The Bulletin - Law Society of South Australia - May 2020 by lawsocietysa

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 42 – ISSUE 4 – MAY 2020

IN THIS ISSUE New civil rules explained Guide to written submissions Preparing for criminal trials COVID-19 Relief package for Society Members Practice management guide Access to justice during COVID-19

ADVOCACY

LEAP is the best system for lawyers and staff to work from home

#workingfromhomewithLEAP 1300 886 243

This issue of The Law Society of South Australia: Bulletin is cited as (2020) 42 (4) LSB(SA). ISSN 1038-6777

CONTENTS ADVOCACY 6

COVID-19

Advocacy in the appellate context: Fulfilling the functions of written submissions – By Kris Handshin The new Uniform Civil Court Rules explained – By Alex Lazarevich & Lisa Amabili

Preparing for criminal trial advocacy 101 – By Edward Jolly

Mandatory prison for sex offences: the effect of new sentencing laws By Andrew Culshaw

Ensuring legal services can be delivered during COVID-19

Managing your practice during COVID-19: A guide

Chris Bleby SC appointed to Court of Appeal

Vale: The Hon. Trevor Olsson AO

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

T White R Sandford J Stewart-Rattray E Shaw F Bell A Nikolovski S Hooper V Gilliland

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

From the Editor

President’s Message

Young Lawyers: Coffee with Barbara – The Legal Forecast By Matthew Rismondo By Rosemary Pridmore

$1.8 million COVID-19 package to support practitioners

Taking care of your mental wellbeing in a time of uncertainty

Tax Files: Superannuation & succession – By Stephen Heath

Opinion: Enforced isolation has made me treasure my freedom even more By Michael Esposito

Family Law Case Notes By Rob Glade-Wright

Bookshelf

Risk Watch: Rise to the challenge - Try to find some positives in the lockdown – By Grant Feary

Gazing in the Gazette

FEATURES & NEWS 27

REGULAR COLUMNS

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

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

FROM THE EDITOR

Practitioners adjusting to major upheaval

IN THIS ISSUE

MICHAEL ESPOSITO, EDITOR

assume the majority of you are now working from home and are adjusting to a very different way of working. For a number of us, particularly those juggling parental or caring duties with work, merely staying afloat could be considered a huge achievement. There’s no doubt the profession is doing it tough, and it’s not just anecdotal. A survey that the Society sent to Members asking for their views with regards to the commencement of the Civil Rules amid the health crisis revealed that 70% of respondents had been financially impacted by the pandemic and a number have had to cut staff or reduce employees' hours. As President Tim White has mentioned in his President’s Message and numerous notices to the profession, the Society has been busy doing what it can to support the profession during this time, in terms of providing practice management support, keeping the profession regularly informed of developments affecting the legal system, and advocating for measures to facilitate the delivery of legal services as best as possible in challenging circumstances. While there has been an unavoidable financial impact on the profession, as there has been in most sectors, the COVID-19 pandemic has also thrown up a number of novel legal problems that have not been contemplated in great detail before. Nevertheless, lawyers are equipped to help resolve such unprecedented issues and therefore play a critical role in guiding people through very challenging times. The Society, in consultation with special interest committees, identified a number of legal issues that have arisen or become particularly pronounced as a result

4 THE BULLETIN May 2020

of COVID-19. These issues have formed the basis of a social media campaign to highlight some of the issues that people might be dealing with at the moment and encouraging them to see a lawyer. The market volatility caused by COVID-19 has seriously impacted asset values, which has legal implications with regards to a number of issues such as estate planning, division of assets and business contracts. There’s uncertainty and angst around parenting arrangements. Employers and employees are doing it tough, raising numerous industrial law issues. The list goes on. In the midst of all this is the imminent commencement of the Uniform Civil Rules and the CourtsSA electronic filing system, which will herald significant changes to procedures in the civil jurisdiction. It was recently announced that the commencement date of the new Rules has been deferred to 18 May, giving the profession a few more weeks to prepare. This is likely to provide some relief for firms that are also dealing with the upheaval caused by COVID-19. Members of the Society’s Civil Litigation Committee, Alex Lazarevich and Lisa Amabili, have written a detailed summary of the Rules in this edition of the Bulletin. It will no doubt be a hugely valuable resource and the Society thanks them for their efforts in putting this article together. This edition contains other extremely helpful articles that provide practical advice on the art of advocacy, as well as a digest of the practice management guidance the Society has provided during the COVID-19 pandemic. B

MANDATORY SENTENCING The effect of mandatory prison for sex offences

COVID-19 RESTRICTIONS Civil liberties implications of social distancing

VALE Remembering former Supreme Court Justice Trevor Olsson

PRESIDENT’S MESSAGE

Confronting the challenges of COVID-19 TIM WHITE, PRESIDENT, LAW SOCIETY OF SA

hope you are all coping with the current environment we are all having to work in over the past month or so. These are challenging and unusual times that few, if any of us, have experienced in the past. The most memorable description of working in the current COVID-19 environment I have heard was by co-founder of Airbnb, Brian Chesky, who stated: “Running a business at the moment is like continuing to construct a new home whilst it is on fire.” I thought that metaphor painted a very vivid but accurate picture of how many of us have felt in recent times. Keep persevering, as I am sure your clients will be especially appreciative of your advice and assistance in these times more than ever before. Our profession has risen to take on the endless challenges presented to it of late, and I wanted to briefly share with you a few examples of these . I have heard about trials proceeding in the SAET via video conferencing where both counsels, the tribunal member, instructing solicitors and the witnesses were all located in different buildings. Despite those logistical challenges I understand the matters were heard and dealt with efficiently and almost as expeditiously as if these had occurred with all parties present in person. I understand there have been similar experiences involving South Australian practitioners in the Federal Court and also in the High Court. Practitioners appearing in the criminal divisions have arguably confronted the greatest challenges in terms of managing social distancing requirements. Given

the daily attendances in court that their work necessitates, and the diversity and volume of matters that pass through the Magistrates Court, they have done an exemplary job in ensuring their clients have continued to be able to access legal assistance in a modified capacity. The Magistrates Court, like other jurisdictions, has worked very closely with the Law Society and practitioners to ensure the “wheels of justice” keep turning. The extent to which most matters have been able to continue to progress through the various jurisdictions is impressive, and a credit to the Courts and the practitioners involved. The many questions and challenges that we face in practising the law are being experienced by fellow practitioners in other states or territories of Australia, and indeed by lawyers all around the world. After consulting many of the websites of our equivalent Law Societies or Bar Associations overseas, this commonality became even more obvious. By way of just one example, the Law Society of British Columbia in one of its main COVID-19 updates informed practitioners that in March virtual commissioning of affidavits was permitted. Another example of the measures being taken in Canada was the announcement that time limitations for instituting proceedings applicable to family law and civil actions be suspended,which continues until the state of emergency is rescinded. Similar changes have been implemented in some states of Australia. NSW has recently passed a significant regulation allowing

witnessing of certain documents, including a will, power of attorney and a deed, by an audio-visual link. These are all important developments in enabling our clients to still receive access to legal advice and services in these restrictive times. The Society is continuing to regularly make submissions to the Courts and the Attorney General’s office in relation to various modifications to Acts, regulations or court rules that will enable us to provide assistance to clients remotely. Some of the recent requests made include: • Allowing electronic signing of court documents by solicitors • Permitting wills, powers of attorney and affidavits to be witnessed remotely • Allowing certain statements and other court documents that are required to be signed by a client, to be filed without a client’s original signature • Further court appearances to be done via telephone or video conferencing • The reintroduction of jury trials There remains many aspects that the Society continues to work on for the benefit of its members. There will be new and different challenges that we face each week, and all the stakeholders involved in the provision of justice will need to adapt and change the way it is offered. These changes will hopefully ensure members of the public retain faith and trust in our profession. Keep up the terrific work you are all doing whilst remaining safe and well. Thank you to those members who have provided feedback and suggestions to me direct, please continue to do so. B May 2020 THE BULLETIN

ADVOCACY

ADVOCACY IN THE APPELLATE CONTEXT: FULFILLING THE FUNCTIONS OF WRITTEN SUBMISSIONS KRIS HANDSHIN, BARRISTER, BAR CHAMBERS

n his article, “The future of appellate advocacy”,1 Justice Michael Kirby wrote: Talent in advocacy has conventionally been viewed as a natural gift rather than a skill to be learned. Good advocates were thought to be born. I do not deny that there may be a gene or two in the 36,000 genes on the human genome that are labelled ‘top advocate’...However, in recent decades it has increasingly been recognised that advocacy skills can be improved and sharpened.

The concluding observation in this extract is of particular application to written advocacy which, as Justice Kirby acknowledges in his article, has assumed a prominent role in litigation. Written submissions and outlines of argument are now routinely requested by trial courts and are required by appellate courts. If you wish to practise law as a barrister or solicitor advocate, you cannot avoid preparing written submissions. Nor should you try. Preparing written submissions offers an opportunity to sharpen and improve our skills of advocacy. Developing and refining the ability to write persuasively is, to my mind at least, an indispensable part of improving our advocacy skill set more generally. By practising and honing our skills of drafting effective written submissions, we educate ourselves about the importance of precision; linguistic elegance; structure and thoroughness in advocacy. Written work teaches us to be thoughtful, methodical and persuasive: key attributes of any form of advocacy. While as practitioners we may benefit from such an exercise, what is the objective of written advocacy? Like all advocacy, persuasion is the goal. Written submissions should assist, in fact pave

6 THE BULLETIN May 2020

the way, for a favourable outcome. Both Justice Kenneth Hayne and Chief Justice James Allsop have said that written submissions should fulfil three functions: • They should be a “...coherent and readable encapsulation of the essence of your argument” to assist the judge/s preparing for the hearing; • They should be useful during oral argument and so reflect the structure and content of what you propose to say, together with appropriate references to the evidence, the judgment of the court below, and important authorities; • They should be useful to the decision maker when preparing judgment.2 If we focus for the moment on the appellate context, how might we go about drafting written submissions that fulfil these three functions? In this brief note - which does not permit of a lengthy disquisition on what is a deep and elusive topic - I will attempt to offer a brief refresher on what, over time, have been identified by judges and eminent practitioners as some of the defining traits of effective written advocacy, focusing on written submissions in the appellate setting. As advocacy is an innately individual undertaking, it is not possible to promulgate “rules” for effective written submissions - only suggestions3 that may or may not assist and which may require adaptation to suit our individual style and the idiosyncratic features of a particular case. With that qualification in mind, some suggestions for drafting written submissions which I have collated from a review of helpful source materials on the topic4 - and as a result of trial and error in my own experience - include:

• Know the applicable rules; • Focus on structure and issue framing; • Language and style - be polite, respectful and methodical; • Write early and synthesise grounds of appeal and written submissions; • Understand the cases presented at trial;

KNOW THE APPLICABLE RULES AND PRACTICE DIRECTIONS It goes without saying that if you are preparing written submissions for the Full Court or Court of Criminal Appeal, it is essential to revisit the applicable rules to understand what is expected and when.5 Persuasive written advocacy begins with filing submissions in the proper form and on time. If you are the appellant, avoid at all costs allowing the respondent the apparently irresistible opportunity of submitting their submissions with the proviso that “These submissions have been prepared without the benefit of the appellant’s submissions”. If compliance with the Rules is not possible, inform the other side when you will have your submissions to them and be sure to advise the court and seek an extension of time.

STRUCTURE AND ISSUE FRAMING Advocacy is fundamentally an exercise in problem solving using persuasion. Whether conducting a trial or arguing an appeal, the objective is the same: to solve the legal problem using our skills as advocates.6 It is trite, but solving a problem requires us to first identify the nature of the problem. If we cannot correctly and succinctly identify the problem, then we cannot begin to develop an answer that will persuade the decision maker in our favour.

ADVOCACY

FRAME THE ISSUES AT THE OUTSET On occasion, particularly when under time pressure, it is tempting to commence written submissions by following the path of least resistance: an uninspiring and abstract statement of the case under review; a re-statement of the grounds of appeal; followed by a lengthy dissertation of the facts and evidence. Five pages later, a reader of the submissions might be better educated about some of the facts and procedural history but, not knowing why the chronology or facts of the case are relevant to the grounds of appeal, our reader is unlikely to have been assisted in placing them into any meaningful legal context. Effective written submissions, like effective oral advocacy, start with a punchy introduction that connects the borders of the arguments and issues to be addressed so that throughout the body of the submissions, the reader has an understanding of where the process of analysis will lead. Framing the questions for determination; identifying, even in a cursory way, the answers that will result in the remedy or orders sought and exposing in economical terms the process of reasoning and analysis that supports the correctness of the answers, persuasively, intelligibly and concisely is a good starting point for effective written submissions.7 That is, concededly, easier said than done. Drafting effective written submissions is a demanding and timeconsuming task. But we can make the task easier both for ourselves and more useful to the court, by taking the time to accurately and meaningfully frame the issue/s for determination and forecast the resolution of the issue/s at the outset of submissions. For a statement of the issues to be

meaningful it should bring together the key statements of fact or premises (ideally those which are non-contentious) and the question of law raised by a ground of appeal in a succinct, yet informative way. The identification of an issue at a level of abstraction (such as, “the appeal should be allowed because the trial judge erred in finding x or y”8) will not fulfil this objective. One of the most prolific writers in this area of practical tuition, Bryan Garner, suggests that a statement of an issue should be no more than 75 words (a surprisingly difficult task) and should set out the preferably non-contentious statements of fact (or premises) which generate the question of law to be determined.9 By defining the issues early on, we lay the groundwork for fleshing out the substantive argument in the body of the written submissions by reference to: • The evidence and / or findings of fact relevant to the issue; • Any arguments relevant to the issue advanced at trial; • The primary court’s treatment of the issue; • The authorities relevant to the correctness or otherwise of the primary court’s approach; and • By stepping through these topics, we construct a suitable platform to detail our analysis of the issue and, hopefully, justify the correctness of the answer we posited in our introductory remarks. To return to Garner’s approach, by identifying issues in an incisive and meaningful way at the outset, we can control the remainder of the argument by providing the reader with the necessary compass for navigating the written submissions. This approach also provides the advocate with a map for explaining the steps in the

argument in a structured and logical way, which will prove to be a useful reference for supplementary oral submissions. As a final observation on structure, we should not underestimate the utility of descriptive headings to break up slabs of text and broadcast a transition to the next step in the argument without having to waste precious space explaining as much.10

BE POLITE, RESPECTFUL, METHODICAL AND COMPREHENSIVE Persuasive written submissions observe the time-honoured traditions of oral advocacy: be polite, respectful and methodical. Describing an opponent’s submissions - or the presentation of their case - in terms that are pejorative or denigrating (such as the commonly seen “completely misconceived” or “grossly deficient” mantras) is both unnecessary and usually unjustified. It is always unpersuasive. The use of vituperative language and “intensifying epithets”11 which typically appeal to emotion and involve personalised attacks instead of method, can also have the side effect of turning your reader against an argument and diminishing an otherwise good point.12 Think of Justice Peter Applegarth’s observation: A coolly written demolition of the other side’s evidence and case is likely to be more effective than an emotional and personalised attack on the other party and its lawyers.13 There is nothing more devastating than a clinically written submission that appeals to logic and reason. The need for moderation and clinical writing is amplified when discussing shortcomings in a trial judge’s approach. The use of unnecessary adverbs and May 2020 THE BULLETIN

ADVOCACY

hyperbole when deconstructing a judgment is both impolite and unpleasant to read.14 An appellate court is unlikely to be persuaded by “overheated prose”.15 Be appropriately forceful without being discourteous. That is not to say that we should avoid a critical analysis of competing arguments or the judgment of the court below. That is our task as advocates. But we should be mindful of the way we go about performing that task. An appellate court is more likely to respond favourably to a methodical, well-reasoned and well supported argument than one that resorts to unhelpful and disparaging descriptors. Instead of labelling an opponent’s work as “completely misconceived” for example, perhaps consider whether the point can be made using a more measured submission such as “The appellant’s primary complaint should be rejected as it cannot be reconciled with the High Court’s decision in...” Another characteristic of methodical writing is avoiding basic errors. I am not referring to proof reading - that goes without saying. I am referring to misstating or distorting the evidence to suit an argument. Apart from being unethical and unprofessional, it does a disservice to professional reputation and the persuasiveness of submissions. A genuine mistake in drafting is one thing - we all make them and it is important to own up to them when we do, as embarrassing as that may be - but ignoring evidence because it is unhelpful devalues the assistance we are striving to extend to the court. It also gives an opponent an opportunity to highlight the error and cast doubt on the cogency and reliability of our argument more generally.16 Being accurate - and, again, methodical - is essential to preserving the integrity of an argument. That is not to “confuse fairness with neutrality”.17 Advocating is appropriate; indeed, essential. But it must be done in a way that preserves the integrity of the argument.

