0712_PDF_ISSUE_LSSA_Bulletin

Seasons Greetings from the Law Society

December 2007 January 2008 VOL. 29. NO.11

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DECEMBER 2007 / JANUARY 2008 Volume 29 Number 11

Three Months at UNHCR Geneva

By Prabha Nandagopal, Phillips Fox

8 Cover Photo - SXC

CONTENTS Features:

Columns:

First Year Students and The New South Australian Supreme Court Rules on Pleadings: part two........................................................20

President’s Message ......................................................................................................... 4

Legal News:

Taxfiles.............................................................................................................................................................16

Requests by Medical Experts for The State of Prisons in SA: A Systemic Failure

Judgments..............................................................................................................................................30

A LSSA HRC Reports................................................................................................... 6

Murray Information Resource Centre ...............32

HREOC Case Spotlight ....................................................................................10

Conference Listing.......................................................................................................33

Profile: Selvie Demiri, Legal Services Commission...........................................................................................19

Gazing in the Gazette.........................................................................................34

Class of 1987 Reunion ........................................................................................25

Diary Dates ........................................................................................................................................37

Bulletin Article of the Year ...................................................................26

Classifieds...............................................................................................................................................41

Riskwatch................................................................................................................................................14

On the Road.....................................................................................................................................31

Moving On, Moving Up .................................................................................36

From the Editor - December 2007 / January 2008

is the poorer A ustralia with the passing of

The motivation then became acute when his brother Ted who’d worked at the same plant - died of the asbestos-related illness, mesothelioma. Though facing a continual personal fight with his own illness, he proved a tireless public voice fighting for the rights of all victims of asbestos-related diseases.

asbestos campaigner Bernie Banton. Mr Banton, who died at his home on November 27, will be remembered as the man who led and won the drawn-out battle for compensation from the building products giant James Hardie. At his State Funeral, his widow Karen said that he wanted to be remembered as Throughout it all, he remained "Bernie Banton - fighter for determined that James justice for all."

Hardie should not get away with what he described as Banton had worked for the the worst corporate scandal James Hardie company from 1968 to 1974. In 1999, in Australia’s history.” James he was however diagnosed Hardie produced a product with asbestosis. When his that they knew killed people personal claim was settled for 53 years,” he once said. in 2000 he received $800,000, but continued campaigning His major battle was waged on behalf of others who’d also this year, when he won a second personal compensation contracted the disease.

First Year Students & the New South Australian Supreme Court Rules on Pleadings, part two

By Andrew Alston, Margaret Davies, Jane Knowler, Mark Rankin and Christina Son, Flinders University Law Faculty*

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claim from a James Hardie subsidiary, Amaca.

He was well known to millions of Australians for his dogged determination to see justice done for the victims of asbestosis. That justice came in December last year, when after a six year battle, Hardie’s agreed to a $4 billion compensation package for sufferers extending over 40 years.

'While Banton's night shift job combining cement, silica and asbestos into a wet slurry would take him on a journey of sickness, pain and death, it would also see him remembered as one of Australia's great working class champions of justice.

Collaborative Law

By Lorraine Logich

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Nick Ramage bulletin@lawsocietysa.asn.au

November 2007

Grant Feary

President’s Message YEAR, following E VERY the election of the new Council of the Law Society, the members of the Council set aside a Saturday morning to discuss some substantive issues which have not been able to be considered in detail during the Council’s monthly meetings on Monday evenings.

This year the “Half Day Council Meeting” was held on 10 November 2007, a beautiful, sunny Adelaide morning, and, of course, Pageant day.

such a Commission. There are several models available to be examined, for example, those contained in (separate) Bills introduced in Parliament by Mr Kris Hanna M.P. and the Hon. Sandra Kanck M.L.C. Ms Kanck’s Bill has been read a second time in the Legislative Council and is now proceeding to the committee stage.

The Society now needs to consider in detail the various models of anti-corruption

"The Law Society Council resolved to continue working on this proposal and will soon seek to consult with the judiciary."

A significant matter discussed at this meeting was whether or not the Law Society should add its voice to those voices calling for the establishment of an Independent Commission Against Corruption (“ICAC”) in South Australia. After a presentation from Mick Symons, a former South Australian policeman and now Executive Director of the Investigation Division of the New South Wales ICAC and then some very interesting debate about the potential pro’s and con’s of an ICAC, the Council resolved that it supports, in principle, the establishment of an ICAC in South Australia, and that the Society wishes to participate in the drafting or development of any model for

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commissions as there is interesting debate as to whether or not such corruption commissions should or should not be a law enforcement body (as is the W.A. commission) or an investigative and educative body (as is the N.S.W. commission) or whether it should have jurisdiction over, for example, police matters. I look forward to reporting to members of the Society further about this issue.

Another issue which was discussed at the Half Day Council Meeting was the issue of a Judicial Appointments Commission . There has been substantial debate in legal journals and the press over recent years as

to the consultation process undertaken in the appointment of judicial officers and the criteria which should be applicable.

In the UK a Judicial Appointments Commission was established under the Constitution Reform Act, 2005.

The Law Society Council resolved to form a small working group to examine the various models for the establishment of a Judicial Appointments Commission and, in particular, the UK model, given that it has now been up and running for some time.

A yet further substantial and interesting matter which the Half Day Council Meeting considered was the potential for the establishment of a separate Administrative Appeals Tribunal in South Australia. The proposal is that such a tribunal would exercise the administrative jurisdiction currently exercised by the District Court of South Australia and replace the many separate tribunals currently operating in this State, along the lines perhaps of the tribunals established in Victoria and Western Australia. The Law Society’s Administrative Law Committee has done substantial work on this proposal, which has the potential to greatly simplify the administration and regulation of a substantial number of State Acts. For example, the Administrative and Disciplinary Division of the District Court has a general review jurisdiction given to it by at least 52 Acts, as diverse as the Freedom of Information Act, 1991 and the Boxing & Martial Arts Act, 2000. In addition, of course,

November 2007 there are a number of specific tribunals established under particular Acts. One would have thought that a simplified system of administrative review would also be less expensive overall than the current system, although obviously further work needs to be done.

The Law Society Council resolved to continue working on this proposal and will soon seek to consult with the judiciary.

Further discussions were held at the Half Day Council meeting concerning the listing process and delays encountered in both the Criminal and Civil jurisdictions of the Courts and, in particular, the District Court.

We discussed the Criminal Justice Ministerial Taskforce which has been set up to take

"I wish all members a happy, safe and peaceful Christmas and holiday season." further the issues raised by the Report written by Judge Rice last year. The Law Society and, in particular, its representative on that Criminal Justice Taskforce, Mr George Mancini are continuing to work with the Taskforce to look at what the Courts and the profession can do to alleviate the listing delays. This Criminal Justice Taskforce looks, unfortunately, of necessity, to be a permanent fixture. The Society again thanks George Mancini for his extensive work on these and other issues.

In relation to civil matters, I am interested in examining

potential ways of streamlining the process of listing matters for trial and will be working with the Society’s Civil Litigation Committee over the coming months on this proposal.

I thank Council members for their attendance at the “Half Day” meeting, for their contribution to the debate of these important issues, and for giving up – in the service of the Society – a particularly gorgeous Saturday morning.

These issues we discussed on Pageant day, plus all of the

normal issues to be dealt with by the Society, including legislative review and consultation, will mean that the Law Society will have an extremely busy 2008. The Legal Profession Bill, will, despite some hold-ups in Parliament, in all likelihood still be proclaimed into operation on 1 July 2008, and will also take substantial time and effort.

On behalf of the members of the Law Society Executive, Council and staff, I wish all members a happy, safe and peaceful Christmas and holiday season.

President’s Activities 12 October 2007– 11 November 2007 n addition, the President (M Kelly) attended a luncheon hosted by the Litigation Assistance Fund on 12 October, and delivered an update at the Country Update held in the Barossa on 12 October; attended a meeting of Lawguard Management Pty Ltd on 15 October; opened the “Justice and the Law” day of the Governor’s Leadership Foundation on 16 October; attended the opening of SMSF Professionals Association of Australia’s offices; and hosted

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a pre-conference dinner on 17 October; opened the Succession Law Conference, and hosted the Senior Practitioners’ and Honorary Members’ Luncheon, and met with Ms Vicki Chapman MP, and met with Ms Isobel Redmond MP/The Hon Robert Lawson MLC on 18 October; attended the “Both Sides of the Fence” Conference on 19 October; met with The Hon Mark Parnell MLC/The Hon Sandra Kanck MLC, and chaired a meeting of the Council on 22

October 2007. As Immediate Past President, Ms Kelly met with Mr Kris Hanna MP on 23 October; attended a meeting with officers of the AttorneyGeneral on 30 October; attended a meeting with Independent MLCs on 31 October, spoke to a reporter from the Sunday Mail in relation to a compensation matter on 9 November 2007.

The President (G Feary) spoke to the Advertiser and on ABC 891 in relation to his Presidency on 22 October; attended a

meeting of the Federal Court Liaison Committee, and the University of Adelaide’s Administrative Law Student’s Forum on 25 October; attended the Annual Dinner of the South Australian Bar Association on 26 October; met with the Chief Magistrate, and chaired a meeting of the Council on 29 October; spoke to The Australian about a judicial appointment on 30 October, chaired a meeting of the Executive on 5 November; opened the CRASH 2007 seminar on 9 November 2007.

November 2007

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The State Of Prisons In South Australia: A Systemic Failure LSSA Human Rights Committee he following article is derived from a summary of the full report on current conditions within the SA prison system and reform recommendations, submitted to the Correctional Services Advisory Council by the Rights Committee of the Law Society of South Australia.

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In August 2007 the Human Rights Committee of the Law Society of South Australia submitted a report to the Correctional Services Advisory Council established under the Correctional services Act 1982 (SA) on all aspects of the prison system, reform of legislation and particularly on the deplorable and overcrowded state of all South Australian correctional facilities including the Adelaide Remand Centre.[i] This commentary is an edited version of that report. Much of the detailed reference material particularly case and text references, content of relevant international instruments in the report has not been included. It should also be noted that the Department for Correctional Services was forthcoming with assistance in arranging the visits and providing other information as were staff and management at all the relevant facilities.

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The systemic failure of the entire prison system is not to be attributed to the Department, and does not reflect on the integrity and professionalism of management and officers at the various facilities. Their high level of commitment and

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professional approach was evident in all areas. For instance the education and library facilities and the prisoner work areas which include furniture and engineering fabrication at Yatala are of an extremely high standard but the services and placements available for prisoners remain greatly restricted by limited resources.

In its Annual Report of 1999/2000 the CSAC foreshadowed a review of the Act to address issues such as ‘the Act be enabling rather than prescriptive’; ‘a legislative focus on rehabilitation rather than punishment’; ‘minimum standards, with a clear statement of the duty of care to prisoners and a restatement of responsibilities to key stakeholders’; and ‘structured processes of community participation with participation of Indigenous organisations being of particular importance.’

None of that happened.

There have been significant developments and changes in the legislative frame work for corrections institutions interstate and overseas and usually this has followed upon widespread independent enquiries.

More recently,

there has been a movement to introduce an entirely new ‘human rights’ based approach to prisoners’ rights within such legislation.[ii] This is not likely in South Australia which proudly boasts the toughest criminal laws and conditions anywhere in Australia.

as is now becoming the norm in South Australia.

"Woolf, Lord Justice: Prison Disturbances, April 1990: Report of an Inquiry; London: The Stationary Office, 1991, 1.149."

There is a crisis within the pri son syst em in S outh Australia which must be addressed. A thorough review should be undertaken as soon as possible into the Correctional Services Act 1982 and the regulations under that Act with repeal and putting forward a ‘model’ set of bills to replace the existing regime for the management of pr i s on s , in d e p en d ent inspectorate and parole systems. That review should be accompanied by an equally urgent independent enquiry into the entire sentencing system including bail law and the crisis within the prisons resulting from inadequate facilities, overcrowding and lack of resources for the treatment of the physically and mentally ill, for the provision of adequate education and rehabilitation programs.

The deprivation of liberty and confinement resulting from imprisonment is the punishment. It does not serve the proper ends of the criminal justice system to treat prisoners harshly or by imposing inhumane conditions

A review of the Correctional Services Act 1982 and Regulations should be undertaken by an entirely independent person with appropriate experience and qualifications in the criminal justice system and able to

‘[There are] three requirements which must be met if the prison system is to be stable: they are security, control and justice. “Security” refers to the obligation of the prison service to prevent prisoners escaping. “Control” deals with the obligation of the prison service to prevent prisoners being disruptive. “Justice” refers to the obligation of the prison service to treat prisoners with humanity and fairness.’

'There are three requirements which must be met if the prison system is to be stable: they are security, control and justice.'

commission outside assistance and research from experts in the fields of penology, Indigenous issues, mental health, women’s imprisonment, juvenile justice and custodial sentences, education, rehabilitation, drug treatment and counseling programs in prisons and all other relevant areas.

The draft legislation should in its purposes and in substance refer to and adopt all relevant international and national standards on the rights of prisoners including juveniles and all relevant recommendations of the Royal Commission into Aboriginal Deaths in Custody.

The package of proposed legislation should comprise separate Acts dealing with the entirely separate functions and roles of: • The management of corrections institutions which includes the provisions setting out the rights of

prisoners following the model of the Crimes (Sentence Administration) Act 2005 (ACT):

• A parole authority established as a statutory body with proceedings subject to the rules of natural justice and rights of representation.

An appeal should lie to an administrative appeals tribunal and from there to the Supreme Court.

The authority should be entirely independent of the executive and beyond any external interference with its decisions other than through appropriate appeal or judicial review process.

• An independent inspectorate of correctional services modeled on the Western Australian Office of the Inspector of Custodial Services, having the same powers as the Ombudsman to monitor prison conditions, to conduct mandatory and other inspections as and when necessary of all facilities including police cell blocks and court custody areas. The office of the inspectorate should have power to commission special one off reports on any areas of concern dealing with general conditions, enforcement of the standards for prisons and also to investigate individual complaints. That office should have power to issue orders determinative of any particular complaint with such determinations being subject to appeal rights and judicial review; [iii] and

This summary of the original and detailed report has been prepared by Nicholas Niarchos AM, as Chair of the Human Rights Committee of the Law Society of South Australia .

The views expressed in the summary and the final report are strictly those of the Human Rights Committee, and team involved in prison visits, and they do not reflect the official position of the Law Society or its members.

[i]

The final report was the product of a collaborative effort by the HRC. Valuable research and contributions have been provided by a number of members including Rebecca Aoukar, Geoffrey Britton, Justinia Dolgopol, Christopher Charles, Tracee Micallef and Matthew Stubbs.

