Brief August 2018

VOLUME 45 | NUMBER 7 | AUGUST 2018

Farewell to the Chief Justice Also inside High Court Comes to the Westin Event Wrap Up EU General Data Protection Regulation: What You Need to Know Third Party Funding in the Resources Sector

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Volume 45 | Number 6 | August 2018

18

CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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36

ARTICLES 06

Interview with the Hon Wayne Martin AC, QC 13th Chief Justice of Western Australia

12

Farewell to The Honourable Chief Justice Wayne Martin AC

18

Event Wrap Up: The High Court Comes to the Westin

22

Toast to the High Court of Australia

23

Response to Simon Freitag SC’s Toast to the High Court of Australia

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief.

COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author.

Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

25

EU General Data Protection Regulation - What You Need to Know

34

Interview with Melissa Paterniti the Law Society's Law Graduate Programme

Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au

35

Interview with the Hon Malcolm McCusker AC CVO QC, New Chairman of Law Access

RRP $16.00 incl GST. Printed by Vanguard Press

36

Third Party Funding in the Resources Sector

Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, The Hon John McKechnie QC, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng

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Editor: Jason MacLaurin

Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831

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Submission of articles: Contributions to Brief are always welcome.

For details, contact brief@lawsocietywa.asn.au

04 Editor's Opinion

47 Ex Juris: Travel Tales from the Legal Profession

President: Hayley Cormann

10 Cartoon

48 Law Council Update

Junior Vice President & Treasurer: Jocelyne Boujos

17 Book Review: Sir Alexander Onslow: Third Chief Justice of Western Australia 1883-1901

49 Law Week Panel Discussion: Access to Justice for Indigenous Peoples

Immediate Past President: Alain Musikanth

44 Book Review: The Secret Barrister: Stories of the Law and How It’s Broken

50 Professional Announcements

Junior Members: Zoe Bush, Sarah O’Brien-Smith, Brooke Sojan

51 Classifieds

Chief Executive Officer: David Price

45 Drover's Dog

52 Events Calendar

02 President's Report

Senior Vice President: Greg McIntyre SC

Ordinary Members: Brahma Dharmananda SC, Elisabeth Edwards, Catherine Fletcher, Emma Griffiths, Karina Hafford, Eric Heenan, Fiona Low, Marshall McKenna, Denis McLeod, Jodie Moffat, Nicholas van Hattem, Paula Wilkinson Country Member: Kerstin Stringer

51 New Members

46 Family Law Case Notes 01

PRESIDENT'S REPORT Hayley Cormann President, the Law Society of Western Australia

Welcome to the August edition of Brief. This edition features a wide-ranging interview with the Hon Wayne Martin AC, QC, 13th Chief Justice of Western Australia, who retired from the Bench last month after more than a decade of service to our community.

It was my privilege to attend the ceremonial farewell for His Honour on Friday, 20 July at the Supreme Court, and to address the Court on behalf of the Law Society’s members, paying tribute to His Honour at the conclusion of a long and distinguished judicial career.

Following the farewell, the Attorney General announced that Mr Peter Quinlan SC will be the 14th Chief Justice of Western Australia. Mr Quinlan SC is currently the Solicitor-General for Western Australia and a member of the Law Society. Mr Quinlan SC is an outstanding leader of the legal profession. I extend congratulations to him on behalf of the Law Society and our members on his appointment and look forward to continuing to work closely with him in his new role.

In addition, it was a pleasure to formally welcome the Hon Justice Jennifer Smith last month as a permanent judge of the Supreme Court of Western Australia. Justice Smith is an excellent appointment, and the Society wishes Her Honour all the very best in her judicial career.

Black Tie Gala Dinner In the meantime, on Saturday, 4 August the Law Society and WA Bar Association co-hosted a Black Tie Gala Dinner for the legal profession at the magnificent Crown Towers, Perth. It was an unforgettable evening with hundreds of members of the profession and judiciary in attendance enjoying a delicious three course meal and fantastic live entertainment.

My thanks to Attorney General for Australia the Hon Christian Porter MP, who gave a sharp and entertaining keynote address. The WA legal profession again displayed its generosity by bidding on a range of unique experiences and prizes in our charity silent auction, with part proceeds going to Anglicare WA’s Street Connect programme through the Chief Justice’s Law Week Youth Appeal Trust.

Look out for an update on the final total contribution to Street Connect in upcoming communications from the Law Society, along with a full review of the Black Tie Gala Dinner in the September edition of Brief.

Thank you to Platinum Sponsor Jackson McDonald, and to Gold Sponsors Bankwest, The College of Law Western Australia, Herbert Smith Freehills, HHG Legal Group and Houlihan Lokey for their support for the event and our efforts.

State Government Decision to Keep Landgate in Public Hands is Welcomed by the Law Society The Law Society welcomed the recent decision by the Government of Western Australia to

02 | BRIEF AUGUST 2018

reject the sale of Landgate and instead keep it in public hands. The Law Society understands the State Government will instead seek to commercialise a restricted part of Landgate’s automated functions.

The State Government advised it will “retain ownership and oversight of the land titles register, and Landgate itself will continue to function as a statutory authority”. Landgate has stated its registry data will continue to be secured through statutory responsibilities and contractual compliance, delivered by the independent Statutory Officers. All existing privacy protections will be maintained and indefeasibility of title will continue to be guaranteed by the State under the current Torrens system.

The Law Society opposes the privatisation of Landgate in the absence of adequate protections for consumers and therefore welcomes the commitment of the State Government to guaranteeing the continued integrity of the land registry, and maintenance of the existing system of indefeasibility of title.

The Law Society looks forward to seeing further details of the proposed commercialisation of Landgate’s automated functions, and reserves its position in this regard until obtaining more information. It is vitally important that Landgate maintains its existing standards of customer satisfaction, and that the proposed changes have no adverse effect upon the provision of high-quality services to the Western Australian community.

Members can read more about the Law Society’s policy position on this issue by visiting lawsocietywa.asn.au/law-reform-and-advocacy/ policy-papers. There you will find a briefing paper entitled Sale of the WA Land Registry, which was recently approved by the Law Society’s Council.

Law Society Information Guide: Law Graduates’ and Junior Legal Practitioners’ Working and Pay Conditions The Law Society understands law graduates and newly admitted lawyers face many challenges as regards their working conditions and remuneration. They may be especially vulnerable to exploitation, and find fair negotiation around employment terms difficult to achieve. It is no secret the numbers of law graduates exceed available graduate training positions, and many have incurred significant debts in completing university, post-graduate and admission requirements.

As a result, the Law Society has developed an information guide to encourage best practice, fairness and compliance with legal obligations when employing graduates and junior practitioners. This useful guide covers issues such as remuneration, conditions of employment and employee supervision. Please visit lawsocietywa.asn.au/resource-centre/resourcesand-guidelines to read the full information guide.

Law Society members can also access additional employment support through the Employee Relations Advice Line, a free, confidential telephone advice service provided by the Chamber of Commerce and Industry of Western Australia, as part of the Law Society’s LawCare WA health and wellbeing programme. The service can provide guidance to members on a range of HR and employee relations issues. Call (08) 9365 7660 to access the service, available 8.00am to 5.00pm, Monday to Thursday and 8.00am to 4.00pm on Friday. The service is closed on weekends and public holidays.

Law Society Welcomes Introduction of Targets for Briefing Female Barristers The Law Society welcomes the recent announcement by the Commonwealth Government that all Commonwealth agencies will be set specific targets to brief senior and junior female barristers from 1 July 2018.

The Commonwealth Government announced that amendments have been made to the Legal Services Directions, by which all Commonwealth entities are bound. The amendments require Commonwealth entities to make all reasonable endeavours to brief or select senior female barristers for at least 25 percent of all briefs and junior female barristers for at least 30 percent of all briefs.

The Commonwealth’s targets are in line with the objectives of the Law Council of Australia’s Equitable Briefing Policy, which is endorsed by the Law Society. The Law Society has consistently advocated for gender parity in the legal profession, and has developed its own Equality of Opportunity Model Briefing Policy to supplement the Law Council’s Policy. The Law Society has also adopted the Law Council’s Diversity and Equality Charter, committing it to promoting diversity, equality, respect and inclusion within the legal profession.

The Law Society has recently progressed a number of initiatives to support the advancement of women in the legal profession, including advocating that the State Government adopt an equitable briefing policy for State agencies, successfully advocating for an amendment of the Supreme Court Consolidated Practice Directions to include that a part-time or flexible practice is not a bar to appointment as Senior Counsel, hosting seminars on unconscious bias, diversity and inclusion, and offering a mentoring programme for practitioners seeking career guidance.

Gender parity continues to be a significant focus for the Law Society, as we work towards creating a more equitable and diverse legal profession.

For now, I wish you all a safe and happy month of August, and as always, we love to hear from our membership. I encourage you to contact either me, any other member of the Executive or the Society's Chief Executive Officer directly, to share with us your ideas and feedback.

SALARIED/EQUITY PARTNERSHIP OPPORTUNITIES PARTNER – CORPORATE/M&A/E&R – EXPANDING INTERNATIONAL FIRM. KBE has been exclusively briefed to secure a Salaried/Equity Partner for the Corporate/M&A/E&R Group of an award winning international firm. The existing structure is ideal for Senior Partners looking to leverage quality SA’s /SC’s to assist in completing complex work, allowing you to focus on managing and further building your client base. The successful Partner will bring across some form of transportable fee base, and leverage well-established networks across Corporate, M&A (both public and private), E&R and equity capital markets. We would like to speak with both junior and senior Partners, lawyers approaching the end of their careers and SA/SC level Lawyers who are experiencing glass ceilings, who can demonstrate a transportable fee base of $400k+.

PARTNERS – FAMILY LAW – MARKET LEADING TEAMS. We are seeking two Senior Family Lawyers to take on Partnership/leadership roles as part of our client firms’ growth and succession plans. You will enjoy mentoring junior lawyers and oversee file strategy for HNW clients across complex property and children’s matters. $250k transportable fee bases or established referral networks required.

PARTNER – HEAD OF CORPORATE/COMMERCIAL FOR WESTERN AUSTRALIA – NATIONAL FIRM. A rapidly growing national firm and long-term client of KBE is seeking an experienced Partner to establish the Corporate/Commercial Group in Western Australia. The firm has a strong reputation and has grown rapidly in recent years to become a leader in the Australian legal market, with a focus on advising public, large private, and highly respected SME businesses. There are several top-tier Partners in the Perth office who have significant expansion plans over the next 5 years.

PARTNERS – INSOLVENCY AND LITIGATION – PARTNERSHIP OPPORTUNITIES ACROSS ALL TIERS. Numerous opportunities have arisen for experienced Insolvency Partners to join national /international and boutique firms either as a Partner or Head of Insolvency/Litigation. Transportable fee bases of $250k+ required.

PARTNER – PROPERTY – TAKE OVER $1M TO $1.5M CLIENT BASE FROM RETIRING EQUITY PARTNER. This a rare opportunity for a Property Partner or SA/SC to join a long-established firm and take over a practice from a retiring Equity Partner. The firm is highly regarded and consists of Partners from top-tier backgrounds, with a loyal client base and proud reputation in the Perth market. One of the firm’s founders is planning to transition to a Consultant role and would like to hand their client base to a Partner or suitably driven SA/SC over the next 12-36 months.

PARTNER – WORKPLACE RELATIONS – LEADING WA FIRM. This well-known WA law firm is seeking a Senior Lawyer and Head of Workplace Relations to build and lead their practice. The incoming lawyer will inherit a fee base of circa $250k, working closely with the other Partners to drive business development activities and gain further market share. Our client is seeking a Lawyer from

a national/international or well-regarded boutique firm as they continue to develop their brand and build into the mid-tier in the WA market place.

This position would suit applicants with 5-8+ years’ PAE looking to step up and take on a leadership role within a highly collegiate, driven Partnership that dedicates significant time and resources to strategic planning. You will be willing to mentor junior lawyers with demonstrated aptitude for building and maintaining client relationships.

Please contact Chris Bates to discuss the above positions, or for comprehensive advice on the Partnership/law firm M&A opportunities available throughout the Western Australian legal market.

IN-HOUSE LEGAL OPPORTUNITIES THE IN-HOUSE LEGAL MARKET IS GAINING SIGNIFICANT MOMENTUM. KBE IS RECEIVING 1-2 NEW IN HOUSE COUNSEL OPPORTUNITIES EACH WEEK. We are currently working on 8 urgent and exclusive In-House Counsel roles and would like to speak with Junior Legal Counsel with 2-5 years’ PAE and Legal Counsel with 6-10 years’ PAE. Our clients are high profile ASX100 and ASX200 companies in the Mining, Oil & Gas, Construction, Contracting, and Energy and Resources sectors.

These are exceptional “blue-chip” roles – 4 with long-established legal functions, and 4 with rapidly growing teams where you will play a key role in shaping the legal functions within the broader business.

If you have 2-5 years’ PAE or 6-10 years’ PAE (from In-House or private practice), and are seeking direct access to high profile Boards with the ability to get involved with Commercial Project Management and take on Co-Sec responsibilities, then it would be a pleasure to speak with you.

2 YEARS’ PAE TO SENIOR ASSOCIATE/ SPECIAL COUNSEL CONSTRUCTION LITIGATION LAWYERS – ASSOCIATES/SENIOR ASSOCIATES – INTERNATIONAL FIRMS. We are currently working with two of the leading Construction Litigation teams across the Asia Pacific region to secure highly skilled Construction Litigation Lawyers to bolster their Perth offering. The successful candidates will manage complex matters with a high degree of autonomy, extensive client contact, and be paid at the very top of the market.

CORPORATE/M&A LAWYERS – MULTIPLE FIRMS ACROSS ALL TIERS. If you are a Junior Lawyer, Associate or Senior Associate with 1-4 years’ PAE or 5-10+ years’ PAE, then you are in very high demand. Each of our clients offers a variety of benefits, including performance bonuses, flexible working conditions, time off in lieu, and other financial/non-financial incentives.

FAMILY LAWYERS – TWO OF WA’S STRONGEST FAMILY LAW TEAMS. Two exceptional Family Law practices are looking to secure quality Family Lawyers with 2-5+ years’ PAE. With an enviable client base and advising HNW individuals regarding

Chris Bates

Siemone Neutgens

Sharon Apathy

Managing Director

Principal Consultant

Principal Consultant

M: 0411 645 984 E: chris@kbehc.com.au

M: 0403 383 326 E: siemone@kbehc.com.au

M: 0413 132 049 E: sharon@kbehc.com.au

complex property/children’s matters, our clients are seeking confident junior lawyers who are accustomed to working with C-suite business leaders (both as clients and referral sources).

INSURANCE LAWYERS – MULTIPLE FIRMS ACROSS ALL TIERS. We are currently working with several of KBE’s key national, international and boutique clients across all tiers to secure Insurance Lawyers with 2-6 years’ PAE. We are interested in speaking with Insurance/Litigation Lawyers with experience across General Liability, Product Liability, Professional Indemnity, Property Liability, Public Liability, Medical Negligence, MVA/CTP claims, and Workers’ Comp. Both plaintiff and defendant side applicants are encouraged to apply.