8 THE BULLETIN May 2020

In an appropriate case, that may also mean confronting factual and legal shortcomings. Effective written advocacy is not one-eyed. Where appropriate, address the weakness of an argument in a manner that does not draw excessive attention to it18 and provides an opportunity to explain it away as unimportant. In a sense, this is about being comprehensive. And written submissions should be comprehensive. As Justice Hayne has explained: If [the written submission] is not comprehensive, when do you propose to fill in the gaps?19

SYNTHESISE WRITTEN SUBMISSIONS AND GROUNDS OF APPEAL One technique to assist in writing persuasively (if time permits) is to write submissions at the time of formulating the grounds of appeal. There are two benefits to doing so: first, it provides the best opportunity to harmonise the grounds of appeal with the argument to be advanced (instead of contorting an argument to fit a ground of appeal that is not quite right). The second benefit was referred to by Heydon J, in a different context, in AK v Western Australia (2008) 232 CLR 438 at [108]: ...the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion “won’t write”, and that a different conclusion develops. There is a useful message for appellate advocates in this commentary. Writing submissions earlier rather than later and, preferably, contemporaneously with the composition of the grounds of appeal, allows us to gauge the merits of a complaint. If an argument “won’t write”, it may be because it has no merit. Early writing affords an opportunity to identify and focus on the arguments most likely

to succeed. To my mind, this is about synthesising grounds of appeal and written submissions. This reduces the prospect of mystifying the court when “the written argument bears no relationship to the grounds of appeal”.20

UNDERSTAND THE CASE RUN AT TRIAL Trials involve a forensic exercise. Parties make informed choices about how they will conduct litigation; the points to be taken; witnesses to be called and cross examined; the defences to be relied upon. The forensic issues as perceived and pursued by the parties shape the evidentiary landscape and inform the arguments that are put by way of final addresses. The circumstances in which new points may be taken on appeal are finite.21 Appellate court judges frequently ask how trial counsel dealt with an issue or argument at first instance. Persuasive written submissions must, therefore, be sympathetic to and demonstrate an understanding of the conduct of the proceedings in the court below. Collecting references in written submissions to how an issue was dealt with at first instance is therefore a worthwhile exercise. If the need arises to take a new point, confront the issue and explain why it is appropriate and necessary to do so.

CONCLUSION In a helpful paper22 on this topic, Justice Peter Applegarth provided a survey of expectations regarding written submissions from the judicial perspective: “What judges want and expect • They may hope for brilliance • But they want (and expect) assistance • They are time poor • They want written (and oral) submissions which will help them do their job

ADVOCACY

They want to know: • The essential facts • The issue or issues • The relevant rule or principle • The result you contend for • Why that result is justified by applying the rule to the facts • Why you say the other side’s arguments are not persuasive Good written submissions are the raw material for an oral or written judgment. • They should frame the issue • Contain the relevant facts, including those that do not help your case • State the rule or principle that allows or compels the result you seek • Persuade why that result flows by application of the rule to the facts.” If we use this checklist as a reminder of what might appeal to our intended audience and we strive for written advocacy that fulfils the “three functions” as initially set out by Justice Hayne and Chief Justice Allsop, we will hopefully be well on our way to presenting written submissions in a persuasive and compelling fashion, whilst discharging our duties to the court and assisting in the efficient and proper disposition of appeals. B Endnotes 1 (2006) 27(2) Aust Bar Review 141. 2 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 5 (<https://www.hcourt.gov.au/assets/ publications/speeches/currentjustices/haynej/ haynej_05mar07.pdf>); Chief Justice James Allsop, ‘Written Submissions - What judges love (and hate)’, (2013) 2 Journal of Civil Litigation and Practice 9 (< http://thomsonreuters.com. au/journals/2013/06/11/written-submissionswhat-judges-love-and-hate/>). 3 Justice Michael Kirby, ‘The future of appellate advocacy’, (2006) 27(2) Aust Bar Review 141, 142. 4 See, eg, Justice Tom Gray, M Hinton, D Caruso (eds), Essays in Advocacy, 2012, Barr Smith Press. I have drawn heavily on the following , particularly useful articles: Justice Kenneth Hayne, Written

Advocacy, a lecture delivered to the Victorian Bar, March 2007 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>); Chief Justice James Allsop, ‘Written Submissions - What judges love (and hate)’, (2013) 2 Journal of Civil Litigation and Practice 9 (<http://thomsonreuters.com.au/ journals/2013/06/11/written-submissions-whatjudges-love-and-hate/>); Justice Peter Applegarth, Modern Advocacy: Issue Framing in Oral and Written; Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017 (<http://www.austlii.edu.au/ au/journals/QldJSchol/2017/32.html>; Justice Stephen Estcourt, ‘Use of Written Submissions’, (2014) Supreme Court of Tasmania Publications (< https://www.supremecourt.tas.gov.au/ publications/speeches-articles/legalwise-10-pointsone-day-seminar-use-written-submissions/?); Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’, (2002) 22(2) Australian Bar Review 149. 5 See Supreme Court Criminal Supplementary Rules 2014, rr 69-74; Supreme Court Civil Rules 2006, r 297; Supreme Court Civil Supplementary Rules 2006, Ch 13, Part 5. 6 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 4-5 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 7 Garner, ‘How to frame issues clearly and succinctly for effective motions and briefs’, (2017) American Bar Association Journal (<http:// www.abajournal.com/magazine/article/ effective_pleadings_issue_framing>); Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 8-9 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/ haynej/haynej_05mar07.pdf>); Justice Peter Applegarth (Supreme Court of Queensland), Modern Advocacy: Issue Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 4-5. 8 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 8, 16 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>); 9 Garner, ‘How to frame issues clearly and succinctly for effective motions and briefs’, (2017) American Bar Association Journal (<http:// www.abajournal.com/magazine/article/ effective_pleadings_issue_framing>). 10 See, eg, Justice Stephen Estcourt, ‘Use of

Written Submissions’, (2014) Supreme Court of Tasmania Publications (< https://www. supremecourt.tas.gov.au/publications/speechesarticles/legalwise-10-points-one-day-seminaruse-written-submissions/?). 11 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 15 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 12 A useful example appears in Justice Peter Applegarth, Modern Advocacy: Issue Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 13. 13 Justice Peter Applegarth, Modern Advocacy: Issue Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 13. 14 Consider the contrasting examples set out in Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’, (2002) 22(2) Australian Bar Review 149, 153. 15 Justice Peter Applegarth, Modern Advocacy: Issue Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 13. 16 Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’, (2002) 22(2) Australian Bar Review 149, 160. 17 Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’, (2002) 22(2) Australian Bar Review 149, 160. 18 Ehrenberg, ‘Teaching the Neglected Art of Persuasive Writing’, (2017) 26(1) Legal Education Review 215, 223. 19 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 5. (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 20 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 6. (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 21 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, [51]; Nudd v The Queen (2006) 60 ALJR 614, [9] (Gleeson CJ). 22 Justice Peter Applegarth, Modern Advocacy: Issue Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 18.

May 2020 THE BULLETIN

FEATURE

THE NEW UNIFORM CIVIL COURT RULES EXPLAINED ALEX LAZAREVICH AND LISA AMABILI, MEMBERS OF THE CIVIL LITIGATION COMMITTEE

he South Australian Courts are introducing a new Electronic Court Management System (ECMS), and with it a new set of Uniform Civil Rules. The new Rules are anticipated to come into effect on 18 May, 2020. One consequence of the new Rules is that there will be one set of rules for the Supreme, District and Magistrates Court (albeit that there are some variations as to the operation of some of the rules as between the Courts). As the Rules are presently in draft form, we have not set out any numbering of the rules referred to below. Given the size of the Rules we have focused on some of the major changes rather than trying to summarise all of the new rules.

TERMINOLOGY CHANGES For those who have only finally trained themselves to use the terms ‘disclosure’ rather than discovery, and ‘permission’ rather than leave, the new rules will be going ‘back to the future’. Disclosure will once again be ‘discovery’, ‘permission’ will once again be ‘leave’, ‘adjudication of costs’ will again be ‘taxation of costs’. A plaintiff is now an ‘applicant’ and a defendant a ‘respondent’ at first instance (similar to the Federal Court, but leading to possible convoluted appearances like “I appear for the respondent who is the applicant on the application for discovery”). On appeal, the parties will be named appellant and respondent. A new concept is that of an ‘interested party’. An interested party includes, not only an intervenor, but also a party whose interests are not directly and adversely affected by the claim, but who should be given the opportunity to be heard or who must be joined to be bound by the result.

10 THE BULLETIN May 2020

The notes to the Rules give examples of the latter as including the Minister in relation to disputes under the s35 of the Housing Improvement Act or the RegistrarGeneral on an application to rectify the real property Register Book. The notes to the Rules also state that an interested party may choose to participate or not participate in the proceeding, and that the automatic or presumptive costs rules that apply as between applicant and respondent do not apply as between applicant and interested party (e.g. costs do not necessarily follow the event).

ECMS SYSTEM Documents are to be filed by an online portal. There will be a short transition period during which most documents can be lodged physically or electronically, but in due course the intention is that most documents (apart from less common, low volume documents) will be required to be filed electronically. Parties and their lawyers, including counsel, will be able to access the electronic file, provided they are registered. Requests for access will be processed by the registry before access is granted – it is not intended that the public at large can view a case file, or that lawyers would have access to files for matters they are not acting in. The Registrar has the power to cancel the registration of a person if they are “not a fit and proper person to be a registered user”, and also has a general discretion to as to whether to admit a person as a registered user. Some documents will be entered into ECMS directly, with time savings to occur where data like parties names, action numbers, addresses for service and similar data will be ‘pre populated’ so once one form is complete the data does not need

to be re-entered each time (for example, there is no longer a Form 1 coversheet). Other documents such as affidavits will be created on the practitioner’s (or party’s) computer system and uploaded for filing. A document to be filed in a proceeding must be in accordance with the requirements contained in the Rules and prescribed forms. A document that does not comply with these requirements may be rejected by the Registrar or the Electronic System. There is no longer a requirement for the name of counsel who settled a document filed in a proceeding to appear on that document other than for summaries of argument or written submissions. When a document is lodged for filing electronically it is conditionally accepted by the Registry if a case number is allocated to the proceeding and the Court’s seal and a filed document number allocated to the document (where the document is the first document filed in the proceedings) and otherwise for any other documents, if a filed document number is allocated to the document or the Court’s seal applied. The document is conditionally treated as filed on the day and at the time at which it is accepted for filing if filed when the registry is open, and otherwise on the next day at the next time when the registry is open. Thus, a document filed for example at 5:01p.m. on a Friday would be taken to be filed the following Monday at the time when the Registry next opens. The Registrar retains the power to reject a document for filing in circumstances where the Court so directs or if it is frivolous, vexatious, scandalous or an abuse of the process of the Court. A document may also be rejected by the Registrar if it does not substantially comply with the rules.

FEATURE

Significantly, if a document filed electronically which was conditionally accepted for filing is rejected within seven days of lodgement by the Registrar, it will be treated as not having been filed. This may have consequences on time sensitive matters (such as applications to set aside a statutory demand which must be filed and served within 21 days of receipt of the demand and where case law has developed that to be a proper application it must not just be filed, but also have on it a return date). The Court may order that a document be treated as having been filed on an earlier date if the document ought to have been accepted for filing by the Court earlier. A document is issued by the Court when a filed document number is allocated, the Court’s seal is applied or the signature of a court officer is applied to the document by the ECMS or the Registry. It is sufficient for the purposes of the Rules, to serve a true copy of the issued document downloaded from the ECMS or a true copy of a downloaded copy.

THE RULES The Rules are divided into two components. Most of the new rules will be contained in the Uniform Civil Rules. There are also ‘Schedules’ to the new Rules, which largely include topics that are less frequently used such as those relating to electronic document protocols, freezing orders, service of documents overseas, and commercial arbitrations. There is no longer a need to cross reference the rules against the ‘Supplementary Rules’. Overarching obligations The new Rules contain a provision placing obligations on both parties and lawyers to, amongst things, act honestly,

not take frivolous or vexatious steps, or make assertions for which they do not have a proper basis. Each of those matters represents obligations that already apply. Some new matters include ‘not to take a step unless they reasonably believe that it is necessary to facilitate the resolution or determination of the proceeding’ and to use reasonable endeavours to ensure that time and costs incurred are ‘reasonable and proportionate’ to the importance and value of the subject matter of the proceeding or the complexity of issues raised. Sanctions can be ordered against the parties (including their insurers) and lawyers including as to costs or the making of orders to avoid or mitigate the prejudice to be suffered by a person arising from the failure to comply with the Rules. Further, the Court may, in making orders, have regard to the objects of the Rules, including having regard to (amongst other things) the nature and complexity of issues, the importance of the subject matter or step, proportionality between time and cost incurred and the complexity of issues, and the extent to which a person has complied with the overarching obligations. Whether these overarching obligations result in a change in behaviour (in terms of the kinds of applications made or interlocutory disputes) from parties themselves and the way in which the Court manages litigation will be interesting to monitor. For example, the idea of ‘proportionality’ could potentially see some interlocutory applications dismissed as the costs being disproportionate to the benefit. On the other hand, perhaps nothing will change with applications being justified as being in the applicant’s view ‘reasonable’ and ‘necessary’. It will also be interesting to see whether the Magistrates Court adopts any less technical an approach to issues

like pleadings than the Higher Courts, given the inherent disproportion between cost of litigation and amount in dispute in particular in that jurisdiction. Originating Claims/Originating Applications Presently most proceedings are issued in the Supreme and District Court by way of Summons, or, in the Corporations List, by Originating Process. In the Magistrates Court proceedings were generally issued by a ‘Claim’ or, for statutory proceedings, an ‘Application’. The new Rules adopt the Magistrates Court’s approach. There will be the filing of Claims – which are to be accompanied by pleadings, or Originating Applications. Claims are used for common law or equitable causes of action, and statutory remedies analogous to common law or equitable causes of action. Originating Applications are defined as a proceeding that does not include a Claim, and will be used for certain types of statutory proceedings. With Originating Applications, a return date will be given when the application is filed. With Claims a directions hearing will be listed only after a defence is filed. Claims are to be accompanied by a pleading. Originating Applications are to be accompanied by an affidavit which contains admissible evidence setting out the facts relied upon to obtain the orders sought. Pre Action Protocols The rules mandate pre-action steps to be followed before Claims are instituted. For Originating Applications compliance is optional. The object of the pre-action steps is to encourage resolution before commencing litigation (or at least a narrowing of the issues). On the one hand May 2020 THE BULLETIN

