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VOLUME 44 | NUMBER 1 | FEBRUARY 2017

How far does a solicitor’s duty of care to an intended beneficiary extend?


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Volume 44 | Number 1 | February 2017

COVER How far does a solicitor's duty of care to an intended beneficiary extend?

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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

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The next generation of the legal profession

08

The Business Case for Investing in Mental Health

10

How far does a solicitor's duty of care to an intended beneficiary extend?

16

Time to bed down super changes

18

Welcome to the Profession

20

The Cab Rank Rule

24

Using mediation in the negotiation of commercial deals

27

Indigenous Legal Issues Committee speech to Society Club

28

Elder Abuse – Reforming the Law

30

The Scope and Limits of the Without Prejudice Privilege

37

Case Note: Joint Criminal Enterprise

40

2016 Young Lawyer/Law Student Mentoring Programme

40

YLC Mixed Netball Competition

41

The finality of planning approvals: when can approvals be amended or reconsidered?

Communications and Design Officer: Brett Syme RRP $15.00 incl GST. Printed by Scott Print

Editor: Jason MacLaurin Deputy Editors: Andrew Cameron, Moira Taylor Editorial Committee: Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Catherine Graville, Melissa Koo, Jason MacLaurin, Alain Musikanth, Maureen O'Connell, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor Proofreader: Sonia Chee Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact communicationsofficer@lawsocietywa.asn.au

President: Alain Musikanth Senior Vice President: Hayley Cormann

Immediate Past President: Elizabeth Needham Chief Executive Officer: David Price

REGULARS 02 President's Report 04 Editor's Opinion 44 Young Lawyers Case Notes 50 Family Law Case Notes 52 Law Council Update

Getting to settlement quicker and cheaper

53 Pam Sawyer

48

How many Royal Commissions does it take to keep children safe?

54 New Members

51

Book Review: Children, Parents and the Courts

Junior Members: Deblina Mittra, Jodie Moffat, Noella Silby Country Member: Brooke Sojan

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45

Vice President: Greg McIntyre SC Ordinary Members: Jocelyne Boujos, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Elisabeth Edwards, Catherine Fletcher, Rebecca Lee, Marshall McKenna, Denis McLeod, Stefan Sudweeks, Nicholas van Hattem, Paula Wilkinson

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54 Professional Announcements 55 Classifieds 56 Events Calendar 01


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

Welcome to the first edition of Brief for 2017.

effective and relevant.

In this my first President's report, I would like to identify a few of the matters which the Society will be focused on this year. Before doing so, I wish to pay tribute to my predecessor Elizabeth Needham and express the Society's gratitude for her dedication, hard work and tireless commitment throughout her term.

INTERESTS OF THE LEGAL PROFESSION

I also wish to thank Jason McLaurin – both for remaining at the helm of Brief for a second year and also for keeping us all engaged in 2016 with his informative (and highly entertaining) editorials. 90th ANNIVERSARY OF THE LAW SOCIETY 2017 marks the Society's 90th anniversary. The Society's history dates back to 15 June 1927, when about 30 legal practitioners gathered for a meeting in the Supreme Court library presided over by the Master of the Supreme Court, Mr Thomas Frederick Davies. A motion that "an Association of Legal Practitioners of Western Australia be formed" was moved by Mr Thomas Davy (later Attorney-General of Western Australia). The motion was seconded by Mr Michael Lavan. After a short discussion in which Mr Kott, Mr Nicholson and others joined, the motion was put and carried unanimously. Sir Walter James KC, a former Premier and Attorney-General of Western Australia, was elected as the Society's first President at the Society's first annual general meeting on 3 October 19271. By then, the Society had 75 town and 21 country members. While their precise formulation has changed since first adopted 1927, the Society's core objects have remained consistent over the past nine decades. Distilled to their essence, they are: advancing the interests of the legal profession; promoting good practice and curbing malpractice; advancing legal education; promoting the administration of justice and the development and improvement of the law; and encouraging collegiality. These objects reflect the pillars on which the Society has rested since 1927. And while some objects occasionally require more attention than others, a regular and sustained focus on each is essential to ensure that the Society remains both

02 | BRIEF FEBRUARY 2017

Not all challenges confronting the profession in 2017 are markedly-different from those with which the Society has grappled intermittently in past decades. However, there are some which would have been barely conceivable in the minds of lawyers practising nearly a century ago. Artificial intelligence Artificial intelligence is one of a number of technological advances discussed in a book co-authored by one of the participants at last year's Law Summer School2, Professor Richard Susskind OBE3. In the book, it is observed that a key category among a variety of emerging systems which are systematizing, and sometimes changing, the way lawyers work, is the computerised production of "high-quality documents after straightforward interactive consultations with users" and that "intelligent search systems can now outperform junior lawyers and paralegals in reviewing large sets of documents and selecting the most relevant."4 The kinds of technology just described are already being deployed by some leading Australian law firms. While the technology is intended to supplement rather than supplant, and will doubtless bring many benefits both for practitioners and their clients, there seems to be at least some force in a prediction that the need for junior lawyers and paralegals to perform research tasks may be reduced, "exacerbating the existing oversupply of law graduates, and reducing the availability of research and procedural work that young lawyers have traditionally 'cut their teeth' on"5. The prediction gives rise to obvious challenges. Not least is a possible significant skills deficit manifesting itself in emerging and future lawyers who, because of technological advances, may well be deprived of sufficient practical opportunities to develop (or refine) their analytical skills, expertise and judgment to levels necessary for the performance of competent professional work. I will be discussing this important topic in meetings with the managing partners of various law firms in early 2017. It is hoped that these and further discussions will provide impetus for the development of

a cohesive strategy for the benefit of the profession as a whole in the not too distant future. Performance of legal work by nonpractitioners This has been an intermittent source of irritation (and occasionally anxiety) at various times in our history. While the profession has nevertheless survived largely intact, it is for good reason that the Legal Profession Act 2008 (WA) makes clear who may perform legal work and who may not6. The relevant provisions exist to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified, and to protect consumers by ensuring that persons carrying out legal work are entitled, to do so7. As regulator, it is the function of the Legal Practice Board to investigate complaints and, if required, prosecute alleged breaches. The Board is actively engaged in these matters. But that is not to say that a healthy degree of vigilance by the Society itself would be misplaced. The Society's ethics committee has been tasked with undertaking a comprehensive study into this area during the first half of 2017 with a view to a report being prepared for consideration by Council. Any members wishing to provide input are encouraged to email the Society's General Manager – Advocacy, Mary Woodford, at mwoodford@lawsocietywa.asn.au. Governance The Society's Council is ultimately responsible for overseeing the operations of the Society and for effective leadership. In 1927, the Society was governed by a Council comprising 12 members. It had no committees and was assisted by one employee. Nowadays, Council comprises 20 members while the lion's share of the Society's work is performed by its 36 committees and 40 staff members. A comprehensive review of the Society's constitution has been commenced with a view to ensuring conformity with the requirements of the Associations Incorporation Act 2015 (WA) (which came into force on 1 July 2016). As part of this review, active consideration is also being given to possible further refinements to the constitution that may accord with


contemporary notions of good corporate governance. Any draft amendments resulting from the review will be put to members at the Society's next annual general meeting in November 2017. GOOD PRACTICE At the ceremonial sitting of the High Court held in Canberra in early December 2016 to mark his retirement, French CJ expressed the hope that "the vision of a uniform regulatory regime for the legal profession within Australia will ultimately be realised. We managed a standard gauge railway, we should be able to manage a standard regime for the legal professionals." Consistent with these sentiments, the Society remains conditionally supportive of the adoption of the Legal Profession Uniform Law as a law of Western Australia. While only two jurisdictions8 have so far signed-up to the Uniform Law, harmonized rules of professional conduct are significantly closer to realisation. There is already substantial consistency between rules that apply to the overwhelming majority of barristers practising at independent bars across Australia (including members of the WA Bar Association), while the Australian Solicitors' Conduct Rules apply in all but three Australian jurisdictions. Regrettably, Western Australia remains one of the exceptions9. Last year the Society wrote to the Attorney General, the Legal Practice Board and the WA Bar Association expressing its support for the adoption of the Australian Solicitors' Conduct Rules in this State. It is the Society's firmly-held view that uniform professional conduct rules providing inter-jurisdictional consistency can only benefit consumers of legal services, the legal profession and regulators especially with interjurisdictional practices now being commonplace. It is hoped that this outcome will be achieved without further undue delay. The Society will be seeking to progress this matter in 2017.

2017 the Society will continue to explore even greater flexibility in, and accessibility to, its CPD programme for the benefit of members.

COLLEGIALITY

Law Summer School 2017

From sherry parties and dinners at the Palace and Savoy Hotels to the development of etiquette and practice rules and guidelines, to sporting events and quiz nights, to High Court and gala dinners and YLC Balls (to name but a few).

In 1961, the Society was instrumental in facilitating the inaugural Law Summer School at the University of Western Australia, and this event has taken place almost every year since then. Law Summer School returns on Friday, 17 February 2017. Law Summer School 2017 explores Australia's Place in the World. Please join me at The University Club to welcome our eminent speakers including Senator the Hon George Brandis QC, Attorney-General for Australia, the Hon Robert French AC, former Chief Justice of the High Court of Australia, the Hon Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria, and the Hon Kim Beazley AC, a former Deputy Prime Minister of Australia and former Australian Ambassador to the United States. ADMINISTRATION OF JUSTICE In the area of access to justice, the Society's activities likewise commenced early, when in 1928 it agreed to assist in implementing WA's first formalised system of legal aid under the Poor Persons' Legal Assistance Act 1928 (WA). The Society played a pivotal role in connecting volunteer practitioners with applicants for many decades prior to the establishment of Legal Aid WA. The Society's support for access to justice continued with the establishment of the Law Access Pro Bono Referral Scheme in 1992, now delivered by the Society's wholly-owned subsidiary, Law Access Limited.

The Society's efforts in fulfilling this object have manifested themselves in a variety of ways over many decades.

In addition to continuing to provide a healthy environment for interaction through various member-based activities, the Society will once again host a number of networking and social events in 2017. The Society's significant milestone in 2017 will punctuate many of its activities with the highlight a 90th Anniversary Cocktail Party scheduled for Thursday, 15 June 2017 at the Perth Town Hall. Further details will be available in due course. In the meantime, please save the date. CONTACT US Finally, I wish to repeat an offer extended at the conclusion of a recent annual general meeting. While the Society's constitution reflects a number of objects, its strategic priorities remain simple: strong advocacy, high value services and organisational excellence. If there is ever an occasion where it is felt the Society is not acting in a manner consistent with any of those priorities, we wish to know promptly. Similarly, should any member have a new idea which it is believed may assist the Society in doing its job better we need to know that too. So please contact me, any other member of Executive or the Society's Chief Executive Officer, directly.

Promoting and facilitating access to justice, and speaking out when the proper administration of justice or Rule of Law appears under strain or threat, are nonnegotiable features of the Society's work.

90th ANNIVERSARY: CALL FOR HISTORICAL MATERIALS As part of its 90th anniversary, the Society is producing a commemorative publication, which will be authored by Dr Catherine May, a professional historian.

As in the past, the Society will remain a strong advocate in these areas in 2017.

If you have any documents, materials or personal recollections pertaining to the history of the Society that you wish to submit for possible inclusion in the commemorative publication, please contact Dr May by email: cathymay1950@gmail.com.

LAW REFORM LEGAL EDUCATION The Society has a long history both as a supporter and provider of legal education in Western Australia, dating back to as early as 1928 when two members of its Council were appointed to the fledgling Faculty of Law at the University of Western Australia. CPD As a leading provider of legal education in Western Australia, the Society provides regular high-quality and topically relevant CPD seminars developed by the profession for the profession. The Society's CPD programme is delivered through a variety of options including face-to-face and online. The Society is keenly aware of the need to meet the demands of the profession. In

During its history the Society played a significant part in the area of legal reform, initiating over 70 discrete proposals for changes to the law between 1927 and 1960 alone. These days the important function of monitoring and proposing any such changes falls to many of the Society's committees. Those committees, comprised of volunteer members of the Society, cover a range of substantive law and other areas of interest. Most are policy committees that deal with references for comment from outside organisations and initiate comment on various legal and practice issues as and when they arise. The important work of these committees will likewise continue throughout 2017.

NOTES 1.

To discover a series of selected milestones in the history of the Society, please visit lawsocietywa.asn.au/90thanniversary.

2.

Technology and the Law – Looking into the future (26 February 2016).

3.

R and D Susskind, The Future of the Professions, Oxford University Press 2015.

4.

Ibid pp 68-69.

5.

S Leriche and M Stojanovic, The dawn of the artificially intelligent lawyer, Lawyers Weekly (21 March 2016).

6.

Part 3.

7.

s 11.

8.

New South Wales and Victoria.

9.

The Northern Territory and Tasmania are the others.

03


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

Welcome to the first edition of Brief for 2017.

come back to Perth to play at the formal celebrations in June.

At the outset, Brief records its appreciation for all the fine and hard work of the previous President of the Law Society, Elizabeth Needham, and congratulates and wishes all the best to the incoming President (in the Law Society's own version of a "peaceful transition of power"), Alain Musikanth.

90th anniversaries represent a significant milestone, bearing testimony to the importance, strength and durability of the association or relationship in question. Lasting 90 years and still going strong is a considerable achievement in relation to an association. In respect to individuals it is a very rare event indeed. The traditional gifts for the rare occasion of a 90th wedding anniversary are stone or granite (or diamonds or emeralds).

By skipping January, and only really getting back into things in February, Brief follows the time-honoured practice of some sections of the legal profession. The emphasis in this regard is upon some sections. From walking around the CBD in January,1 it was evident that the diversity of the legal profession, and more importantly the wants and needs of those we serve, means that while many of us have the privilege2 of being able to arrange our affairs to enjoy a relatively relaxing start to the year, others do not. In any event, Brief hopes all members of the profession have had an opportunity to relax and recharge for 2017, pondering topics other than strict legal matters, such that a January edition of Brief would have gathered more dust than an invitation to Madonna to President Trump's Inaugural Ball. It will come as no surprise that Brief this year will have a particular focus upon the Law Society's 90th anniversary. Brief will accordingly have some Januslike features in 2017, casting an eye upon both the past and the future. Of course, the reference to Janus would have worked far better in a January edition of Brief, but there you have it. The 90th anniversary of the Law Society is a significant event that will give rise to reflections upon both the service the Law Society has performed as the voice of the profession, through changing circumstances and times, and also the development of the profession in Western Australia generally. It is fortunate that this is an anniversary, as opposed to an inauguration. As such, there is still at least a shot at having Bruce Springsteen and the E Street Band 04 | BRIEF FEBRUARY 2017

Research3 revealed that a recommended modern gift for a 90th wedding anniversary is "engraved granite or stone". Given the likely age of the recipient, and having regard to a common use for granite or stone with names, words and dates upon it, this seems to be less of a commemorative gift idea, and more of a cruel macabre joke, or a quite insensitive and impolite suggestion. Brief trusts that the historical references and nostalgia that will be part of this year's celebrations of the Law Society will be of interest to readers. Certainly, a trip down memory lane, back to the year 1927, reveals both differences, and similarities, with modern times. A glance at the first edition of The Daily News for 1927 turns up a prominent article headlined "New Year 'Drunks'" reporting, at parts in a quaint way, upon the Police Court List for New Year's Day. The reporting was somewhat flamboyant however in the case of a Mr Reid, charged over a 'disturbance' at a dance at the Maylands Town Hall caused by fighting. The report described the alleged aggressor, Reid, as "a flashily attired youth wearing an abbreviated coat and baggy trousers". Far from suggesting that Perth was behind the times or old-fashioned in 1927, Mr Reid's attire, as described, shows remarkable foresight in predicting the exact fashion statement that rocketed M C Hammer to astronomic success in the 1990's. And, in the Bench's rejection of Reid's

account of how he purportedly sustained injuries from the other dance-goer, commenting that this would have required that dance-goer to have "been a contortionist", the Bench accurately predicted and described M C Hammer's back-up singers (if there is any doubt about these propositions, please see the video to M C Hammer's "U Can't Touch This" (1990) on YouTube). The year 1927 is also significant in that, before 1927, Western Australia had exactly this number of university law schools: zero [insert your own cruel antilawyer joke here]. The Law Society and the University of Western Australia's Law School thus share a common anniversary. UWA had in fact commenced, in Irwin Street, in 1913 but only had three faculties – Engineering, Science and the Arts – which were seen as the most important subjects to offer given WA's main industries at the time, being agricultural, mining and pastoral. 4 It is interesting that Arts was one of the original faculties, given the present number of law schools in Australia, and that the saying "a law degree is the new arts degree" is nowadays customarily employed as a term of abuse. The articles in this month's Brief reflects the diversity of topics and contributors that will hopefully continue throughout the year. The cover feature article by Dr John Hockley is upon an important High Court case and topic for the profession generally. Brief thanks all the contributors to this edition, and in particular notes with thanks the contribution by a former Supreme Court Justice, and present Corruption and Crime Commissioner, the Hon John McKechnie QC for his case notes and observations upon Joint Criminal Enterprise. NOTES 1.

Admittedly, in early January, in "smart summer-casual" (upon which reasonable minds can differ).

2.

Don't forget to check that at the door.

3.

Albeit internet research, fraught by having to navigate through Russian hacking-inspired "fake news".

4.

R E Davis, "A Concise History of Western Australia", Woodslane Press (2012), at p 197.


THE NEXT GENERATION OF THE LEGAL PROFESSION Mock Trial Competition

Amy Ryan, Lawyer, MinterEllison, talks about her experience as a coach and judge of the Mock Trial Competition.

have no doubt that the Competition is responsible for the opportunities which have lead me to this point and I will be forever grateful that I was mentored by someone who was passionate about giving students the opportunity to enhance their learning experiences.

Amy Ryan

Most lawyers will be able to link their decision to enter the legal profession to a person or a significant moment that inspired them. My decision to enter the profession was confirmed when, as a nervous 15 year old high school student, I sat at the bar table of Court Room 1 of the Supreme Court for the first time. I was privileged to be a competitor in the Mock Trial Competition during my final three years of high school. The Competition gave me the confidence to pursue my dream of being a lawyer and in 2010 I was awarded a scholarship through the Mock Trial Competition to study law at Murdoch University. I

2017 will mark the 10th anniversary of my involvement in the Mock Trial Competition and each year I am astonished by the determination and aptitude of the competitors. Over the last decade I have witnessed the Mock Trial Competition grow immensely. In 2016, over 1200 high school students from 56 schools participated in the Competition. 2017 will also mark the 30th anniversary of the Law Society's annual Mock Trial Competition. The Competition gives high school students across the State the opportunity to compete against one another whilst presenting a fictitious case in the Supreme Court. Coaches and judges are integral to the Mock Trial Competition. Being a coach or a judge involves volunteering your

time to assist enthusiastic students (and teachers) in preparing and presenting their case. Volunteer coaches and judges ensure not only the Competition's growth and longevity, but that it continues to offer a high quality competition which acts as a forum to encourage and inspire young people to enter into the legal profession. Of course, not all students who participate in the Mock Trial Competition will go on to pursue a career in the law; in fact, the majority won't. However, the skills acquired by students who compete in the Mock Trial Competition – the ability to reason, and to advocate persuasively – are skills that as a profession we should encourage. Participating as either a coach or a judge will give you the opportunity to mentor incredibly determined and capable young people who will look back at the Competition as being a significant point in time which set them on their path to success in whatever vocation they have chosen. The success of the Mock Trial Competition depends on the continued generosity of members of the legal community. I strongly encourage you to get involved in the Mock Trial Competition as a coach or a judge. However, be warned – you will be amazed by the advocacy skills displayed by the competitors.

If you would like to volunteer as a judge or coach, please register via the Law Society's website.

Photo: The two Grand Final teams with The Hon Wayne Martin AC, Chief Justice of Western Australia; Elizabeth Needham, President, the Law Society; and Pauline Bagdonavicius, A/Director General of the Department of the Attorney General.

06 | BRIEF FEBRUARY 2017


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The evidence is in‌.the statistics on mental health are difficult to ignore and should be enough to make any manager sit up and take notice. Mental illness is now the leading cause of sickness absence and long term work incapacity in most developed countries.

The Business Case for Investing in Mental Health By Esther Schwald The Mental Health Project

08 | BRIEF FEBRUARY 2017

An estimated 1 in 6 people of Australia's working population is experiencing a mental illness at any one point in time. The most common mental illnesses are anxiety (14%), depression (6%) and substance abuse (5%). Shockingly, suicide is the leading cause of death for 15-24 year olds with men accounting for 70% of all suicides. Psychological injury claims are steadily increasing and incur the largest proportion of expense in relation to compensation claims. It is therefore highly likely that at some point in your career you will employ or work with someone who has a mental health condition – whether you know it or not. However, would you know if mental health was an issue in your business? According to recent research, most likely not! Only 69% of people are uncomfortable disclosing a mental illness to their employer and 35% would never disclose a mental illness to their employer. On top of this, 48% of people who have taken time off due to mental illness did not disclose the reason to anybody in their workplace and 65% of people with a mental illness do not access treatment.


6. you lower the insurance costs for your organisation 7. you reduce incident costs 8. your organisation attracts and maintains talent, becoming an employer of choice 9. you improve your bottom line results One of the first steps in creating a mentally healthy workplace is to create awareness and reduce the stigma associated with mental health. This can be achieved by providing your leaders and employees with training in mental health and wellbeing. Mental health training equips your workforce with the knowledge and skills to proactively manage and respond effectively and appropriately to mental health issues in the workplace. In the current economy, face-to-face mental health and wellbeing training is fast becoming cost prohibitive forcing business leaders and owners to look for alternative approaches. Enter corporate mental health and wellbeing eLearning courses providing a proactive, affordable and time efficient way to train your staff on this often sensitive and confronting topic. The cost of unmanaged mental health conditions costs Australian businesses $11 billion per year due to absenteeism, presenteeism (an employees physical presence at work whilst being psychologically disengaged and unproductive), low productivity and compensation claims. These figures do not include flow on effects and costs such as increased staff turnover, and effects on company morale and culture. Have you stopped to think how much unmanaged mental health conditions are costing your business? As you can start to see, investing in mental health and wellbeing initiatives makes good economical and business sense – here's another few reasons to consider it: 1. recent analysis suggests an ROI of up to $15 for every $1 spent mental health initiatives 2. as an employer, you meet your legal and moral obligations 3. you create happier employees 4. you increase productivity and engagement 5. you reduce absenteeism, staff turn over and worker's compensation claims

There are many benefits associated with corporate mental health and wellbeing eLearning courses: 1. Lower Training Costs – Each time the eLearning course is accessed your return on investment increases as you are dividing the fixed purchase costs by the number of uses. Additional savings are also made through decreased travel, accommodation, reduced physical materials and room/equipment hire, and facilitator costs. 2. Reduced Time Investment – Reduced down time combined with anytime anywhere access, gives you a flexible and efficient training option for educating your busy workforce in mental health. No need for scheduling employees to physically attend training events, they will simply receive an invitation via email to complete the eLearning course. 3. Increased Productivity – Because eLearning is not bound by geography or time, you can control your training's impact on productivity by training people during down times. 4. Standardisation – You may have a great facilitator, but that's no guarantee that the courses are presented the same across sessions. eLearning allows you to create a standardised process and consistency in the delivery of content. It also compresses delivery time.

5. Management and Tracking – Learning Management Systems on which eLearning courses are hosted allows you to report, track and manage your training at the click of button across your organisation, multiple sites or even multiple organisations. 6. Multiple Uses – You can use eLearning courses as a replacement for face-to-face training, for your inductions, as an annual refresher, or for your remote or adhoc mental health and wellbeing training needs. 7. It's Good for the Environment – Britain's Open University's study found "that producing and providing distance learning courses consumes an average of 90% less energy and produces 85% fewer CO2 emissions per student than conventional face-to-face courses." Never before has the evidence been so strong for investing in the mental health and wellbeing of your employees. Whether, you are a small, medium or large multinational global business, the effects of unmanaged mental health conditions on your business are the same and they all impact your bottom line. Research shows that the majority of mental illnesses seen in the workforce are treatable, and possibly even preventable. Therefore, ensuring your leaders and employees have developed the knowledge and skills to manage mental health conditions in the workplace is essential for you, your team and your business – and corporate mental health eLearning courses provides you with an easy way to achieve this.

The Mental Health Project The Mental Health project provides organisations globally with a proactive and preventative approach to mental health and wellbeing through evidence based, high impact, innovative, and engaging mental health eLearning courses and support resources. t: +61 8 6102 0706 e: info@thementalhealthproject.com.au w: thementalhealthproject.com.au If you or someone you know needs help contact your organisation's Employee Assistance Program (EAP), your GP or call LifeLine on 13 11 14; Kids Helpline on 1800 551 800; MensLine Australia on 1300 789 978; Suicide Call Back Service on 1300 659 467. © The Mental Health Project Pty Ltd 2016. This document remains the property of The Mental Health Project Pty Ltd and is protected by copyright.