LITIGATION LAWYERS – NATIONAL/ INTERNATIONAL FIRMS. 2-5+ years’ PAE. Led by a top-tier Partner, this boutique team specialises in Property and Commercial Law. The firm’s clients include property developers, commercial real estate agencies, strata managers, high net wealth family groups, public companies and private individuals. This client facing role would suit a junior Property/Commercial Lawyer with strong BD/client facing skills.

PROPERTY LAWYER – BOUTIQUE FIRM. 2-5+ years’ PAE. Led by a top-tier Partner, this boutique team specialises in Property and Commercial Law. The firm’s clients include property developers, commercial real estate agencies, strata managers, high net wealth family groups, public companies and private individuals. This client facing role would suit a junior Property/Commercial Lawyer with strong BD/client facing skills.

TAX LAWYERS – NATIONAL/INTERNATIONAL FIRMS. Opportunities for Associate and SA’s/SC’s to join high quality Tax Groups within national and international firms. You will receive exceptional training from some of the leading Tax Partners in Australia, who are renowned for their proactive approach to mentoring and development.

WORKPLACE RELATIONS LAWYER – LEADERSHIP ROLE – TIER ONE FIRM. The Workplace Relations Group of this international firm has engaged KBE to secure a SA/SC to assist in heading up the Employment, IR and OSH practice for the firm’s Perth office. You will work closely with Partners from across Australia and manage the firm’s existing panel and non-panel work, servicing long standing government, ASX listed and global clients. You will oversee a range of contentious and non-contentious matters, conduct training for clients and advise boards on a broad range of Workplace Relations matters. Candidates with strong WPR, IR and/or OH&S experience from both private practice and in house will be considered, provided your experience and networks are transferable.

Please contact Siemone Neutgens or Sharon Apathy to discuss the above positions, or for comprehensive advice on the opportunities available throughout the Western Australian legal market.

KBE Human Capital P: 08 6467 7889 A: Level 18, 140 St Georges Terrace, Perth 03 W: kbehumancapital.com.au

EDITOR'S OPINION Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief

This month’s feature item is an interview with the Hon Wayne Martin AC QC the recently retired Chief Justice of Western Australia. It provides insight into his Honour’s experiences during 12 years of service, and issues that confront the administration of justice and the practice of the law. This edition also contains extracts from his Honour’s farewell ceremony.

This month’s Brief also contains a number of other items about the judiciary – including coverage of a recent High Court function in Perth, Simon Frietag SC’s toast to the High Court, and the Hon Justice James Edelman’s response.

Next month’s edition will continue reporting upon the significant event of the former Chief Justice’s retirement, the appointment of the new Chief Justice of Western Australia, former Solicitor-General Peter Quinlan SC (whose appointment was only just announced at the time of writing and Brief going to print and to whom Brief extends its congratulations), as well as notable aspects from the many welcome and farewell ceremonies that have taken place this year.

The calm and civility surrounding farewells and welcomes of local judicial officers is in stark contrast to recent events in the US, and speaks well of the Australian tradition, generally speaking, of a lack of public rancour, or in any event hyper-politicisation, of judicial appointments.

Last month’s editorial serendipitously mentioned the challenges some US judges face, including confirmation hearings – referring to the provenance of the term “Borking” being the attacks launched upon Ronald Reagan’s SCOTUS nominee Robert Bork in 1987, whose nomination ultimately failed before the US Senate, 58 to 42.1 At the time of writing there was no inkling of what was to be unleashed by SCOTUS Associate Justice Anthony Kennedy’s unexpected retirement.

Justice Kennedy had the gall to retire at the tender age of 81 (well past what Martin CJ notes in his interview is the local age of “statutory senility” of 70) allowing President Trump to nominate a replacement who would, if confirmed, likely change the ideological balance of the Court. Justice Kennedy was not given, by some otherwise admiring supporters of the “swing justice”, the respectful send-off he deserved. Rather, in some quarters, he received the sort of sendoff reserved for Australian Tennis players who “retire” in the middle of a match they’re losing.2

04 | BRIEF AUGUST 2018

There are reasons of course for the exceptional rancour surrounding Justice Kennedy’s proposed replacement, Justice Brett Kavanaugh, including that President Obama’s 2016 SCOTUS nominee Justice Merrick Garland was denied a confirmation hearing. And some legal scholars and commentators have suggested “stacking” SCOTUS when next in power, by expanding the seats on it by five, seven or even nine additional justices.3 Noting a contrast between public reaction in the US and Australia to judicial appointments is not to say that Australians are disinterested in either the judiciary or that Australian Courts do make decisions with political implications.

Recent decisions upon MPs’ dual citizenship show this. However, disgruntlement seems to be directed less to the Court, but rather the fact that affected people have approximately 900 better things to do on a Saturday than having to vote in a by-election. And the most concern about the ideological balance of sitting judges being altered seems to concern events like Gordon Ramsay being a guest judge on MasterChef. 4 Australia has its fair share of debates upon judicial activism and transparency. However, rancour over perceived judicial activism or political implications of the courts seems muted here, compared to the United Kingdom where, in the sphere of judicial review, complications arise from a lack of a written constitution, and in the USA due to her Bill of Rights.5 Historically, Australia is no stranger to politicians being appointed to the bench.

And parochialism sometimes affected the debate. A 29 September 1903 edition of the Kalgoorlie Western Argus (displaying festering resentment about Federation, and an animus towards Sir Edmund Barton) noted the Prime Minister’s resignation to be appointed to the High Court as not really being of any concern or comment “except with those who have a high sense of morality”.6 The article also noted that no criticism could be made of the new Justice O’Connor as he “has sacrificed a large personal income by his acceptance of the position of junior judge”.7 A famously unsuccessful aspect of Bork’s borking was the surreptitious obtaining of his video store8 records, revealing mainly G-rated fare, the edgiest material being the Marx Brothers’ Day at the Races9 and Ruthless People (footage of Bork’s Senate confirmation hearings could well be released under the latter title). It is said that one benefit flowing from the incident was the passing of

the Federal US Video Privacy Protection Act 1988, which might be considered a cruel joke, given Bork’s general lack of enthusiasm for a right to privacy.

Bork does live on as the inspiration for Judge Roy Snyder in The Simpsons, notable for the fabulous (and unnecessary) relief he granted in a trial pitting religion against science: “As for science versus religion I’m issuing a restraining order: science shall stay 500 yards from religion at all times.”

Aside from “borking”, US judicial nominations have given rise to a somewhat more obscure term: “Hruskan” (a spirited defence of mediocrity). In a desperate attempt to bolster support for Richard Nixon’s SCOTUS nominee G. Harrold Carswell, Senator Hruska declared: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are all entitled to a little representation aren’t they, and a little chance?

We can’t all have Brandeises and Cardozos and Frankfurters and stuff like that”.

To any follower of a sporting team, it seems at times that Hruskan arguments are deployed far too often, especially after bad losses.

NOTES: 1

Having watched many late night/early morning World Cup soccer matches, the Editor was at times calling for rule changes that might result in scores more in the vicinity of 58 to 42.

2

Justice Kennedy reputedly disliked the term “swing judge” – as he saw himself as applying principles evenhandedly, not swinging one way or the other. A cursory review of some of the less complimentary proposed replacement nicknames being thrown around by some in social media shows “swing judge” to be one of the more polite.

3

A review of some of the retiring Chief Justice’s past statements suggests that his Honour might have responded to the suggestion of political action to add three or five Justices to the Supreme Court to the effect of “it’s a good start”.

4

Likewise in respect to the lack of principled dissenting judgments: when was the last time there was any dissent on MasterChef between Gary, George and Matt?

5

Martin CJ discussed this in a lecture ‘Peripheral Vision?

Judicial Review in Australia’, Australian Institute of Administrative Law 2014 Conference.

6

As millennials would say: “Snarky much?”

7

An observation which finds its way from time to time into modern welcome speeches.

8

To younger readers – yes – they were a thing.

9

Which did contain the great and oft repeated joke “Why, I’ve never been so insulted in my life!” to which Groucho replied [looking at his watch] “Well, it’s early yet”.

Brief welcomes your thoughts and feedback. Send all letters to the editor to brief@lawsocietywa.asn.au

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Interview with the Hon Wayne Martin AC, QC 13th Chief Justice of Western Australia The Hon Wayne Martin AC, QC left judicial office in July, having served the people of our State for more than a decade as Chief Justice of Western Australia. He remains a great friend and supporter of the Law Society, being a former President and valued Life Member.

Brief took the opportunity to talk with the former Chief Justice about his experiences and views on a range of issues, as well as his plans for the future.

At your ceremonial welcome to the Supreme Court in 2006 you expressed concern about the relationship between the courts, the law of our State and Aboriginal members of our community. During your time as Chief Justice you have done more than perhaps any other public figure to shine a spotlight upon the ever-increasing and gross overrepresentation of Aboriginal people in our criminal justice system.

What advice do you have for the legal profession, the community at large and the government of the day to arrest and reverse these trends? Do you believe that your advocacy has had a positive effect?

The topic upon which I have spoken publicly most often during my term as Chief Justice has been the gross overrepresentation of Aboriginal people in the criminal justice system of Western Australia. While my comments may have 06 | BRIEF AUGUST 2018

done a little to raise public awareness of the issues involved, the problem of over-representation has got steadily and consistently worse during my term. While this is a matter of profound regret for me personally, much more importantly, it is disastrous for the Australian community as a whole, and the Aboriginal community in particular.

One of the reasons this problem is proving to be so intractable is that there are not simple solutions or quick fixes.

Because the problems are complex and multi-faceted, the solutions must also be complex and multi-faceted. At the risk of gross over-simplification, multifaceted disadvantage lies at the heart of the problem, because crime is largely a consequence of disadvantage. Unless and until we as a community reduce the gross over-representation of Aboriginal people amongst the most disadvantaged, we will continue to see Aboriginal people grossly over-represented in our criminal justice system.

VOLUME 45 | NUMBER 7 | AUGUST 2018

Farewell to the Chief Justice Also inside High Court Comes to the Westin Event Wrap Up EU General Data Protection Regulation: What You Need to Know Third Party Funding in the Resources Sector

Of course, I do not for a minute suggest that we should shrug our shoulders and say "it's all too hard" and accept the indefinite continuation of this appalling social tragedy. To the contrary, I have written and spoken many times about the various things which might be done in an attempt to address this critical issue. Many of these suggestions have been published in Brief magazine.

If I were to revisit those issues in this article, there would not be space to say anything else.

On the occasion of your welcome in 2006 you spoke of the need to improve judicial accountability, with the adoption of a model such as exists through the Judicial Commission of New South Wales.

Successive governments did not legislate on the issue. Do you believe such a mechanism of judicial transparency is still needed, and how do you think it should be implemented?

More than 10 years ago now, the judges and magistrates of Western Australia resolved to support the appointment of an independent body charged with the responsibility of investigating complaints against the judiciary, along the lines of the Judicial Commission of New South Wales, in order to improve judicial accountability. I remain of that view, and have no reason to think that my judicial colleagues have changed their position.

Judicial independence is vital to the proper operation of the rule of law.

However, independence is not to be equated with lack of accountability.

Courts are accountable for their decisions through the appellate processes. However, systems to hold judges and magistrates accountable for their conduct have not developed so as to match community expectations – at least not in Western Australia.

Although heads of courts and tribunals, and ultimately the Chief Justice as head of the judicial system in Western Australia, will continue to do their best to investigate complaints relating to judicial conduct, they have no resources with which to conduct such investigations and it is inevitable that complainants will lack confidence that the investigation has been independent and diligent. Public confidence in the justice system and the accountability of the judiciary could both be improved by relatively inexpensive mechanisms for independent investigation and review of alleged judicial misconduct.

08 | BRIEF AUGUST 2018

During your time as Chief Justice, you have overseen a number of reforms in the court system, including a move towards increasing digitalisation of court processes. How do you see the practice of law and the work of the judiciary changing over the next 5-10 years? What do you consider will be the long term outcome of the trend towards solicitors in larger law firms undertaking more curial and advice work, to the detriment of members of the Bar? Changes in legal practice and court processes over the last 40 years or so have been profound. There is no reason to think the rate of change will diminish, and every reason to think it will accelerate. Developments in information technology will continue to have a dramatic and unpredictable impact upon a wide range of human activities including the courts and the practice of law. Instantaneous global communication has stimulated the development of the global economy, including the market for legal services and for dispute resolution mechanisms.

Artificial intelligence and the harvesting of "big data" will create disruption and challenges at levels and in areas which are very difficult to predict.

In the civil side of the court's work, the well-established trend away from adjudication in favour of more consensual forms of dispute resolution is likely to continue to gain strength. On the criminal side of the court's work, I sincerely hope that more solutionfocused approaches will be taken aimed at addressing and resolving the causes of crime rather than its consequences, along with restorative justice processes which will place greater weight and emphasis upon the needs and interests of victims of crime.

What would you consider your most significant achievement during your time as Chief Justice and what will be your fondest memory?

The assessment of one's achievements is a matter best left to others. My fondest memory as Chief Justice will be the opportunity which the role provided for active engagement with so many wonderful Western Australians across our vast State.

What are some of the areas that haven’t developed to your liking during your time as Chief Justice?

I catalogued the many areas in which I would have hoped that more could be achieved in a paper presented to

a dinner which the Society was kind enough to hold to mark my first 10 years in office. Space does not permit the opportunity to go over all of those topics again. On the criminal side of the court's work, continuing increases in imprisonment generally, and the imprisonment of Aboriginal people in particular, are extremely disappointing.

On the civil side of the court's work, there remain many obstacles in the path of meaningful access to justice for many Western Australians.

What advice would you give to young – and indeed established – lawyers as they make their way in their careers?

The advice I consistently give to people embarking upon legal careers is to find an area of the law they enjoy. If you enjoy working in a particular area of the law, not only will you have a happier life, but you will be much better at your work. The satisfaction derived from doing a difficult job well provides much greater rewards than anything that could ever be measured in monetary terms.

In your view, what qualities are required of a Chief Justice?

Of course a Chief Justice has to be a good lawyer, although not necessarily the best lawyer on the court. Murray Gleeson AC QC put it well when he drew an analogy with being captain of the Australian cricket team – the captain doesn't have to be the best cricketer in the side, but he does have to be a cricketer whose selection is not open to doubt.

Other highly desirable qualities include a genuine appetite and enthusiasm for engagement with people from all walks of life and a willingness to travel regularly to all parts of our great State.

Strong interests in the development of public policy, law reform, and the role played by courts and the law in the development and maintenance of community values and expectations are also highly desirable. A good sense of humour and a capacity to tolerate potentially mind-numbing levels of administration and digest vast amounts of paper are also helpful.

What are the most significant challenges that the new Chief Justice will encounter and what advice would you give?

