0606 LSSA PDF ISSUE Bulletin

2006 Law Week: Courts Open Day

June 2006 VOL. 28. NO.05

www.lawsocietysa.asn.au

Full-service stockbroking and financial planning Ord Minnett Adelaide

Nicholas Ross

Ord Minnett is a leading wealth management group with over 350 professionals in 15 offices across Australia.

A proudly Australian firm since our inception in 1860, we offer; Full-service stockbroking Financial planning Portfolio Services Funds Management Research Margin lending Corporate Finance and advisory Structured and alternative investments.

Ord Minnett upholds proud traditions of integrity, excellence, consistency and high quality advice.

Please contact Nicholas Ross at Ord Minnett Adelaide to hear more about our commitment to helping clients achieve their financial goals.

08 8203 2537 nross@ords.com.au Level 11, 13 Grenfell Strett, Adelaide SA 5000 www.ords.com.au Ord Minnett is the registered business name of of Ord Minnett Limited, AFSL 237121. Ord Minnett Financial Planning Pty Limited (ABN number 31 066 414 613) holds AFSL 237122. This advertisement contains general financial advice only and has been prepared without taking account of your objectives, financial situation or needs. Before acting on this advice you should consider it’s appropriateness having regard to your own objectives, financial situation and needs.

JUNE 2006 Volume 28 Number 05 2006 Law Week: Courts Open Day

June 2006 VOL. 28. NO.05

Liability under the Trades Practices Act

by David Wright

www.lawsocietysa.as

Cover Story: CAA Open Day – Law Week 2006

...........

8

CONTENTS Society News:

Columns:

Practicing Licences Item ..................................................... 8 Paralegal Group Launch Evening ..................... 16 Scammels receives National Award.............. 35

Opinion............................................................................................................. 4 President’s Message...................................................................... 6 Tax Files ..................................................................................................... 23 New Releases...................................................................................... 34 Judgments .............................................................................................. 22 Diary Dates........................................................................................... 30 Gazing in the Gazette .......................................................... 33 Conference Listing.................................................................... 32 Moving On, Moving Up..................................................... 29 Murray Information Resource Centre....... 20 Charity Feature............................................................................... 36 Classifieds ............................................................................................... 38

Features: Liability under the Trades Practices Act ...................................................................................... 10 Perspectives: An Illustrated history of the SA Supreme Court ............................................... 14 Family Violence and the Shared Parental Responsibility Act ......................................................................... 18

Legal News:

10

Perspectives: An Illustrated history of the SA Supreme Court

By John Emerson

14

Profile ............................................................................................................. 21 Law Week Feature...................................................................... 24 Riskwatch ................................................................................................ 26 From the Editor - June 2006

A

past against the political opponents of a government, such as Mahatma Gandhi and Nelson Mandela, and in Australia against Peter Lalor after the Eureka Stockade and later against members of the Communist Party.

timely item picked up by the Age referred to the Australian Law Reform Commission’s review of the government’s new sedition laws. In releasing its discussion paper, the commission has still Another major problem seen in to release its final report. It is no surprise that it is proposing the present sedition law is the narrowness of its exceptions. It substantial changes. contains no defence for many forms A key finding by the commission is of communication, such as artistic that the term ‘sedition’ should be performances or even academic or removed from the statute book. The scientific discussion. A clear tension commission has recognised the now lies in that the law can thus discredited nature of such laws and make it an offence to say such things the mistake made in reincarnating even when it is in the public or national interest to do so. them in a modern guise.

there is merit in a more narrow law that criminalises speech where it can be proved beyond reasonable doubt that a person has intentionally urged others to use force or violence, and intended that this force or violence would occur.

We are fortunate though that the sedition debate has been reopened. In many other areas, new laws have been enacted since September 11 without any possibility of a re-examination.

At least in the case of sedition, the commission has had the opportunity to now set out the defects and to propose vital major change.

Family Violence and the Shared Parental Responsibility Act

By Kyla Williams

18 3

It’s no surprise that sedition laws The commission instead of calling NICK RAMAGE have been used many times in the for the repeal of the law, suggests bulletin@lssa.asn.au

June 2006

Opinion

A Renewed Call to Action

by CJ Charles, ALRM General Counsel

This month's Opinion was edited from an article originally published in (2005) 9(4) the Australian Indigenous Law Reporter - 77. The article examined the findings of 'The 2004-5 South Australian Inquest Into Deaths On The Anangu Pitjantajatjara Yanykuntjatjara Lands ’, and renewed again the call for a forthright and committed government response to address the issues at hand.

T

he role of a Coroner can be described as being that of an ‘Ombudsman for the Dead.’

By the force of his Findings a Coroner can make clear what happened in the individual cases of deaths under inquest and can make recommendations to Government authorities which if implemented can reduce the likelihood or risk of similar occurrences, and render less likely further deaths from the same causes.

In 2002 the former state Coroner of South Australia Wayne Chivellii, undertook the daunting task of investigating the causes and circumstances of the deaths of 3 people who died on the Anangu Pitjantajatjara Yanykuntjatjara Lands, (APY Lands) as a result of sniffing petrol. He published detailed findings and a ver y comprehensive set of recommendations to Government in inquests he held in 2002iii.

4

These three inquests, in which were published findings, each of some 84 pages, encompassed a detailed analysis of living conditions on the Lands, the distress of Anangu and their need

www.lssa.asn.au

for assistance in dealing with such intractable problems that led to endemic sniffing with its c o n s e q u e n t t o l l of s o c i a l disruption, family distress and the grief amongst Anangu, which flowed from the inevitable deaths of sniffers.

A literature reviewiv and the evidence before him, led the Coron er to conclude that primary, secondary and tertiary interventions were necessary, to deal with the varying degrees of disability that flowed from petrol sniffing, and the significant comment that only the operation of a number of programs, working well together would be likely to have any lasting impactv.

It was a cause of some distress that in 2004, he felt obliged to hold further inquests on the APY lands. Concerning the reasons that further inquests were necessary the Coroner noted sp e c i f i c re t i c e n c e i n t h e Government response to his 2002 Findings. Coroner Chivell stated: 13.1. In the 2002 Findings, I made a number of recommendations which I thought may prevent, or reduce the likelihood of, a recurrence of an event similar to the deaths being considered (see

Section 25(2) of the Coroners Act, 1975). Tragically, with the exception of Kunmanara Ryan, the deaths now being considered are so connected with petrol sniffing that they must be considered ‘similar’ to the deaths being considered in the 2002 inquests.

Indeed, since the 2002 findings, the problem of petrol sniffing has become worse, not better.

13.2. To that extent, either the recommendations I made in 2002 were inappropriate, or they have not been effectively implemented.

Wi t h t h e e x c ep t i on o f t h e secure care/correctional facility recommendation, it has not been suggested in this inquest that the 2002 recommendations were inappropriate. It has therefore been necessary to consider the extent to which they have been implemented.

The detail of the 2002 Findings not being implemented was a complex topic, but His Honour noted the apparent reserve of Government - at a high level to come to grips with the actions necessary for effective implementation.

In the E xecutive Summar y he said:

22. On 30 September 2002, the South Australian Cabinet transferred responsibility for APLIICC to the D epartment for Aboriginal Af fairs and Reconciliation (‘DAARE’). In retrospect, this was a mistake.

DAARE did not have sufficient resources, power and authority to drive major change in key government agencies. Political in s t a b i l i t y i n t h e A n a n g u Pitjantjatjara Executive, the body with which the Government had decided to deal in relation to service delivery, also hindered effective action.

23. In February 2004, it became apparent that the 2003/2004 budget allocation of $12m, to be spent over four years, remained largely unspent.

Furthermore he added: 28. It is very unfortunate that the optimism expressed by South Australian Government representatives during the 2002 inquests did not translate into the ‘prompt, forthright, properly planned, properly funded action’ which was called for, until March 2 0 0 4 . I re c ei v e d si m i l a rl y optimistic evidence this time, and it is to be hoped that better results will be achieved. The early signs

are good. The impetus achieved thus far must be maintained otherwise further deaths and misery can be expected.

29. It is a great pity that, even after the 2002 inquests during which the failure of similar programs was considered, youth worker programs were set up on such an adhoc and unplanned basis, without regard to previous experience, and with insuf ficient training and supervision of the workers. It is to be hoped that the review will enable

2005 that he had made in 2002.

13.4. In those circumstances, it is appropriate that I should repeat the general recommendations I made in the 2002 findings.

WA and th e Pitjantjatjara communities in the NT.

Mr Chivell also made numerous fur th er re c omm end ations to Government, which were consequential recommendations upon the evidence he had received in 2005.

Much concerted and coordinated Government action remains to be done. For example, there is still not uniformity of laws between WA, NT and SA on petrol sniffing, more particularly the need to have ef fective sanctions against trafficking in petrol for the purpose of inhalation.

The themes were similar to those of 2002, except that there was

The Coronial process is very important in bringing to the

issues - even if some aspects of his recommendations are ultimately superseded by better alternatives decided at the local level.

The resounding final word however belongs to the former South Australian Coroner who in his findings concluded; “That such conditions should exist among a group of people defined by race in the 21st Century in a developed nation

"That such conditions should exist among a group of

people defined by race in the 21st Century in a developed nation like Australia is a disgrace and should shame us all."

Former SA Coroner Wayne Chivell

these programs and the Department of Families and Communities to avoid the mistakes of the past being repeated again.

The 2004-5 inquest findings and re commend ati on s are thu s significant because the Coroner had been obliged to use the Inquest Process to consider the reticence of Government to implement previous findings. As such these inquests represent a high point in Coronial practice, in terms of judicial monitoring of Government action.

It was thus no mere rhetorical flourish that he did what he had been urged to do by the NPY Women’s Council, when he made the same recommendations in

more emphasis on the Mental Health issues, which had arisen in the 2004-5 inquests.

A major hurdle to progress is that th ere i s currently little complementarity in the operation of legislation between the states and territories. This is an important area of future Law Reform, which can be expected to have significant impact on the operations of CAALAS, ALRM and ALS WA in the tristate region, not just in the area of mental health but in the question of Magistrates’ tristate jurisdiction, criminal law generally and vexed questions of police powers in that region which encompasses the SA APY Lands, The Ngaanyatjarra Lands in

Public’s attention grave issues like petrol sniffing and the grave difficulty Aboriginal people have in dealing with Government and its inability to take action to remedy it.

Given the history of neglect of petrol sniffing and its attendant problems, the Coronial Inquest provided an opportunity to focus on these issues. They should not be allowed, like the recommendations of so many other reports, to drift away unheeded. Instead, the former Coroner’s recommendations should be capitalised on as the basis for a blueprint for a longterm sustained, comprehensive strategic plan for tackling these

like Australia is a disgrace and should shame us all.”vi i The Author represented the families of the Deceased in the 2002 and in 2004-5 inquests. ii Now His Honour Judge Chivell of the District Court of South Australia iii “http://www.courts.gov.au/ coroner/findings/2002JKunmanara” www.courts.gov.au/coroner/findings/200 2/KunmanaraHunt, Ken and Thompson. iv The 2002 findings include an extensive and useful bibliography , which includes the detailed paper by D’Abbs and McLean, “Petrol Sniffing in Aboriginal.

Communities - A Review of Interventions“ v 2002 inquest findings supra, Executive Summary paragraph 18. vi 2002 Findings supra Executive Summary paragraph 9.

June 2006

5

Deej Eszenyi

President’s Message

B

efore I became active in the Law Society I had, frankly, no idea what mystical process lay behind the fixing of the annual Practising Certificate fee. I was aware of not much more than that, once a year, I received a form, and a bill, and paid a sum of money which appeared to increase year by year. Indeed I have discovered that what I call the Practising Certificate Fe e i s n ot ju st th e c o st of the Certificate alone.

Furthermore, many lawyers (barristers, and those in Government employment for example) pay a lower fee for their Certificate because it does not have the same components as mine. I have

• $50.70 to the Law Society to administer and issue Practising Certificates; • 78.5% of the balance to the Legal Practitioners Guarantee Fund; • 19% to the Murray Law Library; • 2.5% to the Attorney-General’s Department) • Supreme Court Library levy, $85.

As you can see, the major elements are PI insurance and the Law Claims administration levy. It is in these elements that the Society, this year and next year, has been able to pass on the benefits of good management, good investments and lower underwriters’ premiums.

There have been years when it has been a struggle to find the

of us who have the Practising Certificate with full PI Insurance will have taken notice of the very significant reduction in the cost of this year’s Certificate. For a solicitor in private practice, the total fee is $3412. In1997 a Practising Certificate with full insurance cost $3350. Since then the annual cost increased every year until 2005/6 when the cost decreased to $5151.

For the 2006/7 year the cost has decreased again to $3412. That is a saving of 39.8% in the current year over the 2004/05 ($5668) cost.

The saving in 2005/6 happened because the Society, through Lawguard Management Pty Ltd, which monitors and reviews the

brokers Willis, and underwriters in London. I think also that the profession’s generally enthusiastic take-up of the risk management strategies made available through the Law Claims risk management program has been a factor both in improving claims performance and in demonstrating to underwriters that the South Australian profession is serious about keeping its claims to a minimum.

The saving in 2006/7 has been achieved through a combination of the same factors together with an actual reduction in the premium paid to underwriters for that part of the Scheme which is not handled within the Professional Indemnity Fund (the “mutual” layer of our Scheme).

“It is very pleasing to see that the work of the Society,

through its members and its staff, can in the right circumstances deliver a positive benefit to the profession.”

6

learned that my Practising Certificate – I now think of it as the Holden Statesman Deville version (my younger colleagues will be thinking Holden Grange perhaps?) – is made up as follows • Professional Indemnity • Insurance contribution • Law Claims administration levy • GST on those • Practising Certificate fee

www.lssa.asn.au

ready funds for my Practising Certificate. There have been years when I have grumbled about the rising costs. In the post HIH collapse years, I have watched the insurance market with concern and worried about the effect of that market on the cost of my certificate to practise.

We will by now all have received our P racti sing C er tificat e renewal documentation and all

performance of the Professional Indemnity Insurance Scheme and advises LSSA Council, was able to provide a reduction in the cost. This has come about through a combination of good investment returns on the Professional Indemnity Fund, careful management of claims by Law Claims staff and positive negotiations between Lawguard 3 Management Pty Ltd, our

We all know that the insurance market has had its hard and soft patches – times when insurance premiums are more or less expensive. We also know that premiums go up when claims performance is poor.

The Lawguard Management Board and the Council of the Law Society had to weigh a number of arguments before coming to the resolution that, this year, there

June 2006 should be reductions in both the PI Insurance premium and the administration levy for practitioners.

These issues received very careful examination from the Law Society staff and the Board of Lawguard Management Pty Ltd before they came to Council for consideration.

The work and thought that goes into every step of setting the final fee deserves recognition from the profession at large.

Actuarial advice made it clear that funds had built up both in the Professional Indemnity Fund and in the Administration Levy reserves that would allow the two reductions while still maintaining an adequate buffer in reserve.

I note by way of comparison that our colleagues in the Northern Territory, if they have completed a multistage Quality Practice Review, pay as little as $8,436 per practitioner just for the PII component! (It is $11,110 per practitioner where no QPR has occurred).

The Board and the Council then considered whether reserves should nonetheless be built up further. Should we amass a larger cushion for the hard insurance years that w i l l come? Alternatively, should the members of the profession who are practising now receive back now the benefits of the good investments and lower premiums which we have been able to achieve?

In Western Australia, while the premium component has decreased, the administration fee has risen.

It is very pleasing to see that the work of the Society, through its

members and its staff, can in the right circumstances deliver a positive benefit to the profession.

On a much darker note, I have been reminded recently of the pervasive nature of modern criminal investigation techniques.

All practitioners should make themselves aware of the provisions of the Listening and Surveillance Devices Act 1972 (as amended). A judge of the Supreme Court may issue a warrant authorising the use of listening devices. Applications for warrants can be made by the police with the DPP’s approval, or by the Australian Crime Commission.

Where such a warrant has been granted to allow telephone-tapping of a person’s conversations, all of those conversations will be accessed and may be recorded. The transcripts of those conversations

will include conversations b etween the p erson b eing investigated and their lawyers.

We are used to assuming that our advice to our clients is confidential. Yet we may find our conversations transcribed word for word from recordings made under warrant given by the Court, even when those conversations are about matters n o t c o n c e i v a b l y r e l a t e d t o matters under investigation, such as the client’s fencing dispute.

It has been my habit from time to time in practice to assure clients about the confidentiality of their communications with me. However I think the time has come for me to qualify such assurances. Our clients need to be aware, and we lawyers need to be aware, that in the modern world all of our conversations may be open to scrutiny.