[ii] See, for example, on the changes in penal and sentencing policy which came into effect in the UK in 1960s with a view to reducing the prison population the discussion in Andrew Ashworth, Sentencing and Penal Policy, Weidenfeld and Nicolson, 1983, at 112-113; the author goes on to refer to studies which show that ‘…reconviction rates following longer term of imprisonment are no better than those which follow short terms of imprisonment-which seems to suggest that neither the reformative nor the individual deterrent effect of imprisonment increases with the length of incarceration,’ at 125. [iii] For instance see the Inspectorate of Custodial Services [WA] established under the ‘The Office of the Inspector of Custodial Services was originally established by the Prisons Amendment Act 1999. It commenced operations in June 2000. The role of the Office is to bring independent external scrutiny to the standards and operational practices relating to custodial services within the state. The Office, which falls within the general portfolio responsibility of the Minister for Justice, is answerable directly to the Parliament.’ [Statement from the WA: Office of the Inspector of Custodial Services website accessible at http://www. custodialinspector.wa.gov.au

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Three months at UNHCR Geneva: A Law Foundation Internship Report

By Prabha Nandagopal, Phillips Fox

detained for 7 days in London’s Oakington Reception Centre, before he was granted refugee status. He contested the validity of his detention, and after exhausting all domestic legal avenues in the UK, took his case to the ECHR. The case was narrowly rejected at first instance and an appeal was lodged in the Grand Chamber. It was at this stage UNHCR were granted leave to intervene.

Prabha Nandagopal in Geneva 2007 I began O nmy7 January second internship

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with the United Nations High Commissioner for Refugees (UNHCR), this time at the organization’s headquarters in Geneva, Switzerland. It was a world away from the tropics of Bangkok where I had spent last summer interning at the regional UNHCR of fice.

Nestled in the heart of Europe, Geneva is the international diplomatic hub of the world.

Geneva initially gained international recognition when it became home to the League of Nations, since then it has become European headquarters of the United Nations and attracted scores of multinational corporations, N G O’s a n d i n t er n a t i o n a l organizations.

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I wanted to intern at the UNHCR headquarters in order to improve my knowledge of international refugee law and experience the practical realities of working within the United Nations in Geneva .

The experience I gained was priceless and could not be obtained by reading a text book, attending lectures or working in a law firm.

For the 3 month duration I was placed in the Protection Operations and Legal Advice

Section of the Division of Int e r n a t i o n a l P ro t e c t i o n Services. The most challenging and emotionally exhausting assignment I received was drafting legal submissions for UNHCR’s input into an arbitrary detention case in the European Court of Human Rights (ECHR). The case Saadi v United Kingdom raised complex issues on the relationship between regional human rights and international human rights and refugee law. The case was about an Iraqi refugee who was

Being a strong advocate against Australia’s mandatory detention policy I found this case particularly difficult to grasp. Over the past two years I have watched many asylum seekers slowly and painfully waste away in Baxter Detention Centre to the point where they were on anti-depressants or admitted to Glenside Hospital.

Also, like many members of the community, I had felt shame and anger over an immigration policy that would lock up children, not to mention, a man for nearly 7 years only to release him when public opinion finally voiced in the all important election polls. As one can imagine with this background in my head, I felt like screaming when I read that this case had reached the Grand Chamber of the European Court of Human Rights over seven days of detention. In the beginning I thought the Oakington regime was brilliant, refugee advocates in Australia would jump at

"Being a strong advocate against Australia’s mandatory detention policy I found this case particularly difficult to grasp."

"Another fascinating side event involved a panel of leading human rights experts in Sri Lanka" the idea of detaining certain groups of asylum seekers for only 7 days to ‘fast track’ their claims. However, what I learnt is that detention, irrelevant of the duration, is inherently undesirable, it is a major violation of personal liberty, and should be avoided. What is important is the purpose of the detention, and whether this purpose can be achieved by less intrusive measures. UNHCR encourages States to take measures that serve the timely adjudication of asylum-claims and has therefore not objected, for example, to the creation of central reception facilities, where asylum claims can be processed in a speedy and efficient manner. The objectives of accelerating and increasing t h e e f f i c i e n c y of a sy l u m procedures are legitimate, consistent with human rights and it is ultimately in the interest of refugees to have their status acknowledged without delay. The problem that arose with the detention regime at Oakington was that the primary objective appeared to be to promote speedy decision making. Therefore the question arose, whether this objective, the availability of the asylumseeker for the speedy conduct of the procedure could not be achieved by a less intrusive measure, short of detention; for example by an obligation to reside in a reception facility and to report every day at a given time in order to inform the applicant of, to summon him or her to scheduled interviews or to serve decisions. The issue

of administrative detention of this kind has not been judicially considered by the ECHR. The case is set to go before the Grand Chamber of the ECHR on 18 May 2007 and whichever way the case is decided there will be significant ramifications for EU asylum law.

My last two weeks of the internship were spent observing the fourth session of the newly established Human Rights Council. Rather than the deliberations of the Human Rights Council, each day I would look forward to attending the side events sponsored by NGO’s.

The side events I attended were fascinating as they presented an unpoliticised version of human rights abuses.

One side event I attended was sponsored by the International Commission for Jurists, it highlighted the plight of Tibetan refugees, and in particular the human rights violations committed by the Chinese authorities toward this minority. Video footage was presented that captured the Nangpa Pass killings that occurred on 30 September 2006. The footage was taken by an eye-witness to the event and clearly showed the Chinese Border Security Of ficers taking aim at a group of Tibetans refugees attempting to escape Tibet through the Nangpa Pass into Nepal. The Chinese government were not conclusive or consistent in providing an explanation for the killings, they gave differing

responses including arguing it was self defense, an accidental incident and that it was normal border security.

Another fascinating side event involved a panel of leading human rights experts in Sri Lanka. The audience included delegates from the Sri Lankan Government and the Sri Lankan Tamil community. The human rights crisis in Sri Lanka was high on the list of issues for the Human Rights Council so tensions were high. By observing the heated debates I realized that the most difficult aspect of this decade old conflict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam is that it has become so difficult to ascertain the truth, decipher fact from fiction. When reports are made by NGO’s and Tamil human rights activists, they are often blatantly denied by the Sri Lankan Government and vice versa. What was evident is that for every argument those opposed to the practices of the Sri Lankan Government had, the Government had an extremely well prepared rebuttal for and again vice versa.

It was incredible to watch how diametrically opposed these two groups are, there is not even an ounce of compatibility or recognition of the other side’s point of view. What was immediately evident is the complex and intricate nature of this long standing battle.

This observational element of the internship was extremely rewarding. Throughout the

three months I was given the opportunity to attend and observe on behalf of UNHCR several conferences and highlevel meetings. In February 2007, I attended the Working Group of Experts on People of African Descent conference on ‘racial profiling’. Here I was able to grasp an understanding of the phenomenon of racial profiling which is highly pertinent to race and religious issues in Australia.

The many highlights of the internship made it difficult to select the ones to share.

However when I think back on my three months at UNHCR two aspects shine bright.

Firstly, the unique atmosphere that encapsulates what the United Nations stands for. This atmosphere was comprised of people from almost every country in the world. It was a great honour to be part of such a rich and diverse community.

Secondly, attending sessions o f Tr e a t y B o d i e s a n d witnessing implementation of international law was an incredible experience. There is so much skepticism in this world about the value and effect of international law. Observing treaty bodies such as the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child, report on specific countries was encouraging.

I would like to sincerely thank the Law Foundation for granting me a scholarship to undertake this internship.

It has positively influenced my life both personally and professionally. I look forward to using this experience to not only pursue my career in international human rights law but to educate the community about refugee issues.

November 2007

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HREOC case spotlight: Access Denied: Standing of a human rights organisation to commence discrimination proceedings By: Brook Hely, Senior Lawyer, HREOC Legal Section

recent decision of the A Federal Court, Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council,[i] has found that a disability rights organisation did not have standing to commence discrimination proceedings in relation to inaccessible bus stops.

The decision suggests that incorporated bodies maybe limited in their ability to commence federal discrimination proceedings in relation to matters affecting their members.

Background Access for All Alliance (Hervey Bay) Inc (‘AAA’), an incorporated association, is a volunteer community group established to ensure equitable and dignified access to premises and facilities for all members of the community.[ii] In 2005, AAA brought proceedings against the Hervey Bay City Council (‘the Council’ alleging that a number of bus stops that had been built or significantly upgraded since the commencement of the Disability Standards for Accessible Public Transport 2002 (‘the Transport Standards’) did not comply with those Standards.

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Council’s application for summary dismissal The Council sought summary dismissal of AAA’s proceedings, on the basis that AAA lacked standing. The application alleged that:[iii] • there was no statutory basis giving standing to a person to enforce a breach of the Transport Standards; and • AAA was attempting to assert a bare public right or duty, which was only available to a person with a ‘special interest’ in the matter, or otherwise the Attorney-General or someone acting with his fiat.

The Court rejected the above arguments.[iv] It found that the definition of ‘unlawful discrimination’ under the Disability Discrimination Act 1992 (Cth) (‘DDA’) clearly included a breach of the Transp or t St and ard s.[v] Furthermore, the Court found that standing to commence proceedings for unlawful discrimination under the DDA derived not from general law principles of standing, but from the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’).[vi] The Court held that the HREOC Act made clear that a ‘person aggrieved’ by

unlawful discrimination was entitled to lodge a complaint with the Human Rights and Equal Opportunity Commission (‘HREOC’). Upon termination of that complaint by HREOC, the person is entitled to commence proceedings in the Federal Court or Federal Magistrates Court.[vii] ‘Person aggrieved’ – HREOC’s acceptance of the complaint On the question of whether AAA was a ‘person aggrieved’ by the Council’s alleged noncompliance with the Transport Standards, AAA argued that this was a question already determined by HREOC at the time of accepting the complaint. If the Council had wished to dispute this decision, it’s recourse was against HREOC under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘AD(JR) Act’).[viii]

The Court also noted that, whilst incorporated associations are typically community organisations and should not ordinarily be equated with trading corporations, they are nevertheless bodies corporate which may sue or be sued in their own name. The interests of its members are therefore ‘arguably irrelevant’.[xii] ‘Person aggrieved’ – findings

The Court disagreed. It found that such a construction was contrary to Parliament’s intent under the HREOC Act of creating a complaints handling procedure that was efficient and unburdened by legal technicalities.[ix]

The Court ultimately found that AAA was not a ‘person aggrieved’ for the purposes of the HREOC Act in relation to the Council’s alleged breaches of the Transport Standards.

In essence, the Court was persuaded by the Council’s oral arguments that, whilst AAA’s members used the relevant bus stops, AAA did not.

Consequently, AAA’s interest in the Council’s non-compliance with the Transport Standards was merely ‘intellectual or emotional’.[xiii]

‘Person aggrieved’ – principles

Possible exceptions

The Court outlined a number of principles regarding whether an applicant is a ‘person aggrieved’.[x] For example, the

The Court left open the prospect that an incorporated association may have standing as a ‘person aggrieved’ if a particular matter affected the interests of all of its members. [xiv] The Court also distinguished the case of unincorporated associations.[xv]

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Court observed that it was not sufficient that an applicant has merely an ‘intellectual or emotional’ interest in the matter.[xi]

The Court also acknowledged that an organisation may be

Transport provides society’s circulation system, infusing and connecting its various facets. ‘aggrieved’ where a matter affects the organisation itself, such as if an organisation is refused a lease over premises due to its members having disabilities.[xvi] Finally, the Court hinted that an incorporated organisation may be a ‘person aggrieved’ if it could establish that it was sufficiently recognised as a representative peak body on the issue, although suggested that this was ‘of somewhat debatable significance’.[xvii] Reflections The Transport Standards establish a comprehensive code for the accessibility of public transport, covering both conventional public transport

(ie. public buses and trains) as well as commercial transport (ie. airline travel and taxis). The Standards were devised following extensive consultation with government and transport representatives, as well as the disability community. The Standards do not establish an ideal standard, but a minimum standard, with which non-compliance is unlawful.[xviii] The Courts have yet to consider the operation of the Transport Standards. It is therefore perhaps unfortunate that the Court’s decision in AAA was in the context of an application for summary dismissal and thus without the benefit of complete evidence and argument on the matter.[xix]

In particular, a full hearing of AAA’s application may have provided a greater opportunity for the Court to consider the purpose, scope and operation of the Transport Standards and w h eth er a broader interpretation of ‘person aggrieved’ is perhaps necessary and appropriate to ensure that the Transport Standards are fully effective.

Transport provides society’s circulation system, infusing and connecting its various facets. It enables employees to go to work, customers to reach shops, and friends and families to socialise and travel. Inaccessibility of public transport and its infrastructure is therefore a concern that transcends the interests of individuals within the disability

community. It is a matter that aggrieves society at large.

For a copy of the decision in AAA, go to http://www. austlii.edu.au/au/cases/cth/ federal_ct/2007/615.html For a copy of the submissions filed in AAA by the Acting Disability Discrimination Commissioner as amicus curiae, go to http://www. humanrights.gov.au/legal/ submissions_court/amicus/ hervey_bay.html [i] [ii] [iii]

[iv] [v] [vi] [vii] [viii] [ix] [x] [xi] [xii] [xiii] [xiv]

[xv]

[xvi] [xvii] [xviii] [xix]

[2007] FCA 615.

Ibid [6].

Ibid [15]. The Council also relied on the ‘equivalent access’ provisions under the Transport Standards, although this argument was summarily rejected: [70]-[72].

Ibid [22]-[34].

Ibid [31].

Ibid [33]-[34].

Ibid [31], [34].

Ibid [36].

Ibid [38]-[39].

Ibid [37]-[51].

Ibid [41].

Ibid [49]-[50].

Ibid [67].

Ibid [60], distinguishing Manuka Business Association Inc v The Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592.

Ibid [58], distinguishing Executive Council of Australian Jewry v Scully (1998) 79 FCR 537.

Ibid [46], [54].

Ibid [63].

DDA, s 32.

This issue is dealt with at [65]-[67].

The Indigenous Law Student Mentoring Program h e Indigenous L aw StudentMentoringProgram started in 2006 for students studying law at university in SA.

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The innovative program aims to assist and support indigenous law students while they are studying and to then move into legal practice. Mentoring

enables students to benefit from having guidance and support as well as getting some assistance with assignments, meeting other lawyers, obtaining work experience and forming long-lasting friendships. The mentors are lawyers working in a wide range of areas of law.

The number of students

participating in the program n o w c o n t i n u e s t o g r o w.

Students have been ver y positive about the friendliness of the mentors and the support, guidance and opportunities the program is providing for them.

The program is set to expand in 2008 with the assistance

of sponsors such as BHP and Finlaysons.

If you are interested to know more about the mentoring program you can contact; Michael Colbung at the University of Adelaide - on michael.colbung@adelaide. edu.au or telephone 8303 4967

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November 2007

Perspectives An Illustrated Series of the judges of the South Australian Supreme Court

By John Emerson Sketch of Justice Bundey by Fiona Cameron

Perspectives An Illustrated series of the judges of the South Australian Supreme Court

By John Emerson John Emerson has published two books on South Australia’s legal history and Fiona Cameron has published a collection of poetry and art. To buy or find out more visit your local bookshop or visit online www.papinian.com.au

Fa r m , Pa r i s h o f E x b u r y, Southampton. But in the report of his death in The Advertiser the following year, it states that Sir Henry Bundey was born in 1833 at Bashley Manor, near Leamington, England.

He arrived in South Australia in 1848 at probably ten years old with his family. His father died shortly after and his mother was left to bring up the five children on her own. Henry that year – either at ten or fifteen - started working in a solicitor’s office.

