the Bill of Rights or the Fourteenth Amendment was a deliberate one. Sir Owen Dixon, perhaps the greatest common lawyer of the last century, sought to explain that decision to an audience of American lawyers at a dinner in Detroit in 1942. He pointed out that the guarantees of life, liberty and property against invasion by government had been seen as indispensible in the aftermath of the American Revolution, whereas our history had not suggested the need to control the legislature itself. To what one suspects may been the bewilderment of his audience, Sir Owen observed that to our Founding Fathers the Bill of Rights and the Fourteenth Amendment were undemocratic because to adopt them was to argue a want of confidence in the will of the people11. Sir Owen's observation is illustrated by the Convention Debates over a

31


clause which, echoing the Fourteenth Amendment, provided that no State should deny to any person within its jurisdiction the equal protection of the laws. Mr Isaacs pointed out that the Fourteenth Amendment had been enacted following the Civil War when the Southern States had refused to concede the right of citizenship to emancipated slaves. He and other delegates saw no occasion for the adoption of a measure which would prevent distinctions that were common in colonial factory legislation respecting the employment of non-Caucasians12. The only protection that was thought necessary was against one State discriminating in its law against the residents of another State. This is the guarantee of equality that we find in the Constitution. Section 117 provides that a subject of the Queen resident in any State shall not be subject in other States to any disability or discrimination which would not be equally applicable were he a subject of the Queen resident in that other State. Section 117 was given a confined operation in Henry v Boehm13. Mr Henry was a barrister who was admitted to practice in Victoria. His complaint was with the Admission Rules in South Australia, which required an applicant for admission as a barrister to have been continuously resident in South Australia for three months before lodging the application. Mr Henry commenced proceedings in the original jurisdiction of the High Court seeking a declaration that the Admission Rules were invalid to the extent of the residence requirement. The majority rejected Mr Henry's challenge holding that the Rules did not subject him to any disability or discrimination because he was a resident of Victoria14. Sir Ninian dissented in Henry. He rejected the notion that a requirement of universal application is equally applicable to all; if the discriminating factor relates to a personal attribute and not all persons possess that attribute, while the requirement may apply to all, the disadvantage will apply unequally15. Sixteen years after Henry was decided, a similar challenge was brought by a New South Wales barrister who complained of the requirement under the rules for admission in Queensland that an applicant have an intention of practising principally in that jurisdiction16. Sir Ninian's dissenting reasons in Henry were vindicated. Mason CJ favoured a liberal rather than a narrow interpretation of s117. His Honour observed17: The very object of federation was to bring into existence one nation and one people. This section is one of the comparatively few provisions in 32 | BRIEF AUGUST 2016

the Constitution which was designed to enhance national unity and a real sense of national identity by eliminating disability or discrimination on account of residence in another State. Brennan J, in much the same vein, described s117 as a "guarantee of equal treatment under the law" and as one of the "constitutional pillars of the legal and social unity of the Australian people"18. Henry was overruled. Unlike the constitutional guarantee of s117, the rights and freedoms sourced in the common law which we enjoy may be restricted or abrogated by the Parliament. However, the courts act upon an assumption that the Parliament does not intend to modify or do away with a common law right unless it makes that intention irresistibly clear. It is has become common to refer to this interpretive principle as the "principle of legality". The rationale for the principle of legality is well explained by Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms19: Parliamentary sovereignty means that parliament can, if it chooses, legislate contrary to fundamental principles of human rights â&#x20AC;Ś [t]he constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. There is nothing new about the principle of legality. In 1908 it was applied in Potter v Minahan to uphold the decision of a magistrate that Mr Minahan was not a "prohibited immigrant" under the Immigration Restriction Acts 19011905 (Cth). On his arrival in Australia Mr Minahan had failed the dictation test. Mr Minahan had been born in Victoria to a Chinese father and he had been taken to China when he was about five years old. He was an adult at the time of his return. The Magistrate found that Mr Minahan had always had it in mind to return to Australia. O'Connor J discussed the concept of a

man's home in Potter v Minahan. In its ordinary meaning, his Honour said, no matter how long a man may be absent from his home, it remains his home if he has it in mind to return to it20. There was no reason to find that 'immigrant' had a different meaning in the Immigration Restriction Acts. In a frequently cited passage O'Connor J observed21: It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness. The vigour with which the courts protect common law freedoms is illustrated by Coco v The Queen22. In that case, a Supreme Court judge in Queensland issued a warrant approving the use of a listening device in premises occupied by Mr Coco. Police officers obtained entry to Mr Coco's premises to install the listening device by pretending that they were investigating a fault in his telephone. Mr Coco was later charged with an offence and the prosecution tendered recordings of conversations which had been obtained with the use of the listening device at the trial. Mr Coco successfully appealed against his conviction on the ground that the listening device evidence was unlawfully obtained and should have been excluded. Mr Coco's point was that the statute only authorised the use of a listening device; it did not authorise entry onto premises in order to install the device. The Court accepted that argument. Mr Coco, like every person in possession of premises, had a common law right to exclude others from those premises23. The Court rejected the prosecution's argument that the statute impliedly authorised the issue of a warrant permitting entry to install and retrieve a device: statutory authority to engage in conduct that would otherwise be a trespass must be expressed in unmistakable and unambiguous language. Inconvenience in carrying out a statutory object was "not a ground for eroding fundamental common law rights"24. The principle of legality has been described as an aspect of the rule of law25. More fundamentally the separation of judicial from legislative or executive power, for which the Constitution provides, gives effect to the rule of law26. The object of the separation of judicial power is the protection of the rights of individuals by ensuring that those rights are determined by a judiciary that is independent of the parliament and the executive27. Legislation which purports to require a court to depart in some


significant respect from the methods and standards which characterise the exercise of judicial power may be invalidated28. For this reason, the requirement that courts accord all who appear before them equality before the law in a procedural sense may be accepted29. Nonetheless, the Constitution does not contain a guarantee of substantive equality under the law. The Commonwealth Parliament may, if it chooses, enact laws which do not operate uniformly throughout the Commonwealth30. The proposition that there is an implied guarantee of equality under law was raised in Leeth v The Queen31. The case illustrates the difficulty of achieving substantive equality within a federation. The Constitution requires the States to provide for the detention of Commonwealth prisoners in State prisons32. Should Commonwealth prisoners be treated equally throughout Australia with the consequence that their treatment differs from the treatment of State prisoners housed in the same prison? Mr Leeth was convicted of offences against Commonwealth law in the Supreme Court of Queensland. The Commonwealth Prisoners Act 1967 (Cth) required a court sentencing a Commonwealth offender to fix the minimum term by reference to the law of the State or Territory in which the offender was sentenced. There were significant differences in the way the minimum term was calculated under the laws of the States and Territories. Mr Leeth brought proceedings in the High Court contending that the provision of the Commonwealth Prisoners Act was invalid because it required the unequal treatment of Commonwealth offenders. In rejecting Mr Leeth's argument, the majority commented on the likely unrest that would be occasioned if Commonwealth offenders serving sentences were subject to a different regime respecting minimum terms than State offenders housed in the same prison33. While we do not have a constitutional guarantee that Commonwealth laws will accord substantive equality, we do have a framework of laws enacted by the State and Commonwealth proscribing various forms of discrimination. Australia was an early signatory to the Convention on the Elimination of All forms of Racial Discrimination (the Convention)34. The Racial Discrimination Act 1975 (Cth) (the RDA) was enacted to give effect to the Convention. States Parties to the Convention commit themselves to prohibiting racial discrimination35 and to taking effective measures to nullify any racially discriminatory laws or regulations36. The Convention also

requires States Parties, when the circumstances warrant, to take concrete measures to ensure the adequate development and protection of racial groups and individuals belonging to them for the purpose of guaranteeing them the equal enjoyment of human rights and fundamental freedoms37. Section 10 of the RDA, is headed "rights to equality before the law". In summary, if a law creates a right that is not universal because it is not conferred on people of a particular race, s10 operates to confer the right on persons of that race. And if a law prohibits persons of a particular race from enjoying a right or freedom enjoyed by persons of another race, s10 confers that right on the persons who are the subject of the prohibition38. It is not necessary that the law makes a distinction, in terms, based on race. Section 10 applies to the discriminatory operation and effect of legislation39. The prohibition of laws that discriminate on the ground of race is subject to the provision of "special measures"40. Special measures are defined in the Convention41. They are measures taken for the sole purpose of securing adequate advancement of a racial group or individual in order to ensure the equal enjoyment or exercise of human rights and fundamental freedoms. They must not lead to the maintenance of separate rights for different racial groups and they must not be continued after their objective has been achieved. The difficulties arising from the incorporation into our domestic law of the broadly stated criteria of "special measures" are illustrated in Maloney v The Queen42. Mrs Maloney, an Aboriginal woman living on Palm Island, was charged with an offence under the Liquor Act 1992 (Qld). That Act made it an offence for a person to possess more than a prescribed quantity of liquor in a public place in a restricted area. Palm Island was a restricted area. Mrs Maloney's offence related to her possession of a bottle of bourbon and a bottle of rum in her car in a public place on Palm Island. Needless to say, had Mrs Maloney possessed that quantity of liquor in a public place elsewhere in Queensland she would not have committed an offence. Mrs Maloney was convicted before the Magistrates Court on Palm Island. She appealed against her conviction, arguing that the restrictions imposed by the Act were inconsistent with s10 of the RDA43. Queensland contended that the law treated Aboriginal persons and non-Aboriginal persons equally: a nonAboriginal person on Palm Island would commit an offence if he or she had the

proscribed quantity of alcohol in his or her possession in a public place44, and Queensland argued, the possession of alcohol is not a fundamental human right or freedom45. In the alternative, Queensland submitted that the restrictions were a special measure. Although the liquor restrictions did not single out Aboriginal persons, 97 percent of the residents of Palm Island are Aboriginal. The majority of the Court found that the liquor restrictions would have been inconsistent with s10 of the RDA and therefore invalid under s109 of the Constitution, because in their operation they had a discriminatory effect on Mrs Maloney's right to own property46. Nonetheless, there was material before the Court to show that the imposition of the restrictions was a response to the findings of the Cape York Justice Study. That study described alcohol abuse and associated violence as being so prevalent and damaging to Indigenous communities in northern Queensland as to threaten their existence47. Mrs Maloney acknowledged that it was appropriate that Palm Island have an alcohol management plan. She contended that the particular restrictions were not a proportionate response to the problem of alcohol abuse on the island. She maintained that there had not been adequate consultation with the local residents and that a less intrusive measure, such as providing better support services for those who drink excessively, might have been adopted48. The broad proportionality inquiry proposed by Mrs Maloney did not command support within the Court. The liquor restrictions were found to be a "special measure". Plainly minds may differ about whether restrictions of this kind in fact promote substantive equality for those who are the subject of them. However, as French CJ explained, the Court's task had to be undertaken with appropriate regard to the respective functions of the legislature, the executive and the judiciary under our Constitution49. This required the determination of whether the liquor restrictions answered the statutory description of being a measure taken for the sole purpose of "securing adequate advancement" of the Aboriginal community on Palm Island. In a private law context, the High Court has not received plaudits for its endeavours to ensure substantive equality for married women with respect to what has come to be known as "sexually transmitted debt"50: commonly, a wife acting as surety for her husband's business debts. In 1939 in Yerkey v Jones the High Court developed a special equity

33


for the benefit of the wife in such a case51. Mrs Jones, who was the owner of her own home at the time she married Mr Jones, agreed to a mortgage being taken over the property to secure a loan to enable him to purchase a poultry farm. Mrs Jones had doubts about the wisdom of the venture but she agreed nonetheless. Dixon J, as he then was, enunciated the principle in this way52: [I]f a married woman's consent to become a surety for her husband's debt is procured by the husband and, without understanding its effect in essential respects, she executes an instrument of suretyship which the creditor accepts without dealing with her personally, she has a prima facie right to have it set aside. By the end of the last century the decision in Yerkey v Jones had come to be seen as somewhat outmoded. In 1994, the House of Lords rejected a special principle applying to married women in favour of a principle, expressed in gender neutral terms, to set aside a guarantee given by one cohabitee to secure the debts of another cohabitee unless the creditor has taken reasonable steps to satisfy itself that the surety entered the transaction with knowledge of the true facts53. The Court of Appeal of New South Wales subsequently rejected a wife's claim to have a mortgage that she had executed to secure her husband's business debts declared to be of no force or effect in the case of National Australia Bank v Garcia54. The Court of Appeal was critical of the principle in Yerkey v Jones because it was based on general assumptions about the capacity of married women and it declined to follow it55. The wife obtained special leave to appeal to the High Court. The joint reasons in her case acknowledged that Australian society had changed in the decades since Yerkey v Jones had been decided and particularly so with respect to the role

of women. Nonetheless, their Honours observed that it remains that a significant number of women are in relationships marked by disparities of economic and other power. They identified the rationale for the Yerkey v Jones principle as not residing in the subservience or inferior economic position of women but rather in the trust and confidence that exists between marriage partners. And their Honours contemplated the application of the principle to other relationships that are more common now than in 1939. They instanced long-term, publically declared, relationships between members of the same sex or the opposite sex56. This shift in the rationale for the Yerkey v Jones principle has attracted criticism on feminist grounds. Apart from characterising the decision as "the clearest example of an antiquated approach to the status of women 'as wife'"57, the complaint is not with the retention of the principle but with the Court's failure to source it in gendered structural inequality58. The critique assumes that the Court was well placed to undertake a sophisticated evidencebased analysis of structural inequality in late twentieth century Australian society in determining the respective rights of the parties. For my part, recognition of the continued utility of the principle sits comfortably with re-stating its rationale in terms that allow of its wider application to other publically declared relationships of trust and confidence. I started this lecture noting the concerns expressed by some common lawyers about the desirability of courts becoming the interpreters of broadly expressed human rights. Of course, Australian courts must determine the validity of laws that are said to infringe on the explicit and implicit guarantees under our Constitution. In making these determinations the courts apply proportionality analysis. It is to be observed that these guarantees operate

