2023 - Summer Law Letter - Issue 142

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SUMMER 2023 – ISSUE 142


The Law Society of Tasmania President Julia Higgins




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Contents From the President ............................... 6


Law Society Recent Activities ............. 8 Barking Up the Right Tree: Tasmania's First FourLegged Judicial Appointment.......................... 13


Council 2022/2023............................... 14 Personal Injury Claims: Investigation and Preparation from Inception to Trial Craig Hobbs......................................... 30



Elevating Legal Leadership James Fletcher..................................... 22 Tasmania Law Reform Institute Professor Jeremy Pritchard................. 34





Admissions 2023.................................. 36 Ethics.................................................... 38 Opinion................................................. 39



Superannuation................................... 40 Finance................................................. 42 ETHICS AND COURT APPEARANCE

LawCare................................................ 43 Early Career Lawyers Committee Reports................................................. 44



People.................................................. 47 Family Court Case Notes.................... 48


Book Reviews....................................... 50 28


Luke Rheinberger GPO Box 1133, Hobart, Tasmania, 7001 28 Murray Street, Hobart, Tasmania, 7000


(03) 6234 4133






SUBMISSION OF ARTICLES AND ADVERTISING Contributions to the Law Letter are always welcome. For further details or advertising rates please contact Shelley Harwood on (03) 6234 4133 or shelley.harwood@lst.org.au. Views expressed by contributors are not necessarily endorsed by the Law Society of Tasmania. No responsibility is accepted by the Law Society of Tasmania, the editor or the printers for the accuracy of information contained in the text and advertisments. LAW LETTER SUMMER 2023


From the President

I am very honoured to be in the role of President. It is a busy but rewarding position. Over the last two months I have been presented with new challenges and situations along with remaining focused on my objectives for the year. I am grateful to our Executive Director, Mr Rheinberger, and members of Council for their ongoing support an input. The question of attraction and retention of practitioners in Tasmania particularly in criminal law remains a key area of focus. Whilst the number of legal practitioners in Tasmania has increased exponentially over the last ten years, retention and attraction of younger lawyers remains one of our biggest challenges. The number of younger practitioners leaving the profession is increasing and it is a concern. This impacts upon regional areas such as Burnie, Devonport, and Launceston. It is impacting upon criminal practise given the limited number of criminal practitioners available throughout the State. The Law Society of Tasmania has taken several steps in that regard which can be summarised as follows: a.



Offering a rebate to solicitors who practise predominantly in criminal law in relation to annual professional indemnity insurance. The Duty Lawyer Scheme which operates in Hobart is in its eighth year. This year there are thirteen solicitors from private practise participating in the scheme which is a positive outcome. This offers young practitioners the opportunity to appear at Court, develop advocacy skills, and gain experience as criminal practitioners. This will hopefully see them continue in their careers as criminal lawyers.





The Law Society of Tasmania remains in active discussions with Tasmania Legal Aid and the University of Tasmania. One matter of discussion is offering internships to university students. An incentive to be launched in 2024 is that the Vice President, Mr Will Justo, and I will be travelling to colleges in Launceston. We will be meeting with year 11 and 12 students who are undertaking pre-tertiary legal studies. We will be talking to them about considering careers as lawyers in Tasmania. We will be asking them to look at options where they commence work in law firms whilst they are studying law at university. The benefit of this is that they will have exposure to work in a law firm, obtain invaluable experience, make connections within the profession while they obtain a law degree. If this program is successful, it would be extended to Hobart. The Centre of Legal Studies will be expanding its program whereby students will travel to Launceston (currently students travel to the Northwest Coast) and spend the day with the profession.

All the above are small steps that we are working on to try and find a long-term solution. One of the roles of the Law Society is to advocate and make submissions in relation new and amended legislation. We are fortunate to have established a positive relationship with AttorneyGeneral Guy Barnett. Since my appointment in October 2023, we have been consulted and been involved in making submissions on the following Bills: a.


Sentencing Amendment (Presumption of Mandatory Sentencing) Bill 2023. Supreme Court (Parliamentary Commission of Enquiry) Bill 2023.

The Law Society of Tasmania did not support either Bill as drafted.

Over the last two months, I have had the opportunity to meet and engage with several stakeholders, including: a.

Attorney-General Guy Barnett


Shadow Attorney-General Ella Haddad


Department of Justice




Tristan Bell, Assistant Director, Engagement, Communications and Policy Unit, Tasmania Prison Services


Emma White, Director of Legal Studies

We have remained proactive with our media engagement. I have also had the opportunity to travel to Canberra to represent the Law Society at the ceremonial sittings for the swearing in of the new Chief Justice and the opening of the new Law Council of Australia building. This provided the opportunity to meet Presidents from the other states and territories and to have discussions as to matters impacting upon our members. It is anticipated that 2024 will be a busy year. We will be relaunching the Presidents lunch in the south and north of the state in April 2024. This year we lost several dear colleagues, Justice Ewan Crawford AC, Mr Tim Bugg AM, Former Magistrate Mr Peter Dixon and Mr Richard Ruddle. Each made a significant contribution to the legal profession in Tasmania and will be fondly remembered. I wish all our Law Society Members a happy and restful festive season. I look forward to seeing you all at the opening of the legal year in 2024. JULIA HIGGINS President

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Law Society Recent Activities Rheinberger, attended Law Society of Tasmania wellbeing committee meeting

The Society continues to advocate on behalf of the profession in a number of ways. It meets regularly with the Attorney-General, heads of jurisdiction and other people and organisations connected with the legal/justice sector. It provides submissions on proposed legislative amendments, law reform issues and matters of interest to the profession. Recent examples include:

30.08.2023 - Executive Director, Luke Rheinberger, attended meeting with Law Society Chief Executive Officers

31.08.2023 - Executive Director, Luke Rheinberger, attended meeting with Ray Mainsbridge of Pro Bono Centre to discuss pro bono services in Tasmania

27.09.2023 - Executive Director, Luke Rheinberger attended fortnightly meeting with Law Society Chief Executive Officers

27.09.2023 - Committee thank you dinner

28.09.2023 - Executive Director, Luke Rheinberger and Deputy Executive Director attended National Risk Managers Conference

28.09.2023 - Council meeting held to discuss Law Society statement on Voice to Parliament

2.10.2023 - Meeting of the Property & Commercial Law committee

4.09.2023 - Meeting of Property & Commercial Law Committee

5.09.2023 - Meeting of Board of Legal Education

6.09.2023 - Deputy Executive Director attended Land Titles Office Reference Group meeting to discuss e-settlements

7.09.2023 - Executive Director, Luke Rheinberger attended meeting with Director Tasmania Legal Aid

7.09.2023 - Meeting of Family Law Committee held

3.10.2023 - Meeting of the Litigation Committee

7.09.2023 - Centre for Legal Studies Board meeting held

3.10.2023 - Meeting of the Board of Legal Education

8.09.2023 - Executive Director, Luke Rheinberger attended IILACE Program Committee meeting

4.10.2023 - Council Regional Annual General Meetings held

5.10.2023 - Executive Director, Luke Rheinberger attended meeting with Director Tasmania Legal Aid

5.10.2023 - Meeting of the Family Law Committee

5.10.2023 - Executive Director, Luke Rheinberger meeting with Director of Legal Aid

9.10.2023 - Council sub-committee meeting held to discuss the attraction and retention of lawyers

10.10.2023 - Out of sessions Elder & Succession Law committee held to discuss Enduring Power of Attorney Law Reform

11.10.2023 - Executive Director, Luke Rheinberger met with new Attorney General, the Hon. Guy Barnett

11.10.2023 - Executive Director, Luke Rheinberger attended fortnightly meeting with Law Society Chief Executive Officers

1.08.2023 - Deputy Executive Director, Francesca Beattie, met with Shane Budden of Queensland Law Society, to discuss conference session content for Elder & Succession Law conference 2.08.2023 - Executive Director, Luke Rheinberger, attended meeting with Law Society Chief Executive Officers 3.08.2023 - Executive Director, Luke Rheinberger, attended Law Society of Tasmania family law committee meeting 7.08.2023 - Deputy Executive Director, Francesca Beattie, attended Property & Commercial Law committee of Law Society of Tasmania

8.09.2023 - Golden Gavel

11.09.2023 - Executive Director, Luke Rheinberger attended NLAP Review Consultation meeting

12.09.2023 - Executive Director, Luke Rheinberger met with the Solicitor’s Trust and Department of Justice to discuss the Justice Miscellaneous Bill

4.09.2023 - Council of the Law Society meeting

10.08.2023 - Executive Director, Luke Rheinberger, attended meeting with Legal Aid Tasmania

26.09.2023 - Executive Director, Luke Rheinberger attended meeting with CEO of Local Government Association (LGA) Tasmania to discuss disclosure of information

1.08.2023 - Executive Director, Luke Rheinberger, attended Law Society of Tasmania litigation committee meeting

31.08.2023 - Deputy Executive Director, Francesca Beattie, and President, Amanda Thompson, attended Associate Judge Holt's retirement (ceremonial sitting) at Supreme Court of Tasmania

8.08.2023 - Executive Director, Luke Rheinberger, attended Law Society of Tasmania criminal law committee meeting

25.09.2023 -Council sub-committee meeting held to discuss the attraction and retention of lawyers

1.08.2023 - Executive Director, Luke Rheinberger, and President, Amanda Thompson, attended meeting with Tasmania Police to discuss electronic disclosure

Rheinberger and Deputy Executive Director, Francesca Beattie attended meeting to discuss new lawyer program update and development of mentor.teaching faculty list

10.08.2023 - Executive Director, Luke Rheinberger, attended meeting with Legal Aid Tasmania and Yvette Maker of University of Tasmania regarding review of criminal law system - defence lawyers 11.08.2023 - Deputy Executive Director, Francesca Beattie, attended Elder & Succession Law Conference in Hobart 15.08.2023 - Employment Diversity & Inclusion committee of the Law Society of Tasmania held

12.09.2023 - Meeting of Elder & Succession Law Committee

13.09.2023 - Executive Director, Luke Rheinberger and President, Amanda Thompson, attended former Justice Ewan Crawford’s funeral in Launceston

15.08.2023 - Deputy Executive Director, Francesca Beattie, attended Elder & Succession Law committee of Law Society of Tasmania

15.09.2023 - Executive Director, Luke Rheinberger attended joint CEO’s meeting, Meeting of Law Society CEO’s and Conference of Law Societies’ meetings

17.08.2023 - Deputy Executive Director, Francesca Beattie, and President, Amanda Thompson, attended thank you and address to the profession at Family Circuit Court of Australia

15.09.2023 - Employment Law Conference 2023 held at Wrest Point

13.10.2023 - Council Annual General Meeting

16.09.2023 - Executive Director, Luke Rheinberger attended Law Council of Australia Directors’ Meeting

14.10.2023 - Meeting of Council

17.10.2023 - Meeting of Employment Diversity & Inclusion committee

17.10.2023 - Deputy Executive Director, Francesca Beattie attended Mortgagees and Mortgagee Representatives Reference Group meeting

17.10.2023 - Executive Director, Luke Rheinberger attended IILACE Executive Committee meeting

18.10.2023 - Deputy Executive Director, Francesca Beattie met with Recorder of Titles

18.10.2023 - Meeting of Probono Committee

19.10.2023 - President, Julia Higgins, interviewed by ABC Northern radio

23.08.2023 - Deputy Executive Director, Francesca Beattie, attended Legal Practitioners Reference Group (Conveyancing Reforms) at Land Titles Office

23.08.2023 - Executive Director, Luke Rheinberger, attended pro bono committee meeting

25.08.2023 - Deputy Executive Director, Francesca Beattie, attended PEXA round table meeting

25.08.2023 - Executive Director, Luke Rheinberger, and Deputy Executive Director, Francesca Beattie attended meeting with PEXA

30.08.2023 - Executive Director, Luke



18.09.2023 - Council sub-committee meeting held to discuss the attraction and retention of lawyers

19.09.2023 - Executive Director, Luke Rheinberger attended IILACE Executive Committee meeting

19.09.2023 - Meeting of Criminal Law Committee

19.09.2023 - Meeting of Employment Diversity & Inclusion Committee

21.09.2023 - Executive Director, Luke Rheinberger met with Peter Stuckey, Executive Governance, of TasNetworks

25.09.2023 - Executive Director, Luke

20.10.2023 - Meeting held between President, Julia Higgins, and Executive Director of Tasmanian Legal Practice Course

20.10.2023 - President, Julia Higgins, had telephone meeting with Attorney-General

23.10.2023 - Executive Director, Luke Rheinberger attended Council of Regulatory Officers meeting

23.10.2023 - Meeting of Property & Commercial Law Committee held

25.10.2023 - Executive Director, Luke Rheinberger attended fortnightly meeting with Law Society Chief Executive Officers

27.10.2023 - Executive Director, Luke Rheinberger attended Ethics Officers Annual Forum

31.10.2023 - Meeting of Elder & Succession Law Committee

31.10.2023 - Meeting of Property & Commercial Law Committee

1.11.2023 - Executive Director, Luke Rheinberger attended the Tasmanian Legal Assistance Collaborative Service Planning Forum

1.11.2023 - Telephone discussion had between Attorney-General, President, Julia Higgins, and Executive Director, Luke Rheinberger re Justice & Related Legislation (Misc Amendments) Bill (No. 2) 2023

1.11.2023 - Meeting of Wellbeing Committee

3.11.2023 - President, Julia Higgins, met with President of Northern Early Career Lawyers to discuss implementation of rolling out the program in Launceston for trainees

6.11.2023 - President attended ceremonial sitting of new Chief Justice of High Court of Australia in Canberra

7.11.2023 - Meeting of Board of Legal Education

8.11.2023 - Executive Director, Luke Rheinberger attended IILACE planning meeting

21.11.2023 - Executive Director, Luke Rheinberger attended IILACE Executive Committee meeting

8.11.2023 - Executive Director, Luke Rheinberger attended fortnightly meeting with Law Society Chief Executive Officers

21.11.2023 - President, Julia Higgins, and Executive Director attend IILACE reception at Government House

21.11.2023 - Meeting of Employment Diversity & Inclusion committee

9.11.2023 - President, Julia Higgins, spoke with journalist from Advocate newspaper regarding concerns about solicitors accessing their clients in prison

22.11.2023 - Executive Director, Luke Rheinberger and President, Julia Higgins, attend IILACE conference opening

10.11.2023 - President, Julia Higgins, met with Risdon Prison Services

22.11.2023 - Executive Director, Luke Rheinberger attended fortnightly meeting with Law Society Chief Executive Officers

10.11.2023 - Meeting of Law Foundation

13.11.2023 - Telephone discussion between President, Julia Higgins, and journalist, Helen Kempton, from Ädvocate Newspaper regarding solicitors’ access to clients at Rison Prison

28.11.2023 - Meeting of Elder & Succession Law Committee

29.11.2023 - Meeting of Wellbeing Committee

30.11.2023 - Executive Director, Luke Rheinberger attended Dinner of Chief Officers Law Societies (COLS) dinner in Canberra

1.12.2023 - Executive Director, Luke Rheinberger attended Law Society CEO meetings in Canberra

1.12.2023 - Executive Director, Luke Rheinberger attended Law Council of Australia Gala dinner in Canberra

2.12.2023 - Executive Director Luke Rheinberger attended Law Council of Australia Directors' Meeting in Canberra

4.12.2023 - Meeting of Property & Commercial Law Committee

5.12.2023 - Meeting of Litigation Committee held

6.12.2023 - Deputy Executive Director, Francesca Beattie attended Land Titles Office Liaison Group Meeting

13.11.2023 - Council sub-committee meeting held to discuss the attraction and retention of lawyers

14.11.2023 - President, Julia Higgins, attended meeting with Tasmanian Civil & Administrative Tribunal

14.11.2023 - Article published in Examiner newspaper regarding solicitors’ access to prisoners

17.11.2023 -Executive Director, Luke Rheinberger attended meeting with Legal Aid to discuss criminal law resourcing

20.11.2023 - Executive Director, Luke Rheinberger and President, Julia Higgins, met with Shadow Attorney-General, Ella Haddad MP

20.11.2023 - Meeting of Council

21.11.2023 - Executive Director, Luke Rheinberger and President, Julia Higgins, attended meeting with Department of Justice

The Law Society of Tasmania Members The Year in Numbers @ 19 December 2023 600


1024 Members



300 219 200 53




















Despite technological change in many areas of the law, the concept of signing (and witnessing) succession planning documents electronically, for many, remains absurd. In recent times, however, and definitely during the pandemic, the question ‘can I sign my documents electronically or online?’ has become increasingly common. Unfortunately, the legal answer in almost all Australian jurisdictions is ‘no’ or ‘not without incurring a lot of legal expenses to have it recognised’. With the exception of:

permits the use of electronic signatures and remote witnessing in succession planning documents will continue to spread throughout Australia and become the ‘new normal’.

Current Status of Legislation Across Australia

Victoria, which (as of 26 April 2021) has permanent widespread electronic signature and remote witnessing legislation for all succession planning documents;

New South Wales, which (as of November 2021) has permanent remote witnessing legislation, but expressly excludes the use of electronic signature for succession planning documents; and

Queensland, which (as of 30 April 2022) has legislation that permits the use of electronic signatures and remote witnessing for limited succession planning documents,

all other Australian jurisdictions continue to prevent the use of electronic signatures and remote witnessing for all succession planning documents and their execution remains a very formal (pen-and-wet-ink and physically present witnesses) process. Despite much hesitation, it is clear that a new era has dawned, and it is likely that succession planning legislation that



Legislation Prior to the Pandemic Legislation in each Australian jurisdiction provides for ‘simple’ electronic signatures, with the effect that they have the same legal status as handwritten signatures if both parties agree to the use of the electronic signatures.1

Key elements of these changes, which may provide considerable convenience for companies operating across borders or across the considerable distances in regional Australia, include: o

certain company and meeting related documents, including deeds, may be signed by electronic means so long as the method of signing identifies the person and indicates their intentions;


there is no requirement for all signatories to sign documents, including deeds, in the same form or on the same page of a document or that they sign by the same method, and documents may be executed in counterparts via any appropriate technology;


a company may provide meeting documents including notices of meetings and notices of a resolution electronically;


a company can hold meetings either physically (in person), partially physically and partially virtually or wholly virtually providing the governing constitution allows for virtual meetings. If the constitution does not allow for virtual meetings, companies and registered schemes need to seek shareholder approval to amend their constitutions. Whichever method is used it is still required that meetings give the members a reasonable opportunity to participate;


no particular technology/ process is required to be used, however companies will need to ensure that the technology used is reasonable and allow the members who are entitled to attend the meeting, and do attend the meeting using that virtual meeting technology, as a whole, to exercise orally and in writing any rights of those members to ask questions and make comments; and


parties to sign a document can

Prior to the pandemic: •

all Australian jurisdictions provided that electronic signatures could not validly be used to sign (or witness) succession planning documents (including wills, powers of attorney and health-care documents);2 and key Commonwealth legislation, such as the Corporation Act 2001 (Cth) did not allow the use of electronic signatures.

During the pandemic, and (if it can be said) after the pandemic, Australian states and territories responded in different ways. Unsurprisingly, the federal government, and the state governments in each state and territory have taken a different path, and where changes have been/were made they are not uniform.

Federal Government – Corporations Act The Federal Government’s Corporations Amendment (Meetings and Documents) Act 2022 (Cth) which came into effect on 23 February 2022 (for the execution of documents) and 1 April 2022 (for meetings held and documents sent) made the temporary (pandemic) provisions that allowed the use of electronic signatures to execute company documents, and the use of technology to hold meetings, and sign and distribute meetings-related documents (‘the Corps Amendment Act’).

sign without necessarily signing the same form or using the same method. It is important to note that companies can continue to send documents/ notices, sign documents, and hold meetings, in the traditional physical manner. The Corps Amendment Act provides for a review of its provisions to be conducted within two years from its implementation. If this review fails to occur, the virtual meeting amendments will cease to have effect.

and execution of a will (including those signed under direction).

Unsurprisingly, the federal government, and the state governments in each state and territory have taken a different path, and where changes have been/were made they are not uniform.

Victoria In Victoria, the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) came into effect on 26 April 2021 and made the temporary (pandemic) provisions that allowed the use of electronic signatures and witnessing of documents by audio visual link permanent (‘the Victorian Act’).

Interesting components on the Victorian Act are: o


The amendments implemented permit the following succession planning ‘documents’ to be signed using an electronic signature, and if they require witnessing, for this to occur via audio visual link: o

a will;


a power of attorney or an enduring power of attorney;


a deed;


an affidavit; and


a statutory declaration.

