The Bulletin - Law Society of SA - August Edition

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 7 – AUGUST 2020

IN THIS ISSUE

Civil liberties in times of emergency Scrutinising SA's COVID-19 laws Court ruling on Celeste Barber's firies fund

RAPID RESPONSE: WHAT CAN WE LEARN FROM RECENT EMERGENCIES?

2020 Edition

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (7) LSB(SA). ISSN 1038-6777

CONTENTS RAPID RESPONSE

FEATURES & NEWS

REGULAR COLUMNS

6 Civil liberties in the face of disaster

By Dr Michael Eburn

22 Using CourtSA to lodge civil cases and documents online

By Julie-Anne Burgess

4 From the Editor

25 Vale: Carmel Preece

30 Wellbeing & Resilience: Wellbeing strategies for challenging times

10 Scrutinising South Australia COVID-19 laws: are we up to the job? – By Dr Sarah Moulds 12 Supreme Court decision highlights pitfalls of raising money for charitable purposes – By Dr Philip Ritson 16 Common law defences of necessity & duress – By James Marcus & Stephen Ranieri 18 The impact of COVID-19 on access to legal services – By Leigh Swift, Peter Gardiakos & Tessa Cartledge 21 Staying connected to community legal need – By Amanda Stone

Executive Members President: T White President-Elect: R Sandford Vice President: J Stewart-Rattray Vice President: E Shaw Treasurer: F Bell Immediate Past President: A Nikolovski Council Member: S Hooper Council Member: V Gilliland Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich F Bell M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo 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

26 Silence in court: The case of the coveted magpie – By Michelle Slatter 28 The enforcement of Chinese monetary judgments by Australian courts – By Mark Giddings 31 It’s time to raise the age of criminal responsibility – By Michael Esposito 32

ral Histories Profile: John Mansfield O AM QC

35 New legal appointments announced

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) Geoff Thomas gthomas@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

5 President’s Message 27 Members on the Move

34 From the Conduct Commissioner: Overcharging complaints – what has changed? – By Greg May 36 Risk Watch: Lawyers’ paramount duty to the Court: Greater risks for probono/no-win-no-fee work?

By Grant Feary 38

ax Files: paying tax on profit-making T transactions – By Andrew Shaw

40 Bookshelf 41 Family Law Case Notes

By Rob Glade-Wright 43 Gazing in the Gazette

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington T Shueard 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.

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FROM THE EDITOR

Lessons to be learnt from emergencies MICHAEL ESPOSITO, EDITOR

T

his is the first column I have written from my CBD office since February, and it has been somewhat surreal observing a bustling Rundle Mall, packed food courts and shops brimming with customers.

When juxtaposed against images of deserted Melbourne streets, I can’t help but feel uneasy that a “return to normal” attitude appears to have pervaded South Australia when the COVID-19 virus is still so virulent that it is forcing lockdowns just over the border.

The situation reinforces how much there is to be grateful for in this State.

The State Government has spent most of the year dealing with emergencies, firstly in the in the form of raging bushfires, and then trying to combat a deadly virus, and while no fires are burning and the worst of the pandemic appears to be behind us (for now), the repercussions of these disasters will be felt for years to come.

This edition of the Bulletin explores how we respond to emergency situations and what lessons can be learnt from the incredibly challenging past few months.

Dr Michael Eburn, a prolific scholar on emergency laws, examines the emergency powers that Federal and State Governments invoked during the pandemic, and highlighted that many of the extraordinary powers they used can also be wielded in other types of emergencies.

He warns that Governments should be cautious about flexing their legal muscle in the wake of emergencies and instead continue to prioritise policies that encourage cooperation rather than force compliance.

One mechanism to keep the Executive arm of the Government accountable for its use of emergency powers is a Parliamentary Committee that casts a watchful eye over Government decisions

4 THE BULLETIN August 2020

which impact the rights and freedoms of the public. Dr Sarah Moulds’ article explores the role and capacity of the recently formed special select COVID-19 Committee to ensure proportionality of response with regards to the execution of emergency powers, and urges the public to voice any concerns they may have about any restrictions imposed upon them.

Dr Philip Ritson analyses a Federal Court decision which ultimately directed that all of the $50 million raised by comedian Celeste Barber via a crowd funding app be directed to the NSW Rural Fire Service, despite MS Barber’s desire to have the money distributed among a number of State emergency services. It’s a both a heartening tale of the community coming together to support our first responders, and a cautionary tale about the importance of understanding the legal implications before embarking on a wellmeaning campaign.

The fascinating Barber case illustrates an often unavoidable conundrum with regards to responding to emergencies – the compulsion to respond urgently to a situation means the consequences of such responses are not appreciated until well after the dust has settled.

There is even a common law recognition of this quandary with regards to committing criminal conduct in the face of an emergency. As James Marcus and Stephen Ranieri explain in this edition, the defences of necessity and duress are available to those accused with a criminal offence.

Emergencies, by their nature, are unpredictable and potentially catastrophic, and require quick and decisive action.

The best way to deal with them is to learn from the successes and failures of past emergency responses and be as well prepared as possible for when the next one strikes. B

IN THIS ISSUE

12

CROWDFUNDING FOR CHARITY Why Celeste Barber could not allocate the funds she raised as she wanted

16

DESPERATE MEASURES Defences to criminal conduct in emergency situations

22

INTERNATIONAL DISPUTES The enforcement of Chinese monetary judgments

PRESIDENT’S MESSAGE

Active steps being taken to address harassment, bullying & discrimination TIM WHITE, PRESIDENT

T

here have been considerable negative comments in the media about the profession of late. I am sure, like me, you are all disappointed when you read or hear these detrimental public comments being made about our profession. Lawyers are held to a high standard of conduct and rightly so.

The allegations against Dyson Heydon AC QC have been reported or referenced in the media almost daily over the last month or more. The extent of sexual harassment in the legal profession has been documented in multiple surveys conducted by a variety of international and Australian based organisations over recent years. Some of those surveys include ones undertaken by the Law Society of SA, International Bar Association, and Law Council of Australia (LCA), as well as the Human Rights Commission’s inquiry in to sexual harassment in all employment sectors across Australia. The findings of all of them are clear that sexual harassment exists in the legal profession.

What are we doing about it as a profession? Ongoing compulsory education and training will be a key to continuing to alter people’s conduct in the workplace. Many initiatives, programmes and guidelines have been implemented, but more work locally and nationally remains to be done.

This of course not only impacts on those currently working in the law but also affects those young students at schools who are considering what career path they wish to take. Don’t we want young South Australians aspiring to study law?

The Society has implemented various initiatives to assist with preventing bullying, discrimination and harassment occurring in our local profession.

Education and training is an ongoing priority and a focus of the Society and your Council. I thought it would be helpful if you were informed and reminded about just some of the initiatives undertaken over the last couple of years alone by the Society on these aspects. In the last year or so it has included the following:

• Ongoing requests to LPEAC that bullying, discrimination and harassment be mandated as a compulsory CPD unit, to be completed annually. We have recently been informally advised that LPEAC has agreed to this request and will now consider necessary amendments to its Rules.

• Produced and adopted a Policy relating to bullying, discrimination and harassment in August 2018.

• Conducted an extensive survey on bullying, discrimination and harassment of the profession in August 2018.

• Formed a bullying, discrimination and harassment working Group in September 2018.

• Developed and distributed Guidelines on bullying, discrimination and harassment, including a No Tolerance statement, in November 2019.

• Created a section of the Society webpage specifically on bullying, discrimination and harassment, which provides detailed information, resources and contact details for external agencies.

• Issued multiple media releases and public media statements condemning bullying, discrimination and harassment and promoting workplace cultures that are inclusive and respectful to all.

• Issued numerous updates and notes to the profession via InBrief, Advocacy Notes and the Bulletin.

• Conducted many CPDs, including having presenters and experts external to the profession.

• Discussed with heads of jurisdiction, the Attorney General and the Bar Association measures to address bullying, discrimination and harassment in the profession.

• Investigated and made submissions on the Modern Award for early career lawyers in private practice, which is being investigated by the LCA. • Included specific actions relating to bullying, discrimination and harassment to be taken in the Society’s Strategic Plan.

• Established various support services including, the Young Lawyers’ Support Service, the Professional Advice Service and the LawCare Counselling Service.

• Provided submissions to the LCA, including to the LCA discussion paper on addressing sexual harassment in the legal profession in August 2019.

• Voted in support of the LCA’s current extensive work on this in a recent directors meeting in June 2020.

• Participated in the LCA sexual harassment roundtable discussion in July 2020.

• Published the recent statements and media releases by the LCA, which also indicate the ongoing work being undertaken.

In the immediate future the Society is also working closely with the LCA, which is taking a National approach to bring about change and have consistency of approach across the profession. Some of the measures which were agreed upon at the LCA’s recent RoundTable include: • Advocating the proposed amendments to the Sex Discrimination Act • Advocating key recommendations of the Australian Human Rights Commission’s Respect@Work report • Progressing a number of measures to drive cultural change in the legal profession, including the facilitation of uniform policies and approaches to sexual harassment, training, and further consideration of the relevant professional conduct rules.

There remains many additional improvements that our great profession can make with regards to recognising, eliminating and responding to bullying, discrimination and harassment in the workplace. I thought these words of psychiatrist R.D Laing summarise the horizon ahead of us all well: “The range of what we think and do is limited by what we fail to notice. And because we fail to notice that we fail to notice there is little we can do to change until we notice how failing to notice shapes our thoughts and deeds.” B August 2020 THE BULLETIN

5

EMERGENCY POWERS

CIVIL LIBERTIES IN THE FACE OF DISASTER DR MICHAEL EBURN, HONORARY ASSOCIATE PROFESSOR ANU COLLEGE OF LAW

T

he 2020 COVID-19 Pandemic has made clear the fragile nature of many of the liberties we take for granted.

This article will briefly review what we know about the power of government to impose restrictions during a public health emergency and then compare and contrast the use of emergency during more traditional emergencies such as fire and flood. I argue that traditional emergency managers should not be tempted to try and copy the use of directions backed with the threat of force and penalties to ensure compliance but should, instead, continue to focus on community education and building resilience.

health services, in particular, access to aged care health facilities.3 The power to make these declarations and orders has not come out of the blue. Even if there has had to be some legislative change,4 the presence of the Emergency Management Act and the Public Health Act demonstrate planning for an emergency. Legislation was in place with the means to empower relevant authorities. When the pandemic came, they had the resources required to act. One can only imagine the health and political consequences if governments had failed to act to limit the disease because they did not have plans and legislation in place and had to rush through legislation.

THE PANDEMIC

OTHER EMERGENCIES

A unique feature of the pandemic response has been the lead taken by the Commonwealth. This crisis has required actions that are relevant to the Commonwealth’s responsibilities for “trade and commerce with other countries…”, “quarantine”, “immigration and emigration”, and “external affairs”.1 The need for economic stimulus and protection for those that have lost jobs also trigger the Commonwealth’s power to provide allowances and social security.2 Even though the Commonwealth has appeared to lead the response, the heavy lifting on domestic restrictions has necessarily been left to the states and territories.

In South Australia, orders have been made under the Emergency Management Act and the Public Health Act 2011 (SA) to restrict movement, public gatherings and

The powers that have been exercised, particularly those under the Emergency Management Act are not unique for COVID-19 or pandemics. The Emergency Management Act can apply in all manner of emergencies. An emergency is: … an event (whether occurring in the State, outside the State or in and outside the State) that causes, or threatens to cause— a. the death of, or injury or other damage to the health of, any person; or b. the destruction of, or damage to, any property; or c. a disruption to essential services or to services usually enjoyed by the community; or d. harm to the environment, or to flora or fauna;5 An emergency may be declared to be a “major incident”, a “major emergency”

6 THE BULLETIN August 2020

or a “disaster”6 depending on the likely scale of its impact and the capacity of the emergency management agencies to cope with that impact.

In response to a declared emergency the State Coordinator or an officer authorised by him or her may take action including taking control of an area including private buildings and assets, causing people to be removed. He or she may direct or prohibit the movement of persons, animals or vehicles, require people to be isolated and undergo decontamination, direct a person to undergo medical observation, examination or treatment (including preventative treatment), require people to stop work or close premises and cut off the supply of electricity, gas or water to the affected area.7 That is an extensive list of power that can have dramatic consequences This sort of authority is not limited to declared emergencies. The officer in charge of the response by the Metropolitan or Country Fire Service or the State Emergency Service to a fire, flood or other emergency, has similar powers.8 Again, the presence of legislation to authorise such action represents good planning, ensuring that agencies have the powers they need and can plan for and practice their exercise. Some may be surprised that the powers are so widespread and can be exercised by officers down to brigade or unit level but it is the first responding fire brigade or SES unit that must try and make sense of the scene at any emergency.

EMERGENCY POWERS

COMPARE AND CONTRAST What distinguishes the COVID-19 response from other emergencies is the widespread use of orders and declarations with the threat of force and legal enforcement for non-compliance. That is, I suggest, unusual in the fire and emergency services sector even though the legislation does provide for criminal penalties for non-compliance and that reasonable force may be used to secure compliance. In what follows I suggest some possible reasons for that, noting that this is speculation and not supported by research or evidence.

Most people won’t need a lot of persuasion to evacuate if they live in a

eCon

metropolitan area and the Metropolitan Fire Brigade (the MFB) advise them to evacuate because an apartment in their block, or the house next door is on fire. They will be able to see and hear the fire and selfinterest would suggest taking the action recommended, if not directed, by the MFB. For brigades in the Country Fire Service (the CFS) the situation is not so clear. Warnings may relate to fires that are yet some distance away so that people may prefer to ‘wait and see’. Prior to the 2009 Black Saturday bushfires in Victoria, the consensus advice was that well prepared properties can be defended.

People should either ‘prepare, stay and

defend or leave early’ on days of severe fire weather – what became known as ‘stay or go’. That simple phrase – ‘stay or go’ – was subject to criticism by the 2009 Victorian Bushfires Royal Commission and that has led to a shift in response agencies to encourage everyone to leave particularly on days of catastrophic fire weather. But it is still the case that homes can be defended, and people do want to stay. People can be ordered to evacuate but enforcing that is difficult. Having firefighters or police forcibly removing people from their property takes away resources from firefighting and other aspects of the emergency response.

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EMERGENCY POWERS

Following fires in Western Australia, former Federal Police Commissioner Mick Keelty queried the measure of success in firefighting. No lives were lost because of an active evacuation policy but more homes would have been saved if people had been allowed to stay and defend.

Requiring people to leave was inconsistent with the national policy on developing resilient communities as it did not allow people to assess their own risk and to take responsibility for their own risk.9 In 2019-2020 during bushfires across all of eastern Australia (including South Australia) the NSW Rural Fire Service “ordered” the evacuation of areas of the NSW south coast. In law however these were not orders, but an advice or request.10 Fire and emergency services have extensive powers that are important at the scene – to close a road at a fire or accident and to require people to leave an immediate danger area – but they are, I suggest, less used during major emergencies. In those cases the response aims to be cooperative and negotiated, ideally before the event.

Local emergency management plans as

8 THE BULLETIN August 2020

well as community education and training to enhance community resilience to allow people to make their own, but informed decision has been the approach of the fire and emergency services community.

Orders and the threat of force are unlikely to be effective and are inconsistent with the policy goals set out in the National Strategy for Disaster Resilience.11

CONCLUSION Citizens and some emergency managers may be surprised to learn that the sort of powers that have been used during COVID-19 can be used during other emergencies, and some may be tempted to use those powers – to flex their legal muscle – in light of the success and compliance during COVID-19. It is beyond the scope of this paper to fully explore the differences between the disasters, but it is hoped that fire and other emergency managers, informed by years of experience and well established research12 will not move from cooperative responses to a policy of direction and control backed with the threat of force or fines. B

Endnotes 1 Australian Constitution ss 51(i), (ix), (xxvii) and (xxix).

2 Ibid s 51(xxiiiA).

3 Details of the Emergency Declaration and associated Directions can be found online at https://www.covid-19.sa.gov.au/emergencydeclarations.

4 See COVID-19 Emergency Response Act 2020 (SA); COVID-19 Emergency Response (Bail) Amendment Act 2020 (SA); COVID-19 Emergency Response (Further Measures) Amendment Act 2020 (SA).

5 Emergency Management Act 2004 (SA) s 3 (definition of ‘emergency’).

6 Ibid ss 21, 22 and 23.

7 Ibid s 25.

8 Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118.

9 M.J. Keelty, A Shared Responsibility: The Report of the Perth Hills Bushfire February 2011 Review (Western Australia, 2011).

10 Michael Eburn, ‘NSW Tourist Exclusion Zone – advice or direction?’ (January 9, 2020) https:// emergencylaw.wordpress.com/2020/01/09/nswtourist-exclusion-zone-advice-or-direction/.

11 https://www.homeaffairs.gov.au/emergency/ files/national-strategy-disaster-resilience.pdf 12 Led first by the Bushfire Cooperative Research Centre and then the Bushfire and Natural Hazards Cooperative Research Centre. The author discloses that he has been the recipient of research funding from both these Research Centres.

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EMERGENCY LAWS

Scrutinising South Australia's COVID-19 laws: are we up to the job?

DR SARAH MOULDS, SENIOR LECTURER IN LAW, UNIVERSITY OF SOUTH AUSTRALIA

I

n response to the complex and potentially devastating threat posed by COVID-19, Parliaments around Australia have transferred unprecedented powers to executive governments and their agencies, 1 often with the full support of the communities they represent. In South Australia, we have seen the provision of broad discretionary powers to law enforcement officers to enforce physical distancing measures and quarantine,2 new powers for authorised officers to detain vulnerable people for weeks at a time with only limited access to review3, and the potential for police commissioners and their officers to break the law if that is what it takes to respond to the health crisis.4 We have also seen unprecedented changes to commercial and residential leases and to a range of other statutory provisions, including those relating to the execution of legal documents. At the federal level, we have seen bans to prevent Australians from leaving the country,5 the Minister for Health being vested with the power to ‘issue any direction to any person’ in order to ‘prevent or control’ the spread of COVID-19 in Australia6 and the Minister for Families and Social Services granted the power to change “any qualification criteria” and “any payment rate” for any social security payment without seeking approval from Parliament.7 By any measure, this constitutes an extraordinary transfer of power away from the parliament towards the executive.

Perhaps these extraordinary powers were and will continue to be necessary. Perhaps their potential impact on the rights of citizens and on important oversight role the parliament plays within our constitutional democracy is proportionate to the risk posed by COVID-19 to the lives, health and economic security of our community. Legislators did not pause long to contemplate those questions. These

10 THE BULLETIN August 2020

laws were passed within days,8 sometimes hours,9 with limited safeguards and a heavy reliance on sunsetting provisions some of which are dependent on the pandemic being officially called to an end.