President’s Activities 11 April– 10 May 2006 In the past month, the President hosted a drinks function for members of the media on 12 April; attended a farewell for Judge Barry Jennings on 13 April; met with a practitioner in relation to a trust account matter and attended a meeting of the Medico-Legal Advisory Group on 20 April; spoke with a journalist from the Sunday Mail in relation to the proposed new

drink spiking offence on 22 April; attended a meeting in relation to a Manager’s appointment, and attended the Anzac Eve Mass on 24 April; attended the Anzac Day Dawn Service on 25 April; welcomed attendees to the Legal Secretaries Breakfast and attended a luncheon with the Judges of the Supreme Court on 26 April; met with the President of the SA Bar Association and

the nominee of the President of the Institute of Arbitrators and Mediators re the Panel of Mediators, and attended a luncheon with the Judges of the District Court on 28 April; attended a meeting of Lawguard Management Pty Ltd and chaired a meeting of the Executive on 1 May; met with a practitioner, and was inducted as an Honorary Member of the Golden Key Chapter – Adelaide

University on 3 May; participated in a consultation group meeting on credit issues on 4 May; hosted The Hon Isobel Redmond MLC and the Hon Michelle Lensink MLC to lunch on 5 May; chaired a meeting of the Council on 8 May; attended a meeting of the Justice Access Committee on 9 May, attended a breakfast organised by the Small Practice Committee on 10 May.

June 2006

7

CAA Open Day – Law Week 2006 T

he Law Week Courts Administration Authority Open Day held at the Samuel Way Building on May 20, produced a range of well received and varied awareness activities that maintained the interest of visitors of all ages.

Service; Equal Opportunity Commission; Flinders & Adelaide Universities, Law Schools, Magistrates Court Advice Clinic; Australian Red Cross – International Humanitarian Law; TAFE SA; and the Victim Support Service.

A variety of legal advocacy groups again this year also presented information to the public. Displays included: The Central Community Legal

The day clearly provided these groups with aa great opportunity to showcase their services and mission to the Adelaide public.

An excellent balance of initiatives as well as staff were on hand throughout the day, with staff available at every turn to answer all questions from an appreciative public.

The CAA staff fielded the varied queries w i t h c l a r i ty a n d p r o v i d e d an excellent window for the public into the SA day-to-dayCourt process.

The public response and interest into the CAA activities continues to grow each year, and this

year was no exception with over 500 people through the door by mid morning and a total of 2,000 people visiting the Samuel Way Building on the day.

All in all, the Open Day continues to provide an exemplary platform showcasing the varied operational aspects of the SA Courts to the public, and again proved a major public drawcard for the Law Week activities.

CAA Open Day Courts tour

8

CAA Open Day visitors

www.lssa.asn.au

CAA information stalls proved very popular

The cost-effective, convenient way to earn your CLE credits Looking for a way to earn your CLE credits in a more convenient and cost-effective manner? cle.tv is a groundbreaking new service from CCH that will allow you to earn CLE credits directly from your desktop.

Subscribers receive weekly legal news, interviews, programs and panel discussions – all accessible from your PC in online or CD format.

To find out more, visit www.cch.com.au/cletv or call CCH Customer Service on 1300 300 224.

Liability under the Trade Practices Act David Wright. Barrister, Howard Zelling Chambers Senior Lecturer, University of Adelaide

I

n Arms v Houghton [2006] FCAFC 46 and W S A O nline Limited (in administration) v Arms [2006] FCAFC 45 the Full Federal Court consisting of Nicholson, Mansfield and Bennett JJ, had to consider two different legal principles coming from the same facts.

Facts In 1 9 9 9 Ar m s p ro p o s e d t o establish a business of providing a market service for small to medium independent wineries by means of a website under the name “auscellardoor” (“the Original Concept”).

10

www.lssa.asn.au

2000, Arms would have to arrange for each winer y to become a merchant and the procedure for the vendor wineries to become ANZ e-Gate merchants “was far from simple”. It required more of an applicant by way of provision of financial statements and projections and company or partnership details, together with accreditation by the ANZ Bank, Diners Club and American Express, acceptable profit and loss statements for the last two years and a business plan.

WSA provided services to Arms in respect of the Original Concept. Prior to Arms contracting with the vendor wineries, WSA represented to Arms that the vendor winery would not be required to do anything more to become an ANZ e-Gate merchant than to complete the documents in a Trade Presentation Kit and, in particular, to complete the ANZ form with certain banking details (the “ANZ representation”).

This representation was made by Messrs Student and Houghton, employees of the WSA, to Arms.

At that time, acting to establish the Original Concept, Arms had already enrolled about 30 wineries an d t h e w e b s i t e w a s t o b e launched within five days. It therefore was impossible for him to require wineries to comply with the conditions necessary to become individual merchants.

Consequently, he was forced to make an urgent application for auscellardoor to become an accredited merchant. Arms o p e ra t e d t h e b u si n e ss o n the basis of this “Interim Arrangement”. On this basis the business was not viable but Arms was required to maintain the Interim Arrangement for 12 months to preser ve his credibility and goodwill.

In reliance on the representations, Arms travelled around Australia signing up wineries on the basis that all that was required of vendor wineries to be added to the website and receive payments through the ANZ e-Gate facilities was to sign the simple form.

However, as the Mr Student disclosed to Arms on 23 June

From late 2001 Arms was able to change to another business structure (which the Court called “the Current Business Structure”) which involved establishing a supply network of distributors and wineries, purchasing wines, principally from distributors, and selling on a retail basis. He rapidly built up

a number of wineries on the website and, at the time of the trial, had about 137 wineries listed.

Therefore, in essence Arms claimed that he was induced to enter into an agreement for the creation of the website by a false or misleading representation m a d e by t h e S tu d e n t a n d Houghton. The action was brought under the Fair Trading Act 1999 (Vic).

It is this point that the case divides.

Quantum of Damages In WSA Online Limited (in administration) v Arms the issue before the Full Court related to the quantum of damages that could be sought, while in Arms v Houghton the issue was the liability of employees for the actions of their employers.

The trial judge found that WSA was liable in respect of what was described as the ANZ Requirements Representation.

That was a representation to the Arms that in order to effectively run the business and operate the website, he was not required to obtain any documentation from the wineries other than a form, with provision for banking details.

Essentially, Arms argued before the primary judge that he had been set back 18 months in the development of his business. He proposed a figure of $195 000 as appropriate to compensate him for the period of “arrested development” from January 2000 to 30 June 2001.

In response, WSA submitted that as auscellardoor website h a d eventually become a successful operation, the measure of Arms’ loss was the difference between what the website had cost and what Arms would have

failed to discharge the onus of proving his case at trial.

In dismissing the appeal, the Full Court rejected the approach advocated by WSA and accepted as the correct approach to the

the extent of the chance or possibility of benefit or detriment and the assessment of what would represent fair and just compensation for an actual loss of that benefit or an actual sustaining of that detriment is

“The trial judge found that WSA was liable in respect of what was described as

the ANZ Requirements Representation.” expended if the representation had not been made. It was submitt ed th ere was no evidence to establish that any damage had been suffered on that measure.

On appeal WSA pressed two matters in particular. The first was said to b e an error of principle in that the trial judge assumed that the business would have become profitable immediately. Second, it is said that the trial judge erred in applying the figure of $100 000 to the seven months of set-back because that latter period was one when losses were suffered.

Additionally, as part of this second contention, it is said that the trial judge failed to have regard to the fact that the business for the period 30 June 2003 to 30 June 2004 was a different business to that in issue at the time of the setback. On this second point it was contended that Arms had

issue of quantum the approach adopted by the trial judge. For the Full Court it is no answer to a claim for damages under s 82 of the TPA that the loss suffered by an applicant is difficult, or even impossible to quantify with

relatively straightforward. Where that is so, there is little difficulty in assessing damages for the loss of the chance of the benefit or for the existence of the possibility of detriment [See, eg, as to the straightforward process of valuing

existence of such a possibility may be fraught with difficulty and attended by uncertainty. The mere fact that damages cannot be assessed without difficulty and uncertainty does not, however, relieve a court from the responsibility of attempting to assess them as best it can [See, eg, Howe v Teefy (1927), 27 SR (NSW) 301, at p 306; McRae v Commonwealth Disposals Commission (1951), 84 CLR 377, at pp 411-412]. As was pointed out by Dixon and McTiernan JJ in Fink v Fink [(1946) 74 CLR 127, at p 143] “Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages.” There are, however, extreme cases in which curial procedures are simply inadequate to determine whether

“That difficulty is frequently encountered where the Court is invited to assess the profit which an applicant would have made had he or she taken a course different from that

which was, in fact, taken.” precision. As Deane J observed in The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 125: ‘In some circumstances, the determination of what proportionate figure represents

such a chance, Takaro Properties Ltd v Rowling [1986] 1 NZLR 22, at pp 62-65; and cf, generally, King, op cit, at pp 1381-1387].

In other circumstances, the assessment of damages for the loss of such a chance or for the

there was any real or significant chance that an alleged benefit would actually have been obtained but for the repudiation or breach of contract or to assess the intrinsic worth of a particular suggested “benefit”.’

11

Continued overleaf...

June 2006

Continued from previous page...

That difficulty is frequently encountered where the Court is invited to assess the profit which an applicant would have made had he or she taken a course different from that which was, in fact, taken. However, the difficulty is alleviated to some e xt e n t b y t h e a b i li ty t o take into account a l l m a tt e r s k n o w n by t h e later date when the Court’s assessment is being carried out, per HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 79 ALJR 190 at 199 [39] citing Kizbeau Pty Ltd v W G & B. Pty Ltd (1995) 184 CLR 281 at 291-296.

Liability of Employees Arms v Houghton considered attaching personal liability to employees for statements such as the ANZ representation when s. 75B of the Trade Practices Act does not apply to make an individual indirectly liable.

In Arktos Pty Ltd v Idyllic Nominees Pty Ltd (2004) ATPR 42-005, a Full Federal Court

business. The director gave to purchasers financial statements of the business prepared by its accountants together with a handwritten memorandum of his to the effect that the financial statements understated the true profits. At trial it was held that the vendor company had engaged in misleading or deceptive conduct. Such claims against the directors as accessories and under the Fair Trading Act 1987 (WA) were dismissed. The primary judge held that the directors could not be liable under this Act because it had not been alleged that they engaged in conduct in “on their own account”. However, in the Full Court this decision was reversed in respect of the director who had written the memorandum. The Court held at [13]: The authorities show that a director of a corporation who acts on its behalf in the course of trade or commerce also acts himself or herself in trade or commerce …

It is accepted in J D Heydon, Trade Practices Law, Law Book

as agents causing the corporation to be liable under s. 84 (2) also have personal liability. It is added there that in normal circumstances such officers will be knowingly concerned in the conduct: s 75B(c).

The decision in Citibank Ltd v Liu [2003] NSW SC 569 concerned the general manager of a company who had signed, on its behalf, drawdown notices to a bank which certified certain matters necessary for a lease of finance to the company. The drawdown notices contained false representations. It was not established that the general manager knew this. For this reason he was held not to be liable for accessorial liability under s. 75B of the TPA or for deceit. But Hamilton J, in Citibank, held that it had long been established that the liability of an agent for a fraudulent m i sre pre s e n t a t i o n i s n o t precluded by the fact that it has been made on behalf of the principal so that, if the agent participated in the fraud, he or

“At trial it was held that the vendor company had engaged in misleading or deceptive conduct. Such claims against the

directors as accessories and under the Fair Trading Act 1987 (WA) were dismissed.”

12

(Carr, Tamberlin and Nicholson JJ) considered the actions of a director of a vendor company in connection with the sale of a

www.lssa.asn.au

Company, Sydney, 1989 at 18.350 that corporate officers acting in the course of their employment, or in the scope of their authority

she is liable for it: Sibley v Grosvenor (1916) 21 CLR 469 at 479. His Honour continued at [53]:

In my view, no difference is made to the application of the principle by the fact that the representor on behalf of a corporation is an employee. The fact that he is an employee does not negative the fact that he is acting as an agent.

That the FTA may impose liability on employees acting as such is illustrated by Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8 … In Pricom Pty Ltd v Sgarioto (1994) ATPR (Digest) 46-135, a case under the Victorian FTA, Eames J held an estate agent liable for misleading conduct although his principals selling their own house could not be held liable because not engaged in trade or commerce.

The FTA proscribes conduct by natural persons. If that conduct is in trade or commerce and cannot be said not to be misleading conduct of the person who engages in it by reason that that person is acting merely as a conduit, in my view the person is not removed from the purview of the Act by the fact that he is

engages in the conduct as the employee of another’.

On appeal (called Wong v.

Citibank Limited [2004] NSWCA 396) the New South Wales Court of Appeal held at [19] his Honour’s acceptance that relief could be granted against an employee for breach, in that case of s. 52 of the Trade Practices Act,

s. 75B and the trial judge had held that Student and Houghton were not directly liable. But upon the basis of the above authorities and s. 84(2), the Full Court overturned this decision and held Student and Houghton directly liable.

Comments Only a few comments need to be

of employees, bypassing the safeguards of s. 75B. Due to a lack of knowledge s. 75B liability may be impossible to prove (although it does not seem necessary to plead these as alternatives). However, this form of direct liability may be available, that is, the employee may be made directly liable even where they did not know that the representation

“Only a few comments need to be made.

It is good to have another restatement of

the law relating to damages for loss of a chance, which are always difficult cases.” is clearly correct. As a matter of law, an employee acts as agent for the employer.

In this case neither Student nor Houghton could be made liable indirectly under an equivalent of

made. It is good to have another restatement of the law relating to damages for loss of a chance, which are always difficult cases.

The second is that Arms v Houghton heralds a dramatic expansion of the liability

was false. That is, a third party can be made liable for repeating a false statement even if they did not know it was false. The contribution of the High Court on this issue of liability would be great assistance.

Contact: Hugh McPharlin Brenton Ellery Brian Morris Ben Miels

Forensic Accounting and Litigation Support Services. Edwards Marshall are leading providers of Forensic Accounting and Litigation Support Services. Our personnel have extensive

experience in the assessment of damages, the adequacy of audit opinions, the identification of fraud and accounting reconstructions. We are particularly adept at analysing and

Angas House 4 - 8 Angas St Kent Town SA 5067 Tel 08 8139 1111 Fax 08 8139 1100

distilling complex information and enabling efficient comprehension of financial and accounting issues.

Simple, clear and unbiased advice, without fear or favour.

edwardsmarshall.com.au

Perspectives

An Illustrated Series of the Judges of the South Australian Supreme Court

By John Emerson Edward Gibbon Wakefield to Sir John Jeffcott and an expectation to be appointed Clerk of the Supreme Court.

But Jeffcott was dead, and the job had been filled.

Gwynne regretfully set himself up in private practice. This was a turning point in his life as he quickly reached prominence as a formidable barrister. He even managed to amuse Boothby one morning.

It was common practice in England that if a client had unexpectedly not appeared a barrister would elongate his opening by reading long passages and going into meticulous detail about the tiniest point until the anticipated appearance. This is exactly what Edward Gwynne was obliged to do and Justice Boothby indulged him as he had seen the same tactic deployed back in London, and for that reason considered it quite proper.

Edward Castres Gwynne by Erika Clarke

Edward Castres Gwynne Justice Supreme Court of South Australia 26 March 1859 to 28 March 1881 Born 13 February 1811 Died 10 June 1888

P

14

artly due to the ongoing problems in the Supreme Court being caused by Justice Boothby, the newly constituted South Australian government decided to appoint a third judge.

It was also conscious of the risk of a deadlock in a Full Court of two, and of the possibility that a third

www.lssa.asn.au

judge would allow circuit courts to be established. With the usual petty grumblings about the cost of judges that we still hear today, the Bill was passed and Edward Gwynne appointed. He was the first judge appointed in South Australia from its own bar.

The new judge had been one of the Adelaide Bar’s two leaders during the 1850s with future Chief Justice Richard Hanson. Born in Lewes, Sussex, he had been an attorney in London for a short period before arriving in Adelaide in April 1838. He had a letter of introduction with him from

Due to his success Gwynne became a large landholder in Glynde, where he carried out fa r m i n g , f r u i t g r o w i n g , viticulture and horse breeding.

He was elected to the Legislative Council for life and for ten days – from 21 August to 1 September 1857 – he was Attorney-General in John Baker’s short-lived government.

But Boothby’s behaviour in court was starting to cause him deep concern and at the time Gwynne was appointed to the bench, he was in fact preparing to move his practice to Melbourne.

His appointment had the initial effect of calming Boothby, and

Gwynne in fact took Boothby’s side in doubting the validity of Robert Torrens’s Real Property Act passed in 1857-58, various Local Court Acts and the Court of Appeals. But after Richard Hanson replaced Sir Charles Cooper as Chief Justice, Boothby’s self-interest again surfaced. He denied that Hanson could be appointed a judge because in England he had only been an attorney. Boothby had never complained about Gwynne’s appointment, even though Gwynne was also an attorney. But Boothby had coveted the Chief Justiceship for himself. Gwynne supported Hanson and eventually the two refused to sit on the Full Court with Boothby, and finally supported his amoval.