09


How far does a solicitor's duty of care to an intended beneficiary extend? By J.J. Hockley*

In its decision in Badenach v Calvert1, the High Court has recently considered aspects of a solicitor's duty of care to a will maker that have ramifications for all solicitors preparing wills for clients. The appellant, Mr Robert Badenach, was a partner of a law firm who received instructions in March 2009 from a client, Mr Jeffrey Doddridge to prepare his will. Mr Doddridge was 77 years old and was terminally ill. He wanted the entirety of his estate to pass to the respondent, Mr Roger Calvert. Mr Calvert was not the testator's son but the son of his longterm de facto partner whom he treated as a son. The client's principal assets were two properties which he owned as a tenant in common in equal shares with the respondent. On 26 March 2009 the will was executed in accordance with the testator's instructions. The solicitor charged the sum of $440 for the will. In September 2009, Mr Doddridge died. The testator's testamentary intentions were not carried into effect because a daughter of a previous marriage was successful in bringing an action under the Testators Family Maintenance Act2 (the TFM Act).3 Evans J ordered that $200,000 be paid to her from the estate of her deceased father.4 The daughter was successful in her action to the extent that the amount awarded, together with the costs, substantially depleted what was not, in any event, a large estate. The respondent brought an action against the solicitor and his firm in negligence, claiming that the solicitor had been negligent in failing to advise the client of the possibility that the daughter would make a claim under the TFM Act and of the options available to him to reduce or extinguish his estate to avoid such a claim. In particular, the respondent alleged that the solicitor failed to advise the client that he could convert his and the respondent's interest in the two properties to joint tenancies so the properties would pass by survivorship or by making inter vivos gifts to the respondent. The respondent alleged these acts of negligence were breaches of the duty the solicitor and the law firm owed to the respondent as the intended beneficiary of the client's estate. At first instance the matter came on for hearing in the Tasmanian Supreme Court before Blow CJ.5 10 | BRIEF FEBRUARY 2017


The defendants contended that they owed no duties to provide such advice. There was no evidence that the solicitor knew of the daughter's existence. The solicitor's firm had made two wills for the testator in the past. The first in May 1984 made provision for a $10,000 legacy to the daughter. The second will, in October 1984, neither mentioned nor provided for the daughter. The evidence suggested that both 1984 wills were still held by the law firm, and that they could have discovered the daughter's existence by looking at the earlier wills. More significantly, Mr Badenach could have discovered the daughter's existence if he had asked the testator whether he had any children. The solicitor did not give evidence in the proceedings. His file notes relating to the preparation of the will were tendered by consent. The notes recorded the client's instructions to prepare a will leaving the whole of his estate to the respondent, if the respondent survived the client. Blow CJ stated (at [6]) that the solicitor and his firm owed no contractual duties to anyone other than their client, that, upon the authorities a solicitor engaged in relation to the preparation and execution of a will owes non-contractual duties of care to the intended beneficiaries under his or her client's will (for example, in Hill v Van Erp (1997) 1888 CLR 159 the High Court held that a solicitor owed an intended beneficiary a duty to ensure that a testamentary gift to that beneficiary did not become void as a result of the solicitor getting the intended beneficiary's husband to witness the will). There being no doubt that a testator's solicitor owes a duty of care to an intended beneficiary, the question in the present case was how far that duty extends.

advice as to the depletion of the testator's estate. Blow CJ at [25] referred to the expert evidence from a leading Victorian Solicitor, Mr Park, and accepted the evidence that the solicitor owed his client a duty to enquire as to the existence of any family members who could make a claim under the TFM Act, with a view to the testator's reasons for making no provision for them possibly being included in the will. However, there was no evidence that the client engaged the solicitor to provide advice as to anything other than the making of the will and Blow CJ was not satisfied on the balance of probabilities that a conversation about the daughter and a possible TFM claim by her would have triggered an enquiry by the testator about ways of protecting the plaintiff's position. Nor was Blow CJ satisfied that the solicitor owed the testator, let alone the plaintiff, a duty to provide advice about creating joint tenancies in the absence of such an enquiry. Blow CJ accordingly found, at [33] – [34] that: •

the solicitor owed the testator a duty to take instructions in relation to a possible claim under the TFM Act, and that he breached that duty.

on the balance of probabilities his Honour was not satisfied that, had the solicitor discharged his duty to the testator, the testator would have joined with the plaintiff in creating joint tenancies in place of the tenancies in common or taken any other steps to deplete his estate and frustrate a possible claim under the TFM Act.

It was not necessary to therefore decide whether the solicitor owed the plaintiff, as an intended beneficiary, any duty to advise as to the risk of a claim being made under the TFM Act or the steps that could be taken to reduce or extinguish his estate in order to avoid the consequences of such a claim.

It follows that the plaintiff's claim must fail, whether or not the solicitor owed the plaintiff, not just the testator, a duty to advise the testator as to the steps that could be taken to place assets beyond the reach of the TFM Act.

Blow CJ held (at [7]) that the extent of the solicitor's duty to a client depends on the scope of the solicitor's retainer and in this case there is no evidence that the solicitor was engaged to advise in relation to estate planning or other collateral matters. The solicitor did not give evidence. His file notes relating to the 2009 will were tendered by consent. It was clear that he accepted instructions to prepare a will by which the testator left the whole of his estate to the plaintiff, if he survived him, or to the plaintiff's children in equal shares if he predeceased him and that he also gave instructions that he wanted to die at home, and instructions as to the leasing of the two properties. Blow CJ reviewed the authorities on solicitor's duties and at [17] observed that as far as his Honour was aware a court has not previously had to decide whether a testator's solicitor's duty to a beneficiary extends so far as to require the giving of

Blow CJ's decision was appealed to the Full Court of the Supreme Court of Tasmania (Tennent, Porter and Escourt JJ) who all provided separate judgments, allowing the respondent's appeal.6 Tennent J referred to the testator's intention that the appellant has the entirety of his interest in those properties and his estate generally, not that estate less any 11


amount which might need to be paid for a successful TFM claim and found at [21] that the duty of care owed by the respondent to the testator was much more extensive than that which the learned trial judge set out. The solicitor owed a duty of care to the testator to, not only enquire of him whether he had any children, but also to advise him why that enquiry was being made, the potential for a TFM claim, the impact that could have on his expressed wishes, and of the possible steps he could consider to avoid that impact. It did not need to extend to ensuring any such advice was accepted and acted upon. Tennent J also, at [22] found that while the duty to the testator was one owed in contract and tort, the appellant was, of course, not in any contractual relationship with the respondents so any duty of care to the appellant could only be allowed in tort, the question being how far that duty extended. Tennent J held there was no basis for suggesting that any duty owed by a testator's solicitor to an intended beneficiary in tort should be something less than a contractual duty owed by a solicitor to that testator and, having regard to the nature of the duty, there can be no reason to suggest that, in the context, the interests of the testator in this case and the appellant were not effectively the same. Tennent J found not only that the respondent had a duty to the appellant to advise the testator in the manner His Honour had identified, but that they breached that duty. The question remained had the trial judge made a finding that there was a duty and that duty had been breached ought he to have considered that the appellant's claim was one for the loss of an opportunity and assess damages on that basis? Tennent J concluded at [33] that while the appellant did not specifically plead his claim on the basis of a loss of opportunity, the respondents could not have been unaware of that type of claim given the Counsel's opening address. Further, the appellant's pleadings were not necessarily inconsistent with a claim for loss of opportunity and the appellant should be entitled to have damages assessed on the basis of loss of an opportunity. After reviewing the authorities7 Porter J held at [72] that the solicitor's duty to give proper effect to the testator's intentions extends, as contended for by the appellant, to inquiries and advice about the possibility and ramifications of claims under the TFM Act, and includes the provision of advice about, among other things, what dealings with presently held assets might be appropriate. Porter 12 | BRIEF FEBRUARY 2017

J did not consider that this imposed any undue burdens on practitioners as, supported by the evidence in this case, this would be common practice. Porter J also considered that many practitioners explain to clients that until death a will has no effect, and that the client is free to deal with his or her assets as they see fit." In respect to the duty of care to the appellant as a beneficiary Porter J noted the Justices of the High Court in Hill v Van Erp were not of the one mind in relation to the factors which determine the existence of the duty to the beneficiary. Porter J referred to this duty of care as an 'extended' duty and at [83] stated that in his view the 'extended' duty owed to the testator was one also owed to the appellant. Porter J held that there had been a breach of duty as the solicitor said nothing and gave no relevant advice. The appellant's lack of opportunity occurred when the testator was not given the chance of considering what steps, if any, he would take in anticipation of a claim under the TFM Act. The loss of opportunity was correctly described as the loss of an opportunity to avoid a detriment.8 This was a relevant loss.9 Porter J held that there was more than a negligible chance that the testator would have taken action to circumvent a possible claim under the TFM Act. The chance had some value and the appellant should succeed in the action. Porter J held that it was inappropriate and not realistically possible for the Full Court to make this assessment and that the matter should be remitted for determination by a single judge. Escourt J held at [111]: that having been instructed by the testator to prepare his will, the scope of the respondents' retainer extended to the first respondent not only eliciting information as to the existence of any circumstances that might give rise to a claim against the testator's estate under the TFM Act, but also to the provision of basal advice as to any means that existed by which the testator might ensure that his testamentary wishes were not defeated. Escourt J acknowledged,10 at [112], that there was some doubt as to the existence of a penumbral duty of care owed in tort by a solicitor to a client to provide unsought advice about a point that was critical to the success of the proposed transaction, but which may not be embraced by the contractual duty of care arising under the solicitor's retainer.11 Escourt J stated12 that the first respondent's duty extended to not only asking questions that might elicit the

existence of a potential claimant under the TFM Act but also to providing, basally at least, advice that possible mechanisms existed to minimise the estate available to meet any claim. This duty was within the respondents' contractual duty of care and also within their duty of care in tort.13 There was no reason to question the content of a co-extensive duty owed to the appellant. The appellant was not in a contractual relationship with the respondents but he was owed a duty of care in tort, as is well established by Hill v Van Erp (1997) 188 CLR 159 and was not a lesser duty than that owed in tort. Escourt J regarded it as unnecessary to formulate the postulated duty of care in the way Blow CJ did as one to provide advice to "circumvent the provisions of the TFM Act" or "advice as to the depletion of the estate" as an impermissible conflation of the duty contended for with the omissions alleged to represent a breach of the relevant duty14. Escourt J15 regarded the postulated duty as one to take reasonable care to ensure that, as far as possible, the testator's testamentary wishes were carried into effect and not unnecessarily defeated. Escourt J16 found no paucity of reasoning on the part of Blow CJ in coming to the conclusion he did. In addition, on the evidence before Blow CJ the appellant was not entitled to recover the actual losses set out and described in the pleaded particulars of damages in his statement of claim against the respondents. The pleaded case claimed the duty of care was a "duty to give effect to the deceased's testamentary wishes." Escourt J saw this claim17 as one solely for damages for the loss of a chance. Escourt J18 could not see any reason why the appellant's claim was not embraced by the principle to be derived from Hill v Van Erp by Brennan J at 167-168 and by Dawson J at 181-182. Escourt J agreed with Tennent and Porter JJ that the assessment of damages should be remitted to a single judge.

The High Court The High Court19 allowed the appeal, unanimously overturning the decision of the Tasmanian Full Court. French CJ, Kiefel and Keane JJ delivered a joint decision. Gageler J and Gordon J gave separate decisions agreeing with the orders made by the majority. The majority stated that the respondent's case for damages resulting from a breach of duty owed to him was said to be based on the decision in Hill v Van Erp20 but in that case the loss claimed was not


the result of the loss of an opportunity or a chance. It was a claim for a loss of property, for a share in the estate by an intended beneficiary, Mrs Van Erp, who, but for the negligence of the testatrix's solicitor, Mrs Hill, would have received the testatrix's house property and contents as a tenant in common with the testatrix's son. The solicitor had Mrs Van Erp's husband witness the will, making it void under the then s15 (1) of the Succession Act 1981(Qld).21 The majority in the High Court stated at [16] that there could be no doubt that a solicitor owes a duty to his or her client both in contract and tort. The scope of the solicitor's duties with respect to the latter will usually be set by the terms of the retainer. The question in Hill v Van Erp was whether a duty in tort could also be said to be owed to an intended beneficiary. The decision was not based upon the solicitor having assumed a particular responsibility to the intended beneficiary. Notwithstanding some differences in reasoning it can be seen from most of the judgments that the duty found to be owed by the solicitor to Mrs Van Erp as the intended beneficiary had their source in the solicitor's obligations arising from the retainer between the solicitor and her client. The solicitor was obliged to exercise care and skill in giving effect to her client's testamentary intentions. The interests of the testatrix and the intended beneficiary in those intentions being carried into effect were relevantly the same. Recognising a duty to the intended beneficiary would not involve any conflict with the duties owed by the solicitor to her client, the testatrix. In White v Jones,22 Lord Goff of Chieveley held that the scope of the solicitor's duties will be set by the terms of the retainer with the client. The solicitor would be able to invoke that contract in defence of, or to limit, any claim by a disappointed beneficiary.23 In Hill v Van Erp, Brennan CJ explained24 that a solicitor's duty is generally considered to be owed solely to the client because the duty is to exercise professional knowledge and skill in the protection and advancement of the client's interests in the transaction in which the solicitor is retained. That duty cannot be compromised by a duty to a person whose interests are not coincident with those of the client, but in the case of a testator and an intended beneficiary under the testator's will the interests are coincident. So understood, the duty said to be owed by the solicitor to an intended beneficiary is something of an exception to the general rule. Nevertheless, in a practical sense it operates consistently with the duty to the client.

In Hill v Van Erp, Dawson J (with whom Toohey J agreed) also regarded those interests as relevantly the same. The serving of the interests of the intended beneficiary involved no conflict with performance of the contract as between the solicitor and client; there was no reason in principle why the relationship between the solicitor and the intended beneficiary could not give rise to a duty by the solicitor towards the beneficiary. Three members of the majority in Hill v Van Erp, (Brennan CJ, Gummow and Gaudron JJ) identified the contractual obligation undertaken by the solicitor to carry out the client's instructions as important to the existence of a duty of care to the intended beneficiary. A contractual relationship may create the occasion for and give rise to a tortious duty of care owed by one contracting party to the other and/or third party. The majority of the High Court then considered the duty owed to the client in this case compared with those in Hill v Van Erp. In this case the respondent contends that the solicitor had a duty to advise the client that he could avoid exposing his estate to a claim under the TFM Act by undertaking inter vivos transactions. This involved a consideration of not what in fact occurred but rather what should have occurred. On receiving instructions the solicitor would have observed that no provision had been made for a family member. An enquiry by the solicitor would have yielded some information about the testator's daughter. The solicitor would have been obliged to advise of a possible claim by the daughter under the TFM Act. At issue on the appeal was whether more was required? The client could not provide the solicitor with details of his daughter's personal circumstances having only seen her once on a chance encounter since separating from her mother in 1973. The solicitor could not advise the client whether his daughter would qualify under the TFM Act for further provision from his estate or whether his daughter would make a claim. The client could have made some provision for his daughter in his will. He could have done nothing. The solicitor's duty to advise the client as to his options arises from his original retainer. It is a duty to ensure that the client gives consideration to the claims that might be made upon his estate before giving final instructions as to his testamentary dispositions. The majority in the High Court held25 that whilst advice about the possibility of a claim against his estate is clearly relevant

in the context of the retainer, advice about how to avoid a claim by inter vivos transactions is not. It was difficult to see how the solicitor had a duty to volunteer this advice merely because the solicitor has informed the client of the possibility that a claim could be made by the daughter but that, absent further information, he could not be any more certain about it occurring. The majority held26 that the client's initial instructions regarding the preparation of his will, to benefit the respondent alone, would not have been sufficient to convey to the solicitor that the client would wish to take any lawful step to defeat any claim which was made by the daughter. At this point the solicitor was not to know what view the client might take of whether the daughter had a claim, moral or legal, upon him or his estate. This was the very question which the solicitor's advice would have raised for his consideration. The majority then considered the issue of causation noting that under s13(1)(a) of the Civil Liability Act 2002 (Tas) there is a requirement for factual causation requiring the application of a "but for" test. The respondent must prove on the balance of probabilities, that but for the solicitor's failure to give the advice contended for, the respondent would have received the client's estate. The respondent has not discharged this onus of proof. The respondent sought to overcome the problem of proof by redefining the loss as the loss of the chance that the client may have undertaken the inter vivos transaction. The chance could not be a better testamentary disposition, none is identified as available. The use of a loss of a chance distorts the issue of causation and involves the application of a lesser standard of proof than required by the law and s13 of the Civil Liability Act. Also the respondent sought to equate the chance spoken of with an opportunity lost. An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided. It was held that the respondent had not established that there was a substantial prospect that the client would have chosen to undertake the inter vivos transactions. The respondent had not proved that there was any loss of a valuable opportunity. The majority then considered whether Hill v Van Erp applies to the respondent in this case. It was held that the duty in Hill v Van Erp arose in circumstances where the interests of the testatrix and the intended beneficiary were aligned and where final testamentary instructions had been given to the solicitor. The solicitor's obligations were limited and well defined. The 13


respondent had the status of an intended beneficiary but there the similarity ends. The duty for which the respondent contends is not the same as the more limited duty which was recognised in Hill v Van Erp, to give effect to a testamentary intention. It is one, more generally, to give advice as to the client's property interests and future estate. The advice which the respondent says should have been given in discharge of that duty would have rendered it unnecessary for the client to name the respondent as a beneficiary in his will. The advice and warnings which the solicitor would need to give about such transactions would reflect that their interests are not coincident. Hill v Van Erp recognised circumstances in which the duty of care to a third party could and did arise. The circumstances which supported the existence of that duty of care are not present in this case. Gageler J said that the central flaw in the reasoning of the Full Court was to treat the scope of the duty of care which the solicitor owed to Mr Calvert as co-extensive with the scope of the duty of care which the solicitor owed to the testator. The scope of the solicitor's undoubted duty of care to Mr Calvert was certainly encompassed within the scope of the duty of care which the solicitor owed to the testator. In a critical respect, however, it was narrower. The duty of care which a solicitor owes to a client is a comprehensive duty which arises in contract by force of the retainer and in tort by virtue of entering into the performance of the retainer. The duty of care which a solicitor, who is retained to prepare a will, owes to a person whom the testator intends to be a beneficiary is more narrowly sourced and more narrowly confined. The duty arises solely in tort by virtue of specific action that is required of the solicitor in performing the retainer. The duty plainly cannot extend to requiring the solicitor to take reasonable care for future and contingent interests of every prospective beneficiary when undertaking every action that might be expected of a solicitor in the performance of the solicitor's duty to the testator. Gageler J stated at [59] that The testator's instructions are critical. The existence of those instructions compels the solicitor to act for the benefit of the intended beneficiary to the extent necessary to give effect to them. The instructions define the intended benefit, absence of which constitutes the damage which is the gist of the cause of action in negligence.27 The instructions expose the intended beneficiary to carelessness on the part of the solicitor in giving effect to those 14 | BRIEF FEBRUARY 2017

instructions against which the intended beneficiary cannot protect. The instructions thereby give rise to a position of vulnerability on the part of the intended beneficiary of a kind which has been recognised to be ordinarily necessary to justify the imposition of tortious liability for damage comprised of purely economic loss.28 Confined to taking reasonable care to benefit the intended beneficiary in the manner and to the extent identified in the testator's instructions, the solicitor's tortious duty to that beneficiary is coherent with the solicitor's contractual and tortious duty to the client, thereby allowing the two to co-exist.29 The duty is coherent because it admits of no possibility of conflict: the interests of the client and the interests of the beneficiary necessarily coincide completely.30 Gageler J emphasised31 that unless there was some further factor affecting the relationship then outside of the scope of the testator's instructions, there can be no requirement for the solicitor to act for the benefit of the person; there can be no damage to the person if the solicitor fails to act for that person's benefit; there can be no relevant vulnerability on the part of the person to the action or inaction of the solicitor; and there can be no necessary coincidence between the person's interests and those of the client. Gageler J had no difficulty in accepting Blow CJ's conclusion that the solicitor should have asked the testator whether he had a daughter and on learning that he had, to warn the testator of the risk of the daughter making a claim under the TFM Act, as it was based on the expert evidence of an experienced solicitor. His Honour had more difficulty in accepting the conclusion of the Full Court that the solicitor was required to advise the testator that he could transfer some or all of his property during his lifetime to avoid exposing his estate to such a claim. To his Honour this seemed a lot to expect for the price of a will and the expert evidence accepted by the primary judge did not go this far. His Honour held that the correctness of that further conclusion by the Full Court need not be determined. Even if they constituted breaches of the duty of care which the solicitor owed to the testator, the omissions of the solicitor add nothing of themselves to the claim made against the solicitor by Mr Calvert. Any such omissions were not within the duty of care the solicitor owed to Mr Calvert. Gageler J concluded that the problem with Mr Calvert's claim was the absence

of a fact necessary to establish a duty of care of the requisite scope and to give rise to the existence of damage: an expansion in the scope of the Testator's instructions – a new or enlarged retainer. In a separate decision, Gordon J asked the following questions: Did the appellants owe a duty of care to Mr Calvert? If so, what was the duty and was it breached? And if a relevant duty was breached, did Mr Calvert suffer loss that was caused by that breach? Gordon J held that the appellants did not owe and could not have owed a duty of care to Mr Calvert because, at the relevant time, it cannot be said that the interests of the testator and Mr Calvert were the same, consistent or coincident. As no duty was owed to Mr Calvert there could be no breach. Her Honour held that the appellants owed a duty of care to the testator to use reasonable care in the preparation of the will. Her Honour held that because the interests of the testator and Mr Calvert were not the same, consistent or coincident at the time of the alleged breach, the appellants did not owe Mr Calvert a duty of care, because if they had, it would not have been the same as, consistent and coincident with the duty of care they owed to the testator. Mr Calvert was not an "intended beneficiary" in the same way as the third party was in Hill v Van Erp. In view of her findings on the issue of whether a duty of care owed to Mr Calvert it was not necessary to consider the issue of causation. After analysing the difficulties facing Mr Calvert, Gordon J concluded that Mr Calvert did not establish that the appellant's negligence caused his loss. Mr Calvert could not prove on the balance of probabilities, that the testator would have taken steps necessary for him to have acquired a better outcome than in fact happened, such as receiving the entirety (or at least a greater portion) of the testator's estate.

Conclusions The decision of the High Court in Badenach v Calvert [2016] HCA 18 provides guidance to solicitors drafting wills. Many will makers breathed a sigh of relief on reading this decision-based common sense. All judgments in the High Court emphasise the importance of the scope of the solicitor's retainer by the client. Prudent solicitors will have a written record of what legal services and the context in which they are being provided.


The client may urgently want a will. They may be old, suffering from an illness, have limited command of written or spoken English. They may not want any taxation advice. Such factors influence the terms of the retainer, its scope and time for performance. The cost of legal services will be significantly increased if a client seeks estate planning or business succession advice and/or advice on superannuation. If, in the course of performing the retainer an issue arises, then a written variation to the retainer should be obtained stating whether further legal services are included or excluded from the retainer. The initial interview is crucial in finding out fundamental facts; such as does the client have any children? Is the client estranged from any of those children? What are the economic circumstances of those children? Many law firms use precedents for initial interviews with clients seeking a will to enable them to elicit the required facts. Armed with some facts about the client's family and circumstances the solicitor is in a position to raise with the client the possibility of a claim under the TFM Act. Depending on the facts obtained the solicitor may or may not be in a position to give advice to the client on the

v Pattison [2002] QSC 431; Miller v Cooney [2004] NSWCA 380 following; Waimond Pty Ltd v Byrne (1989) 18 NSW LR 642 and AHJ Lawyers Pty Ltd v Hamo [2010] VSCA 222; cf. Heydon v NRMA Ltd (2000) (51 NSWLR1 and David v David [2009] NSWCA 8; Woods v Legal Complaints Officer [2013] NZHC 674; Doolan v Renkon Pty Ltd (2011) 21 Tas R 156; Sutherland v Public Trustee (1992) 2 NZLR 536; Hill v Van Erp (1997( 188 CLR 159; Vagg v McPhee (2013) 85 NSWLR 154; Queensland Art Gallery Board of Trustees v Henderson Trout [200] QCA 93; Howe v Fischer [2014] NSWCA 286; Barns v Barns (2001) 80 SASR 331; Barns v Barns (2003) 214 CLR 169.

prospects of a claim under the TFM Act. Advice on how to avoid any such claim would generally be outside the scope of the retainer as it was in Badenach v Calvert. Hill v Van Erp is an exception to the general rule that a solicitor owes a duty of care solely to his or her client to exercise professional knowledge and skill in the protection and advancement of the client's interests in the transaction in which the solicitor is retained. In Hill v Van Erp it was held that the solicitor also owed a duty to an intended beneficiary whose interests were consistent and coincident with those of the client. Badenach v Calvert demonstrates that the interests of some "intended beneficiaries" are not consistent or coincident with those of the solicitor's client. The solicitor owes no duty of care to an "intended beneficiary", such as, Mr Calvert. NOTES * Barrister, Francis Burt Chambers, 77 St. Georges Terrace, Perth, WA. 1.

[2016] HCA 18 (11 May 2016).

2.

Testator's Family Maintenance Act 1912 (Tas).

3.

All State and Territory Acts allow children to bring a claim for further provision.

4.

Doddridge v Badenach [2011] TASSC 34.

5.

Calvert v Badenach [2014] TASSC 61.

6.

Calvert v Badenach [2015] TASFC 8.

7.

Carr-Glynn v Frearsons (A Firm) [1999] Ch326; Smeaton

8.

At [93].

9.

Sellars v Adelaide Petroleum (1994) 178 CLR 332 at 364.

10.

At [112].

11.

Doolan v Renkon Pty Ltd (2011) 21 Tas R 156 at [30-[33] and Carradine Properties Ltd v D J Freeman & Co (1982) 126 SJ 157 per Lord Donaldson.

12.

At [116].

13.

At [117].

14.

At [118].

15.

At [120].

16.

At [129].

17.

At [[133]-[134].

18.

At [155].

19.

Badenach v Calvert [2016] HCA 18 (11 May 2016).

20.

(1999) 188 CLR 159.

21.

The equivalent section, s13(1) of the Wills Act 1970 (WA) was repealed by Act No 28 of 2003 s211(1) in the Acts Amendment (Equality of Status) Act 2003.

22.

[1995] UKHL 5; [1995] 2 AC 207 at 261.

23.

Ibid., at 261.

24.

(1997) 188 CLR 159 at 167.

25.

At [31].

26.

At [33].

27.

Hill v Van Erp (1997) 188 CLR 159 AT 167-168,197.

28.

Cf Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] 216 CLR 515AT 530-531.

29.

Cf Sullivan v Moody (2001) 207 CLR 562 at 579-580.

30.

Hill v Van Erp (1997) 188 CLR 159 at 167,185,187.

31.

At [62].

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15


Time to bed down super changes

super contributions that exceed the $250,000 threshold.

2017 heralds a time of stability and consolidation for super funds and their members.

Tax deductions for contributions

Andrew Proebstl Chief Executive, legalsuper 2017 will be the start of what is expected to be an extended period of stability and consolidation for super fund members following a year of change in 2016. On 23 November last year, after months of negotiation and amendment, the Federal Government finally succeeded in having a raft of significant changes to superannuation passed by Parliament. Federal Treasurer Scott Morrison has said that 96 percent of individuals with superannuation "will either not be affected by these changes or will be better off." The majority, but not all, of these changes will come into effect on 1 July this year. This column lists the key changes.

