The Bulletin - Law Society of South Australia - April 2020

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 3 – APRIL 2021

COURT OF APPEAL: A GUIDE TO SA’S NEW ARBITER OF JUSTICE

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (3) LSB(SA). ISSN 1038-6777

CONTENTS FEATURES & NEWS 6

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REGULAR COLUMNS

SA’s new Court of Appeal: History, operation & function

By Justice Mark Livesey

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From the Editor

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President’s Message

The problem of imposing Western legal practices on ATSI people, & the case for practical reforms

By Alexandra Kenny

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Dialogue: A round-up of recent Society meetings & conferences

By Rosemary Pridmore

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Healthy tips from the Wellbeing & Resilience Committee

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Tax Files: Taxation considerations as to the manner of compromising deceased estate litigation

By Bernie Walrut

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From the conduct Commissioner: A smorgasbord of important issues for practitioners – By Greg May

Eliminating COVID-19 risk from workplaces: rights & responsibilities

By Patrick Walsh

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Deej Eszenyi reflects on her accomplished career

By Michael Esposito

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SA’s universal pleading rules & access to justice for self-represented litigants

By Ben D’Andrea

Executive Members President: President-Elect: Vice President: Vice President: Treasurer: Immediate Past President: Council Member: Council Member:

R Sandford J Stewart-Rattray A Lazarevich Vacant F Bell T White M Mackie M Tilmouth

Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo C Lien M Jones Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members N Rossi F Wambeti Ex Officio Members The Hon V Chapman, Prof V Waye, Prof M de Zwart, Prof T Leiman

KEY LAW SOCIET Y CONTACTS Chief Executive Stephen Hodder stephen.hodder@lawsocietysa.asn.au Executive Officer Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au Director (Law Claims) Grant Feary gfeary@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme Manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

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Risk Watch: No file notes: A licence to sue? – By Grant Feary

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Young Lawyers: BBQ & Bowls tournament wrap-up

By Lauren Willgoose

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Bookshelf

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Family Law Case Notes

By Craig Nicol & Keleigh Robinson

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Gazing in the Gazette Compiled by Master Elizabeth Olsson

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington D Sheldon J Arena G Mottillo B Armstrong D Misell R Scarabotti The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia.

No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions.

PUBLISHER/ADVERTISER Boylen GPO Box 1128 Adelaide 5001 Ph: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Elliott Layout: Henry Rivera Advertising Email: sales@boylen.com.au

FROM THE EDITOR

New appellate court a major milestone in SA’s justice system

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

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he establishment of the Court of Appeal is one of the most significant justice reforms in South Australia’s history.

For the first time, a group of judges have been empanelled to specifically conduct appellate hearings (however the Chief Justice has noted that the appellate and general jurisdiction of the Supreme Court may move between courts if necessary or appropriate to do so).

The appellate court, which will operate as a division of the Supreme Court, brings SA into line with the majority of other States.

As the final legal authority in this State, the Court of Appeal judges will play a vital role in the maintenance of a fair and stable justice system.

The Attorney General, speaking at the Special Sitting on the establishment of the Court of Appeal division of the Supreme Court of South Australia, said the bill to establish the Court of Appeal in SA was broadly modelled on WA’s legislation, and that a report into WA’s Court of Appeal concluded that “courts of appeal raised standards generally in the courts and the legal profession, improved the quality and consistency of appellate judgments, increased the speed of delivery of such judgments, and involved shorter hearings”.

The Attorney said that in pursuing these reforms, the Government’s ultimate objective was to “improve the function and efficiency of our justice system”.

In this edition, we are pleased to publish a paper from Justice Livesey, the first Justice appointed to the Court of

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Appeal. Originally presented at the SA Bar Association Conference in late February, Justice Livesey’s paper reflects on the history of appellate courts in Australia, and details the operation and functions of SA’s new Court. The paper will be of great value to practitioners involved in the work of the higher courts.

On the subject of courts, Rebecca Sandford in her Presidents’ Message gives a run-down of a fascinating webinar hosted by the Law Council of Australia about innovation in the courts. Chief Justice Alstergren, Justice Collier, and Mark Woods panelled a discussion about how the judicial system responded to COVID-19, the challenges that were faced, and what might be regarded as the “new normal” in the courts post-pandemic.

While much of the talk about court processes lately has centred on the influence of the pandemic, the Bulletin features a thought-provoking article from final-year law student Alexandra Kenny that suggests the foundational principles of the Westminster legal system is in some ways incongruous with Indigenous concepts of justice.

Also in this edition, DW Fox Tucker Director Patrick Walsh explores the very topical issue of what rights and obligations employees and employers have with regards to the COVID-19 vaccine.

The article is a helpful guide as to what businesses must consider when updating their work, health and safety policies in the context of the COVID-19 vaccine roll-out. B

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INDIGENOUS JUSTICE The problem of imposing Western legal practice on ATSI people

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VACCINE RIGHTS Can employees be forced to have the COVID-19 vaccine?

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DEEJ REFLECTS Recently retired Deej Eszenyi reflects on an illustrious career

PRESIDENT’S MESSAGE

Courts innovating to adapt to changing needs REBECCA SANDFORD, PRESIDENT

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o overcome COVID-19 restrictions during 2020, most courts and tribunals were forced to quickly move a number of their practices and procedures online, and, with the cooperation of the legal profession, found that in many cases matters were able to be dealt with more expeditiously as a result. As the vaccine rollout begins and we turn our eyes towards the future, consideration is being given to what we can learn and adapt from those experiences. I recently attended an interesting webinar (the first in the Law Council’s Access to justice and the COVID-19 pandemic series) on the topic, titled ‘Courting innovation: Australia’s judicial system in the context of COVID-19”. The webinar was attended by almost 200 people across Australia and involved an esteemed panel including two members of the Federal judiciary, Chief Justice Alstergren and Justice Collier.

In discussing the ways in which the justice system, and in particular the Federal Courts, had to shift and adapt to respond to the pandemic and balance the need to ensure proper administration of justice and access to justice whilst also embracing the cost savings and increased access arising from the use of technology in court proceedings, the panellists noted the need to remember those who may otherwise fall into the ‘digital divide’, and to look at ways to ensure no one is left behind in light of the dramatic acceleration of the use of hearings online without litigants and representatives attending in person.

Similarly, attendees noted the importance of ensuring principles of open justice were retained even when Court participants were appearing remotely, for example by way

of online public streaming or other similar access to hearings instead of (or in addition to) allowing the public to attend open hearings in physical courtrooms.

The biggest challenge identified by the panellists was the significant and rapid digital transformation required, which suddenly saw Associates and IT staff become the most important people in the Courtroom. The judges on the panel particularly noted how the profession had been incredibly supportive, pragmatic and reassuring as the Courts worked hard and fast to adapt and to communicate with lawyers and the public that they remained open and accessible. This meant there was a need for very prompt education about the available online platforms to be delivered to over 110 judges in 43 locations across Australia (many of whom have since become fierce proponents of that technology).

The panel also identified that benefits from using technology for hearings included the ability to reduce the impact of the ‘tyranny of distance’, particularly for clients living in rural, regional or remote areas. Similarly, it was noted that appearing electronically meant in some cases witnesses could be safer or more comfortable in giving evidence (particularly relevant for family violence matters or intervention order hearings). However, the judges in particular did note that in some cases, including when it came to assessing witness credibility, in-person hearings remained the preferred approach. While it is possible and can be helpful to zoom in on parties’ and witnesses’ faces when they are on the other end of a screen, that can come at the cost of the rest of their

body language being out of view, and the loss of another part of a judge’s toolkit for assessing credibility.

Although this webinar focused on experiences in the Federal jurisdiction, the same sorts of issues have been (and I understand continue to be) considered by the Courts here in SA. Last year, along with then President Tim White and others, I attended a session held by the Courts Administration Authority to discuss the remote access measures put in place by the Courts during the pandemic. The purpose of the session was to enable the Court to hear from the judiciary and the profession about what worked and what didn’t, so as to ensure that appropriate changes can be made or retained to facilitate more effective engagement with the Courts as we move forward into an increasingly digital era.

I think it is safe to expect that from now on, a lot more of our business will be conducted virtually, whether that be court hearings, legal consultations, or the execution of contracts. There is great scope to use technology effectively in the Courts to increase access to justice, create efficiencies and lower costs and time delays, but there is also a need to ensure that we retain in-person hearings and arrangements where those do best serve the needs of participants in the justice system.

Ultimately, a balanced approach is likely to be required - there will always be a place for face-to-face interactions, but some of the innovations that were adopted to deal with the pandemic are also here to stay, and I look forward to seeing how the Courts, and the profession, continue to adapt to changing needs and make use of available technology in this respect. B April 2021 THE BULLETIN

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SOUTH AUSTRALIA’S NEW COURT OF APPEAL: HISTORY, OPERATION AND FUNCTION THE HONOURABLE JUSTICE MARK LIVESEY, COURT OF APPEAL

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n 10 December 2020, the AttorneyGeneral, the Honourable Vickie Chapman MP, announced that the Supreme Court (Court of Appeal) Amendment Act 2019 (Court of Appeal Act) would come into operation on 1 January 2021.

On the same day, the Attorney-General also announced that Justices Trish Kelly, David Lovell and Sam Doyle had been appointed to the Court of Appeal. They joined Justices Mark Livesey and Chris Bleby, who had been appointed in January and May 2020 respectively.

Justice Kelly is the inaugural President of the Court of Appeal.

AUSTRALIAN COURTS OF APPEAL The first Australian Court of Appeal was established in New South Wales in 1966. The Queensland Court of Appeal was established in 1991, the Victorian Court of Appeal was established in 1994 and the Western Australian Court of Appeal was established in 2005.

These arrangements generally replaced the hearing of appeals by a “Full Court” made up of puisne judges allocated by the Chief Justice for particular sittings or hearings.

The New South Wales Court of Appeal operates in a manner different to all other Courts of Appeal. The judges appointed to that Court sit routinely on civil matters. Criminal matters are heard by the New South Wales Court of Criminal Appeal which still operates on a “Full Court” basis, with judges allocated from

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the Court of Appeal, the Chief Judges of Common Law and Equity, and from the Common Law Division (where criminal trials are heard). Common Law Division judges are not allocated to appeals from other Common Law Division judges.

Otherwise, Courts of Appeal around Australia routinely hear both criminal and civil matters. Criminal matters in those courts account for well over half the caseload.

In New South Wales, the Court of Appeal comprises the Chief Justice, the President and 11 judges, plus acting judges.

In Victoria, apart from the Chief Justice and the President, there are 11 judges.

At six judges (including the President and Chief Justice) the South Australian Court of Appeal is slightly smaller than the Western Australian Court of Appeal, which has eight judges including the President and Chief Justice, and the Queensland Court of Appeal which has seven judges including the President and Chief Justice.

THE SUPREME COURT (COURT OF APPEAL) AMENDMENT ACT 2019 The Court of Appeal Act, which was assented to on 19 December 2019, was broadly modelled on the legislation which established Western Australia’s Court of Appeal.

The government’s purpose in creating the Court of Appeal was to ensure a “more effective and efficient means of disposing [of] the appellate work of the Supreme Court”.1 According to the Attorney-General:

Pursuing this reform simply recognises that the appellate work involves functions and skills different from those performed in trial work and is therefore better performed in a separate court of permanent members than in a court of changing membership. By appointing judges to a court of appeal on a permanent and ongoing basis, the development of specialist appellate expertise will be fostered, leading to greater efficiency in our justice system and higher quality judgements.

As the Attorney-General then identified, South Australia was the largest Australian jurisdiction yet to establish a dedicated court of appeal.

When considering whether a specialist court of appeal should be established in South Australia, the government said that it looked to the advantages borne out of the “successful establishment” of courts of appeal in New South Wales, Victoria, Queensland and Western Australia.

In 2001, the Western Australian government commissioned a report into the desirability and feasibility of establishing a court of appeal in Western Australia. The final report of the “Court of Appeal Committee” authored by the Hon David Malcolm AC, Chief Justice, dated 30 April 2001 concluded that the longstanding courts of appeal in New South Wales, Victoria and Queensland were successful, effective and efficient, and were superior to a “Full Court” model.

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However, the desirability of a dedicated court of appeal had been debated for many decades in Australia, commencing relatively soon after the Court of Appeal for England and Wales was established in 1873. From that time on there was a union of the various courts into “one Supreme Court” as follows:2 PART I. Constitution and Judges of Supreme Court.

3. F rom and after the time appointed for the commencement of this Act, the several Courts herein after mentioned, (that is to say,) The High Court of Chancery of England, the Court of Queen’s Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and consolidated together, and shall constitute, under and subject to the provisions of this Act, one Supreme Court of Judicature in England.

4. T he said Supreme Court shall consist of two permanent Divisions, one of which, under the name of “ Her Majesty’s High Court of Justice,” shall have and exercise original jurisdiction, with such appellate jurisdiction from inferior Courts as is herein-after mentioned, and the other of which, under the name of “Her Majesty’s Court of Appeal,” shall have and

exercise appellate jurisdiction, with such original jurisdiction as hereinafter mentioned as may be incident to the determination of any appeal.

An influential article by the editor of the Australian Law Journal, Mr B.J. Sugerman KC,3 described the suggestion that there should be a permanent court of appeal as “an admirable one”. He referred to the 1934 recommendation by the English “Business of the Courts Committee” that the Court of Appeal be abolished in favour of the pre-Judicature Act system of “Full Courts”. He explained that the English profession successfully opposed the change with arguments that were “weighty”. He suggested that “the serene atmosphere of a permanent appellate court” was preferable to a “court constituted anew each term (or as often happens, for each case) from amongst judges most of whose time is taken up in coping with the work at first instance”.4 The then Master of the Rolls, Lord Evershed, addressed the University of Melbourne in 1951 regarding the arguments in favour of the establishment of specialist appellate courts.5 In that address his Lordship identified what are now six well-known considerations supporting the establishment of dedicated courts of appeal. These are: 1. Appellate work generally involves functions and skills different to those required of trial judges.

2. A permanent court of appeal is likely to attract the appointment of Judges of the highest quality.

3. A permanent court of appeal is an acknowledgment of the fact that in practice, it will be the final resort in all but the most exceptional of matters.

4. By establishing a permanent court of appeal at the highest tier, the primacy of that court is assured.

5. The necessary attention to the development of the law in an appellate court would be better served by a comparatively small court of Judges operating in repeated interaction with one another.

6. An acknowledgement of the need to avoid the appearance of Judges tempering their judgments on appeal in light of the fact that their colleagues may sit in an appeal against their own first instance judgments at a later date.

This last point has been described as “most controversial”.

Lord Evershed described what he regarded as sagacious advice received from Lord Uthwatt about how appellate judges should conduct themselves: You must try to attend to the case as if the result depended on you alone, otherwise you will not be giving of your best and you will derive no satisfaction from the work, but you must also realise that two other Judges are at the same time trying the same case and you must try to understand how their minds are working and gain inspiration from their approach.

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It was this advice that led Evershed MR to reflect on his experiences as an appellate judge in the following way: The point of a question put by the Bench is therefore in an appellate Court somewhat different from the point of a question put at a trial. It is not merely to demolish an argument, to vex counsel or to indicate superiority of intellect. It is put as often as not to indicate to your colleagues that your own apprehension of the case may not be quite in accord with what you understand to be theirs.

It is by such means that the combined judicial operation is achieved.

Lord Evershed’s address was influential.

The New Zealand Court of Appeal was established on 1 January 1958 and Lord Evershed’s address was extensively cited. The address was also extensively cited by proponents of a dedicated court of appeal in the New South Wales Parliamentary Debates of the 1960s, before the establishment of the New South Wales Court of Appeal in 1965.

There are, of course, differing perspectives on the desirability of a dedicated court of appeal. Opponents would no doubt point to the undesirability of creating any division amongst what is otherwise an egalitarian, collegiate bench of judicial officers. This encouragement to hierarchy, otherwise endemic in the law, might best be avoided. The Hon Michael Kirby has referred to the well-known disputation that accompanied the creation of the New South Wales Court of Appeal in the 1960s in a 2008 article in the Sydney Law Review.6 In addition, it might be said that it is undesirable for judges to only be concerned with appellate work, rather than the dynamics and pressures associated with trial work. Indeed, the experience of conducting trials as counsel does not necessarily translate into a firm appreciation of the demands of conducting trials as a judge. Routine experience in trial work is sometimes said to be of considerable importance in the effective disposition of appellate work.

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As well, it could be said that appellate judges may become too specialised and insufficiently exposed to the full range of judicial work, whether this be trial work or other first instance decision-making.

Whilst there are undoubtedly a range of valid observations to be made in support of the traditional “Full Court” method of managing appeals, over the last 50 years the tendency in Australia, as elsewhere in the common law world, has firmly been in favour of the development of dedicated appeal courts.