In 1857 Henr y started articles with Erasmus Gower i n Wo o d si d e , e v e n tu a l ly completing them with John Bagot in Adelaide in 1865. He worked in between as a clerk of the local court.

Education in 1874, he was responsible for the legislation bringing the University of Adelaide into existence.

Ironically, he had only had one year of formal education.

He rapidly built his reputation as a criminal lawyer and was appointed silk in 1878. His reputation rested on his passionate attention to detail and a mastery of juries. One of biggest successes involved a Scottish mariner, Captain Cameron , who was being prosecuted after his vessel ran aground near Troubridge Lighthouse.

There appears to be a conflict in the date and place of his birth. The 1908 edition of Fred John’s Annual – the predecessor to Who’s Who in Australia – records Henry Bundey as being born in 1838 at Blackland’s

According to The Advertiser, Henry “placed the captain’s conduct and previous career in such a light before the jury that when asked for their verdict they rose as one man and said ‘Not guilty’, and as they filed out

Wiliam Henry Bundey (Illustration by Fiona Cameron) William Henry Bundey Justice Supreme Court of South Australia 2 July 1884 to 30 November 1903

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Born 30 January 1838 Died 6 December 1909 y Bundey was S iro nHenr e of the leading criminal lawyers of his day, and as Minister of Justice and

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of the jury box they approached to where the captain stood by his counsel and each of them shook hands with him.”

Henry Bundey entered parliament in 1871, representing the Onkaparinga district.

As well as being the State’s first minister of justice and education, when he endowed the University of Adelaide with its first five acres on North Terrace plus another 50,000 acres in the country, he was Attorney-General from 1878 to 1881 in the Morgan ministry.

He frequently made himself ill from over-work and in 1881 he resigned and took his wife and daughter to Europe.

W hen he was of fered the jud ge ship h e app a re ntly hesitated as his earnings at the bar were around 5,000 pounds a year, three times a judge’s salary then (and fifty times a tradesman’s). But he accepted and sat for nineteen years.

Finally his health gave way and he was permitted to retire with a pension of 1,300 pounds.

His great passion outside of his family was yachting, and he apparently knew South Australia’s coastline intimately, spending days alone at sea living off a mainly fish diet.

He died six years after retiring at his Mount Lofty home, ‘Stonehenge’ after a long illness and was survived by his wife and daughter, both named Ellen.

Michael David Justice Supreme Court of South Australia Since 6 July 2006 Born 25 October 1944 efore being appointed to

B South Australia’s District

Court in 1996, Justice David was one of the State’s most prominent criminal barristers.

He defended and prosecuted in some of the best-known criminal trials of the day, often murders.

One of the biggest criminal briefs of his career was the defence of three men between 1991 and 1993 who were accused of war crimes. The case required travel to the Ukraine. With junior counsel Lindy Powell – who was appointed silk in 1994 – they were confronted far from the security of Adelaide with the harsh legacy of the Soviet years. Their toils required a 600-kilometre drive one icy night from Pinsk to Kiev, and a flight in a plane with electrical tape attached to one wing.

Born in Adelaide, Michael David completed his schooling at Rostrevor College. He developed a passion for cricket during his time at Rostrevor, and also for the history of the two world wars that would later help his understanding

of the war crimes case. He did not have any particular interest in the law at first, even when he decided to study it at university.

But shortly after taking articles with Stevens Jacobs Mellor and Bollen, he was given the job of dealing with traffic matters in the Magistrates Court. This was his first exposure to court and he immediately recognised that this was where his future lay. He made the decision then to become a barrister.

He remained with the firm after being admitted in 1969, but joined Bar Chambers in 1973.

The independent bar then numbered barely half a dozen barristers, who were almost all at Bar Chambers. He was very grateful to find that the founder of the bar, Christopher Legoe, charged low rent to the younger members of chambers and would provide work to establish them.

Michael David began attracting his own work, taking ‘dock briefs’ and work referred from the Law Society, supplemented with regular briefs from the Crow n P ro s e cutor, of t e n requiring trips to circuit courts.

He rapi d ly d e v e l o p e d t h e reputation for being able to identify core issues at stake in a case and for highly effective cross-examinations.

His Hon. Justice Michael David

He was appointed silk in 1986.

By 1994, Bar Chambers had grown and the independent bar itself had spread into a dozen set of chambers with a hundred barristers. Michael David founded his own chambers in Angas Street together with two other successful criminal barristers, Ann Vanstone – now a judge also of the Supreme Court – and Ian Sampson. The chambers were named after Christopher Legoe and in 2004

moved to Gouger Street to accommodate its increasing membership.

Justice David was married to his second wife Rosemary in 1982 and has five children.

His daughter Sophie joined the independent bar in 2003 at Edmund Barton Chambers.

He remains deeply passionate about cricket and the history of the world wars, and keeps fit at the gym.

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November 2007

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.

LAW CLAIMS MANAGEMENT

by Libby Bishop, Director, Law Claims

from experience W et hknow at when a claim is made against a practitioner it can be a difficult and stressful time. Law Claims welcome calls from practitioners who are concerned a claim may be made against them or their firm. We thought an article s e tti n g o u t L aw C l a i m s approach to the management and resolution of such a claim would be helpful to practitioners.

Our aim is to facilitate the prompt resolution of claims against legal practitioners with fairness and integrity. At all times the confidentiality and professional reputation of the practitioner is paramount in our minds. Our objectives of equitable, economic and efficient claims resolution take into account; •the continued provision of adequate professional indemnity insurance to the legal profession for civil liability; • advantageous policy coverage; • affordable premium rates;

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• minimisation of claims by risk management education, counselling and practice management advice.

Early notification often allows for rectification. We do not interfere with the solicitor / client relationship. Provided th e cli e nt i s aw are of th e circumstances giving rise to concern, the client may wish to have the practitioner continue to manage the file. We are then available to discuss and advise on the ongoing management of the claim.

Throughout the claims management process, Law Claims solicitors need to take into account the component parts which include; • the right of the practitioner to indemnity and defence under the terms and conditions of the policy; • the interests of the legal profession of South Australia under the provisions of the mutual Professional Indemnity Fund; • the interests of the Underwriters of the Scheme;

• the sound financial standing of the Professional Indemnity Fund; • the entitlement of a client who has suffered loss through the negligence of a legal practitioner to compensation.

As these components must all be considered and weighted against each other, different claims produce dif ferent outcomes. There can be no blanket policy on how all claims are to be handled.

Handling claims in accordance with the procedures set out in the master policy means Law Claims will; •request information and assistance from the insured;

The Process All claims are handled on their merits. Notice may be by phone, email, or fax. Law Claims solicitors are available to discuss notifications prior to a practitioner giving notice in writing. As soon as is practical the insured should give notice in writing to the insurers via Law Claims of any claim/potential claim or circumstances that may give rise to a claim, during the period of insurance.

A notice is properly given under this clause if sent to Law Claims, Level 3, 132 Franklin

"We know from experience that when a claim is made against a practitioner it can be a difficult and stressful time." w w w w.lawso cietysa.as n. a u

Street, Adelaide SA 5000 or DX 400, Adelaide. When notice in writing is received, Law Claims will send the practitioner 3 forms to complete which will commence the claims process.

It is imperative that these forms are completed correctly and returned to Law Claims as soon as possible.

•provide reasonable assistance to the insured; • provide advices as to the insured’s position and professional duty; • take necessary steps to protect the interests of the insured and Underwriters; • as soon as practical provide initial and follow up reports to insurers; • maintain the duty of confidentiality to the insured and the firm; • where necessary, appoint a panel solicitor to conduct the defence and resolution of the claim.

From time to time whilst m a n a g i n g th e c l a i m , th e insured must give Law

Claims such information and assistance as Law Claims may reasonably require. The main issues are identified early and an appropriate claims management strategy formulated. This is done by the Director of Law Claims and the Senior Solicitor or in consultation with the Claims Committee.

A practitioner will be notified of progress on the file as it occurs, and will be involved in settlement discussions prior to Law Claims committing the insured’s excess to settlement.

The practitioner will also be notified of closure of the file,

"A practitioner will be notified of progress on the file as it occurs, and will be involved in settlement discussions prior to Law Claims committing the insured’s excess to settlement." either when the matter is resolved or it becomes clear a claim will not proceed. Once the matter has been settled and the file closed the practitioner can expect to be contacted by

the Risk Manager. This provides the opportunity to address any system issues which may have contributed to the notification, so that similar problems can be avoided in the future.

If you have any circumstances of concern and would like to discuss this with Law Claims solicitors, we can be contacted on phone: 8410 7677; fax: 8231 7798; email: lbishop@lawguard.com.au or aking@lawguard.com.au.

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For program details visit www.law.adelaide.edu.au/degrees/

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ARLENE MACDONALD, EDMUND BARTON CHAMBERS, ON BEHALF OF Tax Files| BY THE SOUTH AUSTRALIAN BASED MEMBERS OF THE TAXATION COMMITTEE OF THE LAW COUNCIL OF AUSTRALIA, BUSINESS LAW SECTION.

VERY TAXING DAMAGES HE MONTHS of hard work are almost finished: the settlement of your client’s claim for compensation is almost agreed in principle or detailed court orders are about to be sought. Then someone says “what about the tax?” or if you are really unlucky, you wake at 3am of the final day with the same 1 question! Your heart sinks .

2. it is identified as clearly as possible exactly what the compensation is for especially where there are multiple heads of claim; and

Your first thought is leave the problem to the tax agent to deal with later but you immediately realise that if any tax is payable, you need to either top up the claim or inform your client that tax will need to come out of the settlement.

GENERAL PRINCIPLES – CGT AND INCOME TAX

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Your n e xt thou ght i s that you will simply try to get an indemnity for any tax from the defendant and then again leave it to your client’s tax agent to sort out the amount.

The aim of this short article is to provide an overview of the relevant CGT and income tax issues concerning the taxation of damages in commercial or personal claims to assist the plaintiff ’s lawyer in advising on the appropriate action to take 2 in action to tax .

That action should be to structure the settlement or order so:

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1. it is absolutely clear where the tax burden falls especially where there is more than one plaintiff;

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3. if it is necessary for the defendant to indemnify the plaintiff for any tax on the damages, that the terms of the indemnity are certain and effective.

The main income tax provisions are in the Income Tax Assessment Act 1997 (ITAA 1997) but some remain in the 1936 Act (Income Tax Assessment Act 1936). The CGT provisions are in ITAA 1997.

Damages are taxed in the same way as the loss they compensate. This of course requires a clear identification of what loss is being compensated and also understanding of what is taxed as income and what as a capital gain. It is important to distinguish between income in this ordinary sense and statutory income as capital receipts (in the ordinary sense) may still be assessable as statutory (as distinct from ordinary) income due to other provisions in either ITAA such as sec 15-30 and 20-20(2) in the 1997 Act which

assesses certain insurance proceeds which are not already included as ordinary income.

Also, a balancing charge on the disposal of depreciable property 3 is statutory income .

If a receipt is ordinary income or statutory income other than CGT, it will often result in a substantially higher tax bill because capital gains are often discounted by the general discount and the small business 4 concessions .

This is decided on an objective basis so it does not matter what the plaintiff or defendant intended.

In general: • Compensation for loss of profits is subject to income tax (Gill v Australian Wheat Board 1980 2 NSWLR 795).

In other words, where the damages partly or fully “fill” the “hole in profits”, they are assessable as income replacing the profits. Also see Commissioner of Taxation v Wade (1951) 84 CLR 105; Carapark Holdings Pty Ltd v Commissioner of Taxation.

• Compensation for noneconomic loss is capital and not subject to income tax. It may still create a capital gain which may be taxable.

• Compensation for the loss or sterilisation of an asset is capital. One example is the loss of a contract which is part of the taxpayer’s business (IRC v Fleming & Co (Machinery) Ltd (1951) 33 TC 57; Californian Oil Products Ltd v F C of T (1934) 52 CLR 28). Another is compensation for loss of earning capacity (Tinkler v FCT (1979) 29 ALR 663; FCT v Inkster (1989) 24 FCR 53; FCT v Slaven (1984) 1 FCR 11). In Glenboig Union Fireclay Co Ltd v Commissioners of Inland Revenue (1922) 12 TC 427, the taxpayer received a sum from a railway company which exercised its statutory powers to require part of the taxpayer’s fireclay to be left unworked. It was held to 5 be capital.

• Compensation for loss of goodwill is capital (Spedley Securities Ltd v FC of T 88 ATC 4126). But be very careful that it really is for loss of goodwill.

In Liftronic v FCT 32 ATR 557, the taxpayer’s arguments failed because the Court said there was no permanent impairment to the business structure.

• Compensation for a business loss which doesn’t reduce the business structure

"Damages are taxed in the same way as the loss they compensate."

"Whether a receipt is income or capital is to be considered from the perspective of the recipient not the payer" itself is revenue (Allied Mills Industries Pty Ltd v Commissioner of Taxation (1989) 20 FCR 288.

• Any capital gain on compensation for compensation or damages an individual receives for any wrong or injury suffered in his/her occupation or for any wrong, injury or illness he/she or his/her relative suffers personally is disregarded (sec 118-37 6 ITAA 1997) . Warning: do not ever include a personal

injury capital amount as an unapportionable lump sum of damages as this will lose the sec 118-37 exemption and the whole amount will be taxed!

• Compensation by way of weekly payments to replace lost income is itself income.

Statutory compensation such as for workers compensation follows the same general principles. So, a replacement for weekly income is taxed as income. However, characterising a lump sum

which replaces or redeems the future weekly payments or flow of income is more 7 difficult .

• Compensation for loss of business or personal reputation is capital (Cullen v Trappel 1980 146 CLR 1) • Compensation for unfair dismissal or loss of office are generally taxed as statutory income as an eligible termination payment (ETP) (Commr of Taxes v Phillips 8 (1936) 55 CLR 144 at 157) .

•Prejudgment interest in an award of damages for personal injuries is part of the “damages” and, as it is not interest in the true sense of the word, it is not separately assessed as income (Whitaker v FCT (1998) 82 FCR 261; 38 9 ATR 219; 98 ATC 4285) .

Whether a receipt is income or capital is to be considered from the perspective of the recipient 10 not the payer Another very important point is that the characterisation of the receipt is not determined by the manner of calculating the loss.

An amount for loss of earning capacity or loss of a business contract will be capital even though the amount is based 11 on loss of income from either .

Similarly, a solicitor’s treatment of the entire amount as loss of 12 profits is not determinative .

Contact: Hugh McPharlin Brenton Ellery Brian Morris Ben Miels

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Although the ATO seems to start from the opposite premise, there is also no general principle that compensation for a loss which was allowed as a deductible expense or outgoing 13 is itself assessable.

Where the damages (or some part) are properly characterised as relating to loss of a capital asset, Taxation Ruling TR 95/35 assists in determining whether the compensation is for loss of a capital asset (and if so which one) or is for the right to sue (itself an asset for CGT purposes) and the CGT consequence.

APPORTIONMENT In addition to ensuring the amount of damages for each plaintiff is separately detailed along with the basis of the payment so the correct tax treatment can be calculated plaintiff by plaintiff, it is also important to apportion the amount of damages between different parts of a multiple claim.

Where compensation is for one type of loss or where the compensation for various losses can be easily identified, it is usually simple enough to determine which is capital and which are income and therefore the taxation consequences. I will later discuss the next step which is the need to be clear in your drafting of the agreement.