The next Chief Justice will, no doubt, form his or her own views as to the issues which they regard as important.

They may or may not coincide with

the issues which I have viewed as significant, and which have been touched upon above. The great desirability of regular changes in the perspective and outlook of the leadership of any organisation is the main reason why I have decided to leave before reaching statutory senility. It would be counter-productive and extremely presumptuous of me to purport to give any advice to my successor as to how they should identify and address the many challenges of the office, although I will, of course, be available to provide practical hand-over information in the short-term, if requested.

How would you compare the Supreme Court you leave behind with the Court you inherited 10 years ago?

The Supreme Court of 2018 is different in a number of significant respects to the Supreme Court I joined in 2006.

The judicial personnel have changed enormously – only three of the judges who were on the court when I joined remain on the court today. On the civil side of the court's work, the introduction of docket case management by judges in the CMC list has brought about profound changes in the way in which a lot of civil litigation is conducted in the Supreme Court. Interlocutory disputes have diminished significantly and take much less of the time of the court and the resources of the parties. The hearing room facilities available in the David Malcolm Justice Centre represent the state of the art and are as good as any in the country. On the criminal side of the court's work, the creation of the Stirling Gardens Magistrates Court has enabled seamless case management of our criminal cases from the second court appearance onwards and voluntary criminal case conferencing has introduced a form of mediation into the criminal jurisdiction.

What are your plans in your retirement?

Although I am leaving judicial office, I do not propose to "retire" generally, although I do hope to reduce the hours and extent of my work. Although I will definitely not be returning to legal practice, the acceptance of appointments as a mediator or arbitrator would be consistent with my role as a neutral over the last 12 years. I look forward to seeing the opportunities that might emerge in the future.

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This cartoon was originally published in Brief June 2006 following the appointment of the Chief Justice

PAM SAWYER

10 | BRIEF AUGUST 2018 9

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Farewell to The Honourable Chief Justice Wayne Martin AC This article is adapted from the Chief Justice’s farewell ceremonial sitting held at the Supreme Court of Western Australia on Friday, 20 July 2018.

MARTIN CJ: I would like to commence by thanking everybody for giving up their time to attend this sitting of the court. I’m sure that some of you are here just to make sure that I do, in fact, go; but you’re all most welcome, whatever your reason for attending.

I would like to especially welcome Governor Kim Beazley AC and Ms Susie Annus. I’m also very pleased to welcome former Governor Malcolm McCusker AC QC. And former Governor Ken Michael AC has personally conveyed to me his apologies for his inability to be here this afternoon.

I also thank those who’ve addressed the court this afternoon, being the Attorney General - Justice Le Miere of course, the Attorney General, Ms Cormann and Mr Howard, not only for being here but for their overly kind remarks. Mr Attorney, I was pleased to note that you haven’t departed from our mutual understanding of what can and what cannot be spoken about in relation to our days at law school. And I hope I don’t depart from that understanding myself by observing that if social media had been around in those days to record an indelible record of our exploits, I very much doubt that either of us would hold the positions which we currently hold.

There are, of course, many other very distinguished guests here this afternoon. But as they’ve already been acknowledged, I won’t take time by going through the long list again, other than to welcome Acting Chief Justice Andrew Greenwood and to express my own special words of welcome to the former Chief Justice of Australia, the Honourable Robert French AC. I found this afternoon’s proceedings a bit like attending my own funeral.

Although I’m very well accustomed to the embellishment, exaggeration and hyperbole which invariably characterises addresses on occasions like this, I must confess that listening to this afternoon’s addresses I was convinced that I was in the wrong court or that somebody else must be leaving the court because the person you’ve described didn’t sound at all like me. But I don’t want it to be thought that I’m critical of the speakers for the approach they’ve taken, because I would like my family to leave under the delusion that all that you’ve said is true.

But I’m afraid my family are a somewhat sceptical bunch.

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It’s not uncommon for retiring judges to use the attention provided by farewell sittings to bemoan the current state of affairs in relation to some topic of their interest, such as court administration, the inaccuracy of media reporting of trials, the impracticality of the High Court and so on. The departing judge customarily rails against whoever they regard as responsible and lobs a few hand grenades in their general direction.

I’m sorry to disappoint those who thought I might engage in that practice this afternoon, but my bomb-throwing days are over. I’ve had more than 12 years to speak publicly about the justice system and I’ve taken up that opportunity quite frequently, as some of you have observed. In that context, it’s most unlikely that I would come out with anything novel or profound this afternoon.

And if I haven’t already said something in the course of the 150 so public addresses and papers that I’ve delivered during my time as Chief Justice, it’s probably not worth saying anyway.

miscalculation. Of course, I must now confess that I’ve misled all of those to whom I spoke at the time by staying for more than 12 years and I should explain why.

Fundamentally, I stayed on longer than I first anticipated because I’ve really enjoyed the job, its challenges and the opportunities which it has provided, and I will say more of them later. So why am I leaving a position which I have enjoyed before I reach the statutory age of senility? The answer is that I’m a firm believer in the importance of regular renewal in leadership roles. The Chief Justice of Western Australia has general responsibility for the operation of all the courts of the state. There aren’t many organisations that would relish the idea of having the same leader for 10 years or more.

For me, it has been a question of striking the right balance between the benefits of experience in the office, on the one hand, as compared to the benefits which can be expected from the application of a fresh pair of eyes and the energy which goes with a new appointment, on the other.

Last year I became the longest serving Chief Justice in Australia, the realisation of which prompted me to the view that the balance had tilted in favour of renewal.

My focus today will, nevertheless, be indulgent, as I hope to provide some personal views about my experience as Chief Justice of the great state of Western Australia for a bit over 12 years. I won’t, however, be undertaking any assessment of my own performance. I did that about two years ago at a dinner the Law Society was kind enough to hold in my honour and I didn’t come out of it very well.

Things were starting to look a bit the same, I didn’t have quite the same appetite and enthusiasm for attending the 3000 or so committee meetings that I’ve attended over the last 12 years and there are only so many murder trials and child sex appeals that one can do without developing a jaundiced view of humanity.

I’ve always had and wish very much to retain a fundamentally positive and optimistic view about people.

But first I must come clean. At the time of my appointment, I foolishly told everyone and anyone who would listen that I expected to serve a term of 10 years and one week. The reason I chose that period was because judges have to serve a term of 10 years in order to qualify for their pension and I thought I should add a week just to avoid any possibility of

So trying to maintain that positive note, let me tell you a bit more about some of the aspects of the job and some of its challenges. The quality of my judicial work has been, and must continue to be, assessed by others, not me; by academics and by Courts of Appeal. I have, however, considered it important to sit in all areas of the court’s work,

including managing a commercial list, conducting criminal trials, especially on circuit, and I’ve had the opportunity to conduct criminal trials in all but two of Western Australia’s regional courts. I managed the arbitration list since it was created about six years ago and I’ve presided over many criminal and civil appeals.

The variety that this has provided piqued an interest which was starting to flag after about 30 years as an advocate. I’ve also taken the view that it’s important for the most senior member of the court to undertake the most difficult and contentious cases, although I soon came to appreciate that it was difficult to reconcile the many responsibilities of my office with the conduct of long civil trials.

I’ve always tried to bear in mind that every case is the most important case ever for the people involved in it.

Turning now to my non-judicial work.

Over the years I’ve often been asked what percentage of my time has been spent on judicial work and what percentage on the many other roles the Chief Justice is required to perform. The standard answer I give is that I spend about 80 per cent of my time doing judicial work and about 70 per cent of my time on the various other tasks involved.

In the area of public engagement I have followed the lead set by my outstanding predecessor, the Honourable David Malcolm AC. It’s entirely appropriate that the building in which we sit has been named after him and I’m very pleased to welcome David’s widow Kaaren to this afternoon’s ceremony. I think it was Richard Utting who said of David that he would turn up and give an address at the opening of an envelope, and I think I’m vulnerable to the same observation.

Those of you who are as old as I am might remember a TV program featuring Harry Butler, a Western Australian naturalist and environmentalist who had a great ability to describe natural processes and the science of nature in terms that people could understand. I’ve tried in my way to be a kind of Harry Butler of the law and the courts, because I think it’s important for the community to understand what we do and why.

But, of course, justice has a vital social dimension which goes well beyond the law and the courts. Many of the people in our courts, especially those in our criminal courts charged with crime, have themselves been victims of injustice and disadvantage. I’ve tried to use the opportunity of the public platforms I’ve been given to emphasise that justice has a much broader dimension than just

what occurs in our courts, and requires constructive responses to disadvantage as a result of things like mental illness, cognitive disability, childhood trauma and/or sexual abuse, substance misuse and dependence, homelessness and the cultural and social dislocation sometimes associated with aboriginality.

Effective responses to disadvantages of this kind are not things that can be achieved by a court order. Although, in some circumstances, courts can act as facilitators. A significant part of my purpose has been to try to draw public attention to the obvious connection between disadvantage in these areas and criminal behaviour and to encourage greater focus of attention upon the need to address the causes of crime and not just its consequences.

The opportunity which my office has provided to engage with people from all walks of life and all around our great state has been one of the great experiences of my life. Many wonderful people I’ve met over the last 12 years have provided a great counterbalance to the jaded impression of humanity which might be derived from seeing human nature often at its worst in our courtrooms. During the mining construction boom much was said about the value of our state’s mineral resources. I continue to believe that the great value of our state lies in its human resources, and that’s not just because commodity prices have gone down.

The role of government and the courts as an essential branch of government is to maximise the opportunities for everybody in our state to achieve their full potential, not just in economic terms but perhaps more importantly in human terms. I’ve also had the opportunity to meet and develop relationships with many exceptional indigenous leaders I now regard as friends, some of whom are here this afternoon and who I especially welcome, including Dr Richard Walley OAM, Professor Colleen Hayward AM and Dr Robert Isaacs AM, and others who weren’t able to make it this afternoon.

Turning now to the challenges of my office. Before I was appointed, I had no idea what the powers of the Chief Justice were. As Ms Cormann has pointed out, I soon discovered the Chief Justice doesn’t, in fact, have any real powers.

Many of my judicial colleagues consider that the conventional description of a Chief Justice as the first among equals rather overstates the role.

I soon came to realise that the only way beneficial changes could be made was through the formation and development of consensus amongst my judicial

colleagues and I’m pleased to report the judiciary of Western Australia is an extremely collegiate and cohesive group, for which I have my colleagues who are the heads of other state jurisdictions to thank. As might be expected, we haven’t always enjoyed complete consensus with executive government, but relations have always been cordial and mutually respectful.

I also came to realise the significance of the prophetic observations made during the course of my official welcome by the Attorney General of the day who was responsible for appointing me, the Honourable Jim McGinty, who I’m very pleased to see here this afternoon. He cited Machiavelli’s observation that, and I quote: There is nothing more difficult to take in hand, more perilous to conduct or more uncertain in its success, than to take the lead in the introduction of a new order of things.

I also came to realise that I shouldn’t be surprised that politicians were familiar with the work of Niccolo Machiavelli.

On a much more sombre note, one of the greatest challenges faced by the court and by me during my term arose from the tragic death of Registrar Corryn Rayney almost 11 years ago. She was a much loved member of the court and is still sorely missed. The circumstances of her disappearance and the later discovery of her remains imposed a great emotional strain on everybody involved, including the court.

The capacity of the judges and court staff to complete the grieving process has been inhibited by our continuing involvement in a series of cases arising from her death. Although I can’t claim to be unbiased, I think the court is entitled to take pride in the professional way in which our obligations to the conduct of that litigation have been performed impartially and with as much detachment as possible in the circumstances.

Another great challenge has arisen from my conspicuous inability to attract the provision of more resources from executive government. The significant increase in our caseload has placed all members of the court and staff under considerable pressure. I’ve been extremely proud of the way in which my judicial colleagues and the staff of the court have risen to the challenge, and have continued to resolve cases in as timely a fashion as possible by working harder and more effectively. I thank them all for their dedication to the administration of justice and for the

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support and encouragement which they have consistently provided to me.

There are so many other people to thank for the experience of the last 12 years that it’s very difficult to know where to start. In addition to the judicial officers and staff of the court, I wish to especially thank Rob Christie, who I’m very pleased to see here this afternoon, and who served as executive manager of the court during much of my term. Rob oversaw our move into this building with the enormous assistance of Kelly Martinelli, who is now the acting executive manager and a great support to the judges and me.

I thank also the many officials within the Department of Justice for their support, not only for the work of the Supreme Court but all the other components of the state’s justice system with which I have been involved. I thank also the many officials in other agencies who work closely with the courts, especially former Police Commissioner O’Callaghan, who’s unable to be here today as he is again doing good work in Mongolia, and Police Commissioner Chris Dawson, who I welcome to these proceedings.

Of course, police and courts must zealously guard their independence and their independent roles. But that doesn’t mean that we can’t cooperate constructively with each other for the benefit of the justice system as a whole and I’m pleased to report that we’ve enjoyed most constructive cooperation with WA Police throughout my term.

I’ve been very fortunate over the last 12 years to work in an extremely collegiate environment in chambers.

Over that time, I’ve had many brilliant associates: Catriona Macleod, Serena Wells, Gregory Dale, Lauren Butterly, Tom Pontre, Roxanne Moore, Katrina Travaglione, Tim Goyder, Chris Mofflin, Ralph Timpani, Emma Salsano, Liam Elphick, Eric Chan, Matheo Vinciullo and Emily Archer, all of whom have provided enormous assistance with legal research, case management and editing my draft judgments, many of whom are here today, some having travelled great distances to be here.

Greg Willis, Dennis Haydock and Stan Carvell have each served terms as my orderly and have each been of enormous assistance and great company. Dennis has travelled from Byron Bay to be here today, for which I’m most grateful.

My senior legal research officers, Dr Phillip Jamieson, Andrew Curtin, Dr Jeannine Purdy and Angela Milne have worked prodigiously, assisting me with the administration of the court and researching the many papers I’ve given 14 | BRIEF AUGUST 2018

in a wide variety of areas. They’ve succeeded in making me appear much cleverer than I really am.

I would like to particularly mention Dr Purdy, who’s a glutton for punishment, and who served two terms in that role and who continually encouraged me to take the broader view of justice of which I’ve spoken this afternoon.

There are two very special people to whom such an enormous debt is owed that words are quite inadequate to express its magnitude. Val Buchanan, my media liaison officer, and Christina Curtis, my chief of staff, have been working with me since my first day on the job back in May 2006 and they’ve stayed the entire journey of the last 12 years or so. To describe them as my right arm and my left arm significantly understates their importance to my working life over that period, but decorum prevents me from taking the body part analogy any further.

There is nothing more difficult to take in hand, more perilous to conduct or more uncertain in its success, than to take the lead in the introduction of a new order of things.

Val Buchanan has cast an eye keenly attuned to the perception of words and phrases that could be misconstrued or quoted out of context over every public statement, paper or address I’ve published. She has thoroughly prepared me for all public appearances and interviews, astutely pointing out potential pitfalls. Her skills have been not so much in telling me what to say, but more in telling me what not to say. In fact, her greatest skill has been telling me when to say nothing at all, even in the face of extreme provocation.

