The Bulletin - Law Society of South Australia

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 2 – MARCH 2021

IN THIS ISSUE

Justice Doyle on gender equality The case for flexible work Understanding unconscious bias

BUILDING A BETTER WORKPLACE CULTURE

Curated by a team of over 50 Australian legal professionals, LEAP clients enjoy the ability to: Work with confidence or expand practice areas with matter plans for all common areas of law, providing practical commentary and precedents in sequential order.

Easily produce documents that automatically merge with LEAP data with over 5,500 integrated precedents.

Access accurate information quickly with an extensive library of commentaries and reference materials featuring relevant legislation, cases and procedure.

Exclusive integration with

For more information about By Lawyers visit: leap.com.au/by-lawyers

This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (2) LSB(SA). ISSN 1038-6777

CONTENTS BUILDING A BETTER WORKPLACE CULTURE 6

10

14 16

20

The path to gender equality requires removing cultural & structural barriers in the profession

By Justice Sam Doyle Men Who Flex: Why more men are taking a flexible approach to work

By Sarah Behenna Understanding unconscious bias in the workplace – By Kym Lawrence Flexible working. It worked during COVID: Why shouldn’t we do it now?

By Marissa Mackie A view from a Bar: Why the gender disparity still exists

By Ian Robertson SC

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

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

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

FEATURES & NEWS

REGULAR COLUMNS

The Disability Royal Commission: how SA lawyers can assist people in legal need – By Carla Martelli

4

From the Editor

5

President’s Message

19

Family Court merger: Statement by Chief Justice William Alstergren

32

Tax Files: Is a home residential?

By Paul Tanti

22

Oral histories profile: Robyn Layton –

By Lindy McNamara

35

Wellbeing & Resilience: Raising the bar for respectful behaviour

By Wellbeing & Resilience Committee

24

Unrepresented litigants in South Australia: a successful pre-trial framework? – By Paul Sigar

38

Risk Watch: Commercial Leasing Risk Management Resources for SA Insured Practitioners

By Grant Feary

36

Family Law Case Notes

By Craig Nicol & Keleigh Robinson

44

Gazing in the Gazette Compiled by Master Elizabeth Olsson

18

28

How to deal with the querulant client

By Kalyna Becker

34

Photos: Happy New (Legal) Year event

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

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

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

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

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

FROM THE EDITOR

Challenging traditional work structures MICHAEL ESPOSITO, EDITOR

T

he theme for this year’s International Women’s Day, held on 8 March, is “Choose to Challenge”.

It is a call for all of us to challenge structures and behaviours that entrench and perpetuate inequality.

In a sense, this edition of the Bulletin is challenging traditional labour paradigms in an effort to build more inclusive workplaces.

We’ve deliberately chosen not to focus solely on the experience of women, although we have included powerful articles from women, including Women Lawyers Association President Kym Lawrence and Women Lawyers Committee Chair Marissa Mackie, about making legal workplaces safer and fairer. Rather, this edition places an emphasis on the important role that men have to play in fostering respectful workplaces.

Sarah Behenna’s “men who flex” feature

is a great example of this. Sarah speaks to several successful male lawyers who have made the decision, with the blessing of their firm, to work flexibly in order to take on more family responsibilities.

Stories like this are important in normalising men working flexibly. We know that in general, women still do the bulk of the home and parenting duties, and part of the reason is, historically, it has been somewhat frowned upon for employees, particularly men, to stray too far from their office during work hours.

The impact of COVID-19 on workplaces has highlighted this outdated view of productivity.

This edition also features Justice Sam Doyle and Ian Robertson QC, two men in the top echelon of the legal profession, who draw on their vast experience to postulate why gender inequality still exists and suggest ways to address it. B

IN THIS ISSUE

10

NEW NORMAL? The case for flexible work

Justice Sophie David appointed to Supreme Court Sophie David was recently Justice appointed to the Supreme Court, commencing her new role on 28 January.

Justice David spent five years on the District Court bench , and prior to that acted as Counsel Assisting the Royal Commission into Institutional Responses into Child Sexual Abuse.

Her Honour has also worked at the Legal Services Commission, as a Prosecutor in the Office of the Director of Public Prosecutions, as Counsel Assisting the Coroner, and as prosecuting Counsel in Commonwealth matters, including fraud and drug importation trials.

Attorney-General Vickie Chapman said Judge David’s legal background was exemplary.

“Sophie David has forged a remarkable career within the justice sector, I have every confidence she will make an

4 THE BULLETIN March 2021

18

GIVING VOICE New legal service for people with disability

excellent addition to the Supreme Court,” Ms Chapman said.

Law Society President congratulated Justice David on her appointment.

“She will no doubt exhibit the knowledge, integrity, and work ethic that she has displayed on the District Court bench,” Ms Sandford said. B

22

COMMITTED TO JUSTICE Reflections from The Hon Robyn Layton

PRESIDENT’S MESSAGE

Marching ahead with strategies to strengthen the profession REBECCA SANDFORD, PRESIDENT

C

an we believe it is already March?

As festival season rolls around once again, it’s sometimes hard to comprehend that this time last year, we had no idea of the disruption and massive changes still to come. One thing we certainly learned in 2020 was the value and importance of connection and collaboration, and I wanted to mention a couple of recent highlights in cooperative engagement that I have experienced in my first two months as President.

The Executive’s annual retreat was held at Sparkke at the Whitmore on 19 February. I always find the retreat helpful and informative, and a great chance to dive more deeply into strategic matters than it’s usually possible to do in monthly meetings.

In addition to receiving reports from key Society staff and Executive members about the work undertaken in the last 12 months and that proposed for the year ahead, we engaged in some useful and productive future planning discussions. A few of the major matters the Executive dealt with during the day included the terms of reference and membership of several of the Society’s governance and operational committees, the Society’s membership offerings and CPD program, steps to improve the perception of lawyers in the eyes of the public, and how to address ongoing concerns about the decline of the Fidelity Fund. I am particularly pleased that we were able to consider and move forward with a new and important initiative proposed by the Society’s Communications Manager, namely a Disability Justice Strategy intended to help bridge gaps between availability and accessibility of legal services for people living with disability.

Steps were also taken to progress the development of the Society’s next strategic plan, a key priority of mine for this year, and there will be further consultation about that plan in coming months.

On a related note, in the interests of learning more about how those in other SA industries are strategically approaching wellbeing, I recently attended the “Reset for Wellbeing” conference at the Adelaide Town Hall. Presented by Wellcity Adelaide and designed to explore how Adelaide could take the lead on the global stage as a City of Wellbeing, it was a fascinating morning and I enjoyed hearing from the wide variety of experienced speakers. I particularly liked the keynote presentation from Gabrielle Kelly, the inaugural director of SAHMRI’s Wellbeing and Resilience Centre and former SA Thinker in Residence, who reminded attendees of South Australia’s pioneering history of wellbeing and resilience, including that a focus on wellness was explicitly mentioned in the proposal to found South Australia in 1831. It was inspiring to see so many Adelaide business leaders engaged with this important area, and I came away with some great ideas around measuring, building and embedding connection, wellbeing and resilience into our work, lives and culture, which I look forward to sharing throughout the year.

Last, but far from least, I also wanted to take a moment to provide a quick update about some of the work being done locally to progress the elimination of bullying, sexual harassment and discrimination in the profession. As many of you would be aware, in 2020 the Chief Justice convened a Respectful Behaviours Working Group, comprising

a number of key representatives from different organisations and bodies across the profession. There have now been three meetings of this Group, at which members have shared the work being done in their respective areas, and discussed what more can be and is being done to combat this issue. The Society, together with other members of the Group, is currently working to build a quick reference guide which collates information about available resources and support mechanisms, in the interests of making it easier for practitioners to know what to do in dealing with this conduct, and ensuring that the information about available options is readily accessible and consistent in approach. The Society has also provided some statistical information and made submissions to the current Parliamentary Inquiry into this conduct, and I thank the Women Lawyers’ Committee and the Society’s Director of Ethics and Practice in particular for their contributions in that respect. I will also be participating in further discussions on the National Action Plan at the Law Council meetings in March. This is of course only some of the work underway, and whilst I expect it will take time to see the true impact of the steps being taken and the collaborative discussions between members of the Group, it is reassuring to see and experience the cultural changes underway across the profession.

It has been a busy and productive start to the year already, and I’m looking forward to that continuing as 2021 progresses. In the meantime, I am grateful to have the opportunity to enjoy some Fringe, Festival and Writers Week events, and hope you get to do the same! B March 2021 THE BULLETIN

5

WORKPLACE CULTURE

The path to gender equality requires removing cultural & structural barriers in the profession JUSTICE SAM DOYLE

H

aving earlier completed a Commerce degree, I completed my Honours degree in Law at the University of Adelaide in 1995. I spent a year working as an Associate to the Honourable Justice Lander of the Supreme Court, and a year undertaking post-graduate study at Oxford University. I commenced full-time work as a commercial litigation solicitor at Fisher Jeffries in 1997.

I worked for five years as a commercial litigation solicitor, before joining Jeffcott Chambers and the Independent Bar in 2002. I worked as a barrister for about 14 years, taking silk in 2012. In December 2015 I became a Judge of the Supreme Court. I have spent the last five years in that role, hearing a range of civil and criminal matters of an interlocutory, trial and appellate nature.

From 2021 I will be sitting on exclusively appellate matters as a member of the newly formed Court of Appeal.

On a personal front, I am married with four youngish daughters (a 15-yearold, an 11-year-old, and twins who are eight-years-old). My wife, Susannah, is also a lawyer. She has worked in various roles in both civil and criminal practice, including at a couple of firms, the DPP and most recently in a government department. Despite us having the financial capacity to pay for some childcare assistance, and significant help from our parents, Susannah has been prepared to spend significant periods out of the workforce, or in part-time

6 THE BULLETIN March 2021

employment, while our children have been growing up, with the obvious implications for her own career.

I realise there is a risk of over generalising when speaking about matters of gender and culture in the legal profession. What follows are no more than some comments based upon my experiences and observations. I am also conscious of the limited perspective I can provide – particularly given that I am a male who comes from a family of lawyers, who has had the benefit of a very supportive spouse and extended family, and who has had a very fortunate career thus far. However, I hope some of my comments are nevertheless of some interest.

THE CULTURE OF LEGAL PRACTICE AND THE IMPLICATIONS FOR GENDER EQUALITY Speaking generally, and with a focus upon my experience as a solicitor, barrister and judge working in those areas of the legal profession focussed upon litigation, there is no doubt that the legal profession is a hard-working, competitive and stressful environment. In part this is a function of the complex and demanding society in which we live. But in part it is also a function of the adversarial and hierarchical nature of the legal profession, and the sorts of personalities it attracts.

It seems to me that some of these cultural features of the legal profession are particularly evident amongst those practising at the Bar. Perhaps it is because

barristers spend such a large proportion of their time engaged in the adversarial aspects of legal practice. But I think there are also some structural considerations that contribute. While barristers generally practise from chambers, they are selfemployed and largely independent. This seems to me to allow, if not encourage, certain personality traits to flourish in a way that might not be permitted to occur in the more controlled and accountable environments of a law firm or within government.

I do not think it takes a dominant, aggressive or arrogant personality to succeed at the Bar. Indeed, not only can one succeed without any of these personality traits, they are usually more of a curse than a blessing. It is often the calm, careful and considered personalities who thrive at the Bar. But there persists a perception of practice at the Bar that perhaps attracts a disproportionate number of people with such tendencies, and perhaps deters those who do not wish to work with people with such tendencies.

But even putting these undesirable personality traits to one side, I do accept that practice at the Bar attracts, and generally requires, people who are dedicated and hardworking. Further, it can be a fine line between being very dedicated and hardworking, and becoming obsessed and losing perspective and balance in one’s life. The latter is probably an inevitability at least during some periods, such as during the course of a trial, or

WORKPLACE CULTURE

I understand that most of my colleagues understand the need for such accommodation where possible, and would look favourably upon appropriate requests. in the period leading up to a significant hearing or deadline. In the era of 24/7 communications, and pressure for almost immediate responses and availability, even the most organised of barristers are regularly subjected to significant, and at times oppressive, demands and pressures in their work life.

The implications of these demands and pressures are obvious. They are virtually incompatible with part-time work, and make it very difficult to maintain stability and control – let alone enjoyment – in one’s personal life. That is particularly so in a family setting, in the absence of a very supportive spouse or partner who is prepared to make sacrifices in their own career in order to provide that stability and control.

Unfortunately, these realities of life at the Bar have generally impacted women disproportionately. Historically, it has been the case that relatively more men have been in a position to, and prepared to, subject themselves to these work demands and pressures. In some respects this reflects poorly on those who choose this path and simply expect others in their life to accept the implications of their path; and in some respects it reflects well on those who choose a path that is more conducive to family life and more likely

to bring them personal fulfilment. But looking at it in this way is to sugar coat the unsatisfactory reality that often this is not a matter of ‘choice’ in any real sense. Many people (disproportionately women) are discouraged or prevented from pursuing, or pursuing as fully as they would like, the career path of their choice by reason of some of the structural and cultural barriers to a successful career in the law.

Even more unfortunately, there are no easy or immediate answers to this dilemma. But I do think that there are some steps that can be taken.

A significant step would be to encourage lawyers to set boundaries around their time spent working. This involves encouraging individuals to identify, declare and observe such boundaries; and correspondingly ensuring that the profession more generally respects and encourages those boundaries.

The applicable boundaries will depend on the individual. For me, the significant boundaries to which I tried to adhere included no work from Friday evening through to Sunday morning; trying to ensure that my court hearings did not commence before 9.15am so that I was available to take the children to school in the mornings; being home by 6.30pm in the evenings (even though it meant

working late at night from home), so that I could be present for, and help with, dinner and the children’s evening and bedtime routines; and making sure I took at least a week off during each of the school holiday periods.

The point is not so much how the boundaries are defined, but to ensure they are encouraged and respected. This requires that members of the profession – both colleagues and the courts – create a culture in which lawyers feel comfortable explaining, and seeking accommodation for, their boundaries; a culture in which lawyers feel comfortable requesting that the timing of a meeting or ‘deadline’ be adjusted, or that a court hearing commence later, finish earlier or take place on a different day.

Such requests may not always be able to be accommodated, given the impact they sometimes have on clients, other lawyers, the courts and the cost of litigation. But it is important that lawyers feel comfortable making a request, because often they can be accommodated with little or no inconvenience to others. Importantly, this is an area in which men can assist to change the culture of the legal profession – and, indeed, do so to the benefit of their own families and personal happiness and mental health – by taking the lead in requesting accommodation in order to meet family or other personal commitments, and thereby begin to normalise such requests. While I cannot speak for all judges, I understand that most of my colleagues understand March 2021 THE BULLETIN

7

WORKPLACE CULTURE

the need for such accommodation where possible, and would look favourably upon appropriate requests.

IMPORTANCE OF GENDER EQUALITY AT THE BAR AND ON THE BENCH The importance of diversity at the Bar and on the Bench is obvious. It is important as an end in itself, and indeed as part of the progression towards that end. The legal process, and in particular legal decision making, can only benefit from involving a greater range of people and perspectives. In striving for outcomes that will be respected and approved by the community, the legal system benefits from having its processes carried out by people more reflective of the community.

At the same time, there is a balance to be struck. In order to maintain the quality and status of the legal system, the primary criterion for progression and promotion must be merit. Unfortunately, adherence to this criterion against a background of the cultural and structural barriers to which I have referred, has made for painfully slow progress in terms of gender diversity and equality within the legal profession. For a number of years there have been at least equal female representation in graduates from law schools, and in relatively junior roles within legal firms. But the same progress has not been seen as uniformly in more senior roles within the legal profession, and in particular at the Bar. This suggests that some of the cultural and structural barriers that exist within the

8 THE BULLETIN March 2021

profession have been continuing to stall the progress of women in this respect.

While some progress has been made in addressing the difficulties confronting women, the slow progress to date suggests that more needs to be done. I do not think the answer lies in promotion simply on the grounds of gender. To the contrary, I think that such an approach would risk undermining the progress that is otherwise being made. Rather, it lies in continuing to try and identify and address the cultural and structural barriers that exist within the legal profession, and particularly at the Bar. I am sure that more could be done in this regard to ensure that women are given fair opportunities for progression and promotion within the legal profession.