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The tax implications of the award of a lump sum to cover the range of losses, some of which are income, and some are capital can be very difficult.

This includes the question of whether the lump sum can be or should be apportioned

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Two cases, McLaurin v Federal 14 Commissioner of Taxation and 15 Allsop v. FC of T are commonly cited to justify a claim that a lump sum damages award cannot be apportioned. They need to be used with care and with understanding of their facts and the alteration to the apportionment rules in the 16 CGT provisions.

Even if an analysis of these cases results in the conclusion that the proper treatment of the settlement sum is an unapportionable lump sum with the consequence of the entire sum being the capital proceeds for disposal of the right to sue, nevertheless sec 116-40(2) requires an apportionment. It needs to be noted that McLaurin and Allsop were pre-CGT cases but they still stand for the principle that it is inappropriate to apportion a lump sum in some circumstances. If a taxpayer can’t know the basis of a lump sum offer, how can sec 116-40 17 override that?

Section 116-40(2) provides: If you receive a payment in connection with a transaction that relates to one CGT event and something else, the capital proceeds from the event are so much of the payment as is reasonably attributable to the event.

INDEMNITIES In my view, indemnities are overused as a sloppy alternative to a clear analysis before the orders are sought or settlement achieved. There are cases

where the matter is of sufficient complexity that more work is needed to be able to determine the tax outcomes. An example of this is found in the extremely complex commercial Duke litigation. In Duke Group Ltd 18 (in liq) v Pilmer , Mullighan J having formed the view the defendants should pay any capital gains tax which is assessed by reason of the award of damages to the plaintiff, explained what should happen to determine the CGT liability.

Should the Commissioner of Taxation make a claim for capital gains tax and the plaintiff has a defence, or a partial defence, which is acknowledged by the defendants, the plaintiff should use its best endeavours to reasonably defend the claim if requested to do so by the defendants or any of them.

Those defendants making that request should bear any reasonable costs of the plaintiff in making that defence. If the defence is successful, all of the defendants against whom judgment is entered must contribute to the reasonable costs of that defence not recovered by the plaintiff. I shall hear the parties as to the form of the declaration or order which 19 should be made .

With respect this approach is entirely appropriate in such a complex case but it is far removed from a simple pro forma indemnity which both delays the proper consideration of the tax issues and leaves open further legal argument about how rigorously any tax should be defended.

(Endnotes) 1 Of course this is really far too late to first consider the tax issues but it does happen! At least it allows some thought to be given to the problem before the orders or agreement are finalised.

2 Stamp duty and GST may be relevant to the defendant where assets are part of the compensation package or are sold to fund it but this article deals with the cash damages.

3

Div 40 ITAA 1997

4

Division 115 and 152 ITAA 1997 respectively

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The Commissioner says in paragraph 6 of TR 95/35 If an amount of compensation is received by a taxpayer wholly in respect of permanent damage suffered to a post-CGT underlying asset of the taxpayer or for a permanent reduction in the value of a post-CGT underlying asset of the taxpayer, and there is no disposal of that underlying asset at the time of the receipt, we consider that the amount represents a recoupment of all or part of the total acquisition costs of the asset.

One warning, permanent does not mean permanent! See paragraph 3 of TR 95/35 Permanent damage or reduction in value does not mean everlasting damage or reduced value, but refers to damage or a reduction in value which will have permanent effect unless some action is taken by the taxpayer to put it right.

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What is a wrong or injury suffered in an occupation? Loss of self-esteem, injury to feelings, public humiliation, embarrassment, depression, anxiety or distress are all within the CGT exemption according to the ATO Income Tax Ruling IT 2424. Also see Taxation Determination TD 92/130 concerning damages for the death of a spouse and compensation for loss of the opportunity to claim for personal injury due to a solicitor’s negligence are also exempt and see Taxation Determination TD 95/42 on proceeds of trauma insurance.

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This is outside the scope of this article

8

There are some exceptions such as where the employment was from a non Australian resident for employment lost outside of Australia because the ETP provisions exclude “exempt non-resident foreign termination payments” (ATO Interpretative Decision ID2001/5)

9

Post judgment interest in personal injury cases, although income, is now exempt from income tax (sec 51-55 ITAA 97).

10 Scott v FC of T (1966) 117 CLR 514; 14 ATD 286, 293 per Windeyer J 11 Glenboig, Northumberland Development Co Pty Ltd 95 ATC 4483, Liftronic v FCT 32 ATR 557 12 See Allsop v Commissioner of Taxation (1965) 113 CLR 341 at 345, 351, 352 where the High Court held that the settlement was not a refund for licence fees wrongly paid for which he had received a tax deduction 13 FCT v Rowe (1997) 187 CLR 266 14 (1961) 104 CLR 381 15 (1965) 113 CLR 341.

16 Of course some taxpayers try to use these cases to support a better tax position by claiming entire receipt is capital but fail.

A recent example is Sommer v C of T [2001] AATA 901 17 See TR 95/35 at paragraphs 190 and 203 18 (1998) 144 FLR 1; (1998) SASC 19 FLR at page 174; SASC at page 544

Profile | Selvie Demiri, Legal Adviser, Legal Services Commission Justice is said to be blind – so why not have justice promoted by a blind lawyer?

Selvie Demiri, Legal Advisor, LSC he work of a legal practitioner is often onerous and challenging. For a lawyer who has impaired vision, the additional challenges on the job are obvious, but they are also easily overcome. This is proven in the case of Selvie Demiri, who is employed by the Legal Services Commission as a Legal Adviser. Selvie, who lost her sight as a consequence of childhood cancer, has worked at the Commission for th e p a st 11 month s, providing advice to members

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of the public on all areas of the law. Her determination, along with the support of her employer and other agencies, has ensured that her blindness has been no hindrance to her pursuing her legal career.

“I have never allowed my blindness to hold me back from whatever I have wanted to do and I greatly appreciate the suppor tive attitude that management have shown in assisting me to progress in my legal career” says the 27 year old who graduated from the University of Adelaide with a double degree in Arts and Law.

Royal Society for the Blind organised for the equipment to be purchased through a Commonwealth fund that is made available by Disability Works Australia. In this way the RSB plays a very supportive role in ensuring that individuals with impaired vision can experience a smooth transition into the workplace.

Selvie carries on her day-today duties with the aid of technology. An audio program called “Jaws” installed on Selvie’s computer reads to her any text that is on the computer screen.

In this way Selvie is able to know what she has written when she types her attendance notes and other documents and to read any information that is contained in electronic files or on the internet. Any hard copy documents are fed through a scanner which converts them into an electronic file, which in turn can then be read by the “Jaws” program. Selvie also has on her desk a small device called a Brailliant, which provides refreshable Braille output of the content of the computer screen.

Selvie’s Manager, Gabrielle Canny, has high praise for Selvie’s skills as a lawyer and her adaptation to the challenges of her work place.

“Selvie does not use a guide dog or a cane, yet moves about the office freely, relying on counting steps, feeling or hearing changes in air flow indicating passageways and memorising frequently used routes. Selvie is an asset to our organisation.

She provides feedback on the appropriateness of our services for sight impaired clients and has developed a sensitivity in listening to a clients instructions. I would recommend all employers think outside the square when employing new staff. You are likely to find, as we have, that your next employee has skills the traditional graduate is missing.”

All this equipment has been provided at no expense to Selvie or her employer. The

"Her determination, along with the support of her employer and other agencies, has ensured that her blindness has been no hindrance to her pursuing her legal career."

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November 2007

First Year Students & the New South Australian Supreme Court Rules on Pleadings

Part 2.

By Andrew Alston, Margaret Davies, Jane Knowler, Mark Rankin and Christina Son, Flinders University Law Faculty*

Compliance with the rules but not with Form 3.

In part 1 of this article published in November, the authors, who teach a first year course on procedures and ethics at Flinders University Law School, discussed the Supreme Court Civil Rules 2006 on Pleadings and drafted a Statement of Claim that complies strictly with Rule 99. The article now examines the requirements for defence. admits the allegation that she tattooed “Molly” on the Plaintiff ’s left shoulder but denies that she did so without the Plaintiff ’s knowledge.

STATEMENT OF DEFENCE We then drafted a defence which, like the statement of claim, closely follows the requirements of the rules. As there are no preliminary issues, Part 1 addresses the allegations of fact in Part 3 of the statement of claim. The paragraph numbers correspond to the paragraph numbers in the statement.

DEFENCE PART 1: In answer to the Statement of Claim the Defendant says: 1. The Defendant admits the allegations contained in Paragraph 1 of Part 3 of the Statement of Claim (“the claim”).

2. The Defendant admits the allegations contained in Paragraph 2 of Part 3 of the claim.

5. The Defendant admits the allegations contained in Paragraph 5 of Part 3 of the claim.

PART 2: The Defendant relies on the special defence of contributory negligence, the basis of which i s that by fai lin g to t ake reasonable care, the Plaintiff contributed to the injury that he suffered.

PART 3: The material facts on which the Defendant’s special defence of contributory negligence is based are:

3. The Defendant denies the allegations contained in Paragraph 3 of Part 3 of the claim and says further that the Plaintif f asked the Defendant to tattoo “Molly” on his left shoulder.

This pleading is put forward in accordance with the instructions of the Defendant

by Ira Te who certifies that it complies with the Rules concerning pleadings.

4. As to Paragraph 4 of Part 3 of the claim, the Defendant

This defence complies with the requirements of Rule 100 of the

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Part 3 of the statement of claim.

Although the Rules do not require it, we have responded to the allegations of facts that we do not admit. Thus, in paragraph 3 we reply to the allegation that the plaintiff asked the defendant to tattoo “Milly” on his left shoulder by saying “The Defendant denies the allegations contained in Paragraph 3 of Part 3 of the

“Mixed law and fact are no longer to be pleaded. It is for the Court to declare the law arising upon the facts proved before it.”

1.

2.

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South Australia Supreme Court Civil Rules 2006. The Rule does n o t re q u i re t h e d e fe n c e to a d d re s s t h e p l a i n t i f f ’s statements of each cause of action, the basis of each cause of action or the remedies sought by the plaintiff. It requires the defence to raise any preliminary issue, and answer the plaintiff ’s factual allegations. There were no preliminary issues in our defence.

Sub paragraph (b) provides that a defence must indicate which (if any) allegations of fact in the plaintiff ’s statement of claim the defendant admits or does not propose to challenge at the trial. We have done this in Part 1 of the defence. The numbered paragraphs in this part correspond to the numbered paragraphs of the statement of material facts in

claim and says further that the Plaintiff asked the Defendant to tattoo “Molly” on his left shoulder.” We do this to provide a complete version of the facts from the point of view of the defendant. Just as it is important that the defendant be informed of the material facts from the plaintiff ’s point of view, it is important that the plaintiff be informed of the material facts

from the defendant’s point of view. Note, however, that this fact will probably be stated again in the material facts related to the defendant’s claim of contributory negligence.

Rule 100 (1) (b) requires the defendant to raise any special defence on which the defendant relies. Sub-rule 100 (3) defines a special defence as “a defence other than a denial of facts alleged by the plaintiff, or a denial that facts alleged by the plaintiff give rise to a cause of action.” We have stated in Part 2 of the defence that we rely on the special defence of contributory negligence, “the basis of which is that, by failing to take reasonable care, the Plaintiff contributed to the injury that he suffered.” Perhaps we should have stated the basis for the special defence in a separate part. We thought that the brevity of the sentence permitted us to combine our responses to rule 100 (1) (b) and (c) in one part. However, we then proceed to set out in a separate paragraph the material facts on which the special defence is based.

Why are we being so pedantic?

Our strict adherence to the words of the rules may seem pedantic. We recognise that our first year students will later be exposed to different styles of drafting, especially during the Practical Legal Training (PLT) programme in their final year.

Why have we been so particular?

First, precise compliance with the rules will result in better pleadings because it will ensure that parties are properly informed, and thereby able to assess the merits of claims and defences.

Secondly, precise compliance with the rules encourages our students to develop good drafting practices. It requires them to carefully read the

"We recognise that our first year students will later be exposed to different styles of drafting, especially during the Practical Legal Training (PLT) programme in their final year." rules and to draft in good grammatical style.

Thirdly, it is easier for students to follow the clear instructions provided by the rules than to adopt the vague and uncertain traditions of current practice.

This is not to say that these traditions do not w ork splendidly for the many fine practitioners who understand them.

Fourthly, if students are able to attend to these details in their first year, they will be better able to deal with drafting problems in later years as students and in practice. In our view, this will be so even when they are instructed to do things differently.

Finally, if they learn to comply with the rules, when they become practitioners, they will provide a good service for their clients and they will not run the risk of having their pleadings struck out. This last point raises an interesting issue in terms of our suggested pleadings format.

Are our pleadings in an “approved form”? Should they be struck out under Rule 104?

Having drafted these pleadings before the forms were published, we now face a problem. Rule 104 provides that the Court may strike out a pleading in whole or in part if it does not comply with the rules and Rule 98 (1) (b) provides that a pleading “must be in an approved form.” We believe that our pleadings comply strictly with Rules 99 and 100.

However, they may not be in approved forms. For example compare the two simple parts of Form 3 with the multiple parts of our statement of claim.

Having so far argued that in drafting pleadings it i s important to comply strictly with the precise requirements of the rules, all we can do now is weakly say that, as we have left nothing out, we have complied with the forms.

Is it heresy to plead the law?

Lord Hoffman described the purpose of pleadings as “to define the issues and give the other party fair notice of the case which he [or she] has to meet.” In our legal system, this purpose is attained by making parties state their case and answer the case of their opponents. The interchange of statements and replies to statements is the essence of pleadings and has existed since the time of Henry II. It may seem common sense that defining issues and fair notice should include an indication of the law on which

the parties rely. In the distant past, this may have been a requirement. However, it is something with which lawyers are no longer comfortable.

Odgers commented that: “Mixed law and fact are no longer to be pleaded. It is for the Court to declare the law arising upon the facts proved before it.”

Odgers described the limiting of pleadings to the facts of the case without the law being stated as “one of the greatest improvements introduced by the Judicature Act in 1875.”

Thus it may appear to be heresy that Rule 99 now purports to mix facts with law.

However, in practice, it has always been the essence of good pleadings that, although causes of action are not expressly stated, they are implied by the material facts.

If, for example, a claim is in negligence, some facts will address the requirement of a duty of care, others will purport to show that there is a breach of the duty and others will state the damages suffered by the plaintiff.

Odgers described the limiting of pleadings to the facts of the case without the law being stated as “one of the greatest improvements introduced by the Judicature Act in 1875.”

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November 2007

It seems to be just a small step to require that causes of action be not just implied but be stated.

This is what the new South Australia Supreme Court Civil Rules 2006 have, in effect, done.

It is particularly important that this change is made now as it corresponds with changes in litigation practice. The focus of litigation is no longer on lawyers drafting documents and presenting evidence so that judges can make pronouncements on the law.

