The Law Society Bulletin - December 2019 edition by lawsocietysa

THE

BULLETIN VOLUME 41 – ISSUE 11 – DECEMBER 2019

THE LAW SOCIETY OF SA JOURNAL

LOOKING BACK AT 140 YEARS OF THE LAW SOCIETY CELEBRATING 125 YEARS OF WOMEN’S SUFFRAGE 40TH ANNIVERSARY OF THE LEGAL SERVICES COMMISSION CHIEF JUSTICE WILL ALSTERGREN’S MISSION TO REFORM THE FAMILY COURT

THE MILESTONE EDITION

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This issue of The Law Society of South Australia: Bulletin is cited as (2019) 41 (11) LSB(SA). ISSN 1038-6777

CONTENTS MILESTONES

FEATURES & NEWS

REGULAR COLUMNS

10 History of the Law Society: a timeline

6 The long road to family law reform: an interview with Chief Justice Alstergren By Michael Esposito

4 From the Editor

20 The need for alternative dispute resolution in SA’s commercial space industry – By Mark Giddings

26 Young Lawyers: This is your life

13 Law Society’s 140th anniversary celebration: wrap-up & pics 14 From opponent to supporter: Reflecting on 40 years of the Legal Services Commission By Michael Abbott AO QC 16 125 years ago, women won the right to vote – By Nathan Ramos 18 Women’s suffrage luncheon: wrap-up & pics 23 Victim Support Service celebrates 40th anniversary – By Celia Moodie

Executive Members President: A Nikolovski President-Elect: T White Vice President: R Sandford Vice President: M Frayne SC Treasurer: F Bell Immediate Past President: T Mellor Council Member: E Shaw Council Member: S Hooper Metropolitan Council Members T Dibden M Tilmouth M Janus A Lazarevich S Hooper T Vozzo V Gilliland F Bell M Mackie M Boyle M Smith E Shaw R Shaw J Stewart-Rattray J Marsh C Charles Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region)

24 Bullying, Harassment & Discrimination survey results trigger action plan to make workplaces safer 27 The value of mediator soft skills to modern commercial practice By Greg Rooney 30 The case for exceptional driver’s licences – By Peter Picotti 32 Event wrap-up: Medico-Legal Dinner

5 President’s Message

33 Wellbeing & Resilience: Is burn out just in your head? – By Greg May 36 Tax Files: Deduction: What a capital idea! – By Andrew Shaw 38 Risk Watch: A reminder about keeping conversations confidential By Grant Feary 43 Family Law Case Notes

34 Book launch: Stolen Life: The Bruce Trevorrow Story, by Dr Tony Buti Speech by Chief Justice Chris Kourakis

45 Society has say on Uniform Civil Rules

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

Junior Members R Piccolo

Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au

Ex Officio Members The Hon V Chapman, Prof R Sarre, Prof M de Zwart, Prof T Leiman

Programme manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

Members on the Move

44 Bookshelf 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 Hagias G Mottillo B Armstrong D Misell The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen Level 3, 47 South Terrace, Adelaide SA 5000. Ph: (08) 8233 9433 Fax: (08) 8212 6484 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Layout: Henry Rivera Advertising Email: sales@boylen.com.au Printer Lane Print Group 101 Mooringe Ave, Camden Park SA 5038. Ph: (08) 8376 1188

FROM THE EDITOR

Continuing a 140-year tradition

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

e close out the year with an edition that reflects on some of the legal milestones reached this year. This year we celebrated the 140th anniversary of the establishment of the Law Society of South Australia. The Society has obviously changed significantly since the first general meeting of the profession was held in November 1879, but the thing that has remained is the Society’s commitment to advocating on behalf of the profession and standing up for the rule of law. December 2019 also marks 125 years since a Bill was passed to give South Australian women the right to vote and be elected to Parliament. In this edition we honour those women (and their male allies) for their courage and indomitable spirit in fighting for democratic rights against a fierce tide of opposition. One can get a sense of the prevailing attitudes of an age by studying the propaganda that was produced at the time, and the anti-suffrage posters in the late 19th century were blatant in their fear mongering message. Adverts containing images of a man bottle feeding a baby, or a woman wagging her finger at her partner portended the inevitable subjugation of men were women to be enfranchised. Another poster from the time suggested that if women were given the right to vote, they would become so audacious as to want to wear trousers! Thankfully, we have come a long way since the days when the idea of a male feeding his own infant was demeaning, but as suggested by President Amy Nikolovski in this edition, we still have some way to go. This edition contains a summary of the results of the Society’s bullying, harassment and discrimination survey. The results, while consistent with other jurisdiction internationally are sobering

4 THE BULLETIN December 2019

nonetheless. We all have a duty to ensure workplaces are safe and supportive spaces. In other milestone news, the Legal Services Commission celebrated its 40th birthday. It’s fair to say the private profession were not enamoured with the establishment of the Legal Services Commission in 1979, with concerns over work bypassing the private profession, inadequate fee structures and constraints on the quality of service to clients. Even current Director of the LSC, Michael Abbott AO QC, was critical at the time, but came to view the Commission as an important and effective deliverer of legal services to the public. He writes about his “Road to Damascus” moment in this edition. Finally, I was fortunate enough to interview Chief Justice of the Family Court, The Hon Will Alstergren, who spoke about the work he has done to streamline the Family Court and Federal Circuit Courts since his appointment as Chief Justice 12 months ago. He acknowledges that the delays in the system are unacceptable and much more needs to be done, but the proactive measures he has taken with the limited resources at his disposal is encouraging. His Honour commended the profession, especially South Australia’s family lawyers, for their efforts in assisting him with his reform projects. With the Federal Government establishing a family law inquiry, there has been some unfortunate misinformation disseminated via the media about the family law jurisdiction and conduct of lawyers. The Society will continue to represent the interests of the local profession in this inquiry and highlight the crucial role of lawyers for the effective operation of the justice system, just it has done for the past 140 years. B

INTERGALACTIC BATTLES The role of ADR in the space industry

PRACTITIONER CONDUCT Outcomes of the Bullying, Harassment & Discrimination survey

RURAL DISADVANTAGE The case for exceptional drivers’ licenses

PRESIDENT’S MESSAGE

Both personally and professionally, it has been a huge year. Thank you for your support AMY NIKOLOVSKI, PRESIDENT, LAW SOCIETY OF SOUTH AUSTRALIA

cannot believe that this year is almost already over, it seems to have flown by. So much has happened it is difficult to believe it is already December! I have had a huge year both professionally and personally and have so many people to thank for their contribution to my Presidential year. Firstly the team at the Law Society have been second to none. Stephen Hodder, Rosemary Pridmore, Dr Anna Finizo, Michael Esposito and Kerry Martin have been exceptional. I could not have gotten through this year without your help, support and guidance. Stephen and Rosemary are two of the hardest working people I know and the Society is lucky to have such dedicated servants. Their corporate knowledge is incredible, there’s nothing that they don’t recall that occurred within the Society and the profession as a whole over the last 20 years. That experience, despite my eight years on Council, is not easy to replicate. Dr Anna Finizo is the Queen of submissions. Her ability to research and summarise so many serious issues into a submission is amazing. So much of her work goes out in other people’s names (including mine), so she doesn’t get the recognition she deserves for her tireless efforts on such diverse issues. The quality of her work is so high that a number of the Society’s submissions were read in Parliament this year. Michael Esposito - the “Master” of words. For every Points of Law column that appeared in The Advertiser this year, Michael was the star, always turning my

words into succinct articles that captured lay readers. His work was so good this year that the Deputy Editor of The Advertiser wrote to me to praise me for my columns, stating that they were “the best our legal column has been in years”. Without Michael, there wouldn’t be such high praise I can assure you. I found those 430-word articles to be the most difficult part of my presidency. Michael somehow always magically made them engaging and made me look good too. And to Kerry Martin, you kept me in line, got me organised and were always willing to literally “hold the baby” when needed. Thank you. To my partners at DBH and staff, thank you for your support while I travelled around the State and Australia. Without your support I couldn’t have kept up with my workload. A special thanks to my assistant Emma Bevan, Associate Alyse Walter and Partner Matthew Arentz, who took on most of the load in my absence, thank you. I’d also like to acknowledge and thank Craig Caldicott for his dedication to the cause. This year there were a number of urgent and major reforms in criminal law and he went above and beyond to ensure the voice of the Society was heard by The Hon. Brian Martin AO QC, the Attorney General and the DPP, and for that I am very grateful. There were so many wonderful people that supported me during this year, too many to name but I again thank you for everything you have contributed. This law game is often a thankless task, so to all of you (you know who you are), thank you.

Finally I can’t not mention the #presidentialbaby. Being the first President of a Law Society in Australia to be pregnant and give birth during her term was something that wasn’t intended, but ended up being an achievement in itself. I thought I knew what hard work was - I have been known to be a bit of a workaholic - but no one can prepare you for being pregnant. It is hard work, especially when doing 12+ hour days, but nothing compares to when they actually arrive! Looking after a newborn baby 24/7 and being President of the Society was not an easy task. But I wouldn’t change any of it! There were many firsts as a result, little Nikola received flowers and cards from The Attorney General and Deputy Premier, The Law Society, the President of the Law Council of Australia, the CEO of Bank SA and a note from the Chief Justice of the High Court of Australia. He’s travelled to Port Douglas, Melbourne and Canberra and was breastfed in the Presidential Office and Executive Lounge with lots of old men in wigs watching. I hope that the novelty of a pregnant president soon becomes the norm, with more and more women in positions of power within the profession. It would be remiss of me to not mention my husband, mum, dad and my sisters Natalie and Nadia. It really does take a village to raise a child, and with you as my village I have been able to achieve one of my professional goals whilst also accomplishing my greatest personal achievement in having my son Niko. Thank you to all, I will be forever grateful. B December 2019 THE BULLETIN

FAMILY LAW

DEALING WITH DISHARMONY: THE LONG ROAD TO REFORM THE FAMILY LAW SYSTEM MICHAEL ESPOSITO

amily lawyers have been under attack lately. Last month, an article ran across News Corp mastheads around the country, subsequently triggering a slew of scathing op-eds, that was critical of family lawyers for allegedly overcharging clients and putting their own interests first. Not only were the claims made in this piece questionable at best, but it completely ignored one of the major reasons costs have increased for litigants in the family law system – the chronic delays in the Family and Federal Circuit Courts. The problems facing the family law system have been well-documented, and given the highly emotional, angst-ridden and at times traumatic nature of many family disputes, it’s perhaps no surprise that the Courts and the legal profession become undeserving targets for blame from those who have not completely gotten their way in a dispute or disagree with a judicial determination. But the fact is that almost all family disputes require some form of compromise, and most family lawyers do their best to help their clients achieve a fair outcome, keep costs down, and resolve disputes as quickly as possible. The disputes that progress all the way to trial do so because they are extremely complex and often involve a high degree of risk and emotion. It doesn’t help that the Federal Circuit Court and Family Court are absolutely overwhelmed with cases. Despite the best efforts of judges, many litigants have a long and anxious wait for justice.

THE REFORM PROJECT Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, The Hon Will Alstergren, has made it his mission to do all he can to make the family law system work better for parties with the limited resources he has to work with. He freely acknowledges that current

6 THE BULLETIN December 2019

backlogs are unacceptable, but when you have 21,000 family law cases pending across both courts, one can appreciate the monumental challenge that awaits him and his fellow judges. His Honour is not waiting for the outcome of future inquiries, responses to the ALRC Report, or the outcome of debate about legislative change. “Australian families deserve our best and we are getting on with the job now,” Chief Justice Alstergren said. His Honour certainly has made progress since his appointment as Chief Justice 12 months ago. He has spearheaded a number of projects aimed at streamlining the family law system with the ultimate objective to resolve disputes in a timely fashion that mitigates the financial and emotional toll these proceedings inevitably take on parties. Integral to this reform process is developing mechanisms to promptly identify the main issues of contention in disputes. “We started off by trying to identify as best we could how long matters have been in the system for, if they’re property or parenting matters or a combination of both, and whether they’re susceptible to ADR (alternative dispute resolution) or if they are matters of high risk to children in particular, and what we can do about them,” he said. “For cases that we’ve identified as appropriate for further ADR, we’ve put them into lists which we can then call over to tease out which issues are still alive between the parties, if there are further matters that need to be dealt with, what issues are causing a roadblock, and what needs to be done to get the case resolved or determined.” “On a number of occasions when we have conducted call-overs of cases which have been in the system for a long time, many are settled before or on the first event, and if they didn’t settle on the first event we were able to identify the remaining issues and manage them toward resolution accordingly”.

Chief Justice Alstergren reported that more than 50% of cases nationally settled in situations where the court directed matters to some form of ADR. His Honour is aiming to create an environment where parties are given every opportunity to settle within six months, and if this doesn’t occur, the court will aim to get the parties to trial as quickly as possible. The key, again, is early identification of the major issues. Chief Justice Alstergren said the Courts are also introducing a process where parties will, as their first obligation upon coming to court, be required to fill out a form identifying what is in dispute and notifying the court if anyone is at serious risk of harm. The Courts intend to publish a core statement of principles under a joint practice direction which compels parties to identify and narrow the genuine issues at play, take reasonable steps to settle out of court, and warn of potentially adverse cost consequences (including personally against lawyers) of failing to be proactive and cooperative in seeking to settle disputes expeditiously.

ON TRIAL: DEALING WITH HIGH RISK MATTERS Of course, not all matters can be settled out of court. There will always be cases that can only be determined by a court, especially when they involve at-risk children. Protecting children is the number one priority of the Courts, and it is also arguably the most difficult and disturbing part of being a family law judge. The inordinate delays confronting the system heighten the risk of vulnerable children, who may be waiting months, if not years in dangerous family situations for decisions to be made that affect their fate. “We’re working incredibly hard to ensure we get notified at the very outset if there are serious risks,” Chief Justice

FAMILY LAW

Alstergren said. “It is up to the parties to notify us (of risks) but we also share information with state agencies to ensure we can do everything we possibly can to protect children and vulnerable parties.” Chief Justice Alstergren suggested that registries across Australia could benefit from a model in Victoria whereby a child protection worker employed by the State Government works full time in the court building and interacts closely with court staff in matters where families have had contact with the child protection system. Chief Justice Alstergren said the court was working hard on expediting the preparation of family reports, which along with independent children's lawyers, are

relied on by the court to make parenting orders. The Australian Law Reform Commission, in its inquiry into the family law system, reported that in some registries there was more than a 12-week delay before a Family Consultant (which a court can engage to prepare a family report) will be available to meet with a family. The reported stated: “Often, this poses an unacceptable risk to children and family members,” Chief Justice Alstergren said. “There is a frustration that we can get the court working more efficiently but there are significant delays in some registries getting timely reports, and that needs to be addressed.”

ENHANCING THE ROLE OF REGISTRARS Another initiative His Honour is implementing is the introduction of more registrars in the Federal Circuit Court to alleviate the workload on judges, and allow judges more time to hear the more complex matters that require judicial determination. A pilot program in the Newcastle registry of the Federal Circuit Court involves registrars presiding over property disputes, negating or reducing the need for judicial intervention. It has produced positive results – with 69% of matters resolving without judicial involvement as of 30 June– and there are plans for similar discrete property lists to be rolled out nationally. In Adelaide, the discrete December 2019 THE BULLETIN

FAMILY LAW

property list is scheduled to commence in January 2020. The courts plan to seek additional resources from the Government to add more registrars in court buildings around the country.

HARMONISING THE COURTS Much has been said about the twocourt system that assigns the most complex matters to the Family Court, and the majority of family law matters to the Federal Circuit Court, which is a multijurisdictional court that hears a number of other matters such as migration, bankruptcy, industrial law, and administrative law. Incidentally, Chief Justice Alstergren said that the number of migration cases coming before the Court is increasing so much that in two years’ time there will likely be more migration appeals pending than family law matters in the Federal Circuit Court. The Government believes a merger of the Courts will streamline the system, while the Law Council, on behalf of the national profession, strongly oppose the merger on the basis that complex matters, especially those involving risk of physical or mental harm, should be heard by specialist family law judges. Whatever the solution is, most agree that the current state of affairs is cumbersome and inefficient. “We have two different courts that are doing similar kind of work with varying complexity, but they’re doing it with different forms, different rules, and different case management principles,” Chief Justice Alstergren said. “So I started a committee earlier this year to harmonise the rules that apply to both courts.” The Joint Rules Harmonisation Working Group is chaired by former Federal Court judge the Hon. Dr Chris Jessup QC and comprises judges from both the Family and Federal Circuit Courts. Chief Justice Alstergren said it was important to get someone outside of the system to provide independent and objective guidance. Chief Justice Alstergren has also engaged two junior Victorian administrative law barristers to assist with drafting the proposed rules.

8 THE BULLETIN December 2019

There have been several unsuccessful attempts to harmonise the rules since the Federal Circuit Court was established 19 years ago. Chief Justice Alstergren expects the consultative process he has initiated to finally lead to the promulgation of harmonised rules. His Honour intends to consult widely with the profession on the draft harmonisation rules in early 2020. “We will ensure that, as best as we can, we have broadly speaking the same case management principles in both courts, so when people come to either court they can understand the process and get a consistent approach. We will be able to utilise the resources we’ve got to make the process as quick, smooth and fair as possible.” “We’re also looking at having a single point of entry. Whether you file in the Family Court or Federal Circuit Court, the case will be treated in the same way. We think these steps will significantly reduce delays.”

THE IMPORTANCE OF BEING RESOURCEFUL There is no quick fix to the beleaguered family law system. Given the inherently messy and tumultuous nature of family disputes, perhaps “fix” is an unrealistic ambition. But there is no question much more must be done to save parties from unnecessary angst, exorbitant costs and in some cases, serious danger. The initiatives led by Chief Justice Alstergren appear on track to go some way in achieving these goals. His Honour has made no secret of his views that the family law system is underresourced, and more judges are desperately needed to deal with the influx of matters and their increasingly complex nature. But he is of the view that these budgetary restraints should have no bearing on the Courts getting on with the job of getting their own houses in order. “We’re trying to do everything we can to be as efficient as possible, and then identifying where all the hotspots are around the country where we need more resources, and then we can go to the Government and say ‘we’ve done what we can, we’ve also prepared a business case

based on data to be able to say these are the areas where we need more resources, and here’s what you can expect if you give us those resources’.”

THE PROBLEM WITH REFUSING TO COMPROMISE Those articles criticising family lawyers ignored another factor contributing to astronomical fees – the refusal of some litigants to settle. These are the cases where one or both parties are driven by spite, revenge or resentment, their judgment clouded by emotion, who have lost sight on the end game. “Realistically, people who are trying to solve intimate and highly emotional disputes sometimes are better off not coming to a court if the parties can find their way forward through ADR or otherwise,” Chief Justice Alstergren said. “That’s one of the messages we have to get through to people, is that sometimes if they can come to an agreement very early in litigation, or without litigation, they’re much better off in most circumstances, because firstly they can live with the agreement if it’s a fair agreement, nothing is imposed upon them, and in many circumstances they can get on with their lives much quicker.” “Otherwise there is a propensity for people to issue proceedings and find themselves in a situation where they’re fighting over matters and paying a disproportionate amount of fees to what they’re fighting over, or they’ve got themselves so entrenched that the litigation takes on a life of its own.” Chief Justice Alstergren said that, by his observation, most lawyers are very good at encouraging more amicable settlements in lieu of the far more expensive litigation path, but foresees an even greater role for lawyers to facilitate early dispute resolution when new practice directions are implemented. “We’re trying to say to parties that we can save you money, we can get you out of this if you want, or if there are issues in dispute we can reduce some of those issues that have to be decided.” Very sound advice indeed. B

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140TH ANNIVERSARY OF THE LAW SOCIETY OF SA

HISTORY OF THE LAW SOCIETY OF SA: A TIMELINE AS THE LAW SOCIETY CELEBRATES ITS 140TH ANNIVERSARY, WE LOOK BACK AT SOME OF THE NOTABLE EVENTS AND DEVELOPMENTS IN THE SOCIETY’S HISTORY. The Law Society was created on 13 October 1879 as an unincorporated association.

1879

The steering committee for the creation for the Law Society were Messrs Bundey (Chair), Ayers, Moulden, Labatte, Barlow, Bakewell, Sheridan and Hardy. The original rules of the Law Club of South Australia (1851) were produced and a resolution was passed that the Rules and By-Laws be circulated amongst the Committee for their consideration. These rules were settled on 17 November, 1879. On 4 December 1879, only eight people turned up to consider a ballot of members. The meeting was adjourned for a week, whereby 19 people attended. Applications from 72 practitioners were received. The membership fee was set at 1 pound 1 shilling. The original letter to form the Law Society of SA reads: “At a preliminary meeting of the Members of the Legal Profession held on Monday, 13th October, resolutions were carried affirming the desirability of forming a Law Society, a Provisional Committee was chosen to frame a code of rules. I am directed by the Provisional Committee to forward herewith a draft copy of proposed rules for your consideration and to particularly request you to attend a general meeting of all the profession to be held at Messrs. Knox and Gwynne’s Office on Monday, 17th inst., at 3 p.m. to settle the rules. I remain Yours Faithfully Arthur M Hardy Hon Sec

The Law Society runs Enquiry Branch of the Red Cross to afford relatives and close friends information on the fate/condition and whereabouts of SA soldiers in World War I.