In South Australia, the opportunity for independent scrutiny of the necessity, proportionality and unintended impacts of these laws was particularly limited. Given the speed at which the laws were introduced and passed, and the considerable delegation of law making power to regulations and directives, it was extremely difficult even for those of us who are legally trained to get a handle on what laws were being passed when, and what impact they would have on our lives. In addition, South Australia lacks a number of the structural features present in other jurisdictions that are designed to explain the key features of legislation (such as Explanatory Memoranda) and to highlight their rights impacts (such as Scrutiny of Bills Committees or Human Rights Committees). 10 Our passionate and hardworking non-government sector was generally blind sided by the pace and complexity of these laws, particularly given the other pressing and immediate demands on their attention and services as a result of the pandemic.

In an attempt to fill this scrutiny gap, the South Australian Parliament established a special select COVID-19 Committee11 with similarly broad terms of reference and wide powers to call for public submissions and request information from government. This in fact has become one of the only independent platforms from which to scrutinise the South Australia Government’s response to the COVID-19 pandemic, and it is not yet clear whether the Committee has the capacity to influence the outcome of a policy proposal or fate of a legislative provision.12 After all, at the end of the day, the most a parliamentary committee can do is publish

a report, make recommendations and sometimes, move to disallow a regulation.

As we approach the sunset expiry of many of the emergency provisions enacted in South Australia in response to the pandemic, it has become more important than ever to ensure that some independent body is looking carefully at (a) whether the emergency laws are still needed (b) whether their impact on other public interests or individual rights is justified and proportionate and (c) how and when they are being used in practice. In the context of the South Australian system with its limited structural safeguards for rights protection or legislative security, the legal profession, along with other aspects of civil society, carry a heavy burden when it comes to ‘sounding the alarm’ about the impact and application of these laws.

For example, is it appropriate that managers of residential care facilities continue to have powers to detain people with mental incapacities for up to 28 days? Is it fair for landlords to be barred from increasing rents until September 2020? Would it be useful to preserve the Tribunal’s powers to make orders to avoid homelessness when resolving residential tenancies disputes? Are we comfortable with the Commissioner for Police having very broad powers to issue directives with penalties for non-compliance? How many fines have been issued in response to breaches of social distancing directives, and have any particular communities been targeted? Should the usual requirements around time frames and finalising legal documents be reinstated before the pandemic is officially declared over? These are the critical questions that need to be explored by the COVID-19 Committee and that Committee will depend upon submissions from the public to attract their attention to these types of details.

At the end of the day, the capacity of

EMERGENCY LAWS

special select COVID-19 Committees to have an impact on South Australian law is hard to predict. On the one hand, the COVID-19 Committee could struggle to clearly articulate the scrutiny criteria to be applied to their oversight task or be hamstrung by a lack of adequate resourcing, technical analysis or access to Secretariat expertise. On the other hand, the exceptional political and policy circumstances posed by the COVID-19 pandemic could provide the opportunity for the Committee to experiment with new ways of conducting parliamentary rights scrutiny and new ways of engaging experts, community members and government agencies in its work.

It is too early to see how all of these factors will play out. It may take years to evaluate their role and influence. But it is clear from the mere establishment of these committees that rather than looking to the courts to keep watch on extraordinary executive power, we want groups within

the parliament to play that role. This puts the onus on us to raise the alarm about these extraordinary laws, even if we cannot attend Parliament House in person. B Endnotes 1 Andrew Edgar, Law-making in a crisis: Commonwealth and NSW coronavirus regulations, on AUSPUBLAW (30 March 2020) https:// auspublaw.org/2020/03/law-making-in-a-crisis:commonwealth-and-nsw-coronavirus-regulations.

2 See e.g. Emergency Management (Gatherings No 2) (COVID-19) Direction 2020 (SA).

3 See e.g. COVID-19 Emergency Response Act 2020 (SA) Schedule 1.

4 See e.g COVID-19 Emergency Response Act 2020 (SA) Schedule 2.

5 Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) (25 March 2020).

6 Biosecurity Act 2015 (Cth) s478.

7 Coronavirus Economic Response Package Omnibus Bill 2020, Schedule of the amendment made by the Senate (22 March 2020) https://parlinfo.aph.gov.au/parlInfo/search/ display/display.w3p;query=Id%3A%22legislation

%2Fsched%2Fr6521_sched_473e609d-0c5c46e1-bdea-a8eacea648ca%22https:/parlinfo. aph.gov.au/parlInfo/search/display/display. w3p;query=Id%3A%22legislation%2Fsched %2Fr6521_sched_473e609d-0c5c-46e1-bdeaa8eacea648ca%22.

8 Howard Maclean and Karen Elphick, COVID-19 Human Biosecurity Emergency Declaration Explainer, Parliamentary Library, Canberra, (19 March 2020, updated 27 March 2020) <https:// www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_ Library/FlagPost/2020/March/COVID-19_ Biosecurity_Emergency_Declaration>.

9 See e.g. COVID-19 Emergency Response Act 2020 (SA).

10 Sarah Moulds and Laura Grenfell, ‘Youth treatment orders bill highlights ad hoc approach to rights-scrutiny of bills’, (2019) 41(4) Law Society of South Australia Bulletin, 36.

11 This Committee was appointed on 8 April 2020 by the Legislative Council. See Parliament of South Australia, Committees Website, ‘Committee Details’ https://www.parliament. sa.gov.au/en/Committees/Committees-Detail (accessed 24 April 2020).

12 See e.g. John Halligan, ‘Parliamentary Committee Roles in Facilitating Public Policy at the Commonwealth Level’ (2008) 23(2) Australasian Parliamentary Review 135.

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CHARITABLE TRUSTS

Supreme Court decision highlights the pitfalls of raising money for charitable purposes DR PHILIP RITSON, COLLEGE OF BUSINESS, GOVERNMENT AND LAW, FLINDERS UNIVERSITY

O

n 25 May, 2020, Justice Slattery of the New South Wales Supreme Court delivered a judicial advice In the matter of the New South Wales Rural Fire Service & Brigades Donations Fund; Application of Macdonald & Or.1 That advice responded to an application by the trustees of the NSW Rural Fire Service & Brigades Donations Fund (RFS Fund) for the Court’s advice or direction pursuant to s 63 the Trustee Act 1925 (NSW). The purpose of s 63 of the Trustee Act is to protect trustees.

Slattery J explained that should a trustee act “in accordance with the Court’s ‘opinion, advice or direction’ ... the trustee is deemed to have discharged the trustee’s duty as trustee in the subject matter of the application.”2 What the RFS Fund’s trustees wanted to know was whether they could honour the wishes of many of those who donated to the Fund in the wake of the 2019-2020 bushfire crisis. Slattery J’s answer to that question was essentially no.

BACKGROUND During the spring and summer of 2019-2020, Eastern Australia suffered some of the worst bushfires in recorded history. Fire destroyed thousands of homes and properties and “countless” animals (both wildlife and livestock) lost their lives.

In total, 33 Australians died, including 14 firefighters, whilst many others sustained physical and psychological injuries.3 On or about 3 January, 2020, the Australian comedian and celebrity Celeste Barber made an appeal on Facebook for donations to assist those affected by the bushfires. Ms Barber wrote, “Please help anyway you can. This is terrifying.”4 The appeal turned out to be a resounding success. Utilising the services of PayPal Giving Fund Australia, Ms Barber’s appeal raised around $50 million for her

12 THE BULLETIN August 2020

nominated charity, the RFS Fund. Ms Barber nominated the RFS Fund primarily because she never expected the appeal to generate as much as it did. Consequently, she did not set up a charitable trust of her own to distribute funds raised. However, posts on Ms Barber’s Facebook page indicated many of those who donated did not want their money spent in New South Wales exclusively. In addition, others wanted their money applied for purposes (animal welfare, rebuilding rural communities, assistance to injured and traumatised firefighters and the like) that potentially fell outside the ambit of the RFS Fund’s trust deed.

The appeal’s success put Ms Barber and the RFS Fund’s trustees in an invidious position. Fifty million dollars is a lot of money and the desires expressed by those who donated it were wideranging and diverse. Unfortunately for all concerned however, Ms Barber did nominate the RFS Fund as the appeal’s intended recipient and the RFS Fund’s trust deed appeared to place severe restrictions on what it could do with the money raised. This is why the trustees made their application to the Supreme Court. The trustees wanted to know if they could resolve their dilemma by: 1. paying money to other charities or rural fire services, whether in New South Wales or other Australian States or Territories, to assist in providing relief to persons and animals affected by bushfires; 2. setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting; 3. providing: a. physical health training and resources,

b. mental health training and resources, or c. trauma counselling services, to volunteer firefighters (as defined in Rural Fires Act,[5] s 8), who require them in connection with performing the functions of the New South Wales Rural Fire Service, as defined by Rural Fires Act, s 9; or 4. setting up or contributing to a fund to meet the costs for volunteer rural firefighters, as defined in Rural Fires Act, s 8, to attend and complete courses that improve skills related to the volunteer-based fire and emergency services activities of the brigades, established under the Rural Fires Act.6

CHARITABLE TRUSTS

that money had become an irrelevance by this stage. Slattery J noted: The various public and perhaps private statements made by Ms Barber or any of the donors do not bind the [RFS Fund’s] trustees’ application of the funds that they have received from the PayPal Giving Fund. The terms of the RFS Trust Deed that establishes the RFS Fund binds the trustees.9 Clause 2.3 of the RFS Fund’s trust deed states:

DECISION The donors’ money actually passed through two trusts. The first trust was the PayPal Giving Fund. When donors made their payment to PayPal, it held those donations on trust where the payment became subject to the PayPal Giving Fund’s trust deed and any binding commitments entered into by this Fund. Whilst this trust deed and those commitments accord the PayPal Giving Fund’s trustees some discretion as to which ‘Eligible Charity’ they might ultimately direct a donation to, in this case there should have been in little doubt the donors’ minds that the recommended (or intended) destination for their donation would be the RFS Fund.

Slattery J explained: Each of the donors made a payment to the PayPal Giving Fund by way of an internet

facility with published terms that stated the effect of the donation. This is so despite what the donors may have hoped or intended might be done with the money. The donors should be taken to have intended to make the payment to the PayPal Giving Fund and should be taken to have intended that it be received according to the published terms.7 When PayPal passed the money onto the RFS Fund, therefore, it did so in compliance with what Slattery J characterised as “a binding agreement” between the donor and PayPal that the RFS Fund would be the ultimate recipient of the donation.8 Once PayPal forwarded the money collected onto the RFS Fund it became subject to the RFS Fund’s trust deed. Any wishes Ms Barber or the donors expressed as to what the RFS Fund should do with

Purpose of Trust The purpose of the Trust is to pay or apply the income from the Trust Fund, and such parts of the capital from the Trust Fund as the Trustees at any time and from time to time think fit as follows: a. to or for the Brigades in order to enable or assist them to meet the costs of purchasing and maintaining fire-fighting equipment and facilities, providing training and resources and/ or to otherwise meet the administrative expenses of the Brigades which are associated with their volunteer-based fire and emergency service activities; b. for Authorised Investments which are consistent with carrying out the purpose in paragraph (a) above; c. to meet the reasonable costs of the current and continuing operation and management of the Trust.10 Slattery J observed, “The purpose of the RFS Fund is achieved through the maintenance of a ‘Gift Fund.’” Clause 3.3 of the Trust Deed places the following limits on the use of the Gift Fund.

Limits on use of Gift Fund The Trustees must use the following only for the Purpose of the Trust: a. all gifts and contributions made to the Gift Fund; August 2020 THE BULLETIN

13

CHARITABLE TRUSTS

b. any money or Property received by the Trustees in connection with those gifts and contributions.

No payments from or distributions of the Gift Fund may be made directly or indirectly by the Trustees at any time otherwise than in accordance with this Deed.11 Ultimately, the interpretation of clauses 2.3 and 3.3 determined the outcome in this matter.

Slattery J consulted the Rural Fires Act to flesh out the meaning of clause 2.3(a) of the RFS Fund’s trust deed. He conceded that the RFS Fund’s primary purpose was largely preventative rather than ameliorative.

The language of clause 2.3 itself and the defined functions of “brigades” under the Rural Fires Act create their own limits on what payments the trustees can make in this direction. The trustees submit, these purposes are generally not directed to ... ameliorating the consequences of fires. To the extent Ms Barber identified using the money for the purpose of preventing future fires and resourcing the brigades, to that end, the purposes are permissible. But purposes which are directed to ameliorating the consequences of the fires, are more problematic.12 Slattery J went on to note: The trust purposes do, importantly, include payments to brigades established under the Rural Fires Act ‘to enable or assist them to meet the costs of providing ... resources.” In the Court’s view, “resources” includes human as well as financial resources and refers to more than physical items such as “fire-fighting equipment and facilities.”13 This inclusion of firefighters within the meaning of clause 2.3(a)’s use of the word “resources” allowed Slattery J to respond to the four questions posed by the RFS Fund’s trustees as follows: • paying money to other charities or rural fire services, whether in NSW or the other Australian States and Territories, to assist in providing relief to persons

14 THE BULLETIN August 2020

and animals affected by bushfires.

Answer: No. • setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting.

Answer: Yes. • Providing physical health training and resources; mental health training and resources; or trauma counselling services to volunteer firefighters as defined in s 8 of the Rural Fires Act, who require them in connection with performing the functions of the NSW Rural Fire Service, as defined by s 9 of the Rural Fires Act. Answer: Yes. • setting up or contributing to a fund to meet the costs for volunteer rural firefighters (as defined in s 8 of the Rural Fires Act) to attend and complete courses that improve skills related to the volunteer-based fire and emergency service activities of the Brigades, as defined in clause 1.1 of the RFS Trust Deed.

Answer: Yes.14 Slattery J concluded: Some donors may have intended or hoped that the money they donated would be used for purposes beyond those which the Court has advised are permissible. Despite the trustees’ wish to honour those intentions or hopes the law provides principles that ensure a degree of certainty in the application of trust funds including charitable trust funds and the Court has applied these principles in giving its advice in these reasons.15

CONCLUSION This matter illustrates the problems that can arise when a publicly spirited individual acts spontaneously in response to a disaster and decides to help by launching an appeal.

No doubt, it would have been better if Ms Barber sought legal advice about the RFS Fund’s trust deed before launching her appeal. Nevertheless, her sense of urgency precluded such a course of action and even she could not have foreseen her

appeal would generate as much as it did.

Consequently, there is little reason to believe a similar confusion over the suitability of an appeal’s nominated charity could not arise either inside or outside New South Wales in the future. If such confusion does arise, most jurisdictions (South Australia included) accord the trustees of the charitable trust nominated the right to apply to a court for directions to resolve “any reasonable doubt” that might arise as to their trust’s purposes.16 Perhaps the most significant aspect of the decision is the confirmation that ultimately charitable trusts remain bound by the terms their trust deeds. Trusts are common in the charitable sector and whilst their trust deeds might frustrate their donors’ intentions on occasion, those deeds play an important role in a charitable trust’s governance by preventing misappropriation. Trust deeds define the purposes for which the trustees can expend the funds entrusted to them. In so doing, they preclude other purposes.

This act of preclusion stops the trustees applying those funds for whatever purpose they, wealthy donors or anyone else in a position to exert an influence over them see fit. The courts, therefore, must enforce these trust deeds to ensure charitable trusts pursue their legitimate purposes. B Endnotes 1 [2020] NSWSC 604 (25 May 2020).

2 Ibid at [7].

3 Ibid at [14].

4 Ibid at [15].

5 1997 (NSW).

6 Idid at [9].

7 In the matter of the New South Wales Rural Fire Service & Brigades Donations Fund (n 2) at [58].

8 Ibid at [29].

9 Ibid at [60].

10 Ibid at [38].

11 Ibid at [40].

12 Ibid at [72].

13 Ibid at [73].

14 Ibid at [83].

15 Ibid at [84].

16 H. A. J. Ford and I. J. Hardingham, Trusts: Commentary and Materials (Law Book Company, 6th ed, 1990) 641. See: Trustee Act 1936 (SA) s 91 for example.

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EMERGENCIES

CAN AN EMERGENCY EVER JUSTIFY CRIMINAL CONDUCT? THE COMMON LAW DEFENCES OF NECESSITY AND DURESS JAMES MARCUS, BARRISTER, LEN KING CHAMBERS AND STEPHEN RANIERI, SOLICITOR, CRIMINAL LAW COMMITTEE

O

ne of the underlying philosophies of the criminal law is the protection of the person, their property, and for the regulation of the running of society to prescribe the outer limits of acceptable conduct within a just and democratic society. Laws may ban specific actions such as assaulting others or stealing their property. Laws can control how one may carry out actions such as through the Australian Road Rules or the Corporations Act. Laws can set limits such as fish bag limits and, in some circumstances, compel action such as voting.

However, there exist many circumstances when the commission of a prohibited act or the failure to carry out a compelled act does not amount to a crime. Boxers can lawfully agree to fight, trespassers can be evicted with force, political protestors can be offensive and, in certain circumstances, other overtly criminal acts can be committed in an emergency.

The common law has long recognised criminal conduct may be excused in circumstances where an accused person is faced with a sudden and extreme emergency or faced with serious threats of harm from a third party. In South Australia the respective defences of necessity and duress remain available as a complete defence to a person charged with any statutory or common law offence, with the exception of murder and in the case of duress also treason.

Necessity has been described as having

16 THE BULLETIN August 2020

a â&#x20AC;&#x153;tenuous existenceâ&#x20AC;? in our common law,1 the availability of which is subject to strict application and only in limited circumstances.2 The defence rests upon the premise that strict obedience to the criminal law may not be expected in certain circumstances. As with most defences, once raised by an accused person, the prosecution must disprove the defence beyond reasonable doubt.

The elements of necessity were recently stated by the Court of Criminal Appeal in Bayley v Police. To avail oneself of the benefit of the defence an accused person must believe on reasonable grounds the commission of the crime was necessary in all the circumstances in order to remove a threat of death or serious injury to themselves or another. The test has both objective and subjective elements: 1. It must be reasonably possible the defendant believed on reasonable grounds there was a threat of death or serious injury, to themselves or another, and the commission of the offence was necessary to remove the threat. Viewed objectively there must have been no reasonable alternative course of action open to the defendant.

2. The defendant must honestly believe what they did was necessary to avoid the threatened peril. This will not be met if the conduct was disproportionate to the peril. A response is not proportionate if there are reasonable grounds for believing there were alternative (noncriminal) courses of action available.

3. The response must be proportionate to the danger and cannot go further.

In other words, the offence committed cannot be worse than the offence avoided.

4. The threat of peril must be imminent and operative in the mind of the defendant.

The defence of duress is at heart a variant of the defence of necessity, that is the criminal act was necessary to avoid the threat of death or serious injury to themselves or another arising from a person. The defence exists at common law and even in jurisdictions in which the criminal law has been codified. 3 As with necessity, the defence of duress is available to both statutory and common law offences. To avail oneself of the defence the defendant must apprehend a threat and through the threat be induced to engage in a criminal act. However, the threat must not arise as a consequence of voluntary association with criminals. The classic statement of the defence appears in R v Hurley, and again contains objective and subjective elements:4 1. The accused was required to do the charged act under threat or death or grievous bodily harm.