Although they resemble the emergency pandemic regulations, the Victorian Act imposes stricter requirements to safeguard against misuse.


With specific reference to enduring powers of attorney, the Victorian Act amends the Powers of Attorney Act 2014 (Vic). Under the amended provisions, each witness is still required to fulfill all existing obligations, including certification requirements under s36 of that Act, however the document can now be electronically signed and witnessed with all persons in separate spaces connected by an audio-visual link. The witnesses must observe, by audio-visual link, the principal (or directed signer) sign the document, either electronically or on hard copy (and the signature of any witnesses physically present). The witnesses must also be physically situated within Victoria. With specific reference to wills, the Victorian Act amends the Wills Act 1997 (Vic) to add new sections 8A–8D which prescribe a new ‘remote witnessing procedure’ and contemplates and provides strict conditions and procedure for the execution, alteration


a ‘special witness’ (who must be either an Australian legal practitioner3 or a Justice of the Peace4), must be one of the witnesses; section 8B(1) provides that ‘[i]f a will is executed in accordance with the remote execution procedure, the document which has been checked and signed by the special witness in accordance with section 8A(7) is the valid will’ and section 8B(4) provides that, unless recognised as an informal will or an order for rectification, ‘[c]ounterpart documents do not constitute a valid will’. This effectively removes any question about which ‘document’ is the original will; section 8B(2) provides that, for the purposes of the remote witnessing procedure, ‘[t]he place of execution of a will executed in accordance with the remote execution procedure is the place where the testator is located at the time the will is executed’. Some have interpreted this as allowing the will-maker and witnesses to be in entirely different places or countries, however given that section 8A(3) expressly provides that ‘[a]ll elements of the remote execution procedure must be carried out on the same day and within Victoria’ [emphasis added], the author does not agree. If any of the will-maker, the ordinary witness or the special witness are not within Victoria when the will is executed, the remote witnessing procedure is likely not available to them and the will is unlikely to comply with the new laws; and section 8C provides that ‘[a] n audio visual recording of the execution of a will by remote execution procedure may be

made only if all of the parties to the procedure consent to a recording being made’. It also confirms that ‘[t]he making of a recording or the failure to make a recording referred to in subsection (1) does not affect the validity of the will executed by the remote execution procedure or the use of that procedure.’

New South Wales In New South Wales, the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) came into effect in November 2021 and made the temporary (pandemic) provisions in Part 2B of the Electronic Transactions Act 2000 (NSW) (‘the NSW ETA’) that allowed the witnessing of documents by audio visual link permanent. The NSW ETA now permits the witnessing of the following succession planning ‘documents’ to be by audio visual link: o

a will;


a power of attorney or an enduring power of attorney;


a deed or agreement;


an enduring guardianship appointment;


an affidavit, including an annexure or exhibit to the affidavit; and


a statutory declaration.

Audio visual link is defined as technology that enables ‘[c]ontinuous and contemporaneous audio and visual communication between persons at different places, including video conferencing’. When witnessing documents over audio visual link, the witness must also take care to verify the identity of the signatory and be satisfied that it is them signing the document, that they are freely and voluntarily making the document and that the document is the same as the one they are signing as a witness if signing a counterpart. There are certain criteria that must be met to satisfactorily witness a document remotely, a witness must: o

observe the person signing the document in real time;


confirm that they witnessed the signature by either signing a counterpart or a scanned copy of the signed document. Either way the witness must sign as soon as practicable after witnessing the signing of the document;


be reasonably satisfied that the document they sign is the same document, or a copy of the document, that they have


observed the signatory sign; and o

endorse the document with a statement specifying the method used to witness the signature (for example, audio visual link) and that the document was witnessed in accordance with s 14G of the NSW ETA.

Importantly, the temporary laws that were previously in place allowing wills, enduring power of attorney documents and advance health directives to be witnessed remotely have expired. Accordingly, these documents must now be executed on paper and in the physical presence of the required witnesses.

In NSW a document may be witnessed via audio visual link even if the signatory, witness or both are outside of the jurisdiction of New South Wales so long as the document is made or required to be signed under an Act or law of New South Wales or the governing laws for the document are the New South Wales laws. The position in New South Wales relating to electronic signing has not changed with the implementation of the remote witnessing procedures. This means that electronic signatures are not possible for wills, enduring powers of attorney, enduring guardian appointments, affidavits and statutory declarations. Even though audio visual link witnessing is now possible for those documents, wet ink signatures are still required.

Queensland In Queensland, the Justice and other Legislation Amendment Act 2021 (Qld) (“the Qld Act”) came into effect on 30 April 2022 and made a number of the temporary (pandemic) provisions in the COVID-19 Emergency Response Act 2020 (Qld) permanent. The amendments implemented by the Qld Act permit the following succession planning ‘documents’ to be signed using an electronic signature, and if they require witnessing, for this to occur via audio visual link: •

general powers of attorney for businesses, which can now be signed using electronic signature, in counterparts, and without a witness; affidavits and statutory declarations, which can be signed using electronic signature, in counterparts,5 and is required to be witnessed by a ‘special witness’ 6 who can be present in person or present via audio visual link;

deeds, which can now be signed using electronic signature, in counterparts, and without a witness; and

particular mortgages.

Audio visual link is defined as ‘[f] acilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes videoconferencing’.7



Australian Capital Territory, Tasmania, South Australia and Western Australia and Northern Territory Despite some jurisdictions introducing temporary (pandemic) provisions that allowed remote witnessing of documents, each of the Australian Capital Territory, Tasmania, South Australia, Western Australia and the Northern Territory presently do not allow succession planning documents (including wills, powers of attorney, enduring guardians, medical appointments and deeds) to be executed using electronic signature and/or to be witnessed remotely.

Recognition of ‘Foreign’ Electronic Documents and Documents Witnessed Remotely Practitioners must not forget that many jurisdictions8 have legislation that recognise foreign wills,9 foreign enduring powers of attorney and foreign deeds. It is entirely foreseeable that such legislation would recognise wills, enduring powers of attorneys and deeds executed using electronic signature and/ or remote witnessing in a jurisdiction that allows them. For example: •

an executor (appointed under the terms of a valid will that was signed using electronic signature and/or remotely witnessed); an attorney (appointed under the terms of a valid enduring power of attorney that was signed using electronic signature and/or remotely witnessed); and/or a trustee (appointed under the terms of a valid deed that was signed using electronic signature and/or remotely witnessed),

could engage a practitioner (in a jurisdiction that does not currently allow the use of electronic signatures and/ or remote witnessing) to assist them to obtain a grant of probate or a reseal, to assist with property matters, and/or to act generally.

result of the pandemic they are more relevant than ever. It is inevitable that the use of electronic signatures and remote witnessing will continue. Practitioners should be prepared for this, and should begin to adapt. Those who adapt and embrace technology in their practices will have the ‘competitive advantage’ and will lead the future. Like the move to online and app-based banking, those who refuse to adapt may be left behind, or will be forced to play catch up in the near future when technology in document execution becomes a competitive necessity. KIMBERLEY MARTIN B.A. LL B (Hons), LL.M, TEP Director WMM Law 1.

Revised Explanatory Memorandum, Electronic Transaction Bill 1999 (Cth). Electronic Transactions Act 2000 (Tas), Electronic Transactions (Victoria) Act 2000 (Vic), Electronic Transactions Act 2001 (ACT), Electronic Transactions Act 2000 (NSW), Electronic Transactions Act 2001 (Qld), Electronic Transactions (Northern territory) Act 2000 (NT), Electronic Transactions Act 2000 (SA) and Electronic Transactions Act 2011 (WA). Also, see Electronic Transactions Act 1999 (Cth) sch 1.


Electronic Transactions Act 2000 (Tas), Electronic Transactions (Victoria) Act 2000 (Vic), Electronic Transactions Act 2001 (ACT), Electronic Transactions Act 2000 (NSW), Electronic Transactions Act 2001 (Qld), Electronic Transactions (Northern territory) Act 2000 (NT), Electronic Transactions Act 2000 (SA) and Electronic Transactions Act 2011 (WA). Also, see Electronic Transactions Act 1999 (Cth) sch 1.


An Australian Legal Practitioner means an Australian lawyer who holds a current Australian practising certificate.


The Justice of the Peace must be appointed under section 7 of the Honorary Justices Act 2014 (Victoria).


Note: counterparts cannot be used where the document is being physically signed in the physical presence of a witness.


A special witness is one of the following: 1. an Australian legal practitioner; or 2. a government legal officer who is an Australian Lawyer who witnesses documents in the course of their government work; or 3. a notary public; or 4. a Justice of the Peace or a Commissioner of Declarations employed by the law practice that prepared the document.


See s1B of Oaths Act 1867 (Qld) and s24H(9) Powers of Attorney Act 1998 (Qld).


See The Convention on the Conflict of Laws to the Form of Testamentary Disposition and The European Succession Legislation. For specific examples see: England and Wales: Wills Act 1963 (UK); Australia: Part 5 Wills Act 2008 (Tas), s17 Wills Act 1997 (Vic), Division 6 Succession Act 1981 (Qld), Part 2.4 Succession Act 2006 (NSW), Part 3 Wills Act 1936 (SA), Part VII Wills Act 1970 (WA), Part 5 Wills Act 2000 (NT), and Part 2A Wills Act 1968 (ACT); and South Africa: Wills Act 1953 (South Africa) s3.


Note: legislation differs widely.

Conclusion Although not formally recognised in many jurisdictions, the use of electronic signatures and remote witnessing in succession planning is here, and as a


In Hobart’s FCFCOA Registry, Zoey visits hearings, legal interviews and settlement conferences – all to relieve people’s stress as they navigate the justice system. In a heartwarming development, the Hobart registry of the Federal Circuit and Family Court of Australia has welcomed its newest member to the team, Zoey – a specially trained support dog. The appointment of Zoey marks a significant step in enhancing the emotional well-being of those involved in legal proceedings, making the courtroom environment more comforting and less intimidating. This initiative has been made possible due to the efforts of Judge Taglieri, her owner, who proposed that Zoey be trained as a Court Support Dog.

A Pioneering Initiative While for many years support dogs have been used in courtrooms elsewhere including in the USA, Canada and Europe, it remains an emerging practice in Australia and Zoey’s appointment in Hobart represents a pioneering move in Tasmania. “She is the first judicial appointment of a four-legged variety” Chief Justice Alstergren AO announced during a speech at a recent function at the court. Zoey’s role is to provide a reassuring presence to individuals involved in legal proceedings, and she is already making a positive impact.

Judge Taglieri and Zoey

requires support. Zoey’s handler, Liz, is a dedicated volunteer who receives an honorarium generously donated by the local Family Law Practitioners’ Association (FLPA) and Women’s Legal Service.

Zoey’s Key Functions After completing her accreditation, Zoey will serve three main functions within the courtroom environment: •

Zoey’s Schedule and Availability Zoey will be available at the Hobart registry 2-3 times per week, depending on demand. To manage her availability, there will be an internal diary system known as the “Zoey Diary.” This system will allow court personnel, including visiting judges, to check Zoey’s availability and make bookings as needed. While Zoey primarily works with Judge Taglieri, who is her guardian, visiting judges are also welcome to book her assistance if they have a litigant who

Assisting Parents and Children in Court Child Expert Interviews: Zoey will provide emotional support to parents and children involved in court child expert interviews, helping to create a more comfortable and less distressing experience.

Assisting Vulnerable Witnesses: Zoey will also play a crucial role in supporting vulnerable witnesses, both in the courtroom and in designated safe rooms. Her presence will help ease the anxiety often associated with testifying.

General Interaction: Beyond her specific roles, Zoey will interact with court staff and legal practitioners, promoting a calm and supportive atmosphere.


Judge Taglieri’s Perspective Judge Sandra Taglieri, shared her thoughts on this Tasmanian first: “ I believed that Zoey could assist at the court and developed the idea of a project for Hobart as an extension of the successful court dog pilot program implemented in the Melbourne Registry. The profession in Tasmania has embraced the program, and Zoey has already been present for court hearings and judicial settlement conferences as part of her preparation and training for her accreditation. The response from the parties and from the profession has been exceedingly positive.” Incorporating support dogs like Zoey into the courtroom environment is a testament to the commitment of the Hobart registry and judicial community to provide a more compassionate experience for those navigating the complexities of the legal system, fostering a more empathetic and humane approach to justice. Zoey begins her official duties after accreditation in late 2023 /early 2024.



YOUR COUNCIL 2023/2024

is the peak policy


making forum for the Law Society of Tasmania. It makes decisions about policies affecting the legal profession and representations or comments on

Julia Higgins Bishops Tel: 0400 851 547 president@lst.org.au

policy or legislation to government and organisations.

The Council of the Law Society of Tasmania elected highly respected family lawyer, Ms Julia Higgins, as its new president on 14 October 2023.

Council meets eight

Ms Higgins is a partner at Bishops Barristers and Solicitors in Launceston, specialising in family law.

times annually to consider matters. It has a five member executive which meets fortnightly. The Council’s committees include: • •

Property and Commercial Law Continuing Professional Development

Criminal Law


Diversity and Inclusion Elder and Succession Law

Pro Bono


Family Law


* Executive Members


Ms Higgins graduated from the University of Tasmania in 2002 with a Bachelor of Commerce and a Bachelor of Laws before moving to Launceston to commence work at Bishops. Ms Higgins is a former chair of the Family Law Practitioners Association Inc (Tasmania), playing a pivotal role in advocating for new Family Law Court facilities in Launceston which were officially opened this year. ‘I am very honoured and excited to be appointed as the next president and in particular the first female president from the Northern Region’ Ms Higgins said. Ms Higgins is looking forward to continuing to assist in the important work of the Law Society of Tasmania. Ms Higgins said that her presidential priorities will be as follows: •

The attraction and retention of younger legal practitioners within the private profession.

Addressing the lack of criminal lawyers particularly in the North-West and Northern Tasmania.

Promoting opportunities in regional, rural, and remote legal practice.

A continued focus on the health and wellbeing of the Tasmanian legal profession.

Working collaboratively with Tasmania Legal Aid in relation to access to justice for legally aided clients, given the shortage of private practitioners taking on such work.

Many of these priorities were also championed by Ms Higgins’ predecessor, Amanda Thompson, to whom Ms Higgins expressed the profession’s gratitude for her leadership and dedication over the last year.

Vice President Will Justo *

Wallace, Wilkinson & Webster Ph: 6234 8022


Treasurer Amelia Higgs *

Dobson Mitchell Allport Ph: 6210 0000

Helen Bassett

Walsh Day Mihal Bassett Ph: 6425 2077

Samuel Claessens

Imogen Cook *

Rohan Foon

Olivia Jenkins

Douglas & Collins Ph: 6332 3400

Ogilvie Jennings Ph: 6235 0800

Douglas & Collins Ph: 6332 3400

Rae & Partners Ph: 6337 5555

Simon Gates

Robert Hegarty

Carey Higgins

Dinesh Loganathan

Barrister Ph: 0415 535 707

Douglas & Collins Ph: 6332 3400

Land Titles Office Ph: 6165 4444

Logan & Partners Tel: 0468 457 654

Callum Purcell *

Luke Taylor *

Amanda Thompson * Alison Wells

Hamilton Purcell Lawyers Ph: 6423 6669

Office of the Solicitor General Ph: 6165 3566

Police Association of Tasmania Ph: 6278 1900

Butler, McIntyre & Butler Ph: 6222 9444



In recent years, the sentencing of an increasing number of offenders over the age of 65 has been evident in Australia, predominantly in relation to sexual offences. There are a number of factors influencing this trend, including increased life expectancy with medical advances, the investigation and prosecution of historical sex offences, and increasing use of online technologies for sexual offending behaviour. Recent data published by the Australian Institute of Criminology reported growing evidence of live streaming technologies being used to facilitate child sexual abuse by older Australian males (e.g., online sex tourism by Australians exploiting Asian children). This behaviour increased during COVID-19 lockdowns most likely due to travel bans preventing sex tourism. The data from the analysis of financial transactions for Australians paying for live streaming of child sexual abuse showed that the average age of males engaging in this behaviour was 59, and extended upwards to age 82. This is one example of a current trend that has led to the incarceration of older offenders in Australia, some for the first time in their lives. In addition to newly sentenced individuals over the age of 65, the prison population is aging commensurate with the broader community. Long-term prisoners are more vulnerable to the earlier development of health problems such as dementia due to heightened risk factors such as social isolation, acquired brain injury, and alcohol and drug abuse history. Dementia is a progressive neurological condition, defined by impairment in multiple cognitive domains (e.g., memory, attention, reasoning, moral processing, visuospatial, language and behaviour) that significantly interferes with activities of daily living (e.g., personal grooming, feeding, toileting, mobility, and sexual



behaviour). Dementia is a heterogenous description for a broad range of neurological conditions including Alzheimer’s disease, Frontotemporal dementia (FTD), vascular brain disease, and Lewy Body Disease. Dementia is essentially the progressive loss of brain functioning due to structural changes in the brain over time (e.g., nerve cells in the brain and their connections stop working properly). Impaired executive function and memory loss increase the risk of criminally vulnerable behaviour in individuals with dementia (e.g., sexual offences, acts of aggression, shoplifting, and unsafe driving). Notably, not all individuals with dementia will commit crimes. However, symptoms of dementia may lead to behaviours that violate social norms and result in criminal charges. There is no clinical evidence to suggest that dementia will change pre-morbid sexual attraction (e.g., heterosexuality, homosexuality or pedophilia), however the expression of an individual’s sexual interests may become more disinhibited with the progress of dementia, and the sexual drive can become more intense and demanding as dementia progresses in some individuals (i.e., this symptom is termed hypersexuality). This can result in aggressive and sexually violent behaviour. These issues can place spouses, partners, personal care providers, nursing home peers, health staff, and members of the general public at risk of violence and sexual violence. The evidence-based literature presents international data on the correlation between dementia and offending behaviour, particularly in relation to acts of aggression and sexual offending behaviour. This correlation is related to the decreased behavioural control and increased behavioural disinhibition that is associated with dementia. The literature also details the social and ethical concerns regarding the incarceration of elderly offenders with dementia, and if incarceration is the only option, how to best equip prison environments to provide the required supports and health services for elderly offenders to survive.

With respect to the prosecution of charges against the elderly, issues of insanity defence, fitness to stand trial, and Verdins considerations may require assessment during various stages of the legal proceedings. As dementia is progressive, deterioration in capacity may occur if the legal proceedings take a lengthy period to resolve, and assessments at different points in time may be needed to ensure the defendant is able to instruct and fairly participate. The Verdins limbs provide important considerations for sentencing elderly defendants in criminal law matters when the defendant has impaired mental functioning at the time of committing the index offence and/or at the time of sentencing. The Verdins limbs include consideration of how the defendant’s mental health problems may be relevant to the sentencing process with respect to: moral culpability, the nature of the sentence and the conditions in which it should be served, general and specific deterrence, and the impact of imprisonment on mental health. Aside from general health concerns such as depression, anxiety and trauma, elderly offenders are at significant risk of presenting with impaired mental functioning due to dementia processes. These issues may or may not have been present at the time of the offending behaviour, but due to delays in prosecution procedures the defendant’s cognitive status may be of concern at the time of trial and sentencing. This may raise issues of fitness to stand trial, and Verdins considerations regarding the impacts of incarceration as a sentencing option. In addition to dementia, there may also be other physical health issues for elderly defendants that pose challenges for care in a prison environment if incarceration is the sentencing outcome. The international evidence-based literature provides models for “dementia friendly” prisons, which apply the broader knowledge regarding dementia-friendly communities to the prison setting. The models include: prioritising education regarding dementia for prison staff; training for prison peer-supporters;

providing opportunities for prisoners with dementia to engage in activities that they are able to do and to promote their wellbeing; designing accommodation units that are user-friendly for prisoners with dementia; limiting disruptive changes to the environment during the prisoner’s sentence that can increase confusion and disorientation; increasing contact with family and access to memory prompts such as photos of family, home and pets; providing appropriate health aids to assist with mobility and self-care; providing prisoner access to medical and allied health specialists in dementia care; providing routine assessments of cognitive impairment in standard health checks for prisoners aged over 50; and ensuring that prisoners are engaged with referral pathways to dementia-support services prior to release. Specific examples of features of “dementia-friendly” prison environments, according to a review undertaken by Alzheimer’s Australia in 2014, include: visual aids such as large print signage and pictures, calendars to indicate the date and routine events, handrails, non-slip floors, absence of stairs, peer or staff supported meal-times and walking routines, and brain-stimulating activities such as the use of music, card games, Tai Chi, gardening and art.