Some of the criticisms associated with courts of appeal have, however, been recognised and acted upon in some Australian jurisdictions.

For example, as mentioned, the New South Wales Court of Criminal Appeal operates on a “Full Court” basis. The Queensland Court of Appeal routinely rosters two of its Trial Division judges to each monthly sitting. Other courts of appeal occasionally engage the services of specialist judges for appeals featuring that specialty.

In South Australia, no decision has yet been made as to whether General Division judges will be routinely rostered to sit on the Court of Appeal, or whether this will occur on an ad hoc basis.

JURISDICTION OF THE COURT OF APPEAL OF SOUTH AUSTRALIA By the Court of Appeal Act, the Supreme Court Act 1935 has been amended so that the Court is now constituted of the General Division and the Court of Appeal. The General Division and the Court of Appeal are both divisions of the Supreme Court.

By clause 89(a), Schedule 1, Part 2 of that Act, any reference to the Full Court of the Supreme Court will now be construed as a reference to the Court of Appeal.

By s 7(1a), the Court of Appeal consists of the Chief Justice, the President and the puisne judges of the court that are appointed to the Court of Appeal, the masters and the judicial registrars.

By s 9B, the President “is responsible, subject to the Chief Justice’s directions, for the administration of the Court of Appeal”. By s 45(3a), the Court of Appeal

will sit at such times and places as the President may direct.

By s 19B, the Court of Appeal has jurisdiction to hear and determine all appeals from a single judge and, subject to the Supreme Court Act 1935 or any other Act, and to the rules of court, all appeals from a single judge sitting in chambers.

As may be expected, the Court of Appeal also has jurisdiction to hear and determine all questions of law referred to or reserved for the consideration of the Court of Appeal.

By s 19C, the Court of Appeal is constituted of not less than 3 judges when hearing and determining any matter. In accordance with any Act or rules of court, the Court of Appeal may be constituted by 2 judges.

In those circumstances, a decision of the Court is to be in accordance with the opinion of those judges, or, if they are divided, the proceedings must be reheard and determined by the Court of Appeal constituted by 3 judges (including, if practicable, the 2 judges who first heard the proceedings).

By s 19D, in hearing and determining matters within the jurisdiction conferred by s 19B, the Court of Appeal has, and may exercise, any jurisdiction and powers that the court has in its General Division, or that were exercisable by the Full Court immediately before the commencement of s 4(2) of the Court of Appeal Act. By s 47, there is facility for the Chief Justice and the President to agree that a General Division judge may act as an acting judge in the Court of Appeal for a “suitable period”, and vice versa. It is necessary for the particular judge to agree to undertake acting duties. The Chief Justice may then, by instrument in writing, authorise the judge to undertake acting duties for a specified period.

Whilst matters previously heard by the Full Court will generally now be heard by the Court of Appeal, by r 11.1(6) of the Uniform Civil Rules 2020, the jurisdiction of the Supreme Court to finally hear and determine admissions and disciplinary proceedings is addressed in the following way:

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Court of Appeal Justices mark the opening of the new appellate court at a Special Sitting. Photo: Courts Administration Authority

The jurisdiction of the Supreme Court to finally hear and determine— a. an application to admit a person as a solicitor and barrister of the Court under section 15 of the Legal Practitioners Act; or b. a disciplinary proceeding under section 89 of the Legal Practitioners Act or in the inherent jurisdiction of the Court, is to be exercised by 3 Judges of the Court sitting in banco.

The terms “en banc” and “in banco” are of Latin or French origin meaning, literally, “the bench” or “on a bench”.

Conventionally, terms such as these refer to the judges of a court sitting as a group or a full bench, principally as an appeal court of a particular court. For the history of these terms, see the helpful discussion

by Bell J in Engebretson v Bartlett.7 It was recently held in Legal Profession Conduct Commissioner v Davey that:8 Accordingly, it seems clear enough that by the Uniform Civil Rules 2020, rather than the Supreme Court Act 1935 or the Legal Practitioners Act 1981, the striking off or disqualification jurisdiction is to be exercised by the Supreme Court sitting “in banco” – that is, by the Full Court rather than the Court of Appeal, unless an appeal is taken from a final decision of the Legal Practitioners Disciplinary Tribunal, in which case the appeal is heard by the Court of Appeal.

That does not, of course, rule out members of the Court of Appeal from sitting as part of the Court “in banco”, and it indicates that, at least for the purposes of admissions and disciplinary proceedings, there is to be no sharp division between the Judges

of the Court of Appeal and those of the General Division of the Supreme Court of South Australia.

No appeal lies from the Supreme Court sitting “in banco”. Any right of appeal is a creature of statute and the scope of that right depends on the terms of the statute.9 Section 50 of the Supreme Court Act 1935 only confers a right of appeal from “a judgment of the court constituted of a single judge”, not from the Court sitting as a Full Court “in banco”.10

SITTINGS OF THE COURT OF APPEAL OF SOUTH AUSTRALIA Sittings of the Court of Appeal commenced in February 2021.

The Court of Appeal will sit in two terms between February and June and then between August and December each year. The Court of Appeal will not sit in January or July each year.

Each month of sittings will be divided, very broadly, into a first week of civil appeals, a second week of criminal sentence appeals and a third week of criminal convictions appeals. This timetabling is not fixed. It must of course reflect the pressures of any particular listings.

Those members of the Court of Appeal not occupied with sittings will consider applications for leave to appeal, whether these be civil or criminal appeals.

CIVIL APPEALS Leave to Appeal Most civil appeals may be pursued in the Court of Appeal as of right pursuant to s 50 of the Supreme Court Act 1935.

Some appeals, however, can only be pursued with leave. Examples of these are

certain appeals from the South Australian Employment Tribunal, from the South Australian Civil and Administrative Tribunal, and from interlocutory decisions of a single judge of the Supreme Court or District Court.

The requirements for seeking leave to appeal are governed by rules 213.2 and 213.6 of the Uniform Civil Rules 2020.

Presently, under the Uniform Civil Rules 2020 a single judge may grant leave to appeal or refer that question to the Full Court: see rule 212.5(2)(e). However, a single judge may not refuse leave to appeal or an extension of time to appeal: rule 212.5(3). Leave to appeal may only be refused by the Court of Appeal.11 Consideration is being given to the utility of adopting the practice of allocating applications for permission to 2 judges of the Court of Appeal, who may determine the question of permission under s 19C of the Supreme Court Act with the benefit of a 30-minute hearing.

An amendment will be made to Rule 212.4(c) of the Uniform Civil Rules 2020 to facilitate hearings before 2 judges where the President or Chief Justice so determine. That amendment will come into operation on 1 March 2021.

Listing of Appeals The Court of Appeal has reverted to the practice of conducting callovers in order to facilitate the listing of appeals before the Court of Appeal. These are conducted fortnightly and commenced on Friday, 22 January 2021.

The Court expects counsel appearing at the callover to know the likely length of the hearing, the availability of counsel and be ready to address any issues ancillary to the listing of the appeal. Counsel appearing April 2021 THE BULLETIN

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should attend understanding that the Court assumes that most appeals require either half a day or a full day. If more time is required, counsel must be in a position to explain why more time is required.

Listings will not necessarily be determined by the availability of counsel and if an appeal is listed for hearing at a callover, the date will not be administratively vacated, regardless whether the parties attend the callover at which the appeal was listed.

Whilst the principal purpose of the hearing will be to determine when matters are listed before the Court of Appeal, these hearings will also provide an opportunity for the Court and the parties to raise issues ancillary to the hearing of appeals. These may include issues about the timing of outlines of argument or about the content of appeal books.

The Court expects the parties to have conferred with a view to constructively resolving issues such as these without undue delay or expense, well ahead of any callover.

Appeal Hearings Any matter is capable of being treated as ready for hearing 8 weeks (56 days) after the “preparation commencement date”, which is the date for the filing of any Notice of Appeal under rule 214.1 of the Uniform Civil Rules 2020.12 The requirements for written submissions, lists of authorities and chronologies are addressed by rule 217.6, and following, of the Uniform Civil Rules 2020. There remains the option for a three-page skeleton to be delivered on the morning of the hearing.

The requirements for the filing and service of the “Core Appeal Book” are set out in rule 218.3, and following. The content of written submissions and the content of the “Exhibit Appeal Book” are addressed by rule 218.5, and following.

In the event of a request to defer the time for the filing of written outlines past the time stipulated by rule 218.3(2) (that being 28 days after the “preparation commencement date”), the Court expects the parties to have conferred with a view to reaching agreement before seeking dispensation from the Court at any callover.

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CRIMINAL APPEALS Grounds of Appeal – Criminal Conviction Appeals In the course of consultation with the profession it has been made clear that the 21 days required for the filing of Notices of Appeal is problematic in relation to a number of appeals, generally, but not exclusively, conviction appeals.

The reasons for this include the availability of counsel, the speed at which funding can be approved by the Legal Services Commission and, on occasion, difficulties compiling the trial materials required to be reviewed by counsel drawing and settling the grounds of appeal. This has led to the familiar appeal ground, “…and such other grounds as counsel may in due course advise” appearing in many Notices of Appeal.

The consequence is that matters are adjourned, sometimes on numerous occasions, until the advice of counsel has been received, funding approved and the grounds of appeal finally settled, and it is the settled grounds to which the DPP must respond.

Rather than alter the requirement that a Notice of Appeal be filed within 21 days, it has been proposed to generally allow a further period of 21 days within which it is expected that settled grounds of appeal can be supplied by the applicant. To be clear, that will require an initial Notice of Appeal to be filed within time, followed by a supplementary Notice with settled grounds of appeal. The initial Notice must use terminology which makes it clear that a further, settled set of grounds will be supplied within 21 days.

If further time is required for filing settled grounds of appeal beyond 42 days from the institution of the appeal, that will need to be sought at one of the fortnightly callovers and proper reasons provided. As with civil appeals, adjournments will no longer be granted administratively.

Permission to Appeal In criminal matters, s 157(1) of the Criminal Procedure Act 1921 permits a convicted person to appeal against conviction as of right on any ground involving a question of law alone, or with permission on any other ground. In

addition, with permission, a convicted person or the Director of Public Prosecutions may appeal against sentence on any ground.

Once a convicted person’s grounds of appeal are finalised, the practice has been to require written outlines of submissions from the applicant and then from the DPP. During the COVID-19 pandemic these have been full written arguments.

Pursuant to s 157(1) and rules 119 and 120 of the Supreme Court Criminal Rules 2014, applications for permission are presently heard by a single Judge who, usually, decides whether to grant or refuse permission according to whether a particular ground is reasonably arguable.

Alternatively, no decision is made and the question of permission is referred for determination by the Court of Appeal.

One disadvantage with the present practice is that considerable time is required of practitioners in preparing and providing written and oral submissions, and the Court is required to prepare in some detail and give reasons (even if only brief ex tempore reasons) in the course of a busy callover list, usually conducted on Fridays.

Whilst the Court of Appeal obtains the benefit of the views of the single judge, that judge does not sit on the Court of Appeal if any ground has been refused.

More importantly, a dissatisfied applicant can simply file a Form 51 which has the effect of requiring the Court of Appeal to review and determine afresh any ground of appeal for which permission to appeal has been refused by a single judge.

It may be doubted whether the intended “filter” of requiring an applicant to seek permission to appeal is operating as effectively as it might.

In order to streamline the process for seeking permission to appeal in criminal matters, it is intended that the current practice be altered in the following way: 1. By s 104G(1) of the Supreme Court Criminal Rules 2014 (SA), an applicant presently has 21 days within which to lodge a Notice of Appeal against conviction or sentence.

2. Within 14 days of receipt of the Notice of Appeal, a “DPP Notice” will be filed and served by the DPP, indicating whether and to what extent the DPP

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concedes that the grounds of appeal are reasonably arguable.

3. The matter will then be placed into the next available callover list. These are held each fortnight, alternating with the civil callover. The first callover was held on Friday, 29 January 2021.

4. If the DPP concedes that one or more grounds is reasonably arguable, the matter will likely be listed for hearing before the Court of Appeal in the next available sitting. Any question requiring permission will be referred to the Court of Appeal for determination as part of the appeal.

5. If the DPP contends that none of the grounds is reasonably arguable and the applicant presses the application for permission, written outlines of no more than five pages will be exchanged.

6. The Court of Appeal will then review these outlines and determine whether it is satisfied on the basis of that material that there is sufficient merit to warrant a listing of the matter before 3 judges of the Court of Appeal.

7. Alternatively, the application for permission will be listed before 2 judges of the Court of Appeal. As presently advised, around 30 minutes will be allocated to that hearing during which the applicant seeking permission will have the opportunity to convince the Court that the matter is appropriate for the grant of permission and a hearing before 3 judges of the Court of Appeal.

8. There will no further scope for using the Form 51 where the application for permission has been determined by 2 or more judges of the Court of Appeal.

An amendment will be made to Rules 106A and 119 of the Supreme Court Criminal Rules 2014 to facilitate hearings before 2 judges where the President or Chief Justice so determine. That amendment will come into operation on 1 March 2021.

Appeal Hearings – Criminal Appeals Generally Criminal appeal listings are presently being managed at the fortnightly callover rather than administratively by the Registry.

Appeal books are presently compiled by the Registry, though there is facility for the parties to write to the Registry, requesting particular inclusions or

exclusions. This too is under review. Whilst in practice there has been little difficulty with the “Core Appeal Book”, from time to time there are issues about what is or is not available in hard copy, although exhibits and transcripts are usually available to members of the Court electronically.

There is no requirement that any further book be filed. Whether a further book, perhaps a “Hearing Book”, would be beneficial, is under consideration. That book would contain only the essential pages of transcript or extracts from exhibits from which counsel will read at the hearing.

Written outlines for the hearing of the appeal are presently limited to 20 pages, with the appellant’s outline due six days and the respondent’s outline due four days before the hearing. There remains the option for a three-page skeleton to be delivered on the morning of the hearing.

Appeal Hearings – Sentence Appeals Sentence appeals, particularly where they concern manifest excess or inadequacy, depend very largely upon a clear and concise statement of the factual circumstances.

Whether it is necessary to revise the requirements for sentence appeal outlines is being reviewed.

Whether a number of sentence appeals should be listed on the same day, or referred to a panel of 2 judges, is also under consideration.

CONSULTATION WITH THE LEGAL PROFESSION During the course of the transition from the Full Court and Court of Criminal Appeal to the Court of Appeal, discussions have been held with representatives of the legal profession regarding existing arrangements for permission to appeal, appeal listings and appeal hearings. Those discussions are continuing.

Further matters for consideration include: whether opportunities should routinely be given for appearances by audiovisual link, as well as whether it is invariably necessary for a representative of each party to appear in person on the delivery of judgment.

The Court of Appeal welcomes the views of the profession on these matters.

This article was originally delivered as a speech by Justice Livesey at the South Australian Bar Association Annual Conference on 20 February. B

Endnotes 1 South Australia, Second Reading, House of Representatives, 16 October 2019 (the Hon Vickie Chapman, AttorneyGeneral).

2 The Judicature Act, 1873 (36 & 37 Vict), ss 3 and 4.

3 Published in “Current Topics”, 11 Australian Law Journal 39, 15 June 1937.

4 Sugerman KC was eventually appointed to the NSW Supreme Court in 1947 and sat as head of the Land and Valuation Court until 1961, and in equity and the Full Court and the Court of Appeal. He is said to have been passed over for appointment as first president of the new Court of Appeal in 1966, but was the second president between 22 January 1970 and 29 September 1972, when he retired on account of ill health. See M. Z. Forbes, “Sugerman, Sir Bernard (1904–1976)”, Australian Dictionary of Biography, National Centre of Biography, Australian National University.

5 Lord Evershed MR, “The History of the Court of Appeal” (1951) 25(6) Australian Law Journal 386.

6 Justice Michael Kirby AC, “Judicial Supersession: The Controversial Establishment of the New South Wales Court of Appeal” (2008) 30 Sydney Law Review 177.

7 Engebretson v Bartlett (2007) 16 VR 417, [41]-[44], [46].

8 Legal Profession Conduct Commissioner v Davey [2021] SASCA 2, [20]-[21] (Kelly P, Livesey and Bleby JJA).

9 Fox v Percy (2003) 214 CLR 118, [20] (Gleeson CJ, Gummow and Kirby JJ), citing Attorney-General v Sillem (1864) 10 HLC 704, 720-721; South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523, 552-553; CDJ v VAJ (1998) 197 CLR 172,[91]-[95], [184]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, [72]; DJL v Central Authority (2000) 201 CLR 226, [40]; Allesch v Maunz (2000) 203 CLR 172, [20]- [22], [44].

