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VOLUME 44 | NUMBER 5 | JUNE 2017

Volume 44 | Number 5 | June 2017

COVER 90 Years of the Law Society of Western Australia (1927 -2017)



lawsocietywa.asn.au LawSocietyWA @LawSocietyWA


90th Anniversary Lunch


Q&A with former Law Society Presidents


Presidents of the Law Society of Western Australia


The foundation and early history of the Law Society


Highlights of 90 years of history


The Law Society's long history in Access to Justice


The Law School Now and Then: From 1928 to the Juris Doctor

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Caring for the legal profession: LawCare WA

Editor: Jason MacLaurin

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Moira McKechnie Tel: (08) 9324 8650 | Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Brett Syme




Law Week 2017

Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, Robert French, Melissa Koo, Jason MacLaurin, The Hon John McKechnie QC, Alain Musikanth, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor, Eu-Min Teng


Mediation Update for Practitioners - Part 2

Proofreader: Andrew MacNiven


Opening of the Commonwealth Law Conference 2017

02 President's Report


180th Year Celebration of the Old Courthouse and Launch of the Final Stage of Redesign of Museum

04 Editor's Opinion

Deputy Editor: Moira Taylor

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

REGULARS 03 Your voice at work 06 Ethics Column 50 Family Law Case Notes 51 Young Lawyers Case Notes 52 Law Council Update 53 Pam Sawyer 54 Professional Announcements 55 Classifieds 55 New Members 56 Events Calendar 01

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

90th anniversary of the Law Society 90 years ago this month, the Law Society of Western Australia was established. On 15 June 1927, a group of about 30 practitioners gathered in the old library of the Supreme Court of Western Australia. The meeting was convened by former Premier and Attorney General of Western Australia Sir Walter James KC1. Among those present at the meeting were some of the leading figures in the profession of the day. They included Thomas (Tad) Davy, a brilliant young lawyer and future Attorney General, and Michael Lavan, a prominent local lawyer and future King’s Counsel, who had completed a Law Degree at Trinity College, Dublin having been admitted to the Bar in Western Australia at the age of 24, in 18972. Thomas Frederick Davies, Master of the Supreme Court, presided over the 15 June meeting. It was Thomas Davy who moved that “an Association of Legal Practitioners of Western Australia be formed”. The motion was seconded by Mr Lavan and, “after a short discussion in which Messrs Kott, Nicholson and others joined”, the motion was put and carried unanimously3. A review of the Society’s minutes and annual reports over the past 90 years reveals both a sustained growth in membership and an ever-increasing expansion of activity4. In the early years, much of the Society’s time was consumed by undertaking work associated with the Poor Persons’ Legal Assistance Act 1928, essentially the first formalised system of legal aid in Western Australia5. While neither the Society nor the rest of Western Australia was immune from the global turmoil accompanying the Second World War, it was during this difficult period that the Society, in 1940, first established a Law Reform Committee; a committee tasked with both making recommendations for law reform and assessing whether laws passing through the Parliament accorded with the interests of justice. 02 | BRIEF JUNE 2017

Today, the Society has over 30 active committees covering most facets of the law and comprising some of the leading practitioners in their respective fields. The combined expertise embodied within these committees, coupled with the indispensable policy work performed by them, is crucial in enabling the Society to fulfil its role as the voice of the legal profession in Western Australia. A review of the Society’s history also reveals the ever-increasing importance of legal education. The long relationship between the Society and the faculties of law within the State is underscored by the fact that, as early as 1928, two members of the Society’s Council were appointed to the fledgling Faculty of Law at the University of Western Australia. In 1946, the Society established the Law Society War Commemoration Prize, awarded to the best student at the Barristers’ Board examination. In 1961, the first Law Summer School was held. The conference has been a fixture of the Perth legal calendar ever since (excluding a brief hiatus in the mid1990s). The Society embraced the move to mandatory Continuing Professional Development (CPD) in 2008, significantly expanding its seminar programme to become a leading CPD provider. The Society has undergone significant changes over the past 90 years. However, its core objects, and its commitment to those objects, remain unaltered: 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. It is the commitment to these objects that continues to make the Society the essential membership for the legal profession in Western Australia. I hope you will join me in celebrating the 90th anniversary of the Society, on Thursday, 15 June at Perth Town Hall, corner of Hay Street and Barrack Street. The event promises to be an enjoyable evening of music, conversation, canapés and refreshments in historic surrounds, marking 90 years to the day since the Society was established.

The cocktail party is free for members, with non-members able to attend for $90. Thank you to our Principal Sponsor, JLT and Gold Sponsor, the University of Western Australia. Please visit lawsocietywa.asn.au/event/90thanniversary-cocktail-party to secure your place at this very special event. I look forward to seeing you there. NOTES 1.

Sir Walter was elected as the Society’s first President a few months later, on 3 October 1927, serving in that role until 1930.


The significant contribution made to the Society by leading members of the profession has remained one of its enduring features over the past 90 years. Past members of the Society’s Council having included two future Governors of Western Australia, more than 70 future judges including a future Chief Justice of the High Court of Australia and three other High Court judges, five future Chief Justices of Western Australia, a future Chief Justice of the Family Court of Australia, several future Chief Judges of the District and Family Courts of Western Australia, serving and future Masters of the Supreme Court, Commonwealth and State Attorneys General and Solicitors General, to name but a few.


More about the Society’s very early history may be found on page 18 of this edition of Brief.


Some of the milestones in this regard may be found on pages 20-21


More about the Society’s history in providing access to justice may be found on pages 22-23.

Your voice at work A summary of recent media statements and Society initiatives

Legal assistance funding campaign Since early 2016, the Society has worked closely with the Law Council of Australia, other Australian law societies and Bar associations, Legal Aid and community legal centres on a campaign to draw public attention to the nationwide crisis in legal assistance funding and encourage action from our politicians to confront this crisis. Over a period of two decades, successive Federal Governments have cut the Commonwealth’s share of legal aid from 50 percent to just 35 percent. In recent years, Legal Aid Western Australia has had to absorb budget cuts of over $4 million. In the 2015 State Budget, the then-WA Government announced the non-renewal of funding to the Employment Law Centre and cuts across the board to funding for community legal centres. These cuts have resulted in a system that has left vulnerable people in our community without legal representation. Practitioners who work in the community legal sector or engage in pro bono work know that the crisis has hurt real people. For example, in the first three weeks of January 2017 alone, the Mental Health Law Centre reports that it was forced to turn away 18 requests for criminal law assistance and seven requests for civil law assistance. Recognising the seriousness of the situation, in February 2016 the Society, together with the Law Council and law societies and Bar associations across Australia, called on the Federal Government to: •

increase the Commonwealth’s share of Legal Aid Commission funding to 50 percent, amounting to an additional $126 million; immediately provide $120 million to cover civil legal assistance, with the States and Territories contributing $80 million, for a total of $200 million – as recommended by the Productivity Commission; and immediately reverse the 2014 Commonwealth funding cuts to community legal centres and Aboriginal and Torres Strait Islander Legal Services to take effect from July 2017.

After a great deal of advocacy on the part of the Law Council and respective law societies and Bar associations, the Federal Government announced in April 2017 that it would reverse proposed cuts of approximately $35 million to community legal centres, which would have come into effect in July 2017. This was a major accomplishment for the legal assistance funding campaign and will avert more serious damage to the community legal sector. The Society’s advocacy for adequate legal assistance funding will continue, especially in light of the Productivity Commission’s 2014 recommendation of an additional $200 million. At the State level, the Society’s WA Legal Assistance Campaign was implemented in February and March 2017, in the lead up to the State election. The campaign was overseen by the Society’s WA Legal Assistance Campaign Working Group, which included representatives from the Society, Western Australian Bar Association, Legal Aid WA, the Aboriginal Legal Service of WA, Community Legal Centres WA Inc and Mental Health Law Centres WA Inc. As part of the campaign, the Society released a media statement on 28 February 2017, calling upon all candidates in the upcoming State election to make a public pledge to adequately fund legal assistance in Western Australia. In addition, personalised letters and emails, together with a campaign flyer, were sent to election candidates, asking them to commit an additional $8 million towards funding, as well as introducing a sustainable funding model over the long term. 21 candidates from across the political spectrum signed pledges to properly fund legal assistance. The opportunity to pledge support was also extended to the profession and the community. Thank you to everyone who pledged their support. The Society got its message to the public through a number of media articles, including a feature story in Business News and stories in community newspapers serving marginal electorates. The Society welcomed the announcement in April 2017 that the State Attorney General, the Hon John Quigley MLA, would take action to provide community

legal centres with almost $1.2 million to compensate for a loss of funding from the Legal Contribution Trust. The Society, along with the Law Council, will continue to work to secure a longterm, sustainable funding model for the legal assistance sector.

2017 Lawyer of the Year Awards The Society congratulates Simon Creek, Nicholas van Hattem and Krista McMeeken, winners of the 2017 Lawyer of the Year Awards. Simon Creek and Nicholas van Hattem were recognised in the more than five years’ experience category, while Krista McMeeken won the less than five years' experience Award. The Award presentation was the highlight of the Society's Law Week Awards Night, held on Thursday, 18 May at Bankwest Place, Perth. "The Law Society's Lawyer of the Year Awards recognise practitioners who have made a significant contribution to the legal profession in Western Australia, over and above what might be reasonably expected through paid employment," said President Alain Musikanth. "The Law Society warmly congratulates all of the award winners." Simon Creek is the Managing Director of HHG Legal Group and was recognised for his commitment to pro bono projects and charitable work. Nicholas van Hattem is a solicitor at the State Solicitor's Office and launched the Piddington Justice Project, an initiative to connect law graduates with community legal centres. Krista McMeeken is Principal Policy Officer for the Commissioner for Children and Young People and is dedicated to the promotion of human rights through her pro bono commitment to community organisations. The Society thanks Bankwest for hosting the Awards Night, and Profile Legal Recruitment and Murdoch University for sponsoring the Lawyer of the Year Awards.


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

The Society’s 90th anniversary is an occasion for celebration and reflection. The Society’s role is multi-faceted. It is, naturally, concerned with promoting the interests of its members and being the voice of the profession. However, given the role of the law and lawyers in society, there is always the overarching consideration of service to, and the interests of, the community. This is reflected in the Society’s focus upon law reform, access to justice and the rule of law. This edition contains articles about the Society’s history, and notable past events and achievements, which bear out these aspects of its role and activities.1 Brief hopes to continue to publish items reflecting the diverse aspects of the Society’s activities, and its members’ interests. Brief also hopes to introduce in the near future some new segments that deal with the more entertaining and quirky aspects of the profession. Earlier this year, in circumstances attracting some publicity, the chief executive of the Law Society of England and Wales quit. The letter of resignation included a reminder that some members of that Society’s governing council itself had previously described that Society using words such as “moribund, old fashioned and bureaucratic”. This is a tricky point to rebut, unless one has the bravery (or foolhardiness) to reply that “we meant that as a compliment” or “well, everyone loved Obi-Wan Kenobi”.2 The Law Society of Western Australia and all involved in its running, past and present, have much to be proud of. Especially because it seems the running of a law society is by no means an invariably smooth endeavour, as the episode described above shows. The early history of the Society shows it had to deal with some unique complications. The founding meeting of the Law Council of Australia in April 1933, which formalised a coalition of the law societies Australia-wide, took place only 11 days after WA had voted in a referendum in favour of secession. Talk about awkward. The WA delegation would have been forgiven for hoping that at no point during the three day conference would there be that bit where someone asks: “if anyone can show just cause why this couple cannot lawfully be joined together then let them speak now or forever hold their 04 | BRIEF JUNE 2017

peace…” There was, however, nothing to be worried about. As was befitting the dignity of the occasion (and the times) there is no record of any other delegates even discussing the prospect of imposing a cancellation fee or a three month trial period. Indeed, confidence that secession would not take place was well founded, as it turned out that actually achieving secession was an even more difficult process than cancelling a gym membership.3 The Society and the profession have also had to respond to a rapidly changing, technology-driven, world. It is noted with some regret that last month’s feature article, with its particular focus upon bitcoin, had almost immediate relevance. Though not in a good way, as bitcoin was the required currency for anyone desperately trying to get their hacked computer data released. One presumes bitcoin is also required to try to have that unsolicited U2 EP, that seems embedded in all our Apple devices, removed. In other signs of a changing world, Disney’s yet to be released movie Pirates of the Caribbean 5 was hacked, with threats to release Pirates 5 online in segments, if the bitcoin ransom was not paid. The ransomers had better not wait too long. If recent history is anything to go by, by the time all the segments of Pirates 5 are ultimately posted, Disney will probably have already made and released Pirates of the Caribbean (Fastness and Furiousness on the High Seas) 6. As readers are aware, this Editorial frequently looks to what prominent things were happening in 1927. While one of the most famous trials in history, the Scopes “Monkey” Trial, took place in 1925, it is a lesser well known fact that the appeal, overturning Scopes’ conviction, was decided in June 1927. The appeal was decided upon a technicality,4 and not upon the more substantive issues about teaching evolution and constitutional questions, that had been raised by Scopes’ lawyers in the appeal. As such all parties were unhappy with the result of the appeal. In any event, amongst all the fascinating aspects of the original trial, two oftpraised yet quirky moves from Clarence Darrow are of particular interest to lawyers. The first was to call his opposing counsel William Jennings Bryan as a witness,

purportedly upon the basis of Bryan’s expertise in biblical scripture (something Bryan initially disclaimed actual expertise in, which he then proceeded to prove when in the stand). To cross-examine opposing counsel would, in modern legal terminology, be referred to by most members of the profession as: just awesome. Darrow’s second masterstroke was, in lieu of a proper closing address, to ask the jury to bring in a verdict of guilty against his own client, saying the evidentiary rulings and the terms of the unjust law demanded it. As a result, Bryan was denied the opportunity to make a closing address, which Bryan had been looking forward to, especially after his cross-examination. This tactical move from Darrow is what in modern parlance the Editor’s children would call: “a sick burn”. Without wishing to derogate from Darrow’s brilliance, successfully entreating a jury to bring in a verdict of guilty against one’s own client is something most members of the profession would probably think they could handle pretty well and deliver upon. As noted above, this month’s Brief has many articles concerning the history of the Society and the legal profession in Western Australia. We have the Hon Chief Justice Wayne Martin AC on the 180th Year Celebration of the Old Courthouse and the Launch of the Final Stage of Redesign of the Law Museum, articles on the Founding and Early History of the Law Society and its long history in Access to Justice5, and Professor Peter Handford upon the history of the UWA Law School, whose time of origin corresponds to that of the Society. In addition, there is Fiona McLeod SC’s opening of the Commonwealth Law Conference, Part 2 of Michael Hollingdale’s article upon mediation, and Professor Gino dal Pont on Ethics. NOTES 1.





To choose just one example, the Law Society was, until 1977 (its 50th anniversary) a primary provider of legal aid, which is discussed in an article in this edition. In a clarification that should be unnecessary, but sadly in 2017 might be needed, this is a reference to Sir Alec Guinness in Star Wars Pt IV, not Ewan McGregor in the prequels. For details of the WA secessionist movement see Musgrave, Thomas (2003) "The Western Australian Secessionist Movement" Macquarie Law Journal 3: 98. For details of how hard it is to quit a gym membership wait about half an hour into any dinner party after the guests have run out of things to say about how difficult an AFL tipping season this is. The enthralling point being that the fine should have been fixed, due to its quantum and the amount of the minimum fine for Scopes’ offence (which is what the judge ordered – the minimum) by the jury, not the judge. Which are to be part of an upcoming publication by the Society upon its history.

We are delighted to invite members and the legal profession to join us in celebrating the Law Society’s 90 year birthday. Enjoy an evening of music, conversation, canapés and refreshments in the historic surrounds of the Perth Town Hall on 90 years to the day since the Law Society was founded.

Thursday, 15 June 2017, 5.30pm – 8.30pm Perth Town Hall, Corner of Hay Street and Barrack Street, Perth Attendance numbers for the event are strictly limited. To secure your place, please register online at lawsocietywa.asn.au

Principal Sponsor

Gold Sponsor

Note: The Law Society endorses moderation and a responsible attitude towards alcohol at all Law Society functions.

Famous for the wrong reasons Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

• Those who aspire to membership of the legal profession must exhibit good fame and character. • Courts have spoken of difficulties in removing the stains of bad character. • There may, in any event, be instances where questions over a person’s fame can block membership to the profession.

A person’s ‘character’, it has been said, "is the sum of his or her mental or moral qualities".1 In a set of two columns last year I probed the issue of whether character can change, through the lens of case law dealing with admission to practice, removal from practice and ultimately readmission to practice. But in these contexts the relevant inquiry is not confined to a person’s character. Both the general law and statute adopt the cumulative phrase ‘good fame and character’. ‘Fame’, as an ordinary word without any technical legal definition, evidently targets a person’s reputation in the relevant community. Of course, this does not mean that ‘fame’ and ‘character’ are mutually exclusive. The two intersect, as known blights on a person’s character can no doubt impact upon his or her reputation. And, as experience has repeatedly shown, media beat-ups over a person’s reputation can cast unjustified aspersions over his or her character. There nonetheless remains a distinction, a New South Wales judge observing that "[f]ame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks".2 Various judicial statements remark the challenges underscoring any change in character. For instance, it has been observed that "[c]haracter does not change readily"3 and that "[r]eformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing".4 A New Zealand judge has gone so far as to brand character as an "inherently immutable state",5 that is, a state unable to be changed. Taken at face value, these sentiments disclaim scope for any genuine road to Damascus experience, but instead pay heed to the Biblical rhetorical question surrounding leopards changing their spots.6

06 | BRIEF JUNE 2017

Yet the very fact that persons are admitted and readmitted to practice following events that, at an earlier time, cast a long shadow over their character suggests that good character can, for these purposes, be potentially earned or regained. Assuming this to have occurred in a given case, the question remains as to whether a person’s fame can nonetheless preclude membership of the profession. A Queensland judge has, on this point, cautioned that one should "focus on the applicant’s intrinsic character, and not be unduly distracted by his good fame, whether within the legal profession or the wider community".7 In the Internet and social media age, "whereby every mistake in life has the potential to be recorded forever", this approach, it has been suggested, "has much to commend it".8 But it does not, it seems, mean that questions over a person’s fame (indeed, infamy) can be ignored at the altar of character redemption. In a recent decision, the New South Wales Supreme Court refused readmission to a person who had been removed from the roll nearly 30 years earlier following a conviction for conspiracy to bribe the Minister for Corrective Services. This was despite evident contrition, an exemplary record in responsible positions thereafter, and supportive testimonials. Whilst accepting that the risks of a further similar transgression were "so low that they can be discounted",9 Beech-Jones J viewed the circumstances of the offence as so grave that a decision to readmit "would undermine public confidence in the standards expected of the legal profession".10 This prompted his Honour to surmise that "it may be that in a given case the circumstances surrounding a conviction are so grave that the particular applicant has no realistic prospect of ever being readmitted".11 If so, ‘bad’ fame can prove just as, if not more, immutable than ‘bad’ character, even though there may be little (more) a person can do to alter his or her reputation. NOTES: 1.

Singh v Auckland District Law Society [2002] 3 NZLR 392 at [45] per Harrison J.


Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 at [56] per Johnson J.


Re B [1981] 2 NSWLR 372 at 381 per Moffitt P.


Ex parte Tziniolis (1966) 67 SR (NSW) 448 at 461 per Walsh JA.


Singh v Auckland District Law Society [2002] 3 NZLR 392 at [45] per Harrison J.


Jeremiah 13:23.


Janus v Queensland Law Society Incorporated [2001] QCA 180 at [12] per de Jersey CJ.


Hilton v Legal Profession Admission Board [2016] NSWSC 1617 at [109] per Beech-Jones J.


Ibid., at [110].


Ibid., at [116].


Ibid., at [117].