In terms of structural solutions, there are prisons that adapt existing accommodation units to be more “dementia-friendly” and who dedicate dementia-trained staff to that unit. Other prison systems that are more wellresourced have designed and established new facilities that are fit for purpose. Purpose-built facilities that are based in the broader community are more likely to attract specialist health staff to service to work in the unit, and are more likely to integrate effectively with family visits (e.g., able to provide a more welcoming environment for families).

Centre (UTAS) which currently offers highly accessible free MOOC (Massive Open Online Course) training in Understanding Dementia, Understanding Traumatic Brain Injury, and Preventing Dementia. For legal practitioners and other professionals working within the Justice system, these courses may be a helpful professional development activity. More information is available on the website: mooc.utas.edu.au The Wicking team is also keen to provide professional development seminars for interested organisations to increase community awareness of dementia.

The Tasmanian Prison Service is currently very limited in the resources and accommodation available for elderly prisoners. Discussions are currently taking place between Health and Justice staff regarding how to best utilise the options available, however the available resources seem to fall well short of the current and increasing demands. Just as there is a current focus on the increasing needs of the ageing population in Australia in the broader community, consideration is required regarding the specific needs of elderly prisoners, not only for their safety and wellbeing, but for broader community risk management.

DR GEORGINA O'DONNELL Forensic and Clinical Psychologist Dr Georgina O’Donnell is an independent Forensic & Clinical Psychologist based in Hobart. She specialises in psycho-legal assessments across jurisdictions, and provides independent assessments for criminal law, family law, child safety, and psychological injury matters state-wide.

Tasmania is fortunate to have the Wicking Dementia Research and Education

Member Advisor Service Ph 03 6234 4133

Conduct Complaint? The Law Society Can Help Members who are subject to a conduct complaint can receive up to 3 hours free legal advice. This service is provided by a panel of experienced practitioners appointed by the Society. Contact the Society on 6234 4133 for the list of current panel members or visit the member services section of the website.


28 Murray Street, Hobart, Tasmania, 7000



This article discusses why the commencement date of testamentary trusts is important for legal practitioners and accountants in estate planning. The question of when a testamentary discretionary trust (TDT) commences has been the subject of a quiet, but continuing debate, between trust and estate practitioners for some time. This article has previously been published in the first issue of the 2023 STEP Australia newsletter. The contents of the article are copyright to Peter Worrall.

and from the date on which my executor first transfers an asset from my estate to the trustees of the trust’2 or, as Hutley’s Australian Wills Precedents provides, ‘I create a testamentary discretionary trust.’3 Commencement is important from the point of view of the rights arising from the choses in action being available.4

2. What are the necessary elements of a trust? For the purposes of this article, the following is adopted: there are four essential elements in every form of trust ‘… the trustee, the trust property, the beneficiary… … and the personal obligations annexed to the property’.5 Dal Pont states the essential elements as being three: ‘… that the essence of a trust is the holding of property by its legal owner (“the trustee”) for the benefit of others (“the beneficiaries”)’.6 ‘This is the more traditional view of there being property held by a Trustee for the objects (Beneficiaries) of a Trust.’7

Based on these two definitions, and Livingston, no trust is in existence until there is property. Livingston requires the transfer of property from the estate to the TDT for commencement; nevertheless, a TDT may have a form of existence if it is possessed of a chose in action.8 It can only have those rights, from death, if the terms of the will do not provide for the commencement or, in Hutley’s terms, ‘creation’, of those rights on a date different, or potentially different, from the date of death.9

3. Livingston The first principle in Livingston is that there is no interest at law, in the sense of property, held by a beneficiary in an estate where the interest of that beneficiary derives from the unadministered part of that estate: ‘there is no property in Queensland over which the respondent (beneficiary) can claim to exercise powers as the administrator of Mrs Coulson.’ Livingston was dealing with the rights transferred on the death of a beneficiary to her executors in the estate

1.Why is Commencement Important? A review of twelve articles about TDT’s showed that with five there was no discussion; one noted the obvious that they can only be created by a Will; one suggested that TDT’s commence on the first transfer of assets; one incorrectly noted that it happens on distribution of the residue (incorrect because the fund of for the trust may come out of another portion of the estate); another suggested that the Executor establishes it; another suggested that it was when Probate is granted, and yet another on the death of the Willmaker. None of the articles noted provisions in wills that provide for ‘each Trust established under this Will is deemed to be established on my death’1 or wills that provide ‘each Trust established under this Will is deemed to be established on



Image: Adobe Stock

of her deceased husband at para 41; see also Tucker, Le Poidevin and Brightwell, Lewin on Trusts (Sweet & Maxwell, 20th ed, 2020) vol 1, 9.

of an estate to be appointed by either a beneficiary, the executor, or both, to a TDT and on that appointment happening the TDT commences.

The second principle, on which there are many authorities including Livingston, is that a beneficiary holds a right to enforce due administration of the estate and related rights: citing Livingston and other cases at footnote 39 on page ten (paragraph 1-008). Mitchell at page 1 notes: “Livingston therefore establishes that duties can be imposed on an owner of property respecting her stewardship of the property and that another person can be given corresponding rights against her”. A TDT is a beneficiary in this sense.

It is the third and fourth class of commencement date that gives rise to a difficulty.

The second principle affects the first principle – to what extent does a right to enforce due administration; and to what extent does the ability to trace or ‘follow’ misapplied assets amount to a non-proprietary right; and a right for a distribution, constitutes something of value.

4. Drafting Errors and Lack of Assets A TDT cannot commence if there are no assets to pass from the estate to a testamentary trust.

5. The ATO View The Australian Tax Office’s (ATO’s) view of when a TDT commences is, if the TDT is created out of residue, on the completion of the administration of the estate. It commences earlier if assets are transferred to it from the estate at an earlier date.10

6. Provisions in Wills I have used the word ‘commence’ and its derivatives in this article as there is a wide range of terms used for the ‘starting’ of a TDT. Commence is a term of convenience rather than of art. Other terms used are ‘comes into operation’ or ‘established’. There is no doubt that a TDT has commenced when it has assets transferred to it from the estate, provided the other elements of a trust exist. Under the second principle in Livingston, if at law it is in existence (because there is no contrary provision in the will), it has commenced in the sense of holding valuable rights as choses in action. Some wills are silent about when there is commencement of the TDT created under them. Others provide for the commencement on death by specific provision. A third class of wills provides for the commencement only on the receipt of assets from the estate. A fourth class of wills provides for a part

There is no doubt that a TDT has commenced when it has assets transferred to it from the estate, provided the other elements of a trust exist.

Both the third and fourth classes give rise to the difficulty that a TDT that has not commenced or brought into existence cannot be possessed of the choses in action referred to in Livingston or the bundle of chose in action referred to in Mitchell; which gives rise to a right to enforce the due administration of the will, to pursue rights against third parties where the executors have acted wrongfully and to pursue rights for a distribution. The importance of when a TDT commences is best illustrated by considering a potential TDT that cannot commence because of the (deficient) will drafting which results in a loss, or suspension, of the rights to the enforcement of remedies under the choses in action.

in action being available from the death of the will maker. The preferred drafting is that adopted in Hutley or the form ‘each trust established under this Will is deemed to be established on my death’. PETER WORRAL Principal Peter Worrall – Consultant Lawyers peter@worralloffice.com.au

Peter Worrall is a Trusts and Estates lawyer who practices in Hobart in a four lawyer firm, Peter Worrall – Consultant Lawyers This article has previously been published in the first issue of the 2023 STEP Australia newsletter. The contents of the article are copyright to Peter Worrall. 1. 2. 3.


5. 6. 7. 8. 9. 10.

From a copy will in my possession. From a copy will in my possession. Craig Birtles et al, Hutley’s Australian Wills Precedents (LexisNexis, 10th ed, 2021) 345. This gives commencement at death as the Will is read as at the date of death. Charles Mitchell, ‘Commissioner of Stamp Duties (Queensland) v Livingston (1964): Rights of Estate Beneficiaries and Trust Beneficiaries Compared’ (2019). Chapter in Brian Sloan (ed), Landmark Cases in Succession Law (Hart, 2019) 4. J D Heydon and M J Leeming, Jacob’s Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) 3. Gino Dal Pont, Equity and Trusts in Australia (Thomson Reuters, 7th ed, 2018) 485. Ibid. Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPCHCA 9. See Charles Mitchell’s article on Livingston and the comparison of the rights of trust and estate Beneficiaries. Taxation Ruling No IT 2622, [13], about TDTs deriving from residuary estate.

If there is a dispute between potential trustees of a TDT (potential in the sense that if the TDT comes into existence, those trustees will possess those choses in action as valuable rights), but the TDT has not come into existence (in the sense of the second principle in Livingston) because of the terms of the will, then it is difficult to see how a court will recognise the right of the potential trustees of a TDT to enforce those valuable chose in action rights.

7.Practitioner Guidance It is considered as risky for practitioners to draft wills that provide for the commencement of a TDT to only occur at the point in time that the ATO deems it to occur for tax purposes. Any suggestion that it is necessary to comply in the document itself with tax law commencement seems to be spurious, because tax law commencement will not be affected by a will that clearly states the common law position about the choses




In his 2012, article Between the Devil and the Deep Blue Sea: Conflict between Duty to the Client and Duty to the Court,1 my colleague and fellow Australian Bar Association advocacy instructor, Justice Kenneth Martin of the Western Australian Supreme Court, discusses the unique responsibility of a legal practitioner. That is, the paramount duty to the Court which prevails even over that of the practitioner’s duty to his or her client. The article repays reading. As Martin J noted, the position of a legal practitioner is unique among professionals. This was recognised by McHugh J in the High Court in D’OrtaEkenaike v Victoria Legal Aid 2 where his Honour said: Thus, in many situations arising in the conduct of litigation, the common law requires an advocate to act contrary to the interests of his or her client. I doubt if there is any other profession where the common law requires a member of another profession to act contrary to the interests of that person’s client … This paramount duty to the Court is now enshrined as rule 7 of the Legal Profession (Solicitor’s Conduct) Rules 2020 (“the Rules”), found in Part 2 under the heading “Division 2 - Fundamental duties of solicitors”. The Rules define the term “solicitor” in a singularly unhelpful and circular fashion, as an Australian legal practitioner “who practises as or in the manner of a solicitor”. Solicitors in this State regularly act as counsel before the Court. That rule, which came into effect on 1



October 2020, provides as follows: 7 Paramount duty to court and administration of justice (ASCR 3) A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. Rule 7 may be contrasted with rule 8 which enumerates “other fundamental ethical duties”, which includes the, clearly subjugated, duty to act in the best interests of a client. That rule provides as follows: 8 Other fundamental ethical duties (ASCR 4) A solicitor must also – (a)

act in the best interests of a client in any matter in which the solicitor represents the client; and

(b) be honest and courteous in all dealings in the course of legal practice; and (c)

deliver legal services competently, diligently and as promptly as reasonably possible; and

(d) avoid any compromise to his or her integrity and professional independence; and (e)

comply with these rules and the law.

Both rules draw together a solicitor’s relevant ethical duties, but if you examine them, they are very open textured. What is an offending lack of courtesy? What is an offending lack of competence or diligence? What is an offending compromise of professional independence? I suggest that it will still be necessary to understand the common law sources of the relevant obligations, in order to understand the reach of the rules, notwithstanding that the obligations were developed, in the main, with regard to the conduct of barristers. The best-known exposition of the parent duties is in Rondel v Worsley 3. It was there said that every counsel has a duty to his or her client to fearlessly raise every

issue, advance every argument, and ask every question, however distasteful, which he or she thinks will help the client’s case. However, importantly, it was also said that, all of that notwithstanding, the overarching principle is that counsel must not mislead the court. The two duties in Rondel v Worsley break down into a subset comprising all of the well-known ethical guidelines relevant to appearing in court, and they underpin the new Rules. You no doubt have now all read the Rules. However I sometimes think that recognizing the duties and observing them in practice when they arise, can prove to be difficult for anyone, as the factual scenarios can be very complex. As Martin J said in a paper he gave to the Legal Theory and Ethics Course at the University of Western Australia on 17 August 2015, entitled Legal Ethics: Navigating the daily minefields4, any attempt at a comprehensive written codification is likely to fail as real ethical problems are invariably subtle. Few legal practitioners are likely to be troubled by the question of whether or not it is permissible to steal moneys from a client’s trust account. Anyone troubled by the negative answer to that question does not have a future anywhere - let alone in the law. His Honour notes that the ethical problems that emerge in legal practice are usually more nuanced. A very recent example can be found in the very recent High Court decision of Charisteas v Charisteas5. In that case, the High Court allowed an appeal from the Full Court of the Family Court of Australia, dismissing an appeal from the Family Court of Western Australia. One of the questions for determination was whether the Family Court’s orders should be set aside on the ground of apprehended bias. The appellant (“the husband”) and the first respondent (“the wife”) married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under s 79 of the Family Law Act 1997 (WA) for orders settling the property of the parties

to the marriage. In 2018, Crisford J made orders for the settlement of property. In May 2018, in response to an enquiry from the husband’s solicitor, the wife’s barrister disclosed that, between March 2016 and February 2018, she had communicated with the trial judge in person, by telephone and by text, although she said they had not discussed the substance of the case. The communications took place otherwise than in the presence of or with the previous knowledge and consent of the other parties to the litigation. The husband appealed the 2018 property orders on grounds which included apprehended bias. By majority, the Full Court dismissed the appeal. The High Court held that the orders should be set aside on the ground of apprehended bias. The apprehension of bias principle is that a judge is disqualified if a fairminded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Once a case is underway or about to get underway, ordinary judicial practice is that, save in the most exceptional of cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. The High Court said that there were no exceptional circumstances in the case and that the communications should not have taken place. A fair-minded lay observer would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions Crisford J was required to decide. Now, while that appeal succeeded on the ground of apprehended bias, the flip side of the coin is that the barrister should never have made the communications, and to do so was clearly unethical – even if they did not involve the substance of the case. That scenario is not set out in the Rules but it is one that could easily arise unwittingly when members of a small profession mingle with judges at meetings and dinners or even as innocently as in the course of, the now commonplace, email communications between a solicitor and a judge’s associate, if they fail to copy in the opposing party’s solicitor.

As Kitto J said in Ziems v The Prothonotary of the Supreme Court of New South Wales,6 as to the importance of barristers as functionaries in the legal system: A barrister is more than his client’s confidante, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. [The barrister] is, by virtue of a long tradition, in a relationship of intimate collaboration with the Judges, as well as with fellow members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. Although not related to appearing in court, another, bizarre, example of unthinkingly falling into an, initially at least, less than obvious ethical trap, is instanced by Martin J in his paper. Less than obvious particularly if you are young and in love. The case concerned the State Administrative Tribunal of Western Australia’s determination and orders, made in respect of a Legal Profession Complaints Committee of Western Australia complaint concerning a practitioner, Mr M. The practitioner accepted he had transgressed by acts of professional misconduct concerning conduct involving his girlfriend/fiancée/wife, Ms T, who had become a legal practitioner at a different firm. Mr M, in the end, accepted a penalty of a four-month suspension of his annual practising certificate, and he agreed to pay the LPCC’s costs of bringing the complaint, fixed in the amount of $12,000. As the matter was effectively “settled”, there are no published reasons of the SAT panel. The practitioner was a senior associate employed by his law firm, A. His girlfriend/fiancée/wife was employed at another Perth commercial law firm, D. I will go into the detailed transgressions because some at least on their own could clearly occur somewhat unthinkingly as opposed to deliberately unethically. Whilst they were engaged at their separate firms, Ms T often sent the practitioner email requests for assistance with her legal tasks at her firm. She would send Mr M copies of correspondence and other documents, thereby disclosing information that was highly confidential within Ms T’s firm concerning its clients, or was even the subject of legal professional privilege as advice given in favour of the clients of Ms T’s firm.

For the purposes of assisting her with her requests, the practitioner would often send her copies of correspondence and documents that disclosed information confidential within his firm, or to its clients being the subject of legal professional privilege in favour of the clients of law firm A. As part of the private assistance which he rendered Ms T in response to her requests he: (i)

drafted or settled her correspondence;


drafted, or procured others to draft, research memoranda;

(iii) drafted, or settled, her pleadings, affidavits or other court documents and he did so in the knowledge that Ms T would represent to her firm that the material which she had received back from Mr M and others at law firm A, was her own work. In the course of providing assistance he would also routinely provide Ms T with: (i)



internal legal research memoranda; and

(iii) professional development documents which were all the property of law firm A and provided without the permission of anyone at law firm A. Mr M also from time to time provided Ms T with: (i)

copies of journal articles;


copies of reported and unreported cases; and


copies of statutes

when he knew this was unauthorised. One of the more extraordinary acts by the practitioner was his utilisation of the firm’s facilities without permission to post out his engagement party invitations utilising the practitioner’s firm mail system and facilities, such that the practitioner’s firm paid for the postage in respect of the invitations. Martin J said of this case: The underlying facts are unusual, indeed bizarre. This was no ‘Adam’s Rib’ situation - referring to the 1949 Spencer Tracey and Katharine Hepburn classic film. The present facts display, very tragically, in my view, a basal violation of numerous professional conduct obligations that ought to have been blindingly obvious to a clear-headed, right-thinking legal practitioner. Vital considerations such as client confidentiality, conflict of interest, basic truthfulness and


honest dealing, all seem to have been ignored … Perhaps the excuse was that the practitioner was youngish and was blinded by love. Another sometimes difficult area of ethics is the independence of counsel. Where independence of counsel may be undermined, then counsel must not act for the client. This clearly occurs where counsel may have previously acted for the opposite party or may be a witness in a case, or where there is a classic conflict such as a personal interest, one way or another, in the outcome of the case. Less obvious perhaps, as a threat to independence, are personal or professional relationships which are so close as to potentially compromise counsel’s duty to the court. In-house counsel, for example might lack true professional detachment from their organization, depending on the nature of the case. Changing sides is also a particularly fraught area. One of the case studies canvassed by Martin J in his paper contrasts effectively two distinct outcomes in the context of legal conflicts of interest for scenarios of changing sides. The two cases he contrasts are, first, Fordham v Legal Practitioners’ Complaints Committee,8 and Ismail-Zai v Western Australia9 The latter decision contains a comprehensive discussion by then Steytler P of the Court of Appeal and Wheeler JA and Heenan AJ, concerning an appeal against conviction.



As Martin J notes, this was a somewhat unusual case where the accused had faced a charge in the District Court of aggravated robbery with violence. He gave evidence at his trial and he was cross-examined.

pleas in mitigation, the accused said that he had at the time earlier disclosed to his lawyer (later his prosecutor) information about his education, work earnings and family circumstances, and how he was “not a thief”.

Essentially, his defence was one of misidentification.

In the end, the jury convicted. There was an appeal on this conflict ground. It failed.

It emerged after all the evidence had been completed and the jury had retired, that the accused had then informed his counsel that he had been nervous whilst giving evidence because he came to realise that the prosecutor at his trial, a Mr H, had previously represented him some 20 months earlier, and “knew all about his background”. The accused said that he had not at first recognised the prosecutor at the District Court trial (as the prosecutor had been robed and was wearing a wig). An application for a discharge of the jury was refused by the trial judge at the time in the District Court. The prosecutor fully accepted that about two years previously he had appeared for the accused in the Court of Petty Sessions. He had then made submissions on a plea of mitigation following pleas of guilty to 10 charges of fraud, three charges of stealing and three driving offences. That was all over about 20 months before the appellant’s trial. However, the accused did not pay his account to Mr H. It went to debt collectors. Consistently with the purpose of the

The Court of Appeal’s reasons contain an extensive consideration of the aspects of a legal practitioner’s fiduciary duty of loyalty, in a context of assessing whether it can survive the termination of a retainer. As part of that assessment, an evaluation of the use of the information imparted to a legal practitioner in circumstances of confidentiality, arose. The Court of Appeal rejected the contention that there had been a miscarriage of justice. But Wheeler JA10 said: I would unhesitatingly accept that the conduct of a prosecution by counsel who had previously acted for an accused could well give rise to a miscarriage of justice. Even where no specific confidential information is relevant, and even where nothing in the transcript suggests that an accused has not been able to give a good account of himself, in my view, the trial would be unfair if the prosecutor were able to cross examine from a ‘position of unfair superiority’. In the circumstances, however, no

member of the court thought that the line had been crossed in that case. The prosecutor had failed to remember the appellant. The inability to recognise the former client emphasised the brevity of their previous connection. Wheeler JA also said:11 However, whether there is such an unfairness depends upon the nature and degree of previous familiarities. It cannot arise from every former retainer, however brief, remote in time, or unrelated in subject matter.

burrow, as Mason CJ put it in Giannarelli v Wraith.12 That rule, itself stemming from the second limb of Rondel v Worsley, forms the basis for a number of the rules appearing in Division 4 of the new Rules, entitled – “Advocacy and litigation”.