Val has taught me the wisdom of Mark Twain’s observation that it’s most unwise to pick a fight with people who buy their ink by the barrel. Her canny ability to thwart my natural enthusiasm to say things that will get me into trouble has meant that I have lived a charmed life when it comes to the media over pretty much my entire term in office, which is quite an achievement for Val, not for me.

I would also interpose that I consider that we are very fortunate in this state to have media outlets who take their responsibilities seriously when it comes to reports relating to the justice system.

We haven’t been subjected to the sorts of rabble-rousing campaigns that have been maintained by the media in other states.

Through Val’s good offices, I have always enjoyed the fullest cooperation with the media and we’ve developed relationships of mutual trust, which have enabled us to work together to provide the public with accurate information about their justice system.

Christina Curtis has been much more than a PA, which is the role she initially performed. She has managed the team in my chambers as effectively as she has managed my professional life. She knows me so well that she can anticipate what I’m likely to want or need well before I do. My constant challenge is to find something I can ask her to do that she hasn’t already done. Between her management of my work life and my wife’s management of the rest of my life, I’ve been spared the burden of making any decisions at all, except for the odd judgment.

Chris has been a regular source of extremely wise counsel on a diverse range of topics, from protocol through court administration to people I should avoid.

Her network of contacts is exceptionally broad and her capacity to encourage people to do what she or I want them to do, using her consummate skills of tact and diplomacy, is amazing. Her skill in organising this event and many others of a similar kind is equally exceptional. So thank you doesn’t even begin to cut it when it comes to Chris and Val. I will be forever grateful to both of you.

Finally, which is what I usually say when I’m about halfway through any address, I turn to my family. I mentioned at my welcome that I was very fortunate to have both my parents present. Both have since passed; my mother last year at the grand age of 94. Their loss has been offset by the acquisition of a son-inlaw, Simon, who can’t be here today, a daughter-in-law, Anna, who is here today, and four grandchildren, one of whom is also here today. This is a tangible demonstration of the circle of life.

I mentioned at my welcome that my greatest fortune in life was my five children: Emily, Nick, Lucy, Henry and Anna, all of whom are present this afternoon, Emily having flown from Sydney yesterday with her daughter, Isabel, who couldn’t be discouraged from attending this afternoon and who

has been impeccably behaved. As you heard, our daughter Anna was deemed insufficiently reliable to attend 12 years ago when she was two. She’s now a confident young woman who can be relied upon - well, most of the time.

David Malcolm Justice Centre, Perth

If anything that has been said this afternoon gives my children some small measure of pride in their father, it’s a fraction of the pride which I take in them and their achievements. I’m very pleased that my sister Cherry has travelled up from Denmark to be here today. My other sister Ros is on holiday with her husband Oscar in Maine, which is about as far from Perth as you can get on this planet. But they phoned this morning to convey their best wishes and I’m very pleased that my inlaws, Joe and Gemma O’Halloran, and my sister-in-law, Cecilia Calder, have joined us this afternoon.

I said at my welcome that sittings like this were not an occasion for saying things about family members that are best said in private, so I will speak only briefly of my wife Margie. Perhaps the best way of describing the debt which I owe to her is by observing that it simply wouldn’t have been possible for me to discharge the responsibilities of my office over the last 12 years without her continuing love, encouragement and support.

That support has taken many forms, from wise counsel in relation to difficult issues, unrelenting advice arising from my lack of a dress sense, advice usually volunteered without request. She has also borne the brunt of family responsibilities while I’ve worked long hours and travelled widely and attended innumerable functions with me when I knew she would much rather have been at home, for all of which I am most grateful. I hope life will be a bit easier for both of us over the next few years.

Over the last few months, many people have asked what my future holds. Apart from trying to emulate my mother’s example of longevity, I haven’t been able to answer that question, and still can’t, because I must wait and see what opportunities are presented. I can, however, say what my future will not hold.

It won’t involve retirement, in the sense of stopping work; although, I hope it will involve a bit more time for leisure. It won’t involve returning to legal practice or the provision of public commentary on the justice system. I will leave that entirely to my successor. So all I can really say about my future is: watch this space.

I finish where I began, by thanking you all for coming and for your attention.

Thank you.

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BOOK REVIEW

Sir Alexander Onslow: Third Chief Justice of Western Australia 1883-1901

By Dr J M Bennett AM, Federation Press, 2018 Review by Gregory Boyle In this, the third in his series of works on the Chief Justices of Western Australia, Bennett brings to life so much of the history, not only of the Supreme Court, but also the colony in the times leading to Responsible Government and Federation.

His style is fluent, confident and eminently readable; his subject matter is fascinating and to the shame of later generations (at least this reviewer) largely overshadowed by the more ebullient histories of the newly independent country and its more “glamorous” experiences of the Great War. It is interesting to reflect on the almost exclusively Anglo-Saxon nature of colonial West Australian society and its interaction with the original inhabitants, which Bennett treats with great passion in one of the later chapters of the book, particularly the trial R v Anderson in 1897, for which no full report now exists as it pre-dates full court reporting, a matter which we

now take so much for granted.

The issues with which Onslow dealt bravely and effectively include matters that are unquestioned today, ranging through judicial independence, separation of powers and professional qualifications and standards.

Before coming to Western Australia, Onslow had been appointed by the Colonial Office to the Supreme Court of British Honduras, serving under Chief Justice William Parker who, in Bennett’s words, “…soon revealed a total lack of judicial qualities, being deficient in legal knowledge or practice, possessed of an irascible temper and denounced by Sir Michael Hicks-Beach… as ‘not being a man of high reputation in any way’”. It is little wonder that this early experience fostered a great firmness in Onslow’s dedication to the proper administration of justice.

Underlining much of Onslow’s career in Western Australia, first as AttorneyGeneral and then as Chief Justice, was his constant conflict with Governor Sir Frederick Napier Broome, whom Bennett depicts in a most unflattering light as ignorant, obdurate, pedantic, longwinded and motivated by malice toward Onslow, ultimately leading to Broome’s purportedly “interdicting” Onslow or in the word of the relevant UK statute “amoving” him from office, later overturned by the Privy Council.

Names that today adorn streets and parks of Perth – ‘Broome', ‘Burt', ‘Forrest', ‘Hackett’ etc. – are brought very much to life as pulsating, partisan, fallible, admirable (or otherwise) human beings.

This is a significant addition to West Australian history and, at 164 pages, a riveting read.

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EVENT WRAP UP

On Monday, 18 June 2018, the Law Society was delighted to host a cocktail function to welcome to Perth the Hon Susan Kiefel AC, Chief Justice of Australia, and five of the Justices of the High Court of Australia.

More than 200 Law Society members enjoyed canapés and refreshments at the exclusive members-only event at The Westin, an impressive new venue located in the heart of the city.

The Justices moved freely throughout the event and spoke to as many attendees as possible.

Barrister Simon Freitag SC offered the traditional toast to the Justices of the High Court (which you can read on page 16) and it was only fitting that the response on behalf of the High Court was provided by proud West Australian,

the Hon Justice James Edelman (His Honour’s remarks are reproduced on page 17).

The Justices and attendees were also moved by a significant and meaningful Welcome to Country by Barry McGuire.

Thank you to our sponsors, The College of Law Western Australia, Curtin University, Edith Cowan University, Murdoch University, The University of Notre Dame Australia, The University of Western Australia and The Westin Perth for their support of this fantastic event.

Additional photographs from the evening can be viewed at the Law Society’s Facebook page.

The Law Society looks forward to again welcoming the Justices of the High Court, when the Court next visits Perth!

Special thanks to our sponsors

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1. Rachel Cosentino, Slater & Gordon Limited; Ibrahim Kakay, Perth Legal Answers; Sukhwant Singh, Magister Legal; Kenneth Rukunga, Slater & Gordon Limited; Yuexiu Wen, Ideal Legal Services

5. William Sloan, Kim Wilson & Co; Denby Kerr, Kerr Fels Pty Ltd; Paula Wilkinson, Councillor - The Law Society of Western Australia; The Hon Susan Kiefel AC, Chief Justice of the High Court Australia; Michael Albrecht;

2. David Price, Chief Executive Officer, The Law Society of Western Australia; Barry McGuire; Michael Lundberg, Quinn Emanuel Urquhart & Sullivan;

6. The Hon Justice James Edelman, High Court of Australia

3. Simon Freitag SC, Albert Wolff Chambers; 4. Donna Marsh, Hall & Wilcox Lawyers; Ellie Pollard, Hall & Wilcox Lawyers; Stacey Marino, Hall & Wilcox Lawyers; Simon Quenby, Hall & Wilcox Lawyers; Aisling Murray, Hall & Wilcox Lawyers

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1. The Hon Virginia Bell AC, High Court of Australia; Glen McLeod, Glen McLeod Legal; Rebecca Lee, Francis Burt Chambers; Wendy Nettle; The Hon Wayne Martin AC, Chief Justice of Western Australia; Ă ine Whelan, The Law Society of Western Australia 2. Alain Musikanth, Immediate Past President, The Law Society of Western Australia; Clinton Russell, Francis Burt Chambers; Hon John Quigley MLA, Attorney General for Western Australia; Dr Eric Heenan, Francis Burt Chambers 3. Rachel Lee, Herbert Smith Freehills; Emily Purvis, Herbert Smith Freehills; Eisha Jones, Herbert Smith Freehills 4. Kenneth Rukunga, Slater & Gordon Limited; Dhifaf Ati, Lynn & Brown Lawyers; Madison Tran; Bronte De Cuyper, Slater & Gordon Limited 5. Rick Cullen, Cullen Macleod Lawyers; The Hon Justice Geoffrey Nettle, High Court of Western Australia; Alan Mizen, Mizen + Mizen; Colleen Mizen, Mizen + Mizen 6. Danielle Eaton, King & Wood Mallesons; Alex Gorovtsv, King & Wood Mallesons; The Hon Justice Michelle Gordon, High Court of Australia; Acacia Hosking, King & Wood Mallesons; 7. Hayley Cormann, President, The Law Society of Western Australia; The Hon Justice James Edelman, High Court of Australia; Brahma Dharmananda SC, Quayside Chambers; Larissa Strk, Principal Registrar, Supreme Court of Western Australia

14

15

8. Carla Gageler; The Hon Stephen Gageler AC, High Court of Australia; Sarah Murray, The University of Western Australia 9. Eisha Jones, Herbert Smith Freehills; Emily Purvis, Herbert Smith Freehills The Hon Susan Kiefel AC, Chief Justice of the High Court Australia; Rachel Lee, Herbert Smith Freehills; Natalie Connor, Legal Consolidated Barrister & Solicitors 10. Michael Albrecht; Danielle Eaton, King & Wood Mallesons, Peter Quinlan SC, Solicitor General for Western Australia; The Hon Susan Kiefel AC, Chief Justice of the High Court Australia; Daniel Yazdani, Dwyer Durack 11. Hayley Cormann, President, the Law Society of Western Australia 12. Acacia Hosking, King & Wood Mallesons; Stuart Cobbett, King & Wood Mallesons; Darsha Kumar, King & Wood Mallesons; Alex Gorovtsv, King & Wood Mallesons; Laura Smith, King & Wood Mallesons.

13. Kathryn Parker, Greenstone Legal Pty Ltd; Rein Squires, Greenstone Legal Pty Ltd; Ella Casserley, Greenstone Legal Pty Ltd; Rebecca Chapman, Cornerstone Legal 14. Alexandra Pieniazek, King & Wood Mallesons; Natalie Connor, Legal Consolidated Barrister & Solicitors 15. Denby Kerr, Kerr Fels Pty Ltd; Amy Fels, Kerr Fels Pty Ltd

21

Toast to the High Court of Australia

By Simon Freitag SC Monday, 18 June 2018, The Westin Perth Your Honour the Chief Justice, Justices of the High Court, thank you very much for bringing the Court to Perth for this circuit and for taking the time tonight to come and meet some of your fans in the WA profession.

You are our profession’s rock stars; you are like the Rolling Stones for us, only obviously much younger than them.

You are our profession’s great intellectual leaders, and we are all honoured to be here with you.

As I am the most junior silk in WA, it fell to me to give the toast tonight on behalf of the WA profession. Sadly, unlike the occasion when I gave this toast in 2001 and took a few risks with my sense of humour, I now have an actual career to lose, so I have been advised to moderate my enthusiasm for comedy somewhat.

Having said that, I noticed that the role of responding to this toast also fell to the most junior amongst your esteemed ranks, His Honour Justice Edelman and I thought that that was too good an opportunity to miss.

I look forward to hearing from His Honour in three to five minutes from now according to the very detailed running sheet that I have been given.

His Honour and I once attended the same school and then the same university but we were never really in the same class.

I am talking both academically and athletically obviously as you can see with your own eyes. His Honour was a brilliant student, cut a finer figure in surf lifesaving 22 | BRIEF AUGUST 2018

attire than our former Prime Minister ever did and has now achieved the great heights we all knew he was capable of.

I thought that the other members of the Court might be amused to know that His Honour is now so famous in WA legal circles that his official High Court photograph was displayed as a question at a recent legal quiz night in Perth which I attended.

We were engaged in a difficult round of trying to identify real and TV /movie lawyers from their photos and I can assure His Honour and the Court that his photo sat comfortably with a picture of Lieutenant Caffey, Tom Cruise’s character in A Few Good Men and another snap of Gregory Peck playing Atticus Fitch in To Kill a Mockingbird. I am not going so far as to say that anyone confused His Honour’s photos for those other two but it sat comfortably in that company.

You would never guess by my accent now but the Law Society took the risk of asking a dual citizen to make this toast. I was born in Britain some forty-ish years ago and still have a British passport stashed away somewhere in my office!

Like all voting-age Australians I have watched Your Honours scythe through the political ranks in the last 12 months with a smile. But although it has been a good year watching all the dual citizens fall I have some ideas on how to make it a great year. If I am able to get a quiet moment with the Court later I have a slightly longer list of politicians, both here in Australia and overseas that I would also like you to rule out.

My list also includes one very prominent former reality TV host, to whom I would like Your Honours to say the words “You’re fired!” but I understand that there might be some jurisdictional limits as to what Your Honours can do!

As I was preparing for this speech the other night I noticed that the media had reported on the Court recently allowing an applicant to continue with his litigation against Google over the allegedly defamatory quality of the search results that were returned against his name.

This prompted me to “Google” myself, obviously the first time that I have ever done anything as solipsistic as that!

Anyway it occurred to me that the “image search” results when I googled myself could also be considered defamatory as an actual image of me comes up first result. The next four images are much more flattering and I am considering seeking the Court’s assistance in ordering Google to just delete the first image and let people imagine that I am any of the next four fine specimens before deciding whether to brief me.

Ladies and gentlemen, before I breach my time deadline or say something that will force the President of the Law Society to regret inviting me, I had better get to the serious business before us.