Annual cap on concessional contributions From 1 July 2017, the annual cap on concessional contributions will be lowered to $25,000 per annum, down from its current rate of $30,000 for those aged less than 50 years and $35,000 for those aged 50 and over.

Catch-up concessional superannuation contributions From 1 July 2018 (not 2017 as previously indicated by government) those with total superannuation balances of $500,000 or less will be able to make catch-up concessional superannuation contributions, subject to unused concessional contribution caps being carried forward on a rolling basis for up to five years.

For those earning over $250,000 From 1 July 2017, those with more than $250,000 of income and superannuation contributions (adjusted for other benefits) will pay an additional 15 percent tax on their concessional contributions on those 16 | BRIEF FEBRUARY 2017

The proposed new 30 percent rate of tax continues to be less than the marginal rate of tax if earning greater than $250,000.

From 1 July 2017, the Government will improve the flexibility of the superannuation system so that more Australians can utilise their concessional contributions cap, by allowing people under 75 to claim an income tax deduction for personal superannuation contributions to an eligible fund. Personal contributions for which a tax deduction is claimed will count towards the concessional contributions cap. However, to take advantage of this change, people aged between 65 and 74 will need to first satisfy a work test. (The work test was originally slated for removal but will now be retained)

$100,000 annual nonconcessional contributions cap From 1 July 2017, the current annual non-concessional contributions cap of $180,000 will be reduced to $100,000 per annum. However, superannuation fund members still have until the end of the current financial year to take advantage of the current $180,000 non-concessional contribution cap. Members under age 65 also have until the end of this financial year (i.e. 2016/17) to consider taking advantage of the 'bring-forward rule' which allows up to three years' of nonconcessional contributions to be made in the one year. This means that members who are in the position to do so can potentially make up to $540,000 worth of non-concessional contributions (the $540,000 figure being 3 x $180,000) by 30 June 2017.

Transition to retirement (TTR) pensions Currently, individuals can commence a TTR pension at their preservation age (between 56 and 65 years of age, depending on their date of birth) even though they have not yet retired. No tax is paid by the super fund on the investment earnings from assets supporting these TTR pensions. Although some income tax may be paid by the individual on receipt of the pension payments up to age 60, once an individual is aged 60 and over, withdrawals are tax-free. From 1 July 2017, the government will remove the tax exemption on investment

earnings of TTR pensions and they will be taxed at 15 percent (as is the case for investment earnings on superannuation assets). This change will apply regardless of when the TTR commenced. There are no changes to the tax arrangements for individuals upon receipt of these pension payments.

$1.6 million super transfer balance to retirement products cap From 1 July 2017, the government will introduce a $1.6 million cap on the total amount of superannuation an individual can transfer into retirement products, which includes superannuation pensions. The cap will be applied to current retirees and those who have yet to enter retirement. Current retirees with more than $1.6 million in retirement products (including superannuation pensions) have until 1 July 2017 to either remove the excess or return it to an accumulation superannuation account, where 15 percent earnings tax applies or 10 percent if they are capital gains.

Low income super tax offset From 1 July 2017, the Government will introduce the Low Income Superannuation Tax Offset to replace the Low Income Superannuation Contribution when it expires on 30 June 2017. Individuals with adjusted taxable income of $37,000 or less will receive an effective refund of the 15 percent contributions tax paid on their concessional contributions, up to a cap of $500.

Super balances of lower income spouses To help lower income spouses increase the superannuation they accumulate, from 1 July 2017 the income threshold for the receiving spouse (whether married or de-facto) will be increased from $10,800 to $37,000, thereby helping more families to support each other in accumulating superannuation. A contributing spouse will be eligible for an 18 percent tax offset worth up to $540 for contributions made to an eligible spouse's superannuation account. If you would like more information about these changes to superannuation and how they may affect your retirement savings, please contact your super fund. ABOUT THE AUTHOR Andrew Proebstl is chief executive of legalsuper, Australia's super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@legalsuper.com.au


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Welcome to the Profession

By the Hon Justice Katrina Banks-Smith Supreme Court of Western Australia

I am so pleased to have been invited to talk to you today. I have always supported the Law Society's commitment to young lawyers and have enjoyed my involvement as a coach in advocacy weekends at Mandurah and the like. I should add that I still consider myself quite a young lawyer. This is a rare career where the older and more grey you become, the more gravitas you supposedly have and, at least in practice, the more you can charge. I think I have years to go yet. I have been given an open book this morning – I can talk about whatever I like that I think may assist you in your careers. I understand that many of you are newly admitted and you will have listened carefully to the Chief Justice's welcome at your ceremony and I don't want to repeat what you have already heard. So I have decided to be quite personal today – what would I like to say to you in the hope that you will take it away and maybe find something reassuring in it. You may know by now that advocates love to have lists to make argument comprehensible – 10 issues, 8 reasons, 6 possible outcomes and so on. Well I have 5 themes. The first is this.

Be excited I say this because you have entered a profession where there is much gloom and doom at the moment. The market is tight – tighter than any of your principals in this room will have encountered. There are more graduates than the community

18 | BRIEF FEBRUARY 2017

Speech delivered Wednesday, 16 November 2016 Pan Pacific Perth

requires or can sustain at the moment. The size and shape of law firms is changing. A career path to partnership is far from certain or viable. The profession is in a state of flux. It might be easy to become disillusioned. But don't – there is much to be excited about. Now I will do the eye roll inducing 'when I was young' part. When I started in practice there were jobs available. But there were barely any women partners. It would have been remarkable to find a woman partner with children in any of the larger firms. We certainly had some ethnic diversity, but it was limited. Trying to network as a young practitioner involved developing a keen (albeit in my case somewhat feigned) interest in football and golf. There were no women Supreme Court Judges. The High Court had just appointed its first female justice, Justice Mary Gaudron. There were no emails, clunky desktop computers were just being introduced but laptops were some years off. There was no google, no on-line research, no mobile phones, no real culture of nannies and very limited childcare. I can assure you that the last 25 years have flashed by and in that time the changes have been, frankly, astounding. The debate about diversity and model briefing policies and flexible hours has been loud and persistent and has brought about significant change. Of course, many remarkable women travelled the road before us and we are deeply indebted to their contribution. And there is still much work to be done. But how exciting to now look at how far we have come and the amazing

advancements – so much progress in 25 years. The technological advances are obvious but other aspects are more subtle. The whole approach to what used to be called networking has changed – there are focus groups, clubs, links to the community, Facebook, websites, etc. All have made mixing, meeting and supporting so much easier. I look at how the landscape has changed for me and my peers in 25 years. Imagine then what may happen in the next 25 years for all of you. I am excited for you. The job market will not always be this way, Trump will not always be president, don't be disillusioned.

The second theme is this – Be inquisitive Here is a secret. Good lawyers find the law difficult. Finding answers, trawling through statutes, 'instinctively synthesising' conflicting cases and facts – it can be very complex and answers can be hard to find. It is rarely scientific. At the moment, you may feel that there is so much you don't know. That will never change. But don't be afraid to ask. The worst thing you can do is suffer in silence, hide files under your bed, or develop paralysis over a matter. Ask. Speak up. Say you don't know. Practise saying it – I can't find the answer, I would like some help. After you've said it a few times, it really is fine. I said it to someone as recently as yesterday.


In this profession ignorance is not necessarily a weakness – but it is certainly a weakness if you hide it. You will make mistakes and you will suffer. More importantly, your clients will suffer. So ask.

The third theme – Be fair I am referring here to your employment environment. Sometimes lawyers get so caught up in the office environment and politics etc. and can become quite jaded and embittered. Your focus can become internal. You must of course protect your interests, but think also about your employer and your colleagues. Be fair. If you want flexibility – then be flexible – ask yourself am I performing? Am I being a good team player? Am I producing the best work I can? It is a two way street. I am not protecting your bosses here – I am simply saying you cannot expect your employers to make your work environment – you must also contribute yourself.

Fourth – be open to changes in your career Recent studies project most new graduates will experience 7 career changes in their working lives. I would be interested to know how many of the senior lawyers here can point to 7 changes. In my case, if I don't count serving beers and waiting tables in the University bar, I would round up my changes to 3 – Parkers/Freehills; the Bar, and now as a judge. Many of you might see that as a lot of straight law and I don't necessarily disagree, but I have

been happy and fulfilled in this career. For you – the world is your oyster. You can apply for jobs in an email second. You can check the market elsewhere with one click. You really do live in astounding times. The world is as flat as the screen you look at. You can work in-house. You can work for yourself – in your own house. Go into business. Go into any kind of business. Write. We are problem solvers – that's what we do. Go solve problems that resonate for you. A law degree is a powerful tool. Each of Hillary Clinton, Barack Obama, Michelle Obama, Julia Gillard, Julie Bishop and Malcolm Turnbull (and in fact many world leaders) started out that way – with law degrees. It gives you options. It is refreshing to see local lawyers Hannah Milligan, Mike Tucack and Michael Voros putting up their hands for politics and I know there are others – and of course we recently saw both Tim Hammond and Matt Keogh step up. But politics is only one area where a background in law is useful – there are many options. If you are not satisfied with your job or the firm you are with, don't be afraid to change. You won't get on with everyone, your mentors won't all be perfect for you, you may not even be a perfect mentee, you might find you have no affinity with certain types of work – do not be afraid to change course, do it 7 times.

Fifth – be considerate of each other The fights on behalf of your client are not your fights. It's not personal. It's professional. Unnecessary aggression toward opposing solicitors prevents

intelligent engagement. It may often undermine your client's interests. There is nothing wrong with robust debate and robust defence – but this job is hard enough without personalising the aggression. And on a similar note – look out for each other. This can be a very demanding career. It is not 9 to 5. It is a profession. There will be times when it feels overwhelming. There is a beautiful line from a Stevie Smith poem that captures for me that sense of being overwhelmed. She writes: I was much too far out all my life And not waving but drowning. Check on your cohort, check on your colleagues – are they waving or drowning. Like all experienced advocates, I said I had 5 points but I have thought of something else.

Use your power carefully We are privileged. In this profession we have the capacity to change lives. Not always for the better. Decisions we make – arguments we run, settlements we suggest the client reject, do we prosecute, do we walk away – these are day to day decisions that we as lawyers make that impact on the lives of others. Always remember that we are privileged and as you know, with privilege comes responsibility. That is what it means to be part of a profession. Welcome to the legal profession and I hope you find it rewarding in all ways.

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19


The Cab Rank Rule By Janie Plant Law Graduate, Cullen Macleod

The cab rank rule (CRR) is an ethical principal found in the code of conduct of numerous Bar associations.1 Historically steeped in tradition, the CRR has recently come under scrutiny.2 Some argue that the CRR fundamentally underpins a barrister's ethical obligations to the Bar;3 others suggest it is redundant and even undermines its aim to improve access to justice.4 This article seeks to demonstrate that the CRR remains an essential barristerial ethical obligation, and accordingly is fundamental to the Australian Bar. What is the Cab Rank Rule? The CRR is a fundamental ethical obligation that applies to conduct at the Bar;5 the barrister's 'Hippocratic Oath'.6 Applying to barristers,7 its purpose is to guarantee that anyone needing legal representation receives it, irrespective of the repugnancy of their conduct or views, or how distasteful the matter.8 The CRR seeks not to guarantee a person any barrister, but the barrister of their choice.9 The CRR obligates barristers to accept a brief or instructions,10 except in limited circumstances including professional embarrassment due to a conflict, inexperience in the matter's subject area, an inappropriate fee offered, or being otherwise professionally committed.11 In preventing unjustified restrictions on a client's barristerial choice, the CRR protects the client's interests and ensures equality before the law.12 As there will always be unpopular causes and clients, the CRR's centrality to Bar ethics ensures that all defendants have access to a highly competent advocate to represent their case.13

20 | BRIEF FEBRUARY 2017

History

Internationally

The CRR dates back centuries.14 In the United Kingdom (UK), the CRR initially had a customary character later becoming a rule of practice when associations of barristers developed at various circuit centres where the assize judges visited to hold quarter sessions.15 Complex, restrictive rules developed subsequently producing a rule that any prisoner appearing before the assize judge was entitled to representation regardless of their ability to pay a fee.16

Today the CRR continues to enjoy application in the UK21 and Australia and in numerous other countries with adversarial systems of justice.22 Additionally, Canada, United States (USA) and Bermuda promote the CRR's ethos as a professional ideal.23 By contrast, neither Pakistan nor Singapore have a rule akin to the CRR,24 however, Singapore does require an advocate to defend someone on a criminal charge irrespective of any opinion they may have formed as to guilt or otherwise.25

In Scotland, the CRR existed as early as 1532 when a rule of court provided that "No advocate without very good cause shall refuse to act for any person tendering a reasonable fee under pain of deprivation of his office of advocate".17 In England the CRR received emphatic acceptance when Thomas Erskine said in 1792:18 From the moment… any advocate can… say that he will or will not stand between the Crown and the subject arraigned in the Court… the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the judge….19 More recently, Sir Gerard Brennan opined that the CRR is 'uncompromising' and fundamental to the Bar's professional status: Without it, access to justice would be at the discretion of individual counsel; legal rights would be liable to defeat for reasons of distaste or avarice; the minorities; the poor, the powerless, the unpopular – those who most need the protection of the law – would have to go without representation or to find their advocates among those who would build their own reputations on others' misfortune… the law would become an instrument of oppression… courts would lose the confidence of the community. 20

Whilst the USA promotes the CRR's ethos as a professional ideal, the American Bar Association Model Code of Professional Responsibility (ABA-MCPR) specifically prescribes that a lawyer should not represent clients pursuing actions the lawyer finds repugnant or with which the lawyer fundamentally disagrees.26 This rule is not without controversy.27 Critics argue that it fails to ensure access to the legal system and point to difficulties racial minorities and homosexuals have faced obtaining counsel.28 Commentators also assert that the rule honours a barrister's moral autonomy at the expense of the client's, arguing that client autonomy should only be subject to limitation by the law, not an individual barrister's ethical standards.29 In Erskine-like fashion, critics claim that when barristers can selectively withhold their advocacy skills based on their own pre-judgment, they undermine their professional obligations.30 In contrast, supporters of the ABAMCPR's rule argue that a barrister's inherent professionalism averts any potential exercise of personal moral restraint on a client's access to legal services.31 In any case, there are significant cultural differences between Australian and American legal professionals32 with the American judicial system reflecting a concern for professional autonomy that does not dominate the Australian judicial system.33


International Principles The United Nations Basic Principles on the Role of Lawyers (UN Principles) espouses numerous principles in relation to the provision of legal services.34 The principles advocate that everyone should be entitled to representation of their choice to establish, protect, and defend their rights;35 that as agents of the administration of justice, lawyers should preserve the honour and dignity of the legal profession;36 and practitioners should not be identified with their clients or causes simply because they are carrying out their lawyering duty.37 In Australia these principles are clearly espoused in the CRR.38

Benefits and Criticisms The main benefit of the CRR is its ability to ensure representation.39 However, it is also potentially a vital human rights tool providing freedom for barristers to represent the weak, the poor,40 the refugee and the person whose ideas are personally despised.41 Considered that way, the CRR arguably guarantees the protection of human rights.42 The CRR also provides barristers who represent odious clients with a shield from social stigma.43 Professional duty and the proper functioning of the legal system are most tested when a cause is at the most repugnant end of the spectrum.44 The CRR arguably ensures protection for both.45 By contrast, critics of the CRR argue that it can and is easily circumvented.46

As self-employed professionals, the Bar is inherently risky.47 Financial insecurity may entice barristers to view briefs merely as invoices requiring payment by a briefing solicitor.48 When family responsibilities, chamber costs and financial security demand attention; the CRR and its underlying professional duty rhetoric may resonate less than it otherwise might.49 Critics also argue that these days the more loathsome a client or cause, the more attractive or desirable50 insinuating that barristers are publicity hungry.51 As these criticisms portray barristers negatively, it is encouraging to read many prominent barristers agreeing that the obligation to represent odious clients and cases goes beyond professional rules and standards; rather it is fundamental to the workings of the judicial system.52

Is the CRR Still Needed? Flood and Hviid lament that the CRR fails as a rule because it lacks enforcement53, however, arguably it can also be inferred from the absence of disciplinary proceedings that the rule is largely complied with.54 Despite Flood and Hviid's position, evidence suggests the rule is enforced. In 2006 an English barrister specialising in immigration law was reprimanded for non-compliance with the CRR.55 The barrister refused a brief of a male illegal immigrant who wanted to remain in the UK on the basis of his intimate relationship with another man.56 The

barrister refused the brief because the man's lifestyle offended his religious beliefs.57 He was subsequently charged with professional misconduct, found to be in breach of the CRR and reprimanded.58 A further five additional complaints were identified on the UK based 'Bar Standards Board' database.59 In Western Australia it is unclear whether there have been any CRR disciplinary proceedings.60 However, the Western Australian Bar Association (WA Bar) does have a specific disciplinary committee61 with jurisdiction to hear such complaints.62 Commentators recently questioned whether we still need the CRR in Australia.63 What is clear is that as a regulatory rule, the CRR does not have the force of law.64 Breaches attract disciplinary rather than civil proceedings65 and at least in the UK, the judiciary has confirmed that the content and enforcement of the Bar's code of conduct is not a matter for the courts.66 Accordingly, there is a lack of case law directly relating to breach.67 Despite this though, case law globally has considered the role of the CRR in other instances particularly in relation to barristers' conduct and immunity.68 In Australia, judicial approval of the CRR in relation to its existence and role is clear. In Giannarelli v Wraith69 Brennan J opined that the CRR is "essential to the availability of justice".70 Brennan J added that the CRR's role in ensuring the availability of justice is so important that "it should never be compromised

21


by an individual barrister's predilections or extravagant fees."71 Brennan J emphatically argued that should the CRR ever be in decline, it is the duty of the legal profession to "ensure its restoration in full vigour".72 The court's advocacy of the CRR was confirmed in D'OrtaEkenaike v Victoria Legal Aid73 (D'Orta) when Callinan J described the CRR as 'valuable'74 and the majority considered its maintenance 'highly desirable'.75 The Hon Bruce Debelle76 opines that survival of the rule of law depends on an independent judiciary and legal profession noting that contextually, independence denotes a profession that can represent clients and causes regardless of popularity, without recrimination.77 Seen this way, it might be argued that the CRR is crucial to the very survival of the rule of law.78 In contrast, Gordon Samuels argues that as framed, the CRR should not be preserved arguing that the CRR overlooks situations in which barristers are offered briefs they find wholly distasteful.79 Pointing to corporate litigants selling tobacco products or dubious patent medicines to 'Third World' countries, Samuels argues that there is no place for rules requiring barristers to suppress morals that go further than "mere personal prejudice".80 Nonetheless, Samuels advocates for the CRR's modification, not abolition.81 Commentators argue that the CRR's abolition would provide no clear beneficial consequences, and its existence inflicts no harm.82 However, they identify numerous negative consequences resulting from its potential abolition.83 Particularly low-profile odious clients or causes may find it difficult to obtain appropriately experienced representation.84 Barristers, who frequently work for large organisations that would benefit from securing loyalty, might find it more difficult to justify working against that client, potentially diminishing the publicly available pool of barristers.85 This might lead to a reduction in the ability for barristers to appear for opposite sides in cases;86 the risk being that such lack of experience might result in poor barristers asserting inferior arguments and subsequently, poorer judges delivering inferior judgments.87 However, perhaps the most important consequences could be the erosion of barristerial culture88 and the message abolition sends the public. Whilst culture erosion might not occur overnight, it may over time.89 Abolition could also be damaging to the legal profession itself

22 | BRIEF FEBRUARY 2017

as it arguably communicates that the underlying principle, that every person is entitled to legal representation, is no longer important to the profession.90

7.

The CRR does not apply to solicitors working in their solicitor capacity: G E Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th ed, 2013) [3.140].

8.

Thornton A, above n 7, 68.

9.

Michael McLaren, Craig Ulyatt, and Christopher Knowles, The Cab Rank Rule: A Fresh View(2012) Fountain Court Chambers [16].

Conclusion

10.

Whether to act as an advocate or adviser: Thornton A, above n 7, 68.

11.

Thornton A, above n 7, 68.

12.

McLaren, Ulyatt, and Knowles, above n 12, [6].

13.

Lord Alexander of Weedon QC, former Chairman of the English Bar, explaining to the House of Lords cited in Wilson, above n 6, [29].

14.

Samuels, above n 6, 2.

15.

The associations of Barristers were called Bar Messes: Thornton, above n 7, 68.

16.

Thornton A, above n 7, 68.

17.

Lord MacMillan, Law and Other Things (Cambridge at the University Press, 1937) 179.

18.

Erskine appeared to defend Tom Paine on a charge of seditious libel for publishing 'The Rights of Man': Lindsay, above n 22, 13.

19.

Samuels, above n 6, 2.

20.

Brennan, above n 3.

21.

McLaren, Ulyatt, and Knowles, above n 12, [45].

22.

Scotland, Northern Ireland, The Republic of Ireland, New Zealand, India, South Africa, Hong Kong, Malaysia, Italy, Nigeria (criminal cases only) and Trinidad & Tobago (capital cases only): McLaren, Ulyatt, and Knowles, above n 12, [49]; See Samuels, above n 6, 3.

23.

Though neither has a specific CRR: McLaren, Ulyatt, and Knowles, above n 12, [16], 77-79.

24.

Pakistan Bar Council, Pakistan Legal Practitioners & Bar Council's Rules, (at 21 January 2016), r 171; Singapore Legal Profession (Professional Conduct) Rules (at 18 November 2015).

25.

Singapore Legal Profession (Professional Conduct) Rules (at 18 November 2015), r 72; Chong Yeo v Guan Ming Hardware & Engineering Pte Ltd [1997] 2 SLR 729 (Sing CA) at [43] (Yong Pung How CJ) cited in McLaren, Ulyatt, and Knowles, above n 12, 79.

26.

American Bar Association, ABA Model Rules of Professional Conduct (at 2016) r 1.16(b)(4).

27.

Maree Quinlivan, 'The Cab Rank Rule: A Reappraisal of the Duty to Accept Clients' (1998) 28 Victoria University of Wellington Law Review 113, 123.

It is an honour to be a barrister and a privilege to fight on behalf of another for their right to be equal before the law.91 Our judicial system relies on the independence of the judiciary and legal profession; judges cannot pick and choose cases and nor should members of the independent bar.92 This article demonstrates that the CRR is held in high judicial regard and underpins a barrister's ethical obligations. The CRR has shaped barristerial culture and provides an important message to the public. Whilst detractors point to a lack of enforcement as a basis for the CRR's removal, opposing arguments arguably reveal that its removal could have drastic consequences for the legal profession and the rule of law at large. Barristers have a responsibility to uphold another's fundamental human rights93 against those who might take them away,94 and a duty to be independent, objective, and available.95 Arguably it is when a cause is especially difficult or heinous that the obligation is at its highest,96 for if barristers will not, who will?97

28.

Ibid.

NOTES

29.

Quinlivan, above n 33, 123.

1.

r 21 of the Australian Bar Association's Barristers' Conduct Rules applies in Western Australia. The rule states that: A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practices or professes to practice if: a) the brief is within the barrister's capacity, skill and experience; b) the barrister would be available to work as a barrister when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to other professional or personal engagements which may, as a real possibility, prevent the barrister from being able to advance a client's interests to the best of the barrister's skill and diligence; c) the fee offered on the brief is acceptable to the barrister; and d) the barrister is not obliged or permitted to refuse the brief under rr 95, 97, 98 or 99: see, WA Bar Association, Western Australian Barristers' Rules (at 30 October 2013) r 21.

30.

Ibid 124.

31.

Ibid 123.

32.

For example, zealousness underpins American advocacy whereas fearlessness underpins Australian advocacy: Abbe Smith, 'Defending the Unpopular Down-Under' (2006) 30 Melbourne University Law Review 495, 544; WA Bar Association, Western Australian Barristers' Rules (at 30 October 2013) r 37.

33.

Quinlivan, above n 33, 122.

34.

Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, (27 August to 7 September 1990).

35.

Ibid principle 1.

36.

Ibid principle 12.

37.

Ibid principle 18.

2.

See, e.g., John Flood and Morten Hviid, 'The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market' (Report, Legal Services Board, 2013).

38.

WA Bar Association, Western Australian Barristers' Rules (at 30 October 2013) rr 21-24b.

3.

Gerard Brennan, 'Ethics and the Advocate' (Speech delivered at the Bar Association of Queensland Continuing Legal Education Lectures, Noosa, 3 May 1992).

39.

McLaren, Ulyatt, and Knowles, above n 12, [16].

40.

4.

Legal Services Board, 'Cab Rank Rule Research Summary, Why This? Why Now?' (Media Release) <https://research.legalservicesboard.org.uk/wpcontent/media/Cab-Rank-Rule-Research-Summary. pdf>.

5.

Gordon Samuels, 'No More Cabs on the Rank? Some Reflections About the Future of Legal Practice' (19881999) 3 Newcastle Law Review 1, 1; Margaret Wilson, 'Barrister and Solicitor: A Symbiotic Relationship in the Interests of the Client' (Speech delivered at the Bar Practice Course 62, Supreme Court of Queensland, 20 February 2014) [28].

It is noted that a barrister is permitted to decline a brief if an inappropriate fee is offered. This should not been seen as detracting from the ability of a barrister to work for 'the poor'. Barristers are not entitled to inflate their fees higher than what would be considered acceptable for the purposes of rule 21(c) with the intent of deterring a solicitor from continuing to offer the brief to the barrister: see WA Bar Association, Western Australian Barristers' Rules (at 30 October 2013) rr 2122. Additionally, judicial opinion makes it clear that 'the poor' are seen as fundamentally benefiting from the CRR: Brennan, above n 3.

41.

Steven Rares, 'The Independent Bar and Human Rights' (2005) 26 Australian Bar Review 11, 22.

42.

Ibid 21.

43.

McLaren, Ulyatt, and Knowles, above n 12, [17].

44.

Ibid.

45.

Ibid.

46.

Brennan, above n 3.

6.

Thornton A, 'The Professional Responsibility and Ethics of the English Bar' in R Cranston (ed), Legal Ethics and Professional Responsibility (Clarendon Press, 1995), 68.


47.

Ibid.

48.

Ibid.

49.

Ibid.

50.

Flood and Hviid, above n 2, 31.

51.

Ibid 31-32; cf McLaren, Ulyatt, and Knowles, above n 12, [18].

52.

See Smith, above n 38, generally and 507 specifically.

53.