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as limits on the exercise of legislative power. They do not confer personal rights on individuals. In this respect, the implied freedom of political communication arising from our Constitution is to be distinguished from the First Amendment's guarantee of freedom of speech, which is conceived as a personal right. This difference in the way the freedom is conceptualised is evident in the differing approaches that courts in Australia and the United States have taken to legislative restrictions on election funding. Provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (the Funding Act) were challenged in McCloy v New South Wales59. The Funding Act imposes a cap on the amount of political donations. Selfevidently, this limits the amount of money that is available for candidates for election purposes. The restriction is ameliorated to some extent by the Funding Act's provision for the public funding of State election campaigns. The Funding Act also contains prohibitions on the making or acceptance of political donations by prohibited donors. Among the categories of prohibited donors are property developers. The plaintiffs in McCloy argued that the ability to pay money to secure access to a politician is itself an aspect of the freedom of communication guaranteed under the Constitution60. They contended that donors are entitled to "build and assert political power"61. The argument drew on the decision of the Supreme Court of the United States in Citizens United v Federal Election Commission with respect to the scope of the First Amendment right62. In rejecting the plaintiffs' challenge, the joint reasons in McCloy spoke of the desirability of there being a level playing field in the public debate of matters touching on government and politics63: a goal not achieved if political parties are in a position to buy unlimited opportunities to advertise in the most effective media.

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The joint reasons considered to guarantee the ability of a few to make large political donations to secure access to those in power to be the antithesis of the principles on which the Constitution is premised. One of the plaintiffs' arguments in McCloy was that alternative measures could have been adopted by the Parliament that would be less restrictive of the freedom. Proportionality analysis in our constitutional setting confines consideration of alternative means to those that are "obvious and compelling". It is not open to the court to substitute its own essentially legislative judgment for that of the Parliament64. Relevant to the analysis in McCloy is that the impugned provisions of the Funding Act do not affect the ability of any person in New South Wales to communicate with another about matters of politics and government, nor to seek access to or to influence, politicians in ways other than involving the payment of substantial sums of money to them. The effect on the freedom of communication is thus indirect and the public interest in removing the risk and perception of corruption evident. The Funding Act was described in the joint reasons as supporting enhanced equality of access to government, which the freedom of communication seeks to protect. By contrast, in Citizens United (a decision that has attracted considerable controversy65) any attempt to level the playing field to ensure that all voices are heard was found to be inconsistent with the First Amendment right66. The Australian Capital Territory67 and Victoria68 are, to date, the only Australian jurisdictions that have enacted charters of human rights and freedoms. Each adopts the "dialogue model" by which the court does not invalidate legislation but may issue a declaration that legislation is inconsistent with a Charter right or freedom. Were the Commonwealth Parliament minded to enact a bill or charter of rights, a constitutional impediment to adoption of the dialogue model may be discerned from the discussion of the Victorian Charter in Momcilovic v The Queen69. Of course it is not the sole responsibility of the courts in a liberal democracy to promote equality and respect for human rights. The Commonwealth Government recently commissioned a stocktake on the status of our traditional rights. The Attorney-General gave a reference to the Australian Law Reform Commission requiring it to undertake a review of the whole body of Commonwealth laws to assess their consistency with traditional rights, freedoms and privileges. At the end of last year the Commission published its

final report70. It is a comprehensive survey of Australians' traditional rights, freedoms and privileges. Each is examined against any Commonwealth law which bears on it and, using the yardstick of proportionality analysis, the Commission identifies laws which may unjustifiably restrict a right and proposes their further consideration or review. The Report provides a sound basis for the discussion of the protection of rights in a democratic society and I encourage you as our future generation of common lawyers to read it. NOTES 1.

Blackshield, Coper & Williams, The Oxford Companion to the High Court (2001) at 643.

2.

Affairs (1996) 189 CLR 1 at 11 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ. 28.

South Australia v Totani (2010) 242 CLR 1.

29.

Polyukovich v The Commonwealth (1991) 172 CLR 501 at 607 per Deane J; Nicholas The Queen (1998) 193 CLR 173 at 208 per Gaudron J.

30.

Kruger v The Commonwealth (1997) 190 CLR 1 44-45 per Brennan CJ; 63 per Dawson J; 142 per McHugh J; 153-155 per Gummow J;

31.

Leeth v The Queen (1992) 174 CLR 455; Kruger v The Commonwealth (1997) 190 CLR 1.

32.

Constitution, s120.

33.

Leeth v The Commonwealth (1992) 174 CLR 455 at 466 per Mason CJ, Dawson and McHugh JJ.

34.

International Convention on the Eliminating of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)("ICERD").

35.

ICERD, Art 2(1)(d).

36.

ICERD, Art 2(1)(c).

37.

ICERD, Art 2(2).

Stephens, "Southey Memorial Lecture 1981: Judicial Independence – A Fragile Bastion", (1981-1982) 13 Melbourne University Law Review 334.

38.

Western Australia v Ward (2002) 213 CLR 1 at 99-100 [106]- [107]; Gerhardy v Brown (1985) 159 CLR 70 at 98-99 per Mason J.

3.

Stephens, "Southey Memorial Lecture 1981: Judicial Independence – A Fragile Bastion", (1981-1982) 13 Melbourne University Law Review 334 at 334.

39.

4.

McCormack and Saunders, Sir Ninian Stephen: A Tribute, (2007) at 29.

Gerhardy v Brown (1985) 159 CLR 70 at 97, 99 per Mason J; Mabo v Queensland [No 1] (1988) 166 CLR 186 at 198-199 per Mason CJ; 216-219 per Brennan, Toohey and Gaudron JJ; 231-232 per Deane J; Western Australia v Ward (2002) 213 CLR 1 at 103 [115].

5.

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948); Principle VII, Human Dimension of the Final Act of the Conference on Security and Cooperation in Europe (1975) 14 ILM 1292 (the Helsinki Accords).

40.

RDA, s8(1).

41.

ICERD, Art 1(4).

42.

(2013) 252 CLR 168.

43.

Maloney v The Queen (2013) 252 CLR 168 at 190-191 [36].

44.

Maloney v The Queen (2013) 252 CLR 168 at 190-191 [36].

6.

See, e.g., Heydon, "Are Bills of Rights Necessary in Common Law Systems?", (Lecture Delivered at the Oxford Law School, 23 January 2013) at 22.

45.

Maloney v The Queen (2013) 252 CLR 168 at 191 [37].

7.

Stephens, "Southey Memorial Lecture 1981: Judicial Independence – A Fragile Bastion", (1981-1982) 13 Melbourne University Law Review 334 at 335.

46.

Maloney v The Queen (2013) 252 CLR 168 at 252 [227].

47.

Maloney v The Queen (2013) 252 CLR 168 at 187 [27]; 260 [248].

Lord Bingham, "Dignity, Fairness and Good Government the role of a Human Rights Act", (2009) 34 Alternative Law Journal 74.

48.

Maloney v The Queen (2013) 252 CLR 168 at 257 [238].

49.

Maloney v The Queen (2013) 252 CLR 168 at 193 [45].

See, e.g., Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) Art 6(3) (d).

50.

Australian Law Reform Commission, Equality Before the Law: Womens Equality, Report 69 (1994), Ch 13.

8.

9.

10.

11.

Prosecutor v Dusko Tadic (Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-94-1-T, 10 August 1995) (Judge Stephen). Dixon, "Two Constitutions Compared" in Woinarski (ed), Jesting Pilate and Other Papers and Addresses, 2nd ed (1965) at 101-102.

12.

Official Record of the Debates of the Australasian Federal Convention, Third Session, Melbourne 1898, Vol I at 668-674.

13.

Henry v Boehm (1973) 128 CLR 482.

14.

Henry v Boehm (1973) 128 CLR 482 at 490 per Barwick CJ; 490 per McTiernan J; 493 per Menzies J; 497-498 per Gibbs J.

15.

Henry v Boehm (1973) 128 CLR 482 at 502.

16.

Street v Queensland Bar Association (1989) 168 CLR 461.

17.

Street v Queensland Bar Association (1989) 168 CLR 461 at 485.

18.

Street v Queensland Bar Association (1989) 168 CLR 461 at 512.

19.

[2000] 2 AC 115 at 131-2.

20.

Potter v Minahan (1908) 7 CLR 277 at 301.

21.

Potter v Minahan (1908) 7 CLR 277 at 304.

22.

(1994) 179 CLR 427.

23.

Coco v The Queen (1994) 179 CLR 427 at 435 citing Entick v Carrington (1765) 2 Wills 275 at 291 [95 ER 807 at 817]; Halliday v Nevill (1984) 155 CLR 1 at 10 per Brennan J; Plenty v Dillon (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ at 647 per Gaudron and McHugh JJ.

24.

Coco v The Queen (1994) 179 CLR 427 at 436 citing Plenty v Dillon (1991) 171 CLR 635 at 654.

25.

Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 per Gleeson CJ at 329 [21].

26.

Thomas v Mowbray (2007) 233 CLR 307 at 342 [61] per Gummow and Crennan JJ; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 351-352 [30] per Gleeson CJ and Heydon J.

27.

The Queen v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 11 per Jacobs J; Wilson v Minister for Aboriginal and Torres Strait Islander

51.

(1939) 63 CLR 649.

52.

Yerkey v Jones (1939) 63 CLR 649 at 683.

53.

Barclays Bank plc v O'Brien [1994] 1 AC 180.

54.

National Australia Bank Ltd v Garcia (1995) 39 NSWLR 577.

55.

National Australia Bank Ltd v Garcia (1995) 39 NSWLR 577 at 598.

56.

Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 404 [22].

57.

Blackshield, Coper and Williams, The Oxford Companion to the High Court, (2001) at 721.

58.

Dunn, "Yakking Giants": Equality Discourse in the High Court" (2000) 24 Melbourne University Law Review 427.

59.

(2015) 89 ALJR 857.

60.

McCloy v New South Wales (2015) 89 ALJR 857 at 866 [20] per French CJ, Kiefel, Bell and Keane JJ.

61.

McCloy v New South Wales (2015) 89 ALJR 857 at 866867 [25].

62.

Citizens United v Federal Election Commission 558 US 310 (2010).

63.

McCloy v New South Wales (2015) 89 ALJR 857 at 869 [39] citing R (On the application of Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] 1 AC 1312 at [28].

64.

McCloy v New South Wales (2015) 89 ALJR 857 at 872 [58].

65.

Kang, After Citizens United (2010-2011) 44 Indiana Law Review 243; Stevens, Beyond Citizens United (2012) 13 Journal of Appellate Practice and Process 1.

66.

Citizens United v Federal Election Commission 558 US 310 at 365, 469 (2010).

67.

The Human Rights Act 2004 (ACT).

68.

Charter of Human Rights and Responsibilities Act 2006 (Vic).

69.

(2011) 245 CLR 1.

70.

Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Government Laws, Final Report, No 129, December 2015.