The more active implementation and enforcement of equitable briefing policies would be an important example. The Supreme Court has a “Step up to the Bar”program which aims to assist women to transition to the Bar. But more active mentoring of female junior barristers by senior members of the Bar could potentially provide similar assistance to a larger number of women. I understand that some Chambers have been exploring the possibility of rent “holidays” and other more flexible rental arrangements intended, for example, to soften the financial impact of barristers taking parental leave.

Attempts to mirror some of the interstate developments in this area would no doubt assist. So too would a determination on the part of the profession to capitalise upon the experience of the pandemic by

accepting the (now proven) reality that a significant proportion of legal work can be done remotely.

While I would prefer to see more female judges, and for this bolstering of judicial ranks to occur sooner rather than later, my view is that practice at the Bar remains the best training ground for potential appointees. I do not have any difficulty with solicitors and academics being appointed where appropriate, and I certainly accept that not all good barristers make good judges. But I consider that experience in the courtroom is a very important part of becoming a judge, and those with the most experience in that regard generally come from the Bar. It has been pleasing in recent years to see a significant number of women appointed to this State’s courts and tribunals. However, an unfortunate by-product of this has been a continual thinning of the ranks of senior female barristers through the (meritorious) appointment of women to the judicial ranks. While this has perhaps served as something of a handbrake on the progress towards achieving gender equality on the bench, particularly at the most senior levels of the judiciary, I am not sure there is any easy answer to this dilemma. But at the very least it serves to underscore the importance of efforts towards identifying and addressing the cultural and structural barriers to which I have referred so that the female contingent of the Bar is replenished and bolstered at a faster rate. B

20 years of cabenet legal software innovation.

Getting better with age takes positivity, curiosity, continuous learning, and committed effort to stay ahead of the curve.

State-of-the-art web design and technology, certified compliance, and outstanding online user support. Experience the future of legal practice management today.

No complex installation or hardware requirements, flexible monthly subscription with no lock-in contract period.

Book an online demonstration www.cabenet.com.au

WORKPLACE CULTURE

Men Who Flex: Why more men are taking a flexible approach to work SARAH BEHENNA

H

ave you been noticing more of them around your office? Progressive male models and the emerging breed of flexible men are on the rise in private legal practice. These men may still look a little out of place, depending on where you work, and are certainly outnumbered in the senior ranks. But a generational shift in the partnership mix (and a little nudge from a pandemic) is changing the way law firms look. And it’s about time.

Essential elements for the effectiveness of flexible work include modelling positive behaviours and a strong firm culture. Additionally, Paul Gabrynowicz, a Consultant at Sparke Helmore Lawyers, describes that the secret to working flexibly is to ensure relationships with your employer and with your colleagues are based on trust.

“Give and take is required. The result may not always be equal as long as it is fair.

Sometimes you will give more. Sometimes less is more. And so trust is engendered,” he explains.

After a number of years away from practicing law, in 2005 Gabrynowicz, joined the Adelaide office of Sparke Helmore, a large, national, full-service law firm. “I generally work Monday to Thursday but that too can vary depending on workload and the needs of the team.

During busy times, I have accumulated several extra working days which I then “cash-in” for extra long weekends and extended time off. Not only are my days and weeks flexible, but also my start and finish times. I’m often in the office early, but then leave early. On other occasions I start late so I can drop grandchildren at school,” he explains.

Gabrynowicz observes that an exceptional few are able to work 10 hours a day, five or six days a week, but

10 THE BULLETIN March 2021

those who do are often unaware that they have become less productive in the process. Instead, he appreciates that working flexibly allows him to spend more time with his wife and family, to more fully engage in his sporting and non-work activities, and allows him to take a more relaxed approach to life.

“As an experienced practitioner, I’ve become highly efficient too, making this arrangement a win-win for Sparke Helmore and for me.”

In addition to their Flexible Work Policy, Sparke Helmore also has a Career Break Policy and the ability to purchase additional annual leave so that workers can access a number of options to suit their needs. “While policies and information are important, what is crucial for people to take them up is a culture and environment that demonstrates support and encouragement for people to do so,” says Katrina Cooper, Diversity and Inclusion Manager at Sparke Helmore.

Flexibility is positioned at the firm as a business tool to support the firm’s strategy by meeting the needs of their people and enabling them to better respond to clients’ changing needs. It is promoted as a gender-neutral offering available to men and women to assist them with managing their responsibilities and interests in and outside of work.

The firm’s Flexibility Network was established in 2019 to shine a spotlight on the need for flexible arrangements in the workplace, to work towards removing the stigma sometimes associated with working flexibly, and to suggest positive ways working flexibly can succeed. Its members include people from each of their offices, across legal and support teams and all roles, including partners.

Before the pandemic, 52% of Sparke

Helmore’s people worked flexibly and 79% of their people reported they had the flexibility they need to manage work and other commitments. With the emergence of COVID-19, the firm benefited from efforts that were already in place to support flexibility and was able to mobilise the majority of their workforce to work from home consistently without interruptions to servicing clients. They continue to encourage and monitor the uptake of flexible work arrangements, formal and informal, and seek their employees’ and managers’ views about how the firm can enhance the program.

DEFINING FLEXIBLE WORK The Workplace Gender Equality Agency (WGEA) defines flexible working as an arrangement which gives employees the ability to have some control over when, where and how work is accomplished.

Emma Walsh, the CEO of Parents At Work, a social enterprise providing education and policy advisory services to create family friendly workplaces, goes further with her definition. She explains that flexible work is a mindset; it’s not just about when you work or where you work. “It’s a way of working that adapts to the daily needs and challenges that arise in an employee’s working day and life.”

Recent 2020 WGEA data1 shows that 60% of law firms say they hold their leaders accountable for improving workplace flexibility. The data also shows that 95.8% of law firms (within the data set) have a flexible working arrangement, such as a strategy or policy, in place. This has increased from 84.8% as first reported in 2014, the year the Agency started collecting data.

WORKPLACE CULTURE

However, having a strategy or a policy alone is not enough, and promotion of flexible work throughout a firm is imperative. Five years ago, WGEA reported that 80% of law firms said that they promote flexible work throughout their organisation and the latest 2020 data has seen a significant increase to 97.5% of firms who now say they promote flexible work throughout their organisation.

Paul Gordon, 35, is a Partner at fullservice commercial law firm Wallmans Lawyers and he explains that the firm has embraced, and genuinely promotes, flexible working at all levels. The positive and progressive workplace culture was one of the decisive factors of Gordon joining the firm in 2018. He doesn’t subscribe to the outdated view that in order to be a successful lawyer one must effectively devote their entire time and attention to practice. “I think that we mustn’t wear being in the office until midnight as a badge of honour,” he says.

Gordon has been working flexibly since the arrival of his first child in early 2020 and happily participates in the juggling act of work and home life. “The only way in which our industry will change is for people to bite the bullet and do it [work flexibly] and to talk to their firm about the importance to them in their personal life to work flexibly and to work through with their firms any perceived detriment.”

He also thinks that presenteeism is a product of workplace culture and expectations and is not at all tied to productivity. “If a worker is working from home or starting or finishing at a different time and they’re not productive then that’s a productivity issue - that is not necessarily linked to whether they’re working flexibly or not. I think law firms need to put trust in their workers to do the right thing.”

MODELLING In addition to trusting relationships, strong senior role models are also integral in fostering the mindset of flexible work.

The Director of WGEA, Libby Lyons, says that for flexibility to be successful within a workplace, senior men need to be modelling the behaviour. “Senior leaders need to be giving permission for employees to work flexibly and one of the best ways to do that is through role modelling,” she explains.

One such male model is Chris Kelly, 36, a Partner based in the Adelaide office of top-tier national law firm Thomson Geer. Kelly works flexibly, through the use of technology, and has a professional spouse with whom he shares parenting responsibilities. “While demand for excellent service delivery and quick turnaround times in legal practice has never been higher, I view the ability to work remotely and the requirement to be available 24/7 as a positive in allowing me to be flexible. I am always available, but I don’t always need to be at my desk. With technology I can always finish a document or an advice and get it to the client at, say, 10pm (once the kids are in bed) after having left the office at 5pm to pick them up from child care.”

Kelly adds that “demonstrating that it’s equally the father’s role to pick up the kids, to do domestic duties is as important in the household as it is in the workplace because we need younger men who work as lawyers to see it and we need women who are either in that position or might be in that position to see it.”

Kelly knows that his ability to work flexibly directly impacts the choices his spouse is then able to make and commit to in relation to her own professional work life. Lyons confirms this concept and observes that “if we can change the

Chris Kelly

circumstances and conditions for men at work then we can change the choices for women.” She goes on to explain that “if we are giving, in particular men, the option to do a compressed working week or to be able to buy extra annual leave, or can work from home for two days a week then that is actually providing his partner with more choice about how she works.”

However, despite the promising 2020 WGEA data, Lyons has noticed that the data is at odds with what is actually happening in practice at firms. She explains that the legal profession say all the right things and do the right things in terms of making sure there are policies and strategies in place but they don’t actually put it into practice. “On paper the legal profession looks fantastic; but it’s not March 2021 THE BULLETIN

11

WORKPLACE CULTURE

what we hear anecdotally. It’s not the lived experience for many lawyers.”

Accountability is tantamount for progression on this front. Firms must set targets for men’s engagement in flexible work, and be accountable for directing, delivering and reporting them.

Lyons is of the opinion that “a really good way of holding people accountable for meeting the targets is through the annual bonus system. You hit people where it hurts them: the hip pocket. Particularly partners in law firms. This has to be something that happens from the top down. So if there is a board of management, progress on all of this needs to be reported on to the board of management and the senior executive team.”

CULTURE Workplace culture is paramount in creating a truly inclusive workplace.

Policies are important, and they have to exist, but firms also have to build around them a culture that says these are things they care about, that matter to them and that contribute to who they want to be as a workplace and as a business.

Culture has played a huge part in the way in which Peter Healey, 31, has been able to combine his practice with his personal life. Healey is a Senior Associate at Cowell Clarke, a commercial law firm with offices in Adelaide and Sydney. He describes that COVID-19 came at a pretty good time in terms of forced flexible working as his daughter Elspeth, Healey’s first child, was born at the beginning of February 2020. Healey took two weeks off following her birth and had just started to get back into working at the office when, all of a sudden, the entire firm shifted to working from home.

From the outset of parenthood, Healey knew it was important to him to play an active role in family life and he wanted to be around not only for important milestones but also for the dayto-day life of his daughter. “Very early on I noticed that Elspeth, when she’d wake up in the morning, that’s when you get bigger smiles from her and so I really started to value just being there in the mornings rather than being at work very early in the mornings, in which case I would have missed it. You do see those special moments when you have flexibility and you can’t help but have a better outlook on life when you just see this special little

12 THE BULLETIN March 2021

Mark Henderson

bundle growing up and developing.”

Healey explains that diversity in the generational representation within the firm and partnership mix and the ability for Cowell Clarke to trust their people has fostered the nurturing culture at his workplace.

As a further benefit, Healey describes that he hasn’t experienced any push back from clients and has instead found quite the opposite to be the case. “Particularly around when I took a couple of weeks off at the start of the year, when you are talking with clients about timeframes, as soon as you mention that you are going to take some time off for parental leave, the overwhelming view was oh, it can absolutely wait until you get back, that’s not a problem at all. And so you feel like you are actually connected better with these clients because you are sharing part of your personal life with them and they are excited for you and very accommodating. I can honestly say I don’t think there was one client who had any concern that I needed to take time off or that I was any less contactable at any one point in time.”

But Healey’s flexible work experience

is not the norm and the legal profession is still lagging well behind corporate Australia when it comes to progressive workplace culture and flexible work practices. Lisa Annese, CEO of the Diversity Council Australia, is bewildered by the lack of progress within the legal profession. She remarks that “most ASX listed companies are [now] focused on mainstream flexible work and no longer have to make a business case for gender equality – it is demanded of them by their shareholders.”

WORK/LIFE There is also a severe lack of progress on the domestic front for men. The outdated but lingering presumption that men will be breadwinners and women will be caregivers is hurting men, women, families and the economy. “It limits women’s options when we have stereotypes like that,” says Annese. “It limits women’s options in the workplace and it also limits men’s options outside the workplace.”

Marcus Wallman, 50, is a Director at Laity Morrow, a premium transactional and advisory law firm in Adelaide. He began working a four-day week just over

WORKPLACE CULTURE

a year ago and loves being able to spend Fridays with his two year old daughter and picking his eight year old step-daughter up from school. He also likes to think they have benefitted from spending more time with him! Wallman believes that work flexibility offers choices, and that this can only be a good thing. “I do appreciate that you can’t have it all and that you can’t expect to remain on the same pay or, perhaps, speed of career progression when compared to full time colleagues if you decide to work less than full time.

However, I appreciate having that choice to make,” he explains.

“Logically, I don’t see why offering flexibility at work should be linked to the issue of raising children. I think offering workplace flexibility promotes efficiency and productivity in those that want to make use of it and therefore should be open to all. If someone wants to work a three or four day week and spend one or two week days pursuing other interests or hobbies, and such working flexibility can reasonably be offered by an employer, then let them.”

Emma Walsh agrees with this sentiment and says that access to flexibility within private legal practice is imperative for all and that we need to move away from attaching flexible work to those with caring responsibilities “because if we keep thinking about it like that, then we are going to concede that flexibility is still attached to the working mother label and that is definitely not the future of work.”

Commercial & Legal, an innovative and nationally recognised property and conveyancing law firm based in Adelaide, has its gaze set firmly on the future of work. The firm has cleverly incorporated a family room into the design of their new offices in Flinders Street. This deckedout, tech equiped family room provides a support option for employees in their firm who have caring responsibilities. Nicholas Graham, 38, a Partner at Commercial & Legal, understands the importance and value of flexibility in the workplace and is proud that they have been able to create a space where their families can feel welcome.

“Many of us have caring responsibilities, so the family room concept means we have a safe and comfortable environment for the team to have their children, while they work. It’s a space where our kids could be in the

Paul Gabrynowicz

family room while we are seeing a client in the meeting room next door, all the while having the peace of mind of knowing our children are safe!”

Graham’s colleague, Mark Henderson, 41, also a Partner at Commercial & Legal, says the room is set up with a desk for children to come into the office (generally after school) to do their homework or, in some cases sit and read or entertain themselves. “The room is equipped with streaming services as well so that if there is a need for the kids to be there beyond the time it takes to do their homework then they can do so. Some of the firm’s staff have their children walk themselves into the office from school or catch a bus after school on a regular basis, while others will use the room as a facility to be able to bring their kids to work but not into their office if they need to pop in on a day off when they don’t have other care arrangements for the children.”

GENERATIONAL ISSUES Speaking of children, Emma Walsh describes that the next generation of legal professionals simply will not tolerate the nine-to-five, commuter life. She warns that “workplaces ignore [flexible work] at their peril because in 2025 millennials will make up 70% of the workforce.

So, at the moment, unfortunately we’ve got mainly still some baby boomers and generation X’s in the boardrooms making the decisions and they are out of touch.

They are not representative of the next

generation coming through at all and until we see more millennials [in the partnership mix] it will be a clunky change and transition. Every firm should be making sure they have the next generation voice occupying a seat at that table”.

Matt DeGregorio, 48, Managing Partner at Duncan Basheer Hannon, a South Australian owned and operated law firm, has three children aged 20 years, 14 years and 18 months old and works flexibly. He explains that a “change in the diversity and age of those who lead law firms will likely be a significant factor in changes to gender inequality and work flexibility.” He suspects that as more women are able to progress to senior roles and as partnership demographics become younger, any current inequalities and lack of flexibility are likely to reduce. Firms that are able to evolve and innovate have a much better chance of remaining relevant, successful and profitable.

Flexible and hybrid working models have been mainstreamed by COVID-19.

We are in the midst of possibly the greatest revolution in the way we work in the modern era. The future of work is undeniably flexible and is soon to be the norm rather than the exception; a flex, perhaps, for our profession.