The new rules emphasise efficiency, avoidance of delay and minimisation of costs. In particular, it is one of the stated objects of the rules: (b) to facilitate and encourage th e re s o lution of civ i l disputes by agreement between the parties

Early resolution of cases by agreement will be facilitated by compliance with the new rules on pleadings. If parties are made aware of each cause of action and its basis, as well as the material facts, they will be better able to negotiate and settle the matter with resultant time and costs savings. i

Requirements for defence (1) A defence— (a) must raise any preliminary issue; and (b) must indicate which (if any) allegations of fact in the plaintiff 's statement of claim the defendant admits or does not propose to challenge at the trial; and (c) must specifically raise any special defence on which the defendant relies; and (d) must state the basis of each special defence on which the defendant relies (including reference to any statutory provision on which the defendant relies); and (e) must contain a short statement of the material facts on which each special defence is based.

Flinders Law Faculty joint authors.

L to R - Jane Knowler; Margaret Davies; Andrew Alston; Christina Son; Mark Rankin ii Ie, Form 3. iii Barclays Bank v Boulter [1999] 1 WLR 1919 at 1929. iv William Blake Odgers and Basil Antony Harwood (1934, 11th edn) Principles of Pleadings and Practice in Civil Actions in the High Court v of Justice, Stevens and Sons Ltd, London. vi Ibid at 77. Ibid at 78. All Australian jurisdictions followed suit (ACT Court Procedures Rules (Part 2.6),

Uniform Civil Procedure Rules 2005 (Part 14), NT (currently being rewritten), Queensland Uniform Civil Procedure Rules 1999 (Chapter 6) SA Supreme Court Civil Rules 1987 (r46.04) Tasmania Supreme Court Rules 2000 (Div 17) Victoria Supreme Court (General Civil Procedure) Rules 2005 (r13) Western Australia Rules of the Supreme Court 1971 Order 20 r2, r8, r12, r19). vii Refer to Rule 3

practice and management were presented. Needless to say there was also quite a bit of surfing done as well.

generations. And if we can ride some small waves at the same time then so much the better."

ALSA says "surfs up" for Australia's lawyers 's newest legal A ustralia association is one with a difference.

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A group of surfing lawyers has established the Australian Lawyers Surfing Association Inc. (ALSA) in an effort to bring surfing lawyers across the country together to: • Promote links between the profession, charities and other organisations; • Provide a resource for probono work in relation to surfing, environmental and other causes; • Provide training and developmental opportunities for surfing lawyers;

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• Organise surfing classes and competitions for surfing lawyers and those interested in being surfing lawyers.

They already have a mailing list of over 50 surfing lawyers all of whom have indicated their willingness to be involved. ALSA this year launched their website and have a list of events for surfing lawyers and those keen to be involved - and have also this year run two 'learn to surf' days for indigenous kids at Manly Beach.

ALSA had its first conference at Uluwatu in Bali in August 2007 where a number of papers dealing with a variety of areas of legal

ALSA has also initiated some hands on assistance to villages in the Uluwatu area on the Bukit Peninsula in Bali in relation to environmentally sustainable development including the provision of safe water supply and the treatment of waste water from tourist developments on the peninsula. Peter Strain of the NSW bar, the founding president of ALSA says "Its time for surfing lawyers to get together and get involved in keeping the oceans clean for future

Currently ALSA are sponsoring the East Bali Poverty Project, and more about this project will be reported on in the first ALSA 2008 update.

South Australia now has an ALSA chapter to. So surfing lawyers who want to become involved can contact - Matthew Warburton , General Counsel, [Australia/New Zealand], Hudson, Level 19, 45 Clarence Street, Sydney, NSW Australia Ph: +61 (02) 8233 2706 Fax: +61 (02) 9233 8266

BULLETIN BOARD

Adrian Cartland Wins National Title - Golden Gavel Cartland is by day an efficient and attentive taxation A drian lawyer with Piper Alderman but when on stage obviously his alterego comes to the fore - and he morphs into Adrian aka 'The Taxinator' .

Adrian recently competed recently in the national titles of the Golden Gavel Competition held in Tasmania, and

was awarded outright title winner for his presentation that gave more than a nod to the 80's sci-fi character of 'The Terminator'.

Congratulations to Adrian and to the LSSA New Lawyers group which supported Adrian in his trip to compete and win in Tasmania.

Adrian Cartland aka 'The Taxinator': 2007 Golden Gavel Winner

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Committee Comment Law Asia Update: Visit to Hangzhou

By Roderick O’Brien, Law Society of South Australia, LawAsia Committee expect that Mr Deng would be able to translate.

From the South Australian side, I provided a copy of the article “The little firm that made it in China” (The Australian 13 July 2007). I also briefly noted that a number of Australian law firms had established in China as foreign law firms. Then I suggested that increased emigration and investments may encourage Chinese law firms to establish in Australia. I introduced the proposed amendments to the Legal Practitioners Act (Part 6) relating to foreign lawyers.

L to R; Liu Guojian,Lou Xinglong; Fang Shaoging; Roderick O'Brien; He Liming; Shen Xiangming; Deng Shiqun (Simon Dunne)

I met with O nt h19e October the Hangzhou Lawyers’ Association at their offices.

It was a pleasure to meet this group, four of whom had been in their group visiting Adelaide.

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Mr Fang, a former president of the Hangzhou Lawyers’ Association, led the welcome.

However, he had to travel to another city, and left early.

The discussion was led by Mr He, who is a Vice-President of the Association. Mr Deng (Simon Dunne) ably translated.

Including formalities and photographs, the meeting lasted about one hour.

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Mr He briefly introduced the situation of the Hangzhou Lawyers’ Association. Hangzhou is a small city compared to nearby Shanghai, and the law firms are comparatively small.

However, they are competitive and they are interested in further contact. Hangzhou is famous for tourism and they have strengths in this area.

Hangzhou is also the provincial capital for Zhejiang province, one of China’s thriving eastern provinces. They can provide information about Hangzhou

a n d t h e l aw s re l a t i n g t o investment there, if requested.

Mr He indicated that they would like to receive information in three areas: (a) Listing on Australian stock markets (b) Immigration and Overseas Study in Australia (c) Investment requirements in Australia They are willing to receive information in English, and

During the meeting, I presented the Association with a sample of indigenous artwork. I also gave each member a recent issue of the Bulletin of the Law Society of South Australia, and gave the office secretary a 2008 calendar with Australian scenes. During dinner, I presented Mr Deng with the folio provided by the Law Society.

Mr He presented me with a brochure about the Association, and its 2007 calendar.

After the meeting, Mr Deng was my host at a dinner provided by the Association.

I hope that this brief visit assists the LawAsia Committee and the Law Society of South Au strali a in maint ainin g contact with the Hangzhou Lawyers’ Association.

"Hangzhou is famous for tourism and they have strengths in this area."

Class of 1987 Reunion The Workshop Class of 1987 reunited after 20 years on 16 November 2007 at the Prince Albert Hotel. Whilst there were a few more gray hairs in evidence, it was a great opportunity for attendees to renew friendships and catch up with where life had taken those admitted on 14 December 1987.

The event was well attended,

with people travelling from as far afield as Perth, Alice Springs and Melbourne to attend.

Well wishes and emails were also received from London and Hong Kong where many 'Workshoppers' now live and work.

The career paths followed by the Class of 1987 are interesting

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3

4

5

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and varied. Amongst the 1987 year are numerous lawyers, an author, several judges (in Australian and other jurisdictions) and a politician, to name but a few.

Celebrations continued well into the night and the event was judged a great success by all.

Thanks must go to the driving force behind the Reunion, Rob Mills, who was ably supported by the organising committee of Paul Charman, Mark Clisby, Richard Fisher, Noelle Hurley, Bill Last, John Levy, Elizabeth Olsson and Richard Wood.

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11

1 L - R: Richard Fisher, Richard Wood, Craig McCarthy 2. L - R: Amanda Ward, Mark Heitmann, Susan Robertson, Rob Mills 3. L - R: Bev Clark, Richard Wood, Jeremy Culshaw 4. L - R: Pat Eady, Tony Hurren 5. L - R: Susan Robertson, Bill Last 6. L - R: Leanne Hutton, Josie Atkins 7. Carolyn Batt, Marcia Waters 8. L - R: Pat Eady, Marilyn Buckerfield 9. L - R: Richard Fisher, Rob Mills 10. L - R: Felicity Keeves, Emma Marinucci, Leandra Micallef 11. L - R: Richard Wood, Paul Charman, Sharon Tonkes

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November 2007

Law Society Bulletin 2006 'Article of The Year' Awards HIS YEAR for the first time the Bulletin 'Article of the Year Awards' were held in conjunction with the Law Society's President's Cocktail evening. The night not only proved a great success as an occasion for the profession to get together, but it also proved an opportunity to thank the Bulletin contributors in 2006 who helped make it a valued professional publication.

Lexis Nexis, a long time supporter of the Society and the Bulletin awards, contributed a total of $1,000 in prizes to the winning authors and Barbara Coat, Lexis Nexis Client Training Manager, awarded first prize to Peter Quinn, for his winning article - 'Where There's Smoke There's Flames: Defamation & Reporting in The Media'. [Published in the Bulletin February 2006]

Over 16 finalists have shown through their articles some of the broad range of topics that encompass the law as a profession, as well as an ability to communicate that information to readers of the Bulletin in an interesting way.

Second place was awarded to Stephen Walsh QC, and his son Stephen John Walsh for their article -– 'Causation & Proportionate Liability' - Parts I and II. [Published in the Bulletin July and August 2006]

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"Over 16 finalists have shown through their articles some of the broad range of topics as a profession."

Third place was awarded to Sasha Lowes for her article 'Unaccompanied & Separated Children' [Published in the Bulletin November 2006]

Regular contributor John Emerson was also awarded a Special Commendation award for his December 2006 Opinion piece -A ' Non-Lawyer & Law Reform'

LAW SOCIETY CONTACTS

This issue of The Law Society of South Australia: Bulletin is cited as (2003) 25(7) LSB(SA). ISSN 0157-8952 EX E C UT I V E M E MB E R S President : President-Elect : Vice-President: Treasurer: Immediate Past President: LCA Director: Council Members:

G K Feary J R Goldberg RP Mellows R Bonig MJ Kelly Deej Eszenyi TJ Mellor, J Schammer

GE N E R A L C OU N C IL ME MB E R S N Abela P Amey CJ D’Arcy M Evans RK Genders SG Henchliffe K Henning JB Jarvis TJ Mellor CM O’Connor S Ower Cathy Parsonage SK Rowland J Schammer DA Sheldon J White CO U N T RY M E MB E R S Greg Anderson (Central region) Paul Boylan (Northern region) Tom Rymill (Southern region) J UN I O R M E MB E R S Penelope Davis David Caruso EX O F F I C I O ME MB E R S The Hon. MJ Atkinson MP, R Owens, D Bamfield CO - O P T E D M E MB E R S P Fairall

Executive Director Director of Business Operations Manager (Finance) Member Services Manager Legal Practitioner’s Registrar Director (Prof. Standards)

Jan Martin jan.martin@lawsocietysa.asn.au Stephen Hodder stephen.hodder@lawsocietysa.asn.au Ciro Pipolo ciro.pipolo@lawsocietysa.asn.au Michelle Griffith michelle.griffith@lawsocietysa.asn.au David Milne david.milne@lawsocietysa.asn.au Denise Watkins denise.watkins@lawsocietysa.asn.au

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

PUBLISHER/ADVERTISER

THE BULLETIN Editor

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

Editorial Committee G Canny B Krupka R Spencer

Libby Bishop lbishop@lawguard.com.au Mary Walters mary.walters@lawsocietysa.asn.au Sophia Lemke sophia.lemke@lawsocietysa.asn.au Graham Jobling graham.jobling@lawsocietysa.asn.au Lorna Hartwell lorna.hartwell@lawsocietysa.asn.au

D Crocker J Martin K Gluche

J Emerson L Paulson E Olsson (Chair) M Senior S Kljun M Kaukas

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@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

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.

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Collaborative Law – A Process in which Lawyers Assist Clients to Resolve Disputes Respectfully.

By Lorraine Logich, Collaborative Lawyer/Mediator, Logich Lawyers LAW C OLLABORATIVE is a dispute resolution process which is in line with the current trend toward resolution of disputes using non adversarial processes. Collaborative law or collaborative practice may incorporate an interdisciplinary team to provide clients with a holistic dispute resolution process in which the lawyers employ integrative problem solving advocacy skills to assist the clients to participate in interest based negotiation.

It is fundamental to the collaborative process that the collaborative lawyers are not neutral or impartial third parties in the process. On the contrary, their role is to advise their clients and they are their clients’ allies[i]. The legal advice that collaborative lawyers give to their clients is acknowledged however, to be simply one facet of the dispute to be taken into account. It is fundamental to the collaborative process that the lawyers do not enter into positional bargaining, as they do during a settlement conference.

The clients conduct the negotiations based on their interests; the lawyers advise th eir cli ents and assi st them to conduct principled negotiations, especially when the clients are negotiating competing interests. At this stage the lawyers also model principled negotiations to the clients.

Expansion of Collaborative Law and International growth Collaborative practice has now spread across the US, and 10 other countries including Canada, Britain, Australia, Austria, France and Germany and it has recently been introduced to New Zealand.

Various models have developed, partially in response to cultural differences but also in response to the needs and restraints of the diverse communities to which collaborative practice has been introduced.

Collaborative practice is flexible but the fundamental principles do not change:1. The clients each engage a lawyer to advise them and to advocate for a result that is in their best interest; 2. The substantive issues are openly negotiated by the clients in four way meetings that allow six way communication using principled negotiations in which their respective lawyers are their allies; 3. The lawyers and the clients enter into a contract that provides that the lawyers must withdraw if the negotiations fail and clients proceed to litigate.

4. Collaborative law has been widely applied in Family Law matters, where clearly parties often need to preserve a relationship after their matter has concluded and need to develop skills to enable them to resolve any future disputes that they encounter.

Collaborative law does however have application in any civil dispute. Particularly in disputes where the clients wish to minimize damage to an ongoing relationship between them, to keep control of the process and/or prevent the dispute from being made public. Examples include probate matters, partnership or business disputes and industrial disputes.

Collaborative law requires a written agreement in which the parties and lawyers make a commitment to neither litigate nor threaten litigation, to openly and honestly disclose all relevant information and documentation, and to work from the outset of the endeavor to settle the matter. This commitment is more than just procedural.

The mindset, the focus and the intention, from the beginning of the effort, must be aligned with the purpose of settlement of the matter. The lawyers in particular must share a mutual commitment, by their actions and words much more so on paper, to work together to meet the interests of the parties and resolve the matter. There can be no slipping back into litigation mode, no functioning in the shadow of the law. A lawyer’s focus cannot be divided such that his ears may be listening to the parties to identify interests, while his eyes are looking for cases to cite to support a position.

Lawyers and clients must embrace the commitment and it must be real. For these reasons, many lawyers who begin practicing collaborative law

while still litigating soon make the career determination to stop doing litigation altogether.

COLLABORATIVE PRACTICE Collaborative Law The fundamentals of collaborative law are as follows: • The clients are represented by trained collaborative lawyers.

• The collaborative lawyers are bound by the same professional ethical mandates that all lawyers must honour.

• The clients do their own negotiation while the role of their respective lawyers is that of ally, advisor and advocate.