10 Indeed, it may be doubted whether there is any avenue for the judicial review of the decision of the Supreme Court – whether from a single Judge or from the Full Court – because it is a superior court of record, exercising supervisory jurisdiction, see Craig v South Australia (1995) 184 CLR 163, [7] (Brennan, Deane, Toohey, Gaudron and McHugh JJ), although “the exercise of that supervisory jurisdiction is ultimately subject to the superintendence” of the High Court as the “Federal Supreme Court”, see Kirk v Industrial Relations Commission (2010) 239 CLR 531, [114][115] (Heydon J).

11 Return to Work (SA) v Opie [2020] SASC 201, [7]-[8].

12 The “preparation commencement date” is defined by rule 211.1 to be the date of institution of the appeal or the date when leave to appeal is granted or referred for hearing.

April 2021 THE BULLETIN

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ATSI JUSTICE

The problem of imposing Western legal practices on ATSI people, and the case for practical justice reforms ALEXANDRA KENNY, FINAL YEAR LAW STUDENT, ADELAIDE LAW SCHOOL

Alexandra Kenny is a final year Law Student at Adelaide Law School who will soon begin her legal career as a graduate at WRP Legal and Advisory. As part of the final year law subject Evidence and Advocacy, she examined the impact that Anglo Australian procedural and evidentiary law and practice can have on Aboriginal people, and considers options for reform.

legal processes prior to taking any legal instructions, using plain English where possible, and assessing whether any other disability or impairment is evident which impacts the client’s ability to understand.

Of course, these initiatives are dependent upon there being sufficient resources available, which is not always possible in remote regions.

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COURT PRACTICE

he South Australian (SA) legal system is founded on Western ideals and practices. This, coupled with systemic societal issues facing Aboriginals and Torres Strait Islander (ATSI) communities, like poverty and lack of education, has resulted in ATSI people being hindered in their access to the system. ATSI people can be vulnerable when arrested or questioned by police for reasons of language, culture, and communication style. This vulnerability is then repeated in the court process particularly when ATSI people appear as defendants and witnesses.

This paper looks at current processes and proposes areas for reform.

CONTRASTING CULTURES The ATSI legal system differs substantially to the Western legal system.

Overall, ATSI peoples’ legal system is more flexible, community driven and proceedings recognise both history and emotion.1 There are deeply ingrained social and cultural communication preferences, which are not readily understood in a typical Anglo Australian legal system, with recognition of cultural needs only rarely resulting in variations to taking evidence, or other court process. 2 An example of this contrast is that certain knowledge can only be known by particular genders, and thus if asked questions in the presence of the opposite sex, ATSI peoples refuse to answer the question at hand.

12 THE BULLETIN April 2021

SA INITIATIVES TO PROTECT ATSI PEOPLE: QUESTIONING AND ARREST Historically, ATSI people have experience significant disadvantage during arrest and questioning by police because of language, communication issues and contrasting cultures. This creates a procedural fairness issue. These issues were first addressed in Australia in the Northern Territory, which introduced the Anunga Guidelines which require, for example, an interpreter to be present, care in administering the caution to ensure proper understanding, and the presence of a “prisoner’s friend” whom an ATSI person has confidence in.

In 1976, SA adopted the Anunga guidelines, requiring that ATSI peoples be advised by police that, wherever possible, they can access a prisoner’s friend for interviewing assistance, as well as an interpreter.3 These guidelines are supplemented by the Police Commissioners General Orders,4 which require police “to advise Aboriginal Legal Aid if an ATSI has been arrested or taken into custody’.5 It is also required that police tape ATSI suspects being told about their Anunga rights, and being advised of the right to let someone know where they are.6 SA has also adopted an adaption of the Northern Territory protocols (the protocol).7 The protocol requires engaging an interpreter if needed, explaining the lawyers’ role to the client, explaining the

There are a number of areas in which cultural differences are sharply evident including the use of direct questioning, the cross-examination process and rules of evidence.

Direct Questioning There are two assumptions in the Anglo-Australian fact-finding process: that asking questions is most effective for information finding, and asking many questions is the most effective for discovering lots of information. In contrast, ATSI people have different assumptions: namely that indirect methods are more effective to find out personal information, and asking many questions is ineffective.

Additionally, ATSI people may be confused by questions asking for choice between two alternatives, which is a common line of questioning in Anglo Australian advocacy, but not common in many ATSI cultures.

Cross Examination Cross examination is central to the Anglo-Australian system to test the truthfulness of a witnesses. The process is based on two assumptions: firstly, that an effective way to test truthfulness is to put conflicting propositions forward as conflicting answers indicate dishonesty.

Secondly, inconsistency, when interviewed about a story previously recounted suggests unreliability. 8 ATSI people, already averse to direct questioning favoured in Anglo Australian

ATSI JUSTICE

practice, may often respond to multiple questions asked in pressured situations, by saying “yes” to keep the other party happy. This is known as gratuitous compliance, which ATSI people adopt to protect themselves within interactions with non-ATSI Australians.9 In the controversial Pinkenba case, in which three Aboriginal boys gave evidence in a committal hearing of six police officers charged with deprivation of their liberty, this was highlighted with the boys continuously contradicting themselves during cross examination. This case vividly highlights that the practice of asking a series of ‘yes’ or ‘no’ questions in an intimidating situation is merely ‘inviting contradictory answers’.10 An additional communication barrier highlighted during cross examination is the use of silence by ATSI people, which is commonplace and reflects a “desire for time to think… and… to get comfortable in a courtroom situation”.11 In the Anglo-Australian system, silence can be interpreted as evasiveness. For example, in Pinkeba, counsel commented ‘We have to take your silence as ‘no’, don’t we?’.12 Further, direct eye contact is sometimes avoided by ATSI people as it is considered rude, but this can be interpreted by juries as dishonesty. Again, in Pinkenba, counsel suggested that the boy’s refusal to look at him was because “he was thinking that ‘we’ll see lies written all over… [his] face’’.13 Hearsay and Opinion Rules In land claims, proving traditional laws and customs is particularly difficult as there are no written records of historical matters.

ATSI knowledge of law history and practice is kept orally. Here the Anglo-Australian legal system, the ‘most prohibitively literate of institutions’,14 acts as a barrier. This means that oral evidence of these matters is treated as hearsay, contravening Anglo Australian privileging of first-hand evidence

based on personal knowledge. Alternately, people who possess this knowledge (and often more than one person will possess different aspects of knowledge) may not be considered “experts” by Anglo Australian standards, so their knowledge is treated as inadmissible opinion. This is one of the biggest clashes between ATSI people and the Anglo-Australian system, as cultural and other information is transmitted orally in most Aboriginal communities.

REFORM The following reforms are suggested for application not only in SA, but Australia-wide.

Allowance of Narrative Answering Police and counsel should allow ATSI people to give their explanation of what happened in narrative form with minimal interruptions. Whilst this may raise irrelevant, inadmissible or prejudicial information, the advantages of allowing ATSI people to give evidence in a culturally appropriate way is advantageous for justice.15 Notably this is allowed by s 29(2) Evidence Act 1995 (Cth) with leave of the court. The Evidence Act 1929 (SA) should be similarly amended.

Discretion for Leading Questions and Adjustment of Questioning The use of leading questions in cross examination is often viewed as a right.

However, the judge has a discretion to disallow this practice. In addition to the issue of gratuitous compliance, ATSI people may fall victim to ‘scaffolding’, where witnesses adopt words posed by the questioner. It has been further suggested that rather than proposing questions in the alternative which may confuse ATSI witnesses, counsel should plainly ask, for example, “tell me where you were then” in order to avoid this confusion.

This is where further education both for counsel, but the judiciary as a whole, would

be beneficial. Handbooks such as that by Dr Diana Eades16 should be adopted in each state in order to educate legal practitioners and police about communication differences and ways to adapt questioning when dealing with Aboriginals in our system.

Hearsay and Opinion It is recommended that Evidence Acts be reformed to avoid objections to this evidence based on the ‘ultimate issue’ rule, ‘common knowledge’ rule and the ‘hearsay’ rule with exceptions.17 For example, Aboriginal customary law, which is passed down verbally through generations, is often inadmissible as hearsay or opinion evidence. Allowance of this questioning style ultimately helps aid in the proper gathering of evidence, and the ability of counsel to do this should not be hindered by rules of evidence which do not recognise different cultural practices.

Although devised as a sentencing court, not a trial court, the experience of the Indigenous Urban Court which was opened in Port Adelaide in 1999 provides evidence of the value of culturally relevant practices. This and similar courts which create more culturally appropriate court processes, including more informal and open exchanges of information and the presence of Indigenous Court workers, result in ‘improved communication [and] reliance upon Indigenous knowledge’ in the sentencing process.18 This has generally improved court appearance rates in other jurisdictions.19

CONCLUSION The current protocols in SA address some issues for ATSI people in the legal system, particularly the language and communication diversity. However, there are still inherent issues with interviewing, cross examination and rules of evidence, which hinder ATSI people from accessing justice to the fullest extent. Education April 2021 THE BULLETIN

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ATSI JUSTICE

around ATSI communication and alternative methodologies for witness examination are needed in SA, and Australia in general, as a legal system which caters to all needs benefits us all in the furtherance of justice. B Endnotes 1 Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (Report 31, 1986) 7.

2 For example: Ibid citing A Ligertwood, ‘The Trial of Sydney Williams’ (1976) 2(4) Legal Services Bulletin 136.

3 Dean Mildren, “Aboriginals in the Criminal Justice System” [2008] Adelaide Law Review 1; (2008) 29(1) Adelaide Law Review 7, 10 citing R v Anunga & Ors (1976) 11 ALR 412.

4 Police Circular No 354 (1975).

5 Dean Mildren, “Aboriginals in the Criminal

Justice System” [2008] Adelaide Law Review 1; (2008) 29(1) Adelaide Law Review 7, 10.

6 Police Administration Act 1978 (NT) ss 140, 141.

7 Law Society of South Australia, Lawyer’s Protocols for Dealing with Aboriginal clients in South Australia (at 2nd March 2020).

8 Diana Eades, Taking evidence from Aboriginal Witnesses Speaking English: Some Sociolinguistic Considerations (2015) Precedent Issue 126 44, 46.

9 Justice Dean Mildren, Redressing the Imbalance Against Aboriginals in the Criminal Justice System, (1997) 21 Criminal Law Journal 7, 14 citing R v Anunga (1976) 11 ALR 412.

10 Diana Eades, Cross Examination of Aboriginal Children: The Pinkenba Case (2007) 6(25) Indigenous law Bulletin 11, 12.

11 Diana Eades, Aboriginal Ways of Using English, (Aboriginal Studies Press, 2003) 101.

12 Diana Eades, Cross Examination of Aboriginal Children: The Pinkenba Case (2007) 6(25) Indigenous law Bulletin 11, 12.

13 Diana Eades, Cross Examination of Aboriginal Children: The Pinkenba Case (2007) 6(25) Indigenous law Bulletin 11, 12.

14 Peter Gray, ‘Do the Walls Have Ears?: Indigenous Title and Courts in Australia’ (2000) 5(1) Australian Indigenous Law Reporter 1.

15 Justice Dean Mildren, Redressing the Imbalance Against Aboriginals in the Criminal Justice System, (1997) 21 Criminal Law Journal 7, 12.

16 See Diana Eades, Aboriginal English and the Law:Communicating with Aboriginal English Speaking Clients : a Handbook for Legal Practitioners (Continuing Legal Education Department of the Queensland Law Society, 1992).

17 Australian Law Reform Commission, Uniform Evidence Law, (Report No 102, 2010) 19.

18 Law Society of South Australia, Lawyer’s Protocols for Dealing with Aboriginal clients in South Australia (at 2nd March 2020).

19 Ibid.

Post-COVID Forum heralds a new chapter in conference delivery

T

he Society’s premier CPD event, the Forum, was held for the first time as a hybrid event, and the positive feedback suggests that the format will continue long after the COVID-19 pandemic recedes from memory.

The Forum still hosted in-person events at Adelaide Convention Centre, but also offered all sessions as live webinars.

And in a first for the Forum, a webinar only plenary session opened proceedings, with famed environmental activist Erin Brockovich being beamed in from the US. Ms Brockovich delivered an impassioned inspiring speech about

fighting for what’s right, and, at 60 years of age, detailed her continual advocacy for victims of water contamination and other environmental and consumer issues.

She explained how she was transformed by her mum urging her to have “Stickto-itiveness”, a dogged persistence to see something through to the very end, despite the obstacles. She also declared the “4 Ls” that act as guiding principles in her activism – Logic, leverage, loyalty, and love.

The face-to-face sessions all took place in the manner they always have, but with some minor adjustments to comply with distancing guidelines Nevertheless, it still

Erin Brockovich delivers the plenary session from her home

offered an opportunity for attendees to network, speak to presenters, and enjoy good food and coffee. B

THE SOCIETY IS GRATEFUL FOR THE FOLLOWING SPONSORS FOR MAKING THE EVENT POSSIBLE PREMIER SPONSOR: LEGALSUPER

Richard Nordin from legalsuper

14 THE BULLETIN April 2021

MAJOR SPONSOR: LEAP

Bianca Hale and Ivana Cowan from LEAP

SUPPORTING SPONSOR: GRACE

Angela Kent from Grace

MAJOR SPONSOR OF CPD PROGRAMME: BANKSA

David Brownie from BankSA

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EMPLOYMENT LAW

ELIMINATING COVID-19 RISK FROM AUSTRALIAN WORKPLACES: RIGHTS & RESPONSIBILITIES PATRICK WALSH, DIRECTOR, DW FOX TUCKER LAWYERS

We can now prevent people from developing COVID-19, but when is it lawful and reasonable for employers to direct employees to undergo vaccination against COVID-19?

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ast year, I published an article entitled “Work Health and Safety During a Pandemic: The Issue of Vaccination for Business”, which outlined the duty of care that employers or a person conducting a business or undertaking owed to the wider community and, in particular, their employees.

I also outlined the importance of all businesses complying with the relevant sections of the Work Health and Safety Act 2011 (Cth) (the WHS Act), which, although previously untested in Australia against a pandemic, has since emerged as a significant issue for Australian businesses.

Some of the practices that various organisations have adopted over the last year, which have now become the “new normal”, include: • accommodating work from home arrangements; • reducing the number of staff in premises to adhere to social distancing guidelines; • ensuring important staff/teams do not interact to prevent cross-contamination in the event a worker is infected; and • providing PPE sanitiser for the use of workers and other people.

Until recently, workplaces in Australia were still reliant on administrative controls and personal protective equipment to

16 THE BULLETIN April 2021

manage the risk of workers and other persons developing COVID-19. An obvious limitation of this was that the success of these measures was dependent upon the people present at all businesses abiding by the policies introduced by their respective employers and governments.

It’s well advertised, however, that there is light at the end of the tunnel. The Australian Government has entered into five agreements with vaccine manufacturers and has invested a reported $3.3 billion to ensure that Australia is well-positioned to access safe and effective vaccines.

In February, the rollout commenced with doses of the recently approved Pfizer-BioNTech vaccine being provided to quarantine and border workers, frontline health care workers and aged care and disability care staff and residents.

Following this, the Government plans to make the vaccine available to people aged 70 and over, Aboriginal and Torres Strait Islander people over 55, all other health care workers, younger adults with underlying medical conditions or disabilities and critical and high-risk defence, police, fire, emergency services and meat processing workers.

While we are still in the early stages of the rollout, there is growing speculation

that it could still be several months before the remaining majority of the population can get vaccinated. By the end of February 2021, the Federal Government aimed to have 60,000 people undergo vaccination.

However, the Federal Government fell short of this target as only approximately 33,000 people were vaccinated by the end of February 2021. This is despite the Oxford-AstraZeneca vaccine recently receiving provisional approval from the Therapeutic Goods Administration. The expected delays are believed to be due to, amongst other things, delays in the manufacturing and supply of the 53.8 million doses of the Oxford-AstraZeneca vaccine purchased by the Australian Government.

Safe Work Australia and Fair Work Ombudsman Safe Work Australia (SWA)1 has published guidelines regarding the current vaccine rollout. The guidelines reinforce that employers, under the WHS Act, do have a duty to eliminate or, if not possible, minimise, so far as reasonably practicable, the risk of exposure to the SARS-CoV-2 virus (which causes COVID-19) in the workplace. This will require organisations to at least consider whether any direction ought to be made for workers to be vaccinated when they are able to do so. Of note, SWA has also advised that: • at this stage, it is too early to tell if the COVID-19 vaccines will stop a vaccinated person from being infected with the virus;

EMPLOYMENT LAW

• it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable; and • employers may not be able to completely eliminate the risk of workers being exposed to COVID-19 while carrying out work.

Usefully, SWA has also addressed the issue in relation to employer liability under the WHS Act in circumstances where an employer elects not to make a direction for its workers to undergo vaccination and a worker contracts the virus. SWA has stated that, as there is currently insufficient evidence regarding the efficacy of the vaccines currently being rolled out, an employer is unlikely to be held liable for a worker contracting COVID-19.