According to the recently published Hague’s History of the Law in South Australia, Edward Gwynne stood out due to his “powerful physique” and “blunt manners”, and used common sense more than intellect in his career as a judge. In 1876, along with Justice Stow, he took offence at Attorney-General Samuel Way appointing himself Chief Justice after Hanson’s sudden death. True to his strong character, he refused all private c o n v e r s a t i o n w i t h Wa y.

After additional difficulties in adapting to new Supreme Court procedures, introduced in 1878, Justice Gwynne retired in 1881.

He had earlier declined a knighthood, but in 1885, accepted the title of Honourable, not yet automatically given to judges.

Hon. John Jeremy Doyle AC Chief Justice, Supreme Court of S outh Au strali a sin c e 8 May 1995 Born 4 January 1945

J

ohn Doyle grew up initially in Rose Park in his grandparents’ house. As his father’s career in the Railways progressed, the family moved to Mount Gambier and then to Peterborough, before returning to Adelaide in 1955, where John Doyle completed his schooling at St Ignatius College.

His father eventually became the Commissioner of Railways, having risen from a junior clerk.

As with many of South Australia’s most accomplished lawyers, John Doyle began a law degree at the University of Adelaide almost as an afterthought, originally planning to study the Arts. His results were significant enough to win him a Rhodes Scholarship and he went to Oxford University in 1967 and

academic career but he wished to be admitted as a practitioner.

Before long he was a partner in Kelly & Co, although he tutored in various law subjects at the University of Adelaide for over ten years and lectured in Procedure.

This was the 1970s – the time that a dozen or so lawyers had elected to practise only as barristers – most of them from Bar Chambers and a few out at Libra Chambers in Burnside. In 1977, John Doyle along with two colleagues – Tim Anderson and David Quick – founded Hanson Chambers. All three would eventually be appointed Queen’s Counsel; John Doyle was only 36 in 1981 at the time of his appointment.

He was appointed SolicitorGeneral in 1986 and Chief Justice in 1995 after Len King’s retirement. John Doyle inherited a significantly changed Chief Justiceship from that of his predecessors. Len King had spent his time in the office

“As with many of South Australia’s most accomplished lawyers, John Doyle began a law degree at the University of

Adelaide almost as an afterthought.” completed a BCL. He had begun his articles with Kelly & Co. under Michael White and completed them after Oxford under John Perry, both future judges of the Supreme Court.

Given his academic success, John Doyle briefly contemplated an

strengthening the independence of the judiciary, most notably in the establishment of the Courts Administration Authority in 1993.

The CAA expanded the Chief Justice’s role significantly. It added responsibility for the provision of administrative support to all of the courts. In the

The Hon. Chief Justice John Doyle

past the Chief Justice was always the judge who represented the judiciary in its dealings with the Executive, but the management of administrative support for the courts was left to government departments. The catch, of course is that even though the Courts took control of their own administration, the Executive still controls the purse strings and is not always sympathetic to the real cost of justice. Even as far back as the 1930s, Chief Justice Sir George Murray could not convince the government of the day to build new court facilities on the land behind, still vacant seventy years later.

John Doyle has always maintained a balance between his busy legal career and his life. His outside professional activities have included a period as ProChancellor of Flinders University, which awarded him an Honorary Doctor of Laws, and since 2002 he has chaired the National Judicial College of Australia. He has always made his family his priority. Four of his five children have followed his lead into the Law. He keeps fit by cycling, jogging and swimming; he enjoys books, art, theatre and gardening, and an occasional retreat to the family’s beach house.

15

June 2006

Paralegals SA :

A new era for SA paralegals

To help consolidate the paralegal profession in South Australia law firms, legal practitioners and interested organizations are also encouraged to support their paralegals in registering. Paralegals themselves can register their interest in the group by contacting Michelle Griffith, Law Society Member Services 8229 0238 or Kali Brenzel on 8480 7540.

O

n 4 May 2006 a capacity audience of paralegal practitioners attended Law Society House for the launch of a new professional group Paralegals SA. The numbers attending this inaugural meeting confirmed that a representative body was long overdue to cater for the professional interests and development of t h e South Australian paralegal community.

At the launch, Shelley Dunstone, D i re c t o r of L eg a l C i rcl e s Recruitment, spoke of how Paralegals SA would greatly assist in improved advocacy of the

paralegal’s invaluable multitasking role to the broader professional legal community, as well as provide a vital networking and development platform for members.

In an att empt to address development and profile of paralegals, three South Australian paralegals, Kali Brenzel, Dion Heyer and Tania Spinello with the support of the Society Executive Director have now established Paralegals SA as a new subcommittee of the Law Society.

Paralegals SA representative Kali Brenzel also addressed the gathering and outlined how the group aims to establish a variety

Toasting launch of Paralegals SA are from left, Kali Brenzel, Dion Heyer and Tania Spinello.

of member services including continuing legal education on topics of interest, a support and discussion forum, networking and social events and other services designed to benefit paralegals and the legal industry as a whole.

Although not admitted to practice law, paralegals can gain substantive legal knowledge and a wealth of practical legal experience whilst employed by law firms or by organizations with in-house legal representation. The practical experience gained by paralegals often results in achieving a high level of expertise in a particular practice area. This expertise

IPP Alex Ward, Member Services Manager Michelle Griffith and Kali Brenzel

enables paralegals to conduct w o rk (w h i l st u n d e r t h e supervision of senior practitioners) that might o t h e r w i s e b e undertaken by a junior lawyer.

The paralegal is not only an expert legal administrator, they also provide hands-on assistance across all aspects of work in a range of legal environments being skilled multi-taskers. The legal expertise of the paralegal ensures their place as an integral team member relied upon on by any firm to help deliver client solutions w ithin' th e l egal industr y as a whole.

Paralegals SA launch

ENGAGING NEW STAFF – PRACTISING CERTIFICATES

By David Milne, Legal Practitioners’ Registrar, Law Society of South Australia.

L

egal firms employing n e w p ra c t i t i o n e r s s h o u l d e n su re t h a t t h e incoming practitioner has a current practising certificate and professional indemnity insurance in place prior to them commencing any legal work for the firm.

16

As you are aware pursuant to section 21 of the Legal P ra cti ti on ers A ct 1 9 8 1 a s amended, to practise or to be held out as practising law without a practising certificate is a breach of the Act which carries a

www.lssa.asn.au

maximum penalty of $10,000 in addition to any other disciplinary action which may be taken.

either by an uncertificated or uninsured practitioner cannot be charged to clients at lawyer’s rates.

Practitioners should also be aware of the provisions of subsection 19(1)(b) of the Act which provides that even if a practitioner has a current practising certificate but does not have professional indemnity insurance when required to do so, then the practitioner’s practising certificate is suspended until such time as insurance is in place.

We therefore encourage firms to take all necessary steps to ensure that legal practitioners joining the firm have a certificate and i n su ra n c e a t t h e t i m e o f commencement of employment.

Alternatively, ensure that the new employee does not perform any legal work other than as a clerk until such time as a practising certificate a n d i n s u r a n c e h a v e been applied for.

The consequence of these situations is that any legal work performed

Practitioners are also reminded of their obligations under Legal Practitioners Act 1981 Regulation 7 to notify the Legal Practitioners’ Registry of any changes in legal practice including commencement, recommencement or cessation of practice.

Whilst the regulation provides that information mu st be provided within one month, it is apparent from subsequent amendments to the Act that notification should be precede the commencement or recommencement of practice.

Roadtest |

NICK RAMAGE

Harley Davidson: Two legends reborn Roadtest: 2006 35th Anniversary Dyna Super Glide & 2006 Heritage Softail

L

AWYERS AND TEST RIDERS Les Rowe and Mike Jandy were literally counting the days once we were informed of the opportunity to road test not one but two of the Limited Edition 2006 Harley Davidson range. When the new sixspeed 35th Anniversary Super Glide and Heritage Softail arrived, we were all duly impressed at the first rate detailing, chrome and degree of finish with both bikes. This does reflect the investment of over $20,000 plus needed for either of these highly desirable and unique Harleys.

The HD paint jobs are renowned for their depth and quality, and both the Anniversary Dyna Super Glide and Heritage Softail did not disappoint. It got even better when we started the 1450cc V-Twins and heard that distinctive, and addictive, burbling exhaust note.

The 35th Anniversary Super Glide revisits the custom 1971 Dyna Super Glide model that rolled from the HD factory, resplendent with its white pearl tank and red/blue trim – with all the chrome you could ever want on an 88° V- Twin motor. The Softail has the classic Harley rigid-look style but updated with modern 35th Anniversary Super Glide

concealed suspension, while retaining the heel shift and running boards of old. Both bikes performed effortlessly in peakhour as well as on the open road, with their smooth belt-train drive and their low balanced design, making the miles disappear with a smile. Time for a run to Victor.

On the Road: Les: I must confess I was dubious having been brought up on Italian and British bikes. But this was a rare chance to ride the HD classic, the Softail - as well as the very special 35th Anniversary six-speed model of the Super Glide. I came away with some new perceptions and a big smile.

Their cruiser nature means that on anything other than sweeping bends you can’t ride these Harleys in a hurry. I found this out soon enough showering poor Mike in sparks as I found the limits of ground clearance through some corners. At all times though the bike felt like it was on rails - it was even better two up.

As to be expected the riding position, especially on the Softail, initially felt unusual as I wasn’t in a crouching position. I was now sitting back as if in back as if in an armchair complete with running boards. But it only took a few minutes for it to be quite relaxing.

The gearbox clunk as you selected a gear was loud, positive and solid - and it actually felt good and suited the bike. Not that you had to change gears. I found that you had to select a gear you liked and just leave it there. On any other bike two gears too high and it feels like “bike abuse”. On the Harley it just gives you more vibration and grunt for your money - and feels great.

That’s how I found the Harleys – they are so relaxed. You just sit back and enjoy the ride. You can buy a Japanese bike for cruising and it will do everything well, but will lack something that you can’t quite put your finger on.

W h a t ’s m i s s i n g w i l l b e “character” - and the Harley has that in spades. Yes, they have soul aplenty.

Mike: The Heritage Softail personifies the classic ‘cruiser’ style of motorbike, with it’s solid, smooth curves and icecreamy graphics.

Taming the bike is almost too easy (contra to the Super Glide bronco).

It is well balanced, has a userfriendly turning circle and holds the road as if four-wheeled. Riding it is sometimes akin to driving, particularly in the more docile gears. Its surefootedness is not all disappointing.

Heritage Softail

It caters well to a rider inclined towards safety and stability whilst retaining the cachet of its maker’s mark. It’s sufficiently gutsy to ensure a clean, narcissistic break at the front of stopped traffic.

Now the Anniversary Super Glider. All chrome and sparkles and Captain America-esque red, white and blue. There are few things that imbue ‘cool’ so quickly as straddling a Harley Davidson … few things.

Press ignition and its shiny guts reverberate - but atop modern rubber mounts that work. The sound is guttural, and the distinctive deep burble signals your approach. Unlike the Softail, the Super Glide idles menacingly with a beckoning throttle.

Acceleration is exhilarating, gears 1 - 3 providing most smiles.

Cruising is pleasant: you’re more ‘interactive’ with the bitumen than on the comparatively feather-pillowed Softail. You pick up more bumps, but importantly in the process you’re reminded that you are riding a motorbike, which is the whole point. Indeed - a very addictive experience.

Check harley-davidson.com for more details.

Family Violence and the Shared Parental Responsibility Act

By Kyla Williams

F

amily violence in family law disputes is an ongoing and significant concern, with an estimated 66% of all separations involving violence and abuse issues.i The impacts of family violence on children, whether as victims or witnesses, are well known: such children m ay d e v e l o p e m o t i o n a l and/or behavioural problems, learning difficulties and a variety of health concerns.ii Further, the impact of family violence is not limited to the individual child; there are also significant generational effects, with children who witness or are subjected to family violence being 100 times more likely to perpetrate similar violence against their own families than children who do not experience this abuse.iii The Family Law Amendment (Shared Parental Responsibility) Bill 2006 was passed by the House of Representatives on the 10th of May 2006, with commencement expected from the 1st of July 2006.

The Amendment Act is based on the findings of the 2003 Every Picture Tells a Storyiv report into the effect of separation on children and is designed to facilitate a generational change in the resolution of family law disputes: away from litigation and towards cooperative parentingv.

New section 60B establishes the o bjects of, and principl es underlying, Part VII of the Family Law Act (division in relation to children). The key object set out in s60B is to ensure that the best interests of the child are met by: a) ensuring that children have

18

www.lssa.asn.au

the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

“Family violence” is defined in s4 as meaning – …conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

The “reasonableness” of a person’s fear is to be determined in accordance with the notation to that definition: Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

Under new section 60CA, the best interests of the child are the paramount consideration in making a parenting order in

relation to a child. Section 60CC establishes the manner in which the Court is to determine the best interests of the child, with the primary considerations being set out in subsection (2) as: a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations (s60CC(3)) are – • the child’s views (and any factors that the court thinks is relevant to determining the weight to be given to the child’s views) • the child’s relationship with their parents and other persons (including grandparents and other relatives) • the willingness of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent • the effect on the child of any change in the child’s circumstances including separation from the child’s parents or any other person with whom the child has been living • any difficulty and expense that will arise from the child having contact with a parent and the effect that this will have on the child’s right to have contact with both parents • the capacity of the parents and any other person (including the grandparents or other relatives) to provide for the needs of the child (including emotional and psychological needs)

• the personal characteristics of the child including the child’s maturity, sex and background, plus the characteristics of the child’s parents • where the child is an Aboriginal or Torres Strait Islander child, the right of the child to know and enjoy that culture • the attitude of each parent towards the child • any family violence involving the child or the child’s family • any family violence order that applies to the child or the child’s family where the order is either a final order or was contested • whether it would be preferable to make an order that would be the least likely to lead to the institution of further proceedings in relation to the child • any other fact or circumstance that the court thinks is relevant.

The pre-amendment Family Law Act also stated that the best interests of the child were the paramount consideration.

However, in determining the best interests of the child, old section 68F provided that the Court must consider each of the additional considerations under new section 60CC as equal considerations.

The old section did not provide for a di stinct cat egor y of “primary” considerations – that

is, new section 60CC heightens the importance of the child “having a meaning ful relationship” with both parents and “the need to protect the child from physical or psychological h a r m” a n d r e d u c e s t h e importance of all other considerations. Given the aim of Part VII is to promote “the best interests of the child”, it is interesting that the child’s own views are now reduced to a secondary consideration. Rather than determining the interests of the child in each particular circumstance, the Amendment appears to objectify the child in order to focus on the rights and interests of the parents, with only lip service being paid to the issue of physical violence.

Whether the Amendments are able to adequately protect the rights and interests of children is an issue of real concern. The push towards shared parental responsibility presumes that the parents of the child interact on a relatively equal basis. The validity of that presumption in cases involving family violence is doubtful: there is a genuine power imbalance between an abused parent and the perpetrator of that abuse – an imbalance which does not appear to have been adequately considered in the Amendments. Rather, the

Amendment Act appears to reduce the voice of an abused parent, in addition to reducing the voice of the child themselves. The ability of the court to protect the child’s interests in such circumstances is questionable.

This issue is illustrated again in relation to new section 60I – the requirement that parties must att end at fami ly di sput e resolution prior to lodging an application with the Court. Under s60I(7), a court must not hear an application for children’s orders unless the parties have attempted to resolve the dispute through family dispute resolution. There are a number of exceptions to this requirement – for example, where the application is to be made by consent (where the parties agree), or there are reasonable grounds to believe that – • there has been abuse of the child by one of the parties to the proceedings; or • there would be a risk of abuse to the child if there were a delay in applying for the order; or • there has been family violence by one of the parties to the proceedings; or • there is a risk of family violence by one of the parties to the proceedings (s60J(9)), however, the onus of proving one of these factors lies with the

applicant to the proceedings: that is, it is the responsibility of the abuse victim to prove that abuse to the satisfaction of the Court.

T h i s re q u i re m e n t f a i l s t o adequately safeguard against family violence concerns. That orders are made by consent does not ensure that violence or intimidation was not used to obtain agreement; further, family violence is notoriously difficult to prove and is often well hidden. It can take many forms – physical violence, sexual abuse, emotional abuse, intimidation, economic deprivation or threats of any of these. vi The social and psychological consequences of family violence further reduce the ability of a victim to present their case: common effects of abuse include anxiety, depression, reduced coping skills, loss of self esteem and self confidencevii. It is clear that an abused person could understandably feel quite reluctant to disclose that abuse to the court, particularly given that they would then be required to prove the “reasonableness” of their resulting fear. Further, given that the period after separation from an abusive partner can be the most dangerous time for a victim of family violence, a d d i t i o n a l s a f e g u a rd s a re requiredviii. A parent who is unable to disclose family violence as a result of this lack of protection is Continued overleaf...