Flood and Hviid, above n 2, 22.

54.

McLaren, Ulyatt, and Knowles, above n 12, [53].

55.

Flood and Hviid, above n 2, 40.

56.

Jamie Mills, 'Barrister Who Refused to Represent Gay Client Reprimanded', Daily Mail Australia (online), 26 July 2006 <http://www.dailymail.co.uk/news/ article-397625/Barrister-refused-represent-gay-clientreprimanded.html>.

57.

Flood and Hviid, above n 2, 40; Mills, above n 64.

58.

Wilson, above n 6, [30]; Mills, above n 64.

59.

Using the criterion 'breach of the Cab Rank Rule': McLaren, Ulyatt, and Knowles, above n 12, [58].

60.

WA Bar Association, Private Communication with Debbie Cole, Executive Officer (at 28 September 2016). A number of Australian cases have had cause to discuss the CRR's relevance albeit in relation to other issues. Recently in Able Demolitions and Excavations Pty Ltd v State of Victoria and Anor [2004] VSC 511, the court were asked to consider if a barrister/ arbitrator should be removed as arbitrator because of his history of working predominantly for unions. The plaintiff argued that this indicated an affiliation with unions generally and because the primary issue of construction in the arbitration may involve background concerning Able's relationship with unions, bias might reasonably be apprehended. The court held that there was no affiliation with unions generally; it was the barrister's observation of the CRR which saw him working predominantly for unions, and this did not lead to any apprehension of bias: at [78]-[83].

61.

WA Bar Association, Constitution (at 10 June 2015) Part IV – Discipline.

62.

It should also be noted that applications for

membership to the WA Bar require barristers to agree to adhere to the WA Bar's Constitution and Rules of the Association: WA Bar Association, Private Communication with Debbie Cole, Executive Officer (at 28 September 2016); see WA Bar Association, Application for Membership (Local). 63.

See, e.g., Samuels, above n 6, 2; Brennan, above n 3; Smith, above n 38.

64.

McLaren, Ulyatt, and Knowles, above n 12, [39].

65.

Ibid.

66.

See, e.g., Geveran Trading Co Ltd v Skjevesland [2003] 1 WLR 912, [42] (Arden LJ).

67.

McLaren, Ulyatt, and Knowles, above n 12, [39].

68.

In Australia see Giannarelli v Wraith (1988) 165 CLR 543 [32] (Wilson J), [4] (Brennan J), [15] (Dawson J); D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [27] (Gleeson CJ, Gummow, Hayne & Haydon JJ), [377] (Callinan J). In New Zealand see Lai v Chamberlains [2005] 3 NZLR 291 [106] (Anderson P), Lai v Chamberlains [2007] 2 NZLR 7 [54] (Elias CJ, Gault & Keith JJ), [158] (Tipping J). In India see AS Mohammed Rafi v State of Tamilnadu [2010] INSC 1060 [16], [32] (Markandey Katju J). In UK see Rondel v Worsley [1969] 1 AC 191, 227D-F (Lord Reid), 275A-D, 276B-C (Lord Pearce); Arthur JS Hall & Co v Simons [2002] 1 AC 615, 678H-679A (Lord Steyne), 686H (Lord Hoffman), 714E-G (Lord Hope), 739G-740B (Lord Hobhouse); Medcalf v Mardell [2003] 1 AC 120 [51]-[52] (Lord Hobhouse); R v Ulcay [2008] 1 WLR 1209, [40] (Sir Igor Judge P); Geveran Trading Co Ltd v Skjevesland [2003] 1 WLR 912, [43] (Arden LJ).

69.

(1988) 165 CLR 543.

70.

Giannerelli v Wraith (1988) 165 CLR 543 [16].

71.

Ibid.

72.

Giannerelli v Wraith (1988) 165 CLR 543 [16].

73.

(2005) 223 CLR 1 [27].

74.

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [377].

75.

The issue under consideration in D'Orta was barristerial immunity. In that context the majority stated that maintenance of the CRR is highly desirable

as it ensures unpopular clients and causes obtain representation; the CRR does not however provide sufficient basis to justice barristerial immunity. This last point however is unrelated to the question of whether the CRR is a valuable or needed ethical rule. 76.

Justice Bruce Debelle is a former Australian Law Reform Commissioner, Justice of the South Australian Supreme Court and Acting Justice of both the South Australian and New South Wales Supreme Courts. See Bruce M Debelle AO QC Bar Association <http://www. barchambers.com.au/members/associate-members/ bruce-m-debelle-ao-qc/>.

77.

Bruce Debelle, 'Judicial Independence and the Rule of Law' (2001) 75(9) Australian Law Journal 556, 564.

78.

Ibid 565.

79.

Samuels, above n 6, 11-12.

80.

Ibid 12.

81.

Ibid 11-12.

82.

McLaren, Ulyatt, and Knowles, above n 12, [69].

83.

Ibid [70].

84.

Ibid.

85.

Ibid.

86.

Ibid.

87.

Ibid.

88.

Ibid.

89.

Ibid.

90.

Ibid.

91.

Rares, above n 47, 28.

92.

Ibid.

93.

Ibid.

94.

Smith, above n 38, fn 43.

95.

Christopher Finlayson 'Lawyers and Unpopular Clients' (2011) 19 Waikato Law Review 90, 93.

96.

Abbe Smith, 'Defending the Unpopular Down-Under' (2006) 30 Melbourne University Law Review 495, 504-521.

97.

Steven Rares, 'The Independent Bar and Human Rights' (2005) 26 Australian Bar Review 11, 28.

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23


Using mediation in the negotiation of commercial deals By Steven Standing Francis Burt Chambers Steven Standing

Most lawyers know that mediation can be a very effective means of resolving disputes. However, in a recent mediation organised by an enterprising in-house counsel, the parties were not in dispute at all; they had simply reached an impasse in the negotiation of a proposed joint venture.1 This article examines whether mediation can be useful in the context of commercial negotiations, and considers some practical issues to do with mediations generally. Alternative dispute resolution It is widely accepted that alternative dispute resolution (ADR) can be an efficient alternative to the judicial determination of disputes. ADR can be facilitative, advisory, determinative or sometimes a combination of those processes. Mediation is the most commonly used ADR process. It is generally a purely facilitative process, where the mediator assists the parties to identify the true issues and develop options for the resolution of those issues. It has a number of advantages over judicial determination or even arbitration; it is relatively inexpensive, can be held before any formal proceedings are commenced, and parties can resolve their dispute on terms that accommodate their commercial interests rather than have terms imposed upon them by a court or arbitrator. A mediation which focuses on the interests of the parties and on problem solving is less likely to be adversarial and, correspondingly, there is a better chance of relationships being preserved.

24 | BRIEF FEBRUARY 2017

Alternative dispute resolution and commercial negotiations Commercial negotiations can be protracted and expensive, or fail entirely because the parties have reached an impasse. Mediation is not commonly used in commercial negotiations.2 However, mediation is essentially an exercise in negotiation, and on the face of it, there is no reason why the techniques used to mediate disputes could not be of equal assistance in commercial negotiations. Parties to a proposed WA based joint venture recently agreed to participate in a mediation in an attempt to resolve an impasse in their negotiations. The remainder of this paper discusses aspects of that mediation, and in particular, whether ordinary mediation principles and techniques were useful where there was no dispute but, rather, a stalled commercial negotiation. Some general observations are also made about mediations.

Background to mediation Each of the parties to the proposed joint venture had particular skills and resources that would (in combination) provide services of a kind known to be required by a third party. The parties had held extensive negotiations about a joint venture to provide the services to the third party, but had been unable to agree key aspects of the deal. It appeared unlikely that the joint venture would proceed. The third party remained keen to do business with the proposed joint venture. When the third party became aware that the parties had reached an impasse in their negotiations, its in-house counsel suggested to the parties that they use mediation as a way of resolving the impasse, and the parties agreed.

Mediation agreement The first step taken by the parties was to sign a mediation agreement. Mediation agreements usually identify the 'dispute' to be mediated, but in this case, there was no dispute. Instead, the subject matter of the mediation agreement was an 'issue', being the inability of the parties to agree upon the terms of the proposed joint venture. The agreement further provided that the purpose of the mediation "â&#x20AC;Ś.was to provide a forum in which the parties can further consider whether mutually acceptable terms for such a joint venture could be agreedâ&#x20AC;Ś.". The mediation agreement expressly provided that any heads of agreement entered into by the parties during the mediation would be subject to and conditional upon each of the parties conducting a review to ensure that the agreement complied with all relevant laws including competition laws. Otherwise, the terms of the mediation agreement were similar to those usually agreed for the mediation of a dispute. The agreement confirmed that the mediator would be neutral and (consistent with the concept of mediation as a facilitative process) would not provide advice or make findings, but would instead seek to assist the parties by helping them to identify the underlying issues preventing agreement and develop options that might resolve those issues.

Issues papers v position papers The mediation agreement required the parties to exchange issues papers. Some mediations involve the exchange of 'position papers'. It is suggested that the difference between an 'issues paper' and a 'position paper' is not just a matter of terminology, and that for many mediations, the preferable course is to avoid 'position papers'. This is


... separate sessions give the mediator the opportunity to ... reality test their views, and to perhaps encourage a reconsideration or moderation of those views, before negotiations begin in earnest.

because the task of the mediator is to encourage the parties to move away from positions, and to instead focus on the issues and how those issues might be resolved in a way that satisfies the interests of both parties. The exchange of 'position papers' can have the unhelpful tendency of embedding the parties' respective positions and hence potentially make settlement more difficult. For this reason, it is suggested that the parties to a mediation should usually exchange papers which do no more than identify the issues. Indeed, it may be appropriate to make a positive request of the parties for the mediator not to make any statement of their 'positions' in advance of the mediation (even where the mediation appears to only be about how much money should be paid by one party to the other). Although this may create a degree of uncertainty going into the mediation, the potential benefit is that the parties do not feel locked into a stated position and may be more likely to adopt a flexible approach to the negotiations.

Authority to Settle The mediation agreement required attendance by representatives having genuine authority from the parties to negotiate an agreement (including on terms which may not previously have been discussed). This is a critical element

of any mediation agreement; where a mediation is unsuccessful, it is often because a representative does not have authority to settle beyond a limited, predetermined range or is not in a position to approve a previously unforeseen solution.

Opening statements A typical mediation process involves each of the parties making a short opening statement of what they perceive the issues to be, with the mediator's role being to summarise what has been said in the opening statements and to then distil the key issues. For reasons already discussed, it is preferable that the openings do not include positional statements. Although opening statements are often made by legal representatives, it can be helpful to ask the parties whether they want to say something themselves. This can be an important factor in mediations â&#x20AC;&#x201C; not necessarily because of what the parties have to say, but because it gives them the chance to get things off their chest â&#x20AC;&#x201C; sometimes described as 'lancing the boil'. It is remarkable how often a party will move away from an apparently entrenched position once he or she has had the chance to personally tell the other side, face to face, their views and feelings about the dispute.

The mediation in question commenced in much the same way as any other; each party made an opening statement about the issues, and one party spoke personally to supplement the opening statement made by its legal representative. A range of issues was identified and written up on a whiteboard, and these were ranked in order of importance. It became apparent that trust was a significant issue between the parties.

Separate sessions This describes the situation where the mediator speaks separately (on an 'off the record' basis) with each of the parties. This can sometimes develop into shuttle diplomacy, where the mediator acts as a messenger for negotiations between the parties. Separate sessions are often seen as appropriate or necessary to overcome strong enmity between the parties, but they can be beneficial to the mediation process even in the absence of enmity. Separate sessions give the mediator the opportunity to establish a closer rapport with each party, to reality test their views, and to perhaps encourage a reconsideration or moderation of those views, before negotiations begin in earnest. In the mediation in question, separate sessions were used, not because of 25


any enmity between the parties, but for the other reasons identified above. The sessions enabled the mediator to establish a rapport with each side, as well as to reality test the parties' approach and explore issues (particularly those going to trust) which might have been difficult to discuss in open session. As part of this process, each party was asked to say what they considered were the best, worst and probable alternatives to a negotiated agreement. Unlike the typical mediation of a dispute, neither of the parties would necessarily have been worse off if the mediation was unsuccessful, but there were clearly commercial opportunities that might be lost if no agreement was reached.

Joint sessions After separate sessions, the parties came back into the same room and commenced what turned out to be extensive discussions on possible solutions to the various issues. For the most part, the parties progressed to the stage of being able to discuss each issue freely, with only occasional intervention from the mediator where the discussion was going off track or had stalled.

Mediator's role during negotiation of commercial terms Even after key issues had been resolved, there was extended discussion and negotiation about a broader range of commercial issues than would usually be the case in a mediation. However, the mediation remained useful during this phase, providing active facilitation of the negotiations.

Mediation agreement The parties were able ultimately to reach agreement on all of the issues that had previously led to a stalemate in their negotiations. They recorded their agreement in a mediation agreement to which was annexed a heads of agreement for joint venture. The heads of agreement was (subject to satisfaction of several conditions precedent) immediately binding. It was also agreed that other transaction documents would be entered into, and the key terms of those documents were also set out in the mediation agreement.

Timing Issues The mediation was scheduled to last for two days, and as it turned out, that was how long it took for the parties to reach agreement on all issues and to record their agreement. The extended duration of the mediation tested the patience of the parties on occasions. However, the parties got to know each other during the mediation, and this may have helped them overcome trust issues. It is not uncommon for parties to become impatient with the time taken by the mediation process. However, this can, of itself, assist in reaching a settlement, because it brings home to the parties how unproductive and inconvenient the dispute is, and how much more time is likely to be spent on the dispute in future if the matter is not settled. For this reason, it may be counterproductive to schedule a mediation for just an hour or two. Even for a relatively straightforward matter, it can often take the best part of a day for parties to identify the true issues, move from a positional mindset to problem

solving mode, and to then document their agreement.

Overview â&#x20AC;&#x201C; usefulness of mediation in commercial negotiations In this case, the mediation provided a controlled environment that facilitated negotiations and built trust between the parties. Overall, the mediation process was similar to that used in a typical dispute scenario. The only real differences were the unusually large number of commercial issues that required consideration and the focus on the commercial opportunities that would be lost if no agreement was reached. The mediation enabled the parties to overcome apparently intractable hurdles to their proposed joint venture arrangements. Although the mediation took two days, the process was more efficient and effective than the alternative of extended further negotiation via correspondence and (possibly) no agreement at all. The outcome of the mediation discussed in this article suggests that ordinary mediation techniques can be just as effective in the negotiation of commercial transactions as they are in the settlement of disputes. Mediation clearly has the potential to accelerate commercial negotiations, and in some cases can facilitate a deal that otherwise would be unachievable. NOTES 1.

Some of the details of the mediation have been changed to preserve the confidentiality of the process.

2.

Where no dispute is involved, the mediation process is sometimes described as a 'facilitated negotiation'.

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Indigenous Legal Issues Committee speech to Society Club Event hosted by the Law Society of Western Australia's Indigenous Legal Issues Committee Thursday, 20 October 2016, The Western Australian Club, Perth

By Krista McMeeken Convenor, Law Society's Indigenous Legal Issues Committee

Good evening everyone The Indigenous Legal Issues Committee was formed, originally as the Aboriginal Lawyers Committee, when I was still a student in April 2010 and serves the purpose of encouraging, supporting and advancing Aboriginal and Torres Strait Islander lawyers, law graduates and law students in their pursuit of a legal career. We also communicate with the legal profession and broader community on issues of importance to Aboriginal and Torres Strait Islander peoples in our community regarding the law and justice and policy development in those areas. The Committee is made up of both Aboriginal and non-Aboriginal members and currently has about 10 members who are both practitioners and students, many of whom are here tonight and I encourage you to have a chat with them both about their work on the Committee and their experience more broadly. The Committee's work includes providing responses to key legal issues and proposed reforms affecting Aboriginal and Torres Strait Islander peoples including participating in the Constitutional Recognition testimonies. We have assisted the Law Society in the development of its Reconciliation Action Plan programme and we have helped draft and coordinate policy papers on legal issues contributing to the incarceration rates of Aboriginal and Torres Strait Islander peoples including: •

Deaths in Custody;

Mandatory sentencing;

Mentally impaired accused;

Bail;

Issues that apply to women;

COAG justice targets;

Issues that apply to children;

Access to justice;

Fines; and

Justice Reinvestment,

in order to inform and assist both sides of politics and the public around these key justice issues ahead of the State elections in March next year. We are also in the process of drafting protocols for legal practitioners working with Aboriginal and Torres Strait Islander clients in order to ensure that legal services in this State are provided in a culturally sensitive and appropriate manner and to ensure that we are all meeting our duties as lawyers when serving our clients.

Krista McMeeken

These are significant pieces of work of which we are proud and I would like to give my thanks to the past and present committee members who have contributed their time and knowledge to our cause and to the other committees of the Law Society and the Law Society itself for having supported and assisted in this work. I would also like to give my thanks to Joanna, our policy and advocacy assistant who has played a large role in corralling us all and informing us of the latest political and legal developments in areas relevant to our purpose. For those who are interested in getting involved please do consider applying to join the Committee, as you may be aware Western Australia has one of the poorest records when it comes to the incarceration of Aboriginal and Torres Strait Islander peoples and there is sometimes more work for us than our small Committee can manage. Having been a part of the Committee since its inception, I truly believe that this Committee can and does make a difference to the state of affairs in our State but also serves an important purpose in supporting the bright future of our young and upcoming practitioners.

27


Elder Abuse – Reforming the Law Vanessa Viaggio Principal Legal Officer, Australian Law Reform Commission

The Australian Law Reform Commission (ALRC) recently published proposals to reform state, territory and Commonwealth legislation and related frameworks to prevent and respond to elder abuse. Key among the proposals are the development of an elder abuse National Plan, frontloading safeguards into future planning instruments, empowering public advocates/guardians with investigative powers, and enhancing safeguarding mechanisms and employment screening in aged care. Background On 24 February 2016 the Commonwealth Attorney-General commented that "elder abuse is a human rights issue and is also an underappreciated social problem".1 At the same time he launched a research report which noted that while significant improvements were being made in terms of responding to and preventing family violence and child abuse, addressing the issue of elder abuse remained less developed.2 The ALRC released an Issues Paper in June 2016 and, after conducting consultations across various states and territories, and receiving almost 200 submissions, has now released a Discussion Paper.

Scope The terms of reference for the inquiry require the ALRC to consider existing Commonwealth laws and legal frameworks that operate to safeguard and protect older persons from abuse by formal and informal careers, supporters, representatives and others, and to consider the interaction of these laws with state and territory laws. In conducting its inquiry, the ALRC must have regard to a number of principles including that all Australians have a right to live dignified, self-determined lives, free from abuse and exploitation; and that laws and legal frameworks should balance protections and safeguards of older persons, while minimising interference in their lives and respecting their will and preferences.

28 | BRIEF FEBRUARY 2017

Overview of key proposals A keystone proposal is the development of a National Plan to ensure that a consistent, coordinated, long term approach to elder abuse is implemented across states and territories. A National Plan would create an opportunity for future planning and policy development, with integration between various service and policy systems and responses. The Plan envisages other, non-legal reforms and responses, including national awareness campaigns, and training for people working with older people. A range of other proposals are designed to address areas identified as key risk areas for abuse in relation to substitute decision-making. The making of enduring powers of attorney and enduring guardianship are effective tools for future planning, enabling the principal to determine who will make decisions on their behalf in the event they lose decision making ability. While enduring documents may operate to protect older persons from exploitation and abuse by others, the ALRC has heard that they can facilitate abuse by the very person appointed to protect their interests. This is especially so in respect of financial abuse, which is the most common form of elder abuse.3 In response the ALRC proposes, first, the establishment of a national online register of enduring documents (as well as for court and tribunal orders for the appointment of guardians and financial administrators). While a register would not, in and of itself, prevent abuse of enduring documents, it would operate to ensure that only one enduring document is registered at a time; enable easy identification of 'live' documents, including by banks and other institutions that rely on them; and provide clarity as to the precise roles and powers of the attorney or guardian. While some concerns have been raised about a register, including in relation to cost and privacy, a number of stakeholders have called for a national register as part of a suite of enhanced protections against abuse of enduring documents. Another measure relates to proposed witnessing requirements for enduring documents. The ALRC proposes requiring that enduring powers of attorney and enduring guardian appointments be signed in the presence of two witnesses, with at least one of the witnesses being from a prescribed class of people. In addition, it is proposed that witnesses

be required to certify that both the principal and the enduring attorney or enduring guardian appeared to freely and voluntarily sign in their presence; and that the principal appeared to understand the nature of the document. These requirements are intended to respond to concerns about older persons being pressured into signing enduring documents, or signing in circumstances where decision-making ability may be compromised. Other ALRC proposals include: • expanding the role of public advocates and public guardians to include a consent-based 'support and assist' investigative function in relation to older people who are being, or are at risk of being, abused or neglected • providing a low cost and less formal forum for dispute resolution in family disputes by vesting state and territory tribunals with jurisdiction to determine these in some instances, including in respect of 'assets-for-care' arrangements • requiring banks and financial institutions to take reasonable steps to prevent financial elder abuse, including through adopting more proactive measures to engage with customers, using technology to identify unusual transactions, and enhancing staff training • strengthening protections in aged care by enhancing compulsory reporting requirements and employment screening.

Community consultation The suggested reforms are now subject to further community consultation, prior to the ALRC submitting its final report to the Attorney-General, scheduled for May 2017. Submissions are currently being sought on the proposals, and readers are invited to comment by 27 February 2017. The Discussion Paper is available online at www.alrc.gov.au/publications. NOTES: 1.

Senator the Honourable George Brandis QC, Address at the National Elder Abuse Conference (Speech delivered at the Pullman on the Park), Melbourne, 24 February 2016.

2.

Kaspiew, R., Carson, R., and Rhoades, H. 'Elder Abuse: Understanding issues, frameworks and responses' (Research Report No. 35), Australian Institute of Family Studies, February 2016.

3.

Ibid.


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

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

level Litigation Lawyer (3-8 years’ PAE) to join a rapidly growing top-tier firm and work alongside Partners who are regarded as among the best strategic litigators in Australia. You will act for domestic and international clients across a range of industry sectors, and complete a diverse mix of energy and resources, construction and insolvency litigation within Australia and multiple foreign jurisdictions. • Litigation lawyer to lead a practice. Opportunity for a Special Counsel level lawyer to replace a retiring Partner and inherit a client/fee base within a leading boutique firm. Subject to cultural fit, there will be an imminent opportunity to buy into this well-established firm and oversee a team of junior lawyers. The firm has some long running and highly complex litigation on foot, including a very interesting international class action matter. This role will suit an established Partner or Senior Associate/ Special Counsel level lawyer who is looking to step into a Partner role in the very near team. No fee base required. • Mining and Energy/Projects Lawyer for international firm. Following the recent appointment of a new Partner who has successfully transitioned across a number of significant operators and contractors as key clients, this top-tier firm is seeking an ambitious junior to Associate level lawyer to advise on international energy and resources projects and transactions. Given the calibre of the firm’s Partners and client base, this position would suit an experienced E&R or Projects/Infrastructure Lawyer with 2-6 years’ PAE from a national/international or market leading boutique firm. • Plaintiff Insurance Lawyers. Long established plaintiff insurance firm seeks two lawyers with 1-6 years’ PAE to join its expanding team. Following a renewed focus on business development and marketing, this firm has a fresh strategic plan and is rapidly regaining market share. The Partners will be looking to hire driven lawyers who are confident in negotiating with senior defendant side lawyers, and able to manage complex files with a significant level of autonomy. • Property Lawyers for national and international firm. 2-4 years’ PAE and 5-8+ years’ PAE. Opportunities to join a national and international firm, both of which continue to grow in the current market. Advise private and government clients throughout the real estate lifecycle, including environmental and planning issues, development projects, disposals developments and related leasing work. • Tax Lawyer for international firm. Opportunity for a Senior Associate/Special Counsel to lead the Tax practice for an international firm, in setting up and leading the WA team across both Tax Advisory and Litigation matters. You will work closely with Partners from the firm’s other teams to leverage long term client relationships in rapidly building up a fee base. • Workplace Relations lawyer to join a high profile midtier practice. Opportunity for an Associate or Senior Associate to step into a leadership role and manage a team of junior lawyers whilst overseeing the strategic direction of key matters. Joining a highly functional and supportive senior management team, you will represent listed and large private clients across the full spectrum of workplace relations matters. Please contact Maryann McKenna for further information regarding the junior to mid-level roles currently available across the WA legal market, or to discuss the opportunities coming online within our client base in 2017. KBE Human Capital is a proud supporter of Parkerville Children & Youth Care

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


The Scope and Limits of the Without Prejudice Privilege Adapted from CPD Seminar Paper delivered on Tuesday, 18 October 2016 at the Law Society

By Elmi Carlean Barrister, Francis Burt Chambers

Without prejudice communications are important in the facilitation and resolution of disputes. However, what constitutes the 'without prejudice' privilege and whether that privilege can be found to apply to whole or only part of the communication is Elmi Carlean the subject of much confusion amongst practitioners, with the principle often being misused in practice. This paper explores when and how to properly use the 'without prejudice' privilege in communications so as to avoid unnecessary legal arguments and potential negative cost consequences for clients. The without prejudice privilege The 'without prejudice' privilege, is not always as widely understood as legal professional privilege and is the subject of some confusion amongst practitioners, with the principle often being misused in practice. At its most basic, the term 'without prejudice', ordinarily arises within the context of settlement negotiations, and is generally associated with the privilege which governs such negotiations. Without prejudice communications are therefore an important tool in the facilitation and resolution of disputes. At the outset it is to be noted that the onus of establishing the privilege rests on those claiming it1. And importantly, the privilege has to be properly asserted and demonstrated on the evidence with there being specific evidence to establish the claim for privilege: Barnes v Commissioner of Taxation2. What is the Without Prejudice Privilege At common law, evidence of admissions made in the course of genuine negotiations to settle a dispute is privileged, unless all parties to the negotiations agree to the contrary. The primary feature therefore distinguishing the 'without prejudice' privilege attaching to settlement negotiations from legal professional privilege, is that it can only be waived if all the parties consent â&#x20AC;&#x201C; whether or not that consent is simultaneously forthcoming is irrelevant. That is, it cannot

30 | BRIEF FEBRUARY 2017


simply be waived by the party to whom it applies – in clear contrast to legal professional privilege which can be waived (directly or indirectly) by the person who would ordinarily benefit from its protection. The practical aspect of this is that a party cannot enter into without prejudice negotiations and then later seek to adduce its own document or statement in Court without seeking the other party's consent – something to bear in mind when deciding whether or not to seek the privilege over the document in the first place. This is a decision to be made carefully as the misuse of the 'Without Prejudice' label can lead to complication, unnecessary and costly legal arguments, not to mention potentially negative cost implications for parties who bandy the term liberally without due consideration for its proper application. Basis and Rationale The purpose of the privilege, as set out by the High Court in Field v Commissioner for Railways for New South Wales3, is to "encourage compromises by sparing the parties the embarrassment which might be caused to them if the negotiations fail and later their communications are liable to be put in evidence". The rule therefore enables candid communication by the parties in the course of settlement negotiations, without the spectre of things said during those negotiations being used against them. The 'without prejudice' rule is founded firstly in public policy – being to encourage parties to settle the dispute without recourse to the court in circumstances where they can exchange positions frankly without fear that things said may be used against them. Secondly, it is founded on the express or implied agreement of the parties4 that their communications between themselves should not be admissible in evidence if those communications do not lead to a settlement5. The twofold basis for the rule was summarised in the recent WA District Court matter of Patterson v Gunbower (WA) Pty Ltd as Trustee For The Eynon Trust6 as follows: Communications marked 'Without Prejudice' are privileged communications. Both as a matter of contract and public policy the contents cannot be divulged in proceedings without the consent of both parties. The public policy aspect rests on encouraging parties to settle their disputes without resort to litigation: the contractual part rests on an implied agreement from the marking of a letter 'Without Prejudice' that it shall not be referred to at all (Cutts v Head [1984] Ch 290, 306–307).