FEATURE

this may result in delays in having matters instituted and determined. On the other hand, matters should be substantially more advanced at the time of filing than they presently are, with the hope of avoiding some matters being lodged at all. The Rules extend the requirement to give early notice of medical negligence to personal injury claims generally (except in relation to claims under section 126A of the Motor Vehicles Act 1959 or for which notice was given under section 30 of the Return to Work Act 2014 which have statutory requirements for notices). The Pre-Action Steps for Claims include the requirement to give a preaction claim by written notice (which replaces the old Rule 33 pre-action letter). Unless otherwise agreed the preaction claim (and any response) is to be confidential and the subject of privilege (save that they may be relevant to the question of costs). The particulars for the pre-action claim are more onerous than the previous rule. The notice is to include (amongst other things) the provision of sufficient material necessary for the respondent to respond as required by the Rules; an estimate in the prescribed form of the total costs likely to be incurred by the applicant if the matter proceeds to trial (except for personal injury claims); an offer to settle the claim in terms capable of giving rise to a legally binding agreement if accepted; and a proposed date and time and physical location or audio visual or telephone link for a pre-action meeting. There are a number of exemptions from the obligation to serve a pre-action claim including for commencement of proceedings where urgent relief is sought including by way of a search or freezing order or an interlocutory interim injunction is sought and the applicant fears that if a pre-action claim is provided to the respondent the process for obtaining the injunction will be frustrated. Exemptions include where there is a statutory time limit of not more than 3 months; or if the dispute has been the subject of a similar dispute resolution process; or the applicant reasonably

12 THE BULLETIN May 2020

believes the claim will be uncontested (or is not generally contestable) and serves on the respondent a Final Notice; or it is a minor civil matter; or for certain statutory actions including an Originating Application, proceedings for payment under the Building and Construction Industry (Security of Payment) Act 2009, or the proceeding is a dust disease action that meets the criteria for an Urgent Case. Applicants may assert that the Claim is not genuinely contestable, though such an approach may lead to the other party seeking orders for non-compliance. However, the fact that proceedings are about to become statute barred is not one of the exceptions (other than as set out above) â&#x20AC;&#x201C; the expectation is that parties should not avoid the need for compliance by leaving their Claims to the last moment. Further steps include that a respondent who receives a pre-action claim must within the prescribed time serve on the applicant a pre-action response and a preaction meeting is to be held within 21 days after the time for service of the last preaction document. The pre action meeting is a new requirement for most actions (it is part of the present Construction protocols). Absent agreement, the meeting is to be face to face, however the parties can agree to have a telephone meeting or video meeting. The parties are to negotiate in good faith; identify the main issues in dispute and primary cause of disagreement; how the issues may be resolved without recourse to litigation. The parties are directed to consider alternative dispute resolution, and to consider whether to appoint an independent person to chair the pre-action meeting. The Rules strengthen the cost consequences of non-compliance with the pre-action steps including unless the Court orders otherwise, an applicant who breaches the pre-action rules is not entitled to recover the costs of preparing, filing or serving the Claim. At the time when the proceeding is instituted the applicant must certify on the Claim whether a pre-action claim and pre-action response have been served and if a pre-action meeting has been held. A special directions hearing will automatically be listed by the Court

when the pre-action steps have not been complied with and the Court may make such orders as it thinks fit including, without limitation, ordering that any pre-action step or steps in lieu be taken, staying other steps in the proceeding, making orders for ordinary steps in the proceeding to be taken or making orders for costs of a defaulting party (including costs fixed in a lump sum or on an indemnity basis payable forthwith). Given that the Rules provide that the pre-action communications are confidential, there will be a limit on the Court doing much other than adopting a checklist approach to any such orders (i.e. the Court could not be expected to descend into detail as to whether a party negotiated in good faith as that would involve consideration of privileged material). Service The Rules contain a table setting out what is regarded as personal service and also provide for service by express post if certain requirements are met, including where the sender obtains from Australia Post proof of posting by way of an Article Lodgement Receipt showing when the envelope was received over the counter at a post office and proof of delivery via Australia Postâ&#x20AC;&#x2122;s online tracking facility showing when the envelope was delivered to that address. Email service is also permitted provided there has been communication from the relevant email address in relation to the subject matter of the proceeding or the dispute the subject of the proceeding. A document is served by email where the recipient replies to or acknowledges receipt of the email (though an automated response by the recipientâ&#x20AC;&#x2122;s email service is not a reply or acknowledgment for the purposes of the rule). Generally speaking, personal service is no longer required in the District Court and Supreme Court for an Originating Process (although personal service may still have an advantage of certainty given experience in the Magistrates Court shows it is remarkable how many times a defendant asserts that Claims go missing when served through Australia Post!).

FEATURE

The Claim documents must be served on the respondents and interested parties within 6 months of being filed. The notes to the rules provide that the Court expects parties to be served, and, if the claim is for damages for personal injuries and the injuries are not stable or some other reason exists for no further steps to be taken, that the applicant would invoke the rule relating to a moratorium of steps rather than not serving and seeking an extension of time to serve. There are also provisions for solicitor service, agent service, agreed service, substituted service, deemed service and original service. The Rules set out the particular service requirements for certain types of documents, including an originating process, subpoena, enforcement process and other documents requiring original service which have particular requirements. They also contain provisions for an Address for Service noting that it must include not only the law firm but also the individual responsible solicitor and if the individual responsible solicitor within a law firm acting for a party changes, a notice of acting showing the new responsible solicitor must be filed and served on all parties within 7 days.

There are also provisions which set out the requirements for proof of service for the different categories of service allowed under the Rules. Amendments Terminology has changed – Amended documents should be marked as ‘Revision 1’, ‘Revision 2’, as the case may be. The rules require any amendments to be marked up (including deletions in strike through) and numbering preserved (for example by inserting an additional paragraph between paragraphs 10 and 11 as 10A). There are changes as to when documents may be amended. For example, pleadings can now be amended on more than one occasion without consent or leave if this is done within the time allowed (14 days after lists of documents are due) - the Rules do provide that the amending party pay the other party’s costs thrown away unless an order is made to the contrary. Notices of appeal may be amended before the appeal is listed for hearing. Pleadings Most of the pleadings rules reflect the current rules. Particulars are to be requested within 28 days of the receipt of the pleading in question.

The Court may order that instead of there being separate pleadings, that there be a Consolidated Pleading where the parties file their pleadings progressively into one document. Discovery There are a number of potential ways to make discovery including general discovery, discovery by categories, or specific discovery, using the Physical Protocol, Simple Electronic Protocol, Complex Electronic Protocol, and Combined List of Documents. The default position is general discovery by way of the Physical Protocol (when the use of an electronic protocol is not needed or justified). This is the reverse of the current position in the Higher Courts. The Rules clarify that a document is a discoverable document if it is directly relevant to an issue raised in the pleadings, and that a document will be directly relevant if it is intended to be relied upon at trial or supports or adversely affects a party’s case. Experts Reports Much of the new Rules are similar to the existing Rules. An expert who is preparing a report in response to or in the same field of

DONATE TODAY childcancerresearch.com.au

FUNDING EXCITING NEW IMMUNOTHERAPY TRIALS CLCRF have been funding child cancer research for 40 years and have a commitment to ensure the ground-breaking research continues - so that the future generations will be the ones to live cancer free

08 9363 7400

PO Box 1118, West Perth WA 6872May 2020 THE BULLETIN 13

FEATURE

expertise or dealing with the same subject matter as an expert report by another expert should, to the extent practicable, confer with the other expert about their respective assumptions and opinions. The rule is expressed to apply to both the prior expert and subsequent expert. If an expert subsequently changes their opinion about any material matter, the expert must provide a supplementary report. Litigation Plans Litigation plans are no longer compulsory but may be ordered by the Court or the parties may agree to provide them. Tender Books Tender books are required in the District and Supreme Courts, and may be required in the Magistrates Court. Documents must be included in a joint tender book if a party nominates its inclusion (even if the other party objects). Generally, documents are to be in chronological order, paginated, and separated by dividers. The applicant is to prepare the draft index 35 days before trial; the other parties must advise as to any additional documents 21 days before trial; and objections to documents or passages within them are to be filed 7 days before the trial, using the abbreviation codes set out in the rules. Leave of the Court is required to object to a document in the tender book if the rule hasn’t been complied with. Parties must also, at least seven days before trial, file and serve any objections to any parts of any expert report(s). Again, no objection may be made at trial without leave of the Court if this process is not followed. The Court can order that evidence be given by way of affidavit or witness

14 THE BULLETIN May 2020

statement. The rules provide for timelines for the filing of the same and for notices of objection. Again, if the notice of objection procedure is not complied with, any objection at trial requires leave of the Court. Appeals The main changes to appeals relate to Full Court appeals which are aimed at reducing the time taken to bring a matter to hearing. One of the ways has been to eliminate the joint certification of appeal books and set down procedure. There is a requirement to file a ‘core appeal book’ within 28 days of the ‘preparation commencement date’. The core appeal book contains what can be described as a list of standard and noncontentious items (including amongst other things the judgment appealed against, current originating process and pleadings, list of exhibits tendered at trial, index to transcript). The appellant is to file its written submissions and list of authorities within 28 days of the preparation commencement date, along with a ‘draft chronology’. The respondent is to make any revisions to the draft chronology and file its written submissions in reply within 14 days. The appellant is to file the final chronology and any submissions in reply within a further 14 days. The written submissions are not to exceed 20 pages, or 10 pages for the reply without the leave of the Registrar or the Court. The idea is that the chronology is prepared progressively with input from both parties. Notices of appeal can be amended without leave before the appeal is listed for hearing – preparing the written submissions early is accordingly a good idea to ensure the grounds of appeal match the submissions.

The appellant is then to prepare an exhibit appeal book which contains only those exhibits referred to or relied on in the written submissions. 3 copies are to be filed, and within 7 days the parties are to revise their written submissions to incorporate the cross references to the exhibit appeal book, Minor Civil Actions There are separate rules for minor civil actions. Lists Finally, the rules contemplate that there will be a number of specialist lists including (in addition to the existing Corporations Lists, Fast Track Lists and Possession Lists) the creation in the District Court of a Commercial List, Construction List, and Personal Injuries List. The new inclusions will often be judge managed by judicial officers with special expertise in the field.

CONCLUSION Given the significance of the changes to the rules and the introduction of the ECMS it is likely that there will be a significant adjustment period for practitioners, the Registry and the Courts generally. It is anticipated that in due course once transitioned, the ECMS and Uniform Civil Rules will create efficiencies for all Court users. Of more significance however, will be whether strengthening the overarching obligations in the rules (and the enforcement of the mandated Pre-Action steps) has any impact on the Court’s management of litigation generally and the flow on effect that has on the behaviour of litigants and whether this reduces the number or duration of court proceedings. B

ADVOCACY

PREPARING FOR CRIMINAL TRIAL ADVOCACY 101 EDWARD JOLLY, BARRISTER, LEN KING CHAMBERS

his paper was originally prepared as “how to prepare” guide for the Advocacy Committee’s practical Advocacy Workshops that are run for practitioners in their first five years of practice. These CPD sessions are run by the Advocacy Committee throughout the year and are a great place to “try before you buy”. The difference between a criminal advocate in Court and a criminal solicitor sitting in an office is the decisions you repeatedly make whilst on your feet at the Bar table and under pressure. The CCA refer to this as “a forensic decision made by counsel at trial”. This is a polite way of referring to how you deal with a witness who has not come up to proof (gone “off script”); evidence that you thought was admissible but was ruled inadmissible (and vice versa!); and, objecting to a question but not being able to articulate why you have objected to the question. It also encompasses those occasions where your opposing counsel is suffering from FITHS (syndrome proposed for inclusion in DSM VI). These are just few examples of what can happen during a criminal trial; there are many, many more… The goal of the Advocacy Committee’s Advocacy Workshops is to engage and trigger a budding advocate’s ‘forensic decision making’ skills. The goal of this paper is to get you to sign up for an Advocacy Workshop. Failing that, it attempts to provide some guidance on how you might prepare for a criminal trial.

PREPARING FOR THE TRIAL Prior preparation is the only way to deal with the forensic decisions that are guaranteed to arise in criminal trials. Once you are 100% prepared, do some additional preparation, and then a little bit

more preparation. There is nothing else required. If someone tells you that there is an alternative approach, they are lying and/or they are grossly intoxicated. Preparation for a criminal trial starts with the chronology. The process of completing the chronology forces you to order (sequence) and then retain events the subject of the charge(s). In doing so, it can reveal holes in the evidence and the case narrative. It also provides you with an overview of the case. Consider the following: when a witness gives evidence with the correct sequence of events coupled with a consistent narrative (ie, the same details each time), it allows for the submission that the witness is reliable and credible, and thus truthful. The converse is the submission that when the evidence lacks reliability and credibility, a doubt may arise. You can only confidently identify the significance of the sequence and details of the actual events after having placed them in chronological order. This helps to identify irrelevant evidence that might have seemed important when simply reading the statements. Once complete, the chronology should identify the elements of the offence that have sufficient evidence, or insufficient evidence, or that there is no evidence to meet an element. The chronology also allows you to categorise and qualify the evidence; is it direct or circumstantial? What is its probative value? For example,

a good ratio result with DNA evidence would be highly probative, as opposed to a photo board identification that might have a low probative value. Is the evidence corroborated? Particularly in a complex or large trial, a chronology can rapidly identify if there is corroborative evidence. In circumstantial cases, the chronology can also identify, for a prosecutor, any potential “explanations” consistent with innocence that will need to be excluded on the prosecution case. This is also helpful for defence counsel. The chronology will also help you identify any evidence that might require, if prosecuting, the filing of a Discreditable Conduct Notice (section 34P Evidence Act); and for defence counsel, any evidence that needs to be challenged and potentially excluded via a pre-trial application under rule 49 (voir dire). Once the chronology is complete, the next step in effective preparation is drafting your closing address. This helps you identify the relevant evidence and thus the critical evidence. Importantly, it allows you to speak with authority on what is the real issue for trial. Judges love it when this occurs!

EXAMINATION IN CHIEF (XN) If you are nervous about conducting an effective examination in chief; fear not, you are in good company. An effective examination in chief is often more difficult than cross examination.

Chronology Example: CHRONOLOGY – R V KNOBB DATE TIME

EVENT

June 2010 Complainant purchases house in Halcion Drive June 2014 Argument in hull of boat

WITNESS REFERENCE Drivell Drivell

Pg 1, para 3 Pg 2, para 18

May 2020 THE BULLETIN

ADVOCACY

Witnesses in criminal trials regularly do not come up to proof, regardless of how many times they have been ‘proofed’. When this happens, even competent counsel can struggle if not properly prepared to lead a witness in chief. Some advocates prepare their chief by listing the topics on which they are going to ask questions. Other advocates make annotations on the witness statement(s). I suggest that for criminal trials a good habit to begin with is to write your questions in chief in prose. The purpose of writing out your questions in full is not so you can read them verbatim in Court when you are leading your witness in chief. When a person reads out loud, it shuts down their other senses, such as hearing and seeing what is going on around them and this is not good for your health in a court room. Writing out your questions in full achieves a number of objectives in one action: • When combined with the already prepared chronology and draft closing address, critical evidence is well and truly embedded in your brain. • It gives a sense of direction, a sense of being prepared, and thus creates confidence. • It forces you to look at the structure of the question. • You can easily see the sequence of your questions. • It makes it easier to ‘vocalise’ the question (how it will sound in Court). • You can readily identify questions that might provoke an objection; and, • You can identify questions that might trigger a mistrial (more common than you think!).