The Fair Work Ombudsman (FWO) has also provided guidance for employers2 stating that the “overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against coronavirus”.

Importantly, however, the FWO has taken the position that the fact of the pandemic itself is sufficient to make a direction for employees to be vaccinated reasonable. In addition, the FWO did list the following circumstances in which it considers that a direction for employees to be vaccinated may be lawful and reasonable: • Where a specific law (such as a state or territory public health law) requires an employee to be vaccinated; • Where an enterprise agreement, other registered agreement or employment

contract includes a provision about requiring vaccinations; or • If no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (which is assessed on a case by case basis).

While SWA and the FWO’s current guidance suggests it is unlikely that employers will be penalised should they expose their workers to the risk of contracting COVID-19 in the workplace, employers shouldn’t get complacent. As more information becomes available about the vaccines, best practice will require organisations to review their policies and directions to ensure that they are working effectively.

Reasonable and lawful directions It has long been accepted that employers can make directions - after undertaking an appropriate assessment for employees to have certain vaccinations against common illnesses when working in high-risk environments or workplaces where extensive and regular interactions occur at close proximities. Workplaces such as hospitals and aged care facilities are great examples of this. Due to the high transmissibility of SARS-CoV-2 and its impact on all industries - even those where workers are not having extensive or regular interactions at close proximities – it would be considered good governance for all employers to implement a similar

assessment process so that an informed decision can be made. This assessment will necessarily have to review with the greatest care which variants of SARS-CoV-2 are prevalent in the community as we know that some variants are much more transmissible than others.

If employers do wish to make a direction requiring their employees to undergo vaccination, they are advised to apply the “lawful and reasonable” standard prior to any direction being made.

Employers will, therefore, need to ask themselves whether the vaccination is necessary to eliminate or minimise the risk of workers contracting COVID-19 to the extent that is reasonably practicable and consistent with the employer’s existing legal obligations.

A variety of factors may impact the lawfulness and reasonableness of a particular direction, all of which should be assessed individually on a case-by-case basis, including: • the nature of work being performed by the employee(s); • the nature of the clients and other relevant persons who frequent the workplace; • whether employees can work remotely; • the advice and requirements of the Government and medical bodies at the time; • the availability of the vaccine(s); • how advanced and successful vaccination attempts have been to date; April 2021 THE BULLETIN

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•

the personal circumstances of individual employees; and • any other related circumstances.

Employers considering issuing such a direction in the coming months should reasonably expect some employee resistance if the direction to be vaccinated against COVID-19 is implemented.

Reasons for objection may include but are not limited to the following: • whether the direction constitutes discrimination for the purposes of Australia’s anti-discrimination regime; • political views; • religious beliefs; and • objections based on a medical or health reason raised under the advice of a medical practitioner.

In Glover v Ozcare [2021] FWC 231, the Fair Work Commission (Commission) was required to consider whether an employee who had been placed on indefinite unpaid leave because of her refusal to be vaccinated against the flu had been terminated from her employment.

In this case, the employee had a genuinely held belief that she had had a severe allergic reaction to a flu vaccination when she was a child.

Commissioner Hunt found that Ozcare had terminated Ms Glover’s employment as it had refused to roster the worker, despite her being ready, willing, and able to perform her duties. The employer had refused to do so as it considered being vaccinated against the flu (in the context of the COVID-19 pandemic) to be an inherent requirement of the role. It also declined to provide any certainty about the worker’s future employment to the Commission.

In his reasons, Commissioner Hunt noted: [125] I consider it suitable to note that there is much discussion around the legality of employers requiring employees to be vaccinated against influenza in light of the adverse reaction a vulnerable person might have if they

18 THE BULLETIN April 2021

have influenza and then contract COVID-19.

It is, of course, a very concerning proposition, and medical evidence to-date suggests that such a combination is highly likely to increase the potential fatality of the individual.

[126] In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction.

Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.

[127] It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Claus in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too. The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job. It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.

Policies and procedures As the first round of vaccinations has commenced, the time has come for businesses to start putting procedures in place for how they are to manage these previously unseen and unfamiliar circumstances adequately.

One option that is being considered by a number of employers is to include a requirement to be vaccinated against COVID-19 in their contracts of employment. While this approach may be

something that can be considered with new employees, or employees transferring to a new role, it does not address the issue of current employees who may not be prepared to agree to amend the terms of their contracts.

Developing and introducing a business-wide vaccination policy may be a more cost-effective and flexible means to manage this issue. Particularly as policies are easier to update as more information becomes available. When drafting a vaccination policy, it is important to consider: • the workplace context: those working in an office environment may wish to strongly recommend vaccination. However, consider other measures such as social distancing, working from home, or flexible work practices in case employees do not get vaccinated.

• whether being vaccinated is a part of the inherent requirement of an employees’ role: this should be done on a person by person basis, looking at the duties performed by each employee.

• the Government’s directions or policies (if any) that concern your industry; • including a process for those employees who medically cannot get vaccinated, which can be utilised to reduce the risk of an outbreak; and • including an appeals process by which an employee’s refusal can be considered. B Endnotes 1 https://www.safeworkaustralia.gov.au/covid-19information-workplaces/industry-information/ general-industry-information/vaccination 2 https://coronavirus.fairwork.gov.au/ coronavirus-and-australian-workplace-laws/ health-and-safety-in-the-workplace-duringcoronavirus/covid-19-vaccinations-and-theworkplace#can-an-employer-require-anemployee-to-be-vaccinated

A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 18 JANUARY 2021

11 FEBRUARY 2021

Legal Profession Conduct Commissioner he Legal Profession Conduct Commissioner (LPCC), Greg May introduced Ms Deslie Billich of his Office to the President, Bec Sandford and Chief Executive, Stephen Hodder. Ms Billich is the person at the LPCC who is available to speak confidentiality, and anonymously if wished, to those who wish to raise issues of sexual harassment, discrimination and workplace bullying in the legal profession prior to, or instead of, making a formal complaint.

Various aspects of this new service and the LPCC’s management of complaints of the above nature, were discussed.

Courts Administration Authority – Respectful Behaviours Working Group The President and the Director of Ethics and Practice represented the Society at a meeting of the CAA’s Respectful Behaviours Working Group which aims to share and drive work to address bullying, discrimination and harassment in the legal profession. The then Acting Equal Opportunity Commissioner, Ms Emily Strickland attended the meeting.

The Group received reports from various entities including the Law Schools and SA Bar Association, and from the Chief Justice including as to the amendment of the Legal Practitioners Education and Admission Rules to add a unit in bullying, discrimination and harassment to Mandatory Continuing Professional Development requirements. Issues discussed included how to effect a victim centred approach; and methods to manage the risk of sexual harassment in the workplace. The Society has taken on the task of creating a document showing the avenues and support available to victims of sexual harassment.

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5 FEBRUARY 2021 The Attorney-General (SA) Matters discussed at a meeting Bec Sandford and Stephen Hodder held with the Attorney-General, the Honourable Vickie Chapman MP included the Society’s continued concern at the decline in the quantum of funds held by the Legal Practitioners Fidelity Fund; and the Society’s position that South Australia not seek to join the Legal Profession Uniform Law at present and its continuing work in relation to it.

10 FEBRUARY 2021 Australian Medical Association (SA) Bec Sandford and Stephen Hodder met with the President, Dr Chris Moy and CEO, Dr Samantha Mead of the AMA(SA) and discussed various matters of mutual interest including aspects of the Termination of Pregnancy Bill 2021, which was at that time before the Lower House.

24 FEBRUARY 2021 Legal Services Commission Board The President attended a meeting of the Board of the Legal Services Commission, at the Board’s invitation.

Matters discussed included the LSC’s concern at the decrease in its funding from interest on trust account deposits, for which it is seeking an additional budget allocation; and a request from the Society,

at the instigation of the Criminal Law Committee, that the LSC increase legal aid payments for appeal submissions and for work relating to extended supervision orders.

12, 13 MARCH 2021 Meetings of Law Society Presidents, Chief Executives of Constituent Bodies of the Law Council of Australia (LCA); Chief Executives of Law Societies; the Conference of Law Societies; and Directors of the LCA Bec Sandford (as President and also as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings. Key topics of discussion included developments and initiatives to address sexual harassment in the profession, including bystander training; the issues posed by the Lawyer X Royal Commission, as to mandatory reporting; and the LCA’s “Lawyer Project”, being a research project aimed at documenting the value that the profession brings to society.

25 MARCH 2021 South Australian Council of Social Service President Sandford and the Society’s Policy Coordinator, Nathan Ramos met with Ross Womersley, CEO and Catherine Earl, Policy Director of SACOSS to discuss and share information about the work being done by the Society and SACOSS on various matters including advocacy for the age of criminal responsibility to be raised from 10 to 14 years. B April 2021 THE BULLETIN

19

WELLBEING & RESILIENCE

Healthy tips from the Wellbeing & Resilience Committee

T

he Law Society’s Wellbeing and Resilience Committee commenced in 2011, and is charged with driving initiatives regarding matters relating to the health (mental and physical), well-being and resilience of members of the profession.

Below, a few of our Committee Members introduce themselves and offer some insights into what they have found useful for supporting their own wellbeing in practice.

ZOE LEWIS (CHAIR), MANAGING SOLICITOR, HOMELESS LEGAL, JUSTICENET Your #1 Wellbeing & Resilience Tip: Daily exercise. It does wonders for my body and mind.

Your Biggest Wellbeing & Resilience Struggle: Perfectionism across the board.

Even in relation to my own wellbeing pursuits! Sometimes I avoid starting or trying things because I don’t know how to do them perfectly. This can cause so much unnecessary stress.

Why do you choose to volunteer on this Committee: I think lawyers can find themselves in the perfect storm of having the personality traits, workplace culture and work-related pressures which “perfectly” fuel poor wellbeing. But I don’t think lawyers have to have poor wellbeing.

I hope to improve the tools available to lawyers in SA and also open up the conversation about the various struggles we all have.

EMILY MORTIMER (DEPUTY CHAIR), DIRECTOR OF HUMAN RESOURCES, PIPER ALDERMAN Your Wellbeing & Resilience Role Model: If I look at my approach to wellbeing and resilience it would mirror

20 THE BULLETIN April 2021

the PERMA theory by Martin Seligman which has five components – Positive Emotions, Engagement, Relationships, Meaning and Accomplishment.

What does Wellbeing & Resilience look like to you: I am a proud mum to a cheeky 9 year old sports fanatic – his energy is infectious and my worst days are brightened by his love of life and my love of watching him grow into a fine young (and resilient) man.

Your #1 Wellbeing & Resilience Tip: When you are asked if you R OK? Answer honestly. People ask because they care and they can find ways to support you. If you are not asking people, start, it is a question that can save a life.

AMY NIKOLOVSKI, EQUITY PARTNER, DUNCAN BASHEER HANNON Your #1 Wellbeing & Resilience Tip: Outsource what you can. Time is precious, and you are not required to do everything yourself, ask for help when you need it.

Your Biggest Wellbeing & Resilience Struggle: Like many working parents, my main struggle is being able to switch off from work mode and go into mum mode.

Owning a business, managing a team, client expectations and a family is a struggle and the ultimate juggle, sometimes I don’t keep all the balls in the air and some drop, the trick is to know which ones are ok to drop, which will bounce and those that if you drop will break.

EDWIN FAH, SENIOR ASSOCIATE, JOHNSON WINTER SLATTERY Your Biggest Wellbeing & Resilience Struggle: Being

mindful of what “enough” means, because it changes every day, and within days. You can always read that one more case, or write that one more letter, and there are times when you will need to, but there is a point in every day where you have done “enough”.

Your #1 Wellbeing & Resilience Tip: Let it go. Focus your energies on the things you can control. You can’t do anything about past mistakes so don’t dwell on them. Learn from them so as not to make them again in the future, but don’t carry that angst around with you.

What does Wellbeing & Resilience look like to you: Being able to say honestly to myself at the end of the day that I did the best I could today. That doesn’t mean that my output was the same as yesterday, or that I made no mistakes today. I can’t always say this, and when I can’t, I try to understand why that was, and therefore, what I can do to rectify that tomorrow.

And then I let it go.

GEORGINA PORTUS, SOLICITOR, NORTHERN COMMUNITY LEGAL SERVICE INC #1 Well-being and Resilience Tip: Prioritise time for yourself and your interests outside of work. Schedule time for yourself and make it non-negotiable.

Why do you choose to volunteer on this Committee: In my penultimate year of law school, I was being taught wellbeing and resilience content for the first time. I strongly believe this material should be compulsory knowledge for any profession, however, it is markedly missing from many curriculums, workplaces, and social circles. I wanted to be a part of a group that promoted this knowledge and hope that it sparks conversation in workplaces across the profession.

WELLBEING & RESILIENCE

ROSALINA CHARISMA TORREFRANCA, SOLICITOR, WBH LEGAL Your #1 Wellbeing & Resilience Tip: Not to wait for retirement to enjoy the things you love or to enjoy your hobbies or to take up new hobbies. We should set some time for things we enjoy.

And not to be afraid to ask for help.

Your Biggest Wellbeing & Resilience Struggle: Following my #1 Wellbeing & Resilience tip.

What does Wellbeing & Resilience look like to you: Being able to develop constructive coping mechanisms.

REBECCA SANDFORD, SPECIAL COUNSEL, HWL EBSWORTH LAWYERS What does Wellbeing &

Resilience look like to you: Being wellrested, active and engaged with my work and my life, feeling well equipped to give my best efforts and being kind to myself when things don’t go to plan (as they often don’t!), and reaching out to support others as well as allowing them to help and support me. #1 Well-being and Resilience Tip: Remember that the practice of the law is often a marathon rather than a sprint, and that it isn’t necessary (or possible) to get it all done in one day. And to get more sleep!

April 2021 THE BULLETIN

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TAX FILES

Some taxation considerations as to the manner of Compromising Deceased Estate Litigation BERNIE WALRUT, MURRAY CHAMBERS

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t is now commonly suggested that deceased estate litigation is a growth area and that much of that litigation is settled before trial or in the course of the trial.

This may lead to terms of compromise, that whilst seeking to allocate responsibility for the payment of the various taxes that may be involved, does not adequately consider the possible relief available, and how the form the compromise takes may affect the availability of some of that relief.

CAPITAL GAINS TAX In an article in this column in late 2012 the requirements for disregarding any capital gain or loss from a capital gains tax (CGT) event arising on death in respect of a CGT asset1 owned by the deceased2 under Division 128 of the Income Tax Assessment Act 1997 (Cth) (ITAA97) were described. In effect the CGT asset must pass to the legal personal representative or beneficiary in one of a number of specified ways. Firstly, under the taxpayer’s will, including under a will as varied by a court order.3 Secondly, by operation of the laws of intestacy, including the application of those laws as varied by a court order.

Thirdly where the legal personal representative satisfies a pecuniary legacy or some other interest or share in the estate by appropriating an asset of the estate to the beneficiary in satisfaction of such legacy, interest or share.4 Finally, a distribution of property of the deceased at the death of the death pursuant to a deed of arrangement will pass for these purposes, if it is entered into by the beneficiary to settle a claim to participate in the distribution of the estate where the consideration given by the beneficiary for the asset consists only of the variation or waiver of a claim to other capital gains tax assets that form part of the estate.5

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STAMP DUTY Whilst stamp duty under the Stamp Duties Act 1923 (SA) (SDA) is now limited to interests in residential land and primary production land6 (qualifying land),7 much of the current deceased estate litigation includes interests in such land. One of the exemptions from stamp duty for conveyances of such land is to be found in section 71(5)(h). It applies to a transfer by a legal personal representative of a deceased or the trustee of the estate of a deceased, being a transfer made in pursuance of the provisions of the will of the deceased or the laws of intestacy and not being a transfer in pursuance of a sale.

Section 10 of the Inheritance (Family Provision) Act 1972 (SA) (IFPA) provides that every provision made by an order under the IFPA shall, subject to the Act, operate and take effect as a codicil where the deceased died testate and a will where the deceased died intestate. In practice this has meant that where there is a conveyance pursuant to an order under the IFPA of qualifying land the exemption in section 71(5)(h) applied, unless it constituted a sale.

COMPROMISING ESTATE LITIGATION Some Methods of Compromising Litigation Any litigation, including estate litigation may be compromised in one of many ways.8 In Green v Rozen9 Slade J said that there are various ways an action can be disposed of where there are terms of settlement and the action comes on for hearing or is settled during the course of a trial. Slade J says that in his experience there are at least five methods and they are not exhaustive. They are then described as: make the terms of compromise a rule of court, provided the terms provide for that; secure an order of the court by

consent; obtain a Tomlin Order; obtain an order of the court by consent staying all further proceedings in the action on the terms agreed and endorsed on counsel’s brief; the fifth method, is where there is no order of the Court at all, the Court merely being told by counsel that the case has been settled on agreed terms,10 and often the matter is then discontinued.