• The lawyers are retained pursuant to limited purpose retainer agreements. The sole purpose for which the lawyers are hired is to help their clients negotiate a resolution that meets the needs of the parties without litigating or threatening to litigate.

• The clients retain their right to terminate the collaborative process and to take their dispute to court, but the collaborative lawyers and other collaborative professionals cannot go with them.

Phone call from potential client

Initial Conference with Client - discuss: • Goals • Concerns • Assess the client and the dispute. Is the collaborative process suitable?

• Explain options of dispute resolution processes • Provide client with two information packages, including a copy of the Participation Agreement. One package to give to other part (if applicable).

• Provide client with a copy of Retainer Agreement • Discuss whether other professionals will be required.

Lawyer to Lawyer discussion Process only

Client retains you and signs Retainer Agreement

Arrange first 4 way meeting Lawyers to clients discussion. Process only

First 4 way meeting • Sign Participation Agreement • Address urgent issues • Develop Agenda for next meeting • Assign task for preparation for next meeting Client/ Lawyer debrief

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Second & future 4 way meeting • Client follow Agenda • Lawyers alternate to take minutes • Note any agreements • Develop Agenda for next meeting • Assign task for preparation for next meeting Client/ Lawyer debrief

Lawyer/ Lawyer debrief

November 2007

• Information is shared fully and freely.

• All negotiations take place directly, face to face, in four way meetings. The lawyers do not bargain as agents in the absence of their clients.

• The clients are assisted to participate in principled negotiations, not positional bargaining.

• The clients may engage their own experts and professionals such as financial advisors, and c o ach e s, but su ch professionals should not adopt an adversarial position, especially if they participate in settlement meetings.

COLLABORATIVE PRACTICE IN THE NEW FAMILY LAW SYSTEM Since August 2005, the AttorneyGeneral has given his and the Government’s support to the promotion of collaborative law in Australia.

Recommendation 1 The Family Law Council and the Law Council of Australia should establish a working group to develop national guidelines for collaborative practice in family law.

Relationship Centres and community-based ser vice providers of family dispute resolution.

priority in the allocation of a hearing date is not lost if a complete resolution of the dispute is not achieved.

Recommendation 5

Recommendation 8 National Legal Aid should monitor developments in collaborative practice.[iii]

The Law Council of Australia should establish a Collaborative Practice Committee to be c on stitut ed by l aw yers practising in family law and other areas of practice.

The Family Law Act 1975 should be amended to provide confidentiality of communications in the collaborative process similar to the protections provided to communications made in family dispute resolution by sections 10H and 10J of the Act.

Recommendation 3

Recommendation 6

The regulations referred to in section 60I(8)(aa) of the Family Law Act 1975 should include a provision that when deciding whether to grant a certificate for the purposes of the section a family dispute resolution practitioner may have regard to a person’s participation in a collaborative process.

The Family Law Act 1975 should be amended to provide for courts exercising family law jurisdiction to have jurisdiction in relation to enforcement of collaborative contracts concerning family law disputes.

Recommendation 2

Recommendation 7 Recommendation 4

On 2 March 2007 the AttorneyGeneral released Collaborative Practice in Family Law – A Report to the Attorney-General prepared by the Family Law Council[ii] (Report). The Report contains the following:

The Law Council of Australia should consider developing and disseminating information about collaborative practice and lists of collaborative practition ers to Fami ly

Courts exercising jurisdiction under the Family Law Act 1975 should manage those cases where proceedings have been commenced and the clients wish to undertake a collaborative process, so that

The Government is considering the recommendations however, at the launch of the Western Sydney Collaborative Lawyers on 9 July 2007 the AttorneyGeneral Phillip Ruddock referred to the Government’s current consideration of the recommendations made by the Family Law Council and said; “You can take it that we are very responsive”.

Introducing Family Dispute Resolution Practitioners (FDRP) Collaborative practice being a dispute resolution process in which the clients resolve their differences through a non adversarial process is clearly in the spirit of the Family Law Amendment (Shared Parental Responsibility) Act 2006. [i] Bernard S Mayer, Beyond Neutrality – Confronting the Crisis in Conflict Resolution, Jossey Bass, San Francisco, 2004 [ii] See Report www.ag.gov.au/agd/WWW/ flchome.nsf/Page/39302570C01E947CA2578 F0016D3EB [iii] Supra at pp 2 & 3

Adelaide Business Leaders celebrate Sparke Helmore's 125-year anniversary he Adelaide business community gathered on …. to celebrate national law f i r m S p a r k e He l m o re’s 125-year anniversar y, a remarkable achievement supported by continuous growth in the South Australian market since the firm first opened its doors in Adelaide in 2001.

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Thursday’s event at the State Library of South Australia is the culmination of a notable year for the firm, which included partner Julie McIntyre’s recent appointment as Judge to the District Court in South Australia.

sector across the country’s eastern seaboard, the firm’s national expertise is now focused on assisting South Australia convert the immense opportunities presented by the State’s resources boom.

While continuously allied with the mining and resources

“Local producers need advisors that have played a key

role in supporting resources operations in other States that have experienced boom periods previously on the scale that South Australia is facing.

Specialist legal expertise is critical to helping transform ‘exploration’ enterprises into ‘production’ power houses,” says Local Managing Partner Michael Dwyer.

UniSA Law School Opens in 2008 A perspective from Adelaide's newest law school

By Professor Paul Fairall, Foundation Dean of Law. University of South Australia

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HE DOORS will soon open in George Street for the first intake of UniSA law students, who will enter Australia’s newest law school.

No doubt they will come with high aspirations and expectations, we hope not to disappoint them. The school is located in a heritage listed building in the heart of the city, at the terminus of the famous Adelaide tram route, and close to the legal precinct.

Accessibility is a major feature of the City West campus, which provides a perfect location for a city law school. The school is close to the new Hawke Building which houses Adelaide’s newest art gallery, the Samstag Museum of Art. The facilities are first rate.

In a break with tradition, the 4 year LLB program is taught over 3 standard 10 week terms.

Students who complete the maximum 4 courses each term will be ready to graduate at the end of the third year, although students will have the option of proceeding more slowly, and will be encouraged to proceed at a pace that maximises their learning experience. While there are a variety of double

degree combinations, the stand alone undergraduate entr y law degree (LLB) has a strong contemporary focus, and seeks to equip students with life-long skills essential for effective legal practice.

Electives in the law course are grouped around three main themes: (1) business and innovation; (2) public law and policy development; and (3) sustainable societies. These broad categories will garner the research and teaching focus of our school. Each will be led by a senior academic. The School is strongly committed to research driven teaching. Teaching ability and research excellence are the main requirements for our academic staff. I am particularly pleased with the coverage of on-line resources available to UniSA law students.

It is our goal to attract the best researchers in law and the highest ranking students.

The University has appointed an experienced team of academic lawyers as its keystone staff.

Professor Dr Vicki Waye and Associate Professor Dr Wendy

Lacey, formerly of Adelaide, Associate Professor Dr Julia Davies, from Tasmania, Ms Jane Knowler and Ms Rebecca La Forgia from Flinders, and Dr Sulette Lombard from Pretoria.

A third recruitment round is well underway and will be completed early next year. One could not hope for a better start to the enterprise.

UniSA is committed to certain core values, including equity of access, social justice and student engagement. The University seeks to produce graduates prepared for professional practice, who are committed to ethical action and social responsibility.

We hope to create a truly d y n a m i c , f r i e n d l y, a n d innovative law school, and to make a significant and enduring contribution to legal education in South Australia.

On a personal note, what an extraordinary honour and privilege to head up Adelaide’s newest law school! Looking forward to the New Year, we wish you Seasons Greetings from George Street.

'It is our goal to attract the best researchers in law and the highest ranking students.'

29

November 2007

Judgments

ADMINISTRATIVE LAW SECRETARY OF STATE FOR THE HOME DEPARTMENT v JJ AND OTHERS [2007] UKHL 45, 31 October 2007 http://www.bailii.org/uk/cases/UKHL/2007/45.html he questions in these appeals were whether the terms of certain control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 are compatible with article 5.1 of the European Convention on Human Rights and whether the procedure by which they were made is compatible with article 6.

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The control orders required the controlled persons to remain in their residence for 18 hours each day. They were required to wear electronic tagging. With one exception they were required to move from the places where they had previously lived to prescribed addresses in different areas. Those addresses were one bedroom flats where they lived alone. They were not allowed into the communal areas during the curfew hours.

They were allowed one landline telephone apart from the dedicated line supplied by the monitoring company. They

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were not allowed access to the internet nor were they supplied with any other means of making their isolation more bearable.

No-one was to be allowed in at any time apart from their own lawyers, the emergency services or healthcare or social professionals in an emergency, and anyone required to be given access under the terms of the tenancy. They were also required to allow the police to enter and search at any time.

Any other visitor required the prior approval of the Home Office which had to be supplied with the name, address, date of birth and a photograph. The trial judge held that these obligations breached article 5. An appeal by the Secretary of State was dismissed by the Court of Appeal. By a 3:2 majority, the House of Lords dismissed this appeal from that decision.

Lord Bingham said the trial judge’s analogy with detention in an open prison was apt, save

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. w w w w.lawso cietysa.as n. a u

that the controlled persons did not enjoy the association with others and the access to

entertainment facilities which a prisoner in an open prison would expect to enjoy.

ADMINISTRATIVE LAW SECRETARY OF STATE FOR THE HOME DEPARTMENT v MB [2007] UKHL 46, 31 October 2007 http://www.bailii.org/uk/cases/UKHL/2007/46.html was the subject of a M Bcontrol order made by the Secretary of State on the grounds that he was suspected of being an Islamist extremist who twice tried to go to Iraq to fight against coalition forces.

On a review of the case, the trial judge decided that the procedure by which closed material was withheld from MB was inconsistent with his rights to a fair trial under article 6(1) of the European Convention. The Court of Appeal reversed this decision.

A majority of the House of Lords held that the task of the Court in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person. Lord Brown said he could not accept that a suspect’s entitlement to an

essentially fair hearing is merely a qualified right capable of being outweighed by the public interest in protecting the State against terrorism vital though he recognised that public interest to be. It seemed to him not merely an absolute right but one of altogether too great importance to be sacrificed on the altar of terrorism control. By the same token that evidence derived from the use of torture must always be rejected so as to safeguard the integrity of the judicial process and avoid bringing British justice into disrepute, so too must closed material be rejected if reliance on it would necessarily result in a fundamentally unfair hearing.

Lord Hoffmann, dissenting, was of the view that in principle the special advocate procedure provided sufficient safeguards to satisfy article 6.

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 Lucinda Rowland on 8229 0241 for further information or to register for our FREE ONE MONTH TRIAL.

On The Road | Piaggio MP3: the ultimate urban scooter is here.

Nick Ramage

comment one can make is that with its added front weight this robs the 250ie engine slightly of its rocket-like zing. Also the front dual independent tilting wheels take up a tad more floor space - so there is only one place to really pop your feet.

The futuristic dual front wheel MP3 delivers unbeatable safety, stabilty and fun o close this year’s test reviews one of the most unusual and fun bikes I’ve ridden must be the new Piaggio MP3 scooter. Not only has it Italian style and looks, great handling and safety – it also has three wheels.

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The MP3, by Piaggio, is made by the same company which produces the iconic Vespa scooter, and with its new three wheel design provides an unrivalled level of safety, road grip and stability that no other two-wheeler can match especially on uneven and wet surfaces. For the purists out there rolling their eyes already at the prospect of a ‘three wheel’ bike – think again, this is an amazing piece of machinery.

Why? Normal bikes tend to slide, wobble and - more often than not - fall over when ridden hard over wet road markings, tram tracks and so on. The MP3 takes on all of that in its stride, with absolute confidence – and it is no wider than a comparable two-wheel maxi scooter. For getting new

riders onto a scooter this bike not only inspires confidence, it genuinely offers unheard of handling and braking. The MP3 will win many new friends.

The bike rides like a normal scooter, and if anything is super calm with a neutral road feel and handling. The MP3's three-disk braking system and exceptional roadholding capability actually combine to reduce braking distance by 20 percent compared to other scooters.

The scooter has brakes that haul it up in super-bike distance, yet theres no back w h eel lift, shudders or complaints – every time.

The MP3’s domain is without a doubt city and suburban riding.

It absolutely shines in all conditions, and the MP3 is a 250 cc scooter that experienced riders and novices alike can ride confidently and safely knowing they have a scooter with well above average braking and handling. I couldn’t fault it in town with riding position, comfort or handling. The only

You can take it though for a Sunday run in the hills - and it is amazing fun punting along as with that extra front wheel comes added stability, braking power - and you can lean waaaaay over. It has the same 40 degrees of lean as many bikes - and the added front stability is a boon to entry and exit speeds. Pushing the scooter to its limits one can make the back wheel hop over bad surfaces - but it is totally controlled and stable. Just remember the 250 is designed for the urban environment and not for scratching footpegs that don’t exist.

What I most enjoyed about this bike was that it is a working, breathing, very neat looking ‘concept’ bike, that you can ride

happily every day - and always have fun riding. The MP3 offers a real alternative for personal urban transport - and it has an absolute cavernous amount of lockable undercover storage for both rider and passenger.

The MP3 stowed away my laptop, satchel - and my son’s schoolbag - all while my son and I rode grinning down the expressway each day. It is fun, practical and ver y, ver y economical.

The MP3 will be available in two engine displacements: 250cc and 400cc. The 250cc model sells for $10,990 (plus ORC), while the 400 at $11,990 (plus ORC) will go on sale in January 2008.

Just as the MP3 seems to break the rules, this totally unique scooter clearly also breaks new ground. With the engineering and ride technology it offers, the Piaggio MP3 now suddenly takes scooters to a whole new level of safety, performance and fun.

The Piaggio MP3 250: provides more than ample rear and under seat lockable storage Test bike courtesy of PS Importers Pty Ltd

Bookshelf COPYRIGHT: LAW AND PRACTICE

By Colin Golvan SC, The Federation Press, November 2007, PB $49.00 n this new release from Federation Press leading copyright lawyer Colin Golvan SC explains copyright with great clarity and sophistication.

He balances a sharp focus on “pra ctical ” matt ers li ke preparing a copyright case for trial and the clauses of a publishing agreement (which can be used as precedents), with discussion of key trends such as copyright and the internet, the use of copyright to protect indigenous art and culture, and th e corporatisation of copyright.

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In this highly readable and well cited guide the author’s own interest in writing, publishing and cultural artefacts clearly resound in many chapters, breathing new life into the study of Australian copyright law, with the guide indeed making a commendable contribution to the current understanding of copyright law in 2007.

Aimed primarily at practitioners, Copyright Law and Practice is not intended to be exhaustive; rather it is a practical guide to enduring principles which have been adapted by the legislature

to contemporary conditions.

Sections in the text examine jurisdictional problems arising from trans-national access to information, file swapping and various new methods of piracy, and guide the reader through developments. Golvan then both explains the law as it stands - and supports the continuing but measured recalibration of the legislation.

Well indexed and easy to refer to, the book will also appeal to students and geberal interest readers with its knowledgeable yet easy to read style.