A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.


A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which –

22 Independence – avoidance of personal bias (ASCR 17) (1)

The appellant had effectively moved from representing one accused to represent a different accused, within a relatively short period of time concerning the same trial. She then conducted a cross-examination of the first accused about his financial affairs and prior convictions. (2)

There was a finding of unprofessional conduct by the practitioner continuing to act for the second accused client as she knew or ought to have known that there was a conflict of interest between the two accused, and that a duty to each was likely to conflict.

A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable. A solicitor will not have breached the solicitor’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s instructions, simply by choosing, contrary to those instructions, to exercise the forensic judgments called for during the case so as to – (a)

Martin J reconciles these two cases in his paper, as follows:






Sometimes the line is grey. That is particularly so in so-called ‘Chinese wall’ situations that you will no doubt encounter ...

A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.


A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue. A solicitor must not become the surety for the client’s bail.

23 Formality before court (ASCR 18)

must seek instructions for the waiver of legal professional privilege, if the matters are protected by that privilege, so as to permit the solicitor to disclose those matters under subrule (4); and

(b) if the client does not waive the privilege as sought by the solicitor –

nform the court of any persuasive authority against the client’s case.


the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

A solicitor who has knowledge of matters which are within subrule (4) –

confine any hearing to those issues which the solicitor believes to be the real issues; or

Again, an appreciation of the stringent fiduciary duty of fidelity and loyalty owed by a fiduciary to the person whose interests they undertake to advance over their own would have resolved this ethical problem. Fordham’s case was referred to by the Court of Appeal in lsmail-Zai, but was distinguished: see par (24] per Steytler P and par [71] per Heenan AJA.

are within the solicitor’s knowledge; and

(b) are not protected by legal professional privilege; and

(b) present the client’s case as quickly and simply as may be consistent with its robust advancement; or

In Fordham’s case, there emerged issues concerning the use of confidential information given to a practitioner by a former client to advance the interests of a new client, to the detriment of the first.

Next, it must be recognised, I think, that counsel, be he or she solicitor or barrister, is independent in presenting a client’s case and must not misuse court time. This means that counsel must refrain from irrelevant cross–examination and from pursuing submissions that are really unarguable, even though the client may wish to chase every rabbit down its


That Division provides, relevantly for present purposes:

In Fordham in 1997, however, the line was found to be crossed.

It was contended that the crossexamination had not used confidential information obtained from the accused when he was initially her client but, rather, was based on information supplied by a newspaper reporter during the trial and from other sources which were public.

steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.



must inform the client of the client’s responsibility to authorise such disclosure and the possible consequences of not doing so; and


must inform the court that the solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court.

A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of – (a)

any binding authority; and

24 Frankness in court (ASCR 19)

(b) where there is no binding authority, any authority decided by an Australian appellate court; and




A solicitor must not deceive or knowingly or recklessly mislead the court. A solicitor must take all necessary

any applicable legislation –

known to the solicitor and which the solicitor has reasonable grounds to


believe to be directly in point, against the client’s case. (7)


A solicitor need not inform the court of matters within subrule (6) at a time when the opponent tells the court that the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for the solicitor to have informed the court of such matters in the ordinary course has already arrived or passed. A solicitor who becomes aware of matters within subrule (6) after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by – (a)

a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter; or

(b) requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument. (9)

A solicitor need not inform the court of any matter otherwise within subrule (8) which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

(10) A solicitor who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

is believed by the solicitor to have been made by mistake. Rule 22 is the first, and obviously one of the most important of these rules in Division 4. It stems of course from cases like Rondel v Worsley (above) and Giannarelli v Wraith (above). However to stipulate, as the rule does, that a “solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable” is a very large statement.

Another sometimes difficult area of ethics is the independence of counsel.

Even with the inclusion in r 22(2) of express permission to choose, contrary to instructions, to exercise the forensic judgments called for during a case, the rule covers a large area of legal territory, and once again really cannot be easily recognised and implemented in practice without reference to the legal principles that preceded the rule. In his article entitled The Ethics of Independence: Running your own case13 Craig Colvin SC, a former President of the Western Australian Bar, notes that sometimes your clients want to take a highly active role as to how their case is to be conducted, but he warns, the overriding legal principle is that:

(11) A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.

All clients are entitled to express their wishes about the conduct of a case and have them considered by their lawyers. They are also entitled to an explanation as to what is being done and why. However, it is improper for a lawyer to act as the mere mouthpiece of a particular client in court. It is up to the lawyer to decide what is to be said and done in court. The same goes for all written submissions and other documents filed in court.

(12) A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and

All decisions about how to run a court case must be made by the lawyer and not by the client … All these forensic decisions are matters for the lawyers responsible for the conduct of the case in court. It is an important responsibility of lawyers to make their own independent decisions about how to run the case.



Those decisions must be guided by the duties of lawyers as officers of the court, not by instructions from the client. Sometimes this obligation may be difficult to communicate to a client. However, it is of fundamental importance. The court process is part of the government of a civil society. Judges depend upon lawyers fulfilling their duties as court officers to be able to conduct court proceedings that are fair and efficient. The duty of lawyers to the court is paramount and must be performed even if the client gives instructions to the contrary. I have already referred to part of what Mason CJ said in Giannarelli v Wraith. However the full text of the relevant passage is as follows:14 The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary ... the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which there is an eye, not only to the client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow ... in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court. So what is involved in putting this principle into practice? In Steindl Nominees Pty Ltd v Laghaifar,15 the Queensland Court of Appeal put it this way: I would prefer to say that it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable. As Colvin points out in his article, examination of the nature of the

independent obligation on a solicitor not to bring a hopeless case most often arises where special costs orders are sought. In re The Black Stump Enterprises Pty Ltd and Associated Companies (No 212),16 the Court of Appeal in New South Wales referred to Steindl with apparent approval in deciding whether to order the lawyers to pay the costs of an appeal. The view was then expressed that one of the difficulties for a court when applying those authorities was in making an assessment whether it was the solicitor or the client who was the real cause of the problem. Colvin notes that it is difficult to see in the light of new conduct rules and case management practices, how a practitioner could blame the client for insisting upon bringing a hopeless case or appeal where there is an obligation upon the practitioner to exercise an independent judgment as to whether there is a real issue to advance.

court to a view that the party whose conduct gave rise to the costs should bear them in full.18 The remaining rules set out in Division 4 of the Rules are quite explicit and require little explanation, even if time permitted.

People have all sorts of good reasons for wishing to plead guilty and get a matter over and done with, but in order for it to be a free choice it must be an informed choice and it must be in their best interests.

However, the authorities concerning indemnity costs orders against parties to litigation were summarised by the Court of Appeal in Western Australia in Swansdale Pty Ltd v Whitcrest Pty Ltd.17 There the Court observed:

I will mention only a few issues that lie at the fringes of the relevant rules and may be helpful, and also touch briefly on the issue of mediations.

To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against the unsuccessful party. In J-Corp … French J by reference to the observations of Woodward J in Fountain Selected Meats said:

It is now well understood that counsel’s duty to the court prevents him or her withholding authorities that are contrary to his or her client’s case. But less well recognized is the obligation to be adequately prepared as counsel and armed with reasoned argument and with relevant authorities – not just textbooks, I might add.

It is sufficient, in my opinion, to enliven the discretion towards such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless, case.

You must not simply assert propositions or make submissions without having conducted a considered review of the law and an analysis of the cases. To leave the judge to do all the work and then to be caught out overlooking elementary legal principles will result in you being labelled by the Court as untrustworthy and unethical.

… Competing principles need to be balanced in assessing the making of a potential award of indemnity costs. In Quancorp … Wheeler J observed: On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain.... It is inappropriate that a case be too readily characterised as ‘hopeless’ so as to justify an award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as ‘hopeless’ is an example of the type of conduct which may lead the

The same goes as to the facts of the case. Counsel must not be a party to the presentation of evidence that is false or misleading. And of course a failure to disclose can result in presenting a halftruth. Although it arose in the context of mediation, in Legal Services Commissioner v Mullins,19 Byrne J found a barrister guilty of intentional and fraudulent deception by remaining silent during negotiations about his client’s reduced life expectancy brought about by the recent onset of very significant secondary cancers and the commencement of chemotherapy. Incidentally, I think that the topic of ethical limits in negotiations and in mediation is much neglected. If you are interested, there are two very

good papers available on the internet - Effective and Ethical Negotiations by Campbell Bridge SC, published in February 2011; and The Ethical Limits of Advocacy in Mediation by Robert Angyal SC, published in May 2011. Care must also be taken to decide whether evidence with which you are presented as counsel has been illegally obtained, for example by covert recordings of telephone conversations, or improperly obtained emails or documents, and if so, what to do about it. Obviously counsel must never advise that evidence be illegally obtained, but if presented with such evidence it must be borne in mind that legal professional privilege does not apply, and the required disclosure of the material to the other side may prejudice or harm your client by revealing unlawful activity, see Dubai Aluminum v Al Alawi.20 As to witnesses, I expect that everyone appreciates that there is no property in a witness, including an expert witness; that you should not confer with witnesses together, other than perhaps some interdependent expert witnesses, and that no witness may be coached, including an expert witness. Understand also though that precisely the same rationale that produces those rules, namely the protection of the integrity of evidence, underpins the rule that prohibits counsel from conferring with a witness, including an expert witness, under cross-examination. The relevant rule does not extend to re-examination but care should be taken there also. There are now specific rules about the integrity of evidence, but if you would like to read more in the area of dealing ethically with expert witnesses, there is a very useful paper by Declan Kelly SC and Dan Butler presented to a Bar Association of Queensland seminar on ethics on 1 December 2010, entitled, unsurprisingly, Ethical Considerations in Dealing with Experts. It is published online in Hearsay, the journal of the Bar Association of Queensland. There is also an article in the Autumn 2013 edition of our own Law Society’s Law Letter by G Blake SC and P Doyle-Gray entitled Can Counsel Settle Expert Reports? Now, again I think that it is universally understood that a lawyer to whom a client has made a confession of guilt may nonetheless continue to represent the client if he or she wishes to plead “not guilty”, and indeed, subject to the new Rules, must continue if the confession is made during the course of the trial. However, the obverse seems less well appreciated, that is, the situation that arises where the client denies guilt, but wishes to plead “guilty”. In that situation, counsel is not ethically prevented from representing the client on the plea in mitigation, notwithstanding


that it would, at first blush, appear to amount to misleading the court. In Meissner v The Queen21 Brennan J (as he then was), Toohey and McHugh JJ explained that a person charged with an offence is at liberty to plead guilty or not guilty to the charge whether or not that person is in truth guilty or not guilty. The plurality in Meissner went on to explain that there is no miscarriage of justice in a court acting on such a plea of guilty entered in open court by a person who is of full age and sound mind, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. People have all sorts of good reasons for wishing to plead guilty and get a matter over and done with, but in order for it to be a free choice it must be an informed choice and it must be in their best interests. Counsel should seek to ascertain the reasons for the client wishing to enter such a plea, and should also advise the client of the prospects of an acquittal on a plea of not guilty, and of the consequences of a guilty plea, including the fact that the plea of guilty is an admission of all of the elements of the offence, and that any plea in mitigation must accept those elements as proved and cannot be quibbled with. It is also well established that counsel must not, without his or her client’s instructions, disclose to the court the client’s prior convictions of which the prosecution, and thus the court, is unaware. However, it must be remembered also that counsel must not in any way imply to the court that there are in fact no prior convictions. Observing this ethical rule however, may sometimes have concealed ramifications for the client. The English Bar Standards Board takes the view that where counsel is aware of previous convictions, he or she should give clear advice as to the options. Counsel should, firstly, inform the defendant that information as to the previous conviction will remain confidential unless the client waives privilege. Second, counsel should inform the defendant that nothing can be said as to the defendant’s record which expressly or even impliedly adopts the position outlined by the prosecution, as to the absence of convictions; or as to the absence of convictions of a particular type or gravity; or as to a period of time free from conviction; or as to the absence of a particular type of sentencing disposition; or of apparent good character. Third, counsel should advise the defendant as to the possibility that the failure by counsel to refer to the defendant’s antecedents may not go unnoticed by experienced



prosecution counsel who might apply for an adjournment to investigate. Later discovery could, of course, also ground an appeal against sentence, see Plumstead v The Queen22 and Criminal Code, s 402(4). I would like to finish with a word or two about unethical cross-examination. While there are some differences between the disallowable and improper questions provisions in the Uniform Evidence Law in force in most Australian States and Territories, they all render disallowable, and therefore, in my view, unethical, questions that are misleading or confusing, or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or oppressive: Evidence Act 2001, s 41. The provision also renders disallowable otherwise unobjectionable questions that are put to a witness in a manner or tone, I repeat, in a manner or in a tone that is belittling, insulting or otherwise inappropriate. But wait, there is more; neither, in Tasmania nor in Victoria may you ask a question that has no basis other than a stereotype. For example, “You are an accountant Mr Smith – accountants are very careful people now aren’t they?” Section 41 prohibits specifically, but not exclusively, stereotypes based on a witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability. There are, however, other questions that are impermissible and thus unethical. You must not put to one witness that his or her evidence is contrary to that of other witnesses, and expressly or by implication invite an opinion as to the reason. The best known example, of course, being, “She is a police officer Mr X, what reason would she have to lie?” You must not ask a witness to speculate about the reasons someone else did or said something. You must not put a hypothetical question to a witness other than an expert. And you must not put a question that invites the drawing of an adverse inference from the exercise of the common law right to silence. Again, while legislation in some States is changing as to this, a well-known example of a question impinging upon the right to silence is, “Mr X why did you not tell that to the police officer when she arrested you?” (For a coverage of the additional constraints on a prosecutor conducting cross-examination in criminal proceedings, see Whitehorn v The Queen.)23 There is also a very valuable discussion of the common law limits to ethical crossexamination by Heydon J in Libke v The Queen,24 where his Honour deals with unethical advocacy involving compound questions, questions assuming the existence of a fact in controversy,

argumentative questions, questions that are only comments, and the cutting off of answers before they are complete. As Heydon J points out, all these rules rest on the need for fairness and on the need not to mislead or confuse a witness. Deliberate breaches of them are unethical. While on the subject of Heydon J’s writings and the ethics and courtesy of advocacy, there is a must-read article by his (former) Honour in the Australian Law Journal (2007) Vol 81 at 23, entitled Reciprocal Duties of Bench and Bar. Finally, remember also that s 37 of the Evidence Act which deals with leading questions in examination-in-chief and re-examination, actually entirely prohibits their asking, stipulating that, except in the situations allowed by the section, “a leading question must not be put”. So it is not just poor advocacy to ask leading questions, it is, strictly speaking, unethical advocacy. I have merely scratched the surface in the time available today, but I can say that all of these issues, and many more, are covered in meticulous detail by Gino Dal Pont in his book, Lawyers’ Professional Responsibility. I recommend that everyone read chapters 17 and 18 every year or so to remind yourselves of the very important obligations you carry into your work every day. Presented at the Law Soicety of Tasmania Litigation Conference 2021 THE HONOURABLE JUSTICE STEPHEN ESTCOURT AM Judge Supreme Court of Tasmania 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Vol 35, 3 Australian Bar Review, page 252. [2005] HCA 12, 223 CLR 1, [111] - [113]. [1969] 1 AC 191 at 227. Published in the October 2015 issue of Brief magazine, the journal of the Western Australian Bar. [2021] HCA 29. (1957) 97 CLR 279 286 at 256. Which his Honour has kindly permitted me to reference. (1997) 18 WAR 467. [2007] WASCA 150, 34 WAR 379. at [53]. at [54] (1988) 165 CLR 543 at 556. Published in the October 2015 issue Brief magazine. At 556-7, quotation also edited for gender inclusiveness. [2003] 2 Qd R 683 at [24], Davies JA with whom Williams JA and Philippides J agreed. [2006] NSWCA 60. [2010] WASCA 129. Swansdale at [10] (footnotes omitted). [2006] LPT 012. [1999] 1 WLR 1964. (1995) 184 CLR 132 at 141. (1997) 7 Tas R 206. (1983) 152 CLR 657 at 663 – 664. [2007] HCA 30, 230 CLR 559 from [127].

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In early 2022 the Sexual Assault Support Service (SASS) provided feedback regarding existing processes of the TASCAT with respect to trauma informed service delivery. Their feedback invited a review of existing Tribunal service delivery and sought to provide more detailed feedback to the Tribunal in assisting that review. In May of 2022, the President and the Principal Registrar of TASCAT met with representatives from the Sexual Assault Support Service (SASS) for that purpose. The meeting provided important and helpful advice regarding processes that may lead to the re-traumatising of persons who appear before the Tribunal in different circumstances and capacities but in particular witnesses who may be appearing in proceedings where sexual assault allegations arose. As a result of the meeting and feedback provided, the Tribunal embarked upon active consideration of where traumainformed practice could be integrated into its processes and practices. This review was in keeping with the objectives of the Tribunal and the best practice guidelines produced by COAT. In June 2017, the Council of Australasian Tribunals (COAT) developed a Tribunal Excellence Framework. At pages 7 and 8 of that framework it states: To a significant extent tribunals, like other justice institutions, depend upon community support for their legitimacy and so robust and fair tribunal



processes that are seen to be fair are important. Satisfaction with the process of justice has been found to have a measurable effect on society as a whole. Such satisfaction contributes to the perceived legitimacy of the justice system and there is some evidence that it affects the behaviour of citizens, increasing their respect for the law. A large proportion of the public may never see the inside of a courtroom but many citizens will use a tribunal and so the processes, procedures and steps taken by the tribunal to assist its users will affect how they perceive the law and the operation of the justice system. Measures of public and participant satisfaction with a court or tribunal are a close proxy for the value of procedural justice. Participant and public perceptions about the fairness of process (i.e. about procedural justice) depend on a complex mix of factors. Moorhead, Sefton and Scanlon (2008)1 found that five process orientated factors contributed to the perception of fairness and hence satisfaction: a.



the expectations of and information provided to, participants; the quality of participation granted to participants (i.e. the extent to which, and the process through which, participants are able to get their story out in a way they view as accurate and fair); the quality of treatment and, in particular, the respect shown to the participant during their time at the tribunal;

predictable, just decisions. The parties who appear before Tribunals and the community have a legitimate interest in procedural justice. The Tribunal made enquiries of various bodies including the Magistrates Court and Supreme Court as part of its investigations. Enquiries undertaken by TASCAT revealed that the Office of the Director of Public Prosecutions in Tasmania has a Witness Assistance Service which supports witnesses giving evidence for the State. As part of that service, a Witness Assistance Officer is appointed and that officer will: •

give the witness information about court procedures and legal process;

provide crisis counselling, debriefing from court and refer the witness to services in the community;

liaise between the witness and the Director of Public Prosecutions staff;

take the witness on a tour of the court;

go to meetings with the witness;

help the witness prepare a victim impact statement.2

Other States have equivalent services available in criminal matters but no tribunal in Australia runs a similar service for witnesses giving evidence about personal and traumatic events. As a result, TASCAT embarked upon its own research to develop its own trauma-informed practice.


issues of convenience and comfort including timeliness and efficiency; and

The challenge for TASCAT was to develop a trauma-informed practice that is fair to all participants.


judgements about tribunal members and staff – whether they were perceived as helpful and empathetic.