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90th Anniversary Lunch

Law Society Presidents (past and present), Life Members, Law Society Executive and Executive Officers (past and present): (L-R) Back row: David Price (2006-present Chief Executive Officer); Greg McIntyre SC (2017 Vice President), Jocelyne Boujos (2017 Treasurer); Ian Weldon (2004 President); Elizabeth Heenan (2003 President/Life Member); Neil Roberts (1981-85 Executive Director); Clare Thompson (2002 President/Life Member); The Hon Justice Ken Martin (2001 President/Life Member); John Ley (1999 President); Her Hon Kate O’Brien (1998 President/Life Member); John Syminton (1997 President/Life Member); Michael McPhee (1994 President); Hayley Cormann (2017 Senior Vice President); John Fiocco (Life Member); Ted Sharp (1993 President) Middle row: Matthew Howard SC (President, WA Bar Association); Susan Fielding (Life Member); Steven Penglis (Life Member); Laurie Shervington (Life Member); Maria Saraceni (2006-07 President); The Hon Chief Justice Wayne Martin AC (2006 President/Life Member); The Hon Justice John Chaney (1991 President/Life Member); The Hon Michael Murray AM QC (1988 President/ Life Member); Robert Meadows QC (1986-87 President); The Hon Daryl Williams AM QC (1984 President/Life Member); Alison Gaines (1997-2006 Executive Director) Front row: John Gillett (Life Member); The Hon Carmel McLure AC QC (Life Member); Dudley Stow (2008-09 President/Life Member); Konrad de Kerloy (2014 President); Alain Musikanth (2017 President); The Hon Barry Rowland QC (1973-75 President); The Hon Geoffrey Miller QC (1979-81 President); His Hon Hal Jackson (1985 President); The Hon Robert Nicholson AO KCSJ FAAL (Life Member); The Hon Robert French AC (Life Member)


On Thursday, 30 March 2017, the Society brought together current and former Presidents, Chief Executive Officers, Life Members and other distinguished guests for a special lunch at The Western Australian Club to celebrate the Society’s 90th anniversary. It was a rare privilege to welcome so many people to the lunch who have made such a significant contribution to the work of the Society and the legal profession in Western Australia. The lunch was an excellent opportunity for former Society colleagues to catch up and reminisce about good times. The pleasant gathering served as a reminder of the important role that the Society has played, and continues to play, in the lives and careers of many practitioners.

Photos: 1.

Attendees enjoying lunch at the Western Australian Club


Susan Fielding, Maria Saraceni and John Gillett


Neil Roberts, Alison Gaines and David Price (past and current Chief Executive Officers)


Elizabeth Heenan and Greg McIntyre SC


The Hon Justice Ken Martin, The Hon Carmel McLure AC QC, Konrad de Kerloy, Clare Thompson and Matthew Howard SC


Former and current Law Society Presidents


Law Society Life Members


Laurie Shervington and Ted Sharp


Matthew Howard SC, The Hon Justice Ken Martin and The Hon Carmel McLure AC QC

10. Steven Penglis 11. The Hon Michael Murray AM QC, The Hon Justice John Chaney and Robert Meadows QC

08 | BRIEF JUNE 2017












Q&A with former Law Society Presidents What do you consider the highlight or most significant achievement of your presidency? The Hon Geoffrey Miller QC, 1979-1981 The most significant achievement of my time as President of the Society was the improvement in relations with the media. Michael McPhee, 1994 I played a part in the decision, made in late 1994, of the Western Australian profession to leave the NSW professional indemnity insurance scheme, with a view to establishing a standalone system of Professional Indemnity insurance for the local profession This was a big step. We had been part of the NSW scheme (known as SMIF, or Solicitors Mutual Insurance Fund) ever since PI insurance had been made compulsory in Western Australia, in the late 1980s. The scheme had worked well. But, issues arose during 1993 and into 1994 as to both the level of premium, with large increases forecast for the coming years; and also the method of calculation of the premium. The SMIF method of calculation was on a per principal basis whereas the preferred method of a large section of the local profession was either on a gross fee basis, a per practitioner basis, whether a principal or not, of the particular firm, or a combination of the two. Feelings on the matter were strongly held and expressed by various members of the profession, both for and against the SMIF system. Those arguments carried on all year. Things came to a head when SMIF insisted that we sign up to the forthcoming years premium without input. This requirement was not accepted by the Council of the Society. As a result of this stalemate, in November or December 1994, I chaired a general meeting of the Society - a very well attended meeting which filled up, with standing room only, the ballroom in the Parmelia Hotel - which passed a resolution to authorise the Society to withdraw from SMIF. Under the guidance of my successors the Society acted on the resolution, withdrew from SMIF, and replaced it with the 10 | BRIEF JUNE 2017

Law Mutual Insurance Scheme which is operating for the benefit of the profession, to this day. I like to think I played a part in that process which has been such an obvious benefit to the profession and the community. Gregory Boyle, 2000 Being part of the initial movement as President during 2000 toward national recognition of states’ qualifications was, in the context of the prevailing economic outlook, a significant event. The process involved much co-operation between the various law societies of Australia which, at the level of that co-operation was in itself a benefit to the Australian profession. Clare Thompson, 2002 The most significant achievement was the Roper Report which was the blueprint for the most significant change to legal practice in my time as a lawyer, the introduction of mandatory continuing professional development. In 2002 the Society obtained a grant from the Department of the Attorney General to engage Chris Roper to report on the possibilities and structure of CPD. That report led to the Society concluding that it must be undertaken on a profession wide, not the Society basis or the Society would lose members in droves. The Report ultimately was adopted by Legal Practice Board and the system of CPD we all now participate in was developed. Dudley Stow, 2008-2009 As the Western Australian member of the National Committee appointed by the Federal Attorney General to discuss and agree the principles of the proposed National Model Laws Project response enabled me to put forward WA’s view including funding, complaints system and our State independence. WA is the only State with a separate Legal Practice Board coupled with being the only State funding a Law Library (at significant cost), government lawyers paying no practice certificate fees, all of which provided challenges in the negotiations. Following the retirement of the then-CEO, selecting and appointing David Price as CEO. In normal circumstances it would have been the task of the then-President

Wayne Martin QC, but he retired as President after a few months, due to his appointment as Chief Justice, prior to the selection process. It therefore became my task with the assistance of Maria Saraceni. The negotiation and settlement of the outstanding Law Mutual (WA) Mortgage Broker Claims. The Mortgage Broker claims having consumed a significant amount of time and cost up to that date.

Do you think your time on Council and as President was of benefit to you? The Hon Geoffrey Miller QC, 1979-1981 My time on the Council and as President was of benefit to me because it enabled me to meet with other Presidents of bar associations/law societies throughout the Australian states. In many instances this led to long term associations with the individuals concerned. Michael McPhee, 1994 I do think my time on Council was of benefit to me. I sat on the Council for nice years and in that time served with six Presidents - Bob Meadows, Michael Murray, Rene Le Miere, John Chaney, Rick Cullen and Ted Sharp - as well as many other members of the profession on the Council, Executive and the staff of the Society. Many lasting friendships were made and my time there has left me with the satisfying knowledge that for a short time I had the honour of joining with all those friends in a concerted effort to be of service to the profession and the public at large. Gregory Boyle, 2000 Without doubt; as a partner in a large commercial firm it was personally refreshing to work with practitioners from all elements of the profession. The dedication and enthusiasm of so many members of the various committees which, to this day, contribute to the workings of the Society are a great tribute to the selflessness of the profession and an antidote to the cheap, easy shots that are too often fired at the profession by the

less-informed members of the community who do not value the role played by the rule of law. Clare Thompson, 2002 Absolutely. I had the great opportunity to meet and work with people across the profession, in WA and elsewhere, through my time as President. Some of my closest friends are people I met through the Society, both on Council and as a result of attending events and participating in activities. Given that I had not studied in WA and joined the profession with virtually no contacts here, the Society gave me a network and support group that I am really lucky to have, to this day.

The Hon Geoffrey Miller QC, 1979-1981

Dudley Stow, 2008-2009 I had previously been involved in a number of not-forprofit organisations, both as board member and also as chairperson, each provides a different learning experience and challenge. The Law Society Council had its own challenge partly because of its size, make-up and the at times political nature of – or at least perceived political nature of – its stance on issues. In short the need to be apolitical and seen to be apolitical. All coupled with the need to reach consensus and appropriate balance of views.

Michael McPhee 1994

If you could say just one thing what would it be? The Hon Geoffrey Miller QC, 1979-1981 I have learned from the law a better understanding of human life and a high regard for the Rule of Law.

Gregory Boyle 2000

Michael McPhee, 1994 As I have said to the young practitioners, who have done their articles with me over the years, quoting Francis Bacon as Lord Chancellor when instructing judges going on circuit,"... Get your law out of books and not out of your head..." along with one adopted from master carpenters or, as I describe it to students, the boatbuilders rule "... measure twice, cut once..." Gregory Boyle, 2000 Never write off or pre-judge the views of others even if, ultimately, they turn out to be wrong and never adopt the view of that consummate statesman, Talleyrand, who claimed not to respond to the arguments of others because he knew, automatically, that they were bound to be wrong!

Clare Thompson 2002

Clare Thompson, 2002 Be curious. The law, and the world, is an incredibly interesting place to be and being curious about it and taking opportunities to engage in areas of law or life outside your usual remit gives you great pleasure, enhances your understanding and provides enormous opportunity to engage in a world beyond your own small patch.

Dudley Stow 2008-2009

Dudley Stow, 2008-2009 Listen, discuss and ensure with the appropriate lead the right decision is made even if you may not always agree with it.


Presidents of the Law Society of Western Australia In the Society's 90 year history there have been 57 Presidents (one serving twice) including a father and son. It took the Society 67 years to appoint its first female President and there have only been six more since 1995. Happily 36 Presidents are still with us. Those who have passed on lived to 76 on average. Presidency of the Society has sometimes been the culmination of a long career but more often presaged later advancement.

Presidency seems to have been an established, though not inevitable, route to judicial preferment. There have been two Chief Justices. 21 office holders became judges and one, Deputy President Administrative Appeals Tribunal. Four held political office including a Premier and two Attorneys General. One was Solicitor General. 17 have received honours including a knighthood or an Australian honour with two Companions (AC), four Orders (AO) and three Members (AM).

A number founded well known law firms and others were distinguished solicitors. Since the WA Bar Association was founded, 58% have been barristers. In the beginning it was common for a President to serve for two, sometimes three years. More recently, reflecting the onerous nature of the role, Presidents have tended to serve a one year term. In all, the Society has been well served over 90 years by all those who have chosen to give their time and experience to the role of President.

Timeline of Law Society Presidents

1927 – 1930

1930 – 1935

About: Admitted WA 1888; founding partner Stone James and Co; Premier; Attorney General; Knight; KCMG; King's Counsel.

About: Admitted WA 1898; Partner Lavan and Walsh; King's Counsel.

1935 – 1937

1937 – 1940

About: Admitted WA 1900; solicitor.

About: Admitted WA 1914; Partner Howard-Bath and Sargant.

1940 – 1943

1943 – 1945

About: Admitted WA 1922; solicitor.

About: Admitted WA; founding partner Dwyer Durack; King’s Counsel.

1945 – 1948

1948 – 1950

About: Admitted WA 1920; founding partner Unmack and Unmack.

About: Admitted WA 1929; Queen's Counsel, Judge of the Supreme Court of Western Australia (1960 – 1973).

Sir Walter Hartwell James (1863 – 1943)

Wallace Elias Bickley Solomon (1878 – 1950)

Nathaniel Peaden Lappin (1898 – 1962)

Wallace Turnbull Unmack (1896 – 1963)

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Michael Gibson Lavan (1875 – 1937)

Sydney Howard-Bath (1877 – 1950)

John Peter (Jack) Durack (1886 – 1978)

John Hale (1905 – 1979)

1950 – 1951

1951 – 1952

About: Admitted WA 1928; founding partner Godfrey Virtue, Judge of the Supreme Court of Western Australia (1951 – 1975); Senior Puisne judge (1969-1975; KBE.

About: Rhodes Scholar (1918), Admitted WA 1923; Partner Villeneuve, Smith and Keall.

1952 – 1954

1954 – 1956

About: Admitted WA 1932; Partner Dwyer and Thomas.

About: Admitted WA 1926; Partner Parker and Parker; Queen's Counsel; Judge of the Supreme Court of Western Australia (1962 – 1969).

1956 – 1958

1958 – 1960

About: Admitted WA 1948; Partner Jackson McDonald, Judge of the Supreme Court of Western Australia (1975).

About: Admitted WA 1932; Partner Dwyer and Thomas.

1960 – 1962

1962 – 1964

About: Admitted WA 1941; Partner Joseph Muir and Williams, first President WA Bar Association; Queen's Counsel; Judge of the Supreme Court of Western Australia (1969 – 1977); Chief Justice of Western Australia (1977 – 1988); Governor (1990 – 1993); AC; KCMG.

About: Admitted WA 1935; Partner Stone James; Queen's Counsel; CMG.

1964 – 1966


About: Admitted WA 1934; Partner Lavan and Walsh, Queen's Counsel; KT; KT St J; Judge of the Supreme Court of Western Australia (1969 – 1981); Senior Puisne judge (1977 - 1981). Son of Michael Lavan, the Law Society’s second President.

About: Admitted WA 1939; founding member WA Bar Association, Queen's Counsel; AM; Judge Supreme Court Papua New Guinea (1966 – 1975).

John Evenden Virtue (1905 – 1986)

Howard Vincent Reilly (1905 – 1973)

George Dundas Wright (1917 – 1975)

Francis Theodore Page (Red) Burt (1918 – 2004)

John Martin Lavan (1911 – 2006)

1966 – 1968

John Samuel Charles Dewar (1911 – 1969) About: Admitted WA 1935; solicitor.

Hubert Taylor Stables (1897 – 1972)

Oscar Joseph Negus (1902 – 1970)

Howard Vincent Reilly (1905 – 1973)

Phillip Rennell Adams (1908 – 1994)

Gresley Drummond Clarkson (1916 – 2005)

1968 – 1970

Alkin Robert Alexander (Bob) Wallace (1924 – 2011) About: Admitted WA 1950; founding Partner Kott Wallace (later Kott Gunning); AO; Judge of the Supreme Court of Western Australia (1972 – 1991); Senior Puisne judge (1983 – 1991).


1970 – 1972

1972 – 1973

About: Admitted WA 1949; Queen's Counsel; AO; Judge of the Supreme Court of Western Australia (1976 – 1990).

About: Admitted WA 1952; Partner Ilbery, Toohey and Barblett; Queen's Counsel; AC; Judge Federal Court of Australia (1977 – 1987); Justice of the High Court of Australia (1987 – 1998).

1973 – 1975

1975 – 1977

About: Admitted WA 1953; partner Lavan and Walsh; member WA Bar Association; Queen's Counsel; Judge of the Supreme Court of Western Australia (1982 – 1996).

About: Admitted WA 1960; founding member WA Bar Association 1963; Queen's Counsel; Judge of the Supreme Court of Western Australia (1988 – 1998).

1977 – 1979

1979 – 1981

About: Admitted WA 1949; AO; Partner Stone James (ret).

About: Admitted WA 1965; Partner Godfrey Virtue; Queen's Counsel; Judge of the Supreme Court of Western Australia (1998 – 2009).



About: Admitted WA 1960; Partner Parker and Parker (ret).

About: Admitted WA 1966; Partner Northmore Hale Davy and Leake; Queen’s Counsel; first Commonwealth Director of Public Prosecutions; first Commissioner I.C.A.C. (NSW); AO.



About: Rhodes Scholar (1965); admitted WA 1968; Queen's Counsel; AM; Member House of Representatives (Tangney) (1993 – 2004); Attorney General Commonwealth of Australia (1996 – 2003).

About: Admitted WA 1965; Partner Godfrey Virtue; Judge District Court of Western Australia (1986 – 2003); President Children's Court of Western Australia (1989 –1993).

1986 – 1987


About: Admitted WA 1966; Partner Muir Williams Nicholson; Queen's Counsel; Solicitor General of Western Australia (1994 – 2011).

About: Admitted WA 1965; Crown Counsel (1980 – 1990); Queen's Counsel; AM; Judge of the Supreme Court of Western Australia (1990 – 2012); Senior Puisne judge (2002 - 2012).

Peter Frederick Brinsden (1922 – 2002)

Barry William Rowland

Alan Eric Blanckensee

Rory Edward Stanley Argyle

Daryl Robert Williams

Robert John Meadows

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John Leslie Toohey (1930 – 2015)

Terence Alan Walsh

Geoffrey Peter Miller

Ian Douglas Temby

Henry Hall (Hal) Jackson

Michael John Murray

1989 – 1990


About: Admitted WA 1978; Queen's Counsel; Judge of the Supreme Court of Western Australia (2004 – ); Senior Puisne judge (2015 – ).

About: Admitted WA 1976; Senior Counsel; Judge District Court of Western Australia (2004 – 2009), Judge of the Supreme Court of Western Australia (2009 – ), President State Administrative Tribunal (2009 – 2014).



Rene Lucien Le Miere

Richard Anthony Clarke (Rick) Cullen About: Admitted WA 1977; Director Cullen McLeod.

John Anthony Chaney

Theodore Henry (Ted) Sharp About: Admitted WA 1968; consultant Herbert Smith Freehills.



About: Admitted WA 1973; solicitor; MJ McPhee Barrister & Solicitors.

About: Admitted WA 1975; Director GV Lawyers.

1995 – 1996


About: Admitted WA 1981; first female Law Society President, District Court Judge (2005 – 2011), Deputy President State Administrative Tribunal (2005 – 2011).

About: Admitted WA 1976; Director Warren Syminton Ralph.



About: Admitted WA 1977; Centenary Medal; Judge District Court of Western Australia (1999 – 2010); President Children's Court of Western Australia (2002 – 2004).

About: Admitted WA 1975; barrister; Francis Burt Chambers.



About: Admitted WA 1969; Partner Jackson McDonald (ret).

About: Admitted WA 1978; Queen's Counsel; Centenary Medal; Justice of the Supreme Court of Western Australia (2009 – ).

Michael John McPhee

Judith Elsa (Judy) Eckert

Catherine Joan (Kate) O’Brien

Gregory Robert Boyle

Pino Anthony Monaco

John George Syminton

John Robert Broderick Ley

Kenneth James Martin




About: Admitted WA 1994; barrister, Francis Burt Chambers.

About: Admitted WA 1976; special counsel, Culshaw Miller.



About: Admitted WA 1986; barrister, Sir Clifford Grant Chambers.

About: Admitted WA 1984; solicitor (ret).


2006 – 2007

About: Admitted WA 1977; Queen's Counsel, AC; Chief Justice of Western Australia (2006 – ).

About: Admitted WA 1992; barrister, Francis Burt Chambers.

2008 – 2009

2010 – 2012

About: Admitted WA 1968; consultant, Herbert Smith Freehills.

About: Admitted WA 1992; barrister, Francis Burt Chambers.



Clare Helen Thompson

Ian Weldon

Wayne Stewart Martin

Dudley Randolph Stow

Dr Christopher Nigel William Kendall About: Admitted WA 2001; Deputy President of the Administrative Appeals Tribunal.

Elizabeth Jean Heenan

Celia Alison Searle

Maria Grazia Saraceni

Hylton Colin Quail

Craig Marshall Slater About: Admitted WA 1988; barrister, Francis Burt Chambers.



About: Admitted WA 1985; partner, Herbert Smith Freehills.

About: Admitted WA 2006; Member House of Representatives (Burt) (2016 – ).

Konrad Jacques Mony de Kerloy

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Matthew James Keogh



About: Admitted WA 1995; barrister; Francis Burt Chambers.

About: Admitted WA 2002; barrister, Francis Burt Chambers.

Elizabeth Cecily Jane Needham

Alain Jonathan Musikanth

Administration of the Law Society Secretary 1927 – 1933 1933 – 1935 1935 – 1939 1939 – 1946 1941 – 1943 1943 – 1945 1946 – 1949 1949 – 1951 1951 – 1954 1952 – 1953 1954 – 1960 1960 – 1965 1965 – 1970

Executive Officer F R Barlee J E Virtue B G Simpson G D Clarkson (at War 1941-45) P B Vershuer (Acting) C H Schonell (Acting) S H Johnson I G Medcalf I Stephenson (personal leave 1952-53) I W P McCall (Acting) A W B Gleadell S M McClemans L C Wood

1970 – 1974 1974 – 1977 1977 – 1978 1978 – 1979

J A Gardner W J Robinson (Acting) J A Franklin P A Smith

Executive Director 1979 – 1981 1981 – 1985 1985 – 1996 1997 1997 – 2006 2006 – 2015

R K F Davis N G Roberts P J Fitzpatrick AM J O’Halloran (Acting) A L Gaines D E Price

Chief Executive Officer 2015 – present

D E Price

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18/05/2017 12:39:41 PM


The foundation and early history of the Law Society This article incorporates research by Dr Catherine May for an upcoming publication detailing the history of the Society.