35


Law Council of Australia Committee formed to guide future of profession This article was originally published in The Bulletin, the journal of the Law Society of South Australia, June 2016 edition, page 12. Morry Bailes Treasurer, Law Council of Australia; Acting Chair, Future of the Law Committee

Late last year the Law Council of Australia established a Future of the Law Committee. It was a suggestion by former President Michael Colbran QC, who is a member of the Committee. In Michael's international travels as President and President-Elect of the Law Council, he noticed the attention and effort some other jurisdictions devoted to the subject of 'futures'. The Canadian Bar has produced a report and the Law Society of England and Wales likewise. There was a sense that the Australian profession needed to catch up and fast, and so the Committee was born. All that said, coming late to the table has its advantages. We are hardly reinventing the wheel and the plethora of literature in this area means that our task is made easier. Indeed the Committee, with relatively limited resources, has resolved that its mandate and object will not involve original thought, but rather a condensation to usable form, that which is already known, for the take up of the profession. To that end there is recognition that a working member of the profession has little time to research and implement available technologies, but a corresponding recognition that there exist strong trends suggesting change is necessary to compete locally and internationally. Allied with that is the phenomena of what has become known, post GFC, as the 'more for less' demand by clients of their professional services providers. It is likely that such demand can only be met by innovation and technology. WHAT CAN THE FUTURES COMMITTEE OFFER? First there is the 'over the horizon' stuff. We will attempt to identify the change 'drivers' and forecast short to medium term change, assisting the profession to 'gear up'. The long term is the stuff of crystal ball gazing, however the Committee does have a 'blue skies' 36 | BRIEF AUGUST 2016

agenda item to be tackled at the conclusion of other work; so watch this space.

of legal work can lead to the adoption of new types of practice structures, including structures which are more internationalised than they would otherwise be, or involve greater participation of non-legal personnel. Disruptive technologies likely to affect service delivery and the types of services offered by lawyers include online legal guidance, 'open' and 'closed' legal communities and systems of online dispute resolution. (As an aside, changes in these areas may also have impacts on access to justice.)

The second, and practical aim of the Committee's work is to provide the profession the tools which to navigate its way through predicted changes, enabling adaptation to benefit the profession and our clients. As to the main challenges and opportunities for the profession, that can be summarised in the eyes of the Committee in these ways: WHAT WILL BE THE MAIN CHALLENGES AND OPPORTUNITIES FOR THE PROFESSION IN THE FUTURE?

Changes to the competitive commercial pressures affecting legal practices (including the 'more for less' challenge). For example, how will practices react to increased pressure in relation to billings etcetera? How will trends in other professions likely affect the legal profession? What will be the impact of the emergence of new types of organisations that will employ lawyers, considering many of them will adopt 'non-traditional' structures? What will be the impact of the entry of non-lawyers into the legal space?

Regulatory changes, including changes to domestic regulation (such as changes to allowable business structures) and international regulation, which may affect both the ability of Australian lawyers to practice overseas and the ability of foreign lawyers to practice in Australia.

As above, the main challenges and opportunities likely to face the profession can be described under the headings of the various 'change drivers'. •

Technological change, which is seen by many as the main change driver. A number of changes are likely to occur which will affect both practice structures and working patterns, modes of service delivery and services offered. In terms of the former, some key disruptive technologies will likely include automated document assembly, 'relentless connectivity', project management and workflow systems, intelligent search systems, and artificial intelligence based problemsolving systems. See for example, the way in which the commoditisation and outsourcing, or multi-sourcing,


Social and demographic trends, including changes to the demographics of the profession (for example, changes in ethnicity, changing gender balance and changing workforce participation ages), and changes resulting from diversity programmes and changing expectations around workplace diversity. Changes related to the increasing 'globalisation' of commercial activity (including legal activity, which is related to the regulation point mentioned above).

WHAT IS THE COMMITTEE DOING TO GUIDE THE PROFESSION? The Futures Committee is conscious of the intersection between the various change drivers (mentioned above) and the way that changes in one area may affect another. For example, changes in legal education and workplace demographics may well be linked. On this basis, the Committee has decided to divide up its work into a number of discrete areas, and to produce reports on some of these areas in modular form.

The areas are: •

work practices;

practice structures;

legal education and training;

new legal products and services;

cyber security;

diversity;

bar-specific issues; and

globalisation.

revolution. There is no question that the bottom end of professional legal services will be gone in a relatively little time. Our challenge is to recognise that and place ourselves in a competitive and ready position to meet the needs of our existing clients and to evolve our present service offerings.

The profession, as with other industries, stands at an interesting crossroad. It is said of technology that in a 10-year cycle not all that was predicted is achieved at the five-year mark, but more than what was predicted will have occurred by the 10-year marker. Doomsday prophets, such as Richard Susskind, have certainly got us all thinking, and the short-sighted may be tempted to ignore or dismiss such academics. The Committee is minded to take all commentary on board but to advance its work with an understanding that the future lies somewhere in a blend of the forecasters' predictions. We wish to stay grounded in reality, yet have an eye on blue sky possibility and the inevitable likely technological disrupters that will present. No one will easily forget the demise of Kodak in the disruption of the digital

As well, we must be ready to compete in and embrace opening markets in the Asia Pacific, China, India and elsewhere, as much for our economic advantage as the promotion of the rule of law. The age of the globalisation of professional services is upon us. It will be the task of the Law Council of Australia to provide to the profession, in as much as we are able, a map of the future landscape and the necessary tools to navigate its terrain. Where there is challenge lies opportunity, and as a profession we should plan to seize the opportunities that this emerging century offers, whilst successfully navigating its challenges. The Futures Committee of the Law Council hopes to play a central role in that endeavour to the practical advantage of the profession, be you a sole practitioner, barrister or firm member. Not one of us should underestimate the future rate of change, but neither should one, properly equipped, be daunted by it.

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37


Topical matters pertaining to the tort of negligence – the attribution of blame Transcript of speech delivered at Annual Law Week Address, Perth Hebrew Congregation Inc on Tuesday, 17 May 2016. The Hon Justice Kenneth Martin Supreme Court of Western Australia

INTRODUCTION I am honoured to be asked to deliver this address. When I received Julian's email in late April it led me to start pondering at idle moments over the following weekend about many tort cases I had been either involved in as counsel or associated with over my professional life to date. That mental walk down memory lane soon dredged back many past good and bad memories. I also began to wonder how the cases would be decided now, if they were argued on today's law of torts. I came to appreciate, as I should have long before, that tort cases have rather consumed my professional life as a lawyer, barrister and now as a Judge. IN THE BEGINNING Thinking back, I vaguely recall my first 'on feet' performance as a trial advocate happened in 1979, at the Local Court (Magistrates Court now) at Armadale. Somehow, I came to be acting for a defendant insurance company, resisting a smallish tort claim for damages. The details are misty now. But I seem to remember there had been an incident involving a collision between a motor vehicle and a horse. The horse had escaped (repeatedly, it was said) from an owner's property somewhere bordering the road. There was a problem with a defective fence of the defendant and the horse kept getting out. The consequence was a collision between the plaintiff's motor vehicle and the horse, with the most damage being to the motor vehicle. The horse was fine. This should have been just a straightforward negligence case in tort – but there was a twist courtesy of a quaint piece of English law transplanted to Australia at European settlement. I remember trudging out to Armadale to defend – upon the basis of the immunity delivered under an old UK decision, Searle v Wallbank (1947) AC 341, a much criticised decision of the House of Lords. That case had decided that an owner of land in England abutting a highway was 38 | BRIEF AUGUST 2016

under no prima facie legal obligation to users of the highway to keep and maintain fences or gates – in order to prevent animals straying on to a highway (other than for animals exceptionally known to be dangerous). In fact, our High Court of Australia in September 1979 had reaffirmed the applicability of this rule for Australia in State Government Insurance Commission v Trigwell (1979) 142 CLR 617. That, I think, was about a week after I had lost in Armadale. I haven't been back. Trigwell was delivered notwithstanding a stirring dissent from Murphy J. He, in effect, said it was ridiculous this rule of the common law from England (but which was not even part of the common law of Scotland, see page 644) had been imported to Australia. Quaint English notions of hedges and isolated countryside lanes were hardly applicable for Australia. Somehow or other, I managed to lose this case – on the basis that the horse in question had displayed the propensity on numerous occasions to get out. Therefore, it was said against me the immunity of the Seale v Wallbank principle (at least according to the old Magistrate) was not open. That was probably a wrong application of the rule: see Ellis v Johnstone [1963] 2 QB 8. But, in the end, it did not matter. I had a minor forensic win, calling a panel beater witness, who coincidentally had worked on the plaintiff's somewhat decrepit old motor vehicle. From a valuation and damages perspective, my surprise witness painted a picture that the plaintiff's vehicle was an 'old bomb' that was practically worthless. The client had paid a small amount of money into court, just in case we lost – that was more than what the plaintiff ended up getting from the Magistrate as damages at the end. That was my first working association with tort law imported to Australia as the common law of England. Nowadays, the position in Western

Australia would be governed by a statute which has removed the old immunity for straying animals: see the Highways (Liability for Straying Animals) Act 1983 (WA), s3. The legislation has counterparts in all of the other Australian States and Territories save for Queensland the Northern Territory: see Brown v Toohey (1994) 35 NSWLR 417, 424 (Meagher JA). FIVE YEARS OF PROFESSIONAL LIFE (1983-1988) – LOSS OF THE KEY BISCAYNE OFF LANCELIN ON 1 SEPTEMBER 1983 The Key Biscayne was a jack-up drilling rig owned by the Texas based Key International Drilling Company. It had been operating in the early 1980s in the Timor Sea, off Darwin, exploring subsea for oil and gas. 'Jack-up' oil drilling platforms are essentially huge floating barges with huge legs that are capable of being raised and lowered to the sea bed. When lowered into the seabed, the triangular barge component of the rig is positioned significantly above sea level. From there the drilling is done. However, when the legs are 'jacked', to be raised like vertical towers above the deck of the barge, the triangular platform then lowers to water level where it floats and becomes, in effect, a large barge. But the 'jack-up' rig is not self-propelled and needs to be towed by tug boats to get from location to location. Jack-up platforms are designed to very high engineering standards. They necessarily have high measures of seaworthiness. They are expected to withstand heavy sea conditions encountered all around the world, including when being towed across oceans. Storm conditions encountered off the coast of Western Australia in late August 1983 were very severe. They were storm conditions measured at one in 100-year levels. Some parts of the Key Biscayne, in terms of their overall seaworthiness,


were only designed to withstand one in 50-year storm events. This was a problem. The capsizing and sinking of the Key Biscayne off the coast of Western Australia, off Lancelin on 1 September 1983 is well remembered to me. It is explained at length in a Department of Transport inquiry report which can still be found on the internet1 – see preliminary investigation into 'Loss of tow and subsequent foundering off the coast of Western Australia of (the Key Biscayne jack-up drilling rig)'. A complicated tort damages case soon followed. My firm was acting for the owners of the lost jack-up drilling rig (which company had become a subsidiary of Chevron Oil Corporation). On the day of the loss, there had been 52 crew aboard the sinking rig who, at the last minute, had to be evacuated by helicopters. Fortunately, there was no injury or loss of life. That came about courtesy of great acts of heroism by the helicopter pilots who, at great danger to themselves, landed on a pitching and heaving rig platform in horrendous weather conditions. These efforts successfully saw the repatriation to safety and dry land of all crew, before the adrift rig just disappeared off radar screens in the dark and stormy gloom after 1845 hours on that fateful Friday, 1 September 1983. Next day, the sunken and totally wrecked rig was eventually located in 41 metres of water, lying 31 degrees 10 minutes south, 110 degrees 11.7 minutes east off Lancelin. It is still there – as a significant dive wreck and well visited tourist attraction off the Lancelin coast – to prove the point that over time every cloud has at least one silver lining. The massive tort case that followed unfolded this way, although I am greatly oversimplifying things. There could be no action in contract by the owners of the rig against the tug boat operators. This was because relevant towing contracts were just between the exploration company charterer, Esso Australia Ltd. Two tug boat companies had been contractually engaged by Esso to essentially tow the Key Biscayne from the north to the south – around the coast of Western Australia from Torres Strait past the Monte Bello Islands, the Northwest Cape then past the Abrolhos Islands down to a Cockburn Sound destination. The rig was to be stacked there for a period before its next assignment. It never arrived! In the course of that long 'coastal tow' in August/September 1983 the towing lines or cables connecting the two tug boats

pulling the barge snapped altogether on six occasions. That was not a problem on four occasions, when the breaks happened in calm, benign, flat sea conditions – and where reattachment was straightforward. But that was not so for the fifth and sixth breaks. On 1 September 1983, when a one in 100-year storm was at its height, the rig was only attached (after a fifth breakage at 0644 hours) by one tow line to one of the two tug boats. The fifth breakage left one tug, the Atlas van Diemen, attempting to hold and position the rig into the weather, and against a gale pushing both towards a perilous coast – towards which it was slowly drifting, courtesy of horrendous storm conditions, wind, waves and swell. The conditions that day amounted to what old salts described as the 'mariner's nightmare', a 'leeshore' in a really bad storm. There was no contract between the operators or owners of the tug boats and the owners of the rig. Hence, the owner's law suit against them claiming for the loss of their rig (variously valued at between about US$5 million and US$30 million), had to be brought in tort, for damages for alleged negligence in the conduct of the tow. The core argument of the owners was that the operators of the tug boats (the two defendants) had owed a duty of reasonable care to the owners of the drilling rig to carry out the tow in a way that reflected proper skill and competence and as a part of the process of towing to use appropriate towing connections. In essence, the rig owner's argument was that the towing equipment used by the tugs had been the wrong equipment, particularly the ends of the tow lines connecting to the rig. The argument was that soft 'eye' loop (rope to metal) connections had been used, rather than hard 'eye' connections (metal to metal) – hence six line breakages, it was argued (but always disputed by the defendants). There followed some robust international debates between expert towing mariners over the pros and cons of hard eye/soft eye towing connections, plus a myriad of difficult associated technical maritime issues. However, the real tort law difficulty that kept myself and my leaders in that case awake for too many nights was over the issue of proving causation under the law of tort. Could it be proved – what looked simple at first blush turned out to be far from so. If the rig had simply drifted onto shore