1916

Medico Legal Society formed

1936

Legal Practitioners Act 1936 comes into operation (repealing the the Law Society Act 1915)

1937

Sir George Murray gifts £10,000 to establish for the members of the Society a library. The library is named ‘The Murray Law Library’.

1938

1883 Law Society with the University of Adelaide established a Faculty of Law. 1888 First issue of the South Australian Law Reports (for 1884 and 1885) published in association with the SA Government. 1911 The Female Law Practitioners Act was passed, permitting women to practise law in South Australia. Despite University of Adelaide allowing women to study for degrees since 1881, women were not allowed to practice law until the Female Law Practitioners Act was passed in 1911. Mary Kitson became the first woman in SA to take advantage of this right, completing her law degree in 1916, and gaining employment with Poole & Johnstone in 1917, and became a partner in the reconstituted firm of Johnstone, Ronald & Kitson in 1919.

1915 The Society gained statutory incorporation in the Law Society Act 1915 improving the Society’s status and providing for the appointment of a Statutory Committee to investigate complaints against practitioners. 1916 Principal rules of the Law Society enacted

55 members of the Law Society engaged in war 1940 service in 1940 and by 1942 the number had risen to over 100. A number of law students were also engaged in war service. The Law Society provided free legal aid to members of the active forces (mainly in the preparation of wills).

10 THE BULLETIN December 2019

1880 First Annual General Meeting held on 30 June at Malborough Chambers, Waymouth St.

1933 The Law Society administers a legal assistance scheme accordance with the the Poor Persons Legal Assistance Act The Law Society began running the Poor Person’s Relief Scheme in 1933, after it was agreed that the Society would take on all of the work of the Public Solicitor with regards to cases relating to the Poor Persons Legal Assistance Scheme introduced by previous Attorney General William Denny in 1925. So in-demand was the scheme that by 1935 the Society had to plead the Government for more funds. The Scheme, administered entirely by the legal profession, had an excellent reputation for the volume and quality of its assistance to vulnerable South Australians, but by the 1970s pressures on the scheme had increased significantly, with an ever-growing list of applicants and a large amount of funds being directed to criminal matters. In 1972, Commonwealth Attorney General Lionel Murphy established the Australian Legal Aid Office, believing that the State should employ legal officers to assist disadvantaged people. The work of the Law Society was eventually subsumed by the Legal Aid Office.

140TH ANNIVERSARY OF THE LAW SOCIETY OF SA

Parts of the Murray Law Library’s collection are moved to Sleeps Hill Tunnel as the threat of Japanese bombing increases.

1942 1947/48 The first woman Secretary of the Society, Miss Sesca Anderson (later Mrs Zelling) is appointed

When the threat of bombing from the Japanese was at its height during World War II, the South Australian government decided some valuables needed to be stored in a secret and safe space away from the centre of Adelaide. The Sleeps Hill railway tunnels at Eden Hills, closed in 1919, were chosen to store valuable government material such as military documents and some of the records and collections from the Archives, Public Library (now the State Library), Museum and Art Gallery. What is not known to many is that some of the Law Society’s library collection (14 cases of books and law reports) was also stored there. Acting Secretary of the Society, Mr F. L. Field was authorised to visit the tunnel (under strict security) to regularly check the condition of the books for any damage from dampness or mould.

Sesca Zelling was the 35th woman admitted to the South Australian Bar and worked as a prosecutor for the Deputy Commonwealth Crown Solicitor from 1942 to 1947, when she became the first woman Secretary (a title now referred to as “Chief Executive”) of the Law Society of SA. She resigned from the role in 1950 upon her marriage to Howard Zelling, but did continue for some time as Acting Secretary. Sesca went on to work for several years with her husband, mainly in wills and estates law, and wound up her practice in 1969 after her husband was appointed to the Supreme Court Bench. She was an extremely dedicated volunteer with a number of groups and in 1960 was awarded an OBE for her service to women and the community.

Somewhat ironically the second Sleeps Hill Tunnel was used as an ammunition store - in a Memorandum to the Society, December 1943, the Crown Solicitor writes “there is not the slightest risk of the books catching fire accidently”.

1948 The first edition of the Law Society Judgment Scheme published

As the war threat diminished the books were returned to the Law Society premises in Pirie St.

1962 The Law Society moves to Mutual Life Chambers, 44 Grenfell St.

Roma Mitchell appointed Vice President of the 1963/64 Law Society for two years but does not become the Society’s first woman President due to her appointment as a Judge of the Supreme Court. The first edition of the Bulletin was five pages long and mainly featured notices on seminars, social events and practice notes. Over time, the Bulletin has evolved into the glossy, 48-page monthly journal it is today, featuring in-depth articles about salient legal matters. The Bulletin has undergone several transformations in its 52-year history. In 1972, the responsibility of collating information for the Bulletin was assigned to the Society’s Public Relations and Functions Committee, then chaired by CH Nancarrow. The inaugural Bulletin Committee was formed in 1986, with JA MacAdam as editor. The first chair was DC Kennelly, with Simon Hannaford taking over as chair in 1992/93. Elizabeth Olsson became chair of the committee in 1996 and remained in that position for over 21 years, before finally retiring from the position in 2018, and then resigning from the Committee in 2019 due to her appointment as a Master of the District Court.

The new Legal Practitioners Act 1981 and Legal Practitioners Regulations come into operation

1982

1967 The Law Society Bulletin is published for the first time. 1971 The Society moves to 44 Currie St 1973 Legal Advisory Service commences as a 5 evenings a week and Saturday morning service On September 1973 the Law Society extended its Legal Assistance Scheme with the commencement of an after-hours Legal Advisory Service operating five evenings a week and on Saturday mornings. The service started with a roster of two volunteer solicitors, with the support of articled clerks and law students. In just the first nine months 3715 people had been seen. In January 1979, after 43 years the role of the Law Society’s Legal Assistance Scheme was taken over by the Legal Services Commission. After consultation with practitioners The Law Society decided to continue the Advisory Service. Today, nearly 50 years later, whilst scaled down, the service runs one to two evenings a week providing valuable legal advice to people, for just a small fee (to cover administrative costs).

1974 Law Society Duty Solicitor Services commenced at the Magistrates Court (Adelaide) 1982 Opening of Law Society House, Gilbert Place.

December 2019 THE BULLETIN

140TH ANNIVERSARY OF THE LAW SOCIETY OF SA

The Law Society in conjunction with the Attorney- 1983 General and the Legal Services Commission establishes a special emergency legal information service for victims of Ash Wednesday fires.’ A state of disaster was declared for the first time in South Australia’s history with the ‘Ash Wednesday’ bushfires of 16 February 1983. The Law Society, together with the Attorney-General and the Legal Services Commission established a special emergency legal information service to provide free legal advice to people in affected areas. Later the Society, by circular, contacted fire victims and encouraged them to seek legal advice. The Society also gave assistance to the practitioners in the South-East who were working together to advise the numerous people who had claims in that area. In 2009, hundreds of legal practitioners volunteered legal support and assistance through the Bushfire Legal Help Service to individuals, families and communities affected by the Victorian bushfires. A similar number provided assistance following the floods in Queensland floods in 2011. Again in 2015 the Society responded to those affected by bushfires, this time in the regions of Pinery, Mallala and Hamley Bridge. The Society, with the Legal Services Commission, coordinated the provision of free legal assistance to members of the community affected by the bushfires.

The Society purchases new premises and moves to 24 Waymouth Street;

1990

The Legal Practitioners Professional Indemnity 1994 Insurance Scheme established, pursuant to s 52 of the Legal Practitioners Act The Law Society President’s Points of Law Column for the Advertiser is established

1999

JusticeNetSA, the clearing house for pro bono 2009 legal work is formed through a collaboration of legal services providers including the Law Society’s Litigation Assistance fund The Hon. Christopher Kourakis is appointed as Chief Justice of the Supreme Court of South Australia, becoming the first former Law Society President to be appointed Chief Justice

2012

The Society moves to new premises at Terrace Towers, 178 North Terrace

2014

The Society’s Council passes new rules to ensure gender equality on its Council and Executive boards.

2015

1883 – Membership: 60 1917 – Membership: 120 1924 – Membership: 153 1936 – Membership: 182 1941 – Membership: 243 1962 – Membership: 381 1968 – Membership: 475 1970 - Membership: 512

1973 – Membership: 621 1979 – Membership: 979 1987 – Membership: 1363 1992 – Membership: 1723 2001 – Membership: 2324 2008 – Membership: 3061 2019 – Membership: 4034

12 THE BULLETIN December 2019

1988 Ralph Hague retires as editor of the South Australian State Reports after nearly 40 years’ service 1988 The Howard Zelling Lecture Trust established to ensure the public and profession will see eminent speakers of law 1998 Lindy Powell serves as the Law Society’s first woman President; she was the Society’s 55th President Some 109 years after its establishment, the Law Society of SA finally got its first female President when Lindy Powell QC was appointed to the role in 1998. Ms Powell, was one of the leading criminal barristers in SA. She got her start with Kelly & Co, practising in a range of areas in including criminal, personal injury and commercial law, but it was the criminal jurisdiction that enthralled her. Ms Powell then worked as an associate to Dame Roma Mitchell QC, who encouraged her to get into matrimonial law because of the opportunities to do court work. Ms Powell got a job at Johnston Withers, where she was mentored by Elliot Johnston, a huge supporter of women in the profession. Ms Powell then became Director of the Legal Services Commission 19871991, before joining the Bar and becoming a QC in 1994.

1994 The Practical Legal Training course commences As a result of the University of SA being unable to offer a Graduate Diploma in Legal Practice (GDLP), the Law Society in 1994 offered a post-admission practical legal training course that complied with the Supreme Court’s admission rules. University of SA Students who had completed the Graduate Certificate in Legal Practice or an equivalent introductory program of PLT could complete the Society’s program and apply for an unrestricted practising certificate. From 1999 to 2012, as well as the post admission course, the Society offered a GDLP program which met the full PLT requirements. In 2013, the Society commenced delivery of a GDLP jointly with University of Adelaide Law School. This arrangement still continues today.

2010 The South Australian Law Reform Institute was established in December 2010 by agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia. In 1968 South Australia established a Law Reform Committee but when it ceased in 1987 South Australia became the only state without a body charged with specific responsibility for law reform. For some time, the Law Society advocated for a law reform commission and on 7 December 2010 The Law Reform Institute was established under a Memorandum of Understanding between the then Attorney-General, John Rau, the Vice Chancellor and President of the University of Adelaide, Professor John Williams and the President of the Law Society, Mr Ralph Bönig. Based at the University of South Australia, reviews and research are conducted with a view to making recommendations for the modernisation and consolidation of the law in South Australia. The Society provides one nominee to the Advisory Board of the SALRI. The Society’s inaugural and continuing board member is Mr Terry Evans.

EVENTS

Society celebrates 140 years of service to the profession over 100 people attended the 140th Justanniversary of the Law Society celebration

The event was attended by a number of people who have been involved with the work of the Society, including 17 former Presidents. Guests raised a toast to â&#x20AC;&#x153;another 140 great years as an active and integral part of both South Australia and the South Australian legal professionâ&#x20AC;?.

The Society thanks those who sponsored the event, including event partners Gilchrist Connell, Andreyev Lawyers, Johnson Winter & Slattery, Lindbloms Lawyers, Tindall Gask Bentley, and Duncan Basheer Hannon; and event supporters Piper Alderman and Websters Lawyers. B

David Meyer, (left), Alex Ward and Paul White

Pantelia Marinakis (left) Amelia McCormick, Stephanie Moore and Raffaele Piccolo

Melissa Shorter (left), Law Society President Amy Nikolovski, and Peter Jackson

The Hon. Geoff Muecke (left), The Hon. Rodney Burr, Candice Scott and Lauren Roberts

Brittany Farinola, (left), Nina Ivanov and Brittany Duregon

Simon Quilley (left) and Bruno Soirano from Bank SA

at Treasury 1860 on 15 November. Law Society President Amy Nikolovski welcomed guests and recited the original letter inviting the legal profession to a meeting on 17 November 1879 to settle the rules for the formation of the Law Society

Ralph Bonig (left) and Stephen Hodder

Neville Morcombe QC (left) and Joan Sedsman

Hannah Andreyev (left) and Andrew Andreyev

Leo Efthivoulou (left) and Robbie Behrad

Christina Lien (left) and Luke Edwards

Doja El Banna and Peter Heinrich

Dr Anna Finizio and Leah Marrone

Thea Birss (left) and Claire De Ross

December 2019 THE BULLETIN

LEGAL AID

From resolute opponent to staunch supporter: My legal aid conversion MICHAEL ABBOTT AO QC, CHAIRPERSON, LEGAL SERVICES COMMISSION Forty years after the establishment of the Legal Services Commission, its outgoing Chairperson Michael Abbott AO QC reflects on its journey and his Road to Damascus transformation.

begin by offering something of a mea culpa. Back in the 1970s when there were public discussions about setting up a legal aid commission in SA, I had my doubts about the value and effectiveness of such a body. After all, could one independent statutory authority deliver a comprehensive range of legal assistance services that help provide access to justice for all South Australians? I’m pleased to admit that my concerns were misplaced.

IT ALL BEGAN IN 1979 Despite my initial reservations, the Commission was set up by legislation that gave it broad powers and responsibilities to guarantee equality before the law for all South Australians. It opened for business in 1979. But this was not the first legal aid scheme in SA. Back in 1933 the Law Society, to its great credit, had set up the South Australian Legal Assistance Scheme. Under that scheme, private practitioners provided discounted services to needy clients in return for payment from a central fund. This scheme operated until the 1970s. In the early seventies the Commonwealth set up the Australian Legal Aid Office, and that service opened branches in Adelaide. This national program was a forward-thinking decision by Attorney-General Lionel Murphy; he was a contentious figure but his contribution to nation-wide legal aid is a significant one. The Commonwealth body

14 THE BULLETIN December 2019

he established was eventually superseded by the creation of the Legal Services Commission, an independent statutory authority. It was the second Legal Aid Commission to open in Australia. The first was in WA.

LEGISLATION THAT STANDS THE TEST OF TIME Lawyers are sometimes critical of parliamentarians and of the legislation they draft. On this occasion, however, the wisdom of SA MPs is still evident more than 40 years after they debated the legislation that set up the Commission. In crafting it, they thought about a staged approach to delivering legal help. That continuum of service still guides the Commission’s work today and it includes the following four key elements. Education Our first level of service is the provision of broad legal education that tells people about their rights and responsibilities. Since opening in 1979, the Commission has reached 175,000 people through 7,000 legal education sessions. Information and advice The secondary level of assistance occurs when people come to us seeking information and advice about a particular legal issue. Over the past 40 years, the Commission has provided more than 3-million free legal advice appointments and telephone services. The Commission’s provision of information, advice and education has a particular focus on the prevention and early resolution of legal problems. Its free face-to-face advice appointments are not means-tested and are available at all Commission offices and outreach locations. Duty Lawyers The next level of assistance involves the provision of Duty Lawyer services at courts across SA. The Commission has provided more than 400,000 of those services since 1979 at courts across South

Michael Abbott AO QC speaking at the Commission’s 40th anniversary event

Australia. Duty Lawyers have been called the paramedics of the legal world because they are often the first lawyer a person will see when taken into custody or attending court. The work is demanding and is essential to the operation of courts. Representation through grants of aid Finally, we get to the pointy end of legal assistance. That stage of this triage process involves the client being represented by a lawyer acting on a grant of aid. Since the Commission opened its doors in 1979, it has processed an astonishing 650,000 legal aid applications. Of those, aid was granted on more than 500,000 occasions. Legal representation was fundamental to the genesis of legal aid – and it remains so today. As a society, we recognise that the State has so more much power than the individual. We recognise that - when the State looks at removing an individual’s liberty and freedom - that individual deserves to have expert assistance and representation. It is only fair and just, and it ensures we can have confidence in the decisions of our courts.

LEGAL AID

Adelaide law graduate and journalist Annabel Crabb was the MC for the Commission’s 40th anniversary event. She conducted a Q&A with the keynote speaker, Deputy Premier and Attorney-General Vickie Chapman.

BANG FOR BUCK The Commission’s establishing legislation also includes a phrase that continues to guide our efforts now and into the future. It states that the Commission must provide legal assistance in “the most efficient and economical manner”. Those words – efficient and economical – continue to overlay all of our service delivery to ensure we provide the maximum benefit to the community, and best use the funds available to us. However, State governments of both persuasions have significantly cut SA legal aid funding in the past five years. These cuts – delivered by Labor and Liberal administrations – have plunged more SA families into the justice gap. This is unfair to those families and also has highly detrimental consequences for our wider community in the short- and long-term. In contrast, other States have placed a higher value on the provision of legal assistance funding in their budgets. The Legal Services Commission does the heavy lifting when it comes to the provision of legal help in SA. It has delivered a staggering 4-million legal assistance services over four decades. Community demand for that assistance remains high and, correspondingly, funding must also grow.

Across four decades, LSC staff have demonstrated unfailing dedication to the Commission’s role and responsibilities. Their prodigious talents and efforts ensure the Commission fulfils its vital obligations to the South Australian community it serves.

PRIVATE PRACTITIONERS DOING PUBLIC GOOD The Commission is dedicated to ensuring that justice remains accessible to all those who need it. In this duty we have some important partners. In delivering about 16,000 grants of legal aid each year, the Commission relies on private practitioners to handle 60% to 70% of those matters. Members of the private legal profession - in particular LSC Panel practitioners - provide vital ongoing support. Many go above and beyond the terms of their assignments of aid to help the most vulnerable people in our community. The contribution of private practitioners is wide-ranging. They act on grants of aid, and also work as Family Dispute Resolution chairpersons and as Independent Children’s Lawyers. In addition, some private practitioners sit on our Panel of Assessors, while others provide their services pro bono to the Commission.

LEADING LIGHTS

LEADERSHIP, PAST & PRESENT

Many of the leading lights of the SA legal profession have worked at the Commission. They include senior practitioners, such as former Director Lindy Powell QC, and members of the judiciary including the Chief Justice, Chris Kourakis QC.

The Commission’s first Chair was David Wilson and Susan Armstrong was its first Director. They are the first among equals. We walk the path they created with their staff, we build on the foundations they laid. Since their time at the LSC, various other Board

Susan Armstrong was the inaugural Director of the Legal Services Commission

members have contributed their expertise and commitment to ensure the good governance of the LSC. Under the stewardship of its current Director, Gabrielle Canny, the Commission has gone from strength to strength and is respected nationally for its innovative, high quality services.

MY ROAD TO DAMASCUS Times have changed and my opinions have changed. In the mid-seventies, when I railed against the establishment of the Legal Services Commission, I could not fully foresee the changes ahead and the Road to Damascus conversion that awaited me. I could not foresee the great intrinsic worth of the Commission, its evolution and overwhelmingly positive impact on the legal system, and my role as its Chairperson from December 2013 to January 2020. It has been an honour to serve in this role and to help the Commission prepare for its next 40 years of service to South Australia. B December 2019 THE BULLETIN

125TH ANNIVERSARY OF WOMEN’S SUFFRAGE

125 YEARS AGO, WOMEN WON THE RIGHT TO VOTE NATHAN RAMOS

outh Australia became one of the first places in the world to empower women to vote, but it was only due to the courage, persistence and determination of numerous women, supported by a few male allies, that the Adult Suffrage Bill was passed 125 years ago and female enfranchisement was secured. The movement towards women’s suffrage began as various social reform groups gained momentum in South Australia during the 1860s. Various Acts of the South Australian Parliament during this time were also evidence of a slowly changing society. One example was the Municipal Corporations Act 1861, allowing women to vote in municipal and local government elections. However, the journey to the passing of the 1894 Bill can be traced back to the formation of the Women’s Suffrage League of South Australia on 20 July, 1888. Over the next six years, the league would be instrumental in swaying public opinion, advocating the right of women to vote and petitioning the Parliament. Despite the determination of the league, the road to women’s suffrage in South Australia was fraught. The proposal to allow women to vote split public opinion and was continually presented to a reluctant Parliament. As a result, several unsuccessful Bills preceded the 1894 amendment, with South Australian women finally being able to cast their votes in 1896. Despite this, the passing of the Adult Suffrage Bill in 1894 reflected a young, progressive colony – the fourth place in the world to give women a voice at elections.

ATTITUDES TO THE MOVEMENT While South Australia was already ahead of the nation and most of the world with the 1894 Bill, the question of women’s suffrage was debated and considered here for many years prior. It is interesting to note a newspaper article from 4 July, 1871, in which public debate occurred at a meeting of the North Adelaide Young Men’s Society. The topic:

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Voters gather on Waymouth St on Election Day, 25 April 1896. It was the first election where women could cast a vote in Australia. Photographer unknown.