Western Australia was the last of the Australian states to form a Law Society, in 19271. For most of the 19th century, other colonies had advanced more rapidly than Western Australia, predominantly due to earlier gold finds and the isolation of Perth. Western Australia did not have the economic activity to support a large population or mature institutions. A basic judicial structure existed, but the legal profession was small in number. Victoria in particular had enjoyed boom times for nearly four decades, following the gold discoveries at Ballarat in the early 1850s. Then, in the 1890s, a series of economic crises caused Victoria to slide into a brutal, decade-long depression. In September 1892, on the other side of the continent, a major gold find was made at what became Coolgardie. Further discoveries gave rise to Kalgoorlie, and Western Australia became a gold mining economy. Combined with a drought affecting the eastern colonies, the gold rush made Western Australia an island of prosperity, leading to a population boost. Government and business activities expanded, attracting professionals, including lawyers. The completion of the grand Supreme Court building in 1903 signified the growing maturity of Western Australia’s legal institutions. Increasing signs of civic development were evident in Perth during the early part of the 20th century. Schools, instrumentalities, local government bodies and whole suburbs had completed their early growth and were now fully-fledged. The same was reflected in professions, trades and businesses. On 26 November 1926, Truth newspaper reported, “Never has there been such an infusion of young blood into Perth’s qualified legal fraternity than at present.” The legal profession in Western Australia was coming of age; the stage was set for the formation of the Society. In 1927, the Supreme Court building 18 | BRIEF JUNE 2017

housed not only the courts and judicial chambers, but also the Crown Law Department. The library occupied the central part of the river frontage, at ground floor level, and opened onto an arcaded colonnade. It was here, at 5.00pm on 15 June 1927, that some 30 members of the legal profession met, with the objective of forming a law association. The meeting of 15 June was presided over by Thomas Frederick Davies, Master of the Supreme Court. It was recorded that Sir Walter James KC ‘convened’ the meeting, but he was absent with a “severe cold”. Thomas Davy moved the motion “that an Association of Legal Practitioners of Western Australia be formed”. This was seconded by Michael Lavan. “After a short discussion in which Messrs Kott, Nicholson and others joined, the motion was put and carried unanimously.” A committee was appointed to draft a constitution and report back to members. Fred Barlee, Supreme Court Librarian, was appointed as temporary Secretary, and the meeting was then adjourned. On 12 August, a meeting of 24 practitioners settled the new association’s draft constitution. The document was read paragraph by paragraph and this occasioned “considerable discussion”. In this process, the proposed name of the organisation was changed from the Law Association of Western Australia to the Law Society of Western Australia. On 19 August 1927, Mr Barlee gave written notice confirming that the Society had been inaugurated on 15 June 1927, and that its first annual general meeting would be held on 3 October 1927 at the Supreme Court library. The notice indicated that there were 46 practitioners who were deemed to have been elected ‘foundation members’ and that, under the rules of the Society, any further practitioners who wished to become members could do so by sending him

a signed proposal by 30 September. Membership fees were set at £1 per annum for town members and 10/-6d for country members. The first annual general meeting was attended by 34 practitioners. It was recorded that the Society had 96 members and this was “met with the approval of the meeting”. Sir Walter James KC was elected the Society’s first President. The first meeting of the Society’s Council also took place also on 3 October. It was decided that Mr Barlee would continue as Secretary and that his starting salary would be £25 per annum – “necessarily small in view of the, at present, small revenue of the Society”. The Council also resolved to pay him a bonus of £10/10/“in recognition of his initial activities”. In November 1927, the Society held its first formal function, a dinner at the Savoy Hotel to welcome Frank Beasley, Foundation Law Professor at the University of Western Australia, who had been appointed in September. Professor Beasley went on to establish a working relationship with the Society lasting 35 years. Generations of members were his students. The gathering also established the strong bond between the Law School and the Society and underlined the ongoing importance of legal education to the Society. The Law Faculty at the University constituted on 1 February 1928 included, among others, two members nominated by both the Barristers’ Board and the Society. On 30 November 1928, the Society celebrated its first anniversary by holding another dinner at the Savoy. NOTES 1.

‘The Van Diemen’s Land Law Society’ was established in Tasmania in 1845 and was a precursor to the later Southern and Northern Law Societies, which eventually combined to form the Law Society of Tasmania in 1962. The Law Institute of Victoria was founded in 1859, the Queensland Law Society’s history dates back to 1873, the Law Society of South Australia was established in 1879 and the Law Society of New South Wales was formed in 1884. The Australian Capital Territory and Northern Territory Law Societies were later established in 1933 and 1968 respectively.

THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA The Legal Practice Board (LPB) is constituted under the Legal Profession Act 2008. The LPB has statutory responsibility for a range of regulatory and licencing functions for the legal profession in Western Australia and is seeking applications for the following positions. See www.lpbwa.org.au for further information on the LPB.

EXECUTIVE DIRECTOR Responsible to the LPB, the Executive Director is accountable for the strategic management of the LPB, specifically ensuring that the LPB is able to effectively perform its functions and its decisions and policies are implemented. The Executive Director manages all matters related to finance, human resources, information technology, governance, secretariat functions, premises and assets.

The Executive Director supports several LPB Committees and contributes to the management of various external relationships. In addition to being a Legal Practitioner admitted to practice in WA, the Executive Director should also be a knowledgeable, skilled and experienced business manager / administrator, capable of leading people and change.

LAW COMPLAINTS OFFICER The Law Complaints Officer holds a statutory position that performs the legislative functions of the Legal Profession Complaints Committee. The Law Complaints Officer is able to exercise the Committee’s powers in relation to various functions that are delegated to the Law Complaints Officer and is otherwise responsible for the administration of all complaints made against lawyers. The Law Complaints Officer must be a Legal Practitioner admitted to practice in WA with demonstrated substantial experience in the conduct of a legal practice and appearing before courts and tribunals. Intending applicants must offer extensive experience in the provision of high level advice and recommendations on complex legal matters. A reputation for exemplary and distinguished performance in the practice of law is essential. Sound commercial, communication and interpersonal skills, together with the ability to lead a team, are key requirements. On behalf of the LPB, Lester Blades invites applications for these two positions. Lawyers interested in being considered are encouraged to request copies of the Position Descriptions before making application. These may be obtained from Lester Blades by emailing amy@lesterblades.com.au or telephoning 08 9221 0744. Initial enquiries to Geoff Blades are also welcome. All enquiries will be treated as confidential. Confidential applications should be made in Word format to Lester Blades – Executive Search, Selection & Retention at applications@lesterblades.com.au quoting Reference LB301994 for the Executive Director and Reference LB301995 for the Law Complaints Officer. We would prefer to receive your application by close of business (WST) on Monday 19 June 2017.


Highlights of 90 years of history On 15 June, at a meeting of about 30 practitioners at the Supreme Court Library, Mr Thomas Davy moves “that an Association of Legal Practitioners of Western Australia be formed”. The motion is seconded by Mr Michael Lavan. 96 founding members.

Incorporated under the provisions of the Associations Incorporation Act 1895 on 8 December.

A founding member of the Law Council of Australia.



Adopts a statement of principles on professional conduct for members.


Assists in the execution of the Poor Persons’ Legal Assistance Act 1928 and becomes instrumental in the operation of Western Australia’s first formalised legal aid system

1958 Oscar Negus QC becomes the first Western Australian President of the Law Council of Australia.

Obtains its own premises at the Old Court House, Stirling Gardens.


1969-70 Partners with the Real Estate Institute of Western Australia to develop the General Conditions for the Sale of Land, replacing the outdated Table A Schedule to the Transfer of Land Act.

The Francis Burt Law Education Centre is established at the Old Court House. The Mock Trial Competition is also established.


1990 Establishes the Legal Superannuation Fund, managed by AMP, with Trustees consisting of an equal number of legal employers and employees.

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The Australian Legal Convention is held in Perth for the first time.

1959 Supports the work of the New Era Aboriginal Fellowship. The Committee was chaired by the Hon Robert French AC. The Fellowship evolved into the Aboriginal Legal Service of WA in 1974.


1939-45 Provides free legal assistance to members of the armed forces and their families throughout the war.

1960 Establishes its own Legal Assistance Scheme. Sheila McClemans, its first female Secretary (Chief Executive Officer), is appointed and administers the Scheme.



The first Law Summer School conference is held at UWA


The first ‘Law Day’, a precursor event to the current Law Week, is held on Monday, 18 April.


The first issue of Brief is published. Establishes the Law Access Pro Bono Referral Scheme.


Introduced the Quality Practice Standard (QPS).

1995 Establishes Law Mutual (WA), which makes Professional Indemnity Insurance arrangements on behalf of WA practitioners.


Significantly expands its CPD programme, after the introduction of mandatory CPD. Life Member the Hon Robert French AC is appointed Chief Justice of Australia. A cocktail function is held to celebrate the appointment.

The Chief Justice’s Law Week Youth Appeal Trust is established by members. The Hon Chief Justice David Malcolm AC is the inaugural patron.

2001 Establishes a Professional Standards Scheme for its members to cap occupational liability.



Moves to its current premises at 160 St Georges Terrace, Perth.


Enters into a joint venture with the UWA to revive Law Summer School (last held in 1993). President Wayne Martin QC (now the Hon Wayne Martin AC) is appointed Chief Justice of Western Australia.


2011 Launches its Report on Psychological Distress and Depression in the Legal Profession, which results in 29 recommendations. LawCare WA service relaunched.

Member satisfaction increases to 83% (up 25% from 2007).


Launches its first Reconciliation Action Plan, ‘Reflect’.



Celebrates its 90th anniversary. 3,870 members


Joins the national Legal Aid Matters campaign against funding cuts to legal aid and community legal centres.

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

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The Law Society's long history in Access to Justice This article incorporates research by Dr Catherine May for an upcoming publication detailing the history of the Society.

From the earliest days of the Society, providing access to justice for vulnerable members of the community was a primary consideration. When the Society was established in 1927, offences such as murder still carried the death penalty. The Society moved quickly to ensure that members of the profession could provide assistance in forma pauperis. On 30 May 1928, the Society sent a circular to members, inviting them to signal their availability to provide legal assistance for ‘indigent’ persons. By late 1928, a more comprehensive structure to help the community access legal assistance was being assembled. The Poor Persons Legal Assistance Bill was introduced to Parliament by the Collier Labor Government. The West Australian reported the second reading speech: Mr Davy resumed the debate on the Poor Persons Legal Assistance Bill. All, he said, would agree with the principle of the Bill. He hoped that the Minister would give an assurance that he was prepared to cooperate with the legal profession if they offered a suggestion. The profession was prepared to carry out the functions of this practitioner (a public solicitor) and thus save the appointment of a permanent official. The idea was to appoint a committee to consider the applications for legal assistance and then to appoint one of the profession to deal with the matter. The Bill passed and became the Poor Persons Legal Assistance Act 1928. The Society’s Annual Report of 1928-29 records that the Act was the “principal matter dealt with during the year”: A circular to members met with a favourable reply from 21 practitioners,

22 | BRIEF JUNE 2017

who signified their willingness to cooperate. Regulations and a scale of fees were drawn and settled with the Crown Law Department and these and the names of the present Council have been approved and gazetted. Already one of the volunteers has undertaken the conduct of a Poor Person’s case.

A motion was carried at the annual general meeting that free advice concerning matters affecting status should be given to members of the forces enlisted for overseas service and their dependants and that Wills and Powers of Attorney for members of the forces enlisted overseas should be prepared free of charge.

The Act provided for a means test administered by the Crown Law Department. If an applicant passed this stage, the matter went to the Society’s Council, which considered the merits of the case and assigned a solicitor. At the end of each Council meeting, a number of applications for legal assistance would be considered. In 1929-30, the Society dealt with more than 130 matters under the Act. The number of matters dealt with only increased over the years. By 1935, it had climbed to 496.

By the late 1940s, the Poor Persons Legal Assistance Scheme was of little practical use. Inflation had made the means test so severe that very few qualified to lodge an application. Divorce matters had been excluded from the operation of the Act by Ministerial decree. Being keenly aware of these inherent problems and the social cost, the Society embarked on a major project to investigate alternatives and devise its own comprehensive scheme.

The Act provided for defences to criminal charges and a means to pursue civil action. For many decades, the assistance of members of the Society was a vital lifeline for people who would have been otherwise unable to access legal representation. During the Second World War, the Society provided free legal advice to members of the armed forces and their dependents. The Society’s Annual Report of 1940 stated: The Society decided that any application by a member of the AIF [Australian Imperial Force] for free legal assistance could be made to the Society, which would deal with the application on its merits and if necessary assign a practitioner.

The Society was frustrated in its attempts until the late 1950s, when the State Labor Government of Albert Hawke made significant changes. The new scheme had essentially no legislative basis; it was a funding arrangement whereby the Government would provide an annual grant of £3,500 to enable the Society to take complete responsibility for legal aid. There was no statutory means test for applicants and the Society had complete discretion in dealing with applications. It was hoped to commence the scheme on 1 January 1960, but final arrangements took somewhat longer. At a meeting on 15 June 1960, the Society’s President Howard Reilly announced “the appointment of Miss Sheila McClemans as Secretary of the Society as from 1 July.” Sheila McClemans was not only to be Secretary, but was also charged with establishing the Society’s Legal Aid Scheme.

The Scheme was a dramatic departure from anything previously undertaken by the Law Society, despite its long history of bro bono work. This was a service to the public which required physical premises, a budget and continuing management. From the start, the available resources were insufficient to handle the demand. Each applicant needed a professional standard of attention from the Secretary, which meant that not all could be dealt with immediately. In a 1982 interview, Sheila McClemans recalled the generosity of the legal practitioners who offered assistance to the public: “Practitioners were prepared to do work for no fee at all. It was entirely voluntary, and they were wonderful.” By the mid-1970s, the Scheme had been expanded, with a duty counsel attending

local courts and providing immediate advice to individuals who had been arrested. The service was subsequently extended to the north west of Western Australia, with rostered tours of the area by local practitioners and those from Perth. In 1974, the Federal Government began to take an active role in the provision of legal aid, with the establishment of Australian Legal Aid Offices across the country. A 1977 review led to the enactment of the Commonwealth Legal Aid Commission Act, establishing Legal Aid Commissions across Australia. This was to signal the end of the Society’s role as the primary provider of legal aid services in Western Australia. A key feature of the new Legal Aid Commission was the provision for salaried, in-house lawyers, rather than the purely voluntary system that the Society had operated.

The Society would again enter into delivering legal assistance to the community in the early 1990s, with the establishment of the Law Access Pro Bono Referral Scheme. In December 2014, Law Access Limited was established as a wholly-owned subsidiary of the Society. From 1 July 2015, the Law Access Pro Bono Referral Scheme has been delivered by Law Access Limited. Law Access coordinates the giving of pro bono legal assistance by the profession. The service is targeted at not-for-profits and individuals in genuine need of legal assistance who satisfy a means and merits test. Please visit lawsocietywa.asn.au/law-access to find out more.

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The Law School Now and Then: From 1928 to the Juris Doctor Adapted from a lecture given in February 2013, on the occasion of the centenary of the University of Western Australia.

By Peter Handford Winthrop Professor, UWA Law School

When the University of Western Australia was established in 1913, it had no Law School. The only way at that time in which lawyers could qualify for admission to practice was by undergoing a period of practical training – service of five years in articles with a practising lawyer. As early as 1920, the Professorial Board resolved to recommend the establishment of a Faculty of Law, and agreement was reached with the Barristers' Board (as the authority regulating the legal profession in Western Australia was then called), under which students would complete a four year LLB and would then be qualified for admission to practise after service of three years in articles, instead of the usual five. But implementation of this plan was delayed, because it was thought to be too expensive. For the first time, but certainly not for the last, financial problems stood in the way of progressing the development of legal education. Eventually these problems were overcome, as a result of the Barristers' Board agreeing to contribute £500 annually to the cost of the Law School, and this sum was found by imposing a levy of £6 on each practising lawyer. The Faculty of Law was established by Senate resolution, and in September 1927 Frank Beasley, a graduate of Wadham College, Oxford and Sydney University, was appointed as the first Professor. Teaching began a few months later, in early 1928. In 2017-2018 the Law School thus celebrates its 90th anniversary. I arrived at the Law School in March 1977, initially as a visiting lecturer. In that year, the Law School was celebrating its 50th anniversary by holding a series of lectures, later published under the title Law under Stress. In 2003, 24 | BRIEF JUNE 2017

the Law School celebrated the 75th anniversary of the beginning of classes by presenting the first Beasley medals to two distinguished graduates, Sir Francis Burt (former Chief Justice and Governor of Western Australia) and Sir Ronald Wilson (our first High Court judge), and holding a dinner in Winthrop Hall attended by graduates of every vintage from 1937 to 2003. This great occasion was also an opportunity to celebrate UWA’s achievement in becoming world mooting champions by winning the Philip C Jessup International Law Moot in Washington.

History of Legal Education The idea that intending lawyers study law at university is comparatively recent. In England (from which of course Australia has inherited its law and legal traditions) courts were created in the Middle Ages, and a legal profession came into existence in the wake of the creation of the courts. The Universities of Oxford and Cambridge were in existence, but law was not taught there. Lawyers instead learnt law by a sort of apprenticeship. In England, the legal profession has always been divided into barristers and solicitors – intending barristers joined one of the four Inns of Court, and learnt by following the example of more senior practitioners. Attorneys and solicitors had to serve a period of five years in articles with a practising solicitor. This requirement was formalised by a statute of George II with the interesting title ‘An Act for continuing, explaining and amending the several laws for the better regulation of attorneys and solicitors; and for preventing the spreading of the distemper among the horned cattle.’ In 1753, Sir William Blackstone,

then Professor of Law at Oxford, commenced giving a course of lectures on English Law, eventually published as Blackstone’s Commentaries, but after his time the teaching of law at Oxford effectively lapsed, and it was not until the 19th century that the teaching of law commenced in the universities of Oxford, Cambridge and London. Other law faculties did not appear until the early 20th century. Even then, until the mid 20th century those who intended to become practising lawyers often passed up the chance to read law at university, and read something like classics instead – law was thought to be something which could easily be picked up later on. I should add one qualification here – lawyers who practised in a special area called the civil law, which covered such things as succession on death, family law and admiralty – in the words of Sir Alan Herbert, wills, wives and wrecks – did study law at university, and they became Doctors of Law. This area of law was much closer to the European continental tradition inherited from Roman law, which had been studied in universities since the 12th century. My own Cambridge college, Trinity Hall, was founded in 1350 for the study of civil and canon law, and supplied lawyers for this particular area of legal practice for hundreds of years – but all this was very much the exception. Turning to the situation in Australia, we find that Australia followed and in some respects may even have anticipated the English example. Law teaching commenced at Melbourne University in 1857, at Sydney University in 1859, at Adelaide University in 1883, and at the University of Tasmania in 1893. I suspect that one reason why it quickly became the norm to acquire a law degree was that Australia lacked the other institutions

such as the Inns of Court by which in England it was possible to acquire some sort of legal education. In Western Australia, as soon as the first courts were established in 1830 there was of course a need for lawyers, and the roll of practitioners kept at the Supreme Court dates back to 1836. To show how small the legal profession was in those days and for long afterwards, let us look at some figures. In the 90-odd years between 1836 and the admission to practise of the first Law School graduates in 1930, only about 400 persons were admitted, and No 1000 was not reached until 1971. Since then, expansion has been rapid. It only took another 10 years to reach number 2000, and nearly 40 years later we are not far short of 20,000. It should be said however, that many lawyers admitted in Western Australia in recent years are lawyers from other states whose primary practice is not in Western Australia.