and broken apart there, a causation in tort case would have been easier – at least in terms of proving that allegedly defective towing equipment led to breakages in the tow lines, hence to an uncontrolled drift of the rig, hence to beaching and destruction. However, our case was a sinking scenario at sea. It was different and harder to prove from a causation in tort perspective. The rig had sunk in deep water in a bad storm. But this was in circumstances where the rig had been constructed, annually inspected and certified as being fully seaworthy as a seagoing barge. Hence, this rig was built to float safely at sea – even in difficult storm conditions. The plaintiff owners needed to prove in tort that an act of negligence in respect of defective towing equipment had been causatively responsible for the ultimate sinking and so loss of the rig. There were too many explanation gaps in that chain of reasoning process – which needed to be better explained in order to prove legal causation and, hence, responsibility in the defendants. In other words, to prove that the loss of the rig would not have happened, 'but for' the negligent acts or omissions complained about. The case was finally ready for trial, in August 1988. It had been listed to run for four months before Justice Seaman. Had it run, it would have then been the longest running West Australian Supreme Court civil litigation to that point. But it settled at the last minute. The causation case theory matured over five years. It had reached a point, following various (expensive) tank testing and modelling scenarios, that the plaintiffs thought they could show causation using experts to illustrate how an inability of tugs to keep the rig in motion at sea under a connected tow line scenario, had seen the rig wallowing aimlessly in the heavy seas too long, at multiple angles whilst being swamped at the rear (ie, stern) by waves ('pooped' as it is termed by mariners). The argued consequence was that the rig had wallowed too long stern into the weather – rather than kept bow into the weather under tow. The further consequence was that the rig's stern region, the most structurally vulnerable part of the vessel from a seaworthiness perspective, became unduly exposed to the force of massive seas in the storm. Had the rig been towed and kept in motion by connected tow lines, the theory was that the vulnerable stern (particularly the rig's pre-load tanks) would not have been exposed to the same high levels of forces. The rig would not then have taken in destabilising 39


levels of water and not capsized offshore at Lancelin as it did. The negligence/causation of loss theory was never tested. The case settled three weeks before the trial was to begin – under confidential settlement terms. I was privy to the extent of knowing that money had changed hands as between a chain of insurers and underwriters following a back room meeting between 'heavies' somewhere in Europe. But five years spent working on this case as a relatively young lawyer, dwelling over tort causation of loss arguments, at least had the benefit of attuning me forever to the intricacies and pitfalls looming around the proving of causation in a civil law tort case. It is usually harder than it looks at first blush, in my view. Let me divert from the reminiscing to offer a few words on the topic of legal causation under Australian tort law. CAUSATION IN TORT LAW IN AUSTRALIA Between 1983 and 1988 (when I was worrying about causation on a daily basis due to the Key Biscayne case) the common law tort causation test was generally accepted as the 'but for' test of causation. In other words, a plaintiff needed to prove on the balance of probabilities that absent the alleged wrong (tortious) conduct (the act or omission) of a defendant, the injury (either a physical loss to someone's person or to their property, or a money/economic loss) would not have happened. This is also referred to as the sine qua non test, for Latin devotees ('the essential combination or ingredient' for the event). As explained in a leading torts text, the 10th edition of Fleming's Law of Torts (2011) 9.40 (page 228), the 'but for' (sine qua non) test of causation postulates a defendant's conduct is a cause of the plaintiff's harm, if the harm would not have occurred without it, or 'but for' it. According to Fleming: The 'but for' test thus operates as a negative criterion of causation but eliminates factors which made no difference to the outcome … it is not all negligent conduct that results in legal liability. The defendant's conduct is not a legal cause if the harm would have happened in any event, fault or no fault: for example, a doctor's delay in attending a patient is causally irrelevant if the patient would have suffered the same damage in any event. Scholars, philosophers and scientists have argued for ages over the merits 40 | BRIEF AUGUST 2016

or demerits of a singular 'but for' test to establish causation. There is a large measure of agreement even from devotees that it does not work well for scenarios of multiple potential causes of a loss scenarios, eg, such as for smoking and asbestos fibres as causes of lung cancer: see AMACA Pty Ltd v Ellis (2010) CLR 111. For Australia the law on causation in tort altered significantly, under a leading decision of the High Court in 1991, March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. This was a nasty (car-v-truck) motor vehicle collision scenario arising out of South Australia. The High Court moved Australia towards a 'common sense test of causation'. The 'but for'/sine qua non test is still to be used as a (negative) criterion in showing legal causation – but more than just a meeting of the 'but for' threshold, was said to be needed. This was to cater for an evaluation of further questions of policy and principle. This was controversial. The change to a commonsense rule of causation was not without critics, particularly McHugh J, who took a different line in the case (pages 533 – 534), albeit all judges agreed that the drunken/speeding injured driver should bear a 70% (not 100%) share of the responsibility for his injuries. They were sustained following his car's collision with the rear tray of a truck that had been parked across the centre line of a highway and into half of his lane of the six-lane highway. Explaining the 'common sense' test of legal causation at chapter 9 of the Fleming text on tort law (that chapter being authored by the Hon Margaret Beazley, the current President of the New South Wales Court of Appeal), it is said at page 230: This approach recognises that a person should not be liable for every wrongful act which is a necessary condition of the harm suffered. The 'but for' test was not replaced. Rather, the common sense this approach recognised was that the 'but for' test was neither a comprehensive nor an exclusive test of causation in tort. Its proper role necessarily limited as a negative criterion of causation, was retained. I confess that, like McHugh J, I have never really been a great fan of a 'common sense' test of causation, albeit Sir Anthony Mason carefully explained (page 515) in March v Stramare, that such an approach was supported by a line of previous cases. The key problem for me is that such a test can look

close to being a 'gut' intuitive reaction – rather than the outcome of coherently expressed and logical reasoning process. Too often these days I perceive "One person's common sense is another person's heresy". The common sense causation test in tort also makes it difficult to give reliable advice to clients upon a tort outcome in a civil trial. An essential part of dispute resolution is a reasonable level of outcome predictability, before a trial is reached. Subsequently, however, there has been wholesale statutory reform reinstating the primacy of the 'but for' test. This happened under Civil Liability Acts across all States and Territories of Australia, which commenced operation around Australia governing tortious causes of action which vest after 1 December 2003: see Civil Liability Act 2002 (WA) and interstate counterparts. Western Australia closely followed the New South Wales legislation. For causation, the relevant provision is s5C in Div 3, in pt 1A of the Civil Liability Act 2002 (WA). It reads: 5C. General Principles (1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements – (a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability). … (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault – (a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and (b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible. (4) For the purpose of determining


the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor. Section 5D in this division says: 5D. Onus of proof In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. KEY BISCAYNE: REDUX Thinking back to that fading experience for the (1983-1988) Key Biscayne scenario, the factual need to show that fault was a necessary condition to the occurrence of the resultant loss (i.e., use of towing equipment allegedly prone to breaking, was a necessary condition leading to the sinking of the jack-up rig would still apply – albeit this is spelt out even more clearly now, under s5C(1)(a), as the first step in the process. Under s5C(1)(a), the 'but for' test has effectively been re-elevated to its paramount status, as regards need for a plaintiff to prove the links between showing cause and effect. That is a necessary, but by no means the sole, criteria. Had the state of the evidence in the Key Biscayne litigation been left simply as that the towing connections had broken six times on a coastal voyage and that the vessel had sunk in a storm, there would, I think, under the post 2003 tort regime of Civil Liability Act legislation, have been failure to sufficiently show factual causation. It is necessary, in my view, for a plaintiff to link up the cause to the effect – and to prove the other factual steps in a path between tow line breakages at sea, unseaworthiness, taking on of destabilising amounts of water, unseaworthy instability, sinking and loss. The need for that level of precise proof of causation is now clearer than ever, in my view, under s5C(1)(a) as to showing factual causation. But then, there is also s5C(1)(b) to meet as well. As I said, the Key Biscayne litigation was settled and did not reach a trial. The only trace (apart from a diving wreck off Lancelin) is found as regards a minor interlocutory controversy over documents: see Key International Drilling Co Ltd v TNT Bulk Ships Operations Pty Ltd [1989] WAR 280, a decision of Kennedy J.

FOUR TORT CASES (2001-2008) AS COUNSEL Four negligence cases I was involved in arising in the period after I joined the independent Bar are now briefly discussed. At the outset I plead guilty to unshakable levels of personal bias that are inescapable for the participant advocate. Tort scenarios of attempted blame attribution are seen in each case. (a) The Agnew-Leinster Road The first case I will mention is Stevens v Flannery (1999) 23 SR (WA) 165; [1999] WADC 164, but reversed on appeal, reported as Flannery v Shire of Leonora [2001] WASC 47 (per Wallwork J with Malcolm CJ and Ipp J agreeing). The underlying facts bear something of a similarity to the facts of March v Stramere – at least I thought so. Stevens was a road accident negligence case concerning a car rollover at speed in the outback – on the Agnew-Leinster road. The circumstances were tragic, as they always are in such cases. There were three people travelling together in the car that rolled over on this road. The driver and front seat passenger were not wearing seatbelts. The other passenger, in the rear, was wearing a seatbelt. In the ensuing rollover he was not injured. The driver (Mr Flannery) and the front seat passenger (Mr Stevens) were both thrown from the vehicle. Both were very seriously injured. Mr Stevens, the front seat passenger, sued the driver, Mr Flannery, for negligence. The driver was indemnified under compulsory State Government motor vehicle insurance legislation. But he (his insurers) then cross-sued the Shire of Leonora, seeking a contribution towards what was a massive injury payout to which the driver's insurer was exposed and attacking the Shire for fault (also insured, but by different insurers). Underlying this tort personal injury litigation was essentially a fight between two insurance companies – in terms of their overall contributions to Mr Stevens' severe injuries in the wake of this tragedy. The rollover had occurred after employees of the Shire of Leonora had been grading what had become a washed out Leinster-Agnew dirt road. Part of the dirt road suffered heavy wear and tear from rain. A deep, so-called 'bog hole' had developed in the middle of the road after the heavy rains. There was visible water in this bog hole,

along with mud and gravel. The 'bog hole' was visible on the straight road in daylight from some way off as it was approached. To facilitate the Shire repairing the road and grading back to standard, three loads of gravel had been dumped at a point just prior to the 'bog hole' by the Shire's workers. The intention was that mounds of gravel would be pushed by a grader to fill up and fix the hole. However, the three mounds of gravel had been left by the workers protruding about two to three metres on to the road. In the afternoon the Shire's three road workers employees took a break to travel into the closest town to obtain some provisions. They were away for an hour. It was enough. In that time a worst possible outcome unfolded. The vehicle driven at some high but unspecified speed by Mr Flannery moved to the middle of the road, obviously to manoeuvre round the three visible piles of gravel on the left. From there, it moved directly into the path of the bog hole – which it otherwise would have skirted to the left. The road was straight and the 'bog hole' and water in it visible to an approaching driver. But Mr Flannery lost control of the vehicle whilst coming out of the hole. The car rolled, with himself and the front seat passenger, Mr Stevens, thrown out and seriously injured. The trial judge found that there was a lack of legal causation, between the positioning of loads of gravel and the ensuing car rollover. This was a straight, flat, dirt road in the country with good visibility of the mounds and the hole. Another vehicle on the same road beforehand had passed around the loads of gravel to the hole without incident – albeit that driver was critical of the situation. The incident vehicle was admittedly travelling at excessive speed. More particularly, its course looks to have deviated twice – first, passing to the right to move around the gravel mounds, then second, deviating again, in attempting to move back to the left-hand side of the road, whilst still in the hole. The last time it was changing direction, the vehicle was coming out of the 'bog hole' and through water, still at speed. There had been no braking before the hole. [No-one in the rollover vehicle was a witness at the trial – no-one could remember the incident to give evidence.] Speed and a lack of seatbelts aside, country drivers usually learn young to: (a) not drive into visible water on a road ahead at speed, and (b) in muddy or 41