After consultation with various stakeholders, TASCAT produced a protocol for trauma-informed practice. The protocol appears as a “fact sheet” on the TASCAT website

Delivering justice is not simply about

(220817-Trauma-Informed-Practice-webversion.pdf (tascat.tas.gov.au)) and its key points are: TASCAT acknowledges that given the range of jurisdictions exercised by the Tribunal and the diversity of people involved in Tribunal proceedings, there is a likelihood that many of these people may have experienced complex trauma. For those people, their involvement in Tribunal proceedings can possibly activate re-traumatisation. Accordingly, anyone who believes that participating in Tribunal proceedings may be an activating event, are encouraged to contact the Tribunal registry and advise them so that the Tribunal to engage in its trauma informed practice and procedure.

tour of the Tribunal’s public areas including; where they will enter the premises, where they will wait prior to giving their evidence, where they will be giving their evidence and where they will take breaks;

When a party or witness contacts the Tribunal they can: •

provide their preferred contact details and advice on how they wish to be contacted;

request assistance in the proceedings, including a support person or an interpreter;

advise of any particular trauma informed support they may require to reduce the risk of re-traumatisation, for example, seeking to participate in a hearing remotely, or in a different room to another participant; and

Participants are also encouraged to provide constructive feedback if they feel the Tribunal has not engaged in trauma informed practice so that the Tribunal can continue to improve.

explain the various roles of Tribunal Members and registry staff;

discuss any concerns they have about their safety while at the Tribunal or giving evidence;

assist them in requesting the Tribunal Member(s) hearing the matter in which they are involved, to make appropriate arrangements that may be available to them to give evidence, e.g. attending by Audio Visual Link or having a support person in the room;

provide them with the contact details for appropriate support services;

assist them in requesting the Tribunal Member(s) hearing the matter to make orders not to publish their name or any information identifying them in any Tribunal notices or determinations;

assist them in a request to be provided with a copy of any published decision in which they are involved.

When a party or a witness advises that they require trauma informed support, they can expect Members and staff of the Tribunal to: •

respect their rights and entitlements as a participant in Tribunal proceedings;

treat them with courtesy, respect, understanding and dignity; and

take into account, and be responsive to any particular needs or differences they have such as race, indigenous identity, sex or gender identity, cultural or linguistic diversity, sexual orientation, disability, religion and age.

Once the Tribunal receives this advice from a party or a witness the Tribunal registry can, if requested: talk to them about what to expect in the Tribunal hearing and their role as a party or a witness; •

advise them about the status of the matter in which they are involved including the hearing date;

The protocol points out Tribunal registry staff are not able to discuss the evidence the party or witness will give and it notes that if they give oral evidence and/or are cross examined about their evidence, they will be given reasonable time to consider their answers and take reasonable breaks as required. The protocol provides contact details of other services that the party or witness can contact if they need further assistance. The protocol has been reviewed by SASS and Blue Knot and their relevant feedback has been incorporated. All members and staff at TASCAT are aware of the contents and the importance of this protocol with specific training

sessions undertaken by Deputy Presidents and Registrars with registry staff. The Australian Health Practitioner Regulation Agency (AHPRA) have undertaken their own reforms regarding trauma informed service delivery. In the Health Practitioners Stream (HPS) of the TASCAT they have been implementing those review outcomes and have reviewed their own process and procedure with respect to supporting witnesses giving evidence against health practitioners involving alleged sexual assault and/or other boundary transgressions. The protocol has been applied in the Tribunal. For example, in a recent matter the Tribunal undertook traumainformed measures where a witness was provided a private room to wait before the hearing commenced and to appear remotely to give evidence with a registry staff member present to ensure the remote connection was maintained and to provide materials from the relevant hearing book when directed by the hearing panel. A representative from AHPRA also sat near the witness whilst they gave evidence. All people in the separate room were visible to everyone in the hearing room; however, the cameras were set so that the witness had limited vision of the participants in the hearing. The protocol is a significant reform by the Tribunal that it will continue to review to ensure it maintains currency and relevance with changes and reforms that occur in the trauma-informed service delivery field. ALISON CLUES Deputy President Tasmanian Civil and Administrative Tribunal alison.clues@tascat.tas.gov.au 1.


Moorhead, RL; Sefton, M; Scanlon, L, (2008) Just Satisfaction? What Drives Public and Participant Satisfaction with Courts and Tribunals – a review of recent evidence, Cardiff Law School Cardiff University https://www.dpp.tas.gov.au/witnesses_and_ victims

prior to the hearing, give them a



Preface When participating in a Q & A forum relating to my book Wrongful Death Claims: A Practical Guide, published by LexisNexis in December 2020, in answer to the question as to what I intended to do now that the former textbook had been published, I responded by saying, probably a second edition at some stage to accommodate developments in the law. I went on to say that I had also thought about writing a similar work addressing the practicalities of personal injury litigation. I added, perhaps flippantly, that I had reservations as to embarking on the exercise of writing a book in this area as personal injury litigation is generally far less complex, more settled and without the contentious issues that plague fatality litigation, where I had seen a very real need for a textbook providing a comprehensive commentary that would be invaluable to all practitioners, regardless of experience, including the judiciary. However, I went on to comment that in personal injury litigation there are still many traps and pitfalls, and practitioners would undoubtedly benefit from the practical guidance a comprehensive book would provide. My comment that personal injury litigation is generally less complex, more settled and without contentious issues was perhaps the understatement of the year. Prior to retirement in 2019 I had, over a period in excess of 40 years, practised almost exclusively in personal injury and wrongful death litigation – initially as a barrister and solicitor within our fused profession in Tasmania and exclusively as a barrister from 2005. I guess that my rather glib comments derived from my experience, whereby a great deal of the theory and its application in a practical setting had become second nature – much like a specialist medical practitioner would likely reply to the question: How difficult is your work? with the response: Well, it’s what I do. However, if the same specialist set to writing a textbook on the theory underlying the work undertaken on a day-to-day basis, I expect he or she would readily come to the conclusion that: Yes, this is actually very complex, particularly when it comes to imparting



an understanding of the theory and providing guidance as to the application of the theory in a practical setting. In writing this book, I found that martialling the theory into a comprehensive and concise work, and providing guidance as to its practical application, involves far more complexity than I had anticipated when embarking on the project. I came to realise that personal injury litigation is in fact more complex than my flippant comments referred to in the first paragraph would suggest, particularly so, given changes made to the underlying theory brought about by the civil liability and other legislation enacted in most jurisdictions which have brought about significant change. One area where practitioners and their clients (claimants) have sometimes come to grief is with regard to establishing causation. It may be that having investigated a potential claim, the practitioner is satisfied that there was a foreseeable risk of injury, the existence of a duty of care owed by the intended defendant to the claimant, a clear breach of the duty of care, and in the end result, an injury; and in those circumstances, the practitioner confidently assumes that there is a causal nexus between the breach and the damage sustained by the claimant: causation. However, there have been cases where the first three constituent elements of the tort have been satisfied, but causation has not, with the result that the claim fails. Clearly, in those cases insufficient consideration has been given to causation. This is not intended as a criticism of practitioners. Courts have also made the same error. For example, the High Court has found it necessary to even correct the New South Wales Court of Appeal on this very issue on at least one occasion mentioned in this work. I refer to my commentary in Chapter 3 at 3.3.3, and particularly at and one of the cases there discussed: Commissioner of Main Roads v Jones. 1 With regard to medical negligence cases I also refer to my commentary in Chapter 3 at, and the discussion there relating to Tabet v Gett,2 a case where breach was established, but causation was held to be absent, because the trial

judge had assessed at only 40per cent the chance of a better outcome and on appeal the New South Wales Court of Appeal concluded that the evidence only supported a 15per cent chance of a better outcome. In other words, the evidence did not establish that the delay in diagnosis and treatment had made a difference on the balance of probabilities, rather, that the delay in diagnosis and treatment only deprived the plaintiff of the chance of a better outcome assessed by the trial judge at 40per cent and by the Court of Appeal at 15per cent. The High Court held that in order for the plaintiff to have succeeded it was necessary to establish causation on the balance of probabilities – that is, the chance of a better outcome assessed at 51per cent or better. Another area of complexity and contention relates to an issue arising under the civil liability legislation enacted in most jurisdictions in the endeavour to expand the principle and application of the defence of volenti non fit injuria – voluntary assumption of risk – and how the courts should interpret the words ‘obvious risk’, particularly in the context of ‘dangerous recreational activity’. I refer to my commentary in Chapter 4 at, and– At I advocate for judicial reform, as it seems to me that the New South Wales Court of Appeal has perhaps gone too far in facilitating the expansion and application of the defence of voluntary assumption of risk in cases where possibly injustice may have been the result. Reform may be forthcoming, as this very issue has been the subject of a grant of special leave by the High Court in April 2021 (refer to the final paragraph in with respect to Tapp v Australian Bushmen’s Campdraft and Rodeo Association Limited).3 Of interest to practitioners in New South Wales will be my commentary relating to the defence of intoxication pursuant to the provisions of the Civil Liability Act 2002 (NSW) discussed in Chapter 4 at, particularly with regard to s 50(2), where I conclude that the wording seems nonsensical and incapable of any definitive application in any given circumstances. Thus, it is not clear when and how the provision can be properly engaged.

The underlying reasons why the potential future receipt of Centrelink benefits should be ignored when assessing future loss of earning capacity are explored and explained in comprehensive detail in Chapter 9 at, lest practitioners acting for defendants and courts be tempted to conclude that such benefits should be brought to account in arriving at an appropriate discount for contingencies. The commentary details the arguments I presented to the Full Court of the Supreme Court of Tasmania in Partridge v Hobart City Council.4 These arguments led to necessary reform in Tasmania, where for over twenty years plaintiffs had been deprived of their full entitlement to damages, due to a consistent failure by the courts to understand the practical application of the recovery and preclusion provisions detailed in the Social Security Act 1991 (Cth). Legislative imposition on discounting for present payment when assessing services claims pursuant to Griffiths v Kerkemeyer5 is also an area where I have suggested that it is arguable the legislation in some jurisdictions will not apply, so that the discount rate of 3per cent for present payment pursuant to Todorovic v Waller6 should be considered the correct discount rate: refer to my general commentary in Chapter 10 at 10.2.8, and in respect of New South Wales at, Victoria at, Western Australia at and the Northern Territory at If I am correct, this will have significant ramifications with regard to the assessment of future services claims, particularly in cases where a claimant is significantly impaired and the need for services at a relatively high level is demonstrated, as for example in cases of catastrophic injury. Finally, discounting future claims for loss of earning capacity and other future claims to take account of contingencies should move away from the arbitrary usual or standardised discount of 15per cent that is often applied by courts in all jurisdictions except Western Australia given the commentary referred to in Chapter 13 at 13.5. The above are some of the more obvious areas of contention noted during the course of preparation of the book that come to mind. Other areas may be commented upon throughout the text. Leaving aside complexity and contention, I have endeavoured to present this work by addressing comprehensively and concisely the theory underlying all aspects of personal injury litigation, with particular emphasis on application of the theory in a practical setting. Thus, Chapter 2 addresses the investigations that I consider should be undertaken from inception and progressing through to the point where the injury related medical condition has stabilised, at least for the medium term.

Chapter 3 addresses the legal aspects relative to establishing liability. These issues should obviously be addressed and considered before advice is provided to a claimant to commence proceedings. The prospects of success must necessarily underlie the advice provided and the decision made to embark upon litigation. Chapter 4 then addresses the potential defences available to the opponent. The practitioner acting for the claimant should clearly have regard to all potential defences that may be raised. Equally, practitioners acting for a defendant may find my commentary regarding each defence of assistance in particular cases. I have then included in Chapter 5 a useful digest of cases addressing various factual scenarios relevant to liability and defences, together with commentary on most of those areas which I think will be of assistance to practitioners dealing with particular cases that may have some similarities from a factual perspective. Chapter 6 provides useful information as to my understanding of the often diagnosed condition chronic pain, which can be misunderstood – and on occasion vilified by opposing practitioners, as indicative of exaggeration and malingering – simply because medical science is not sufficiently advanced to be able to locate with current medical technology any actual pathology causing the condition. I have explained the difference between acute pain and chronic pain and have attempted to explain the underlying cause of chronic pain and its incidence, in the absence of identifiable pathology, after the natural healing process has concluded. I then proceed in Chapters 7 – 11 to provide a detailed commentary on the components of a damages claim that may be available to claimants in particular cases and the relevant legal principles to apply in quantifying and assessing those components, including commentary on statutory modifications brought about by the civil liability legislation (and other legislation) enacted in most jurisdictions. With all the information provided in the preceding chapters, and assuming that the injury has stabilised for the medium term and that investigations recommended in Chapter 2 have been completed, the stage has been reached where the practitioner representing the claimant can undertake the task of preparing particulars of claim. The guidance provided in Chapter 12 and the Appendices referred to therein will hopefully assist. Once this task has been attended to, the practitioner can then provide the claimant with advice as to a reasonable expectation with regard to the outcome of the proceedings, both with regard to liability and damages. Relevant considerations regarding assessing damages have been addressed in Chapter 13. Chapter 14 then addresses the preparation of the advice (opinion)

to be provided to the claimant, so as to ensure that he or she will be in a position to make informed decisions with regard to settlement negotiations. Failing settlement, Chapter 14 also addresses trial preparation and presentation. Finally, Chapter 15 addresses the principles relevant to appeals with regard to both apportionment of liability and quantum of damages. As this book focuses not only on the theory underlying personal injury litigation but, also application of the theory in a practical setting, the final segment of the work is the Appendices which include working precedents for documents prepared in actual cases: Appendices B–O. The entirety of this work draws on my experience over a period exceeding 40 years. Whenever I prepared a document or an opinion or read or noted a reference to a previously decided case, that I thought would be useful at a later time, I recorded this electronically in a legal digest. By the time of my retirement from practice at the end of June 2019 the digest contained almost 600 pages. Much of the theory detailed in this work has been drawn from this digest, supplemented of course by review of many cases referred to throughout. I hope my commentary will be useful to practitioners, particularly more junior practitioners and those with limited experience in the personal injury field. I also hope that more experienced practitioners may benefit from my commentary especially in areas of complexity and contention. I have endeavoured to provide a concise reference to all issues which, from my experience over 40 years, often arise in personal injury litigation, supported by reference to decided cases and relevant legislation. At times, where appropriate, I have also ventured upon a critical analysis of areas that may be contentious in particular cases. Wrongful Death Claims: A Practical Guide,

Expanded Table of Contents CRAIG HOBBS Craig Hobbs LLB (University of Tasmania) (1976) formerly a Barrister practising at the Tasmanian Bar, now retired (2019). He was admitted to the Supreme Court of Tasmania in 1978 and the High Court of Australia in 1982. Although retired, he retains an associate membership with the Law Society of Tasmania and the Tasmanian Bar and maintains a keen interest in the development of the law in the area the subject of this book.




As disruptive forces such as generative AI, big data, and automated decision-making continue to impact the future of the legal industry, we are noticing an increased demand for humancentred approaches such as coaching and mentoring. We expect this trend to continue because – to be frank about it – there are still many things computers and AI simply cannot do (for example, active listening; sharing actual, lived experience and empathy). Mentoring has been defined by the Centre for Creative Leadership as: “an intentional, developmental relationship in which a more experienced and more knowledgeable person nurtures the professional and personal life of a less experienced, less knowledgeable person.” This said, we at Alta Pete strongly advocate ‘reverse mentoring’ where the model is flipped; and where the mentoring relationship features a two-way sharing of experience and knowledge. Mentoring draws upon the 70-20-10 principle which posits that the majority of learning and development comes through experiential and social learning in the workplace (the ‘70%’ and ‘20%’) rather than through formal courses (the ‘10%’). Research also shows that it works: according to one study, people who had a Mentor were 20 percent more likely to get a pay rise, and five times more likely to be promoted. Interestingly, the same study found that



the Mentors themselves were six times more likely to move into a more senior role.1

Whilst the reasons can vary, common causes of stress for lawyers include: heavy workloads, long hours, tight deadlines, dealing with difficult clients, pressure to bill hours, organisational change, workplace relationships, unrealistic expectations from managers, feeling isolated and lack of support from colleagues.

The broader benefits for both Mentors and Mentees were evident in our extensive mentoring program for the ACT Chief Minister’s Directorate. Participants highlighted a range of advantages, including: sharing experiences, gaining clarity from mentors distanced from their situations, a significant boost in confidence, learning from mentor expertise, and fostering a culture of belonging. This encompassed networking, personal development, wellbeing and resilience enhancements, and career progression. If you have been a Mentor or Mentee, you might like to reflect upon what other benefits you would add to this list. In Bloomberg research quoted by the Australasian Legal Practice Management Association (ALPMA), some 614 lawyers surveyed in late 2021 reported feeling burned out in their jobs 52% of the time—a record number, according to Bloomberg’s analysis. Whilst the reasons can vary, common

causes of stress for lawyers include: heavy workloads, long hours, tight deadlines, dealing with difficult clients, pressure to bill hours, organisational change, workplace relationships, unrealistic expectations from managers, feeling isolated and lack of support from colleagues. Against this, according to Comcare’s ‘Effective Health and Wellbeing Programs report’, there is growing information that points to the economic return on investment in employee health programs (like mentoring programs), with the average rate of return estimated at between 2:1 and 5:1. According to a May 2023 article by Training Industry, a LinkedIn Workplace Learning report revealed that 94% of employees are more likely to stay with an organisation that invests in their careers. Furthermore, 9 out of 10 workers with a

mentor report increased happiness within their careers.

Alta Pete’s Top 5 Ideas for Building a Mentoring Culture for Tasmanian Lawyers: •

Thoughtful Mentor-Mentee Pairing: external perspectives can make for effective matches.

Establish Ground Rules: Safeguard confidentiality to promote psychological safety.

Effective Conversations: Foster trust, safety, and respect while listening actively and maintaining confidentiality.

Pose Powerful Questions: Drive meaningful dialogue by probing success perspectives and efficient use of time.

Define Meaningful Goals: From enhancing leadership skills to elevating delegation capabilities, set aspirations with purpose.

To take legal leadership to the next level with mentoring in the face of disruptive change, please contact me: JAMES FLETCHER Managing Director Alta Pete (‘Aim High’) W: www.altapete.com.au E: jamesf@altapete.com.au; T: 0403 687 685


Dickinson, K., Jankot, T., & Gracon, H. (2009) ‘Sun Mentoring: 1996–2009,’, as cited in Mindtools, ‘Helping Managers Understand Mentoring’ (available at https://www. mindtools.com/blog/corporate/helpingmanagers-understand-mentoring-your-ldguide-to-supporting-managers-as-mentors/).

Family Dispute Resolution (FDR) Parenting Property Mark Dickinson FDRP NMAS

Specialising in mediating family law (FDR) and other relational disputes. Promoting durable settlements through an empathic and effective mediation approach. Helping legally assisted or self-represented clients. Registered FDR Practitioner (FDRP) authorised to issue Section 60I certificates.

BA LLB, GDFDR, BA (Prof Hons) Master Dispute Resolution (Hons)

www.FDRP.com.au info@FDRP.com.au 0478 222 099

1,000+ mediation clients assisted Registered FDR Practitioner (FDRP): 2012 Nationally accredited mediator (NMAS): 2011 Legal practitioner admission (Tas): 1996




It is a great pleasure to pen some reflections for the Law Letter as the incoming Director of the Tasmania Law Reform Institute (TLRI). The Institute, now 22 years old, was jointly founded by the State Government, the Law Society and the University of Tasmania. As most readers will know, the TLRI undertakes scholarly legal research in order to provide independent and impartial advice to the Attorney-General and Parliament, but also to inform the general public about particular issues. The purposes of the TLRI are broad. They include: modernising areas of the law; eliminating defects in the law; examining how laws can be consolidated or simplified; analysing areas where greater uniformity with other jurisdictions can and ought to be achieved; promoting equality before the law; and identifying how access to justice can be improved. Even just a glance at the TLRI’s backcatalogue of completed projects will highlight how wide-ranging its output has



been. Of the 40 or so projects completed to date, about half have concerned criminal law. This is understandable given the amount of resources that are required to operate the criminal justice system, as well as the unique characteristics of some aspects of Tasmanian criminal law. But the other ‘non-criminal’ references range in topic from neighbours’ disputes regarding trees and hedges, to vendor disclosure, to guardianship, to conversion practices. Many of the TLRI’s final reports are around 150 pages in length, which indicates the complexity of the analyses they contain. Some are much longer. For example, the Review of the Guardianship and Administration Act (1995) Final Report is 630 pages. I was appointed TLRI Director in January 2023, benefitting from the extraordinary contribution of previous Directors and Acting Directors. In this capacity I certainly will be drawing on my 15 years’ teaching experience at the Law School. This was initially in Torts and then subsequently in Criminal Law. I also co-authored the 4th edition of Blackwood and Warner’s Tasmanian Criminal Law Text and Cases (2015). Other areas of my background provide essential experience too. My early career commenced in the public service – first in a Commonwealth agency and subsequently for the Department of the Premier and Cabinet, Queensland, in the child protection portfolio. I also worked for the Crime and Misconduct Commission (as it was then called), which gave me a short but fascinating taste of classified intelligence projects. These positions greatly deepened my understanding of the machinery of government and the policy cycle. Finally, research. If I count my first undergraduate criminological project – interviewing people in prison about sexual assault – in 1997, then I have been studying how to understand, prevent, and

respond to crime for some 26 years. Most of that work has been in interdisciplinary teams, which I have been fortunate to manage over the last decade. In previous years the TLRI has faced challenges, as documented in the 2022 TLRI review. However, I am very privileged to take up the Directorship at this juncture. First, the TLRI is overseen and supported by a prestigious and experienced Board. Secondly, Tasmania’s legal profession actively contributes to the TLRI’s work in a wide variety of ways. Thirdly, in February the TLRI’s founding parties signed a renewed agreement, which markedly increases in-kind support from the University and funding from the State Government, and establishes new practical means for the Law Society to provide support. This is wonderful news for both the Institute and the Law School, and will help us enormously to serve Tasmania. PROFESSOR JEREMY PRITCHARD Director, Tasmania Law Reform Institute College of Arts, Law and Education E: Jeremy.Prichard@utas.edu.au

Risk Management


As the Claims Manager for the Professional Indemnity Insurance Scheme, I thought it was a timely reminder to reinforce the importance of preparing file notes as a risk management tool for practitioners. All legal practitioners are broadly aware of the importance of file notes however, the importance of creating a usable trail in the context of managing a professional indemnity claim must not be understated. There is no doubt that the lack of a useable trail, including file notes, will make a professional indemnity claim very difficult to defend. When a professional indemnity claim is made against a practitioner one of the first steps taken to manage the claim is to call upon a complete copy of the practitioner’s file. I regularly see claims where the poor quality of file notes impact on the defence of the claim. The poor- quality file notes generally fall into the following categories: •

firstly -the legal practitioner has not made a file at note all;

secondly- the legal practitioner has kept some form of file note, but the contents of the file note are deficient and do not contain the specific details of the clients request for advice and advice given; and

thirdly- the file notes do not contain basic details as they relate to the contemporaneous nature of the file note taken such as date, time and in a legible form!.