The Law School, 1928 onwards – Student numbers What sort of impact did the UWA Law School make when it started teaching Law in 1928? In the early days, the Law School was very small; there were only 21 students in 1928. Moreover, most of these never graduated – they were simply law clerks who were taking law classes at the University, and they continued to qualify for admission in the old way by serving five years in articles, and this remained common until World War II. However, there was one important group of students for whom this method of

qualification was not really open, and for whom getting a degree offered the only opportunity to break into legal practice – the female students. Women found it very difficult to get articles in the early days, and so among the early students there was a high percentage of females. Enid Russell (who wrote the standard work on the history of the law in Western Australia) was the first woman to graduate in 1931, and she was followed by others such as Molly Kingston and Sheila McClemans, who formed the first all-female legal firm in 1934 – Molly afterwards became only the second woman to go to the bar in Victoria, and Sheila was the first woman to appear as counsel in the Supreme Court of Western Australia. Another important early female student was Joan Heenan, who continued in practice in Western Australia until the 1980s. Of the 59 students who graduated between 1930 and 1939, 11 were women. After the first year or two of the war, the Law School virtually shut down. Professor Beasley, at that time the only full-time staff member, was on active service. No classes were held in 1942 or 1943, and no students graduated between 1942 and 1947. However, classes resumed at the end of the war, and there has been a steady period of growth from then on. Let us look at a few figures which shed light on the increasing numbers of students over the past 60odd years. First, the number of students admitted. Numbers at first were fairly low, but gradually increased. There was no quota for admission, and everyone who met entrance requirements was accepted for

enrolment. This meant that there was a high failure rate – something like 25 percent at the end of first year. However, there was an important change in 1972, when a quota of 110 was introduced. It was increased to 160 in 1986, and further increased to 210 in 1989 or thereabouts, around the time that plans were announced to open a Law School at Murdoch University. Through the 1990s and the 2000s, the quota became less rigidly enforced and eventually in effect disappeared – and because there were lots of well-qualified students applying for entry to Law (the TEE/ATAR cut-off remained constant at round about 97 percent), there was pressure from the University to expand the number of students admitted. By 2011, the last year in which the Law School admitted students to the LLB degree, the Law School was taking in about 350 students every year. The numbers of graduates show that the 1960s and 1970s were a growth period, but that the figures then remained steady through the 1980s – no doubt due to the effect of the quota. In the 1970s it was in fact suggested that there was a shortage of lawyers in Western Australia, and at this time the number of lawyers admitted to practise who had qualified overseas, notably in Southern Africa, increased considerably. The increase in the quota at UWA and the advent of the Murdoch Law School began to remedy the shortfall, and with rising numbers at these two universities, and other new Law Schools at Notre Dame, Edith Cowan and Curtin, far from there being a shortage of lawyers, the position is that the legal profession 25

cannot absorb all the law graduates that are now being produced. However, this seems to matter less than it once did. It is now accepted that Law is a very good grounding for all sorts of things, and Law graduates go into all sorts of careers – politics, the public service, corporations, journalism and much more – rather than just into private practice. Another trend the figures show is the increasing number of female law students and graduates. Though, as I have said, there were a number of women students in the early days, female students were almost non-existent in the 1940s and 50s, and even in the 1960s the number of female students was fairly low. It is very different now. 1986 was the first year in which female graduates outnumbered male graduates, and this trend has continued ever since.

The staff of the Law School Professor Beasley became the first Dean of the Law School, and he remained Dean for the staggering period of 36 years. This is because, for much of that time, he was the only full-time staff member. The subjects he could not teach were taught by part-time teachers who were members of the legal profession – as time went on, they were of course the cream of the Law School’s graduates: Francis Burt, Ronald Wilson, John Toohey and many more. However, as the Law School began to expand after World War II, it became clear that more full-time staff were needed – even though at one point the Barristers' Board opposed this on grounds of cost. In 1947 a second full-time staff member was appointed; 10 years later in 1957 there were 5, by 1967 there were 9, and in 1977 when I arrived as a visiting lecturer, there were 17. Numbers have continued to increase, and currently the staff (fulltime and part-time) number around 50. The way in which the Law School staff has expanded over the years can be illustrated by tracking the appointment of Professors. When I became a Professor in 2004, I was only the ninth such appointment in 75 years, but there have been another 11 since. Professor Beasley eventually retired in 1963 and was succeeded as Dean by Professor Douglas Payne, who came to UWA from Oxford University. There have been another 13 Deans after that, including our first female Dean, Professor Erika Techera, and her successor, Natalie Skead, the present Dean and Head of School. As from 2017 Law has become a School in the Faculty of Arts, Business, Law and Education.

Buildings In 1928, when the first classes in Law were held, UWA was still in the city, and so Law classes were held in the University building on the corner of Irwin St and St Georges Terrace – familiarly known as ‘Tin Pot Alley’. This building has now been re-erected on James Oval on the Crawley site. In 1932, with the completion of Winthrop Hall and other early buildings on the Crawley site, the Law School moved to Crawley. For a few years, the Law School was accommodated in rooms in the Winthrop Hall complex, but in 1936 it was given space in an unused wood and asbestos building on the western edge of the campus, where it remained for the next 21 years. 1967 was a very important year for the Law School, because it moved to its present building, on the eastern edge of the Crawley campus. This building, designed by Gus Ferguson, was formally opened in 1967 by Sir Garfield Barwick, Chief Justice of the High Court of Australia. In 1991 the Law School expanded into the Link Building, built in the space between the Law School and the Economics and Commerce Building, and in 2009 it expanded again to occupy parts of the Economics and Commerce Building.

The Law Course 2013 was a very significant year in the Law School’s history, because it saw the launch of the new Juris Doctor degree – the JD. Following the English tradition, law students have generally studied for the LLB, an undergraduate degree programme that students generally enter straight from school. However, in the United States, for many years now, there has been a different tradition: American students commence their university studies by doing an undergraduate degree in a different discipline, and Law is a postgraduate degree course for which students must qualify by getting a first degree. The United States postgraduate law degree is called the JD. It is not a doctoral degree, and graduates cannot call themselves ‘Doctor’ – ‘Juris Doctor’ is best translated as ‘teacher of law’. In recent years, other countries, such as Canada and Hong Kong, have followed the trend by creating postgraduate JD courses, and in Australia Melbourne became the first Australian university to go over to a postgraduate JD instead of an undergraduate LLB in 2007. UWA followed in 2013. Other universities now offer the JD as an alternative to the LLB. From 1928 to 1972, UWA students

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enrolled in the undergraduate LLB degree, a four year degree which initially contained some Arts units, but later consisted entirely of Law units. The separation between the academic and professional stages of legal training was recognised by the fact that after graduating and while serving two years in articles students had to study for and pass examinations in Accounts, Taxation, Conveyancing, and Procedure. As from 1972, in a move which can now be seen as a forerunner of the latest changes, students were no longer admitted straight from school, but instead had to do a first year of Arts or some other discipline, and then on the basis of their first year marks were admitted to a new three year degree called the B Juris – Bachelor of Jurisprudence. The LLB became a one year degree which followed on from the B Juris, and consisted largely of professional units such as Conveyancing and Procedure. In effect, the Law School had taken over responsibility for the professional as well as the academic stages of legal training. Other consequences were that the period of articles was reduced to one year and a period of restricted practice following admission was introduced. The new system was to some extent a reflection of the American model that suggested that students should not be admitted to Law School until they had some experience of study at tertiary level. It was as part of this new system that the quota of 110 was introduced. The new system lasted for the next twenty years, but came under pressure from two directions. First, many students who had completed the first year of another degree wanted to go on and finish that degree, and so there was pressure to introduce joint degrees. Secondly, by this time, most other Australian Law Schools offered a five year joint degree programme. In 1992, therefore, the UWA Law School abandoned the pre-requisite year requirement and went back to admitting students straight from school, but now, instead of a four year LLB, school leavers were required to enrol in a five-year joint degree programme, such as BA/ LLB. The B Juris degree passed into history. Students who already had a degree could enrol in a single degree programme, the three year LLB. These are the programmes that the Law School offered from 1992 to 2016. In 2008 the University announced a general review of its undergraduate degree structure, and what resulted were the reforms known as ‘New Courses 2012’. As from 2012, all students now

enrol in one of five undergraduate degrees, organised according to a uniform structure. As part of this plan, there are to be no more joint degrees: all courses leading to a professional qualification – not only Law, but also Medicine, Dentistry, Engineering, Education and so on – are to be studied at postgraduate level, after students have completed an initial degree. Law offers two undergraduate majors – Law in Society in the BA degree and Business Law in the Bachelor of Commerce. The Law School has also been teaching at Masters level for many years. The LLM by coursework was introduced in the 1980s, and has been followed by other Masters degrees such as the Master of Criminal Justice and the Master of Commercial and Resources Law. This reflects the work of the two specialist centres established within the Law School – the Crime Research Centre (now closed) and the Centre for Mining, Energy and Natural Resources Law. Several more Masters programmes were introduced between 2013 and 2015. The first PhD in Law was awarded in 1986 and the number of PhD graduates has increased steadily since then.

Graduates There are now tens of thousands of Law School graduates, many of whom have had distinguished careers in a number of fields. Five Law School graduates have served as Justices of the High Court of Australia: Ronald Wilson, John Toohey, Robert French (the first Law School graduate to serve as Chief Justice), and two present members of the Court, Michelle Gordon and James Edelman – in James Edelman’s case, preceded by a distinguished academic career culminating in being appointed Oxford’s youngest law professor. There have been three Chief Justices of Western Australia (Francis Burt, David Malcolm and Wayne Martin), and many who have been appointed as Justices of the Supreme Court of Western Australia, the District Court, the Family Court and the Federal Court of Australia. Kevin Parker served as Vice-President of the of the International Criminal Tribunal for the former Yugoslavia in The Hague, Maurice Cullity as a Justice of the Supreme Court of Ontario, and Elizabeth Hollingworth and Melanie Sloss are both currently Justices of the Supreme Court of Victoria.

Turning from the judiciary to politics, the Law School can claim a Prime Minister (Bob Hawke), a Leader of the Federal Opposition (Billy Snedden), two Federal Attorneys General (Peter Durack and Daryl Williams), several Federal Ministers (Gordon Freeth, Ian Viner, Stephen Smith and Christian Porter), a State Premier (Peter Dowding) and many State Attorneys General, other ministers and members of parliament. Francis Burt and Malcolm McCusker both served as Governors of Western Australia. Law School graduates have also achieved distinction in many other fields, such as universities (including two vice-chancellors of WA universities, Jeanette Hacket at Curtin and Celia Hammond at Notre Dame), the public service (including Sue Gordon, the first Aboriginal person to head a government department in WA), commerce, journalism, the arts (including novelist Nicholas Hasluck and opera singer Duncan Rock), and sport. Joseph Starke, a distinguished international lawyer, was the first of the Law School’s 19 Rhodes Scholars: some of those listed above are among their number. Biographies of more Law School alumni can be found at law.uwa.edu.au/alumni/graduates.

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Caring for the legal profession: LawCare WA The Society’s LawCare WA service dates back to 1990. The service was launched by then President Rene Le Miere (now the Hon Justice Le Miere) at the Society’s winter conference in Broome. From its inception, LawCare WA was to be an independent counselling service for lawyers. Surveys conducted by the Society had shown that there was a high level of stress within the legal profession, as well as difficulties in coping with professional and personal problems. The Society responded by instituting an independent counselling service to provide practitioners with assistance in dealing with stress, management issues and drug and alcohol abuse. In 1990, any member wishing to use the LawCare WA service could do so by contacting a member of the Senior Advisors Panel (which had been set up that same year) or the Executive Director. Where a consultation with a specialist was required, the Society would cover the first consultation fee. The Senior Advisors Panel was established as an avenue for members to contact experienced practitioners for advice. The Society maintains the Senior Advisors Panel currently. Members of the Panel have indicated their willingness to discuss professional conduct and ethical issues with other practitioners. Please visit lawsocietywa.asn.au/senioradvisors-panel to find out more. In 1996, the Society’s Council adopted guidelines against discrimination and sexual harassment, which were distributed to all Society members.

The Society defined discrimination and sexual harassment as constituting unprofessional conduct under its Professional Conduct Rules. The new guidelines allowed for a panel of conciliators to confidentially resolve any disputes arising in the legal profession. LawCare WA underwent a significant overhaul following the Society’s Report on Psychological Distress and Depression in the Legal Profession. The Report followed several years of work to review its existing strategies for dealing with psychological distress and depression in the profession. As a result of the Report, the Society relaunched an all-new LawCare WA service to provide professional, confidential and free counselling services to support the health and wellbeing of members. The revamped LawCare WA services include up to three free sessions of counselling support for each member annually and a dedicated online resource and information hub.

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

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

Since 3 January 2017, the Society has been trialling a six month arrangement with the Chamber of Commerce and Industry of Western Australia. Members can access a team of senior industry figures within the CCIWA Employee Relations Advice Centre, free of charge, for telephone advice on a range of human resources and employee relations issues. The telephone advisory service is available to members from 8.00am to 5.00pm, Monday to Thursday and 8.00am to 4.00pm on Friday. Call (08) 9365 7660. To access LawCare WA please call 1300 361 008. Visit lawsocietywa.asn.au/ lawcare-wa to find out more. Disclaimer: The Law Society does not warrant or guarantee the LawCare WA services provided by the third party provider and are not liable in relation to any aspect of the services they may provide to you. The Law Society shall not be liable for any damages or costs of any type arising out of or in any way connected with your use of these services. Information is not intended to replace the medical advice of your doctor or healthcare provider. Please consult your doctor or healthcare provider for advice about a medical condition.

Please Donate, Adopt Foster, Bequeath, Volunteer

KBE Human Capital is Western Australia’s leading Legal Recruitment firm. M&A Activity/Partnership Opportunities KBE Human Capital has been engaged to establish several new law firms who will be looking to enter the WA market in 2017. We are also advising a group of top/mid-tier Partners with transportable fee bases of varying sizes who are seeking Partnership opportunities within boutique practices. We regularly assist Partners/firms looking to transition out of practice and/or join larger teams in benefiting from economies of scale and sharing fixed costs to increase overall profitability. Below is a snapshot of our most recent Salaried/Equity Partner briefs: Salaried/Equity Partner – Corporate/M&A/ ECM – international top-tier firm. KBE Human Capital has been briefed by a global top-tier law firm to secure a high calibre Corporate Law Partner, to lead and build the ECM practice and assist with overflow work on public/private M&A deals. This position would suit a highly driven Senior Associate with a $400k+ transportable client base, or experienced Partner from a top/mid tier or market leading boutique firm. Senior Partners transitioning to retirement may find this role attractive, given the firm is willing to be flexible with regards to hours and expectations, for the right person. Senior Litigation Partner – international firm. We are currently working with a leading international law firm to secure a Senior Litigation Partner to lead the Perth practice. The firm has a reputation for completing some of the most complex and high profile matters across the Asia Pacific region, and remain one of the few top-tier firms who continue to grow aggressively in WA. Working with clients from a range of industry sectors, this position will involve advising on international and cross border transaction disputes, energy and resources disputes (with a focus on major projects), and infrastructure and construction disputes. This position would suit an experienced Partner with the ability supervise and mentor junior and mid level lawyers and who can bring a transferable fee/client base in the order of $1m+. Workplace Relations Partner – national firm. Following recent growth in complimentary practice areas, a leading national firm is seeking a Workplace Relations Partner to build and lead a new practice in WA. The incoming Senior Lawyer will benefit from an extensive internal referral network, and work alongside a group of top-tier Partners. You will have previous

exposure to a range of complex matters and be driven to build and lead a practice across both advisory and litigious matters. We are interested in speaking to lawyers with 8+ years’ PAE, with the ability to manage junior lawyers, provide commercially minded legal advice and bring across a transportable fee base of $300K+.

Market Snapshot Banking and Finance Lawyer – Associate/Senior Associate – international firm. The successful applicant will join a team with extensive experience in all forms of debt and hybrid funding structures, having advised on many landmark transactions across the domestic, Asia Pacific and European markets. This particular team has specialist experience in limited and non-recourse financings, both domestic and cross-border, in the resources and infrastructure sectors. We are interested in speaking with B&F Lawyers with 3-8+ years’ PAE from a top/ mid-tier or national/international firm. This role would suit a motivated individual with strong technical knowledge, who is comfortable taking a lead role on complex matters and working directly with senior stakeholders within the firm’s tier-one client base. Commercial Litigation – Head of Practice – medium sized firm. This is a new opportunity for an experienced Litigation Lawyer to join a highly successful litigation team who advise significant private, SME and HNW individual clients. The firm boasts a long established and loyal client and referral base with wellconnected Partners who have worked together for many years. Taking over the practice from a long-term employee, this role will involve providing strategic litigation and dispute resolution advice across general commercial litigation, contractual and property disputes. Our client is interested in meeting with highly motivated lawyers from a top/mid-tier or leading boutique firm with 5+ years’ through to Special Counsel level. You will have the ability to manage your own file load with full autonomy and be comfortable with extensive client contact. Construction/Projects Lawyers for national and international firms. KBE Human Capital has been briefed by three Construction and Construction/Projects teams to secure high quality Construction Lawyers with 2-6 years’ PAE. Working closely with Partners and advising tier one Principals and Contractors, these positions are career development roles offering exposure to front end advisory matters as well as extensive responsibility running high end disputes. Corporate/M&A Lawyer – Senior Associate – transition to partnership. We are currently working with a premier mid-tier law firm to

Chris Bates

Maryann McKenna

Managing Director

Principal Consultant

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

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

secure an experienced Corporate Advisory/M&A lawyer at the Senior Associate to Special Counsel level. Working closely with Boards and Directors/in-house counsel, you will provide strategic advice across public and private M&A, IPO’s, RTO’s, defences (including a strong track record of hostile defences), retail/institutional offerings and placements, share/asset acquisitions, and private equity structuring and advice. We are interested in speaking to lawyers with 5+ years’ PAE of Corporate/M&A experience from a national/international or leading boutique firm. The successful candidate will have the ability to work autonomously and be looking to take on a lead role providing advice on complex transactions. If you are seeking a career progression role where you can transition into the Partnership, then we would like to speak with you. Family Lawyers with 2-6 years’ PAE for multiple firms. KBE Human Capital has been briefed exclusively by a national, two medium sized full service, and two boutique firms to secure quality junior to mid-level Family Lawyers. All of these firms advise HNW individuals with asset bases ranging from $500,000 to multi-millions, providing exposure to complex asset structures with mentoring/training from high profile Partners. If you are a Family Lawyer with 2-6 years’ PAE, then we would be pleased to meet with you to discuss your options. Insurance/PI Lawyers for two national firms. Opportunities for junior and mid-level lawyers with 1-3 years’ PAE and 3-7 years’ PAE to join two of Perth’s best regarded specialist insurance practices, within national firms. The firms have very strong reputations and Partners who are recognised as experts in the insurance field, with exposure to matters across a variety of insurance areas, including professional indemnity, commercial property claims, workers’ compensation, product liability and property liability, employers’ indemnity, and medical malpractice. One role is workers’ comp focused, and the other is more general in advising across a broad range of insurance matters. We are currently working on numerous exclusive briefs to source high calibre lawyers from 2 years’ PAE through to Equity/Salaried Partners, in addition to the roles listed above, and it would be a pleasure to meet with you to discuss the opportunities currently available in the WA legal market. Please contact Chris Bates or Maryann McKenna for further information. KBE Human Capital is a proud supporter of Parkerville Children & Youth Care

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

LAW WEEK 2017 Monday, 15 May – Friday, 19 May 2017

A Focus on Law and Justice in the Community The Society was pleased to present its annual Law Week, which ran from Monday, 15 May to Friday, 19 May 2017. This celebration of law and justice included a diverse range of events both for the community and legal profession, offered by the Law Society, law firms, community legal centres and other organisations across the State. There were more than 50 events in total. The programme began on Monday, 15 May with the Law Week Breakfast at the Parmelia Hilton in Perth. Attendees enjoyed a keynote address from Katie Miller, Executive Director, Legal Practice, Victoria Legal Aid on Legal traditions in an age of disruption: How do lawyers decide what to keep and what to relinquish? The Hon Wayne Martin AC, Chief Justice of Western Australia chaired the discussion and took questions from the audience. Thank you to our Supporting Sponsor, HHG Legal Group. The Attorney General’s Community Service Law Awards were presented at the Breakfast by, the Hon John Quigley MLA. The Awards recognise practitioners and organisations that have provided outstanding pro bono legal services to the Western Australian community. The Society congratulates the award winners: Samuel Vandongen SC in the individual category and HHG Legal Group in the organisation category. From 9.00am to 3.00pm on Monday, 15 May, lawyers from Legal Aid WA were in attendance at Citiplace Community

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Centre in Wellington Street, Perth, to provide free legal advice to seniors and people with disabilities. At the same time, the Society’s Francis Burt Law Education Programme was hosting nominated year 10 students at the Old Court House Law Museum for Youth Civics Leadership Day. Students took part in activities designed to enhance leadership skills and civic awareness, and had the opportunity to meet young lawyers. From 5.30pm, the Society’s Young Lawyers Committee hosted the Mental Health Hypothetical. A panel of senior members of the profession discussed ethical dilemmas affecting young lawyers. On Tuesday, 16 May, practitioners and other supporters marked National Pro Bono Day with the Law Access Walk for Justice 2017, raising almost $30,000 for the pro bono work of Law Access Limited. In the evening, Pragma Legal hosted a Quiz Night at Subiaco Sports Bar, with profits going to the Street Law Centre WA (Inc). On both Tuesday, 16 May and Thursday, 18 May, Latro Lawyers offered free simple wills for seniors card holders. On Wednesday, 17 May, Fremantle Community Legal Centre provided free legal advice to the community on family law, traffic matters, employment law, criminal matters and many other areas of law. On the same day, HHG Giving Back Free Legal Clinics were held in West Perth, Mandurah and Albany. In the evening, the Society’s Young Lawyers Committee hosted a panel discussion at the Supreme Court building,with access

to justice for refugees and asylum seekers as the topic of debate. On Thursday, 18 May, the Law Week Awards Night was held at Bankwest Place, Raine Square, Perth. Attendees enjoyed a pleasant evening of music and refreshments. The Awards Night recognised members of the profession who have achieved 50 and 60 years in practice, the Society's three newest Life Members, as well as the 2017 Lawyer of the Year Award winners. The Society congratulates: •

Practitioner with more than five years’ experience: Simon Creek and Nicholas van Hattem.