Can you all please raise your glasses and join me in toasting the health and continued wisdom of the members of the High Court.

Ladies and gentlemen, “the High Court”!

Response to Simon Freitag SC’s Toast to the High Court of Australia The Hon Justice James Edelman Monday, 18 June 2018, The Westin Perth On behalf of the Court, I thank Simon Freitag for his toast and say what a pleasure it is for all of us to be here in Western Australia. Those of us who grew up here, including two members of the High Court, know so very well the open and warm hospitality of Western Australians. We have been grateful for that hospitality and for the vibrancy and conspicuous ability of WA's lawyers and judges. I also thank Barry McGuire for his typically beautiful Welcome to Country and I acknowledge the custodians of this land and their elders, the Whadjuk people.

It is a particular joy for me to return to my home city for this week of sittings.

Perth has been growing rapidly in the last decade and the legal profession has kept pace. One of the icons of that legal change is the new heart of the legal precinct in Western Australia: the David Malcolm Justice Centre. It is a particular pleasure for me to see the completed courtroom floors of that building because one of the last Committee meetings that I attended on the Supreme Court of Western Australia was for the fit out of the hearing rooms. The Committee had been divided on the colour of the carpet to use for the hearing rooms. As the meeting chairperson, I was asked to express my view to the subcommittee who had been involved with the selection.

I thought that it was curious that although there were three different views they had included four carpet samples. I said that I thought that the best choice might be a light brown coloured carpet to match the colour of the Court website that I had assisted to develop on the Information

Technology committee. I later learned that the brown sample had been included as a type of scientific control. One of my less subtle colleagues described it as the Wednesbury choice. My decision was rapidly quashed.

It is also a delight to see so many friends and former colleagues here this evening including the past and present Presidents of the Law Society, Women Lawyers and Criminal Lawyers. I particularly acknowledge the Attorney General of Western Australia and the Shadow Attorney General. The Attorney was part of a team which included his now chief of staff Colleen Egan and Malcolm McCusker, who worked for several years to correct a serious injustice in Western Australia that was ultimately resolved by the High Court in 2005.

It is the same spirit of volunteer work that is epitomised by the Law Society to whom our Court extends our sincere thanks for this event this evening. The Law Society survives and thrives through the selflessness and generosity of volunteers, particularly those on its Council and especially the Presidents who work a full time job often while managing their career and family. Indeed, in Western Australia, Law Society Presidents both

past and present have made conspicuous contributions. In 1998, when working for Justice John Toohey, I watched past Presidents representing Western Australia in the High Court in one case in almost every capacity. The case was Gould v Brown, concerning the constitutional validity of the cross-vesting scheme.

Justice Toohey, who sat on the Court, was a former President of the Law Society.

Argument for the Commonwealth was presented in part by the Federal Attorney General himself, Daryl Williams. He was also a former President of the Law Society. Western Australia intervened. The Solicitor General for Western Australia who appeared, Bob Meadows, was also a former Law Society President.

As a former member of the Council, I have also seen how the Law Society Presidents are supported by a diligent volunteer Council, a few employees, and around 30 committees. It is absolutely essential that as society evolves and develops into a better place the law must not stand still.

The Law Society and its volunteers are one major driver of legal change. So it is with particular pleasure that our court thanks the Society, and Hayley Cormann, its current President, for hosting this event and honouring our Court.

23

Letter from the Chief Justice of Australia Thanks for the High Court Event

24 | BRIEF AUGUST 2018

EU General Data Protection Regulation What you need to know

By Daniel Coster Associate, Kott Gunning Lawyers

What do you need to know about the EU General Data Protection Regulation (GDPR), which came into effect on 25 May 2018?

It would be no exaggeration to label the GDPR the most significant and substantial legislative development in data protection and privacy law in decades.

Yes, this is a European Regulation.

However, it affects the rest of the world by virtue of its broad application (not to mention the sheer volume of trade between EU and non-EU countries). Post-Brexit Britain has been busy gearing up for the changes,1 as has the United States.2 In short, it is by no means safe to assume the GDPR does not apply to you or your business simply by virtue of where you are in the world.

Under the GDPR, organisations face fines of up to 4% of their annual turnover or twenty million euros (whichever is greater) for certain breaches. A significant penalty, even for a large multinational with cash to burn.

Because of this wide scope and the potential for significant penalties, you should make understanding and complying with your obligations under the GDPR a top priority.

BACKGROUND The GDPR aims to provide a uniform set of data protection laws across the EU. This emphasis on consistent protection of EU Citizens is clear from the wide scope covering non-EU countries and entities.

Having first been proposed in January 2012, the GDPR was born out of years of heated negotiations. Thousands of amendments were proposed during this time, and the final version was eventually adopted by the European Parliament on 14 April 2016.

The GDPR replaces rules that have been in place since 1995.3 This is a very significant development when you consider eBay and Amazon both launched in 1995, Google did not exist (and would not for another four years), and the internet we take for granted today was only used by about sixteen million people.4 Facebook, Twitter, and YouTube were not even conceived of when the current laws were being drafted.

Personal data is valuable and vulnerable, and the GDPR comes at a time of increasing threat to data security and personal privacy. In a world where more and more daily interactions occur online, such as banking, shopping, and business, massive amounts of personal data are

processed on the internet. Unfortunately, be it through human error, malicious intent, or flaws in technology, the unauthorised release of personal data can be a question of ‘when’ rather than ‘if’.

Most readers will by now be aware of the Facebook/Cambridge Analytica scandal involving the collection of up to eighty-seven million Facebook users’ personal data, without their consent.5 The subsequent footage of Facebook founder Mark Zuckerberg’s mea culpa to the American Congress will doubtless be on the highlight reel for 2018. More importantly though, the incident served to demonstrate that individuals often have very little control over their personal data, even when the data is held by companies like Facebook with the resources to invest in security.

Indeed, so far in 2018 we have already seen: •

The University of Canberra accidentally leaking the personal details of every employee, including their birth dates and salaries.6

•

Porsche Japan’s customer data hacked, including names, addresses, phone numbers, and income information.7 25

•

Fifty thousand Snapchat users having their accounts stolen by a phishing attack.8

•

330 million Twitter users told to change their passwords after they were stored in readable form.9

•

Sixty-three notifiable data breaches reported in Australia in the first two months of the mandatory data breach reporting laws.10

In the context of so many hacks and personal data breaches in recent years, it should be no surprise that the GDPR emphasises security of data, as well as requiring notification of data breaches to regulators and affected individuals.

Equally, it is unsurprising the GDPR promotes data protection by design and by default (rather than as an afterthought).

On the back of this publicised threat, consumers are becoming increasingly aware of the inherent value of their personal data and, consequently, more concerned with how this information is being handled. There is growing demand from customers, not only for personal data to be stored securely, but for it to not be passed on to unforeseen and unintended third parties (as it so often is).11 In short, customers expect their personal data to be protected and not be misused.

The GDPR accordingly places a strong focus on control of personal information and securing data with appropriate safeguards. This is demonstrated by the focus on protection by design and by default mentioned above, as well as the use of appropriate technical and organisational measures to protect data.

Putting it succinctly, cyber-security and the appropriate (i.e. lawful) management of personal data should be top priorities for all organisations, having regard to the risks and the potential penalties. Where an organisation is found to be subject to the GDPR, a failure to appreciate the risks and the need for compliance may become a very costly mistake.

THE GENERAL DATA PROTECTION REGULATION The GDPR is a lengthy document and an exhaustive analysis of each provision is beyond the scope of this article. Indeed, the Recitals alone are over a hundred pages long. Having said that, there are a number of core provisions which you should be aware of.

The starting point for any consideration of the GDPR ought to be Article 4, which provides definitions. It should be noted that the definition of such concepts as 26 | BRIEF AUGUST 2018

‘consent’ and ‘personal data’ are slightly different to the Australian Privacy Act. Some of the key terms are: •

Personal data is any information relating to an identified or identifiable natural person (referred to as a data subject).

•

Personal data breach is the accidental or unlawful destruction, loss, alteration, disclosure of, or access to personal data.

•

Processing is any operation performed on personal data including collection, recording, storage, use, disclosure, alteration, or destruction.

•

Profiling is any form of automated processing of personal data to evaluate personal characteristics such as economic situation, interests, location, or behaviour.

•

Controller is a person or entity which determines the purposes and means of processing personal data.

•

Processor is a person or entity processing personal data on behalf of a controller.

Scope The GDPR applies to the processing of personal data where the processing activities relate to the offering of goods and/or services to data subjects in the EU, or to the monitoring of behaviour that takes place within the EU, regardless of whether or not the data is processed in the EU.12 The GDPR applies when goods or services are offered directly to EU citizens, whether or not payment is required.13 Goods or services are offered to an EU data subject where it is clear the seller envisaged offering them to data subjects (i.e. EU Citizens). Other factors that will be taken into account to determine whether goods or services are offered to an EU citizen include that the accepted payment currencies include the euro, the business’ website allows for ordering goods or services in a particular European language (other than English), or the website mentions customers or users in the EU.14 The GDPR may therefore apply to entities with no physical presence in the EU. For example, a business selling widgets through its website would be subject to the GDPR if the business targets customers in the EU. This is the case even though that business has its website server, warehouse, and all assets outside of the EU.

27

Following on from this, where a controller or processor is outside of the EU, it will be required to designate a representative in the EU where the processing:

and courts with regard to the consistent application of the GDPR.20 Data Protection Officers

•

is not occasional;

Controllers and processors are required to appoint a data protection officer where:

•

relates to special categories of data; or

•

relates to data on criminal convictions or offences.

processing is carried out by a public authority or body, except for a court;

•

the core activities of the controller or processor require large-scale regular and systematic monitoring of data subjects; or

•

the core activities of the controller or processor involve large scale processing of special categories of data, or data relating to criminal offences/convictions.21

•

The representative is required to be established in one of the EU Member States and authorised to deal with regulators and data subjects on all issues relating to processing.15

Regulatory oversight The European Commission (the Commission), the executive branch of the European Union, plays a role applying the GDPR. In particular, the Commission has the power to make determinations about the adequacy of protection afforded by third countries, the provision of standard protection clauses, and to prepare codes of conduct.16 The GDPR also requires Member States to establish independent public authorities (called supervisory authorities or data protection authorities) responsible for monitoring the GDPR’s application, in cooperation with the Commission.17 The role and powers of supervisory authorities are discussed in more detail below.

Data Protection Board The GDPR establishes the European Data Protection Board (the Board).18 The Board is comprised of the head of one supervisory authority from each Member State, as well as the European Data Protection Supervisor, with the Commission having the right to participate in its activities.19 The Board is empowered, among other things, to: •

Monitor and ensure correct application of the GDPR;

•

Advise the Commission of issues and recommend appropriate amendments to the GDPR;

•

Issue guidelines and recommendations, including to promote consistent application of the GDPR and in relation to personal data breaches;

•

Encourage codes of conduct and the use of data protection mechanisms;

•

Accredit certification bodies; and

•

Maintain an electronic register of decisions by supervisory authorities

28 | BRIEF AUGUST 2018

•

The data protection officer is to be appointed on the basis of their expert knowledge of data protection law.22 They are required to advise the controller and/or processor of their obligations (including in relation to data protection impact assessments), to monitor compliance with the GDPR, and to act as a point of contact for the supervisory authority. 23 In Australia, while there is no express requirement to appoint the equivalent of data protection officer under the Commonwealth privacy laws, organisations are expected to ‘take reasonable steps to implement practices, procedures and systems’ to ensure compliance and to address enquiries or complaints.24

Processing data Lawfulness of processing The GDPR provides that processing of personal data is only lawful where the data subject has provided consent,25 or where the processing is necessary for one of a defined number of purposes (including the performance of a contract or compliance with a legal obligation).26 There are also special categories of personal data, including health-related, genetic, or biometric, as well as data on racial origin, religion, sexual orientation, or political opinions.27 Processing special categories of data is prohibited except in certain circumstances, such as where:

the processing is carried out in the course of legitimate activities with appropriate safeguards by a not-forprofit with a political, philosophical, religious, or trade-union aim.

Informed consent Where the processing is based on consent, a controller must be able to demonstrate that the data subject has freely consented to the processing of the personal data.28 If that consent is in the form of a written declaration, it must be in an intelligible and easily accessible form, using plain language. If any other matters are dealt with in the declaration, they must be clearly distinguishable from the request for consent. Again, consent must be freely given, and this is determined by reference to the surrounding circumstances including whether there is a genuine or free choice and the ability to refuse consent without detriment.29 This of course raises the interesting issue of whether companies can require users to consent to the processing of their data in order to use an app or access a website, where that processing is not inherently necessary. The answer would seem to be no.

Consent must also be informed. At the time of obtaining the personal data, the data subject must be provided with certain information. This includes: •

the identity and contact details of the controller;

•

the purposes of the intended processing;

•

the legal basis for processing;

•

the period for which the data will be stored; and

•

the user’s right to request access to the data.30

The GDPR also requires data subjects be made aware, before they consent, of their right to withdraw consent at any time.31 Under the Australian privacy laws consent can be express or implied, and requires only that the individual: •

is adequately informed before consenting;

•

consents voluntarily;

•

has capacity to consent; and provides current and specific consent.32

•

the data subject provides explicit consent;

•

•

the data is manifestly made public by the data subject;

Data protection impact assessment

•

the processing is for reasons of substantial public interest; or

Where processing is likely to result in a high risk to an individual’s rights and freedoms, the controller must undertake

a data protection impact assessment before processing the data.33

processor’s services have ended, as well as deleting any copies of that data.

•

The assessment must include a description of the planned processing and the purposes for this, the necessity and proportionality of the processing, the relevant risks to the data subject’s rights and freedoms, and the mitigation planned to reduce those risks.

If a processor sub-contracts part of the processing to another processor, the same data protection obligations apply to the second processor. Engaging another processor also requires express authority from the controller.

They must also be made aware of the right to lodge a complaint and the right to request correction or deletion of the personal data.36

A controller is also required to consult with the supervisory authority where a data protection impact assessment indicates the processing would result in a high risk to the data subject without mitigation measures.34 Processor engagement There are also strict requirements for the engagement of processors by controllers.35 Controllers must only engage processors that undertake to implement appropriate technical and organisational measures to comply with the GDPR. Processing is to be governed by a contract or a legal act, setting out the parameters of the engagement by the controller. This includes a requirement that the processor delete and/or return all personal data to the controller once the

These restrictions on processor engagement, together with restrictions on international data transfer discussed below, aim to ensure consistency of application and prevent circumvention of the GDPR.

Data rights Rights of access and data portability The GDPR seeks to provide data subjects with control over the processing of their personal data, with this aim balanced against relevant competing interests.

Data subjects have the right to: •

•

obtain information about the purposes for which their personal data is processed; be told who the data has or will be disclosed to; and

be told how long the data will be stored.