16 THE BULLETIN May 2020

I make the same recommendation for cross examination questions and your opening and closing addresses as you start down the path of a criminal advocate. The primary reason is that writing out your questions and submissions is effective and efficient preparation; the process “loads” your case firmly into your brain. When you are on your feet leading your witness in chief, by having written out your questions in advance, you will find that by actively listening to your witness, you will get a feel for how they are ‘tracking’ with their evidence. You will probably see that they provide answers that cover several of your questions. Or, they may not come up to proof with a question you ask, and this may make the next series of your prepared questions redundant. The critical point is that it is much better to have planned the questions in advance as omitting some of them, when you are on your feet, will cause less stress than trying to articulate a question that goes beyond your scribbles on the witness statement or wasn’t covered in the list of topics you jotted down when reading the Brief. Once you have notched a few trials on your belt, your written questions in prose will become a general guide that will allow you to readily adapt to any response by a witness. Your written questions do not preclude you from asking questions that will naturally arise from the witness’ response. A good examination in chief should be like an iconic television interview; a conversation skilfully conducted by the interviewer where the person interviewed is providing all of the information (think ‘Graham Norton!’). Having written out your questions; if you see the word “and” in what you have

written, then it is likely to be a compound question (thus requiring more than one answer) and the question should be split into two or more questions. If you see a full stop or a question mark followed by sentence, then it is again likely to be a compound question. You don’t need to explain or give a prequel for your questions in chief; just ask the question. It is okay to use headings when you write out your questions and it is okay to use those headings when you are asking questions: “can I take to you back to New Year’s Eve in 2015; were you at home that day?” In chief, you should be looking to use questions that follow the ‘who, what, when, where, and why’ process. Foolproof! When you are on your feet and flummoxed, just say to yourself, ‘who, what, when, where, and why’ and you will be able to reset and continue! Avoid, wherever possible, the question “and what happened next?”; it’s lazy and might adduce evidence that you are not expecting. Avoid questions that are too general or vague. For evidence in chief, your questions should be chronological in order, so do not jump around the timeline as this will confuse your witness. With cross examination, you do the complete opposite! Do not be afraid of leading questions on non-contentious issues. If leading was strictly prohibited in criminal trials they would take three times as long to complete!

CROSS EXAMINATION (XXN) In preparing for cross examination, the first step is to think of Mount Everest. The colloquial response of every mountain climber to the question of “why did

ADVOCACY

you climb [insert name of iconic mountain]?”; is, of course, “because it was there”. The same can be said of cross examination. Many (all) new criminal advocates are beguiled by the ‘Cruise/Nicholson Syndrome’ (Google “you can’t handle the truth!”) and thus believe that one must cross examine every witness until they break down in the box and confess all, which never happens in ‘real life’. How many Hollywood series/movies contain devasting scenes of examination in chief ? Your starting point is posing the question to yourself as to whether you in fact need to cross examine a witness. As with chief, my recommendation is to write the questions out in prose. All you need are my three golden rules in order to determine if you need to ask questions in cross examination! Your goal in cross examination is to show that a witness or piece of evidence lacks consistency, and/or reliability, and/ or credibility. These three factors, when combined, are the hallmarks of truth. The Three Golden Rules 1. Substantive Inconsistency • Will my cross examination establish a substantive inconsistency between: ∘ The prosecution witness’s oral evidence and their statement to police? ∘ The witness’s oral evidence and other evidence? 2. Substantive Issue of Credit • Will my cross examination identify a substantive issue of credit regarding the witness? ∘ A question of motive? ∘ Does the witness have an agenda?

∘ Should I use the witness’ antecedents? 3. Compliance with the rule in Browne v Dunn (1893) 6 R. 67, H.L • Sometimes, all you have are your instructions! The practical necessity is obvious, as Justice Wells noted in Reid v Kerr (1974) 9 SASR 367 at 373-4: ... a judge (or a jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night. You will see that the operative word in the first two rules are “substantive”! Just because a witness gives oral evidence about there being four panes of glass and their written statement refers to two panes; it does not mean that you will need to cross examine on this potential inconsistency. Apply the ‘Golden Rules’; is it a substantive inconsistency? If the answer is “no”, then don’t cross examine on that point. Cross examination that solely focuses on the substantive issues is very powerful and does not go unnoticed by the trier of fact!

TAKING AND DEALING WITH OBJECTIONS A trial that is replete with counsel objecting, is a trial where the jury or trier of fact is constantly distracted. A distracted jury/judicial officer is never desirable, regardless of who you represent.

The purpose of the voir dire is to ‘object’ in advance, to the admissibility of evidence. Thus, well prepared advocates should not have to object to too many substantive questions of admissibility during the trial. Most objections during trial focus on the question asked (as opposed to the answer). The common objection is usually one of relevance. The second most common objection is that of hearsay. They usually both focus on a loose or clumsy question that is in danger of adducing irrelevant evidence or hearsay evidence. The third common objection usually relates to the form of the question; it might be lacking in precision, or inadvertently misstate the evidence, or it might just be a clumsy question. For new advocates, I recommend revisiting the Evidence Act 1929, sections 22 through to 25, and 27 to 29 inclusive. It can’t hurt.

CONCLUSION If, at the end of the day, you are still dazed and confused about criminal advocacy, recall to memory the timehonoured aphorism that criminal barristers swoon at the sound of their own voice. Then pick up the phone and start calling your friendly neighbourhood criminal barrister… The author has endeavoured to be a windswept and interesting criminal barrister for the last 22 years, largely as a means of concealing the fact that he is mostly dazed and confused. For their entertainment, his colleagues at Len King Chambers allow him to continue to try to practice as a criminal barrister. With the emphasis on ‘practice’… B May 2020 THE BULLETIN

ADVOCACY

Mandatory prison for sex offences: the effect of the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 ANDREW CULSHAW, LEN KING CHAMBERS

n 23 May, 2019, the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act (“the Amending Act”) came into force. The Amending Act made amendments to the Sentencing Act and the Correctional Services Act. The amendments apply to all offenders sentenced after the commencement of the Amending Act, regardless of when the offending in question was committed. This article discusses the most substantive amendments to the Sentencing Act. Most commonly encountered by the criminal lawyer will be the prohibition on suspension of sentences of imprisonment for certain sexual offences. This will have the knock-on effect of lowering the bar for the categorisation of a defendant as a serious repeat offender for the purposes of Part 3, Division 4 of the Act. An offence is not one to which the Division applies if a suspended sentence is imposed. The removal of suspension as a sentencing option will bring many offenders closer to the “three strikes” threshold set out in s 53 of the Sentencing Act.

SENTENCING FOR “SERIOUS SEXUAL OFFENCES” – THE PRE-AMENDMENT POSITION Before the commencement of the Amending Act, a sentencing court was prohibited from ordering that a sentence for a “serious sexual offence” be served on home detention. “Serious sexual offence” is defined by s 71(5) of the Sentencing Act and includes most sexual offences contained within the Criminal Law Consolidation Act. The only exception to

18 THE BULLETIN May 2020

the prohibition on such home detention orders was the existence of “special reasons”, in respect of which the court was entitled to have regard only to the following matters: • The defendant no longer presenting an appreciable risk to the safety of the community by reason of advanced age or infirmity; • The interest of the community as a whole being better served by the defendant serving the sentence on home detention rather than in custody. The “special reasons” provision, s 71(4), did not expressly state whether it was necessary to satisfy both criteria, only one, or whether those two criteria were the matters to which the Court was to have regard in a weighing process to determine the existence or otherwise of special reasons, such that strict satisfaction of either or both was not necessary. No such limitation existed on the power to suspend a sentence of imprisonment for a serious sexual offence. The court was therefore able to impose a less serious punishment (a suspended sentence) but precluded from imposing a more serious punishment (home detention) except in limited circumstances. This anomaly was addressed by the Amending Act.

THE AMENDMENTS TO THE SENTENCING ACT In summary, the anomaly was addressed by largely precluding suspended sentences for serious sexual offences so as to bring the suspended sentence regime into line with the home detention regime.

Amendments to home detention provisions The Amending Act made two substantive amendments to s 71 of the Sentencing Act. The ambiguity in s 71(4) of the Act was one of the issues raised in the high-profile case of Vivian Deboo, which was described in the Parliamentary Debates as the “catalyst” for the Amending Act. Judgment in Mr Deboo’s case was reserved at the time the Amending Act came into force. Section 71(4) of the Act was amended so as to make clear that it is necessary for an offender satisfy both criteria to make themselves eligible for a home detention order. The Court of Criminal Appeal ultimately held that was the effect of the pre-amendment provision in any event: R v Deboo [2019] SASCFC 74 at [54]-[60]. The second substantive amendment slightly broadened the circumstances in which a home detention order might be made. Section 71(2)(b)(ii)(A) was inserted into the Act, which permits a home detention order where the offence is “a prescribed serious sexual offence that occurred in prescribed circumstances”. In summary, this amendment provides home detention as an option for a “Romeo and Juliet” offender who commits an offence that falls short of the most serious sexual offences. “Prescribed serious sexual offence” and “prescribed circumstances” are defined in ss 71(5) and (6) of the Act respectively. It is not proposed to describe those subsections exhaustively, however it is important to note that for prescribed circumstances to be made out, the offender must be aged 20 years or less at the time of the offence. The

ADVOCACY

Parliamentary Debates make clear that this is to be interpreted as meaning that the offence occurred before the offender’s 21st birthday. The definition of “prescribed serious sexual offence” limits the offences to which this exception applies to objectively less serious (albeit unpleasant) sexual offences such as unlawful sexual intercourse, offences of indecency and lower end child exploitation material offences. Amendments to suspended sentence provisions The suspended sentence provisions of the Sentencing Act have been amended so as to preclude a suspended sentence for a defendant being sentenced as an adult for a “serious sexual offence” - s 96(3)(ba). “Serious sexual offence” is defined by a combination of ss 96(9) and (10) so as to permit a court to suspend a sentence in the same circumstances as those in which a home detention order can be made pursuant to s 71(2)(b)(ii)(A) of the Act, considered above. There is no equivalent in s 96 of the Sentencing Act to s 71(4). In other words, “special reasons” as defined in s 71(4) give rise to power to make a home detention order, but do not give a basis to suspend a sentence of imprisonment. The power to impose a suspended sentence on home detention conditions for reasons of ill health, previously contained in s 96(7) of the Sentencing Act, has been omitted from the Act. This power had been overtaken in a practical sense by the creation of home detention as a sentencing option in 2016. However,

its omission closes a potential opportunity for defendants in the new, more restrictive, sentencing regime for sex offences.

PRACTICAL IMPLICATIONS The amendments have caused a shift in the way criminal practitioners view what might be considered low to midlevel sexual offences. The vast majority of sexual offenders are no longer eligible for a suspended sentence of imprisonment or a home detention order. It takes little imagination to envisage circumstances that previously would have plainly constituted good reason to suspend a sentence of imprisonment, where the amendments will operate harshly on the offender. For example, a first offence of indecent assault, an offence of (consensual) unlawful sexual intercourse where the victim has deceived the offender about their true age, or a barely competent, intellectually challenged offender. Where previously counsel were willing to accept a sentence of imprisonment was inevitable and focus on the question of suspension, the unavailability of that sentencing option has led to counsel seeking sentences other than imprisonment, usually in the form of a good behaviour bond pursuant to s 97 of the Sentencing Act. Anecdotally, courts have been receptive to submissions of this nature in an appropriate case. The other type of case where the amendments have caused a shift in approach is that where previously the question of suspension might have been considered borderline. In such a case, defendants would frequently be advised

that the remorse demonstrated by a plea of guilty might be the difference between going to prison and receiving a suspended sentence. That incentive to enter a plea of guilty is no longer in existence. It is anticipated that more sex cases will proceed to trial in light of the amendments; the alleged offender might “roll the dice” with little to lose by doing so. Therefore, the amendments might operate harshly not only on the offender, but also their victim who will be forced to give evidence at trial where previously the offender might have pleaded guilty. In these circumstances, and bearing in mind the guilty plea discount scheme provided by sections 39 and especially 40 of the Sentencing Act, it is important that a prosecution case is rigorously analysed and a defendant comprehensively advised at an early stage. Whilst a 10% discount on sentence for a guilty plea entered shortly before trial may not be a substantial incentive to plead where a custodial sentence is inevitable, a 30 or even 40% discount for a plea entered at committal might encourage a defendant to give more sober consideration to his or her plea.

CONCLUSION The Amending Act has taken away from the court a sentencing option that gave flexibility to be adapted to the circumstances of a particular case. It is crucial that a criminal practitioner advising a client charged with a sexual offence be alive to the amendments and give prompt, comprehensive advice on potential penalties and the benefits of an early guilty plea. B May 2020 THE BULLETIN

YOUNG LAWYERS

facebook.com/YLCSA

Coffee with Barbara – The Legal Forecast MATTHEW RISMONDO, SOLICITOR, SWAN FAMILY LAWYERS

met with Barbara Vrettos on 14 November, 2019 for a coffee and a chat at BTS Café. At the time we met, Barbara was the SA President of The Legal Forecast (TLF), an organisation of early-career professionals who are looking to bridge the gap between the legal profession and technology and innovation. Barbara stepped into the role of Director in early 2020. Although TLF is structured as a company limited by guarantee, it is still a not-for profit. TLF have representatives in Melbourne, Sydney, Adelaide, Perth and Canberra as well as their headquarters in Brisbane. Barbara is also a lawyer at Cowell Clarke and recent Flinders University Law and Legal Practice (Honours) and Justice and Society (Criminology) graduate. TLF’s work does not bring its members any financial gain but provides them with “intellectual and social satisfaction” that they are boosting everyday Australians’ access to justice. Each State operates differently and dependent on their establishment, sponsorship and profession support. Barbara admits that it has been difficult to get TLF off the ground in South Australia and notes some resistance from more traditional or conventional members of the profession. This is contrary to the general feeling towards innovation and technological advances in South Australia, given recent funding increases in these areas from the Government. Barbara emphatically believes that South Australia is now the innovation hub of Australia.

DISRUPTING LAW HACKATHON This is probably TLF’s biggest event in the calendar and following on from 2018’s success, was expanded to Queensland, Victoria, South Australia, New South Wales and Western Australia for 2019. The 2019 event can proudly say that it was Australia’s biggest legal tech hackathon to date. Disrupting Law is a chance for

20 THE BULLETIN May 2020

forward thinking lawyers, technologists, students and innovators to join forces with the common goal of finding new opportunities in the legal industry. It is fast pace, creative and interdisciplinary problem solving with the dial turned all the way up to 12! Run over a weekend, Disrupting Law is 54-hours of “ideas men” (sorry for the Castle reference) from a range of faculties and universities coming together to search for the next best idea to advance the legal practice. All State-based winners headed to a national round where the winners were in February 2020. Law firms and universities are enlisted as Disrupting Law mentors who present a problem derived from their own processes, or a brief, to participants who are then tasked with searching for the best and most innovative solution. The participants and their mentors then spend 54 hours designing an idea that will work. Teams will then pitch that idea to a panel of experienced judges and the public in the hopes of winning gold. One success story Barbara speaks of, an idea out of Queensland’s hackathon event

last year, allows everyday Queenslanders the help needed to resolve disputes with their neighbour through a chatbot. The Queensland government have now funded the chatbot concept which can be accessed through their QCAT website and government website. There were humble beginnings in South Australia this year but we believe that this will only continue to grow as more law firms jump on board and realise the value of such intense and open-minded collaboration over one weekend. We speculate that it might have something to do with lawyer’s unfounded fear of artificial intelligence and automation taking their jobs. Barbara assures me that my job is safe and that lawyers have always adapted to new technologies and advances that are intended to make our lives easier. The only danger with the relationship between AI and lawyers is resistance. Barbara was optimistic for the year ahead, citing a plan of more refined and interactive events. The Young Lawyers’ Committee looks forward to seeing what TLF brings to 2020!