Practitioner with less than five years’ experience: Krista McMeeken.

On Friday, 19 May, a forum of managing partners of large law firms and other key stakeholders was held at the Society's offices. Attendees discussed the challenge presented by artificial intelligence in ensuring that emerging and future lawyers continue to be able to develop and refine their practical skills to levels necessary for the performance of competent professional work. The events described above were just a handful of those which took place throughout Law Week 2017. Thank you to everyone who attended a Law Week event. The Society greatly values your support.

Law Week 2017









Katie Miller, Executive Director, Legal Practice, Victoria Legal Aid at the Law Week Breakfast


Alain Musikanth, Law Society President, Professor Bob Reece and Rosemary Fitzgerald at Henry Willey Reveley: Western Australia's First Engineer and Architect talk


Adam Sharpe, Francis Burt Chambers at the Law Week Breakfast



Katie Miller, Executive Director, Legal Practice, Victoria Legal Aid; Greg McIntyre SC, Law Society Vice President; David Price, Law Society Chief Executive Officer and Dr Adam Tomison, Director General, Department of the Attorney General at the Law Week Breakfast

Professor Bob Reece presenting at Henry Willey Reveley: Western Australia's First Engineer and Architect


Alain Musikanth, Law Society President; Sam Vandongen SC, Francis Burt Chambers; the Hon John Quigley MLA, Attorney General; Murray Thornhill, HHG Legal Group; and the Hon Wayne Martin AC, Chief Justice of Western Australia.


Attendees at the What you need to know about strata Law Week event


Key Highlights Law Week 2017







Students at the Youth Civics Leadership Day



Students with the Hon Wayne Martin AC, Chief Justice of Western Australia at the Youth Civics Leadership Day

Amanda Forrester SC, Director of Public Prosecutions; the Hon Justice John Chaney; Ian Weldon; and the Hon Justice Anthony Siopis at the Law Week Awards Night


Her Hon Catherine O'Brien and Anna Liscia at the Law Week Awards Night


Participants at the Law Access Walk for Justice


Attendees at the Law Week Awards Night


Avril Bartlett; Scott Ellis, Acting Commissioner; John McKechnie QC, Corruption and Crime Commissioner; Sean Mullins; Wendy Endebrock-Brown, Corruption and Crime Commission at Introduction to the Corruption and Crime Commission


Michael Lewis; Bruce Duckham; Albert Manning; Ron Davies QC; The Hon Kevin Parker AC RFD QC; Clive Young; Paul Nichols; and David Garnsworthy at the Law Week Awards Night


Ambassadors opening the Law Access Walk for Justice



Katrina Williams, Law Access; Dr Caroline Fleay, Curtin University; Greg McIntyre SC, Law Society Vice President; Katy Welch, The Humanitarian Group; and Ali Khan at Access to Justice for Refugees and Aslum Seekers - Law Week Panel Presentation hosted by the Law Society's Young Lawyers Committee

The Hon Kevin Parker AC RFD QC; Linda Davies; Ronald Davies QC; and Greg McIntyre SC, Law Society Vice President at the Law Week Awards Night


Alain Musikanth, Law Society President with Lawyer of the Year Award winners; Nicholas van Hattem, State Solicitor's Office; Krista McMeeken, Policy Lawyer at Commissioner for Children and Young People; and Simon Creek, HHG Legal Group.

32 | BRIEF JUNE 2017

Law Week 2017








Special thanks to Law Week supporters and sponsors


Essentials of advocacy 8.30am - 3.15pm | Friday, 9 June 2017 The Law Society of Western Australia Members: $755 |

Non-Members: $1,099 | 6 CPD Points

Specifically designed for anyone seeking a refresher or for practitioners new to advocacy, this course provides essential information to advance legal knowledge and improve advocacy skills. Hear from distinguished members of the legal profession on case presentation and theory, opening and closing statements, examination and cross examination of witnesses and what makes a good advocate. Completion of this course is recommended prior to attending the Practical Advocacy Weekend.

Save up to $200 when you register for both advocacy courses

Practical advocacy weekend 7.45am Saturday, 4 August to 12.30pm Sunday, 5 August 2017 Children’s Court of Western Australia Members: $999 |

Non-Members: $1,499 | 6 CPD Points

This course provides invaluable experience in appearing before the court for junior practitioners, individuals new to litigation and anyone seeking a refresher in advocacy. This intensive course offers practical exercises in small groups with guidance and constructive feedback from volunteer teachers who are experienced advocates, including barristers and members of the judiciary. Practical application comprises of one civil interlocutory injunction where participants argue for either the applicant or the respondent. The problem question used for practising examinations and cross-examinations of witnesses and closing statements is a criminal problem. Budding civil advocates will recognise the benefits of this as a large number of preeminent civil barristers honed their advocacy skills while practising in crime. Join a distinguished panel of coaches led by head coach His Hon Judge Patrick O’Neal. Respected voice coach Julia Moody will help prepare all participants with vocal and performance coaching on 15 July 2017.


Mediation Update for Practitioners Part 2 Part 1 of this article was published in the May 2017 issue of Brief

By Michael Hollingdale*

Recent Australian cases WESTERN AUSTRALIA

Termguard Pty Ltd v Statewide Pest Control Pty Ltd1 Dispute resolution clause - election to mediate - not mandatory - stay refused

Michael Hollingdale

This was a stay application by the defendants and turned on the interpretation of a mediation clause. By originating summons the plaintiff sought specific performance of a licence agreement. The disputes clause required a notice to be given and then included a step requiring the parties to try to resolve the dispute by 'mutual negotiation' The court was satisfied there had been substantive compliance with this requirement before proceedings were commenced. The next step in the disputes process contemplated mediation and was in these terms: 59.5 If the parties are unable to resolve the dispute within 21 days, either party may by notice in writing advise the other party that it seeks to have the dispute resolved by mediation. The plaintiff contended that clause 59.5 "in no way creates a mandatory requirement that the matter 'must' be mediated. It merely creates a party's right to elect to proceed with mediation." 2 It was common ground that no election had been made. The clause was held to be not mandatory. The plaintiff relied upon a similar clause3 that was considered by Kenneth Martin J in VDM Construction Pty Ltd v MCC Mining (Western Australia) Pty Ltd4. In VDM his Honour said: My reading of cl 46.2 is that after the parties have conferred but are still in dispute, either party can within 15 days, or within such longer period as the parties agree, decide to refer the matter to a mediation. Either party alone has the right to elect to require the mediation process for the dispute before litigation. But I do not assess the cl 46 mediation requirement as being mandatory for every

notified dispute where there has been unfruitful conferral. Clause 46 could have been drawn in more rigid terms, invariably requiring mediation before litigation, but it was not. Here, a mediation process does not become mandatory until one party elects for it and thereby makes it mandatory by that election.5 In refusing to stay the proceedings or exercise a residual discretion to require the parties to first participate in the mediation process described in clause 59, in Termguard, Acting Master Strk held that: In this case, as in VDM, a mediation process does not become mandatory until one party elects for it and thereby makes it mandatory by that election.6 In a recent Queensland decision, an ADR procedure while couched in permissive language was held to be mandatory once activated. A stay was granted.7

Moran v Schwartz Publishing Pty Ltd [No 7]8 Plaintiff's application for mediation - Defendant resistance - mediation ordered His Honour Justice Martin upheld the plaintiff's application for a mediation conference to be conducted before a registrar of the court. The defendants strongly opposed the application and contended that: for the present there can be no mediation until the defendants have had an opportunity to advance more of their as foreshadowed interlocutory applications against the plaintiff, pressing for orders allowing their unfettered inspection of documents against which privilege against inspection has currently been asserted by the plaintiff.9 The plaintiff's counsel invoked: 'considerations of proper proportionality arising under Rules of the Supreme Court 1971 (WA) O 1 r 4A in terms of the efficient disposition of a matter, balanced against the interests of justice'.10


In response, the defendant's counsel submitted "that until they have completed their inspection of [certain] documents … on the plaintiff's list, they are essentially in no mood or position to mediate".11 Relevant factors that led to his Honour's conclusion included: • …with pleadings closed and the parties' positions essentially very well understood, the opportunity for a successful mediation does present as being the prima facie more sensible and pragmatic course to take from a perspective of a viable end resolution of what has been a long running and expensive dispute. • I remain of the prima facie view, as I expressed to counsel for the defendants at the hearing, that the credibility (relevance) of the documents to be sought would not on their face present to me, at least, as necessarily delivering the 'pots of gold' or 'smoking guns' that the defendants may currently think they are pursuing. Of course, if a mediation is not successful, these questions can always be taken up again before a trial. • real potential for an injection of even further delays in an overall too slow to date progression of this action to a trial outcome. • I cannot, with respect, accept the submission of counsel for the defendants that reference to mediation now would be a 'complete waste of time'. Long experience of and exposure to the mediation process tells me otherwise. It is common for parties with ostensibly entrenched positions to be altered to move from those positions by an exposure to the conciliatory regime of mediation. Time and time again it is the experience of this court that ostensibly intractable disputes come to be well capable of an efficient resolution, where the relevant decision makers are gathered together in one place and prevailed upon by a skilful mediator to rationally approach and reassess their commercial disputation with a modicum of common sense, decency and goodwill.12

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His Honour decided that: Notwithstanding the current … reservations of the defendants…, I am of the view that 'peace' must be given a chance at this time. A mediation at this point does carry, on my assessment, a real potential to be productive, and to generate a resolution that would 'stop the clock' on an unnecessary incurring of further ongoing high level legal costs. That result would be in the parties' best interests, not to mention in the overall best interests of the wider community of Western Australia in terms of a preservation of scarce curial resources which are more than usually needed at present.13

Gardiner v Anita Emery as Executor and Trustee of the Estate of Pearl Nita Edwards14 Costs - Compromise at mediation - Action necessary for sale of property - Defendant to pay plaintiff's costs to final hearing - No order as to costs of final hearing This costs decision of his Honour Justice Tottle followed an order made by his Honour in proceedings for the sale of the deceased's estate (the partition action) which followed two sisters reaching a binding heads agreement at mediation in a separate action. One of the sisters (Anita Emery) was the executor and a co-plaintiff in the partition action with her daughter, Heidi Emery. The daughter was not a party to the other proceedings, the subject of the mediation, nor attended the mediation. As the defendant sister had not agreed to the daughter's attendance at the mediation, the defendant was ordered to pay the daughter's costs up to but not including the final hearing. His Honour made no order as to costs in relation to the final hearing because 'the hearing did not reflect a decision on the merits, but rather reflected what was essentially a negotiated outcome between the parties.'[para 25].


Stillman v Rusbourne15 Advocates' immunity from suit - scope out of court legal advice - settlement at mediation This case concerned the 'advocates’ immunity' from suit with respect to claims that the plaintiff's solicitors were negligent in the conduct of litigation. The New South Wales Court of Appeal decided in 2015 that legal advice given during and leading up to a court-appointed mediation process is protected by the advocates’ immunity principle. By majority, the Court of Appeal held that the work done by the respondents fell within orthodox understandings of the advocate’s immunity being work that led to a settlement and thus affected the conduct of the case in court: Gleeson JA at [11]; Simpson JA at [19]. Gleeson JA in concurring with the reasoning and orders of Simpson JA, discussed the concept of a 'temporal connection' that would allow a lawyer to invoke the advocates' immunity. Referring to the NSW Supreme Court of Appeal's 2014 decision in Jackson Lalic Lawyers Pty Ltd v Attwells16, Gleeson JA explained it as being: [52] … [the] connection between the work involved in advising on a settlement and the actual trial itself. The advice was given during the luncheon adjournment on the first day of the hearing and on the evening of that day. [53] Nonetheless and importantly, in Jackson Lalic the final hearing did not proceed to its ultimate conclusion. The proceedings were terminated by the terms of a consent order which provided for a verdict and judgment for a specified amount and an agreement to not enforce that

judgment if a lesser sum was paid by a specified date. However, Gleeson JA considered the High Court's decision in Giannarelli v Wraith (per Mason CJ at 560 and Brennan J at 579) and affirmed, "… that the advocates' immunity does not depend upon demonstrating such a temporal connection"(at [54]). His Honour found that a lawyer advising a client to settle proceedings, whether negligently or not, is a recognised category of work affecting the way in which proceedings are to be conducted because it involves whether litigation will be continued or terminated. Gleeson JA declined to distinguish Jackson Lalic on the basis that it dealt with negligent settlement advice as distinct from advice given during mediation: [60] In the present case, the work by the respondent lawyers fell within the recognised categories of work done out of court affecting the conduct of the case in court. The alleged breach occurred in advising on a settlement of proceedings at mediation … The advice led to the case being settled. That was a sufficient connection between the work out of court and the conduct of the case in court to attract the advocates' immunity. Gleeson JA concluded his judgment by saying that: If the rule concerning advocates’ immunity for out of court work affecting the conduct of the case in court is to be restricted only to cases where there has been a final hearing on the merits, then that is a matter which should be left to the High Court to determine. [at 61] Basten JA dissented and held: Advocates’ immunity is rooted in the fundamental need of the administration of justice for finality of judicial determination of controversies

between parties. In the present case, consent orders were entered prior to commencement of a trial, reflecting a settlement reached by the parties out of court; the judicial determination of the controversy on its merits did not take place. There was no justification for extending advocates’ immunity to the conduct of the respondents in the course of the mediation which lead to the settlement: [8]; [17]; [30]; [47]17 Although the plaintiff applied for special leave to appeal to the High Court in 2016, the matter was settled without determining the merits of the matter. In September 2016, the High Court made orders by consent granting special leave and setting aside the judgment of the Court of Appeal and ordering the respondents to pay the appellants costs18. The settlement in Stillman no doubt arose because in May 2016 the High Court had delivered its judgment in Attwells19 on appeal from the NSW Supreme Court of Appeal's decision in Jackson Lalic. In Attwells20 in allowing the appeal, the High Court by majority held: The authoritative test for the application of the immunity stated in D'Orta and Giannarelli is not satisfied where the work of the advocate leads to an agreement between parties to litigation to settle their dispute. No doubt an advice to cease litigating which leads to a settlement is connected in a general sense to the litigation which is compromised by the agreement. But the intimate connection required to attract the immunity is a functional connection between the advocate's work and the judge's decision. As Mason CJ said in Giannarelli, the required connection is between the work in question and the manner in which the case is conducted in court. In March 2017 the High Court in


Kendirjian v Lepore21 has again affirmed Giannarelli and confined the scope of advocate's immunity. While Kendirijan's case did not involve mediation it applies equally to advocates and other legal advisers engaged in mediations. In Kendirjian a settlement offer was made and rejected on first day of trial. The plaintiff's lawyers advised him that a settlement offer had been made but that they did not advise him of the amount of the offer; they rejected the offer as being "too low" without his express instructions.. The lead judgment in Kendirijan was delivered by Edelman J, his Honour's first individual judgment since being appointed to the High Court. In affirming Giannarelli v Wraith22, D'Orta23 and Attwells, and refusing to reopen or distinguish Attwells, Edelman J reviewed the development of the advocate's immunity from suit since Giannarelli and concluded: 31. The joint reasons of the majority in Attwells explained the rationale for the immunity when declining to extend it to compromises. Since the immunity attaches by the "participation of the advocate as an officer of the court in the quelling of controversies by the exercise of judicial power", it followed that the immunity did not extend to advice that leads to a settlement between the parties. Advice leading to a compromise of a dispute cannot lead to the possibility of collateral attack upon a non-existent exercise of judicial power to quell disputes. For this reason, the expression of the test concerning work done out of court which "leads to a decision affecting the conduct of the case in court", or which is "intimately connected with" work in court, is not engaged merely by "any plausible historical connection between an advocate's work and a client's loss. The test requires that the work bear upon the court's determination of the case. There must be a "functional connection" between the work of the advocate and the determination of the case. 32. In Attwells, the respondent submitted that an anomaly would arise if the immunity did not extend to negligent advice which leads to a compromise of the proceeding, but did extend to negligent advice not to compromise a proceeding which leads to a judicial decision. The joint reasons of the majority explained that the assumption underlying the respondent's submission was that the immunity would extend to negligent advice not to compromise a proceeding because that advice 38 | BRIEF JUNE 2017

was intimately connected with the ensuing judicial determination. The joint reasons rejected this assumption on the basis that negligent advice not to compromise a proceeding gives rise only to an historical connection between the advice and the continuation of the litigation. As the joint judgment concluded, the giving of advice either to cease or to continue litigating does not itself affect the judicial determination of a case. Accordingly, lawyers engaged as advisers in the preparation for and during the course of mediation need no longer speculate whether they may place reliance on the advocates' immunity from suit. They may not. VICTORIA

Humphreys v Humphreys24 Mediated agreements - claims in negligence, promissory estoppel, unilateral mistake and breach of fiduciary duty - Whether statement made at mediation was admissible - Evidence Act This case concerned mediated agreements and subsequent agreements to settle family disputes about a father's will. The plaintiff, a brother, claimed that he was misled by his older sister about the effects of the agreements on his entitlements under the will; both were trustees. Various bases of claims were pursued in negligence, promissory estoppel, unilateral mistake and breach of fiduciary duty. The brother sought to adduce evidence of what his sister said during the mediation by way of objective background facts to the two written agreements reached at the mediation and which the brother sought to rectify or partially rescind. Ginnane J dismissed each of the plaintiff's claims. His Honour spent considerable time analysing the merits of whether the background evidence was admissible over the objection that any communications made at the mediation were without prejudice and inadmissible. Reliance was made on s 131(1) of the Evidence Act 2008 (Vic) as to the admissibility of that evidence. His Honour cited Unilever plc v Procter & Gamble Co25, in which Walker LJ, dealing with the position at common law, stated26: there are numerous occasions on which, despite the existence of without prejudice negotiations, the without prejudice rule does not prevent the admission into evidence of what one or both of the parties said or wrote. Walker LJ then listed eight common

law exceptions to the without prejudice rule. The exceptions most relevant to the interpretation of s131(2)(i) were described as follows: “(2) 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 … (3) 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 … [41]” …I consider that the statement in issue is the type of evidence that directly engages s131(1). In my opinion, communications made in circumstances such as in the present case – that is, in connection with an attempt to resolve disputes at a formal mediation, where multiple lawyers are present and the terms of settlement are formally recorded in writing – fall squarely within the provision. This finding is consistent with the rationale for s131(1), and without prejudice privilege at common law, in that these are precisely the circumstances in which parties to a dispute intend to ‘communicate with each other freely and without embarrassment … so that their negotiations to avoid litigation or to settle it may go on unhampered.’27 Despite concluding that the prohibition under s131(1) did apply prima facie, His Honour allowed the evidence on the basis of one of the exceptions from the prohibition under s131(2)(i) of the Evidence Act. Its admissibility did mean that the claims in misrepresentation and promissory estoppel were able to be made. The plaintiff did not succeed on the merits of those claims. Among other factors, his Honour relied on the fact that the Appellant had legal representation at the mediation, and said: … the significance of that factor is not lessened by any decision he may have made not to seek their assistance at particular times during the mediation.28 The decision in Humphreys is instructive on the inadmissibility of without prejudice communications under the common law in a mediation conducted pre action or not under direction. As to the latter, note the exception in s71(3)(b) of the Supreme Court Act (WA).29


Halsey v Milton Keynes General NHS Trust30 Costs - Assessment - Conduct of parties - Exercise of discretion - Alternative dispute resolution - Costs consequences of rejecting alternative dispute resolution - Guidance Despite the decision in Halsey now being more than 10 years old, it is still the leading case and starting point when considering the possible costs consequences of refusing ADR. The England and Wales Court of Appeal confirmed that costs would only be imposed on an unwilling party if its refusal to mediate was unreasonable. In Halsey one party refused to mediate because it believed the costs of the mediation would be more than the claim. In Steel31, a party refused to mediate because it believed it was not liable. The Court dismissed both appeals, resulting in the avoidance of cost sanctions by the refusing parties. Lord Justice Dyson, who delivered the court's judgement, held that '...to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right to access the court.' It was held that regard must be had to all the circumstances of a particular case in order to determine whether a party has acted unreasonably in its refusal. The Court identified six specific factors that may be taken into account: •

the nature of the dispute;

the merits of the case;

the extent to which other settlement methods have been attempted;

whether the mediation costs would have been disproportionately high;

whether there would have been a risk of delaying the trial by attending mediation; and

whether mediation had a reasonable prospect of success.