Data subjects also have the right to obtain a copy of their personal data and to transfer that data to another controller (data portability). The provision of personal data is required to be in a commonly used electronic form, unless otherwise requested by the data subject.37 These rights of access and data portability do not exist under the Australian privacy laws, though there is a limited right to obtain a copy of your own personal information.38 Right to be forgotten Linked to the right of access is the right to be forgotten. This is also a right which has no equivalent under Australian law and which has generated much discussion since the first publication of the text of the GDPR. A data subject has the right to have their personal data erased by a controller in certain circumstances. These include where:

Law Society of Western Australia Professional Standards Scheme The Law Society of Western Australia Professional Standards Scheme (Scheme) enables Australian legal practitioners and incorporated legal practices to limit their professional liability to either $1.5 Million, $5 million or $10 million, subject to the exclusions contained in section 5 of the Professional Standards Act 1997 (WA) (the Act), depending on the insurance policies and total annual fee income of their law practice.

The Act provides that only members of an occupational association can be members of a limitation of liability scheme. Under the Law Society’s Scheme, Ordinary members (members with a current Australian practicing certificate) and Incorporated Legal Practice members of the Law Society can participate in the Scheme.

The Scheme operates on a one-in all-in basis. For a law practice to receive the full benefit of the Scheme, all practitioners within the law practice and the law practice itself (if incorporated) need to participate in the Scheme.

Participating members are required to disclose their limited liability status to clients.

Failure to do so is an offence under the Act. For further information in relation to the Scheme, please visit the Law Society’s website or contact the Scheme Coordinator on (08) 9324 8653 or by email to pss@lawsocietywa.asn.au

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•

the data is no longer necessary for the purposes they were collected or processed;

•

consent has been withdrawn with no other legal basis for processing;

•

the data has been unlawfully processed; or

•

the data subject objects to the processing, where there is no overriding legitimate reason for the processing.39

Data subjects also have the right to a restriction of the processing of data where: •

the accuracy of the data is contested;

•

the processing is unlawful but the data subject opposes the erasure of the data;

•

the data is no longer required by the controller but the data subject requires it for a legal claim; or

•

the data subject has objected to processing and a decision on the objection is pending.40

The right to be forgotten is a qualified right, and will not apply in certain circumstances. For example, where the processing is necessary for freedom of expression and information, for compliance with a legal obligation, or for reasons of public interest.41

International data transfer The GDPR also restricts the transfer of personal data to another country or an international organisation (third-party).42 Personal data can only be transferred internationally where the Commission has decided that: •

there is an adequate level of protection by that third-party;43

•

appropriate safeguards are in place;

•

there are effective legal remedies for data subjects available;44 or

•

in certain other limited circumstances.45

Decisions regarding adequacy of protection are to be made having regard, amongst other things, to the third-party’s respect for human rights and fundamental freedoms, as well as their adherence to the rule of law.

Reconsideration of the decision may be necessary where the third-party undergoes a change which could affect the adequacy of the protection; for example, should a non-EU country pass a law requiring all personal data 30 | BRIEF AUGUST 2018

to be disclosed to the Government.

Accordingly, the Commission is required to monitor developments in third-party countries/entities and, where the level of protection becomes inadequate, to repeal, amend, or suspend its earlier decision.

Essentially, the GDPR aims to ensure the level of protection provided to data subjects is not undermined by the transfer of data to a non-EU country or organisation. This is a profoundly important protection and likely to have immediate real-world implications.

Controllers will be prohibited from transferring personal data to countries with inadequate human rights protections or organisations with insufficient safeguards in place. On paper at least, this raises the question of whether countries like China, with the mass-monitoring of citizen’s data and undemocratic limitations on freedom of communication, ought to be an approved third-party.

Controllers and processors are also required to ensure a level of security appropriate to the risk is in place for processing data. Measures can include pseudonymisation and encryption of data, ongoing testing of technical and organisational measures, and the ability to restore access to data in a reasonable time in the event of an incident.49 In contrast, the Australian Privacy Act requires organisations to ‘implement practices, procedures, and systems’ to ensure compliance.50

Data breach notification The rights and freedoms of natural persons include the right to protection of personal data.51 Where: •

there has been a breach of personal data; and

•

the breach is likely to result in a risk to the rights and freedoms of natural persons,

Data protection As noted above, the threat of cyberattack, with the risk of unauthorised data access, can be exacerbated by flaws in the technologies used. In early 2018 the world was rocked by revelations that almost every single Intel computer chip manufactured in the last twenty years had the same fundamental serious vulnerability, the two variants of which were named Spectre and Meltdown.46 Every device with an Intel chip (i.e. about three billion of them) was at risk and had been for years. The big technology companies scrambled to issue patches to mitigate this, in some instances causing computer failure in the panic to get the fixes out quickly.47 It should then come as no surprise that the GDPR encourages a focus on data protection when developing applications, products, or services (protection by design), and only processing personal data necessary for each specific processing purpose (protection by default).

Data controllers are required to implement appropriate technical and organisational measures to ensure necessary safeguards are in place for the processing of personal data.

These measures may include minimising processing, pseudonymising data, and utilising security mechanisms. Relevant factors include the cost of implementation, the circumstances of the processing, as well as the likely risks to the rights and freedoms of any natural persons.48

a controller is required, without undue delay (within 72 hours if possible), to notify the supervisory authority of the breach. 52 The notification is required to include: •

a description of the nature of the breach, including the categories and approximate number of data subjects and personal data records involved;

•

the names and contact details of the data protection officer or other contact;

•

a description of the likely consequences of the breach; and

•

details of the measures taken or proposed to be taken in response to the breach, including mitigation.

Where that breach is likely to result in a high risk to a data subjects’ rights and freedoms, the controller is also required to alert the affected data subjects without undue delay. This must be in the form of clear and plain language stating the nature of the breach, the likely consequences of it, the measures taken to respond to the breach, and the contact details of the controller’s point of contact.53 Notification to affected data subjects is not required where: •

the controller has applied technical and organisational protection measures that render the personal data unintelligible (e.g. encryption);

•

•

the controller has taken subsequent measures to make it no longer likely that the high risk will eventuate; or it would require disproportionate effort to notify, in which case a public communication shall suffice.54

A supervisory authority may nonetheless require a controller to notify affected data subjects.

Australia’s mandatory breach reporting laws require notification where there is a likelihood of ‘serious harm’ to affected individuals. In contrast, the GDPR requires only ‘a risk’ to an individual’s rights and freedoms before a breach becomes reportable to a supervisory authority, and ‘a high risk’ for the requirement to notify affected individuals.

Data subjects have the right to lodge a complaint with a supervisory authority if they consider the processing of their personal data is contrary to the GDPR.56 They also have standing, where their rights under the GDPR have been infringed, to commence legal proceedings against a controller or processor.57 Supervisory authorities have substantial investigative powers, including to: •

order a controller or processor to provide any information they require;

•

obtain access to all personal data held by a controller or processor;

•

obtain access to the premises of a controller or processor; and

•

carry out data protection audits. 58

Likewise, they have enforcement powers, including:

Regulatory enforcement

•

issuing warnings or reprimands;

The GDPR establishes that any person, having suffered material or non-material damage as a result of infringement of the GDPR, has the right to receive compensation from the controller or processor.55

•

ordering compliance with a data subject’s requests to exercise rights under the GDPR;

•

ordering the communication of a personal data breach to a data subject;

•

imposing limitations, such as a ban on processing;

•

ordering rectification or erasure of personal data; and

•

imposing an administrative fine either in addition to or in place of the above.

Administrative fines are imposed by supervisory authorities, with the aim to be ‘effective, proportionate, and dissuasive’, and are based upon a number of factors, including negligence/intent, mitigation attempts, the nature of the infringement, and whether the controller or processor notified the supervisory body.59 The relevant maximum fine depends upon which Articles of the GDPR have been infringed. 60 A maximum fine of up to 10 million euros or 2% of total worldwide annual turnover of the preceding financial year (whichever is higher) is applicable for breaches including, but not limited to:61 •

failure to implement technical and organisational measures for protection by default and design;

•

failure to implement technical and organisational measures to ensure an appropriate level of security of processing; 31

•

failure to process data lawfully;

Something that does not appear to be covered by the GDPR, but which will doubtless crop up in the coming months, is the situation where an organisation does not realise that it falls within the scope of the GDPR and has not taken steps to comply with it (such as a small business in Australia with a steady customer base in Germany).

Technically they would be in breach of their obligations and liable to regulatory action, as well as legal action by affected individuals.

•

failure to obtain consent to processing, where required;

Summary

•

failure to provide access to personal data;

•

failure to erase personal data when lawfully required; or

•

failure to maintain appropriate records of processing activities;

•

failure to undertake a data protection impact assessment (where required); or

•

failure to notify of a personal data breach.

The maximum fine is doubled (i.e. 20 million euros or 4% of turnover) for breaches including, but not limited to:62

•

unlawfully transferring data internationally.

While the Australian privacy laws confer powers on the Information Commissioner to take action against organisations, the GDPR empowers individuals to take legal action in their own right and to obtain compensation. This is a profoundly significant difference, and organisations in breach of their obligations will now not only have to worry about shareholder class actions.

32 | BRIEF AUGUST 2018

This is of course only a summary of some of the significant features of the GDPR and by no means covers all of the changes.

For a thorough understanding, readers ought to inform themselves of all of the Recitals and Articles, including those pertaining to special categories of personal data, notification obligations other than where there has been a breach, certification mechanisms, and the rules around profiling (automated processing).

THE TAKEAWAY Facebook is already openly taking steps to try to avoid having to comply with the

GDPR as much as possible.63 The author certainly would not recommend this approach!

Instead, organisations should focus on ensuring they are in compliance with the new obligations, with the appropriate systems and processes in place.

Practical measures It cannot be repeated enough that the preceding summary is only a reference point for some of the major changes the GDPR brings, and not a substitute for a detailed examination of the various provisions.

The key takeaway for organisations with a direct or tangential connection with EU citizens is that personal data needs to be handled in a transparent, fair, and lawful manner. Most of the expectations arising from this are not encountered in the current Australian data privacy laws, such as the right to be forgotten.

It is therefore advisable to take a proactive approach and review how you are collecting, handling, and storing personal data now. Investing in the right processes and people now could save you a serious headache in the future.

While there can be no ‘one size fits all’ check-list, organisations ought to particularly:

•

Ensure they are across all of the relevant provisions of the GDPR.

•

Obtain legal advice if there is uncertainty as to whether the GDPR applies to their activities.

•

Ensure adequate funding is in place for the necessary processes and procedures to be implemented, including funding for the IT department.

•

Have a plan in place for if things go wrong, including a communications/ PR strategy, a response plan from an IT perspective, and consider whether cyber insurance may be beneficial to your organisation.

Australian organisations meeting their obligations under the recent mandatory data breach reporting laws are at somewhat of an advantage, as they are already required to adhere to similar requirements of accountability and privacy. However, as highlighted above, the GDPR is more far-reaching, with new obligations. Accordingly, there will be more work required to ensure compliance.

As an aside, the Office of the Australian Information Commissioner has published a useful comparative guide, outlining similarities and differences between the Privacy Act and the GDPR, which is a useful starting point.64 Such differences include the rights to erasure, data portability, and to object to processing, which have no equivalents under Australian law.

Future developments While the most significant regulatory reform to come in many years, further regulation in the area is inevitable.

Australian organisations need to be able to respond to these developments as and when they occur.

will most probably be the proposed EU Regulation on Privacy and Electronic Communications (RPEC), replacing the current e-Privacy Directive. In its current form, the draft RPEC aims to change computer cookie rules, introduce stronger direct marketing rules, and extend e-Privacy protection to newer forms of electronic communication (such as VoIP and instant messengers).65 The original plan was to have this Regulation come into effect at the same time as the GDPR, however this appears unlikely.

Technological developments are of course harder to predict, though it is anticipated the further proliferation of potentially vulnerable internet-connected devices and increasingly sophisticated cyber-attacks will continue in the shortmedium term. It is the author’s view that it will be quantum computing that brings the next quantum-leap (pardon the pun) in regulatory oversight, though this is admittedly not likely any time soon.

In the meantime, the GDPR provides plenty of work for organisations it applies to.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

NOTES 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

The next development to be passed

http://www.bbc.com/news/technology-43657546. https://www.forbes.com/forbes/welcome/?toURL=https:// www.forbes.com/sites/forbestechcouncil/2017/12/04/ yes-the-gdpr-will-affect-your-u-s-%20basedbusiness/&refURL=&referrer=%20-%20395a97a76ff2 The 1995 Data Protection Directive (95/46/EC).

Compared with an estimated four billion people with internet access today. http://www.abc.net.au/news/2018-04-05/facebook-raisescambridge-analytica-estimates/9620652. http://www.canberratimes.com.au/act-news/universityof-canberra-accidentally-sends-24-staff-details-of-everyemployee-20180226-h0wo98.html. https://www.cybersecurity-insiders.com/porsche-admitscyber-attack-and-data-breach-of-29k-japan-customers/. https://www.theverge.com/2018/2/16/17017078/ snapchat-phishing-attack-klkviral-dominican-republic. http://www.bbc.com/news/business-43995168 https://www.oaic.gov.au/resources/privacy-law/privacyact/notifiable-data-breaches-scheme/quarterly-statistics/ Notifiable_Data_Breaches_Quarterly_Statistics_Report_ January_2018__March_.pdf. https://www2.deloitte.com/insights/us/en/industry/retaildistribution/sharing-personal-information-consumerprivacy-concerns.html.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

62.

63.

64.

65.

GDPR, Article 3.

Ibid, Recital 23.

Ibid.

Ibid, Article 27.

Ibid, Recital 166-168.

Ibid, Article 51.

Ibid, see generally Section 3.

Ibid, Article 68.

Ibid, Article 70.

Ibid, Article 37.

Ibid.

Ibid, Article 39.

Australian Privacy Principles, 1.2.

GDPR, Article 6.1(a).

Ibid, Article 6.1(b)-(f).

Ibid, Article 9.

Ibid, Article 7.

Ibid, Recital 42.

Ibid, Article 13 and Recital 42.

Ibid, Article 7.

See: https://www.oaic.gov.au/agencies-andorganisations/app-guidelines/chapter-b-keyconcepts#consent GDPR, Article 35.

Ibid, Article 36.

Ibid, Article 28.

Ibid, Article 15.

Ibid, Article 15 and Article 20.

Australian Privacy Principles, 12.

GDPR, Article 17.

Ibid, Article 18.

Ibid, Article 17.

Ibid, see generally Chapter V. Ibid, Article 45.

Ibid, Article 46.

Ibid, Article 49. https://www.csoonline.com/article/3247868/ vulnerabilities/spectre-and-meltdown-explained-whatthey-are-how-they-work-whats-at-risk.html. https://www.techrepublic.com/article/windowsemergency-meltdown-patch-microsoft-stops-update-foramd-pcs-after-crash-reports/.

GDPR, Article 25 and Recital 78.

Ibid, Article 32.

Above n.36 GDPR, Recital 2.

Ibid, Article 33.

Ibid, Article 34.