2. The threat is such that a person of ordinary firmness would likely yield to the threat.

3. The threat was present and imminent.

4. The defendant reasonably apprehended the threat would be carried out.

EMERGENCIES

5. The threat induced the defendant to commit the offence.

6. The crime was not murder or “any other crime so heinous as to be excepted from the doctrine”.

7. The defendant did not expose himself to its application. And, 8. The defendant had no means to safely prevent the execution of the threat.

Whilst there remains some debate over whether duress applies only to the criminal act demanded by the source of the threat, or some other equivalent or lesser offence, it is clear it is specifically excluded from applying to murder and treason.

A famous example of an attempted application of the defence of necessity is the case of R v Didley and Stephens.5 In 1884 an inshore yacht “Mignonette” sailed from Southampton to Sydney crewed by Dudley, Stephens, Brooks and Parker after being purchased by an Australian lawyer.

About 2,600km northwest of the Cape of Good Hope the vessel sank and the crew abandoned ship into a lifeboat. The crew had limited supplies. After 19 days at sea the crew drew lots to choose a victim who was to be killed and eaten to survive.

Brooks took no part, but Dudley and Stephens resolved to kill and eat Parker, the 17 year old cabin boy.

Eventually the three remaining seamen were rescued. Dudley and Stephens were charged and convicted of Parker’s murder.

The convictions were upheld by the Court of Queen’s Bench on appeal with the Court holding that necessity could not be

raised as a defence to murder. Dudley and Stephens were sentenced to death, but as things transpired their sentences were commuted to six months imprisonment.

An interesting counterpoint, in which the killing of a person was held to be lawful in reliance on the defence of necessity was in the English Court of Appeal case of Re A.6 This case concerned infant conjoined twins Jodie and Mary. The twins each had their own brain, heart and lungs, however Mary’s were insufficient to sustain her such that had she been born solo she would not have survived. The additional strain on Jodie however was slowly killing her. The Court in authorising the surgery, in the knowledge that Mary would inevitably die, pointed to the absence of choice to cause the death of Mary, in carrying out the surgery to save the life of Jodie.

The defences of necessity and duress are old and well established at law, however given the highly proscriptive elements, combined with the requirements of objective reasonableness and proportionality mean the threshold for it to be made out is a high one. For example, in Bayley the court declined the defence in the case of dangerous driving to escape a road rage incident, and in Taiapa the court declined the defence for the smuggling of drugs in light of threats made against family members. However, the defence was made out in the case of an abortion which was illegal at the time.7 It is hardly surprising then that the court in Bayley

noted these defences may only be expected to arise on rare occasions.

What the authorities do however make clear is the defence is highly factually specific and there cannot be any hard and fast rules about what will and will not amount to the defence as the cases of Dudley and Stephens and Re A demonstrate.

In summary, to successfully avail oneself of the defences of necessity and duress, it appears there must be no lawful alternative available and the criminal action must not exceed the danger or threat that it is attempting to avoid. In practice it is likely to require a strong argument of objective reasonableness of the action in response to imminent and realistic danger.

It also means not associating with South American gangsters who may ask you to take some headphones in your luggage, and if you are going sailing ensure you pack some extra sandwiches. B

Endnotes 1 Fairall and Yeo, Criminal Defences in Australia (3rd Ed, 2005) at 97; R v Rogers (1996) 86 A Crim R 542.

2 Bayley v Police (2007) 99 SASR 413, [53] (Gray J, Sulan and White JJ agreed).

3 Taiapa v The Queen (2009) 240 CLR 95.

4 R v Hurley [1967] VR 526, 543 (Smith J).

5 R v Dudley and Stephens (1884) 14 QBD 273.

6 Re A (Conjoined Twins) [2000] EWCA Civ 254.

7 R v Davison [1969] VR 667.

August 2020 THE BULLETIN

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ACCESS TO JUSTICE

Closing or widening the gap? The impact of COVID-19 on access to legal services LEIGH SWIFT, PETER GARDIAKOS & TESSA CARTLEDGE, ADELAIDE LAW SCHOOL Leigh Swift, Peter Gardiakos and Tessa Cartledge, who have been providing free legal advice to the community at the Magistrates Court Legal Advice Service, explore the impacts of the COVID-19 pandemic on the wider community legal sector, and the particular challenges on access to justice for those in need within the community.

WHAT IS THE PROBLEM?

S

eeking legal advice is generally quite expensive and in many cases the cost of legal fees is disproportionate to the amount parties are seeking or the loss they have suffered. This means that without government support or legal aid there is a large access gap between people who can afford legal help and those who cannot.

Those who are able to pay for legal services do not adequately represent the majority of people who need assistance from a lawyer. This has created the need for either Government funded legal services or free legal clinics that are privately operated.

These kinds of clinics are essential for many people as they provide access to justice to those who would not ordinarily be able to justify this kind of expense.

While these clinics are essential it is apparent that they are often underfunded and not utilised to their full potential.

The current COVID-19 pandemic has decreased the ability to provide essential legal services to many, as social distancing and isolation rules have limited the capacity to conduct face-to-face interviews. Professional firms have noted that the circumstances are challenging and unprecedented.1 While some firms and clinics have simply closed up shop, others have devised creative and safe ways to continue to provide justice access in the midst of the pandemic.

18 THE BULLETIN August 2020

Carissa Bosch, Principal Legal Officer of the Family Violence Legal Service Aboriginal Corporation (SA) (FVLSAC) , explained that there is no simple solution persistence and consistency pays off.

Clinics, including FVLSAC and Community Justice Centres SA (CJC), have expressed that in light of the current COVID-19 pandemic, it is clear that there is a large section of our community that is still currently excluded from justice access.2 This includes groups such as Indigenous Australians, people with disabilities, elderly people, victims of violence and people living in a regional setting.3 The current pandemic has been especially challenging for these groups given their existing struggles in accessing justice.

WHY IS IT A PROBLEM? The current circumstances have generally seen a shift to telephone and video communications. Unfortunately, many people that require the services of legal aid clinics such as FVLSAC and CJC, practically speaking, do not have the capabilities to engage in telephone or video interviews for a variety of reasons.

Ms Bosch highlighted that face-toface interviews are the ultimate way to go, especially for people with trauma â&#x20AC;&#x201C; there is simply no substitute.4 She explained that FVLSAC lawyers and client support workers have continued doing their usual

work - providing advice and appearing in court - but some elements have been made more challenging with the loss of face-toface time. One example included attending child protection meetings with clients by telephone. In these situations, they found that when clients start to become elevated and emotional, it is especially difficult to diffuse the situation without the ability to call for a break, as well as not being physically present to try and restore calm.5 Therefore, lacking any alternatives to interviewing face-to-face during the current pandemic besides the use of technology is problematic. Ultimately, both clients and lawyers/support workers are unable to provide the same quality of service and communication that face-toface interviews offer.

SOLUTION 1 - ADAPT AND CONTINUE INTERVIEWING FACE-TO-FACE Pros Charlie Belperio, partner at Belperio Clark Family, Wills & Business Lawyers, suggested some creative ways that their firm has adapted to client interviewing during the COVID-19 pandemic. Mr Belperio has been conducting will-signing meetings outdoors, in the office carpark. He ensures that the desks are appropriately distanced from each other, and that the clients use brand new pens, which they take with them after the meeting. The client attends by themselves, there are no handshakes, and there is ample hand sanitiser available. In most cases, clients have already received will packages via post and are already familiar with the documents, making the physical meeting rather quick.6 This practise may again have to be revised now coming into the winter months, with the weather now becoming a further obstacle.

ACCESS TO JUSTICE

Mr Belperio expressed that conducting meetings in this manner has been quite effective, noting that long-standing clients typically have not objected to the revised interview practise. Moreover, elderly clients (who make up a large portion of Mr Belperio’s clientele) are generally not comfortable using technology for their interviews, and have appreciated the firm’s innovative interview technique. Further, using telephone and video calls for legal meetings is not always appropriate, even for younger, more technologically-able clients. This is especially true where meetings concern matters that require a physical signature and/or a witness, making the ability to adapt to the current circumstances and adopt revised face-toface interviewing practises all the more important.7 In a legal-aid/clinic setting, many clients may not have access to a telephone, computer or internet, or alternatively they may be elderly, disabled or have other factors impeding their ability to use technology, making face-to-face interviews likely to be their only option. Further, in circumstances of domestic violence it may be genuinely unsafe for clients to conduct a technology based interview. Consequently, adapting to the current situation and continuing to interview clients face-to-face has many benefits and, where possible and safe, is preferable. For example, Catherine McMorrine, Chief Executive Officer of CJC, has opted to move the majority of her staff to a work-from-home capacity.

This freed up private spaces in the office so that face-to-face client meetings could be conducted in exceptional circumstances.

This allowed both for meetings to still occur and for social distancing requirements to be adhered to.8

Cons Unfortunately, clients with underlying health issues have tended to delay their appointments out of fear of physically attending in the current circumstances.

Whilst for logistical or other reasons some have also opted to not participate in telephone interviews.9 Naturally, situations such as these can drag out legal matters considerably, inconveniencing both the client and the firm/clinic.

Confidentiality is also something to be mindful of when conducting interviews outside of the traditional office setting.10 In implementing socially distanced faceto-face meetings, especially outdoors, one should be mindful of being appropriately spread out from passersby so as to prevent breaching confidence.

Ms Bosch explained that it can be challenging for people to access a family violence legal service, and often people don’t want to be seen accessing it, particularly in small communities.11 This makes the use of public spaces to continue conducting face-to-face interviews challenging, as would also likely be the case with many other legal aid clinics. Further, as opposed to more well-resourced private firms, community clinics may not have the resources available to adapt their practise to continue to conduct face-to-face interviews in the manner suggested by Mr Belperio.

While clinics and firms are able to conduct face-to-face interviews in exceptional circumstances there are potentially additional barriers preventing clients from attending these interviews as firms or clinics may not be logistically accessible for some. For example, if clients are unable to drive, do they have the means or capability to physically get to an interview? Clients who do not drive may

ordinarily catch public transport or use private transport such as a taxi or an uber.

However, in the current circumstances, some people may not feel comfortable using these services in light of the potential health risks of doing so, and consequently may not be able to physically attend meetings. Further, while private transport would currently be preferable over public transport, this is not always a reasonable or justifiable expense for many people, especially those using free legal services/clinics.

SOLUTION 2 - REACH OUT Pros Whilst investments in technology were made at FVLSAC to assist staff in the transition to working from home and continuing to provide services, technology could not be made available to clients in the same way to enable or enhance their access to legal and other support services. Ms Bosch expressed concern that ‘these people are being left out of the conversation.12 As previously mentioned the current COVID-19 pandemic situation has caused significant impediments to face-to-face interviews and although creative face-to-face options are available, many people are not comfortable accessing these for fear of a lack of confidentiality and discretion. Alternatively, people may believe that these services are simply not operating. Rather than ‘waiting out the storm’, Ms Bosch explained that the FVLSAC has made regular contact with their clients, to let them know they are still here. They put together bags filled with women’s hygiene and other products, sometimes including food, and delivered these in a socially-distanced manner to various clients, including domestic violence August 2020 THE BULLETIN

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ACCESS TO JUSTICE

victims and people in remote communities who may have had supply issues during the pandemic. These bags have been used as a way of checking if things are okay, and to give clients a boost, letting them know that someone is thinking about them.13 Ms McMorrine has also pointed out that CJC have been able to stay in touch with many of their existing clients via telephone, including regular check-in calls where possible. Further, the Centre has continued some community engagement activities remotely via video conferencing where possible and still aim to provide educational resources online.14 Cons Ms Bosch explained that it has been very useful to reach out to clients as they are largely based within the same regions. However, it would be difficult for some other services to reach out in such a proactive manner as they would be bridging much larger distances.15 Conversely, Ms McMorrine has highlighted that CJC have faced difficulties in maintaining Reach Out services with groups who are unable to access technology. While they still attempt to keep in contact via telephone this is not always possible, especially for clients who may be suffering family violence or have a disability. Further, they have had to reduce their outreach services to things that can be done remotely via video conference, which those without internet connection are unable to access. Similarly, the centreâ&#x20AC;&#x2122;s lawyers have also been unable to travel around the state to remote areas where, arguably, there are more vulnerable people in need of community justice access.16

WHERE TO NEXT? Overall, the pandemic has not entirely shut out community access to legal services. Whether those services are offered by private firms or community clinic/legal aid services, most services have adapted and made adjustments to their workplace practises to attempt to provide justice access to as many people as possible.

However, as highlighted by Ms McMorrine, there remains a large section of the wider SA community that have not been able to access services.17 Unfortunately, these people are potentially the ones that are most in need of these community justice services but are missing out due to circumstances beyond their control.

We recognise that whilst there are benefits for the profession that have resulted from the pandemic, such as being able to communicate with clients in a non face-to-face setting, increasing the use of office technology so there are working from home capabilities, and the conception of creative alternatives to continue face-to-face interviewing there have also been challenges. These include not being able to keep in contact with clients located in remote areas, failing to provide services to those that do not have the capability to use, or access to, technology, and the difficulties in maintaining confidentiality outside the traditional office setting. These challenges remain a real problem and it will require further creative and innovative thinking to adequately address. Given the likelihood of ongoing restrictions pending the control of COVID-19 and the potential of

a second wave of infections, initiatives in this area need to be ongoing to adequately address the needs of the community.

If you would like to find out more about the Clinical Legal Education program and the free legal advice services operated by Adelaide Law School, please visit: https://law.adelaide.edu.au/freelegal-clinics/.

Leigh Swift, Peter Gardiakos and Tessa Cartledge are all completing their final year Clinical Legal Education placement at Adelaide Law School. The Magistrates Court Legal Advice Service is supported the University of Adelaide, and by a grant from the Law Foundation of South Australia. B Endnotes 1 Interview with Charlie Belperio, Partner at Belperio Clark Family, Wills & Business Lawyers (Tessa Cartledge, Adelaide Law School, University of Adelaide, 11 May 2020).

2 Interview with Carissa Bosch, Principal Legal Officer at Family Violence Legal Service Aboriginal Corporation (SA) (Tessa Cartledge, Adelaide Law School, University of Adelaide, 11 May 2020).

3 Ibid.

4 Ibid.

5 Ibid.

6 Belperio (n 1).

7 Ibid.

8 Interview with Catherine McMorrine, CEO at Community Justice Centres SA (Leigh Swift, Adelaide Law School, University of Adelaide, 12 May 2020).

9 Belperio (n 1).

10 Ibid.

11 Bosch (n 2).

12 Ibid.

13 Ibid.

14 McMorrine (n 8).

15 Bosch (n 2).

16 McMorrine (n 8).

17 Ibid.

NOTICE TO MEMBERS

Annual general meeting Law Society Members are advised that the Annual General Meeting of the Society will be held at the Law Society, Level 10, 178 North Terrace, Adelaide on Monday, 26 October 2020 at 5.15pm CDT Information about the AGM, nominating for positions on the Council and any required election/s will be forwarded to Members in due course.

Nominations for Office-bearers and designated positions on Council close on Thursday 3 September 2020 at 5.00pm.

Notice of any business to be brought forward at the Annual General Meeting must be delivered to the Chief Executive by Thursday 3 September 2020 at 5.00pm.

20 THE BULLETIN August 2020

EMERGENCY RESPONSE

Staying connected to community legal need AMANDA STONE, LEGAL EDUCATION OFFICER, LEGAL SERVICES COMMISSION

P

roviding accessible legal assistance to South Australians does not stop during a pandemic. Times of emergency call for innovative service delivery, and new ways of delivering community legal education and advice.

The Legal Services Commission has mobilised to continue to provide our core services to the public, other lawyers and organisations. Through periods of increased uncertainty, the community is seeking reassurance, guidance and answers as to how the law is impacting them during difficult times.

Despite in-person advice appointments being temporarily suspended attendance rates for telephone advice appointments have increased during the emergency period. Advisers have continued to be available to explain basic legal rights and obligations, determine what is a legal issue and what is a non-legal issue, and make appropriate referrals for further assistance.

This empowers self-represented litigants to take charge of their legal issue, as we know that a proactive approach can be the best thing for dealing with, and working through legal matters.

Our Legal Chat, 24 Legal, and PhotoLegal platforms have increased the public’s ability to efficiently receive legal assistance. PhotoLegal is an encrypted digital service that enables people to securely send photos and short documents (i.e. court documents) to the Legal Help Line lawyers, who provide preliminary advice and information. Legal problems can often be identified and resolved more quickly if a lawyer has access to documents that relate to the problem.

In our community legal education section, face to face sessions were changed to online stakeholder meetings and continued engagement, learning from our interstate counterparts, and collaborating where possible. Even though

State and Territory borders are restricted, information-sharing and collaboration between our interstate legal aid commissions and community legal centres has continued.

One such example is the South Australian Keeping Connected fortnightly e-resource for workers in organisations, government departments, and education sites. Each edition focuses on one legal topic at a time and highlights and links relevant publications, Law Handbook entries or other LSC resources. As well as being a useful tool for maintaining connections while we experience a hiatus from our usual CLE services, this e-resource serves as a new way of providing the community with up-to-date legal information and knowledge of where to access further help.

The initial goal of Keeping Connected was to continue to engage CLE stakeholders during the break from face-to-face services. However, the reach has been much broader than the original recipients (about 500 CLE contacts) who are sharing the resource far and wide through their own extensive networks. This suggests it serves a purpose beyond the pandemic period. It has become an excellent way of directing people to our services, publications, and resources.

Of particular concern during the COVID-19 pandemic has been the increase in domestic violence, given more people are isolated in the home environment. In response, LSC has created a ‘Housing & Domestic Violence (During COVID-19)’ Factsheet. The Keeping Connected topic of ‘Family violence and Intervention Orders’ had more than 3500 views, demonstrating the power of early intervention, collaboration and information-sharing through established domestic violence support networks.

The Law Handbook resource helps

simplify legal information, enabling citizens to better exercise their legal rights and understand legal obligations. Temporary COVID-19 related updates have been added to the chapters from which we commonly receive advice enquiries.

These updates reflect the need to provide comprehensive and timely information, and respond to constantly evolving changes to the law under emergency declarations and directions. Our online publications and LSC website have expanded to include COVID-19 specific resources, such as the ‘Law and COVID-19 Coronavirus for South Australians’ webpage, and factsheets including participating in ‘Family Law Telephone Conferences.’

The highest number of advice enquiries over the preceding few months has consistently been in the family law jurisdiction. State and territory border restrictions, and self- isolation have greatly impacted South Australian’s ability to maintain pre-COVID activities. Advice relating to tenancy matters, employment and consumer issues (particularly cancelled holidays) are at the forefront of enquiries, as the widening and ongoing economic fallout of the pandemic continues to impact the community.

A major positive during this time, has been the timely commencement of the Uniform Civil Rules 2020, and CourtSA (electronic court management system) for civil claims. The online portal has empowered self-represented litigants to lodge and access their cases online during a time where in person court registry services have been limited.