“Should the electoral franchise be extended to women?”. After two hours of debate, a vote was taken with a majority of 15 on the negative side. Despite being a considerable time before the suffrage movement gained momentum, it was a sign that the proposition was at least considered worthy of debate. As the efforts of the more vocal advocates of women’s suffrage began to be realised, an era of intense debate dawned. Like most contentious political issues, the most determined advocates were often met with equally determined critics. Letters to the editor to the various Adelaide newspapers of the time reflect a fragmented colony. Letters penned by the suffragettes advocate their view strongly, reflecting their position as a matter of common sense. On the other side, some remarks objecting to women’s enfranchisement were, by today’s standards, offensive and demeaning, but in the late 19th century were commonly shared and reflected widespread attitudes about the status of women. One example is this excerpt from a letter published in the Adelaide Observer on 8 September, 1894:

“For women to mix in active politics, attend rowdy polling-booths and political meetings will soon knock all the poetry out of “lovely women”, such as our ancestors and many of ourselves up to the present have felt it is our sacred duty to shield from contact with the grosser and coarser occupations of men…..” Curiously, a number of petitions on behalf of South Australian women against the proposal were put to the Parliament. One such petition was introduced during the second reading of the final Bill and signed by 2000 women. However, such petitions paled in comparison to the one presented to the House of Assembly in August, 1894. At 122 metres in length with 11,600 signatures, the petition proved the overwhelming support for women's suffrage from across the State. In its final form, the 1894 Bill also enabled South Australian women to sit in the Parliament. Ironically, it was the actions of one of the most vocal opponents of the Bill that increased its ambit far beyond what was originally intended. The initial Bill had a clause specifically excluding women from sitting in

125TH ANNIVERSARY OF WOMEN’S SUFFRAGE

Parliament. Ebenezer Ward, a vocal opponent of the Bill, moved that this clause be struck out. He argued that it would be inconsistent to allow women to vote, but deny them a right to sit in Parliament. The real reason for Ward’s motion was to split the Parliament on the issue and defeat the Bill. As a result, the Bill passed without the exclusionary clause. South Australian women did not just have the ability to vote, but could aspire to be Parliamentarians.

THE WOMEN’S SUFFRAGE MOVEMENT: A TIMELINE Changes to legislation prior to women’s suffrage: • Municipal Corporations Act 1861 – allowed women to vote in municipal and local government elections. • Married Women’s Property Act – assented to in 1884 – Women had control over their own property and earnings after marriage. • Taxation Act 1884 – Women were taxed. Women’s suffrage supporters argued because women are taxed, they should be able to vote. Origins of the suffrage movement Began as various social reform groups began to gain momentum in South Australia. • 1856 – Protestant Female Refuge opened at Norwood. • 1867 – Adelaide City Mission established. • 1868 – Catholic Refuge opened. • In 1882 – Society for the Promotion of Social Purity was formed – goal was to protect young women from “evil”. Society raised the age of consent to 16 in 1885. Woman’s Christian Temperance Union • 1886 - the SA branch of the Woman’s Christian Temperance Union was formed. The Union campaigned against the sale of alcohol. • 1887 - Women’s Christian Temperance Union debates the question of female suffrage • 1888 - The Women’s Suffrage League of South Australia evolved from this

union in a meeting on 20 July. Decided to petition Parliament on the question of women’s suffrage. • 1889-1890 - Various petitions gathered from across different regions of SA.

Leading Figures in the women’s suffrage movement: Catherine Helen Spence (1825-1910) • Arrived in SA in November, 1839 • Wrote novels before becoming a literary critic and social commentator. • Joined suffrage movement in 1891 and became vice-president of Women’s Suffrage League of SA. Supported similar campaigns in other states after 1894. Mary Lee (1821-1909) • Arrived in Adelaide in 1879 • Became ladies’ secretary of J.C. Kirby’s Social Purity Society. • Co-secretary, then secretary of the South Australian Women’s Suffrage League. • Organised colony-wide petition with 11,600 signatures on a 122-metre-long document presented to the House of Assembly. • Was nominated to stand for Parliament after suffrage bill passed but refused on the ground that she wanted to work ‘on the side of “right”’ and not obliged to any political party. Elizabeth Webb Nicholls (1850-1943) • Born in Adelaide. • Founding member of Adelaide’s Woman’s Christian temperance Union, became SA President in 1889. • Helped gather 8,268 of 11,600 signatures for the 1894 suffrage petition.

PARLIAMENTARY DEBATE A number of unsuccessful bills preceded the Adult Suffrage Bill 1894. The timeline of some of the attempts in the Parliament highlights the persistence of some of the legislators of the time: August 1885: • Dr E.C. Stirling asks whether Parliament seeks to introduce a bill reflecting the House of Assembly’s recent resolution to extend franchise to women. The Premier, the Hon JW Downer says it isn’t in the Parliament’s intention to do so. September 1885: • Leave is granted to introduce the Constitution Act Amendment Bill 1885, but the Bill is not proceeded with. June 1886 • Dr E.C Stirling Moves for leave to introduce another Bill. In October, the Bill was defeated. July 1888 • R Caldwell introduces a Bill, similar to previous Bills. But, again, after the second reading the bill is not further proceeded with. October 1889 • R Caldwell introduces another bill, that is introduced and read a second time, but ultimately fails. July 1890 • R Caldwell tries again, introducing a bill in light of various petitions that had been presented to the South Australian Parliament. The Bill is read a third time before being sent to Legislative council – a first for the suffrage movement. But, the Bill fails in the Legislative Council. July 1891 • The Hon. J Warren introduces a bill. Again, the bill goes to the Legislative Council but still does not pass. Adult Suffrage Bill 1893 July, 1893. • Dr J.A. Cockburn introduces a bill but the motion to read it a third time is negatived by a one vote margin. December 2019 THE BULLETIN

125TH ANNIVERSARY OF WOMEN’S SUFFRAGE

Adult Suffrage Bill 1894 July, 1894. • They try again with a bill incorporating two clauses; that women had the vote for both Houses of Parliament, and, that they could not sit in Parliament. • Ebenezer Ward moves to strike out the clause forbidding women to sit in

Parliament, to try and split the vote. Ward’s amendment is carried. • The Bill is debated in light of more petitions presented to the Parliament advocating and criticising suffrage. • The Bill passes on 18 December 1894 with a statutory majority - (ayes, 31 noes 14).

Nathan Ramos is a Law and Journalism graduate who recently undertook an internship with the Law Society as part of his Bachelor of Journalism. The author acknowledges the research published by the State Library of SA which was of significant assistance in the preparation of this article. For more information on the women's suffrage movement, visit: http://guides.slsa.sa.gov. au/SAwomen/womens_suffrage. B

Courage of activists celebrated at women’s suffrage milestone event

lmost 100 guests attended the Law Society’s Women’s Suffrage lunch at The Hilton on 31 October, an event held to mark the 125th anniversary of women being given the right to vote in SA. Society President Amy Nikolovski hosted a panel discussion, with the Honourable Justice Judy Hughes, Her Honour Judge Mary-Louise Hribal, and Marie Shaw QC, who reflected on the trailblazing women that they looked up to and spoke passionately about the courage of those who stand up for their beliefs in the face of intense opposition. When Ms Nikolovski asked Justice Hughes if she would have been a suffragette in the vein of English Emily Davison, who was sentenced to a month’s hard labour for throwing rocks at the carriage of chancellor David Lloyd George rocks and later died from injuries sustained when she collided with the King’s horse

18 THE BULLETIN December 2019

at the Epsom Derby, she commented that she would have believed in the plight of the suffragettes but was doubted that she would have been temperamentally suited to the militant style of protest that they demonstrated by the likes of Davison. Her Honour did remark that fighting for what is right can come in all different forms, and that while not everyone has the disposition to be a “rock throwing” activist, there is real merit in people advocating for causes in a way that plays to their individual strengths. These were certainly encouraging words to the quiet achievers out there. Marie Shaw QC, unsurprisingly, commented that she would very likely have been a suffragette if she lived in the late 19th to early 20th century. “All someone would have had to do was ask”, she said, adding that she would be too pig headed to back down from something she so passionately believed was right.

Judge Hribal spoke of the trailblazing women in the legal sector, including Mary Kitson, Beryl Lynn and Dorothy Somerville, who also had overcome significant barriers and paved the way for the future women of the profession. The Society thanks Lipman Karas for their generous sponsorship of the event. B

Law Society President Amy Nikolovski (left), with panellists the Honourable Justice Judy Hughes, Marie Shaw QC and Her Honour Judge Mary-Louise Hribal

ALTERNATIVE DISPUTE RESOLUTION

WATCH THIS SPACE: ATTORNEYGENERAL IDENTIFIES THE NEED FOR ADR IN THE STATE’S EMERGING COMMERCIAL SPACE INDUSTRY MARK GIDDINGS, SENIOR ASSOCIATE AT LIPMAN KARAS AND MEMBER OF THE COMMERCIAL LAW COMMITTEE

n a signal to the legal profession, Attorney-General Vickie Chapman has emphasised the need for lawyers to understand and engage with the law applicable to the State’s emerging space industry. The call follows last year’s announcement that Adelaide would be home to the Australian Space Agency and the launch of the South Australian Space Industry Centre. Speaking at a panel discussion at The Science Exchange in July, Ms Chapman said the space industry required commercial solutions to disputes that would avoid parties getting bogged down in litigation in the courts where matters may take several years to be resolved. She hinted that the State Government may take steps to promote forms of alternative dispute resolution (‘ADR’) in the sector. There are currently around 50 companies in South Australia involved in the space industry in some form,1 whether providing launch services or manufacturing components and materials. That number is expected to grow as South Australia establishes itself as a centre for commercial space related activity.2 The nature of commercial disputes in the space industry The Space Activities Act 1998 (Cth), which was recently amended to reduce barriers to participation for smaller

20 THE BULLETIN December 2019

Australian space companies,3 grants jurisdiction to the Federal Court to hear claims for compensation for damage caused to third parties and enforcement proceedings for breaches of civil penalty provisions.4 However, the Space Activities Act deals with a relatively narrow range of conduct in relation to the provision of launch services and liability for objects launched into space. Many of the disputes which arise in the space industry are those familiar to any industrial commercial sector and such as breaches of contractual terms, breaches of the Australian Consumer Law and infringement of intellectual property rights. For example, a designer and manufacturer of microsatellites may have a dispute with its supplier about the failure of components to comply with specifications, or a telecommunications carrier may have a dispute about price increases from a wholesaler of satellite broadband services.5 What is distinctive with respect to the space industry is its level of technical complexity, the degree of inherent risk involved in space related activities, and the nature and extent of government regulation, which imposes permit requirements for activities such as conducting launches6 and exporting space systems or equipment.7 It is these features, more than the liability regime under the Space Activities Act, which call for attention

if dispute resolution is to be tailored to the commercial space industry.

A ROLE FOR ARBITRATION AND OTHER FORMS OF ADR The advantages of ADR – speed, flexibility, lower cost, confidentiality and the ability to choose decision makers – are all of potentially great assistance to parties seeking to resolve disputes in the space industry.8 Of course, whether such advantages can be realised will depend on the nature of the dispute and cooperation of the parties. For disputes with cross-border aspects, international arbitration may be particularly well suited as it is not tied to the court system of either party. A benefit of international arbitration, which in Australia is governed by the International Arbitration Act 1974 (Cth),9 is that awards are widely enforceable abroad under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which has been ratified by around 160 states.10 The ability of parties to select an arbitrator with the requisite experience and expertise is another key advantage. A good arbitrator can bring legal expertise and knowledge of the law applicable to the dispute, together with familiarity with the unique technical, operational and

ALTERNATIVE DISPUTE RESOLUTION

regulatory requirements of the industry within which the dispute arises. Arbitral rules, such as the UNCITRAL Arbitration Rules or those published by institutions such as the Australia Centre for International Commercial Arbitration (‘ACICA’), provide ready-made procedures for dealing with commercial disputes which may be adopted by parties with or without modifications. Some bodies have published specialised arbitral rules, such as the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities produced by the Permanent Court of Arbitration.11

CONCLUSION For the State Government to acknowledge the importance of developing the use of ADR processes

is a welcome move. Commercial dispute resolution through the use of ADR is a specialised area of legal practice and it would be helpful for the State Government to promote awareness of the uses and benefits of ADR among the commercial space sector. In particular, companies would benefit from understanding the importance of including ADR clauses in their commercial contracts to protect against litigation risks arising from the actions or defaults or either party. They would also benefit from access to information that would allow them to determine if a particular dispute is suitable for resolution through the use of ADR. It will be interesting to see what concrete steps the State Government takes in this regard. B

F ISHE R BRENNAN CON SULTING

LITIGATION AND PRE-LITIGATION ADVICE AND EXPERT REPORTS EXPERT WITNESS SERVICES - CONSTRUCTION Magistrates Court District Court Supreme Court COMMERCIAL AND RESIDENTIAL PROPERTY DISPUTES ALTERNATIVE DISPUTE RESOLUTION: Facilitated Negotiation Mediation Expert Determination PROPERTY CONDITION REPORTS: Practical Completion End of Lease – Defects And Making Good Dilapidation Surveys

Endnotes 1 South Australian Space Industry Centre, Capability Directory, <https://www.sasic.sa.gov.au>. 2 G Strada, Growing the Space Economy; The Downstream Segment as a Driver (May 2018) at 83. 3 Space Activities Amendment (Launches and Returns) Act 2018 (Cth). 4 Space Activities Act 1998 (Cth) ss 72 and 82. 5 See, eg, Ipstar Australia Pty Ltd v APS Satellite Pty Ltd (2018) 329 FLR 149. 6 See, eg, Space Activities Act 1998 (Cth) s 11. 7 See, eg, Defence and Strategic Goods List 2019 (Cth) Division 5, Part 2, Category 9. 8 G Khoukaz, “ADR That is Out of This World: A Regime for the Resolution of Outer-Space Disputes” (2018) (1) Journal of Dispute Resolution, 265 at 277. 9 The International Arbitration Act 1974 (Cth) implements the UNCITRAL Model Law on International Commercial Arbitration. 10 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958). 11 These are a modified form of the UNCITRAL Arbitration Rules.

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Disbursements and their reimbursements ETHICS & PRACTICE UNIT, LAW SOCIETY OF SA

thics and Practice has taken the opportunity to clarify the question of when it is appropriate for a practitioner to be reimbursed for a disbursement paid from the office account. Disbursements are defined as those payments which have been made in pursuance of the professional duty undertaken by the solicitor which he or she is bound to perform, or have been sanctioned as professional payments by the general practice and custom of the profession.1 The term refers to money which, for the purposes of the retainer or proceeding, has been actually paid out to other people, such as witnesses, counsel, professional advisers, and so can be distinguished from “costs” strictly speaking, which cover remuneration for the exercise of professional legal skill by a lawyer.2 Those payments made by a practitioner on behalf of a client which the practitioner is not obliged to pay, such as payment for stamp duty or LTO fees, while not true disbursements, are often classed by commentators as “non-professional” disbursements as compared with the “professional” disbursements referred to above. While the above distinction may have relevance in some regards (eg in whether GST may be payable), the principle in relation to reimbursement does not rely on any difference in categorisation. At all times money entrusted to a legal practice in the course of or in connection with the provision of legal services to which the practice is not wholly entitled is trust money (Schedule 2 Legal Practitioners Act 1981). In the case of a disbursement, whether professional or non-professional, a practitioner is not entitled to be reimbursed until the disbursement has been paid and the practice has issued a disbursement invoice or notice of withdrawal (Legal

22 THE BULLETIN December 2019

Practitioners Regulations 45(3)(a)(iii) and 45 (3)(b). Money is taken to have been paid by the law practice when the relevant account of the practice has been debited (Regulation 45(6)). The critical issue is when payment occurs such that the practitioner is entitled to be reimbursed. Until the practitioner has paid for the disbursement in such a way as to have fully extinguished the liability incurred by him or her for that disbursement, he or she is not entitled to be reimbursed. “Payment” may take the form of cash, electronic funds transfer, credit/debit card, cheque or authority for electronic payment (such as for Revnet). Payment by cash or electronic funds transfer immediately extinguishes the liability of the practitioner, but payment by cheque or authority does no more than merely create a further liability that is discharged at a later date. A cheque drawn on a practitioner’s office account is not discharged until it is successfully presented (section 58 Cheques and Payment Orders Act CTH (1986). Similarly, the provision of an authority to withdraw funds electronically from the practitioner’s account does not extinguish the liability until the funds are actually withdrawn. You should not presume that an electronic payment has been successful just because it has been processed. We recommend that you verify that the payment has been made to the correct payee and debit has appeared on the bank statement before appropriating the reimbursement. Until that occurs, there is the potential in each case that sufficient funds may not be available for a successful discharge of that liability. In the case of a credit/debit card payment, reimbursement can only be actioned when a payment receipt or acknowledgement has been received. If the law practice credit/debit card attracts membership benefits or rewards

these must be disclosed in the retainer. In the absence of written disclosure, a conflict concerning a solicitor’s own interests will arise (see Rule 12 of the Australian Solicitors Conduct Rules). A practitioner who maintains an account with a supplier of services that may or may not be specifically billed as disbursements (eg Telstra) may not be reimbursed for a billed disbursement until the account that includes the particular client’s disbursement has been paid. However, where those services are not to be specifically billed as disbursements, but are essentially the costs of running a practice, the practitioner has a personal liability to the supplier unrelated to any particular client. Those costs may be included in the practitioner’s costs (eg as a component of his or her established hourly rate) and, in those circumstances, the practitioner is not required to have paid the accounts for those services prior to receiving payment or reimbursement for costs. Reimbursement by a practitioner prior to being wholly entitled to that money is not only a breach of the Legal Practitioners Act 1981 and Legal Practitioners Regulations 2014 but also a breach of the practitioner’s fiduciary duty not to make a profit (apart from a proper professional fee) from the solicitor/client relationship. B Endnotes 1 https://advance.lexis.com/document/?pdmfid=1 201008&crid=dc88a084-4f8a-4a04-ba8f-35b7b34 4935a&pddocfullpath=%2Fshared%2Fdocument %2Fanalytical-materials-au%2Furn%3AcontentItem%3A59M3-1FX1-F5KY-B0RW-00000-00&pd docid=urn%3AcontentItem%3A59M3-1FX1F5KY-B0RW-00000-00&pdcontentcompone ntid=120761&pdteaserkey=sr0&pdicsfeature id=1517127&pditab=allpods&ecomp=xpqxk &earg=sr0&prid=b55c8771-713c-4634-8a937dcd20d79bbc 2 see LexisNexis Halsbury’s Laws of Australia (online at 22 October 2019) Practice and Procedure, ‘7 Judgment and Execution’ [325-9405].

FAMILY LAW

Law Council president says merger would make family law crisis worse

aw Council President Arthur Moses SC emphatically criticised the Federal Government’s proposal to merge the Family Court and Federal Circuit Court in a speech to the Newcastle Law Society’s Annual Dinner. Mr Moses said the abolition of a specialist family court would “hurt children and families”. He said that urgent reform to the family law system was needed to address the unacceptable delays, cost and confusion plaguing the system, but the Government’s merger Bill was not the answer. “With the government’s failure to make timely appointments of new judges, this has led to a blowout of waiting times for trial of up to 19 months,” Mr Moses said. “Yet successive governments have failed to do what is needed to improve the

system: provide adequate funding, sufficient resourcing and a coherent structure to stop children and victims of family violence from falling through the cracks.” Mr Moses said the law Council has devised a three-step solution that can be summed up in two words: “specialisation matters”. The Law Council’s key propositions are: • The Government to retain and properly resource a specialist, stand-alone family court. • The Government to carefully consider alternative holistic structural reform of the system, such as recommended by the Semple Report and now the Australian Law Reform Commission, to bolster a specialist, accessible family law system. • The Government to consult with stakeholders and carefully consider

recommendations of the Australian Law Reform Commission’s recent landmark report on the family law system. “Greater resourcing, funding and investment in the system is critical and would make a tangible difference to the quality of justice clients experience,” Mr Moses said. “Investing in this critical social justice infrastructure must be a priority.” A specialist stand-alone family court is important to ensure specialist knowledge and training for judicial officers, registrars and court staff to equip them to identify and manage risk, and protect children and victims in need of the courts’ assistance, and to identify and respond appropriately when family violence presents and to engage effectively, safely and respectfully with victims of family violence.” B

VSS celebrates 40 years of advancing victims’ rights CELIA MOODIE, SENIOR PROJECT & POLICY OFFICER, VICTIM SUPPORT SERVICE

outh Australia has a very proud history in the context of victims’ rights. Over the past 40 years, South Australian Governments have enhanced the rights and services available to victims, including the incorporation of victims’ rights into legislation, and establishment of the position of Commissioner for Victims’ Rights. Victim Support Service (VSS) has played an influential role in establishing both international and South Australian declarations of victims’ rights, explicit provisions for victim impact to be taken into account in sentencing and the establishment of a Criminal Injuries Compensation Fund. Since VSS began, supported by an $8000 grant in August 1985, VSS has expanded to provide a comprehensive service to victims of crime in South Australia, across both metropolitan and regional areas. VSS has developed a highly specialised knowledge of the criminal justice system, as well as strong partnerships across the sector, with a comprehensive

understanding of the criminal justice journey for victims. In November, the VSS celebrated not only the longevity of the organisation but also the work of our qualified and experienced staff, volunteer Court Companions, regional teams, and our trauma informed practice and expertise in responding to the impacts of complex trauma. VSS continues to work collaboratively with our partners, delivering training of SAPOL professionals, legal practitioners and South Australian Courts. The service continues to receive the support of our colleagues in the legal profession to provide positive, evidence based, support for victims of crime and abuse – delivering therapeutic and wrap around support that addresses physical and psychosocial safety, with specialised knowledge in relation to complex trauma. Its current services provide a therapeutic focus not only to navigate systems – such as justice, social security and housing– but

Dean Oliver interviewing a guest panel at the VSS 40th anniversary event

to improve and support long-term health and mental wellbeing for victims and their families affected by crime and abuse. VSS’ work demonstrates the value of intensive, long-term counselling and support for victims, especially women and children experiencing domestic (including sexual) violence, and those who have experienced child sexual abuse, to reduce the impact of complex and intergenerational trauma. We thank the Attorney General’s Department for their continued support. B December 2019 THE BULLETIN

BULLYING, HARASSMENT & DISCRIMINATION

Survey results trigger action plan to make workplaces safer

ollowing the International Bar Association (IBA) survey on bullying, harassment and discrimination in the legal profession, the Society conducted its own survey to get a clearer picture of what the South Australian experience was. The Society, upon consideration of the results, decided to establish a Working Group to review the statistical results of the survey together with all other relevant material, consult as appropriate with others and make recommendations to the Council of the Society with regards to long and short-term initiatives to address the issues highlighted by the survey.