Once the trial of the issues in the action is at an end and the matter of costs comes to be argued, the rule on public policy has no further application and the inadmissibility of the communication then rests upon the expressed or implied agreement of the parties – which may of course be modified by a reservation as to the question of costs7 as will be discussed later. Accordingly, whilst public policy underpins the rationale for the rule, contract gives it legal effect. Admissions against Interest The rationale for the 'without prejudice' privilege is that parties can explore settlement of their disputes, and make admissions in the course of those discussions, knowing that if their negotiations break down, any admissions they have made may not be used against them later should the matter not settle. That is, parties can make admissions against their own interest in attempting to settle the matter – which is otherwise the best evidence of the truth – knowing that these may not be allowed to be proved subsequently against them. In essence, therefore, the rule is a subbranch of the hearsay rule because the privilege operates as an exception to the general rule on admissions that the statement of a party is always admissible to prove any fact which is thereby asserted8. Evidence Act In most jurisdictions, the common law privilege is supplemented by legislation under the banner of enabling certain evidence to be excluded in the public interest. For example, in New South Wales, the Australian Capital Territory and the Federal courts, section 131(1) of the Evidence Act 1995 (NSW and Cth) provides: Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute In Reynolds v JP Morgan Administrative Services Australia Ltd (No 2)9, the proceeding before Rares J had settled by agreement. In that case, his Honour had the benefit of evidence about the terms of settlement, which included confidentiality clauses. He made the following observations on the significance

31


of the public interest aspect behind the rule and the interface with the Evidence Act, at [30]: There is a very significant public interest in the settlement of litigation. This is reflected in the existence at common law of the privilege that attaches to without prejudice communications for the purpose of negotiating for a settlement of a dispute. In addition, that privilege is also reflected in s131 of the Evidence Act 1995 (Cth) which excludes such communications from being admissible except in certain limited circumstances. In the circumstances of this matter, if Fairfax were to be granted access to the Form 167 then the parties, and in particular JP Morgan, would lose the benefit of the confidentiality and non-disclosure provisions of their settlement. Other Statutory Prohibitions on Admissibility The matter of Harrington v Lowe10 demonstrates the strength of the privilege, in the context of legislative provisions which purported to abrogate it. There the issue was whether the primary judge was prevented by O 24 r 1(8) and (9) of the Family Court Rules from admitting, in an application under s79A(1) Family Law Act 1975 (Cth), evidence of statements made during the compulsory registrar's conference, where the effect of the sub-rules was to forbid the admission of evidence establishing the central facts in issue. The Court held that whilst the person enjoying the benefit of the privilege may waive it, those sub rules denied in absolute terms, the admission into evidence of anything said or any admission made in the course of a particular conference. Accordingly, the exclusion of evidence purported to be achieved by the sub rules extended beyond the law of evidentiary privilege in respect of 'without prejudice' communications and to that extent at least the sub rules were held to be invalid. Substance over Form Are the mere words: 'without prejudice' enough to guarantee the privilege? The answer is no. The following much-cited statement by his Honour Justice Wells in Davies v Nyland11 particularly captures the misconceptions arising around the rule: [I]n some quarters of the community there is a belief, amounting almost to a superstitious obsession, that the expression 'without prejudice' is possessed of virtually magical qualities, and that anything done 32 | BRIEF FEBRUARY 2017

or said under its supposed aegis is everlastingly hidden from the prying eyes of a Court. In order for a communication to be 'without prejudice' (written or oral) depends upon the parties' intentions which is ascertained from the nature of the communications. The determinative feature in establishing that intention is not the wording per se, but that the communication must have been made within the context of genuine settlement negotiations. Hence the surrounding circumstances may become definitive on whether the privilege applies in a given situation. In Seven Network Ltd v News Ltd12 Tamberlin J held in this regard that: it is well settled that simply to label a document as being 'prepared for legal advice' or as 'privileged' or as being 'without prejudice' is of itself insufficient to justify the privilege. The Court will look to the substance of the matter, having regard to the content, context and evidence as well as the form of the document. It is therefore not a label which in and of itself will guarantee immunity of a statement made in a communication, from its normal legal consequences where there is no genuine dispute or negotiation13.

the ground that the Adjudicator had exceeded the jurisdiction conferred upon him by the Act. The Adjudicator had taken the view that a letter from Samsung provided evidence of an express direction by Samsung to LORAC to perform the Subcontract Works expeditiously. Relevantly, he further considered that the only portion of the communication protected by the privilege attaching to 'without prejudice' communications was the portion concerning the quantification of LORAC's entitlement to payment for acceleration. The court of Appeal found that such a view of the evidence was open to the Adjudicator. Accordingly, this is a useful reminder to practitioners that the 'without prejudice' privilege can be held to apply to part of a document only, rather than the whole communication, and that care must be taken in the drafting thereof. Typically, errors occur in the use of 'without prejudice' on the following communications, which will accordingly not be privileged and will be admissible in Court at a later date: •

Letters which merely assert rights and seek to reserve those rights, do not attract the privilege.

General commercial correspondence which is not made within the context of being a genuine negotiation for the purpose of settling the dispute. Such correspondence does not become confidential by cloaking it with the words 'without prejudice' for the purpose of attracting the privilege.

Letters of Demand do not attract the privilege unless the letter purports to discount the debt, or to make some form of concession to the other party – in which case it becomes a letter of offer and should be marked 'without prejudice'.

General correspondence whereby the terms of a contract between the parties is being negotiated, even if such correspondence represents various compromises made by the parties – the reason being that there is no litigation or dispute contemplated.

Some Practical Considerations Note that in order to be truly in connection with the negotiation of a settlement, the communication must have the character of an attempt to negotiate a settlement. It cannot instead be a statement – even in response to a letter or series of letters of offer – which does nothing other than to provide the author's analysis or view of the proceedings between the parties, or for that matter simply advances the author's claims regarding the likely outcome of the proceedings: see Collins Thomson v Clayton14 where the court rejected such communication as being capable of attracting the privilege. Bear in mind also that part of a larger document may be for the purposes of negotiation of a genuine settlement. However, other parts of the document may be held to be sufficiently removed from that negotiation for it to be capable of being adduced in evidence. This was particularly demonstrated in the recent WA Court of Appeal judgment in Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation,15 which concerned an appeal against the decision of the judge at first instance to set aside various determinations on

However, while the words in themselves do not have any magic, similarly their absence may not necessarily be determinative as the converse can equally apply in appropriate circumstances. This is so because of the principle that, even where the words 'without prejudice' are not expressly used, the privilege will attach to communications which are made in the course of genuine negotiations with an intent to compromise an existing dispute.


This is particularly demonstrated in the recent matter of Calvo v Ellimark Pty Ltd16, which concerned the construction of a Deed which entitled but did not oblige a shareholder to acquire a parcel of shares at a price determined by a valuation. The shareholder was obliged to give written notice if it did not want to purchase the shares and a dispute arose over whether the valuation was valid in circumstances where there was an exchange of offers at different prices to transfer the shares. The Court of Appeal held that there are many occasions where it is not necessary for the parties wishing to negotiate to ensure that their communications are without prejudice to existing contractual rights. However, where the parties' rights were in any way uncertain, the court held that it was essential for it to be made clear – in that case that a written offer to buy the shares at a lesser price did not amount to written notice that the party did not want to buy the shares at that price per se. His Honour, Leeming JA said in this regard17: [I]t is of course ordinarily open to the parties to agree to such a course (by making offers without prejudice to their contractual rights…. It will usually be wise for such an agreement to be written, or at the least, express, in order to avoid later disputes. There was no suggestion in the evidence of any express agreement to that effect; as it was put in oral submissions, "nobody uttered the magic words without prejudice". I see no reason for an agreement to be implied. The evidence records the parties negotiating irrespective of, and inconsistently with, their rights as provided by the 2009 Deed. There is a vital distinction between the ordinary negotiations between vendor and purchaser as to the price of a consensual sale, and the situation when a person has a right to acquire by compulsion at a particular price. It is therefore advisable to preface relevant correspondence or other forms of communication with the expression 'without prejudice' to put the matter beyond doubt – subject to the comments above regarding substance over form. Conversely, from a practical perspective it is equally important to bear in mind when negotiating with another party to a dispute where legal proceedings or alternative dispute resolution are underway or anticipated, and a party wants to be able later to rely on their particular communication if the matter proceeds to Court, to clearly reference the communication as being an "Open Communication". Failing which it may

likely attract the privilege under the common law, or the Evidence Act, as the case may be. And it is equally vital to remember that should comments made in 'without prejudice' negotiations or communications lose their confidentiality for whatever reason, including by implicit or explicit waiver, a court will be able to take them into account18, for example in determining costs – which will be dealt with in more detail below. Accordingly, care must be taken, for example, to extend the privilege to a chain of communication for example particularly in emails and subsequent replies. If the privilege is held to apply to the first communication, all the subsequent communications will also be covered even if the parties do not repeat the words, but only if the exchanges similarly form part of the same negotiations. If, on the other hand, the chain is broken in a way which makes it clear that the communications are open, the privilege will cease from the point of the break. It is further worth noting under the heading of 'substance over form' that a mere reference to settlement negotiations does not of itself attract the privilege. While the common law privilege applies only to "admissions" by words or conduct, on the other hand, under section 131(1) of the Evidence Act (as set out above), the adducing of evidence of any communication "in connection with" an attempt to negotiate a settlement of the dispute is prevented, with the words "in connection with" clearly being capable of extending wider than the common law. However, in the context of section 131(1), it was held in CJ Redman Constructions Pty Ltd v Tarnap Pty Ltd19 that the words "in connection with" nonetheless require a sufficient nexus between the correspondence and an attempt to negotiate a genuine settlement of a dispute. Thus a document that merely refers to settlement negotiations per se is not protected from being adduced, simply because it is "in connection with". So too it was held in GPI Leisure Corporation (in Liq) v Yuill20 that if a communication merely suggests some practical way in which a dispute could be dealt with, but left open the possibility of actual negotiations then it was not close enough to an attempt to settle the dispute in order to attract the privilege afforded – in that case by the Evidence Act. Finally, practitioners should be particularly mindful when drafting affidavits, not to refer to 'without prejudice' communications in the body of the affidavit, as the paragraphs

containing such references may very likely be held to be inadmissible as being secondary evidence of the contents of a document referring to such privileged communications21. Third Parties and Subsequent Litigation As seen so far, the 'without prejudice' privilege prevents admission into evidence of settlement negotiations between parties themselves, when litigation between them is in contemplation. However, the privilege also extends to protect without prejudice communications between parties to litigation from production to other parties in the same litigation. The following oft quoted passage of Lord Griffiths in Rush & Tompkins Ltd v Greater London Council22, provides the rationale of the privilege extending to other parties in the litigation: I have come to the conclusion that the wiser course is to protect 'without prejudice' communications between parties to litigation from production to other parties in the same litigation. In multi-party litigation it is not an infrequent experience that one party takes up an unreasonably intransigent attitude that makes it extremely difficult to settle with him. In such circumstances it would, I think, place a serious fetter on negotiations between other parties if they knew that everything that passed between them would ultimately have to be revealed to the one obdurate litigant. What would in fact happen would be that nothing would be put on paper but this is in itself a recipe for disaster in difficult negotiations which are far better spelt out with precision in writing… In my view the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties. As for production in subsequent litigation, in the recent NSW Supreme Court decision of Dowling v Ultraceuticals Pty Ltd23 the issue arose as to whether the 'without prejudice' privilege nevertheless applied to Ultraceuticals who was a third party, involved in different litigation. Citing the above passage with approval, his Honour, Hammerschlag J held that it is now clear that the privilege extends to cover disclosure to third parties in subsequent disputes provided there is sufficient connection between the subject matter of the original dispute and the later. In Yokogawa Australia Pty Ltd v Alstom 33


Power Ltd24 the Full Court of the SA Supreme Court undertook a detailed analysis of the development of the doctrine. There it was necessary to consider, in a subsequent dispute between the head-contractor and a subcontractor, whether or not the privilege extended to documents generated when a series of claims were settled between an owner and the head contractor, in earlier proceedings. Was the privilege therefore only able to be invoked as between the parties to the current negotiations? Having reviewed the Australian authorities which discussed Lord Griffiths' approach, Duggan J held that the privilege will be available to prevent the third party from gaining access to the earlier discussions, as long as the litigation between the relevant parties was connected with the same subject matter. It is therefore clear from the authorities that the 'without prejudice' privilege protects negotiations and communications made for the purpose of trying to settle proceedings, from being admissible in evidence also in subsequent proceedings25 and it is now clear that the privilege extends to cover disclosure to third parties in a subsequent dispute. This is so, provided there is a sufficient connection between the subject matter of the original dispute and the later one. Whilst there must be caution against too great an extension of the privilege, given that it could potentially be a cloak for dishonesty, the rationale for the policy underlying the extension of the privilege in this way was summarised by the Queensland Court of Appeal as follows26: the privilege "affects not only the party who received the communication but also any other party" to subsequent litigation...The policy that underpins the privilege is not served only where access is sought by another party to pending litigation in which the negotiators happen to be parties. To restrict its reach to parties to litigation would be to render the privilege capricious in operation. Its availability would then depend upon such inconsequential variables as whether proceedings were already on foot and the identity of the particular parties who had been joined when the negotiations took place. What constitutes sufficient connection between the subject matter of the original dispute and the later one has been articulated in different and not always consistent ways throughout the case law. But ultimately it comes down to an assessment whether the party resisting 34 | BRIEF FEBRUARY 2017

disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute. And each case will turn on its own particular circumstances27.

Exceptions What then are the circumstances in which the privilege can be lost? These are best viewed in light of the various exceptions to the applicability of the privilege as the rule is not absolute, given there are a number of occasions on which the rule does not prevent the admission into evidence of what one or both parties said or wrote in the course of without prejudice negotiations. Waiver Starting with the most obvious, the privilege can of course be lost by waiver â&#x20AC;&#x201C; see above regarding mutual consent. That is, the right to have excluded any evidence of settlement negotiations will not apply if the parties have agreed amongst themselves to waive this right. This principle is codified and expanded upon in sections 131(2) (a) to (c) of the Evidence Act (Cth). In particular, care must be taken particularly under subsection (2)(c) given that pursuant to its terms, if the substance of the evidence has been partly disclosed with the implied or express consent of the parties, it may still necessitate the full disclosure of the evidence if such is reasonably necessary to aid an understanding of the other evidence already adduced. Evidence that an Agreement has been made When the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible. That is, at common law, communications may be admitted proving a settlement agreement was indeed reached and establishing the terms of that settlement, despite the privilege28. Similarly, under s131(2)(f) of the Evidence Act (Cth), the privilege will not apply if the proceeding in which it is sought to adduce the without prejudice communication is to enforce an agreement between the persons in dispute to settle the dispute, or in which the making of such an agreement is in issue. Going hand in hand with this exception is that it is clear that a party to without prejudice negotiations can rely upon anything said in the course of them in order to show that a settlement

agreement should be rectified29. It follows that no sensible line can be drawn between admitting without prejudice communications in order to resolve the issue of whether they have resulted in a concluded compromise agreement and admitting them in order to resolve what the agreement was, because any evidence received to determine whether an agreement has been reached should also be available to aid the construction thereof. Strictly speaking proof of an agreement or rectification thereof, are not so much exceptions to the privilege, as rather standing outside the rationale of the rule altogether from the perspective of the policy which the rule promotes. Evidence of the negotiations is also admissible to show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence, and evidence can also be admitted of misleading or deceptive conduct that occurred in the context of settlement negotiations. The application of this exception was illustrated in Pihiga Pty Ltd v Roche30, which concerned a settlement deed executed by the parties with the applicants seeking an order declaring the deed to be void ab initio and an order setting aside or rescinding the deed in circumstances where misleading and deceptive conduct was alleged. In the judgment of Lander J, and having considered the various authorities at length, he said at [97]: In my opinion, the common law without prejudice rule does not prevent the applicants from adducing the evidence referred to in the notice of motion in circumstances where the applicants claim that a concluded compromise agreement has been reached in circumstances where they were misled. With regard to this exception, in Harrington v Lowe31 the High Court said in general, and specifically of a particular without privilege communication: That privilege is concerned with the admissibility of evidence at trial after the failure of negotiations and even then does not provide a legal norm which is absolute in nature. Thus, in a proceeding in which the ordinary rules of evidence apply, 'without prejudice' material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement. So also where what is in issue is the entry into the impugned agreement as a consequence of


engagement in misleading and deceptive conduct by another party. Furthermore, the privilege relating to without prejudice communications cannot be relied upon if to do so would mislead the court32 and this is mirrored in s131(2) (g) of the Evidence Act (Cth), whereby the privilege will not apply if evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence. Estoppel Under s131(2)(i) of the Evidence Act (Cth), the privilege will not apply if making the communication, or preparing the document, affects a right of a person, and at common law, even if there is no concluded compromise, a clear statement which is made by one party to negotiations, and on which the other party is intended to act and does in fact act, may be admissible as giving rise to an estoppel. Perjury/Blackmail/Abuse of process Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other "unambiguous impropriety"33 but the exception should be applied only in the clearest cases of abuse of a privileged occasion. How the court deals with evidence alleged to be an abuse of process but otherwise being evidence of without prejudice settlement negotiations, was considered in the matter of Re Mulsanne Resources Pty Ltd34. Similarly, under s131(2)(k) of the Evidence Act (Cth), the privilege will not apply if there has been a deliberate abuse of a process in the making of the communication. Likewise, where the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, s131(2)(j) will prevent the privilege from applying.

they were so made, occasionally fuller evidence may be required for the court to fully understand the delay35 and the negotiations may become relevant in explaining the delay36. Similarly, the fact that a written offer of settlement was made and when may be taken into account, in cases of laches, albeit that the contents of the offer and surrounding circumstances will remain excluded37. Matrimonial cases In matrimonial cases a distinct privilege has developed extending to communications received in confidence with a view to matrimonial conciliation. In particular, negotiations undertaken between spouses in an effort to achieve reconciliation or to reach an agreement regarding financial arrangements for the future are taken to be 'without prejudice' negotiations whether or not the spouses are parties to a subsisting matrimonial cause or contemplating such proceedings. Thus, in Rodgers v Rodgers38, it was said in the joint judgment in this regard: That husband and wife who are parties to a subsisting cause in the Matrimonial Causes jurisdiction, or, who contemplate such proceedings, should be able to negotiate with a view to reconciliation or as to what financial provision should be made for one party freely and without fear that, failing agreement, what is said or done by them may later be used in evidence is, in our view, not open to question.

Costs Common Law At common law 'without prejudice' communications may not be relied upon with regard to the issue of costs in the proceedings, unless there has expressly been a carve-out made in the communication in this regard that, if rejected, it will be drawn to the attention of the court on the question of costs, so as to permit this.

Delay/Acquiescence/Laches

In such a case, in determining the incidence of costs, the court may have regard to the offer and may award costs in favour of the party making the offer from the date upon which it ought reasonably to have been accepted.

Evidence of privileged communications made during negotiations may be given in order to explain delay or apparent acquiescence, for example in strike-out proceedings for want of prosecution or lack of diligence. Whilst this exception will ordinarily be limited to the fact that communications were made and when

The exception for an offer expressly made "without prejudice except as to costs" was clearly recognised in Cutts v Head39, and by the House of Lords in Rush & Tompkins40, as a development of the common law over time, and as being based on an express or implied agreement between the parties. A

practice accordingly developed of making offers "without prejudice save as to costs" originally where there was no formal offer under the rules of the particular court or any ability to make payments into court in claims other than money claims. This became known as making a Calderbank offer41. Calderbank offers The Australian authorities are in line with these decisions: See Messiter v Hutchinson42 and AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd43, two earlier Australian cases applying Cutts v Head. In AMEV, his Honour, referring to Cutts v Head said44: According to those cases, if a letter is written without prejudice, making an offer of settlement, but asserting that the party making the offer will seek to rely on the letter on the question of costs, then that letter may be admitted on the question of costs. A Calderbank offer only becomes relevant where the terms of the offer are more favourable to the successful party than the judgment achieved. Furthermore, only if the terms of the offer are unambiguously clear and capable of being accepted, as held in Becker v Queensland Investment Corp (No 2)45, the court may, on the question of costs, have regard to such an offer. Typically, the order would be that the unsuccessful party pays the costs up until the date of the offer, and costs incurred subsequently be paid by the other party – that is, any additional costs incurred after the rejection of a more favourable offer than achieved at judgment, can be ordered against the successful party. It is not necessary to foreshadow an application for indemnity costs because a reference to the case of Calderbank ordinarily signals that expectation without need for an express reference46. The respective Court of Appeal decisions in Kemp v Ryan47 and Vieira v O'Shea48 both emphasise the importance of ensuring that a Calderbank letter is correctly drafted and a number of requirements for such an offer to be valid, can be gleaned from the case law. While this would be a topic in itself, briefly, in considering a Calderbank offer when exercising its discretion as to costs, a court will consider: •

whether the terms of the offer are precise and certain – if the terms are ambiguous and confusing or otherwise unclear, they will not meet the requirements of a valid offer;

whether the offer represents a genuine offer of compromise – which 35


may include a walk-away offer if genuinely made; •

• •

whether the offer indicates the author's intention to bring it to the Court's attention on the question of costs, should it be rejected – this is usually done by a statement that it is made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333; whether the period for acceptance of the offer was clearly stated; and whether there is some explanation as to why the offer should be accepted and why the rejection thereof would be unreasonable in the circumstances.

Evidence Act Under s131(2)(h) of the Evidence Act (Cth), the privilege will not apply if the communication or document is relevant to determining liability for costs. Thus a court may be entitled to make an adverse costs order against that party such as an indemnity costs order, if a party has refused a reasonable settlement. In order to ascertain the reasonableness or otherwise of rejecting the offer, the relevant 'without prejudice' communication may become admissible to this effect. Accordingly, in circumstances where the Evidence Act applies, whilst it is usual where a party intends to use a settlement offer in a costs application, to mark it "without prejudice 'save as to costs'", the additional notation is strictly superfluous, given the provision of the Evidence Act.49 Care should nonetheless be taken to insert the words, as there will be situations where for example a Tribunal is not bound by the rules of evidence and may not admit the evidence of a settlement offer on the question of costs if it excluded the words "save as to costs".50 Two limbs to s131(2)(h): In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3)51, Goldberg J concluded that the policy underlying s131 was firstly to lay down a statutory basis for excluding evidence of communications relating to attempts to settle disputes, and secondly, to provide specific exceptions to such exclusion. He held specifically insofar as in s131(2)(h) was concerned, that: Although a consensual arrangement or agreement underlies the basis or part of the basis upon which 'without prejudice' communications

36 | BRIEF FEBRUARY 2017

are protected from admissibility, that consensual aspect does not determine the issue of relevance for the purposes of s131(2)(h) of the Evidence Act. The relevance there provided for is to be judged and determined by reference to legal principle rather than the decision of the parties. There have accordingly been a number of cases where s131(2)(h) has operated to permit the reception of settlement offers. In Bruinsma v Menczer52, the court admitted evidence in the form of an offer of compromise made under the Supreme Court Rules, and which was not expressed to be 'without prejudice'. Similarly, In Marks v GIO Australia Holdings Ltd (No 2)53, the court admitted 'without prejudice' correspondence between the solicitors, exchanged to explore the prospects of settlement of the matter. In Silver Fox Co Pty Ltd v Lenard's Pty Ltd54, the Court had to consider whether evidence of what occurred at a mediation should be admitted under s131(2)(h) in an argument on a costs application. It was held that while s131(1) gave effect to the public interest that negotiations (whether private or by mediation) should not be inhibited by the risk of such negotiations influencing the outcome on those primary issues, it was equally in the public interest that negotiations should be conducted genuinely and realistically. The effect of s131(2)(h) was held to be:

NOTES 1.

ASIC v Rich [2004] NSWSC 1089 at [2]; Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386.

2.

[2007] FCAFC 88 at [18].

3.

(1957) 99 CLR 285 at 291; Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 at 1300.

4.

Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436, per Robert Walker LJ at 2448–49.

5.

Pihiga Pty Ltd v Roche [2011] FCA 240.

6.

[2016] WADC 90 at [15].

7.

Nouvelle Homes (t/as Wilson & Hart) v Hatch [2009] WASC 63.

8.

Betfair Pty Ltd v Racing NSW (No 7) (2009) 181 FCR 66; 260 ALR 538 – Jagot J refers to the relevant Australian authorities.

9.

[2011] FCA 489; 193 FCR 507.

10.

(1996) 190 CLR 311 at 323.

11.

(1975) 10 SASR 76 at 89.

12.

[2005] FCA 142 at [5]–[6].

13.

Unilever Plc -v- Proctor & Gamble Co [2001] 1 All ER 783.