Examples of recent claims scenarios where contemporaneous file notes have not been included in files include the following: •

Failure to include a file note that

captures instructions provided by the client, on the date those instructions were provided (those instructions were overlooked) resulting in a claim for damages for costs incurred by the client; •

A claim where the file note did not capture the request made by the client for complex advice relevant to the purchase of a property over the phone and the version of events were contested between client and practitioner; and

A conveyancing claim for breach of retainer where insufficient file notes were kept and not stored well on the practitioners file calling in to question the relevant factual events required to defend the claim.

How Should we prepare and manage file notes? There is indeed an art form to producing are four main components that a good file note should include: •

How it happened - includes the date of the meeting/discussion, time of day and duration;

Who was present- the names of people attending the meeting/ discussion;

The discussions - record of discussion, substance of advice given, the client’s response to the advice and any instructions given. Written in a legible manner in terms that can be understood by legal practitioners who may assume carriage of the matter in the future; and

Well executed content of the file note. This will vary depending on the complexity of the issues addressed. The note needs to contain enough information to indicate the relevant content of the discussion to support the practitioner’s recollection if challenged at a future date.

Helpful tips to remember when preparing file notes Prepare file notes in real time at the meeting and finalise shortly following to ensure accuracy. This may also include situations where phone calls are taken away from the office and

contain important client discussions and information. Ensure file notes are prepared in a legible form, minimise the use of abbreviations and write the file note in a way that anyone could understand. Write in a way that provides sufficient structure and detail of the discussions and instructions. This can include the plan or steps to move the matter forward ( followed up by writing to the client). Utilise available technology to streamline the process this can include the use of converting voice to text or electronic file note templates.

Record Keeping and File Notes In addition to maintaining quality file notes that are well written, it is important that firms and legal practitioners maintain an adequate client file. Recently, reviews conducted of some files maintained by legal practitioners disclose that they do not have strong systems for managing their files and file notes. This is particularly true where a hybrid electronic and paper- based system exists. As technology develops and practices move to electronic record keeping there is scope to include electronic templates and electronic filing systems to manage file notes. Dictation software that automatically types the concluded conversation on the phone call or devices that record the meeting and convert to word (with the client’s consent) are certainly viable options. Another option where a meeting is taking place is to have two people attend the meeting so one can focus on taking a good record of what was discussed. What ever system is chosen consistency of approach is recommended to ensure that quality control is maintained and contributes not only to quality legal practice but the ability to successfully defend a claim if a claim goes to court. FLEUR DEWHURST Lawyer Professional Indemnity Insurance Scheme - Claims Manager PO Box 79, Lauderdale TAS 7021 Tel: 0427 800 030 fleurcd@fleurdewhurst.com.au




2023 Admissions Congratulations to the following practitioners who were admitted to the Supreme Court of Tasmania on 11 August 2023. • • • • • • • • • • • • • • • • • • •

Samuel Preston Adams Elizabeth Emily Arnold Phillip Anthony Fielea Bellchambers-Finau Sarah Peregrine Elysia CastlesLynch Katelyn Natalie Chamberlain Zoe Margaret Christensen Hope Louise Cooper Ebony Acie Curtis Timothy John Davis Patrick Louis Di Martino Charlee Louise Dornauf Stella Therese Edwards Julia Loyal Flint Skhay-Anne Rinos Fox Ella Louise Harrison Jessica June Harrisson Aimee Rose Hope Payal Kaula Madeleine Rose Kellow

Photography: Oliver Berlin

• • • • • • • • • • • • • • • • • • •

Elliot Luke Krzysik Sydney Lee Sze Min Leong Eleanor Ann Linton Amber Mae Rose Lohrbaecher Alexander Jack Long Pabita Maharjan Pradhan Chelsea Maree Martin Jessica Michelle Miller Nur Amira Azreen Binte Mohamed Amin Allison Michelle Nairn Harrison George Nichols Jessica Kaye Nichols Christopher James Pearn Moragodage Cassendra Rebecca Pinto Nicholas James Rae Racquel Hope Ralston Mariam Refaei Alice Louise Riseley

• • • • • • • • • •

James David Sexton Kaylah Sharee Strauss Abigael Lily Stubbs Ella Kate Synnott Jarin Taylah White Claire Isabella Willis Paulina Wojciechowska Hui Ven Yeap Jayden Ross Hennicke Henry Robert Rex Hutchins

L A W photos: L E T T E Rwww.lst.org.au SUMMER 2023 37 See our website for more



This column is not targeted at lawyers who conduct business as funeral directors discretely from, or as an adjunct to, their legal practice. (As an aside, a cursory search of the Internet reveals examples of this within the Australian context). Instead, “lawyerundertaker” refers to a much more frequent reflection of legal practice, namely the giving of undertakings by lawyers. The seriousness with which the profession and the law views lawyer undertakings can be seen as a reflection of the “my word is my bond” motto (although the latter can trace its genesis to the sixteenth century to facilitate traders making legally binding agreements sans a written pledge). Adherence to (and enforceability of) lawyers’ undertakings goes to the core of the trust and confidence that can be placed in lawyers — by their clients, by other lawyers and by the court. As a disciplinary tribunal has observed:1 Undertakings are given by legal practitioners for the specific purpose of enabling legal activities to be carried out. Other persons rely on those undertakings. The undertakings are personal to the legal practitioner and bind that practitioner … as a matter of professional conduct and comity, and will be enforced by the Courts because legal practitioners are officers of the Court and because without enforcement undertakings would be worthless, persons and Courts would be unable to rely on the word of the legal practitioner and this aspect of legal practice, that demands compliance for legal efficiency, would collapse. As compliance with undertakings is, as noted above, “a matter of professional conduct”, it is hardly surprising to find manifold examples of lawyers being



disciplined for failing to comply with undertakings.2

Faithfulness to lawyer undertakings goes to the core of legal process. The very nature of an undertaking, moreover, means that it not infrequently overlaps with contract. If so, independent of any disciplinary response, the person(s) to whom a lawyer’s undertaking is given can sue thereon — under the general law of contract — should the lawyer not fulfil its terms. A lawyer may escape liability here if the undertaking was given in an agency capacity (typically for a client). But this can prove so only for undertakings clearly given on behalf of a client (any ambiguity here usually prejudicing the lawyer)3 within the lawyer’s authority. What is unique, though, to the legal practice environment is the court’s longstanding summary jurisdiction to enforce lawyers’ undertakings, based on its inherent right to require its officers to observe a high standard of conduct. While the jurisdiction has a traditionally “disciplinary” slant (though not equating to professional discipline noted above), it can be utilised to require a defaulting lawyer to compensate a person who has suffered from that default. Importantly, such an order is not dependent on an existing enforceable contractual (or other civil) right in the victim.4 Procedural benefits, in addition, arise out of a summary proceeding: it does not automatically or usually involve pleadings, discovery or oral evidence, thereby depriving the lawyer of certain advantages that ordinarily avail a defendant on trial.

Lawyers should, to this end, be scrupulous in adhering to undertakings. While the disciplinary slant of this jurisdiction confines its exercise, it is said, to cases of behaviour meriting reproof5 (as distinct from that punctuated by bona

fides), it should not be assumed that the informality of the occasion or setting at which an undertaking is proffered will serve to excuse non-compliance.6 And while the supervisory jurisdiction targets only undertakings given in the capacity as a lawyer, the breadth of what can fall within legal practice for this purpose may not prove an undue constraint thereon.7 It stands to reason that, from an inherent, disciplinary or contractual jurisdiction, lawyer undertakings are viewed with jealousy. The seriousness of failing to strictly adhere to undertakings accordingly cannot be downplayed. GINO DAL PONT

Professor, Faculty of Law University of Tasmania 1. 2.

3. 4.

5. 6.


Copini [1994] NSWLST 25. See, for example, Law Society of New South Wales v Martin [2002] NSWADT 27; Law Society of New South Wales v Waterhouse [2002] NSWADT 204. See, for example, Gorman v Norton (1887) 8 LR (NSW) L 479. Harcus Sinclair LLP v Your Lawyers Ltd [2022] AC 1271 at [149] per Lords Briggs, Hamblen and Burrows (referring to “the courts [being] concerned to uphold particularly high standards of conduct irrespective of some of the rules imposed in contract law”). See, for example, Bentley v Gaisford [1997] QB 627. See, for example, Hartnell v Birketu Pty Ltd (2021) 392 ALR 154 at [140] per Gleeson JA, with whom Basten and McCallum JJA concurred (where a lawyer’s undertaking was enforced despite being given at a “non‐ working lunch”). Cf Harcus Sinclair LLP v Your Lawyers Ltd [2022] AC 1271, to be discussed in the ensuing column.


Rightly the Acknowledgement of Country is how we start many gatherings, including formal events. Why do we not do it in our courts? We should. The land our courts meet on is the land of traditional owners and as such they should be respected and recognised. Along with Welcome to Country ceremonies “Acknowledgement of Country is a fundamental first step in developing a positive and meaningful relationship with the Indigenous community. It demonstrates respect for Indigenous people and acknowledges the spiritual, physical and cultural connection their ancestors have with their “country” as the first people of the land,” argues Ilona Nicola.1 Our community must uphold the obligations set out in Article 15 of the United Nations Declaration on the Rights of Indigenous Peoples. Article 15(2) provides; “States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.” And importantly, in the context of all our court buildings located on land of the traditional owners, Article 25 of the Declaration says that “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.” Starting our court days with an Acknowledgement to Country should not be a matter of controversy. After all the court system in Australia is a product of a colonial structure and it is not that long ago courts insisted on recognising the

British sovereign in their formal openings and closings. Acknowledgment of First Nations peoples is practised in many courts in Canada, including the highest court, the Supreme Court. It is also the case that at the commencement of submissions lawyers will also acknowledge the link to land on which the court meets. As James Gunvaldsen-Klaassen, a lawyer who acts for many Indigenous groups in Canada says of the importance of Acknowledgement of Indigenous link to land where courts sit; “As predominantly settler organizations, it is incumbent on us to name and address systemic inequities and biases that disproportionately harm Indigenous peoples and communities,” he said. “It is essential to dismantle the white colonial privilege that exists within the legal profession and the administration of justice in Canada. This work is critical to building a more accessible justice system – one that is free of arbitrary barriers created by prejudice and white privilege, and trusted by all people in Canada.” Replace Canada with Australia and the point is equally valid.

“It cannot be repeated often enough that a legal system must reflect the people it serves if it is to gain their confidence. And Indigenous Australians want greater confidence in the legal system...

An Acknowledgment of Country in our courts might also focus us on making much greater efforts to end the systemic discrimination which Indigenous Australians suffer daily as they are jailed in obscene numbers or psychologically abused in youth detention facilities. We should also, in Tasmania, recognise the unique disadvantage of Aboriginal Tasmanians through the creation of a specialist court. Again Victoria leads the

way in this regard. The Koori Court has been very successful since its creation in 2002 in ensuring therapeutic justice for offenders which ensures strong participation by the communities in which they live. In Queensland the Murri Court plays a similar role and in New South Wales an Indigenous court process existed in the youth justice area. In South Australia the Nunga Court system has been established. In Tasmania Aboriginal persons who are defendants in the criminal justice system are simply ‘mainstreamed’ which is completely inappropriate in the 21st century where there is global recognition that Indigenous groups must have control, in part at least, of the justice system as it applies to them. While Acknowledgment of Country should be an important component of court proceedings across Australia in Tasmania it is particularly so given the genocide that occurred her in the name of British law and administration two hundred years ago. As Tom Calma, former Aboriginal and Torres Strait Islander Social Justice Commissioner noted; “It cannot be repeated often enough that a legal system must reflect the people it serves if it is to gain their confidence. And Indigenous Australians want greater confidence in the legal system. We want to know that in its day to day operation, the legal system understands and respects our cultures, our heritage, and our histories. And that it is constructed in a way that is capable of providing justice for our people and communities.”2 A modest but critical contribution would be our courts ensuring Acknowledgement of Country each time they sit. GREG BARNS SC Barrister republicone@ozemail.com.au 1.


Ilona Nicola, ‘Acknowledgment of Country: Tokenistic or Meaningful?’ June 19 2012, RightNow.org.au https://rightnow.org. au/opinion/acknowledgment-of-countrytokenistic-or-meaningful/ T Calma, ‘The Integration of Customary Law into the Australian Legal System’ (2007) 25(1) Law in Context 74


Superannuation 'SET AND FORGET’ REGRET

For many working professionals, the ability to ‘set and forget’ your super savings for retirement and let time do the work can be an attractive strategy. However, by being a little more hands on while you’re still young, it can pay extra dividends when you retire. Here are some quick and easy ways to become more involved in setting up and managing your super for your future.

says: “The power of compounding helps you to save more money. The longer you save, the more interest you earn. So start as soon as you can and save regularly. You’ll earn a lot more than if you try to catch up later.” 1

However, the more money you can put into your super now, the greater the potential benefit in the long-term.

Bring Your Super Together and Save Do you have multiple super accounts with different funds acquired throughout your working career with different employers? If so, you are paying fees and charges on every super account you have. It is easy and quick to track down all your past super accounts and consolidate them into one account, thereby ending up with only one set of fees and charges to pay. legalsuper members can get started by going to https://www.legalsuper.com.au/ consolidatesuper Other superannuation fund members should consider contacting their fund or their MyGov account for assistance.

The Magic of Compound Interest Once all your different accounts are rolled into the one fund, your new single consolidated account balance will be larger than each of the previous individual smaller account balances. As well as saving on fees and charges, you will immediately begin to reap more of the benefits of compound interest. Put simply, compound interest pays interest on both the money you deposit – and the interest you have already earned on those funds. The larger your account balance, the greater the compound interest. By comparison, simple interest is only paid one time on the amount initially deposited – think a fixed term deposit. As the Australian Securities & Investments Commission (ASIC) MoneySmart website



non-concessional contribution cap for 2023-24 is $110,000. Depending on your circumstances you might be able to use the bring-forward rule to contribute up to $330,000 in a single year. As part of considering making voluntary contributions to super, it is also worth looking into the possibility of (i) spouse contributions to your super including claiming a tax offset for a spouse contribution, and (ii) contribution splitting where you can split certain concessional contributions with your spouse. These are both subject to eligibility requirements, and you can read more on the legalsuper website at https://www.legalsuper.com. au/super-retirement/super/growing-yoursuper/spouse-contributions

Closing the Super Gap Volunteering Now Feels Good Later Superannuation is designed to help people save for the life they would like to lead in retirement. With an eye to this future, Superannuation Guarantee (SG) law mandates that most employers must pay a minimum of 11 per cent of an eligible employee’s ordinary time earnings (OTE) as super into a superannuation fund. However, the more money you can put into your super now, the greater the potential benefit in the long-term. With this in mind, it is worth considering making additional voluntary contributions to your super account if possible. If your compulsory SG contributions total less than $27,500 in a financial year, you can choose to make additional voluntary super contributions from your salary up to the $27,500 limit. These additional salary sacrifice or personal tax deductible contributions, also known as concessional contributions, are taxed at the favourable concessional tax rate of 15 per cent (if you earn less than $250,000 per annum) compared to your marginal tax rate, which in most cases will be higher.2 As well as choosing to make voluntary concessional contributions up to the $27,500 cap, eligible super fund members can also make what are called nonconcessional (after-tax) contributions. These contributions also carry attractive taxation advantages. The current after-tax

On average, women aged between 60-64 retire with around 24 per cent less super than men but live five years longer. There are a number of well-documented reasons for this life-affecting disparity including the gender pay gap and women being more likely to take time off paid work to raise children and perform other primary care-giving duties. To find out how you can make the most of contributions and optimise your super account, asking your super fund is a good starting point. We also have helpful articles and resources on our website at https://www.legalsuper.com.au/mindthe-super-gap legalsuper is focused on empowering our members through education, helping all members to better leverage super and have confidence in financial security. legalsuper is also a member of Women in Super, a not-for-profit organisation. Through Women In Super, we advocate for a super system void of gender-based inequality. This includes advocacy for topics such as super and paid parental leave, workplace gender equality and women on super fund boards.

Re-examine Your Investment Strategy When you joined a super fund, one of the decisions that needed to be made was how your super contributions would be invested.3 It might be that you chose a conservative investment option – one which carries less risk but comes with lower returns - or

you may have opted for a high-growth investment approach with its greater risk but potentially higher returns. Or you might not have selected an option and been placed in the Fund’s default MySuper option. Whatever you decided at the time, it is prudent to review your investment strategy every few years to see if it is still the best fit for you. At legalsuper, for example, members can choose from (and mix and match) the following investment options: MySuper Balanced; Cash; Conservative; Conservative Balanced; Balanced Growth; High Growth; Australian Shares; Overseas Shares; Balanced Index; Balanced Socially Responsible; and Direct Investment. It is possible to easily change your investment options at any time (at no cost), and the reality is that people quite often take a particular approach to investing earlier in their work life (often higher-risk/higher-reward) and

then change to a more conservative approach as they close in on retirement – while others might decide on the opposite approach. It all depends on your individual circumstances and the financial goals you have in place now and for retirement. If you would like assistance with any aspect of your super, including the topics raised in this column, legalsuper has dedicated experts waiting to speak with you. Book a complimentary appointment with our national Client Service team today at https://www.gobookings.com/ au/clients/directory/ Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879 and holds Australian Financial Services Licence No. 246315 under the Corporations Act 2001. The information contained in this document is of a general nature only and does not take into account your objectives, financial situation or needs. You should

therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement (PDS) and Target Market Determination (TMD) (available at legalsuper.com.au or by calling 1800 060 312) before making any decision in relation to legalsuper. Past performance is not a guide to future performance. 1. 2. 3.

See https://moneysmart.gov.au/saving/ compound-interest If you earn more than $250,000 per annum these contributions are taxed at 30 per cent. If a person joins a super fund and does not actively choose how their super is invested, their super fund will, by law, automatically invest in their default MySuper investment option.

Converge International - FREE Confidential Counselling to Law Society Members - 1300 687 327


Finance THREE THINGS YOU MAY NOT KNOW ABOUT SUPER Most of us know that making extra super contributions can be a great way to accelerate our retirement savings and boost our income for retirement. But are you making the most of the types of super contributions on offer? We share three things about contributions that might just surprise you. #1 You may be able to catch up on missed contributions Before-tax (concessional) contributions can be the most tax effective kind as, provided they are within your concessional cap, they are paid into super before you pay income tax. And, provided your combined income and before-tax contributions are $250,000 or less, these contributions are taxed at just 15% as they reach your account, which may be much lower than your income tax rate. The current cap on concessional contributions is $27,500 per financial year. But, the Government’s ‘catch-up’ scheme allows you to carry forward unused concessional

cap amounts for up to five years, provided you haven’t used up your full cap in previous years. To be eligible to make catch-up contributions, among other things, your total super balance must be below $500,000 at 30 June of the previous financial year.