Foskett describes in chapter 9 the methods of compromising an action in much more detail.11 Foskett’s list includes an exchange of letters, particularly where the proceedings have not been commenced; a deed or memorandum; a consent order; where the terms of compromise go beyond the court’s normal jurisdiction and the parties desire the agreement to be readily enforceable, it is suggested the terms be made a rule of court; a consent judgment for the payment of money; a Tomlin Order; an adjournment to enable the parties to carry out terms of the compromise and the discontinuance either on terms or unconditionally of the proceedings.

Compromise Arrangement without Orders Where the estate litigation is compromised without an order of the Court, Division 128 of ITAA97 will only apply to the passing of the property under that compromise if section 128-20(1) (d) is satisfied, namely there is a deed of arrangement, it is entered into by the beneficiary to settle a claim to participate in the distribution of the estate, and the consideration given by the beneficiary for the CGT asset consists only of the variation or waiver of a claim to other CGT assets that form part of the estate.12 From a stamp duty perspective, if the property involved in the deceased estate includes qualifying land, in many situations

TAX FILES

a consensual stay of the proceedings on the agreed terms save for the purpose of carrying the agreed terms into effect, permission to apply to the court for this purpose being reserved. The terms are usually incorporated into a schedule to the order or are recorded in a separate document’ which is identified clearly on the face of the order. The great advantage of this procedure is that it enables the enforcement of the terms of the settlement within the existing action by a summary procedure.

In Thomas v Cummins17 Beech J said of a Tomlin Order: By its nature, a Tomlin order is an order giving effect to settlement terms agreed between the parties. The terms of the settlement are a schedule to the orders but are not orders of the court. The compromise agreement in the schedule supersedes the parties’ previous rights and obligations which had been in dispute: It would therefore appear, that the compromise terms scheduled under a Tomlin Order remain simply the agreement of the parties and that Division 128 of ITAA97 will only apply to the passing of the property under that compromise if the requirements of section 128-20(1)(d) are satisfied, as already described. From a stamp duty perspective, if the property involved in the deceased estate includes qualifying land then the position will also

the document evidencing the terms will be liable as a conveyance of a beneficial interest in such qualifying property or as a assignment or disclaimer of an interest in a deceased estate.13 Occasionally, the compromise agreement may constitute an agreement to which section 31 applies, namely an agreement the property subject thereof which cannot vest except upon registration of a transfer.14 Orders of the Court If the terms of the compromise give effect to or are embodied in an order of the Court15 then for the purposes of Division 128 the property the subject of the order will pass for the purposes of Division 128 under the will or intestacy as varied by the order of the Court. Also, for stamp duty purposes, any qualifying land passing pursuant to the order should be exempt from stamp duty under the exemption in section 71(5)(h).

Tomlin Order Foskett describes the use and the form of a Tomlin Order as follows:16 The method most commonly adopted to effectuate a compromise involving terms going beyond the court’s normal jurisdiction is to incorporate the agreement into a “Tomlin Order”. This provides for

be the same as described in respect of a compromise agreement.

Rule of Court Another of the methods already mentioned is to compromise a matter by making the compromise terms a rule of Court. Mortimer in his The Law and Practice of the Probate Division of the High Court of Justice describes at some length the use of a rule of Court in compromising a probate action.18 In an article in June 2008 entitled “Making terms of compromise a Rule of Court”19 the then Registrar of Probates described using a rule of Court where part of the order cannot be made an order in the IFPA proceedings, in the following terms: You settle an inheritance Act claim, but part of the settlement can’t be made by way of court order because it isn’t-technically “provision out of the estate”, Or, you settle a contested - probate action and want to have an order embodying the terms of settlement. What do you do?

Record the terms to writing and ask the Judge or Master to make them a rule of court in the action.

An old text entitled The Practice of the Courts of King’s Bench and Common Please in Personal Actions describes what is a Rule,

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TAX FILES

likely in this context, in the following terms:20 Rules, it has been said, are not records; but only remembrances, not entered on the rolls of the court. And if a rule of court be produced under the hand of the proper officer, there is no need to prove it to be a true copy, because it is as an original. But the allegations in a rule of court, do not prove the facts alledged.

Foskett also contains a discussion of the concept and describes it, inter alia, in the following terms:21 Where the agreement as a whole has been filed and made a rule of court the enforcement process will depend on the provision sought to be enforced.

Where a particular provision has been made an order, then the enforcement process applicable to that order will be appropriate. Where a particular provision has not been made an order, but nonetheless remains part of the agreement, it is submitted that the approach will be similar to that which is appropriate to the enforcement of provisions in the schedule to a Tomlin order: subject to one possible exception, a further order of the court, converting the contractual obligation into an enforceable order, will be needed before enforcement steps can be taken.

Foskett relies on Re Shaw,22 for this view, where Swinfen Eady LJ said, “[b] ut there is here only an order making the terms a rule of Court…Here there is merely a contract which is none the less a contract because it is made enforceable in a summary manner”.23 There is then a brief discussion of a couple of decisions24 that appear to suggest a rule of Court has the effect of converting the compromise agreement into an order.25 Foskett then says, referring to the concepts of a rule of Court and order of Court:26 Despite the apparent interchangeability of the two expressions, the case of Smythe v. Smythe, it is submitted, supports the view that a further order is required before a provision in an agreement made a rule of court becomes an order.

So, it would appear that for Division 128 purposes and stamp duty purposes in respect of interests in qualifying land, where there is a rule of Court, the position is the same as a Tomlin Order.

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SUMMARY In summary, where the actual terms of compromise are made an order of the Court Division 128 of the ITAA97 will apply to the property passing under such order and where the matter is an IFPA matter any qualifying land passing under the Order is likely to be exempt from stamp duty under section 71(5)(h).

In any other situation involving a compromise, including where the terms are the subject of a rule of Court or a Tomlin Order, the compromise will need to comply with section 128-10(1)(d) if the property of the estate is to pass with the benefit of that Division. Any such terms, to the extent they involve interests in qualifying land, are likely to be dutiable or at least any conveyance required to give effect to those terms is likely to be dutiable under the SDA if the compromise arrangement is not.

Tax Files is contributed on behalf of the South Australian based members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B Endnotes 1 A CGT asset is defined in section 108-5 more broadly than simply property.

2 Section 128-10.

3 This will clearly apply to the IFPA and like enactments.

4 This possibility is not adequately dealt with in TR 2006/14 and provided there is power in the instrument to do so would appear to provide opportunities to facilitate arrangements without the constraints imposed by the family arrangement exception. There may be an issue as to whether the person is still acting as the legal personal representative in some situations.

5 Section 128-20(1)(d). See discussion in Taxation Ruling TR 2006/14 Income tax: capital gains tax: consequences of creating life and remainder interests in property and of later events affecting those interests (TR 2006/14) [33]-[37].

6 This article does not consider the possibility that under some arrangements section 71CC of the SDA may be available where the land is primary production land.

7 Section 105A SDA. Some transactions that involve interests in companies and unit trusts that own qualifying land are also dutiable under Part 4 of the SDA. The exemption from duty under section 71(5)(h) may also apply to such interests on a look through basis, by virtue of section 102F. Some may be within further exemptions in section 71CC.

8 See D Foskett The Law and Practice of Compromise (5th ed 2002) (Foskett) [9-05] – [9-38].

9 [1955] 2 All ER 797, 798-800.

10 In that decision it is described as being endorsed on counsel’s brief.

11 Foskett [9-05] – [9-38].

12 Other relief may be available in respect of residences where the main residence relief provisions of Subdivision 118-B apply (they may even apply to non main residences that are pre CGT assets, in some situations) or in the case of primary production land used in a primary production business where the small business relief provisions are available under Division 152. It may also be possible in some situations to take advantage of the appropriation provision in section 128-10(1)(c), but this must satisfy the requirements for an effective appropriation to be within that provision.

13 Sections 71(3)(a) and 71AA. In some situations, if the land is primary production land and the requirements of section 71CC are satisfied, then there may be relief available under that provision.

It may also be possible in some situations to take advantage of the appropriation provision in a will, if there is one, if the appropriation satisfies the requirements for an effective appropriation. The current practice of the Commissioner of State Taxation appears to be to accept that a conveyance by way of appropriation authorised by a Will, will be within the exemption in section 71(5)(h).

14 See 695113 Ontario Ltd. v CS (SA) (1990) 20 ATR 1807 15 Not in a rule of Court or Tomlin Order, as will be discussed.

16 Foskett 9-19.

17 [2009] WASC 228 [24], also see Forrester v Clarke [2012] WASC 3.

18 H Mortimer The Law and Practice of the Probate Division of the High Court of Justice (2nd ed 1911) 670-673.

19 S Roder “Making terms of compromise a rule of Court” The Last Testament June 2008.

20 W Tidd The Practice of the Courts of King’s Bench and Common Please in Personal Actions (1821) 512. So far I have found little other guidance on this concept.

21 [11-06] - [11-09]. In the 5th edition at [9-07] he notes that there is a division of judicial opinion about the manner of achieving enforcement. In his 9th edition (2020) at [9-09] he adds that it is an old and rarely used procedure and later at [1106] it is rarely if ever used in contemporary times in main stream litigation.

22 [1918] P 47. He also refers to Croft v Croft (1922) 38 TLR 648 and Aspden (Inspector of Taxes) v Hildesley [1982] WLR 264.

23 [1918] P 47, 53. Warrington J agreed as did Scrutton LJ. 24 Royal Society of Literature v Lowenthal (1978) C A T 182 and Herbert v Herbert (1978) 122 S J 826. It is noted that Foskett highlights that in both matters it appears the earlier authority was not cited.

25 [11-12] - [11-13].

26 [11-14] - [11-16].

FROM THE CONDUCT COMMISSIONER

A smorgasbord of important issues for practitioners GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER Legal Profession Conduct Commissioner Greg May informs practitioners of a number of important updates and developments in the legal profession.

CHANGES TO THE MIGRATION ACT 1958

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hose lawyers who practice in this area are hopefully already fully aware of the changes to the Migration Act 1958 that took place a few weeks ago on 22 March, 2021.

But for those who haven’t yet gotten on top of those changes, here’s a brief summary: • Most lawyers no longer need to (or can) register as a migration agent through the Office of the Migration Agents Registration Authority (OMARA). Most lawyers can now provide migration services in the course of legal practice.

• The only ones who can’t are those who hold a restricted practising certificate (ie one that is subject to supervised practice restrictions). For those in that position who want to provide migration services, the rules are quite complex.

You should refer to InBrief Issue 4 (18 February, 2021) for a fuller explanation of those rules.

• From 22 March, 2021, a lawyer with an unrestricted practising certificate will be subject to regulation only under the Legal Practitioners Act. • If you were a registered migration agent, and if you had been subject to disciplinary investigation or action by OMARA, then you may have to disclose this in any application for first issue or renewal of a practising certificate.

• If you were subject to a disciplinary investigation by OMARA that was ongoing as at 22 March, 2021, then that investigation will have been transferred to my office, and you can expect one of my investigating solicitors to be in touch with you about that shortly.

Further detail about these changes can be obtained from OMARA’s website.

WILLS AND DECEASED ESTATES We have had to consider a number of matters recently in which a lawyer has been the executor of a deceased estate, and the

beneficiaries have complained about the fees charged to the estate. There are two main issues that have arisen.

First, assuming the lawyer prepared the Will, did the lawyer give appropriate advice to the testator about his or her fees at the time the testator signed the Will? The lawyer should have had regard to rule 12 of the Australian Solicitors’ Conduct Rules, which requires a lawyer to have “[informed] the client in writing before the client signs the Will. . . of the inclusion in the Will of any provision entitling the solicitor. . . to charge legal costs in relation to the administration of the estate” (emphasis added).

If the lawyer can’t satisfy me that that information was given in writing and at the appropriate time, then that breach of the ASCRs may well amount to misconduct.

Second, if a testator’s Will doesn’t have in it an appropriate charging clause, then the lawyer/executor who carries out the administration of the estate has no legal right to charge solicitor/profit costs against the estate. The lawyer/executor can’t just decide to take his or her fees from the estate without authority. The lawyer/ executor cannot validly enter into a contract (or costs agreement) with him/herself. The lawyer/executor can only be paid for his or her work in relation to the estate if: • the lawyer applies to the Supreme Court under section 70 of the Administration and Probate Act for remuneration the Court considers is just and reasonable; or • all of the beneficiaries are of age, and give their consent to the fees being charged.

Again, any lawyer/executor who charges fees to an estate without appropriate authority may well have engaged in misconduct, and may be required to reimburse any fees so paid to the estate.

SEXUAL HARASSMENT IN THE LEGAL PROFESSION In case you have been living under the proverbial rock, this is becoming quite

a significant issue for the profession!

The Equal Opportunity Commission is currently conducting, at the request of the South Australian Parliament, an independent review into harassment in the legal profession. The EOC only recently released its report following a similar review into harassment in the South Australian parliamentary workplace.

So, there will be much more happening in the very near future in relation to this type of conduct, which is a scourge not only of our profession but of the community generally. In the meantime, can I encourage everyone who hasn’t already done so to read my article about this in the November, 2020 Bulletin, and to keep up to date with everything the Law Society publishes about this incredibly important topic. And, for anyone who considers they have been the victim of such conduct or who has witnessed it, please go to the section on “inappropriate personal conduct” on my website.

COSTS DISCLOSURE I continue to be amazed by the blatant disregard some lawyers have to the rules that everyone is required to comply with under Schedule 3 of the Legal Practitioners Act. As I said in my article in the April, 2020 Bulletin, “the professionalism I will be expecting of practitioners extends to their compliance with the requirements of Part 3 of Schedule 3”. The failure to make ongoing disclosure under clause 17 is my main concern, but I am still seeing some instances where lawyers aren’t even complying with the most important requirement under clause 10 by giving “an estimate of the total legal costs” that will likely be billed to the client.

If there are any parts of the Legal Practitioners Act that you should know off by heart, they are clause 10 and clause 17 of Schedule 3.

I have recently made a number of misconduct findings in relation to practitioners who have breached these requirements. Please pay attention to them and comply with them. B April 2021 THE BULLETIN

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RISK WATCH

No file notes: A ‘licence’ to sue?

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

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t can be frustrating for Law Claims when inspecting practitioners’ files after a claim has been made to not find proper file notes or letters of advice confirming discussions, especially on critical matters.

This is a matter that has been raised again and again, but sometimes it appears the message is not getting through. Just last week one of my colleagues returned from inspecting a practitioner’s file on a new claim matter, lamenting the lack of proper documentation on the file, which may make it more difficult to defend the claim.

Please consider the following… one of the largest claims in the commercial area Law Claims has dealt with in recent years involved a business transaction and ended up in the Full Court of the Supreme Court. The matter ended up costing the PII Scheme hundreds of thousands of dollars in Defence costs, but things could have been different had there been better file notes.

The case is reported as Bannister v Sirrom Enterprises [2016] SASC FC 153 and concerned a sale and purchase transaction in relation to a business building houses out of pre-fabricated, so-called “Smart Panel” systems. The law firm involved was instructed by a Mr Morris (Sirrom, of course, is Morris spelt backwards), who wished to buy into the building business which was then run by a Mr Manson.

The end result of this case was that the firm was ultimately found not to have been liable, but the matter was very costly and took many years to wind its way through the Courts, including a lengthy trial in the District Court where the firm was found to have been liable to Mr Morris in certain respects. It took a difficult and hard-fought appeal before they were found not to have been liable.

What occurred was that Mr Morris and Mr Manson had entered into a Heads of Agreement-type document and Mr Morris had made an initial payment before Mr Morris instructed the solicitors to carry out a due diligence and to prepare the formal documents to complete the transaction. One of the key issues, as it turned out, was whether the business that Mr Morris was proposing to buy into had the relevant Builder’s Licence.

This was discussed relatively early on in the solicitors’ engagement, but it was

26 THE BULLETIN April 2021

not until the actual day of completion in December 2007 that it became clear that the only Builder’s Licence held in relation to the business was Mr Manson’s personal Builder’s Licence—which was of itself hedged with conditions—and, as is the nature of these licences, unable to be transferred, such that it was of no use or relevance to the ongoing business. The business also involved certain intellectual property licences in relation to the use of the “Smart Panel” systems.

When the lack of an appropriate Builder’s Licence became clear on the day of completion, the solicitors’ advice—in a private session with Mr Morris during the completion meeting—was not to complete at that time and to defer completion until the issue of the licence could be sorted out. Mr Morris did not take that advice, principally because he was keen to proceed and he had paid Mr Manson significant sums already in the interim period—and the transaction was settled on that day.