WORKING GROUP ACTION PLAN The Working Group, after thorough consideration of the material, identified a number of initiatives that the Society should implement to address the reports of bullying, sexual harassment and discrimination as revealed in the survey.

The Working Group also identified not only the need to raise awareness of the issues highlighted by the survey results within the profession but also the need to create a safe reporting environment for victims.

OUTCOMES TO DATE The Working Group has so far successfully agitated for and achieved the following outcomes: • Submission to the Law Council of Australia recommending Modern Award to cover practitioners (noting complaints from survey respondents of non-payment and underpayment). • Working Group recommendations included in the Society’s 2019 Strategic Plan and followed up in 12 months, three years, five years and 10 years respectively. • The Working Group identified relevant materials for online publication to be available to the local profession.

• The Society will issue a No-Tolerance Statement, indicating that the Society endorses a no tolerance approach to sexual harassment, bullying and discrimination in the profession. • The No-Tolerance Statement will provide the ability for firms to adopt it internally and publish and promote that they have done so. • Production of Guidelines to assist and educate the profession. • Society President Amy Nikolovski has reported on the outcomes of the survey and highlighted strategies to address the issue of bullying, discrimination and harassment at a number of forums during her presidency. The Equality, Diversity and Inclusion Committee has now assumed responsibility for continuing the implementation of programs and strategies to address bullying, harassment and discrimination in the legal profession.

DEMOGRAPHICS OF RESPONDENTS Gender

FEMALE 70%

Disability 5% of respondents reported that they had a disability. 1.5% 1.2%

<25 25-29 30-34 35-39 40-44 45-49 50-54 55-59 60+ N/A

MALE 29%

Age 18% 16% 14% 12% 10% 8% 6% 4% 2% 0%

0.9% 0.9% 0.6%

Hearing impairment Mental illness Sight impairment Movement impairment Other

Current Workplace Law firm Barrister Chamber Corp/Org Government Judiciary Other 0%

10% 20% 30% 40% 50% 60% 70%

PREVALENCE Respondents were asked whether they had experienced bullying, harassment and/or discrimination in the workplace. These results were compared against the International Bar Association’s results from its global survey. BULLYING

SOUTH AUSTRALIA

INTERNATIONAL

HARASSMENT

SOUTH AUSTRALIA

INTERNATIONAL

Lawyers that have experienced bullying

64% 3 in 4 females (approx) 1 in 2 males (approx)

43% 1 in 2 female (approx) 1 in 3 male (approx)

Lawyers that have experienced sexual harassment

33% 2 in 5 female (approx) 1 in 10 male (approx)

25% 1 in 3 female (approx) 1 in 15 male (approx)

Percentage of cases where bullying never reported

48%

57%

Percentage of cases where sexual harassment never reported

67%

78%

Conduct contributed to victim leaving or intending to leave workplace

57%

62%

Conduct contributed to victim leaving or intending to leave workplace

34%

36%

24 THE BULLETIN December 2019

BULLYING, HARASSMENT & DISCRIMINATION

Basis of Discrimination

DISCRIMINATION 45.43% respondents reported being discriminated against in the workplace. Of those: • 43.6% said they had deliberately been given too much or too little work, or work inadequate to their position • 43.6% suffered exclusion or victimisation • 41% were subject to ridicule or demeaning language • Being blocked from promotion or training opportunities due to a protected characteristic (such as race, religion, sexual orientation, gender, age or disability)

Disability

Age

24.8%

Gender Sexual Orientation Religion Race

68.4% 6% 3% 6.8%

Other

FORMS OF BULLYING & HARASSMENT The Law Society asked respondents who were victims of bullying and harassment to identify the actions and behaviour of their perpetrators. WHAT FORM DID THE BULLYING TAKE? Being deliberately given too much or too little work, or work inadequate to the position Overbearing supervision, undermining of work output or constant unproductive criticism Misuse of power or position Ridicule or demeaning language Implicit or explicit threats, other than relating to the categories above Exclusion or victimisation Exclusion from or bullying via social media, including work WhatsApp groups Malicious rumours Being blocked from promotion/training opportunities due to protected characteristic (eg race, sex, religion) Unfounded threats or comments about job security Violence, threatened or actual Prefer not to specify Other

LAW SOCIETY SURVEY

IBA SURVEY

52.7%

47.3%

59%

55.4%

62.9% 62.4%

55% 57.1%

23.9%

21.3%

43.4%

32.3%

3.4%

3.7%

21%

23.1%

16.6%

16.8%

19%

20.4%

5.85% 2% 13.2%

6.3% 2.1% 9.8%

26.3%

WHAT FORM DID THE SEXUAL HARASSMENT TAKE? Being looked at in an inappropriate manner which made you feel uncomfortable Sexual or sexually suggestive comments, remarks or sounds Sexist comments, including inappropriate humour or jokes about sex or gender Receiving sexually explicit content or propositions via email or social media Being the subject of sexist behaviour on work WhatsApp groups Receiving sexually explicit presents, cards or letters Inappropriate physical contact, for example patting, pinching, brushing up against the body and any inappropriate touching or feeling Implicit or explicit demands for sexual favours in exchange for employment or promotion Implicit or explicit demands for sexual favours in exchange for favourable performance appraisal Implicit or explicit demands for sexual favours in exchange for work opportunity Sexual propositions, invitations or other pressure for sex Serious inappropriate physical contact, for example kissing, fondling or groping Physical assault or rape Prefer not to specify Other

LAW SOCIETY IBA SURVEY SURVEY 49.5%

52.2%

75.2%

66.8%

66.7%

67.9%

13.3%

13%

5.3%

50.5%

48.6%

3.8%

6.4%

1.9%

2.7%

6.7%

5.7%

21.9%

24%

20.1%

21.6%

4.8% 1% 9.5%

3.1% 1.1% 4.4%

By whom have you been bullied and/or sexually harassed? LAW SOCIETY SURVEY LINE MANAGER OR SOMEONE OF EQUAL SOMEONE IN A SOMEONE MORE SENIOR A CLIENT OTHER SUPERVISOR SENIORITY SUPPORT FUNCTION A THIRD PARTY* (OTHER THAN LINE MANAGER SOMEONE JUNIOR IBA SURVEY Bullied by 61.5% 60.5% 27.3% 18.2% 12.2% 6.1% 29.8% 8.3% 35.6% 43.3% 7.8% 6.6% 7.3% 4.5% 5.9% 2.6% Sexually harassed by 44.2% 36.6% 25% 27.8% 8.7% 6.9% 30.8% 20.7% 43.3% 54.1% 10.6% 20.6% 21.2% 20.6% 1.9% 2.3%

COMMENT: We must do better to ensure safer workplaces BY AMY NIKOLOVSKI, PRESIDENT, LAW SOCIETY OF SA

he results of the Law Society’s bullying, harassment and discrimination survey closely reflected the global survey conducted by the International Bar Association. While it was not surprising to find out that mistreatment in the legal workplace is just as prevalent in SA as it is around the word, it was still shocking to read some of the personal experiences recounted by respondents in the survey. These are lawyers who report being repeatedly yelled at and humiliated in front of colleagues and peers, receiving

persistent sexual advances and comments, being excluded and marginalised upon returning from maternity leave, to name just a few of the numerous instances of bullying, harassment and discrimination reported by respondents. The IBA suggested that Australia’s higher than average reporting of sexual harassment is partly due to a “perception paradox” where more progressive jurisdictions show higher reported cases of sexual harassment due to increased social awareness and lower tolerance threshold

of sexual harassment. Still it is clear from the IBA’s and our survey that many victims do not report harassment for fear of the damage it would cause to their career or reputation. This of course is an unacceptable state of affairs. We need to do better to ensure a safe workplace for all members of the profession. The Law Society is developing and implementing several strategies to achieve this objective, but it can only happen with the willing participation of the legal profession, particularly its senior members. B December 2019 THE BULLETIN

YOUNG LAWYERS

facebook.com/YLCSA

Young Lawyers: This is your life PATRICK KERIN, LYNCH MEYER LAWYERS

s the 2019 calendar year comes to a close, the December edition of the Bulletin provides an opportunity to reflect on the year that was for the Young Lawyers’ Committee (YLC).

BOWLS & BBQ Fresh off the unofficial legal holiday (see: “January”), the lawn bowls event is always hotly anticipated. The decision to move the event to a Friday night saw a surge in popularity, which some analysts have asserted directly correlates to an increased opportunity for the responsible consumption of alcohol. Registration for Bowls & BBQ 2020 (to be held on Friday 31 January) will open shortly. There is already significant by-play taking place in relation to the prestigious event – rumours are circulating that Sam Janetzki (of Minter Ellison fame) has falsified his birth certificate in order to qualify as a young lawyer again in next year.

YOUNG PROFESSIONALS GALA In May almost 300 young professionals packed into Mrs Q on Gouger Street for the Young Professionals Gala. The night featured a little bit of something for everyone. A steady stream of karaage chicken made its way around the room, paired nicely with a scrumptious chardonnay. There were plenty of networking opportunities and the DJ played Avicii’s Levels several times, much to the delight of the crowd.

EDUCATIONAL SEMINAR SERIES In 2019 the YLC facilitated a Performance Review Seminar, Marketing Yourself Seminar and Ethics and Wellbeing Hypothetical. Thank you to all panellists from the three seminars. Thank you also to all who filled out the feedback forms after each seminar. The feedback showed that the real highlight was the Ethics and Wellbeing seminar due to it comprising everyone’s favourite compulsory CPD point (ethics) and for its interactive Q&A format. For those who are not aware, the seminar involves the use of interactive technology where attendees can vote on

26 THE BULLETIN December 2019

“Hey mate, can you play Wonderwall?” Young Lawyers enjoy the Young Professionals Gala

Line and length: 2019 lawn bowls attendees

answers to ethics hypotheticals live at the seminar using their smart phones. A YLC subcommittee is workshopping a rebranded seminar topic for 2020, with the lead option currently “Swipe left to refer to the LPCC, swipe right if still fit and proper”.

Ms Sanford’s lucky wooden spoon may have played an integral part in her 2019 presidential election campaign. Get in quick for the Sprout Cooking Class in mid-2020 to avoid missing out on your very own lucky wooden spoon.

PREMIUM BREAKFAST & PREMIUM DINNER

GOLDEN GAVEL COMPETITION

We were fortunate enough to have Judge Stephen McEwen speak at this year’s Premium Breakfast event. His Honour recounted several stories about his career, including his time spent presiding over the Youth Court, and the last time his Honour shaved his judicial moustache (1999). Later in the year, freshly minted Judge of the Federal Circuit Court, her Honour Penelope Kari, spoke to a crowd of approximately 30 young lawyers at the sold-out Premium Dinner. Her Honour spoke about her time in the law and how to manage life outside of work with a busy professional schedule. Thank you to both Judges for generously devoting their time, and to Borsa for hosting both events.

If there’s one thing you remember from August, it’s the Golden Gavel Competition. Alexandra Douvartzidis took home gold at this year’s competition. Unfortunately on the night of the event, the 2018 reigning champion refused to return the trophy due to severe attachment issues (and just generally being a bad sport). A successful application was brought by Ms Douvartzidis in the Supreme Court for a warrant to seize the trophy. As at the date of publication, the engraving of the trophy to celebrate the new victor was yet to take place.

HEALTHY COOKING CLASS At a mid-year meeting of the Committee, we were fortunate enough to be joined by the Vice-President of the Society (as she then was), Ms Rebecca Sanford. When the Sprout Cooking Class was brought up as an item for discussion, the now President-Elect stated that “the take-home wooden spoons from Sprout are exceptional” and that she “still uses her Sprout wooden spoon regularly”. Some pundits have commented that

CONCLUSION Finally, special thanks must go to Kate Walkley for her tireless work on behalf of the Committee, and to our major sponsor Burgess Paluch Legal Recruitment. The YLC, in particular its co-chair Erica Panagakos, is extremely excited about the possibility of hosting a “Tug of Law” event in 2020, potentially pinning the judiciary against members of the bar. As the Patron of the YLC, Justice Tim Stanley is likely to be named inaugural captain of the judicial team. All are encouraged to attend weekly training sessions in Victoria Square, scheduled to be held every Tuesday and Thursday lunch-time from mid-January 2020.

MEDIATION

The value of mediator soft skills to modern commercial practice GREG ROONEY, MEDIATION & MEMBER OF THE LAW SOCIETY’S ADR COMMITTEE

ediation has an identity issue - but it’s not its fault. Mediators - and the profession they practise called mediation - merely sit as innocent bystanders observing how the modern collaborative interconnected economy has challenged the identity and, in some cases, the very existence of the established professions and commercial and social institutions. We now live in a time where a world of connectivity and fluidity has replaced the 20th century Newtonian concepts that are linear, predictable and deterministic. This is a world driven by the rise of the World Wide Web in 1990, powered by the Google search engine in 1996 and the power of social networking starting with Facebook in 2004. The world dramatically changed again in 2007 when Napster introduced the first sharing platform heralding the beginning of the collaborative sharing economy. Then came Airbnb and Uber, both in 2008. We now have transparent and open data networks that are available free of charge to anyone with an Internet connection. The latest iteration in this change is the development of the “Internet of Things” which is a network of physical devices, including vehicles, home appliances and other items embedded with electronics, software, sensors, actuators and connectivity, which enables these things to connect with each other and exchange data. As an example, Uber’s computers share traffic data with Google Maps computers. The complexity caused by this connectivity has upended the Newtonian concept that the world is ordered and measurable and that having knowledge of the past will allow a computation of the future. Many organisations and professions, including the legal profession, still rely on a fixed Newtonian view of the world and wonder why they are being disrupted to their detriment. The biggest upheaval has been the rise in the commercial value of trust over that of competitive and adversarial behaviours. The sharing economy relies on

the willingness of users to be trustworthy and to trust each other. The platforms themselves also must be trustworthy. The sharing economy is built on the human element which is inherently complex. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs. We therefore require a new way of thinking and operating that can work with this complexity. This new world order accurately describes the lot of the practising mediator. Mediators around the world will go off to work tomorrow morning and engage with parties at a very human level in much the same way as they have been doing since the late 1980s. They will work with the uncertainties of the conflict they are mediating and hopefully come up with “good enough” resolutions. They will continue to deal with complexity and ambiguity daily and use their soft skills to massage impasses and blockages. These “soft” skills are now in high demand in the commercial world. It is the established professions and the commercial and social institutions that are having the identity crisis. They

are in a scramble to find meaning and understanding to try to fit in with this new reality. No profession is more under threat from this new world order than the legal profession. Since the 1980s it has moved from being a trusted profession based on the application of scale costs, which moderated the profession’s financial self-interest, to a commercial business model built on time costing to maximise dollar return through promoting (litigation finance) and extending disputes by means of the adversarial culture. The problem is not so much the high legal fees, although it is an issue, it is the pursuit of the adversarial approach to drive those extra fees. This keeps their clients stuck in the conflict zone far longer than is commercially necessary. This has turned out to be a huge selfinflicted wound. It has left the profession exposed and unprepared for the arrival of the open sharing economy built on trust and maintained by the soft skills of managers and their advisors.

RE-BADGING THE LEGAL PROFESSION In response to the challenge of trying to provide value to the new collaborative December 2019 THE BULLETIN

MEDIATION

economy the legal profession has sought to rebrand itself to try to recover commercial relevance. It has looked to the trusted mediation movement as its path to restoring that lost trust. The legal profession has sought to rebadge itself by dumping the designation “litigators” and replacing it with “Dispute Resolvers” (DR) now with lofty ideals: “Through a fidelity to the good of DR, lawyers not only contribute constructively to society but they can also achieve positive interpersonal and individual change for their clients. This positive impact has the potential to extend to healing, wholeness, harmony and optimal human functioning.”1 It is ironic that the long-term criticism of traditional mediation by the legal profession has been that it is too “touchyfeely” and into “healing, wholeness, harmony and optimal human functioning” the very thing that it is now trying to champion DR as. The proponents of the DR push have gone much further than a simple rebranding exercise. They have chosen to question and diminish the intent and identity of the traditional mediation movement. Firstly, Boulle and Field2 suggest that despite mediation’s versatility and diversity of applications it is not clear how mediation will respond to the challenges ahead. Secondly, they suggest it follows that this uncertainty for the future somehow renders mediation vulnerable to being subverted, rejected and replaced or modified beyond recognition. They then conclude that because of this uncertainty for the future we should not pine for or have nostalgic sentiment for mediation’s (presumably lost or invalid) original intent and identity. The real intent of the Dispute Resolution movement is revealed by the assertion that: “It will be necessary to use research to ensure that if evaluative mediation becomes the normative approach, as well it might, that quality-control and ethical frameworks exist to prevent rogue mediators making de facto determinations.”3 (Highlights inserted) The recent Global Pound conferences were essentially a public relations exercise to pursue this end. It is the promotion of evaluative mediation and allied semideterminative processes as the preeminent conflict resolution process by, in

28 THE BULLETIN December 2019

part, commandeering the high value of mediation in the eyes of the community. I am not sure the commercial world is buying this makeover, particularly when it is still built on an adversarial solution focused culture that is not in harmony with modern economic drivers. I would argue that the traditional nonevaluative “process” approach to mediation is far more in tune with the modern collaborative economy. It is an experiential approach which gives the parties the time and space to step back and allow patterns to emerge. The mediator can sense and respond to these patterns. This creates the potential for new opportunities to emerge out of the interaction that can lead to innovation and creativity. It can help repair disrupted trust which is the central foundation of the modern economy. It is mediating for the emergence of the new rather than providing an evaluation of the parties’ respective positions in order to close the gap. The core facilitative skills that mediators acquire through the practice of sensing and responding to the immediacy of the moment equip them with the exact soft skills that the commercial world needs to manage in this complex environment. This is reflected in the fact that most MBA courses run throughout Australia have now been redesigned to incorporate soft skills as a core component of their coursework. Further, the big four accounting firms have created legal departments based on a collaborative non-litigious approach to providing legal expertise.

SIR ISAAC NEWTON HAS PASSED There is much of the Newtonian thinking underpinning those promoting the dispute resolution (DR) product. This can be seen in Boulle and Field4 where they connect measurement with understanding, a classic Newtonian concept. For example, Boulle and Field propose that it is only by evaluation and measurement that the legitimacy and credibility of mediation can be assessed. This is based on the Newtonian concept that the world is ordered and that if enough research is done and a full understanding of a situation is achieved then the future can then be predicted. The challenge to this Newtonian view of the world can be seen in the replication movement in which many of the significant social science experiments

of the past are being repeated with vastly different results from the original conclusions.5 This is because nothing is repeatable in a complex environment. It has thrown into doubt the validity of much of the so-called evidence-based research and observational case studies carried out in the social science field. This has become a significant problem for academia. The Newtonian view of the world has been superseded by modern physics; particularly, the laws of thermodynamics and the emerging awareness of quantum physics. These offer far better explanations of what is happening and more importantly why the world has changed so much. The laws of thermodynamics hold the best scientific explanation of the disruptive world we live in. Thermodynamics is a branch of physics that is the study of systems. The first law of thermodynamics is that nothing is created or destroyed; it simply changes form. The second law of thermodynamics asserts that this change is always in the direction of decay and that all natural processes lead to an overall increase in disorder. It is why human beings, and nature in general, cannot reverse the ageing process. As this change occurs nothing is lost or destroyed. It is simply reconstituted in another form which then becomes the new paradigm, before it too starts to decay. Disruption is therefore a normal part of reality rather than the ordered Newtonian view of the world that existed pre-2007. The emerging understanding of quantum physics also impacts on our understanding of the complex world we now inhabit. It is a branch of physics which is highly uncertain and interconnected and where change occurs depending on the position of the observer. It breaks down the Newtonian link between cause and effect. The answer to what will happen in the future in a complex environment cannot be found through analytical thinking. Outcomes cannot be predicted because in a complex environment every element is interconnected and constantly co-constrain each other. It evolves in random by constant modification never in the same way twice. Therefore we can only understand what is happening in retrospect. Because no two contexts are the same it is impossible to forecast or predict what will happen. Joining the dots in advance is an illusion.