As our ‘new normal’ becomes clearer over the coming months, being technologically progressive can only put the legal profession and clients in a better position to respond to emerging legal issues that will inevitably come to light in the pandemic’s aftermath. B August 2020 THE BULLETIN

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COURTSA

Using CourtSA to lodge civil cases and documents online JULIE-ANNE BURGESS, CHIEF EXECUTIVE, COURTS ADMINISTRATION AUTHORITY

I

t is with excitement that the Courts Administration Authority (CAA) launched CourtSA in the Civil jurisdiction on Monday 18 May, 2020.

In addition to Probate, you can now use CourtSA to: • start a civil case; • defend a civil case; • access your civil case; • receive notifications about your civil case; • find out about your civil hearings; and • view your orders, judgments and documents for the civil jurisdiction.

As of Monday 21 September, 2020, it will be mandatory for legal practitioners to lodge cases and documents in previously the Civil jurisdiction via CourtSA. If you haven’t used CourtSA you are encouraged to take advantage of the transition period to use and become familiar with it and identify any changes that need to be made to the way you practice.

WHAT IS COURTSA? CourtSA is a service that enables court users to lodge cases online, access information about their case from anywhere at any time, and find out what they need to do at every stage of their court journey.

It helps court users navigate their court experience by providing the ability to lodge cases online, information about what they need to do at each stage of their court journey, clearer communication about what the Courts are doing and why, and an electronic case file that keeps everything in one place and can be accessed from anywhere at any time.

WHY HAS COURTSA BEEN INTRODUCED? The CAA embarked on a project to

22 THE BULLETIN August 2020

replace its case management systems as they were coming to the end of their life and needed to be replaced. The old case management systems were difficult to enhance to comply with legislative reform and were no longer supported.

In an age of fast internet and cutting-edge software, there is a growing expectation that services will be delivered digitally. By introducing a more streamlined, accessible, online court service, the CAA aim to make it more convenient for court users to interact with the Courts. This means making the Courts more accessible for everyone. It also means improving access to relevant information both before and during your case, so you no longer need to contact court staff by phone or in person to track your case, find out a trial date, or find out what to do. The introduction of CourtSA is kickstarting a fundamental transformation of the way justice is delivered in South Australia, forming the foundation of a suite of services to be offered in future.

WHAT DO I NEED TO USE COURTSA? CourtSA requires access to a computer, internet, scanner and in some instances a printer. You can use any modern browser (Internet Explorer, Edge, Chrome, Firefox, Safari) but Chrome is recommended.

HOW DO I USE IT? Everyone will use CourtSA differently.

CourtSA is an electronic lodgement system, not a practice management tool.

It is not intended to be used to draft and settle documents or to replace practice management software.

WHAT DO I DO TO GET STARTED? To get started you will need a CourtSA account. You can create an individual or law firm account. A law firm account is run by an account administrator who can grant law firm users access to cases that the firm has been granted access to. In general, individual accounts are for those registering for themselves. Law firm accounts are to be created by a representative of an organisation who can then invite people to join the account. If you are legal practitioner that is part of a law firm, you should not need to create an account, as you will be invited to join your law firm CourtSA account by your firms account administrator.

Once you have created an account or been invited to join your law firm account, you can login and work through the welcome page options. If you would like access to a case, you need to request case access. There are instructional videos which show you how to use CourtSA. Please see the CourtSA Help Centre for more information.

HOW DO THE COURTSA FORMS WORK? CourtSA uses a combination of smart forms and uploads. A smart form requires you to enter your data directly into CourtSA. Using this data, CourtSA will create your court documents.

Comparatively, an upload requires that you upload your already completed document to CourtSA and provide some information about it. Most lodgements to start a case are smart forms, whereas most lodgements completed after a case is started are uploads.

COURTSA

You will receive an email acknowledging your request. This is not your access. The link will not take you to your case. It will take you to the administrative case associated with your case request.

WHAT IS CASE ACCESS? Case access is the ability to view a case you are a party to, defend a case or lodge documents.

WHO CAN APPLY FOR CASE ACCESS? • • • •

You can apply for case access if you are: Representing yourself; A practitioner representing a party; A barrister representing a party; or A party represented by a lawyer.

WHAT IS AN ADM NUMBER? An ADM number is simply an administration number that is allocated to the case. This is the number Court Services use to process your request. It is not the case number you are requesting.

HOW DO I APPLY FOR ACCESS TO A CASE? WHAT DO I DO IF MY REQUEST FOR CASE ACCESS IS URGENT?

You can request case access by logging into CourtSA and selecting ‘Request Access to a case’ from the drop down menu, completing the ‘CourtSA Request Case Access Form’ and clicking ‘Proceed’.

A green verification notification box will appear with the details of the case.

Requests for case access are not immediate. Each request is manually reviewed. It is advisable that legal practitioners seek case access as early as possible.

If your request for case access is urgent you will need to make the request using the ‘CourtSA Request Case Access Form’ CourtSA and then email CourtSA Registry Services using the enquiry@ courts.sa.gov.au email address noting in the subject of the email the ADM and that it is an urgent case access request. CourtSA Registry Services prioritise the processing of urgent case access requests.

What happens to your case access request once it is submitted?

Your request will be reviewed by Court Services. When approved you will receive an email granting you access. If you are a lawyer the request will be sent to the P or L Code email address you entered into the form.

Click the link within the email to be directed to a CourtSA page with a confirmation notification. For the link

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COURTSA

A newly refurbished court room in the Sir Samuel Way Building. Photo courtesy of the Courts Administration Authority.

to work you must be logged into CourtSA using the same email address as where the notification was sent. If you are logged in to another account, the link will not work.

Once you are logged in to CourtSA go to ‘My Cases’, find the case you wish to access and click ‘View Case’. Your Notice of Acting will be available under the ‘Documents’ tab.

WHAT HAPPENS TO A DOCUMENT THAT IS LODGED USING COURTSA? Once a document has been lodged it will either be automatically accepted for filing or reviewed by Court Services. At this stage, the Courts are unable to say how long the review process might take.

Once CourtSA has been operating for a while it is hoped that the Courts will have a better understanding. Please take case access approvals or document reviews into consideration for compliance with dates set out in the Rules.

HOW DO I UPDATE THE DETAILS TO DO WITH MY P OR L CODE? You need to contact the Law Society of South Australia to update the email or address that is associated with the P or L code. The CAA receive information from the Law Society of South Australia when P or L code details are updated and then update our case management system with this information.

24 THE BULLETIN August 2020

WHAT CAN’T I DO USING COURTSA? The majority of civil cases and documents can be lodged using CourtSA. There are some low volume applications and cases that you will need to attend a Court Services location in person to lodge such as an application for a fee waiver or remission, amended documents, a case where the respondent or interested party has an address outside Australia or New Zealand, a document to be served outside of Australia, certain types of cases and certain administrative appeals or reviews.

For a full list of the types of cases and documents that cannot be lodged using CourtSA please see the page in the CourtSA Help Centre on ‘Things you can’t do using CourtSA’. As the system continues to be enhanced and expanded this list will change.

WHAT SUPPORT IS THERE FOR LEGAL PRACTITIONERS USING COURTSA? A range of support is available for legal practitioners from written resources to videos. You can locate the Help Centre on CourtSA by clicking here. The Help Centre includes useful information on setting up your accounts, unlocking your account, resetting your password, updating your details, payments, viewing receipts, inviting a user, accessing your case, how to use the CourtSA forms, types of cases you can start, how to lodge documents, a glossary and things you can’t do using CourtSA.

There are also numerous videos on CourtSA to help you to navigate the system.

If you have questions you can also contact the CAA via live chat on the CAA website, by phone (08) 8204 2444 or email enquiry@courts.sa.gov.au During this time of change there may be longer wait and process times. We thank you for your patience and understanding.

It is suggested you also keep an eye on the Law Society e-newsletter InBrief for the CourtSA Snapshot, updates, hints and tips as well as instructional videos. There are also CourtSA tips that are being sent out every Tuesday as a Practitioner Alert.

The Uniform Civil Rules 2020 (Rules) can be located on the CAA website.

Unfortunately, the CAA are unable to answer questions related to the Rules.

Please refer any questions you have regarding Rules to the Law Society of South Australia. Alternatively, it is recommended that you speak to a senior practitioner or your practice manager about any questions regarding the Rules.

WHAT IF I USE COURTSA AND IDENTIFY SOMETHING I THINK SHOULD CHANGE? The CAA welcomes your feedback and suggestions for improving CourtSA. There will be a continual process of improvement. An enhancement list is being maintained with suggested changes to CourtSA and additional functionality will be rolled out in future releases. B

IN HONOUR

Vale: Carmel Preece

C

armel Preece, who died on 9 June aged 56, was the type of lawyer who inspired the utmost respect and confidence in anyone who dealt with her.

Carmel grew up in Mount Gambier with her brothers and one sister, who were all very close, and went to Aquinas College while studying law at Adelaide University.

Carmel began her career as a junior lawyer at Aldermans in 1985, and carved out her initial career at what was then the Industrial Court. Fellow junior lawyers in Carmel’s cohort included Mark Keam, Tim O’Callaghan, Anne MacDonald, Mark Calligeros (now Judge Calligeros), Tracey Kerrigan and Tony Phelps.

Carmel went on to have a long and successful career in the legal profession, practicing predominantly in the workers compensation jurisdiction in South Australia.

She enjoyed many years working at Piper Alderman, Duncan Basheer & Hannon, Gun & Davey, and finally at KJK Legal – coming full circle to again work with some

of those lawyers she had commenced her career with many years before.

Colleague and friend Mark Keam said that while she often flew under the radar, and was never a great self-publicist, “Carmel was by far and away one of the most conscientious, thorough and reliable lawyers we had the privilege of working with. She gained the respect of her many clients, the judiciary, and other lawyers over the years with her calm, empathetic and focussed demeanour. Many of those people she counted among her friends.”

Carmel enjoyed the collegiate atmosphere of practicing in the worker’s compensation jurisdiction and, when COVID-19 restrictions were enforced earlier this year, missed the opportunity to be able to converse with colleagues, swap war stories and gossip at the SAET. She was looking forward to being able to once again take a morning stroll along North Terrace to the SAET to begin the day’s battle once the COVID-19

Carmel Preece

restrictions were lifted, but her health took a turn for the worst, and after a three-year battle with cancer, Carmel passed away peacefully at the Mary Potter Hospice.

She had many friends within and outside the profession, and will be profoundly missed. B

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25

HISTORICAL CASE NOTE

Silence in Court: The case of the coveted Magpie MICHELLE SLATTER, SENIOR RESEARCH ASSOCIATE, CENTRE FOR HOUSING, URBAN, AND REGIONAL PLANNING

I

n their recent book Budgerigar1, Sarah Harris and Don Baker describe South Australia’s leading role in the trading of Australian native birds during the nineteenth and early twentieth centuries. Amongst local dealers the authors identify John Foglia as “top cocky”2. So, it’s not surprising that when he brought one of the most diverting small claims to be heard in the summer of 1913, it concerned a bird. However, this was far from a commercial case.

The drama began on Monday 27 January, 1913, the hottest day of that summer, when the mercury touched 106F (42C). Hot temperatures provoke hot tempers, or so they say.

Five days earlier a magpie belonging to Foglia escaped. With one of his sons, he went out each morning to try and locate it. Early on that hot Monday morning they apparently heard its distinctive call emanating from the premises of their near-neighbour, the fruiterer ‘John’ Sym Choon. Later that day the two Foglias visited Sym Choon and demanded the return of the bird. Sym Choon refused, stating that the magpie at the premises was his. The Foglias persisted. The discussion became heated. Sym Choon allegedly threatened to punch Foglia Snr on the nose. The Foglias left. Legal action ensued.

Through his business, Foglia had built a large network of influential connections. He had arrived in Adelaide from Switzerland via London in 1883, a wireworker. By 1913 he was wellestablished in Rundle Street East. His shop declared itself to be “the cheapest shop in Adelaide for cages”. However, his principal business had long been the sale and export of Australian native birds. His clientele included natural history museums and zoological gardens in South Australia and beyond; international collectors such as Baron Rothschild and a long list of local aviculturists, among them C B Hardy of Fenn and Hardy, solicitors.

Known as CBH, Hardy was a senior member of the legal fraternity. His grandson R G Thomas remembered him as

26 THE BULLETIN August 2020

a particularly keen gardener (with) almost an acre of garden at (his house on) Payneham Road. … He was also tremendously keen on aviary birds of all sorts and he had a veritable zoo at Payneham Road, including such rare species as curlews and a koala bear and a turtle! ….He had an almost open account with a bird dealer called Foglia in the East end of Rundle Street’.

Fenn and Hardy specialised in trusts and estates. CBH had a well-known distaste for clients involving themselves in the costly game of litigation. R G Thomas recalled that he “always said with emphasis that his approach to the legal profession was to keep people OUT of the law courts!”

Nevertheless, it seems that Foglia’s determination overwhelmed any reservations CBH may have had about the firm accepting his case or pursuing the action to court. Perhaps it was seen as a rare opportunity for the articled clerk, A S Blackburn, to get some advocacy experience. At this time, the outstanding bravery and exceptional public career of Brigadier Arthur Seaforth Blackburn VC, CMG, CBE, ED, JP all lay in the future.

Representing Foglia, his mission was to recapture the client’s bird, armed only with the client’s unwavering assertion of ownership. Thus equipped, the 20-yearold law student and articled clerk arrived at the legal battleground of the Adelaide Local Court.

He found himself facing adversaries who were quite comfortable on that terrain.

Sym Choon had arrived from Guangdong province in about 1890. He established his business hawking fruit and vegetables from a barrow. Then, in 1908, the family moved to live and trade at the Rundle Street East premises, which they first rented and subsequently bought.

‘John’ was well-known among Adelaide’s small Chinese community, respected as a trader and family man. With R H Lathlean’s professional assistance he had become familiar with the courts: in civil actions against his landlord and in criminal cases arising from yobbish attacks on his cart and premises.

Richard Hedley Lathlean, partner in Holland and Lathlean, solicitors, was an experienced advocate. He was known in the courts for his ‘zeal to win’. Indeed, it was said of him that “no barrister has pleaded the cause of his clients more determinedly or earnestly”.

If there were any efforts at pre-trial settlement, they failed.

The hearing, on 26 February, was before Mr Commissioner Russell SM. Commissioner Russell was a remarkable public servant: Commissioner of Taxes, Commissioner of Stamps, Commissioner of Insolvency and a Stipendiary Magistrate. Previously a Master of the Supreme Court and Registrar of Companies, he was clearly a prodigiously

HISTORICAL CASE NOTE

hard worker. He was also known for his “sombre and consciously gentlemanly demeanour in court” and the “sharp analytical mind” that he brought to bear on cases. The gentlemanly demeanour, if not the sharply analytical mind, would prove invaluable in Foglia v Sym Choon.

Foglia claimed that Sym Choon was unlawfully detaining a magpie belonging to him. He sought the return of the magpie or £1 damages.

Giving evidence, a clearly-emotional Foglia expressed his attachment to the bird. It was a pet which he had owned for two years. It was not for sale. Indeed, it was only worth about five shillings but he would not accept £10 for it. He could recognise its call. He had taught it to say ‘Wakool’, the name of a vessel that had taken him to England on one of his trading trips. It was unique. No other magpie could say ‘Wakool’. He heard it call from Sym Choon’s premises on 27 January.

When Lathlean successfully intervened to restrict Foglia’s testimony to the legally permissible, the plaintiff ’s frustration was evident: “What is the use of coming here?

I am only telling the truth”.

In response, Sym Choon stated that the bird at his premises was the first pet magpie he had ever owned. His wife, who spoke exclusively Chinese, had taught it to

say the Chinese word for mother. He had only threatened Foglia when provoked by accusations of lying. He had bought the magpie at the market in September, 1912, together with a cage, for five shillings.

He produced a receipt.

Mrs Sym Choon, through an interpreter, supported her husband’s account of events.

The magpie was produced in court.

Mrs Sym Choon tried, unsuccessfully, to persuade it to speak. Commissioner Russell suggested that Foglia should encourage the bird to say “Wakool”.

Foglia, increasingly frustrated, declined retorting that it would be useless to do so in those surroundings, and at that hour of the day, as the bird’s habit was to say the word only in the early morning.

The bird, resisting all responsibility for the outcome of the case, maintained “a golden silence”.

After several more witnesses, Commissioner Russell deliberated before giving his decision. In finding for the defendant, His Honour probably surprised no-one other than Foglia.

Sym Choon left court with his wife and the magpie, apparently elated. The plaintiff was reported to have left the Court “dejectedly bemoaning the loss of his pet”.

The Daily Herald observed that “The magpie in question was worth about 5 shillings, but the legal action that centred round it probably cost the conflicting parties about £5 each”.3 Beating a retreat to the office, young Blackburn may have felt, like his supervising solicitor, that having one’s day in court was much overrated.

The parties remained near-neighbours in Rundle Street East. Sym Choon and Lathlean subsequently appeared in a number of contract cases with varying degrees of success before Sym Choon returned to China, where he died in 1916.

The name lives on.

Foglia retired in 1926, succeeded by his son William. On William’s death their business was finally sold up on site in 1943.

Of the magpie, nothing more was heard.

Michele Slatter taught Law at Flinders from 1999 until 2011, since when she has been attached to the Centre for Housing, Urban and Regional Planning, CHURP, at The University of Adelaide. B Endnotes 1 Allen and Unwin 2020 2 Harris and Baker 2020 p 67.Foglia was described in 1905 as the largest bird dealer in Adelaide, in business longer than anyone else: The Register 4 February 1905 p 8 (Trove) 3 i.e. 20 times the value of the bird.

MEMBERS ON THE MOVE STEFANIA SCARCELLA

P

ace Lawyers/Adelaide Legal announce that Stefania Scarcella has been promoted to Associate Lawyer, effective 1 July 2020. Managing Director, Serina

Pace said Stefania has excelled as a Family, Personal Injury and Wills and Estates Lawyer since joining the firm. Ms Pace said: “Stefania’s contribution to the

business has been significant in her five years with the firm, and we are looking forward to working with Stefania in her new position moving forward”.

August 2020 THE BULLETIN

27

MONETARY JUDGMENTS

THE ENFORCEMENT OF CHINESE MONETARY JUDGMENTS BY AUSTRALIAN COURTS MARK GIDDINGS, SENIOR ASSOCIATE, AND LIBBEE COULTER, CLERK, LIPMAN KARAS

I

n a world where business is conducted internationally and law firms operate within a global market, the resolution of commercial disputes often requires steps in more than one jurisdiction. One facet of this is the recognition and enforcement of foreign judgments by Australian courts. In a number of recent decisions, Australian courts have considered the requisite approach to enforcing judgments obtained in the People’s Republic of China (China).

As well as stating the applicable legal principles, these decisions have considered specific issues that arise with respect to Chinese laws and procedures.

COMMON LAW REQUIREMENTS AND EXCEPTIONS TO ENFORCEMENT Foreign judgments can be enforced in Australia either at common law or pursuant to the statutory regime in the Foreign Judgments Act 1991 (Cth). The statutory regime applies where a country is designated a “jurisdiction of substantial reciprocity” under Schedule 1 of the Foreign Judgments Regulations 1992 (Cth). As China has not been designated a jurisdiction of substantial reciprocity, a plaintiff seeking to have a Chinese judgment enforced in Australia must do so via the common law procedure.