Sarah Behenna is a freelance journalsit and former lawyer. B Endnotes 1 https://data.wgea.gov.au/industries/115#work_ flex_content

March 2021 THE BULLETIN

13

FEATURE

UNDERSTANDING UNCONSCIOUS BIAS IN THE WORKPLACE KYM LAWRENCE, WOMEN LAWYERS ASSOCIATION (SA)

S

ince taking on the role of President of the Women Lawyers’ Association of South Australia (WLASA), one thing has become abundantly clear to me after speaking to various members of the profession - the legal profession in South Australia remains starkly segregated from a gender perspective.

The recent revelations about former High Court Justice Dyson Heydon have, again, laid bare the currents swirling beneath the public face of the Australian legal system – a system dominated by men, in which women often struggle for equality. The statistics support this reality.

In 2019, the Workplace Gender Equality Agency reported that the legal profession had a gender pay gap of over 25%.

Barristers have the highest pay gap of any occupation. In 2017/2018, the average income for female barristers was $70,227 and for males it was $190,454 - for female lawyers it was $112,731 and for males it was $148,4871. In 2019, women made up only 25% of partners and 10% of the most senior positions.

Many female lawyers have reason to ponder the frustrating inequities that still permeate the profession. While there is no doubt that some inroads have been made to addressing this direct and indirect gender discrimination, our profession continues to be plagued by issues arising from unconscious bias, sexual harassment, the gender pay gap and the attrition rates of female practitioners, to name a few.

These practices are harmful to selfesteem and morale and too often result in women leaving the profession altogether.

More needs to be done to shift the cultures and practices that limit women’s opportunities for career advancement and access to leadership roles.

Although there are some real barriers that we must overcome, I believe that, in partnership as a profession, great strides

14 THE BULLETIN March 2021

can be made to resolve these issues once and for all.

The WLASA has been working on a number of initiatives to address these issues. We believe that the WLASA’s ‘Charter for the Advancement of Women in the Legal Profession’ (the Charter) is one of the initiatives that has a key role to play in eradicating these barriers.

WHAT IS THE CHARTER? The purpose of the Charter is to ensure that female lawyers in the South Australian legal industry are afforded the same opportunities in their careers as their male counterparts.

Despite the fact that women make up 50% of the legal profession, there remain obvious barriers to their progression within the industry. The Charter aims to eradicate those barriers by generating genuine structural and cultural change across the legal workforce and providing meaningful action to redress sexism and gender inequity across the profession.

Our attention needs to shift to solving the problem itself – the attitudes, cultural norms and systemic manifestations of sexism and gender inequality that disadvantage and harm women.

Signatories to the Charter are committing to ensuring that female lawyers within their organisations are provided with equal opportunity and inclusive workplace cultures. This will, in turn, favourably impact on all members of the organisation, and, by extension, have a positive impact on the South Australian legal profession as a whole.

The practical ways in which the Charter will be implemented by its Signatories are as follows:1. Demonstrating leadership by implementing diversity and inclusion principles and removing gender bias,

unconscious bias and discrimination in the legal workplace; 2. Driving change by developing a culture that supports the retention of women legal practitioners and recognises their value in senior roles; 3. Implementing recruitment and promotion strategies that include gender diversity as an important consideration, including ensuring equal pay for legal graduates regardless of gender; 4. Promoting and supporting mentoring and sponsorship of women; 5. Encouraging and supporting flexible work practices to assist men and women to better balance professional and other commitments; 6. Adhering to and implementing equitable briefing policies as per the Guidelines of the Equitable Briefing Policy of the Law Council of Australia.

Signatories agree to implement these strategies within 24 months of signing the Charter.

Although these strategies are designed to combat a number of examples of direct and indirect discrimination that are prevalent within our profession, I have set out my thoughts below on one of the key issues that requires specific attention – unconscious bias.

UNCONSCIOUS BIAS Anti-discrimination laws have made overt declarations in favour of male employees unlawful. Consequently, leaders, recruiters and managers guard their language carefully and the real reasons and motivations for denying opportunities to women are often camouflaged. However, archaic, inaccurate beliefs still persist and include notions such as - men are more competent than women, women are not as ambitious as men or that women tend

FEATURE

to shrink from leadership responsibilities as they are instinctively more ‘caring’ and ‘nurturing’. These attitudes continue to prevail in unspoken form.

When group members collectively hold and maintain similar biases, they become systemic. Systemic bias is the tendency for a human system or institution to prefer a particular outcome. Consequently, what appears like an objective standard actually favours one group over another.

The Law Council’s National Attrition and Re-engagement Study (NARS) Report identified a number of features in the practice of law which can be classified as systemic bias against women. These include - flexible work having a negative impact on progression, a lack of women in leadership roles which is contributing to a male-dominated culture, discrimination due to family responsibilities and the allocation of ‘softer’ areas of work to women.

Unconscious bias is one of the key inhibitors of diverse and inclusive workplace cultures. It impacts how every individual experiences the workplace and affects who gets hired, promoted, and developed. The NARS Report identified the severe consequences unconscious bias can have for the inclusion and retention of women and the role it plays in undermining the success of other policies and initiatives designed to increase diversity and inclusion.

Even those who carry the best of intentions and who are firmly committed to fair and equal treatment of others, can be guilty of unconscious stereotyping and displaying prejudicial behaviour.

Although unconscious bias cannot necessarily be eliminated entirely, its impact can be mitigated if every aspect of the employment life cycle is reviewed and re-designed to identify and then overcome hidden bias.

In order to counteract the impacts of unconscious bias, it is incumbent on firms to empower staff and leaders, at all levels of seniority, to recognise bias and create an open culture.

So how do we combat unconscious bias from an organisational perspective?

There are two key steps in this process.

Firstly, unconscious bias training must be offered by firms to educate key decision makers and staff about unconscious bias and its impacts. Secondly, firms must redesign systems and processes to detect and

mitigate the impact of bias within their organisations.

Training To mitigate unconscious bias, people must first be made aware of their decisionmaking preferences before systems and processes are introduced to help hold them accountable to change their behaviour.

Law firms must focus on making their unconscious bias training as effective as possible. This can be achieved in the following ways: Get the tone right – In order to be as engaging as possible and to motivate individual behavioural change, the key message that must be emphasised during the training is that bias is natural, normal and forms part of everyone’s judgements.

Face to face delivery – Unconscious bias training is most engaging when it is delivered face to face and draws upon real-life examples and situations that the audience will understand and relate to.

Follow up training – It is imperative that action points are set during the training session, and introductory training is followed up to encourage a culture where individuals are motivated to change their behaviour and are adequately equipped and willing to recognise non-inclusive behaviour.

The bottom is just important as the top – Ideally, organisations will provide all staff with training alongside that delivered to senior decision makers. This is to further raise awareness of unconscious bias and to provide staff with the knowledge as to how to effectively challenge any exclusive behaviour they witness.

Link it to other initiatives and people processes – Unconscious bias training should be linked to corresponding initiatives and policies focused on mitigating bias in the workplace.

Redesign systems and processes Although education and training builds awareness, it is not necessarily enough, on its own, to change individual and/or organisational behaviour.

After leaders and staff members are made aware of their biases, the onus is then on firms to undertake an analysis of their recruitment, assessment, work

delegation, promotion and renumeration processes against the lens of unconscious bias and consider the ways in which those processes can be re-designed to reduce the effects of unconscious bias.

One of the practical ways firms can tackle this issue is though the creation of a bias interrupter ‘cheat sheet’ for use by members of promotion/renumeration committees/assessors during the annual performance review process. This reference tool could include priming statements to remind assessors to slow down their decision-making processes and to watch for typical forms of cognitive bias.

A diversity champion could also be appointed within a firm to oversee such processes to flag any issues that arise that may be cause for concern from a diversity perspective.

The Charter provides Signatories with a number of other recruitment and promotion strategies that include gender diversity as an important consideration thereby combating the impacts of unconscious bias.

HOW CAN FIRMS BECOME CHARTER SIGNATORIES? Counteracting unconscious bias and other barriers to the advancement of women in the legal profession takes time.

However, it is a commercial imperative for law firms to address these barriers as part of their diversity and inclusion efforts and to invest in strategies to eradicate these hurdles. This needs to be part of a multidisciplinary approach to diversity and inclusion, measurable over a meaningful period of time, if law firms are going to be effective in addressing these issues.

A proactive and responsive workplace is crucial to the retention and advancement of women in legal practice. The Charter is a major step towards this goal and I strongly encourage senior decision makers and partners to embrace the Charter and the assistance it provides.

Further details regarding the Charter and how to become a Signatory can be found on the WLASA website www. womenlawyerssa.org.au.

We very much look forward to your engagement and support on this incredibly important initiative for our profession. B March 2021 THE BULLETIN

15

WORKPLACE CULTURE

Flexible working. It worked during COVID: Why shouldn’t we do it now?

MARISSA MACKIE, CHAIR, WOMEN LAWYERS COMMITTEE

T

he last year saw the profession being forced to embrace flexible working arrangements. There was no other way around it. We all quickly had to learn how to navigate new technologies, children asking for a snack mid-hearing and learning how to turn off a cat filter.

The concept of flexible working arrangements existed a long time preCOVID but it has historically been a difficult thing to come to terms with.

Whilst the ‘new necessary’ enabled firms to realise that it can be done, the true benefits of flexible working for a business may not have been truly visible when navigating a period of uncertainty, economic downturn and not having established practices and procedures in place. Even for those firms with existing flexible-working practices, having every single staff member working remotely was a challenge.

The pandemic has given us an opportunity, though, to overcome the fear that many employers may have held about trusting their staff to work remotely.

It has also overcome the notion that flexible working arrangements impact on morale and firm culture when people become disconnected from the office.

Research has shown that flexible working arrangements can not only result in improved productivity and retention but also enable firms to create a more diverse and inclusive culture.

What’s in it for employers you may ask?

16 THE BULLETIN March 2021

PRODUCTIVITY Working in a general office environment can come with distractions.

Phone calls, meetings, people dropping in to see how your weekend was. It is often difficult, particularly in the emerging trend of open plan working, to concentrate on more complex tasks. The ability to work from home has given employees the opportunity to work without distraction, resulting in more efficient and often higher-quality work.

Numerous studies have revealed that flexible working arrangements have led to improved productivity and revenue generation.1 It can also be seen to promote creativity, particularly when away from the office environment.2 And one of the most basic principles: the ability to work from home saves time on the daily commute, not only providing additional time to get more work done, but avoiding the stress associated with peak hour traffic, which never puts anyone in a good mood!

LOWERING COSTS It goes without saying that having fewer people in the office reduces the overheads a firm needs to pay in respect of office space and running costs relating to electricity, telecommunications and printing. A firm who embraces flexible working for all its employees, whether it involves staggering start times and days in the office, could enable it to reduce its office footprint.

The financial benefits aren’t small either.

Case studies have demonstrated savings of up to 4% of a business’ net income and the ‘FlexiWork’ Calculator available on the Victorian Government website can assist firms in ascertaining the potential savings.3 It has also been shown to reduce the level of absenteeism in a workplace.

Specifically in the current climate where a simple cough may prevent someone from coming into the office but they still have the ability to work from home.

RETENTION AND NEW TALENT The ability to work flexibility, particularly in the legal profession, has generally been viewed as a privilege, not a right.4 Most employees who have been given an opportunity to work flexibly, tend to want to prove their worth and are more committed to both working harder and staying with their employer.

Offering flexible working arrangements also opens up opportunities for recruitment of a wider pool of candidates, of all genders and ages. The younger generation particularly have embraced flexible working. The Deloitte 2017 Millennial Survey,5 noted that “flexible working continues to encourage loyalty and make a significant contribution to business performance”.

INCLUSIVITY As will be seen from the other articles in this edition of the Bulletin, flexible working isn’t just for women and it’s

WORKPLACE CULTURE

no longer only about accommodating parents, but surprisingly (or not), there still appears to be a stigma against flexible working for males, with research showing that men are twice as likely as women to have requests for flexible working arrangements rejected.6 Both men and women feel uncomfortable in seeking flexible working arrangements for fear they won’t be “seen” as committed to their employer or careerminded. One lesson that COVID has taught us, is that is not the case.

Encouraging and enabling flexibility for all employees promotes an inclusive working culture which in turn leads to increased creativity, higher job satisfaction and employee morale. It enables firms to become an “employer of choice” and will also go a long way to reducing the gender pay gap.

PUBLIC IMAGE One of the biggest issues we have had to face during COVID is trying to juggle both our work and personal lives.

We’ve seen news articles about family members ‘zoom-bombing’ meetings and have dealt with the difficulties of homeschooling while responding to emails. But those issues can also be seen as a benefit, particularly for those dealing with clients who perceive lawyers in a certain light.

It shows us as humans, it shows us as authentic. And that can only do wonders to rebuild public confidence in the profession.

WHAT DO I NEED TO DO TO IMPLEMENT FLEXIBLE WORKING IN MY FIRM? Whilst we have all had a ‘trial run’ at working remotely, having some basic guidelines in place will ensure it is a beneficial experience for both employers and employees.

Some of the key matters to consider in implementing a work from home policy include: • Communication – what platform works best? When is it easy for teams to catch up? Are we checking in too much or too little? Should we interrupt when ‘do not disturb’ is on?; • Work hours – when do we expect team members to be online and available?

How long should it take to respond to an email?

• Work, health and safety – are there are any risks and hazards preventing employees from working at home that could give rise to a workers’ compensation claim? Particularly mental health issues? Could a work from home checklist be implemented to alleviate these issues?

• Technology – do my staff have the tools to do their job properly no matter where they are?

The best way to consider these matters? Talk to your employees. Find out what they want and what works best.

For those who don’t know where to start, the Diversity Council of Australia has a useful resource, called ‘Future-Flex’ which

encourages employers to involve their employees in discussions about workplace flexibility.7 Remember, flexible working isn’t just about giving employees the ability to work from home…or the local café, in the car, or the beach (the latter is my go to!).

Flexible working encompasses so much more. Whether it’s a four-day work week or a change in start and finish times, most importantly it’s about trust and open lines of communication to understand what works best for you and your staff.

Marissa Mackie is a barrister at Anthony Mason Chambers. B

Endnotes 1 https://www.wgea.gov.au/flexiblework#:~:text=Improvements%20in%20 productivity,to%20improved%20profits%20 for%20businesses.

2 https://www.abc.net.au/news/2020-02-06/prosand-cons-of-working-from-home/11902982.

3 https://www.vic.gov.au/case-study-flexible-workreduces-gender-pay-gap-and-saves-money.

4 For more information on employer obligations to provide flexible working arrangements please visit https://www.fairwork.gov.au/employeeentitlements/flexibility-in-the-workplace/flexibleworking-arrangements.

5 https://www2.deloitte.com/content/dam/ Deloitte/global/Documents/About-Deloitte/ gx-deloitte-millennial-survey-2017-executivesummary.pdf.

6 https://www.abc.net.au/news/2016-02-03/ men-more-likely-to-have-flexible-work-requestsknocked-back/7137208.

7 https://www.dca.org.au/research/project/futureflex-mainstreaming-flexibility-design-retail-guide

March 2021 THE BULLETIN

17

DISABILITY JUSTICE

The Disability Royal Commission: how SA lawyers can assist people in legal need CARLA MARTELLI, YOUR STORY DISABILITY LEGAL SUPPORT COORDINATOR, LEGAL SERVICES COMMISSION OF SA AND CHE’ WORTLEY, LAW AND JOURNALISM STUDENT ON UNDERGRADUATE PLACEMENT, LEGAL SERVICES COMMISSION

I

t is a damaging and inverse relationship: if you have a disability you are more likely to need legal help but less likely to get it.

Fortunately, a new legal service is now operating in SA to assist people with disability and, in particular, empower them to participate in Australia’s Disability Royal Commission. It is vital that SA lawyers appreciate the scope of this new legal service and the opportunities that it provides for them to assist people with disabilities.

YOUR STORY DISABILITY LEGAL SUPPORT The free service, known as Your Story Disability Legal Support, has two primary aims. Firstly, it helps people tell their story to the Royal Commission in a safe and informed manner. Secondly, it provides information, advice and assistance to help them deal with a variety of legal problems - including those that may not be directly related to the Royal Commission’s terms of reference regarding violence, abuse, neglect or exploitation.