Continued from previous page...

placed in a weakened position and their ability to present and protect their child’s interests may be reduced as a result.

Division 12A introduces a new approach to the resolution of children’s issues, designed to reduce formality and to focus the parents towards the best interests of the child. Trials will be less adversarial and proceedings will be judicially-led, with much of the evidence being presented orally before the court by the parties themselves. Although the 3rd principle for the conduct of childrelated proceedings is that – …proceedings are to be conducted in a way that will safeguard: • the child concerned against family violence, child abuse and child neglect; and • the parties to the proceedings against family violence. the question arises as to how the Court will manage family violence issues in conducting these proceedings. As discussed, the ability or willingness of a parent who has been subjected to family violence to disclose and discuss their concerns may well be compromised by the lack of safeguards for their protection:

this unwillingness may be increased in situations where the party is to present their evidence orally and possibly in the presence of the perpetrator of the abuse. That the proceedings are almost entirely judicially-led offers some protection to the victim – in that the Court may make orders for the conduct of a trial as appropriate in the particular circumstances – h o w e v e r, t h e l e g i s l a t i v e safeguards for family violence victims seems quite limited.

The Australian Government’s discussion paper A New Approach t o Fa m i l y L aw Sy s t e m s : Implementation of Reformsix states, in relation to the dispute resolution requirement – People who have been the victims of violence should not be required to have contact with the perpetrator of that violence… As parents can be reluctant to disclose such issues, the parenting advisers will need to be trained to ensure they have skills in identifying them.

Although one would certainly hope that judges determining disputes in circumstances of family violence would have similar training, the sufficiency of

Book Review

this as a safeguard remains to be shown. Certainly the reliance on a single individual to adequately protect victims of family violence with minimal legislative guidance is significant cause for concern.

paper presented to Because Children Matter: Tackling Poverty Together, Uniting Missions National Conference, Adelaide, November 1-3 2004.

Biden, Senator J., “Violence Against

iii

Women: Victims of the System” US Senate Committee on the Judiciary, Washington

The Family Law Amendments raise a number of concerning issues in relation to the protection of children’s interests.

The presumption of “shared responsibility” weakens the voice of abused parents – and the child’s views are now a secondary consideration. The question then arises as to who, exactly, is protecting the children? It would appear that the risk to children may be increased under the new law. Those of us who work with children need to be aware of this risk. Certainly I would encourage people who have concerns about increased abuse or inadequate protection of children under the new law to closely monitor and report on these.

USA, 1991.

The Parliament of the Commonwealth of

iv

Australia (House of Representatives Standing Committee on Family and Community Affairs), Every Picture Tells a Story: Report on the inquiry into child custody arrangements in the event of family separation, Canberra, December 2003.

The Parliament of the Commonwealth of

v

Australia (Attorney-General’s Department), Family Law Amendment (Shared Parental Responsibility) Bill 2005: Explanatory Memorandum, 2004-2005. vi

Carrington, Dr K. & Phillips, J., Domestic Violence in Australia – an Overview of the Issues, e-brief http://www.aph.gov.au/ library/intguide/SP/Dom_violence.htm 7 August 2003.

Laing, L. & Bobic, N., “Economic Costs of

vii

Domestic Violence”, Australian Domestic and Family Violence Clearinghouse, University of NSW, April 2002.

i

McInnes, Dr E., “Keeping Children Safe: The

viii

their Children Inc, Submission in response

paper presented to Because Children Matter:

to Discussion Paper ‘A New Approach to the

Tackling Poverty Together, Uniting Missions

Family Law System, Implementation of

National Conference, Adelaide, November 13 2004. ii

National Council of Single Mothers and

links between family violence and poverty”,

Reforms’, 22 December 2004. ix

Australian Government, A New Approach to

McInnes, Dr E., “Keeping Children Safe: The

Family Law Systems: Implementation of

links between family violence and poverty”,

Reforms (Discussion Paper)

Note to members: the above books reviewed are available for members to use in the Law Society’s Murray Information Resource Centre

MACKEN ON WORK CHOICES By J Macken.

Lawbook Co 2006. PB $49.50. An abstract from Lawbook Co.

T

The Hon. Dr James Macken, AM, former Judge of the Industrial Commission of New South Wales, in conjunction

with Thomson, has created this new work to provide you with the latest changes in this area of law.

Designed to complement your

current Macken provides on the

teaching resources, on Work Choices essential commentary Workplace Relations

Amendment (Work Choices) Act 2005. Offering discussion and analysis of these recent changes, this book is available now.

LAW IN CONTEXT 20

By S Bottomley & S Bronitt.

3rd ed Federation Press 2006. PB $66.00. An abstract from Federation Press.

L

aw in Context critically examines the foundations of the Australian legal system and the various contexts within which the law operates and develops. It introduces students to a wide variety of perspectives, drawing www.lssa.asn.au

on theory, politics, sociology and economics. Topics traverse structural issues relating to access to justice, adversarialism, and discrimination. The book also explores emerging themes related to regulation, the

globalisation terrorism.

of

law

and

The third edition includes three new chapters: on Law, Globalisation and Terrorism, Law and Regulation, and Race and

Multiculturalism; locating the material on Law and Economics within a broader section on Law and Regulation; and revised discussion questions designed to stimulate class discussion and further independent study.

Evidentiary Onus and Prejudice in the AAT

By David Richards, BARRISTER, HENRY PARKES CHAMBERS

O

nus of proof, as applied in the common law courts, does not apply to proceedings under the Safety Rehabilitation and Compensation Act 1988 (th e SRC Act) in the Administrative Appeals Tribunal (the AAT). In the AAT, there is an evidentiary onus, as distinct from an onus of proof. The evidentiary onus, or the onus of proving the necessary facts, lies on the employee where the employee is seeking an entitlement

347 and The Commonwealth v.

Muratore (1978) 141 CLR 296 for the proposition that it was right to require “that the burden of persuasion be borne by the arguments against the existing entitlement of the applicant (worker)”.

Heerey J in Comcare v Nichols (1999) FCA 209 also referred to McDonald v Director-General of Social v Security and noted that in McDonald once a pension had b e e n g ra n t e d t h e re i s a n evidential onus on the Director

Such a case would be where the Commissioner has purported to terminate an employee’s right to compensation under an antecedently existing determination by reason of a material change of circumstances.

It appears to be settled law that the party seeking to “claim” the benefit, or the party seeking to “disturb” the benefit has the evidentiary onus. And, where an employee has been receiving benefits, the evidentiary onus is

“When a Determining Authority is attempting to a establish that there has been a change in circumstance, consideration of any prejudice must be taken into account.” to c omp en sation . W h ere the decision maker is considering ceasing an existing entitlement to compensation, compensation can not be ceased unless one of the entitling circumstances has changed. The evidentiary onus in establishing a change in circumstances lies with the employer.

Evidentiary onus was discussed in Telstra Corporation Limited v Arden Unreported No. SG52 of 1993 15 October 1993. Burchett JJ in Arden referred to McDonald v.

Director-General of Social Security (1984) 1 FCR 354. Burchett JJ found that on the question of onus of proof the decision maker should not make a determination ceasing the entitlement of compensation unless one of the entitling circumstances had changed.

Burchett JJ referred to the High Court decisions of Phillips v. The Commonwealth (1964) 110 CLR

General to satisfy himself or the AAT of changed circumstances before canceling the pension.

on the employer to prove that one of the entitling circumstances has changed.

Heerey J in Nichols went on to refer to P hillips v. The Commonwealth (1964) 110 CLR. 347 where the High Court held: “... upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it. That being so the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court. Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth.

Prejudice in Proving that a Circumstance has Changed When a Determining Authority is attempting to establish that there has been a change in circumstance, consideration of any prejudice must be taken into account.

If there has been a recent change in circumstance, and the original entitlement to compensation was also recent, there may be no prejudice. Prejudice will depend on the amount of time between the original decision to accept the claim and the change in circumstance. The difficulty in proving that a circumstance has changed is not proving the more recent “change”, but with proving what the ‘changed” circumstance was originally.

The effect of delay in the quality of evidence was discussed by the

High Court in Brisbane South Regional Health Authority v Taylor (1996) HCA 25. The High Court held that, with delay, the quality of justice deteriorates. The High Court found that the deterioration of quality of evidence may not be ascertainable or even recognized by the parties.

Deterioration of justice may include: • Where witnesses are no l onger available; • Where important evidence or documents have been destroyed; • Where evidence may have disappeared without anyone knowing that it ever existed; • That with time, the significance of a known fact or circumstance, because its relationship to the cause of action, may no longer be apparent; • That the longer the delay the more likely the case will be decided on less evidence than was available at the time; • That delay will effect the quality of the evidence.

If, through the passage of time there is a deterioration of justice such that a Tribunal is unable to satisfy itself that there is sufficient evidence to determine there has been a change in circumstances, then a Tribunal must set aside any decision purporting to re-determine an entitlement. See The Commonwealth v Muratore (1978) 141 CLR 296.

It follows that a Determining Authority proposing to cease entitlements where the employee’s original claim dates back more than a few years, should consider prejudice when making its decision.

21

June 2006

Judgments

PROCEDURE ANDREW GARRETT WINES RESORTS PTY LTD & ORS v NATIONAL AUSTRALIA BANK LIMITED & ORS [2006] SASC 130 10 May 2006 http://www.austlii.edu.au/au/ca ses/sa/SASC/2006/130.html Andrew Garrett v NAB

L

unn J considered the validity of a payment tendered to the Registrar by way of an international Bill of Exchange.

His Honour said the purported payment into court attempted here sought to pay the money into two actions in which there were dif ferent parties and without stating how much of the total payment was in respect

22

of each action. This was impermissible both as a breach of Practice Direction 3(1)(a) and because it was contrary to the proper administration of justice.

His Honour said the Registrar should not have accepted the payment in unde the terms on which it was tendered.

Furthermore there was no obligation on the Registrar to accept the payment of monies into Court by means of a Bill of Exchange. Such a Bill of Exchange is not legal tender under s 36(1) of the Commonwealth Reserve Bank Act and s 16 of the Commonwealth Currency Act. The Registrar immediately advised Mr Garrett that the bill was being held pending directions from Gray J. His Honour said the Registrar did not waive the right to reject the bill.

Prepared by Casandra Francas from ‘Caseweek’: Caseweek has been developed as the most accessible and cost effective way of keeping up to date with major decisions handed down in Commonwealth and State jurisdictions as they appear on the Internet. It contains comprehensive casenotes with hotlinks included in each summary, which gives you access to the full text of the judgment.

www.lssa.asn.au

The actions (or lack of them) by the Registrar ultimately amounted to a rejection of the tender of the bill. His Honour noted further that the endorsement on the reverse of the Bill of Exchange on behalf of the plaintiff stated to be made by Andrew Garrett was illegal as he was prohibited from acting as a director of the company and probably of no legal effect by virtue of s 206A of the Commonwealth Corporations Act.

child’s mother to obtain a lawful termination of that preg nan c y.

Crennan J gave the principal reasons for judgment.

Her Honour found that consideration of the nature of the damage in the case, and the principles relevant to the assessment o f d a m a g e s , l ed to th e result that the child has no cause of action against the doctor.

Accordingly the application by Andrew Garrett that there were monies in Court available to satisfy an order for security of costs was dismissed.

Her Honour concluded a duty of care cannot be clearly stated in circumstances where the appellants can never prove the actual damage claimed, the essential ingredient in the tort o f n e g l i g e n c e . T h e appellant cannot come within th e compensatory principle for measuring damages without some awkward, unconvincing and unworkable legal fiction.

To except the appellant from complying with well-established and well-known principles, integral to the body of doctrine concerning negligence applicable to all plaintiffs and defendants in actions in all other categories of negligence, would occasion serious incoherence in that body of doctrine and would ignore the limitations of legal method in re sp e c t of t h e appellant’s claim. Cattanach v Melchior represents the present boundary drawn in Australia by the common law in respect of claims of wrongful birth and wrongful life. Life with disabilities, like life, is not actionable.

TORTS HARRITON v STEPHENS [2006] HCA 15 9 May 2006 http://www.austlii.edu.au/au/ca ses/cth/high_ct/2006/15.html WALLER v JAMES [2006] HCA 16 9 May 2006 http://www.austlii.edu.au/au/ca ses/cth/high_ct/2006/16.html Harriton v Stephens; Wallerv James

T

hese appeals raised the issue whether a child who was born disabled has a cause of action in negligence agains the doctor who failed to advise the child’s mother during her pregnancy of circumstances which would have let the

The annual cost for subscribers is currently: Law Society Members: $240 small firms, $480 large firms; Non-members: $475 small firm, $790 large firm, Students $125.

15% discount on the subscription price is available for Law Society Judgement Scheme. Subscribers contact Sonia Hamilton on 8229 0241 for further information or to register for our FREE ONE MONTH TRIAL.

BY PAUL INGRAM, MINTER ELLISON, ON BEHALF OF THE SA BASED Tax Files | CONTRIBUTED MEMBERS OF THE TAXATION COMMITTEE OF THE LAW COUNCIL OF AUSTRALIA.

Taxation of Service Trusts

O

n 19 April 2006, the Commissioner of Taxation issued a final ruling (TR 2006/2) and accompanying ‘Guide’ dealing with the taxation treatment of service arrangements. The documents are compulsory reading for any practitioner who uti li se s a ser v ic e entity, o r w h o prepares service documentation for clients.

Several commentators have already questioned whether the Ruling is correct as a matter of law, and such questions will no doubt continue, at least until the Ruling has been judicially considered.

However, for practical purposes, the more important document is the Guide, which attempts to explain when the Commissioner will (and will not) audit a particular service arrangement.

The major points are set out below: 1. Most taxpayers will be safe from audit until 30 April 2007.

The Guide indicates that the only taxpayers that will be

audited before that date are: a) certain ‘higher risk cases’, being cases which meet all of the following tests: i) the service fee expenses are over $1M per year; ii) the service fee expense represents over 50% of the gross fees or business income earned; iii) the net profit of the service entity represents over 50% of the combined net profit of the professional firm and the service entity; and b) cases where there are serious questions as to whether the services were in fact provided by the service entity (i.e. sham arrangements).

2. After 30 April 2007, the Commissioner will ramp up his audit program, but you will be at a low risk of audit (page 2) if your service arrangement passes three tests: a) that the service arrangement is relevant to the conduct of business (in

the sense that there are identifiable commercial benefits obtained by the professional firm under the service arrangement, which appears to require a clear separation between the activities of the service entity and those of the professional firm); b) that the charges are ‘correctly calculated’ - i.e. the service fees are not disproportionate or grossly excessive in relation to the benefits conferred; and c) that the taxpayer has documents explaining those issues.

3. The key issue in practice will clearly be the second of those tests, namely whether the fees charged by the service entity are disproportionate or grossly excessive. In this regard, the Guide indicates that the taxpayer will be at ‘little risk of being audited because of the amount charged’ (page 14) if the following three requirements are met:

a) the service entity earns no greater than 30% of the combined profits of the professional firm and the service entity; b) the parties use the ‘indicative rates’ shown on pages 15 and 16 of the Guide (which set out a series of indicative mark-ups for particular types of services); and c) sufficient costs are absorbed by the service entity (and the Guide sets out some detailed guidelines in that regard).

4 More generous ‘specific indicative rates’ have been provided in the case of the medical profession (up to 45% of gross practice fees). No justification is given for this special treatment, apart from the existence of ‘independent practice management arrangements’ in that sector.

Affected practitioners should peruse the Guide as soon as possible, and consider whether their own service arrangements (or those of their clients) need to be reviewed.

CURRENT ASSETS Cash

400,678

255,176

15,091

17,68

1,170,818 231,716

Saudry Debtors

3

Inventories

4

Investments

5

1,554,199

484,865

Other Assets

6

13 329

19,792

2,012,847

800,428

7,921,799

5,431,215

2,093,613

1,334,285

21,215,374

12,111,684

Total Current Assets Our director Mr William Hutchinson is NON CURRENT ASSETS acknowledged as being one of the most recognised and competent forensic accountants Investments 5 within Australia. He has undertaken various

forensic accounting Property Plant & Equipmentassignments in the United

Kingdom, Singapore, United States of America, Total Non Current Hong Kong,Assests Germany, Italy, South Africa, Zambia, and Australia.

Total Assests

CURRENT LIABILITIES

7

28,493 032

Our services can vary from the detection of simple misappropriations to more major disputes resolutions, business and asset valuations.

77,800 77,800 77,800 77,800 We have significant experience in making appearances expert witness in all courts, 6,602,669 13,215,773 2,966 as an 453,057 ranging from Local Magistrates Court through to 533,857 13,293,575 6,680,469 80,766 the High Court.

Growth on the reputation gained from quality service.