MEDIATION

This is a significant challenge for academia and theorists.

CONCLUSION So tomorrow morning the traditional “process” (non-evaluative) mediators will again go off to work where they will try to remain totally present in the moment to observe the dynamics of the interaction between the parties. They will probe first and then sense and respond to the reaction and they will try and suspend any attachment to their memories, desires and the need to understand what is happening and will try and not be deterred by blockages and impasses. They will allow their intuition to guide them through the session rather than letting the mechanical side of their brain be the master.6 These are the same soft skills that leaders and managers in the commercial world need to use to manage the flow of networks between people in the way that allows for the safe space for minority views, diverging opinions, conflict and

internal disruption to emerge. They require a higher state of alertness and the ability to provide a real-time response to emerging patterns and behaviours. This is the best pathway to creating strategic surprises and opportunities. For the legal community in general and the “dispute resolvers” in particular, the answer to restoring value for the legal product in the new economy is not to push aside or try to diminish the traditional mediation movement but to embrace it, and welcome it as the path to acquire the necessary soft skills to constructively engage with the fluidity, ambiguity and complexity of the new age. I therefore suggest that rumours of the death of mediation and the significant role of the traditional process mediator are greatly exaggerated. First published as a three-part blog on the Australian Dispute Resolution Research Network in October/November, 2018 https://adrresearch.net/ Greg Rooney has been a mediator in

private practice in Australia for 27 years and has since 1995 taught mediation and allied ADR subjects in a number of universities and private institutions in Australia and internationally. Greg has over the last 14 years mediated over 200 face-toface meetings between religious leaders and individual victims of sexual abuse within a number of Christian religious institutions in Australia as well as abuse within the Australian Defence Force and the South Australian Police Force. Greg, together with colleagues Margaret Ross and Barbara Wilson, have since 2012 run an annual Mediation Retreat in Tuscany, Italy. B Endnotes 1 Boulle, L; Field, R, Mediation in Australia, LexisNexis, 2018 2 Ibid. 3 Ibid. 4 Ibid. 5 https://www.nature.com/articles/d41586-01806075-z 6 Mc Gilchrist, I. The Master and His Emissary, 2009, Yale University Press.

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TRAFFIC LAW

THE CASE FOR EXCEPTIONAL DRIVER’S LICENCES PETER PICOTTI, BARRISTER & SOLICITOR

t cannot be overstated: this article is not advocating lesser penalties for criminal behaviour. A look at this year’s heartbreaking road toll tells us that the current, tough penalties are not solving the issue. This article addresses the need for individual justice, and how it can be achieved without departing from the inevitable truth that “if you do the crime, you do the time”. There is a fundamental tension between the notion that all are equal before the law and the manner in which the law differentiates (or, more to the point, fails to differentiate) between those of us in the city and those in the country. When it comes to driver disqualification, there is a clear disadvantage to those in the country who cannot just catch a bus or afford a taxi to work. I do not mean those who need their licence to work, but rather those who need their licence to get to work. In the former case, there can be no tangible disadvantage. The stakes are the same for a farmer in Crystal Brook as they are for a courier in Burnside. The difference is that the stakes are greatly different for someone who lives in Crystal Brook but works, say, in Bute and loses the ability to simply get to work, while someone living in Burnside can take the bus. South Australia currently provides for provisional and probationary drivers, who are disqualified from driving following a conviction for a drink-driving offence, to apply in limited circumstances to retain their licence if they enter into a Safer Driver Agreement. Alternatively, they can appeal their disqualification to the Magistrates Court for a licence to be reinstated where it would cause severe and unusual hardship for the driver or their dependants for the disqualification to stand.1 There is no equivalent for drivers with “full” or “unrestricted” licences. In regional South Australia, there is often little to no public transport. It varies. For instance, I am only 90 minutes out of

30 THE BULLETIN December 2019

Adelaide but I have access to less public transport on the Fleurieu than people living in Whyalla, where there is a bus service within the city. It is very common for people living in the country to travel through two or three towns, over an hour away, to get to work or to travel from country towns into Adelaide. When there is no access to public transport, simply turning up to work becomes impossible. This has the ripple effect of placing the disqualified person under immense pressure as well as their family. Dependants suffer and there is even less money circulating through the local economy from the lost employment. Employers lose money in lost productivity and retraining costs. In some smaller townships, it is not hard to imagine there being dire consequences for a business that loses a handful of regular customers or a key employee. Long before my career there existed the Offenders Probation Act.2 That Act allowed the court to refrain from entering a conviction and instead place the driver on a bond that included both scope for the offender to keep their licence and restrictions that limited that offender to only driving for prescribed reasons – such as only getting to and from work.3 One example shared with me included a mother being permitted to drive her children to and from school and school events by the most direct route.4 Other examples that colleagues have shared included:5 • A delivery driver, who was effectively the “star of the show” for his bakery, was allowed to keep his licence under the Cobiac principle on the basis that he would be limited to working when nobody else was rostered on to do so. The court in that case was made aware that it would mean he still did most of the work. • A young driver who lost his licence for exceeding the prescribed concentration of alcohol had to rely on his parents

•

for transport to and from his apprenticeship, some 20km from home. This was a considerable disruption to his parents’ respective working days. Farm workers (who do not need licences on private land) face being charged with driving whilst disqualified if they move equipment directly across a road that bisects the farm on which they are working. The journey from one paddock to another, in my view, would fit the bill of incidental travel between places of employment rather than using their licence for work. Farm and dairy hands often start their day early. Even those towns with limited bus services (such as the Premier Stateliner that used to run through Victor Harbor) would not commence early enough. These people would lose their jobs, and the farm would likely suffer a loss of income through hiring someone new and potentially wasted produce in the interim. Even if the farmer lives on their farm and somehow gets by without needing to traverse a road bisecting their land, chances are that something will break and they will need to go into town to get parts either from the supplier or the post office. Often, couriers and Australia Post will service a particular location rather than coming out to individual properties spread out over hundreds of kilometres. A woman issued with an instant loss of licence for doing 125kph in an 80 zone outside of a country town (with no traffic, crossings, homes or anything else around other than the police who apprehended her) was fortunate that prosecutors accepted a plea to 120kph, which brought her offence to a lesser category that allowed her licence to be reinstated. The prosecutor took into consideration that the woman’s husband was disabled, had no other family and relied exclusively on her for transport for regular medical treatment.

TRAFFIC LAW

If kids cannot get to school, the Department for Child Protection can become involved. If one cannot get to work, they cannot even pay the fuel cost for someone else to get the kids to school for them. Some will even struggle to put food on the table. Others stagnate while out of work and ultimately become entrenched in the social security system. Often the delay waiting for an ambulance to be dispatched to a remote area can make the difference between life and death. In each case, the cost is disproportionate to the harm sought to be remedied by the removal of an option for the Court to afford people that second chance. It is too easy to argue “they should have known better”. Of course they should have. The reality, however, is that often people do something foolish without thinking about the consequences to others downstream. Others then pay a disproportionate price for that person’s careless choice. Those who do not drive for a living may also be less likely to consider the risk and impact of potential disqualification on their

ability to work. Justice is not blind. It takes the human side into account already in affording that second chance to provisional or probationary drivers. That human side is a cornerstone of the sentencing process in criminal law generally. Western Australia, Tasmania, Queensland and the Australian Capital Territory each have legislation providing for licences in extraordinary circumstances. The Court in those cases looks at the history of the offender and the need for the licence before determining whether to grant one.6 In granting such a licence, the Court imposes strict conditions on the person’s licence. Breaching those conditions is a criminal offence. If the application is refused, the applicant has to wait six months before applying again. In each jurisdiction, a criterion exists requiring the Court to consider the granting of a licence as a specific step to ameliorate the risk to an offender’s employment.7 The Tasmanian system is framed in terms more resembling the hardship application process available to probationary and provisional drivers in SA.

The interests of justice lean to the reintroduction of a system such as that which existed previously, or to mirror that of WA, Tasmania, Queensland or the ACT. “A capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.”8 The author acknowledged the gracious feedback of the Country Practitioners Committee to the article. B Endnotes 1 See generally Motor Vehicles Act 1959 (SA) ss 81BA, 81BB. 2 This Act was repealed in 1988. 3 Offenders’ Probation Act 1919 (SA) s 4; see also Cobiac v Liddy [1969] HCA 26 (the joint judgment of Barwick CJ, Kitto & Owen JJ and also that of Windeyer J). 4 Thanks to Thomas Rymill for this example. 5 Thanks to Thomas Rymill and Peter Ryan for these examples. 6 Road Traffic (Authorisation to Drive) Act 2008 (WA) s 30. 7 See, eg, Road Traffic (Authorisation to Drive) Act 2008 (WA) s 30(4); Vehicle and Traffic Act 1919 (Tas) s 18(5); Road Transport (Driver Licensing) Regulations 2000 (ACT) reg 47; Transport Operations (Road Use Management – Driver Licensing) Regulations 2010 (QLD) reg 94(1)(c). 8 Cobiac v Liddy [1969] HCA 26, [3] (Windeyer J).

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EVENTS

Bittersweet victory for lawyers at side-splitting medico legal debate

he triumph of the legal profession in the doctors v lawyers debate, which was contested at the Medico-Legal Dinner on 18 October, was somewhat bittersweet. For while the panel of Marie Shaw QC, Enzo Belperio and Brianna Rositano won the debate over their medical adversaries, the argument that they successfully prosecuted was that it was better to be a doctor than a lawyer. The doctors tried to argue the reverse, that they should have indeed pursued the law instead of medicine. While the team of the team of Dr Janice Fletcher, Dr Daniel Byrne, and Dr Lucy Haynes made some compelling points, they could not quite convince the Judge, SAET Deputy President Tony Rossi, that the law was a preferred discipline. Judge Rossi did however name Dr Janice Fletcher the best individual debater of the night. Dr Fletcher delivered arguably the best line of the debate when

she remarked on the gut-wrenching cry that no one wants to hear: “Is there a lawyer on the plane!?”. The dinner, held at The Pullman, was attended by just over 90 guests across the legal and medical professions, and provided a great opportunity for legal and medical practitioners to interact and network (and perhaps dole out some free advice to each other). The Law Society thanks Created 2 Print for their generous sponsorship of the dinner. Plans to make Medico-Legal Dinner a regular fixture This year was the third consecutive Medico-Legal Dinner, after the event was revived in 2017 at the instigation of then Law Society President Tony Rossi. The success of the past three events, has encouraged co-hosts, Law Society and the SA Branch of the Australian Medical

His Honour Judge Tony Rossi (middle) with debate panelists Brianna Rositano (left), Marie Shaw QC, Dr Lucy Haynes VC (Virgin Club), Dr Janice Fletcher QC (Qantas Club), Dr Daniel Byrne LLB (Lockleys Lawn Bowls Club) and Enzo Belperio

Association (AMA), into keeping the Medico-Legal Dinner as an annual event. The Medico-Legal Society was formed in 1936, but it was not until the 1970s that an annual dinner was held to strengthen the relationship between the professions. One of the aims of the dinners was to break down barriers and misconceptions about the roles of lawyers and doctors so that their professional interactions, such as lawyers’ requests for doctors to act as medical witnesses, would be more fruitful and collegiate. The events were originally held in the Barossa Valley or Victor Harbor, but more recently were held at Stamford Plaza on North Tce. Dr Sue McCoy and Natalie Dunford were the chief organisers of the event in the 2000s up until 2008, but the dinner stopped happening after that due to a decline in interest and the retirement of Dr McCoy and Ms Dunford from the organising committees. B

From major sponsors Created 2 Print (from left): Denis Noble, Peter Anargyros, Cindy Ridgwell and Rita Vozzo

David Gardner (left) and Allie Shaw

Blake Wadlow (left) and Dr Gopika Asokan

John Ward (left), Eliza Kennewell, Sachini Perera, and Magistrate Briony Kennewell

Law Society President Amy Nikolovski (left) with AMA (SA) President Dr Chris Moy

Freda Propsting (left), Magistrate Gregory Fisher, and Penni Hamilton-Smith

Dr Thiru Govindan (left), Dr Barry Rowe and Dr Monika Moy

32 THE BULLETIN December 2019

WELLBEING & SUPPORT

Is burn out just in your head? WELLBEING & RESILIENCE COMMITTEE

cientifically referred to as adrenal insufficiency or adrenal fatigue, burn out is often associated with the normal feeling of operating in an environment of personal and professional competing demands but is not a condition that is medically recognised. Working in the legal profession, you are often exposed to high workload and a stressful environment. The body is a scientific wonder in that it helps to regulate these periods with the release of cortisol to help regulate our system in stressful times. Cortisol can turn to be foe when the body is not fed with nutritional food and regulated sleep and is instead fueled to go further into overdrive production by lack of sleep and poor food choices or worse, food deprivation. The nature of this cycle then starts to wreak havoc with your hormones as your body may go into cortisol overdrive and start to mess with the normal hormone balances required for optimal performance. What can you do? It is important to be mindful of how you are feeling and how well you are operating. If you start to have feelings associated with burn out, it is best to consult your GP to develop a plan likely to involve stress management, nutrition and sleep training.

DO MEN & WOMEN SUFFER BURN OUT IN EQUAL MEASURE? As burn out is not medically recognised it is more commonly associated with anxiety. Historically, the feelings of anxiety were more commonly associated with males due to their prominence as the bread winning member of the then average household. As the demographics have changed, it is now reported that anxiety is more common in females than males by 7.1% (ABS, National Survey of Mental Health and Wellbeing, 2007). As burn out is commonly associated with hormonal imbalance, biologically women are more likely to be exposed to further imbalances due to natural hormonal changes in life cycles. What can you do? It is important to recognise the value of regular health checks, making good nutritional choices and getting an appropriate amount of sleep to help manage the risk of burn out.

EXERCISE CAN HELP – BUT DON’T OVERDO IT To address adrenal fatigue, it is common to remove aerobic (exercise that works the heart and lungs) and anaerobic

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(exercise that strengthens muscles) as this would further the production of hormones already in overdrive. Don’t give up completely! A balanced exercise program has been shown in studies to be a helpful tool in regulating sleep patterns and driving better nutritional sources. Further studies are required in this area to provide more substantial data sets. What can you do? It is important to seek advice on having an exercise program developed that will assist in regulating the feelings associated with burn out. This may include how often you exercise and what type of exercise you do.

CAN A HOLIDAY CURE BURN OUT? Hormonal imbalances are not fixed lying on a beach; for some this will in fact exacerbate the metabolic meltdown. Time off is critical to recharging your batteries but like exercise, nutrition and sleep is part of the plan, not the solution. What can you do? Start to implement exercise, nutrition and sleep goals into your weekly routine to end the year on a natural high and start 2020 fitter, more rested and brighter than ever before!

SPEECH

Reflections on the landmark Trevorrow case as plight of Aboriginal families continues On 12 August, the Adelaide Law School hosted the launch of Dr Tony Buti’s book A Stolen Life: The Bruce Trevorrow Story. The book tells the story of Bruce Trevorrow, a member of the stolen generations who successfully sued the government of South Australia. Below is an adapted version of the speech delivered by The Honourable Chief Justice Chris Kourakis at the book launch.

he Trevorrow case is widely known in the community. It was a landmark decision. Bruce Trevorrow was born on November 1956. On Christmas Day 1957, he fell very sick. At the urging of his father, Joe, neighbours took Bruce from Meningie to the Royal Adelaide Hospital. He was found to have garden variety gastroenteritis and recovered quickly. However, for no reason other than his Aboriginality, by 6 January 1958 he was placed with foster parents. His parents, Joe and Thora, did not consent; they were not even informed of the fostering of their baby ‘Brucey’. Bruce was one of many Aboriginal children to be so cruelly dealt with; casualties of government policy of whitewashing Australia’s Indigenous population. On 25 July 1958, Thora wrote to the Aboriginal Protection Board (the APB): “I am writing to ask if you will let me know how baby Bruce is and how long before I can have him home as I have not forgot I got a baby in there.” The Secretary of the APB replied, concealing that Bruce had been fostered and falsely stating that the child was ‘making good progress but as yet the doctor does not consider him fit to go home’. Section 10 of the Aborigines Act 1934 (SA) made the APB legal guardian of every Aboriginal child. In 1949 the Crown Solicitor advised the Attorney-General that despite the power of guardianship the removal of Aboriginal children from their parents was not authorised.

34 THE BULLETIN December 2019

Section 120 was reversed in 1962 by the Aboriginal Affairs Act 1962 (SA). Although the placement went well initially, Bruce’s behaviour deteriorated from about 1964. Faced with the complaints from Bruce’s foster mother of the increasing difficulties she was experiencing in caring for him, Bruce was taken to Victor Harbor to see his mother in May 1967. He was told it would be for the school holidays but the plan all along was that he stay there permanently. The consequences of wrenching Bruce from his biological and foster families respectively within the first decade of his life without any attention to his psychological wellbeing, left him suffering life-long depression with its many associated material, family, social and emotional disadvantages. Justice Gray found that, primarily stemming from the lack of power to remove Bruce from his family, the State had committed the torts of false imprisonment, misfeasance in public office and negligence. He also found that the Board had acted in breach of a fiduciary duty it owed Bruce. He awarded Bruce $450,000 for general damages and $75,000 for exemplary damages. On appeal, the findings that the APB did not have legal power to foster Bruce and that its officers acted negligently and had committed misfeasance of public office were upheld. The Full Court upheld the factual findings that: • The circumstances did not call for Bruce Trevorrow to be removed from his natural family;

Chief Justice Chris Kourakis (left) with author Dr Tony Buti

• Despite Bruce being admitted, his hospitalisation was not serious and was not indicative of neglect; • Neither Joseph nor Thora consented to the fostering of Bruce; • The decision to foster Bruce was made after inadequate inquiries and on an unsound basis; • Mrs Davies was untrained as a foster mother; • The letter of 19 August 1958 from the APB was misleading; • The officers of the APB did not check on circumstances at the Davies’ home until 1964; • Nothing was done to return Bruce Trevorrow to Thora when the Aboriginal Affairs Act 1962 (SA) was enacted. The findings as to false imprisonment and breach of fiduciary obligations were overturned but without affecting the award. Mr Buti’s book ‘A Stolen Life’ graphically describes the real life of the Trevorrows in one mile and three mile camp out of Meningie. It describes their connection with the Ngarrindjeri tradition and its importance to them. It demonstrates the dignity with which they

SPEECH

faced the socio-economic adversity of colonisation. It is frank about the way in which the social and cultural dislocation of their people marred some aspects of their personal lives. But most importantly, A Stolen Life pays homage to their resilience and their capacity to fight back. As part of their traditional armoury they had their connection with country, their language and their culture. But Bruce realised that he could also wield the colonisers’ weaponry. Let me explain what I mean by that. I was articled to Elliott Johnston. One of the great advantages I had was to learn from Elliott’s strategic vision of how the law could be used not only in defence of Aboriginal and working-class people in the face of criminal or civil actions brought against them, but also to advance the interests of the underprivileged. The law, explained Elliott, was not just a shield. It could also be a sword to advance the causes of the poor, the working class and Indigenous Australians. And so, Part Two of Mr Buti’s book which describes the putting together of Bruce Trevorrow’s legal team after he approached Joanna Richardson at ALRM is aptly entitled ‘The Champions Gather’. The novelty and great strength of Mr Buti’s book is that he combines an earthy description of the life of the Trevorrow family with the forensic battle they fought, offering insight into both the general and statutory law and the legal practitioners which framed Bruce’s claims for redress for the terrible wrongs he had suffered. The public of South Australia and the whole nation owes a debt to counsel of Justice Gray and Chief Justice John Doyle and Justices Duggan and White who sat on the Full Court. The decisions of Justice Gray and the Full Court demonstrate the capacity of the law, properly deployed, to achieve a just resolution even of the most complex and socially divisive issues.

A Post-Script The heartless and arrogant colonial policies of the Aborigines Act 1934 (SA) have long gone. The Children’s Protection Act 1993 (SA) provided that no decision or order would be made with respect to the residence of an Aboriginal or Torres Strait Islander child unless there has first been consultation

with a recognised Aboriginal organisation. It also enacted the general principle that an Aboriginal child should be kept within the Aboriginal community and a Torres Strait Islander child should be kept within the Torres Strait Islander community. That principle has been re-enacted in subsequent children’s protection legislation. In 2016 this State’s reparation scheme for members of the lost generation became operational. The Nyland Royal Commission which handed down its report in August 2016 devoted a chapter to Aboriginal and Torres Strait Islander children in the State’s child protection regime. It noted that it was important to recognise the strengths in Aboriginal parenting including: • A collective approach between families and communities; • Relatively greater levels of freedom and autonomy for children to explore their world; • The integral contribution of elders to family function; and • The sharing of culture and spirituality with children as part of their broad family and community. The Commission’s report warned of the need to have regard to cultural factors such as those when considering the application of attachment theory. The Nyland Royal Commission reported that Aboriginal children and families are vastly over-represented in all parts of the South Australian child protection system. In 2014/2015, 28.8 non-Aboriginal children per thousand were the subject of screened-in notifications. The rate for Aboriginal children was 191.5. For nonAboriginal children there were 5.9 finalised investigations and 57.74 for Aboriginal children. In 2014/2015 there were 5.7 in every one thousand non-Aboriginal children in child protection and 52.3 Aboriginal children. In terms of placement of Aboriginal children, as of 30 June 2015, 52.7 per cent were placed with relatives or kin, 13.8 per cent with other Aboriginal placements and 33.5 per cent with non-Aboriginal placements. An unacceptable figure. New South Wales, for non-Aboriginal placement, was 28.8 per cent, Queensland 43.5 per cent, Western Australia 35.6 per cent and the Northern Territory 65.2 per cent.