boggy road terrain, not to significantly change direction until the wheels of the vehicle reach a firmer surface. Both those injunctions for prudent driving were violated here. On the appeal the Full Court of Western Australia thought legal causation in tort was sufficiently established to attribute most of the fault to the Shire – effectively by the Shire's employees putting the oncoming driver 'in harm's way' of the 'hole'. This was negligence, found by the positioning and leaving of the loads of gravel, in effect, forcing a driver, albeit speeding, further to the right on the dirt road, to encounter the risk – in the form of the water filled 'bog hole'. As expressed by Wallwork J at [66]: It is a fair conclusion that the chain of causation of the accident was that there was the deviation to the right, the car hitting the water going into the hole, a swerve to the left, with the speed of the vehicle causing the vehicle to roll when it hit the rough gravel on the other side, due to the sideways motion of the vehicle. In the end, liability at the appeal came to be apportioned one-third against the driver and two-thirds against the Shire. That was on the basis of a lesser contributory responsibility assessed towards the driver (Flannery) and the greater upon the Shire – or, more pragmatically, as between their insurers. That result was almost the obverse of the apportionment in March v Stramere (30% parked truck owner, 70% against the intoxicated speeding driver). The appeal result, I suspect, would probably be similar today, even applying s5C(1)(a) of the Civil Liability Act – although it is possible the policy considerations now arising explicitly under s5C(1)(b) could make it tougher for a plaintiff to achieve a 70% outcome in his favour in close circumstances. (b) Cowararmup Bay: 1996 The second tort case I discuss is the Gracetown cliff collapse litigation. This case arose out of another set of tragic events at Huzzas Beach, Cowaramup Bay, on 27 September 1996. This litigation went to trial for two months – the longest civil case I was in as counsel. The trial reasons outcome can be found as McFarlane v The State of Western Australia [2004] WADC 235. Chillingly, the trial judge, Nisbett DCJ, set the scene at [1] of his reasons: On 27 September 1996 a number of adults and children were standing beneath a cliff at Huzzahs Beach in Cowaramup Bay watching the progress 42 | BRIEF AUGUST 2016

of an interschool surfing competition. It was mid-afternoon. It was raining and windy and the people there were taking shelter when, without warning, the cliff above them collapsed. Nine people died. Men, women and children. Their survivors bring this action alleging that the defendants could have adverted this disaster if they had taken the care they ought to have taken. Among those survivors are some who were present on the day of the tragedy and who either miraculously escaped harm or, in one case even more miraculously, was rescued from it. Litigation in tort had been brought on behalf of the surviving relatives and dependant family members against the State and the Shire of Augusta-Margaret River. There was a lot of publicity. If I recall correctly, there was a documentary aired on the ABC. Negligence arguments were run on a basis of contentions that the State or the Shire of Augusta Margaret River ought to have been able to foresee the September 1996 cliff collapse before it happened. That was always going to be hard to show. An overhang rocky ledge visible on the cliff that collapsed had been in position at Huzzas Beach for as long as anyone locally could remember. One day everyone knew, if they ever thought about it, that by the force of gravity it was going to fall down. But when? Noone could say. The September 1996 cliff collapse was a horrible local and State tragedy. It was fully recognised as such at the time by the whole West Australian community. There was the usual Lord Mayor's Relief Appeal conducted in the aftermath. But all proper empathy aside, a negligence case is something else. That is an argument about fault. The action took eight years to get a trial, in August and September 2004, eight years later. By then, as we have seen, the Civil Liability Act 2002 was in force. But it did not apply to the September 1996 collapse events, which had happened prior to that legislation's commencement in 2003. In the end, the plaintiffs failed to show negligence against anyone at trial: see McFarlane supra. Their essential difficulty was that there was no tangible evidence given at trial of any visible or other physical warning feature (such as a visible crack or close by previous fall to indicate an unstable rock formation) to put anybody within the south-west local community on reasonable notice of a possibility, likelihood or imminence of this cliff's ledge imminently collapsing,

when it did. Multiple expert geologists were called as trial witnesses. They all accepted that one day this huge granite overhang, through the force of gravity and atmosphere, must fall. Uniformly, however, none could say or even reliably guess at when that might be. This overhang, safely used for years before by the local community as a convenient shelter against the weather, looked to have been in its same position since the first European settlement of Western Australia. Predicting the time of its fall was impossible. That it turned out to be September 1996 was an unforeseeable risk. The question at trial then was not as to whether there had unfolded a shockingly tragic event. It was the proving of fault in the defendants, by an absence of reasonable care on the part of someone responsible. The answer to that legal question was 'No', by the trial judge. There was no appeal run against that decision. Litigation is sometimes referred to, rather simplistically, as a 'quest for answers', or even sometimes, as a necessary part of the 'grieving process'. Generally, these types of remarks emanate from people with no first-hand experience of the process. Whatever might be said, I doubt the expense of a two-month trial is a burden taxpayers should ever have to bear as an exercise in providing therapy. A civil trial is not a roving Royal Commission of Inquiry. The contested adversarial courtroom trial environment will often be a cold and unpleasant place, even for the strongest of personalities – let alone for the vulnerable. Nor, in my 37-year experience, is a civil trial seeking damages likely to be a reliable place for finding 'answers'. The problem for this tort case was the lack of evidence to prove fault by a lack of reasonable care in a particular State or local authority, however else one will, as a fellow citizen, greatly empathise with surviving families after a natural disaster. (c) Bushfires at Brookton The next case I mention was another saga. On this occasion, I came to be acting as counsel for multiple plaintiffs following an incident arising out of a bushfire, which began in a rubbish tip on the outskirts of the town of Brookton, on 15 December 1997. A fire emanating from that waste disposal site jumped on the wind to adjacent farmland about half a kilometre away in a nearby paddock, sown with dried off clover. This was the perfect environment for a bushfire on a brutally


hot mid-December day, with a strong wind blowing from the north, to rapidly spread across fields and paddocks brimming with crops for harvest. Tragically, the whole of the Brookton farming district and well beyond was heavily affected by a huge fire front that developed that day, in extremely adverse weather and fire fighting conditions. The tort case at first instance was heard in the Supreme Court before Master Sanderson, who had been appointed as trial judge. His decision, Brechin v Shire of Brookton [2002] WASC 228, was delivered on 25 September 2002. The decision saw success follow for the many plaintiffs who had sustained multimillion dollar property damage, on the basis of them proving negligence against the Shire of Brookton (pragmatically, their insurers). The case was soon taken on appeal, where it became a close run thing: see Shire of Brookton v Water Corp [2003] WASCA 240. In the result, the decision at first instance was upheld as regards the liability found in the Shire. The first decision was upheld on the basis that no proper fire extinguishment instructions had been issued from the Shire to its employees. Had there been, it was found causatively under tort law principles, that such an instruction about the need for a swift and priority extinguishment of any fire would have materially reduced the risk here of the bush fire harm to fire ravaged properties of the local respondents. Failure to give that instruction to the Shire's employees, who had seen smouldering grain at the local tip for months beforehand and not intervened, was found to have materially increased the risk of harm to the property owning local respondents. This was another case raising legal causation problems under tort law. The absence of an adequate fire extinguishment instruction to Shire employees was assessed as causatively linked to the instant escape of the fire from the local tip and the ensuing district farmland destruction. McLure J, in the Court of Appeal, applied observations from the decision of Gaudron J in Bennett v Minister for Community Welfare (1992) 176 CLR 408, at 420 â&#x20AC;&#x201C; 421: Generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty

caused or materially contributed to the injury. Whether the same result would be arrived at today, applying the Civil Liability Act s5C as regards causation, is an open question. There might be need to have recourse to the exceptional provisions (albeit the word used by the West Australian legislation is 'appropriate', rather than 'exceptional' as is the word used in the New South Wales equivalent law): s5C(2). This remains a still undeveloped area of law, albeit see a decision of the High Court of Australia in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 at [44] and [55], dealing with the similar New South Wales legislation and a somewhat bizarre shooting incident. There the plaintiffs argued there was a failure to provide security guards at a function centre and that doing so would have likely stopped a crazed gunman's rampage against innocent people at the function. The High Court of Australia refused an application for special leave to appeal in the Brookton bushfire litigation: Shire of Brookton v Brechin [2004] HCA Trans 415 of 27 October 2004. (d) Medical negligence: Breech births The last case in my quartet is yet another tragic scenario, this time a negligence action brought against a specialist obstetrician, in the wake of a birthing delivery at a regional West Australian hospital, that saw the plaintiff infant born with severe cerebral palsy: see McLennan v McCallum [2007] WADC 67, decision affirmed by the Court of Appeal of Western Australia as McLennan v McCallum [2010] WASCA 45. The core reasons were delivered by Buss JA, with McLure P and Newnes JA agreeing. I had appeared at the trial as counsel on behalf of the insurers for the defendant obstetrician. All the negligence claims were dismissed at trial by Wisbey DCJ. One of the factors leading to dismissal of the action was a rejection of the plaintiff's arguments contending the obstetrician ought not to have allowed a natural birth to proceed. There had been a 'breech' presentation scenario. There was a factual argument at trial over whether or not this infant's presentation had been a feet first presentation (a footling breech), or whether the true presentation was a different and less problematic type of breech presentation. In the latter case, by the standards of the day, allowing a natural birth was then acceptable with heart rate monitoring and could not be assessed as negligent. The trial judge rendered

factual findings upon the nature of the breech presentation, concluding in the end it had not been a footling breech presentation. Tragic facts aside, the case was legally important, if not only for the evidence that ongoing international research (trials) undertaken over many years had effectively moved the medical profession to a position of knowledge where all breech presentations came necessarily to be addressed by a caesarean intervention. The Hannah trials over some years had generated that change in medical practice. But that was after this birth. Hindsight is not open to be used in rendering the duty of care assessments upon the medical practices of the day, when they come to be assessed as reasonable, or not. The fundamental factual difficulty for the plaintiff in that case, sickeningly tragic as it was for all concerned, was that the infant was born with a whole range of other medical problems, which were capable of being attributed to distinct other causes â&#x20AC;&#x201C; other than a relatively swift natural birth at a regional hospital. Even if a caesarean intervention had been performed it still could not, in a causative sense, be proven that an earlier birth by a caesarean intervention would have avoided all these problems. There was a fundamental tort causation obstacle. There was an attempt before the Court of Appeal to argue different aspects of alleged negligence, not run at the trial. That was not allowed. The appeal failed. CONCLUSIONS This review, I trust, shows a diverse daily range of fault and fact situations that arise in everyday experiences, all catered for under the law of tort, in particular, by common law negligence principles and with modifications now delivered under the Civil Liability Act 2002. A theme of proving legal causation is seen to run through many of the cases. Of course, there have been some hugely interesting tort/negligence cases that I have been involved in as a judge since I joined the Supreme Court in 2009. But time, space and confidentiality considerations presently inhibit a candid discussion about them tonight. That will have to await the memoires and, hopefully, a future return visit. Thank you again for affording me the opportunity to speak this evening. NOTES 1.

https://www.atsb.gov.au/publications/investigation_ reports/1984/mair/mair3/

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YLC Panel Presentation – Homophobia within the Law Curtis Ward Lawyer, Cleveland & Co Lawyers and member of the Young Lawyers Committee

Following on from their work on the Expunging of Historical Homosexual Convictions submissions (a copy of which can be found on the Law Society's website), the Young Lawyers Committee (YLC) had members of the profession come together to discuss the progression of the law with respect to LGBTIQ rights and what could be done further to address these issues with respect to WA's current laws. The Immediate Past President of the Law Society, Matthew Keogh, chaired the panel discussion with the 2016 panel consisting of: •

Magistrate Patrick Hogan, President of the Gender Reassignment Board and Casual Magistrate at the Children's Court of Western Australia;

Asanka Gunasekera, Member of the Western Australian Bar Association's Diversity Committee;

Michelle Rogers, Senior Vice President of PrideWA and Director of Support Services at Curtin University; and

Jeremy Rich, Lawyer, Allens.

The panel discussed a wide range of challenges that Western Australia's LGBTIQ community continue to face 44 | BRIEF AUGUST 2016

in modern times, both within the community at large as well as within the legal profession. The general consensus coming from the panel was that Australian politicians face a big task in this area particular with respect to the laws on marriage equality. There was much debate as to why a plebiscite was necessary to bring Australia in line with other members of the western world, especially given that the definition of marriage was changed in Australia just last decade to rule out the possibility of same-sex marriage without the need of a plebiscite. The question was also raised as to whether the results from the plebiscite would tie Parliament's hands in relation to amending the laws or whether the plebiscite was just an expensive opinion poll? A topic of particular interest for the audience, especially given Magistrate Hogan's presence on the panel, was the laws around gender reassignment. With countries such as Ireland now allowing individuals to self-select their gender without the need to undergo any intrusive procedures or obtaining the approval from any official bodies, the question was asked as to what Western Australia's current position is in relation to gender reassignment. The panel looked to the case of AB v The

State of Western Australia [2011] HCA 42, in which the High Court found that a person does not need to undergo any surgical measures to change their identity but must simply appear to others in the community to be a member of their preferred gender. Perhaps the most profound topic of conversation was raised by way of a question from the audience and the YLC will pose that question to you, the reader – When we look back 50 years and we are astonished by certain laws from that time, what do you suppose people in 50 year's time will find most shocking about the state of our current laws in relation to the LGBTIQ community? The YLC would like to thank everyone that attended this year's Law Week Panel Discussion. Particular appreciation goes to each of the panel members for their time and the expertise they shared, the Supreme Court for providing the venue and KBE Human Capital for sponsoring the event.