378,648 214,360 8 72,832 96,658 43 Greenhill Rd Wayville SA 5034 • P.O. Box 1216 Unley SA 5061 62,728 75,576 208,217 246,637 Provisions 08 8373 4700 • Facsimile: 08 8373 1655 9• Email: admin@hungerfords.net.au Telephone: • www.hungerfords.net.au 10 Amounts held in Trust 396,378 504,197 1,715,020 1,537,891 Creditors

Law Week 2006 Feature E

ach year the success se em s to g row for the South Australian legal community’s annual Law Week community event. Law Week 2006: – “Opening doors to the Law” program of events, was no exception and proved a great success judging by record attendances for a number of its initiatives. Regional events this year were also held in Berri, as well as in Mount Gambier. The mix of events focused on ways to improve community access to justice and explore issues relevant to a fair and equitable justice system. Activities during Law Week this year included: • The South Australian Institute of Justice Studies Annual Oration • The Courts Open Day • The Ecumenical Prayer Service • The Elliott Johnston Tribute Lecture • Free Legal Advice • The Mock Trial Competition • Law Week Youth Parliament • The 2006 Law Week Debate

The public were invited to view court rooms, cells, demonstrations and an historical display. Mock trials and justice related agencies provided displays and information about their role in the justice system. Again all the court staff excelled at making every visitor feel welcome, and fielded a plethora of questions from the public.

The South Australian Institute of Justice Studies Annual Oration LAW WEEK 2006 was launched with the South Australian Institute of Justice Studies Annual Oration, which featured this year the Director of Public Prosecutions Stephen Pallaras QC, delivering his address Changes to The Criminal Justice System.

“For who is greater, the one who is at the table or the one who serves? Is it not the one who is at the table? But I am among you as one who serves.”

An excerpts of Ray’s address is reproduced below.

A capacity audience heard Mr Pallaras strongly advocate how the Law must be viewed not as a static entity, but as an adaptable vehicle for justice. He also noted that a changing view of the legal reform process must be initiated and embraced so as to deal with addressing efficacy processes within the South Australian court system.

24

Courts Open Day THE OPEN DAY again proved a major highlight of the week with a record 2,000 members of the public visiting the Samuel Way Building. www.lssa.asn.au

Ecumenical Address THOSE WHO ATTENDED the Law Week Ecumenical Prayer Service at Maughan Uniting Church on Wednesday 24 May 2006 were given much food for thought by Ray Frost on the topic of lawyers as servants.

For his address, Ray drew on the story of Naaman, who became a leper and then was healed through the knowledge, wisdom and generosity of his servants. It is a great story for the soul and it is a superb story for lawyers.

Ray also drew on the text of Luke 22:27

Now, lawyers and servants to not seem to go together.

Lawyers are meant to be persons of power in society.

Servants are not.

Lawyers are thought to be well paid.

Servants are not.

Lawyers are meant to be privileged in society.

Servants are not.

However, I say that it is a self-evident truth that servants have great power.

Anyone who thinks that servants have no power has never had a legal secretary.

Or, to be precise, has never had a legal secretary away sick.

Do not dismiss servanthood lightly.

It carries with it great power.

And it is actually a ‘servant heart’ that brings a lawyer back to the roots of what he or she is meant to be.

Some people know precisely what serving God means for them.

They serve the hungry, so they go and buy bread and feed them.

Or they are doctors who work with the blind, so they operate on their eyes and save their sight.

But what do lawyers have to serve God with?

When lawyers look inside the package that God gives them to serve with, what do they find there?

Well, one beautiful thing – knowledge.

Lawyers have knowledge that heals; they have information that brings comfort to the heart.

You lawyers know. You know where to find answers. You know who might know.

And that knowledge is what God has given you to serve the world with.

Lawyers can have the privilege of saying to those who are scared, or beside themselves with worry, “Don’t be afraid, there’s nothing to worry about; this is how it works”.

That knowledge is good knowledge – it brings peace to people, and relief, and dignity.

It is as if God has delivered to you lawyers a great load of the knowledge that brings peace and relief, and says to you “Now go and serve it out to others – for Me”.

Law Week Mock Trial Competition THE MOCK TRIAL Competition featured a series of simulated court cases by students from years 10, 11 and 12. The Competition sponsored by the Law Foundation of SA has been designed to bring young South Australian’s closer to the workings of the legal system, while teaching them how to present a persuasive argument.

The Grand Final is 8 August at the Sir Samuel Way Courts. Semi Finals will now be held on 20 June between: • Annesley College V Blackfriars Priory School • Torrens Valley Christian School V St Johns Grammar School

Annual Elliott Johnston tribute lecture THE ADDRESS BY TOM CALMA, Aboriginal & Torres Strait Islander Social Justice Commissioner, HREOC, NSW, titled – ‘From rhetoric to reconciliation – Addressing the challenge of equality for Aboriginal and Torres Strait Islander peoples in criminal justice processes’ was delivered to a packed auditorium, and was a timely examination of initiatives, solutions and struggles that Australia’s aboriginal communities have seen come to pass.

Calma initially gave credit to the immense work down by Elliott Johnston himself - a powerful advocate in his previous capacity as National Commissioner on the Royal Commission into Aboriginal Deaths in Custody. Calma reiterated how the processes and final reports of that Royal Commission represented a pivotal moment in the history of Indigenous and nonIndigenous relations in this country where a public call for reconciliation was first suggested.

The frankness of the reports smashed the so-called ‘great Australian silence’, by making explicit the connections between the history of treatment of Indigenous peoples and its ongoing, contemporary impact. This is seen through the continuing experiences of disadvantage and discrimination, and most tragically through the deaths in custody of too many Indigenous people.

Calma made a clear impassioned cal l for a c ommitt ed lon g term cooperative partnership of indigenous and non-indigenous stakeholders that would address with resolve the conditions facing many indigenous Australians and their communities today. While he highligted issues areas of immediate concern , he also drew attention to initiatives on the State and Federal level where achievements were clearly being made. This momentum he urged must not be allowed to be abated.

The 2006 Law Week Debate THE LAW WEEK COMMITTEE Annual Debate was another highly popular event and closed the 2006 activities. The public and the profession who filled the Adelaide Festival Centre Banquet Room were equally amused and provoked by both teams as they argued the contentious 2006 proposition: ‘That Journalists Should Be Suppressed’. The case for the Affirmative was represented by; Lindy Powell QC, that effusive debater of renown Anthony Durkin, and the Law Society’s own Im m e di at e Pa st P re si d e nt , Alex Ward. For the Negative – representing the Adelaide media - were Mark Steene from Channel Ten , Miles Kemp from th e Advertiser, and Stateline’s Ian Henschke.

A highly entertaining mix of character assassination, wit and rhetoric flew around the Festival Centre, as both sides jostled for lectern supremacy. Myles Kemp was the exception as he strode forth and played the unusual tactic of delivering a straight address on the human cost that can be paid when free speech is suppressed this momentarily shook the levity of the night, as well it should. No gags on the night from Myles.

All the speakers however gave inspired deliveries that were naturally peppered with the appropriate sledging required of such an occasion. When it came time for the Chairman, Crown Solicitor Simon Stretton, to finally invite the loudest show of audience applause to reveal the evening’s winners, it was indeed a close call.

However the cleverly concealed Media Alliance contingent were overwhelmingly vocal, and with that the Negative’s case carried the day.

But as Lindy Powell QC remarked with a flourish to the opposition, "At least lawyers know that you don't go to Court with your shirt hanging out and expect to win a suppression order."

Tom Calma, HREOC NSW, Elliott Johnston 2006 Lecture speaker

Law Week Debate, Ian Henschke

Law Debate 2006, from left Lindy Powell QC, Anthony Durkin, Society IPP Alex Ward

25 2006 law Week Oration speaker, DPP Stephen Pallaras QC

Law Week Debate, Anthony Durkin

June 2006

Risk Watch Riskwatch is prepared by Law Claims to assist practitioners in identifying risky areas in practice and to highlight risk prevention strategies to allow for safer, more enjoyable practice. Riskwatch appears as a monthly column in the Law Society Bulletin as well as being distributed on a monthly basis to members of the Law Society’s Professional Indemnity Scheme who do not receive the Law Society Bulletin.

TIME ISN’T ON YOUR SIDE

Watch out for the following situations that have been the cause of Personal Injury Statute Barred Claims over the last 10 years.

Diary Reminder System failure to diarise properly, either because there isn’t an effective diary/early reminder system in place, or it was ignored.

A

Transferred File The file is transferred from one practitioner or firm to another, the new solicitor accepts instructions before receiving the file and the matter goes out of time during transfer.

Failure to check police or medical reports A failure to check instructions or medical reports against the police report for relevant dates or parties.

Wrong Defendant Proceedings are taken against the wrong defendant, or fail to include a defendant, and time has passed to correct.

Belief that the matter is about to settle The practitioner can be consumed by the negotiation process and the

critical date to issue proceedings is overlooked.

Wrong Jurisdiction Proceedings are instigated in the wrong jurisdiction at the last minute.

Plaintiff is a minor A failure to ascertain the proper limitation date by checking the birth date of the plaintiff.

Practitioner on leave The practitioner handling the file leaves the firm, or is on extended leave, and the matter is overlooked.

Unusual limitation date A lack of knowledge of the limitation date applicable to the cause of action. For example, the limitation date for taking proceedings under the Civil Aviation Act (C.W.) is 2 years.

Failure to properly disengage Failing to confirm in writing instructions not to proceed or

failing to properly disengage if the client does not provide further instructions.

More than one claim The client has a secondary injury that is not fully explored and no instructions are sought.

Spouse claim The client’s spouse may have a related claim that is overlooked.

Client has changed address The client has changed address and cannot be contacted to give instructions to proceed. The practitioner is at risk if the client has not been warned of the critical date in writing at the commencement of the engagement and of their responsibility to advise of changes in contact details.

Why Do Diary Reminder Systems Fail?

• Lack of commitment by everyone in the office.

• Relevant staff not involved in the development of the system.

• Failure to enforce and reinforce the need to comply with the system at all times.

• Failure to ensure that all members of staff are educated appropriately in the use of the system.

• Failure to upgrade and review manuals and guides following review of the use of a system.

• Failure to ensure that established systems do not deteriorate.

• Failure to properly “police“ a system.

• Failure to recognise that the use of a system is a managerial responsibility as well as a legal responsibility.

Commitment to the use of systems is required at all levels. Systems will not achieve the outcomes that a firm wants if only a small percentage of the firm takes the use of that system seriously. Partners may have a real commitment to compliance but fail to impress (e.g. through education) the obligations on employees and managerial staff.

Professional Standards

Trust Account Computer Software Issues: Getting it right

I

t has come to the attention of Professional Standards that s om e s oftware prog ram s used for trust account record keeping are presenting law practices with difficulties in complying with the trust account regulations.

At least one program, when used in conjunction with office billings, apparently does not p e r m i t b i l l e d a n t i c i p at e d disbursements to be paid directly from the trust account to the third party supplier. While there is good reason for this practice in relation to the GST accounting, it means that law practices using this program are required to make those p ay m e n t s f r o m t h e of f i c e account and later reimburse those payments from the trust account. For some practices, this may have serious consequences for the cash flow and overdraft of the practice, particularly in light of the advice from Professional Standards that a law practice is not entitled to reimbursement until the disbursement has actually been

paid - which is taken to have occurred when the payment has left the office account.

There is another issue which relates to electronic deposits to the trust bank account. Some law practices who still receive bank statements only monthly and do not use internet banking will be in the position that when money has been received into the trust account by way of a direct deposit by a client in one month, the receipt is not prepared until the credit in the trust account has been noted on the bank statement when it arrives in the following month.

This may affect the ability of the practice to conveniently perform the monthly reconciliation as, in those circumstances, the receipt must be carried forward as a reconciling item and this may be difficult in some programs.

Professional Standards advises that there appear to be two solutions to this problem.

The first is to either request more frequent bank statements for the trust account or to set

up the trust account for online viewing.

The second, in the circumstances in which a receipt can only be prepared at a later date than an electronic deposit is made, is to prepare the receipt showing both the date of the deposit and a notation as to the date the receipt was prepared. This will ensure compliance with regulation 11(1)(b)(i).

By entering the receipt into the computer program as at the date the deposit was made, that t ra n s a c t i o n w i l l t h e n b e recorded in both the cashbook and client trust ledger account as at that date. Although any report of receipts generated by the program for an auditor or inspector will show that the receipt was not in chronological sequence, that will be explained by the notation on the receipt.

The notation therefore should be accurate and complete.

The third issue is that of debit balances within trust ledgers ( for example, as used for the Combined Trust Account).

Where the trust records are able

to show a particular trust ledger account to have been overdrawn, it is necessary to ensure that, pursuant to Regulation 14(6)(a)(i), a separate contemporaneous record of the particular transaction is made and a hard copy of such transactions may be produced at any time in chronological order.

In other words, the program must be set so that a report of all overdrawn transactions may be produced when required.

Many programs only permit the records to show a debit balance by permitting the user to override a warning. Any such override facility must not be used unless regulation 14(6)(a)(i) is complied with, as above. As a matter of risk management, use of any over-ride facility that permits a debit balance to be recorded should be authorized on each occasion by a principal of the practice.

Fo r f u r t h e r i n f o r m a t i o n please contact Professional Standards (tel 8229 0229) or profstds@lssa.asn.au

Anton Piller Orders: Revocation of Practice Note No 10 On 23 May 2006 Practice Note No 10 – Anton Piller Orders was revoked by the Acting Chief Justice.

P

ractice Note No 1 0 wa s i ssu ed by the Chief Justice on 8 April 1994. The Practice Note set out a number of matters that the Court would have regard to when considering making an ‘Anton Piller’ or analogous

order and seeking associated undertakings.

search order and the usual terms of such an order.

the Council of Chief Justices’ Harmonised Rules Sub-Committee.

On 5 May 2006 the Chief Justice issued Practice Note No 24 – Search Orders which addresses (among other things) the Court’s usual practice relating to the making of a

The Practice Note complements Order 25B of the Federal Court Rules, that also commenced on 5 May 2006. Order 25B gives effect to the harmonised rules for search orders developed by

As Order 25B and Practice Note No 24 deal with the matters set out in Practice Note No 10, Practice Note No 10 was no longer necessary and has been revoked.

27

June 2006

The Courts Administration Authority Library Service provides support to both the Supreme Court and District Court libraries. Practitioners should be aware that access to both the library collection and the reference service is now only available via the Supreme Court Library reference desk on level 2 of the Supreme Court Library Building.

The change in practice is being introduced, after determining the needs of our clients based on recently collected usage data, to achieve greater efficiencies in the Court Library Service and at the same time ensure library services to practitioners continue to be of a high standard.

To minimise delays during court proceedings all routine loans of materials to be cited in court should be made at the Supreme Court Library prior to the commencement of the court sitting. Those practitioners, whilst in court, who unexpectedly require material urgently, are able to phone the reference desk on 8204 0488 to arrange for material to be reserved for prompt pick up from the Supreme Court Library desk.

For your convenience a book return unit will be located in the Sir Samuel Way foyer to the left of the exit doors for use at the completion of the court session.

Sue Carter, Manager CAA Library Service

LITIGATION ASSISTANCE FUND LAF The Litigation Assistance Fund is available to civil litigants unable to pay their own legal expenses. It is available to companies as well as individuals.The Fund will pay reasonable solicitor/client costs according to the scale appropriate to the jurisdiction. If the litigation is successful, the Fund will receive a Fund fee being 15% of any judgement or settlement monies.

In the alternative, the Disbursements Only Fund – DOF – is available. This enables payment of disbursements such as court filing, experts reports, witness fess, transcripts and trial fees. Barrister’s and solicitor’s costs are excluded.

If the DOF matter is successful, a Fund fee will be levied being repayment of the disbursements paid by the Fund together with an uplift of 25% to 100% thereof.

For further information about the fund contact Mary Walters.

132 Franklin Street, Adelaide SA 5000 Ph - 8110 5263 Fax - 8231 2995 mary.walters@lssa.asn.au

D R A O B N I T E L L U B

CAA Library Service Update

Moving On, Moving Up P

hillips Fox are pleased to welcome back Helen Stavridis who recently rejoined the law firm as a senior associate in the Insurance and Risk Management team, having spent over a year working at London law firm Holman Fenwick & Willan as a paralegal and foreign lawyer in the Insurance and Reinsurance department. Helen will assist P h i l li p s Fox c li e n t s o n a wide range of professional indemnity, public liability, risk m a n a g e m e n t a n d g e n e ral insurance litigation matters.

Commercial Chambers has relocated to 90 Sturt Street, Adelaide (on the corner of Sturt and Russell). Craig McCarthy and Ian Robertson continue to accept briefs in all commercial jurisdictions, with a particular focus on corporations law, trade practices, banking and finance, land law and equity. They can be contacted on 8211 8113.