The Your Story service is federally funded but is independent of the Royal Commission. It is a national legal assistance service delivered by Legal Aid Commissions and Aboriginal and Torres Strait Islander Legal Services. In SA, the Your Story service is provided by the Legal Services Commission and the Aboriginal Legal Rights Movement.

THE POWER OF PERSONAL STORIES In order for the Royal Commissioners to make meaningful recommendations, it will be vital they hear from people with lived experience of the issues they are examining. The Your Story service will help people to make informed choices - and better understand their legal rights and options - when telling their story to the Royal Commission.

Your Story enables the enquiry to hear the voices of individuals who otherwise may not have the means, or the ability, to tell their story. Indeed, those with the

18 THE BULLETIN March 2021

most informative stories are sometimes the people who must overcome the greatest hurdles in order to come forward to share their story.

Your Story can assist people with disability as well as their family members, carers, supporters and advocates. It provides advice on topics such as confidentiality, defamation, the capacity of individuals to give evidence or make a submission, whistle-blower and self-incrimination protections, and Freedom of Information requests. Your Story can also liaise with the Royal Commission to facilitate a client’s safe engagement with the enquiry.

People can make a submission to the Royal Commission in various ways. For example, it can be done via a community forum, a voluntary submission, or by participating in a private session with a Commissioner. There is also the option of providing evidence with the protection of a summons or a notice to produce that compels a person to produce a submission or provide information to the Royal Commission.

While the Royal Commission has a particular focus on violence, abuse, neglect and exploitation, the Your Story service can also help with a range of other problems encountered by people with disability. It can provide legal advice, information, referrals and minor assistance for people with problems relating to personal injury, employment, administrative law, accommodation, social security payments, debt, discrimination, guardianship or family law matters. Importantly, Your Story also helps to connect clients to private practitioners, legal services and other organisations that can deliver specialised assistance or advocacy.

OPPORTUNITIES FOR PRACTITIONERS The Your Story service provides opportunities for private legal firms and community legal centres to assist people with disability. Subject to strict eligibility criteria, funding is available through the

Federal Government’s Legal Financial Assistance Scheme to enable approved practitioners to help individuals make a submission to the Royal Commission and/or pursue separate civil litigation.

It is expected that some clients who seek advice from Your Story will have potential claims arising from their experience of violence, neglect, abuse or exploitation. These clients will require specialist legal advice and representation (e.g. regarding personal injury matters or when appearing as witnesses at a Royal Commission hearing).

EXPRESSIONS OF INTEREST The Your Story service is seeking expressions of interest from practitioners who wish to be included on its referral list.

The list will help Your Story to warmly refer clients to private practitioners who have demonstrable expertise in relevant areas of law. To be included on the referral list, firms and CLCs must meet certain criteria regarding their capacity to assistant clients with disabilities and individuals who have experienced trauma. For more information, contact yourstorydisability@legalaid. nsw.gov.au.

TRAUMA-INFORMED LEGAL HELP The assistance from Your Story is trauma-informed - delivered by lawyers with a basic knowledge of how traumatic experiences and traumatic stress can impact on the clients being assisted.

Clients engaging with these lawyers can also be assisted in their legal appointments by disability advocates or support people, including a family member or friend.

Your Story lawyers work with other professionals to deliver assistance in a way that is flexible and multi-disciplinary in nature. The Your Story team includes social workers who can help clients with complex issues and refer them to specialist assistance. It also can arrange for interpreters to be present at meetings.

DISABILITY JUSTICE

Lawyer Carla Martelli is the SA Legal Coordinator for the Your Story Disability Legal Support service.

Photo: Jeremy Boylen.

People can often assume that needing to get legal help is associated with being in trouble. Your Story emphasises to its clients that seeking legal assistance does not mean that a person has done something wrong. It is also not mandatory for people to contact Your Story for assistance before making a submission to the Royal Commission.

Many individuals have already told their story to the Commission without legal support.

More than 1500 submissions have so far been received by the Royal Commission. The enquiry is expected to deliver its final report in late 2023, subject to changes such as disruptions caused by COVID-19.

A TRANSFORMATIVE MOMENT The Royal Commission can be a transformative moment in Australian history. It offers the opportunity to substantially improve the lives of people with disability and the ways in which they are treated. Lawyers can play a significant part in that transformation by helping vulnerable individuals to engage with the Royal Commission in a safe, positive and informed manner. Just as importantly, lawyers can provide additional advice, information, advocacy and other assistance to help people with disability overcome various legal problems that are often ignored or largely hidden from public view.

For more information about this service, visit www.yourstorydisabilitylegal.org.au. B

Statement from the Family Court and Federal Circuit Court THE HON. JUSTICE WILLIAM ALSTERGREN, CHIEF JUSTICE - FAMILY COURT OF AUSTRALIA; CHIEF JUDGE - FEDERAL CIRCUIT COURT OF AUSTRALIA

T

he Parliament has now passed the Federal Circuit and Family Court of Australia Act 2020 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020, which awaits Royal Assent.

The Courts have consistently declined to comment on Government policy. The role of the Courts is to apply the law of Australia by hearing and deciding cases and interpreting legislation created by the Parliament. They must also perform the business of the Courts in a manner that is efficient and fair.

The new Acts will create an amalgamated Federal Circuit and Family Court of Australia (FCFCA) with two Divisions: one which will include judges of the Family Court of Australia dealing with the most complex matters and exercising appellate jurisdiction, the other consisting of judges of the Federal Circuit Court of Australia, which will be the single point of entry for family law and child support cases.

In the exercise of its jurisdiction the FCFCA will continue to have a statutory obligation to have regard to the need to protect the rights of children and to promote their welfare, and protect them from family violence.

The first Core Principle of the Courts is: “The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management.”

The Courts will continue to provide specialisation in family law. Both Courts already have specialist family law judges, with 33 family law judges in the Family Court of Australia and 40 specialist judges that deal exclusively with family law cases in the Federal Circuit Court of Australia (FCC). The public may not be aware that the FCC currently hears approximately 90% of all family law cases and 92% of all parenting cases. The FCC family law judges have an average of 25 years of family law experience between them, and many are former Registrars of the Family Court, experienced family law solicitors, barristers, senior counsel and senior academics. All of the specialist judges of both Courts will continue to sit in the new FCFCA, hearing family law cases only.

The number of specialist judges under the new structure will increase,

and by August it is intended that there be 35 specialist judges in what the new legislation designates as Division 1 and 43 in Division 2. The legislation also prescribes that the number of judges in the Family Court or Division 1 cannot be below 25. The Attorney-General has assured the Courts that any retiring judge will be replaced.

The Courts will continue to focus on implementing key case management improvements and family violence-related reforms such as rules harmonisation, the Lighthouse Project and the national COVID-19 List.

The Courts will also continue to seek further resources from Government to carry out these important reforms and other measures to reduce delays and chronic backlogs.

To improve the system we need a streamlined single point of entry, as well as harmonised rules, forms and case management approaches.

With change comes opportunity. I ask that we work together to create a worldleading family law system—one that we can all be proud of and one that the people of Australia and future generations of Australians deserve. B March 2021 THE BULLETIN

19

WORKPLACE CULTURE

A view from a Bar: Why the gender disparity still exists IAN ROBERTSON SC “I do not think, sir, you have any right to command me, merely because you are older than I, or because you have seen more of the world than I have; your claim to superiority depends on the use you have made of your time and experience.” - Jane Eyre, Charlotte Bronte

A

nd I would add to that, “and the opportunity given to you to make that use”.

That, I think, is the heart of the equality gap at the Bar and the core reason for the gap’s existence.

For at least three decades, female graduates have out-numbered male graduates from Australian Law Schools.

Yet, 30 years on, the female partners of national and international law firms and women at the Bar in Australia are called upon to celebrate when their respective numbers reach 30%.

At the top of the Bar tree, as of December 2020 there are 10 female Silks, of a total of 45 practising Silks, in this State (about 22%, up from about 19% before the latest appointments). Those numbers are unsurprising to lawyers, but may come as a surprise to many in the community at large.

But it is not the numbers, or the percentages they imply, that are the reason for the problem. The reason is, I believe, access.

I have for nearly 20 years (approximately the time the Bar Readers’ Course has been available in this State) been closely involved with young lawyers coming to the Bar. In gender terms, their numbers have varied, although in the last five years they have approached an equal number. Of them, approximately 60% continue to practice at the Bar having completed the Course. More men than women return to the amalgam or leave practice altogether. From these ranks, there have been two female Silks and nine male Silks appointed. A consistent ratio, then.

20 THE BULLETIN March 2021

What happens then to the women who come to the Bar? We have all heard the view expressed that women leave the Bar to have children, never to return. If that was ever true, it is not anymore. Many women come to the Bar, have children, take leave (for six to 12 months) and then return. I can think of 10 very able young women that I have seen follow that career path. All of them are very good advocates. All of them are, it appears to me, dedicated parents. All of them are not Silk and many of them will wait much longer to take Silk. That longer time is not correlative to the six to 12 months that might be attributed to their time away, not even the two years one might allow for them to regain their momentum. The truth is that most of these young women keep working from home, without going to Court, in their time away and lose little or no momentum.

So, if not the old chestnut of motherhood, what explains the lag?

One explanation might be the type of brief that is offered to women at the Bar. The government agencies (AGS, CSO) and regulatory authorities (ASIC, ACCC, APRA, FairWork) all adhere to a strict equitable briefing policy. Many of the junior briefs are made to women.

Those briefs are a fantastic opportunity to do interesting, high-end work, but they traditionally pay about half the market rate. That might help in part to explain the value of brief by gender differential that presently exists. The briefs stop when one’s tolerance for working for half pay wanes. The result is that many

senior juniors begin to move away from government briefs as they approach Silk.

That, in turn, leads to a reduction in Court time and the associated exposure that is necessary to have a decent chance of selection for Silk.

That rationalisation does not apply to all criminal barristers. Those from the ODPP who come to the Bar as Silk apart, the transition within the Bar as a female junior is dependent on one of two circumstances; first, a benefactor or second, a commitment to prosecution work. As to the former, benefactors at the Bar are a rare commodity. They are not benefactors of the type that exist in philanthropic societies. They are senior barristers (Silks, senior juniors) and partners of key criminal law firms who like the junior’s work and continue to recommend them to the client. Great if you have one or more, but completely normal if you do not. As to the latter, many former members of the ODPP come to the Bar. Many are women. Mostly they are highly competent but destined to be locked into the right-hand side of the Bar table and then suffer (in terms of briefs offered and rates paid) when they seek to branch out.

Another problem is mentoring. There are plenty of good senior members of the Bar that mentor junior members of the Bar. Rightly or wrongly, most Silks have the juniors they prefer to work with. If you are not one of them, then it is harder to get a junior brief, which means that it is harder to get a Full Court or Court of Appeal brief, and so it is harder to be noticed. The more unnoticed a barrister is, the harder it is to progress to the bigger briefs in more serious cases.

Some means to combat these problems have been developed in the last 10 years.

At the Bar, the first innovation (if you can call it that) was the Silks’ Commitment.

I paraphrase, but in substance it provides

WORKPLACE CULTURE

that a Silk, when recommending junior counsel, will consider a female barrister and seek to provide non-court work to a female barrister once a year. In my opinion, it is a matter of some concern that not all Silks have subscribed to the Commitment.

The usual reason given for this is that the Silk does that (and more) in any event, so why should they sign the Commitment? I would have thought the question should more properly be asked, why should they not sign the Commitment. I think it surprising that not all Silks have given the Commitment and not all female Silks have given the Commitment.

More recently, during Fiona McLeod’s term as President of the Law Council of Australia (LCA), she proposed, and secured, the commitment of a number of the national firms and other briefing parties to the Equity Briefing Policy. I am not aware of the reporting that has been made under the terms of the Policy except in its first year, when the rate of reporting was disappointing. It has not proven to be the impetus for briefing that I suspect the LCA envisioned.

So, what does this suggest?

To me, my experience (albeit as a man at the Bar) is this: • junior women are well supported both

EXPERT FORENSIC REPORTS & LITIGATION SUPPORT

•

• •

• •

in terms of briefs and the value of the briefs. Many young male barristers would like the same support. as barristers become more experienced, they are less interested to take the briefs that are at lower rates.

That is the same for male and female barristers. female barristers remain attached to the less well rewarded brief for longer than male barristers. there is a finite number of mentors and benefactors when at the Bar. Fewer of them prefer female junior counsel. This is evidenced by the number of female juniors in the Full Court and especially by the number of those women who had no speaking part in the appeal. the Bar is notoriously independent.

That independence sometimes stands in the way of obvious reform. barristers need to be given the opportunity to demonstrate their skills.

The demonstration is made to other lawyers, clients and the Court. The less opportunity one is given, the less opportunity there is for promotion through the Bar. The fact that a few remarkable women have “made it” without assistance is not a vindication

of the process; it is an indictment upon it.

I expect that I am among a growing number of male barristers who take the view expressed in this article. However, we are plainly a minority. I expect I will be told this as a consequence of writing this article. C’est la vie!

For what it is worth, my philosophy when recommending briefs is that I: • insist on a junior and, except in unusual cases, a junior from the Bar. • where possible, recommend a female junior. There is no area of practice where there is not a competent female junior.

• accept that there may be a more experienced male junior, but feel vindicated because the future of the Bar is in promoting diversity, and that includes women in senior positions at the Bar. At the time I write this, the Silk selection process in 2020 has just concluded. My hopes that we may have as many as four female Silks was not fully realised, but it went close. That is a good sign, but it could be better. We are on the right road and, as always, speed matters; the difference this time is that it is a sign of growth and not a danger to others. B

Benefit from over 30 years experience in engineering, road and workplace safety, with in-depth incident investigation.

Court tested to the highest levels in all jurisdictions.

• • • •

Accident investigation 3D incident reconstructions Forensic & safety engineering Transport & workplace safety

INSIGHT • DETAIL • CLARITY • RELIABILITY

To discuss your needs call:

0418 884 174

george@georgerechnitzer.com.au www.georgerechnitzer.com.au

March 2021 THE BULLETIN

21

ORAL HISTORIES

A varied career committed to justice LINDY MCNAMARA

F

rom acting as a lawyer for the Rolling Stones when they toured in Adelaide in the early 1970s, to serving on the Supreme Court, through to setting up GBV courts and training judges in Pakistan and Afghanistan, and strengthening women’s resilience to climate change and disasters in Mongolia, Lao PDR and Fiji, there is no question that Robyn Layton has enjoyed a diverse career in the law.

INSPIRING FEMALE LAWYERS While former Supreme Court judge Robyn Layton AO QC doesn’t consider herself a trailblazer for young female lawyers in South Australia, her 50-plus year career demonstrates that anything can be achieved, regardless of gender.

In 2016 when she was voted Australian Woman Lawyer of the Year by her peers, the dynamic Ms Layton admits it was a special moment for her.

‘It’s really amazing that people can find that I might inspire them in some way,” she revealed during an Oral History interview for the Law Society.

“I can think of things in my own life where somebody has said something to me and they had no idea of the impact that has had on my own career and life in various ways.

“I was aware that an unconscious inspiration can happen for people. I thought, ‘Well, if I do that for women, that is just fine by me and I am absolutely grateful to receive that award’.”

The daughter of a social worker father and mother who was a teacher, the young Robyn knew one thing when she left school – she wanted to carve her own path and not follow in their footsteps!

At a careers orientation day she found herself at the Adelaide University’s stand for the Law School and a “spontaneous” decision saw her enrol.

22 THE BULLETIN March 2021

Her childhood Catholic education had instilled her with a social justice conscience and when she arrived at university she quickly joined the South Australian Council for Civil Liberties and “things flowed from there”.

Numerous awards and accolades have been bestowed on Ms Layton over the years, highlighting her life-long commitment to human rights.

From early in her career Ms Layton saw the need for everyone in the community to have access to the court system and one of her first court appearances was a pro bono case.

“I did a lot of pro bono work because

it was during the Vietnam War and because I was interested in civil liberties. I used to act on behalf of people who were charged with demonstration offences. There are quite a few stories behind those cases.