COVID-19

Ensuring legal services can be delivered during COVID-19

arrangements to be put in place with respect to the signing of court documents, as has been done in the Family Court and Federal Circuit Court.

he COVID-19 pandemic has thrown up a number of challenges for the legal profession and the Society has been working with Members, the Government and other stakeholders to ensure that they can continue to provide legal services to the public during a time where such services will be required more than ever. Following advocacy by the Society, the COVID-19 Emergency Response Act 2020 included: • regulation making powers to enable legislative requirements relating to documents to be amended (including preparation, signing, witnessing, attestation, certification, stamping) during the COVID-19 pandemic; • amendments to the requirements around service of documents; and • regulation making powers to enable the extension of statutory time frames.

PERSONAL INJURY CLAIMS DURING COVID-19 The COVID-19 pandemic has had significant impacts on personal injury claimants. In the workers compensation space, the Society was concerned for claimants whose matters had stalled due to Return to Work SA temporarily ceasing referrals for whole person impairment assessments. The Society made suggestions as to how delays may be mitigated at this time and raised concerns relating to time limits relating to medical impacts. RTWSA has advised that it will recommence referring workers for permanent impairment assessments from 4 May. The Society has also been working with the CTP Regulator to ensure that the COVID-19 pandemic does not impact the rights of persons injured in motor vehicle accidents. The Society met with the CTP Regulator to discuss its concerns with respect to medical and psychiatric assessments. The Society was consulted by the CTP Regulator with respect to the undertaking of Injury Scale Value (ISV) and Guide for the Evaluation of Psychiatric Impairment for Clinicians (GEPIC) assessments by psychiatrists using video conferencing/audio visual link.

SIGNING & WITNESSING DOCUMENTS VIA VIDEO CONFERENCE The Society has written to the Attorney General seeking regulations to provide for the electronic witnessing of documents. This would enable documents such as wills, powers of attorney, deeds, and affidavits to be witnessed using audio-visual link. The Attorney General advised that she would not be making any such regulations at this time. The Society will continue to advocate for these temporary measures. The Society has also written to the Chief Justice seeking

ESSENTIAL LEGAL SERVICES The Society has advocated both at a State and Federal level as to the importance and essential nature of legal services during the COVID-19 pandemic. The Society made submissions that the justice system is an essential service and the legal profession is critical to the essential and continuing functions of the justice system throughout the COVID-19 pandemic. The COVID-19 pandemic has increased demand for a variety of legal services. The Society takes the view that all legal services are essential and will be required throughout and following the COVID-19 pandemic. The Society and the profession have been working with the courts to facilitate the increasing use of technology to ensure compliance with COVID-19 restrictions across all jurisdictions. The COVID-19 pandemic and the restrictions imposed in order to mitigate the public health risks of COVID-19 have, and are likely to continue to have, a serious impact on the legal profession and the community. Access to legal services will be essential throughout and of course following the pandemic. The Society will continue to advocate for the profession and the community during these challenging times. 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 May 2020 THE BULLETIN

COVID-19

Managing your practice during COVID-19: a guide

ith the COVID-19 pandemic causing so much upheaval, it can be difficult to know how one should operate in this environment. With regards to legal services, much has changed, but some things, such as a lawyer’s ethical obligations, remain the same. The Society appreciates the challenges facing the profession and is committed to ensuring that the profession can navigate this trying time while limiting unwanted professional risks. The following article sets out to remind practitioners of their regulatory obligations, and to provide some guidance where the current circumstances create practical, procedural or ethical challenges. The article also summarises some of the temporary measures the Society has put in place to assist members during this time, and compiles some of the key advices and updates relating to providing legal services during COVID-19. Ethical Obligations Practitioners are doing everything they can to continue providing legal services in these extraordinary circumstances, but are having to rethink and change the way they practice and are facing new difficulties and challenges on a daily basis. Despite this, it is still business as usual with regard to statutory and professional obligations that have not (at the time of print) been subjected to temporary COVID-19-relief legislative amendments. Practitioners are therefore encouraged to still be mindful of the ethical and statutory obligations that continue to apply notwithstanding the current circumstances. What has changed, and may continue to change, is how these obligations are observed in specific circumstances. Importantly, it’s not about whether you can comply but about how you do so in your particular circumstances. How you comply with any professional obligation will depend on factors such as the resources available to you, the nature of the matter, what orders have been made and applicable time limits, availability

22 THE BULLETIN May 2020

of alternatives for attending court and obtaining client instructions in person. You will need to satisfy yourself that the steps taken by you in client matters permit you to observe your professional obligations under all of the circumstances. Practitioners are further encouraged to not only consider all available options and but also to ensure that the decided course of action is reasonable in the particular context. We would encourage the making and keeping contemporaneous notes of those decision-making processes for risk management purposes. Although the Society does not have the power to excuse compliance with statutory or professional obligations, if you are unsure about your compliance obligations in a particular circumstance you can contact Ethics and Practice for assistance either by phone or by email. Administration of Justice In the same way that your professional obligations remain so does your primary obligation to the administration of justice. The key is to identify the difficulties that are in play and then to find alternative means by which they can be overcome. If for example an order has been made for something to be done within a certain time frame or in a certain way, and you have exhausted all reasonable alternatives for complying with the order but are unable to do so, we recommend that you notify the Court and the other side (making sure that you observe any applicable rules for doing so) at the earliest possible opportunity and ask for direction on how to proceed. Clients’ Interests Your obligation to ensure that your clients’ interests are protected remains. The issues that may arise will vary, depending on the type of work, legal services being provided, your client base, and the particular rules and procedures that apply to the matters in which you are engaged. These factors will influence any decision to operate your practice in isolation. We strongly encourage practitioners to take all

reasonable steps to inform clients about any changes to the operation of the practice and the means by which contact with them is to be maintained. Informed clients are generally less likely to complain. Despite the difficulties facing practitioners we encourage and reinforce the importance for you to continue to deliver legal services as promptly and diligently as reasonably possible in the circumstances. Your obligation of competence still requires you to be aware of timeframes and limitations which may exist in a client matter and are required to be fulfilled to protect the clients’ interests. Again, careful documentation of all relevant factors is important from a risk management point of view and in addition there is a standing invitation to have a conversation with Ethics and Practice if required. Confidentiality Now more than ever we encourage practitioners to consider the effectiveness of their measures for protecting confidential client information where working from home is the new normal. It is still important that client confidentiality is not compromised by the need to work remotely. Most practices will already have in place arrangements to protect client information for remote workers. This could include providing limited information to those workers who do not usually work from home and may not have access to secure IT or other adequate equipment. For instance, you may consider redacting information shared with home workers in that situation. It is a good idea to document the details of the arrangements you have put in place to keep client’s information confidential. You should also consider raising the issues with clients so they are aware work is happening outside the office and what safeguards you have put in place. This gives clients the opportunity to raise objections if they have concerns. There is no change in the Society’s

COVID-19

advice with regards to cyber security and all usual cyber safety measures should still be followed. Never provide or receive bank account details via email. When dealing with clients by phone, and visual is not available, satisfy yourself that you are actually speaking to your client. If you do not recognise their voice you could ask them to confirm what you discussed at the last meeting or consultation, or to tell you the date and location of that meeting. Alternatively, you could allocate code words to clients for use when communication by phone and/or by email. When communicating by phone with clients, you cannot control the environment they are in but it is useful to just remind them of the importance of maintaining confidentiality and encourage them to take the call away from others if necessary.

REGULATORY REQUIREMENTS Supervision It is important that employers and principles implement effective means by which they can continue to supervise legal work. Matters to be addressed for remote supervision include the following: • Frequency of contact between the supervisor and the supervised person. • Awareness of the supervisor about the work being done by the supervised person. • The ability for the supervisor to exercise the requisite degree of management or control over the work being done by the supervised person. • The ability for the supervisor to otherwise guide and mentor the supervised person. • The ability for the supervisor to satisfy themselves that correspondence and advice is well founded, endorsed, and capable being signed off. The level of the supervision that will be required will vary depending on the experience, qualifications, type and complexity of the work being undertaken

by the supervised person. LPEAC has published guidelines for the supervision of practitioners working from home or remotely in the context of COVID-19 arrangements. View the LPEAC Guidelines Remote Supervision Arrangements for PLT Students; and Category C (Restricted) PC Holders During COVID-19 Restrictions on the Society’s COVID-19 Resources webpage. MCPD Period: 5 Unit Cap Lifted The Legal Practitioners Education and Admission Council (LPEAC) has lifted the five-unit cap on pre-recorded or web based CPD activities. In addition, it has extended the deadline for compliance with the Mandatory Continuing Professional Development requirements for the CPD year commencing on 1 April 2019 and concluding on 31 March 2020 to 30 June 2020. Therefore, practitioners who are not yet compliant, unlike in previous years are not required to complete rectifications but only need to complete their MCPD obligations by 30 June 2020. Notwithstanding the extension of time, practitioners are encouraged to complete their prescribed MCPD as soon as possible (noting that there is no limit on the number of units claimed for prerecorded or web-based material which can be accessed from home) so as not to delay or impede the renewal of practising certificates on 1 July 2020. Combined Trust Account Section 53 of the Legal Practitioners Act 1981 requires law practices to transfer a portion of the funds in their legal practitioner trust account to the combined trust account (CTA) within 14 days after 31 May and 30 November. To assist in easing the pressure on practitioners in these times the Society has: • Written to approved ADIs requesting them to ensure that CTA account establishment and the making of deposits (and withdrawals) can be done

electronically and without the need for personal attendance at the bank. • Implemented processes to ensure that the Society will be taking a proportionate and pragmatic approach with respect to the imposition of penalty interest and, where it is appropriate to do so, will be remitting interest in part or in whole. • Written to the Attorney-General to request that the requirement to do the calculation and make any deposit that is needed be delayed (on the proviso that when it is done the calculation is based on the situation as at 31 May 2020). The current Combined Trust Account (CTA) period will end on 31 May 2020 with deposits or notices of withholding due by 14 June 2020. To assist the profession the Society has decided to make its online CTA calculator available to all members of the profession on a temporary basis. The CTA calculator is a member service funded by and usually restricted to Society members. The calculator is being made available on a temporary basis to the wider profession as a result of the COVID 19 emergency but will revert to being a member service only when restrictions are relaxed. The Society reassures the profession that it will be taking a proportionate and pragmatic approach with respect to the imposition of penalty interest in the event of CTA non-compliance and, where it is appropriate to do so, will be remitting interest in part or in whole (in accordance with its internal policies). Regulation 33(3)(b) Waiver Regulation 33(3)(b) of the Legal Practitioners Regulations 2014 states that, during April of each year, all law practices with trust accounts must give the Society written notice of the associates of the practice (including their full name and residential addresses) who are authorised, as at 31 March of that year – i. to sign cheques drawn on a general trust account of the practice; or ii. otherwise to effect, direct or give May 2020 THE BULLETIN

COVID-19

authority for the withdrawal of money from a general trust account of the practice, Given the difficult circumstances the Council of the Society has resolved as follows: That, pursuant to Regulation 56, the Society waives the notification requirements under Regulation 33(3)(b) with respect to April 2020 on the proviso that practitioners respond

to specific requests by Society officers for such information in a timely manner. Please note that the waiver only relates to the requirement to notify the Society. Ethics & Practice Visits and Legal Practice Advice Trust Account inspections will be postponed or completed remotely, eg via correspondence if appropriate. The relevant law practices will be separately contacted.

If legal practitioners have any concerns about practice arrangements as a result of the spread of COVID-19 please do not hesitate to contact the Ethics and Practice Unit of the Society by phone 8229 0200 or email (ethicsandpractice@lawsocietysa.asn.au) for advice and assistance. Practitioners are also encouraged to refer to Society’s COVID-19 webpage for further information and support. B

$1.8 million COVID 19 package to support practitioners

he Law Society is proud to announce a once-off $1.8 million rebate support package to help Members and insureds during the COVID-19 crisis. The once-off package includes: • Membership discounts of 23-24% for most members and up to 85% for low fee earners, subject to renewal by 30 September • a 15% rebate on all CPD events for the 2020-21 financial year* • a $500 Administration Fee rebate for every insured practitioner • Members eligible for the 20% or 50% reduced PI contribution for Low Fee Earners will automatically receive the corresponding Low Fee Earner membership rate • Expansion of the eligibility criteria for the Non-practising Admitted member category to include members stood down or made redundant due to COVID-19 • The continuation of a 10-month repayment plan on renewal fees The Society has taken these extreme measures in response to the financial hardship many practitioners are facing due to the unprecedented pandemic. The Society has had to substantially dip into its reserves to provide this relief package, with the measures as approved by Executive based on a detailed financial analysis to determine the maximum amount that the Society can release. The Society has worked hard to provide the highest possible subsidies while maintaining financial viability. The rebate applied to the Administration Fee on Professional Indemnity Insurance will be funded from the PI Fund.

24 THE BULLETIN May 2020

MEMBERSHIP DISCOUNT TABLE 2020 MEMBERSHIP MEMBERSHIP REBATE FEES AFTER DISCOUNT FEES REBATE

CLASSIFICATION Principals, Employed, Sole Practitioners admitted for more than 3 years Principals, Employed, Sole Practitioners admitted for less than 3 years Government (including Legal Services Commission) and Corporate Barrister

$876

$208

$668

24%

$529

$123

$406

23%

$356

$83

$273

23%

$658

$153

$505

23%

Low Fee Earner 50

$876

$540

$336

62%

Low Fee Earner 20

$876

$742

$134

85%

Not Practicing

$213

$50

$163

23%

Interstate

$233

$47

$186

20%

Overseas

$264

$64

$200

24%

Importantly, the package will not impact the level and range of services provided by the Society. We are committed to serving our members as best we can, especially in these trying times. Once again, the Society has an arrangement with Westpac through which renewals (Professional Indemnity Insurance, Practising Certificates and Membership) can be paid by instalments over 10 months at the below interest rates:

Membership fees by monthly instalments, interest free. We hope these measures provide some relief for practitioners who are doing it tough at the moment. We are here to support you any way we can. The Council and Executive convey their appreciation to Lawguard Management Pty Limited for their assistance in this process. Members are not required to do anything to claim the rebates – they will be automatically applied. If you have any questions about which rebates you are eligible for, don’t hesitate to contact Member Services: (08) 8229 0200 or email. * CPD rebate will apply to all Admitted Members who have completed their renewal by 30 September 2020 (including those who have entered an instalment plan) B

$ SUBJECT TO FINANCE

INTEREST RATE

More than $50,000 $20,000 to $50,000 $5000 to $20,000

2.2% 2.8% 3.5%

We will also continue to provide the option for members to pay their

WELLBEING & SUPPORT

Taking care of your mental wellbeing in a time of uncertainty WELLBEING & RESILIENCE COMMITTEE

e are hearing a lot about handwashing and social distancing at the moment (and rightly so) – but what about the other things we need to be doing to look after ourselves and our family, friends and colleagues? Lawyers right across SA are facing uncertainty, disrupted income, health issues, worry about their loved ones, and so on. These challenges can produce effects such as exhaustion, detachment from others, insomnia, poor eating habits, irritability and, of course, an increased risk of experiencing anxiety and depression. Some of the usual recommendations for keeping ourselves mentally healthy and resilient aren’t very helpful at a time like this where social isolation is mandated for the foreseeable future. The isolation of working remotely without the usual day to day interactions with your colleagues will likely take its toll. The gym is no longer an option. Connecting with friends and family over dinner has been ruled out. Even getting some quiet time on your own at home might be difficult now if everyone in the household is working or studying from home. The Law Society’s Wellbeing and Resilience Committee wants to remind you that there are a range of services still available to support you at this difficult time and there is a lot you can do to take care of yourself despite the restrictions on movement and interaction.