To have a foreign judgment enforced at common law, the following matters must be established; • the foreign court had jurisdictional competence; • the judgment was final; • the parties to the judgment of the foreign court and to the enforcement

28 THE BULLETIN August 2020

proceedings are identical; and • the judgment was for a fixed sum.1 The party seeking to enforce the judgment bears the burden of establishing these matters, although in some circumstances particular matters may be presumed if they are not contested.2 Notwithstanding the satisfaction of the above matters, an Australian court may still refuse to enforce a foreign judgment in certain circumstances, such as where: • granting enforcement would be contrary to Australian public policy, including judgments obtained by improper means such as duress or undue influence; • the foreign judgment has already been wholly satisfied; • the foreign judgment was obtained by fraud (including equitable fraud) of the parties or the foreign court; • the foreign judgment is penal or a judgment for a revenue debt; or • enforcement would amount to a denial of natural justice or an abuse of process.3 A plaintiff seeking to enforce a foreign judgment can rely on the judgment as creating an estoppel precluding the defendant from raising any defence that was or could have been raised in the foreign proceedings.4 LIU V MA [2017] VSC 810 In Liu the plaintiff obtained judgment in China for money due for repayment of a loan. In considering whether to recognise the judgment, the Victorian Supreme Court observed that the most important requirement is that the foreign court had jurisdiction. The term “jurisdiction”

does not refer to the jurisdiction of the foreign court under its own rules, but “international jurisdiction”, which means a competence that is recognised under Australian conflict of law rules.

Relevant circumstances establishing such a competence include where the defendant is a subject of the foreign country, was resident in the foreign country when the action began, or has submitted to the forum by taking steps there in the character of a plaintiff, by voluntarily appearing or through a jurisdiction clause in a contract. Where the basis of jurisdiction is the defendant’s connection to the foreign country, the connection needs to be sufficiently ‘active’. The Victorian Supreme Court found that the defendants were subjects with a sufficiently active connection because they were natural born Chinese citizens holding Chinese passports, had been married in China and had substantial financial affairs or activities there. Accordingly, the court granted the application and recognised the judgment.

SUZHOU HAISHUN INVESTMENT MANAGEMENT CO LTD V ZHAO [2019] VSC 110 In Suzhou Haishun the plaintiff obtained judgment for the recovery of money lent to the defendant under three separate loan agreements. The plaintiff applied to have the judgment enforced by the Victorian Supreme Court. Cameron J held that jurisdictional competence was established by clauses in the loan agreements submitting the parties to the jurisdiction of the Suzhou Court in China. However, the defendant argued that the judgment

MONETARY JUDGMENTS

should not be enforced as there had been a denial of natural justice. She claimed she had not been made aware of the Chinese proceedings until after the judgment had been entered. Cameron J rejected this submission and recognised the judgement, finding that reasonable attempts had been made to locate her address, a representative who attended court in China had clearly been in contact with her, and in any event Chinese civil procedure allowed service by public announcement where the defendant’s location is unknown. By contrast, in Xu v Wang [2019] VSC 269 Cameron J declined to recognise a Chinese judgment where the applicant had chosen to commence proceedings by public announcement, because the plaintiff in fact knew how to contact the defendant, having already commenced proceedings against him in Australia. Enforcing the judgment would have been a denial of natural justice and an abuse of process.

BAO V QU; TIAN (NO 2) [2020] NSWSC 588 In Bao, the plaintiff received a Chinese judgment on an unpaid debt and sought to enforce the judgment in New South Wales.

Rothman J found that the Chinese court had competence because the defendants had submitted to its jurisdiction by voluntarily appearing in the proceedings, including by commencing an appeal.

However, the defendants alleged that the Chinese court had been misled as to the value of the unpaid debt which the defendants claimed to have partly repaid.

Rothman J held that this matter could, and should, have been raised in the Chinese

proceedings and that the defendants were impermissibly attempting to challenge the merits of the foreign judgment. The defendants also argued that the judgment was penal in nature because under Chinese civil procedure there was a requirement to pay double interest if the debt remained unpaid after a certain date. The judge found no evidence that the imposition of double interest was a public sanction.

Where a defendant has disregarded the plaintiff ’s rights, an award of punitive damages is not contrary to public policy even if the amount awarded far exceeds what an Australian court would award.5 Therefore, the court was prepared to enforce the judgment including the interest awarded to the plaintiff.

SIGNIFICANCE These decisions show that Australian courts are prepared to recognise and enforce Chinese monetary judgments where the common law requirements for doing so are satisfied, the most significant of which is establishing the jurisdictional competence of the Chinese court. This does not require showing any equivalence between the jurisdictional rules of the Chinese court and the Australian court, but rather that the jurisdictional competence comes within one of the categories enumerated in Liu. The fact that Chinese proceedings are commenced by methods particular to Chinese civil procedure, such as public announcement, is no bar to enforcement, as long as there has not been a denial of natural justice.

Further, an award of punitive damages for

disregard of a plaintiff ’s private rights is not a penal sanction and does not prevent that part of the judgment being enforced.

Underlying these decisions are competing demands that the courts are attempting to balance. On the one hand, the courts recognise the practical reality that business is international in scope and that legal services, including the services offered by courts and other adjudicative bodies, operate in a global market. It is therefore essential to facilitate dispute resolution processes that involve steps in more than one jurisdiction. On the other hand, there is the need to ensure that “global shopping for legal redress” does not result in unfairness to any party or undermine the integrity of the courts’ processes.6 This is not to say that there is anything inherently unfair in a plaintiff electing to bring proceedings in the most favourable jurisdiction, but courts must be mindful of particular circumstances that may result in unfairness.

When it comes to the enforcement of Chinese monetary judgments, the recent case law demonstrates that a suitably careful and nuanced approach is being adopted by the Australian courts. B Endnotes 1 Bao v Qu; Tian (No 2) [2020] NSWSC 588 at [26].

2 But see Liu v Ma [2017] VSC 810 at [5] expressing concern that this “may be an incautious way to proceed”, at least in relation to the central issue of jurisdiction.

3 Many of these grounds are summarised in Xu v Wang [2019] VSC 269 at [80].

4 Bao v Qu; Tian (No 2) [2020] NSWSC 588 at [30].

5 Compare Suzhou Haishun at [114] where the plaintiff undertook not to seek to recover interest on interest.

6 Xu v Wang [2019] VSC 269 at [107].

August 2020 THE BULLETIN

29

WELLBEING & SUPPORT

Wellbeing strategies for challenging times SARAH EL SAYED, SOLICITOR, JONES HARLEY TOOLE

T

he Law Societyâ&#x20AC;&#x2122;s Well-being and Resilience Committee held their first well-being webinar during COVID-19 on Friday 26 June 2020. The webinar was hosted by Dr. Tom Nehmy of Healthy Minds Education and Training and was aimed at providing those who tuned in with a toolkit for maintaining a healthy mind while working from home in selfisolation and equipping them with the skills to deal with the contemporary challenges presented by COVID-19.

Tom is a clinical psychologist who has adopted a preventative approach to psychology and well-being. Tom works with companies of all industries and sizes on developing preventative strategies in the workplace to help eliminate the onset of preventable psychological disorders and to provide individuals with the knowledge and skills to maintain an optimal level of mental health and well-being.

Tom recognises that given the current climate, there has been a lot of additional stress placed on all of us. Some of the challenges we are each experiencing include reduced freedoms; physical or geographical isolation; loss of control and uncertainty; and an overall sense of increased pressure. Although we may be experiencing a heightened sense of stress and pressure, Tom identifies that these challenges can be used as an opportunity for us to renew our sense of self-reliance, enhance our relationships and teach us to become proactive self-managers of our well-being.

During the webinar, Dr. Tom Nehmy provided us with some great take-away tips to help arm us with a toolkit to have a healthy mind. Some of the core recommendations he made include:

MINDSET A mindset of Optimalisim will help you make the best of whatever does happen.

Our mindset refers to our general

30 THE BULLETIN August 2020

outlook and approach to life and work and plays a significant role in dealing with life adversities. Some common outlooks and approaches to life include perfectionism; optimism; pessimism; and optimalism.

Tom identifies optimalism as the most ideal approach as it involves making the best of whatever does happen and provides you with the freedom to adapt and step outside of your comfort zone.

As tough as things may currently be, if we acknowledge both the difficult challenges and the growth opportunities at hand, we are best placed to handle things in a psychologically balanced way.

LIFE MEDICINES Prioritise your Life Medicines Life medicines are those little everyday things that discharge stress.

They help us to feel calm, more relaxed, and/or boost our mood. These can include meditation; exercise; speaking with friends on the phone; watching comedy on YouTube; taking a bath, or listening to music.

Tom recommends making a list of your 5 most effective life medicines and ensuring you prioritise these 2-3 times per week or more, especially during times of stress.

VISUAL CONNECTION Stay connected with your family and friends It is important to stay connected with your family and friends, as connection is a protective factor in mental health. Even if you cannot physically be with your friends and colleagues as much as before, you can use technology to see them.

Seeing and interacting with others is associated with the release of oxytocin, a brain chemical that helps relieve stress, reduce anxiety and improve mood.

Tom recommends looking at your loved-ones faces when speaking to them and to smile as it will give them a release of oxytocin.

Tom concluded the webinar with a gracious reminder that human beings have survived and thrived throughout the ages, despite formidable dangers and obstacles.

We are resourceful, purposeful and resilient creatures who have prevailed over many great challenges â&#x20AC;&#x201C; both natural and man-made throughout human history. We have that strength of spirit within us and there is much we can do to help ourselves and each other to continue to thrive.

If you would like to know more about Dr. Tom Nehmy and the Healthy Minds program, visit https://www.healthymindsprogram.com.

OPINION

It’s time to raise the age of criminal responsibility MICHAEL ESPOSITO, EDITOR

W

hile the recent Black Lives Matter protests in Australia were sparked by the killing of a black American at the hands of a Minneapolis police officer, the focus here has been on the appalling rates of Indigenous incarceration and Aboriginal deaths in custody.

One of the most damning indictments of Australia’s record on Aboriginal justice is the rate of Indigenous children in detention. A recent report from the Guardian for Children and Young People indicated that more than 60 per cent of young people in Adelaide’s Youth Training Centre (YTC) are Indigenous.

The majority of children who come face-to-face with the criminal justice system have a background of disadvantage and trauma. About half the children who have come under youth supervision have also been subject to child protection services.

In South Australia, if a young person aged between 10-14 is charged with a crime, the onus is on the prosecution to prove that the young person alleged to have committed the crime had a sufficient understanding of the criminality of their actions. That understanding must amount to the knowledge that the actions were criminally wrong, and not just naughty.

This is designed to act as a safeguard against detaining young people who do not have the cognitive capacity to appreciate the gravity of their actions, but ultimately the system still incarcerates numerous children under 14. In fact, in 2018-19, 131 children in the YTC were under 14, and eight of them were just 10.

A 2017 Australian Law Reform Commission report into the incarceration of Aboriginal and Torres Strait Islander Peoples referred to a 2005 study which found that 90% of Aboriginal and Torres Strait Islander youths who appeared in a children’s court went on to appear in an adult court within eight years – with 36% of these receiving a prison sentence later in life.

Most other developed countries have outlawed the detention of children this young. It is time we did too and raised the age of criminal responsibility to 14.

Tough on crime proponents often argue that the community expects young offenders be incarcerated, but do people really want millions of taxpayer dollars spent on administering a system that facilitates a troubled youth’s transition to career criminal? Furthermore, does the community understand the nature of the offences that are alleged to be committed?

Many young people who are involved in the Youth Justice system are ultimately being punished for things that are out of their control; and which stem from the unfortunate combination of childhood trauma and a lack of positive intervention.

Why would we send vulnerable young children down a path that often leads to a life of crime, when it would be far more effective, and humane, to give these children a chance to lead fulfilling and productive lives through evidence-based diversion programs?

One diversion model that has been proven to work is justice reinvestment.

Under a justice reinvestment model, funds are redirected from the incarceration of young people into community driven initiatives that target key causal factors of crime, such as poverty, mental illness, intergenerational trauma, alcoholism and family dysfunction.

Justice reinvestment programs in Australia have had a hugely positive impact on disadvantaged, predominately Indigenous, communities.

Unfortunately, plans to establish a justice reinvestment program in SA were put on ice when State Government funding for such a program ceased in 2018. This was extremely disappointing as it was clear from other sites, such as Bourke in NSW, that a relatively small investment in vulnerable communities yields a huge improvement in health outcomes,

increased engagement in education, and a sharp reduction in crime, not to mention significant economic savings.

Again, the justice system disproportionately affects children in State care. Many children under guardianship of the State are detained for alleged offences against carers or the care facility. Police refuse to give them bail because the carers do not want the children back in the facility and the kids have nowhere else to go.

A lot of the behaviour that lands these children in custody would be treated much differently in a family environment, where the parental figures would impart discipline or have a discussion about the behaviour, without the need for police intervention.

We need to move away from a system that excessively punishes those who are most vulnerable, and instead give them the support they need to reach their potential.

An obvious starting point would be raising the age of criminal responsibility to 14, and providing ongoing investment in community focused solutions, such as justice reinvestment, to give disadvantaged children a path out of a miserable existence of entrenched criminality and towards a life that is far more fulfilling and fruitful.

The Law Society recently made a submission to the State Attorney General, The Hon Vickie Chapman, advocating for raising the age of criminal responsibility. To read the submission, click the “News & Advocacy” section on the Law Society’s homepage, then go to the “Submissions” section. B August 2020 THE BULLETIN

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ORAL HISTORIES

Native title work a ‘privilege’ LINDY MCNAMARA

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espected for his specialist knowledge in Native Title land claims, former Federal Court Judge John Mansfield AM QC says one of the “great privileges” of his work was learning first hand about the “wonderfully sophisticated” Indigenous communities in the Northern Territory.

Appointed to the Bench in 1996 - only a few years after the Native Title Act was enacted - Mr Mansfield delivered 145 judgments and 24 court decisions on land title claims in his 20 years on the Federal Court.

While not wishing to go into detail about specific cases, in an Oral History recorded for the Law Society he spoke warmly of learning about the various Indigenous communities and being able to hear evidence “on country”.

“I don’t really like to talk about individual cases by name, because all of them have different issues and different rights and different people. You have to do what you think is right according to the law and to the people,” he said.

“But I have to say that the first trial case I did under the Native Title Act, which is sometimes called the Alyawarre case or the Davenport Murchison Ranges case, was a fantastic introduction to the more elegant and sophisticated nature of Indigenous communities than I’d ever dreamt possible.

“As you learn the structures of societies and the anthropological material, you actually see it at work. They are wonderfully sophisticated communities.

So, that’s a great privilege.”

“That really sets you right in a way to understand what you’re dealing with, and part of the process which I inherited was the concept of hearing evidence on country.”

“So, if you did have a case involving some Aboriginal people, everyone who has done it sees that, particularly for the remote community people, they are much more comfortable on their country, telling their stories and giving their evidence at that place in an informal way, than they are sitting in a court room, or any room.”

In the wide-ranging interview, Mr Mansfield spoke fondly of those who

32 THE BULLETIN August 2020

had helped shape him in his early days.

They included the “inspirational and energetic and idealistic” young teachers at St Ignatius’ College and John Kelly, the principal at Kelly and Co where he did his articles, and who sadly passed away from Parkinson’s disease during this time.

“He was just a wonderful teacher, and a wonderful life teacher and values teacher and all that, so I was really lucky to be exposed to him,” he recalled.

“Most of the things (he instilled in me) were thinking about other people, treating everybody equally, not thinking you’re better because you’re a lawyer, because you’re not.

Everyone has strengths and weaknesses and everyone is entitled to a fair go.”

Admitted to the legal profession in 1969, Mr Mansfield began working for Alderman, Clark, Ligertwood and Rice, with most of his time spent “gophering” and eventually in the courtroom.

Ten years later he decided to join the Bar. “Over time, I got recognised because I knew a bit about what was then the Trade Practices Act and now the Competition and Consumer Act, because that only came into force in 1975.”

“I had an interest in that for some reason, so I probably got to know it as quickly as a lot of other lawyers around Adelaide. Then commercial litigation was growing, because there were a lot of cases in the ‘80s as a consequence of the financial crash.”

Commenting on his appointment as a Queen’s Counsel in 1985, Mr Mansfield said it was a status he “never dreamed of ” and described how the legal profession in Adelaide was a different beast then.

“It’s very nice to be recognised. It’s an incredible honour. But I think people in the profession know where you stand in relation to others and you can tell from a quality of work whether people think you’re doing a good job.”

“We were a much smaller profession then...it was an incredibly lucky generation in terms of progress in the law, because the Second World War had taken out a lot of the legal profession, so it was a very

Judge John Mansfield AM QC

small profession and the opportunities to do work were much greater.”

“It was almost routine that if you wanted to, you could get a job after you got admitted, because you were in articles, so you knew the local profession and the local lawyers knew you. Everyone knew pretty much who everyone else was, and then the opportunities to do the hard work were much easier to get, because there was so few of us, relatively speaking.”

“It was a small Bar in those days, it was developing, so it was just a different world.

When you look back and think, how did I get there? It was a lot of luck and it was being in the right place at the right time.”

His workload as a barrister increased in the early ‘90s when he was involved in the State Bank Royal Commission.

“I was lucky to do it, because it’s so interesting. In a sense it’s a dream job, and it probably was for all the barristers who were involved in it.”

“The collapse of the State Bank wasn’t too good a thing. I got asked to be the counsel assisting. I had a friend and a person I very much admire - Simon Lane who was my co-counsel or junior counsel and we had a good team of lawyers working on that.”

“But it was a different exercise, because not many people do them, at least in that scale. You don’t really know where to start, so it was really a very big consultation process too.”

ORAL HISTORIES

“Sam Jacobs QC, who was the Commissioner, had his guiding hand on all of it, because he had vast commercial law experience as a barrister and as a judge.”

“I’d had another mentor in the legal profession, called Bob Fisher, who was also a very eminent Queen’s Counsel, and he went on to the Federal Court. Both of those people helped me along and taught me a lot.”

“When you think about how you do commercial litigation and how you manage it, it took quite a lot to organise and pull it all together, and then, as you’re working as a team, you develop themes, and then you consult with all the other people that are involved, for other interest groups or other people to see where their themes are, and it sort of evolves.”

“So, it evolved into the Royal Commission Report.”

He admitted the lengthy process was “very tiring and exhausting” and when he was approached to join the Federal Court the decision to accept was easy.

“If someone had said to me when I was at school or when I started law that I would end up there, I wouldn’t have even thought

it was within my dreams. So, having been asked, the answer was yes,” he said.

“I was very pleased to take it, because the Federal Court, in a sense, was the natural home for the use of my technical skills, because that’s the sort of work I did. I also had a more Australia-wide perspective than a lot of others, because I’d been President of the Law Council and seen the Australia-wide issues.”