PGF II SA v OMFS Company 1 Ltd32 Costs - party declines to respond to invitation to mediate - extension of Halsey guidelines This appeal considered the question of whether silence in response to an invitation to participate in ADR could of itself be unreasonable regardless whether it amounted to a refusal, or whether there were reasonable grounds to refuse? The Court of Appeal held that the conduct by silence was unreasonable

and dismissed the appeal. The claimant had refused to accept the defendant's well-judged Part 36 offer until the eve of the trial. By its cross appeal the claimant asserted that the judge should not merely have deprived the defendant of its costs, but ordered the defendant to pay the claimant's costs as well, in respect of the relevant period. The Court of Appeal upheld the cross appeal and extended the non-exclusive guidelines in Halsey. Briggs LJ delivered the judgment (McFarlan and Maurice Kay LJJ agreeing): This appeal raises, for the first time as a matter of principle, the following question: what should be the response of the court to a party which, when invited by its opponent to take part in a process of alternative dispute resolution ("ADR"), simply declines to respond to the invitation in any way? An unreasonable refusal to participate in ADR has, since 2004, been identified by this court as a form of unreasonable conduct of litigation to which the court may properly respond by imposing costs sanctions: see Halsey v Milton Keynes General NHS Trust [2004] 1WLR 3002. After a general review of the progress of ADR, and mediation in particular, with the assistance of intervention by the Law Society and several bodies engaged in the development of ADR, this court laid down non-exclusive guidelines for deciding whether, in particular cases, a refusal to participate in ADR could be shown to be unreasonable. Those guidelines have stood the test of time, and the crucible of application in subsequent reported cases. A common feature of most of them, including the two cases reviewed in the Halsey case itself, was that the refusing party had communicated its refusal to the inviting party, with succinct reasons for doing so.33 Briggs LJ concluded that: [34] …the time has now come for this court firmly to endorse the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds. I put this forward as a general rather than invariable rule because it is possible that there may be rare cases where ADR is so obviously inappropriate that to characterise silence as unreasonable would be

pure formalism. There may also be cases where the failure to respond at all was a result of some mistake in the office, leading to a failure to appreciate that the invitation had been made, but in such cases the onus would lie squarely on the recipient of the invitation to make that explanation good. [35] ….There are in my view sound practical and policy reasons for this modest extension to the principles and guidelines set out in the Halsey case, which concerned reasoned refusals, provided in prompt response to the request to participate in ADR. The first is that an investigation of alleged reasons for refusal advanced for the first time, possibly months or even years later, at the costs hearing, where none were given at the time of the invitation, poses forensic difficulties for the court and the inviting party including, in particular, the question whether the belatedly advanced reasons are genuine at all… [37] Secondly, a failure to provide reasons for a refusal is destructive of the real objective of the encouragement to parties to consider and discuss ADR, in short to engage with the ADR process. Briggs LJ affirmed the burden of proof on whether a refusal to mediate was unreasonable is to be borne by the claimant: [43] The judge correctly regarded the burden of proof in this respect as lying squarely on the claimant although, following the Halsey case at paragraph 28, he described the burden of demonstrating that ADR stood a reasonable prospect of success as not being an onerous one.

Shelley Mann v David Anthony Mann34 Adjournment of an enforcement application to allow mediation in financial remedy proceedings - parties had written agreement to mediate - Ungley Order This was a decision of Mostyn J in the Family Division of the High Court and concerned a hearing to resolve questions of maintenance and a final property settlement following numerous failed attempts to mediate the dispute. Each party blamed the other for the failure to mediate as had been agreed between them. The case was therefore one where the parties had made an agreement to participate in ADR before litigating a dispute between them. His Honour said: 18. … Fortunately for me the cases 39

have all been analysed and the principles summarised by Hildyard J in Wah (Aka Alan Tang) & Anor v Grant Thornton International Ltd & Ors [2012] EWHC 3198 (Ch). In his section headed "Relevant guidelines emerging" at paras 56 to 61 he stated: 57. Agreements to agree and agreements to negotiate in good faith, without more, must be taken to be unenforceable: good faith is too open-ended a concept or criterion to provide a sufficient definition of what such an agreement must as a minimum involve and when it can objectively be determined to be properly concluded. That appears to be so even if the provision for agreement is one of many provisions in an otherwise binding legal contract, with an exception where the provision in question can be construed as a commitment to agree a fair and reasonable price. 58. However, especially when the relevant provision is but one part of a concluded and otherwise legally enforceable contract the Court will strain to find a construction which gives it effect. For that purpose it may imply criteria or supply machinery sufficient to enable the Court to determine both what process is to be followed and when and how, without the necessity for further agreement, the process is to be treated as successful, exhausted or properly terminated. The Court will especially readily imply criteria or machinery in the context of a stipulation for agreement of a fair and reasonable price. 59. The Court has been in the past, and will be, astute to consider each case on its own terms. The test is not whether a clause is a valid provision for a recognised process of ADR:

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it is whether the obligations and/or negative injunctions it imposes are sufficiently clear and certain to be given legal effect. 60. In the context of a positive obligation to attempt to resolve a dispute or difference amicably before referring a matter to arbitration or bringing proceedings the test is whether the provision prescribes, without the need for further agreement, (a) a sufficiently certain and unequivocal commitment to commence a process (b) from which may be discerned what steps each party is required to take to put the process in place and which is (c) sufficiently clearly defined to enable the Court to determine objectively (i) what under that process is the minimum required of the parties to the dispute in terms of their participation in it and (ii) when or how the process will be exhausted or properly terminable without breach. 61. In the context of a negative stipulation or injunction preventing a reference or proceedings until a given event, the question is whether the event is sufficiently defined and its happening objectively ascertainable to enable the court to determine whether and when the event has occurred. 19. Therefore, any agreement which stipulates mediation before litigation must have its own specific terms carefully examined. If it is clear in what it says about the subject matter of the mediation; what the parties must do; and how they can bring it to an end then it is likely to be upheld. For as Longmore LJ stated in Petromec Inc and others v Petroleo Brasileiro SA Petrobras and others [2005] EWCA Civ 891 at para 121 "to decide that [an ADR agreement] has no legal content ‌ would be

for the law deliberately to defeat the expectations of honest men." The court found the mediation agreement was one that satisfied all the criteria mentioned by Hildyard J in Tang at para 60. His Honour could not compel the parties to mediate under the Family Court's rules. However, in balancing the obligation to mediate under the agreement and the right of access to justice his Honour was able to make an order that had the effect of robustly encouraging them to do so (an 'Ungley Order'). His Honour adjourned the proceedings for eight weeks to enable the parties to engage in mediation and made these additional orders: i) If either party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the enforcement proceedings, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make. ii) The party considering the case unsuitable for ADR shall, not less than 7 days before the commencement of the adjourned enforcement hearing, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.

Garritt-Critchley v Ronnan [2014] EW HC 1774 (Ch)35 Costs sanctions - indemnity basis - late acceptance of Part 36 offer - defendant's unreasonable failure to mediate In this case the defendants were ordered to pay the claimants' costs on an indemnity basis, as their failure to engage in mediation or any other serious alternative dispute resolution had been unreasonable. Judge Waksman QC made


observations about two of the objections to mediation that are sometimes made. The first was on the merits of the case. After noting that no application for summary judgment had been made, his Honour cited Lightman J in Hurst v Leeming36: 'The fact that a party believes that he has a watertight case again is no justification for refusing mediation. That is the frame of mind of so many litigants' Another objection was about whether the mediation had reasonable prospects of success: his Honour observed: Parties don't know whether in truth they are too far apart unless they sit down and explore settlement. If they are irreconcilably too far apart, then the mediator will say as much within the first hour of mediation. That happens very rarely in my experience. 37

Bristow v The Princess Alexander Hospital NHS Trust and Ors38 Costs sanctions - indemnity basis - where losing party refused to mediate The Trust refused to agree to mediation proposed by the claimant Bristow. It took three months for the Trust to refuse the mediation offer. Master Simons stated that in doing so, the Trust 'gave no good reason other than the case had already been set down for a detailed assessment', but, he also noted that the Trust had refused to mediate 'because the parties were so far apart'. The Master considered neither reason to be a reasonable reason to refuse mediation, stating that parties 'should be encouraged to enter into mediation and if they fail to do so unreasonably then there should be a sanction'. Accordingly, Master Simons ordered Bristow (the successful claimant) to receive the 80% of the costs awarded to it to be assessed on an indemnity basis.

Reid v Buckinghamshire Healthcare NHS Trust39 Costs sanctions - where losing party refused to mediate Master O'Hare considered the Trust's refusal to mediate a clinical negligence claim to be unreasonable in the circumstances, including the Trust having ignored a proposal for six weeks before refusing the proposal. The Trust was ordered to pay Reid's costs on an indemnity basis from the date of the Trust's receipt of the offer to mediate. The Master observed:

9. In respect of the defendant’s failure to mediate, I think the only sanctions available for me to impose are to award costs on the indemnity basis and to award interest on those costs from a date earlier than today, today being the normal date. I am persuaded that the defendant’s refusal to mediate in this case was unreasonable. It took them six weeks to reply to the offer and they then replied in the negative. But nevertheless I do not think I should impose the indemnity basis penalty from a date earlier than the date the defendants are likely to have received the claimant’s offer... 10. I want to end with a brief note of caution about sanctions imposed on parties who unreasonably refuse to mediate. Case law on this topic is largely about penalties imposed on parties who are in other respects the successful party. In Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576 and in other cases, penalties imposed upon winners. They do not involve the imposition of further penalties upon losers. One can see that throughout the judgment in Halsey. I will read out a sentence from paragraph 28: “As we have already stated, the fundamental question is whether it has been shown by the unsuccessful party that the successful party unreasonably refused to agree to mediation.”… 12. If the party unwilling to mediate is the losing party, the normal sanction is an order to pay the winner’s costs on the indemnity basis, and that means that they will have to pay their opponent’s costs even if those costs are not proportionate to what was at stake. This penalty is imposed because a court wants to show its disapproval of their conduct. …

The Jackson ADR Handbook The Jackson ADR Handbook, was first published in 2013. It followed Jackson LJ's Review of Civil Litigation Costs: Final Report40. As noted above, in PGF II SA v OMFS Company 1 Ltd, the Court of Appeal endorsed the advice given at paragraph 11.56 of the Jackson ADR Handbook that silence in the face of an invitation to participate in ADR was, as a general rule, unreasonable, regardless of whether a refusal to engage in ADR might have been justified. The Court referred to this as a general rule, recognising that there might be rare cases where ADR was not

appropriate.41 In PGF, Briggs LJ referred to the Jackson ADR Handbook, as: [30] … set[ting] out at length at paragraph 11.56 the steps which a party faced with a request to engage in ADR, but which believes that it has reasonable grounds for refusing to participate at that stage, should consider in order to avoid a costs sanction. The advice includes: a.) Not ignoring an offer to engage in ADR; b.) Responding promptly in writing, giving clear and full reasons why ADR is not appropriate at the stage, based if possible on the Halsey guidelines; c.) Raising with the opposing party any shortage of information or evidence believed to be an obstacle to successful ADR, together with consideration of how that shortage might be overcome; d.) Not closing off ADR of any kind, and for all time, in case some other method than that proposed, or ADR at some later date, might prove to be worth pursuing. That advice may fairly be summarised as calling for constructive engagement in ADR rather than flat rejection, or silence…42.

Key points from the cases The recent decisions outlined in this Part of the article provide practical guidance on how courts are likely to deal with the situation where parties unreasonably refuse to participate in mediation or other ADR procedures, irrespective of whether it be pre-action, under court direction, or outside the court process. So what are the key points that practitioners should heed from these recent decisions? 1. Proceedings are likely to be stayed pending completion of contractually agreed ADR procedures, once activated. 2. A refusal to mediate may have adverse costs consequences but it does not follow automatically – it is one of several factors. 3. Constructively engage with any serious invitation to mediate.43 If you are proposing that your client refuse a request for mediation, follow the steps outlined by BriggsLJ in PGF: promptly take instructions and provide a reasoned response as to why your client contends it is not appropriate but keep open the 41

possibility of mediating at a later stage giving reasons why that later stage may be an appropriate time to reconsider mediation. 4. If an action is lost and the other side had unreasonably refused an ADR proposal, seek a costs order that reflects that refusal. 5. Question the basis of your and your client's objections and assumptions when considering whether to explore the alternatives before commencing proceedings.

services will be critical to our success in this rapidly disrupted area of practice.


Moran, n8, [16].


Moran, n8, [23].


Moran, n8, [24].

As stated in Part 1 of this article, in my view the legal profession in this State can do more to foment a culture of pre action settlement of disputes, including through mediation, rather than waiting for mediation to be court directed. Careful consideration should always be given to when a dispute is ripe for mediation, and what costs are proportionate. As to timing, practitioners are reminded of Sir Laurence Street AC, KCMG, QC's observation that:


Moran, n8, [31].


Moran, n8, [32].


[2017] WASC 55.


[2015] NSWCA 410.


[2014] NSWCA 335.


Taken from the headnote.


[2016] HCATrans 194 http://www.austlii.edu.au/au/ other/HCATrans/2016/194.html.

6. Finally, as professionals we owe a fiduciary duty to our clients to carefully consider all reasonable alterative avenues of dispute resolution before commencing proceedings.44

Some [disputes] are ripe very soon after they erupt and before the parties become deeply entrenched in oppositional positions and incur expenditure on costs in consolidating those positions.45

Conclusion The practice of mediation has matured considerably over the past 25 years in Western Australia as it has in many jurisdictions. It has become widely accepted and respected as the dispute resolution process of choice particularly in the field of commercial disputes. Mediation as we know it today will continue to evolve as practitioners respond to client and community demand for continuous improvement and greater efficiencies in service delivery. Artificial intelligence and on-line ADR are but two options that will be soon be taken up by greater numbers of consumers of dispute resolution services. Many will not seek legal advice as they opt for readily accessible and low cost online solutions. As legal practitioners we need to become better skilled in the delivery of alternative styles of mediation that are relevant and cost effective so our existing clients continue to value us and so we might attract vast numbers of new clients who are intimidated to engage us. Differentiating ourselves with the true expertise to deliver timely and efficient

If we are truly predisposed to enabling clients' self-determination of disputes, we might consider treating mediation as the norm and no longer describe it as an alternative to formal determination processes. While mediation is not a panacea, if it becomes the preferred dispute resolution process and it is embarked on earlier than it usually is at present, disputants and the community as a whole stand to reap real and lasting benefits. Lawyers will also stand a greater chance of their clients engaging them with their next problem, having experienced a professional style of practice that provided true value for money.


Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16.


French CJ, Kiefel, Bell, Gageler and Keane JJ (joint judgment); Nettle and Gordon JJ dissenting.


[2017] HCA 13.


Giannarelli v Wraith (1988) 165 CLR 543.


D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12.


[2016] VSC 637 Ginnane J.


[2001] 1 All ER 783.


[2016] VSC 637 at [74].


Unilever, n26, [63].


Unilever, n26, [124].


Refer to Part 1 of this update published in May 2017 Brief at p26.


[2004] EWCA Civ 576.


The other appeal heard concurrently with Halsey Ibid 51.


[2013] EWCA Civ 1288.


Op cit 5 per Briggs LJ para [1] Introduction.


[2014] EWHC 537 (Fam).


Garritt-Critchley, n35.


[2002] EWHC 1051 (Ch).


Para 22.


[2015] EWHC B22 (Costs).


[2015] EWHC B21 (Costs).


Review of Civil Litigation Costs: Final Report published in 2010.


PGF per Briggs LJ para [34].


PGF, n32 At [30].


PGF 32 per Briggs LJ at [56]: '…this case sends out an important message to civil litigants, requiring them to engage with a serious invitation to participate in ADR, even if they have reasons which might justify a refusal, or the undertaking of some other form of ADR, or ADR at some other time in the litigation. To allow the present appeal would, as it seems to me, blunt that message. The court's task in encouraging the more proportionate conduct of civil litigation is so important in current economic circumstances that it is appropriate to emphasise that message by a sanction which, even if a little more vigorous than I would have preferred, none the less operates pour encourager les autres….'


'If there is a choice to undertake a cheaper more efficient way to operate, the fiduciary duty is engaged.' Judicial Case Management and the Problem of Costs, Chief Justice Allsop AO 09 September 2014, [2014] FedJSchol 16.


Sir Laurence Street, Mediation: A Practical Outline (5th ed, 2003), 8-9.


Accredited Mediator, Partner HWL Ebsworth Lawyers.


[2016] WASC 359, Acting Master Strk, 8 November 2016.


Termguard [27].


That clause 46.2 included: 'either party may refer the dispute to mediation in accordance with The Institute of Arbitrators and Mediators, Australia, rules of mediation…'


[2011] WASC 269.


VDM [34].


Termguard [33].


[2017] QSC 69 (4 May 2017) Daubney J.


[2016] WASC 422.

Hold Your Next Function @ The Western Australian Club Whether it’s your next corporate meeting, business luncheon, networking breakfast, professional sundowner, or cocktail party. The Western Australian Club is the ideal venue for your next function. Treat your guests to one of Perth’s most hidden treasures. Function Packages are available upon request, contact The Club for more information on (08) 9481 7000 or email events@waclub.com.au

42 | BRIEF JUNE 2017

FIND A LAWYER The Law Society’s Find a Lawyer database is the perfect place to connect your practice to the community.

Key reasons to be on Find a Lawyer: • Search by area of law, location and language • Locate Approved Quality Practices • Locate Accredited Family Law Specialists • Directly access contact information • Mobile friendly website To ensure your practice is eligible for the Find a Lawyer database, at least 50% of your firm’s legal practitioners must be members of the Law Society.

P: (08) 9324 8600 | E: info@lawsocietywa.asn.au | W: lawsocietywa.asn.au The Find a Lawyer service randomly generates referrals based on area of law, location and language. The Society facilitates this service between members and the community, we do not screen, verify or recommend a firm, their capability or experience.