After a couple of months it became clear that the business was not going well, at least in part because of the lack of the Builder’s Licence. Mr Morris sued, alleging that the solicitors had been negligent in relation to the due diligence.

One of the keys to resolving this mess was to go back to the discussion between the solicitors and Mr Morris relatively early in the engagement. The case for the solicitors was that it had been agreed that Mr Morris and his business adviser, Mr Erskine, (both of whose first names were Peter—“PM” and “PE”) were

going to deal with the Builder’s Licence issue. Mr Morris’ case was that it was the solicitors’ responsibility as part of the due diligence process. In the end it came down to one rather cryptic line in a telephone attendance note and the evidence of the solicitors versus the evidence of Mr Morris.

The line in the telephone note was “Licence—PM/PE. No action”. The solicitors said that this was a reference to the Builder’s Licence issue being dealt with by Messrs Morris and Erskine and that the “No action” meant no action by the solicitors. Mr Morris’ case was that the note actually referred to the Intellectual Property Licences relating to the use of the Smart Panel systems, which were to be dealt with by Messrs Morris and Erskine, and that the solicitors were to look at the Builder’s Licence.

After substantial oral evidence and cross-examination at trial, the case put by the solicitors as to the meaning of this note was accepted. It was found that there was a specific limitation on the solicitors’ retainer regarding the Builder’s Licence and therefore the consequences of there not being an appropriate licence should not be visited on them.

It was absolutely crystal clear from all of the four Judges who considered this matter (at Trial and on Appeal) that without a specific limitation on the retainer it would have been part of the duty of a competent solicitor acting in this transaction to deal with the Builder’s Licence issue. The judgment of the Chief

RISK WATCH

Justice contains a good summary of the cases relevant to the standard of care expected of a solicitor and if you haven’t read it, I strongly recommend that you do.

This case is a prime example of the importance of making good, clear, unambiguous file notes and, where necessary, confirming them in writing. Had this file note stated unambiguously just who was doing what, and in relation to which licence, and/or the limitation on the retainer was confirmed in an email or letter

to the client, the case against the solicitors probably would never have even got off the ground, saving the solicitors involved years of anxiety and wasted time and the PII Scheme substantial costs, most of which turned out to be unrecoverable.

An additional resource that is now available to practitioners insured with the SA PII Scheme is the Sale and Purchase of Businesses document package [https:// www.lawsocietysa.asn.au/Public/ Publications/Commercial_Law_Package/

Commercial_Law_Title.aspx]. The proper use of this document package or similar procedures—in particular BSP-P3A, the Initial Letter to Purchaser Client re Legal Due Diligence, BSP-P1A, the Letter to Purchaser Client re Scope–Minimal Instructions, and the follow-up letter, being BSP-P1B, the Letter to Purchaser Client re Scope–Instructed to Proceed— would likely have ensured that issues as to whose responsibility it was to sort out the Builder’s Licence would not have arisen.

YOUNG LAWYERS

Camilla Parker Bowlers strike again LAUREN WILLGOOSE, FENWICK ELLIOTT GRACE

A

fter the year that was 2020, on 18 February 2021 the Young Lawyers were excited to hold their first event of the season, being the annual BBQ & Bowls tournament.

Eager competitors congregated at the Adelaide Bowling Club for an evening of sunshine, fun and lawn bowls. With a record registration of participants, 11 teams were in the mix to take away the crown of 2021.

In contrast to last year’s wet weather wipe out, this year’s teams faced the hallmarks of a typical Australian summer - with the mercury topping 37 degrees on arrival and not a hint of a breeze in sight.

Before hitting the turf, our teams were fuelled by a champion BBQ spread and

several coldies to cool things down before they were to get heated all over again.

Around 7pm, with the sunshine still beaming, our teams made their way to the grass to get things bowling… With a backdrop of chatter and arguably the world’s greatest playlist, our teams were ready for battle.

With The Bowled & The Beautiful taking one for the teams and stepping out of the competition, each of the remaining 10 teams were partnered off for the first round of business.

As the show went on, each winning team continued the battle for the revered top spot, with each luckless (i.e., losing) team playing it off for the wooden spoon.

facebook.com/YLCSA

With several hours of bowls under the belt, at 9pm our two top teams went in to battle for the title. Who would win - the historically victorious Camilla Parker Bowlers or the virgin underdogs Habeus Bowlus?

Despite being a nail biter with only a centimetre or two in it, Camilla Parker Bowlers took out the top spot, much to the disappointment of most.

But for the upsetting loss of this year’s underdogs, the event was a perfect start to the Young Lawyers’ social calendar.

Thank you as always to our sponsor Burgess Paluch Legal Recruitment for their continued support of the Young Lawyers.

April 2021 THE BULLETIN

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PROFILE

‘Plan for retirement now’, and other pearls of advice from Deej Eszenyi as she reflects on her accomplished career MICHAEL ESPOSITO Former Law Society president Dymphna “Deej” Eszenyi, who retired from practice last June, speaks to the Bulletin about her career, her observations about the changing nature of the law, and advice for those embarking on a career in law.

D

eej Eszenyi’s entry into the legal profession was not a result of a burning childhood desire to become a lawyer. In fact, it was more due to the realisation that her first career as a Latin teacher had no real prospects for progression.

“It was made clear to me that Latin teachers would never be promoted, unless we gave up teaching Latin,” Deej explained.

“I had the pre-requisites for social work and law - I knew nothing about either of those except that I had been at uni with a bunch of law students. I was confident that if they could do it, I could too.”

One might assume that having a command of the ancient language of the Romans would be an advantage in a profession that persisted with Latin terminology, but Deej did not find it so.

“At law school Latin was pronounced completely differently from the way it was in the Classics Department, and you sound like fool if you pronounce it the classical way but I just couldn’t bring myself to pronounce it the ‘legal’ way,” Deej said.

So, despite a background in classical Latin being more of a hindrance than a help, Deej flourished as a young lawyer.

After graduating from Adelaide Law

28 THE BULLETIN April 2021

School in 1982, she was articled to Stanley and Partners, at that time a pre-eminent employment and general firm.

She worked under the tutelage of Fred Field, Peter Mullins, Richard White and Simon Langsford, and colleagues included Tim Bourne, the late Lincoln Siliakus and Cathy Parsonage.

“Every day was exciting, often terrifying, as Stanleys provided the opportunity to get straight into court work with frequent interlocutory and directions hearings, minor magistrates criminal work and, in that first year, three trials only two of which I lost” Deej remembered.

While Deej was sent down to do an interlocutory application on her first day in articles, in no way did she feel like she was thrown into the deep end.

“I went down with a perfectly organised brief. I was told the exact words to say. I had a script. My principal, Peter Mullins, recognised that if you’re going to do court work at all you need to start as soon as you possibly can so it doesn’t loom large in your mind.”

Nevertheless she recalled that those few steps from the gallery to the bar table seemed a very long way on that first day.

Encouragement to get stuck into court

work early is something that Deej remains grateful for. Decades later when she joined the Bar she observed a widening separation between solicitor and barrister, despite SA having a fused profession.

“When I joined the Bar I had a number of briefs from younger lawyers that I thought they could have done very well themselves. I would ask them ‘Why aren’t you doing your own court work?

You’re all over this. You know this stuff ’.

Their response was to express concern at their lack of experience in court work and, I’m sorry to say, a fear of judges and magistrates.”

“I would encourage young lawyers and even not so young lawyers to make their own submissions, make their own court appearances.”

CHANGING TIMES Deej acknowledges that things are done a bit differently these days. Going to court is a more structured and formal affair than it was in her younger days.

“These days you have appointments for interlocutory applications,” Deej said.

“When I started out they used to be on Friday afternoon in the Magistrates Court, and about 40 of us would go down and wait until our matter was called on.

That of course meant you were chatting, you were learning from other people. You could learn from your colleagues about the judicial officers you were about to appear before, and about the usual trajectory of the type of matter you were involved in.

PROFILE

It was a form of knowledge transfer, not just socialising.

While relishing the social camaraderie that was fostered by these mass court gatherings, she acknowledges there are both benefits and drawbacks of more contemporary practices.

“I think online court attendance is absolutely fabulous, but it does further isolate practitioners from each other,” Deej said.

“Many sole practitioners really enjoy attending at the big CPDs (Continuing Professional Development sessions). They provide an opportunity to socialise with others. It’s great some of that capacity has been taken up by face-to-face CPD attendances.”

Of course, the increase in productivity has given rise to better remuneration.

“As an articled clerk I was being paid $110 a week, which was not really enough to keep body and soul together”, Deej reflected. “One trade-off for young lawyers being paid a living wage now is that need to be productive. You can’t spend all Friday afternoon hanging around for a 5 -minute ‘interloc’.”

SUBURBAN LAWYER In 1983, Deej joined Camatta Lempens & Cashen as it was then, practising general law at offices in Kilkenny, Port Adelaide and Elizabeth.

It was during this time that Deej’s awareness of the barriers ordinary people face in accessing justice really sharpened.

“One thing that struck me at that time was that it was clear that many of my clients would not have come to see a lawyer at all if our offices had not been in among them,” she said. “I repeatedly met people who had never been to North Adelaide despite it being literally up the hill.”

“These were people whose understanding of their rights and whose notions about enforcing them were shockingly and depressingly humble.”

During this period, Deej volunteered at the Parks Community Centre evening advisory service, the Working Women’s Centre Sunday advice line, the Law Society legal advisory service and did her share of duty solicitor work at Port Adelaide.

Volunteering provides a critical service in allowing otherwise disenfranchised people to access justice, but it is also a great way to develop skills and understanding of the law. Deej encourages young lawyers to volunteer as much as they can.

“I think all young practitioners really need to accelerate their matching of the knowledge of law that they come out of law school with, to the application of law to real life. The more real-life situations you can expose yourself to, the more quickly your understanding of the system accelerates. All of those volunteer services are really useful because you’re bringing your legal knowledge to bear against multiple practical legal situations.”

PROVIDING LEGAL AID Deej spent two-and-half “productive and enjoyable” decades at Camatta Lempens. “I possessed for 25 years what I now recognise as remarkably unrestricted energy,” she said, and was fully supported by the firm’s partners in her “side activities” including stints as Commissioner and later Chairperson of the Legal Services Commission (LSC).

Deej said her role at the LSC was an “enormous balancing act.”

“That was balancing access to justice – as much access to as much justice as we could get - with the money that we had, and balancing the needs of the private profession (who do need to be adequately remunerated and who still are not) with the argument that its cheaper to do everything in-house. The private profession is still to this day being paid substantially less for legal aid work than if they have a privately funded matter.”

Deej noted with some pride that there was a rise in the remuneration for private and in-house practitioners every year that she was Commissioner and Chairperson of the LSC, as well as an increase in State and Commonwealth funding for the Commission.

A positive development, in Deej’s view, has been the expansion of the LSC’s advisory section, which has enabled more people to get legal advice on a wider range of matters. However the Commission is still very limited in its capacity to provide representation.

April 2021 THE BULLETIN

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PROFILE

“Representation remains out of reach for most people unless, for example, an insurance company is at the end of it,” Deej said.

LAW SOCIETY INVOLVEMENT Before Deej became Law Society President in 2005, she had been an enthusiastic member of several committees, but has particularly fond memories of the Costs Committee.

“I absolutely loved being on the Costs Committee,” she said. “I think it is almost the central committee for philosophy about law and access to justice. That’s where the discussions are: that’s where we wrestle with questions of what are fair costs.”

Deej joined the Executive of the Society at the encouragement of former Law Society President Tony Abbott.

“I learnt so much about what’s going on in the law, how we are structured, how we relate to the rest of the profession, how we relate to other professions,” she said.

As last year proved, the best laid plans can be can be upended, and rather than methodically setting out to achieve clearly though-out objectives, one can be thrown into crisis mode. Last year’s President Tim White experienced that with COVID-19.

For Deej, is was the Magarey Farlam scandal. Any hopes she had as President to execute her agenda took a back seat to the fall-out from the revelations of an established law firm’s trust account suffering serious defalcation.

“That was a real reminder of how careful solicitors have to be about how their trust funds are managed and the heavy personal responsibility they all bear,” Deej said.

“The defalcation was large enough that it threatened to have all lawyers put

30 THE BULLETIN April 2021

in to pay it back. If the Fidelity Fund goes bust, we get levied. So there was as a lot of work that year working through that, and working through the political fall-out.”

In that same year, the Rann Government adopted the “rack ‘em, pack ‘em and stack ‘em” policy in relation to criminal justice. It was a populist and popular policy that reverberates in the justice system still. During Deej’s presidency it led to somewhat strained relations between the Premier and the Society.

JOINING THE BAR Deej’s move to the Bar in 2008 was prompted by her husband’s terminal illness.. “This was a step that I took in genuine fear that I might not be able to make my way as counsel. But I found a warm welcome at Wright Chambers,” she said.

“My first two years of practice at the Bar were tricky ones marked by my grief over Stuart’s death and my own struggle with cancer,” Deej said.

Deej said she received “constant gentle encouragement” from her Chambers colleagues and others at the Bar and received a steady flow of high-quality, interesting briefs.

“I absolutely loved being at the Bar. After all those years of solicitor’s practice running up to 300 files, to be able to concentrate on one matter at a time, to read actual law, it was just wonderful,” she said.

LEAVING THE PROFESSION When one enters retirement, one has usually accumulated enough experience to be able to offer some pearls of wisdom.

Deej has plenty of valuable advice to offer, but one lesson she was especially

keen to impart was the importance of planning for the future. “Pay tax first, pay super second,” she implored.

“When you’re a young lawyer you should make a plan for leaving the profession. Even if you’re in private practice on your own account, you should always, after you have paid your tax, pay as much superannuation as you possibly can. Your tax and superannuation should be non-discretionary items, then you make your way with what’s left over.”

A consequence of not doing this, she suggests, may be that lawyers need to work well into their advanced years, rather than enjoying retirement.

“There are wonderful young practitioners coming through who are well capable of continuing to serve the community,” Deej said. “I think it is a mistake for people of my age to think we are vital for the functioning of the system.

We are not: we can hand it over.”

A NOTE OF THANKS I remember with deep respect and gratitude the guidance and generosity of the late David Haines QC, the late Mark Griffin QC and the late Pat Amey. Each of these good men holds a warm place in my memory.

Likewise I cannot forget the help, patience and collegiate sharing of my former Chambers colleagues especially Rick Manuel, Margaret (now Judge) Kelly, Vanessa Lindsay and Stuart (now Magistrate) Cole.

A barrister is of course nothing without briefs.

I had so many interesting, sometimes very challenging, briefs. Those briefs gave me a life at the bar that I relished. I thank those instructors and their clients for entrusting me with that work. – Deej Eszenyi B

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31

ACCESS TO JUSTICE

Defeated ‘on the battleground of procedure’: South Australia’s universal pleading rules and access to justice for self-represented litigants BEN D’ANDREA, HONOUS STUDENT, ADELAIDE LAW SCHOOL

T

he disadvantages suffered by selfrepresented litigants (SRLs) have been the subject of discussion by courts,1 law reform bodies,2 and academic commentators.3 These disadvantages can not only result in justice being denied to the SRL, but can drag out litigation and cause costs to blow-out for their opponent and for the Court.4 While these difficulties can arise from a lack of knowledge of the law, they can just as often be caused by unfamiliarity with procedural rules.

Following the entry into force of the Uniform Civil Court Rules 2020 (SA) (‘the Rules’) on the 18th of May 2020,5 it is worth assessing the implications of the new Rules for SRLs. This paper examines the Rules in the context of pleadings, one of the first major procedural requirements faced by litigants.

THE UNIVERSAL PLEADING RULES ‘Pleadings’ refers to the applicant’s claim and statement of claim, the respondent’s defence, and any counterclaims, cross claims, joinders and replies to defences that precede litigation.6 All pleadings must comply with the universal pleading rules contained in r 67.2 of the Rules, or risk being struck out.7 The Supreme Court Civil Rules 2006 (SA) required that a pleading be in contravention of the rules and an abuse of process to be struck out;8 however the new Rules require only that pleadings be in contravention of the Rules or an abuse of process.9 This appears to make it easier for the Court to strike out pleadings, and seems to encourage stricter compliance with the Rules. If pleadings are struck out and amended pleadings are not filed, an applicant’s action may fail10 or a respondent may have judgment entered against them in default.11 Where pleadings disclose no cause of action12 or are frivolous, vexatious or an abuse of process,13 the Court may instead dismiss

32 THE BULLETIN April 2021

the action in its entirety or grant summary judgment for the applicant.14 While striking out is available where pleadings are defective in form, dismissal looks to their content. For SRLs with little to no knowledge of the pleading rules, the threat of strike out or dismissal is considerable in the early stages of litigation.