Ibid.

Ibid, Article 82.

Ibid, Article 77.

Ibid, Article 79.

Ibid, Article 58.

Ibid, Article 83.

Ibid.

Ibid, Articles 8, 11, 25-39, or 42-43.

Ibid, Articles 5-7, 9, 12-22, or 44-49. http://www.bbc.com/news/technology-43822184.

See: https://www.oaic.gov.au/media-and-speeches/ news/general-data-protection-regulation-guidance-foraustralian-businesses.

See: https://www.lexology.com/library/detail. aspx?g=8cdb52e9-8a65-4c1a-ab1f-504912df2285.

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33

Interview with Melissa Paterniti The Law Society's Law Graduate Programme

As part of its commitment to supporting young lawyers, the Law Society operates a Law Graduate Programme in conjunction with Law Access Limited.

Tell us more about the work you do at Law Access? What has been the most interesting aspect and what has been most challenging?

Over the past six months, law graduate Melissa Paterniti has been taking part in the Programme. Melissa has been employed two days a week at the Law Society – one day with the Advocacy team and the other with the Programmes team. Melissa has gained exposure to a range of activities and initiatives, including advocacy work, the Law Society’s programme of events for Law Week and assisting in the development of legal information for members of the public.

As a volunteer at Law Access, I provide legal support to the lawyers through merit assessing applications received for pro bono assistance, undertaking file management, drafting correspondence, assisting with referring matters, and communicating with applicants, the public and members of the profession over the phone.

In addition, the Programme also gives a law graduate the opportunity to spend three days a week at Law Access, performing valuable legal work on a pro bono basis. Law Access is a registered charity connecting vulnerable members of the community with pro bono legal advice and representation.

The graduate works under the supervision of the Principal Lawyer at Law Access and the experience gained is designed to assist the graduate in working towards completion of their Practical Legal Training (PLT) requirement for admission as a lawyer in Western Australia. These arrangements with Law Access are entirely separate to the graduate’s two days per week paid employment at the Law Society.

There is a competitive recruitment process for the role, which is advertised.

Brief caught up with Melissa to discuss her experiences in the Programme.

Melissa, what initially attracted you to studying law and pursuing a career in the legal profession?

I was initially attracted to studying law as a result of the strong interest I developed in our legal system from studying Politics and Law during High School. I’m passionate about principles of justice and equality and throughout the course of my law degree I became more and more eager to pursue a legal career to allow me the opportunity to be part of a profession where I have the ability to assist in improving people’s lives.

34 | BRIEF AUGUST 2018

The most challenging aspect has been hearing first-hand the extensive hardships so many individuals face. We receive calls from individuals who are in highly emotional and distressed situations, and who have usually exhausted all other means of obtaining assistance.

The most interesting and extremely rewarding aspect of my role has been working within a team committed to enhancing access to justice and being able to contribute towards connecting people with lawyers who are willing to provide their services pro bono. I have also been amazed by the incredible generosity of the profession.

At the Law Society you have been assisting with the programme for Law Week, working on a project developing legal information for the public and assisting with the Law Society’s advocacy activities. Tell us more about your work at the Law Society – what have you found most rewarding?

Within the Programmes team, I have undertaken research and collated information for a project aimed at assisting the public with legal information. The project is a great initiative of the Law Society and it has been very rewarding to contribute towards its development. I have also been involved in a range of tasks to assist with the collation and promotion of the Law Week Programme. I have corresponded with a number of participating organisations and it was great to gain exposure to the

collaborative nature of the profession in delivering the Law Week events.

Within the Advocacy team, I have had the opportunity to put my legal research and writing skills into practice. I have drafted a number of policy position papers regarding various issues and have undertaken significant research regarding the Legal Profession Uniform Law. I have also had the opportunity to meet members of the profession through attending Committee meetings. I have found it very rewarding to consider law reform issues affecting the profession and the wider community and to contribute towards advocating on these issues.

There has been a lot of commentary in recent years about an oversupply of graduates in the legal profession.

As someone who has first-hand experience as a law graduate, do you have any views on this?

As a law graduate, I have found that it is quite a difficult and competitive time to be entering into the legal profession.

I am therefore very grateful for the Law Society’s Graduate Programme as it opened up a different avenue for me to pursue and it has been an incredible learning opportunity for me to build upon my skills and knowledge, and to interact with members of the profession.

How has your work at the Law Society and Law Access helped prepare you for your future career and first steps into legal practice?

My work at the Law Society has allowed me the opportunity to gain insight into the activities and initiatives of the Law Society, while also fulfilling the requirements of my Practical Legal Training through Law Access. I have been able to further develop and enhance my legal research, analytical and communication skills, as well as obtain practical experience in managing files, prioritising tasks to achieve desired outcomes and working within a team environment. I believe these transferrable skills will help me to successfully enter into legal practice.

Interview with the Hon Malcolm McCusker AC CVO QC,

New Chairman of Law Access The Board of Law Access Limited appointed the Hon Malcolm McCusker AC CVO QC to take the helm as a Company Director and Chairman of Law Access from 1 August 2018, following the retirement of founding Law Access Director Adam Ebell.

Mr McCusker brings a wealth of experience, understanding and passion for access to justice to Law Access.

Formerly serving as Governor of Western Australia and as Chairman of the Legal Aid Commission of Western Australia, Mr McCusker has also taken on significant pro bono cases in the course of his eminent legal career. Mr McCusker has also consistently championed those who give back to the community as volunteers.

Law Access CEO Dominique Hansen interviewed the new Chairman about the challenges and opportunities faced by Law Access.

You hold and have held many significant leadership roles including Governor of Western Australia and Chairman of the Legal Aid Commission of Western Australia. What attracted you to taking on this leadership role with Law Access?

Law Access performs an exemplary public service, matching the pro bono legal services so generously offered by many members of our legal profession, with the needs of people who cannot

afford legal advice or are unable to get Legal Aid. What attracted me to take on this role was the genuine enthusiasm and commitment by everyone involved in Law Access.

Law Access has now reached a three year milestone as a charity.

What do you see as the major challenges facing the organisation?

I think there are two major challenges: First, securing the modest financial support it needs to ensure that it can continue.

Secondly, to encourage even more lawyers to become part of the “pro bono pool� into which Law Access can dip.

What opportunities do you see for Law Access at this time?

There is the opportunity, if those two challenges can be met, to expand the scope of legal assistance that can be provided to those in need.

and gratitude for that assistance, is of itself rewarding, as is the feeling, without smugness, that you are doing something to pay the debt which we all owe to the profession to which we are fortunate to belong. As to the challenges, they are no more or less than for any legal work, pro bono or otherwise.

Access to justice is a pressing policy issue. What is your vision for access to justice in Western Australia?

I would like to see all Western Australians have access to justice, whether they can afford it or not. In the end, without that our justice system will lose the respect and support of the public, which is essential for maintaining the Rule of Law and a stable society.

To find out more about Law Access and its pro bono work, please visit lawsocietywa.asn.au/law-access.

You have undertaken challenging pro bono work throughout your career including the High Court appeal in the case of Mr Mallard.

What have you found to be the rewards and challenges of pro bono work?

To help people with a legal problem, great or small, who desperately need help but cannot afford it, and to see the relief

35

Third Party Funding in the Resources Sector What you need to know

By Nathan Landis, Investment Manager, IMF Bentham Ltd, Perth

INTRODUCTION The resources sector is steeped in complex, cross-border, capital-intensive projects and transactions.

Western Australia in particular has experienced a resurgence in dispute resolution in the resources sector with almost all the mega projects2 in the resources sector in Western Australia involving the large, complex and expensive disputes that have become synonymous with the resources sector globally. In addition to regularly seeing dispute resolution lawyers in the international terminal racing to catch their flight to Singapore, Supreme Court daily lists regularly feature cases involving the players in resources sector projects seeking to have their disputes resolved – be they principals, contractors, subcontractors or supply chain participants.

As the prevalence of formal dispute resolution mechanisms (both litigation and arbitration) in the resources sector has grown, so too has their complexity, length, cost and associated risk.3 With the increase in cost and risk, participants in dispute resolution processes are more frequently looking for innovative ways to finance their cases, manage risks and reduce the impact on cash flow. This has contributed to an appreciable rise in the use of third-party dispute finance, an 36 | BRIEF AUGUST 2018

This article is adapted from a CPD seminar paper presented at the Law Society on Tuesday, 27 March 2018.

increasingly sophisticated global industry, with an estimated worth of over US$4 billion and growing.4

THIRD PARTY FUNDING What is Third Party Funding?

Parties to disputes can obtain funding or reduce their risks in many ways. These include traditional means, such as insurance, bank loans, corporate finance and retaining lawyers on a success or contingency fee basis. A broad definition of dispute funding could therefore encompass numerous risk mitigation tools.5 In the modern context, however, references to third-party funding or dispute finance, are typically to a non-recourse financing arrangement where an otherwise uninterested party agrees to meet the costs of a party to a dispute, in exchange for a share in the commercial benefit obtained on a successful outcome. The non-recourse nature of the arrangement means the funder has no recourse against the funded party if the case is unsuccessful: the funder must meet the costs of the dispute, and possibly the adverse costs ordered against the funded party.

Development of the Industry and Rising Demand The concept of commercial dispute funding was pioneered in Australia in

the 1990s in the insolvency sector. IMF Bentham Limited became the world’s first publicly listed funder in 2001. Dispute funding soon caught on in the United Kingdom, and more recently the United States where funding by contingency fees in some States has been prevalent for many years. In these jurisdictions, well-established, sophisticated and competitive dispute funding markets now exist.

Elsewhere, the use of dispute funding continues to develop, led by international centres for dispute resolution.

During 2017, Asia’s principal international arbitration hubs, Hong Kong and Singapore, both passed legislation expressly permitting third-party funding of international arbitration and associated court proceedings: a clear recognition of the global trend towards dispute finance and the need to adapt to meet the demands of commercial parties.6 Supply is also increasing as investors seek meaningful returns from investments that are not directly correlated with volatile and unpredictable financial markets. The past years have seen numerous new entrants in the dispute finance market and established players are continuing to raise additional capital for investment.

Western Australia has experienced a resurgence in dispute resolution in the resources sector"

Who is Seeking Funding and Why? Despite its origins in assisting impecunious claimants obtain access to justice, modern dispute finance is not just for those who cannot pay. Recent industry growth has been driven, in part, by well-resourced, financially capable parties, simply seeking to shift, or share, the cost and risk of commercial disputes to a third party.

Funded costs might include some or all of the following: legal costs and disbursements, expert fees, institutional costs and arbitrator fees, as well as payment of security for costs or adverse costs if a case is unsuccessful.

Shifting responsibility for these costs to the funder means that the litigation expenses no longer drag down the cash flow of the business. In this way the business can mitigate its potential downside risk, while retaining the bulk of any commercial benefit and freeing up cash to be spent elsewhere. Such arrangements are increasingly used by both large and small companies as a flexible tool to help manage cash-flow and legal budgets as well as risk.

Claimants Claimants are the most easily identifiable candidates for dispute funding. Claims in damages or for a clearly defined and

measurable commercial benefit provide a simple platform to calculate and assign the funder its costs and agreed return on a successful resolution.

A claimant may seek funding at various stages of a dispute. Funders can add most value prior to initiation of proceedings, so that the financial arrangements can be set as an integral part of the overall dispute strategy from the outset; however, funding is often sought part way through a case (as costs escalate or as the merits of the case become more defined) or at the enforcement stage, once an award is obtained.

Respondents Although respondents represent fifty percent of the disputes market, funding of respondents is less common.

The most likely opportunity to secure funding is where the respondent has a meritorious counterclaim such that the likely net outcome is an amount payable to the respondent. A portfolio financing arrangement (discussed below) might also permit the allocation of costs to a defence within a wider portfolio.

Stand-alone respondent funding is currently rare. Although there may be a measurable commercial benefit retained by a successful respondent (i.e. retention or reduction in the amount claimed by

the claimant) there is no flow of money in favour of the respondent (aside from the recovery of costs) from which the funder might derive its return on investment.

However, as the sophistication of the industry develops, the use of innovative funding solutions available to respondents is expected to grow. One area in which respondent funding has grown is in notfor-profit funding of States defending investor-state claims, particularly those involving public health issues.7

Disputes Portfolios The financing of dispute portfolios (i.e. claims grouped together) is increasingly common and is used by large corporates and law firms.

Although any portfolio arrangement will be tailored to the circumstances and may take many forms, the additional benefits to the funder and the funded party are usually derived from some form of cross-collateralisation throughout the portfolio. The funder’s return will be linked to the overall performance of the portfolio rather than individual claims and its risk is therefore spread across a range of disputes carrying different risk profiles. In such cases, the funder may accept a lower overall return and the arrangement enables quicker deployment of funds to individual cases, often on pre-arranged terms.

For corporates, a portfolio arrangement 37

Common disputes include contract interpretation disputes, disagreements about the construction or operations of extraction projects, power production projects, commodity contract disputes and joint venture disputes.

may also allow greater flexibility to offset defence costs and the costs of disputes with non-monetary claims. The funder will recover its costs and return from the revenue generating claims within the portfolio. In some cases, the business might also secure an advance on working capital against the claim value of the portfolio, to deploy within the business or simply to declare as profit.

These benefits can be applied in any combination of disputes and need not involve large portfolios. For example, a construction contractor may have a claim against a sub-contractor while also defending a claim from the project owner. The contractor might seek dispute funding and cross-collateralise to fund both its claim and defence costs.

For law firms, similar arrangements can be structured to support the firm’s portfolio of contingency or success fee cases. The funder essentially assists the firm to meet its regular overheads as well as case-specific disbursements. In exchange, the funder is paid from the contingency or success fees generated by the firm.

The Dispute Funding Process The features of a dispute finance arrangement can vary greatly from case 38 | BRIEF AUGUST 2018

to case. Individual funders will have different assessment processes, although commercial dispute funders will typically apply the following basic investment criteria.

Basic Investment Criteria At a minimum, a funder will want to ensure that: (i) the case is meritorious; (ii) the economics of the investment and the claim are likely to provide a reasonable return to all parties; and (iii) there is a high prospect of recovery.

Merits The degree of merit required to satisfy a funder’s board or investment committee is highly subjective. Some funders, or their brokers, may require prospects of success expressed in percentage terms, often so that it may be incorporated into some form of algorithmic risk assessment or pricing model. For this reason, lawyers are often now asked to ascribe percentage figures to the prospects of success (although, what makes a case 60% likely to succeed as opposed to 59% or 61% is often not clear).

Funders will give greater weight to documentary evidence and clear points of law, which provide predictability. Cases heavily reliant on contested facts and oral evidence are likely to carry greater risk.

Economics Assessing the ‘economics’ of a case will involve weighing the funder’s likely exposure (i.e. the legal and other costs to be invested, as well as potential exposure to adverse costs) against the likely recovery on resolution of the matter.