Justice Nyland recommended: • Developing an Aboriginal recruitment and retention strategy in child protection agencies, and the commissioning of not-for-profit agencies to develop service models that can respond to higher risk Aboriginal families with multiple complex needs; • Ensure that local assessments of needs (LANS) specifically consider the Aboriginal children's families and consult with local Aboriginal people and service providers; • Assess possible foster parents against a culturally appropriate assessment tool; • Improve services to remove Aboriginal communities; • Provide extra funding to particular programs. The report was provided in August 2016. More generally, Justice Nyland recommended that child protection legislation include as an object, timely decision making by the authorities and the Youth Court itself. Section 56(1) of the Children and Young People (Safety) Act 2017 (SA) provides that all proceedings must be dealt with expeditiously with due regard to the degree of urgency of each particular case. Section 56(2) provides that the Court should, as far as practicable, continue without adjournment until all evidence has been presented and that judgment should be delivered as soon as is practicable after all the evidence has been presented. However, in the year 2018/2019, 91 of the 981 applications filed were listed for trial. Of those matters, 56 of the trials were adjourned. The percentage of cases with a trial was therefore nine per cent, and of those, 62 per cent were adjourned. There is an urgent need for increasing the resources needed, in particular the judicial officers of the Youth Court. There is contemporary debate about the call from Aboriginal and Torres Strait Islanders for a ‘voice to Parliament’. Whatever form that demand finally takes, and I hope that the aspirations of the first Australians are met, I hope that it will allow the representative body of the Aboriginal people to question and indeed audit the provision of education, health and other services to their communities. Only in that way can we stop the endless repetition of the mistakes of the past. B December 2019 THE BULLETIN

TAX FILES

Deduction? What a capital idea! ANDREW SHAW, SHAW LAWYERS

“L

et me tell you how it will be, there’s one for you nineteen for me, ‘cause I’m the taxman, yeah I’m the taxman… and you’re working for no one but me” – The Beatles, “Taxman” (1966) Whether an outgoing (expense) is on capital or revenue account for tax purposes can make a big difference to the financial position of a business. Typically, revenue expenditure is tax deductible in full in the year of income in which it is incurred, thus reducing the tax bill of the business.1 Capital expenditure is either not deductible at all or, if it meets certain conditions, may be deductible on a straight-line basis over five years under the “blackhole expenditure” provisions.2 Distinguishing between outgoings on capital or revenue account may be problematic. Borderline cases (and even cases that are not borderline) have occupied courts, tribunals and tax practitioners for generations. The recent decision of the High Court in Commissioner of Taxation v Sharpcan Pty Ltd is a welcome refresher on the principles to be applied when determining if expenditure is on capital or revenue account.3

BACKGROUND Spazor Pty Ltd was the trustee of a trust in which the taxpayer, Sharpcan Pty Ltd, was the sole beneficiary. In 2008, Spazor purchased from Tattersall’s Ltd the business of the Royal Hotel at Daylesford. Spazor did not purchase the 18 gaming machines at the hotel but agreed that Tattersall’s would continue to operate those gaming machines and pay a percentage of gaming income to Spazor. In 2009, the Victorian gaming machine legislation changed to allow gaming machine entitlements (GMEs) to be auctioned and allocated directly to gaming venue operators, effectively cutting out Tattersall’s. In May 2010, Spazor bid for, and was allocated, 18 GMEs for a price of $600,300. Each GME permitted Spazor to operate one gaming machine at the hotel

36 THE BULLETIN December 2019

for 10 years. GMEs were transferable to other operators for the operation of gaming machines at other premises. In order to fund the purchase price of the GMEs, Spazor entered into an agreement with the Minister for Gaming for deferred payment of the purchase price by 22 instalments over five years. The income derived by Spazor from gaming machines represented 16% - 20% of its gross revenue per year. The evidence showed that, but for the gaming income, the hotel business would have been significantly at risk. In its income tax return for the income year ended 30 June, 2012, Spazor claimed the purchase price of the GMEs as a tax deduction under section 8-1 of the 1997 Act. Alternatively, Spazor claimed that the purchase price was deductible over five years under the blackhole expenditure provisions. The Commissioner of Taxation disallowed both claims. At first instance, the Administrative Appeals Tribunal held that the cost of the GMEs was deductible in full under s. 8-1.4 The Full Federal Court upheld the AAT’s decision (by 2-1 majority). The majority in the Full Federal Court concluded that the purchase price was on revenue account, and therefore deductible, as it was incurred “to preserve revenue from gaming and to preserve the contribution gaming activities made to the derivation of revenue in every other aspect of the hotel business”.5

DECISION OF THE HIGH COURT The High Court allowed the Commissioner’s appeal, holding that the expenditure was on capital account and thus not deductible under s. 8-1. Further, the expenditure was not deductible over five years under the blackhole expenditure provisions.

DISTINCTION BETWEEN CAPITAL AND REVENUE: The High Court reiterated the distinction between outgoings on capital or revenue account:

“Authority is clear that the test of whether an outgoing is incurred on revenue account or capital account primarily depends on what the outgoing is calculated to effect from a practical and business point of view. Identification of the advantage sought to be obtained ordinarily involves consideration of the manner in which it is to be used and whether the means of acquisition is a onceand-for-all outgoing for the acquisition of something of enduring advantage or a periodical outlay to cover the use and enjoyment of something for periods commensurate with those payments. Once identified, the advantage is to be characterised by reference to the distinction between the acquisition of the means of production and the use of them; between establishing or extending a business organisation and carrying on the business; between the implements employed in work and the regular performance of the work in which they are employed; and between an enterprise itself and the sustained effort of those engaged in it. Thus, an indicator that an outgoing is incurred on capital account is that what it secures is necessary for the structure of the business.”6

PRICE FOR GMES WAS ON CAPITAL ACCOUNT The High Court concluded that the GMEs were assets of “enduring value” authorising the holder to conduct gaming activities. The GMEs were necessary for the structure of the business because the conduct of gaming in an approved venue is only lawful if the venue operator holds a GME. Spazor’s purpose in paying the purchase price for the GMEs “was to acquire, hold and deploy the GMEs as enduring assets of the hotel business for the purpose of generating income from gaming”.7 Accordingly, the High Court held: “There can be no question that the purchase price was incurred on capital account”.8

TAX FILES

FURTHER OBSERVATIONS: 1. Although the purchase price was paid in several instalments, this was not a case of regular and recurrent payments for the use of an asset. It was not recurrent expenditure. It was a “once-and-forall outgoing for the acquisition of an enduring asset”. The expenditure was made once and for all to bring into existence an advantage of enduring benefit to Spazor’s business.9 2. The payments were not in any sense in the nature of periodic licence fees. They were merely instalments of the purchase price for the GMEs. The price was payable upon acquisition of the GMEs regardless of the amount of revenue which the GMEs might generate.10 3. The source of funds used to pay an outgoing is irrelevant to its characterisation as capital or revenue expenditure. The fact that Spazor may have intended to fund the purchase price out of receipts from gaming income was irrelevant: “The nature of a once-andfor-all outgoing for the acquisition of an asset is determined by the character of the advantage sought to be achieved by its acquisition, not by the source of funds with which it is purchased”.11 4. The way in which the price paid for an asset was calculated is also irrelevant. Spazor calculated the maximum amount that it was prepared to bid for GMEs based on a projected return on investment over their ten-year term: “Regardless of the considerations informing the amount that the Trustee was willing to pay for the GMEs, the purchase price for the GMEs was a lump sum paid for the acquisition of the GMEs which was payable regardless of the amount of income that might be earned from them”.12 5. Paragraph [33] of the High Court’s judgment is very important: “…the determination of whether an outgoing is incurred on capital account or revenue account depends on the nature and purpose of the outgoing: specifically, whether the outgoing is calculated to effect the acquisition of an enduring advantage to the business. And the identification of what (if anything) is to be acquired by an outgoing ultimately requires a counterfactual,

not an historical, analysis: specifically, a comparison of the expected structure of the business after the outgoing with the expected structure but for the outgoing, not with the structure before the outgoing. Other things being equal, it makes no difference whether the outlay has the effect of expanding the business or simply maintaining it at its present level. If a once-and-for-all payment is made for the acquisition of an asset of enduring advantage which, once acquired, forms part of the profit-earning structure of the business, the payment is incurred on capital account”.13 6. The fact that a decision to incur expenditure is “foisted on the taxpayer” does not affect its characterisation on revenue or capital account. Nor does a taxpayer’s assessment that, but for acquisition of the asset, the taxpayer might have suffered a substantial reduction in income or been unable to continue in business. Characterisation “depends on whether the asset is acquired as part of fixed capital – as part of the profit-earning structure of the business – or as part of working capital to be used up in the course of the regular and recurrent operation of the profitearning structure of the business”.14

Further and in any event, it was not shown that the value of the GMEs was attributable to the effect that the GMEs had on “goodwill”. Goodwill is an item of property and an asset in its own right. It must be separated from assets and revenue expenditures of a business that can be individually identified and quantified in the accounts of the business. Goodwill should not be conflated with the going concern value of the business.17 Here, the GMEs “were assets which could be individually identified and quantified in the accounts of [Spazor’s] business, which had a value quite apart from any contribution that they may have made to goodwill. That value resided in their capacity to generate gaming income and the fact that they could be sold and transferred to other venue operators, albeit subject to some restrictions and qualifications”.18 Accordingly, the purchase price for the GMEs was not deductible under s. 40-880.

CONCLUSION The demarcation between capital and revenue expenditure may have become a little blurry over recent years, but Sharpcan has brought it back into sharp focus.

BLACKHOLE EXPENDITURE – S. 40-880(2)

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

Section 40-880 is a provision “of last resort”. It applies to “blackhole expenditure”, namely capital expenditure in relation to a business that falls outside the ordinary deduction provisions. A deduction under s. 40-880(2) is allowed over five years. There are some exclusions for eligibility, such as expenditure that is taken into account in some way elsewhere in the tax laws.15 The High Court noted that the purpose of s. 40-880(6) is to confine deductibility under s. 40-880(2) for expenditure in relation to goodwill to expenditure that could not otherwise be brought to account under the 1997 Act. The GMEs were property and therefore “CGT assets”, and therefore the purchase price for the GMEs could be brought to account in the cost base of the GMEs under the 1997 Act.16 Therefore no deduction was available under the blackhole expenditure provisions.

Endnotes 1 For example, revenue expenses such as rent, interest, wages and office consumables are deductible if incurred in gaining or producing assessable income or carrying on a business for that purpose: s. 8-1 of the Income Tax Assessment Act 1997 (Cth) (‘the 1997 Act’). 2 The “blackhole expenditure” provisions are in s. 40-880 of the 1997 Act. 3 [2019] HCA 36 (16 October 2019) 4 [2017] AATA 2948. 5 [2018] FCAFC 163. 6 At [18], emphasis added. Authorities omitted. 7 At [19]. 8 At [17]. 9 At [19], [25], [26]. 10 At [22] 11 At [26] 12 At [27] 13 At [33], emphasis retained. 14 At [41] – [42] 15 At [43] – [46]. Sections 40-880(5) and (6). 16 At [47]. 17 At [52] – [52], referring to Federal Commissioner of Taxation v Murry (1998) 193 CLR 605 and Commissioner of State Revenue (WA) v Placer Dome Inc (2018) HCA 59. 18 At [52].

December 2019 THE BULLETIN

RISK WATCH

Loose lips sink ships: A reminder about keeping conversations confidential GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

he UK Court of Appeal has just ruled on another interesting case concerning legal professional privilege. In Curless v Shell International Limited [2019] EWCA Civ 1710 Mr Curless had been employed as an inhouse lawyer at Shell since 1990. There had been issues surrounding his work performance since 2011 and he had submitted a claim to the Employment Tribunal in 2015 complaining of discrimination. Shell acquired British Gas in 2016, following which there was a group wide program of redundancy, and Mr Curless’ employment was terminated, ostensibly on the ground of redundancy in January 2017. He then made a second claim in the Employment Tribunal alleging that the real reason behind the termination of his employment was not genuine redundancy but was discriminatory. At issue in this case was whether Mr Curless could rely on two pieces of information (1) a leaked email, and (2) a conversation overhead in a pub which he said helped prove his case that his redundancy was, in effect, a sham. The email, dated April 2016, was sent by Shell’s Managing Counsel to a lawyer from the firm Lewis Silkin LLP who was working with Shell on employment related matters and discussed how the redundancy program might be used “across the UK legal population, including [in respect of] the “individual”. It was not in dispute that “the individual” was Mr Curless. At some stage, an anonymous person in the Shell legal department “leaked” this email to Mr Curless. Further, in late May 2016, Mr Curless was in “The Old Bank of England” a pub in Fleet Street just near Chancery Lane, when a group of “professionally dressed” people came in and sat at a table behind Mr Curless who was in a position to overhear their conversation. One was carrying a Lewis Silkin LLP notepad. One of the women in that group mentioned dealing with a complaint by a senior lawyer at Shell

38 THE BULLETIN December 2019

who had brought a discrimination claim which was taking up a lot of time. She also said that “his days were numbered as there was now a good opportunity to manage him out by severance or redundancy in a big re-organisation exercise that was underway” as a result of the British Gas takeover. Shell claimed that both the leaked email and the pub conversation were covered by legal professional privilege and could not be relied upon by Mr Curless. The Employment Tribunal held in favour of Shell however, Slade J in the Employment Appeal Tribunal found for Mr Curless holding that the email, properly interpreted, recorded legal advice that the genuine redundancy exercise could be used as a “cloak” to dismiss Mr Curless to avoid his continuing complaints. Her Honour also held that, although it was of significantly lesser importance, legal advice privilege could not be claimed in relation to the pub conversation. The Court of Appeal overruled Slade J’s decision and held that the email and the pub conversation were privileged and could not be relied upon by Mr Curless. It was found that the advice in the email was the sort of advice which employment lawyers give “day in day out” in cases

where an employer wishes to consider for redundancy an employee who, rightly or wrongly is regarded as underperforming. The Court of Appeal did not agree that this was advice to act in an underhand or iniquitous way, and also held that the email advice could not be tainted by a conversation (The Old Bank of England conversation) involving gossip from someone else after the event.1 Notwithstanding the fact that legal professional privilege between Shell and Lewis Silkin LLP was ultimately upheld, the whole episode must have been extremely embarrassing to all involved. How much better would it have been for the pub conversation to have been limited to Brexit or the Premier League rather than work gossip? In the run up to Christmas, when perhaps more lawyers than usual are in pubs and restaurants, remember, “loose lips, sink ships”. Endnotes 1 Given the “leak” of the email, a further interesting question arises as to whether or not this decision would be decided in the same way in Australia following the High Court’s judgment in the Panama Papers case – Glencore v Commissioner of Taxation [2019] HCA 26.

RISK WATCH

Always be clear in your language when dealing with Without Prejudice correspondence

point as to the language used in Without Prejudice correspondence arose in the recent case of Ploubidis v Carling [2019] SADC 151 (Judge Durrant, 14 October 2019). The case (which is also of interest for its discussion of the principles applicable to the receipt of evidence under the Listening and Surveillance Devices Act 1972 (SA)) was about caveats and defacto relationships. It concerned (in part) whether or not a letter from the plaintiff ’s lawyers to the defendant was admissible on an application for part summary judgment by the defendant. The letter in question (which was said to prove the date upon which the parties separated) was headed “Without Prejudice save as to costs”, however, on the final page of the letter it was said that it was “an open letter and may be relied upon on the issue of costs should [the plaintiff] … find it necessary to apply to the Family Court for Orders” [emphasis added]. The defendant alleged that the contents of the letter proved that the parties had separated before 2009 (which was relevant to the issue of whether the

Family Court had jurisdiction in relation to the de-facto relationship), but the plaintiff objected to its admissibility because it was without prejudice and subject to settlement privilege. Whilst the letter put forward a date of separation, it also contended that the plaintiff was entitled to a settlement of property enforceable by orders of the Family Court and made an offer of settlement. Judge Durrant said that the language used by the solicitor was “problematic”. This was because, on the one hand, the letter was marked “Without Prejudice” and contained an offer of settlement (and would thereby be a communication made in connection with an attempt to negotiate a settlement of a civil dispute and therefore privileged under s. 67C of the Evidence Act 1929 (SA)), but on the other hand, the letter was said to be “open”. These were two conflicting positions. His Honour held, in effect, that, read as a whole, the letter was said to be relied upon on the question of costs in future proceedings and that the attempt to

negotiate a settlement contained in it meant that it was privileged. It was, therefore, not admissible on the defendant’s application. Although it was not mentioned specifically in the judgment, it would appear to have been the case that the plaintiff ’s solicitor was trying to engage Calderbank-type principles, that is, “Without Prejudice save as to costs” [emphasis added]. What they may have been trying to say when stating that the letter was “open” was that the plaintiff would seek to rely on the fact of the settlement at some future time in any argument on costs. This was certainly the way the Judge interpreted it; however, had the language used been clear, explicit, and not apparently inconsistent, the argument could have been avoided in the first place. A firm grasp of the principles surrounding Without Prejudice communications and the associated Calderbank type principles, as well as using clear and unambiguous language when dealing with these issues, are essential skills for any lawyer.

• Mediation • Conciliation • Dispute Representation • Mediation Advocacy • Collaborative Law

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

LAW SOCIETY GOLD ALLIANCE FIRM PROGRAM

Law Society Gold Alliance Firm Program Strength in Numbers in 2 law firms in South Australia are registered as a Gold Alliance firm. Of the 50% of firms that are not Gold Alliance firms, half of these firms are eligible to register! A Gold Alliance firm is a firm which partners with the Society and shows a commitment to the profession and their employees by maintaining 100% membership. The Society is working hard to develop a strategic alliance with all firms in South Australia to provide you with ongoing support and greater benefits. The Society is the proud voice of the South Australian legal profession and symbolises the highest standard of professionalism, integrity and excellence. To indicate you are a Member of the Society highlights that you are part of an organisation which promotes and adheres to strict professional and ethical

requirements, and which provides resources to Members so that such standards are maintained. As our membership continues to grow, so does our ability to more strongly represent you and the legal profession before government, media and the community. And, it’s not just the profession as a whole that benefits. When all of your staff are Members of the Society, you and your clients gain access to the latest information on issues and developments in the law, a network of talent and resources, as well as a gateway to education, support services, publications, savings and productivity. Benefits include: • The Gold Alliance Firm logo may be placed on your website and email footers • The Gold Alliance Firm logo may be published on stationery such as

letterhead, business cards and with compliments slips • Access to additional discounts on a number of Society Subscriptions, such as the Standard Form Documents and Caseweek • Your firm will be listed on the Law Society website and in the Bulletin twice per year. This is a unique marketing opportunity for firms, both small and large, to promote to the community and your clients that all practitioners within your firm are Members of their professional association. To enquire if your firm is eligible to become a Gold Alliance Firm, please contact the Society on (08) 8229 0200 or email reception@lawsocietysa.asn.au. The Gold Alliance Firm program is an effective way to practice Strength in Numbers and to demonstrate your commitment to the profession and your employees.