Norman Waterhouse Lawyers are pleased to announce Tim Griffin has joined the firm’s Local Government Team as an Associate in March 2006. He specialises in local government

1

6

regulation and compliance. Tim has approximately 20 years experience in law enforcement as an investigator, policy advisor a n d p r o s e c u t o r. D a v i d Billington commenced with the firm in its Environment and Town Planning Team as an Associate. He was previously an Associate to Justice Debelle of t h e S u p re m e C o u r t of South Australia.

Corna Kotzé has also commenced at the firm as a Solicitor in the Property, Infrastructure and Development Team, and has had experience as a property lawyer in South Africa for over 10 years. She acted for private developers and as in-house counsel for Local Government. Andrew Craig has joined the Property, Infrastructure and Development team as an Associate. Prior to joining Norman Waterhouse, Andrew worked as a solicitor in New South Wales for over four years in a wide variety of areas including property development, building and construction, mining, commercial litigation and environmental law.

Minter Ellisons are pleased to welcome Terry Evans who has commenced as special counsel

2

in the firm’s Corporate team.

G e o f f re y Wa r k has al s o commenced as a senior associate in the firm’s Workers Compensation team.

Jody Grant, Senior Associate in the firm’s Real Estate team, has left the firm to take up part-time work with the Real Estate Institute. Solicitor Devita Pathi, has left the Commercial Litigation team, to move interstate. Vicki Cotsaris, Associate with the firm’s Workers Compensation team, has also left the firm.

Stephen Phillips, Associate in the firm’s Commercial Litigation team, has left the firm to move overseas. Alexandra Heysen, an Associate in the Commercial Litigation team at Minter Ellison, has left the firm to work overseas.

Kieran Kelly has ceased practising as a consultant with Mouldens and commenced sole practice under the name Kieran Kelly Lawyers at Level 9, 117 King William Street, Adelaide or PO Box 519, Adelaide SA 5001.

Telephone: (08) 8231 9122 Mobile: 0430 511 430 Facsimile:

3

7

4

8

(08) 8231 9133 and Email kieran@kierankelly.com.au” Kel ly & C o. are pleased to announce the recent appointments of the following solicitors. Jack Hynes has been appointed as a Senior Associate in the Dispute Resolution Division. Jack will be specialising in insolvency and banking and finance litigation. Jack brings to the firm his experience gained within a large banking litigation and insolvency practice in Sydney over the past two years. Toby Moritz has been appointed as an Associate in the firm’s Dispute Resolution Division.

Toby will be assisting with the firm’s commercial litigation matters with a particular emphasis on Media, IP and Trade Practices. Toby has recently returned from the UK where he worked in an advisory capacity for the Secretary of State (UK).

Kelly Breen, formerly of Sparke Helmore has joined Scammell & Co. Kelly is based at the firm’s Adelaide Office and specialises in all areas of personal injury law.

Her contact details are: T. 8212 6875; F: 8221 6543; E.kbreen@scammell.com.au.

5 1.

2.

3.

4.

5.

6.

7.

8.

Kelly Breen Andrew Craig David Billington Corna Kotzé Tim Griffin Helen Stavridis Toby Moritz Jack Hynes

29

June 2006

6

200

Diary Dates To purchase copies of papers from earlier CPD sessions please telephone us on (08) 8110 5200

PLEASE NOTE All weekly and half day CPD seminars, unless otherwise advised will be presented in the LAW SOCIETY SEMINAR ROOM LEVEL 2 / 132 FRANKLIN ST, ADELAIDE To register for any CPD event: Contact: Law Society (Education Section) Telephone: 08 8410 5865 Email: pd@lssa.asn.au

JUNE Tuesday 20 June TRAFFIC OFFENCES 9.00am - 12.30pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Joana Fuller, Bar Chambers; Sally Burgess, Clark Chambers; Thomas Buzzacott, Fines Payment Unit; Senior Constable (First Class) Gordon Burgess, SA Police Chair: The Honourable Justice Duggan, Supreme Court of South Australia

30

Wednesday 21 June COURT OF CRIMINAL APPEAL CASES OF 2005 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: David Edwardson, Bar Chambers

www.lssa.asn.au

Chair: TBA Friday 23 June PUBLIC SECTOR LAWYERS SEMINAR 1.50pm - 5.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Chris Kourakis QC, Solicitor General; Steven Churches, Elliott Johnston Chambers; Peter Campbell, Kelly & Co and Natalie Charlesworth, Kelly & Co Panel Members: Chris Kourakis QC, Solicitor General; Greg Parker, Crown Solicitors Office Chris Platt, General Manager Workplace Policy, Australian Mines and Metals Association and Steven Dolphin, Lieschke & Weatherill Chair: Martin Penhale, Crown Solicitors Office & Chair, Public Sector Lawyers Committee Wednesday 28 June RISKY BUSINESS: HOW TO WORK STRATEGICALLY WITH INTERPRETERS 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters include: Mario Armiento, Convenor of the NAATI Regional Advisory Committee (SA); Helen Richter, Director of the Legal Practitioners Conduct Board; Cheryl Appelkamp, Manager of the SA Office of NAATI; Hugh Rischbieth, Johnston Withers Chair: Hieu Van Le, Chairman of the SA Multicultural and Ethnic Affairs Commission

Law Council of Australia, the Law Society is proud to present: UNLAWFUL DISMISSAL TO UNLAWFUL COPYING UNDERSTANDING THE EXPANDING JURISDICTION OF THE FEDERAL MAGISTRATES COURT Presenter: Federal Magistrate Raphael, Federal Magistrates Court Chair: TBA Commentator: Kym Ryder, O’Loughlins Lawyers Please note this session will be held at the Roma Mitchell Commonwealth Law Courts, and will include a tour.

Friday 7 July FEDERAL COURT PRACTICE 8.30am - 11.00am Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Neville Rochow, Howard Zelling Chambers; Larissa Detmold, Howard Zelling Chambers; David Wright, Howard Zelling Chambers Chair: The Honourable Justice Finn, Federal Court of Australia

JULY

Wednesday 12 July OH&S PROSECUTIONS 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: Rick Manuel, Wright Street Chambers Chair: Industrial Magistrate Ardlie, Industrial Relations Court

Wednesday 5 July In conjunction with the Business Law Section of the

Tuesday 18 July WORKCOVER’S NEW CLAIMS AGENT

Proposed for 5.30pm – 7.30pm Full details to be advised.

For further information please contact: Graham Jobling Phone: 08 8410 5865 Email: graham.jobling@lssa.asn.au Wednesday 19 July WORKCHOICES LEGISLATION 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters include: Paul Slattery QC, Divett Chambers; Alex Lazarevich, Divett Chambers; Sathish Dasan, Norman Waterhouse Wednesday 26 July NON-PARTY DISCOVERY 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: Ian Robertson, Commercial Chambers Chair: TBA

AUGUST Wednesday 2 August BANKRUPTCY AND DECEASED ESTATES 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Melissa Yule, Piper Alderman Chair: TBA Wednesday 9 August DEALING WITH CHILDREN AS WITNESSES 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide

Presenters: The Honourable Justice Layton, Supreme Court of South Australia and Liesl Chapman, Edmund Barton Chambers Chair: The Honourable Justice Gray, Supreme Court of South Australia Wednesday 16 August Supreme Court of SA – Full Court Decisions of 2005 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Martin Hoile, Bar Chambers Chair: TBA

ADVANCED NOTICES SUCCESSION LAW CONFERENCE, 2006 Thursday 19 & Friday 20 October, 2006 Hilton Hotel, Victoria Square The conference will focus on recent and pending changes

impacting on the legal profession in the area of succession law with a focus on the protection of assets and the rights of beneficiaries.

Topics to be covered include: • The Wills Act s12(2) • Transfer of control for private and family companies • Succession planning issues for Business and Families • Defending a Claim under the Inheritance Family Provision Act • Taxation issues for foreign beneficiaries • The Homemade Will: Lawyers Beware • Estate Planning Featuring The Honourable Justice Windeyer, Supreme Court of New South Wales; The Honourable CJ Legoe QC, retired Justice of the Supreme

Court of South Australia; The Honourable Justice Besanko, Federal Court of Australia, David Haines QC, Victoria Chambers; Ian Robertson, Commercial Chambers; Arlene Macdonald, Edmund Barton Chambers; Steve Roder, Howard Zelling Chambers; Michael Perkins, Cropper Parkhill; Peter Whitehead, Public Trustee, New South Wales; Gaetano Aiello, Treloar & Treloar Julie Cassidy, Deakin University; Alan Leaver, Flinders University; Members of the Probate Committee, Law Society of South Australia For further information please contact: Catherine Close CPD Coordinator The Law Society of SA Phone: 08 8410 5865 / Email: catherine.close@lssa.asn.au

COUNTRY UPDATE Friday 27 October, 2006 Mt Barker Topics to be covered include: Bail Applications Presenter: The Honourable Justice Gray, Supreme Court of Australia and Sally Burgess, Clark Chambers WORKCHOICES UPDATE Presenter: Rick Manuel, Wright Street Chambers PROBATE & ESTATE UPDATE Council / Landowner Liability for Roadside Vegetation The New Supreme and District Court Civil Rules For further information please contact: Graham Jobling Manager (Education) The Law Society of SA Phone: 08 8410 5865 Email: graham.jobling@lssa.asn.au

LAW SOCIETY CONTACTS

This issue of The Law Society of South Australia: Bulletin is cited as (2003) 25(7) LSB(SA). ISSN 0157-8952

EXECUTIVE MEMBERS President President Elect Vice President Treasurer Imm. Past President Council Member Council Member

DJ Eszenyi MJ Kelly J Goldberg G K Feary AJ Ward TJ Mellor SJ White

GENERAL COUNCIL MEMBERS AM Brookman DA Sheldon GC Anderson JR Goldberg PI Boylan RP Mellows TM Rymill NA Kernahan CM O’Connor R Bonig SD Ower CJ Darcy

CM Parsonage G Davis JL Schammer P Fairall RD Ross-Smith The Hon. MJ Atkinson MP SJ Reynolds RK Genders JB Jarvis MF Crichton MW Henderson

Executive Director Jan Martin jan.martin@lssa.asn.au Director of Business Operations Stephen Hodder stephen.hodder@lssa.asn.au Manager (Finance) Chiro Pipolo chiro.pipolo@lssa.asn.au Member Services Manager Michelle Griffith michelle.griffith@lssa.asn.au Legal Practitioner’s Registrar David Milne david.milne@lssa.asn.au Director (Prof. Standards) Denise Watkins denise.watkins@lssa.asn.au

THE BULLETIN Editor

Jan Grundy jan.grundy@lssa.asn.au Mary Walters mary.walters@lssa.asn.au Sophia Lemke sophia.lemke@lssa.asn.au Graham Jobling graham.jobling@lssa.asn.au Lorna Hartwell lorna.hartwell@lssa.asn.au

Director (Law Claims) Manager (LAF) GDLP Course Director Manager (Education) Librarian

PUBLISHER/ADVERTISER

Nick Ramage Email: nick.ramage@lssa.asn.au

Published monthly (except January) by: Publisher

Editorial Committee G Canny B Krupka M Senior

D Crocker J Martin R Spencer

L Detmold E Olsson (Chair)

K Gluche J Palenschus

The LAW SOCIETY BULLETIN is published monthly (except January) by: The Law Society of South Australia, 124 Waymouth Street, Adelaide. DX 333 Ph: (08) 8229 0222 Fax: (08) 8231 1929 Email: bulletin@lssa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Boylen Publishing Creative Director: Felicity Gladwin Email: fgladwin@boylen.com.au 1 Richmond Road (2nd building), Keswick SA 5035.

PO Box 70, Marleston SA 5033.

Ph: (08) 8233 9433 Fax: (08) 8351 5633 Email: admin@boylen.com.au

31

Advertising Nadine Hardwicke Email: nhardwicke@boylen.com.au Printer

Lane Print Group 101 Mooringe Ave, Camden Park SA 5038.

Ph: (08) 8376 1188

June 2006

Conferences and Events INTERNATIONAL

AUSTRALIA

JUNE 2006

JUNE 2006

22nd - 24th Jun Intercontinental Carlton Hotel -Cannes - France International Commercial Arbitration Summit 2006 —CALL FOR PAPERS— Host: C|M|S - Chilli Marketing Solutions Contact: George Katrivesis Marketing Manager Phone: 02-9543 0499 Fax: 02-9543 0455 Website: www.chillimarketing.com.au Email: george@chillimarketing.com.au

17th Jun Melbourne, RACV Club LIV Small Practice Conference Host: Law Institute of Victoria Contact: Nicole Greenwell Phone: 03 9607 9469 Fax: 03 9607 9404 Website: www.cpd.liv.asn.au Email: ngreenwell@liv.asn.au

30th Jun - 1st Jul Prato, Italy Access to Justice: How much is too much?

Host: Monash University Contact: Prato Conference Secretariat Faculty of Law Building 12m Monash University Melbourne VIC 3800 Phone: (03) 9905 3371 Fax: (03) 9905 9903 Website: www.law.monash.edu.au/ conference/prato Email: legal.conference@law.monash.edu.au 30th Jun - 1st Jul Prato (Florence, Italy) Access to Justice: The Issues Raised by Vexatqous People Host: Faculty of Law, Monash University Contact: Ms Jodi Rockman, Marketing Manager Phone: (03) 9905 2630 Fax: (03) 9905 9903 Website: www.law.monash.edu.au/ conference/prato/ Email: jodi.rockman@law.monash.edu.au

SEPTEMBER 2006 3rd - 9th Sep Jesus College, Oxford University, Oxford, England The 16th Oxford Offshore Symposium Host: Offshore Investment Contact: Nicola Rafferty Phone: +44 (0) 2890 328 777 Fax: +44 (0) 2890 328 555 Website: www.offshoreinvestment.com/ Offshore_Postgraduate/index.html Email: conference@offshoreinvestment.com

32

27th - 29th Sep Raffles Le Montreux Palace, Montreux, Switzerland European Corporate Counsel Summit 2006 Host: marcus evans Summits Contact: Susanna Austin, Marketing Manager Phone: 00357 22849302 Website: www.europeancorpcounsel summit.com Email: SusannaA@marcusevanscy.com

www.lssa.asn.au

21st Jun Brisbane Insolvency Law Masterclass Host: LexisNexis Professional Development Contact: Angela Kurtz, Queensland Manager Professional Development Phone: 07 3335 0993 Fax: 07 3335 0990 Website: www.lexisnexis.com.au/aus/ conferences/ Email: angela.kurtz@lexisnexis.com.au 21st Jun Sofitel Wentworth, Sydney Motor Accidents Lifetime Care and Support Reforms Host: Insurance Council of Australia Contact: Nerida Ayers Phone: 02 9253 5176 Fax: 02 9253 5111 Website: www.ica.com.au Email: nayers@ica.com.au 26th - 27th Jun Sydney Best Practice for In-House Counsel Host: Ark Group Australia Contact: Ben Farnsworth Phone: 1300 550 662 Fax: 1300 550 663 Website: www.ark-group.com Email: bfarnsworth@arkgroupasia.com 29th Jun Law Society House, Brisbane QLS Elder Law Conference Host: Queensland Law Society Contact: Kerry McWhinnie, CLE Coordinator Phone: (07) 3842 5866 Fax: (07) 3221 2279 Website: www.qls.com.au Email: k.mcwhinnie@qls.com.au

JULY 2006 2nd - 7th Jul Novotel Palm Cove, Cairns Law Conference 2006: A CPD/CLE Event Host: Cairns Law Conferences Contact: Niall Carney Phone: 02 9232 6644 Fax: 02 9232 6902 Website: www.cairnslawconferences.com Email: info@cairnslawconferences.com 2nd - 6th Jul Brisbane Justice for All - Victims, Defendants, Prisoners and the Community Host: The International Society for the Reform of Criminal Law

Contact: Commonwealth DPP Attention Anthony Gett GPO Box 847, Brisbane QLD 4001 Fax: (07) 3229 4124 Website: www.isrcl.org Email: isrcl2006@cdpp.gov.au 4th Jul Brisbane Marriott Hotel Industrial Relations and Employment Law Masterclass 2006 Host: LexisNexis Professional Development Contact: Yvette Koster Phone: (07) 3335 0996 Fax: (07) 3335 0990 Website: www.lexisnexis.com.au Email: yvette.koster@lexisnexis.com.au 13th Jul Brisbane Hilton INSURANCE LAW CONFERENCE Host: CMS- Chilli Marketing Solutions Contact: GEORGE KATRIVESIS MARKETING MANAGER Phone: 02-9818 6566 Fax: 02-9818 6577 Website: www.chillimarketing.com.au Email: george@chillimarketing.com.au 14th - 15th Jul Melbourne Financial services reform second anniversary - where next?