Opening of the Commonwealth Law Conference 2017 Speech delivered at the Commonwealth Law Conference 2017, Melbourne

By Fiona McLeod SC Council Member CLA and President of the Law Council of Australia

Introduction Thank you Chief Justice for your very kind introduction. Chief Justice, my Lords, your Honours, distinguished guests, ladies and gentlemen. It is a great pleasure to welcome you all to Melbourne, my home and to welcome those of you especially who have travelled so far to be here with us today. Some of you have travelled from as far away as New Zealand! It is a particular pleasure to welcome you all alongside my good friend the President Alex Ward because it was at his urging, four years ago, that I attended my first Commonwealth Law Conference in South Africa and had the opportunity to travel to South Africa, to Botswana and to Zambia with my family. And my time in Africa, although brief, and my sense of my place in the world changed ­because Africa and its people and its beauty and its struggle as a continent touched me forever. Travel – and immersion in each other's culture – is so terribly important – if we are to learn to see the world through each other's eyes. In welcoming you here today I acknowledge that we are meeting on the traditional lands of the Wirundjeri people of the Kulin nation and I pay my respects to their Elders. These are the local people, Indigenous to the area, who lived in peace and prosperity for tens of thousands of years in this area long before my ancestors arrived here from the United Kingdom in the last century or so. Ours is a young nation, but the history of our Aboriginal people is recalled in a

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rich tradition of story and song that has been passed down by the Elders over generations. Our Aboriginal and Torres Strait Islander peoples have lived on the Australian continent for more than 60,000 years. Their languages and traditions represent the world's oldest continuous cultural heritage. Theirs is a history that remembers the changing of seasons and teaches the great stories and the cycle of life, when to harvest, when to hold back the harvest. It is a history of stewardship of the land for current and future generations. It is a history steeped in a sense of common good – or common wealth.

The Commonwealth Why do we meet as a Commonwealth association? Plainly a commonwealth refers to a group of nations with common interest, reflecting our common heritage of connection to the British Empire. But we are more than that. We meet here for this Conference in the common good, exploring over the next few days those things that challenge us and sharing our solutions so that we might inspire each other with new thinking. It is our diversity of experience, of culture, of thinking and approach that permits us to test old assumptions – for the common good.

Common Heritage The concept of common heritage was well understood to Roman and English law. Originally conceived as a concept of the global commons designed to protect the seabed and ocean floor1,

later the Moon and Antarctic region,2 the notion can trace its origins to roman law concepts of res communis and res nullius.3 Founded upon a notion of public trust, the concept recognized that certain lands including rivers, seabeds, lakes, forests, tidal zones and submerged lands, could not be “owned” by individuals and were held by the Crown as a trustee for the benefit of all citizens to freely use and navigate. Misuse of the commonly held property by commercial exploitation or adverse possession was, according to the doctrine, a misuse against the community and protections were enforceable by any member of that community.4 In Australia the concept of res nullius – or ownership by none, was used to create enormous injustice for our Indigenous people. Their land management practices and cultural traditions were, in the eyes of the colonial new arrivals, unsophisticated and unrelated notions of ownership. Stewardship – or custodianship – was expressly rejected as prior possession and so the land, it was determined, was available to be acquired by possession. This meant, in Australia, the dispossession and state sanctioned or condoned murder of our first peoples, with a brutality with which we are still struggling to come to terms. Until relatively recent times, it also meant that we pursued government policies that encouraged the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country, considering that it was better for those children to be raised away from their communities. In many cases, to live in homes where they were abused.

In many cases, where the pain of removal was so profound that the effects are seen across the generations. The recognition of the strong bonds between our first people and their traditional lands has also been a long time coming, with recognition of common or native title to land only upheld in our highest court, the High Court of Australia, in 1992. The reality is that we must learn from our indigenous peoples and confront the notion of commonwealth once again, because the issues that confront humanity – corruption, climate change, environmental degradation, slavery, and exploitation, global poverty and inequality – require us to work, not for the benefit of a few enabled sovereign states or a handle of individuals wealthy beyond imagining, but for the common good of all. All of us would ne acutely aware of the extraordinary recent global events unfolding our region here – in the South China Sea, further away in the European Union, in the USA and unfolding online. We watch with fascination, and some degree of horror, as our once sacred conventions and institutions are trashed before our eyes, sometimes in social media in tweets of 140 characters or less. But pick any decade of the last century and you will find, in many places in the world including those observing, in theory, parliamentary democracy and the separation of powers: •

oligarchs asserting wide discretionary executive powers protected by laws, with powerful military and intelligence assets at their command; the vast profits of illegal conduct pouring through the accounts of subterranean operative, often working in the shadows on behalf of individuals or organizations through obscure networks of influence; politicians influenced by those who have purchased access, by corruption and graft; public servants and authorities spending public funds without compliance with due process or in response to nepotism;

growing economic and social inequality and gross violation of human rights;

environmental catastrophes where few are held to account and future generations bear the cost;

a captive or disorganized press

unable to protect whistleblowers effectively, to pierce through propaganda and influence just outcomes; •

courts and law enforcement agencies, jurisdictionally and morally confined in their capacity to confronting issues of inequality beyond the case before them; and

a vast network of so-called ‘economic hitmen’, murky intelligence activity, jackals and assassins operating brazenly and with impunity.

Indigenous imprisonment In Australia we are facing a crisis in the way our Indigenous people are affected by the justice system. Although just 2.5 percent of the Australian population identify as Indigenous, they make up 27 percent of the prison population. And Indigenous youth comprise over 50 percent of juveniles in detention. Australia's overall imprisonment rate stands at 203 per 100,000 people.

Today we observe outrageous and offensive attacks on our judiciary, and a daily barrage of outright lied from elected officials, but history teaches us that in fact democracy and the rule of law have always been fragile.

This is a little above average internationally, but about average.

That law enforcement have always struggled to keep pace with the ingenuity of crooks.

Where Australia does stand out globally is the rate at which Indigenous people are imprisoned.

And that for the most part the bad guys get away with it.

Aboriginal and Torres Strait Islanders are imprisoned at a rate of more than 2100 per 100,000.

Most people instinctively understand these facts, if they do not understand the causes, and they also understand the fact they are powerless to effect change in their own lives – and will only put up with so much before erosion of trust turns to anger, boiling over all areas of life from the protest at the ballot box to outbursts of violence. In this context, our efforts to build integrity and accountability in support of the observance of human rights and the rule of law throughout the world, are crucialboth in maintaining trust in the system and social cohesion, and in addressing the causes of inequality and instability. There is always something human beings want or are afraid of sufficiently to make us corruptible. It is therefore vital that our institutions are continually strengthened and improved to protect as we can against human need, greed or protection of those we hold dear. But that strengthening must be balanced so that the grant of powers does not, of itself create the very environment for misuse of power. This Conference will examine many areas in need of attention. In the context of these global forces, the issues of self-determination and empowerment of the Indigenous peoples of the world are both instructive and especially challenging.

New Zealand shares the rate of 203, for example, England is a bit lower with 147, while the US sits at 693.

This means they are being imprisoned at a higher rate than any cultural group in the Western World. Even more troubling is that this is a problem that has been trending up and not down. A Royal Commission into Aboriginal Deaths in Custody shocked the nation in 1991, when it revealed that Indigenous peoples were being imprisoned at seven times the rate of the broader population. But today in 2017 the rate has exploded to 14 times. Aboriginal and Torres Strait Islander women, meanwhile, are the fastest growing cohort of people who are both victims of violence and imprisoned for violent offences. Indigenous women make up around 2.2 percent of the Australian female population, but around 34 percent of those imprisoned. The rate of imprisonment of Indigenous women has increased by 74 percent since 2000. These substantial increases in the rate of Indigenous imprisonment are occurring at a time when Australia's overall crime rate is falling. In short, there is something very wrong happening here that demands urgent attention. When it comes to identifying causal factors, the answer, of course, is not straightforward. The drivers of Indigenous imprisonment


are complex and intertwined: high rates of cognitive impairment in the prison population and foetal alcohol syndrome is rife; hearing and other health challenges mean young people disengage from schooling early; socioeconomic disadvantage, high rates of depression, alcohol and drug abuse, family violence, homelessness, unemployment, and poor health – all play roles. As undoubtedly does the history of dispossession and removal that I have described. These factors are self-perpetuating – they form a cycle of disadvantage which is intergenerational and virtually impossible for many, who are caught within it, to escape. Perhaps the most toxic of these factors is family violence. Nationally, Indigenous women are 34 times more likely to be hospitalised because of family violence than other Australian women. And they are ten times more likely to be killed as a result of violent assault. Australia's governments also contribute to the imprisonment crisis through a negatively self-reinforcing criminal justice response. State and Territory governments in recent decades have introduced various populist 'tough-on-crime' policies that cause more Indigenous Australians to be caught up in the justice system. The Federal Government then claims justification for withholding adequate funding for Aboriginal legal services, arguing responsibility should now lie with the states who have effectively driven up demand. States then fail to make that investment and social problems deepen, creating the impetus for more 'tough on crime' measures.

from the Australian legal system itself. Mandatory sentencing, punitive bail and parole conditions, falling funding for justice services – all play a major role in exacerbating the problem. This is Australia's most pressing national social justice concern. Year after year, successful governmentfunded reports reveal a disproportionate impact of corrections policies on our Indigenous population. Yet today in Australia, on International Day for the Elimination of Racial Discrimination, despite our acknowledged history of abuse towards our Indigenous peoples, despite knowing the causes of their struggle with the criminal justice system in the harsh context of this reality, a debate rages over whether to wind back the protections of the Racial Discrimination Act so that offensive statements directed at our Indigenous people and others of other races may be more easily be made.

Successive federal governments have seen fit to wind back funding and states and territories have failed to fill the gap. We need to take an honest critical look at the things that work and the things that do not. This year the Law Council of Australia announced a new national initiative with a strong relevance to Indigenous Australia: the Justice Project – a national blueprint for justice for all. The Justice Project is a comprehensive national review into the impediments to justice in Australia, focusing on those facing significant social and economic disadvantage in our community.

While the problems are complex, there are a number of immediate measures which could yield significant change in the nature of Indigenous peoples' interactions with the justice system.

We are talking here about all vulnerable groups – the elderly, the young, those living in remote areas, the homeless, and those affected by discrimination.

Changes to laws and practices will immediate yield outcomes and can reduce recidivism, save money, and prevent crime. Justice reinvestment trials and specialist courts in consultation with Indigenous leaders are also having positive impacts on community empowerment and ownership of justice solutions. Adequate funding for legal aid and legal assistance support is critical. In Australia, Aboriginal and Torres Strait Islander Legal Services were established in every State and Territory some 40 years ago to provide culturally competent legal assistance services to Indigenous peoples.

When it is considered that the fastest growing cohort in Australian prisons is Indigenous women, it becomes reasonably apparent that there is a clear disconnect between criminal justice policy objectives and outcomes.

Unfortunately, while the legal needs of Indigenous people have grown substantially, Indigenous legal services have been stretched to breaking point.

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For example, in Western Australia, the Aboriginal Legal Service has just three family lawyers to service an Aboriginal population of roughly 94,000, dispersed over a land-area roughly equivalent in size to the United Kingdom, South Africa and India – combined. This is despite acute legal problems affecting so many Indigenous families.

We, as lawyers, and as lawyers' associations have a responsibility to be proactive and to resist these unnecessary changes, to drive a unified approach to this national problem.

The irony of course is that the highest proportion of people held in custody or corrections is comprised of those returning to prison, while virtually every person imprisoned has themselves been a victim of crime.

Additionally, however, we must also recognise that many of the drivers of Indigenous imprisonment stem directly

the Commonwealth Government, these services are increasingly unavailable or inaccessible to many who need them most.

The challenges these services face are immense and the pressures imposed on their hard­working staff are enormous. Unfortunately after decades of inadequate and declining funding from

The project will look to build the case for new justice strategies and law reform secured by appropriate funding. It will focus in particular on identifying 'what works' and why, based on existing evidence, highlighting the data gaps and providing constructive, informed recommendations for future action. It will make the economic case for investment in justice infrastructure and for consideration of Justice Impact Statements for Federal laws – to always assess the impact on the justice system of government initiatives and consider where additional resources will be required. The Final Report will also guide our future advocacy about improving access to justice.

Our role It is important that lawyers provide leadership on these matters, in consultation with civil society and with government. At the other end of the spectrum lies the push for the constitutional recognition of Aboriginal and Torres Strait Islander

peoples in the Australian Constitution. This is a slow process engaging many voices and considering many models. It must be respectful and encourage rather than stifle meaningful participation of our first peoples in our precious democratic processes.

working document. As fascinating as it may be to those who love to pore over the meaning of sections and chapters, if it reflects our national soul, at least in respect of our first peoples, it is empty and in need of nurturing.

The exclusion of Indigenous Australians as citizens, as people of the commonwealth until 1967, has compounded their sense of isolation within their own lands.

And it is pertinent to make these remarks this morning at this Conference. It was through colonisation, federation and establishing Australia as a constitutional democracy within the Commonwealth of Nations, that Australia grew as a nation.

We have an historic opportunity to right the historic wrongs of this country, an opportunity which concerns all Australians.

It is by honest exposure and reflection, by the sharing or our problems and our solutions that we can work together for the common good.

If I may return to where I started this morning, to South Africa.

No one of us is perfect, some of us face a greater burden than others and can seek to share in our common wisdom.

Nelson Mandela said, upon the adoption of the new Constitution for South Africa more than 20 years ago.

problem solvers, should embrace together – this week and into the future. It is a worthy undertaking, much greater than the accumulation of material wealth, the building of personal glory and impressive sounding titles. Each of us is much more than that. And that would be a life wasted. So once again welcome. I look forward to meeting you throughout this Conference to my home and sharing this important work together. NOTES: 1.

UN GA Adoption of the Declaration of Principles governing the Sea-Bed and Ocean Floor and subsoil thereof, beyond the limits of national jurisdiction leading to the UN Convention on the Law of the Sea 21 ILM (1982) 1261 (UNCOLS).


Moon Treaty 1967: Treaty of Principles governing the Activity of States and the Exploration and use of Outer space including the Moon and other Celestial Bodies 6 ILM 1967 386 (Moon Treaty); 1979 Agreement governing the activities of States on the Moon and other Celestial Bodies 18 ILM (1979) 1431 Art 7.


Translated as 'communal things' and 'no-one's thing' respectively.


For example, see M.C. Mehta v Kamal Nath India Sup Crt (1997) ISCC 388.

Our common wealth is the future of our peoples and the health of our planet.

"This is our national soul our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions."

Individually and collectively, we are some of the most powerful and most privileged human beings on the planet – now and at any time in our history.

Our own Australian Constitution is a

These are undertakings that we, as

Introducing a new LawCare WA service – Employee Relations Advice Line

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

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

LawCare WA is available to members of

Service provided by CCIWA


180th Year Celebration of the Old Courthouse and Launch of the Final Stage of Redesign of the Law Museum Address delivered 23 March 2017 The Honourable Wayne Martin AC Chief Justice of Western Australia Attorney General of Western Australia, the Honourable John Quigley MLA, President of the Law Society of Western Australia Mr Alain Musikanth, distinguished guests too numerous to mention, ladies and gentlemen. I am greatly honoured to have been invited to address this gathering to celebrate the 180th anniversary of the opening of the building which now houses the Francis Burt Law Education Programme, and the Law Museum, and to formally launch the final stage of the redesign of the Museum.

– court proceedings having previously been conducted in the 'rush' church not far from here. The site on which this building was constructed was a significant site from the earliest days of the Colony, being on the bank of the river immediately adjacent to the pier which the colonists used to travel from Fremantle to the fledging city. The steps immediately adjacent to the building have outstanding heritage value as they were the steps used to access the pier, which of course gave its name to nearby Pier Street, for many years.

Before going any further I would like to thank Aunty Marie Taylor for her characteristically generous welcome to country, and pay my respects to the Elders past and present of the traditional owners of the lands on which we meet, the Whadjuck people who form part of the great Nyoongar Clan of South Western Australia, and acknowledge their continuing stewardship of these lands.

The building was built adjacent to the Commissariat Store, which was located next to the pier for obvious practical reasons. It was the demolition of that building in the 1890s which provided the site for the Supreme Court building which was opened in 1903.

The 1837 Building The building we celebrate this evening is the oldest building still standing in the City of Perth. It was designed by Henry Willey Reveley, who also designed the oldest building in the metropolitan area – the Round House at Fremantle, which was built in 1831, just two years after the Colony was founded. The Honourable Nick Hasluck AM QC, who regrettably cannot be with us this evening, wrote of Reveley's interesting life, including his association with Percy Bysshe Shelley and his opportunistic joinder of Captain Stirling's ships as they called in at Cape Town on their way to the Swan River Settlement, just after he had been dismissed from his then position, in a fascinating article published in this month's edition of Brief magazine. The Round House was the Colony's first jail, and this building was the Colony's first purpose built courthouse

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It will be clear from this very abbreviated history that this building, which was opened in January 1837, and this area have been associated with the administration of justice since the earliest days of the Colony. In those early days the shortage of buildings meant that most buildings were used for multiple purposes, and this building was no exception. As the Hon Nick Hasluck has pointed out in his article, the primary use of the building was as a courthouse; it was the building in which the trial of 15 year old John Gaven for murder took place – he being the first European executed in the Colony following the trial in 1844. However, the building was also used as a church and as a school and, following the construction of the new courthouse in Beaufort Street adjacent to the gaol, an immigration office. Other significant events which took place in this building include a fundraising piano concert performed by Bishop Salvado, after he had walked from New Norcia to Perth for the purpose, and public meetings, including a meeting which called for convicts to be sent to the Colony when it was desperately short

of labour, and another public meeting calling for representative government. Time does not permit me the opportunity of saying more about the fascinating history of this building, which is very well documented in Nick Hasluck's article, as is Nick's personal connection to the building as a consequence of the fact that the coat of arms which hangs on the wall behind the Bench was carved by his grandfather, Lewis Hasluck, in a shed at the back of the family home in Collie Street, Fremantle – and the coat of arms still bears Nick's great grandfather's signature on the reverse side. Given the significant history of this building in the life of our State, it is entirely fitting that over the last 30 years it has housed what have become significant institutions providing information to contemporary Western Australians with respect to the law and the courts, and the legal history of Western Australia. This evening we also celebrate the 30th anniversary of the commencement of the Francis Burt Law Education Programme, the Mock Trial Competition and the Old Courthouse Law Museum. I have been honoured to serve as Chair of the Advisory Committee overseeing those various activities for almost 11 years now, and have been very pleased to observe the capacity of those responsible for presenting those important services to respond flexibly and innovatively to changes in community expectations and requirements. Rather than resting on their laurels, and rehashing the same service delivery models, each of the entities operating from this building has demonstrated flexibility, and the capacity to adapt to changing times, as a result of which each of the organisations continues to go from strength to strength. As the President has mentioned, the number of student participants in the education programme continues to rise, as do the numbers of participants in

The building we celebrate this evening is the oldest building still standing in the City of Perth. It was designed by Henry Willey Reveley, who also designed the oldest building in the metropolitan area – the Round House at Fremantle.

the Mock Trial Competition, which has been and continues to be extraordinarily successful, as do the numbers visiting the Old Court Museum. These trends are a testament to the commitment and capacity of the very small but talented group who provide these services, under the diligent stewardship of Dean Curtis.

to prepare the overall interpretation and design plan. Subsequent years have seen the progressive implementation of that plan, and this evening I am very pleased to formally open the last stage in that process – the exhibition entitled 'From Past to Present: the Changing Face of the Law'.

It is difficult to overstate the importance of the functions performed in this building, which serve to connect the Law Society and its members to the wider community, and to increase the information available to the community with respect to the courts, the law and legal practice. I know from my discussions with other Chief Justices in Australia and New Zealand that this facility is unique in our region, and much envied, and is one of only a few similar facilities in the world. We are very fortunate to have this facility, and must avoid the temptation to take its continued operation for granted.

When we reflect upon the history of the courts of this State since colonisation, we cannot and should not avoid confronting the tragic truth that over much of that history the courts were amongst the instruments of government used to dispossess, disadvantage, oppress and alienate the original inhabitants and their descendants. Given that tragic history, I am very pleased that those responsible for the displays in the Museum have given prominent attention to Aboriginal people and their interface with the courts created by the colonists. Included in the collection now on display are short audio abstracts of a number of Aboriginal people relating their experience as part of the Stolen Generation – a collective description for a range of practices authorised by legislation in force in this State for much of the last century and which had the effect of separating Aboriginal children

As I mentioned, we are also this evening launching the final stage in the comprehensive redesign of the Old Courthouse Law Museum. That process commenced in July 2008 and, with the benefit of a grant from Lottery West in 2009, experts in the field were engaged

from their parents. In this context I would like to particularly acknowledge and thank John Schnaars, Leonard Ogilvie, Sandra Hill, Glenys Collard, Celine Kickett, and Dr Sue Gordon AM, who gave permission for their audio abstracts to be used. None of the things we are celebrating this evening would be possible without the continuing support of a number of people and entities. I would like to particularly mention the Department of the Attorney General for its continuing and generous support and its diligent attention to the maintenance of this important building, the Department of Education for its continuing support of the education programme, and the Public Purposes Trust for its ongoing financial support, and I of course have already mentioned the fantastic support we have received from Lottery West in the redesign of the various displays which now comprise the Museum. I don't want to keep you from enjoying those displays by going on any further. It only remains for me to thank you all for your attendance this evening and to invite you to now enjoy the Society's hospitality and take your time to wander through the exhibition.