“Because I’d been working so hard that was also an opportunity to give more time to the family. So, it fitted a lot of things at the time.”

Aside from his extensive work on Native Title claims, Mr Mansfield’s expertise in the area of trade practices saw him serving as President of the Australian Competition Tribunal from 2011 to 2017.

Retiring as a Federal Court Judge in 2016, Mr Mansfield said he hoped to be remembered as “hardworking and courteous, moderately good”.

Included in his long list of career achievements was a term as President of the Law Society in 1988/89 and serving on numerous committees for the Society over the years. As President of the Law Council

in 1993/94 he oversaw the adoption, in concept, of the principles for a national legal profession.

“The other thing that I think is important, or was important to me, is that I was on both the Legal Aid Committee of the Law Society and the Legal Aid Committee of the Law Council for a good many years.”

“I spent a lot of time there, which was, in a sense, also an introduction to the disadvantaged and particularly the Aboriginal disadvantaged.”

“The Law Council committee was an interstate body, and even though we were not a national profession at that time, that committee was very national in its perspectives and we were all confronting the change by the introduction of the Australian Legal Aid Office and the Legal Services Commission, trying to support them and get more money for legal aid and trying to work out where the needs were.”

To read more about Mr Mansfield’s outstanding career, as well as his love for family and passion for collecting historical books, go to www.lawsocietysa.asn.au B

DIALOGUE

A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 4 JUNE 2020 AND 16 JULY 2020 Joint Rules Advisory Committee im White (President), Alexander Lazarevich (Chair of the Civil Litigation Committee) and Philip Adams represented the Society at meetings of the Joint Rules Advisory Committee. The Uniform Court Rules, which commenced in the civil jurisdiction on 18 May were the major topic considered. The Civil Litigation Committee provided a detailed list of questions and suggestions relating to the Rules, for the June meeting.

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26, 27 JUNE 2020 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 Tim White (as President and also as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings, which were held via videoconference. Key topics of discussion included Professional Standards Schemes and legislation; LCA finances and budget including the capitation fee paid per constituent body member; sexual harassment in the legal profession (prompted by the High Court’s report in

relation to complaints against the Hon Dyson-Heydon AC QC) with a number of actions and projects agreed; lessons learned from COVID-19 including changes that should continue; and support for a Federal Human Rights Charter.

2 JULY 2020 Meeting with Safeguarding Task Force Society representatives Tim White, Dr Anna Finizio (Policy Lawyer) and Natalie Wade met with the Safeguarding Task Force following the Society’s submission to the Task Force in relation to its Terms of Reference and the Community Visitor Scheme Bill introduced by Ms Nat Cook MP. B August 2020 THE BULLETIN

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CONDUCT COMMISSIONER

Overcharging complaints: what has changed?

GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

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n my article in the August 2019 Bulletin, I briefly summarised the changes that were being made to the Legal Practitioners Act (Act) by the Legal Practitioners (Miscellaneous) Amendment Act 2019 (SA) (which was then still a Bill). Those changes came into operation on 1 December, 2019. There have been further changes to the Act since then, which were made by the Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Act 2019 (SA), with the relevant changes for the purposes of this article coming into operation on 21 May, 2020.

I want to focus in this article on the changes made by both Amendment Acts to the way in which I can deal with overcharging complaints. For this article, I will ignore the somewhat problematic transitional provisions that apply to those complaints that were made between 1 December, 2019 and 21 May, 2020.

Overcharging complaints are dealt with in section 77N of the Act. Previously, I could only make a binding determination as to whether there had been any overcharging if the amount in dispute was no more than $10,000. That amount has now been increased to $50,000.

Before I can make a binding determination, I have to obtain a costs assessment of the practitioner’s legal costs – which I normally get from an external expert, and which obviously comes at a cost. Accordingly, I have not normally obtained such an assessment unless I could make a binding determination – there was no point incurring that expense if all I could do was make a non-binding recommendation.

There will now be many more overcharging complaints in relation to which I can make a binding determination.

In addition, I can now pass on the cost of obtaining the necessary costs assessment to either the complainant or the overcharging practitioner. Under

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new section 77N(4a), I can require the complainant to pay the reasonable costs of the costs assessment upfront, and then refund that amount to the complainant “if the complaint is upheld”. Then, under new section 77N(10)(c), it the complaint of overcharging results in a determination or finding that there has been overcharging, then the cost of any costs assessment undertaken “are recoverable from the legal practitioner . . . as a debt due to the Commissioner”.

So, how will this all work in practice?

Any costs dispute between a firm and its client can of course be resolved at any time, whether before a complaint is made or after, by negotiations between the firm and the complainant. And some costs disputes will head to the Magistrates Court after the firm issues recovery proceedings, or to the Supreme Court for adjudication.

If an overcharging complaint is made to me then, like any complaint, I can close it under section 77C of the Act, if it is appropriate to do so.

If I decide to investigate an overcharging complaint, then as with any complaint it will be published to the practitioner and investigated. At the end of the investigation, I will then report on my findings – which may be that I have no definitive view, that there is no (evidence of) overcharging, or that there is (evidence of) overcharging.

If I report that there is (evidence of) overcharging, I can make a non-binding recommendation for the firm to reduce its fees, or to make a refund.

Either during the investigation or after a recommendation, my office is able to assist the parties to conciliate an agreed resolution to their dispute.

If the recommendation is accepted by both parties, or if a conciliated outcome is achieved, then that will usually be the end of the matter.

Assuming there is no agreement though then, if the amount in dispute is $50,000 or less, I will consider whether or not I will proceed with the process of making a binding determination under section 77N(7).

As before, I must first obtain a costs assessment, for which I will need the practitioner’s file. Now, before I obtain a costs assessment, I will (usually) ask the complainant to pay an amount upfront on account of the anticipated cost of the costs assessment.

Once I have obtained the costs assessment, then both the practitioner and the complainant can make submissions on it.

I will then make a binding determination.

I will also need to decide whether to refund the amount the complainant has paid for the costs assessment. If I decide to do so, then I will most likely also decide that the practitioner should pay those costs instead.

In deciding who will bear the cost of the costs assessment, I will take into account the amount by which the amount I have determined should be paid is: • less than the firm’s costs; • different from the recommended amount; • different from the amount of any offer made during negotiations or conciliation.

I will then apply the “15% rule” – which approach is essentially based on clause 49 of Schedule 3 of the Act. That is, the cost of the costs assessment will be borne by the practitioner if the complainant improves his or her position by 15% or more, or by the complainant if there is less than a 15% improvement.

The risk of having to pay for the costs assessment is one that I would expect both the practitioner and the complainant to take into account in negotiations. B

APPOINTMENTS

New legal appointments announced

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oni Vozzo was recently appointed as a Magistrate, replacing Alfio Grasso who has retired from the Magistrates Court.

She commenced her new role on 20 July.

Magistrate Vozzo was the inaugural Chair of the Society’s Wellbeing & Resilience Committee, and has remained at the helm of the Committee from its inception in 2012 up until her appointment to the Magistracy. Through her stewardship, the Wellbeing & Resilience Committee has taken on an increasingly important role in raising awareness of mental health in the profession and developing a raft of resources to help practitioners improve their health and wellbeing.

Magistrate Vozzo has also been an active member of the Indigenous Law Students Mentoring Scheme.

Attorney General, The Hon Vickie Chapman MP, said: “Toni Vozzo has worked in the legal sector for over 30 years, with a focus on litigation and dispute resolution – and has been widely recognised as a leader in the field.”

Laura Stein has been appointed as SA’s new Crown Solicitor, a role she is due to begin on 3 August. Ms Stein replaces Mike Wait SC, who will commence his new role as Solicitor-General on the same day.

“Laura Stein has an extensive background both in private practice and working for the Crown – rising through the

ranks from High Court Judge’s Associate to the head of the largest division within the Crown Solicitor’s Office, Civil Litigation,” Attorney-General Vickie Chapman said.

“In private practice with Fisher Jeffries, she was involved in the litigation of many highly sensitive and complex cases.

“Since being employed within the Crown Solicitors’ Office, Ms Stein has overseen disputes relating to the construction and operation of the new Royal Adelaide Hospital, and aspects of the development of emergency legislation relating to the Government response to the coronavirus pandemic.

“She has also taken on a significant leadership role in the day-to-day operation of, and reform within, the Crown Solicitor’s Office, including the digitalisation of the Civil Litigation Section.

Nicolle Rantanen was announced on 9 July as the State’s new Public Trustee.

Ms Rantanen has been performing the role of Acting Public Trustee since March 2018, and was previously Chief Operating Officer of the Department of Treasury and Finance.

Ms Rantanen has a Masters of Commercial Law, a Master of Business Administration and a Bachelor of Commerce. She is a Graduate of the Australian Institute of Company Directors, and is a Fellow of the Australian Society of CPAs.

Attorney-General Vicki Chapman said: “Ms Rantanen was appointed Acting Public Trustee at a time when significant reforms were underway within the agency to respond to the Independent Commission Against Corruption’s independent valuation.”

“She has helped deliver a more focused, more efficient Public Trustee that delivers better services for some of South Australia’s most vulnerable citizens.”

The Family Court and Federal Circuit Court recently announced three new appointments to the Adelaide registry.

Kathryn Heuer has been appointed as Senior Registrar to the Court’s Adelaide registry, while Jacqueline Schirippa and Camille McDonald have been appointed as registrars of the family law courts in Adelaide.

The three registrars will be involved in the implementation of the “Lighthouse Project”, a risk screening and triage program taking place in the Adelaide, Brisbane and Parramatta Registries. The program aims to better protect litigants experiencing or at risk of family violence, and will involve screening for high risk outcomes in parenting matters, triaging and managing cases based on their risk profile, and establishing a specialist list for high-risk matters.

The Society congratulations all practitioners on their appointments. B

• Mediation • Conciliation • Dispute Representation • Mediation Advocacy • NMAS Accredited

Contact Stephen Dickinson (LLB (Hons), NMAS Accredited Mediator)

E stephen@ansr.com.au M 0414 456 474 Or visit ansr.com.au for all matter and client enquiries August 2020 THE BULLETIN 35

RISK WATCH

Lawyers’ Paramount Duty to the Court: Greater Risks for ProBono/No-Win-No-Fee Work?

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

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hat a lawyer’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty — including that owed to the lawyer’s client — is well known (see Australian Solicitor’s Conduct Rules — Rule 3.1), but how does the apparent conflict in these duties really work in practice?

A particularly acute and instructive example of how the paramount duty applies and interacts with the duty owed to clients can be found in the recent decision of the Family Court in Pilkvist & Coburn (Deceased) [2020] Fam CA 92.

THE FACTS The applicant Ms Pilkvist (Ms P) was engaged as the carer of Mr Coburn (Mr C) in 1993. Mr C was a quadriplegic. The terms of the engagement were that Ms P would live in Mr C’s house with him and would be provided with board and a weekly payment. Mr C died in mid2019 aged 85 years. Notwithstanding his disability, Mr C had operated a number of businesses and his estate was worth approximately $11m at his death.

In July, 2014, Mr C was removed from his home by others acting pursuant to a Power of Attorney and admitted to hospital. Shortly after that Mr C commenced to live in a nursing home. At around the same time, Mr C’s attorneys evicted Ms P from Mr C’s home. Ms P alleged that she was in a de facto relationship with Mr C and that this relationship continued until Mr C’s death in May, 2019.

36 THE BULLETIN August 2020

THE PROCEEDINGS Ms P commenced proceedings in the Family Court in June 2016, seeking a declaration “that a de facto relationship exists between the parties” and that the Court “order an alteration of property interests pursuant to s. 79 of the Family Law Act 1975 (Cth) (FLA)”. There was evidence that Ms P was impecunious and “a person of low average intelligence with minimal education from Country who speaks and understands English but has no real understanding of the legal process.”

The Application was drafted by Ms F, Ms P’s lawyer. Sharp-eyed readers will notice several problems with the orders sought — s.79 of the FLA only applies to married couples and, critically, the entitlement to apply for a property settlement as a de facto only arises after the breakdown of the relationship (s. 90 SM FLA).

The key fact is that, consistent with the orders sought in the Application, Ms P’s evidence was that she and Mr C remained in a relationship up to the date of Mr C’s death, despite their physical separation i.e. the relationship had not broken down — it only ended upon the death of Mr C. The Application remained basically the same throughout the interlocutory stages of the proceedings, despite being amended a number of times, including after Ms F briefed Ms B to appear as Counsel for Ms P.

THE DECISION Carew J had little difficulty dismissing Ms P’s application (Pilkvist & Coburn (Deceased) [2019] Fam CA 635) because no jurisdictional basis for the orders sought was established. Indeed, no

RISK WATCH

jurisdictional basis was even possible on the Applicant’s own case. The Judgment we are currently considering concerned a subsequent application by Mr C’s legal personal representatives for costs of the proceedings against Ms P and her legal advisors on an indemnity basis.

No order for costs was made against Ms P on the basis that had Ms P been properly advised “the proceedings should not have been commenced, let alone continued” [43].

Further, her Honour found that “if the applicant insisted on the proceedings continuing, despite advice, her legal representatives had the option to withdraw. A failure to do so leaves them vulnerable to costs” [43] (emphasis added).

In discussing the circumstances in which a court might order costs against a lawyer (see para [26]) Carew J quoted the relevant principles from Cassidy v Murray (1995) FLC 92-633, some of which are as follows: “… b) There is a need to balance the competing public interests involved, namely, the concern that lawyers should not be deterred from pursuing their clients’ interests for fear of being made personally subject to orders for costs, and the principle that innocent parties should not be occasioned costs, for which they would not otherwise be liable, as a result of the inappropriate conduct of lawyers; …. d) The lawyers has a duty to the Court to promote the interests of justice whilst at the same time attending to the needs of the lawyer’s client; e) A mistake or error of judgement would not justify an order for costs against a lawyer.

However, misconduct, default or negligence, any of which are found by a Court to be of a serious nature, may be sufficient to justify an order.” (emphasis added)

Ms F’s position was merely that she was not negligent. This was untenable given that Ms F had drafted the original Application and its subsequent versions.

Ms B’s position was that she was of the understanding that the relationship ended when Mr C was removed from his home and that Ms P had given “completely different evidence at trial”. The problem with this submission was that it was inconsistent with the various iterations of the application as filed. Her Honour therefore found that it was not the case that Ms P had given completely different evidence at trial and ordered that Ms F and Ms B jointly and severally pay Mr C’s costs on an indemnity basis, fixed at $100,000.

GREATER RISKS IN PRO-BONO/NO-WINNO-FEE CASES Law Claims has seen recently an increase in claims made against lawyers where the lawyer was acting pro-bono or on a no-win-no-fee basis. Whilst the basis on which Ms F and Ms B were acting is not clear from the Judgment, given Ms P’s acknowledged impecuniosity and her lack of understanding of the legal process, it would not be surprising if Ms F and Ms B were acting pro-bono or on a no-win-nofee basis.

We are all aware of the spiralling costs of litigation, and the preparedness of lawyers to act pro-bono or on a no-win-nofee basis is obviously a critically important factor for access to justice. It is important to remember that even where the retainer is of that nature, the normal duties of lawyers apply, both with respect to duties to the client and, more importantly, the paramount duty to the Court.

Often these sort of matters involve difficult questions of fact and/or law, as well as “interesting” personalities.

The Pilkvist case clearly demonstrates (especially in the passage of the Judgment

at [43] quoted above) that the paramount duty to the Court requires lawyers not to run “hopeless” cases, even where they might have every sympathy with their client.

If the position was — as it clearly was in Ms P’s case — that any de facto relationship was continuing, then she should have been advised that she had no claim. The paramount duty to the Court requires that lawyers have these difficult conversations with their client and if the client is not prepared to act on the lawyer’s advice, the lawyer should cease to act.

Of course, like everything in the law, there are always shades of gray and not every difficult case which is lost will or should result in a costs order against the lawyer. Indeed, many difficult cases are won “against the odds” as it were, and it would clearly be against the interests of justice for only cases which are certain winners to be run. What is clear, though, from a Risk Management point of view, is that lawyers should take the opportunity of protecting themselves by giving robust advice — in writing — about the risks of litigation and any offers of settlement which might be made along the way.

There is also an important, and potentially expensive, “sting in the tail”.

The Professional Indemnity Insurance Scheme excludes indemnity in respect of orders for costs made against insured lawyers to the extent that the order is based on the Insured having engaged in conduct knowingly or recklessly in breach of that Insured’s duty to the Court or Tribunal, including having advanced a claim or defence found to have had no real prospects of success. Had the Pilkvist case occurred in SA therefore, it is likely that Ms F and Ms B would have had to bear the costs orders made against them personally. This is yet another reason to make sure that the paramount duty to the Court is taken very seriously.

August 2020 THE BULLETIN

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TAX FILES

No gain without pain – paying tax on profit-making transactions ANDREW SHAW, SHAW LAWYERS “The best things in life are free, but you can give them to the birds and bees, I want money (that’s what-I-want), I want money (that’s what-I-want), just give me money (what-I-want), that’s what I want.” – Bradford & Gordy, “Money (That’s What I Want)” (1959)

A

recent decision of the Administrative Appeals Tribunal in XPQZ, KYZC, DHJP v Commissioner of Taxation is a reminder that gains made on the sale of shares may be taxable as income according to ordinary concepts, rather than as capital gains.1 As a result, the discounted basis of taxation applicable to capital gains is not available.2 Further, such income cannot be offset against current or carry forward capital losses.

It is important to bear these rules in mind in any transaction intended to produce a profit, even if the transaction is not in the course of carrying on a business. An obvious example is buying up listed shares while stock markets are depressed in anticipation of making quick profits as they recover post-COVID.

BACKGROUND The trustee of a trust (Trustee) acquired shares in Doyles Creek Mining Pty Ltd (Doyle’s Creek). In 2007 Doyle’s Creek acquired land in the Hunter Valley and sought an exploration licence by direct allocation (i.e. without participating in a tender process). When the exploration licence was allocated to Doyle’s Creek, the value of Doyle’s Creek increased greatly.

The Trustee sold some shares in Doyle’s Creek in October, 2009. In February, 2010 the Trustee exchanged its remaining shares for shares in NuCoal

38 THE BULLETIN August 2020

Resources Pty Ltd. The sole shareholder and director of the Trustee (Mr Poole) was also a director of Doyle’s Creek and NuCoal.

The gains on disposal of the shares were almost $17 million. The Trustee treated the gains as on capital account. The gains were therefore taxed on a discounted basis (50% discount) in the hands of beneficiaries of the Trust.

The Commissioner of Taxation issued assessments which treated the gains as income under ordinary concepts, rather than as discounted capital gains. The Commissioner also assessed penalties equal to 50% of the primary tax on the basis that the Trustee’s treatment of the gains on capital account was “reckless”.

BURDEN OF PROOF A taxpayer has the burden of proving on the balance of probabilities that an assessment is excessive, and in what amount the assessment should have been made.3 If a taxpayer succeeds in “weighing down [the] scales ever so slightly in his favour then he has discharged the burden he carries”.4 It was therefore up to the Trustee to convince the Tribunal that the gains should properly be taxable on capital account.