14.

[2002] NSWSC 366.

15.

[2016] WASCA 130.

16.

[2016] NSWCA 136.

17.

at [80-[81].

18.

See the English High Court decision in Hall and another v Pertemps Group Ltd and another [2005] All ER (D) 15(Nov) regarding the privilege cloaking all communications made during mediations and other negotiations unless confidentiality is waived or exceptional circumstances arise.

19.

[2006] NSWSC 173.

20.

(1987) 42 NSWLR 225 at 227.

21.

Capricorn Society Ltd v Lucisano [2016] WADC 107 at [19].

22.

[1989] AC 1280 at 1305.

23.

[2016] NSWSC 386 at [25] - [28].

24.

[2009] SASC 377; (2009) 262 ALR 738.

25.

Bailey v Beagle [2001] FCA 185 per Goldberg J at [15].

26.

Mercantile Mutual Custodians v Village/Nine Network Restaurants [1999] QCA 276 per Byrne J at [35].

27.

Dowling v Ultraceuticals Pty Ltd at [35].

28.

Unilever plc v Procter & Gamble Co 1 WLR 2436 per Lord Justice Robert Walker at 2444–45.

29.

Ofulue v Bossert [2009] 1 AC 990 [2009] 3 All ER 93.

30.

[2011] FCA 240.

to expose that issue [genuine negotiations] to inspection when costs issues only are to be resolved. There is no apparent public interest in permitting a party to avoid such exposure by imposing terms upon the communication, whether by the use of the expression 'without prejudice' or by a mediation agreement.

31.

(1996) 190 CLR 311.

32.

Apotex Pty Ltd v Les Laboratories Servier (No 5) (2011) 199 FCR 62; 284 ALR 568; [2011] FCA 1282.

33.

Unilever plc v Procter & Gamble Co1 WLR 2436 at 2444–45.

Accordingly, the terms of a mediation agreement (insofar as it related to offers to settle) could be adduced in determining liability for costs – notwithstanding what the parties agreed – particularly where no specific additional prejudice is relied on by a party55.

34.

[2013] NSWSC 358.

35.

Unilever plc v Procter & Gamble Co1 WLR 2436 at 2444–45.

36.

Apotex Pty Ltd v Les Laboratoires Servier (No 5) (2011) 199 FCR 62; 284 ALR 568; [2011] FCA 1282 per Flick J.

37.

Hoefler v Tomlinson (1995) 60 FCR 452; (1995) 133 ALR 625.

38.

(1964) 114 CLR 608 at 614.

39.

(1984) CH 290.

40.

Rush & Tompkins Ltd v Greater London Council [1989] AC 1280.

41.

Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333; [1975] 3 WLR 586.

42.

(1987) 10 NSWLR 525.

43.

(1988) 13 NSWLR 486.

44.

Per Hodgson J at 487.

45.

[2009] ACTSC 147.

Conclusion

46.

Vizovitis v Ryan (No 2) [2014] ACTSC 301.

47.

[2012] ACTCA 12.

It can be seen from this paper that without prejudice communications are important in the facilitation and resolution of disputes. However, what constitutes the 'without prejudice' privilege and how to apply it, are not always clear, with there being many pitfalls for practitioners to be mindful of in relying on the privilege in practice.

48.

(No. 2) [2012] NSWCA 121.

49.

Statue Pty Ltd v Hayson [2014] NSWSC 1558.

50.

Resul v Fantastic Lights [2015] FWC 624.

51.

[2002] FCA 1294 at [16].

52.

(1995) 40 NSWLR 716.

53.

(1996) 66 FCR 128.

54.

(No 3) (2004) 214 ALR 621.

55.

Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Limited (No 3); the Hills Shire Council v Ko-Veda Holiday Park Estate Limited (No 2) [2010] NSWLEC 238.


Case Note

Joint Criminal Enterprise A Judicial Muddle

What is a joint criminal enterprise? At common law, where a person is present at the scene of a crime by prearrangement or agreement to commit a crime that person may be liable as a principal offender for the acts of others in the same enterprise. Under the Western Australian Criminal Code s 7, a person is deemed to have taken part in committing the offence if they: (a) do the act or omission that constitutes the offence (b) do an act to enable or aid another person to commit the offence (c) aids another in committing the offence

The Hon John McKechnie QC

By the Hon John McKechnie QC Corruption and Crime Commissioner Co-author Criminal Law in Queensland and Western Australia

Joint criminal enterprise is a common law device to attribute criminal responsibility to those who participate in an offence. Its application to a criminal code is controversial. In two recent cases, decided within weeks of each other, differently constituted Courts of Appeal in Western Australia have reached opposite conclusions, causing confusion for trial judges and counsel. A rationale for the establishment of the Court of Appeal was to promote certainty in the law. Now, probably the only resolution can be with a specially convened bench of five judges although a case which squarely raises the issue may be a long time coming. In the meantime trial judges will have to choose which inconsistent Court of Appeal decision to follow.

(d) counsels or procures another to commit the offence The issue is simply stated: is the concept of joint criminal enterprise part of Code s 7? The approach to constructing the words of a code in Brennan1 is now generally preferred to the palimpsest approach to the code "with the old writing still discernible behind"2, though judicial palimpsest apologists remain.

The divergent approaches The simply stated question is apparently difficult to answer as two eminent Courts of Appeal have fundamentally disagreed. (1) L v SOWA [2016] WASCA 101. The appellants L and D were charged with possession of a quantity of crystal methamphetamine allegedly hidden about the home. Drug paraphernalia was allegedly also found. The trial judge directed that the appellants could be convicted if the jury was satisfied that they participated in a joint criminal enterprise and one of them was in possession of the methamphetamine. The trial judge identified the criminal enterprise as dealing in drugs generally. The Court of Appeal [Martin CJ, Mazza JA, Mitchell J] unanimously quashed the convictions and ordered a retrial.

be determined only by reference to the Code ss 7-9. The Court held that ss 7-9 do not refer to 'joint criminal enterprise' or define criminal responsibility by reference to entry into an understanding or arrangement to commit a crime. Having stated the obvious, the Court referred to the evidentiary significance of a joint criminal enterprise as to whether an inference could be drawn that a person aided, counselled or procured the commission of an offence. Clearly evidence­of a joint criminal enterprise might help inform a jury as to the actions and intentions of a person and whether they fit within ss 7-9. This is different from using a joint criminal enterprise as the basis of criminal responsibility. In essence the court concluded that as joint criminal enterprise is not mentioned in the Code ss 7-9 it has no application. The Court noted that in construing the statute it is of fundamental importance to give primacy to the statutory text [52].

Same approach: different answer In commencing her analysis in reaching the opposite conclusion McLure P said the starting point is always the statutory text, context and purpose. (2) Campbell v SOWA [2016] WASCA 156 Campbell was argued eight days after the decision in L. The issue was whether the trial judge should have ordered a separate trial for a co-accused facing an indictment for murder. It is not immediately apparent why there is such emphasis in the judgments on joint criminal enterprise, given the interlocutory nature of the appeal which was asserting only that the judicial discretion miscarried. The appeal was dismissed, essentially because no error was shown in the trial judge's exercise of discretion. That conclusion could have been reached without reference to joint criminal enterprise.

Clear enough one would think.

In fact a challenge to the State's reliance on joint criminal enterprise was not a ground of appeal. Nor did the parties make submissions on it according to Buss JA. The appellant accepted as a matter of law that the State could allege a joint criminal enterprise and so there was no contradictor to assist the Court in argument.

After discussing some common law authorities on joint criminal enterprise the Court summarily dismissed them as irrelevant. Criminal responsibility had to

The Court's attention seems to have focused on joint criminal enterprise because the State's case for trial was that the appellant and co-accused were

â&#x20AC;Śthe appellants' criminal responsibility is to be determined by reference to s 7 to s 9 of the Criminal Code (WA) which do not incorporate the common law doctrine and not otherwise [5].

37


engaged in a joint criminal enterprise to kill the deceased (or do him a life endangering injury) or that they had a common unlawful purpose under Code s 8 and murder was a probable consequence of that purpose. The Court [McLure P, Buss JA, Corboy J] delivered separate judgments, each reasoning differently. McLure P was firm in her rejection of the reasoning in L. At the end of his judgment it might be thought that Buss JA reached a result similar to L though for different reasons. Corboy J concluded that joint criminal enterprise does underpin Code s 7. McLure P in typical forthright fashion said that statements in L on the subject of joint criminal enterprise which are obiter, are misconceived [10]. It is, with respect, difficult to regard the judgment in L as obiter when the appeal was allowed because the trial judge directed the jury that joint criminal enterprise was a basis for liability. The judge had done so and the ground of appeal asserted he was wrong to do so. McLure P noted that the influence and adoption of common law principles and doctrines in the construction and application of the Code is in fact widespread. In this, McLure P reverted to the palimpsest theory of construction popularised by Windeyer J in Vallance3. In McLure P's reading of the authorities, particularly R v Wyles ex parte AttorneyGeneral4, the Code s 7(a) has always been interpreted to encompass persons acting in concert. McLure P concluded that joint criminal enterprise liability for the acts of others is a sufficient but not essential basis of liability under s 7(a) and the evidentiary rule (accepted by the Court in L) cannot be separate from the liability rule that underpins it. Buss JA noted that the State was relying on a joint criminal enterprise or alternatively unlawful common purpose under the Code s 8. Either basis would justify a joint trial. Buss JA dealt in conventional terms with the appeal against the primary judge's decision not to sever the trial. He concluded that the appeal was without merit. Then he embarked on a lengthy exegesis of joint criminal enterprise. In the circumstances the exegesis might be regarded as obiter dicta. Buss JA set out extensive authorities on the evolution of joint criminal enterprise, all from non-code jurisdictions. He noted that recently the High Court in Miller5 declined to follow the Supreme Court (UK) in R v Jogee.6 Buss JA then turned his attention to the Code. After citing the usual authorities on interpreting a code including Brennan and

38 | BRIEF FEBRUARY 2017

Stuart7, he noted that parties to an offence are specified in the Code ss 7, 8, 9, 10. Buss JA focused on s 7 noting [110]: Where two or more persons, acting together, each perform different acts or make different omissions with none of them performing all of the acts or making all of the omissions, but the acts performed or omissions made in combination constitute the offence, each of them is deemed by s 7(a) to have committed the offence. That, with respect, is plainly right but does not require resort to joint criminal enterprise to make good the proposition. Buss JA analysed a series of cases on Code s 7 from Queensland and Western Australia, noting the importance in some cases of a pre-existing plan. When dealing with Code s 8 Buss JA noted that the Code s 8 operates differently from and in addition to Code s 7. This is correct. The Code s 8 extends criminal liability in certain circumstances beyond what was contemplated by the parties as a common unlawful purpose to the objectively probable consequences of that purpose. One reason for the development of joint criminal enterprise is that the common law lacked an equivalent to Code s 8. Buss JA conducted an extensive review of cases from Queensland and Western Australia where the words 'joint criminal enterprise' are not used. Rather, criminal responsibility is determined by application of s 7(a)-(c), as illustrated for instance by R v Warren and Ireland.8 Buss JA quoted McPherson JA in R v Sherrington9 at 11: For my part, I would prefer to avoid imparting into the Code words that do not appear there. Incorporating the expression 'in concert' in [s 7(a)] involves a reversion to the common law, which (unless perhaps all else fails) is considered a form of heresy. The Queensland position is stated even more clearly in R v Palmer:10 If an accused's conduct comes within the operation of any of the subsections of [the Queensland equivalent of s 7] or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of [the Queensland equivalent of s 7] or within s 8 then

she is not deemed to have committed the offence [17]. Palmer seems to have reached the same conclusion as L. Davies JA thought joint criminal enterprise might constitute counselling or procuring (s 7(d)) but even here it is not helpful to so describe itâ&#x20AC;Ś [18] Fryberg J was even more emphatic: 'joint criminal enterprise ... might occasionally be helpful as a shorthand description of a particular complex of facts, but they do not describe the law in this State' [35]. Tasmania has also rejected the doctrine of joint criminal enterprise in interpreting the Tasmanian Code: Clarke v SOT.11 Buss JA concluded [210-215]: First, the doctrine of 'joint criminal enterprise' or common purpose at common law, as one of the principles governing criminal complicity at common law, does not apply to offences (State offences) created by the laws of this State. Secondly, subject to any other law of this State which relates specifically to a particular offence, criminal responsibility for State offences is determined by s 7, s 8, s 9 and s 10 of the Code. Thirdly, the term 'joint criminal enterprise' or a similar term may be used where the prosecution alleges in relation to a State offence that there was a relevant agreement or plan, as a matter of fact, between two or more persons including the accused, but the accused will not be criminally responsible for the specific offence in question unless his or her liability as a party is established under s 7, s 8, s 9 or s 10. Fourthly, the term 'joint criminal enterprise' or a similar term may be used where the prosecution alleges in relation to a State offence that there was a relevant agreement or plan, as a matter of fact, between two or more persons including the accused, and the prosecution seeks to rely on the so-called co-conspirators rule of evidence. Fifthly, it would, however, be preferable, in my view, for the term 'agreement' or 'plan' to be used instead of the term 'joint criminal enterprise' because the term 'agreement' or 'plan' is likely to be more comprehensible to a jury. Sixthly, a critical point in relation to the use of the term 'joint criminal enterprise' or a similar term, in the circumstances I have described, is


that it is essential that the trial judge direct the jury with clarity on the nature, content and significance of the term in the context of: (a) the relevant facts and evidence; (b) the elements of the specific offence with which the accused is charged; (c) the provision or provisions of s 7, s 8, s 9 or s 10 on which the prosecution relies; and (d) if applicable, the so-called coconspirators rule of evidence. In the end, Buss JA's views may not actually differ in any material respect from the judgment in L. However Buss JA would permit the use of the words and concept of joint criminal enterprise although he would prefer other words. Quite what a trial judge should do when directing a jury is left tantalisingly ambiguous. Corboy J noted, like Buss JA that his tentative views have been formed without the benefit of detailed argument because neither party addressed the issues raised by L. Corboy J summarised [221]: The acts and statements of one party to an agreement to commit a crime or to prosecute an unlawful purpose (a joint criminal enterprise) may be attributed to the other participants in the enterprise. I shall refer to that principle as the 'attribution principle'. The criminal liability of an accused person can be established by the application of that principle. The principle does not attribute every act done by a participant in joint criminal enterprise to every other participant. Rather, the principle attributes the act or acts that constituted the offence charged – the actus reus – to all who participated in the joint criminal enterprise. Accordingly, each participant in the joint criminal enterprise is a principal in the first degree – a person who did the act or acts (a person who committed 'the fact'): Osland v R12 (McHugh J) and see Huynh v R13 (the Court) and Handlen v R14 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Criminal liability pursuant to a joint criminal enterprise arises from the making of the agreement and the offender's participation in its execution: Huynh [37]. Although, the High Court in McAuliffe v R15 did not limit the circumstances in which a joint criminal enterprise could be alleged, it has often been said that the prosecution should only rely on the allegation in circumstances where it is not possible to prove criminal

liability by the 'ordinary' principles of principal and accessory: see, for example, the comments of Hunt CJ at CL in R v Tangye.16 However, there are cases in which, at common law, it is necessary to allege a joint criminal enterprise to determine the liability of all of those who were apparently implicated in the commission of an offence. The attribution principle may make the acts and statements of one participant in a joint criminal enterprise admissible as evidence against the other participants provided that the acts and statements were done or made as part of the enterprise: Tripodi v The Queen.17 It is convenient to refer to this application of the attribution principle as the co-conspirator's rule of evidence, although the reference is a misnomer in the sense that the rule is not limited to conspiracy cases: see the comment of plurality in Handlen [4]. In Corboy J's view the concept of extended criminal enterprise formed a settled part of the common law when Griffith drafted the Code. Corboy J qualified this somewhat, 'arguably the reference to "probable consequence" may not have reflected the common law at the time that the Code was enacted'. With respect to Corboy J, it did not. The extension to criminal responsibility wrought by Code s 8 was an innovation by Sir Samuel Griffith to overcome a lacuna in attributing criminal responsibility to a party when another party's actions went beyond the agreed plan. Corboy J discussed conspiracy and especially the so-called co-conspirators rule outlined in Ahern18 and accepted by the High Court in Tripodi19 that the rule was not confined to charges of conspiracy but extended to joint criminal enterprise or common design. Corboy J concluded [304-5]: As I have emphasised, the views expressed in these reasons are tentative. However, my preliminary view is that s 7 of the Code was intended to be, and is to be, interpreted by reference to common law principles of criminal complicity. … At least two significant problems arise if s 7(a) is interpreted to exclude the application of that principle. First, there may be some cases in which it is impossible to identify and determine the criminal liability of an accused person according to the requirements of s 7 – to establish

the knowledge and intention of the accused for the purpose of s 7(b) – s 7(d). That is the problem that the common law addressed by the concept of a joint criminal enterprise. Second, it may not be possible to rely on the co-conspirators rule of evidence if it is not possible to allege that the accused were participants in a joint enterprise for the purpose of determining their criminal liability. It is to be remembered that the coconspirators rule is a rule of evidence, not an interpretation of the Code. When the conditions for admissibility are met, the words and acts of one conspirator or party may be used to infer the participation of another conspirator or party to a joint enterprise. Moreover conspiracy to commit a crime is an offence. Conspiracy charges have fallen from favour for good reason.20 However that should not shield the obvious, namely the Code expressly accommodates the concept of joint criminal enterprise within the offences of incitement and conspiracy21. That is another reason not to insert into the text of the Code s 7-9, words which are not there.

Irreconcilable decisions – What now? Even the most creative advocate will have difficulty in presenting an argument that reconciles the judgments in L and Campbell. At the heart of the conflict is a fundamental disagreement, not of criminal law but of statutory construction. To what extent is it possible to read into an enactment intended as a code, words which are not there? Judges and Lawyers will have to wait on the Court of Appeal for an answer. NOTES 1.

Brennan v R (1936) 55 CLR 253.

2.

Vallance v R (1961) 108 CLR 56.

3.

Ibid.

4.

[1977] Qd R 169.

5.

[2016] HCA 30; (2016) 384 ALR 1.

6.

[2016] 2 WLR 681.

7.

(1974) 134 CLR 426.

8.

(1987) WAR 314.

9.

[2001] QCA 105.

10.

[2005] QCA 2.

11.

[2013] TASSCA 11.

12.

[1998] HCA 75; (1998) 197 CLR 316 [75], [81].

13.

[2013] HCA 6; (2013) 87 ALJR 434 [37].

14.

[2011] HCA 51; (2011) 245 CLR 282 [4].

15.

[1995] HCA 37; (1995) 183 CLR 108.

16.

(1997) 92 A Crim R 545, 556.

17.

[1961] HCA 22; (1961) 104 CLR 1.

18.

(1988) 165 CLR 87.

19.

(1961) 104 CLR 1.

20.

Hoar v R (1981) 148 CLR 32.

21.

Code s 553; s 558.

39


2016 Young Lawyer/Law Student Mentoring Programme By Alex Noonan, Lawyer, Macdonald Rudder; Deputy Convenor, Young Lawyers Committee On Wednesday, 26 October 2016 the 2016 Law Student Mentoring Programme concluded with drinks at Halford Bar in the city. This event was jointly attended by members of the Small Firms Network, a network of young lawyers from smaller firms who catch up on a casual basis and form groups for sporting and social events. Attendees enjoyed relaxed conversation and shared stories about life as a lawyer. The Law Student Mentoring Programme, run by the Young Lawyers Committee, currently pairs junior lawyers with law students from the University of Notre Dame and Edith Cowan University, with a view to expanding the programme to

other Western Australian universities. This year 27 junior lawyers were paired with law students to share their knowledge and experience of working as a junior lawyer and to provide some insight into the legal profession, which they may not have been exposed to at law school. The 2016 programme opened with information sessions for both mentors and mentees, followed by an opportunity for young lawyers and law students to mingle and get to know each other. The programme then allows for the mentors and mentees to develop the mentoring relationship throughout the year in a way that suits them.

Not only does this programme promote collegiality between the profession and its potential future members, but it provides an opportunity for junior lawyers to develop their mentoring skills, which they will increasingly use as they become more senior practitioners. The programme benefits law students by giving them connections in the legal profession and advice on becoming a lawyer and navigating the legal market from people with relatively recent experience. The Young Lawyers Committee encourages junior lawyers to take part in this rewarding experience in 2017.

YLC Mixed Netball Competition By Sarah O'Brien-Smith Associate, Hunt & Humphry Project Lawyers; Convenor, Young Lawyers Committee

On Friday 4 November 2016, over 100 young lawyers switched their corporate attire for netball bibs and hit the courts at Matthews Netball Centre for the 2016 Young Lawyers Committee Mixed Netball Competition. The young lawyers launched into the netball games with enthusiasm to rival Sharon Strzelecki. The 12 teams fought it out in four fast-paced rounds, exchanging banter and friendly rivalry between games. After nail biting semi-finals between the top four teams, Corrs Chambers Westgarth, HopgoodGanim, the Government of Western Australia and

40 | BRIEF FEBRUARY 2017

YLC/Small Firms, the Government of Western Australia and HopgoodGanim made it through to the grand final. The grand finalists were closely matched and displayed spectacular intercepts and goal shooting but the ultimate winner was the Government of Western Australia, who proudly took home the trophy. Players enjoyed massages through the Law Society's HBF Corporate Wellness Programme and freshly made pizzas were served to replenish the calories burned on the netball court. Many thanks to the YLC volunteers and the competitors for making the event such a success.


The finality of planning approvals: when can approvals be amended or reconsidered?

By Peter Lochore Barrister, Francis Burt Chambers Planning approvals and consents are of fundamental importance to our society. Finality and certainty is important, but so is flexibility to adapt to changed circumstances. It is therefore imperative to know whether, once a decision is made, it can be amended, and if so, in what circumstances and to what extent. While conventional wisdom says that there is no power to revoke or vary a planning approval once it is made,1 there are now express powers for local governments and development assessment panels (DAPs) to amend development approvals. In this article I will review those powers and consider what potential there is to amend planning approvals.

Planning Approvals Generally The most common planning approvals are for subdivision and development. I will quickly review how these approvals are made. Subdivision approval

of some regulations for the DAPs).8 Section 252 of the Planning and Development Act 2005 (WA) (PD Act) confers jurisdiction on the SAT to review discretionary decisions under local planning schemes, including decisions to approve or refuse development.

The Western Australian Planning Commission (WAPC) considers applications for the subdivision of land and may approve (conditionally or otherwise) or refuse each application.2 If the WAPC refuses an application, an applicant may within 28 days request reconsideration.3 On receiving a notice requesting reconsideration, the WAPC may approve (conditionally or otherwise) or refuse to approve the plan of subdivision.4 The WAPC can also reconsider conditions it imposes on a subdivision approval.5 An applicant who requests a reconsideration but is dissatisfied with the outcome may apply to the State Administrative Tribunal (SAT) for a review of a decision of the WAPC.6

Powers to Amend Subdivision Approvals

Development approval

(a) The variation sought must not be one that strikes at the heart of the determination. In short, it must be one that is truly a variation in detail in order to accommodate the fundamental purpose of the decision.

While there are some developments that require approval by the WAPC,7 most are approved under local planning schemes. This means approval by local governments and DAPs. However, the approval power is essentially the same (subject only to additional requirements

The Western Australian Town Planning Appeals Tribunal in 1995 had to consider the question of whether the Tribunal, standing in the shoes of the predecessor to the WAPC, the State Planning Commission, could vary or delete some or all conditions of a subdivision approval.9 The Tribunal considered the South Australian decisions of Adelaide Pistol Club, Remove all Rubbish, and The Queen v Berri, then observed that the Planning Appeals Tribunal of South Australia stated that to grant the application to vary conditions it had to be satisfied as to two matters:10

(b) The variation must be one the need

Peter Lochore

for which arises in circumstances that have changed, by which it apprehended that the variation must relate to a situation that could not reasonably have been foreseen at the time that the consent in question was issued. The WA Tribunal applied these requirements to the decision before it.11 However, in neither case was there reference to the provisions of the Interpretation Act 1984, and how such provisions might provide legislative authority. Therefore, IÂ contend that the Supreme Court of Western Australia has not yet determined the question of whether the Interpretation Act read with the PD Act provides a power to revoke a planning decision and substitute a new decision. I consider this further in Part 2 of this article. For the present, it is worth considering the authorities quoted by RobertsSmith J in Aznavour in support of the proposition that in the absence of legislative authority a planning approval cannot be revoked or varied. 12 At first instance White J in Berri was unwilling to infer that a local government had the ability to vary a condition requiring that work commence by a particular date.13 The decision was overturned by the Full Court of the Supreme Court of South Australia. The

41


Full Court found that the power did exist, but this finding was based upon the construction of the specific provisions of the planning legislation.14 The Berri decisions therefore offer little assistance. In the Remove case the operator of a waste depot applied to a planning authority to vary a condition to its development approval so as to extend its hours of operation. The first instance judge, Jacobs J, referred to the decision of Adelaide Pistol Club Inc v Munno Para District Council,15 noting that in that case Wells J considered that the Planning Appeals Board had power to vary a condition, at least before the approved proposal had been carried into effect, if the original condition was found to be inexpedient and impeded or prevented implementation of the proposal.16 Jacobs J quoted a passage from Wells J to the effect that the Board's function could be frustrated without that power of variation.17 Jacobs J found that a planning authority imposing a condition may subsequently vary the condition provided such variation does not in any relevant sense change the use of the subject land. The Full Court of the Supreme Court of South Australia found, by majority, that there was no express or implied general power under the Planning Act 1982 (SA) for a planning authority to review or revise consent conditions imposed on a planning approval. Cox J (with whom King CJ agreed) did not exclude the possibility that some power to vary could exist for minor or uncontentious matters.18 On the facts of the case, the same majority found that the condition as to hours of operation was an integral part of the planning consent originally granted.19 Bollen J, in dissent, found that the power to grant consent subject to conditions must connote the existence of a power to vary those conditions. His Honour approved the obiter remarks of Wells J in Adelaide Pistol (supra) referring to variations necessary to accommodate the fundamental purpose of the approval decision.20 In summary, there are mixed views amongst the judges of the South Australian Supreme Court as to whether the power to grant consent subject to conditions must connote the existence of a power to vary those conditions.21 Ultimately, it is a question of statutory interpretation. It is certainly open to conclude, as the Western Australian Town Planning Appeals Tribunal did in 1995, that there is power to vary subdivision approval conditions so long as:22

42 | BRIEF FEBRUARY 2017

Planning and Development (Local Planning Schemes) Regulations 2015 (WA);23 or

(a) The variation sought does not strike at the heart of the determination. In short, it must be one that is truly a variation in detail in order to accommodate the fundamental purpose of the decision.