Again, remember that any contributions made by your spouse into your super will be locked away until you can access your super. So it’s important to be sure you won’t need that money until then.

Bear in mind that making extra contributions into super may mean that your money is locked away for quite a few years, so it’s important to be sure you won’t need it in the meantime.

#3 You may be able to boost your super by downsizing your home (from age 55)

#2 Your spouse may be able to contribute to super on your behalf If your spouse (including your de facto partner) is in a position to make aftertax contributions into super on your behalf, depending on both of your circumstances, they may also be able to claim a tax offset of up to ‘18 percent’ (up to a maximum of $540), when they lodge their tax return. For your partner to be eligible for this tax offset, among other things, you need to be earning less than $40,000 a year. And, to be eligible for the maximum offset amount, your spouse would need to contribute a minimum of $3,000 to your super, and your annual ‘assessable’ income would need to be $37,000 or less. The tax offset available to your spouse is reduced for every dollar you earn over $37,000 and is phased out when your income reaches $40,000. Of course, even without this tax offset, your retirement savings can still benefit from a boost.

From 1 January 2023, the minimum eligibility age for downsizer contributions was reduced from 60 to 55 years of age. So, if you’re considering a sea or tree change, or simply changing homes for your retirement years, depending on your circumstances, you may be able to make a one-off after-tax contribution to super of up to $300,000 ($600,000 for couples) from the proceeds of selling your home. What’s more, downsizer contributions can be made in addition to other contributions you may be able to make using the concessional and nonconcessional caps. To be eligible to make a downsizer contribution, as well as satisfying the age requirements, you also need to meet a number of other criteria. If you’d like to chat to us about making extra contributions into super and you have any questions please don’t hesitate to contact us. CHARLES BADENACH Main Street Financial Solutions 6173 0070 or charles.badenach@mainstreetfs.com.au

Down’s syndrome birth

Dr Steven Chow, Obstetrician, Ultrasound Specialist


Do you have a plaintiff whose pregnancy has resulted in birth of a Down syndrome child? Has the diagnosis of Down syndrome been delayed, missed or misdiagnosed during pregnancy? Send an email to Dr Steven Chow: drchowmed@gmail.com

Dr Steven Chow, PO Box 1057, Greythorn, Victoria 3104

MB BS (Melbourne), Fellow RCOG (London), Fellow RANZCOG, DDU (Obstetrics) 42




Christmas is dubbed “the happiest time of the year”, but for some this saying strays a little from the truth. Every year, the festive season throws up stressors that most of us would rather avoid. Family conflict, loneliness, and coping with loss are all brought to the fore every December, and these emotional stressors can really ruin what is supposed to be a happy time. Despite the onslaught of added pressures and negative emotions that can come with Christmas, there’s a variety of measures you can implement to protect your mental health. At the end of the day, we all deserve to enjoy Christmas.

Coping With Family Conflicts The saying goes, ‘You can choose your friends, but you can’t choose your family’. If your family is more Married with Children than The Brady Bunch, take comfort in the fact that you’re not alone. But, if you’re worried about conflict this December, here are some ideas: •

If certain family members have been bickering or arguing through the year, their conflict is not going to vanish because of the holidays. Be mindful and don’t set high expectations... and sit them at the opposite ends of the table!

Avoid triggers, for example, stay away from discussing divisive matters like politics or past arguments. If these discussions begin, use distractions to change the subject. Also, remember that it’s healthy to agree to disagree.

Get everyone involved in activities after the meal, such as playing sports or watching old family movies. Providing diversions allows people to take a break from each other.

Have a relaxation room with a bed/ lounge and soft music playing, it can be a space to chill out or have a nap

Remembering Loved Ones The emotional impact of missing loved ones who have passed away or are ill is

Image: Adobe Stock

difficult. You will be missing this person deeply and will be wishing for the ability to spend this time together.

Feeling alone at this time of year, doesn’t have to be an awful event. •

Share your emotions and talk about your feelings with family and friends. Sometimes sharing happy stories and memories can assist you with getting through the pain of missing loved ones.

Set aside some time for yourself • to reflect on your loss, on recalling memories of your loved one, to look at photos or videos of the person you are missing. Rekindling these memories can help you to feel closer to your loved ones when they are not with you.

If family concerns or loneliness are causing you stress, remember that you can talk to a Converge expert. Loneliness

Embrace solitude. It’s a great time to re-connect with yourself. Make time to cook your favourite foods, create a list of your favourite movies to watch during the period. Watching The Grinch and eating a toasted sandwich on Christmas Day is a wonderful thing to do. In all, show self- love. Turn to others. If someone invites you to their family Christmas lunch, don’t feel uncomfortable – accept the kind gesture. Or, you could volunteer for the homeless, foster some puppies/kittens, or even join an online forum and organise a group picnic with friends you haven’t made yet

Converge International exclusively provides free and confidential counselling services to Law Society members. Download the EAP Connect app and check the website at www. convergeinternational.com.au. Tel: 1300 687 237

Some people will remain separated from their family for various reasons, while others simply have no family.


North-West Early Career Lawyers Committee

This year the North West Early Career Lawyers (NWECL) Committee are holding our monthly meetings on every third Tuesday evening at the Penguin Beer Co. commencing at 6:00pm. This enables us to get down to business but also to take part in the local trivia night that commences at 7:00pm. Noting that NWECL includes all persons up to 10 years post-admission, the Committee would like to extend an invitation to all eligible people to come along and join in. Also, for members of the profession visiting the north west coast, please feel free to contact a member of the Executive and come along while on the coast.

Callum Tregurtha (North West Community Legal Centre) Co-President;

careers this year on the north west coast.

Sophie Warren (Tasmania Legal Aid)Secretary;

Mitchell Sheehy (Western Prosecution Service)- Treasurer;

Aaron Murphy (McLean, McKenzie & Topfer)- Co-CPD Coordinator;

Kelsey Lewis (Tasmania Legal Aid)Co-CPD Coordinator; and

Nathaniel Lau (Tasmanian Aboriginal Legal Service)- Communications

Our second social event was our annual trivia night. In August competitors from along the NW Coast rolled into the Ulverstone Bowls Club for the annual event. Once again, we were delighted to welcome back our quizmasters/hosts, the incomparable Kirsten Abercromby and Julia Ker and we thank them for their continued support of the event. With the event open not only to lawyers but also to support staff and other employees within firms/organisations, we were joined by many for another very fun night. To top off the night, first place was awarded to the NW Legal Aid team who were closely followed by their main competitor, Western Prosecution.

The North West Early Career Lawyers (NWECL) Committee have commenced the year by appointing as our executive:-

The Committee would like to thank all who were involved in and supported this event. The event would not be possible without the ongoing support of the Law Society. The Committee also looks forward to welcoming several graduates as they commence their

Amber Scott (Rae & Partners Lawyers) - Co-President;

Our first event for this year was to host the 2023 Tasmanian Legal Practice Course students as they visited the north west in April. The students commenced the day by enjoying a welcoming lunch in the Yurt at the Berry Patch in Turners Beach. This was followed by attending the Devonport Magistrates Court for an informative discussion with His Honour, Magistrate Duncan Fairley, as well as a tour of the Court facilities. The students then attended a speakers panel held at the Paranaple Centre featuring Ryan Gilmour (Senior Solicitor of NWCLC), Jacinta Hamilton & Callum Purcell (Principals of Hamilton Purcell Lawyers), Kirsten Abercromby (North West Criminal Practice Manager of TLA). The day was completed by the north west profession joining the students at the Formby Hotel for dinner and drinks to finish off.

Further, we wish to thank Magistrates Evan Hughes and Katie Edwards for sharing their vast knowledge and experience with us at our October Magistrates Court CPD. Finally, if you have any suggestions or feedback for the Committee, please reach out to us. Otherwise, we look forward to working with the profession throughout the balance of 2023/24 and welcoming the new 24/25 Committee in April/May 2024. AMBER SCOTT AND CALLUM TREGURTHA Co-President North-West Early Career Lawyers Committee

Workplace Culture & Conflict | Family Dispute Resolution Child Inclusive Mediation | Parent Coordination | Co Parenting Plans Property Settlement | Relationship Mediation Group Conflict Resolution | Personal Conflict Advocate Email: contact@mediationmatterstasmania.com.au Website: mediationmatterstasmania.com.au LinkedIn: Mediation Matters Tasmania | by appointment only



Northern Early Career Lawyers Committee

The Committee held several events in the last quarter of the year.

for travelling to Launceston and dedicating their time in the preparation and presentation of the event.

The Committee hosted its annual Meet and Greet at Staffordshire House to introduce graduate solicitors to the broader Launceston profession. Introduced this year were: Hui Ven Yeap of Simmons Wolfhagen, Charlee Dornauf of Shields Heritage, Shravaree Tryambake and Xena Jammas both of Bishops. This year’s graduates were introduced by Sam Pratt who provided his learned tips to practice for our newest graduate solicitors.

Our annual Trivia Night was held at the East Launceston Bowls Club in early October with close to 100 participants. The Committee thanks quizmasters Hannah Phillips and Amelia Goss for their hosting duties.

The Committee, in conjunction with the Law Society, hosted a half-day CPD event at Staffordshire House ‘A Focus on Family Law’, presented by Mary Anne Ryan, Matthew Verney and Michael Trezise. Practitioners from Hobart and the North West Coast also attended this event. The Committee thanks the presenters

The Committee has been working alongside Society President Julia Higgins and Centre for Legal Studies Director Emma White to host an introduction day in Launceston for students of the Law School. The day, to be held early next year, will be an inaugural event for the North. We look forward to continuing to support and work with Julia and Emma in this initiative. Finally, the Committee hosted its annual end of year long lunch at Dare Darlin’. Attendees enjoyed

excellent food and beverages and we thank Launceston’s firms for allowing their early career lawyers to attend this event. The event was supported by Bishops and we especially thank Rebecca Crawford of Simmons Wolfhagen for attending as our guest speaker and providing us with her tips in achieving ‘POWER’ over our practices. We are grateful for the members of the profession who support our Committee by taking the time to prepare for, present at and attend our events. Thank you for the early career lawyers for their support in attending our events and to all of the Committee members for their contributions in preparing for and hosting our events. TIMOTHY DREW President Northern Early Career Lawyers Committee



Practitioners • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

• Thomas Cooper has left Simmons Wolfhagen and commenced at UTAS. • Crystal Garwood has left Dobson Mitchell Allport and commenced at TT-Line. Pabita Maharjan Pradhan has left Butler • McIntyre & Butler. Laura Paton has left HWL Ebsworth and • commenced at LHD Lawyers. • Victoria Geason has commenced at the University of Tasmania. • Julia Ker has left Tasmanian Aboriginal Legal Service and commenced with Western Prosecution Services. • Isaac Williams has left Tierney Law. Katherine Notley has left Clarke & Gee • Devonport and commenced at Rae & Partners Devonport. Jennifer Dunn has left North West • Community Legal Centre and now retired. Tianna Freeman is now a principal at • Bishops. Hayley Lester has commenced at Women's Legal Service Tasmania. Roger Sparrow has left Tasmanian Water • & Sewerage Corporation. • Mark Rapley has left Butler McIntyre & Butler and commenced as the State • Litigator. Penny Sproal is now a principal at Sproal • & Associates. Hugh McCracken is now a principal at Wallace Wilkinson & Webster. • Timothy Cannon is now a principal at Groom Kennedy. John Wilson is now a principal at Groom • Kennedy. Lena Lashin has commenced at Tierney Law. • Matthew Isles has commenced at Tierney Law. • Tiarni Barr has commenced at Commonwealth Department of Health and Aged Care. • Jared Sharp has commenced at the Environmental Defenders Office. • James Eddington has commenced at Health & Community Services Union. Katherine Barclay has left Barry Nilsson • and commenced at HWL Ebsworth. Graeme Kirkwood is re-commencing at • Tierney Law. • Julia Detheridge has commenced at Commonwealth DPP. Samuel Karpinskyj has left Tasmanian • Refugee Legal Service and commenced at the ACCC. Sarah-Jayne Hall has commenced at • Bank of Us. Fawwaz Aziz has commenced at Page Seager Lawyers. Phillip Bellchambers-Finau has commenced at Butler McIntyre & Butler. • Pabita Pradhan has commenced at Butler McIntyre & Butler. Jessica Miller has commenced at Butler McIntyre & Butler. Aimee Hope has commenced at • Dobson Mitchell Allport. Tessa Anne has commenced at Commonwealth Department of Health and Aged Care.

Timothy Davis has commenced at WMM Law. Alexandra Darcey is no longer practising as a Barrister and has commenced at Page Seager Lawyers. Stephanie Collins has commenced at TasWater. Claire Bendzulla has commenced at NetActuary Pty Ltd. Lucas Lim has commenced at City of Launceston. Silas Hoon has left Simmons Wolfhagen and commenced at the Office of Crown Law. Isabelle Sutton has left Murdoch Clarke and moved interstate. Philip Schubert has been issued a Tasmanian practising certificate at Blumers Personal Injury Lawyers. Damian Chung has been issued with a corporate practising certificate at the Legal Profession Board of Tasmania. Cynthea Street has left Clarke & Gee Devonport and commenced at Rae & Partners Devonport. Olivia Carmody has left Women's Legal Service (Tas) Inc. Denice Chang has left Butler McIntyre & Butler and moved interstate. Madeleine Farrar has commenced at Hydro Tasmania Indi Gunadasa has left Hall Payne Lawyers and commenced at Simmons Wolfhagen. Aline Fray has commenced at Tasmanian Aboriginal Community Legal Service. Colin Foon has retired from practise at Rod Glover Legal incorporating PL Corby & Co. Graeme Bradfield has retired from practise at Tierney Law. Mahum Akbar has left Butler McIntyre & Butler and commenced at Page Seager Lawyers. Sean McNally has commenced at Advocate Lawyers. Sarah Standen has left Page Seager and commenced at Savage Software Group. Abigail Bindoff has left Cann Legal and commenced at WMM Law. Robert Meredith has left WMM Law. Callum Tregurtha has left Hamilton Purcell Lawyers and commenced at North-West Community Legal Centre. David Rosen has left McMullen Lawyers and commenced at Kingborough Council. Samuel Claessens has commenced at Douglas & Collins.

Barristers Matthew Strong has commenced as a Barrister at Michael Kirby Chambers, 49 Davey Street, Hobart. Tel: 0404 941 641 E: matthewbenjaminstrong@gmail. com Ronald Jorgensen has commenced as a Barrister, 6/166 Bathurst Street, Hobart, 7000. M 0414 967 411, E: jorgensenlegal@bigpond.com

Firms • •

• • • •

• • • •

• •

Hugh Murray has retired and his firm is now closed. Hugo Aston has closed the firm Barclay Churchill Family and Criminal Lawyers and opened Men's Legal Centre, U7, 41 York Street, Launceston, 7250. Tel: 03 6334 8634, E: hugo@mlcentre.com.au. Sean McNally has opened a firm Storm Bay Law, Level 3/85 Macquarie Street, Hobart. Tel - 0450 227 218, Email seanmcnally2014@gmail.com Jonathan Smith Lawyers has ceased to practice and is now Simmons Wolfhagen. Jonathan will continue to practice from Simmons Wolfhagen's new office at 32 King Street, Smithton, PO Box 111, Smithton, Tasmania 7330, Phone: (03) 6452 1861 Archer Bushby and Shields Heritage have agreed for the transfer of Archer Bushby’s commercial practice to Shields Heritage. Jason Parker has left Ritchie Parker Alfred Green & Co and opened a new firm Jason Parker Legal, 10 Cameron Street, Launceston, 7250.Tel: 03 6331 5233, Email: info@jasonparkerlegal.com. au Andrew Mead and Sarah Mead have left Paula Sutherland & Associates and opened the firm Mead Family Law, Corporate Centre, 4/85 Macquarie Street, Hobart. Tel - 6270 2281, Email tess@meadfl.com.au. ConMoto Group has moved office to 131A Collins Street, Hobart, TAS, 7000. Michael Hunniford has retired from practice and closed the firm Hunnifords. Darrell Grey has retired from practise and closed his firm. James Oxley has opened a firm James Oxley, address 4/187Brisbane Street, Launceston. Tel: 0493 702 337, E: james@oxley.com.au. Philippa Monk has opened a firm Monk Lawyers, 1/191 Liverpool Street, Hobart. Tel: 0407 738 676 E: pip@monklawyers. com.au. Andrea Blackwood-Beattie has left Cann Legal and opened a firm Blackwood Beattie Legal, 3 Moonbeam Place, Ulverstone. Tel: (03) 6204 9515, E: andrea@blackwoodbeattielegal.com.au. Peter Rowe has opened a firm Corrina Legal, 28 Wallsend Road, Kaoota. Tel: 0417 476 067, E: peter_rowe@bigpond. com. Stephen Dixon has retired from practice. The practice of JH Dixon has merged with Tierney Law, contact details remain the same. Alex Graham Legal has a new email alex@alexgrahamlegal.com.au. Website is www.alexgrahamlegal.com.au Kathleen Ford has retired from practise and closed her firm Davis Ford. Madeleine Ogilvie has closed her firm. Alastair Oxbrough has closed his firm Oxbrough Construction Consulting Pty Ltd and commenced at ConMoto Group. Chilemwa Nkowane-Poole has closed her firm Myler Law. Clarke & Gee has moved to the Post Office Building, 68-72 Cameron Street, Launceston.


FAMILY COURT CASE NOTES by Craig Nicol and Keleigh Robinson the primary judge continued to interrupt counsel.” The appeal was allowed, the orders set aside and the proceedings were remitted for rehearing. Costs certificates were granted. Property – Court lacked jurisdiction to hear non-federal aspects of justiciable dispute between husband and his former business associate – No common substratum of facts between matrimonial cause and husband’s civil suits Children – Trial judge unnecessarily interrupted and curtailed cross examination via a “five minute warning” to counsel – Unfounded and unfair findings as to family violence

In Akbar & Gandega [2023] FedCFamC1A 174 (12 October 2023) the Full Court (McClelland DCJ, Austin & Wilson JJ) heard an appeal from a decision of Riethmuller J. The appellant was the husband’s former business partner.

In Edinger & Duy [2023] FedCFamC1A 194 (10 November 2023) the Full Court (Aldridge, Schonell & Carter JJ) heard a father’s appeal from parenting orders for a child (born in 2015) to spend no time with him [2].