Proudly sponsored by


2016 Cluedunnit Kids Competition

From left: Sergeant Garry Corker, WA Police; Claire Rossi, Legal Aid WA; Winning team members – Undercover 015, Wanneroo Primary School and Ambassador School team members – Legal Eagles, Halls Head Primary School; and Alain Musikanth, Senior Vice President, Law Society.

This year the Francis Burt Law Education Programme established a separate Western Australian Law Week competition called the Cluedunnit Kids Competition based on the Clued Up Kids Competition. The Competition strives to teach students about the consequences of breaking the law in a non‑threatening environment. Students investigate a fictitious criminal offence using statements, photographs and scientific evidence. The students were given a scenario where graffiti had been carried out on a roller door of a mechanical workshop which was situated across the road from a shopping centre. There were three suspects and students had to investigate the crime and identify the correct suspect. Each school was permitted to ask up to six questions to help them gain more evidence to identify the perpetrator. Using the evidence they had gained each team then had to present their findings in a creative way. An outstanding 381 students from 34 schools participated in the competition. Of the 34 schools, 24 final submissions were received for judging. The submissions were very creative and

were submitted in the form of videos, PowerPoint presentations, a board game and a paper chart. The judging panel comprised of the Chief Magistrate of Western Australia, Steven Heath, Claire Rossi from Legal Aid WA, Sergeant Garry Corker from WA Police and Dr Narrelle Morris from Curtin University. The judging was based on three main criteria – the correct identification of the suspect, supporting evidence used and the creativity of the presentation. The Judges were very impressed by the high standard of submissions received and the creativity demonstrated by the students. All of the submissions received correctly identified the suspect who had committed the crime. It was unanimously agreed that the Undercover 015 team from Wanneroo Primary School were the winners of this year's competition. Their submission was in a video format and was based on police recruits from the Joondalup Police Academy having to solve the crime as part of their final duties before graduating. The team showed a very thorough analysis of the evidence.

school and presented their submission in a PowerPoint format which also demonstrated a very thorough analysis of all of the evidence. The Ambassador School Award, determined by the manner in which the teams conduct themselves throughout the competition, was awarded to the Legal Eagles team from Halls Head Primary School. On 17 June 2016 a presentation of awards took place as part of the school assembly at the Wanneroo Primary School. The presenters were Alain Musikanth, Senior Vice President, Law Society, Sergeant Garry Corker, WA Police, Claire Rossi, Legal Aid WA and Áine Whelan, General Manager – Programmes, Law Society. The Law Society thanks Sergeant Garry Corker and Claire Rossi for their ongoing support and particularly for their assistance in creating the scenario for this year's competition. The Law Society also thanks Curtin University for its sponsorship of the Competition. Proudly sponsored by

The Youdunnit team from Donnybrook District High School were the runner-up

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

D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157 Application for extension of time for leave to appeal – Considerations relevant to the discretion D & M Amonini Pty Ltd (Amonini) applied for extensions of time for leave to appeal, relevantly, from the award of an arbitrator delivered on 14 February 2014 and from an amended award delivered on 26 June 2014 under the Commercial Arbitration Act 1985 (WA) (the Act). The applications were lodged more than a year out of time, contrary to O 65 r 9 of the Rules of the Supreme Court 1971 (WA) (the Rules), which required the appeals to be commenced within 21 days. Further, an earlier order of the Court had required that any application for leave to the arbitrator's award of 14 February 2014 be filed by 11 July 2014.

In an affidavit supporting the applications, Amonini's solicitor explained the delay, in part, by noting Amonini did not initially wish to appeal and by relaying the fact the directors' financial and temporal resources were otherwise occupied. In an extemporaneous judgment, Martin CJ dismissed the applications noting Amonini "displayed contumelious disregard for the orders of the court and the Rules". First, his Honour noted that a clear objective of the Act to ensure that parties achieve a degree of finality when an award is delivered. Second, parties to arbitral proceedings are entitled to order their affairs in reliance upon the expectation that they will be entitled to enjoy the benefits of their award. Third, commercial confidence would be weakened if extensions of time were granted which would enable proceedings to drag on indefinitely. Fourth, the length of the delay here was substantial. Fifth,

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46 | BRIEF AUGUST 2016

Amonini's reasons for delay did not provide any reasonable justification or explanation. Sixth, Amonini showed contumelious disregard for the need to comply with the time limits specified by the Rules and the court's earlier order. Seventh, Martin CJ noted that general prejudice to a respondent to an application for an extension of time could be inferred from lengthy delay. Here, there was also evidence of specific prejudice to the respondents. Finally, Martin CJ noted that the grant of leave under the Act is itself discretionary and the factors identified above would militate against the grant of leave. Although perhaps an extreme example, Martin CJ's reasons provide a succinct reminder of the rationale behind the Court's discretion in granting extensions of time. Author anonymous


Family Law Case Notes Robert Glade-Wright Former barrister and accredited family law specialist

Maintenance – High Court upholds discharge of interim order – Inferred wife could call on her brothers to pay her $150,000 from father's estate In Hall v Hall [2016] HCA 23 (8 June 2016) the High Court dismissed the wife's appeal against an order of the Full Court (FCA) discharging Dawe J's interim maintenance order that the (property developer) husband pay the (medical practitioner) wife interim maintenance of $10,833 per month ([15]). The wife had deposed that she owned two luxury motor vehicles and had an interest in her father's estate of an unknown value. Since the order an affidavit filed in opposition to a subpoena for production of the will disclosed that the father expressed a 'wish' that the wife receive from a group of companies (in which he held shares which he left to the wife's brothers) $16,500,000 on the first to occur of a number of events including divorce and that she receive $150,000 p.a. until the date (if any) of that payment ([20]). Upon the Full Court allowing the husband's appeal on the ground that the wife's estate interest was a financial resource, the wife appealed to the High Court. French CJ, Gageler, Keane, Nettle & Gordon JJ (Gordon J dissenting) said (at [31]-[32]): … Accepting that … the annual payment … would have been voluntary, the Full Court found that the wife would have received [it] if she had requested it … In drawing that inference … the Full Court noted that the Group was controlled by the wife's brothers and that there was no evidence that the wife had requested [them] to comply with their father's wish once she became aware of … the will. The Full Court saw nothing in the evidence to suggest that any such request, if made, would have been denied. The fact that her brothers had provided her with luxury motor vehicles indicated that the wife had a good relationship with them. Upon dismissing the appeal with costs, the majority said (from [45]): The Full Court's finding that the wife would have received the annual payment of $150,000 … if she had asked her brothers was well open on the evidence. ( … )

[48] True it is that the wife had not received any payment from the time of their father's death. The reasons for that were wholly unexplored in the evidence. That evidentiary gap was within the power of the wife to fill. It was within [her] power … to lead evidence to provide some explanation. Again, her failure to do so allows the inference to be drawn that such explanation … would not have assisted her case. ( … ) [55] Whether a potential source of financial support amounts to a financial resource of a party [under s75(2)(b) FLA] turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it. Property – Initial contributions adjustment upheld on appeal but not judge's finding that wife's earning capacity was unaffected by marriage In Wah & Golay [2016] FamCAFC 67 (7 April 2016) the Full Court allowed the wife's appeal against a property order but left undisturbed the assessment of contributions as 87.5:12.5 where of a net pool of $3.9m the husband's initial contributions were $2.4m and the wife's $280,000. Rees J had made no s75(2) adjustment, finding that the wife's earning capacity was unaffected by the eight year marriage. Murphy J (with whom Ryan and Aldridge JJ agreed) said that it was found that "the wife would have $500,000 with which to house and support herself" ([25]) but had "little if any prospect of gainful employment" and that he was "unable to see where her Honour ha[d] given any consideration to … s75(2)(d) (wife's commitments enabling her to support herself) ([26]) or the fact that the wife was receiving sickness benefits (s75(2)(f)) or that a reasonable standard of living was to be considered too (s75(2)(g)) ([27]). Murphy J referred (at [28]) to Rees J's finding that "there [wa]s no evidence that she had an earning capacity before the marriage" and that she "earned a small amount … during the marriage for a year or so" and said as to s75(2)(k) that he was "unable to see how her Honour's finding that the wife's earning capacity was unaffected by the relationship was

open to her on the evidence" ([30]) given that the wife's taxable income (in 2003 which "embraced the first seven months of the parties' cohabitation") was $56,900, then $14,300 in the first full tax year of the marriage, whereafter the wife was a fulltime homemaker ([29]). Murphy J held ([49]) that the nil adjustment under s75(2) should be increased to 7.5 percent or about $294,000, giving the wife about $786,000 as ([51]) "the relationship … had a detrimental impact on her capacity to earn income" and "[h]er current standard of living is markedly poorer than the husband's and … than that enjoyed by the parties during their relationship". Publication of proceedings – Father allowed to use family consultant's report in his domestic violence case In Miller & Murphy [2016] FCCA 974 (2 May 2016) Judge Brown granted Mr Miller's application to use in domestic violence proceedings the report of a family consultant that contained a child's account of an altercation between the parties that was inconsistent with that of the wife in those proceedings. The Court (at [43][45]) considered s121(1) of the Family Law Act which prohibits the dissemination to the public or a section of the public by any means any account of proceedings arising under the Act which identify a party to the proceedings or a person who is related to, or associated with, a party to the proceedings, saying that the question arising is whether if the report is released it would represent "dissemination to the public". The Court cited In Re Edelsten; ex parte Donnelly (1998) 18 FCR 434 in which Morling J considered that the reference to the public in section 121(1) should be read widely and refer to "widespread communication with the aim of reaching a wide audience". The Court concluded that if in the case at hand the report were released it would be read "potentially [by] defence counsel for Mr Miller, the police prosecutor and the presiding magistrate" which "cannot be considered to be a wide audience".

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

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Law Council Update LAW COUNCIL CONGRATULATES ATTORNEY-GENERAL AND JUSTICE MINISTER ON THEIR REAPPOINTMENTS The Law Council of Australia has warmly congratulated Senator the Hon George Brandis QC and the Hon Michael Keenan MP on their reappointments as Australia's Attorney-General and Justice Minister respectively. Senator Brandis and Mr Keenan were today named by Prime Minister Malcolm Turnbull into the key Government portfolios. Law Council of Australia President, Stuart Clark AM, said he was looking forward to growing the Law Council's positive working relationships with both Ministers. "The Law Council is grateful for the close and cooperative relationship we have enjoyed with Senator Brandis over the course of the last Parliament," Mr Clark said. "It is a relationship that has been characterised by openness and constructiveness and we look forward to it continuing to strengthen. "Similarly, the Law Council warmly congratulates Mr Keenan on his reappointment as the Justice Minister and Minister Assisting the Prime Minister for Counter-Terrorism. We welcome the opportunity to build on our already productive relationship." Mr Clark noted there was a tremendous amount of work to do in the legal sphere in the next Parliament. "The Law Council has identified a number of policies that should be made key priorities of as part of its 2016 Election Policy Platform," Mr Clark said. These priority areas include: •

ending Australia's legal aid funding crisis;

convening a national summit to address the chronic shortage of legal professionals working in rural, regional, and remote communities;

ensuring counter-terrorism laws are consistent with rule of law principles;

providing adequate funding for federal courts and tribunals;

identifying and implement measures

48 | BRIEF AUGUST 2016

designed to reduce domestic and family violence; •

working towards abolishing mandatory sentencing laws across the board; and

implementing strategies to address alarming rates of Indigenous imprisonment and victimisation.

"We look forward to discussing these and other priorities in detail in the coming months." Mr Clark also took the opportunity to congratulate the Turnbull Government on its re-election and all MPs and Senators successfully elected to Parliament. "In addition to Government, the Law Council looks forward to working productively and constructively with the Opposition, minor parties and independents as we begin the 45th Parliament of Australia," Mr Clark said. LAW COUNCIL OF AUSTRALIA URGES DFAT TO REDOUBLE EFFORTS WITH CHINESE GOVERNMENT TO RELEASE DETAINED LAWYERS

Since the crackdown commenced, the Law Council of Australia has met with senior DFAT officials and senior advisers to the Prime Minister. The Law Council appreciates the Australian Government's advocacy to date. In particular, a joint statement with 11 other countries at the 31st Session of the Human Rights Council on 10 March 2016 expressing concerns about China's deteriorating human rights record, which referred to the arrests and detention of lawyers. The Law Council encourages further multilateral efforts and calls for a joint statement by like-minded governments condemning the attacks on the legal profession in China and requesting the release of those still detained. The 1 July 2016 joint statement on the disturbing abduction and murder of Kenyan lawyer Willie Kimani, his client and driver, demonstrates the positive force foreign governments can play in supporting the rule of law through their missions overseas. Law Council of Australia President Stuart Clark AM said the crackdown was deeply troubling to the Australian legal profession.