GENERAL PRINCIPLES A gain made on sale of property will be on revenue account on two alternative

bases, known as the first and third limbs identified by the High Court in the leading authority of Commissioner of Taxation v The Myer Emporium Limited (1987) 163 CLR 199, namely: • The gains were made in the ordinary course of carrying on a business of buying and selling property; or • The property generating the gain was acquired in “a business operation or commercial transaction” for the purpose of profit-making by the means giving rise to the profit (i.e. by sale of the property).

The profit or gain must be associated with a “scheme, business operation or commercial transaction”, and must also be accompanied by the relevant purpose of profitmaking at the time of the acquisition. Where a transaction occurs outside the scope of ordinary business activities, it is necessary to find, not only that the transaction is “commercial”, but also that there was, at the relevant time, the intention or purpose of making a relevant profit “in the manner contemplated by the taxpayer”. 5 Professor Parsons described the features which are necessary to give a transaction the character of a business deal or of a trade of dealing on a single occasion as including “an elusive factor that is more than purpose to profit”.

Parsons opined that “the transaction must be the sort of thing a business man or man of trade does…”.6 An acquisition of property for longterm investment does not have the quality of a business operation or commercial transaction even if there is a hope or expectation of eventual gain on sale. In Westfield Limited, the Full Federal Court held that a profit from sale of land by a

TAX FILES

taxpayer who had acquired the land with the intention of developing it, and not to realise a profit by resale, was not part of a profit-making scheme. It was therefore a gain of a capital nature, rather than income in ordinary concepts: “While a profit-making scheme may lack specificity of detail, the mode of achieving that profit must be one contemplated by the taxpayer as at least one of the alternatives by which the profit could be realised. Such was the case in Steinberg. But, even if that goes too far, it is difficult to conceive of a case where a taxpayer would be said to have made a profit from the carrying on, or carrying out, of a profit-making scheme, where, in the case of the scheme involving the acquisition and resale of land, “there was, at the time of acquisition, no purpose of resale of land, but only the possibility (present, one may observe, in the case of every acquisition of land) that the land may be resold”. 7 The fact that an owner decides not to persist with an income producing activity, but instead to sell the property, does not mean that the proceeds of realisation necessarily become taxable as ordinary income. The profit is assessable as ordinary income only if it arises from the carrying on of the business or a profitmaking undertaking or scheme. In Statham v FCT (1989) 89 ATC 4070 the Full Federal Court observed: “It is well established by the reported cases, including those mentioned above, that the mere realisation of an asset at a profit does not necessarily render the profit taxable. The profit must arise from the carrying on of a business or a profitmaking undertaking or scheme.

The mere magnitude of the realisation does not convert it into such a business, undertaking or scheme; but the scale of the realisation activities is a relevant matter to be taken into account in determining the nature of the realisation, i.e. in determining whether the facts establish a mere realisation of a capital asset or a business or profitmaking undertaking or scheme.”8

DECISION IN THE PRESENT CASE It was not suggested that the Trustee was carrying on business as a share trader, or any business at all. The Tribunal noted: “However, it is well established that gains on disposal of property acquired otherwise than in the course of a business but in a “business operation or commercial transaction” for the purpose of disposal at a profit, by the means giving rise to the gains, are on revenue account and therefore ordinary income under s 6-5 of the Income Tax Assessment Act 1997 (Cth).

It is not necessary for profit-making to be the sole or even dominant purpose; it is sufficient if it is a “not insignificant purpose” of the acquisition”.9 The Trustee contended that, when it acquired the shares, it did not have as its state of mind an intention that they be disposed of at a profit. Rather, the Trustee saw Doyle’s Creek “as a long-term and speculative play” with the aim of getting the exploration licence with minimal upfront consideration “to see where the exploration and proving of the resource would develop”.10 The Tribunal noted that a “long-term and speculative play” is not inconsistent with an intention that shares be disposed of at a profit where the activities designed to

increase shareholder value to obtain profit inevitably require an extended period. A profit-making scheme may take many years to complete, especially where the planned activities are substantial. The Tribunal referred to the decision of the Full Federal Court in Grieg v Commissioner of Taxation in which Steward J acknowledged that where shares are acquired by an individual for the purposes of obtaining a dividend yield and for long-term growth, any gain on a subsequent sale of the sales is likely to be on capital account. Steward J also observed that: “… some profit-making schemes can take many years to complete… It is not antithetical to a profit-making undertaking for a taxpayer to wait for the profit to become realisable, so long as that was the profit the taxpayer planned to secure.

Waiting, without more, will not convert the profit eventually realised into an affair of capital.” 11 The Tribunal concluded that the “clear and undisputed plan” of the Trustee and Mr Poole was that the value of Doyle’s Creek would be substantially increased by the obtaining of the exploration licence and potentially the proving of the resource.

There was an inescapable inference that, at the time of acquisition of the shares, the Trustee had a “not insignificant purpose” of disposing of the shares at a profit. It “would defy common sense to suggest that Mr Poole or the Trustee had no contemplation at the time of the Trustee’s acquisitions that the shares would be disposed of at a profit at an opportune time once the value of Doyle’s Creek had been increased through pursuit of the activities planned when the shares were acquired”. A substantial profit was in fact August 2020 THE BULLETIN

39

TAX FILES

realised by the means contemplated from the outset; namely after Doyle’s Creek achieved its objective of obtaining an exploration licence by direct allocation.12 It did not assist the taxpayers that the Trustee never received or expected dividends from Doyles Creek (as might be expected if the Trustee’s intention had been to derive profits from a long-term investment). Nor did it assist that Mr Poole had made statements to the ICAC and in related legal proceedings that he had no intention of “hanging around” to operate a coal mine, and various other evidence about realising the assets. At the time of acquiring the shares “a finite profit-making venture had been embarked upon” leading to the inference that the Trustee intended, when it acquired the shares, to dispose of them at a profit.13 Accordingly, the gain on sale of the shares was taxable as ordinary income, not as a capital gain.

TAKE HOME MESSAGES To be taxable as ordinary income rather than a capital gain, a purpose of sale or resale for a profit must exist at the time of acquisition of the relevant property.

A possibility that the property may be resold is insufficient (the possibility of resale being present in every case of acquisition of property).

The actual mode by which the profit is achieved must have been contemplated by the taxpayer as at least one means of realising profit from the property, even if not the principal means.

Evidence about a taxpayer’s intentions may come from many sources including correspondence relating to the transaction, finance negotiations, planning applications, and even ICAC transcript.

Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B

Endnotes 1 [2020] AATA 1014 (24 April 2020).

2 Capital gains are discounted by 50% for tax purposes if certain basic conditions are satisfied: Division 115 of the Income Tax Assessment Act 1997 (C’th).

3 Section 14ZZK of the Taxation Administration Act 1953 (C’th).

4 At [29]. See FCT v Cassaniti [2018] FCAFC 212.

5 The Myer Emporium Ltd at 209-213; Westfield Limited v Commissioner of Taxation (1991) 91 ATC 4234.

6 Parsons, RW, Income Taxation in Australia: Principles of Income, Deductibility and Tax Accounting (1985) at [2.498] – [2.500], cited in Greig v Commissioner of Taxation [2020] FCAFC 25 at [241], [242].

7 Westfield, per Hill J at 4,243 (emphasis added).

8 Statham at 4,075.

9 At [31], citing The Myer Emporium Ltd and FCT v Cooling (1990) 22 FCR 42.

10 At [41].

11 Greig (above) at [246].

12 At [45] – [50].

13 At [44], [51] – [53]. The circumstances relating to the issue of the exploration licence without a tender process were the subject of an ICAC (NSW) enquiry and related proceedings in which Mr Poole gave evidence that was later used by the Commissioner of Taxation in these tax proceedings.

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ARTIFICIAL INTELLIGENCE, ROBOTS AND THE LAW

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40 THE BULLETIN August 2020

Abstract from LexisNexis Artificial Intelligence, Robots and the Law is a call to students, lawyers, technologists, academics, regulators and others to engage with the issues raised by new developments in these technologies.

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FAMILY LAW CASE NOTES

Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK PROPERTY – ISOLATING PARTICULAR CONTRIBUTIONS OVERLOOKED “MYRIAD OF CONTRIBUTIONS” BY PARTIES IN LONG RELATIONSHIP

I

n Barnell [2020] FamCAFC 102 (1 May, 2020) the Full Court (Ryan, Aldridge and Kent JJ) allowed the wife’s appeal of a 25 per cent differential between the parties’ contribution based entitlements assessed by a judge of the Family Court of Western Australia.

The parties were together for 21 years and had two children (22 and 16) who lived with the wife. The wife had received gifts from her family of $70,000. The husband made initial contributions including an interest in “the B property” which the trial judge held ([20]) should give rise to a 25 per cent contribution based adjustment in his favour. At trial the B property was worth $340,000 and represented 36 per cent of the net pool ($941,096).

The Full Court said (at [34]): “In Hurst [2018] FamCAFC 146 the Full Court quoted what the primary judge had recorded … as to a property inherited by the husband … ‘the Suburb C property’: ‘[16] Each party received inheritances throughout the marriage which were in large part used for the benefit of the family (other than the [Suburb C] property). (…) Apart from paying the rates and regular slashing the land has remained untouched. It cannot be said that the wife has made any contribution to this property other than indirectly by the rates and slashing costs being paid. The

[Suburb C] property has appreciated in value over the years and even after separation. This property is now the most valuable asset of the parties.’

(Emphasis in original)” The Court concluded ([42]): “We are persuaded that by isolating the B Property in the manner in which his Honour did and by adopting a differential of as much as 25 per cent between the parties as to their contributions based entitlements as a consequence of ‘quarantining’ the B Property, and giving discrete consideration to that contribution, the primary judge fell into the same error as was made … in … Hurst [above] and Jabour [[2019] FamCAFC 78] … We consider that his Honour’s approach had the overall effect of according a subsidiary role to the wife’s contributions.”

CHILDREN – CHILD WELFARE – MOTHER FAILED TO SATISFY COURT THAT SUPERVISION OF FATHER WAS BOTH NECESSARY AND AVAILABLE In Aitken & Gladstone [2020] FCCA 966 (8 May, 2020) Judge McGuire heard an interim application by the father to spend unsupervised time with his six year old child X. The mother sought an order that the father be supervised. The Department of Health and Human Services, Victoria (“DHHS”), who had been the applicant in State Court child protection proceedings for three years, appeared as amicus curiae.

DHHS supported the mother’s case, which

was consistent with the existing State Court order.

The parties had been involved in Federal Circuit Court (FCC) proceedings since 2013, including two parenting trials. There had been long-standing State Court intervention orders including an interim accommodation order made in the Children’s Court that the father’s time with X be supervised.

The Court said (from [77]): “ … [I]t is the mother who argues that X’s time with the father should continue to be supervised. … [S]he offers no further particulars … except leaving the obligation for the orders that she seeks on the father … She insists on a supervisor but does not nominate one. ( … ) [80] … I think it disingenuous to simply leave the finding of a supervisor to the father … where he does not seek an order in those terms and when the Department suggests no availability. ( … ) [83] … I am not persuaded that X’s time with his father needs to be supervised in the interim. Significantly, I have found importance for X in maintaining a relationship with his father. I am not satisfied on the evidence that any supervisor, even if necessary, is available. … In this sense, the obligation to show that supervision is both necessary and available sits here with the mother and the Department. ( … )” An interim order was made that X spend unsupervised time with the father, the State Court order to be discharged.

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FAMILY LAW CASE NOTES

CHILDREN – MOTHER SUFFERS PTSD DUE TO FATHER’S VIOLENCE – ORDER FOR INTRODUCTION OF CHILDREN TO THEIR PATERNAL ABORIGINAL FAMILY In Hallett & Malcolm & Anor [2020] FCCA 835 (15 April, 2020) Judge Small heard an application by a paternal grandmother to spend time with her nine and seven-year-old grandchildren “X” and “Y”. The children lived with the mother.

The father had a history of violence, drug use and criminal conduct, had not seen the children since 2015 and took no part in the case. The children had not spent any time with the grandmother for three years.

The mother opposed the application due to her fear that the grandmother would bring the children into contact with the father. The paternal family were of Aboriginal heritage from the “B” region.

Before the Court were a family report prepared by psychologist “Ms L” and evidence from Koori support workers and Aboriginal elders “Ms H”, “Ms N” and “Ms A”.

The Court said (from [419]): “I must craft orders that protect X and Y from … harm ( … ) [423] The children’s views as expressed to Ms L are quite clear: they do not wish to see or spend time with Ms Hallett.

[424] … [T]he children are still quite young, and Ms L’s evidence is that their views have been negatively influenced by their mother. It is difficult to see how they can have avoided that influence, whether directly, by being told that [the grandmother] and the father are ‘bad people’, or indirectly by being exposed to their mother’s severe PTSD around issues involving their father’s family.

42 THE BULLETIN August 2020

[425] While I accept the children’s views as genuine, I do not place a great amount of weight on them because of their young age, and the … influence of their mother. ( … )” The Court continued (from [441]): “The evidence … does not give … much confidence that the … grandmother is capable of caring for the children. ( … ) [456] I am satisfied … that Ms A’s proposal that she work with [the mother] to allow the children to be introduced to paternal family members and taught where they fit into their father’s family and B society at family gatherings and cultural events … will allow them to ‘enjoy’ their Aboriginal culture with other people who share that culture.”

It was ordered accordingly.

PROPERTY – LEAVE TO PROCEED SOUGHT – COSTS COULD EQUAL OR EXCEED CLAIM – HARDSHIP In Lacy & Cloett [2020] FCCA 791 (9 April, 2020) Judge Boyle dismissed an application by a de facto partner (Ms Lacy) for leave pursuant to s 44(6) of the Family Law Act to commence property proceedings out of time. The respondent (Mr Cloett) opposed the application.

The parties lived together for five years. There were no children. A property was bought by the respondent for $399,000 with a mortgage of $364,930.

The applicant alleged that she paid $24,000 towards the deposit and $1,000 per month towards repayments. The respondent’s case was that those payments were rent; that he had given the applicant money and that her loans to him were repaid.

After separation the respondent’s property lost value from $575,000 in 2018 to $499,000 in 2019 (its mortgage at trial being $376,000) and the applicant bought her own home for $500,000 with a mortgage of $385,000. She argued that she would suffer hardship within the meaning of s 44(4) if leave were not granted.

The Court (at [16]) cited Whitford [1979] FamCA 3 in which the Full Court said that “where the costs which the applicant will have to bear … are about as much [as] or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted”.

The Court said (from [30]): “ … [T]here is no adequate explanation advanced by the applicant with respect to delay in filing proceedings. ( … ) [35] The applicant should have filed an application for property settlement

by October, 2016. Despite having spoken with a solicitor shortly after separation in September, 2014, and receiving advice in March, 2018 from her current solicitors, no application was filed until the current application on 4 April, 2019.

[36] The parties are currently in a similar financial situation in terms of assets and liabilities. Life has moved on for both of them, as one would expect, in the years following separation.

The respondent has refinanced the property, as he was entitled to do.

[37] There is a modest pool of assets.

The parties have been separated for five years at the date of filing. The costs of the litigation would at best limit any amount received, and there is a real possibly could equal or exceed it.” B

GAZING IN THE GAZETTE

3 JUNE 2020 – 2 JULY 2020 ACTS PROCLAIMED Criminal Law Consolidation (False or Misleading Information) Amendment Act 2019 (No 36 of 2019) Commencement: 18 June 2020 Gazetted: 11 June 2020, Gazette No. 50 of 2020 Education and Children’s Services Act 2019 (No 19 of 2019) Commencement: 1 July 2020 Gazetted: 11 June 2020, Gazette No. 50 of 2020 Planning, Development and Infrastructure Act 2016 (No 14 of 2016) Commencement Sch 6 cl 19; Sch 8, cl 32(2), 33 and 34 Gazetted: 18 June 2020, Gazette No. 51 of 2020 Statutes Amendment and Repeal (Simplify) Act 2019 (No 25 of 2019) Commencement Part 11 and s 29: 18 June 2020 Gazetted: 18 June 2020, Gazette No. 51 of 2020 Surrogacy Act 2019 (No 31 of 2019) Commencement except Sch 1 cl 4: 1 September 2020 Gazetted: 18 June 2020, Gazette No. 51 of 2020 Landscape South Australia Act 2019 (No 33 of 2019) Commencement ss 8-10; 25-27; 30-33; 40; 42-50; 52-65; 67-68; 70; 72-75; 77-87; 90-92; 93(1) and (2); 93(4)-(8); 94-101; 103-222; 224-241; 243-244; 249; Sch 2 cl 2; Sch 3; Sch 4 cl 1-5; Sch 4 cl 6(a)-(d); Sch 4 cl 6(g); Sch 4 cl 7; Sch 4 cl 16-20; Sch 5 cl 1-87: 1 July 2020 Gazetted: 25 June 2020, Gazette No. 53 of 2020 Rail Safety National Law (South Australia) (Rail Safety Work) Amendment Act 2020 (No 17 of 2020) Commencement: 1 July 2020.