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

Property – Kennon – Wife’s evidence of family violence should not have been excluded for imprecision – Weight to be given to it was another matter In Britt [2017] FamCAFC 27 (27 February 2017) the Full Court (May, Aldridge & Cronin JJ) allowed the wife’s appeal against Judge Terry’s property order. Arguing Kennon [1997] FamCA 27, the wife’s case was that the trial judge failed properly to take into account her evidence that her contributions towards the property and welfare of the family were made more onerous by the husband’s physical violence and coercive and controlling behaviour. The Full Court said (at [25]): The primary judge … rejected parts of the appellant’s evidence as to family violence, essentially on the basis that the evidence was not in ‘proper form’. The primary judge considered that the evidence consisted of conclusions, was ‘just too general’ and lacked particularity. In particular, her Honour was critical of … ‘regularly’, ‘routinely’, ‘repeatedly’ and ‘often’. This was because these words lacked specificity and were too general. Her Honour was of the view that such evidence gave no indication as to ‘whether [the family violence] happened once a week or once a decade’. Further, scattered throughout the transcript are statements … by the … judge … that the evidence was not relevant to the issues before the court. Excluded evidence comprised statements that the husband “dominated [her] throughout the relationship”; was “violent and aggressive”; “regularly forced her” to have sex; “regularly left” her “alone on the property for days at a time” and would return intoxicated and “always aggressive and violent”; and that she “often intervened when he attempted to hurt the children physically usually with the result that” she “was assaulted physically”. The Full Court said ([31]) that “evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value” and ([41]) that “none of the [excluded] evidence … should have been excluded on the basis that it had no probative value at all, simply because it was expressed as a conclusion”. Remitting the case for rehearing, the Court said ([50]):

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The statements made by the primary judge, to the effect that the evidence was too general and was a conclusion, confuse admissibility with weight. … [A] ny generality went to the ultimate weight to be given to the evidence and not to whether it should be admitted or not. Children – Interim hearing – Father failed to prove risk of harm posed by mother’s recently imprisoned new partner In Lang & Partington [2017] FamCAFC 40 (16 March 2017) Aldridge J, sitting in the appeals jurisdiction of the Family Court, dismissed with costs the father’s appeal against Judge Newbrun’s refusal to grant his application for an injunction restraining the mother from bringing the parties’ 7 year old child into contact with her new partner (“Mr V”). The father argued that Mr V (recently imprisoned on drugs and firearms offences) posed an unacceptable risk of harm. The court below heard ([12]) that Mr V said that “he pleaded guilty to … possession of … heroin belonging to a woman … [but] he lied to the police that he was a heroin user to protect [her]”; that he was also convicted of supplying firearms and sentenced to six years imprisonment; was “seeing a psychologist whilst incarcerated to discuss his anxiety” and “prescribed medication [but] stopped taking it about 18 months before his release”; attended rehabilitative programs; met the mother during job placement in 2013 and was released in 2014. He saw a counsellor, began work as a driver and was promoted. His children were returned to his care and in 2015 the mother moved in with him. Aldridge J said ([31]) that the father bore the burden of proving that the child was at risk, concluding ([35]-[36]): … [T]he difficulty … is that the evidence of the [adult] daughter does not establish that the …judge was in error in finding that there was no unacceptable risk of harm … Taken at its highest, her evidence was that: • She had seen her mother and Mr V drink a bottle of whisky and that he became ‘argumentative and snappy’ and that he was ‘getting very close to my face while speaking’. • Mr V on one other occasion became ‘irate and aggressive’ and that an argument between Mr V and the mother ‘was loud and I thought it

necessary to take his children away so they did not witness the incident’. Even if this evidence was given full weight it is difficult to see that it establishes that Mr V poses an unacceptable risk of harm to the child. Property – Subpoenaed law firm’s application for order that applicant wife provide a confidentiality undertaking dismissed In Willis & Willis and Ors [2017] FamCA 183 (24 March 2017) Carew J heard interlocutory arguments relating to the wife’s s79A application (in which she alleged a miscarriage of justice due to the husband’s failure to disclose). The wife issued a subpoena for production by “D Lawyers” who opposed it until she had provided “a written undertaking … guaranteeing its continued confidentiality other than for the purposes of these proceedings” ([10]). She also sought an order that the husband provide further and better particulars of his pleadings (which the parties had been directed to file). As to the former, Carew J said ([11][13]) that it was “not in contention that the applicant is bound by an implied undertaking as described by the High Court in Hearne v Street [[2008] HCA 36]” and “by s121 [FLA]” and “is also restrained in her use of the document by Rule 13.07A of the Family Law Rules”, concluding ([15]-[16]) that “given the consequences that would befall the applicant were she to breach those protections it is not … clear why [she] should be required to sign an undertaking”. In the absence of any authority in support the request was dismissed. The Court upheld one of the wife’s requests for particulars but rejected her other requests, saying ([18]): The purpose of pleadings is to settle the issues in dispute to enable each party to know the case they have to meet at trial and to ensure that neither party is caught by surprise. The material facts relied upon are required to be pleaded but not the evidence as to how those facts will be proved … 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.

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

Jarbin and Yabes [2017] FCWA 36 Ms Jarbin commenced proceedings against Mr Yabes in the Family Court of WA (FCWA) seeking orders altering interests in property in accordance with the FCWA’s jurisdiction with respect to de facto couples in accordance with the Family Court Act 1997 (WA) (FCAct). Western Australia (WA) is the only State in Australia which has not referred to the Commonwealth its powers as to the determination of property disputes arising from de facto couples. The remainder of the country’s de facto matters are determined in accordance with the provisions of the Family Law Act 1975 (Cth) (FLA). The FCWA has jurisdiction to determine a de facto property matter where the requisite nexus pursuant to s205X of the FCAct is satisfied, namely: … before making an order … a court must be satisfied’ – (a) that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and (b) that i. both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or ii. substantial contributions… have been made in the State by the applicant. On Ms Jarbin’s evidence the parties commenced a casual sexual relationship in 2005 which continued long distance until 2009 when they commenced cohabitation in Sydney. The parties continued to live together in Sydney until June 2012 when she returned to Perth and Mr Yabes remained in Sydney. Ms Jarbin sought orders to the effect that she receive 30% of the assets available for division. Mr Yabes sought to dismiss Ms Jarbin’s application on the basis the Court did not have jurisdiction to hear the matter as there had not been a de facto relationship between him and Ms Jarbin. The matter was listed for a trial in February 2017. Counsel on behalf of Mr Yabes submitted in his Papers for the Judge prior to trial that the parties did not have the necessary connection to WA to enliven the FCWA’s jurisdiction. At a status hearing listed by the Court prior to trial Counsel for Ms Jarbin conceded the FCWA did not have jurisdiction to determine her application. Counsel then made an oral application to transfer the proceedings to the Family Court of Australia (FCA) for

determination under the FLA jurisdiction as to de facto couples and for His Honour Justice O’Brien to determine the matter in his role as a Justice of the FCA. It was Ms Jarbin’s position that whilst the FCWA did not have jurisdiction to determine the substantive matter, it had the power to transfer the matter to the FCA. His Honour Justice O’Brien gave ex tempore reasons for his decision that the FCWA did not have the power to transfer the proceedings to the FCA as that Court did not have jurisdiction to determine the matter in its current form. The original jurisdiction of the FCA pursuant to s31(1)(aa) of the FLA sets out the FCA has jurisdiction to determine proceedings as between de facto couples where those proceedings are instituted under the FLA, which is distinguishable from this matter where the proceedings had been commenced under the FCAct. Further His Honour found that even if the matter could be transferred to the FCA it could not be determined by a Judge of the FCWA exercising the FCA’s jurisdiction. At [52] His Honour commented “the simple fact is that …the proceedings were instituted in the wrong State, in the wrong court, under the wrong legislation.” The full judgement is available from the Family Court of WA website. Author: Nicola Ashford, Lawyer, Kim Wilson & Co; YLC Member

Kendirjian v Lepore & Anor [2017] HCA 13 This case concerned an appeal from a judgment of the NSW Court of Appeal upholding a decision of the NSW District Court to summarily dismiss the Appellant’s claim against both his former solicitor and trial counsel which alleged they had been negligent in rejecting an offer of compromise in personal injury proceedings, the quantum of which was greater than that ultimately awarded at trial, on the basis their conduct attracted advocate’s immunity and they were, therefore, immune from suit. In unanimously allowing the appeal, the High Court again reaffirmed the existence of advocate’s common law immunity from suit in Australian jurisprudence albeit with a limited scope excluding conduct during settlement negotiations irrespective of whether that conduct leads to a compromise or the continuation of proceedings. An advocate’s immunity from suit attaches to work done in court, or work done outside of court which nonetheless contributes to a decision affecting the conduct of the matter in court [29]. To enliven the immunity, the work of the advocate must “move the litigation towards determination by a court” [30].

The Court recently considered the scope of advocate’s immunity in the decision of Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 which was handed down on 4 May 2016 (the judgment of the NSW Court of Appeal the subject of this appeal was delivered on 21 May 2015). Relevantly, the High Court held in Attwells that the scope of advocate’s immunity did not encompass: “negligent advice which leads to a compromise of litigation between the parties” [18]. In light of the decision in Attwells, the First Respondent (the Appellant’s former solicitor) consented to orders allowing the appeal. The Second Respondent, however, raised 2 points in opposition. First, that this case can be distinguished from the reasoning in Attwells on the basis it concerns advice which caused the continuation of proceedings and secondly, a point raised at hearing, that the decision in Attwells should be reopened. This being the first decision delivered since the swearing in of Justice Edelman as a puisne justice of the Court, as is customary, his Honour delivered the leading judgment with which Chief Justice Kiefel and Justices Bell, Gaegler and Keane concurred. In rejecting both contentions of the Second Respondent, Justice Edelman reiterated that advocate’s immunity does not extend to work which lacks a ‘functional connection’ between the “work of the advocate and the judicial determination of the case” [31]. His Honour stressed that the work in question must “bear upon the court’s determination of the case” and not merely exhibit a “historical connection” to the proceedings. In that regard, his Honour held that “the giving of advice either to cease or to continue litigating does not itself affect the judicial determination of a case” to the extent required to attract the immunity from suit [32]. Justices Nettle and Gordon agreed with Justice Edelman in allowing the appeal insofar as their Honours acknowledged being bound by the reasoning of the majority in Attwells, but nevertheless expressed differing views consistent with the dissenting judgments their Honours gave in that decision. Justice Nettle, with whom Justice Gordon agreed, was particularly concerned with the principle of finality of litigation and thus respectfully disagreed with the majority’s conclusion that the negligence action would not potentially give rise to a challenge to the NSW District Court’s findings of fact in the personal injury proceedings [5]. Author: Jack Carroll, Solicitor, Park Legal Solutions; YLC Member


Law Council Update

Law Council says stronger whistleblower protections are needed The Law Council of Australia has told a Senate hearing that whistleblowers protections are inconsistent and should be strengthened. The Law Council submission recommends that any new whistleblowing laws should:

and those available in other countries for some years. The Government has also recognised that there is a public interest in ensuring appropriate protections are afforded to whistleblowers in the public and not-for-profit sectors. “At present, whistleblowers who disclose information to ASIC in respect of tax evasion or avoidance are not properly protected by the Corporations Act or tax laws. The Australian Tax Office does not have an express power to protect whistleblowers from victimisation. This is not the situation in comparable jurisdictions, where both specific protections from victimisation and compensatory remedies exist."

be uniform in structure and operation, applying across all contexts and sectors across all States and Territories;

apply to any whistleblower, without regard to the nature of the relationship to the entity in question;

encourage internal whistleblowing in the first instance, but acknowledge that disclosure to a regulator can occur at any time;

The Law Council was represented at the Senate hearing by Rebecca MaslenStannage and Dr Natasha Molt.

include broad rights of restitution and compensation for victimisation; and

include broad community consultation on the merits of a possible rewards scheme for whistleblowers.

Last-minute cancellation of legal assistance funding cuts a great victory for justice and vulnerable Australians

Law Council of Australia President, Fiona McLeod SC, said important ground had been made on the commitment to strengthen whistleblower protections of late, pointing to the commitments of the Federal Government developed though the Open Government Partnership (OGP) last year. Ms McLeod is a co-chair of the OGP Interim Working Group. “Preventing and addressing corruption depends in part upon effective whistleblower protections. If whistleblower laws are to address the fear of reprisal, and encourage people to come forward with credible information, then clear, nationally consistent protections are necessary," Ms McLeod said. "The Federal Government should be commended for committing to developing appropriate laws protecting tax whistleblowers and those who report corruption, fraud, tax evasion, and misconduct within the corporate sector. These protections have lagged behind protections for public servants

52 | BRIEF JUNE 2017

The Federal Government’s cancellation of millions of dollars worth of cuts to legal assistance services is a huge relief with profound consequences for the justice system, and thousands of vulnerable Australians, according to the Law Council of Australia. The Government was due to slash $35 million from the sector in the upcoming Budget, a 30 percent cut that would have devastated community legal centres (CLCs) and Aboriginal and Torres Strait Islander Legal Services (ATSILS). Tens of thousands of Australians would have been cut off from legal assistance. The Law Council, along with many in the legal assistance sector, had been advocating relentlessly for the abandonment of the cuts. Law Council President, Fiona McLeod SC, said the decision was a massive relief. “This is a tremendous victory for access to justice in Australia,” Ms McLeod said. “Each year, we know tens of thousands of Australians experience legal problems and cannot access help due to the inadequate funding of legal assistance. Without legal

intervention, these problems often spiral out of control, creating enormous financial and social costs. “The scheduled budget cuts would have significantly deepened the funding crisis affecting the legal assistance sector, with enormous downstream costs to taxpayers. “Those who work in the legal assistance sector are the unsung heroes of our community, working long hours in extremely challenging conditions to achieve justice for their clients. “This announcement will be a great relief for those dedicated lawyers and their clients. It heads off an impending disaster, as many community legal centres, particularly in regional areas, were set to close. “CLCs are also the conduits for an enormous amount of pro bono legal work contributed by the private profession. This contribution which would have diminished if the cuts had proceeded.” Ms McLeod noted that while the cancellation of the cuts staved off the immediate ‘funding cliff’ crisis, it is clear that much more is needed to address the structural and systemic underfunding of legal aid including legal assistance services, which have suffered from over 20 years of funding neglect by successive Federal Governments. “In 2014, the Productivity Commission recommended an additional $200 million in legal assistance funding, noting the substantial savings for taxpayers by reducing costs and demand for the courts and other services,” Ms McLeod said. “Clearly there is still a broader problem here that needs to be fixed if we want an Australia in which everyone can access justice. “On behalf of the Australian legal profession, I congratulate the AttorneyGeneral on the decision. I also thank the hard-working lawyers of the legal assistance sector for their tireless advocacy. “This marks a critically important victory, but the fight for proper legal assistance funding will continue.”

Pam Sawyer


Professional Announcements Career moves and changes in the profession

HLS Legal

Solomon Hollett Lawyers

The Managing Director of HLS Legal, Tony Smetana, is delighted to announce the appointment of Alisanne Ride as Director of HLS Legal.

Solomon Hollett Lawyers is pleased to announce the appointment of Brandon Hetherington as a lawyer within the firm. Brandon comes to the firm with strong experience across the realms of Commercial, Wills and Estates and Estate Litigation, all specialties of the growing practice.

Ali has worked diligently for HLS Legal since 2010. For the past six years, in her role as Senior Associate, she has shown exceptional ability and has a strong track record of providing excellent advice to our clients.

Tony Smetana Brandon Hetherington

Her extensive experience in employment law, industrial relations, litigation and occupational health and safety, enables her to respond to the continued demand for advice in this area from companies.

IRDI Legal

Along with her dedication to our clients, Ali demonstrates a solid commitment to mentoring the team, and will make an important contribution to the continuing growth of our business, and the strength of our firm.

David brings over nine years of experience in property and commercial law particularly in the retirement village, health and aged care industries.

IRDI Legal has appointed David McMullen as a Senior Lawyer in a move to broaden the firm’s service offerings. Alisanne Ride

David was previously a General Counsel David McMullen and Company Secretary at St Ives Retirement Living and Home Care, and has worked as in-house Legal Counsel at St John of God Health Care and consulted at leading national and WA law firms.

Kim Wilson & Co Family Lawyers Kim Wilson & Co Family Lawyers are pleased to announce that Nicola Ashford has been appointed an Associate of the firm from 1 May 2017.

Murfett Legal

Nicola Ashford

Murfett Legal is pleased to announce the appointment of Kanchana Dissanayaka as an Estate Planning & Property Lawyer to the firm.

Spyker Legal We are delighted to announce the commencement of Spyker Legal which opened its offices in Willetton on 1 May 2017. Warnar Spyker heads the practice, focusing predominantly on commercial litigation, wills and estates and worker’s compensation.

We are also pleased to announce the appointment of Alice Commander as a Corporate & Commercial Associate with the firm.

Kanchana Dissanayaka

Warnar Spyker

We are also pleased to announce that Joshua Burton, who has worked alongside Warnar over many years, has joined the firm as an Associate.

Alice Commander

Joshua Burton

Make your EOFY tax deductible donation now at lawaccess.net.au Donating an hour of your billable time to Law Access is a practical way to support access to justice for some of the most vunerable people in Western Australia Cheques can be made out to Law Access Limited Gift Account 54 | BRIEF JUNE 2017




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New Members New members joining the Law Society (April 2017) Barrister Membership Mr William Robinson Wotton Kearney

Ordinary Membership Mr Richard Yates Tindall Gask Bentley Lawyers Mr Aaron Dewse Dwyer Durack

Restricted Practitioner Mr Tom Mitchell Capital Legal Pty Ltd

Associate Membership Mr Sean Discombe University of New England Mr Adriano Poncini Chew + Matthews Mr Tayler Wright Herbert Smith Freehills Mr Jasper Johnson Herbert Smith Freehills Mr Sam Edwards Herbert Smith Freehills Miss Grace Louise Tate Herbert Smith Freehills Mr Ben Davis Herbert Smith Freehills Mr Edward Sinclair Herbert Smith Freehills Mr Oliver Tod Herbert Smith Freehills Mr James Moorman Herbert Smith Freehills Mr Kai Low Herbert Smith Freehills

MAVIS RITA DOMINGO formerly of 21 Partridge Way, Thornlie, late of Aegis St James, 38 Alday Street, St James, died on 20 April 2017. If any person holds a Will and Testament of MAVIS RITA DOMINGO or knows the whereabouts of such a Will and Testament, can they please contact Geoff Cummins at HFM Legal on (08) 9493 1399, or in writing at PO Box 1, Maddington, WA, 6989 or email at hfm@hfmlegal.com.au within one (1) month of the date of this publication. Reference 23174/GJC

Mr Daniel McCarthy DLA Piper Australia Ms Alexandra McKenzie DLA Piper Australia Ms Sarah McBean DLA Piper Australia Mr Kailan Durrant Ashurst Australia Ms Monique Robertson Ashurst Australia Miss Jessica Fitch Clifford Chance (Sydney) Miss Kate Fitzsimons Allens Mr Sam Gillis Allens Mr Jonathon Holborn Allens Miss Brittany Lawtie Allens Mr Marc Lenzo Allens Ms Amy Weston Murdoch University

Miss Haley Graydon Lynn & Brown Lawyers


Events Calendar

With thanks to our CPD partner

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

JUNE 2017 CPD Seminars Thursday, 1 June Quality Practice Standard Accreditation workshop two Friday, 16 June Ethics on Friday: pointing the finger

Commencing Monday, 19 June The Essential Legal Assistant Friday, 23 June Essentials of Advocacy Membership Event Thursday, 15 June 90th Anniversary Cocktail Party

JULY 2017

Membership Event Friday, 14 July Golden Gavel

AUGUST 2017 CPD Seminars Saturday, 5 – Sunday, 6 August Practical Advocacy Weekend

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

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