FIRM 1878 Elix Lawyers 360 Private Legal Accelerate Family Law and Culshaw Miller Criminal Lawyers Access To Justice Law Firm ADCO Legal Adelaide Capital Lawyers Adelaide Criminal Law Adelaide Family Law Adelaide Hills Legal Adelaide Injury Law Adelaide Lawyers Adelaide Legal Adelaide Legal Services and Migration Assistance Adelaide Legal Solutions Adelaide Senior's Lawyers Adelphi Legal Adelta Legal AK Family Law Alan Oxenham Alan Wong Alex Mandry Legal Group Alison Bradshaw Legal Allen Burtt Almeida & Associates Alpha Family Lawyers AM Legal Anagnostou Business & Commercial Lawyers Andrew & Dale Barristers & Solicitors Andrew B Thiele & Co Andrew Hill & Co Andreyev Lawyers Angas Lawyers Angela Ferdinandy Angela Pierce and Associates Angelopoulos Lawyers

40 THE BULLETIN December 2019

Anna Vicic Armour & Allen Arnold Costs Solicitors ASW Lawyers Avina Lawyers Awkar & Co Baggio Legal Bakker Vagnarelli Lawyers Ballinger Legal Bambrick Legal Bampton Law Barbaro Legal Bartel & Hall Bastiaan Sparreboom BBS Lawyers Beger & Co Belchamber Legal Belperio Clark Bennett Legal Bernadette Day Lawyer Bianca Barca Lawyers Birtsos Legal Boril Olds Bosnich Legal Botten Dnistriansky Kellis Bourne Lawyers Boylan Lawyers Bradbrook Lawyers Brown & Associates Commercial Lawyers BSG Lawyers Barrister Solicitors Notary Public Budden Law Budwal Lawyers Business & General Legal C B McDonough & Co CA Legal & Migration Cacas Legal

Calabio Conveyancing Calderwood Atkinson Caldicott Lawyers Camatta Lempens Campbell Law Campbell Rankine Carbone Polvere & Co Cardone & Associates CARES Lawyers Carlin Lawyers Carmel Riordan Lawyers Carmine Barone Carter & Co Lawyers Cavalier Legal Caveo Partners Legal CCK Lawyers CCR Legal CG Family Law Chong & Co Christine Korobacz Solicitors CJL Family Law CJM Legal Clarke Hemmerling Lawyers Clelands Lawyers Coates Lawyers Codex Legal Comley Legal Commercial and Legal (Legal Services) Community Family Law & Mediation Con O'Neill Barrister & Solicitor Conatur Legal Connolly & Co Constantine Legal Corporate Commercial Law Corsers Lawyers Costi & Co Cowell Clarke CPC Lawyers

Craig McKay Legal Crawford Legal Crosby & Associates Culshaw Miller Divorce and Family Lawyers Culshaw Miller Lawyers Dadds Jandy Lawyers D'Angelo Kavanagh David Barnfield Lawyer David Burrell & Co David Deakin Davies & Co David Johnson DeGaris Lawyers Denise M. Rieniets & Associates Devine Murdoch Di Rosa Lawyers Di Sotto Lawyers Diane Myers Diaspora Legal Distinction Legal Dixon Gallasch DMAW Lawyers Doconade Adelaide Lawyers Donlan Lawyers Douglas Hoskins Legal Duc Mai Lawyers Duddy Shopov Duffy Legal Duncan Basheer Hannon Duncan Fowler Lawyer Eckermann Lawyers Edge Law Elliott & Co Barristers And Solicitors EMA Legal EMT Legal ENA Law Equality Lawyers Ericson Legal

LAW SOCIETY GOLD ALLIANCE FIRM PROGRAM

Evans Testa Barristers & Solicitors EZRA Legal Fabbian Lawyers Fair Work Lawyers FJS Lawyers Adelaide Fletcher & Lawson Fletchers Lawyers Franklin Legal Barristers & Solicitors Fuda Lawyers Furler & Co Barristers and Solicitors Gabito Lawyers Gardner Legal & Regulatory Gary Pearce Genders & Partners Georgiadis Lawyers Germein Reed Gilchrist Connell Gillian Marks & Company Grant Legal Gregory Lawyers Gretsas & Associates Grope Hamilton Lawyers Guarna Legal H F Lambert Haebich Law Hamilton Legal Harry Alevizos Hartigan Law Hasda Legal Hau Pehn Yapp Hawker van Dissel Law Hepenstall & Associates Herve & Co Heuzenroeders Lawyers Howe Jenkin Family Lawyers Hume Taylor & Co Humphrey Legal Hutton Cragg Legal Hyde White Legal Services Interpret Contracts J Caruso J Richard Croft Jaak Oks Lawyers Jackson & Associates Jane Moore Jankus Legal Janus Lawyers JDC Law Jennifer Corkhill Jennifer M Bradley Jennifer Stefanac Barrister & Solicitor JKR Lawyers Johnson Lawyers Johnston Legal + Advisory Johnston Withers Jones Elferink Barristers & Solicitors Jones Harley Toole Joseph Ramsay Sanders Judith Jordan Family and Collaborative Lawyer Kathryn Herriman Barrister & Solicitor Katrina Jacobs Estate Law KC Lawyers Kelly Kelly Legal KJK Legal KP LAWYERS Kruse Legal Kudra & Co Kyrimis Lawyers L Gee and Julius Lawyers

Lachlan McAuliffe Laity Morrow LawCall LBD Legal Lee & Partners Legal Projects Commercial Lawyers Legal Projects Family and Relationship Lawyers Lena Grant Les Rowe & Associates Leventis Lawyers Lewis & Shane Lieschke & Weatherill Lindbloms Lawyers Lins Lawyers Liptak Lawyers Lisacek & Co Lumond Lawyers Lynch Meyer M Riley Lawyer Mac and Co Lawyers Madsen O'Dea Mahony's Lawyers Maione Lawyers Mandy Edwards & Co Lawyers Manik Meah Mantzoros & Partners Marie Alvino Marie Stokes Family Lawyers Mark Esau Mark Mudri & Associates Martha Ioannides Martin Robinson Solicitors Mason Gould Matthew Mitchell Solicitors Maurice Blackburn Mayweathers Mazzocchetti Legal McGrath Lawyers Mead Robson Steele Meister Legal Mercurio & Co Micallef Lipson Chambers Michael F Lindblom Michael Hegarty & Associates Michael Rehberg - MR LAW Mildwaters Lawyers Minney & Associates Minotaur Law Mira Zacharia MK Legal & Migration Moffat Lawyers Mont Legal Montague Law Moore Law Disability & Aged Care Moran & Partners Solicitors Motus Legal MPS Law MSM Legal Mullen Lawyers Murray Legal Barristers & Solicitors Nathan White Lawyers NDA Law NDEdwards & Co Nemer Essey Lawyers Nexus Law Group Nicholas Boswell & Co Lawyers Nicholas Eid Nick Xenophon & Co Lawyers NJ Ireland North East Lawyers

Northside Lawyers O'Briens Solicitors ORB Lawyers O'Toole Lawyers P. F. Hall Pace Lawyers Pascale Legal Barristers & Solicitors Patsouris & Assoc Paul D Bear Lawyer Paul Kirk Legal Pederick Lawyers Peripheral Blue Legal Perre Legal Perrotta Legal Perry Lawyers Peter Fisher Lawyers Peter Marker & Assoc Peter Picotti Barrister and Solicitor PGC Legal Piper Alderman Pittaway Lawyers and Conveyancers Playford Legal Polson Legal Porcaro Lawyers Precision Legal Prendergast Lawyers R J Cole & Partners R. A. English & Co Radbone & Assoc Randle & Taylor Rebecca Beasley Barrister + Solicitor Rebecca McDougal Regent Legal Resolve Divorce Lawyers RI Consulting Richards & Evans Commercial Lawyers Riverland Commercial Lawyers Roach Corporate Law Robert F Floreani Robert Norman & Associates Robert Saunders & Associates Ronald Frank Bell Rosey Batt & Associates RSA Law Rudall & Rudall Ryan & Durey Solicitors Ryans Lawyers S J McKinnon & Associates SA Family Law Salandra Lawyers Salisbury Lawyers Sarah Grimwade Barrister & Solicitor Scales & Partners Scammell & Co Schirripa Evans Lawyers Scott Allard Scott Lawyers SCP Legal SE Lawyers Sedsman Legal SG Law Sharon Holmes Shaw & Henderson Silkwoods Chambers Sinoch Lawyers Solomon Humble Commercial Lawyers Sonia Petracca Lawyers Southern Coast Legal Specialised Dispute Management

Spencer Gulf Law - Suzy Graham St Ives Law Standon Lawyers Stanley Law Stephen Gibbons Lawyers Stevanja & Associates Steven M Clark Stewart-Rattray Lawyers Stokes Legal Strachan Carr Straits Lawyers Su and Associates Susan Cole Barrister & Solicitors Swan Family Lawyers Sweetlove Family Law T Legal Lawyers Tarbotton Legal Adelaide Teresa Scott Terese Wacyk Legal Teusner & Co The Family Law Project Thomas Rymill & Co Thompson Smyth Barristers and Solicitors Thomson and Associates Tim Clarke & Co Tim Dibden Timothy Robert Donlan Tindall Gask Bentley Toward Lawyers Town & Country Lawyers Townsends Travancore Legal & Advisory Treloar & Treloar Tri-meridian Corporate & Commercial Law Union Legal SA Varga Lawyers VdV Legal Von Doussas Voumard Lawyers VP Lawyers WBH Legal Wearing & Blairs Weatherly & Associates Websters Lawyers Welden & Coluccio Lawyers Westley Di Giorgio Norcock Whatson Legal White & White White & White Lawyers White Berman Whitelum & Associates WhitingtonÂ Darby Williams Barristers And Solicitors Wills At Your Home Wills Direct Wilson Lawyers (SA) Winlaw & Associates Winters, Barristers, Solicitors and Notaries Woodburn & Co Woods & Co Lawyers Work Visa Lawyers WRP Legal & Advisory Xiao Lawyers Yan Robson Barrister & Solicitor You Legal YT Legal Zielinski Legal

December 2019 THE BULLETIN

PROMOTION

Multi-lots made easy for lawyers and developers alike

raditionally, settling large-scale developments requires timeconsuming and error-prone manual data entry. With multiple lots sometimes settling in the same week, or even on the same day, the pressure and complexity is a challenge for all parties. But for South Australian industry members, this laborious process is a thing of the past, with PEXA Projects enabling these developments to settle electronically. PEXA Projects is a developer solution that streamlines the execution of settlement, providing the ability to bulk upload and sign electronically. Adelaide’s Kodo precinct stands 30 storeys high, making it the tallest residential development in South Australia. Many of its lots were settled digitally by law firms Cowell Clarke and MinterEllison,

42 THE BULLETIN December 2019

in collaboration with developer Penny Place. “PEXA provided transparency at every step and removed the need to physically attend settlements and deliver cheques – a huge time waster for us. Importantly, the mortgagee can more easily monitor progress of settlements and receipt of funds,” said John Brimacombe, Partner at MinterEllison. Fellow firm Cowell Clarke also enjoyed efficiency gains, explains Cowell Clarke’s Linley Schultz. “Using PEXA Projects, we were able to upload information directly from our spreadsheets into the PEXA platform. Once we had the data in the correct format, we created 192 workspaces at the push of a button!” But it’s not just the panel law firms and conveyancers who are experiencing

benefits from PEXA Projects, developers have GST withholding paid at settlement and can receive funds faster. “We finalised the priority settlements within a week of the issue of new titles for the apartments. Our client’s decision to use PEXA for the settlements, with PEXA Projects available at no additional cost, was crucial for us to achieve completion within that timeframe,” said Linley. As the benefits of PEXA in South Australia become more widely realised by practitioners and developers alike, the best time to start transacting is now, believes Linley. “It is an invaluable tool to assist us to provide the best possible property and conveyancing services to our clients, we are pleased to recommend PEXA Projects for large-scale conveyancing projects in South Australia.” B

FAMILY LAW CASE NOTES

Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK CHILDREN – FATHER’S APPLICATION FOR PARENTING ORDERS DISMISSED FOR NON-COMPLIANCE WITH S 60I (FAMILY DISPUTE RESOLUTION)

n Ellwood & Ravenhill [2019] FamCAFC 153 (6 September, 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed the mother’s appeal against orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). His application sought to have the existing, informal parenting arrangement (equal time with daughter but son spending no time with mother due to conflict between them) reflected in an order. In response, the mother applied for the dismissal of the father’s application as s 60I had not been complied with, arguing that the Court lacked jurisdiction. The father filed an affidavit as to his not filing a s 60I certificate, deposing that mediation had been tried by the parties but failed, which the mother disputed. At first instance, a judge of the Federal Circuit Court directed the parties to attend with a family consultant pursuant to s 11F of the Act. The mother appealed. In setting aside the order and dismissing the father’s parenting application, Kent J said (from [21]): “( … ) [T]he provisions [of s 60I(7)] emphasise the requirement for parties to a dispute about parenting orders to make a genuine effort to resolve that dispute with the assistance of family dispute resolution before application is made to the Court. Only if one of

the exceptions contained in subsection (9) applies, can an application be filed without the parties having participated in family dispute resolution. Even then, it can be seen that subsection (10) requires the Court to consider an order for the parties to attend family dispute resolution with a family dispute resolution practitioner. ( … ) [28] … [T]he primary judge was in error in proceeding to hear the father’s application not having made any finding … that any of the exceptions in subsection (9) applied. In other words, the mandatory requirement of subsection (7) applied, and the primary judge was in error in proceeding to hear the application notwithstanding that that mandatory requirement had not been complied with.”

PROPERTY – INITIAL CONTRIBUTIONS OF $4.97M (H) AND $500,000 (W) TO $12.5M POOL ASSESSED AT 80:20 In Daly & Terrazas [2019] FamCAFC 142 (13 August, 2019) the Full Court (Ainslie-Wallace, Aldridge & Austin JJ) considered a nine year cohabitation between a 47 year old husband and 44 year old wife. The parties’ 14 and 11 year old children lived with the husband and saw the wife on weekends and on holidays. Finding that the husband’s initial contributions were worth $4.97 million and the wife’s $500,000, Rees J at first instance said that during the parties’ relationship they “conducted their financial affairs independently” although “each party invested both formally and informally in properties owned by the

other” ([10]) and “each contributed their money and their efforts to the enterprise of their family” ([59]). The $12.5 million pool excluded superannuation, which was worth $342,351 (husband) and $83,619 (wife). The wife had worked professionally and earned income from shares during the relationship. Rees J found that the parties’ contributions up to the date of trial were equal, but that their initial contributions warranted an 80:20 contributions based adjustment. The wife then received a 10 per cent adjustment for s 75(2) factors, a division of 70:30 in favour of the husband overall. The husband appealed. In dismissing the appeal, AinslieWallace J (with whom Aldridge and Austin JJ agreed) said (from [20]): “In short, the argument as to the first ground, shorn of the lawyerly language of the submission, is: ‘20 per cent is too much’. ( … ) [22] The appeal ground invites this Court to do the impermissible, to substitute our determination of what figure is appropriate to reflect the parties’ contributions instead of her Honour’s. Nothing put to us persuades me that we ought to, and further, her Honour’s conclusion was entirely open to her on the evidence. The outcome is not unreasonable or plainly unjust such that a failure properly to exercise the discretion may be inferred (see House v The King (1936) 55 CLR 499 at 505). [23] In my view his challenge has no foundation and must fail.” B

MEMBERS ON THE MOVE SHAVIN SILVA

ace Lawyers Adelaide Legal announce that Shavin Silva has been promoted to Senior Associate, effective 1 November 2019. Since joining the firm, Shavin has

excelled as a Commercial and Corporate Advisory and Litigation lawyer. Principal Lawyer and Director Serina Pace said: “Shavin’s contribution to the business

has been significant in his six years with the firm, and we are looking forward to working with Shavin in his new position moving forward”. December 2019 THE BULLETIN

BOOKSHELF

PRACTISING FAMILY LAW

I Serisier 4th ed LexisNexis Butterworths 2019 PB $110.00

Abstract from LexisNexis This book closes the gap between theory and practice, providing clear guidance on how to conduct family law matters. Practical, step-bystep coverage is provided on the full range of essential skills and procedures required in the day-to-day practice of family law in Australia. It is an excellent resource for practitioners and

aspiring family lawyers, and anyone wishing to consolidate their skills in this dynamic area of legal practice. The fourth edition has been extensively updated and includes new chapters on Jurisdiction in Family Law Proceedings and Family Law Financial Proceedings and Spousal Maintenance.

INSTITUTIONAL ABUSE OF CHILDREN: LEGAL REMEDIES AND REDRESS IN AUSTRALIA

Bill Madden & Benjamin Madden & T Cockburn LexisNexis Butterworths 2019 PB $135.00

Abstract from LexisNexis Institutional abuse of children: Legal remedies and redress in Australia examines the recently amended ‘common law’ framework. These reforms include removal of limitation periods, reversal of the onus of proof, extending vicarious liability to persons akin to employees, requiring institutions to identify a proper defendant when necessary, and permitting some earlier settlements and judgements to be

revisited… As the first detailed analysis of the new legal framework relating to compensation and redress for child sexual abuse in Australia, this book makes an original contribution to knowledge and understanding of the law in this complex area, which continues to develop at a rapid pace as additional legislation is enacted across Australia and as the courts begin to construe these new legislative provisions.

CASES AND MATERIALS ON CONTRACT LAW IN AUSTRALIA Abstract from LexisNexis Cases and Materials on Contract Law in Australia is an outstanding resource offering explanatory commentary on the key principles of contract law and carefully selected extracts from leading cases, relevant legislation and secondary sources.

It aligns with all Australian contract law units, covering 40 topics in the areas of Agreement, Terms of the Contract, Parties to the Contract, Vitiating Factors, Illegality, Performance and Breach, Termination for Breach, Termination by Frustration, and Remedies.

JW Carter 7th ed LexisNexis Butterworths 2019 PB $169.00

INTERPRETATION OF TESTAMENTARY DOCUMENTS Abstract from LexisNexis Interpretation of Testamentary Documents is a practical and accessible guide for legal practitioners on matters where the testator’s intention is not made clear. With uncertainty possibly infecting the property the subject GE dal Pont LexisNexis Butterworths 2019

44 THE BULLETIN December 2019

of succession, the persons who may take that property, or the shares to be taken by those persons, this text provides an invaluable resource for practitioners requiring guidance on these matters.

GAZING IN THE GAZETTE

Society has say on Uniform Civil Rules

he Joint Rules Advisory Committee (JRAC) is meeting regularly and has also formed a subcommittee which is holding additional meetings, in order to progress a draft of the Uniform Civil Rules. The President, Amy Nikolovski, President-Elect, Tim White, Chair of the Civil Litigation Committee, Alexander Lazarevich, Deputy Chair of the Costs Committee, Graeme Arnold and Philip

Adams have contributed to JRAC’s work in relation to the draft Rules. Tim White is representing the Society on the subcommittee and is now formally a member of the JRAC, given the Rules project will continue into and be of high importance to the profession in 2020. A draft of the Rules will be released for broad consultation in due course. The consultation on the proposal for

3 OCT 2019 – 2 NOV 2019 ACTS PROCLAIMED Statutes Amendment (Child Exploitation and Encrypted Material) Act 2019 (No. 13 of 2019) Commencement: 24 October 2019 Gazetted: 24 October 2019, Gazette No. 51 of 2019 Statutes Amendment (Attorney General’s Portfolio) (No 2) Act 2019 (No. 21 of 2019) Commencement Parts 4 and 17: 7 November 2019 Gazetted: 31 October 2019, Gazette No. 52 of 2019 Statutes Amendment (Attorney-General’s Portfolio No 3) Act 2017 (No. 70 of 2017) Commencement: Part 12: 9 December 2019. Gazetted: 31 October 2019, Gazette No. 52 of 2019

ACTS ASSENTED TO Legal Practitioners (Miscellaneous) Amendment Act 2019, No. 27 of 2019

a tiered Supreme Court Scale has been reopened, to give practitioners, firms and Committees further opportunity to comment. The questions posed in responses are yet to be considered by the Society however if there is to be any change to the Scale, JRAC has indicated it would not be implemented in conjunction with the commencement of CourtsSA in the civil jurisdiction, but rather, later in 2020. B

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

Gazetted: 24 October 2019, Gazette No. 51 of 2019 Liquor Licensing (Miscellaneous) Amendment Act 2019, (No. 28 of 2019) Gazetted: 24 October 2019, Gazette No. 51 of 2019 Statutes Amendment (Mineral Resources) Act 2019, (No. 29 of 2019) (amends Mining Act 1971, Mines and Works Inspection Act 1920 and Opal Mining Act 1995) Gazetted: 24 October 2019, Gazette No. 51 of 2019

APPOINTMENTS South Australian Civil and Administrative Tribunal Sessional Ordinary Members for a term of three years commencing on 17 November 2019 and expiring on 16 November 2022 Candida Jane D’Arcy Ashley David Files

Timothy David Griffin Marten Thomas Kennedy Richard Roland Schroeder Edward Stratton-Smith Gazetted: 31 October 2019, Gazette No. 52 of 2019

RULES Supreme Court Civil Supplementary Rules 2014 Amendment 13 Gazetted: 24 October 2019, Gazette No. 51 of 2019 District Court Civil Supplementary Rules 2014 Amendment No. 9 Gazetted: 31 October 2019, Gazette No. 52 of 2019

REGULATIONS PROMULGATED (3 OCTOBER 2019 – 2 NOVEMBER 2019) REGULATION NAME

REGULATION NO.

DATE GAZETTED

Development Act 1993 Genetically Modified Crops Management Act 2004 Youth Justice Administration Act 2016 Associations Incorporation Act 1985 Road Traffic Act 1961 Criminal Law Consolidation Act 1935 Planning, Development and Infrastructure Act 2016 Controlled Substances Act 1984 Spent Convictions Act 2009 National Parks and Wildlife Act 1972

219 of 220 of 221 of 222 of 223 of 224 of 225 of 226 of 227 of 228 of

10 October 2019, Gazette No. 49 of 2019 10 October 2019, Gazette No. 49 of 2019 17 October 2019, Gazette No. 50 of 2019 17 October 2019, Gazette No. 50 of 2019 24 October 2019, Gazette No. 51 of 2019 24 October 2019, Gazette No. 51 of 2019 31 October 2019, Gazette No. 52 of 2019 31 October 2019, Gazette No. 52 of 2019 31 October 2019, Gazette No. 52 of 2019 31 October 2019, Gazette No. 52 of 2019

2019 2019 2019 2019 2019 2019 2019 2019 2019 2019

December 2019 THE BULLETIN

CLASSIFIEDS

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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.