(1) Express provision

(b) The variation relates to a situation that could not reasonably have been foreseen at the time that the consent in question was issued.

There is no scope in this article to consider all local planning schemes. I have therefore considered two schemes by way of example.

(3) Possibly via implication.

City of South Perth

Powers to Amend Development Approvals The amendment powers should be considered by reference to the respective decision-makers, as there are amendment powers limited only to DAPs. New express powers for DAPs to amend development approvals

The City of South Perth Town Planning Scheme No. 6 includes: (1) at clause 7.9(6) a power to amend or revoke planning approval for Home Occupation or Student Housing after notice is given and certain conditions are met; and

Since 2011 an owner of land in respect of which a development approval has been granted by a DAP has been able to apply under regulation 17 of the Planning and Development (Development Assessment Panel) Regulations 2011 (WA) to make application to the DAP:

(2) at clause 7.9(7) a power to vary the conditions of the approval or extend the period of validity without the need for a new planning application to be lodged.

(a) to amend the approval so as to extend the period within which development approved must be substantially commenced;

The City of Stirling Local Planning Scheme No. 3 includes, at clause 8.3.1, a power for the Council to revoke or amend a planning approval prior to the commencement of the use or development subject of the planning approval, on application of the owner of the land. It also includes, at clause 8.3.2, a power to rescind certain approvals of home uses when certain conditions are met.

(b) to amend or delete any condition to which the approval is subject; (c) to amend any aspect of the development approved which, if amended, would not substantially change the development approved; (d) to cancel the approval. The DAP is then seized of the power to approve an application for amendment of an approval with or without conditions, or to refuse that application. Until very recently a development approval granted by a DAP could only be amended by the DAP. However, regulation 17(7) was deleted so from 1 February 2017 applicants have a choice and can elect to request the relevant local government to amend an approval granted by a DAP. Amendment powers in local planning schemes Amendment powers exist in local planning schemes by one of three mechanisms: (1) Express provision in the scheme text; (2) Provision via deemed amendments to the scheme provisions, as effected by the

City of Stirling

Express powers to amend approvals vary considerably across schemes. However, this is of less importance now since the inception of the Planning and Development (Local Planning Schemes) Regulations 2015. (2) Deemed scheme powers From 19 October 2015 all local planning schemes have now been amended by the introduction of the deemed provisions. Thus clause 77 of schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 has effect and may be enforced as part of each local planning scheme.24 This clause provides a power for local governments to amend planning approvals that is similar in scope to that given to DAPs by regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2001. Thus local governments now have powers to extend times, amend conditions, amend any aspect not substantially changing the development


this Tribunal, cannot, absent express legislative authority, alter, vary, modify, revoke, withdraw or otherwise relevantly affect planning approval when it has been formally given.

or cancelling the approval. SAT similarly gains this power as part of its review jurisdiction.25

2.

Planning and Development Act 2005 (WA), section 143.

3.

Planning and Development Act 2005 (WA), section 144(1).

4.

Planning and Development Act 2005 (WA), section 144(2).

5.

Planning and Development Act 2005 (WA), section 151.

6.

Planning and Development Act 2005 (WA), section 251(3).

7.

Generally matters the subject of a region scheme.

8.

Planning and Approval (Development Assessment Panel) Regulations 2011 (WA).

9.

State Housing Commission v State Planning Commission (1995) 14 SR (WA) 117, 125.

10.

Schmidt v City of Happy Valley [No 2] (1987) 26 APA 366.

11.

State Housing Commission v State Planning Commission (1995) 14 SR (WA) 117, 125.

12.

In Aznavour Pty Ltd v The City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173, at [38] his Honour cited The Queen v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404; Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254; 73 LGERA 258.

13.

The Queen v Berri District Council; Ex p Berri (1984) 36 SASR 404.

14.

The Queen v Berri District Council; Ex p Berri (1984) 36 SASR 404, 414 (Cox J, with whom King CJ agreed). Cox J found it unnecessary to consider the alternative argument based upon section 37 of the Acts Interpretation Act (SA) (p423). See also Legoe J at 413. Note that the decisions of White J and the Full Court are reported together.

(4) By the fresh exercise of discretion after the Supreme Court has quashed a decision and ordered that the power be re-exercised according to law.

15.

(1981) 28 SASR 186.

16.

Remove all Rubbish (1990) 55 SASR 160; 71 LGRA 333.

17.

Remove all Rubbish, ibid, quoting Adelaide Pistol Club Inc v District Council of Munno Para (1981) 45 LGRA 119; 28 SASR 186, 192-193. The quote is also referenced in District Council of Munno Para v Remove all Rubbish Co Pty Ltd (1990) 55 SASR 160.

While interesting, I will also defer for now the question of whether a planning decision-maker can re-open a decision once a judicial review of another decision has shown that the decision was made on the basis of a mistaken view of the law.

18.

Remove all Rubbish (1991) 56 SASR 254, 258-259.

19.

Remove all Rubbish (1991) 56 SASR 254.

(3) Implied scheme powers? Where a local scheme did not include an express power to amend approvals questions arose as to whether an implied power existed. The Western Australian Town Planning Appeals Tribunal (L A Stein and C F Porter) found that such a power did exist. The Tribunal's reasons are of interest, and so two paragraphs are extracted:26 The need to vary an approval or conditions, which form part of the approval, is in practical terms an important aspect of town planning. During construction, a change in circumstance could require modifications or it may be better to carry out a feature of the building with a minor modification which could have the effect of reducing the impact on adjoining residences. … The local authority and the Tribunal has [sic] a power to vary an approval in certain circumstances. That power arises from the due administration of town planning in the absence of any provision in the Act or a Scheme. However, as this power is one of administration, it only applies to modifications or variations of a minor nature which arise not because the developer has had a change of mind but rather because of changed circumstances. However, when the question was raised in the Supreme Court in 2002 in the Aznavour decisions it was assumed that, in the absence of an express power to revoke or vary a development approval, the approval is final.27 The propositions arising from the Aznavour decisions are: 1. In the absence of legislative authority a planning approval cannot be revoked or varied.28 2. There is no provision in the PD Act that allows the revocation or variation of planning approvals.29 The present position of SAT Notwithstanding that the point was assumed, and not argued, in Aznavour, SAT took its cue from the Aznavour decisions rather than from Esther (despite acknowledging that the latter's finding was 'sensible').30 Thus the SAT's present position is that: a planning authority, including

analysis by Enid Campbell in her article "Revocation and Variation of Administrative Decisions" (1996) 22 Monash University Law Review 30.

How else are Planning Approvals Amended? Planning approvals are routinely amended: (1) In the course of SAT's review jurisdiction; (2) By the original decision-maker being invited to reconsider its decision pursuant to an order under section 31 of the State Administrative Tribunal Act 2004; (3) By consent after the commencement of SAT proceedings pursuant to section 26(d) of the State Administrative Tribunal Act 2004; or

Further Amendment Powers – the unexplored impact of the Interpretation Act 1984 Finally, "it is a well-established principle of administrative law that a power can be exercised again where reconsideration of a statutory decision is open given the construction of a particular statute".31 Hence, the next statute to consider is the Interpretation Act 1984 (WA). In Part 2 of this article I will explore the potential for planning authorities to: (a) exercise 'slip rule' type powers; and (b) amend subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading. NOTES 1.

After all, planning decisions are just a species of administrative decisions. As to the position for administrative decisions generally see the detailed

20.

Remove all Rubbish (1991) 56 SASR 254 at 262.

21.

The decision of Wells J in Adelaide Pistol was also criticised by the Full Court of the Supreme Court of South Australia in Eastern Waste Management Authority Inc v Tea Tree Gully City (1996) LGERA 1 at 7-8 (Perry J, with whom Cox and Lander JJ agreed).

22.

State Housing Commission v State Planning Commission (1995) 14 SR (WA) 117, 125.

23.

Readers should keep in mind that Schedule 2 of the Local Planning Scheme regulations can amend local planning schemes through deemed amendments: see regulation 10(4) and section 257B of the PD Act. See further Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134.

24.

Planning and Development Act 2005 (WA), section 257B. See also regulations 8 and 10(4) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).

25.

Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115 at [45].

26.

Esther Investments Pty Ltd v Town of Mosman Park (1995) 15 SR (WA) 74, 82.

27.

Aznavour Pty Ltd v The City of Mandurah (2002) 128 LGERA 361, [55] (Roberts-Smith J) and Aznavour Pty Ltd v The City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173, [25] (Miller J) and [38] (Roberts-Smith J). See also Hamersley v Bartle [2013] WASC 191, [88]. It appears that Esther Investments Pty Ltd v Town of Mosman Park was not drawn to the Court's attention in either case.

28.

Aznavour v Mandurah (2002) 124 LGERA 173, [25] and [38]; Hamersley v Bartle [2013] WASC 191, [88].

29.

Aznavour v Mandurah (2002) 128 LGERA 361, [55]; Aznavour v Mandurah (2002) 124 LGERA 173, [38]; Hamersley v Bartle [2013] WASC 191, [88].

30.

Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111, [16]. The Tribunal notes at [14] the previous decisions also applying Aznavour: Bakker and City of Nedlands [2005] WASAT 106 and Price and Shire of Gingin [2008] WASAT 210.

31.

Falkiner v Director-General of Planning NSW [2002] NSWLEC 159; (2002) 125 LGERA 138, 151 [60] (Pain J, after referring to section 65 of the Interpretation Act 1987 (NSW)).

43


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

McComish v Harman [2016] WASC 324 This is a recent single judge appeal decision by Hall J which sets out the way in which intoxication is treated in the sentencing process. The appellant was a 22 year old male who had been convicted of aggravated assault occasioning bodily harm, by assaulting his father at home. The offence happened in the context of a drug affected state in which the appellant heard voices telling him his father was going to do things to his sisters of a sexual nature. There was a further offence of breach of protective bail conditions. He was sentenced to a total effective sentence of seven months' immediate imprisonment. His Honour cited numerous authorities for the proposition that intoxication is not a mitigating factor, indeed as it is treated under the code [30]. The sentencing magistrate in his sentencing remarks referred to the methylamphetamine intoxication of the offender as an aggravating factor, out of apparent frustration that offenders try to use drug use to minimise their culpability for offending [22]. Intoxication goes to the seriousness of the offence, as compared to a sober, clearminded offender. It is the offending of the sober,

clear minded person in control of their actions that is regarded as aggravated, rather than the offending of an intoxicated person [32]. Rather than a mitigating factor, intoxication suggests the absence of an aggravating factor, such as premeditation. This is, properly, how defence counsel raised the issue [30]-[32]. The involvement of illicit drugs in the offending should be considered when sentencing only as relevant to considerations of general deterrence [34]. The error of the magistrate was in placing the seriousness of the offence at a higher level than it was because of the involvement of methylamphetamine [35]. Hall J emphasised the relevance of the drug use as a causative factor in the offending which had subsequently been addressed [30]. In the personal circumstances where steps had been taken to address the underlying causative factor of the offending, coupled with otherwise good antecedents, a term of immediate imprisonment was not appropriate [40]-[41], [43]. The appellant was successful and re-sentenced to a community based order and a fine. Author: Patrick Mackenzie Supreme Court Associate

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Getting to settlement quicker and cheaper Early Neutral Assessment and Judicial Initiated Proposal By Bertus de Villiers1

Australia has played a leading role internationally to develop various forms of Alternative Dispute Resolution (ADR) in its courts and tribunals. Parties nowadays expect to be referred to some form of ADR in an attempt to resolve disputes without protracted litigation and associated costs and stress. Courts and tribunals generally report that only a relatively small percentage of disputes lodged proceed to an actual hearing. The number of disputes that do proceed to a hearing remain nevertheless substantial and the costs, delays and stress associated with litigation are significant.2 Two questions arise: are there more and better ways to assist parties to resolve a dispute without the need for a court/tribunal determination; and are there ADR mechanisms that could be more effectively pursued across the spectrum of courts and tribunals? The answer to both questions is 'yes'. This article reflects on two mechanisms that may assist with improving the likelihood of agreed outcomes, namely Early Neutral Evaluation (ENE) and Judicial Initiated Proposal (JIP). Both these mechanisms aim to assist parties to resolve a dispute as quickly and cheaply as possible by way of agreement, rather than by a determination. ENE, in essence, requires that the court/tribunal makes available to the parties a non­binding assessment by an expert of the potential merit of their dispute and likely outcome, should the dispute be determined on the basis of the evidence before the court/tribunal at the time of the assessment. JIP, in essence, entails a judge/member proposing to the parties a non-binding resolution of their dispute based on what is fair in light of the evidence before the court/tribunal, without assessing the merit of the respective positions or without giving reasons for

the proposed resolution. The difference between the mechanisms is therefore that ENE is an 'assessment of merit', while JIP is a 'proposal for settlement'. Both mechanisms are aimed to assist the parties to reach an agreed outcome and so fall within the general catchphrase of ADR. In this article, consideration is given to these mechanisms and examples are provided to show how, in practice, some progress has been made in Australia and abroad to operationalise ENE. JIP however, is an entirely new approach proposed by the author.

What is 'Early Neutral Evaluation' (ENE)? ENE refers to a process in which an informal, oral or written assessment is made to the parties by a neutral person, who is legally trained or an

expert in the subject field, about the merit of their respective positions. The assessment is based on the available evidence and submissions at the time of the assessment; the assessment is non-binding; and the assessment may not be relied on in ongoing proceedings. The assessment may or may not include reasons for coming to a certain conclusion. ENE can occur at any phase of a proceeding. In simple matters, ENE can take place as soon as an application and response have been received by a court/tribunal. In more complex matters, ENE can occur after filing of witness statements, expert reports and submissions. ENE is used in Australia, albeit, not consistently across jurisdictions. The following are some examples of where ENE is encountered in this country: â&#x20AC;˘

Section 53A of the Federal Court Act 45


refers, in general, to the power of the Court to refer disputes for alternative dispute resolution, and this includes ENE.3 Section 21 of the Federal Circuit Court Act refers specifically to the power of the Court to refer a dispute for ENE. Although ENE is not yet widely used by the Federal Court, it has been employed in the context of native title proceedings.4 The author participated in one of the first ENE-referrals by Lindgren J in 2002/3 when a major native title dispute in the Goldfields was referred for ENE.5 Although the dispute did not settle, the process of ENE enabled the parties to articulate their views concisely, it shielded Aboriginal Elders from the scrutiny and stress of examination, and it enabled parties to clarify their position. The assessment, which was conducted by a retired judge, set the table for further negotiations which ultimately led to settlement of other native title proceedings in the Goldfields. •

Section 65 of the State Administrative Tribunal Act 2004 (WA) empowers the Tribunal to refer a question to a 'special referee' to decide the question or to give an opinion in regard to the question. The parties and the Tribunal may accept or reject the opinion. The Tribunal has not yet put s65 into practice and time will tell how this power evolves. The author would suggest that this power ought to be used more regularly by SAT to assist parties at various stages of a dispute to resolve a matter by way of agreement. It is, potentially, a very powerful tool to employ with the mediation processes of the Tribunal, as well as in on-line dispute resolution. The Tribunal also has the power to determine its own proceedings and to refer a matter for ENE. The Building Commission of Western Australia (Commission) is arguably the dispute resolution forum in WA that most actively uses ENE.6 The Commission does not refer to its processes as ENE, but in essence, the Commission may recommend to parties, on the basis of the documents submitted about a building dispute, a possible resolution based on an expert's assessment of the claim. The Commission makes its recommendation by way of draft orders which are sent to the parties and those can be signed or rejected by the parties. The Commission

46 | BRIEF FEBRUARY 2017

may invite additional submissions or evidence before it provides an assessment and the proposed orders. The Commission estimates that in 2015/16, approximately 40% of 'proposed orders' were accepted by the parties.7 Based on the number of applications received by the Commission, this means that more than 200 applications were settled in 2015/16 by way of ENE. •

The Magistrates Court of Victoria has embarked on a process whereby ENE is provided to parties prior to a hearing.8 The ENE is based on a brief oral proceeding which does not take the form of a formal hearing. The proceeding is not recorded; witnesses cannot be called; and the process is strictly time-limited. A magistrate chairs the ENE and provides an immediate assessment to the parties. The assessment is non-binding and private. The court determines which matters are suitable for ENE or may, at the request of parties, refer a matter for ENE.9 The magistrate who conducted the proceeding may not hear the matter if it does not settle. ENE is also being pursued abroad. In the United Kingdom, proposals are on foot to expand the use of ENE for the purpose of on-line resolution of complaints.10 In the USA, it is estimated that around 36% of companies on the Fortune 1000 list, had experienced some form of ENE in dispute resolution.11

The basis for ENE exists in several jurisdictions of Australia. In the same way that Australia played a leading role in ADR, an inter-jurisdictional drive is required across courts and tribunals to make ENE part of the range of options that courts and tribunals can regularly use to assist parties to resolve disputes quickly and affordably.

What is 'Judicial Initiated Proposal' (JIP)? A JIP occurs when a judge/member makes a proposal to the parties about a possible resolution to a dispute. The proposal is not binding, no reasons are given in support of the proposal, and the proposal may not be referred to in later proceedings. The making of a proposal can be made at any stage after lodgement or during a hearing. The making of a proposal does not disqualify the judge/member who made it from hearing the matter and handing down a decision.

JIP is not known in Australia and is a mechanism proposed by the author on the basis of an interview I conducted in Germany recently with judges of one of the state courts in Baden-Württemberg. In Germany, a JIP process generally works as follows. The judge who is hearing the dispute may, at any time during the hearing, propose to the parties, in writing, a possible outcome that is reasonable, but without having to give reasons and without providing an assessment of the likely outcome of the proceeding should a decision be handed down. The judge does not discuss the merit of the proposal with the parties and does not answer any questions about the proposal. The parties may use the proposal for the purpose of mediation but the judge who initiated the proposal cannot form part of the mediation. If the parties do not accept the proposal, the hearing continues and the same judge may determine the outcome. It is important to note that a proposal can be made at any time during a hearing. JIP may be a useful mechanism to consider in the following circumstances in Australia: •

In simple matters, a JIP can be made to parties on the papers shortly after an application and response thereto is received.

A JIP lends itself to early, on-line dispute resolution of disputes12 where parties are invited to make submissions and provide evidence to form the basis of a JIP.

At the initial directions hearing/ case management conference, the presiding member may, if adequate information about the dispute is available, suggest to the parties a JIP.

A mediator may, after conclusion of mediation, submit to the parties a JIP to consider before the dispute proceeds to a hearing.

At any time during a hearing a JIP may be submitted to the parties.

Possible application of ENE and JIP in Australia Regardless of the progress that has been made in Australia with ADR and other cost saving techniques, litigation in general remains costly, lengthy, stressful and time consuming. Australia has played a leading role in the introduction of super-tribunals such as the State Administrative Tribunal and ADR in courts and tribunals to provide greater access to justice, quicker resolution of


disputes, and affordable legal process. ENE and JIP are two mechanisms that could and should be more widely employed. Thus far, ENE has been used ad hoc by some courts/tribunals and JIP is unknown. A concerted effort is required by all courts and tribunals to implement and utilise these mechanisms. ENE, in essence, gives parties a nonbinding assessment of the merit of their respective positions. JIP proposes a resolution that is fair without making an assessment of merit. Both processes are private, without prejudice and may not be relied on or disclosed during a hearing. ENE generally takes place prior to a hearing, while JIP may take place prior to and during a hearing. The evaluator in ENE cannot take any part in the hearing, while in a JIP, the person making a proposal may continue to hear and determine the dispute. Both ENE and JIP require the consent of the parties before either of the techniques can be used. The presiding officer must also be satisfied that the nature of the application lends itself to

either of these processes. In ENE and JIP the assessment and proposal is not admissible in the court/tribunal if the matter does not settle.

Summary ENE and JIP are promising techniques that remain largely unexplored by Australian courts and tribunals. Although there has been ad hoc use of ENE, this is yet to be a systematic approach whereby ENE and JIP become part of the menu of options along with ADR. Super­tribunals such as the State Administrative Tribunal, with their flexible procedures and people-oriented processes, are ideally placed to lead experimenting with ENE and JIP. NOTES 1.

Ordinary Member State Administrative Tribunal of Western Australia and Adjunct Professor at the Curtin Law School, Curtin University. The views expressed are those of the author.

2.

For a general overview see Productivity Commission (2014) Access to justice arrangements at http://www. pc.gov.au/inquiries/completed/access-justice/report/ access-justice-volume1.pdf.

3.

Although s53A does not specifically refer to ENE, the Federal Court regards ENE, the appointment of a court expert and referral to a referee, as forming part of the powers under s53A.

4.

Browne A. Reforms to civil justice: alternative dispute resolution and the courts. Australian Bar Review 2015, Vol.36, p.277.

5.

De Villiers B. Native title Down Under: from hot tub to preservation of evidence – mediation in complex land claims. South African Public Law 2004, p.440-448.

6.

See https://www.commerce.wa.gov.au/buildingcommission/building-service-and-home-building-workcontract-complaints.

7.

Personal communication with Mr Peter Verrall, Complaints Manager Building Commission, on 23 August 2016.

8.

See Practice Direction 4 of 2010 at https://www. magistratescourt.vic.gov.au/sites/default/files/Default/ CM-PD%204-2010.pdf.

9.

Refer Note 2, at p.292.

10.

For background reading see https://www.law.ox.ac.uk/ sites/files/oxlaw/civil_justice_in_england_and_wales_-_ beyond_courts._mapping_out_non-judicial_civil_ justice_mechanisms.pdf

11.

Stipanowich T and Lamara JR. Living with 'ADR': evolving perceptions and use of mediation, arbitration and conflict management in Fortune 1000 Corporations. Harvard Negotiations Law Review 2013, Vol.19, p.1. See for example practical examples of ENE in the USA in https://www.id.uscourts.gov/ Content_Fetcher/index.cfml/Ninth_Circuit_Fall_2014_ ADR_Newsletter_2017.pdf?Content_ID=2017 and http://www.cand.uscourts.gov/ene.

12.

According to Lancy, one of the benefits of on-line dispute resolution through ADR is the convenience it offers to the parties and to the court/tribunal. "Parties can gain access to an ADR expert or practitioner beyond that which may be available in their location and the frequently slowed down pace of the process enables easier time management for all parties, including the mediator." Lancy SR. The future of ODR: its rise, limitation and possibilities. Australian Dispute Resolution Journal 2016, Vol.27, p.168. Also see the following article for the use of online dispute resolution abroad: Harvey D. Susskind to Briggs: online court approaches. Journal of Civil Litigation and Practice 2016, Vol.5, p.84.

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47


How many Royal Commissions does it take to keep children safe? By Linda Savage Convenor, Valuing Children Initiative

A decade ago Harvard Professors Ron Heifetz and Martin Linksy counselled organisations grappling with tough, and seemingly recalcitrant problems, to 'get on the balcony' so they could gain a clearer perspective.1 In 2016, two leading Western Australian not-for-profit Organisations Centrecare Inc. and Parkerville Children and Youth Care Inc., were grappling with the realisation that, despite their best efforts, the complexity of children's needs and level of demand for services for children, were continuing to grow unabated. This led them to take the unusual step of allocating resources to, in effect, get on the balcony, and establish the Valuing Children Initiative to consider deeper issues of causality. In looking for answers, it was clear that a more sophisticated approach was needed than simply blaming 'dead beat parents'. They have always existed. It meant putting aside, temporarily, the arguments about funding and whether it is enough. This is always going to be debated. It also excluded debate about globalisation, neoliberal economics, the rapid pace of change, the so-called nanny state or yearning for yesteryear. The past is the past and leaving fairness to market forces surely is repugnant to civilised societies. Getting on the balcony meant asking hard questions about the very regard we have for children and how we value them. It meant challenging the attitudes, whether conscious or unconscious, which allow us to tolerate a life for some children that we would never tolerate for our own. What we value is reflected in a society's culture and prevailing attitudes, and, although sometimes forgotten, plays

48 | BRIEF FEBRUARY 2017

a pivotal role in a child's safety and wellbeing.2 Societal attitudes have always driven change, as well as expectations about what is acceptable. This is obvious when you reflect on how attitudes have changed in the last 30 years to the participation of women in public life, the protection of the environment, acceptance of 'illegitimate' children and smoking. Societal attitudes translate too into the priority given to a person's rights and needs and whose voices and opinions dominate. Societal attitudes are powerful. Nothing has provided a starker example of this than the shocking revelations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The truth is that children who complained about their abuse, adults who spoke out on their behalf, and the laws in place that made the abuse a crime, were no match for the prevailing culture and attitudes of those in positions of power, who chose generally not to believe a child, and put the protection of institutions and adults first.3 The result was that for decades both institutions, and perpetrators were able to avoid scrutiny. To better understand Australian's attitudes to children today, the Valuing Children Initiative recently commissioned a survey about perceptions of children and childhood. Only 48% of those surveyed believe that children in Australia today all have a fair and equal opportunity to flourish and maximise their potential. Of those surveyed, 80% were concerned about the health and happiness of future generations.4 These are reasonable concerns. More than 600,000 children in Australia

live below the poverty line5 and one in five children are developmentally vulnerable on one or more domains on commencing school.6 One in four is obese or overweight, and as a result are part of a generation that is predicted to have a shorter life expectancy than their parents' generation because of the chronic diseases that result.7 So where is the sense of urgency by decision makers to do better for children? Given the well documented evidence about the adverse and long term impact of abuse, poverty, obesity and mental illness on future health and wellbeing, not to mention the significant financial and social cost for the whole society, where is the ongoing outrage? Part of the answer lies in the tendency to focus on the short term and the inability to govern for the future that has been identified as characterising much of modern politics, especially in democratic countries like Australia. This focus on the short term is routinely described as damaging to economic reform and efforts to address issues such as climate change. Yet, the damage it does to children and future generations barely rates a mention, despite the fact that there is only one chance at childhood, and this influences so much of a person's future. For children, this short termism impedes policy development, as well as the continuity of the provision of resources and services. It undermines exactly what makes for a good start in life: consistency of services and support for children when they need them, rather than the whims of fluctuating funding and policy. The 2013 report of the Oxford Martin Commission for Future Generations, 'Now for the Long Term', called for a radical shakeup in politics and business


to embed longer term thinking in order to create a more resilient, inclusive and sustainable future. In particular it urged decision makers to be innovative, and reinvigorate how institutions work to better serve the needs of those too young to vote, as well as future generations.8

This would ensure that children, who make up almost one quarter of the population, have their interests explicitly taken into account. Consideration of the impact on children and future generations should be seen as integral to sound decision making and include the views of children whenever possible.