Gazetted: 25 June 2020, Gazette No. 53 of 2020 Summary Offences (Trespass on Primary Production Premises) Amendment Act 2020 (No 10 of 2020) Commencement: 9 July 2020 Gazetted: 25 June 2020, Gazette No. 53 of 2020 Land Acquisition (Miscellaneous) Amendment Act 2019 (No 50 of 2019)

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

Commencement: 2 July 2020 Gazetted: 2 July 2020, Gazette No. 56 of 2020

ACTS ASSENTED TO Statutes Amendment (Bail Authorities) Act 2020, No. 15 of 2020 (amends Bail Act 1985, District Court Act 1991, Magistrates Court Act 1991 and Supreme Court Act 1935) Gazetted: 11 June 2020, Gazette No. 50 of 2020 Criminal Law (Legal Representation) (Reimbursement of Commission) Amendment Act 2020, No. 16 of 2020 Gazetted: 11 June 2020, Gazette No. 50 of 2020 Rail Safety National Law (South Australia) (Rail Safety Work) Amendment Act 2020, No. 17 of 2020 Gazetted: 11 June 2020, Gazette No. 50 of 2020 Labour Hire Licensing (Miscellaneous) Amendment Act 2020, No. 18 of 2020 Gazetted: 25 June 2020, Gazette No. 53 of 2020 Liquor Licensing (Liquor Production and Sales Licence) Amendment Act 2020, No. 19 of 2020 Gazetted: 25 June 2020, Gazette No. 53 of 2020

APPOINTMENTS Auxiliary Pool of Judicial Officers for a term of one year commencing on 1 July 2020 and expiring on 30 June 2021 Auxiliary Judge of the Supreme Court of South Australia Michael David Geoffrey Louis Muecke Paul John Rice Graham Walter Dart Katrina Jane Bochner Sydney William Tilmouth Brian Patrick Gilchrist Auxiliary Master of the Supreme Court of South Australia and Auxiliary Master of the District Court of South Australia Peter John Norman John Stephen Roder Auxiliary Master of the Supreme Court of South Australia Briony Kennewell Auxiliary Judge of the District Court of South Australia and Auxiliary Judge of the Environment, Resources and

Development Court of South Australia John Francis Costello Auxiliary Judge of the District Court of South Australia Dean Ernest Clayton Gordon Fraser Barrett Peter Dennis Hannon Auxiliary Master of the District Court of South Australia Mark Nicholas Rice Auxiliary Judge of the Youth Court of South Australia Stephen Kevin McEwen Joanne Tracey Auxiliary Magistrate of South Australia and Auxiliary Magistrate of the Youth Court of South Australia Alfio Anthony Grasso Kym Boxall Jonathan Romilly Harry Theodore Iuliano Clive William Kitchin Auxiliary Magistrate of South Australia Barbara Ellen Johns Gazetted: 11 June 2020, Gazette No. 50 of 2020 Magistrate and Magistrate of the Youth Court of South Australia on an auxiliary basis, for a period commencing on 4 May 2021 and expiring on 30 June 2021 Phillip Edward James Broderick Gazetted: 11 June 2020, Gazette No. 50 of 2020 Magistrate of the Youth Court of South Australia From 1 July 2020 Alfio Anthony Grasso Gazetted: 18 June 2020, Gazette No. 51 of 2020 From 18 June 2020 Kym Boxall Jonathan Romilly Harry Theodore Iuliano Clive William Kitchin Phillip Edward James Broderick Gazetted: 18 June 2020, Gazette No. 51 of 2020

RULES Youth Court (Care and Protection) Rules 2018 Schedule of Forms Gazetted: 25 June 2020, Gazette No. 53 of 2020

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REGULATIONS PROMULGATED (3 JUNE 2020 â&#x20AC;&#x201C; 2 JULY 2020) REGULATION NAME

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Local Government (General) (Fees) Variation Regulations 2020 Private Parking Areas (Expiation Fees) Variation Regulations 2020 Road Traffic (Miscellaneous) (Fees) Variation Regulations 2020 Motor Vehicles (National Heavy Vehicles Registration Fees) Variation Regulations 2020 Environment Protection (Fees) Variation Regulations 2020 Expiation of Offences (Fees) Variation Regulations 2020 Fines Enforcement and Debt Recovery (Prescribed Amounts) Variation Regulations 2020 Mines and Works Inspection (Fees) Variation Regulations 2020 Mining (Fees) Variation Regulations 2020 Road Traffic (Miscellaneous) (Expiation Fees) Variation Regulations 2020 Motor Vehicles (Expiation Fees) Variation Regulations 2020 Heavy Vehicle National Law (South Australia) (Expiation Fees) (No 2) Variation Regulations 2020 Aboriginal Heritage (Fee Notices) Variation Regulations 2020 Administration and Probate (Fee Notices) Variation Regulations 2020 Associations Incorporation (Fee Notices) Variation Regulations 2020 Authorised Betting Operations (Fee Notices) Variation Regulations 2020 Authorised Betting Operations (Fees) Revocation Regulations 2020 Births, Deaths and Marriages Registration (Fee Notices) Variation Regulations 2020 Building Work Contractors (Fee Notices) Variation Regulations 2020 Burial and Cremation (Fee Notices) Variation Regulations 2020 Conveyancers (Fee Notices) Variation Regulations 2020 Co-operatives (South Australia) (Fee Notices) Variation Regulations 2020 Coroners (Fee Notices) Variation Regulations 2020 Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Fees) Variation Regulations 2020 District Court (Fee Notices) Variation Regulations 2020 Environment, Resources and Development Court (Fee Notices) Variation Regulations 2020 Environment, Resources and Development Court (Fees) Revocation Regulations 2020 Evidence (Fee Notices) Variation Regulations 2020 Fines Enforcement and Debt Recovery (Fee Notices) Variation Regulations 2020 Freedom of Information (Fees and Charges) (Fee Notices) Variation Regulations 2020 Gaming Machines (Fees) Revocation Regulations 2020 Guardianship and Administration (Fee Notices) Variation Regulations 2020 Labour Hire Licensing (Fee Notices) Variation Regulations 2020 Land Agents (Fee Notices) Variation Regulations 2020 Land and Business (Sale and Conveyancing) (Fee Notices) Variation Regulations 2020 Liquor Licensing (Fees) Revocation Regulations 2020 Liquor Licensing (General) (Fee Notices) Variation Regulations 2020 Lottery and Gaming (Fees) Variation Regulations 2020 Magistrates Court (Fees) (Fee Notices) Variation Regulations 2020 Partnership (Fee Notices) Variation Regulations 2020 Plumbers, Gas Fitters and Electricians (Fee Notices) Variation Regulations 2020 Public Trustee (Fee Notices) Variation Regulations 2020 Relationships Register (Fees) Revocation Regulations 2020 Second-hand Vehicle Dealers (Fee Notices) Variation Regulations 2020 Security and Investigation Industry (Fee Notices) Variation Regulations 2020 Sentencing (Fee Notices) Variation Regulations 2020 Sheriff's (Fee Notices) Variation Regulations 2020 South Australian Civil and Administrative Tribunal (Fee Notices) Variation Regulations 2020 South Australian Civil and Administrative Tribunal (Fees) Revocation Regulations 2020 State Records (Fees) Variation Regulations 2020 Summary Offences (Fee Notices) Variation Regulations 2020 Supreme Court (Fee Notices) Variation Regulations 2020 Youth Court (Fees) Revocation Regulations 2020 Youth Court Regulations 2020

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4 June 2020, Gazette No. 47 of 2020 131 of 2020 Republished 5 June 2020, Gazette No. 49 of 2020 Dangerous Substances (Fees) Revocation Regulations 2020 132 of 2020 4 June 2020, Gazette No. 47 of 2020 Employment Agents Registration (Fee Notices) Variation Regulations 2020 133 of 2020 4 June 2020, Gazette No. 47 of 2020 Explosives (Fee Notices) Variation Regulations 2020 134 of 2020 4 June 2020, Gazette No. 47 of 2020 Explosives (Fees) Revocation Regulations 2020 135 of 2020 4 June 2020, Gazette No. 47 of 2020 Explosives (Fireworks) (Fee Notices) Variation Regulations 2020 136 of 2020 4 June 2020, Gazette No. 47 of 2020 Explosives (Security Sensitive Substances) (Fee Notices) Variation Regulations 2020 137 of 2020 4 June 2020, Gazette No. 47 of 2020 Fair Work (Representation) (Fee Notices) Variation Regulations 2020 138 of 2020 4 June 2020, Gazette No. 47 of 2020 Land Tax (Fee Notices) Variation Regulations 2020 139 of 2020 4 June 2020, Gazette No. 47 of 2020 Petroleum Products (Fee Notices) Variation Regulations 2020 140 of 2020 4 June 2020, Gazette No. 47 of 2020 Work Health and Safety (Fee Notices) Variation Regulations 2020 141 of 2020 4 June 2020, Gazette No. 47 of 2020 Bills of Sale (Fee Notices) Variation Regulations 2020 142 of 2020 4 June 2020, Gazette No. 47 of 2020 Community Titles (Fee Notices) Variation Regulations 2020 143 of 2020 4 June 2020, Gazette No. 47 of 2020 Heavy Vehicle National Law (South Australia) (Fees) Revocation Regulations 2020 144 of 2020 4 June 2020, Gazette No. 47 of 2020 Motor Vehicles (Accident Towing Roster Scheme) (Fee Notices) Variation Regulations 2020 145 of 2020 4 June 2020, Gazette No. 47 of 2020 Passenger Transport (Fee Notices) Variation Regulations 2020 146 of 2020 4 June 2020, Gazette No. 47 of 2020 Real Property (Fees) Variation Regulations 2020 147 of 2020 4 June 2020, Gazette No. 47 of 2020 Registration of Deeds (Fees) Revocation Regulations 2020 148 of 2020 4 June 2020, Gazette No. 47 of 2020 Roads (Opening and Closing) (Fee Notices) Variation Regulations 2020 149 of 2020 4 June 2020, Gazette No. 47 of 2020 Roads (Opening and Closing) (Fees) Revocation Regulations 2020 150 of 2020 4 June 2020, Gazette No. 47 of 2020 Strata Titles (Fees) Revocation Regulations 2020 151 of 2020 4 June 2020, Gazette No. 47 of 2020 Valuation of Land (Fee Notices) Variation Regulations 2020 152 of 2020 4 June 2020, Gazette No. 47 of 2020 Worker's Liens (Fee Notices) Variation Regulations 2020 153 of 2020 4 June 2020, Gazette No. 47 of 2020 SACE Board of South Australia (Fee Notices) Variation Regulations 2020 154 of 2020 4 June 2020, Gazette No. 47 of 2020 Child Safety (Prohibited Persons) (Fees) Revocation Regulations 2020 155 of 2020 4 June 2020, Gazette No. 47 of 2020 Disability Services (Assessment of Relevant History) (Fee Notices) Variation Regulations 2020 156 of 2020 4 June 2020, Gazette No. 47 of 2020 Housing Improvement (Fee Notices) Variation Regulations 2020 157 of 2020 4 June 2020, Gazette No. 47 of 2020 Housing Improvement (Fees) Revocation Regulations 2020 158 of 2020 4 June 2020, Gazette No. 47 of 2020 Supported Residential Facilities (Fee Notices) Variation Regulations 2020 159 of 2020 4 June 2020, Gazette No. 47 of 2020 Controlled Substances (Fees) Revocation Regulations 2020 160 of 2020 4 June 2020, Gazette No. 47 of 2020 Controlled Substances (Poppy Cultivation) (Fee Notices) Variation Regulations 2020 161 of 2020 4 June 2020, Gazette No. 47 of 2020 Food (Fee Notices) Variation Regulations 2020 162 of 2020 4 June 2020, Gazette No. 47 of 2020 Retirement Villages (Fee Notices) Variation Regulations 2020 163 of 2020 4 June 2020, Gazette No. 47 of 2020 Retirement Villages (Fees) Revocation Regulations 2020 164 of 2020 4 June 2020, Gazette No. 47 of 2020 South Australian Public Health (Wastewater) (Fee Notices) Variation Regulations 2020 165 of 2020 4 June 2020, Gazette No. 47 of 2020 South Australian Public Health (Fees) Revocation Regulations 2020 166 of 2020 4 June 2020, Gazette No. 47 of 2020 South Australian Public Health (General) (Fee Notices) Variation Regulations 2020 167 of 2020 4 June 2020, Gazette No. 47 of 2020 South Australian Public Health (Legionella) (Fee Notices) Variation Regulations 2020 168 of 2020 4 June 2020, Gazette No. 47 of 2020 Tobacco and E-Cigarette Products (Fees) Revocation Regulations 2020 169 of 2020 4 June 2020, Gazette No. 47 of 2020 Opal Mining (Fee Notices) Variation Regulations 2020 170 of 2020 4 June 2020, Gazette No. 47 of 2020 Opal Mining (Fees) Revocation Regulations 2020 171 of 2020 4 June 2020, Gazette No. 47 of 2020 Petroleum and Geothermal Energy (Fee Notices) Variation Regulations 2020 172 of 2020 4 June 2020, Gazette No. 47 of 2020 Adoption (Fees) Revocation Regulations 2020 173 of 2020 4 June 2020, Gazette No. 47 of 2020 Adoption (General) (Fee Notices) Variation Regulations 2020 174 of 2020 4 June 2020, Gazette No. 47 of 2020 Aquaculture (Fee Notices) Variation Regulations 2020 175 of 2020 4 June 2020, Gazette No. 47 of 2020 Fisheries Management (Fees) Revocation Regulations 2020 176 of 2020 4 June 2020, Gazette No. 47 of 2020 Fisheries Management (General) (Fee Notices) Variation Regulations 2020 177 of 2020 4 June 2020, Gazette No. 47 of 2020 Industrial Hemp (Fee Notices) Variation Regulations 2020 178 of 2020 4 June 2020, Gazette No. 47 of 2020 Industrial Hemp (Fees) Revocation Regulations 2020 179 of 2020 4 June 2020, Gazette No. 47 of 2020 Livestock (Fee Notices) Variation Regulations 2020 180 of 2020 4 June 2020, Gazette No. 47 of 2020 Pastoral Land Management and Conservation (Fees) Variation Regulations 2020 181 of 2020 4 June 2020, Gazette No. 47 of 2020 Plant Health (Fee Notices) Variation Regulations 2020 182 of 2020 4 June 2020, Gazette No. 47 of 2020 Primary Produce (Food Safety Schemes) (Egg) (Fee Notices) Variation Regulations 2020 183 of 2020 4 June 2020, Gazette No. 47 of 2020 Primary Produce (Food Safety Schemes) (Meat) (Fee Notices) Variation Regulations 2020 184 of 2020 4 June 2020, Gazette No. 47 of 2020 Dangerous Substances (Dangerous Goods Transport) (Fees) Variation Regulations 2020

August 2020 THE BULLETIN

45

GAZING IN THE GAZETTE

REGULATION NAME Primary Produce (Food Safety Schemes) (Plant Products) (Fee Notices) Variation Regulations 2020 Primary Produce (Food Safety Schemes) (Seafood) (Fee Notices) Variation Regulations 2020 Firearms (Fees) Revocation Regulations 2020 Firearms (Fee Notices) Variation Regulations 2020 Hydroponics Industry Control (Fee Notices) Variation Regulations 2020 Fire and Emergency Services (Fees) Variation Regulations 2020 Police (Fee Notices) Variation Regulations 2020 Animal Welfare (Fee Notices) Variation Regulations 2020 Botanic Gardens and State Herbarium (Fee Notices) Variation Regulations 2020 Crown Land Management (Fee Notices) Variation Regulations 2020 Heritage Places (Fee Notices) Variation Regulations 2020 Historic Shipwrecks (Fee Notices) Variation Regulations 2020 Marine Parks (Fee Notices) Variation Regulations 2020 Native Vegetation (Fee Notices) Variation Regulations 2020 Radiation Protection and Control (Fees) Revocation Regulations 2020 Water Industry (Fee Notices) Variation Regulations 2020 Warden's Court (Miscellaneous) Variation Rules 2020 Rail Safety National Law National Regulations (Fees and Other Measures) Variation Regulations 2020 Return to Work (Prescribed Class of Injury) Variation Regulations 2020 Education and Children's Services Regulations 2020 Criminal Law Consolidation (General) (False or Misleading Information) Variation Regulations 2020 Legislation Revision and Publication (Emergency Management and Other Directions) Variation Regulations 2020 Development (Fees) Variation Regulations 2020 Development (Open Space Contribution Scheme) Variation Regulations 2020 Controlled Substances (Poisons) (Electronic Prescriptions) Variation Regulations 2020 Local Government (General) (Ministerial Notice) Variation Regulations 2020 Environment, Resources and Development Court Regulations 2020 Surrogacy Regulations 2020 Births, Deaths and Marriages Registration (Surrogacy) Variation Regulations 2020 Family Relationships (Surrogacy) Variation Regulations 2020 Relationships Register (Surrogacy) Variation Regulations 2020 Planning, Development and Infrastructure (General) (Miscellaneous) Variation Regulations 2020 Planning, Development and Infrastructure (Transitional Provisions) (Miscellaneous) Variation Regulations 2020 Planning, Development and Infrastructure (Swimming Pool Safety) (Construction of Safety Features) Variation Regulations 2020 Emergency Services Funding (Remissionsâ&#x20AC;&#x201D;Land) (Miscellaneous) Variation Regulations 2020 Emergency Services Funding (Remissions-Motor Vehicles and Vessels) (Miscellaneous) Variation Regulations 2020 National Energy Retail Law (Local Provisions) (Application of Rules) Variation Regulations 2020 Landscape South Australia (General) Regulations 2020 Landscape South Australia (Water Management) Regulations 2020 Public Sector (Regional Landscape Boards) Variation Regulations 2020 COVID-19 Emergency Response (Section 14) (No 2) Variation Regulations 2020 COVID-19 Emergency Response (Section 16) (No 1) Variation Regulations 2020 Coroners Regulations 2020 Summary Offences (Custody Notification Service) Variation Regulations 2020 Land Acquisition (Miscellaneous) Variation Regulations 2020 Planning, Development and Infrastructure (General) (Mutual Liability Scheme) Variation Regulations 2020 Planning, Development and Infrastructure (Accredited Professionals) (Mutual Liability Scheme) Variation Regulations 2020

46 THE BULLETIN August 2020

REG NO.

DATE GAZETTED

185 of 2020 4 June 2020, Gazette No. 47 of 2020 186 of 187 of 188 of 189 of 190 of 191 of 192 of 193 of 194 of 195 of 196 of 197 of 198 of 199 of 200 of 201 of

2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020

4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of 4 June 2020, Gazette No. 47 of

2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020

202 of 2020 4 June 2020, Gazette No. 47 of 2020 203 of 2020 11 June 2020, Gazette No. 50 of 2020 204 of 2020 11 June 2020, Gazette No. 50 of 2020 205 of 2020 11 June 2020, Gazette No. 50 of 2020 206 of 2020 11 June 2020, Gazette No. 50 of 2020 207 of 208 of 209 of 210 of 211 of 212 of 213 of 214 of 215 of

2020 2020 2020 2020 2020 2020 2020 2020 2020

11 June 2020, Gazette No. 50 of 11 June 2020, Gazette No. 50 of 18 June 2020, Gazette No. 51 of 18 June 2020, Gazette No. 51 of 18 June 2020, Gazette No. 51 of 18 June 2020, Gazette No. 51 of 18 June 2020, Gazette No. 51 of 18 June 2020, Gazette No. 51 of 18 June 2020, Gazette No. 51 of

2020 2020 2020 2020 2020 2020 2020 2020 2020

216 of 2020 18 June 2020, Gazette No. 51 of 2020 217 of 2020 18 June 2020, Gazette No. 51 of 2020 218 of 2020 18 June 2020, Gazette No. 51 of 2020 219 of 2020 25 June 2020, Gazette No. 53 of 2020 220 of 2020 25 June 2020, Gazette No. 53 of 2020 221 of 2020 25 June 2020, Gazette No. 53 of 2020 222 of 223 of 224 of 225 of 226 of 227 of 228 of 229 of

2020 2020 2020 2020 2020 2020 2020 2020

25 June 2020, Gazette No. 53 of 2020 25 June 2020, Gazette No. 53 of 2020 25 June 2020, Gazette No. 53 of 2020 25 June 2020, Gazette No. 53 of 2020 25 June 2020, Gazette No. 53 of 2020 2 July 2020, Gazette No. 56 of 2020 2 July 2020, Gazette No. 56 of 2020 2 July 2020, Gazette No. 56 of 2020

230 of 2020 2 July 2020, Gazette No. 56 of 2020 231 of 2020 2 July 2020, Gazette No. 56 of 2020

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Family Law - Melbourne LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants.

LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding.

LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants.

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.

For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

CONSULTING ACTUARIES

LawCare

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If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you.

Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse.

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To contact Dr Jill 08 8110 5279 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

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