Host: Monash University Business Law and Taxation Contact: Paul Latimer Phone: 03 9905 2379 Fax: 03 9905 9111 Website: www.buseco.monash.edu.au Email: Paul.Latimer@buseco.monash.edu.au 24th - 28th Jul Sydney Australian Copyright Council Seminars: Copyright Essentials, Moral Rights, Recent Developments, Education, Libraries and Government Host: Australian Copyright Council Contact: Enquiries & Registrations Phone: 02 9699 3247 Fax: 02 9698 3536 Website: www.copyright.org.au Email: info@copyright.org.au 26th - 28th Jul Crowne Plaza, Darling Habour, Sydney 15th Annual Insurance Law Congress Phone: (02) 9923 5090 Website: www.iir.com.au/conferences/ Email: info@iir.com.au 28th Jul Royal on the Park, Brisbane QLS Personal Injuries Conference Host: Queensland Law Society Contact: Holly Bretherton CLE Urban Supervisor Phone: (07) 3842 5905 Fax: (07) 3221 2279 Website: www.qls.com.au

Gazing in the Gazette

A monthly review of Acts, Appointments, Regulations and Rules compiled by Mellor Olsson’s Elizabeth Olsson.

1 MAY 2006 – 31 MAY 2006 ACTS PROCLAIMED (1 MAY 2006 – 31 MAY 2006)

Chiropractic and Osteopathy Practice Act 2005, No 30 of 2005 Commencement (except s4-6, 8-75, Schedule 1 (other than clause 2(4) and clause 4): 4 May 2006.

Gazetted: 4 May 2006, Gazette No. 24 of 2006

Retirement Villages (Miscellaneous) Amendment Act 2005, No 67 of 2005 Commencement: 1 November 2006, Gazetted: 18 May 2006, Gazette No. 28 of 2006 Corporations (Commonwealth Powers) (Extension of Period of References) Amendment Act 2005, No 59 of 2005 Commencement: 12 June 2006 Gazetted: 25 May 2006, Gazette No. 29 of 2006 Local Government (Financial Management and Rating) Amendment Act 2005, No 60 of 2005 Commencement ss21, 23(1),(3) and (4):

1 July 2006 Gazetted: 25 May 2006, Gazette No. 29 of 2006 Occupational Therapy Practice Act 2005, No 51 of 2005 Commencement except ss 4-6, 8-72 inclusive and Schedule 1 (other than clause 2(3) and clause 5)): 25 May 2006 Gazetted: 25 May 2006,

Gazette No. 29 of 2006

ACTS ASSENTED TO

(1 May 2006 – 31 May 2006) Nil APPOINTMENTS

Judge of the District Court of South Australia Judge of the Environment, Resources and Development Court of South Australia from 4 May 2006 Deputy Presiding Officer of the Equal Opportunity Tribunal for a term of three years commencing on 4 May 2006 David Cameron Lovell, Q.C. Gazetted: 4 May 2006, Gazette No. 24 of 2006 Legal Practitioners Conduct Board Member: (from 9 May 2006 until 8 May 2009) Stephen Walsh QC, Margaret Wallace Sally Ann Burgess, Catherine Margaret Parsonage Member: (from 25 May 2006 until 24 May 2009) Lesley Claire Palk Deputy Member: (from 9 May 2006 until 8 May 2009) Joshua Joseph Simons (Deputy to Burgess), Theodora Eszenyi (Deputy to Wallace), Rebecca Joy Geyer (Deputy to Parsonage) Deputy Member: (from 10 August 2006 until 9 August 2009) James Reed Marsh (Deputy to Palk) Presiding Member: (from 9 May 2006 until 8 May 2009) Stephen Walsh QC Gazetted: 9 May 2006, Gazette No. 25 of 2006

Regulations Promulgated (1 May 2006 – 31 May 2006) REGULATION NAME REGULATION # Occupational Therapists Act 1974.........................................................................................44 of 2006 Harbors and Navigation Act 1993..........................................................................................45 of 2006 Chiropodists Act 1950.................................................................................................................46 of 2006 Zero Waste SA Act 2004.............................................................................................................47 of 2006 Chiropractic and Osteopathy Practice Act 2005..............................................................48 of 2006 Listening and Surveillance Devices Act 1972 ...................................................................49 of 2006 Liquor Licensing Act 1997 ........................................................................................................50 of 2006 Liquor Licensing Act 1997 ........................................................................................................51 of 2006 Primary Produce (Food Safety Schemes) Act 2004.........................................................52 of 2006 Fisheries Act 1982.........................................................................................................................53 of 2006 Retirement Villages Act 1987...................................................................................................54 of 2006 Liquor Licensing Act 1997 ........................................................................................................55 of 2006 Liquor Licensing Act 1997 ........................................................................................................56 of 2006 Liquor Licensing Act 1997 ........................................................................................................57 of 2006 Local Government Act 1999.....................................................................................................58 of 2006 Superannuation Act 1988..........................................................................................................59 of 2006 Superannuation Funds Management Corporation of South Australia Act 199560 of 2006 Occupational Therapy Practice Act 2005............................................................................61 of 2006 Terrorism (Police Powers) Act 2005 ......................................................................................62 of 2006

Commissioner for Equal Opportunity for a term of five years commencing on 13 May 2006 and expiring on 12 May 2011 Linda Rae Matthews Gazetted: 9 May 2006, Gazette No. 25 of 2006 Conciliation and Arbitration Officer of the Workers Compensation Tribunal for a period of five years commencing on 30 July 2006 and expiring on 29 July 2011 Darryl Sydney Willson Gazetted: 9 May 2006, Gazette No. 25 of 2006 RULES

THE MAGISTRATES COURT OF SOUTH AUSTRALIA Amendment No. 26 of Magistrates Court (Civil) Rules 1992 Gazetted: 4 May 2006, Gazette No. 24 of 2006 RULES OF COURT Amendment No. 47 to the District Court Rules Gazetted: 4 May 2006, Gazette No. 24 of 2006 RULES OF COURT Amendment No. 48 to the District Court Rules Gazetted: 4 May 2006, Gazette No. 24 of 2006 RULES OF COURT Amendment No. 100 to the Supreme Court Rules Gazetted: 4 May 2006, Gazette No. 24 of 2006 RULES OF COURT Amendment No. 17 to the Supreme Court Criminal Rules Commencement: 18 May 2006, Gazette No. 28 of 2006 RULES OF COURT Amendment No. 101 to the Supreme Court Rules Commencement: 18 May 2006, Gazette No. 28 of 2006 DATE GAZETTED 4 May 2006, Gazette No. 24 of 2006 4 May 2006, Gazette No. 24 of 2006 4 May 2006, Gazette No. 24 of 2006 4 May 2006, Gazette No. 24 of 2006 4 May 2006, Gazette No. 24 of 2006 9 May 2006, Gazette No. 26 of 2006 9 May 2006, Gazette No. 26 of 2006 9 May 2006, Gazette No. 26 of 2006 9 May 2006, Gazette No. 26 of 2006 9 May 2006, Gazette No. 26 of 2006 18 May 2006, Gazette No. 26 of 2006 25 May 2006, Gazette No. 29 of 2006 25 May 2006, Gazette No. 29 of 2006 25 May 2006, Gazette No. 29 of 2006 25 May 2006, Gazette No. 29 of 2006 25 May 2006, Gazette No. 29 of 2006 25 May 2006, Gazette No. 29 of 2006 25 May 2006, Gazette No. 29 of 2006 25 May 2006, Gazette No. 29 of 2006

33

Views expressed in the Bulletin in its ‘Opinion’ column and advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions.

June 2006

New Releases

BY THE HON. JUSTICE BRUCE DEBELLE

History of the Law in South Australia 1837 – 1867 R M Hague. (University of Adelaide Barr Smith Press), 881 pages, RRP $130.

Hague’s History of the Law in South Australia 1837 – 1867 can be purchased by contacting the Barr Smith Library on 08 8303 5126. were only upstaged by the visit that year of Prince Alfred.

The rest of the second volume contains eight chapters, each a separate study of the Supreme Court, the Court of Appeals, courts of inferior jurisdiction, the law officers of the Crown, the legal profession, Aborigines and the law, Registration of feeds and the Real Property Act, and the Adelaide Gaol. Each of these chapters is carefully and well researched. Each is a mine of information.

R

34

alph Hague’s industry and erudition were well known when he was Crown Solicitor for South Australia.

Those who did not work or reside in South Australia were able to gain some indication of his erudition from his editing for 40 years of the South Australian State Reports from 1947 until 1987 (the last volume he edited is 46SASR).

A lasting testament to Hague’s e xt e n siv e a b i li t i e s i s t h e publication of his History of the

www.lssa.asn.au

Law in South Australia 1837 – 1867.

This is a substantial publication in two large volumes. The first volume and the first chapter of the second contain a narrative of the Supreme Court from its establishment until 1867, the year in which Justice Benjamin Boothby was amoved from office, an event then unprecedented in the Australian Colonies. It was a turbulent year in South Australia.

The events surrounding amoval captivated the attention of Adelaide for most of 1867, but

The work is, in fact, a thesis submitted by Hague in 1936 for a Doctorate of Laws from the University of Adelaide. Despite the fact that it displays meticulous scholarship and is one of the first detailed studies in Australian legal history, the subject was not approved by the University Council. The reasons for its rejection are obscure. They perhaps reflect a somewhat Anglocentric, if not Anglophobic, view of those who rejected it.

Hague was deeply affected by the rejection. Despite later urging to resubmit the thesis by prominent people, including Dame Roma Mitchell and Professor Alex Castles, he did not do so. He was even unwilling to publish the work.

The publication is the result of the initiative of the John Bray Law Chapter of the University of Adelaide Alumni Association and its President Justice Tom Gray.

The narrative of the years 1837 to 1867 centres around the first three judges of the Supreme

Court, Jeffcott, Jickling and Cooper and then on Boothby.

Nonetheless, it does not overlook Boothby’s contemporaries, Chief Justice Hanson and Justices Crawford and Gwynne.

The thoroughness of the p ai n st a k i n g re s e a r c h a n d scholarship is evident throughout.

For example, the account of the duel in which Jeffcott shot and killed a Dr Dennis, Jeffcott’s subsequent flight to elude arrest and trial and his evasion of his creditors is extensively grounded on material sourced from England.

The duel caused Jeffcott to lose his position as Chief Justice of Sierra Leone (he was in fact the only judge of that colony). Notwithstanding the duel and the fact that he had to escape to the Continent to evade his creditors, he later returned to London in 1863, and with the support of Daniel Patrick O’Connell, was able to secure appointment as the first judge of the new colony in South Australia.

Hague is critical of the tenure of Sir Charles Cooper (after whom Cooper’s Creek is named) as a judge of the Supreme Court. His views might be unduly harsh, as Dr J M Bennett notes in Lives of the Australian Chief Justices – Sir Charles Cooper (Federation Press).

Hagues summary is that Cooper was not a very good judge.

As a lawyer he was sound enough; but he had no exceptional grasp of legal principles, no subtlety of thought or of expression, no vigour in decision.

Bennett suggests that this assessment is seriously distorted

and does less than justice to Cooper. The two works provide useful material for comparison.

As Hague notes, Cooper was, in fact, a judge for 23 years, the first of a remarkable succession of four Chief Justices (Sir Charles Cooper, Sir Richard Hanson, Sir Samuel Way and Sir George Murray) who between them spanned nearly a century of legal history.

It is not the place of this review to attempt to summarise the work.

Its scholarship is both interesting and rewarding. The work is replete with detailed references and illuminating extracts from contemporary materials. Those materials include photocopies of letters, legislation, cartoons of the day, and other documents which re-inforce and illustrate the text.

The publication is also liberally illustrated with photographs, not only of the individuals mentioned in the text, but also of

contemporary conditions or events. Many of the photographs of the individuals appear in the wide margin and contain a short and informative biographical note.

Hague writes in an entertaining style, which displays the breadth and depth of his reading and scholarship. A visitor to his house would be overwhelmed by the extent of his library. His style frequently displays his somewhat impish humour. He often provides a useful analogy to re-inforce his point. For example, when noting the arguments on either side about the legality of the conduct of Governor Hindmarsh i n suspending Gouger from his office as Colonial Secretary following a fight with Gilles, the Colonial Treasurer, Hague comments: It was hopeless to expect either side in the Colony to admit any bias of truth in arguments for the other. Their ideas had been

formed before they reached the Colony; and as Wordsworth (according to Oscar Wilde) went about finding in stones the sermons he had already hidden there, so they found in the Foundation Act and the orders in Council what they had already made up their minds ought to be found there.

The breadth of his reading is readily apparent.

The last chapter of this fascinating work is a short biography of Hague by Helen Whitington, who for a long time has had a close association with the Supreme Court, at one time being its librarian. It is not only a fascination account of the life of Hague but many of his contemporaries. It demonstrates how aspects of his work were used by Bray CJ and Zelling J to clarify the effect of the Colonial Laws Act in Gilberston v State

of S outh Australia (1976) 15 SASR 66.

The value of Hague’s work and its importance in determining early law was substantiated by King CJ when he wrote in August 1987 to Hague on the occasion of his retirement as the editor of the South Australian State Reports: It is still the principal source readily available to us of the early history of the law and is frequently resorted to when judges and others wish to acquaint themselves with some point…of our early history.

The endorsement by Bray CJ and King CJ of Hague’s text is shared by the legal historians, Dr J M Bennett and Professor Alex Castles.

The work is an indispensable source for the legal historian, the l egal a c a d e m i c , t h e l egal practitioner, the judge and any student of either law or history.

SCAMMELLS WINS HIGH PLACE FOR EFFICIENCY

A

n Australian wide survey of legal practices based outside CBD cities in each state has identified one of Adelaide’s oldest legal practices as No.2 in Au strali a , in t erm s of management and efficiency.

Mr Graeme Hollidge, Scammell & Co.

The firm, Scammell & Co, based at Port Adelaide, with an office in Franklin St. in the city, was very highly placed, in second position, in the survey undertaken by FRMC L e g a l o f S y d n e y N S W, a n independent body which has specialist skills in assessing the management of legal practices. A notation in the report from FRMC Legal on the survey said , “ …this is a terrific result and one of which the firm should be justly proud …”

‘Overall, the survey activity included a measure of our ef ficiency, revenue improvement techniques and our rate of profitability,” said Mr Graeme H o l l i d g e , Managing Partner of Scammell & Co. “Mr Hollidge went on to say that efficiency translates to a number of issues.

“For clients, it means they can expect prompt processing of their requirements … and that translates to time efficiencies and sensible charges for the services provided … the sort of charges that contribute to on-going relationship with clients.

35

June 2006

Law Society Charity Feature

UNBURDEN YOURSELF June is taxing time for you and your clients and we would like to help. Donate to Riding for the Disabled SA before June 30.

Riding for the Disabled SA provides horse riding related activities for people with disabilities (mainly children). Our 350 riders are helped by around 450 volunteers and 80 horses at 11 RDA centres across SA.

Riding for the Disabled SA 1 Gladstone St, Fullarton, SA 5063 Telephone: 8338 6100 • Fax: 8338 6155 Email: admin@rdasa.org.au • Web: www.rdasa.org.au

36

www.lssa.asn.au

You can help tomorrow by planning today...

A Present for the Future

In Australia, it is estimated that every 18 hours a child is born with Cerebral Palsy.

There is no cure, no prebirth tests and it is on the increase.

Bequests are one of the most meaningful ways for you to make a lasting contribution to Spastics Centre of South Australia, after family and friends have been taken care of.

Your gift will provide valuable funds to help us continue our work.

If you would like more information, please call (08) 8268 5000.

98 Woodville Road (PO Box 49) Woodville SA 5011 T (08) 8268 5000 F (08) 8445 6148 E info@scosa.com.au www.scosa.com.au

Consider the difference leaving a bequest can make...

By providing for St John Ambulance in your Will, you can help to continue the valuable humanitarian services provided by St John Volunteers.

For more information about leaving a bequest to St John Ambulance, please call on 8306 6942.

37

We can arrange to meet with you at your convenience.

June 2006

Law Society

Charity Feature CONSULTING

CONSULTING

HANDWRITING SIGNATURES

FIRE & EXPLOSION INVESTIGATION

Forensic Examination & Identification Over 35 years Experience Former SA Police Expert

Don Gangell PO Box 1127, Flagstaff Hill SA 5159 Phone/Fax (08) 8270 2569 Mobile 0408 815 194

T.N. Cogan & Co

Over 20 years forensic experience on behalf of the Insurance Industry and Legal Profession throughout Australia, New Zealand and the Asian Region.

Mr Simon Cox (B. App. Sc. Grad. Dip.) Forensic Consulting Services PO Box 41, Penola, SA 5277 Phone: 0418 174 069 Facsimile: 8737 2760 Email: simoncox@penola.lscst.net

PROCESS SERVING INVESTIGATIONS MISSING PERSONS Competitive rates and reliable

Cost Consultants 72 Henley Beach Road MILE END SA 5031

8352 3288

Mercantile Commercial Investigators incorporating Adelaide Detective Agency EST IN 1981

55 Gawler Place, Adelaide 5000 GPO Box 2020, Adelaide 5001 DX 446, Adelaide Phone (08) 8231 0777

AJH LAYWERS BARRISTERS & SOLICITORS Melbourne Agency Work AJH Lawyers is an established and successful boutique commercial law firm based in Melbourne’s Central Business District.