SELF-REPRESENTATION At law All people have the right to represent themselves in civil and criminal matters, both under statute15 and at common law.16 In Cachia v Hanes17 (‘Cachia’), the High Court described the right to represent oneself as ‘fundamental’.18 Indeed, the right to self-representation is enshrined internationally in art 14(d) of the International Covenant on Civil and Political Rights.19 In reality Despite its lofty position as a fundamental right, courts are quick to point out the difficulties caused by SRLs. In Cachia,20 the High Court wrote: It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives. All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself. … [L] itigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged. The costs of legal representation for the opposing litigant are increased and the drain upon court resources is considerable.

As well as judicial commentary, the issues caused by SRLs have attracted the attention of a number of law reform and

government bodies.21 Generally, these bodies agree that SRLs are considerably disadvantaged compared to their represented counterparts, and that they increase the workload both of the Court and the other party.22 However, these difficulties cannot be blamed squarely on the litigants themselves. In Kenny v Ritter (‘Kenny’),23 Gray and Layton JJ agreed with Lord Woolf that ‘too often the litigant in person is regarded as a problem for the judges and for the court system, [but] the true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people’.24 In turn, the inaccessibility of the legal system raises the cost and lowers the availability of legal representation.25 The exact proportion of South Australian civil cases involving self-represented parties is not available, despite recommendations as early as 2004 that this data be publicly reported.26 In the Victorian,27 Queensland,28 and New South Wales Courts of Appeal,29 where the numbers of self-represented litigants are recorded, between 20% and 35% of civil matters include at least one selfrepresented party.

WHO IS A SELF-REPRESENTED LITIGANT? To understand the issues faced by SRLs, one must understand who these people are. There is no one-size-fits-all description of a SRL, although social and economic disadvantage are common.30 Kyrou J of the Supreme Court of Victoria categorises SRLs as either querulant or non-querulant.31 Both experience different problems over the course of a litigation, and both cause different problems for the court.

Querulants A querulant is ‘an unusually persistent complainer, obsessively driven in pursuit of justice to the extent of morbidity, who

ACCESS TO JUSTICE

plagues complaints bodies and courts.’32 Often, querulants are unrepresented because they distrust lawyers or have been refused representation on the grounds that they have no case.33 They may be impecunious.34 On many occasions, they are mentally ill.35 Querulant litigants can be belligerent,36 refuse to accept adverse findings,37 and persist with hopeless actions at the expense of court resources.38 For example, in Draoui v Le (No 3) (‘Draoui’)39 Mr Draoui was 70 years old, representing himself against three defendants in relation to three separate motor vehicle accidents over the course of the previous 18 years.40 His history of involvement in the courts, both in criminal and civil matters, was extensive.41 His persistence was obsessive. Proceedings were instituted regarding the first accident in 2004, after which ensued 15 years of adjournments, applications for striking out, appeals, and re-listings.42 He was belligerent and uncooperative, falsely claiming not to understand English43 and lying about medical appointments to procure adjournments.44 He misplaced important documents provided by the defence (arguing that he was prejudiced as a result),45 refused to return to the witness box to be cross-examined,46 regularly accused the judge of bias,47 and even left the courtroom in anger during a witness examination.48 Non-Querulants Conversely, non-querulants generally have a cause of action with some merit, but cannot afford legal representation and do not qualify for legal aid.49 While non-querulants conduct themselves with an appropriate manner and treat the court process with respect, their unfamiliarity with law and procedural rules still inflates the cost and increases the length of any proceedings in which they are involved.50 The issues caused by ordinary people forced into self-representation are different to those that arise from querulant litigants. However, as non-querulants are thought to make up the majority of SRLs,51 addressing these issues should be a priority for analysis and response.

THE UNIVERSAL PLEADING RULES AND SELF-REPRESENTED LITIGANTS The object of the Rules is ‘to facilitate the just, efficient, timely, [and] cost-

effective … resolution’52 of legal disputes.

However, compliance with court rules and procedural requirements are often one of the major stumbling blocks for SRLs.53 In many cases, ignorance of the pleading rules can start a cycle of pleadings being struck out, amended, filed, and struck out again.54 This drags out pre-trial processes, incurs costs for both parties and potentially deprives the SRL of their opportunity to pursue justice at trial. This result is clearly counter to the object of the Rules. Yet in other cases, the pleadings rules are an effective filter process, allowing meritless actions to be dismissed early in the process before considerable time and resources have been consumed.

Ultimately, whether the Rules create a barrier to justice or serve as an effective filter depends on whether the litigant in question is querulant or non-querulant.

Querulants As Draoui55 demonstrates, a querulant litigant can inflict substantial costs and stress on the Court and the other party if they see their case through to trial. If their claim can be dismissed or struck out before it reaches trial, much of this can be avoided. In Atkins v Susan Mary O’Toole Lawyers (‘Atkins’)56 and Francis v Cole,57 for example, the self-represented plaintiffs included numerous causes of action in their statements of claim, some of which were non-existent58 and many (if not all) of which were unsupported by the facts.59 In Atkins, the drafting of the plaintiff ’s statements of claim further revealed a belligerent and openly hostile attitude towards the defendant.60 In both cases, the defendants successfully applied for summary dismissal of these claims on the grounds that they failed to disclose a cause of action, and were vexatious and an abuse of process.61 In these circumstances, it was the content of the pleadings that allowed the Court to dismiss the action. However, pleadings like these could just as easily be struck out for non-compliance with the rules in r 67.2.62 Either way, the Rules give the Court discretion to prevent mentally ill, belligerent, and uncooperative litigants from pursuing hopeless cases at great expense to all parties involved.

Non-Querulants However, there are cases where the same rules have denied justice to non-querulant litigants, who have a

legitimate claim and make a genuine effort to comply.63 In Badcock v Channel Seven Adelaide Pty Ltd,64 Mr Badcock had attempted to bring an action in defamation against Channel Seven after his business failed due to negative coverage on A Current Affair. Bankrupt and without access to legal aid, self-representation was his only choice.65 Mr Badcock’s first statement of claim was struck out, but he filed a second that made a genuine effort to comply with the Master’s instructions.66 However, the Master determined that the second statement of claim remained ‘as a whole so riddled with defects that the pleading should not be allowed to stand’.67 For his third attempt, Mr Badcock found model pleadings on which to base his own.68 However, by relying on the model, he removed necessary particulars which he had included in the second statement of claim,69 and again, the statement of claim was struck out. Mr Badcock failed to file a fourth amended statement of claim.70 Mr Badcock’s genuine attempts to comply with the instructions of the Master distinguish him from a querulant litigant.

Mr Badcock had even sought further advice from the Court and opposing counsel, however it would have been inappropriate for either to assist.71 Indeed, the Court later sympathised with him, writing: this is not a case of proceedings which disclose no cause of action known to the law, or of proceedings which cannot by amendment be made to disclose such a cause of action … [Mr Badcock] has made a genuine attempt to comply with the Rules, [but] it would seem that his lack of pleading skills has brought him undone.72 Mr Badcock’s experience is a stark reminder of how procedural rules can deprive individuals of access to justice.

While this case was decided under the Supreme Court Rules 2006 (SA), there appears to be nothing in the new Rules that would lead to a different result.

FINDING THE BALANCE Legal aid is commonly suggested as a solution to the problems posed and faced by SRLs.73 However, recognising that a scarcity of resources may make it impossible to extend legal aid beyond April 2021 THE BULLETIN

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ACCESS TO JUSTICE

what is already offered,74 other ways of supporting SRLs are necessary to support access to justice. Without conducting major reform, this could include advice from the Bench, cooperation by opposing counsel, or unbundled legal services.

Assistance from the Bench Recognising that self-representation is a legal right, and for some people their only option, laws and guidelines have developed concerning the assistance owed to a SRL by the Court itself. In Kenny,75 Gray and Layton JJ observed that ‘when faced with a litigant in person, a measure of judicial intervention is not simply permissible but necessary, in order to ensure a fair hearing.’76 This intervention should ensure that SRLs are aware of their substantive and procedural rights, and should redress as far as possible the disadvantage suffered by the SRL.77 Some assistance from the Bench will also help to avoid a SRL from feeling that they have been cheated of justice by a hostile legal system, and may avoid a long and costly appeals process.78 In the context of pleadings, this assistance might include ‘siev[ing] … through [defective pleadings] for the purpose of leaving intact such of the paragraphs as disclose a cause of action’.79 However, judicial officers must also be careful to maintain the perception of impartiality, and must not ‘become an advocate for the unrepresented person’.80 So, just as the Court cannot put words in the mouth of SRLs, it cannot read causes of action into pleadings that do not support them. Striking the balance between assistance and impartiality may well be one of the Court’s greatest difficulties in litigation involving a SRL.81 Indeed, the Court ‘cannot redress the balance completely because, if it does, it will appear to be acting favourably to the litigant in person and adversely to the litigant who is represented.’82 In turn, this can constitute a ground of appeal for the represented party,83 and drag the SRL back into court all over again. It therefore seems impossible for assistance from the Bench to adequately overcome the disadvantages suffered by a SRL without jeopardising the Court’s impartiality.

34 THE BULLETIN April 2021

Cooperation by counsel It is not only the Court that needs to strike a balance in matters involving SRLs. Practitioners opposing a SRL must balance their obligations as advocates for their client with their obligations as officers of the court.84 In Kenny,85 this was said to include ensuring that necessary topics are raised in court, even where they would normally be raised by the other party, and avoiding pedantic objections.86 It could also mean that a solicitor might need to encourage a SRL to obtain free or affordable legal advice, use plain language in their correspondences, avoid burdening the SRL with unnecessary material, and provide the SRL with outlines of matters to be raised at hearings ahead of time.87 Failing to follow this guidance and treat a SRL fairly and courteously will likely breach the Australian Solicitors’ Conduct Rules 2015 (SA) (‘ASCR’),88 for example the duty not to take unfair advantage of another party’s error.89 Nonetheless, it remains completely inappropriate for a lawyer to provide their opponent with assistance or advice.

numerous interconnected and ongoing issues, which could lead to oversights and errors by lawyers retained, for example, only to draft a statement of claim.97 Furthermore, procedural requirements and professional conduct rules have developed on the assumption that a client will be represented throughout litigation, not in an unbundled fashion.98 Under the Rules, for example, a party requires leave of the Court to be represented by more than one law firm in a proceeding,99 and a law firm will be presumed to be representing a party from the time that the initial notice of acting is filed until a notice of cessation of acting is filed100 or a notice of acting is filed that nominates a new firm.101 This creates hurdles for solicitors and clients who wish to approach litigation in an unbundled fashion. While none of these issues are insurmountable,102 the lack of provision for any kind of unbundled legal services in the new Rules suggests that it may be some time before this option is made fully available to SRLs.

Unbundled legal services ‘Unbundled’ or ‘step-in-step-out’ legal services offer particular promise for SRLs facing difficulties in the pretrial stage.90 Under this system, lawyers provide selected services to clients, rather than representing them through the entire litigation.91 Unbundled legal services are designed to support non-querulant litigants who do not qualify for legal aid.92 In the context of pleadings, unbundled legal services would allow a litigant to have rules-compliant pleadings drafted by a solicitor without committing to ongoing representation at trial. Recalling Badcock (No 1),93 assistance in overcoming early procedural hurdles may have been all that Mr Badcock required to go on and represent himself successfully at trial. It is for these reasons that unbundled legal services have been incorporated into legal practice in the United Kingdom,94 Canada,95 and most of the United States of America.96 However, there are compelling reasons for the slow adoption of unbundling in Australia. Complex matters often involve

CONCLUSION In litigation between represented parties, the rules of pleadings seek to facilitate the just, efficient and affordable resolution of disputes. However, in litigation involving SRLs, these same rules can in fact have the opposite result.

Simply because they cannot afford legal representation, non-querulant litigants might find their legitimate causes of action stymied as early as the statement of claim. While some of their difficulties can possibly be overcome by assistance from the Bench or cooperation from opposing counsel, it is inappropriate to rely on assistance from parties that already have obligations of impartiality or to a client.

Similarly, while unbundled legal services could ameliorate the difficulties faced by SRLs in the pre-trial procedural stage, the new Rules appear to make no provision for it. Instead, SRLs face many of the same barriers to justice under the new Rules as they have done for years.

The headline of this article references Badcock v Channel Seven Adelaide Pty Ltd [2005] SADC 32, [37] (‘Badcock (No 1)’). B

ACCESS TO JUSTICE

Endnotes 1 See, for example, Kenny v Ritter [2009] SASC 139 (‘Kenny’).

2 See, for example, Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report No 89, 29 November 1995).

3 See, for example, Margaret Castles, ‘Barriers to Unbundled Legal Services in Australia: Canvassing Reforms to Better Manage SelfRepresented Litigants in Courts and in Practice’ (2016) 25(4) Journal of Judicial Administration 237.

4 See, for example, Draoui v Le (No 3) [2020] SADC 23, Annexure I (‘Draoui’).

5 South Australia, South Australian Government Gazette, No 39, 14 May 2020, 1200.

6 Uniform Civil Court Rules 2020 (SA) r 2.1 (definition of ‘pleading’) (‘UCCR’).

7 Ibid r 70.3(a).

8 Supreme Court Civil Rules 2006 (SA) r 104.

9 UCCR (n 7) r 70.3.

10 See, for example, Badcock v Channel Seven Adelaide Pty Ltd [2006] SADC 7 (‘Badcock (No 2)’).

11 UCCR (n 7) r 142.2.

12 Ibid r 143.1.

13 Ibid r 143.2.

14 See, for example Francis v Cole [2019] SASC 179 (‘Francis’); Atkins v Susan Mary O’Toole Lawyers [2020] SADC 37 (‘Atkins’).

15 See Judiciary Act 1903 (Cth) s78; UCCR (n 7) r 25.6(2).

16 Kenny (n 2) at [13]; Cachia v Hanes (1994) 179 CLR 403, 415 (‘Cachia’); Collins v The Queen (1975) 133 CLR 120, 122.

17 Cachia (n 17).

18 Ibid 415. See also Kenny (n 2) at [23].

19 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 14(d).

20 Cachia (n 17) 415.

21 See, for example, ibid; Australian Law Reform Commission (n 3); Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Legal Aid and Access to Justice (Final Report, 8 June 2004); Liz Richardson, Genevieve Grant and Janina Boughey, The Impacts of Self-Represented Litigants on Civil and Administrative Justice: Environmental Scan of Research, Policy and Practice (Report, October 2018); Harry Woolf, Access to justice (Final Report, 1 January 1996).

22 Australian Law Reform Commission (n 3) 389; Senate Standing Committee on Legal and Constitutional Affairs (n 22) 187-95; Richardson, Grant and Boughey (n 22) 7.

23 Kenny (n 2).

24 Ibid [21] citing Woolf (n 22) 119.

25 See, for example, Australian Productivity Commission, Access to Justice Arrangements (Inquiry Report, 3 December 2014) 489-92.

26 Senate Standing Committee on Legal and Constitutional Affairs (n 22) xxx.

27 Australian Productivity Commission (n 26) 1003.

28 Ibid.

29 See ibid 1003-4; Kate Lumley and Anne Murphy (eds), Equality Before the Law Bench Book (Judicial Commission of New South Wales, 15th release, 2019) 10103.

30 Australian Productivity Commission (n 26) 48994; Richardson, Grant and Boughey (n 36) II. 31 See Emilios Kyrou, ‘Managing litigants in person’ (2013) 25(2) Judicial Officers’ Bulletin 11, 11.

32 Australian Law Dictionary (3rd ed 2018) online (definition of ‘querulant’) Oxford University Press.

33 See for example Manolakis v Henderson [2018] SADC 147. See also Australian Law Reform Commission (n 3) 386.

34 See Draoui (n 5) Annexure I, paras 45, 53.

35 See, for example, ibid [65]-[70]; Francis (n 15); Atkins (n 15).

36 For example, Draoui (n 5) [19], [72], [77], [78] and [85].

37 For example, Manolakis v Henderson [2018] SADC 147.

38 See for example Draoui v District Court of South Australia [2011] SASC 11, [5] (‘this is the third time the applicant has requested the District Court judge to disqualify himself … on the ground of apprehended bias.’).

39 Draoui (n 5).

40 Ibid [1]-[5].

41 See R v Draoui [2008] SASC 188; Draoui v The Queen [2009] HCA T78; Draoui v Police [2010] SASC 141; Draoui v District Court of South Australia & Anor [2010] SASC 151; Draoui v District Court of South Australia [2011] SASC 11; Draoui v District Court of South Australia & Anor [2011] SASCFC 15; Draoui v District Court of South Australia [2011] HCASL 186; Draoui v The Queen (No.2) [2014] SADC 103; R v Draoui [2015] SASCFC 50; Draoui v Return to Work SA [2017] SAET 135; Draoui v Return to Work SA [2019] SAET 94; Draoui v Le & Ors [2019] SASCFC 105; Draoui v Le, Then and Anor [2019] SADC 85; Draoui v Le & Anor [2019] SASC 114; Draoui v Le, Then and Cock [2019] SADC 108.