OUR TOP FIVE TIPS FOR YOUR WELLBEING AND RESILIENCE: 1. Stay connected – there are so many ways to do this online now. Share a Spotify playlist, have a video call through Skype or FB Messenger, play games against colleagues or friends online… This is particularly important for people who are working from home and are therefore physically isolated from colleagues as well as

their family and friends. For more inspiration, click here. 2. Keep physically active – use this as an opportunity to work on your (solo) running or explore the millions of free exercise videos online. Chris Hemsworth is offering a free trial of his fitness/lifestyle app, Centr, and there are lots of other free options to choose from as well. Your gym might even be offering some free online content. Even if you are only working out in your lounge room – you will still get the same boost to your physical and mental health. 3. Focus on what you can control – there is a lot that we can’t control, predict or even understand at the moment. Taking charge where we can will help us to combat anxiety. So, create a new daily routine for yourself, decide on some projects you want to spend your weekends at home working on, and make sure you get enough sleep. 4. Practice meditation and mindfulness – much of the anxiety we feel comes from rehashing what we have already lived through and obsessing over what might happen next. That is a normal response to a situation like this but meditation and

mindfulness can bring us back to the present moment and therefore help us to keep anxiety at bay. There are lots of apps which make this really easy, such as HeadSpace and InsightTimer. 5. Give yourself some enjoyable distractions – don’t just work and scroll through news feeds. Here is one of the many central resources for suggestions about podcasts, books, TV shows, movies and much more to keep the whole household amused.

OUR TOP THREE RESOURCES IF YOU NEED SOME SUPPORT: 1. Lifeline is still available to you 24/7. They offer phone, text and online chat services. They also have some suggestions about getting through this period. 2. BeyondBlue services are also still available via phone and chat. 3. LawCare Counselling service remains available via phone and face-to-face. If you are interested in learning more, click here for more apps, fact sheets and websites. You can also access our free Online Wellbeing and Resilience Program (for which you can claim 1 CPD point) and a Wellbeing and Resilience Guide. May 2020 THE BULLETIN

OPINION

Enforced isolation has made me treasure my freedom even more MICHAEL ESPOSITO

eeing the restrictions that have been imposed on Australians in the wake of the COVID-19 pandemic become the most intrusive and extreme in my lifetime has been a confronting experience. Who thought we’d end up in a scenario where police can patrol the streets and break up picnics, order children off playgrounds, issue on the spot fines for standing too close to each other and take you to court for socialising? While there is good reason for these temporary shackles being cast upon our collective way of life, it doesn’t mean we should not examine them with a critical eye. Lawyers are often sceptical of laws enacted or proposed by government that curtail free expression, restrict our movement, invade our privacy and deny us the right to challenge decisions of the State, because of the unintended consequences they create. Governments have, over a number of years, gradually made legislative amendments that slowly but surely erode our rights and freedoms, usually in the name of national security.

26 THE BULLETIN May 2020

Where the current freedom-curbing public health measures differ from say, some anti-terror laws, is that the COVID-19 orders are based on sound evidence as to their effectiveness in achieving a specific desired outcome – in this case to halt the spread of a highly infectious and deadly disease. The majority of Australians accept that the pandemic has the potential to be so catastrophic that the ends justify the means Nevertheless, Australians are being asked to make incredible sacrifices in the pursuit of this objective. We can no longer congregate in communal areas. Thousands of people have lost work, and many who are lucky enough to keep working have also had to supervise their children’s schooling, effectively ruling out “leisure time”. People cannot see their sick loved ones, and may never see them again. Couples’ marriage plans have been torn up, and people are unable farewell departed family members in the way they want to. Everyone has been confined to their homes, and for

some people that means the harrowing reality of being trapped with an abuser. Isolation is amplifying mental health struggles for many. The social connections that sustain and nourish us as humans has been severely diminished. The point is, we can understand, agree with and comply with these oppressive restrictions, but that doesn’t mean Government decrees should go unquestioned, regardless of their motive. We should demand that our leaders clearly articulate the reasons why they are imposing these measures, and we should expect authorities to educate the public about their obligations under the new regime, especially when the goalposts are constantly shifting. With the fast-spreading virus necessitating swift action, laws that would normally been the subject of public consultation and in-depth parliamentary debate have been issued overnight in the form of far-reaching regulations. Ignorance is no defence to breaking a law, but it must be unnerving for, say,

OPINION

a group of three people having a walk in the park being told by police that are breaching a law that carries an on the spot fine of $1000 - and up to six months in prison or an $11,000 fine if the matter goes to court - as is the case in NSW, when such laws were summarily imposed the previous night. The Government will still have access to some of these powers after the COVID-19 crisis is over. South Australia has recently amended its Public Health Act, expediting Government access to broad powers to quarantine and detain people suspected of being exposed to an infectious disease. This law will remain after the pandemic passes. The extent to which the public trusts the government to protect them will be in part determined by the manner in which police enforce the directives. If an inflexible and heavy-handed approach is taken, or people don’t accept the rationale behind the restrictions, resentment may build and suspicion of authority could undermine efforts to rally the public to act

for the common good. While desperate times call for desperate measures, it should not mean the State should expect to exercise its extraordinary powers without scrutiny. It is appropriate that a COVID-19 Response Committee has been established in the South Australian Parliament. It will have an important role to play in the monitoring and scrutinising of actions and decisions which may impact upon rights and liberties during COVID-19. The COVID-19 pandemic has enlivened incredibly broad and coercive powers never seen before and inevitably create a tension between public health measures and individual rights and freedoms. As the COVID-19 situation evolves, the Committee has an important role to ensure that emergency measures are necessary, reasonable and proportionate in the circumstances, and whether alternative, less intrusive measures (such as broader testing) are reasonable as the threat slowly subsides. Accountability is key. So far, it seems South Australia’s

approach has been firm but fair. There have not been the reports of over-zealous police as has been the case in other jurisdictions, nor have SA’s restrictions followed the lockdown scenarios of some of the other States, thanks in large part to the community’s attentiveness to the Government’s social distancing advice and by virtue of not being an international tourist epicentre like some of the other States. The intrusive directives to stay at home unless necessary to go out have prevented the hospitals being overwhelmed with patients. We are doing the right thing. But stopping the spread comes at an inevitable cost. The financial burden alone is colossal. On a personal level, I have felt stifled, anxious, stressed and at times lonely, despite being one of the lucky ones who has the luxury of a loving family to isolate with. Living like this for months on end is a daunting prospect, and reinforces how important it is to protect our civil liberties. One thing is for sure, I will never take my freedom for granted again. B

New Court of Appeal welcomes Justice Bleby

he Society congratulates Dr Chris Bleby SC on his appointment to the newly established South Australian Court of Appeal. The Solicitor General will sit on the Supreme Court, beginning on 4 May, until the Court of Appeal commences in January. Dr Bleby gained an Honours Arts degree, then a first-class Honours Law degree before being admitted to legal practice in South Australia in 1995 and working as judge’s associate in the Supreme Court. In 2000 he was awarded a doctorate in Laws from the University of Cambridge where he also worked as a Supervisor in Public Law for a year. He has published extensively on legal topics has built up experience in legal practice in administrative, constitutional,

commercial, criminal, industrial, taxation and succession law. In 2000, Dr Bleby joined the South Australian Bar and took silk in 2012. He joined the Crown Solicitor’s Office in 2014 and became Solicitor General in 2016. Attorney General Vickie Chapman said: “I’m confident he will serve the new Court with distinction.” “This appointment will help alleviate existing workloads within the Supreme Court while also ensuring the Court has flexibility to continue hearing matters.” Law Society President Tim White said: “Dr Bleby’s appointment is a fantastic one and he will no doubt serve the role with the integrity, commitment and intellectual rigour he has always demonstrated.” Crown Solicitor Mike Wait SC will take over the position of Solicitor-General on 3 August 2020. B May 2020 THE BULLETIN

RISK WATCH

Rise to the challenge - Try to find some positives in the lockdown GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS

t the time of the writing of this article we are (in early April) in the second or third week of widespread working from home and Government imposed “social distancing” as a result of the Covid-19 Pandemic. The response of the Federal Government in relation to relief from insolvent trading law, increasing the threshold debt levels for bankruptcy and liquidation proceedings to $20,000 and extending the time for responding to a bankruptcy notice and a statutory demand to six months before a deemed insolvency occurs has been, in terms of the time it usually takes for legislative changes to occur, remarkably swift. Further, the issues surrounding employment law and changes to awards announced by the Fair Work Commission in early April also show how quickly things are changing. The speed of these changes, many of which are quite radical, is in fact a sobering indication of the seriousness of the situation we find ourselves in. The situation has been changing so quickly

28 THE BULLETIN May 2020

that it is impossible for this article to even pretend to be topical with substantive legal matters and so it will not: instead this article will attempt to set out some considerations that might lead to some positives coming out of this crisis. Without wanting to sound like Pollyanna or Dr Pangloss,1 the unique nature of the current problems might be seen as the opportunity to test your resourcefulness and resilience.2 Although we don’t know when the immediate crisis will abate, and what the “new normal” will look like, strategic thinkers will already be planning how their businesses -including legal practices- will deal with things if and when the current “social distancing” rules are relaxed and society emerges from this current period of “hibernation”. Who knows, there may actually be some good that comes out of all this - we can hope for this, but we can also plan to make those positives happen, without of course downplaying the obvious issues we all now face.

One example of a potential “silver lining” might be if your newly found (and in many cases, including mine, hard won) IT skills developed after a period of working from home result in a more flexible approach to working from home even after your office reopens. It is possible that this could turn into a long term positive for your practice and your staff. As long as the cyber security issues caused by working remotely are properly addressed and client needs are met it may be that a happier and more productive work place could result. I recall that many years ago I was in Bangkok on my way home to Adelaide after trekking in both Kashmir and Nepal when my wallet was stolen leaving me with 48 hours before my flight home and no money and no credit cards. As crises go it wasn’t by any means life or death but it was in the days before mobile phones and the internet. It was very much in the heyday of hard copy guidebooks. So out of the blue I had the idea to hang out for a while in a bookshop in the main

RISK WATCH

backpacker area of Bangkok and see if I could sell my Lonely Planet Guides to Kashmir, Nepal and Thailand. I still don’t know where this thought came from but I did manage to get talking to a Swiss backpacker who was going to both India and Nepal and she bought my books! I managed to clear enough Baht to tide me over for the next couple of days and get me to the airport on time. Hardly Bear Grylls or The Amazing Race, I know, but the point of the anecdote is that faced with an unusual situation I managed to find resources and resilience within myself that I didn’t know I had. It was actually a classic win-win scenario because I got enough money to have some cheap and delicious Thai

curries from street hawkers and she got the guidebooks she wanted cheaply. The story is most likely apocryphal but King George III is reputed to have said “lawyers don’t know any more law than anyone else, they just know where to find it”. Now I’m sure that lawyers do know more law than others, but of course no one can know or remember everything. When faced with a problem that we don’t know the answer to, lawyers will search for the answer perhaps through legal research, looking for precedents, consulting colleagues or barristers, or maybe even searching the risk management resources on the Law Society website. These steps will always be done by lawyers using their training and logical clear thinking skills. The challenges

brought about by our current situation should be no different. As legal practitioners you will have been trained to think clearly and logically and to apply problem solving skills for the benefit of your clients. In addition to using these skills for the benefit of your client you also need to use them in your own practice generally but in particular over the next few months. We are all in unchartered waters and no-one has all the answers, but hopefully as lawyers we have the capacity to find them. B Endnotes 1 Look it up! 2 As to well-being, the Well-Being & Resilience Committee has released a useful article published to Practitioners on 25 March 2020 and which is reproduced in this issue of the Bulletin.

May 2020 THE BULLETIN

IN HONOUR

Vale: Chevalier Colonel the Honourable Leslie Trevor Olsson AO MBE RFD ED GCSJ CMSJ

eslie Trevor Olsson (known as Trevor) was born on 31st July 1931, in Adelaide. He was the second of four children of Athol and Emily Olsson. His father was a partner in the law firm which is now Mellor Olsson. Whilst Trevor was destined to have a career in law, he also had a career in the Army Reserve, joining at the age of 17 years and serving for 43 years. Trevor first met his future wife, Marilyn, at Rose Park Primary School, but then he went on to Prince Alfred College. He reconnected with her in 1963, and they were married on 24th July 1964. They were to have two children, Elizabeth and Geoff. Trevor, Marilyn and the children had a campervan holiday in Europe during the 1970s and this led to many campervan holidays around Australia. Trevor had many interests including BBQ connoisseur, gardening, fishing, handyman and flying. He learnt to fly, and, with his friend Langdon Bader purchased a Mooney Mark 21 light aircraft, participating in the Brisbane to Adelaide Air Race in 1964 and taking Marilyn on a flying honeymoon to the outback Northern Territory and the Kimberley. Trevor graduated in Law from the University of Adelaide in 1953 and thus began his distinguished career in Law. He practiced as a barrister and solicitor with the Johnston and Olsson law firm until 1963, then was made Deputy and then Senior Deputy Master and Registrar of Divorce Supreme Court of SA. Throughout his career he chaired and held several senior positions from the President of the Industrial Court and Commission of SA to Chairman of the Teachers’ Salaries Board and the Childhood Services Council of SA, as well as many other professional appointments in Industrial Relations, Judicial Administration and

30 THE BULLETIN May 2020

the Courts Administrative Authority. He became Puisne Judge of the Supreme Court, SA, in 1984 and after retirement went on to auxiliary judicial positions at the Supreme Courts in Perth and the Northern Territory until 2015. This was a judicial career of some 51 years, more than any other Australian judicial officer. Involved in many high-profile cases during his career, his daughter is proud of his decision to injunct Port Adelaide Football Club from entering the AFL, leading to the formation of the Adelaide Crows. Trevor pioneered the use of technology throughout his legal career and was responsible for introducing up-todate word processing, stenotype reporting to court proceedings and the current file management systems and JURIS. This was not always successful. When the new court reporting system started in the Industrial Court, the reporters went on strike! Trevor was renowned internationally for his work as the Australian representative on, and, Chief Rapporteur of Joint ILO/UNESCO Committee of Experts on the Status of Teachers. His 2006 report became a reference for teacher organisations around the world and had an enormously positive impact on the status of teachers around the world. Whilst maintaining his full-time professional life in law, Trevor also managed to find time for his other passion, the Army Reserve. Starting as a gunner in 13th Field Regiment, Royal Australian Artillery, in 1948, he took a commission as a lieutenant in 1951.He rose in the ranks to a full colonel and became Colonel Commandant, 4th Military District, from 1983 to 1986 and then Senior Reserve Officer, South Australia until 1989. He returned to the military as Honorary Colonel of the Adelaide

University Regiment from 1999 until 2003. During his military service he undertook an exchange visit to the US Army and was Aide-de-Camp to the Governor of SA, and the Governor-General of Australia. On his retirement from the Bench, the then Chief Justice, John Doyle, referred to Trevor as using unique turns of phrase such as “patently obvious” and “the narrative facts”. He nicknamed him “Justice Chauffeur” because Trevor would regularly state in his decisions that “he was driven to the conclusion.” Trevor continued to fill his life with many interests after retirement from the judiciary, and the army. A Knight Grand Cross in the Order of St John of Jerusalem, Knights Hospitaller, for his efforts Trevor was awarded the Order of Merit in 2018, the only Knight in Australia to hold such an award. He also co-authored the Report of the Board of Inquiry into the Handling of Claims of Sexual Abuse and Misconduct Within the Anglican Diocese of Adelaide in 2004 with Professor Donna Chung.