“Also I did pro bono work for Aboriginal people. Before the ALRM (Aboriginal Legal Rights Movement) was set up, there was a group of us that got together and said, if any Aboriginal person is arrested, we are prepared to come and act for them. So that’s where my early pro bono work began.”

Ms Layton said she was fortunate in those early days to have several extraordinary mentors supporting her.

ORAL HISTORIES

“I did my articles of clerkship at Thompson Muirhead Ross & McCarthy and then after I was admitted, I started my first year of law there. My mentor and also my principal was James Henry Muirhead, (later Hon J H Muirhead AC QC) who was an absolutely amazing man, clever and compassionate,” she said.

“Elliott Johnston (later Hon Elliott Johnston QC) also became my mentor and we went into partnership for a number of years.

“Elliott was a wonderful mentor to many young people. I had a coffee with him after I saw him at court and very shortly after that, I got a card saying Happy International Women’s Day and I couldn’t work out who it was from.

“I rang him up and said, somewhat tentatively, ‘Thank you very much’ as I was not certain it was him.

“I then said, ‘By the way, I don’t suppose you are looking for a lawyer’. He said, ‘No, but I am looking for a partner’. I was stunned. I didn’t start off as a partner, but not long after I eventually became a partner in the firm.

“Some other people I worked with in Thomson Muirhead Ross & McCarthy were also my mentors. One of them was John Von Doussa (Hon John von Doussa AO QC).”

In 1978 Ms Layton was appointed as a Judge and Deputy President of the South Australian Industrial Court and Commission, but said it was a difficult decision to accept the offer.

“I was only 32 and I had spoken to two of my mentors - Dame Roma Mitchell and also the Chief Justice Dr John Bray.

Essentially both of them said, ‘What?

Going to the Bench at (your) age? No. Go to the Bar.’ “I had a young two-year-old child at that point. Dame Roma said, ‘If you appear before me you can take time out

and breastfeed your child and then come back in and continue to cross-examine’.

And I thought, ‘I don’t know how that would work!’. In the end I decided to take the judicial job.”

Ms Layton described her relationship with Dame Roma as “mixed”.

“She lived down near where I did so I saw her a lot in her ordinary life. She was an extremely caring person. She knew who my kids were, she would always ask after them.”

“There was a time when I challenged her. I didn’t think I was challenging her but that’s the way she saw it.”

“Dame Roma had produced an important report on rape and extending the definition of rape in various ways but drew the line at rape in marriage. And I asked her a question at a woman lawyers’ event to say, ‘Well, why did you draw the line there?’

“Well, she was so angry with me. She saw me as publicly challenging her. It was very difficult to retrieve the personal relationship for a while after that … but that passed and she was very, very supportive.”

Ms Layton remained as a judge in the Industrial Court for seven years and was then appointed as a Deputy President of the Commonwealth Administrative Appeals Tribunal for five years. She then left and joined the Bar and was appointed a Queen’s Counsel in 1992, only the third woman in South Australia at the time to take silk.

In the early 2000s she undertook a report for the State Government looking at child protection issues in the State.

Known as the Layton Report, it was a whole of Government review covering all of the departments from education, health, the justice system (courts, police as well as legislation), social welfare and the child protection system.

“I made, I think it was, 190 recommendations. And that seems ridiculous in some ways to have so many but I needed to spell out, so far as I could, some of the smaller branches to give some indication of where further work had to be done to have the overall tree framework for child protection.

“The Department handling child protection was very under-resourced and they were doing very difficult work and it wasn’t working well.”

“I also (recommended) a government structure and framework as to how departments could all talk to each other.”

“Some of the things which were done following the Report, (were done) more or less straight away. But some of the big structural recommendations have only happened more recently like the independent Commissioner for Children and also an Assistant Commissioner for Children to be an Aboriginal person (if the Commissioner was not an Aboriginal person). They have only just made those appointments years later.”

In 2005 Ms Layton became only the fourth female Judge appointed to the Supreme Court. In an historic occasion the following year, three female judges – herself, Justice Nyland and Vanstone – sat on the Appeals Court together.

She said they thought, it was “amazing that we are able to do this and what a privilege it is”.

“It should happen more often and it shouldn’t be unique.” It has not happened since To read the full transcript of the 2019 interview and learn more about Ms Layton’s 20-year involvement with the International Labour Organisation Centre for Judicial Education, her thoughts on receiving an AO and being named South Australian of the Year, go to www.lawsocietysa.asn.au B March 2021 THE BULLETIN

23

ACCESS TO JUSTICE

Unrepresented litigants in South Australia: a successful pre-trial framework?

PAUL SIGAR, HONOURS STUDENT, ADELAIDE LAW SCHOOL

T

his paper looks into the problems posed by unrepresented litigants in South Australia, and proposes a pre-trial framework to deal with cases involving at least one unrepresented party.

Unrepresented litigants typically impede the efficiency of courts to operate.1 This paper will argue that the South Australian courts are able to effectively navigate through these problems by setting up a supervised framework to deal with unrepresented litigants, to: (a) ensure early identification of cases involving unrepresented litigants that may affect the efficiency of court proceedings, and (b) allow the courts to conduct review hearings of these cases in stages. This twopronged approach will hopefully alleviate the problems of backlogs and inefficiency.

As will be argued, this can be achieved without sacrificing the important principle of judicial impartiality. The methodology deployed in this research is mainly comparative analysis of other similar common law adversarial jurisdictions, such as Queensland, Alberta, and Hong Kong, with some case studies involving empiricalanalytical data.

INTRODUCTION Unrepresented or self-represented litigants are on the rise in Australia,2 and it is widely recognised as one of the major challenges in the Australian legal system.3 Among the most common reasons for self-representation include the inability to afford legal services and the ineligibility to access legal aid,4 with few exceptional cases of preference of self-representation.5 For the purposes of this paper, the latter will not be discussed, as it exists in the outlier cases and it concerns a completely different range of issues like personal preference and mistrust in the legal professions,6 which are unlikely to change even if the courts were to operate differently.

24 THE BULLETIN March 2021

It is generally recognised that unrepresented litigants are more at risk of losing their case irrespective of the merit of their case.7 This is understandably so because unrepresented litigants often lack the requisite legal knowledge to assert or defend their rights in courts.8 This can be problematic as it effectively denies the fundamental right of access to justice for unrepresented litigants.9 According to the Hon. Paul de Jersey CJ, access to justice is not simply ‘access to courts’;10 it also includes practical accessibility,11 which could be improved with early judicial intervention or supervision of cases in general.12 As will be explored, this approach is particularly helpful for unrepresented litigants.

Meanwhile, the adversarial system is almost exclusively designed for litigants to be represented by competent practitioners. It is described as ‘essentially a professional system… designed around professional people’,13 where parties are expected to positively and effectively present their case. 14 This means parties will compete professionally to prove or disprove certain facts, and they get to control the proceedings in courts with minimal judicial intervention.15 The concept of having judges play minimal role throughout the proceedings is crucial to our judiciary. It preserves judicial impartiality and upholds the notion of natural justice and procedural fairness.16 However, the adversarial system requires that unrepresented litigants essentially step in the shoes of a lawyer.17 This inevitably creates an uneven playing field for inexperienced unrepresented litigants.18 Having outlined the important concepts of access to justice and judicial impartiality in the adversarial system, this paper will explore the possibility of a framework for early court involvement in cases involving at least one unrepresented party, while also striking a balance between these important

concepts so as to afford maximum access to justice without sacrificing other fundamental principles. As will be argued, the need for early court involvement stems from the challenges posed by unrepresented litigants to the court system which impedes efficiency of court proceedings.19

PROBLEMS POSED BY UNREPRESENTED LITIGANTS One major problem posed by unrepresented litigants is that they often require a significant amount of a court’s time and resources.20 This is especially so during pre-trial stages. In Queensland, approximately 53% self-represented litigants sought assistance from legal services at the interlocutory or pre-trial stage.21 Whilst there is insufficient data on South Australia, the figure should reflect a degree of generalisation since the issues faced by unrepresented litigants are typically universal.22 According to anecdotal and empirical data from Queensland, inefficiency of pre-trial proceedings involving one unrepresented party could be attributed to various factors, including litigants being unsure and unaware of the next steps in proceedings, their failure to understand legal concepts, and the unfamiliarity with the court system and the technical requirements of, among other things, the rules of pleading and pre-trial obligations.23 There are also some mistaken expectations from unrepresented litigants of the court’s rules and procedures, such as having a ‘clear map’ of what is going to happen in the proceedings,24 which is often not the case. According to Alberta Law Reform Institute’s (‘ALRI’) report, the ‘complexity in the language and substance of court forms and procedures is often the biggest hurdle’ for self-represented litigants.25 Understandably, navigating through complex rules and procedures

ACCESS TO JUSTICE

without assistance can be frustrating for the unrepresented litigant.26 This phenomenon is not exclusive to litigants. Judges too experience frustration.

One judge claimed that it is “very rare” to see unrepresented litigants representing themselves in a competent manner.27 In an interview with judges from Hong Kong, a judge pointed out that some litigants do not even know what an affidavit is.28 Another judge noted that self-represented litigants are often unable to make submissions based on the rules of evidence.29 One judge described that these litigants sometimes ‘give speeches in the course of giving evidence’.30 Also unsurprisingly, self-represented litigants interrupting proceedings with shouts of “objection!” in the middle of the opposite party’s cross-examination is not unusual.31 Finally, all the eight judges interviewed opined that proceedings involving at least one self-represented party typically take longer.32

Suffice to say, these challenges are similarly present here in South Australia.

The Law Society of South Australia (‘LSSA’) noted that most self-represented cases failed to identify real legal issue and produce the relevant evidence.33 Having encountered these problems, the South Australian courts administration authority has taken steps to increase accessibility of the justice system for unrepresented litigants, by publishing information on the website under the tab ‘represent yourself ’,34 which provides information on, among other things, legal aid and civil claims.35 However, the effectiveness of this in addressing the problems posed by unrepresented litigants has yet to be seen materially. In fact, some information is inadequate. For example, for claims over $100,000, the webpage simply states that ‘it is advisable to seek legal advice’.36 Having said that, it also important to recognise that the court process was not and should not be designed or tailored

for the use of self-representation. ALRI highlights that self-represented litigants ought to be aware that they bear the same responsibilities as professional practitioners,37 such as the need to file a defence within a time period, unless otherwise waived by court. Similarly, as rightly noted by the LSSA, “…the law is made up of legal concepts, such as a cause of action and its elements, and attempts to turn these into something else… are misplaced.”38 However, this is not to say that court processes cannot be simplified or modernised to accommodate selfrepresented litigants. It is one thing to assist a litigant navigate through complex procedures and another to reform the system entirely for the exclusive use of unrepresented litigants. The latter makes professional representation redundant and diminishes professionalism around court proceedings, whereas the former optimises the use of the justice system for all parties involved, elaborated below.

CARRINGTON HOUSE Executive - Diverse - Professional

Serviced Suites ideal for Law professionals A cost effective turnkey solution in a prestigious location, offering significant savings over a traditional office. Furnished suites with high speed internet, and other facilities expected in law chambers. Our charges* include: • All rates and taxes, building insurance • Power, cleaning and maintenance costs • Phone and internet, meeting rooms and boardroom

• Access to mail, fax, photocopying and secretarial services • Reception services and court rounds • 24/7 secure access

Secure, undercover inner city carpark (additional cost)

*Dependent on package.

Virtual Packages start from $110.00 per month (inc GST)

To find out how we can best help your business call us now on (08) 8237 0500 or email wendy@carringtonhouse.com March 2021 THE BULLETIN 25

ACCESS TO JUSTICE

SETTING UP A PRE-TRIAL FRAMEWORK When invited to comment on a draft recommendation on the most effective and efficient way to assist self-represented litigants, the LSSA responded with, “[it] is almost impossible to answer”.39 There is simply no one set formula that provides the best model to deal with self-represented litigants. But it must be stressed that any effective measures must entail ‘practical measures’, instead of mere ‘abstractions’, as noted by the Honourable Paul de Jersey CJ.40 Currently, the Uniform Civil Court Rules (‘UCCR’’) rule 12.1 grants the court wide range of general powers to ‘make any order it considers appropriate in the interests of justice’.41 These include making any order it considers is inconsistent with or in lieu of a provision of the UCCR,42 ordering an amendment of a document,43 and even to give directions about the procedures to be followed.44 These powers are similar to that of the Queensland Uniform Civil Procedure Rules 1999 (Qld).45 However, unlike that of Queensland, the South Australian Supreme Court lacks a guiding framework on the exercise of such powers.

In 2014, the Queensland Supreme Court adopted Practice Direction 10 of 2014,46 which established a Supervised Case List for self-represented litigants.47 This allows the courts to do two things, (a) identify cases involving at least one unrepresented party, by requiring all parties to notify the court if one of them is, or becomes, unrepresented,48 and (b) conduct supervision and review hearings on the case.49 By identifying such cases at an early stage, the court is able to allocate its resources more efficiently from the outset, and facilitate the self-represented litigants to direct their resources towards building a case theory and extracting real legal issues,50 such as through ‘unbundled’ legal assistance51 or from appropriate nonpractitioners.52 This process is theorised to be effective in expediting cases involving self-represented litigants.53 Two judges from Hong Kong recognised its significance and recommended the use of ‘unbundled’ legal assistance as a means to alleviate some of the problems discussed above.54 Following early identification, the court would be able to increase supervision on

26 THE BULLETIN March 2021

these proceedings,55 by conducting review hearings in stages.56 These review hearings require an assigned judge to conduct hearings with both parties as frequently as is needed to assess the progress of the proceedings leading up to trial.57 This allows judges to advise parties to narrow the scope of issues in contention, and make appropriate orders and directions, such as requiring the production of affidavits, as the case progresses.58 Having this court oversight assists the unrepresented litigants to navigate through their pre-trial obligations,59 which is often where litigants needed help the most.60 This ensures inexperienced self-represented litigants are given a fair opportunity to present their case.61 Contrary to what critics thought was a redundant reiteration of the Queensland Uniform Civil Procedure Rules 1999 (Qld), the Supervised Case List actually exists to complement it.62 It was set up for three main purposes, (a) to set up a transparent framework for what was initially a discretionary power, (b) to establish a formal guideline on how to deal with unrepresented litigants, and most importantly, (c) to properly and practically recognise unrepresented litigants’ rights.63 It also retains flexibility for case management.64 When it was first introduced, the Queensland Law Society welcomed its implementation, calling it an “important initiative”.65 Four years later, it would be proven a remarkable invention.66 In the Supreme Court of Queensland’s annual report, self-represented litigants in civil cases had a success rate of 28%, compared to 11.4% in the previous year in appeals.67 Meanwhile, the overall success rate of civil appeals (represented and unrepresented) was at 29.4%.68 The closing gap, and the fact that success rates were almost uniform whether represented or not, indicate that the initiative had contributed to levelling the playing field.

Following the success of the Queensland Supreme Court’s model in dealing with self-represented litigants, this paper proposes that similar measure be set up in the Supreme Court of South Australia. The LSSA has also previously agreed to some of the recommended practices of Practice Direction 10, such as the early exchange of documents.69

Establishing this Supervised Case List framework in South Australian jurisdiction would facilitate early judicial involvement in cases involving unrepresented litigants, and allow the court to supervise and review the progress of the case as and when needed.

These review hearings would assist the court in exercising its discretion to make appropriate orders under r 12.1(2) of the UCCR. Similar to the operation of the Supervised Case List of the Queensland Supreme Court, this framework should be complementary to the UCCR. This ensures transparency and eliminates arbitrary exercise of broad discretionary powers enshrined in r 12.1 of the UCCR.

JUDICIAL NEUTRALITY IN THE ADVERSARIAL SYSTEM It must be acknowledged that having a supervising judge may raise questions on judicial neutrality, and may even create appearance of bias towards the unrepresented litigant. In this instance, the LSSA recognises that there is a difference between simplifying a process and providing advisory service.70 Unlike the latter, the former does not challenge the notion of judicial neutrality nor undermine the adversarial system. On the contrary, it maximises the efficient use of the legal system. That said, the implementation of a court supervision probably lies somewhere between the two. As such, it warrants judicious implementation.