We accept agency We have Accredited and referral work in: Specialists in: • Litigation • Business Law • Commercial Work • Commecial • Property Law Litigation • Employment Law • Immigration Level 3, 140 Queen Street, Melbourne Victoria 3000 Tel: +61 3 9602 2235 Fax: +61 3 9602 1947 DX 537 MELBOURNE www.ajhlawyers.com.au info@ajhlawyers.com.au

FOR RENT

COMPUTER SYTEMS

Lawyer’s Room for Rent aul

144 Wright Street, Adelaide • Easy walk to Courts • Lovely renovated cottage

38

Pat McCrohan 8410 7588 www.lssa.asn.au

aker

Computer Systems IT Consultancy supplying: • Desktop and notebook PC products and support • Dragon NaturallySpeaking voice recognition software • Peer to peer networks • ADSL and wireless Internet access

Catering for the sole practitioner and smaller practice Mobile 0412

712 861

CONSULTING

GENERAL

ENGLISH LAW AGENCY SERVICES Fearon & Co

SOLICITORS Established 1825 Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular: • Obtaining Grants of Representation for Estates in England, Channel Islands, Isle of Man and elsewhere. • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including debt Recovery and Matrimonial VISIT OUR WEBSITE - www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 0044 (0) 1483 540840 Fax: 0044 (0) 1483 54844 General Email: enquiries@fearonlaw.com LITIGATION Martin Williams 00 44 (0)1483 540843 mw@fearonlaw.com

PROPERTY John Phillips 00 44 (0)1483 540841 ajp@fearonlaw.com

PROBATE Francesca Nash 00 44 (0)1483 540842 fn@fearonlaw

Regulated by the Law Society of England and Wales

Family Law - Melbourne Marita Bajinskis, formerly of Howe Martin & Associates, Adelaide, is now practising family law at Holding Redlich, Melbourne.

Marita is available to undertake referral and agency work in relation to: -

Matrimonial and de facto Family Court and Federal Magistrates Court Property settlements Superannuation Children's issues Child support Marita Bajinskis Holding Redlich 350 William Street, Melbourne (opposite Family Law Courts) t: +61 3 9321 9771 f: +61 3 9321 9900 e: marita.bajinskis@holdingredlich.com.au

AD DETAILS

boylen

PUBLISHING MEDIA CREATIVE

To advertise in the Bulletin please contact: Nadine Hardwicke Publication Manager Phone: 8233 9408 Fax: 8351 5633 Email: nhardwicke@boylen.com.au

!RE DEFERRED FEES STRETCHING YOUR CASH mOW 4HE INABILITY OF CLIENTS TO PAY THEIR LEGAL COSTS AND DISBURSEMENTS WHEN DUE OFTEN LEAVES 0RACTITIONERS TO lNANCE THEIR CLIENTS DEBT )MPACT &UNDING !USTRALIA S LEADING LEGAL LENDER HAS STRUCTURED PRACTICAL SOLUTIONS BOTH FOR YOUR LAW lRM AND FOR YOUR CLIENT S FEES AND EXPENSES ,OANS FROM TO .O MONTHLY REPAYMENTS ARE REQUIRED &IND OUT WHY SO MANY LAW lRMS ARE NO LONGER DEFERRING THEIR CLIENTS FEES %NSURE YOUR LAW PRACTICE RECEIVES PROMPT PAYMENTS

0ERSONAL )NJURY s %STATE s &AMILY ,AW s $ISBURSEMENT &UNDING

&/2 ! 0%23/.!, 02%3%.4!4)/. 4/ 9/52 0!24.%23 /2 02!#4)#% #!,,

WWW IMPACTFUNDING COM AU

39

)MPACT #APITAL ,IMITED !".

)&3!,"

June 2006

GENERAL

CONSULTING

Compelling Evidence

Judy Morris LEADING ADELAIDE REAL ESTATE SALES CONSULTANT OFFICE: 8132 0255 MOBILE: 0418 816 901

Judy Morris has not earned her reputation as one of Adelaide’s leading Real Estate Sales Consultants by resting her case.

She continues to work energetically and enthusiastically to realise the highest potential from any property listed with her. That’s why she has sold so many of Adelaide’s finest homes, many more than once.

Now that’s a compelling argument, so if you want the maximum result from selling your home, call Judy Morris at Klemich Real Estate... and you be the judge!

klemich POSITIONS VACANT

FOR LEASE

Klemich Real Estate 10 Dequetteville Terrace, Kent Town SA 5067 judy@klemich.com.au www.klemich.com.au

GENERAL

LAWcare 15 Bentham Street, Adelaide – For Lease

U

If you have a problem, speak to the LawCare counsellor Dr Joe before it overwhelms you. Dr Joe is a medical practitioner highly qualified to treat social and psychological problems.

niversity Books Pty Ltd, trading as Unibooks, is a not-for-profit company

specializing in the retailing of academic and professional books to the tertiary market. A South Australian institution since 1929,

experience to: The Chairman, Unibooks, The University of Adelaide, S.A. 5005 by the close

Details:

desire to contribute to this future driven organization to join our Board of Directors.

Parties should send a CV and a statement detailing relevant skills, qualifications or

40

(Old Farmers’ Trustee Building)

• Whole ground floor tenancy of 232m2 in character building • Reception/waiting, meeting room, 5 offices, boardroom, utilities and kitchen • 50 metres from major public car-parks • Approx. 500 metres from Victoria Square Courts • Perfectly suited to legal fraternity • Other lawyers in building

Unibooks invites interested individuals with a

of business June 23, 2006. Ph: 8223 4366

Chris Lucas 0412 191 311

08 8233 5222 91 King William St, Adelaide

www.lssa.asn.au

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely effected by personal or professional problems.

The Law Society will pay $250 per annum of Dr. Joe's professional fees where a gap payment is required.

All information divulged to the LawCare counsellor is totally confidential.

Participation by the legal practitioner or family member is voluntary.

To contact Dr Joe 08 8239 8442 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Willis Australia Ltd

confidential

professional counselling

FINANCE

FINANCIAL ADVICE

Goldsborough Financial Services Pty Ltd AFSL 225330

Providing Professional Services since 1982

CONSULTING

CONSULTING

CONSULTING

CONSULTING ACTUARIES

CONSULTING ENGINEERS

CONSULTING ENGINEERS

PETER MADDERN & ASSOCIATES PTY LTD Expert opinions since 1980

Brett & Watson PTY. LTD.

• Public liability: slips, trips, stairs.

• Third party industrial negligence • Product liability • Planning and licensing acoustics.

Specialising in WORKCOVER SIGN OFF Also • Retirement planning • Investment advice to estates • Investment advice to self managed super funds • Reverse mortgage advice and sign off

For professional actuarial advice on • economic loss • workers compensation • all superannuation issues Contact Laurie Brett or Bruce Watson Phone 08 8232 1333 Fax 08 8232 1324

Australian Technology Pty Ltd Director Douglass Potts BA BTech (Mech Eng) Dip Ed MSAE-A MIEAust CPEng advises that the professional engineers and technicians within the company have expertise and experience to provide testing, analysis and expert opinion in the areas of:

• Minimal charges for inspections in

• Traffic accident analysis

unsupportable circumstances.

• Industrial accident analysis

• Arrangements for defferal of fees

• Slips and lifting injuries

until settlement.

• Noise and hearing loss • Occupational health and safety • Repairs and vehicle failure • Vehicle design and construction

Peter Maddern

• Australian Design Rule compliance

Chartered Engineer

120 Greenhill Road UNLEY SA 5061 Phone 1800 633 630 Fax 08 8373 4544 mail@goldsborough.com.au www.goldsborough.com.au

Master of Environmental Law Master of Regional & Urban Planning

Ground Floor 157 Grenfell Street Adelaide SA 5000

Established City Sole Practice

(Criminal Defence) • Principal retiring • Near courts - modest rent • Walk out - walk in • Rare opportunity • First class office equipment Everything you need, including productive Yellow Pages advertisement and mobile telephone.

FLEXIBLE TERMSPAY AS YOU EARN Confidential enquiries to

The Boxholder, P.O. Box 140 Rundle Mall SA 5000

Fax 8267 6338 pmaddern@olis.net.au PO Box 96, North Adelaide SA 5006

FOR SALE

FOR SALE

Phone 8267 6337

QUESTIONED DOCUMENTS Examination of documents on questions of • identification of handwriting • identification of typewriter • simulation on disguise of signature • counterfeits • substitution of leaves • counterfeit on genuinely signed paper, or forgery above a genuine signature • alterations, insertions, substitutions • chemical and physical erasures • proof of different ink • anonymous letters • recovery of trace or obliterated content • etc Experience in Questioned Documents spanning 30 years in Victorian and South Australian public sector forensic science laboratories and in private practice. Member Australian Society of Forensic Document Examiners. Regular participant in American and Australian programs of competency testing and method validation in Questioned Documents.

MIKE TALBOT-WILSON, B.Sc. (Chem.)

Questioned Document Unit Level 6, 185 Victoria Square GPO Box 618 ADELAIDE 5001 DX 202 Adelaide Phone (08) 8218 4813 Fax (08) 8218 4863 mike@forgery.com.au http://www.forgery.com.au

COST SERVICES

Test Facility T404 (Federal Office of Road Safety) Contact: Douglass Potts, 1 Bendall Avenue, Wayville, SA 5034.

Tel (08) 8271 4573 Fax: (08) 8373 1907

E-mail: wdrpotts@bigpond.net.au

ACCIDENT ANALYSIS

Including: • Drawing Solicitor/Client and Party/Party bills • Preparing Notices of Dispute • Attending at Taxations and Cost arguments • All jurisdictions from Magistrates Court to High Court • No CTP plaintiff matters

HALL TECHNICAL SERVICES Expert opinion relating to all aspects of vehicle accidents including the following: Collision geometry Vehicle speeds Accident avoidance Occupant seating Seat belt wearing Motor cycle accidents Tyre failure Brake failure

FAST TURNAROUND Contact:

Bill Ericson Special Counsel

FINLAYSONS LAWYERS 81 Flinders Street Adelaide 5000 Direct line: (08) 8235 7442 E-mail: wme@finlaysons.com.au

Contact Chris Hall, B.E. (Hons) HALL TECHNICAL SERVICES Suite 3, 1 Irwin Lane, Unley SA 5061

41

Phone (08) 8271 7521 Fax (08) 8271 4745 Email halltech@chariot.net.au

June 2006

CONSULTING HORTICULTURE, VITICULTURE, AGRIBUSINESS • Provide expert reports for litigation support and due diligence •Assess cause of crop damage and economic loss •Conduct arbitration, expert determination, mediation, ADR • Professional senior staff with experience in horticulture, viticulture, plant pathology, nutrition, management, economics •Australia wide and international experience

AAAC Accredited Consultants

CONSULTING

Michael Lynch Family Lawyers QUEENSLAND

Family Law Specialists - Brisbane CONTACT

Michael, Emily or Elizabeth for all agency matters MICHAEL LYNCH FAMILY LAWYERS GPO BOX 332 BRISBANE QUEENSLAND 4001 TEL 07 3221 4300 FAX 07 3221 9454 law@mlynch.com.au www.michaellynchfamilylawyers.com.au

SOLICITORS OVERSEAS

Dr Carol Cayley B.A. (Hons), M.Psych (Clin), Ph.D (Flinders), Dip. T., B.Ed.

Member of the Australian Psychological Society 245 Sturt St, Adelaide SA 5000 Tel: 8211 6366, Mobile: 0412 794 424

Investigation summons and examination summons attendances.

T. (08) 8641 2111 F. (08) 8641 2100 M. 0418 838 807 outbackbusiness@ozemail.net.au

CONSULTING ENGINEERS Providing expert technical advice on accidents, failures and design.

UK Assets in Estate?

• Automotive • Machinery & Equipment • Product • Industrial & Process

For a comprehensive service contact Andrew Hasnip or Mark Abrol (contentious matters) on:Tel: 00 44 121 233 4333 Fax: 00 44 121 233 4546 Email: ahasnip@wilkes.co.uk or: mabrol@wilkes.co.uk

Fellow of the Australian Psychological Society Member of the College of Forensic Psychologists 306 King William St, Adelaide Tel: 8212 1703, Mobile: 0416 232 606 Fax: 8221 6855

FITZGERALD PARALEGAL

P.O. Box 591 PORT AUGUSTA SA 5700

Contact: Paul van de Loo BE Mech.(Hons), MSME (Stanford) Applidyne Pty Ltd, University of Adelaide Commerce and Research Precinct, 35-37 Stirling Street, Thebarton SA 5031 Phone (08) 8234 8211 Fax (08) 8234 8202 email: consulting@applidyne.com.au

We will accept instructions for attendances at Adelaide, Port Adelaide, Elizabeth, Christies Beach and Holden Hill.

Refer instructions to Lesley Cogan.

GPO Box 1967, Adelaide SA 5001 Phone 8352 3288 Fax 8352 3277 DX 269

TETLOW TIGWELL WATCH

Solicitors GPO Box 389, Canberra, ACT 2601 DX 5650 Canberra Tel (02) 6162 5999 Fax (02)6162 5955 Email mail@ttwlaw.com.au

41 Church Street Birmingham B3 2RT England www.wilkes.co.uk

www.lssa.asn.au

ACCIDENT RECONSTRUCTION Expert opinion in motor vehicle accident reconstruction covering paths of travel, approach and impact speeds.

Other areas of expertise include: • Seating position reconstruction • Computer simulation • Brake system examination • Lamp filament examination • Tyre failure analysis • Seat belt worn examination Contact Harry Aust, B.Tech (Mech), M.I.E. (Aust.) on 8338 2382.

Vehicle Systems Eng.Pty. Ltd. PO Box 6000, Linden Park SA 5065 haust@ozemail.com.au

AGENCY WORK MELBOURNE Anderson Rice Lawyers

We are centrally located in CBD, situated close to all Courts and are happy to accept agency and referral work in litigation, commercial law and conveyancing.

Contact: Chris Pollard Level 10, 555 Lonsdale Street, Melbourne, VIC, 3000 Tel: (03) 9672 2682 Fax: (03) 9672 0271 Email: cjp@andrice.com.au www.andrice.com.au

PROCESS SERVERS ATKINSON COMMERCIAL SERVICES Australia wide document service (any jurisdiction) Warrants Real Property Enquiry work Repossession Distraints Locates

We are prepared to accept referrals and agency work in Litigation, Probate, Conveyancing, Commercial and related matters

Ph: 8231 0922 Fax: 8231 0929 GPO Box 1250 Adelaide 5001 atcom@senet.com.au

LINDQUIST PARTNERS

LegalServe*

Advise that they attend and accept instructions for all Investigation and Examination Summons hearings in the Metropolitan area: Adelaide, Port Adelaide, Elizabeth, Christies Beach and Holden Hill.

42

CONSULTING

Dr Jack White B.Sc.(Hons), Ph.D (Adelaide)

PROCESS SERVING REPOSSESSIONS INVESTIGATIONS MISSING PERSONS

CALLING ALL PROBATE PRACTITIONERS

• We can deal with these for you • Fast, efficient service • Competitive fees • Proven track record • Contested Estates/Will Disputes or any Probate Litigation • WE CAN HELP

Psychological opinions on criminal & civil matters

AUST. WIDE SERVICE

Level 24, Santos House, King William Street, ADELAIDE SA 5000

PH (08) 8373 2488 FX (08) 8373 2442 E srhs@srhs.com.au Visit our website: www.srhs.com.au

CONSULTING PSYCHOLOGICAL REPORTS

Contact Ken Cureton, Paralegal Phone: 8223 7966 Facsimile: 8227 0730 Write to: DX 376 or GPO Box 1870, Adelaide, SA 5001 Email: law@lindquistpartners.com.au

"Serving you & Serving your Documents" Member: Institute of Mercantile Agents License No ISL 168126 FAST SERVICE OF YOUR DOCUMENTS ANYWHERE IN AUSTRALIA IN ANY JURISDICTION PROCESS SERVERS - PRIVATE BAILIFFS

8418 1444 82 Flinders Street Adelaide 5000 GPO Box 2664 Adelaide 5001 LegalServe@debtcollections.com.au *A division of National Recoveries & Investigations (NRI) Pty Ltd

J. BOAG & SON RECOGNISED AS ONE OF THE BREWING WORLD’S ELITE.

J. Boag & Son has been awarded a host of Gold Medals at the 2006 Monde Selection in Brussels, the world’s most prestigious beer awards. All of Boag’s core beers received a Gold Medal - James Boag’s Premium, James Boag’s Premium Light, Boag’s Draught, Boag’s Draught Light, Boag’s Strongarm and Boag’s St George - illustrating the extraordinary quality of J. Boag & Son’s beer portfolio.