42 See Draoui (n 5) Annexure I. 43 Ibid [111].

44 Ibid [106]-[107].

45 Ibid [75], [77], [117].

46 Ibid [10], [15], [19], [41], [72], [82], [101], [113], [150], [309], [523], [543], Annexure I para 64.

47 See for example ibid [79], [85].

48 Ibid [79].

49 Castles (n 4) 238; Australian Productivity Commission (n 26) 492. For an example, see Badcock (No 1) (n 1).

50 See, for example, Badcock (No 1) (n 1).

51 Tania Sourdin and Nerida Wallace, ‘The dilemmas posed by self-represented litigants: The dark side’ (2014) 24 Journal of Judicial Administration 61, 62.

52 UCCR (n 7) r 1.5(1).

53 Australian Productivity Commission (n 26) 4945; Lumley and Murphy (n 30) 10104.

54 See, for example, Badcock (No 1) (n 1).

55 Draoui (n 5).

56 Atkins (n 15).

57 Francis (n 15).

58 Ibid [78]; Atkins (n 15) [1].

59 Francis (n 15) [87]; Atkins (n 15) [37].

60 Atkins (n 15) [42].

61 Ibid [3]; Francis (n 15) [19].

62 UCCR (n 7) r 67.2.

63 See, for example, Badcock (No 1) (n 1); Badcock (No 2) (n 11); Egan v Commonwealth Minister for Transport (1976) 14 SASR 445.

64 Badcock (No 2) (n 11).

65 Badcock (No 1) (n 1) [32].

66 Ibid [25].

67 Ibid [26].

68 Ibid [31].

69 Ibid [28].

70 Ibid [30].

71 Badcock (No 2) (n 11) [28].

72 Badcock (No 1) (n 1) [32].

73 See, for example, Australian Law Reform Commission (n 3) 390-1.

74 Castles (n 4) 238.

75 Kenny (n 2).

76 Ibid [17].

77 Ibid [23].

78 Sourdin and Wallace (n 52) 68.

79 Badcock (No 1) (n 1) [36].

80 Kenny (n 2) [25].

81 The difficulty of this task is recognised in, for example, Kenny (n 2); Hunter v Webb (unreported Federal Court, 19 July 1996); and Lumley and Murphy (n 44) 10201.

82 Hunter v Webb (n 82).

83 As was the case in Kenny (n 2).

84 See Australian Solicitors Conduct Rules 2015 (SA) r 3.1 (‘ASCR’); Kenny v Ritter (n 2) [26]; Law Society of New South Wales, Guidelines for dealing with self-represented parties in civil proceedings (Guidelines, December 2016).

85 Kenny (n 2).

86 Ibid [26].

87 Law Society of New South Wales (n 85) 3.

88 ASCR (n 85) rr 4.1.2 (duty to be honest and courteous in all dealings), 19.3 (duty to correct errors by other parties), 19.12 (duty to inform opponents if opponents make erroneous concessions), 22 (duties concerning communications with opponents), 30.1 (duty not to take unfair advantage of another person’s error), 34.1.1 (duty not to exaggerate legitimate claims, mislead, or intimidate), 34.1.3 (duty not to embarrass or frustrate another party).

89 Ibid r 30.1.

90 Castles (n 4) 237.

91 Ibid.

92 Ibid 240; Australian Productivity Commission (n 26) 641.

93 Badcock (No 1) (n 1).

94 See, for example, ‘Unbundling civil legal services’, Law Society (UK) (practice note, 4 April 2016) <https://www.lawsociety.org.uk/supportservices/advice/practice-notes/unbundling-civillegal-services/>.

95 See, for example, Federation of Law Societies of Canada, Model Code of Professional Conduct (2017) 10 (definition of ‘limited scope retainer’).

96 See ‘Unbundling Resource Center: Rules’, American Bar Association (web page) <https:// www.americanbar.org/groups/delivery_legal_ services/resources/pro_se_unbundling_ resource_center/court_rules/>.

97 Australian Productivity Commission (n 26) 646.

98 Castles (n 4) 240-1.

99 UCCR (n 7) r 25.1(2).

100 Ibid.

101 Ibid r 25.2(5).

102 See Australian Productivity Commission (n 26) 647; Castles (n 4) 242-3.

April 2021 THE BULLETIN

35

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK

CHILDREN – PARENTAL CAPACITY NOT ALWAYS IMPACTED WHERE CONCERNS HELD AS TO A CHILD’S SAFETY IN THE OTHER PARENT’S CARE

I

n Keane [2021] FamCAFC 1 (18 January, 2021) the Full Court (Alstergren CJ, McClelland DCJ & Benjamin J) dismissed an appeal from orders made for the care of a four year old, where Judge McEvoy found that the father had committed acts of domestic violence towards the mother.

Judge McEvoy ordered that the father spend supervised time with the child, which was to then increase to unsupervised time.

The mother appealed, arguing that the Court had misapplied “the Re Andrews principle” (that the mother’s caregiving capacity would be discernibly impaired by an order that the child have time with the father).

The Full Court said (from [75]): “ … [A]uthorities applying ‘the Re Andrews principle’ … [have] been expressed in a variety of ways ( … ) [80] Subsequent authorities … confirm that it is an error to assume that, in … every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. ( … ) [81] … [T]he Full Court in Marra [ed. full citation: Marra & Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)] held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is

36 THE BULLETIN April 2021

also necessary to determine whether the concerned parent’s parenting capacity will be ‘discernibly impaired’. ( … ) [111] … [A]side from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. … [H]is Honour found that the mother would seek appropriate therapy if necessary. … [T]hose findings were … open … on the … evidence … ”

PROPERTY – INTERIM ORDER COMPELLING PARTIES TO PAY MORTGAGE OUTGOINGS SET ASIDE – PROXIMITY OF THE PARTIES’ MEDIATION IRRELEVANT In Fei & Woong [2021] FamCAFC 2 (22 January, 2021) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed an appeal from an interim order made after counsel for the wife made an application for the husband to meet all mortgage payments.

The wife relied upon the husband’s income of $12,396 per week as against the wife’s income of $200 per week. Counsel for the husband contended each party had capital. The court ordered each party to be equally responsible for all mortgage payments, noting that would entail only “two to three mortgage payments” before mediation.

The wife appealed. Kent J said (from [58]): “ … [T]he … judge’s reasons … support the wife’s argument that his Honour was guided by irrelevant considerations. … [H]is Honour … highlight[ed] each party’s financial

situations in six paragraphs … [T]hereafter … is the only reference in his Honour’s reasons which could be … a consideration of the balance of convenience. ( … ) [60] … [H]is Honour was focussed more on … settlement than the consideration of the application on its merits. That view is fortified by his Honour’s reference to there only being an approximate two to three mortgage payments before the mediation, which … when coupled with the … implication of his Honour’s reasons that the parties ought reach settlement at … mediation, highlights his Honour’s error. ( … ) [63] It was the … judge’s obligation to consider the relevant law and … take into account only those considerations relevant to its proper exercise. It is not relevant … whether the … judge considered the parties should reach settlement at … mediation ( … ) [66] … [T]he wife sought to engage the jurisdiction of the court to grant injunctive relief to preserve capital … . The court was obliged to apply the applicable principles to that application. … The … judge made a … mandatory injunction which order could only be founded upon the power … under s 114. … [T]he authorities do not support any proposition … that it is legitimate to impose an injunction for the … purpose of exerting … pressure … to compromise the party’s … claim.”

PROPERTY – WIFE APPOINTED CODIRECTOR OF CORPORATE TRUSTEES TO NEUTRALISE DEBATE AS TO DISCLOSURE In Hui & Bai [2021] FamCA 6 (20 January, 2021) Hartnett J allowed a wife’s

FAMILY LAW CASE NOTES

interim application to be made co-director of entities, of which the husband was sole director, which owned commercial buildings in its capacity as trustee.

One building was worth $45 million, encumbered by a $17 million mortgage; the wife also being party to a $46.5 million personal guarantee to the ANZ bank.

The husband had been sole director of the companies for 13 years. The wife sought to be made a co-director as she alleged the husband had not made full and frank disclosure and she contended the husband had entered into dealings without prior notice, which impacted upon her claim.

The Court said (from [44]): “ … [T]he respondent would be afforded necessary transparency if she were to be appointed as a co-director of the entities … the respondent will be able to have input into commercial decisions made by the applicant solely, or in conjunction with (the property manager) … that may directly impact the value to be attributed to the entities.

The Court notes that the evidence before it … is that the appointment of the respondent as a co-director will have no adverse impact on the credit and guarantee structure of the existing facilities…. The Respondent’s exposure as a guarantor to a significant sum … also makes the need for transparency to be more pressing. …

[45] Full and frank disclosure is an ongoing obligation for each of the parties …. Significant disclosure has already been provided by the applicant to the respondent. ( … ) Now that the respondent’s position is enhanced by an

order which shall see her appointed as a co-director of those of the parties’ entities …, the debate as to what constitutes proper disclosure , and claim that it has been inadequate, should no longer be an issue. In those instances where matters remain outstanding as between the parties, they are required to act in accordance with their ongoing obligations.”

CHILDREN – MOTHER’S EVIDENCE OF VIOLENCE BETWEEN FATHER AND HIS EX-WIFE LACKED PROBATIVE VALUE AND ADMISSION WOULD WASTE TIME In England & Harrisson [2020] FamCA 1083 (18 December, 2020) Altobelli J heard a parenting case where the mother sought to relocate from Sydney to New Zealand with the parties’ 2 year old child (“X”) on an interim and final basis.

Each parent alleged that the other had perpetrated controlling violence during the relationship in the presence of X. The mother filed an affidavit from the father’s ex-wife (Ms B) who lived in the USA. Ms B’s affidavit was 24 pages long and described a history of family violence perpetrated by the father “in quite meticulous detail” ([14]). The father sought that the affidavit be struck out and removed from the court record pursuant to s 135 of the Evidence Act 1995 (Cth).

The Court said (from [15]): “ … [I]t was … submitted that Ms B’s affidavit goes to the longitudinal nature of the father’s propensity for family violence and that his violent behaviours were not confined to the … short relationship between the parties ( … )

[16] The father’s opposition to the … affidavit focused on its lack of relevance, its unfair prejudice to him, as well as the inevitable consequences of having to extend fairness to him by presenting evidence in reply to the evidence of Ms B (…)

[19] … [T]he mother seeks to use Ms B’s affidavit to establish the father’s tendency towards family violence in intimate relationships. ( … ) [20] The predictive value of evidence of behaviour in … similar situations such as intimate relationships allegedly characterised by violence can only be useful if it is incontrovertibly true that past behaviour is predictive of future behaviour. But that is not incontrovertibly true. ( … ) The Court’s impression of Ms B’s evidence is, therefore, that its probative value is low. ( … ) [26] … [T]he father has identified nine witnesses who he would need to call, in addition to this own evidence …. [H] e has foreshadowed that he may need to produce documentary evidence from Country F of up to 1000 pages … [T]he mother’s representative … had to accept that the mother could not constrain the father’s case in response to Ms B’s affidavit. ( … ) [31] … [T]he admission of Ms B’s evidence is therefore not permitted on the basis that it lacks probative value and its admission would cause or result in undue waste of time.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson, co-editor. They are accredited (in Qld and Vic respectively) as specialists in family law. B April 2021 THE BULLETIN

37

GAZING IN THE GAZETTE

3 FEB 2021 – 2 MAR 2021 ACTS PROCLAIMED Fire and Emergency Services (Miscellaneous) Amendment Act 2020 (No 8 of 2020) Commencement: 15 February 2021 Gazetted: 11 February 2021, Gazette No. 9 of 2021 Single-use and Other Plastic Products (Waste Avoidance) Act 2020 (No 27 of 2020) Commencement s 6(1)(d)-(g) and Part 3: 1 March 2022 Commencement remaining sections: 1 March 2021 Gazetted: 25 February 2021, Gazette No. 12 of 2021

ACTS ASSENTED TO COVID-19 Emergency Response (Expiry) Amendment Act 2021, No. 1 of 2021 Gazetted: 4 February 2021, Gazette No. 8 of 2021 South Australian Employment Tribunal (Costs) Amendment Act 2021, No. 2 of 2021 Gazetted: 11 February 2021, Gazette No. 9 of 2021 Statutes Amendment (National Energy Laws) (Omnibus) Act 2021, No. 3 of 2021 (amends Australian Energy Market Commission Establishment Act 2004, National Electricity (South Australia) Act 1996, National Energy Retail Law (South Australia)

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA

Act 2011 and National Gas (South Australia) Act 2008) Gazetted: 11 February 2021, Gazette No. 9 of 2021 Radiation Protection and Control Act 2021, No. 4 of 2021 (amends Environment Protection Act 1993, repeals Radiation Protection and Control Act 1982) Gazetted: 11 February 2021, Gazette No. 9 of 2021 Statutes Amendment and Repeal (Budget Measures) Act 2021, No. 5 of 2021 (amends Aged and Infirm Persons’ Property Act 1940, Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, Emergency Services Funding Act 1998, Independent Commissioner Against Corruption Act 2012, Land Acquisition Act 1969, Legislation (Fees) Act 2019, Mining Act 1971, Police Act 1998, Police Complaints and Discipline Act 2016, Public Sector Act 2009, Public Trustee Act 1995, Security and Investigation Industry Act 1995 and State Lotteries Act 1966; repeals Protective Security Act 2007) Gazetted: 25 February 2021, Gazette No. 12 of 2021 Education and Children’s Services (Miscellaneous) Amendment Act 2021, No. 6 of 2021 Gazetted: 25 February 2021, Gazette No. 12 of 2021

APPOINTMENTS Her Majesty’s Counsel in the State of South Australia, Mark Andrew Norman, appointed Senior Counsel on 17 September 2013 Emily Fleur Telfer, appointed Senior Counsel on 18 November 2016 Meredith Gwendoline Dickson, appointed Senior Counsel on 1 December 2020 Anthony Brenton Allen, appointed Senior Counsel on 2 December 2020 Todd Nathan Golding, appointed Senior Counsel on 2 December 2020 Benjamin John Doyle, appointed Senior Counsel on 2 December 2020 Kristopher Gareth Handshin, appointed Senior Counsel on 3 December 2020 Gazetted: 18 February 2021, Gazette No. 11 of 2021

RULES Supreme Court Criminal Rules 2014 Amendment No 10 Gazetted: 25 February 2021, Gazette No. 12 of 2021 Uniform Civil (No 4) Amending Rules 2021 Gazetted: 25 February 2021, Gazette No. 12 of 2021

REGULATIONS PROMULGATED (3 FEBRUARY 2021 – 2 MARCH 2021) REGULATION NAME

REG NO. DATE GAZETTED

Controlled Substances (Poisons) (Storage of Pentobarbital) Variation Regulations 2021 Forestry (Miscellaneous) Variation Regulations 2021 Fair Trading (Fuel Pricing Information) Regulations 2021 Development (Designated Day) (COVID-19) Variation Regulations 2021 Fire and Emergency Services (Miscellaneous) Variation Regulations 2021 Petroleum and Geothermal Energy (Regulated Substance) Variation Regulations 2021 Summary Offences (Custody Notification Service) (No 3) Variation Regulations 2021 Environment Protection (Waste Depot Levy) Variation Regulations 2021 Fire and Emergency Services Regulations 2021 Planning, Development and Infrastructure (General) (Planning and Development Fund) Variation Regulations 2021 Single-use and Other Plastic Products (Waste Avoidance) Regulations 2021 Mutual Recognition (South Australia) (Single-use and Other Plastic Products) Regulations 2021

9 of 2021 10 of 2021 11 of 2021 12 of 2021 13 of 2021 14 of 2021 15 of 2021 16 of 2021 17 of 2021

DISALLOWANCE OF REGULATIONS General Regulations under Planning, Development and Infrastructure Act 2016 concerning Planning and Development

38 THE BULLETIN April 2021

4 February 2021, Gazette No. 8 of 2021 4 February 2021, Gazette No. 8 of 2021 4 February 2021, Gazette No. 8 of 2021 4 February 2021, Gazette No. 8 of 2021 11 February 2021, Gazette No. 9 of 2021 11 February 2021, Gazette No. 9 of 2021 18 February 2021, Gazette No. 11 of 2021 18 February 2021, Gazette No. 11 of 2021 18 February 2021, Gazette No. 11 of 2021

18 of 2021 18 February 2021, Gazette No. 11 of 2021 19 of 2021 25 February 2021, Gazette No. 12 of 2021 20 of 2021 25 February 2021, Gazette No. 12 of 2021

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LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied.

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