In order to ensure judicial neutrality throughout the proceedings, it is imperative that the principle of judicial impartiality be emphasised under the proposed framework. For example, the Queensland Practice Direction 10 expressly states that the Supreme Court was to ‘remain impartial’.71 To further enhance judicial neutrality, the supervising judge’s role must be clearly defined and outlined.

For instance, the Practice Direction 10 clearly outlines that the supervising judge only has the power to hear updates and make directions and orders they deem appropriate.72 It does not empower the judge to take on an advisory role nor to actively assist the self-represented party. If the role of the judges is clearly defined and outlined, the supervision of cases is unlikely to undermine the adversarial system. As ALRI noted, as long as the rules apply even-handedly

ACCESS TO JUSTICE

without affording special concessions to the unrepresented party by virtue of their inexperience, judicial impartiality is preserved.73 This is because ultimately, it is still the parties that have to present their case, with limited to no substantive assistance from the court. The court supervision merely bridges the gap between inexperience and the need to comply with complex procedures. It stops short of providing direct intervention or being inquisitorial.

CONCLUSION Having analysed the different problems posed by unrepresented litigants in various jurisdictions, Queensland’s model of a Supervised Case List has proven to be a successful and evidence-based approach in addressing these problems. Setting up a similar framework in the Supreme Court of South Australia would be instrumental in advancing the rights of unrepresented litigants in this State. As discussed above, these measures do adequately maintain the effectiveness of the adversarial process.

Further, it is unlikely to undermine judicial neutrality as judges would continue to play passive and minimal role throughout the proceedings under this framework.

The proposed framework is the outcome of balancing the various fundamental principles of our judiciary.

At the end of the day, it must be recognised, rather unfortunately, that there is only so much the court could do to assist an unrepresented litigant. In the words of the Albertan Court of Appeal, “[unrepresented litigants] are not entitled to command disproportionate amounts of court resources to remedy their inability or unwillingness to retain counsel. If they seek free lunch, they should not complain of the size of the helpings”.74 B

Endnotes 1 See generally Margaret Castles, ‘Self represented litigants: A major 21st century challenge’ (2015) 37(9) Bulletin of the Law Society of South Australia 14.

2 Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Legal Aid and Access to Justice (2004) 182 (‘Inquiry into Legal Aid and Access to Justice’).

3 Castles, above n 1, 14.

4

Inquiry into Legal Aid and Access to Justice, above n 2, 187.

5 Ibid 185.

6 Castles, above n 1.

7 Raquel Dos Santos, ‘Self represented litigants in the Australian civil justice system 10 years of the Self Representation Service in Australia’ (Paper presented at the National Access to Justice and Pro Bono Conference, Adelaide, 23 March 2017) 5.

8 Ibid.

9 Honourable Chief Justice Paul de Jersey AC, “Keynote Address” (Speech delivered at the National Access to Justice and Pro Bono Conference2010, Brisbane, 27 August 2010) <https://archive.sclqld.org.au/judgepub/2010/ dj270810.pdf> 4 (‘Keynote Address’).

10 Ibid 2 11 Ibid 3.

12 Ibid 3.

13 Alberta Law Reform Institute, ‘Alberta Rules of Court Project: Self-Represented Litigants’ (2005) 3 (‘Alberta Rules of Court Project’).

14 Santos, above n 7, 3.

15 Alison Creighton, ‘An adversarial system: a constitutional requirement?’ (1999) 74 Australian Law Reform Commission Reform Journal 65.

16 Ibid.

17 See generally Alberta Rules of Court Project, above n 13.

18 See, eg Iain McCowie, ‘Self-represented parties and court rules in the Queensland courts’ (2014) 24 Journal of Judicial Administration 18. See also Rosemary Hunter et al, The Changing Face of Litigation: Unrepresented Litigants in the Family Court of Australia (Law and Justice Foundation of New South Wales, 2002).

19 See, eg McCowie, above n 18.

20 Camille Cameron, Elsa Kelly and Eric Wing Hong Chui, ‘Judges Perspectives on the Impact of Selfrepresentation in Hong Kong Civil Cases’ (2006) 8(3) Australian Journal of Asian Law 261, 262. See also, McCowie, above n 18.

21 McCowie, above n 18, 19.

22 See Liz Richardson, Genevieve Grant and Janina Boughey, The Impacts of Self-Represented Litigants on Civil and Administrative Justice: Environmental Scan of Research, Policy and Practice (The Australasian Institute of Judicial Administration Incorporated, 2018) 8.

23 McCowie, above n 18, 21.

24 Ibid.

25 Alberta Rules of Court Project, above n 13, 57 citing the Canadian Bar Association, Task Force on Systems of Civil Justice, Report of the Task Force on Systems of Civil Justice (Ottawa: Canadian Bar Association, 1996).

26 McCowie, above n 18, 18.

27 Cameron, Kelly and Chui, above n 20, 266.

28 Ibid 268.

29 Ibid.

30 Ibid.

31 Matthew Yeung and Janny Leung, ‘Removing Linguistic Barriers to Justice: A Study of Official Reference Texts for Unrepresented Litigants in Hong Kong’ (2015) 28 International Journal for the Semiotics of Law 135, 136.

32 Cameron, Kelly and Chui, above n 20, 271.

33 Law Society of South Australia, Submission to the Productivity Commission’s Draft Report in relation to Access to Justice Arrangements, 21 May 2014, 72 (‘Submission to the Productivity Commission’s Draft Report’).

34 Court Administration Authority of South Australia, Represent Yourself <http://www.courts. sa.gov.au/RepresentYourself/Pages/default. aspx>.

35 Ibid.

36 Court Administration Authority of South Australia, Over $100,000 <http://www.courts. sa.gov.au/RepresentYourself/CivilClaims/ LargeClaims/Pages/default.aspx>.

37 Alberta Rules of Court Project, above n 13, 57.

38 Submission to the Productivity Commission’s Draft Report, above n 33, 74.

39 Ibid 72.

40 Keynote Address, above n 9, 4.

41 Uniform Civil Court Rules 2020 (SA) r 12.1(1) (‘UCCR’).

42 Ibid r 12.1(2)(b).

43 Ibid r 12.1(2)(l).

44 Ibid r 12.1(3).

45 Queensland Uniform Civil Procedure Rules 1999 (Qld) r 5, 366, 658.

46 Supreme Court of Queensland, Practice Direction 10 of 2014 – Supervised Case List Involving Self Represented Parties: Civil Jurisdiction Brisbane, 19 February 2014 (‘Practice Direction 10’).

47 Ibid.

48 Practice Direction 10, 1-3. See also McCowie, above n 18, 26.

49 Ibid 3.

50 McCowie above n 18, 28.

51 Ibid.

52 Productivity Commission (Cth), Access to Justice Arrangements, Inquiry Report No 72 (2014) 17.

53 James Goh, ‘The self-represented litigants’ challenge: A case study’ (2018) 43(1) Alternative Law Journal 48, 49.

54 Cameron, Kelly and Chui, above n 20, 279.

55 McCowie, above n 18, 27-8.

56 Practice Direction 10, 3.

57 Ibid.

58 Ibid 3-4.

59 McCowie, above n 18, 27.

60 Ibid 19.

61 Ibid 26.

62 Ibid 27.

63 Ibid.

64 Practice Direction 10, 3.

65 McCowie, above n 18, 29.

66 Supreme Court of Queensland (Qld), Annual Report 2018-2019, (2019) 16.

67 Ibid.

68 Ibid.

69 Submission to the Productivity Commission’s Draft Report, above n 33, 57.

70 Ibid 74.

71 Practice Direction 10, 2.

72 Ibid 3-4.

73 Alberta Rules of Court Project, above n 13, 66.

74 Broda v Broda (2001) 286 AR 120 [4].

March 2021 THE BULLETIN

27

WORKPLACE CULTURE

HOW TO DEAL WITH THE ‘QUERULANT CLIENT’ KALYNA BECKER

Kalyna is one of a team of 30 students working at the Adelaide Law School’s free legal advice services as part of her final year law studies. These services provide important justice access avenues for those many people in our community who don’t qualify for legal aid and can’t afford a lawyer. Perhaps not surprisingly, some of those clients fall into the querulant category, and pose some interesting ethical and professional challenges for our clinics and our students, just as they do for all practitioners. This article looks at the issue of the querulant litigant from the lens of managing both the client, and their impact on the legal system.

P

rofessional ethics and service obligations require that all clients are treated with respect, and as student advisors we actively listen and give legal consideration to their matters. But how do we manage these requirements when dealing with the chronic complainer, “querulant” client?

My interest in this topic was sparked while assisting a client who made a sweeping assertion that she had been “wronged” with little to no basis for the claim. The client had already visited several public agencies and offices to raise this issue, and after being told that the complaint was unsubstantiated on multiple occasions, she visited on of Adelaide Law School’s free legal advice services.

WHO IS A QUERULENT? In law, a ‘querulent’ is a person who obsessively feels wronged. As a result, querulents pursue recourse by contacting public agencies and seeking legal advice in relation to petty issues. Australian

28 THE BULLETIN March 2021

psychiatrists, Paul Mullen and Grant Lester have described querulous behaviour as a: …totally disproportionate investment of time and resources in grievances that grow steadily from the mundane to the grandiose…

These clients are characterised by: …the unusually persistent pursuit of a personal grievance in a manner seriously damaging to the individual’s economic, social, and personal interests, and disruptive to the functioning of the courts and/or other agencies attempting to resolve the claims.1 The client that I was assisting had a grievance with a utilities provider, and believed it was her “duty” to “seek justice” because she considered that she was not the only person being “robbed”. This logic is consistent with the literature which suggests that querulents often assert that their conduct is in the public interest rather than their own.2 From my experience, there are two

key reasons why querulants frame their grievances as being in the public interest: 1. To justify the time, effort and personal sacrifice that the pursuit of their complaint requires.

2. To add legitimacy to their complaint.

According to literature on the topic the effort that querulents dedicate to their complaints is usually disproportionate to the merits of the complaint.

In the case of my client, she had already raised the issue with several agencies and public figures who declined to entertain the matter. In framing the issue as being in the public interest, I believe that the client was trying to augment her appeal for our help.

While I am cognisant of the danger in pathologising querulants, I do also think that their ‘public good’ excuse is symptomatic of the psychiatric diagnosis of querulous paranoia which has been characterised by . …a relentless, persistent and single minded pursuit of justice for real or imaginary wrongs through complaint, claims, petitioning of authorities, litigation and sometimes threats and actual violence to self or others. It takes place over years. At the core is an incorrigible belief by the person that they have been victimised and that this is a typical example of the way they have been treated by the world.3 Another common characteristic of this condition is that querulants make an issue grander than it is by linking it to “natural justice” and rights-based legislation that is not necessarily relevant.

In their obsession they elevate their grievance to a point where it is no longer a legal issue but breach of human rights

WORKPLACE CULTURE

or some other fundamental principle. As a consequence, they may often become indignant.

Unsurprisingly, querulants often end up in the court system. These individuals can pose a distinct challenge to the rule of law affecting the proper operation of the courts. Vexatious or unreasonable complainants also have the potential to absorb an enormous amount of public resources, time and money. 4 Querulants who abuse the process of the court and repeatedly purse proceedings without any reasonable grounds can be declared vexatious litigants. This declaration ultimately bans them from instituting new legal proceedings without leave of the Court.

While this legal remedy protects the Court, it does nothing for obsessive querulants whose pursuit of perceived injustices may continue to dominate and torment their existence.

Querulant clients should not however be dismissed as a legal nuisance.

Individuals with querulant traits pose an equally great risk to themselves. Lester and Mullen have described querulant behaviour as a ‘downward spiral’ that often ends in unemployment, bankruptcy, divorce, and possibly domestic violence and suicide.5 A confronting example of this spiral was posited by the NSW Ombudsman6 who recounted the behaviour of ‘Mr M’ who appeared to follow the ‘downward spiral’ referred to by Mullen and Lester.7 This man’s drive for vindication resulted in unemployment, marriage breakdown, severe financial trauma and allegations of domestic violence. His obsessive behaviour not only prevented him from achieving the outcomes he was seeking

but contributed to a loss of perspective about his substantive issue. Tragically, the man ended up taking his own life. This case is a bleak example of how individuals with querulant tendencies can suffer tragic outcomes.

While there is no cure or remedy for querulant paranoia, there are some helpful guides for law students or practitioners dealing with querulant clients: • Be aware of the signs of querulant behaviour: ○ This is an important step in being able to manage their complaints effectively and to ensure relevant support. ○ Dr Grant Lester suggests to look out for the ‘5 V’s’: • victimised; • voluminous; • vague communications; • variable demands; and • seeks vindication.8 • Do not act prematurely: ○ Just because you detect signs of querulant behaviour, it does not mean that the client does not have a legitimate claim. Listen and proceed as you would with any other client.

• Manage expectations: ○ Unmet expectations are considered a primary trigger for querulants. By clearly highlighting the limitations of the service, the client will hopefully be able to set more reasonable expectations of you and the service.

• Be respectful: ○ The complaints presented by the querulant can often appear outrageous or incomprehensible. It is paramount that you refrain from

appearing judgmental or dismissive.

This is not only for the benefit of the client, but also for your personal safety.

Querulant clients can be frustrating, problematic and a drain on time and resources. Before dismissing the client as a nuisance, it is important to remain calm and respectful while making a conscious effort to understand the root of the behaviour. My experience working in a free legal clinic made me realise that querulent clients are often deeply troubled; it is therefore critical to remain respectful but to also clearly set out the limitations of the service to not facilitate any grand expectations for the client. B

Endnotes 1 Grant Lester, Paul Mullen, ‘Unusually Persistent Complainants’ (2004) British Journal of Psychiatry.

2 Ibid.

3 Grant Lester & Simon Smith ‘Inventor, Entrepreneur, Rascal, Crank or Querulent?: Australia’s Vexatious Litigant Sanction 75 Years On’, (2006) Psychiatry, Psychology and Law, 13.

4 Justice J S Douglas, ‘Access to justice: problems of self-representation: the querulant litigant’ [Paper presented at the Rule of Law Contemporary Issues Conference 2012, Brisbane, 20 April 2012].

5 Grant Lester, Paul Mullen, ‘Unusually Persistent Complainants’, (2004) British Journal of Psychiatry 6 NSW Ombudsman, ‘Managing unreasonable complainant conduct’ (2012) <https:// www.ombudsman.gov.au/__data/assets/ pdf_file/0022/35617/GL_UnreasonableComplainant-Conduct-Manual-2012_LR.pdf> 7 Grant Lester, Paul Mullen, ‘Unusually Persistent Complainants’, (2004) British Journal of Psychiatry.

8 Grant Lester, ‘Managing Unreasonable Complainant Behaviour’ (2017) Straight Up 27.

March 2021 THE BULLETIN

29

SUPER

Let’s close the super gap ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER

I

t’s 2021 and Australia’s gender pay gap is stuck at around 15 per cent.1 despite laws promoting better gender equality and evolving attitudes, women are still often paid less than men.

The super gap is even greater than the pay gap. According to Industry Super Australia, on average, women retire with around half2 as much super as men.

In light of the theme for this year’s International Women’s Day (8 March 2021) being ‘Choose to Challenge’, it is timely to examine the super gap and challenge the factors that contribute to this inequity.

Why do women accumulate less super?

Structural and cultural biases and workplace barriers, in addition to the interrelated family, work and social factors, impact women’s ability to earn and accrue super for retirement. Some key factors include: • Women earn less than men This a significant contributor to the gender super gap. On average, men take home $25,6793 a year more than women. There are many contributing factors, including the gender pay gap.

This impact compounds over a lifetime.

• Unpaid work Men are far less likely to take time out of the workforce for unpaid caring responsibilities - 95 per cent of primary carer’s leave is taken by mothers. Conversely, one in 20 fathers take such leave.4 Parenthood aside, women spend 64 per cent of their average working hours each week on unpaid work compared to 36 per cent for men.5 • Part-time roles Women are more likely than men to work part-time or casually. Three in four part-time employees are female.6

30 THE BULLETIN March 2021

• Return to workforce barriers Women often face barriers to returning to work after taking a time out as carers.7 Whether due to limited opportunities or necessity, they may accept employment in roles below their skill level to balance caring and earning responsibilities.