ADMINISTRATIVE LAW IN AUSTRALIA

By WB Lane & S Young, Thomson Lawbook 2007, HB $114.95 An abstract from Thomson Lawbook inistrative Law A dinmAustralia is jointly written by Professor WB Lane and Dr Simon Young, authors with both academic and practical experience in the area. This is a scholarly and original study constituting a detailed exploration

and synthesis of this very imp or t ant and dynamic f i el d of Au strali an l aw.

This text reinterprets the conventional focus of administrative law study, judicial review, but also integrates an equally scholarly and discursive study of merits

review, freedom of information and ombudsman investigation.

Employing a predominantly Federal focus, this book also ensures that relevant State and Territory differences are addressed. The end result is an accessible and unique contribution to public law

discourse in Australia, one that crosses beyond the confines of conventional legal study in this field to present a more comprehensive examination of public sector accountability, and one that crosses jurisdictional boundaries to present a new and illuminating comparison.

LAW OF INVESTEMENTS

By J McLaren, M Simpson & M Toohey, Thomson Lawbook 2nd ed 2007, PB $104.95 An abstract from Thomson Lawbook

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aw of Investments brings together legal principles in relation to various investments including equities, derivatives, shares and property.

It also explains the relevant taxation laws attracted by

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various investments and analyses the application of taxation law to participants in the investment industry.

The new edition has been s i g n i f i c a n t ly re v i s e d a n d

expanded , including new chapters on corporate governance and directors’ duties, corporate insolvency, insider trading, company takeovers, superannuation and personal bankruptcy.

Conferences and Events INTERNATIONAL

AUSTRALIA

January 2008 24th - 25th Jan Monaco ICC/FIDIC The Resolution of Disputes under International Construction Contracts Host: International Chamber of Commerce Phone: +33 1 49 53 28 28 Fax: +33 1 49 53 30 30 / 29 42 Website: www.iccwbo.org Email: Events@iccwbo.org February 2008 18th - 21st Feb Paris, France PIDA/Negotiating, Drafting, Managing International Contracts & Conflict Resolution Host: International Chamber of Commerce Phone: +33 1 49 53 28 28 Fax: +33 1 49 53 30 30 / 29 42 Website: www.iccwbo.org Email: events@iccwbo.org March 2008 28th Mar Paris, France 28th Anniversary of the ICC Arbitration Rules Host: International Chamber of Commerce Phone: +33 1 49 53 28 28 Fax: +33 1 49 53 30 30 / 29 42 Website: wwww.iccwbo.org Email: events@iccwbo.org April 2008 2nd - 4th Apr Singapore Amicable Dispute Resolution Training Host: International Chamber of Commerce (ICC) Contact: ICC Events Phone: +33 1 49 53 28 69 Fax: +33 1 49 53 30 30 Website: www.iccwbo.org/events Email: events@iccwbo.org 14th - 16th Apr Paris Amicable Dispute Resolution Training Host: International Chamber of Commerce (ICC) Contact: ICC Events Phone: +33 1 49 53 28 69 Fax: +33 1 49 53 30 30 Website: www.iccwbo.org/events Email: events@iccwbo.org

February 2008 14th - 16th Apr Paris, France ADR Workshop Host: International Chamber of Commerce Phone: +33 1 49 53 28 28 Fax: +33 1 49 53 30 30 / 29 42 Website: www.iccwbo.org Email: events@iccwbo.org

13th – 16th Feb Adelaide 2008 National Conference – Better Choices, Better Health Improving Compensation Outcomes Host: TRACSA Phone: 08 8354 2285 Website: www.alloccassionsgroup.com/ BetterChoicesBetterHealth Email: conference@aomevents.com

May 2008 14th - 15th May Pilanesburn National Game Reserve, South Africa South African Safari Conference Lawyering in the International Market Host: Center for International Legal Studies Contact: PO Box 19 A5033 Salzburg, Austria Fax: 43 662 835171 Email: manuela.wedam@cils.net June 2008 9th - 12th Jun Paris, France Spanish PIDA/International Commercial Arbitration Host: International Chamber of Commerce Phone: +33 1 49 53 28 28 Fax: +33 1 49 53 30 30 / 29 42 Website: www.iccwbo.org Email: events@iccwbo.org August 2009 23rd - 26th Aug World Trade & Convention Centre, Halifax, Nova Scotia, Canada 5th World Congress on Family Law & Children's Rights Contact: Gail Fowler Capital Conferences Pty. Ltd. PO Box 253 Church Point NSW 2105 Phone: +61 2 9999 6577 Fax: +61 2 9999 5733 Website: www.lawrights.asn.au Email: gail.fowler@capcon.com.au

28th Feb - 1st Mar Brisbane 2008 Superannuation Conference Host: Superannuation Group, Law Council of Australia Contact: Natalia Heath Communique Australasia Pty Ltd Suite 5, Level 2, 139 Alexander Street Crows Nest NSW 2065 Phone: 02 9901 4122 Email: nheath@conferenceworld.com.au September 2008 10th - 12th Sep Perth, Western Australia 9th National Mediation Conference 'Transforming the Landscape' Contact: Promaco Conventions Pty Ltd PO Box 890 Canning Bridge WESTERN AUSTRALIA 6153 Phone: 08 9332 2900 Fax: 08 9332 2911 Website: www.promaco.com.au/2008/ mediation Email: promaco@promaco.com.au 10th - 12th Sep Perth, Western Australia 9th Mediation Conference MEDIATION: Transforming the Landscape Contact: Promaco Conventions Pty Ltd PO Box 890, Canning Bridge WESTERN AUSTRALIA Phone: 08 9332 2900 Fax: 08 9332 2911 Website: www.promaco.com.au/2008/ mediation Email: promaco@promaco.com.au

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

21 OCTOBER 2007 – 20 NOVEMBER 2007 ACTS PROCLAIMED (21 OCTOBER 2007 –20 NOVEMBER 2007) Harbors and Navigation (Australian Builders Plate) Amendment Act 2007 (No 23 of 2007) Commencement: 4 February 2008.

Gazetted: 25 October 2007.

Gazette No. 75 of 2007 Residential Parks Act 2007 (No 19 of 2007) Commencement except ss 18 and 43:

5 November 2007 Gazetted:

25 October 2007. Gazette No. 75 of 2007 Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (No 27 of 2007) Commencement: 1 November 2007.

Gazetted: 1 November 2007,

Gazette No. 76 of 2007

Penola Pulp Mill Authorisation Act 2007, No. 40 of 2007 Gazetted: 25 October 2007.

Gazette No. 75 of 2007 Collections for Charitable Purposes (Miscellaneous) Amendment Act 2007, No. 41 of 2007 Gazetted: 25 October 2007.

Gazette No. 75 of 2007 Prince Alfred College Incorporation (Constitution of Council) Amendment Act 2007, No. 42 of 2007 Gazetted: 25 October 2007.

Gazette No. 75 of 2007 Criminal Assets Confiscation (Serious Offences) Amendment Act 2007, No. 43 of 2007 Gazetted: 1 November 2007,

Gazette No. 76 of 2007 Penola Pulp Mill Authorisation Act 2007 (No 40 of 2007) Commencement: 1 November 2007.

Gazetted: 1 November 2007,

Gazette No. 76 of 2007 Pharmacy Practice Act 2007 (No 7 of 2007) Commencement: 8 November 2007.

Gazetted: 8 November 2007,

Gazette No. 78 of 2007 West Beach Recreation Reserve (Boating Facilities) Amendment Act 2007 (No 39 of 2007) Commencement: 8 November 2007.

Gazetted: 8 November 2007,

Gazette No. 78 of 2007 Fisheries Management Act 2007 (Act No 4 of 2007)

Commencement ss 6, 21 to 39 (inclusive), 51 to 59 (inclusive), 62 to 102 (inclusive), 110 to 116 (inclusive), clauses 1 and 3 to 11 (inclusive) of Schedule 1 and Schedule 2: 1 December 2007 Gazetted: 15 November 2007, Gazette No. 79 of 2007

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Environment Protection (Site Contamination) Amendment Act 2007, No. 44 of 2007 Gazetted: 1 November 2007,

Gazette No. 76 of 2007 Statutes Amendment (Investigation and Regulation of Gambling Licensees) Act 2007, No. 45 of 2007 (amends Authorised Betting Operations Act 2000 and Casino Act 1997) Gazetted: 1 November 2007,

Gazette No. 76 of 2007 Rail Safety Act 2007, No. 46 of 2007 (amends Railways (Operations and Access) Act 1997; repeals Rail Safety Act 1996) Gazetted: 8 November 2007,

Gazette No. 78 of 2007 Victims of Crime (Commissioner for Victims’ Rights) Amendment Act 2007, No. 47 of 2007 (amends Victims of Crime Act 2001; and Criminal Law (Sentencing) Act 1988) Gazetted: 8 November 2007,

Gazette No. 78 of 2007

West Beach Recreation Reserve (Boating Facilities) Amendment Act 2007, No. 39 of 2007 Gazetted: 25 October 2007.

Statutes Amendment (Victims of Crime) Act 2007, No. 48 of 2007 (amends Bail Act 1985; Correctional Services Act 1982; Evidence Act 1929; Victims of Crime Act 2001; and Youth Court Act 1993) Gazetted: 8 November 2007,

Gazette No. 75 of 2007

Gazette No. 78 of 2007

ACTS ASSENTED TO (21 OCTOBER 2007 – 20 NOVEMBER 2007)

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APPOINTMENTS

Independent Gambling Authority Deputy Presiding Member: ( from 25 October 2007 until 27 August 2009)

Margaret Julia Kelly Gazetted: 25 October 2007.

Gazette No. 75 of 2007 Judge of the District Court of South Australia Judge of the Environment, Resources and Development Court of South Australia Deputy Presiding Officer of the Equal Opportunity Tribunal (for a term of three years) Judge of the Licensing Court of South Australia from 25 October 2007 Julie McIntyre Gazetted: 25 October 2007.

Gazette No. 75 of 2007 Youth Court Magistrates.

From 26 October 2007.

Kym Boxall Penelope Anne Eldridge Gazetted: 25 October 2007.

Gazette No. 75 of 2007 Metropolitan Fire Service Disciplinary Committee Member: ( from 1 November 2007 until 31 October 2009) Presiding Member: ( from 1 November 2007 until 31 October 2009)

Graham Walter Dart Gazetted: 1 November 2007, Gazette No. 76 of 2007 Equal Opportunity Tribunal, Deputy Presiding Officer: ( from 25 November 2007 until 24 November 2010)

Andrea Simpson Deputy Presiding Officer: ( from 13 January 2008 until 12 January 2011)

Michael Boylan Panel Member: ( from 25 November 2007 until 24 November 2010)

Richard Altman Gazetted: 15 November 2007, Gazette No. 79 of 2007 RULES

Nil

Regulations Promulgated (21 October 2007 – 20 November 2007) REGULATION NAME ...............................................................................................................REGULATION #

DATE GAZETTED

Liquor Licensing Act 1997 ........................................................................................................................ 246 of 2007 Liquor Licensing Act 1997 ........................................................................................................................ 247 of 2007 Primary Industry Funding Schemes Act 1998 ............................................................................. 248 of 2007 Harbors and Navigation Act 1993 ....................................................................................................... 249 of 2007 Residential Parks Act 2007....................................................................................................................... 250 of 2007 Liquor Licensing Act 1997 ........................................................................................................................ 251 of 2007 Environment Protection Act 1993 ........................................................................................................ 252 of 2007 Development Act 1993 ................................................................................................................................ 253 of 2007 Electricity Act 1996 ....................................................................................................................................... 254 of 2007 Pharmacy Practice Act 2007................................................................................................................... 255 of 2007 Harbors and Navigation Act 1993 ....................................................................................................... 256 of 2007 Liquor Licensing Act 1997 ........................................................................................................................ 257 of 2007 Liquor Licensing Act 1997 ........................................................................................................................ 258 of 2007

25 October 2007, Gazette No 75 of 2007 25 October 2007, Gazette No 75 of 2007 25 October 2007, Gazette No 75 of 2007 25 October 2007, Gazette No 75 of 2007 25 October 2007, Gazette No 75 of 2007 1 November 2007, Gazette No 76 of 2007 1 November 2007, Gazette No 76 of 2007 1 November 2007, Gazette No 76 of 2007 1 November 2007, Gazette No 76 of 2007 8 November 2007, Gazette No. 78 of 2007 15 November 2007, Gazette No. 79 of 2007 15 November 2007, Gazette No. 79 of 2007 15 November 2007, Gazette No. 79 of 2007

Threat to Judicial Independence

by John Goldberg LSSA PRESIDENT-ELECT Hood, member M rofDennis the Legislative Council, has recently criticised Judge Marie Shaw of the District Court for suspending the prison sentence of Christopher Niehus following his conviction for admitted sex offences.

The Law Society expresses great concern that a member of parliament would suggest that a Judge of the District Court should be removed from office as a consequence of a sentencing decision.Judicial pronouncements can and should be the subject of public debate but if they are incorrect in principle, the correct way to deal with them is by appeal

to a higher court, not by seeking to sack the judge.

Judges are independent of both Government and Parliament for a very good reason; they are meant to make their decisions without fear or favour and free from political influence.

As for the sentence against Mr

Niehus; it should be looked at in the context of the Judge’s sentencing remarks. They can be found at the Court website at http://www.courts.sa.gov. au/sent_remarks/index.html.

If there is to be public debate, it should be about the appropriateness of the sentence in light of the facts, not about the Judge’s fitness to hold office

VALE t is with considerable sadness that we note the recent untimely death of Federal Magistrate Mr John Morcombe.

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Mr John Morcombe practised as a barrister in South Australia since 1995, in the areas of family law, de facto property, and commercial litigation. He

previously practised as foundation partner in the South Australian legal f i r m o f Morcombe Townsend, in areas including

commercial law, commercial litigation and family law.

We e x p r e s s o u r d e e p e s t sympathies to his family.

SA government pledges more support for legal aid A tMit ocrhnaee yl -AtG ekni nesroanl announced that t h e L e g a l S e r v i c e s Commission

would receive an extra $1.8 million this financial year to assist with immediate cost pressures on the organisation

that provides legal aid in South Australia. Mr Atkinson says he has been aware for some months that the

Commission was under financial pressure and asked the Attorney-General’s Department to investigate.

Law Society 2007 Christmas Closure: We wish you a safe and happy festive season and advise that the Society will close at 12 noon on Wednesday 19 December 2007 and reopen on Monday 7 January 2008.

35

November 2007

Moving On, Moving Up

Top Row, L to R: Daniella Di Girolamo, Leah Annese, Lina Kolomoitseva, Lisa Thomson Second Row: Tim Graham

Wallmans Lawyers is pleased to announce Tim Graham h a s j o i n e d Wal lm a n s a s an Associate in the Local Government team. Tim will advise Councils and Local Government entities on a range of issues, including governance and policy, risk management, administrative law, statutory interpretation, and planning and environment. Leah Annese has been appointed as a Solicitor in the Local Government section. Leah will provide advice to Councils on a diverse range of issues relevant to local government practices and procedures.

Lina Kolomoitseva has joined Wallmans as a Solicitor in the Litigation and Dispute Resolution section, and will represent clients on a range of c ompl e x c omm erc i al litigation issues. Taxation and Superannuation Partner, Stephen Heath, commenced with Wallmans in September, enhancing the already significant Commercial and Business division.