The Law Council of Australia is urging the Department of Foreign Affairs and Trade (DFAT) to redouble its efforts with the Chinese Government, with the goal of: securing the release of the 23 lawyers and activists still in detention, ending torture and ill-treatment of those detained, removing travel bans against 39, and stopping the harassment of the families of lawyers. At least 319 lawyers, law firm staff, activists and their family members have been targeted since the '709' crackdown commenced.

"The 709 crackdown is a clear violation of human rights and the Law Council of Australia will continue to be active in international efforts to redress the situation," Mr Clark said.

The Law Council is joining with the International Bar Association in marking the one year anniversary of the crackdown, expressing its continued concerns with China's respect for the rule of law and a rules-based international order.

"China is Australia's top bilateral trading partner. The crackdown raises concerns that sudden and arbitrary retribution exists for lawyers practicing in China. Adherence to a rules-based international order is essential for retaining confidence in the service sector, which in turn sustains robust trade relations. Attacking lawyers, regardless of what field they practice in, creates uncertainty and threatens those relationships.

Many of the lawyers caught up in the crackdown, which commenced on 9 July 2015 are still missing, with no access to their family, let alone a lawyer. For example, a partner at Beijing Global Law Firm, Li Heping (李和平), has not been seen since 10 July 2015. Of further concern are reports suggesting that some of the detained have been tortured or have suffered sexual abuse.

"The scale of this crackdown is larger than any other targeting the legal profession in China in recent years. Consistent with the Basic Principles on the Role of the Lawyers, it is vital for every nation to have an independent legal profession which can practice without fear of reprisal.

Both the Australian legal profession and the Australian community as a whole has an interest in ensuring that the Chinese legal system is robust, fair and impartial."


pam sawyer

49


Professional Announcements Career moves and changes in your profession

Fletcher Law

Solomon Hollett Lawyers

Gandhi and Shaw

Fletcher Law is extremely pleased to welcome Mark Pendlebury as Principal, Commercial Litigation, from 1 July 2016. Mark joins us from Francis Burt Chambers where he was a Barrister for 13 years. For over a decade before that he had been a Partner of Clayton Utz.

Solomon Hollett Lawyers is pleased to announce the appointment of Sarah Clutterbuck as lawyer within the firm. Sarah has worked in the legal industry for over ten Sarah Clutterbuck years, having worked for a number of mid to large sized firms before being admitted to practice in 2013. From there Sarah took on a role in a Sydney law firm in 2015, commencing work with us back in her home town of Perth.

David Shaw and Gandhi are pleased to announce that they have commenced practice as Gandhi and Shaw, focusing on complex construction and corporate/commercial disputes.

Mark Pendlebury

Mark has extensive experience in commercial disputes, providing clear, pragmatic advice and effective representation. He adds significant inhouse firepower to our litigation team. Mark is happy to join a growing, boutique commercial firm focussed on providing sound legal advice that cuts to the chase.

David Shaw

Gandhi

HLS Legal Their contact details are:

HLS Legal are pleased to announce that Heather McIntyre has been promoted to Senior Associate as of 1 July 2016.

11/21 Roydhouse Street, Subiaco WA 6008 Tel: (08) 9380 6050 Web: www.gandhiandshaw.com.au

Heather has extensive Heather McIntyre experience in employment law, industrial relations and occupational health and safety matters.

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Telephone 9322 1966 Aimee.duncan@hhg.com.au

EQUUS, 580 HAY STREET, PERTH PAUL CARLO LEVRIDO late of Gracewood Nursing Home, 20 Roebuck Drive, Salter Point Western Australia formerly of 43 Honiton Avenue, West Carlingford New South Wales died on 10 August 2011 at Salter Point Western Australia. Would any person holding the last Will and Testament of PAUL CARLO LEVRIDO or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6525 within one (1) month of the date of publication of this advertisement quoting reference DE 33092024 EM110

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50 | BRIEF AUGUST 2016

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New Members New members joining the Law Society (June 2016)

Associate Membership Ms Pauline Christodoulou

Lawfield Legal Practice

Ms Camille Le Miere

DLA Piper Australia

Miss Charlotte Westbrook

DLA Piper Australia

Ms Adeline Brosnan

Clayton Utz

Mr Matthew Carmody

Clayton Utz

Mr Benjamin Depiazzi

Clayton Utz

Mr Alexis Hall

Clayton Utz

Ms Karina Hanrahan

Clayton Utz

Miss Coralie Hobbs

Clayton Utz

Mr Adrian Blacker

Clifford Chance (Sydney)

Mr Liam Hennessy

Clifford Chance (Sydney)

Mr Alastair Gourlay

Clifford Chance (Sydney)

Ms Nadia Kalic

Clifford Chance (Sydney)

Mr Jack Oakley

Clifford Chance (Sydney)

Ms Sally Qi

Clifford Chance (Sydney)

Mr Owen Thomas

Clifford Chance (Sydney)

Ms Hannah Vieira

Clifford Chance (Sydney)

Australian Health Practitioner Regulation Agency

Mr Alexander Ninkov

Allens

Miss Emily Goodger Miss Melissa Settineri

Jackson McDonald

Mr Ricci Kalmin

Jackson McDonald

Ordinary Membership

CPD EDUCATION PROGRAMME SEPTEMBER–DECEMBER 2016

6

Ms Rhiannon Coleman

Ms Lauren Zambotti

Minter Ellison

Miss Kristy Haining

Corrs Chambers Westgarth

Miss Amy Watson

Clayton Utz

Miss Kaylene Hunter

Office of Senator Patrick Dobson

Mrs Bonnie Scovell

Edwards Mac Scovell

Restricted Practitioner Ms Alexandra Lanyon

Allens

Ms Rachel McKenzie

McKenzie & McKenzie

Miss Georgia Tomasetti

Kitto & Kitto

Ms Malini Tanabalan

Milton Graham Lawyers

Register online at lawsocietywa.asn.au/cpd

Personal Property

SEMINARS 7 Professional Skills

Much has happened since the Personal Property Securities Act 2009 commenced operation four years ago. This innovative and complex legislation overhauled many long entrenched common law and equitable principles relating to personal property securities. Several court decisions have shed light on the scope and application of the legislation including what is encompassed by a ‘security interest’, the consequences of failure to register, and the consequences of mistakes on the register. Linda Widdup discusses the decisions of the Australian courts, as well as the recommendations arising from a statutory review of the legislation.

Thursday, 1 September 9.30am – 10.30am Developments in PPSA Chair – David John Partner, Herbert Smith Freehills Linda Widdup Lecturer, Curtin Law School

The first of two seminars focusing on empowering communication. Learn to increase confidence to communicate assertively and make effective requests.

Friday, 16 September 10.30am – 12.30pm Empowering communication: Assertive communication

Learn tools and techniques for effective assertive communication including how to effectively frame conversations, powerful language and the effect of body language on ourselves and others. Learn about the role of curious listening in assertive communication and look at the elements and impact of powerful questions.

Ellie Scarf Lead Coach and Facilitator, Madston Black

Level: General 2 points, Competency 2, Professional Skills

Level: General 1 point, Competency 4, Substantive Law Member - $125 Non-member - $185 CPD Active - $0

Member - $230 Non-member - $300 CPD Active - $0

The skill of taking minutes is much more than simply providing a transcription of what was said during a meeting. A skilled minute taker will know that their role starts before a meeting and continues beyond the conclusion of a meeting. Understanding the purpose of minutes and how they will be used is crucial to producing accurate and useful minutes.

Legal Support

Thursday, 8 September 12.00pm – 2.00pm Skilled minute taking

• Your role as the minute taker • Agenda and minute templates • Layout and language of minutes • Practical exercises to create draft minutes

Personal Injury

Tuesday, 13 September 4.30pm – 6.00pm Motor Vehicle (Catastrophic Injuries) Act 2016 (WA) Chair – Jeff Potter Partner, Friedman Lurie Singh & D’Angelo Geoff Bourhill Barrister, Francis Burt Chambers

4

CPD

SEPTEMBER-DECEMBER

2016

DEVELOPMENT

PROFESSIONAL CONTINUINGwith the latest Keeping up to date SPRING CALENDAR

legal and professional developments

Member - $180 Non-member - $250 CPD Active - $0

SEPTEMBER 2016

er 2016 Thursday, 15 Septemb Page 6 9.00am – 10.30am

er 2016 Thursday, 1 Septemb Page 6 9.30am – 10.30am

er 2016 Friday, 16 Septemb Page 7 10.30am – 12.30pm

er Thursday, 8 Septemb Page 6 12.00pm – 2.00pm er 2016 Tuesday, 13 Septemb Page 6 4.30pm – 6.00pm

Wednesday, 14 September 4.30pm – 6.00pm Engaging with in-house counsel: tips for private practitioners to build a trusted legal advisor relationship Chair – Pamela Haas, Principal Counsel Legal and Commercial Strategy, Dept of State Development Elisabeth Edwards, Regional Legal Counsel (WA), Brookfield Multiplex Paul Evans, State Solicitor, State Solicitors Office Miriam Sauley, Principal Lawyer and Manager, Legal and Legislative Services, Dept of Housing

Simon Salter – 6.00pm 5.00pm Partner, K&L Gates

Page 8

Adam Myers Partner, Corporate Finance, BDO

Member - $180 Non-member - $250 CPD Active - $0

OCTOBER 2016 2016 Page 8

2016 Thursday, 6 October Page 8 4.30pm – 6.30pm

2016 Monday, 10 October Page 8 9.00am – 10.00am

2016 Tuesday, 11 October Page 9 9.00am – 10.00am

er 2016 Friday, 16 Septemb Page 7 1.00pm – 2.00pm Social media – Ethics on Friday: ty handcuff v adaptabili

2016 Thursday, 13 October Page 9 5.00pm – 6.00pm when an accused Change of plea superior court pleads guilty in

online at lawsocietyw

r 2016

2016 Tuesday, 18 October Page 10 9.00am – 10.00am Schemes: Community Title management development and issues for lawyers

Tuesday, 15 9.00am – 10.30am

Page 12

Level: General

Full details of the day’s programme are provided on the Law Society’s website.

1 point, Competency 2, Professional Skills 5 points, Competency 4, Substantive Law

Member - $653 Non-member - $718 CPD Active - $50

r 2016 ay, 23 Novembe Wednesd Employment Page 13 4.30pm – 6.00pm Wednesday, 21 September 9.00am – 12.30pm Employment law in the new age: November 2016 , 24 the future of work Thursday

r 2016 Tuesday, 15 Novembe Page 12 5.00pm – 6.00pm

Shareholder and joint venture agreements are essential commercial documents that help reduce the likelihood of future disputes and provide the framework forr 2016 8 Novembe Tuesday, resolving issues that do arise. This seminar examines key 11 Page characteristics of these two forms of agreements and – 12.15pm 9.00am provides practical tips on how to properly document the agreement process including valuations. The seminar also looks at how the dispute process (e.g. mediation leading to court action or arbitration) works and provides 2016 practical tips on how to handleay, disputes that can arise.r 9 Novembe

November Wednesday, 16 Page 12 12.00pm – 2.00pm

Page 12

1 point, Competency 2, Professional Skills

Page 13

6.00pm Felicity Clarke Chair – Daniel– White 5.00pm Senior Associate, Of Counsel, Norton Rose Fulbright Squire Patton Boggs

0.5 point, Competency 4, Substantive Law

r 2016 Friday, 18 Novembe Page 13 9.00am – 11.00am Lead on Purpose

Member - $348 Non-member - $418 CPD Active - $0

Renae Harding Special Counsel, Jackson McDonald

Mark Cox Director, MDC Legal

The nature of work is changing and employment law must keep up. This seminar tackles how employment law is keeping up with the changes focussing on: • The future of work and the impact of technology and new working arrangements including the rise of the insecure or contingent workforce and use of contractors • Disciplinary and performance issues in the context of social media and conduct beyond the workplace • Occupational safety and health considerations for employers for non-traditional working relationships in particular the challenges and considerations involving the “joint workplace” – where contractors, labour hire workers and employees work together and also employees working remotely or from home.

Level: Intermediate/Advanced 3 points, Competency 4, Substantive Law

View the back page of this edition of Brief for the full lineup of seminars, or visit lawsocietywa.asn.au/cpd for a digital copy and to register online.