Although compulsory superannuation has provided women with greater access to retirement savings, the current framework doesn’t address some particular challenges women face in the workplace. Some prominent examples are: • The $450 monthly earning threshold An employer is not required to pay super to an employee who earns less than $450 a month, is under 18, or domestic service employees working 30 hours or less per week.

Women make up the majority of the part-time and casual workforce; many also have multiple jobs, meaning they miss out on super payments from more than one employer.

• No Superannuation on paid parental leave Unlike other leave types, the government paid parental leave scheme does not attract the superannuation guarantee. Many women miss out on crucial years of superannuation accumulation while supporting family.

PAST EXCLUSION FROM SUPERANNUATION IS STILL IMPACTING THE RETIREMENT SAVINGS OF WOMEN Historically, super was largely available to public servants or senior management, but not everyone.

In 1974, less than 15 per cent8 of working women had super. In 1985, 24 per cent9 of working women had super.

It wasn’t until 1992, that compulsory super for everyone was introduced.

Over the years, there have been both direct and indirect discrimination against women in relation to retirement savings, exposing women, especially older generations, to reduced financial security.

While legislation making super compulsory for all was a great step forward, it is not until the Gen X (born 1965-1980) and Millennial generations (born 1981-1996) retire, that women will have been paid super for their entire career.

COMPOUNDING INEQUALITY Compound interest makes super a powerful tool when saving up for life in retirement as interest is paid on both the principal and interest from past years: a bit like the snowball effect – over time you see exponential growth.

Using MoneySmart’s compound interest calculator, as an example: If you were to deposit $20,000 back in 1985 (36 years ago – when super became available under Government awards10ix) with compounding interest, this deposit would be worth $115,836 today.

If you were to deposit $20,000 in 1992 (when super became compulsory for all), the $20,000 would be worth $82,323.

For the same principal amount of $20,000, an additional seven years of investment leads to a 40 per cent difference.11 Together with the favourable tax treatment afforded to super, compounding interest is one of the main reasons investing through your super for retirement is so powerful, and one of the many reasons why the super gap is so much bigger than the wage gap.

SUPER

Working towards financial security for you and your family isn’t just about putting away money. There are other levers you can pull to optimise your super.

Understanding fees, account consolidation, making an investment choice, sorting your insurances and managing your beneficiaries, are some options.

legalsuper works closely with organisations who help us influence better outcomes for women. legalsuper is a member of Women In Super, a not-for-profit organisation.

Through Women In Super, we advocate for a super system void of gender-based inequality, and this includes advocacy for topics such as: • removal of the $450 monthly earnings threshold; • superannuation and paid parental leave; • workplace gender equality; and • women on superannuation fund boards.

We also work with the Australian Council of Superannuation Investors (ACSI), which provides a collective voice and influence on Environmental, Social, and Governance (ESG) issues, including promoting gender diversity on the boards of ASX listed companies.

In addition, we have our own internal diversity policy to help us combat bias against women.

FINANCIAL LITERACY

CHALLENGING THE SUPER GAP

legalsuper is focused on empowering our members through education, enabling both women and men to better leverage super and have confidence in financial security.

To make the most of contributions, and optimise your super account, legalsuper is here to help. We have a national client service team able to meet with you 1-to-1 and offer tailored support.

legalsuper is here to empower all members to make choices leading to better outcomes in retirement. For women, we are working to close the super gap and increase the long-term financial security of our members, so that generations of women which follow us can achieve the same.

CONTRIBUTING SOONER RATHER THAN LATER Compounding interest means the longer your money is invested – the more interest you make. Boosting your super, or your spouse’s super, is a way to help close the super gap.

For information about salary sacrifice, voluntary contributions, spouse contributions, and contribution splitting, visit our website: legalsuper.com.au/ growing-your-super.

OTHER LEVERS TO PULL

OUR ROLE legalsuper has a significant role to play in closing the super gap. Historically, legislation and policymaking has had the biggest impacts on women’s financial security in retirement.

We’re here to help If you’d like to meet with us to discuss your super, our team is available for 1-to-1 consultations, offering tailored information and support. Contact us via mail@legalsuper.com.au or on 1800 060 312, 8am-8pm (AEST), Monday to Friday to book an appointment.

Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879, AFSL 246315. This is

general information and does not take into account your personal needs. Past performance is not a guide to future performance. B

Endnotes 1 https://www.wgea.gov.au/publications/ australias-gender-pay-gap-statistics 2 2018 https://www.industrysuper.com/media/ closing-the-gender-pay-gap-wont-close-the-supergap-new-analysis-of-abs-data-reveals/ 3 The Workplace Gender Equality Agency (WGEA) calculates the national gender pay gap using Australian Bureau of Statistics’ Full-Time Adult Average Weekly Ordinary Time Earnings data from the Average Weekly Earnings survey (cat. no. 6302.0).

4 https://aifs.gov.au/aifs-conference/fathers-andparental-leave 5 WGEA (2016) Unpaid care work and the labour market (https://www.wgea.gov.au/publications/ unpaid-care-work-and-the-labour-market) 6 WGEA (2019), Agency reporting data (https:// data.wgea.gov.au/industries/1#gender_ comp_ content) 7 https://humanrights.gov.au/our-work/3-themeone-economic-independence-women-listeningtour-report#heading3_5 8 Parliament of Australia, Chronology of superannuation and retirement income in Australia https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_ Library/pubs/BN/0910/ChronSuperannuation 9 Parliament of Australia, Economic Security for Women in Retirement, Report Chapter 2 https:// www.aph.gov.au/Parliamentary_Business/ Committees/Senate/Economics/Economic_ security_for_women_in_retirement/Report/c02 10 Calculated on 12/02/21 https://moneysmart. gov.au/budgeting/compound-interest-calculator, using default assumptions – a 5% annual interest rate, shown in future dollars with no adjustment for inflation. Past performance is not a guide to future performance.

11 Andrew Proebstl is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on 03 9602 0101 or via aproebstl@legalsuper.com.au.

March 2021 THE BULLETIN

31

TAX FILES

Is a home residential?

PAUL TANTI, PARTNER, THOMSON GEER

U

nder section 71DC of the Stamp Duties Act, no stamp duty is payable on transactions involving what is commonly referred to as ‘commercial land’. Technically, no duty is payable on ‘Qualifying Land’.

Qualifying Land is land that is not used for residential or primary production purposes.

Issues constantly arise regarding land which does not fit neatly into the ‘used for residential or primary production’ categories? One such issue involves land which is used to provide accommodation for people with various forms of physical or mental disability or whose circumstances requires them to reside in purpose-built accommodation. In this article, such facilities are referred to as ‘residential facilities’.

At one extreme a residential facility would include a prison. On one view, it provides accommodation (short, medium or long term) for people who are required to reside there. Even though it is where people reside, it is generally accepted that a prison would constitute an institution, rather than a residence, and therefore the transfer of a prison would constitute the transfer of Qualifying Land.

Residential facilities are becoming more common. Such facilities are often located in the general community rather than in isolated, old fashioned, large institutions (such as mental hospitals or homes for physically or mentally disabled).

Such facilities can be small, 3-4 residents, which are specially designed to accommodate the residents’ requirements.

For example, ramps rather stairs, larger

32 THE BULLETIN March 2021

doorways to accommodate beds and wheelchairs, supports in bathrooms and walkways and the provision of 24/7 live-in carers. Commonly, personal management services are also provided. These may include arranging travel to and from doctor’s appointments, hairdressers and work, assisting with arranging personal finances and a range of other requirements depending on the resident’s needs.

Other residential facilities can be much larger. These large facilities vary. Resident’s rooms may be just a bedroom or may include a private bathroom and a separate kitchen. Often there are large common areas which provide kitchen and recreation areas. A range of personal services are also provided. Such facilities are often operated by a profit-making business.

Questions arise as to which, if any, of such properties, would be exempt from stamp duty on the basis that they are not used for residential purposes and therefore, are Qualifying Land.

Section 71DC refers to the use of land for residential or primary production purposes. However, the section does not refer to which entity’s use is relevant.

Depending on the circumstances, the relevant use could be that of the owner of the land, the lessee of the land, the operator of the business conducted from the land and the resident themselves.

Arguably, the resident uses the facility for residential purposes but the others use it for a profit making or altruistic purpose.

If there is a distinction to be drawn between a smaller 3-4 person specially

designed house compared to a larger 50+ room facility, what are the relevant factors to be taken into account if one is found to be used for residential purposes and one held to be Qualifying Land? Is it the number of residents, the size of the facility, the level of services provided or a combination of these factors?

RevenueSA has released Information Circular 103 which provides some assistance. If the land on which the residential facility is situated comes within certain Land Use Codes (LUC), it will be exempt from duty.

However, the more common circumstances are that residential facilities are situated on land which allows both residential and non-residential use and must be submitted to the Commissioner for assessment.

It is understood that RevenueSA’s current view is that it is the use by the resident which is the determining factor and therefore, such facilities would be held to be used for residential purposes and therefore subject to stamp duty.

Some of these facilities may be subject to the Supported Residential Facilities Act 1992 (SA). Query whether this would be a determining factor in deciding whether the land was being used for residential purposes.

It is understood these issues are being considered and may result in the Supreme Court considering the matter. Hopefully this will provide some clarity on what type of facilities will constitute Qualifying Land and what the relevant factors are. B

WELLBEING & RESILIENCE

Raising the bar for respectful behaviour WELLBEING & RESILIENCE COMMITTEE

I

t is well understood that bullying and harassment is prevalent in the legal profession. In a survey conducted by Lawyers Weekly, one in three respondents stated that law firm partners are particularly prone to bullying junior staff.1 More than two thirds stated that they had witnessed bullying at their firm.

Several surveys and inquiries have revealed unacceptable bullying and harassment behaviour by lawyers and judges.

Victorian Supreme Court, Justice Anne Ferguson, responding to a Victorian Bar Association survey into judicial bullying.2 said courts were no different to other workplaces and “should be safe and respectful”. The same obviously goes for law practices.

Not only is bullying and harassment completely unacceptable, but it is specifically prohibited in the Australian Solicitors’ Conduct Rules.

THE COST OF BULLYING AND HARASSMENT The impacts on the individual can be severe, which ripples out to impact the profession. Everyone is affected by bullying and harassment.

More than half of bullied respondents have left, or are considering leaving their workplace. One in seven bullied respondents have left, or are considering leaving, the profession altogether.3 Beyond Blue have conducted extensive research into bullying and harassment in Australian workplaces. They found that the victims have greater risk of both physical health problems (such as headaches, obesity, stomach aches and chest pains) and mental health problems (such as depression, anxiety, chronic stress and thoughts about suicide).4 Victims reported feeling exhausted, afraid, sad, angry, unmotivated, upset and isolated. Many have symptoms of Post-Traumatic Stress Disorder. One study concluded that 10-20% of employees who had experienced bullying either contracted a serious illness or committed suicide.

There can also be somewhat of a vicious cycle at work too – victims of bullying may engage in health compromising behaviours as a way of coping with the

stress and trauma of what has happened.

This might mean increased use of alcohol and other drugs or perhaps withdrawal from colleagues, friends and activities the person once enjoyed. It would be surprising if the victim’s work performance did not suffer which, somewhat predictably, may then lead to further bullying and harassment.

They might manage the situation by cutting back their work hours or changing jobs, potentially to their own financial detriment, and this may produce a range of other stressors. Obviously, these experiences can flow into negative impacts on family and other parts of life.

• Law Care – free and confidential sessions • Contact Ms Deslie Billich at the Office of the Legal Profession Conduct Commissioner for an informal, confidential (or anonymous) enquiry (08 8456 8870 or bdh@lpcc.sa.gov.au) • Contact Mensline by phone (1300 78 99 78), chat or video call • Suicide Call Back Service by phone (1300 659 467), chat or video call • For advice and information, contact Safe Work SA or the Fair Work Commission • Resources on the Law Society website.

SPEAK UP

BE PART OF THE CHANGE

If you have experienced or witnessed bullying behaviour or harassment in your workplace, there are a range of reactions you might have had and, as you can see from the studies cited above, these reactions are all normal.

If you have current or past experiences of bullying and/or harassment, managing and addressing your wellbeing is key to your management strategy. Ideally, you might be able to address your situation with the support of your manager, HR Department, or Health & Safety Representative. Of course, there can be many factors which prevent people from reporting these experiences within their workplace. But even if you decide not to raise it internally, there are still lots of support options available.

WHERE TO GET HELP

The 2016 Australian of the Year, Lieutenant General David Morrison once said: “The standard you walk past, is the standard you accept”.

It is incumbent on all of us, as members of this profession, to look out for each other, even when doing so is uncomfortable.

The Wellbeing and Resilience Committee is committed to creating a community of support in the South Australian legal sector, through education, initiatives and support. There are no innocent bystanders when it comes to bullying and harassment. We each have choices to call out bad behaviour and to lead by example. With each voice that is heard, whether it be a victim or a bystander, we can overcome the wrongs of the past and set higher standards of behaviour for our current and future selves.

If you are dealing with mental health issues as a result of being mistreated at work, or for any others issues, there are a range of support services: • Refer to the Heads Up website – a joint initiative of Beyond Blue and the Mentally Healthy Workplace Alliance • Access a mental health care plan through your GP to receive subsidised sessions with a psychologist • Contact Beyond Blue by phone (1300 22 4636), online chat, email or online forum • Employee Assistance Program at your workplace (if you have one)

Endnotes 1 ‘Bullying ‘pandemic’ in law firms’, Lawyers Weekly (4 March 2013), https://www. lawyersweekly.com.au/news/12295-bullyingpandemic-in-law-firms.

2 Freya Michie, ‘Almost Two Thirds of Victoria’s Barristers Say They’re Bullied in the Courtroom’, ABC News (Sydney, 18 October 2018), https://www.abc.net.au/news/2018-10-18/ barristers-complain-of-bullying-judges-andmagistrates/10393470.

3 Us Too? Bullying and Sexual Harassment in the Legal Profession (May 2019), International Bar Association 4 https://www.headsup.org.au/healthyworkplaces/workplace-bullying

March 2021 THE BULLETIN

33

EVENTS

Profession welcomes new legal year

A

lmost 200 people attended the Law Society’s Happy New Legal Year event at Adelaide Oval, in what was the first event of this scale the Society had held since the pandemic.

Justice Tim Stanley declared the legal year open with an introductory speech in which he urged the profession to think innovatively about how to increase access to justice in the community.

President Rebecca Sandford briefly outlined her agenda for the year, which included increasing wellbeing, resilience and mental health support for the profession, utilising technology to improve the delivery of legal services, developing strategies to increase diversity, transparency and accountability in the profession, and strengthening the culture in legal workplaces. B

Josh Davies (left), Andrea Michaels MP, and Lisa Christo

Jacinta Zheng (left), Polina Asmalovskaya and Ren Lee

Paul Sigar (left) and Christian Lysandrou

Karen Stanley (left), Sarah Vinall and Thea Birss

Alysia Panagakos (left), Bev Clark, Madeline Porter, Erica Panagakos, and Olivia Lombardo

Isabella Trigatti (left) Dimitria Tolis, Kimberley Olsen and Panayiota Tolis

Jacinta Robinson (left), Tahnee Virgin and Ronald Densley

Lochlan Reef MacNicol (left), Luke Edwards and Christina Lien

34 THE BULLETIN March 2021

Justice Tim Stanley and Law Society President Rebecca Sandford

Doja El Banna (left) and Rosa Nesci

RISK WATCH

Commercial Leasing Risk Management Resources for SA Insured Practitioners GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

A

s lawyers, we know that details are important. We know that clarity of expression and precision in execution can make a world of difference. We also know that managing a file well involves managing clients well and taking care of the details.

In the commercial leasing area, claims against practitioners are consistently high, both in number and in value. And it can all come down to small details like, for example, who is responsible for reminding the client about renewal; does your current client letter make it their responsibility, not yours - or is it silent on the point? Simple issues such as not being clear as to whose responsibility it is to renew have led to substantial claims against practitioners in recent years.