The husband and the appellant agreed to the husband’s withdrawal from their business in exchange for payment, but the appellant did not pay. The wife joined the appellant as a party, “purporting to sue him on behalf of the husband for damages to compensate him for the appellant’s alleged breach of the contract” [10]

The mother alleged that the child witnessed sexual activity in the father’s house, was subject to sexual abuse by the father’s girlfriend and neglect by the father and paternal grandfather [13]. The trial judge found that the least detrimental outcome for the child was to remain in the mother’s care and spend no time with the father [19]. The father appealed, arguing he was denied procedural fairness [5]. The Full Court said (from [274]): “ … [I]n this hearing there was a significant departure from that permitted for proper trial management such as to give rise to a miscarriage of justice. The interventions were excessive, including needlessly interrupting the flow of the evidence and cross-examination … (…) [49] Section 69ZX(2)(d) of the Act sets out that the court’s general duties and powers relating to evidence [and] includes permitting the court to give directions limiting the time for the giving of evidence. That must … be tempered by the primary duty of a judge, namely to ensure a fair hearing … [50] … [I]t was procedurally unfair and unreasonable for [the father’s] counsel to be given … a five minute warning when a significant part of the evidence regarding family violence had not yet been put to the [mother]. That is particularly problematic … where it is readily apparent from the reasons that the mother’s experiences of family violence were central to the Court’s determination. [51] … [T]he primary judge identified the lack of cross-examination on many aspects of the mother’s allegations regarding family violence as relevant to her fact-finding process … Yet she permitted only about 20 minutes in total for counsel for the father to complete his cross-examination on the topic – during which time 48


Austin J (with whom McClelland DCJ and Wilson J agreed) said (from [25]): “The existence of the husband’s chose in action was not contentious as between the spouses … Only its value was liable to be controversial between them. But placing a value on that property interest for the purpose of resolving the spouses’ matrimonial dispute did not demand the determination of the causes of action brought against the appellant … (…) [28] Claims grounded solely in contract, tort, equity, or some other form of nonmatrimonial relationship (such as partnership or corporation shareholdings) are not likely to attract jurisdiction as a matrimonial cause when the spouses’ marriage is purely coincidental to the dispute ... (…) [33] … [T]he relationship between the husband and appellant arose exclusively out of their mutual business activities … The husband’s legal grievance with the appellant could easily have been litigated independently … There was no common substratum of facts between the spouses’ matrimonial cause and the husband’s civil suits …

Procedure – Duty of formality before the Court – Inappropriate for non-legal staff to make substantive representations or seek orders in written communication with the Court In Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 (23 October 2023) Judge Given heard a bankruptcy application in Division 2 of the Federal Circuit and Family Court of Australia. The judgement related to procedural orders “necessary to address an apparent deterioration in the standard of conduct before the Court, which should not be allowed to endure” [1]. In September 2023, the Court directed the respondents to file a Notice of Opposition and listed a directions hearing. No Notice was filed. Rather, in October 2023, an e-mail was sent from a law clerk to the Court with further directions as agreed between the parties. The e-mail read “Please have the Directions hearing relisted in accordance with the Orders” [1] – [3]. The Court said (from [12]): “Legal practitioners in Australia … have a duty of formality before the Court … (…) [14] There is arguably nothing so informal, or possibly arrogant, as to approach a Court with [proposed] orders … and simply presume, or in the instant case direct, that they will be made ... [15] Where a party is represented, submissions should not be made to the Court by anyone other than a legal representative … [N]on-legal staff … should not write to the Court to make substantive representations and/or seek orders … [16] The underlying origin/s of this spate of informal and presumptuous correspondence is unknown, although it does seem heightened since … [the increase of] hearings [via] using online technologies ... Lest there be any doubt, parties and practitioners should not interpret the use by Courts of a medium which can also be used for meetings and entertainment, as somehow informalising the solemnity of Court proceedings. (…)

[34] … The convenience of first determining whether or not the husband should have judgment for a certain sum of money entered in his favour against the appellant … is not the same as the essentiality of determining those causes for the purpose of then determining the matrimonial cause … ”

[19] … The proposal of consent orders should be undertaken in terms which properly acknowledge that the Court retains a full discretion as to whether they will be made … No correspondence to the Court should be in terms to the effect that the parties have reached agreement and are simply informing the Court of a change to the orders … ”

The appeal was allowed and the causes of action at common law and in equity pleaded by the respondents against the applicants in the original proceedings were dismissed for want of jurisdiction. Costs certificates were ordered.

Property – Arbitration – Ordinary principles of procedural fairness apply to arbitrations – Husband’s failure to adduce evidence as to capital gains tax did not relieve the arbitrator from making orders that were just and equitable

In Vida [2023] FedCFamC1A 175 (18 October 2023) the Full Court (Tree, Hartnett & Schonell JJ) considered an unsuccessful application to review an arbitral award, dismissed by Wilson J. The arbitrator ordered that the husband pay the wife $1,920,043 within a period of four months [17]. The husband identified that a sale of real estate would give rise to “significant tax implications” but did not adduce evidence from his accountant of capital gains tax calculations [18]. The arbitral award did not factor in the potential capital gains tax liability. The Full Court said (from [32]): “The primary judge concluded that no error of law was occasioned by the arbitrator failing to take capital gains tax into account, particularly where the [husband] had adduced no evidence about the tax implication arising from the sale of the properties. ( … ) (…) [41] We are satisfied that a sale of real estate was a natural product of the award … [T]he result of the award is that the [husband] is not left with the property identified by the arbitrator … after payment of the $1,920,043 but something considerably less because of capital gains tax. (…) [52] The mandate is to make an order that is just and equitable. It is not just the underlying percentage but the order that must also be just and equitable ... At that stage, knowing what net property a party is to be left with must satisfy the requirement of justice and equity. Here the arbitrator knew from the unchallenged evidence of the [husband] that a sale of real estate would give rise to capital gains, that the size of the capital gains tax, albeit unknown, was ‘significant’, that there was no evidence that the [husband] had the capacity to borrow such a sum and that consequently, there was an inevitability about a sale … ” The appeal was allowed, the orders of Wilson J set aside and the review application was remitted for rehearing. Costs certificates were ordered. Property – Husband and wife unsuccessfully appeal s 79A order to repay third party creditor from proceeds of sale – Creditor remained a “person affected” despite husband’s discharge from bankruptcy In Saklani & Valder [2023] FedCFamC1A 163 (22 September 2023) the Full Court (Aldridge, Jarrett & Strum JJ) heard an appeal against property orders made by Christie J. The husband and wife entered into consent orders in November 2013 but did not mention NSW Supreme Court proceedings against the husband by a third party creditor. After obtaining leave to do so, the creditor commenced section 79A proceedings which resulted in the consent orders being set aside and orders for the sale of real property. On appeal, the husband and wife argued that the husband’s bankruptcy and subsequent discharge terminated the creditor’s rights. Aldridge J said (from [182]): “ … [T]he claim under s 79A is not a claim to enforce a remedy against the person or property of a bankrupt in respect of a prov-

requirement that a contribution must result in a positive economic result before it can be taken into account … Whilst the lack of economic benefit may be relevant (Will(…) more and Willmore [1988] FamCA 45 … ), a [186] By enacting s 58(3) … creditors who party’s work and effort generally remains a contribution unless it is conduct of the type had obtained the necessary leave [were empowered] to enforce a remedy against described in Kowaliw and Kowaliw [1981] FamCA 70” the person or property of a bankrupt or to commence or continue a legal His Honour re-exercised the discretion and proceeding in respect of a provable debt. ordered a 72.5:27.5 division in favour of … [A] creditor’s rights in a bankruptcy can the de facto wife. Costs certificates were extend beyond proving in the bankruptcy ordered. and extend to pursuing claims under s Procedure – Solicitor sent subpoenaed 79A of the Act … documents to client notwithstanding (…) “view only” access and undertaking to not release the documents – Referral to Legal [199] … Whilst proceedings against [the bankrupt] … or his property are no longer Services Commission tenable, the debt continues to exist … In Samaras & Allen (No 3) [2023] FedC(…) FamC1F 787 (13 September 2023) Brasch J heard a case relating to subpoenaed [209] The [third party creditor] … rematerial. mained a claimant with a right to prove in the estate as a creditor, that right had The mother’s solicitor filed a subpoena been impugned by the consent order to the Australian Federal Police (“AFP”). and therefore she remained a person af- A Notice of Request to Inspect was filed fected for the purpose of s 79A. She was and leave was granted to view the material seeking to augment the dividend she was produced by the AFP ([5]). The firm gave an to receive.” undertaking to not release the subpoenaed material ([19]). The mother’s solicitor subseJarrett and Strum J agreed. Amendments quently received documents directly from were made by consent and the appeals the Australian Government Solicitor (“AGS”) were otherwise dismissed. The husband and forwarded them to the mother. and wife were ordered pay the creditor’s costs. Brasch J said (from [17]): able debt. The claim is a legal proceeding in respect of a provable debt (s 58(3) (b) of the Bankruptcy Act).

Property – Increase in value of real estate was not a windfall or an equal contribution – Renovations that “came to nothing” were still contributions

“ … [T]he solicitor ignored or otherwise did not turn her mind to the following: (1) the documents were not accessed via the court, but had come from the AGS directly;

In MacKinnon & Talbot [2023] FedCFam- (2) the other parties had not been included C1A 156 (19 September 2023) Riethmuller in that communication … J, heard a de facto husband’s appeal (3) the court had granted view only access; from property orders made by Morley J. The parties were in a de facto relationship of 6 years ([2]). The de facto wife owned two properties that were applied towards the purchase of other real estate (“the Suburb C property”).

(4) whether the firm had given an undertaking in relation to the release of the AFP documents.

The de facto husband undertook renovations on the Suburb C property for over 10 months that were unsuccessful and subsequently removed by a builder employed by the de facto wife ([7]).

[20] … [T]he undertaking was plainly breached …

Riethmuller J said (from [29]): “The appellant alleges the increase in the value of the Suburb C property, from $709,000 at the time of purchase to $1,725,000 at the time of trial, should be treated as a windfall and considered to be a contribution made equally by each of the parties. … (…) [31] To approach the matter [that way] … would be to quarantine one particular contribution and fail to consider the matter holistically … The … argument incorrectly attempts to convert the principle that increases in value should not simply be attributed to the title holding spouse … to some form of community property principle requiring the entire increase in value of an asset to be quarantined as an equal contribution of each party. It was clearly not a ‘windfall’ … (…) [36] There is no question that the appellant undertook work on the home nor that his efforts were genuine. … [N]ot all contributions by parties to marriages or de facto relationships lead to an increase in the wealth of the parties … There is no


(…) [26] … [I]t took the solicitor a week to advise the court of the breach of undertaking. The undertaking given by the firm required immediate notification but that did not occur… (…) [29] … [T]he [solicitor’s email to the Court] … is, in my assessment, glib and does not address the gravity of what had happened. Indeed, the email to the court has a sense to my mind of trying to ‘fly under the radar’, or ‘nothing to see here’. This is inadequate … It … does not include any apology or acknowledgement of contrition… (…) [39] Judicial officers must be able to trust the words and actions of all officers of the court. Judicial officers must be able to rely upon undertakings being complied with. … (…) [45] It is not for me to determine whether the solicitor’s conduct amounts to unsatisfactory professional conduct. This state has a statutory body to consider what has happened in this matter and whether such a conclusion is warranted. [46] I will therefore refer the papers to the Legal Services Commission…” LAW LETTER SUMMER 2023 49

Book Reviews BOOK REVIEWS The Law of Civil Penalties Deniz Kayis, Eloise Gluer & Samuel Walpole (eds.) The Federation Press 352pp $180.00 Reviewed by Stephen Cronin, FitzGerald, and Browne This new volume focuses on the growing area of civil penalties law. The book is divided into fifteen chapters, each focusing on an area affected by civil penalties, including civil penalties against company directors, civil penalties under the Privacy Act, and civil penalties in the context of competition and consumer law. The foreword is written by the Honourable Robert French AC, former Chief Justice of the High Court of Australia, and the book features chapters from a wide array of experienced judges, barristers and solicitors from the AGS. The High Court’s seminal decision in what is known as the “Agreed Penalties Case” (Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46; 258 CLR 482), focused on the issue of whether the Court is precluded from considering, and if appropriate, imposing penalties in civil penalty proceedings that are agreed between the parties. The Court explained that whereas in criminal proceedings, retribution and rehabilitation are important factors in sentencing; the purpose of a civil penalty is primarily, if not wholly, protective in nature, promoting the public interest in regulatory compliance. The imposition of civil penalties is on the rise in a range of practice areas due to their ability to enforce particular regulatory frameworks. A number of examples are found within the book. For example, civil penalties against company directors for breaches of the Corporations Act 2001 (Cth). For the most part, civil penalties are paid to the Commonwealth and have become an effective enforcement tool for regulatory agencies such as ASIC and the ACCC. One chapter discusses the potential creation of an independent environmental regulator at the federal level, which was a recommendation of the Samuel Review in 2020, a ten-yearly statutory review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). As the Asia-Pacific begins to grapple with the increasing effects of climate change, the law must change to ensure statutory compliance. This is certainly more a collection of essays than an explanatory textbook, although the book would certainly be a valuable addition to any practitioner’s library who handle matters where the issue of civil penalty may arise. For a practical overview of civil penalties, I recommend “Civil 50


Penalty Proceedings: A Practitioner’s Guide”, a CPD paper by Cam Truong KC and Matthew Peckham of the Victorian Bar. This book, however, does give an overview of the civil penalties regime in Australia and the purpose of civil penalties, namely deterrence.

Work Health and Safety Regulation in Australia Richard Johnstone and Michael Tooma The Federation Press 448 pp $145 Reviewed by Alice Cox The saying ‘working safely may get old, but so do those who practice it’ comes to mind when reading this book. Work health and safety regulation is an important and fastdeveloping area of employment law. Australian workers face a wide range of traditional and new hazards in rapidly changing working environments, including psychosocial hazards. Over the past decade, work health and safety law in Australia has undergone, and continues to undergo, major reform, with all but one of the Australian jurisdictions (being Victoria) adopting the ‘model’ Work Health and Safety Act 2010 (Cth). The central purpose of the book is to help readers understand the principles of work health and safety laws in each Australian jurisdiction. In addition, the authors explain the historical and policy context of the legislation, judicial interpretation of its provisions, its practical implications, and how the law has operated in practice. At the end of each chapter, and in the final chapter, the authors outline thoughtful criticisms of the law, its implementation and its operation. The authors do so with a view to contributing to future development of the legislation. Chapter 2 contains a particularly useful section in relation to the general duties owed under the legislation by persons conducting a business or undertaking. It explains and applies the general duties owed to four different types of work arrangements and relationships: simple corporate structures, contracting arrangements (including specialist contractors), supply chains, and gig workers. Overall, this book is comprehensive, accessible and well-organised. It contains a useful index and table of cases, and the law it states is accurate to the date of publication. As a collaboration between a well-regarded academic lawyer and an experienced work health and safety legal practitioner, it strikes a balance between critical analysis and practical guidance.

It is highly recommended to all persons who deal with work health and safety issues in their work, including students, practitioners, regulators and union officers. Practitioners will be particularly well-served by this book, as it will undoubtedly improve the quality of advice that can be provided to clients should a work health and safety issue arise.

50 Human Rights Cases Than Changed Australia Lucy Geddes & Hamish McLachlan The Federation Press 374 pp $69.95 Reviewed by Stephen Cronin

I first came across the authors of this work in 2019 when I wrote a research paper on the case of PBU & NJE v Mental Health Tribunal, in which they acted for the applicants. This decision had far-reaching implications for those being treated under the Mental Health Act in Victoria receiving compulsory electroconvulsive therapy, and the threshold for capacity.1 This book explores that case and 49 others that have made an impact upon how human rights are acknowledged at law. The book is a collection of case summaries, with each entry including an explanation of the relevant human rights acknowledged by the decision, the facts, issues, decision, key quotes, an explanation of the case’s impact, and its number of LawCite citations. Each chapter of the book contains a number of case summaries of decisions that share a particular theme, for example the rights of prisoners. The text is intended to act as a litigation toolkit, acting not only as an academic text but as a practical resource to assist practitioners in strategies when faced with a client whose rights may have been breached. This will be helpful for practitioners working in a variety of practice areas, as the cases touch on many issues which commonly arise. Unfortunately, one take-away from this text is the deficiencies in our legal system to protect the most vulnerable. The majority of states in Australia, and the Commonwealth, are without any human rights legislation. The fight for enshrined basic rights, freedoms and responsibilities continues in Tasmania. However, there is yet to be any action by government since the TLRI’s report recommending the implementation of a Tasmanian Human Rights Act in 2007. On a more positive note, many Tasmanian cases appear in this text, demonstrating our profession’s commitment to the public interest. These cases include Toonen v Australia,2 which resulted in the repeal of Australia’s last laws criminalising homosexuality; ABC v Lenah Game

Meats,3 a significant case in terms of the freedom of the press; Brown v Tasmania,4 which held that Tasmania’s “anti-protest laws” were inconsistent with the implied freedom of political communication; and Commonwealth v Tasmania,a5 which prevented the damming of the Franklin River and led to the creation of Australia’s national environmental and biodiversity legislation. I recommend this text to any practitioner who has an interest in human rights, both for inspiration and on a practical level to ensure their clients’ rights are being respected. 1. 2. 3. 4. 5.

[2018] VSC 564; 56 VR 141. UNHRC, Communication No 488/1992. [2001] HCA 63; 208 CLR 199. [2017] HCA 43; 261 CLR 328. [1983] HCA 21; 158 CLR 1.

Residential Tenancy Law and Practice: New South Wales 8th Edition Allan Anforth, Peter Christensen, Christopher Adkins The Federation Press 656 pp $170 Reviewed by Tim Tierney My 7th Edition copy of this book was sufficiently dog eared to justify review of the 8th Edition. I commented in 2018 that seven editions since 1998 was testament to continued popularity. The appearance of the 8th Edition in 2022 confirms that popularity and the commitment of the continuing authors. The authors, although academics and a public servant, have all had practical engagement with residential leasing law. The target audience remains estate agents, lawyers, property managers, tenancy advisors, community legal centres and tribunal members and all those with more than a passing involvement in tenancy law. Neophytes seeking quick guidance or a basic overview may be best to start with the community law handbooks of the CBOS guide. The book is based on an annotated New South Wales Residential Tenancy Act 2010, extending to almost 400 pages, quoting the relevant sections of that Act in order of section number, followed by text book commentary on the topics raised. Each annotated section has comparative references to the legislation of the other states, including Tasmania’s Residential Tenancy Act 1997, without quoting the text of those sections. An amalgamated equivalent provisions table :

is laid out in order of the New South Wales section numbers,

without any topical guidance

with equivalent Tasmanian provisions references to over half the New South Wales sections.

A 26 page closely printed pages Table of Cases, has a preponderance of New South Wales Residential Tribunal decisions and, from my quick scan, a single Tasmanian case. Short chapters address : •

the involvement of the Commonwealth Government in residential tenancies in New South Wales

Boarding House and Short Term Accommodation, and

the New South Wales Uncollected Goods Act.

Residential leasing is densely regulated with detailed prescriptive statutes supplemented interstate with a substantial body of case law. Although residential leases are typically lower dollar value transactions for lawyers, residential leasing engages significant capital of owners and is critical to tenants. Despite an indirect route via an annotation of the New South Wales Act, Tasmanian practitioners called on to advise landlords, tenants or estate agents are likely to find this comprehensive reference useful.

Dynamic and Principled: The Influence of Sir Anthony Mason Barbara McDonald, Ben Chen, Jeffrey Gordon The Federation Press 406PP $135.00 Reviewed by Greg Barns If you followed the High Court from the mid 1980s to the mid 1990s you will remember it as a golden age of progressivism. The Court’s preparedness to take bold steps in ensuring the right of Indigenous Australians to land (Mabo v Queensland (No 2) (1992) 175 CLR 1), protections against racial discrimination (Koowarta v Bjelke-Petersen (1982) 153 CLR 168, and the right of persons to legal representation in serious criminal matters (Dietrich v The Queen (1992) 177 CLR 292) was due in part to one of this Nation’s great judges, Anthony Mason. Mason was Chief Justice from 1987 to 1995 and had been appointed by the McMahon Government to the Court in 1972. As the editors of this excellent volume note “Sir Anthony’s lasting contributions to Australian law emanate from his

stewardship of the High Court during perhaps its most momentous period”, when it “breathed new life into the Australian Constitution by articulating some of its most important values.” The breadth of Mason’s influence is manifest in the way this collection of essays unfolds. From Justice Stephen Gageler’s sweep through the vast and rapid changes to the Australian legal system during Mason’s time on the Court to Prue Vines’ take on Mason’s influence in the area of First Nations heritage, one gets the sense there is no area of public or private law left untouched by Mason both as a Justice and then Chief Justice. In addition to contributions on implied freedoms in the Constitution there are essays on trusts, private property, unconscionable dealings and equitable estoppels. Included in this collection is a very useful essay by Mark Leeming on the development of statutory interpretation in the Mason era. It provides a neat summary of the way we are to interpret statutes. Perhaps most noteworthy of all is Mason’s contribution to the building of Australia as one nation. The High Court’s chipping away at roadblocks to ensuring Australia was one nation not simply six states is discussed by constitutional scholar Anne Twomey who summarises this development, including the Tasmanian Dams case (Commonwealth v Tasmania (1983) 158 CLR 1) cogently and compellingly. This collection is a timely reminder of the importance of the High Court as a builder and protector of liberal democratic Australia.

Member Services Book Reviews The Society welcomes book reviews from members of the legal profession. If you would like to review any of the books listed on our website contact the Society at info@lst.org.au. Your review is forwarded to the publisher and may be printed in the Society journal, The Law Letter. Books that are taken for review are to please be returned to the Society within 6 weeks of collection. As a thank you, you are entitled to keep the review copy of the book.


Invitation OPENING OF THE LEGAL YEAR DINNER The President of the Law Society of Tasmania requests the pleasure of the company of you and your partner at the annual dinner to mark the

Opening of the 2024 Legal Year Tasman Room, Wrest Point Hotel Casino, 410 Sandy Bay Road, Sandy Bay Friday, 2 February 2024 7pm for 7.30pm Dress: Lounge Suit/Cocktail RSVP: 17 January 2024 $180 per person $160 for Early Career Lawyers Register online HERE

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