46 THE BULLETIN December 2019

CONSULTING ACTUARIES

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. 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. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. 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

Marita Bajinskis

formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne Marita is an Accredited Family Law Specialist and can assist with all family law matters including: • • • •

matrimonial and de facto property settlements superannuation children’s issues

3/224 Queen Street Melbourne VIC 3000 T: 03 8672 5222

Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au

FOR PROFESSIONAL ACTUARIAL ADVICE ON

- Personal Injury - Workers Compensation - Value Of Superannuation Contact

Geoff Keen or Bruce Watson 08 8232 1333 contact@brettandwatson.com.au

Ground Floor 157 Grenfell Street Adelaide SA 5000

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Welcome to our latest Rutherford catalogue. This has been a year of economic challenges. However, for Rutherford this has created great opportunities for us to source many unique and beautiful pearls and fine jewellery from throughout the world. We are pleased to present an impressive selection of these in this catalogue. To further assist our clients, we have expanded and upgraded our website which allows us to showcase almost our entire collection, adding each piece as soon as it is available. The website is updated hourly and we are pleased to see a growing number of clients shopping with us online, wherever they are in Australia. In addition, every few weeks we send out an email that highlights an aspect of our current collection. Make sure you register as a customer to receive these informative emails and please also follow us on Instagram. I would like to draw your attention to some of my favourite pieces: the pair of earrings on the page opposite each feature an impressive diamond weighing over 6 carats; on page 15, one of the most beautiful antique sapphire rings we have sourced, which has been kept aside for over a year to be presented in this catalogue; and the rare and stunning French bow brooch on page 18. Our pearl business continues to grow and our followers love the collection of pearls and jewellery designs our staff continue to bring together. Our range of multicoloured pearl jewellery and necklaces includes versatile and affordable pieces; something for every occasion. My personal favourites are the morganite and pearl pieces throughout the catalogue. On behalf of our family and staff we would like to thank you for your continued support and look forward to seeing you in store or at one of our events.

Wesley Rutherford

Front Cover Art Deco Diamond & Sapphire Earrings $35,000 Right Enamel Flower Brooches, circa 1915. Individually priced from $1,550 Back Cover Tahitian Pearl and Diamond Brooch $9,800

rutherford.com.au

Platinum Old Cut Diamond Drop Earrings with an estimated 14.5ct of Diamonds POA

rutherford.com.au

a c b

e f

a Art Deco Oval Rock Crystal Pendant $980 b Antique Rock Crystal Pendant $1,450 c Art Deco Rock Crystal Pendant $1,150 d 1.32ct Old European Cut Diamond Ring $16,500 e Art Deco Diamond Ring in Platinum $12,800 f Antique Two Stone Diamond Ring $7,700 g Flower Ring with Old Cut Diamonds $6,950 h Old European Cut Diamond Ring $14,500 i Circular Art Deco Diamond Ring $5,850 j Art Deco Diamond Plaque Ring $19,500

rutherford.com.au

f e d

a Necklace with Diamonds Weighing 14.50ct $38,500 b Circular Diamond Drop Earrings $8,750 c 4.12ct Pigeon Blood Ruby Ring $38,000 d Oval Diamond Line Bracelet $22,500 e Three Stone Oval Diamond Ring Totalling 2.42ct $23,500 f Diamond Eternity Ring $9,900

rutherford.com.au

b d

e h

i f j

a Edwardian Diamond Pendant $6,750 b Necklet with Pear Cut Diamond $6,850 c Belle Epoque Diamond Brooch/Pendant $7,500 d Art Nouveau Diamond Pendant $3,250 e Antique Diamond Solitaire $6,450 f Old Cut Diamond Solitaire $16,800 g Antique Diamond Solitaire $15,500 h Art Deco Diamond Ring $9,250 i Old Cut Diamond Solitaire $6,800 j Diamond Solitaire in White Gold $3,950 k Diamond Solitaire in Yellow Gold $8,800

rutherford.com.au

French Edwardian Diamond & Pearl Pendant $9,800

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a c

e g f

i h

rutherford.com.au

a Diamond & Emerald Drop Earrings $9,900 b Art Deco Diamond Bracelet with Emeralds $14,500 c 5.88ct Emerald & Diamond Cluster Ring $38,000

rutherford.com.au

a Art Deco Diamond Bracelet Totalling 4.50ct $14,800 b Art Deco Platinum & Diamond Earrings $15,500 c 2.39ct Art Deco Diamond Solitaire $28,500 d Art Deco Diamond Ring $14,500 e Tiffany Three Stone Diamond Ring $28,800 f 2.10ct Old Cut Diamond Ring $24,500 g Antique Three Stone Ring Totalling 2.93ct $32,000 h 2.28ct Old Cut Diamond Cluster Ring $29,500

rutherford.com.au

Hexagonal 3.31ct Diamond Ring $48,500

rutherford.com.au

a c

g k

h l i

a Unheated Ruby & Diamond Cluster Pendant (chain additional) $5,200 b Unheated Ruby & Diamond Earrings $8,800 c Oval Ruby & Diamond Cluster Earrings $4,850 d Antique Ruby & Diamond Drop Earrings $5,800 e Unheated Ruby & Diamond Drop Earrings $13,800 f Cushion Cut Ruby & Diamond Cluster Ring $13,800 g Unheated Ruby Cluster Ring $9,200 h Emerald Cut Ruby & Diamond Ring $5,750 i Ruby & Diamond Ring $8,800 j 2.04ct Ruby & Diamond Ring $14,500 k Ruby & Diamond Three Stone Ring $28,800 l Unheated Ruby & Diamond Ring $8,200

rutherford.com.au

a Art Deco Style Diamond & Ruby Plaque Ring $13,500 b Asscher Cut Diamond & Ruby Earrings $14,800 c Diamond & Ruby Plaque Brooch $12,500 d Ruby & Diamond Line Bracelet $9,800

rutherford.com.au

a c e b d

k f

i h

g l

n m

a Sapphire & Diamond Earrings $4,850 b Sapphire & Diamond Earrings $9,800 c Diamond & Sapphire Pendant $2,250 d Art Deco Drop Earrings $3,950 e Antique Earrings $2,950 f Sapphire & Diamond Ring $13,700 g Sapphire & Diamond Ring $6,500 h Sri Lankan Sapphire & Diamond Ring $17,500 i Sapphire & Diamond Pendant (chain additional) $9,800 j Star Sapphire Ring $6,800 k Art Deco Diamond & Sapphire Ring $3,500 l Antique Sapphire & Diamond Ring $2,750 m Sapphire & Pearl Brooch (boxed) $1,750 n 4.05ct Sri Lankan Sapphire & Diamond Ring $21,500 o Emerald Cut Sapphire Ring $5,500 p Cushion Cut Sapphire Ring $12,500 q Antique Style Sapphire Ring $9,800

rutherford.com.au

Edwardian Unheated Sapphire & Diamond Ring $27,500

rutherford.com.au

b c a

f d

a Gold & Platinum Antique Diamond Drop Earrings $6,850 b Art Deco Diamond Drop Earrings $7,250 c Edwardian Diamond Drop Earrings $6,750 d Art Deco Diamond Earrings $7,800 e Fringed Diamond Earrings $17,500 f Art Deco Diamond Ear Clips $9,500 g Double Diamond Earrings $9,500 h Art Deco Style Diamond Drop Earrings $9,800 i Diamond Cluster Earrings $4,800 j Transition Cut Diamond Studs Totalling 0.46ct $1,730 k Old Cut Diamond Studs Totalling 0.69ct $2,790 l Old Cut Diamond Studs Totalling 0.96ct $4,780

rutherford.com.au

Platinum Art Deco Diamond Bracelet with Original Box $26,500

rutherford.com.au

b c a

f e

a Art Deco Onyx & Diamond Ring $17,850 b Onyx & Diamond Ring $5,250 c Onyx & Diamond Art Deco Ring $8,800 d Antique French Onyx & Diamond Bow Brooch $12,500 e Art Deco Old Cut Diamond & Onyx Ring $18,500 f Onyx & Diamond Plaque Ring $34,500

rutherford.com.au

a Retro Diamond Wrist Watch in White Gold $12,500 b Retro Diamond Ring in Platinum $9,800 c Ladies Diamond Set Cocktail Watch $7,500

rutherford.com.au

a Two Tone Retro Bracelet $6,250 b Retro Bracelet with Diamonds $5,500 c Two Tone Retro Bracelet $3,800 d Two Tone Interlocking Bracelet $1,250 e Austrian Two Tone Bracelet $6,800 f Rose Gold Retro Bracelet $9,500 g Austrian Retro Bracelet $4,800

rutherford.com.au

g e

a Retro Ring with Synthetic Pink Spinel $2,450 b Citrine Retro Ring $3,300 c Morganite Three Tone Retro Ring $2,800 d Diamond & Synthetic Ruby Retro Ring $3,350 e Retro Ring with Diamonds $3,500 f Rose Gold Retro Necklace $6,500 g Gold Retro Collier $4,500 h Bombe Style Retro Ring $2,450 i Diamond Set Rose Gold Retro Ring $2,450 j Ruby & Diamond Clip-On Earrings $3,750

rutherford.com.au

c a

d i

f g h

a Victorian Gold Earrings, circa 1880 $4,800 b Victorian Demi-Parure (Brooch & Earrings) $9,500 c Antique Urn Earrings $3,450 d Victorian Fringe Style Earrings $2,875 e Victorian Tassel Earrings $2,950 f Victorian Earrings with Enamel & Seed Pearls $1,550 g Victorian Bird Earrings $2,850 h Etruscan Revival Drop Earrings $3,250 i Antique Gold Earrings with Leaves $990

rutherford.com.au

Antique Pink Topaz Bracelet (boxed) $4,950

rutherford.com.au

d e

a Antique Diamond Chandelier Style Earrings $12,500 b French Chain, circa 1900 $1,950 c Old Cut Diamond Drop Earrings $14,800 d Antique French Chain, 18ct Gold $4,450 e Antique French Chain $1,950 f Diamond Drop Earrings with Sapphires $3,650 g Antique Diamond Drop Earrings $18,800 h Diamond Drops, circa 1910 $8,950 i Antique French Bracelet $1,950 j Antique Diamond Earrings Totalling 4.24ct $42,500 k Brooch/Pendant with Moonstone Bird $2,250 l Art Nouveau Pendant Watch $3,500

rutherford.com.au

a Victorian Necklet with Locket $6,800 b Fringed Drop Earrings, circa 1900 $3,780 c Victorian Buckle Style Earrings $1,450 d Rose Gold Victorian Drop Earrings $1,450 e Victorian Earrings with Black Enamel $1,450

rutherford.com.au

Art Deco Diamond & Emerald Wrist Watch $35,000

rutherford.com.au

Diamond Stud Earrings Totalling 2.67ct $22,500 3.02ct Old Cut Diamond Solitaire $39,500

rutherford.com.au

e a b

d c

i f g

l j k

m n

a Diamond & Pearl Art Nouveau Pendant $650 b Art Nouveau Peridot Pendant $775 c Floral Pendant with Pearls $1,650 d Antique Diamond & Pearl Pendant $875 e Antique Shield Shaped Locket (chain additional) $575 f Antique Engraved Locket $975 g Round Gold Locket with Pearl $495 h Two Tone Square Locket $990 i Engraved Oval Locket, circa 1900 $975 j Engraved Silver Earrings $545 k Victorian Antique Locket $995 l Sterling Silver Antique Locket $525 m Round Antique Silver Earrings $550 n Oval Antique Silver Earrings with Rose Gold $475 o Victorian Silver Drop Earrings $495 p Victorian Floral Silver Earrings $550

rutherford.com.au

Diamond Earrings, circa 1870 $22,000

rutherford.com.au

d b e

j k

a Morganite Pendant (chain additional) $1,750 b Morganite Drop Earrings $3,300 c Aquamarine & Diamond Pendant (chain additional) $2,850 d Morganite Pendant (chain additional) $1,250 e Emerald Cut Aquamarine Pendant (chain additional) $2,250 f Pear Cut Morganite Ring $2,450 g Aquamarine & Diamond Cluster Ring $5,200 h Aquamarine & Diamond Earrings $8,800 i Pink Tourmaline Ring $3,800 j Tourmaline & Diamond Ring $3,900 k Morganite & Diamond Cluster Ring $4,850 l Morganite & Diamond Studs $2,950

rutherford.com.au

c a

f e

j h a Morganite & Diamond Enhancer (chain additional) $4,950 b Tourmaline & Diamond Pendant (chain additional) $3,300 c Aquamarine & Diamond Drop Earrings $11,400 d Aquamarine, Diamond & Onyx Pendant (chain additional) $18,800 e 17.00ct Aquamarine & Diamond Ring $14,800 f Aquamarine Cocktail Ring $14,500 g Aquamarine & Diamond Ring $4,800 h Morganite Solitaire $2,800 i Morganite & Diamond Ring $4,850 j Cushion Cut Morganite Ring $1,950 k Oval Aquamarine Ring $2,850

rutherford.com.au

a Oval Morganite & South Sea Pendant (chain additional) $7,800 b Opera White South Sea Pearl Strand $9,500 c Oval Morganite & White South Sea Earrings $7,100 d 4.55ct Morganite & Diamond Ring $4,950

rutherford.com.au

a Morganite, Diamond & Oval South Sea Earrings $6,950 b Morganite, Diamond & South Sea Earrings $6,500 c Morganite, Diamond & South Sea Pendant (chain additional) $4,200 d MorganiteÂ & Semi Round South Sea EarringsÂ $4,300 e Morganite & Semi Round South Sea Earrings $4,780

rutherford.com.au

a Morganite & 14mm Tahitian Pendant $4,200 b Morganite & Tahitian Pearl Earrings $7,300 c South Sea Pearl & Diamond Earrings $4,250 d Shaded Baroque Tahitian Strand $3,300 e Shaded Tahitian Pearl Strand $5,200 f Silver Baroque South Sea & Diamond Ring $4,500 g Baroque South Sea & Diamond Ring $4,300

rutherford.com.au

a Dark Green Tahitian Pearl Strand $11,800 b Dark Green Tahitian Pearl Bracelet $3,000 c Baroque Tahitian Pearl Earrings $3,200

rutherford.com.au

i a Triple Diamond Tahitian Earrings $2,650 b Tahitian Pearl & Diamond Earrings $1,850 c Beryl, Diamond & South Sea Earrings $5,800 d Long Tahitian Pearl Negligee $350 e Tahitian Pearl Huggie Earrings $2,500 f Tahitian Pearl & Diamond Huggies $1,650 g Tahitian South Sea Pearl Studs $500 h Shaded Baroque Tahitian Strand $1,450 i Tahitian Pearl Hook Earrings $800

rutherford.com.au

a c

e a Rope Length Tahitian Pearl Strand $2,700 b Tahitian Pearl Huggie Earrings $2,500 c Tahitian Pearl Drop Stud Earrings $700 d Tahitian Pearl Ring $1750 e Tahitian & Diamond Crossover Ring $1,500

rutherford.com.au

g i

a White South Sea & Diamond Earrings $1,400 b South Sea Pearl Huggie Earrings $3,200 c South Sea Pearl Pendant (chain additional) $900 d South Sea Pearl Pendant (chain additional) $900 e Diamond Hoops with Detachable Pearls $3,950 f South Sea Pearl Studs $550 g 12mm White South Sea Pearl Ring $1,500 h Semi Round White South Sea Pearl Ring $1,500 i Australian Oval White South Sea Strand $5,200

rutherford.com.au

e f a White South Sea & Diamond Pendant (chain additional) $1,600 b White South Sea Pearl & Diamond Earrings $2,400 c South Sea Pearl & Diamond Earrings $2,850 d An Impressive High Lustre South Sea Strand $62,500 e White South Sea & Pink Diamond Ring $8,800 f South Sea Pearl Bracelet $2,400

rutherford.com.au

D E E P E R

B E AU T Y

Manhattan â&#x20AC;&#x201D;

a . E mpire Pendant (ch ain addit i on al ) $ 5, 950 b. L igh ts Earri n gs (i nterch a n ge a b l e w i t h p e a r l s t u d s ) $ 5 , 9 95 c . E mp i re R i n g $ 6 , 9 8 0 d. E m p i re Ear r i n gs $ 8 , 9 95

rutherford.com.au

Staircase to the Moon â&#x20AC;&#x201D;

a . Moonb eam Rin g $2,950 b . Moon b eam Pe n d ant (ch ai n ad d i t i on al ) $ 1 , 995 c. M o o n b e a m Ea r r i n gs $ 4 , 9 95 d. Moont i d e Ear r i n gs $ 3 , 9 95 e. Moont i d e R i n g $ 3 , 4 8 0

rutherford.com.au

Sugarloaf by Night â&#x20AC;&#x201D;

a. French H o ok Ear r i n gs $ 6 , 9 95 b . Pen d ant (ch ai n ad d i t i o n a l ) $ 3 , 820 c. B racel e t $ 8 , 6 8 0 d . St u d s $ 7, 550

rutherford.com.au

We are proud to continue our relationship with Jewelmer of The Philippines; the worldâ&#x20AC;&#x2122;s leading farmer of Gold South Sea pearls.

rutherford.com.au

c b

g a Gold South Sea Pearl Pendant $980 b Gold Pearl Chain Necklace $1,950 c Gold South Sea Lariat Chain $2,200 d Shaded Gold South Sea Pearl Strand $4,800 e Scattered Gold Pearl Necklace $5,900 f Baroque Gold South Sea Pearl Ring $3,950 g Gold South Sea & Diamond Ring $5,250 h Gold South Sea Pearl Strand $9,800

rutherford.com.au

b a

g e

a Triple South Sea Pearl Pendant (chain additional) $2,200 b Gold & White South Sea Pendant (chain additional) $1,800 c Drop Shaped White South Sea Earrings $900 d South Sea & Diamond Huggie Earrings $1,650 e Gold South Sea and Akoya Earrings $990 f Opera Multi South Sea Strand $5,800 g Gold South Sea Hook Earrings $900 h Tahitian and Akoya Earrings $800

rutherford.com.au

f g

a White Gold Hoops with Detachable Pearls $2,200 b South Sea Pearl Hook Earrings $900 c Diamond & Large Baroque Earrings $3,200 d Long Scattered South Sea Chain $320 e Scattered South Sea Chain $220 f Triple Diamond & Gold Pearl Earrings $2,950 g Baroque Shaded Gold & White Strand $6,200 h Gold South Sea Pearl Ring $1,600 i Neoprene & Gold Pearl Twist Bangle $380

rutherford.com.au

e f g

a Akoya Pearl Pendant (chain additional) $400 b Diamond & Akoya Pearl Earrings $1,950 c Graduated Japanese Akoya Strand $3,400 d Akoya Pearl Hook Earrings $280 0 e Double Akoya Pearl & Diamond Ring $1,850 f Rope Length Akoya Pearl Necklace with Diamond Rondells $5,250 g Akoya Pearl Bracelet $750 h Triple Akoya Pearl & Diamond Ring $1,250

rutherford.com.au

a Freshwater Pearl Star Bracelet $130 b Opera Freshwater Pearl Star Necklace $330 c Double Freshwater Pearl Star Necklace $280 d Freshwater Pearl Drop Earrings $150 e Double Freshwater Pearl Strand $380 f Freshwater Pearl Star Earrings $95

rutherford.com.au

b a

g f

j h

n o

Cufflinks: a Gold & Enamel $850 b Engraved Gold $450 c Two Tone Gold $880 d Gold & Enamel $980 e Carved Onyx $750 f White Gold & Diamond $975 g Sapphire & Diamond $1,450 h Enamel & Diamond $350 i White Gold Pocket Knife $775 Cufflinks: j Enamel & Ruby $225 k Silver & Enamel $195 l Enamel & Onyx $195 m Purple Enamel $195 n Gold Signet Ring $1,750 o Carnelian Signet Ring $1,450 p Onyx Signet Ring $990

rutherford.com.au

RUTHERFORD JEWELLERY 182 Collins Street, Melbourne 3000 P +61 3 9650 7878 E info@rutherford.com.au

RUTHERFORD PEARLS 174 Collins Street, Melbourne 3000 P +61 3 9650 6277 E pearls@rutherford.com.au

RUTHERFORD CAMBERWELL 797 Burke Road, Camberwell 3124 P +61 3 9882 4686 E camberwell@rutherford.com.au

RUTHERFORD THE BLOCK ARCADE Shop 17, The Block Arcade, Melbourne 3000 P +61 3 9650 4888 E theblockarcade@rutherford.com.au

Please note: some photographs are enlarged to show detail; the printed colour reproduction may vary from actual items; all items were available at time of printing; stone weights may be estimates rather than actual weights; and all prices are in AUD and include GST.

rutherford.com.au

(03) 9650 7878 rutherford.com.au

The Law Society Bulletin - December 2019 edition

Articles inside

THE LONG ROAD TO REFORM THE FAMILY LAW SYSTEM