IN HONOUR

Trevor Olsson conducting a telephone hearing in the UK in 1989

Trevor Olsson with his wife Marilyn, daughter Elizabeth (top right), son Geoff and daugher-in-law Pauline

He and Marilyn loved travelling around Australia, especially in the Northern Territory and Western Australia.Marilyn sadly died on 18th December 2011 and Trevor nursed and supported her during her lengthy illness.

Throwing himself into new challenges Trevor became involved in the Burnside City Church Mission Trust, the Kensington Park RSL and Rostrum and Probus. One of Trevor’s passions was boating

and fishing, so much so that he was known as the “Fishing Judge”. For many years his boat, known as Sea Mist, was stationed at the Royal Yacht Squadron. Sadly, this came to an end after he managed to sink the campervan that he used to pull the boat out of the water as it travelled backward down the boat ramp. Like a true Captain, Trevor went down with the ship, er, van! Known for his intellect, fairness, common-sense approach, lack of pretension and wry sense of humour, Trevor adhered to two maxims “Just get on with it” and “Near enough is not good enough.” His work ethic was tremendous. John Doyle described how, when sitting on the Full Court, the other judges would still be pondering the submissions only to hear a distinctive thud as Olsson J’s draft reasons hit their desks for comment. A devoted family man, Trevor loved spending time at the various family beachhouses, most recently at Carrickalinga, and on family holidays around the world. He maintained a sense of adventure all his life, even ziplining and caving in New Zealand at age 83! A friend described him as a down to earth, funny but incredibly intelligent man who just made everyone feel at home. On his passing, it was said “Trevor Olsson has no peer for the breadth and depth of his contribution to the Courts of this State as a judge and judicial administrator” and “A shining example of a life well-lived and bountiful.” Chevalier, Colonel, the Honourable Leslie Trevor Olsson AO MBE RFD ED GCSJ CMSJ, died on 8 January 2020, survived by his daughter Elizabeth, a Master of the District Court, his son Geoff, daughter-in-law Pauline and grandson, Simon. B May 2020 THE BULLETIN

TAX FILES

Superannuation and succession STEPHEN HEATH, PARTNER, WALLMANS LAWYERS

he significance of inheritance to superannuation benefits upon the death of a superannuation fund member has escalated in the last 20 years. Factors contributing to this include: 1. many retail/industry superannuation funds offering life insurance as a matter of course; 2. benefit design gravitating to preference for income stream benefits over lump sum benefits; 3. the superannuation guarantee era, now on foot for almost thirty years, having provided increased coverage of superannuation benefits and in absolute terms an unprecedented pool of assets under management by value; 4. increasing average age of Australian superannuants; and 5. increased complexity of family structures with acknowledgment and acceptance of blended families and same sex relationships.

HISTORICAL POSITION The position historically has been that a member’s benefits in a superannuation fund do not pass automatically to the person’s estate on death. By virtue of what are known as the vesting rules, historically governed by the superannuation fund trust deed, the interest of a deceased member, however, has always been accepted as subsisting and continuing after death. Typically, the trust deed will have provided a power to the trustee, in its discretion, to pay a deceased member’s benefit, usually a lump sum, to any one or more of the member’s estate and/or dependants. The significance of superannuation in the average person’s wealth profile has warranted and demanded that superannuation benefits be accorded escalated status as “property”. This is manifested most notably by family law changes recognising superannuation benefits as splittable property and by superannuation law changes authorising binding death benefit directions.

BINDING DEATH BENEFIT DIRECTIONS The legislative framework for binding death benefit directions has a rather curious history. It started with the Superannuation

32 THE BULLETIN May 2020

Industry Supervision Legislation in 1993 (SIS) whereby death was affirmed as a compulsory payment event and with death benefits only able to be paid to the member’s estate, surviving spouse/children or a dependant of the deceased. There has never been an historical impediment, whether under tax law, superannuation law or equitable principles generally, to superannuation benefits being “hardwired” to specified persons on death. In the writer’s experience, however, it just never happened. From inception, section 59 of the SIS Act provided a general rule prohibiting a superannuation fund trustee from being subject to the exercise of a discretion by a third party. That rule, however, has only applied to superannuation funds not being self managed superannuation funds (SMSFs). In 1999, Regulation 6.17A was inserted into the SIS Regulations, whereby, for the first time, superannuation law in Australia recognised the capacity of superannuation fund members to make death benefit directions, binding as against the trustee. Prior to that time, any expressed preference of a superannuation fund member only ever operated as a guide to the trustee rather than prescribing anything mandatory. Death benefit directions taking effect under the auspices of Regulation 6.17A lapse three years after being made and must be witnessed by two adults, not being beneficiaries under the nomination. Only the member’s estate or dependants may be nominated. Regulation 6.17A is silent in terms of differentiating between member’s benefits held as income streams or accumulation interest or between benefits subject of a nomination being receipted as lump sums or pensions. There is also an open question of whether Regulation 6.17A tolerates or accommodates a nomination made by a member through an authorised attorney or a nomination providing for cascading beneficiaries (see re Narumon Pty Ltd [2018] QSC 185). In the end result, Regulation 6.17A has not directly had the effect of being a “game changer”. The most likely reason for this is that the market place has recognised

almost insurmountable administrative and commercial difficulties with nominations lapsing after three years.

NOW Both the law relating to superannuation death benefit directions (most frequently described as “binding death benefit nominations”) continues to evolve as does market place practice. The indirect consequence of Regulation 6.17A in terms of market place practices has been as follows: 1. most modern superannuation deeds contain express provision for binding death benefit directions; 2. many retail/industry funds have sidestepped section 59 SIS Act / Regulation 6.17A SIS Regulations by effecting express provision under the trust instrument for the trustee to be bound by a member’s death benefit direction. Whether this is logical is perhaps an open question but the argument presumably proceeds on the basis that if the trustee was never empowered in the first place, it cannot follow that the trustee can be made subject to the exercise of a third party discretion; 3. the “flood gates” have opened for SMSFs, with SMSFs having never been bound by section 59 / Regulation 6.17A in the first place. In consequence it has become commonplace for SMSF members to make nominations which are both binding and non-lapsing; 4. the market place remains undecided whether binding nominations apply to accumulation interest only, and if so, what happens to a superannuation income stream on the pensioner’s death.

PRACTICAL ISSUES The writer’s experience gives rise to some practical issues as follows, including: 1. Just in the last week our practice has experienced the following events: 1.1 enquiry as to the status of a client’s death benefit nomination revealing one original held in the client’s deed packet, together with their current Will and, another original nomination held by the accountant. The accountant’s nomination is

TAX FILES

dated several years after the deed packet nomination and makes materially different directions as to the beneficiaries of the death benefit payment; 1.2 instructions seeking advice as to how to interpret “pension terms” incorporating a direction that the pension be paid to the deceased’s spouse as a reversionary pension coupled with a later death benefit nomination directing lump sum payments to the deceased’s four children from a first marriage. 2. The requirement that superannuation advice be dispensed, other than by legal practitioners, by authorised representatives of holders of Australian Financial Services licensees may have created the false impression that the matter of death benefit direction advice resides within the exclusive domain and capability of those advisers. The writer’s view is that the issues are often complex and should be entirely within the purview of suitably qualified legal practitioners. 3. Is there any impediment to a nomination which provides: “To my spouse as an income stream benefit if my spouse survives me by 28 days and, if not, for my four children in equal shares”. What then if the pension direction gives rise to an “excess transfer balance” for the surviving spouse? What if the nominating member is not survived by their spouse and one or more of their children? 4. In the writer’s opinion, there is no theoretical impediment to a nomination which states: “The real property contained in Certificate of Title Volume 1 Folio 2 to my eldest child and the balance equally between my other surviving children”. What though if CT Volume 1 Folio 2 is not a fund asset at the date of the member’s death or if at death the real property asset is worth $5m and the balance of the assets are worth $50,000? Do the younger children have any actionable rights for inadequate provision?

In the writer’s view, a death benefit nomination is not a testamentary disposition and may be difficult to challenge unless the assets are first directed through the estate. Other practical issues can arise as to the identity of the person/s who step into the role of trustee/director of the trustee and the not unlikely eventuality that one or more such persons refuse to act in accordance with a nomination. 5. Can a person acting under power of attorney make a nomination? What happens if the nominated person is the spouse and at the time of death the parties have since separated or divorced? 6. One of the most vexing benefit design issues is the question of whether a binding death benefit nomination applies to an income stream interest. Income streams are often documented by “pension terms” incorporating their own death benefit directions which begs the question of interface with a separate binding death benefit nomination and also of whether the pension terms themselves are to be construed as a binding death benefit direction. It is important that advisers understand that superannuation and tax law only accept that one accumulation interest can be held under a superannuation fund but that multiple income stream benefits can be held.

CURRENT PRACTICE The significance of succession planning for lawyers as a practice area has never been as acute as it is now. The current economic disruption in train is likely to be a catalyst for diminished income for many taxpayers and to fuel disputation over significant, albeit diminishing estates. Embedded within that is the relevance of superannuation death benefit directions and payments. Difficult and extensive litigation is likely to be a consequence. Current practices adopted by our office include: 1. the adoption of clear written guidelines to describe the rules applicable to the making of a nomination. This should address matters such as the power of an attorney to make a nomination, that the nomination terminates if a nominated spouse ceases to be a

spouse and the requirement that the nomination be witnessed by two adult persons not being beneficiaries; 2. using death benefit nominations for accumulation interests only and pension terms for income stream benefits; 3. where possible, we provide the benefits payable to a spouse to be payable as a pension/reversionary pension; 4. making clear on the face of the nomination instrument which superannuation interest the nomination applies to and that the nomination is binding and non-lapsing; 5. tax considerations, whilst always not paramount, should nevertheless be considered. For example, it is relevant to ascertain the taxable/tax free components of each superannuation interest and whether a nominated person is a “death benefit dependant” for tax purposes. One issue often forgotten is that the Medicare levy applies to the taxable component of a death benefit derived by a nondependant whereas there is no Medicare levy applied to death benefit payments to an estate; 6. it is often appropriate to implement superannuation death benefit directions at the same time as the person is reviewing their Will. One way to avoid corruption of mathematical outcomes is for death benefit payments to be directed to the estate; 7. other matters which are often underestimated include: 7.1 planning with respect to succession to trusteeship following death/legal incapacity of a fund member; 7.2 governance and storage of important documents; 7.3 the ability and inclination of family members/successor generations to tolerate the commercial outcomes where there has been communication and explanation with all stakeholders at the time succession plans are put in place; Upskilling on estate law generally with skills building around peripheral practice areas such as broader equity practice, inter vivas commercial transactions, property, tax advice and superannuation law. B May 2020 THE BULLETIN

FAMILY LAW CASE NOTES

Family Law Case Notes ROB GLADE-WRIGHT COSTS – INDEMNITY COSTS AGAINST SOLICITOR – CLIENT’S APPLICATION HAD NO CHANCE OF SUCCESS

n Benard & Eames and Anor [2020] FamCAFC 47 (5 March, 2020) the Full Court (Alstergren CJ, Strickland & Kent JJ) dismissed with costs of $18,000 an appeal by a solicitor ordered to pay indemnity costs. The solicitor acted for the father in an application for a credit of third party payments made for the parties’ children under s 123 of the Child Support (Assessment) Act 1989 and an order under s 66M of the Family Law Act 1975 that he has a lawful duty to maintain his stepchildren (the children of his new partner). At first instance Judge Bender summarily dismissed the application for having no reasonable chance of being granted. The father’s appeal of that dismissal was dismissed. Costs were subsequently awarded to the mother and the father’s solicitor was ordered to pay them. He appealed. The Full Court said (from [35]): “ … [I]t is clear that the application was brought on the advice of the appellant … where [he] would have well known that the application had no chance of success. Indeed, that was not only a finding by her Honour, but was also a finding by the Full Court … [which] also found that the application was brought for a collateral purpose and was, thus, an abuse of process. [36] ( … ) As was said by the Full Court of the Federal Court of Australia in Levick v Deputy Commissioner of Taxation [2000] FCA 674 at [44]: ‘ … [I]t is … important to uphold the right of a court to order a solicitor to pay costs wasted by the solicitor’s unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of a case … In the context of instituting or maintaining a proceeding … we agree with Goldberg J that unreasonable conduct must be more than acting [for] a client who has little or no prospect of success. There must be something akin to abuse of process … using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.’”

34 THE BULLETIN May 2020

PROPERTY – ADJUSTMENT UNDER S 75(2) SET ASIDE WHERE CHILDREN WERE 16 AND 13 AND HUSBAND WAS PAYING CHILD SUPPORT

CHILDREN – FATHER’S INTERIM APPLICATION TO VARY PARENTING ORDER SO AS TO COMMENCE EQUAL TIME BEFORE TRIAL DISMISSED

In Chan & Chih [2020] FamCAFC 31 (14 February, 2020) the Full Court (Strickland, Ryan and Tree JJ) allowed the husband’s appeal of property orders. The husband was 50 and the wife 45. The parties married in 1999, moved from South Korea to Australia in 2000 and separated in 2013 with assets totalling $4 million. Their children (16 and 13) lived with the wife. At first instance Watts J held that there should be two pools, being the wife’s Korean assets and all other assets (including the husband’s Korean property). The wife’s Korean assets comprised a 5/14th share in her late father’s commercial property, her interest being worth $2.2 million which also provided the wife with an income stream. The wife had also received financial support from her mother. Watts J made a 5 per cent adjustment under s 75(2)(d)-(g) for the wife calculated on the value of both pools. The husband appealed, arguing that no adjustment should have been made. The Full Court agreed. The Court ([42]) said that his Honour gave insufficient reasons for that adjustment, continuing (at [43]-[44]): “It is also argued that the particular factors identified … cannot justify a 5 per cent adjustment. Certainly, the financial responsibilities for the children are a highly relevant factor, but the children were aged 16 and 13 years … and the husband was paying child support as well as providing additional funds. In relation to the ‘real nature’ of the wife’s interest in the J property … his Honour made no findings as to the restrictions on the wife’s enjoyment of her interest in that property being significant enough to justify an adjustment of 5 per cent. Further, it is significant that his Honour only referred in percentage terms to the extent of the adjustment. There is no dollar figure discussed, and no analysis by his Honour of the real effect in money terms of the adjustment. The adjustment of 5 per cent represented $203,568, and created a differential of approximately $407,000. To not take that into account flies in the face of authorities such as … Clauson [1995] FamCA 10.”