DECEMBER 2016

2016 Tuesday, 18 October Page 10 5.00pm – 6.00pm and limits of Privilege: the scope communications without prejudice al privilege and legal profession October 2016 Wednesday, 19 Page 10 9.00am – 10.30am awareness African cultural

October 2016 Wednesday, 19 Page 10 2016 Friday, 14 October 4.30pm – 6.00pm Page 9 difficult or 9.30am – 11.30am Strategies for managing work culture: vexatious litigants The impact of poor productivity benefits the people and October 2016 Wednesday, 20 Page 11 6.00pm – 5.00pm 2016 approvals: Friday, 14 October Environmental Page 10 the Beeliar of s 1.00pm – 2.00pm implication ethical dilemmas Wetlands decision Ethics on Friday: in advocacy

Earn 6 points across two competency areas. Morning tea and a light lunch will be provided.

r 2016 Tuesday, 22 Novembe Page 13 3.00pm – 5.45pm

November 2016

Page 11

Wednesd Level: Intermediate/Advanced 5.00pm – 6.00pm

• Restraints of trade • Avoiding litigation after settlement

Tom Meagher Director, Murfett Legal

Alex Sceales Partner, Sceales Lawyers

2 November 2016

9.00am – 11.00am

• Taxation and stamp duty

GiGi Visscher Barrister, Francis Burt Chambers r 2016

18 Novembe Friday, Damian Quail Page 13 Director & Principal, Williams & Hughes 1.00pm – 2.00pm

r 2016 Thursday, 10 Novembe Page 12 5.00pm – 6.00pm

• Intellectual property • Employment issues

Richard Hooker Barrister, John Toohey Chambers

1 Novembe The panelTuesday, of speakers explore the pressures facing inhouse teams and the role of in-house counsels inPage briefing11 – 6.00pm external legal practitioners. The seminar concludes with 4.30pm practical tips to private legal practitioners to assist them to build and strengthen a trusted advisor relationship with in-house counsels. 1.5 points, Competency 1, Practice Management

• Banking and finance

Michael Paterson Principal, Michael Paterson & Associates

a.asn.au/cpd

NOVEMBER 2016

Level: General Wednesday,

• Due diligence

SEMINARS 5

Stephen Kemp Partner, Jackson MacDonald

1.5 points, Competency 4, Substantive Law

SEPTEMBER–DECEMBER 2016

Gain a comprehensive overview of all aspects of buying and selling a business – essential for all practitioners practising in the area.

• Preliminary contracts and documents

Sale of business workshop

Level: General

CONTINUING PROFESSIONAL DEVELOPMENT PROGRAMME

Experienced speakers provide practical tips on what to look out for and how to better represent your client in a sale of business transaction with particular focus on the following specialist areas:

Chair – Fiona Halsey Director, Halsey Legal

This seminar is highly recommended for all practitioners who practice in the area of motor vehicle accident claims and personal injury law in general.

lawsocietywa.asn.au

2016 Tuesday, 11 October Page 9 10.15am – 11.15am assessing a Urgent Wills and capacity client’s mental

1 point, Competency 3, Ethics and Professional Responsibility

Tax

Employment Banking and Finance

WithRegister the growth of in-house legal teams and the business drivers of cost control and efficient operations, in-house counsel are becoming more sophisticated pursuers of legal services. In these circumstances, it is vital for private legal practitioners to be cognisant of the unique needs of the in-house legal function when delivering legal services to in-house teams.

er 2016 Tuesday, 20 Septemb Page 7 9.00am – 4.00pm workshop Sale of business

Explore the pros and cons of social media including its responsible use, together with practical tips to avoid complaints relating to its use and real life case studies seen by the Legal Profession Complaints Committee with a perspective from the Young Lawyers Committee.

Level: General

Intellectual Property

Tuesday, 20 September 9.00am – 4.00pm

This seminar provides a detailed overview of the changes including all of the entitlements and exclusions, and assesses the practical impact of the changes on motor vehicle insurance in Western Australia.

Thursday, 22 Page 8 9.00am – 10.30am to company Issues relating acting meetings and lawyers as directors

October 2016 Wednesday, 12 Page 9 5.00pm – 6.00pm Corruption: Anti-bribery and world the brave new

Commercial

The expanded motor injury insurance cover will provide no fault cover for people who are catastrophically injured in a vehicle crash.

Tanya Heaslip, Group General Counsel, Wright Prospecting Pty Ltd

er 2016 ay, 21 Septemb Wednesd Commercial Page 7 9.00am – 12.30pm Thursday, 15 September 9.00am – 10.30am Shareholder and Joint Venture September 2016 21 Disputes Agreements Wednesday,and

However, ethical responsibility and the Professional Conduct Rules apply equally to social media and practitioners must be aware that they could potentially become the subject of a complaint or conduct investigation for a variety of reasons and even for inadvertent mistakes.

Member - $137 Non-member - $197 CPD Active - $0

The laws governing compulsory motor vehicle insurance in Western Australia changed on 1 July 2016 with the introduction of the Motor Vehicle (Catastrophic Injuries) Act 2016 (WA).

September 2016

September 2016 Wednesday, 14 Page 6 4.30pm – 6.00pm

Tuesday, 4 October 9.00am – 10.00am

Fab Zanuttigh General Manager CTP Insurance, Insurance Commission of Western Australia

In-house Practice Management

–DECEMBER 2016 E SEPTEMBER EDUCATION PROGRAMM

Social media has changed the way we communicate and connect on a personal level and it is becoming prevalent in communications between lawyers, their clients and the courts.

A light lunch will be provided.

Alex Noonan Lawyer, Macdonald Rudder

Level: General

Member - $125 Non-member - $175 CPD Active - $0

Member - $180 Non-member - $250 CPD Active - $0

Philippa Rezos Senior Legal Officer, Manager (Rapid Resolution Team), Legal Profession Complaints Committee

This workshop will explore:

Carmen Maughan Manager, Professional Development, The Law Society of Western Australia

CONTINUING PROFESSIONAL DEVELOPMENT PROGRAMME

Friday, 16 September 1.00pm – 2.00pm Ethics on Friday: Social media – handcuff v adaptability

If you have never taken minutes during a meeting or would like to further develop this skill then this session will provide a framework for recording high quality minutes utilising the Australian Standard guide.

Jane Lynch Learning and Development Trainer, Squire Patton Boggs (AU)

SEPTEMBER-DECEMBER 2016

Ethics

r 2016 Thursday, 1 Decembe Page 14 5.30pm – 7.00pm Bench A view from the

ANYTIME LEARNING

WITH

Page 15

Page 14

Page 14

Available now sites and property Contaminated transactions Page 14

Available now ion Act Associations Incorporat 2015 (WA)

Page 14

Available now trouble in the Building disputes: suburbs

Available now ents in Australian Recent developm Consumer Law

Available now as shadow In-house lawyers and protecting directors: managing your legal role

Page 15

Available now to e to happiness’ From ‘handbrak ‘trusted advisor’ Page 15

Available now and restraining Pleas in mitigation orders essentials

38 hours of content

32 seminars available

2036 active learners

Access CPD on

your terms

tywa.asn.au

elearning.lawsocie

October 2016 Wednesday, 26 Page 11 9.00am – 11.45am for non-tax Practical tax update lawyers

51


Events Calendar

With thanks to our CPD partner

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

DATE

EVENT

LOCATION

AUGUST MEMBERSHIP SEMINARS Wednesday, 17 August           

Sole Practitioner and Small Firm Forum

The Law Society of Western Australia

AUGUST CPD SEMINARS Friday, 5 August Sunday, 7 August

Practical Advocacy Weekend

Seashells Resort Mandurah

Friday, 5 August

Law Mutual (WA) Seminar: New practitioner risk 101

The Law Society of Western Australia

Wednesday, 24 August

Law Mutual (WA) Seminar: How to stay conflict free for small practices

The Law Society of Western Australia

Wednesday, 31 August

Law Mutual (WA) Seminar: Professional liability risks and controls in practice – are you accepting suitable matters?

The Law Society of Western Australia

SEPTEMBER MEMBERSHIP EVENTS Friday, 9 September

Gala Dinner

Perth Convention and Exhibition Centre

Thursday, 22 September

Social Justice Opportunities Evening

Central Park Theatrette

SEPTEMBER CPD SEMINARS Thursday, 1 September

Developments in PPSA

The Law Society of Western Australia

Thursday, 8 September

Skilled minute taking

The Law Society of Western Australia

Tuesday, 13 September

Motor Vehicle (Catastrophic Injuries) Act 2016 (WA)

The Law Society of Western Australia

Wednesday, 14 September

Engaging with in-house counsel: tips for private practitioners to build a trusted legal advisor relationship

The Law Society of Western Australia

Thursday, 15 September

Shareholder and Joint Venture Agreements and Disputes

The Law Society of Western Australia

Friday, 16 September

Empowering communication: Assertive communication

The Law Society of Western Australia

Friday, 16 September

Ethics on Friday: Social media – handcuff v adaptability

The Law Society of Western Australia

Tuesday, 20 September

Sale of business workshop

The Law Society of Western Australia

Wednesday, 21 September

Employment law in the new age: the future of work

The Law Society of Western Australia

Wednesday, 21 September

Asset protection in the Family Court

The Law Society of Western Australia

Thursday, 22 September

Issues relating to company meetings and lawyers acting as directors

The Law Society of Western Australia

OCTOBER MEMBERSHIP EVENTS Thursday, 20 October

Society Club hosted by the Indigenous Legal Issues Committee

CBD, Perth

OCTOBER CPD SEMINARS Tuesday, 4 October

Marketing in a downturn

The Law Society of Western Australia

Thursday, 6 October

Practical tips for transactional lawyers

The Law Society of Western Australia

Monday, 10 October

Accessing the law: a State and National perspective

The Law Society of Western Australia

Monday, 10 October

Law Mutual (WA) Seminar: Professional liability risks and controls in practice – are you accepting suitable matters?

The Law Society of Western Australia

Tuesday, 11 October

Non-contentious Probate Rules: citations and caveats

The Law Society of Western Australia

Tuesday, 11 October

Urgent Wills and assessing a client’s mental capacity

The Law Society of Western Australia

Wednesday, 12 October

Anti-Bribery and Corruption: the brave new world

The Law Society of Western Australia

Thursday, 13 October

Change of plea when an accused pleads guilty in a superior court

The Law Society of Western Australia

52 | BRIEF AUGUST 2016


Friday, 14 October

The impact of poor work culture: the people and productivity benefits of wellness

The Law Society of Western Australia

Friday, 14 October

Ethics on Friday: ethical dilemmas in advocacy

The Law Society of Western Australia

Tuesday, 18 October

Community Title Schemes: development and management issues for lawyers

The Law Society of Western Australia

Tuesday, 18 October

Privilege: the scope and limits of without prejudice communications and legal professional privilege

The Law Society of Western Australia

Wednesday, 19 October

African cultural awareness

The Law Society of Western Australia

Wednesday, 19 October

Strategies for managing difficult or vexatious litigants

The Law Society of Western Australia

Thursday, 20 October

Environmental approvals: implications of the Beeliar Wetlands decision

The Law Society of Western Australia

Monday, 24 October

Law Mutual (WA) Seminar: Cyber crime – how to prevent an attack and its impact on professional liability

The Law Society of Western Australia

Tuesday, 25 October

Law Mutual (WA) Seminar: Cyber crime – how to prevent an attack and its impact on professional liability

The Law Society of Western Australia

Wednesday, 26 October

Practical tax update for non-tax lawyers

The Law Society of Western Australia

Thursday, 27 October

Law Mutual (WA) Seminar: New practitioner risk 101

The Law Society of Western Australia

NOVEMBER MEMBERSHIP EVENTS Wednesday, 16 November

Welcome to the Profession

Pan Pacific Perth

NOVEMBER CPD SEMINARS Tuesday, 1 November

Drafting good pleadings workshop

The Law Society of Western Australia

Wednesday, 2 November

Compulsory taking of land: current issues of law and principle

The Law Society of Western Australia

Monday, 7 November

Law Mutual (WA) Seminar: Commercial litigation handling – your professional liability risks

152-158 St Georges Terrace, Perth

Tuesday, 8 November

Contract Law Masterclass

The Law Society of Western Australia

Wednesday, 9 November

Review of recent WorkCover and workers’ compensation decisions

The Law Society of Western Australia

Thursday, 10 November

Surrogacy: Lessons from the Baby Gammy Case

The Law Society of Western Australia

Tuesday, 15 November

Gender Equality: a business issue

The Law Society of Western Australia

Tuesday, 15 November

Assessing damages in personal injury matters

The Law Society of Western Australia

Wednesday, 16 November

Keep calm and stay resilient

The Law Society of Western Australia

Friday, 18 November

Lead on Purpose

The Law Society of Western Australia

Friday, 18 November

Ethics on Friday: a practical approach for commercial lawyers

The Law Society of Western Australia

Monday, 21 November

Law Mutual (WA) Seminar: How to stay conflict free for small practices

The Law Society of Western Australia

Tuesday, 22 November

Focus on costs

The Law Society of Western Australia

Wednesday, 23 November

Security for costs: a practical approach

The Law Society of Western Australia

Thursday, 24 November

Law Mutual (WA) Seminar: Professional liability risks and controls in practice – are you accepting suitable matters?

The Law Society of Western Australia

Thursday, 24 November

Grants of bail: the imposition of protective conditions and non-protective conditions for children

The Law Society of Western Australia

DECEMBER MEMBERSHIP EVENTS Wednesday, 7 December

End of Year Celebration

Lamont's Bishops House

DECEMBER CPD SEMINARS Thursday, 1 December

A view from the Bench

The Law Society of Western Australia

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638 For all upcoming events and further information please visit lawsocietywa.asn.au 53


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Brief August 2016