Leadership is needed. It is time for the government to get on the balcony too and question the priority it gives to children. The Federal Government should ask why, amongst the 42 Ministers and Parliamentary Secretaries of the 45th Turnbull government, not one portfolio includes the word 'child'.

What is needed is not just motherhood statements, but more rigorous economic modelling, for example to ensure decision making processes are not dominated by exigencies of today, and the interests of adults. Not just glib statements, but an understanding that a feature of our evolving democracy has been its capacity to enable more and more of its citizens to have a way to be heard and participate. Today that must include children and future generations.

It is just not enough to point to portfolios that provide services for children and assume that this is adequate. Two concurrent Royal Commissions into the abuse and mistreatment of children, and a 31 percent increase since 2009-2010 of substantiated cases of abuse and neglect, say otherwise.9 Furthermore there can no excuse for the government being caught unaware of the concerns about the treatment of children at the Don Dale Juvenile Justice Centre. The Valuing Children Initiative has called for a dedicated Minister for Children and Future Generations.10 This would ensure that children, if not at the forefront of considerations, are at least always on the radar. In addition a Minister could lead the development of a national plan for all Australia's children. It is also time for the instigation of a rigorous, methodical and transparent process to ensure that all policy, legislative and decision making processes by government and public bodies, actively consider the impact on children and future generations.

No child can choose the circumstances of their birth or their childhood. They must navigate a world they had no part in creating. It is no achievement to be born with greater opportunities or less challenges in life than someone else. It is merely luck. With two Royal Commissions due to report in 2017, we are at a critical juncture for children in Australia. While indispensable to the acceptance and admission of past failure to protect children, Royal Commissions bring with them the risk of unintentionally implying that these concerns are now largely taken care of. Or that better policy and legislation and more inquiries, essential as they are, will be enough to bring about the change needed to protect children. This mental shortcut would be a grave mistake. Getting it right for every child now, and in the future, will always depend on the attitudes of the adult

world. There is no set and forget when it comes to ensuring the safety and wellbeing of children, not your own child, nor any other child. NOTES 1.

Heifetz, Ronald A., and Linsky, Marty. Leadership on the Line: Staying Alive through the Dangers of Leading. Harvard Business School Press, 2002.

2.

In a PowerPoint presentation to the ARACY Conference, 'Making Prevention Work' (2009), Dr Lance Emerson (CEO ARACY) and Pam Muth (Allen Consulting Group), described the antecedents of complex problems affecting children and young people beginning with societal values beginning with how we individually and as a community value children, where the primary need to focus is because it directly impacts on attitudes and behaviours towards children, which directly impacts on programs and policies. http://valuingchildreninitiative. com.au/2016/09/23/how-we-value-children-impactson-our-attitudes-behaviours-and-actions-towardsthem/ (Accessed 23 September 2016).

3.

In evidence to the Royal Commission into Institutional responses to Child Sexual Abuse, Cardinal George Pell said that views held in the 1970's and 1980s in Ballart in relation to disclosures of child sexual abuse were, "generally not to believe the child." http://www. theaustralian.com.au/national-affairs/in-depth/royalcommission/george-pell-testifies-from-rome-for-abuseroyal-commission/news-story/76586670c699496b9ddf1 60dfc5a8c55 (Accessed 29 February 2016).

4.

A Synopsis of The Valuing Children Initiative Benchmark Survey: 2016 â&#x20AC;&#x201C; Part A October 2016. http://valuingchildreninitiative.com.au/wp-content/ uploads/2016/10/ARE-CHILDREN-AT-THEFOREFRONT-OF-OUR-CONSIDERATIONS-Asynopsis-of-the-Valuing-Children-Initiative-BenchmarkSurvey-2016-Part-A.pdf

5.

Poverty- Poverty in Australia Report 2014 http://www. acoss.org.au/poverty-2/ (Accessed 20 September 2016).

6.

Australian Early Development Census 2015 https:// www.aedc.gov.au/ (Accessed 6 October 2016).

7.

Prescott, S. 2015 'Origins: Early â&#x20AC;&#x201C;life solutions to the modern health crisis.' Crawley, Western Australia. UWAP, p.39

8.

'Now for the Long Term. The Report of the Oxford Martin Commission for Future Generations. Oxford University. October 2013 http://www.oxfordmartin. ox.ac.uk/downloads/commission/Oxford_Martin_Now_ for_the_Long_Term.pdf (Accessed 18 March 2016).

9.

Australian Institute of Family Studies: Child abuse and neglect statistics. July 2015 https://aifs.gov.au/ cfca/publications/child-abuse-and-neglect-statistics (Accessed 6 October 2016).

10.

http://valuingchildreninitiative.com.au/2016/09/13/howmany-royal-commissions-does-it-take-to-keep-a-childsafe/ (Accessed 13 September 2016).

49


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

Costs – Discontinuance of appeal – Conduct of parties during trial is relevant to appeal costs under s117(2A) (g) In Parke & The Estate of the Late A Parke [2016] FamCAFC 248 (24 November 2016) the husband appealed the setting aside of a financial agreement by Judge Howard who found that the husband acted dishonestly in his financial dealings ([23]-[24]). The mother was granted expedition of the appeal. Two weeks after the husband's death his personal representative discontinued the appeal. The wife applied for her costs of her expedition application, the appeal and her costs application on an indemnity basis in the sum of $119,500. May & Ryan JJ said ([18]) that the filing of a Notice of Discontinuance "does not automatically lead to a costs order". The wife's counsel argued ([24]) that the husband's 'deplorable' conduct, including the finding that he had forged the wife's signature in relation to their superannuation funds, 'deserved' an indemnity costs order. The majority said (at [30], [36] and [52]): No offers to settle … were made after the Notice of Appeal was filed. The question therefore is whether offers to negotiate in the trial proceedings can be considered in a costs application for the appeal. Additionally, should the husband's conduct during the trial ... and his failure to make any offer to settle, be considered … relevant …?" We are of the opinion that … the criteria in s117(2A)(b)-(f) … are matters which are limited to the appeal proceedings because in each case those sections refer to 'the proceedings'. However, other matters … may be considered by reason of … s117(2A)(g) which does not contain the limitation of 'the proceedings'. ... ... Although the circumstances relating to the trial might attract an order on an indemnity basis, it could not be justified in the conduct of the appeal. Taking into account the timing of … the Notice of Discontinuance we are of the view that costs should not be ordered on an indemnity basis. The wife was awarded party/party costs of the three proceedings sought. Murphy J agreed but fixed those costs at $51,000.

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Procedure – Publication of proceedings – Use of Family Court documents in Supreme Court case between interrelated parties did not offend s121 In R Pty Ltd atf the Fletcher Trust & Jones and Anor [2016] FamCA 928 (4 November 2016) Carew J granted an application for leave to use in Supreme Court proceedings between interrelated parties documents produced in earlier property proceedings between Ms Fletcher and Mr Jones ([1]). The applicant was R Pty Ltd which became trustee of the Fletcher Trust ("FT") upon the death of Ms Fletcher and continued the proceedings as her personal representative. Mr Jones had a group of entities some of which were in partnership with the Trust. The property case was resolved by a consent order for the assignment of debt to the group and an indemnity of Ms Fletcher. The order noted that "all matters relating to the assets of [FT] will be resolved outside the jurisdiction of the Family Court" ([16]). Carew J ([38]) accepted the submissions for both parties that "the proposed use of the documents is not a breach of s121 because it is not intended to publish or disseminate within the meaning of s121(1) and in any event the proposed use is an exemption within the meaning of s121(9) (a)." The Court added ([64]): … it could not be said that the dispute is the same in both courts nor … that the parties are the same. However I accept … that there is a commonality of subject matter and interrelationship between the parties. Further, it was … anticipated at the time of the consent order that the disputes relating to the assets of FT would be determined in another jurisdiction. Children – International child abduction – Interim order for return of child to China where mother unilaterally removed child from father's care In Hsing & Song [2016] FamCA 986 (17 November 2016) the father applied for the immediate return of a four year old child to the People's Republic of China. Both parents were Chinese citizens but met as students (and married) in Brisbane. The child was born in Australia and lived here for his first 10 months with the mother

and her mother while the father returned to China for treatment for a serious illness that left him paraplegic, requiring the use of a wheelchair for mobility. The mother took the child to China in 2013 for the child to live with the father and his parents while the mother returned to Australia to run and sell their business there. A consulate document was in evidence where the mother had agreed to the child living in China until February 2018. The mother travelled there to see the child for birthdays and celebrations. She returned to China in April 2016, taking the child with the agreement of the father to visit her family there, but in August 2016 she absconded with the child to Australia ([21]). Forrest J referred (at [26]) to the father's evidence that from July 2014 to June 2015 the child attended childcare in China and from June 2015 to June 2016 kindergarten for five days a week at a school in their neighbourhood and ([32]) that from the age of ten months to four years the child was mostly cared for by the father with help from the paternal grandparents. Forrest J said ([38]-[39]) that as China is not a signatory to the Hague (Child Abduction) Convention the case would be heard not under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) but the jurisdiction of the Court under s69E FLA, the child being an Australian citizen (and present in Australia) when the application was filed. His Honour added ([43]) that "the Court must, nevertheless, still regard the best interests of the child as the paramount consideration", citing ZP v PS [1994] HCA 29 and other authorities which "countenance an order … for the immediate return of a child to another country from which the child has been taken, upon a summary hearing, if the Court, having regard to the best interests of the child … determines that should happen." Forrest J so determined after considering the matters set out in s60CC and made an interim order accordingly.

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


Children, Parents and the Courts Legal intervention in family life By John Seymour Reviewed by Anna Copeland Director of Clinical Legal Programs, School of Law, Murdoch University

BOOK REVIEW

Reading this book is like sitting down for a chat with a kindly and knowledgeable uncle. It explores the highly contested area of the rights and responsibilities surrounding children; where they live, who cares for them, how decision are made for them and by them. It is a difficult area full of apparent contradiction and shifting norms. The beauty of this book is that it takes you through this complex world and explains the origins, attitudes and assumptions that underpin this fraught and highly contested area of law. In doing so it sheds light on (not only the law) but the policies and practices at play allowing readers a deeper and more nuanced understanding.

clearly and succinctly illustrates is that the imposition of white values on aboriginal families causes more difficulties than it addresses. However, at the same time the author calls on the reader not to allow 'past failures' to blind us to 'present problems'. This call, in the context of a system which relies so heavily on the culturally determined attitudes of the decision-makers, sounds a little hollow.

This book is divided into two sections. The first half of the book focuses on the tensions between parents, the state and children around decisions regarding their upbringing. It explores the cases in a discursive way, tracing judicial decision-making back to historic approaches and attitudes to children and the ways in which they should be raised.

The second half focuses on disputes about decisionmaking. Chapter six outlines the decision in the Gillick case, explaining the details and outcome of the decision. Clearly articulately why it was considered a major development in the area. Chapter seven then considers its significance, specifically with regard to the powers of the Court and whether they are greater than the seemly retreating parental powers. Chapter eight then looks at the Australian jurisprudential landscape and Chapter nine continues this with special attention to the Marion case and how it has been followed. These chapters build a nuanced picture which belies the initial assumption that parental powers have been overturned by the wishes of a competent child. Instead the careful analysis of cases shows that even where a child is considered Gillick competent, the court (if not the parents) still has a role to play in decision making.

Chapter one introduces the Paramountcy Principle, it sets the scene of the historic (and not inconsequential) shifts in the ways in which children and childrearing have been considered, Chapter two then shifts the focus to the paramountcy principle's application in Australia. Looking at the care and protection system and specifically its legal framework, this chapter explores the phrase 'best interests of the child' and while also introducing the Convention on the Rights of the Child, it perhaps does not make enough of the connection between the convention and the shift in language from welfare to 'best interests'. Chapter three then delves into the practical difficulties around decision making within these legal principles. This chapter beautifully exposes the unique complexities of this area of law. Any initial assumption the reader might have had about the ease with which the paramountcy principle can be applied is quickly dispelled. Instead the author illustrates, through his discussion of the cases, the complexity for those charged with the decision making responsibility, not only with regards to the law and what it should require, but the role of parents, and the extent to which factors such as culture, racial identity or poverty should be considered. Chapter four then returns to the concept of 'best interest' of the child and to what extent the preservation of the family unit plays a role in this consideration. By approaching it from yet another angle the author further illuminates the complexities of the concept. Then in Chapter five he delves into the aspects of cultural and racial identity, he takes head on the issue of competing community expectations and cultural relativism. The cursory nature of this book's examination of the Convention on the Rights of the Child and any discussion of the internationally evolving area of the rights of the child while initially a niggling concern, becomes a more obvious deficiency at this point. What this chapter

Finally, Chapter ten summarises the discussions and findings of the book. In doing so its introductory words are "this book is about a triangle: children, parents and the courts". What is most striking about this sentence is that in truth this book is less about a triangle of equal players and more about the disputes between two players over an object: children. In the first half the real tension set up by the book (and no doubt this is an accurate reflection of the legal system) is to what extent parents or the courts should decide what is best for children. Even in the second half of the book, which raises the issue of children's ability to make choices for themselves, the discussion still focuses on if and when the parents and the Courts can intervene notwithstanding a finding of competence on the part of the child. The real and not insubstantial strength of this book is the way in which it is written â&#x20AC;&#x201C; it allows us to really get inside and understand the different pressures which play on the child protection system and decision making about children generally. It does this by not only discussing the legal framework but also the practical aspects of the operation of the system; its policies, attitudes and practices. The result is a nuanced and illuminating insight into the area that leaves the reader with a far greater understanding of its internal workings.

51


Law Council Update Appointment of new SolicitorGeneral "Dr Stephen P Donaghue QC is an eminently qualified barrister who will fulfil the role of the Solicitor - General of the Commonwealth with distinction," said Stuart Clark AM, President of the Law Council of Australia. "The Office of the Solicitor-General plays a vital role in assisting ministers and agencies to comply with the rule of law and to discharge their functions in accordance with the constraints of the law," Mr Clark said. "Frank, fearless and independent advice is critical to the proper operation of Government. "The Law Council has every confidence in the ability of Dr Donaghue to provide the impartial advice that the position demands. "He is well-renowned within the profession in the areas of constitutional and administrative law and has regularly appeared before the High Court. "He has guided the Public Law Section of the Commercial Bar Association well as its Chair. His work with the Advisory Board of the Centre for Comparative Constitutional Studies and the Australian Association of Constitutional Law has been exceptional. "The Law Council has greatly appreciated Dr Donaghue's endeavours on its Constitutional Law Committee and the Federal Litigation and Dispute Resolution Section. He has served on the Victorian Bar's Human Rights Committee and Continuing Professional Development Committee, and is a Senior Fellow in the Faculty of Law at the University of Melbourne. "Dr Donaghue has been of great service to the Australian legal profession, the Victorian Bar and to the advancement of legal education. "He is an outstanding choice to fill the role of the second law officer of Australia," Mr Clark concluded.

Campaign to strengthen legal profession's defence against cyber threats launched Cyber Precedent, a new information campaign by the Law Council of Australia to assist the legal profession further defend itself against growing cyber threats, has been launched in Sydney today.

52 | BRIEF FEBRUARY 2017

As cybercrime and cyberespionage climb exponentially across the globe, the campaign will help equip legal professionals with the resources needed to remain on the front foot, including: • A list of the essential cybersecurity precautions law firms should take; • Advice on how to protect against ransomware; • A response checklist in the case of a cyber attack; and • A cybersecurity toolkit for the education of staff. The campaign was officially launched by the Minister Assisting the Prime Minister for CyberSecurity, the Hon Dan Tehan MP, and Law Council of Australia President, Stuart Clark AM. Mr Clark said it was now a core priority of the Law Council to ensure Australian lawyers understand, and are prepared for, cyber threats. "Everyday, businesses around the world are compromised by cyber attacks," Mr Clark said. "We know legal practices are a target and lawyers hold highly sensitive information. The good news is that security experts advise that basic actions can mitigate risks significantly. "The Law Council's Cyber Precedent has drawn together cybersecurity resources custom­designed for legal professionals, to help ensure the integrity of the confidential and sensitive data lawyers hold. "It is our hope that creating a national hub for cybersecurity action for the profession will facilitate cooperation and information sharing, both within business and with government. "As the Prime Minister said in the Federal Government's Cyber Security Strategy, while governments can take the lead, business needs to ensure their cybersecurity practices are robust and upto-date. "Consideration of cyber risks should evolve beyond seeing them as an 'IT issue.' Cybersecurity in legal practices should be managed through a strategic and coordinated approach, and that means making cybersecurity a strategic objective," Mr Clark said. Cyber Precedent can be accessed at: www.cyberprecedent.com.au

Law Council congratulates new Federal Judges The Law Council of Australia today congratulated the latest three outstanding legal professionals to be appointed to the Federal Courts. The Federal Government has announced the following appointments: • Federal Court: Mr David O'Callaghan QC (commencing in the Melbourne Registry on 1 February 2017); • Federal Circuit Court: Dr Robert Harper SC (commencing in the Sydney Registry on 18 January 2018); and • Federal Circuit Court: Mr Anthony Kelly QC (commencing in the Melbourne Registry on 6 February 2017). Law Council of Australia President Stuart Clark AM, today said the new judges would bring a wealth of knowledge of experience to the Bench. "The three new appointments to the Federal Courts are vastly experienced and highly accomplished," Mr Clark said. Mr Clark noted that the three appointees had also had made a significant contribution to the legal sector through their involvement in professional bodies. "David O'Callaghan QC has appeared as a Senior Counsel in both Federal and State jurisdictions, and in domestic and international arbitrations. Along with his extensive experience in Australia, Mr O'Callaghan is admitted to practice in Connecticut and New York. "Mr O'Callaghan is also the current Senior Vice President of the Victorian Bar Association. "Robert Harper SC has been a Barrister since 1984 and a Senior Counsel since 2004, and also 20 years experience as a mediator. "Dr Harper has experience across a wide range of jurisdictions, but has particular expertise in building and construction law, and is a member of the Society of Construction Law Australia. "Anthony Kelly QC was admitted to the Victorian Bar in 1987 and appointed Queen's Counsel in 2006. "Mr Kelly has also lectured at Monash University and the University of Melbourne, and taken an active role in mentoring young lawyers. He is a member of the Victorian Commercial Bar Association and the Victorian Bar insurance Committee," Mr Clark said.


Pam Sawyer

53


Professional Announcements

New Members New members joining the Law Society (November and December 2016)

Career moves and changes in the profession

Melissa Forlano

Kylie Morrell

Ordinary Membership

Restricted Practitioner cont.

Mr Stephen Smith Investigative Solutions WA Pty Ltd

Mr Brendon Dawson King & Wood Mallesons

Ms Nicole Burns Jackson McDonald

Mr Michael Stewart King & Wood Mallesons

Miss Stefania Almonte Tindall Gask Bentley Lawyers

Ms Louisa Harris King & Wood Mallesons

Grondal Bruining The Directors of Grondal Bruining are pleased to welcome our most recently appointed professional staff members. Melissa Forlano joins the firm as a Senior Associate. She has extensive experience in disputes involving commercial contracts, corporations law, trade practices & consumer law, and the energy sector. Kylie Morrell joins the firm as an Associate. She has refined commercial skills that span across energy, oil & gas, resources, infrastructure and competition law.

Restricted Practitioner Mr Andrew Giorgi Australian Taxation Office

Miss Nicole Courtney Murdoch University

Ms Chrisafina Elizabeth Tsolakis Metaxas & Hager

Miss Lucy Bourne Murdoch University

Ms Zahra Peggs TSA Group

Mr James Haywood

Miss Anna Baker Sparke Helmore Miss Monica Miller Peel Legal Daniel Morris

This title more accurately reflects the amount of Court work, as well as specialist work in construction law and commercial litigation, that Daniel is involved in. This is a well-earned, deserved promotion and one that reflects Danielâ&#x20AC;&#x2122;s ongoing hard work, diligence, and contribution to HHG.

Mrs Emma Louise McKerrell Peel Legal Miss Danielle Hadida Klimek & Wijay Family Lawyers Ms Rachel Harkness Klimek & Wijay Family Lawyers Miss Nicola Birman Clifford Chance

Chelmsford Legal

Mr Michael Daniels Jackson McDonald

As of 3 January 2017, Chelmsford Legalâ&#x20AC;&#x2122;s office is located at our new address:

Mr James Flexman Birman & Ride

Level 1, The Gledden Building 731-737 Hay Street, Perth WA 6000 (Corner of William Street & Hay Street)

Mr Matthew Burvill Williams & Hughes

Phone: 6500 1230 Email: reception@chelmsfordlegal.com.au www.chelmsfordlegal.com.au

Associate Membership

Mr Alexander McVey Australian Securities & Investments Commission

Ms Ella Wallwork DLA Piper Australia

HHG Legal Group Daniel Morris, formerly Senior Associate, Commercial Litigation, Construction & Engineering at HHG Legal Group has officially been promoted to Special Counsel by Directors Murray Thornhill and Simon Creek.

Miss Caroline Andretich King & Wood Mallesons

Ms Angela Zhao King & Wood Mallesons Mr Ryan Fitzpatrick King & Wood Mallesons

Mrs Sonia Dorling Edith Cowan University Mr Ben Stewart Murdoch University Ms Danica Ferrone University of Western Australia Ms Alyssa Bowra University of New England Ms Belinda Sheridan Deakin University Mr Alexander Floyd Central Queensland University Mr Jonathan Ng Murdoch University Mr Alex Dew Murdoch University Ms Linda Maccarone Murdoch University Miss Jodie Browne The University of Notre Dame Australia Miss Cony Concetta Edith Cowan University

Part-time Membership Ms Karen Grove Kimberley Community Legal Services

54 | BRIEF FEBRUARY 2017


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MISSING WILL Any person knowing the whereabouts of the last Will made by MARK RUSSELL WARING late of 21/76 King George Street, Victoria Park in the State of Western Australia, born on 25 December 1974, died on 8 July 2016, please contact Maria Fifield of Avon Legal, Suite 7, 9 The Avenue MIDLAND WA 6056. Telephone: 9274 1977 Email: maria@avonlegal.com.au

MISSING WILL Any person knowing the whereabouts of the last Will made by Rosalind Anne Green (a.k.a Roz Miles-Barratt) late of 29 Buckie Street, Hopetoun in the State of Western Australia, born on 23 December 1938, died on 7 December 2016, please contact Albany Legal Pty Ltd, PO Box 5333, Albany, WA, 6332. Telephone: (08) 9847 4211 Email: recep@albanylegal.com.au

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

FEBRUARY 2017 Membership Event Friday, 24 February YLC Beach Volleyball Competition

MARCH 2017 Membership Event Friday, 24 March 180th Anniversary Celebration of the Old Court House

APRIL 2017 Membership Event Pilates - Six week course commencing early April

MAY 2017 Membership Events Monday, 15 May Law Week Breakfast and the 2017 Attorney General’s Community Service Law Awards Tuesday, 16 May Walk for Justice Wednesday, 17 May Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee Thursday, 18 May Law Week Cocktail Party and 2017 Lawyer of the Year Awards 56 | BRIEF FEBRUARY 2017


FEBRUARY 2017 CPD Seminars Monday, 13 February Jump start your digital marketing Tuesday, 14 February De-mystifying accounting for lawyers Wednesday, 15 February Incapacity in relationships: the tension between SAT and the Family Court – who wins? Friday, 17 February Law Summer School 2017: Australia’s Place in the World

With thanks to our CPD partner

Tuesday, 21 February The Business Case for New Law: will AI or legalbots replace us? Tuesday, 21 February Mediation update for practitioners Wednesday, 22 February Property law update Wednesday, 22 February Directorial liability for corporate failings – three contemporary developments Thursday, 23 February Family and business trusts

Thursday, 23 February Briefing Barristers: getting it right Friday, 24 February Empowering communication: managing emotions in difficult conversations Monday, 27 February Art of the eTrial Tuesday, 28 February Strata Reform: dispute resolution changes and reforms to protection of purchasers Tuesday, 28 February Legal Practice Set-up – Getting it right from the start

MARCH 2017 CPD Seminars Wednesday, 1 March Criminal law update: a review of Court of Criminal Appeal decisions Thursday, 2 March Paperless office Thursday, 2 March CMC List practice and procedure Friday, 3 March Ethics on Friday: fiduciary relationships Tuesday, 7 March Drafting family law orders and settlement offers Wednesday, 8 March The bottom line depends on business development Wednesday, 8 March Dealing with family violence: a new legal approach Monday, 13 March Outperforming through creating an excellent client experience Tuesday, 14 March Insolvency Law Reform Act

Tuesday, 14 March Ethics in Industrial Relations – reflections on a career from bar to bench Wednesday, 15 March Beware the Ides of March – the dark arts of costs Wednesday, 15 March What the Productivity Commission said about copyright Thursday, 16 March Construction law masterclass Thursday, 16 March Important cases from 2016 for commercial litigators Friday, 17 March Conscious leadership Friday, 17 March Ethics on Friday: when a client’s capacity is in doubt Monday, 20 March Sale of business agreements Tuesday, 21 March Mindfulness and managing your energy Wednesday, 22 March Estate Planning masterclass

Wednesday, 22 March Advocate’s immunity Thursday, 23 March eConveyancing and electronic land contracts update Thursday, 23 March Drafting settlement offers and deeds Tuesday, 28 March Will drafting masterclass Tuesday, 28 March Voluntary criminal case conferencing Wednesday, 29 March Outperforming through creating an excellent client experience Wednesday, 29 March Risk assessment of sex offenders Thursday, 30 March Online legal research skills including accessing free resources Thursday, 30 March The art of identifying case theories in commercial litigation Friday, 31 March Ethics on Friday: ethics begins at home

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614. For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692. For all upcoming events and further information please visit lawsocietywa.asn.au 57


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Brief February 2017  
Brief February 2017