In Findlay & Reis [2020] FCCA 425 (28 February, 2020) Judge Hughes dismissed an interim application by the father to vary parenting orders which had been in force for six years, by which the children (now 13 and 11) spent four nights per fortnight with him. His application sought equal time. The mother’s application for dismissal was listed as a preliminary hearing. The father’s case was that the children had repeatedly asked to spend week about time with him ([45]), that they were sufficiently mature to have more weight given to their views and that he was in a stable new relationship ([68]). After citing Rice & Asplund [1978] FamCA 84 and SPS & PLS [2008] FamCAFC 16 her Honour said (from [65]): “Their Honours [in Marsden & Winch [2009] FamCAFC 152] set out a two-step process to be followed in which there was a requirement: 1. for a prima facie case of changed circumstances to have been established; and 2. for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing. [66] ( … ) The mother said the only occasion on which … [equal time] was raised with her was … the result of the father’s influence and a desire by the children to meet his need to have an arrangement which is ‘fair’ as between the parents. The veracity of the competing evidence about the children’s views is not something I am able to determine on the strength of the untested affidavit material … ( … ) [79] Based on the limited untested evidence before me, I am not persuaded further litigation will likely result in a substantial change in the children’s arrangements given the high level of acrimony and resentment between the three significant adults. … [T]he potential benefit to be derived by the children from [any] change is, in my view, outweighed by the negative aspects the children will be required to endure for a period of more than 12 months until a trial can occur.”

BOOKSHELF

AUTHORITY TO DECIDE - THE LAW OF JURISDICTION IN AUSTRALIA

M Leeming 2nd ed The Federation Press 2020 HB $175.00

Abstract from Federation Press Since its initial publication in 2012, Authority to Decide has established itself as the pre-eminent resource for Australian practitioners and courts dealing with questions of jurisdiction. It has been cited regularly in judgments of the High Court of Australia, and in dozens of first instance and appellate judgments of other

courts. Some of propositions advanced in the first edition have subsequently received judicial support, helping to shape the development of the law. Each chapter in the second edition has been thoroughly updated to incorporate a wealth of new case law. The coverage of the work has also expanded.

NATIVE TITLE IN AUSTRALIA

R Bartlett 4th ed LexisNexis 2020 PB $175.00

Abstract from LexisNexis Native Title in Australia, 4th ed is a comprehensive and authoritative work that provides the reader with an understanding of both the current operation of native title in Australia and its historical and political background and development. It covers the nature of the concept, its proof, content and

extinguishment, explains the validation of past grants and acts and the limited degree of protection from future acts, examines compensation for native title, and discusses the application of native title principles to resource development and traditional pursuits. It considers both the common law and the Native Title Act 1993 (Cth).

POWERS OF ATTORNEY Abstract from LexisNexis The prevalence of powers of attorney --- particularly enduring powers of attorney--makes this book increasingly important over time, especially in view of Australiaâ&#x20AC;&#x2122;s ageing

population. Powers of Attorney 3rd ed is not confined to Australian law but uses law from the principal common law countries to contextualise our law, and to provide guidance where Australian law may be lacking.

G dal Pont 3rd ed LexisNexis Butterworths 2020 PB $155.00

FINANCIAL PLANNING IN AUSTRALIA: ADVICE AND WEALTH MANAGEMENT

S Taylor 9th ed LexisNexis 2020 PB $160.00

Abstract from LexisNexis Financial Planning in Australia: Advice and Wealth Management explains in clear and plain language the concepts, vehicles and strategies required for providing sound advice on creating, investing, and managing personal wealth. Focusing on individual wealth-management problems, it provides an overview of the financial planning environment and discusses core principles and key practices.

This 9th edition considers recent changes to the law, including the Financial Adviser Standards and Ethics Authority (FASEA) Code of Ethics that becomes mandatory from January 2020. In light of tighter regulation arising from the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, this book has introduced a new chapter on Ethics and Professionalism that explores conflict of interest dilemmas for advising professionals. May 2020 THE BULLETIN

GAZING IN THE GAZETTE

3 MARCH â&#x20AC;&#x201C; 2 APRIL 2020 ACTS PROCLAIMED Legislation (Fees) Act 2019 (No 30 of 2019) Commencement Schedule 1: 1 July 2000 Commencement remaining provisions: 19 March 2020 Gazetted: 19 March 2020, Gazette No. 19 of 2020 Statutes Amendment and Repeal (Simplify) Act 2019 (No 25 of 2019) Commencement Part 2; 4; ss 61, 62, 64, 66: 6 April 2020 Gazetted: 2 April 2020, Gazette No. 27 of 2020 Judicial Conduct Commissioner (Miscellaneous) Amendment Act 2018 (No 31 of 2018) Commencement: 6 April 2020 Gazetted: 2 April 2020, Gazette No. 27 of 2020

ACTS ASSENTED TO South Australian Public Health (Controlled Notifiable Conditions) Amendment Act 2020, No. 1 of 2020 Gazetted: 5 March 2020, Gazette No. 16 of 2020 Evidence (Reporting on Sexual Offences) Amendment Act 2020, No. 2 of 2020 Gazetted: 12 March 2020, Gazette No. 17 of 2020 Local Government (Public Health Emergency) Amendment Act 2020, No. 3 of 2020 Gazetted: 26 March 2020, Gazette No. 22 of 2020 Supply Act 2020, No. 4 of 2020 Gazetted: 26 March 2020, Gazette No. 22 of 2020 Planning, Development and Infrastructure (Commencement of Code) Amendment Act 2020, No. 5 of 2020 Gazetted: 2 April 2020, Gazette No. 27 of 2020

36 THE BULLETIN May 2020

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

Coroners (Undetermined Natural Causes) Amendment Act 2020, No. 6 of 2020 Gazetted: 2 April 2020, Gazette No. 27 of 2020

APPOINTMENTS Magistrate of the Magistrates Court of South Australia on an auxiliary basis, for a period commencing on 4 May 2020 and expiring on 3 May 2021 Phillip Edward James Broderick Gazetted: 5 March 2020, Gazette No. 16 of 2020 South Australian Civil and Administrative Tribunal Revocation as Ordinary Members on a sessional basis, effective from 16 March 2020 Appointment as sessional Senior Members for a term of three years commencing on 16 March 2020 and expiring on 15 March 2023 Candida Jane Dâ&#x20AC;&#x2122;Arcy Alexander Lazarevich Kathleen Patricia McEvoy Full-time Senior Members for a term of three years commencing on 16 March 2020 and expiring on 15 March 2023 Maria Stella Alvino Caretti Neil John Rainford Part-time Senior Member for a term of three years commencing on 16 March 2020 and expiring on 15 March 2023 Lindley Margaret Gilfillan Part-time Ordinary Members for a term of three years commencing on 16 March 2020 and expiring on 15 March 2023 Joanne Bakas Stavros Georgiadis Cathrynne Delohery Lester Sessional Ordinary Members for a term of three years commencing on 1 April 2020 and expiring on 31 March 2023 Jeanette Barnes

Katherine Jane Christian Bean Lucy Delia Marie Byrt Bethany Marie Caldeira Jodie Mareika Carrel Robert McBeath Croser Sally Elizabeth Gooch Bruce Gregory Harvey Rosemary Frances Hordern Magdelena Christina Madden Tracee Ann Micallef Jane Rosemary Moularadellis Terrence William Sparrow Alexander Peter Reilly Anne Elizabeth Trengove Helen Ward Gazetted: 12 March 2020, Gazette No. 17 of 2020 Police Disciplinary Tribunal and the Protective Security Officers Disciplinary Tribunal from 29 April 2020 Revocation as Magistrate in Charge Maria Panagiotidis Revocation as Deputy Magistrate in Charge Simon James Smart from 29 April 2020 until 28 April 2023 Magistrate in Charge: Simon James Smart Deputy Magistrate in Charge: Brett Jonathon Dixon Panel Member: Alison Frances Adair Nicholas Alexandrides Teresa Marie Anderson Jayne Samia Basheer Paul Bennett Yoong Fee Chin Luke Anthony Davis Cathy Helen Deland Lynette Catherine Duncan John Gerard Fahey Gregory Charles Fisher Paul Marvin Foley Terence Frederick Forrest Alfio Anthony Grasso

GAZING IN THE GAZETTE

Gary Clive Gumpl Robert Bruce Harrap Kathryn Hodder Mary-Louise Hribal Anna Jackson Briony Kennewell Oliver Rudolf Gerhard Koehn Koula Kossiavelos Jayanthi McGrath David Hamilton Bruce McLeod Stefan Peter Metanomski Simon Hugh Milazzo Kym Andrew Millard Brian Malcolm Nitschke Rodney Oates Susan Elizabeth Oâ&#x20AC;&#x2122;Connor Maria Panagiotidis

Kylie Sue Schulz Mark Steven Semmens Elizabeth Ann Sheppard Derek Yorke Nevill Sprod John Cardale Wells David John White Ian Lansell White Gazetted: 19 March 2020, Gazette No. 19 of 2020 Parole Board of South Australia First Deputy Presiding Member: Member: from 2 April 2020 until 17 December 2022 William Penn Boucaut Gazetted: 2 April 2020, Gazette No. 27 of 2020

RULES Magistrates Court Rules 1992 Amendment No. 81 Gazetted: 27 March 2020, Gazette No. 24 of 2020 Magistrates Court Rules 1992 Amendment No. 82 Gazetted: 2 April 2020, Gazette No. 27 of 2020 Disallowance of Regulations Genetically Modified Crops Management Act 2004, No. 249 of 2019 From 4 March 2020 Gazetted: 12 March 2020, Gazette No. 17 of 2020

REGULATIONS PROMULGATED (3 MARCH 2020 â&#x20AC;&#x201C; 2 APRIL 2020) REGULATION NAME

REGULATION NO. DATE GAZETTED

Correctional Services (Corresponding Law) (Variation) Regulations 2020 Genetically Modified Crops Management (Designation of Area) Variation Regulations 2020 Development (Bushfire Recovery) Variation Regulations 2020 National Electricity (South Australia) (Local Provisions) Variation Regulations 2020 South Australian Public Health (Notifiable Contaminants) Regulations 2020 Development (Delivery of Goods) Variation Regulations 2020 Children and Young People (Safety) (Exemption from Psychological Assessment) Variation Regulations 2020 Emergency Management (Expiation Notices) Variation Regulations 2020 Supreme Court (Fees) Variation Regulations 2020 District Court (Fees) Variation Regulations 2020 Magistrates Court (Fees) (Miscellaneous) Variation Regulations 2020 Motor Vehicles (Simplify and Other Matters) Variation Regulations 2020 South Australian Public Health (Notifiable and Controlled Notifiable Conditions) (CPE) Variation Regulations 2020 Passenger Transport (Regular Passenger Services) Variation Regulations 2020 Passenger Transport (Small Vehicle) Variation Regulations 2020 Child Safety (Prohibited Persons) (Exemption) Variation Regulations 2020 Disability Services (Assessment of Relevant History) (Exemptions) Variation Regulations 2020 Youth Justice Administration (Psychological Assessment) Variation Regulations 2020

21 of 2020

5 March 2020, Gazette No. 16 of 2020

22 of 2020

5 March 2020, Gazette No. 16 of 2020

23 of 2020

5 March 2020, Gazette No. 16 of 2020

24 of 2020

12 March 2020, Gazette No. 17 of 2020

25 of 2020 26 of 2020

19 March 2020, Gazette No. 19 of 2020 19 March 2020, Gazette No. 19 of 2020

27 of 2020

26 March 2020, Gazette No. 22 of 2020

28 of 29 of 30 of 31 of 32 of

28 March 2020, Gazette No. 25 of 2020 2 April 2020, Gazette No. 27 of 2020 2 April 2020, Gazette No. 27 of 2020 2 April 2020, Gazette No. 27 of 2020 2 April 2020, Gazette No. 27 of 2020

2020 2020 2020 2020 2020

33 of 2020

2 April 2020, Gazette No. 27 of 2020

34 of 2020 35 of 2020 36 of 2020

2 April 2020, Gazette No. 27 of 2020 2 April 2020, Gazette No. 27 of 2020 2 April 2020, Gazette No. 27 of 2020

37 of 2020

2 April 2020, Gazette No. 27 of 2020

38 of 2020

2 April 2020, Gazette No. 27 of 2020 May 2020 THE BULLETIN

CLASSIFIEDS

VALUATIONS MATRIMONIAL DECEASED ESTATES 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

Providing practical, cost-eﬀective investigation services in SA

Workplace Investigation General Insurance Workers Compensation Factual Investigation Surveillance Skip Tracing Process Serving 6 Todd Street, Port Adelaide SA 5015 admin@hhriskservices.com.au 08 8440 2436 www.hhriskservices.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

Business valuations Simple, clear, unbiased advice, without fear or favour.

t. +61 8 431 80 82 Hugh McPharlin FCA

d m e w

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

m. +61 401 712 908 +61 8 8139 1130

+61 419 841 780 e. ahi@andrewhillinvestigations.com.au hmcpharlin@nexiaem.com.au 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 LITIGATION ASSISTANCE FUND The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants. LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding. LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants. LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied. For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

38 THE BULLETIN May 2020

CONSULTING ACTUARIES

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. To contact Dr Jill 08 8110 5279 8am-8pm, 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

Marita Bajinskis

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

matrimonial and de facto property settlements superannuation children’s issues

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

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

FOR PROFESSIONAL ACTUARIAL ADVICE ON

- Personal Injury - Workers Compensation - Value Of Superannuation Contact

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

Ground Floor 157 Grenfell Street Adelaide SA 5000

Letter to Owners and Marketing Managers +

Boylen has a record of reducing website and digital marketing costs.

+ In one case last year, we reduced costs for online marketing by 90% and achieved significantly better results. This was for a small SA company.

+ In another case, an ASX-listed company asked us to â&#x20AC;&#x153;take a zero off the end of the bill we get each monthâ&#x20AC;? from another supplier. We achieved this.

+ In these challenging times, many of us are reviewing our cost structures (and we certainly are).

+ If you would like us to review your digital investment and provide an alternative quote, we would be happy to assist.

+ We are happy to share the details of the two cases above and to explain how we went about it.

Call Vince Fusco on 08 8233 9433. It will cost you nothing to get an alternative â&#x20AC;&#x201C; but it might save you valuable dollars.

08 8233 9433

Level 3, 47 South Tce, Adelaide SA 5000

As a digital company, we have managed a remote workforce for over 15 years. The working-from-home model does not affect our business.

MAKE A VISUAL IMPACT

SIGNAGE AND DISPLAY SOLUTIONS

Maximise the use of your promotional space and increase your brand visibility with striking display material and eye-catching signage. We have the production solutions to deliver on all of your indoor and outdoor point of sale.

LaneIMPACT LaneIMPACT

Signage and display solutions

LaneIMPACT

Signage and display solutions

PULL UP BANNERS

STREET SIGNAGE

LaneIMPACT

Signage and display solutions

LaneIMPACT

Signage and display solutions

LaneIMPACT

Signage and display solutions

POSTERS

FENCE MESH

lane@laneprint.com.au

laneprint.com.au

A FRAMES

FLAGS

The Bulletin - Law Society of South Australia - May 2020

Articles inside

Bookshelf

Family Law Case Notes By Rob Glade-Wright

Tax Files: Superannuation

Vale: The Hon. Trevor Olsson AO

Risk Watch: Rise to the challenge

Chris Bleby SC appointed to Court of Appeal

Opinion: Enforced isolation has made me treasure my freedom even more By Michael Esposito

Taking care of your mental wellbeing in a time of uncertainty

$1.8 million COVID-19 package to support practitioners

Managing your practice during COVID-19: A guide

Ensuring legal services can be

Preparing for criminal trial advocacy

The new Uniform Civil Court

Mandatory prison for sex offences: the effect of new sentencing laws By Andrew Culshaw

Young Lawyers: Coffee with Barbara – The Legal Forecast By Matthew Rismondo By Rosemary Pridmore

President’s Message

Advocacy in the appellate context

From the Editor