To assist practitioners in this regard, the Society has recently launched a further document package for practitioners insured with the SA Professional Indemnity Insurance Scheme relating to Commercial Leasing Transactions. This new package is in addition to the Wills & Estates, Family Law (Financial Agreements), Sale and Purchase of Businesses and Cyber Security document packages already available.

The new document package has again been licensed from Lexon in Queensland and reviewed and adapted for South Australian law and practice by senior South Australian practitioners very experienced in the relevant areas.

The Commercial Leasing pack contains the following documents: Leasing • Checklist – Leasing – Acting for the Landlord • Checklist – Leasing – Acting for the Tenant • First Letter – Acting for Landlord – Non-retail Lease • First Letter – Acting for Tenant – Nonretail Lease • Final Letter – Acting for Landlord – Non-retail Lease • Final Letter – Acting for Tenant – Nonretail Lease Lease Assignment • Letter to Client – Assignment of Lease Letter (including retail leases)

• Letter to Landlord – Assignment of Lease Letter (including retail leases) • Letter to Tenant – Assignment of Lease Letter (including retail leases) Lease Disputes • Letter to Tenant – Breach of Lease and Disputes Letter (including Retail Leases) • Letter to Landlord – Breach of Lease and Disputes Letter (including Retail Leases) • Form – Section 10 Notice • Letter – Instruction to Bailiff for Distraint and Re-Entry and Termination • Form – Warrant to Distrain • Form – Inventory • Form – Notice of Re-Entry and Termination • Letter of Demand – Tenant • Letter of Demand – Guarantor • Checklist – Leasing – Dispute – Acting for Landlord • Checklist – Leasing – Litigation – Settlement Lease Renewal • Letter to Client – Tenant – Renewal of Lease Letter (Including Retail Shop Lease) – COVID-19 USE ONLY • Letter to Client – Landlord – Renewal of Lease Letter (Including Retail Shop Lease) – COVID-19 USE ONLY Leasing—COVID-19 Additional Documents • Practice Note - COVID-19 Pandemic Leasing Considerations and File Note – Landlord • Practice Note - COVID-19 Pandemic Leasing Considerations and File Note – Tenant • Letter to Client - COVID-19 Pandemic Leasing Letter to Client – Sign off letter when negotiating and documenting relief under lease Leasing Checklists • Checklist – Leasing – Acting for the Landlord • Checklist – Leasing – Acting for the Tenant • Checklist – Leasing – Commercial and Industrial Leases • Checklist – Leasing – Retail Shop Leases

• Checklist – Leasing – Dispute – Acting for Landlord • Checklist – Leasing – Litigation – Settlement These documents contain comprehensive guidance as to relevant issues to consider and, although no system is foolproof, should ensure that nothing is missed and clients are kept informed throughout the course of Commercial Leasing transactions. Each client letter can be adapted to suit your style and includes prompts to insert information. The documents contain references to further resources and other relevant materials in the packages. These are more than templates; they have been crafted to address the practice risks in this area.

Access to the Commercial Leasing document packages is available only to practitioners insured with the SA PII Scheme (i.e. through Law Claims) at https://www.lawsocietysa.asn.au/ Public/Publications/Commercial_Law_ Package/Leasing/leasing_landing.aspx (requires login) Greater attention to risk management by practitioners acting in these higher risk areas will reduce claims—both in terms of the number of such claims and, importantly, the size of those claims—so that the overall cost of the professional indemnity insurance can be kept in check.

If you have any queries or suggestions about these document packages or about Risk Management generally, please contact Grant Feary, Deputy Director, Law Claims (gfeary@lawclaims.com. au) or Mercedes Eyers-White, PII Risk Management Co-ordinator (meyerswhite@lawclaims.com.au).

March 2021 THE BULLETIN

35

FAMILY LAW

Family Law Case Notes CRAIG NICOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK Property – High Court sets aside stay order – Full Court misapplied res judicata and Anshun estoppel n Clayton v Bant [2020] HCA 44 (2 December 2020) the High Court (Keifel CJ, Bell, Gageler, Gordon & Edelman JJ) allowed with costs an appeal where the Full Court permanently stayed a wife’s application for property and spousal maintenance as she had failed to contest divorce proceedings in Dubai.

A citizen of the United Arab Emirates, the husband issued divorce proceedings in Dubai in 2014. The wife did not appear, such that a Dubai court granted the husband an “irrevocable fault based divorce” ([8]) and ordered the wife to repay an amount of an advanced dowry and costs.

The husband then sought a permanent stay of the wife’s property and spousal maintenance proceedings in the Family Court of Australia, arguing res judicata.

Although unsuccessful at first instance, the Full Court stayed the proceedings, finding that the Dubai proceedings had determined the same cause of action and the wife’s failure to pursue her claim in Dubai meant she was estopped from pursing a spousal maintenance claim in the Family Court.

The majority of the High Court (Kiefel CJ, Bell and Gageler JJ) said (at [26]): “Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under ss 79(1) and 74(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia. The rights created by ss 79(1) and 74(1) cannot ‘merge’ in any judicial orders other than final orders of a court having jurisdiction under the … The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted.”

I

36 THE BULLETIN March 2021

Costs – Husband wins appeal of costs order – Wife’s settlement offer did not conclude all matters in issue In Paradin [2020] FamCAFC 245 (7 October 2020) Strickland J, sitting in the appellate jurisdiction of the Family Court of Australia, set aside an order that the husband pay the wife’s costs of $62,000.

The wife, sought an interim release for $40,000, a child support departure order and spousal maintenance of $600 per week; and sent a settlement offer to the husband titled “property matters” where she proposed a transfer and refinance of properties and a payment to her of $40,000.

At trial, the wife’s applications for child support and spousal maintenance were dismissed, but she was to receive a cash adjustment of $146,672, which primarily formed the basis of the subsequent costs order against the husband.

On appeal, the husband argued that the wife’s offer could not have been reasonably accepted by him at the time, particularly where the offer was silent as to the child support and spousal maintenance issues.

Strickland J said (from [33]): “There is ample authority to the effect that an offer must be expressed ‘with precision’ and ‘in terms which are objectively capable of being clearly understood’ (Harris and Harris [1987] FamCA 7) ( … ) [40] The proceedings had only commenced on 26 October 2017, and the wife, both at that time, and when she filed her Amended Initiating Application at the same time as the offer … was unable to identify for the court the order for property settlement she was seeking. ( … ) [57] … I am reminded … of what the Full Court said in Pennisi [ed. full citation: Pennisi & Pennisi [1997] FamCA 39], namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under

the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.”

Children – Single expert – General child and family psychiatrist preferred over specialist perinatal psychiatrist In Lambard & Lambard and Ors (No. 2) [2020] FamCA 858 (14 October 2020) McClelland DCJ considered a disagreement over the appointment of a single expert psychiatrist where the proceedings concerned the parties’ 19 month old daughter. Post-birth, the mother suffered an acute mental health episode which resulted in her attempting to take her own life and then while hospitalised, she sustained further injuries which resulted in her being confined to a wheelchair ([5]).

The mother contended that any mental health concerns had been treated and were in remission, the father contending that the mother’s behaviour pre- and post-birth presented concerns as to the mother’s parental capacity and posed an ongoing risk to the child.

Where the parties agreed that a single expert psychiatrist should be appointed, the Court was asked to determine whether such expert should be the specialist perinatal psychiatrist sought by the mother and maternal grandmother or any of the three general psychiatrists sought by the father and the paternal grandmother.

The Court said (from [26]): [26] Having regard to the … issues, it can be seen that the postnatal aspect of the mother’s mental health is but one aspect of many issues to be considered ….

It may be that a psychiatrist with specialty in perinatal psychiatry may not necessarily have expertise in respect to other potential issues including, for instance, the posttraumatic consequences of the mother’s attempted suicide and ongoing injuries and disabilities. ( … ) [34] … I am of the view that the appointment of a single expert from among the list of names of the three qualified psychiatrists proposed by the father and paternal grandmother is the

FAMILY LAW

appropriate course of action to pursue in this matter. That is despite the fact that it is acknowledged that none of those three psychiatrists are specialists in perinatal psychiatry. … [I] am satisfied that they each have the required training, study and experience that qualifies them as having specialised knowledge on the issue of the mother’s mental health and to provide a prognosis in respect to that issue.”

parents were the registered proprietors.

Company B paid Company A rent for the use of farming land, such funds forming the majority of Company A’s income.

The rental paid was highly inflated with the intention to quickly reduce Company A’s indebtedness. The wife deposed that Company A owed the husband and wife’s family trust $5,517,696.

The wife sought payment of $1.1 million from Company A to the family trust. She also sought that Company B continue to pay the inflated rent.

The Court said (from [75]): “The application of the broad terms of s 90AE(2) is expressly limited by the conditions in s 90AE(3), and by reference s 90AE(4).

[76] The limitations … in s 90AE(3)(b) and (c) are self-explanatory …

[77] The limitation … in s 90AE(3)(a) … requires the court to be satisfied that the making of the order is either reasonably necessary to effect a division of property between the parties to the marriage, or reasonably appropriate and adapted ( … )”

Property – Wife fails in her attempt to have a related company pay partial property settlement In Russo and Russo & Ors [2020] FCWA 182 (15 October 2020) O’Brien J dismissed a wife’s interim application for an order that third parties make payments totalling $1.1 million to enable her to fund her litigation costs and purchase a property.

The second respondent, Company A, was the trustee of Trust A. The husband and his parents were directors of Company A. The husband and his parents were shareholders of the third respondent, Company B, which operated a business on a farm of which the husband’s

The Court continued (from [142]): “The … difficult question is whether an order made on an interim basis can properly be said to be reasonably necessary, or … appropriate and adapted, to ‘effect a division of property between the parties to the marriage’.

[143] The power under s 79, … is to make orders ‘altering the interests of the parties to the marriage’ in property; … ‘division of property’ is not used.

[144] An interim order made pursuant to s 79 must be capable of variation or reversal without resort to s 79A or an appeal, … Gabel & Yardley [2008] FamCAFC 162 ( … ) The Court concluded (at [198]): “… [T]he order … may only be made if it is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; on the wife’s own case, the order is sought for the purpose of increasing the property …

The distinction is … fatal to this aspect of the wife’s application (B Pty Ltd & Ors & K and Anor [2008] FamCAFC 113).” B

We Are Forensic Experts In • Engineering Analysis & Reconstruction

• Failure Analysis & Safety Solutions

• Traffic Crashes & Road Safety

• Physical, Crash, Incident & Vehicle Dynamic Handling Testing

• Workplace or Mining Incidents • Reporting & Experts Court Testimony

Delta V Experts

DELTA-V EXPERTS

• Clarifies the facts in a situation

• Strengthens your communication

• Scientifically substantiates the evidence

• Diverse experience and expertise

03 9481 2200

www.dvexperts.net

9 Springbank Street, Tullamarine, 3043 March 2021 THE BULLETIN

37

GAZING IN THE GAZETTE

3 JAN 2021 – 2 FEB 2021 ACTS PROCLAIMED Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (No 43 of 2020) Commencement ss 7, 10, 11, 12 and Schedule 1: 29 March 2021 Commencement: 1 February 2021 Gazetted: 27 January 2021, Gazette No. 5 of 2021 Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Act 2020 (No 37 of 2020)

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

Commencement: 29 January 2021 Gazetted: 27 January 2021, Gazette No. 5 of 2021

Adelaide, 27 January 2021 Her Honour Judge Sophie David Gazetted: 27 January 2021, Gazette No. 5 of 2021

ACTS ASSENTED TO Nil

RULES

APPOINTMENTS

Magistrates Court Rules 1992 Amendment No. 89 Gazetted: 21 January 2021, Gazette No. 4 of 2021

Supreme Court of South Australia Puisne Judge from 28 January 2021

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

REG NO.

DATE GAZETTED

Development (Flinders Chase Tourist Accommodation) Variation Regulations 2021

1 of 2021

21 January 2021, Gazette No. 4 of 2021

Native Vegetation (Flinders Chase National Park) Variation Regulations 2021

2 of 2021

21 January 2021, Gazette No. 4 of 2021

Controlled Substances (Poisons) (Serious Shortage Medicine Substitution) Variation Regulations 2021

3 of 2021

27 January 2021, Gazette No. 5 of 2021

National Electricity (South Australia) (Penalties) Variation Regulations 2021

4 of 2021

27 January 2021, Gazette No. 5 of 2021

National Energy Retail (South Australia) (Penalties) Variation Regulations 2021

5 of 2021

27 January 2021, Gazette No. 5 of 2021

National Gas (South Australia) (Penalties) Variation Regulations 2021

6 of 2021

27 January 2021, Gazette No. 5 of 2021

Dangerous Substances (Dangerous Goods Transport) (Miscellaneous) Variation Regulations 2021

7 of 2021

27 January 2021, Gazette No. 5 of 2021

Return to Work (Royal District Nursing Service) Variation Regulations 2021

8 of 2021

27 January 2021, Gazette No. 5 of 2021

Take Your Business Mobile boylen.com.au

P (08) 8233 9433 38 THE BULLETIN March 2021

CLASSIFIEDS

FIRE & EXPLOSION INVESTIGATION

VALUATIONS MATRIMONIAL DECEASED ESTATES

Over 6 years forensic experience on behalf of the Insurance Industry and Legal Profession throughout Australia.

Mr Ben Cox B.E. (Chem) Grad. Cert. (Fire Investigation)

INSURANCE TAX REALIGNMENT INSOLVENCY FURNITURE ANTIQUES, COLLECTIONS BUSINESS ASSETS MACHINERY MOTOR VEHICLES CARS, BOATS, PLANES

CITY & COUNTRY ROGER KEARNS Ph: 08 8342 4445 FAX: 08 8342 4446 MOB: 0418 821 250 E: auctions@senet.com.au Certified Practising Valuer NO.346 Auctioneers & Valuers Association of Australia

Ben Cox & Associates PO Box 205, Marden, SA 5070 Phone: 0437 325 112 E: ben@bcafireforensics.com.au www.bcafireforensics.com.au

VALUER Commercial & Residential Real Estate Matrimonial Deceased Estates Rentals etc.

Experienced Court Expert Witness

Liability limited by a scheme approved under Professional Standards Legislation

JANET HAWKES

Forensic Accounting Simple, clear, unbiased advice, without fear or favour.

t. +61McPharlin 8 431 80 82 FCA Hugh

Andrew Hill Investigations

Andrew Hill Investigations

ABN 68 573 745 238 Investigating: • workplace conduct • fraud • unprofessional conduct • probity Support services: Andrew Hill • forensic computing analysis • transcription services • information sessions, particularly for HR practitioners on the investigative process • policy development.

PO Box 3626

d m.+61 8139 1130 +618401 712 908 m +61 419 841 780 e. ahi@andrewhillinvestigations.com.au e hmcpharlin@nexiaem.com.au w nexiaem.com.au

NORWOOD SA t.

5067 +61

8 431 80 82 m. +61 401 712 908 e. ahi@andrewhillinvestigations.com.au Fellow AIPI

Consulting Engineers Australian Technology Pty Ltd for expert opinion on: • Vehicle failure and accidents • Vehicle design • Industrial accidents • Slips and falls • Occupational health and safety • Statistical analysis W. Douglass R. Potts MAOQ, FRAI, FSAE-A, FIEAust, CPEng, CEng, FIMechE

8271 4573 0412 217 360

Cert. Practising Valuer, AAPI 0409 674 122 janet@gaetjens.com.au

wdrpotts@gmail.com

Licensed Investigation Agents & Process Servers Servicing the Mid North, Yorke & Eyre Peninsula`s and Outback of South Australia with: • Process Serving • Property Lockouts • Investigations • Missing Persons

OUTBACK BUSINESS SERVICES

P.O. Box 591, PORT AUGUSTA. 5700 P: 0418 838 807 info@outbackbusinessservices.com.au

Family Law - Melbourne

CONSULTING ACTUARIES

LawCare

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.

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, Bruce Watson or Deborah Jones 08 8232 1333 contact@brettandwatson.com.au www.brettandwatson.com.au

Ground Floor 157 Grenfell Street Adelaide SA 5000 March 2021 THE BULLETIN

39

We manage one of SA’s largest social media accounts. boylen.com.au

P (08) 8233 9433