Graham Edmonds-Wilson wishes to announce that he has retired from

the partnership of Minter Ellison, and has commenced practice as a barrister at Howard Zelling Chambers, 11th Floor, 22 Victoria Square Adelaide. Telephone (direct): 8211 7208; (M): 0400 237 072; (E): gedmonds-wilson@hzc. com.au.’ Grope Hamilton Lawyers is pleased to announce the appointment of two new team members. Daniella Di Girolamo has recently joined as an associate solicitor in the Commercial Litigation team. She can be contacted at ddigirolamo@gropehamilton. com. Lisa Thomson has also recently joined as a para legal in the Commercial Litigation team and will continue as an associate solicitor when admitted in February 2008.

Lisa can be contacted at; lthomson@gropehamilton . com.au .

Beger & Co. Lawyers is pleased to announce the appointment of Zeena Anthony as a lawyer.

Zeena’s contact details are: 213 Payneham Road , St Peters, SA, 5069 (PO Box 169 Stepney SA 5069), telephone

8362 6400, fax 8362 3555 and email: zeena@berger.com.au Nor m a n Wat erh o u s e i s pleased to announce the following appointments to their Local Government Services division. George Karzis joins as Special Counsel in the Local Government Advisory and Employment and Industrial Relations teams, after spending more than five years working as a Ministerial Adviser with the South Australia State Government. Marc Duncan has joined the Planning and Environment Team as a Senior Associate, from Planning SA, where he assisted in the System Improvement/ Legislation directorate of that organi sation . Ni ck Llewellyn-Jones also joins Norman Waterhouse as an Associate in the Employment and Industrial Relations team.

After 48 years in practice, Kevin Lynch, has retired as a partner with Lynch Myer. All at Lynch Meyer, particularly Jill Cooper and David Myer wish him well as he enjoys his retirement.

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Diary Dates CPD and Events Calendar To purchase copies of papers from earlier CPD sessions please telephone us on (08) 8110 5200 We invite practitioners to contact the Education Section on 08 8110 5200 or email cpd@ lawsocietysa.asn.au with any suggestions for potential CPD topics and speakers.

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 contact: Law Society (Education Section) Telephone: 08 8110 5200 or email us at cpd@lawsocietysa.asn.au 2008 Wednesday 6 February

STAMP DUTY: TIPS & TRAPS 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: Bernard Walrut, Torrens Chambers Chair: John Tucker, Rankines Solicitors Tuesday 12 February CORNERSTONE LAW SERIES: TRIALS IN THE MAGISTRATES COURT Further details to be advised

Wednesday 13 February ‘LITIGATION UNDER THE ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 (CTH)’ 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: Simon Ower, Edmund Barton Chambers, Ruth Beach, Environmental

Defenders Office.

Chair: The Hon. Justice Finn Friday 15 February INTRODUCTION TO MARKETING BASICS 9.00am - 12.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenter: Wayne Lyons, Marc Makrid & Associates

Wednesday 20 February REVERSE MORTGAGES 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Jeremy Moore, Moore Law & Kerrin Falconer, Financial Planning Association (SA Chapter Chair) Chair: Greg Anderson, Jenkins Anderson Allard

Friday 22 & Saturday 23 February ADVOCACY TRAINING

WORKSHOPS, IN ASSOCIATION WITH THE AUSTRALIAN ADVOCACY INSTITUTE Full details to be advised

Wednesday 27 February PREPARATION & PRESENTATION OF COMMERCIAL MATTERS IN THE SUPREME, DISTRICT & FEDERAL COURT 5.30pm - 7.00pm Law Society Seminar Room Level 2 / 132 Franklin Street, Adelaide Presenters: Paul Slattery QC, Anthony Mason Chambers, Neville Rochow, Howard Zelling Chambers Chair: The Honourable Justice Besanko, Federal Court of Australia

Friday 29 February – 2 March COUNTRY CONFERENCE – PT LINCOLN Full details to be advised

Roma the First:

Law Society

A biography of Dame Roma Mitchell

Our world has been changed by terrorism and other threats around the globe and the ADF is increasingly being called on to provide security and defend our way of life.

The picture depicts a Timor veterans widow and child. In South Australia, Legacy cares for some 12,000 widows and dependants of deceased veterans.

AUTHORS: SUSAN MAGAREY & KERRIE ROUND ISBN 9781862547803 PB, ILLUSTRATED RRP $39.95 WWW.WAKEFIELDPRESS.COM.AU both in her personal life, and in her innovative care er, an d e x p l o r e s their complexities and contradictions. It provides a rich social historical context, focused on South Australia, but locating this society in the global world of the Common Law and post-imperial philanthropy.

the First is the life R oma story of Roma Flinders

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Mitchell (1913–2000), CRVO, AC, DBE, Australia’s first female Queen’s Counsel, and the first woman in Australia to be appointed a Judge in a superior court. She was the first woman invited to present the Boyer Lectures, and the first woman to b e m a d e Chancellor of an Australian university. Her achievements were ‘ u n p re c e d e n t e d ’ , s a i d Governor -Gen eral Sir William Deane, ‘not only in the history of South Australia but also in the history of our country’.

This insightful book depicts the sources of Roma Mitchell’s ambition and achievements,

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Roma the First also presents unprecedented analyses of the Dunstan Decade, the 1970s, in South Australia, including a new account of ‘the Bray court’ – the Supreme Court of S outh Au strali a w h en classical poet, John Jefferson Bray, was Chief Justice – and of the social and political uproar around the D u n st a n government’s dismissal of Police Commissioner Harold Sainsbury. The book presents a n e w and c ontro versi al account of the ensuing Royal Commission, which Roma Mitchell chaired. It analyses the work of the inaugurating Human Rights Commission (1980s) which Dame Roma chaired, and it shows how personal and public life merged for her during her years as the first woman to be the Governor of an Australian state.

Legacy’s funding is not Government based and it must rely on the generosity of the public to fund its services of caring and support.

In today’s hazardous environment Legacy stands ready to help the families of all veterans of those who die in war or subsequently. It includes members of today’s Defence Forces who lose their lives as a result of their service.

Your support, by a personal recommendation to your clients, citing Legacy as a very worthwide recipient for a bequest, endowment or donation would be most appreciated.

For further information contact Geoff Banks, Legacy Club of Adelaide Incorporated, 102 Franklin Street, Adelaide 5000.

Telephone: (08) 8231 9812

Website: www.legacy.com.au

Charity Feature CanDo4Kids-Townsend House provides community services to Blind/vision impaired and Deaf/ hearing impaired children and young adults around South Australia.

CanDo4Kids is about highlighting the potential of children instead of focusing on their disabilities.

Townsend House has been helping South Australian kids since 1874, and your support will ensure that we can continue this tradition.

Your gift or bequest will make a real difference in the lives of children who need it the most.

For more information please contact:

we care

CanDo4Kids, 28 King George Ave, HOVE SA 5048 P (08) 8298 0933 F (08) 8377 1933 TTY (08) 8298 0960 E: info@cando4kids.com.au I: www.cando4kids.com.au

CONSULTING

REAL ESTATE

ENGLISH LAW AGENCY SERVICES Fearon & Co

SOLICITORS

*UDY GIVES EVERYONE MAXIMUM

Established 1825

*UDY -ORRIS HAS NOT EARNED HER REPUTATION AS ONE OF !DELAIDE´S LEADING 2EAL %STATE 3ALES #ONSULTANTS

BY RESTING HER CASE

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.

3HE CONTINUES TO WORK ENERGETICALLY AND ENTHUSIASTICALLY TO REALISE THE HIGHEST POTENTIAL FROM ANY PROPERTY LISTED WITH HER

• Administering English Estates • Buying and selling homes and business premises

3O IF YOU WANT THE MAXIMUM RESULT FROM SELLING YOUR HOME CALL *UDY -ORRIS AT +LEMICH 2EAL %STATE AND YOU BE THE JUDGE

• Recovering compensation for accident victims • Litigation including debt Recovery and Matrimonial

*UDY -ORRIS

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 0044 (0) 1483 540843 mw@fearonlaw.com

PROPERTY John Phillips 0044 (0) 1483 540841 ajp@fearonlaw.com

PROBATE Francesca Nash 0044 (0) 1483 540842 fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

,EADING !DELAIDE 2EAL %STATE 3ALES #ONSULTANT /F½CE -OBILE

+LEMICH 2EAL %STATE +ING 7ILLIAM 3TREET +ENT 4OWN 3!

JUDY KLEMICH COM AU WWW KLEMICH COM AU

Websites • Graphic Design • Publishing

Phone Vicki Schmerl on 8233 9433

CONSULTING

CONSULTING

CONSULTING

CONSULTING

FORENSIC PSYCHOLOGY

LITIGATION ASSISTANCE FUND LAF

AUST. WIDE SERVICE

• Psychological and Psychometric assessment of adults and children • Neuropsychological assessment • Prompt, detailed and concise reporting ADELAIDE FORENSIC PSYCHOLOGY 72 Kermode Street NORTH ADELAIDE SA 5006 Tel: 8267 1300 Fax: 8239 1549 CONSULTANTS: Greg Ireland, Jon Hare, Anthony Walsh (All are members of the APS College of Forensic Psychologists)

PROCESS SERVING REPOSSESSIONS INVESTIGATIONS MISSING PERSONS

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.

Level 24, Santos House, King William Street, ADELAIDE SA 5000 P.O. Box 591 PORT AUGUSTA SA 5700 T. (08) 8641 2111 F. (08) 8641 2100 M. 0418 838 807 outbackbusiness@ozemail.com.au

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.

9473010, 0100623, 0425707, 0530634, 0532312, 9472471, 0639930

ACCIDENT ANALYSIS 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

AD DETAILS To advertise in the Bulletin please contact:

boylen

PUBLISHING MEDIA CREATIVE

Phone: 8233 9433 Fax: 8351 5633 sales@boylen.com.au

CONSULTING

Chamber Vacancy David Greenwell has retired from Victoria Chambers due to illness.

Applications for his room are now being sought.

Contact Chris Hall, B.E. (Hons) HALL TECHNICAL SERVICES 2 Clarke St, Norwood, SA 5067 Phone (08) 8331 2369 Email: info@halltechnicalservices.com.au

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

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.

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.

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 8229 0299 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Willis Australia Ltd

Any interested persons should contact: David Haines QC or Roger Sallis T: 8231 2282

CONSULTING ENGINEER

LAWcare

confidential

professional counselling

PETER MADDERN

PETER MADDERN & ASSOCIATES PTY LTD Substantial experience in matters involving: •

Product liability

•

Workcover recovery

•

Public liability (slips, trips, stairs)

•

Statutory enforcement

Seek the weight and reliability of engineering/safety opinion based upon experience measured by: •

Decades of professional experience, including over 25 years as an expert engineer and witness

•

Thousands of expert related reports

•

Court appearances numbering well into the decades

41

Peter Maddern Chartered Engineer Phone 8267 6337 Fax 8267 6338 pmaddern@olis.net.au PO Box 96, North Adelaide SA 5006

November 2007

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

Philip Scicluna

Licence no ISL115256

Investigator, Process Server and Commercial Agent.

• Process serving documents • Investigation services • Locating and skip tracing services

Phone: (08) 8373 1466 or 0407 797 382 Fax: (08) 8373 3622 Email: Phils@frontierisp.net.au Postal: P.O. Box 403, Marleston B.C, SA 5033 Office: 175C King William Road Hyde Park SA 5061

CONSULTING

CONSULTING ACTUARIES Brett & Watson P TY. LTD.

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

Ground Floor 157 Grenfell Street Adelaide SA 5000

w w w w.lawso cietysa.as n. a u

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

FORENSIC PSYCHOLOGY Assessment • Reports • Treatment

CIVIL & CRIMINAL EXPERTISE Dr Jack White

0416 232 606

Suite 3, 459 Morphett St, Adelaide SA 5000

Dr Carol Cayley

0412 794 424

T.N. Cogan & Co

72 Henley Beach Road MILE END SA 5031

8352 3288

ATKINSON COMMERCIAL SERVICES Australia wide document service (any jurisdiction) Warrants Real Property Enquiry work Repossession Distraints Locates Ph: 8231 0922 Fax: 8231 0929 GPO Box 1250 Adelaide 5001 atcom@senet.com.au

Consulting Engineers Australian Technology Pty Ltd for expert opinion on: • Vehicle failure and accidents • Vehicle design • Industrial accidents • Slips and falls • Occupational health and safety Douglass Potts BA BTech (Mech Eng) Dip Ed MSAE-A MIEAust MAOQ MRAI CPEng

245 Sturt St, Adelaide SA 5000

GPO Box 949, Adelaide SA 5001

Tel: 8212 7740 Fax: 8212 2775

wdrpotts@bigpond.net.au

LINDQUIST PARTNERS

PROCESS SERVING INVESTIGATIONS MISSING PERSONS

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

Fax: 8351 5633 nhardwicke@boylen.com.au

Investigation summons and examination summons attendances.

Adelaide, Port Adelaide, Elizabeth, Christies Beach and Holden Hill.

Cost Consultants Phone: 8233 9408

PROCESS SERVERS

Advise that they attend and accept instructions for all Investigation and Examination Summons hearings in the Metropolitan area:

To advertise in the Bulletin please contact:

42

FITZGERALD PARALEGAL

Ms Lisa Chantler 0403 339 438

PUBLISHING MEDIA CREATIVE

Nadine Hardwicke Publication Manager

CONSULTING

Tel: 8212 1703 Fax: 8212 5413

AD DETAILS

boylen

CONSULTING

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

8271 4573

Competitive rates and reliable 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 Email mci@adamci.com.au

FIRE & EXPLOSION INVESTIGATION 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

JAM DPC/0106/W

The whole world buys South Australian. Do you?

Our products are in demand the world over because they’re the best.

Every sale also feeds our economy, creating jobs, livelihoods and industries.

So next time you go shopping, buy South Australian. It’ll make a world of difference.

We are delighted to present the 18th edition of the Pro Bono Australia Directory of Not for Profit Organisations.

This year we bring you a very full 72-page publication, distributed to 56,000 people and organisations across Australia. a The Pro Bono Australia Directory is designed to be used as a national guide to giving. Whilst the publication is known for itss strength in the bequests area, it is increasingly used in many other ways. Every year we hear evidence of the effect the publication has had in facilitating partnerships, donations, grants or bequests.

We urge you to use it, and our enhanced website, and to refer the directory to others who may find it useful.

Find your FREE COPY of the Pro Bono Directory in this issue.

The Pro Bono Directory lists the contact details of Not for Profit organisations from across Australia, organised by area of social interest, making it easy for g organisation. g you or your clients to find the right

www.probonoaustralia.com.au The Pro Bono Directory is available in a searchable version online at www.probonoaustralia.com.au You can also access the other services provided by Pro Bono Australia, including our Not for Profit and Corporate Community news services, VolunteerMatch service, Not for Profit sector employment opportunities and events.

If you would like any further information about the Directory, or Pro Bono Australia, please contact us.

Pro Bono o Australia Suuitte 302 6855 Burke Rd Cambberw well Victoria 3124 P: 03 8080 5650 F: 03 8080 5649 E: probono@ @probonoaustralia.com.aau