Approaches will vary considerably; however, large commercial funders such as IMF Bentham will typically seek to fund cases where the economics permit the funded party to retain more than half of the resolution sum. For this reason, funders often require a minimum ratio between the likely resolution sum and costs of investment. The wider the ratio, the more attractive the economics of the case to the funder. A typical benchmark in the funding industry is 10:1, meaning a project budget of up to $1m for a meritorious case worth $10m.

A funder will tend to focus on the conservative likely outcome, rather than the maximum potential claim value, considering the legal, factual and technical issues that might reduce the headline figure in any final award.

The prospect of settlement and the respondent’s ability to pay will also factor into the likely level of recovery. Those seeking funding should therefore avoid overselling the value of their claim. A balanced, realistic approach will better

assist the funder in the assessment process.

enforcement action is permissible and likely to be effective.

A similar, measured approach will be taken to the assessment of the project budget. The funder will likely require a detailed budget that accounts for legal and associated costs, arbitrator fees, institutional costs, experts, travel, disbursements, general file management and prospective contingencies. This provides an accurate estimate of the funder’s total investment. Some funders may require a fee cap or fixed fee from the legal team, or an agreement on the treatment of budget overruns, to provide further certainty over the budget.

The relatively simple and wide-ranging enforceability of arbitral awards across jurisdictions pursuant to the New York and ICSID Conventions allows funders and funded parties to plan an enforcement strategy at the outset of a matter. It is not uncommon to draw on asset-tracing and financial investigation expertise in developing these strategies, which often involve a multi-asset, multijurisdictional approach.

Recoverability The non-recourse nature of a typical arrangement means that the funder does not receive its costs or a return unless there is a successful recovery. For this reason, the counterparty must have the ability to meet any award made against it or to settle at a figure that supports the economic assessment of the case (discussed above). If enforcement action is likely to be required in order to recover, the counter-party must have identifiable assets in jurisdictions where funded

THIRD PARTY FUNDING IN THE RESOURCES SECTOR Suitability and Current Trends Many disputes in the resources sector are suitable for dispute finance insofar as they are capable of satisfying the basic investment criteria identified above.

Common disputes include contract interpretation disputes, disagreements about the construction or operations of extraction projects, power production projects, commodity contract disputes and joint venture disputes.

The Energy Charter Treaty (1994)8, under which a number of investorstate disputes in the sector have arisen in the past few years,9 contains no prohibitions on a claimant (or indeed a State10) utilising dispute finance. The current trend appears to be to accept dispute funding but seek to regulate it – the Comprehensive Economic Trade Agreement entered into between Canada and the European Union is an example of this.11 One driver of change in the energy sector is the transition of energy supply away from higher-carbon (oil and coal) projects towards lower-carbon and renewable energy projects, although the pace of that transition is somewhat uncertain.12 This change is producing a new range of disputes being presented for funding which raise novel issues for the resources sector.13 The challenge for dispute funders is to properly assess these new cases without the benefit of existing precedents and prior experience.

Despite these ongoing changes, disputes common to the resources sector are frequently referred to funders and certain categories of disputes present unique

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The resources sector is the largest source of cases registered by the International Centre for the Settlement of Investment Disputes (ICSID).

risks and considerations. Some of the most common categories of resource sector disputes are considered below in this context.

Considerations in Specific Resources Sector Cases Contract interpretation Cases As the sector experienced a flurry of mergers and acquisitions during the downturn in commodity prices in the past few years, disputes have arisen regarding the transaction documents.

A review of decisions published by the Supreme Court of Western Australia since 2014 show a number of disputes emerged in the resources sector over change-of-control provisions,14 warranties and indemnities15 and royalty entitlements.16 One silver lining to having these disputes reach the point of being judicially determined is that there is now substantially greater clarity on issues such as what constitutes a “serious or persistent breach” in a termination provision of a contract.17 From a funding perspective, these cases are attractive – the facts underlying the dispute are usually uncontroversial and the points of law, while complex and difficult, are generally quite narrow and a funder is able to form a view of the relative strengths of the competing arguments.

Investor-State Cases The resources sector is the largest source of cases registered by the International Centre for the Settlement of Investment Disputes (ICSID).18 Many investor-state cases in the sector involve an investor whose primary investment is in assets located in a single jurisdiction. When a State violates an investor’s treaty-based protections and that violation affects the investor’s ability to generate cashflow from its assets, dispute funding gives the investor the financial ability to prosecute its claims against a State.

Although the use of dispute funding in these types of cases is a relatively recent phenomenon, there is a body of case law in investment treaty cases where third party funding has been challenged by respondents but largely accepted by tribunals.19 As claims made in investment treaty arbitrations are unsuccessful more often than not,20 they are likely to be considered relatively high-risk. Nonetheless, the potential rewards are high, with the average claim size in investor-state cases in the region of US$719 million.21 40 | BRIEF AUGUST 2018

These types of cases are distinguishable from commercial arbitrations in terms of their length (ICSID cases run longer than commercial arbitration cases) and costs (parties incur an average of around US$4-5 million running cases heard by ICSID Tribunals as opposed to parties to commercial arbitration cases who have an average spend of £1.5 million22).

This increases both the quantum of the funder’s investment and the time the funds are deployed before recovery occurs.

These cases are generally factually intensive and may require preliminary expert evidence to assist the funder to understand the claim. Investors’ claims often seek damages for the loss of anticipated profits from the investment in question. Quantifying this loss can be difficult, frequently resulting in high-value headline figures which are substantially reduced by the tribunal in any award.23 A funder may well require the help of experts to properly assess the viability of such claims at the outset.

Further complications may arise when dealing with developing countries as respondents, particularly where government institutions may not be as robust as is usually the case in developed countries. The prospects of recovery may not be as strong and the potential for settlement may be at the whim of political influences. Risks of influence or intimidation may also arise in circumstances where key witnesses reside in the jurisdiction against which the claim is asserted. All of these factors may add to the funder’s perception of risk and the required level of due diligence.

Construction Cases With a global construction sector worth $10 trillion per year,24 it is inevitable that a sizeable number of disputes arise in the industry. Construction projects

typically involve multiple parties (project owners, contractors, sub-contractors and government authorities) all with competing interests. This provides fertile ground for disputes, which are often referred to arbitration, although many still do end up before the Courts. In that regard, one only needs to peruse the daily court list published by the Supreme Court to see how regularly these types of disputes occupy the Court’s attention.

At the outset, a potential funder will be interested in understanding whether the parties intend to maintain ongoing commercial relationships. This information is important because the funder will need to factor into its review the potential that settlement may be subject to a “relationship discount” or granting future contracts in place of damages.

As with investor-state disputes, construction cases often require extensive due diligence given their factually intensive and technical nature.

These cases will almost certainly feature a number of interlocutory disputes, and once this is factored into the legal budget a matter may no longer stack up commercially. They may also require preliminary expert evidence on both questions of liability and quantum to assist the funder to understand the basis for the claim and to assess likely recovery. The likelihood of a counterclaim or cross-claim will also be relevant in the consideration of the matter, given the prevalence of competing claims within construction projects.

Long-term Supply Contracts and Gas Price Reviews Gas price reviews will generally occur several times over the life of a long -term gas supply contract and require both specialist counsel and specialist experts.

A funder in such a case may need to

Bequests Help Save Cats’ Lives As a charity, Cat Haven relies heavily on the kind donations and bequests of West Australians. We are WA’s premier cat welfare organisation, accepting over 6500 cats a year and rehoming as many as possible.

We can assure your clients that their cat will be looked after and rehomed if they are left behind if a bequest is

accept a relatively passive role because of the strategic importance of the review to the funded party (be it the buyer or seller).

Although a funder will need to factor in a higher cost associated with the legal team and experts, and of course the inevitable disputes over the confidentiality of subpoenaed documents, such costs may be off-set by the limited factual matters in dispute. The commercial emphasis of gas price review arbitrations means that the funder will need to take into account both legal and commercial considerations when assessing the likely outcome.

Generally, disputes over long-term supply contracts (including gas price reviews) do not have a binary outcome. Settlement is a real possibility, which may make such claims attractive to dispute funders.

However, a resolution to a dispute over a long-term supply contract may involve agreement to revised ongoing prices or quantities, rather than the payment of cash.25 The commercial benefit to the funded party may therefore accrue over time and the funding arrangement will need to allow for the calculation and distribution of the funder’s return accordingly.

Joint-venture disputes Although joint ventures are an extremely common form of ownership in the resources sector, they are productive of disputes – by way of example, approximately 25% of joint ventures in the construction industry end up in a dispute.26 In Western Australia, we have seen a number of joint ventures disputes move through the Courts in recent years. These decisions have greatly assisted the sector in understanding how the Courts construe a number of obligations and duties contained in industry-standard agreements.27

Please Donate, Adopt Foster, Bequeath, Volunteer

made to Cat Haven. By suggesting and guiding your clients on how to bequeath a gift, you will also be providing much needed support for the homeless cats of Perth.

For more information or a brochure, go to www.cathaven.com.au or call Chandra Woodley on 9442 3600.

41

6.

7.

8.

9.

10.

11.

12.

Joint venture disputes usually turn on a failure of cooperation to a greater or lesser degree. Consequently, the parties’ conduct will need to be viewed through the prism of how that failure of cooperation has resulted in loss, on the basis of reasonableness, fairness and good faith. Such criteria are more elusive than those applicable to many other types of dispute, where an arbitral tribunal may determine a delay based on a work schedule or a party’s compliance with a technical norm.

By the nature of the dispute, a claimant’s allegations will usually be vague and the conduct relied on will be susceptible to multiple interpretations. Although this gives considerable licence to the claimant in how it puts its case, such latitude will present difficulties for a funder seeking to be satisfied that a claim is highly likely to succeed.

Some joint venture disputes may not be suitable for dispute funding because of the nature of relief sought, particularly those cases where declarations are sought (for example, removal of the operator or manager of the joint venture) or where the relief may be difficult to value for the purposes of calculating the funder’s entitlement (for example where the claimant seeks the transfer of shares in the joint venture).

Joint venture disputes also present challenges common to other resources sector disputes including: they often require proof of many smaller events over a long period of time, rather than a single breach of the agreement (with the difficulties that a factually dense case often present); failed joint ventures, in particular, are likely to involve hotly contested mutual allegations of repudiatory conduct; one joint venture party may be a local entity in a developing nation, or a State-Owned Enterprise 42 | BRIEF AUGUST 2018

(which raises similar issues to investorState claims, above); and claims arising from failed joint ventures often seek damages for lost profits, the calculation of which may be speculative and may require an early expert assessment if the case is to be considered for funding.

13.

14.

CONCLUSION The dispute finance industry is growing in size and sophistication to cater to the needs of modern-day corporations and the changing face of dispute resolution.

The result is a highly adaptive, innovative tool which enable parties to manage risk, reduce cost, better deploy capital and control cashflow. The broad nature and prevalence of disputes in the resources sector provide ample opportunity to secure the benefits of dispute finance. Disputes lawyers and industry participants should actively investigate financing options for current and future disputes, develop familiarity with the various offerings and stay informed of developments. There is no doubt that dispute finance is becoming and will remain a mainstay of the resources sector.

15.

16.

17.

18.

19.

20.

21.

22.

23.

NOTES: 1.

2.

3.

4.

5.

The views expressed in this article are the author’s and do not necessarily reflect the views or position of IMF Bentham Ltd. Defined by the Chief Economist of the Commonwealth Department of Industry as projects with capital expenditure in excess of $5 billion.

In the 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, conducted by Queen Mary University of London and White Case LLP, 68% of participants cited ‘cost’ as the ‘worst characteristic of arbitration’.

The cost of arbitration is often compounded by the international nature of the dispute, requiring multijurisdictional and often specialist legal teams, as well as institutional fees, arbitrator costs and hearing venue hire.

Based on anecdotal reports and regular information released to the market by commercial dispute funders.

Indeed, the definition of third-party dispute finance has been the subject of considerable debate among commentators, regulators, lawyers and funders. In the recent report produced by the ICCA-Queen Mary Task

24.

25.

26.

27.

Force on Third-Party Funding in International Arbitration (dated April 2018), the Task Force dedicated some 30 pages to the consideration of various definitions.

Civil Law Act (Cap. 43), ss. 5A and 5B and associated regulations (Singapore); and Arbitration Ordinance (Cap. 609), Part 10A and Mediation Ordinance (Cap. 620) Part 7A (Hong Kong).

In 2015, Bloomberg Philanthropies and the Bill and Melinda Gates Foundation announced the creation of the Anti-Tobacco Trade Litigation Fund, to provide financial support for low- and middle-income countries that have been sued by tobacco companies in investorstate cases.

The Energy Charter Treaty entered into force in April 1998. It presently has 54 signatories (including the European Union and Euratom).

The ICSID Caseload – Statistics (Issue 2018-1) indicates around 10% of cases commenced under the ICSID Convention up to the end of calendar year 2017 relied on the Energy Charter Treaty as the basis for establishing ICSID’s jurisdiction.

Although unusual, one example of a State utilising dispute finance was the case of RSM Production Corporation v Grenada (see para 5 of the decision in ICSID Case No ARB/05/14 Annulment Proceedings).

Article 8.26 specifically deals with Third Party Funding in the context of investor-state disputes.

BP Energy Outlook 2018. Available online at https:// www.bp.com/en/global/corporate/energy-economics/ energy-outlook.html A recent example of these novel issues was the investor-state dispute in Eiser Infrastructure Ltd and, Energia Solar Luxembourg S.à r.l. v Kingdom of Spain (ICSID Case No. ARB/13/36) which concerned the effect of electricity market reforms implemented by the Spanish government which removed incentives to solar energy projects. The claimants were partially successful in that case (obtaining an award of €128 million), although the award is the subject of pending annulment proceedings.

Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242.

Apache Finance Pty Ltd v Quadrant Energy Pty Ltd [2018] WASC 68.

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] WASC 340.

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 at [410]ff.

The ICSID Caseload – Statistics (Issue 2018-1) indicates 41% of cases commenced under the ICSID Convention up to the end of calendar year 2017 are from the oil, gas and mining and electric power and other energy sectors.

See for example Oxus Gold plc v Republic of Uzbekistan, UNCITRAL, Final Award, 17 December 2015 at [127] The ICSID Caseload – Statistics (Issue 2018-1) indicates 31.1% of cases commenced under the ICSID Convention up to the end of calendar year 2017 resulted in an award upholding claims in full or part (although another 4.9% of cases involved a consent award and 16.1% of cases were discontinued at the request of both parties, which suggests that some compromise of the claims occurred).

Investment Treaty Arbitration: How much does it cost?

How long does it take? (2017), a survey by Allen & Overy LLP. Available online at http://www.allenovery. com/publications/en-gb/Pages/Investment-TreatyArbitration-How-much-does-it-cost-How-long-does-ittake-.aspx O’Reilly, Michael, Costs in International Arbitration: London, September 27-27 2011 (2012) 78 Arbitration, Issue 1.

Although the average claim size in investor-state arbitration is around US$720 million, the average award is approximately US$110 million. See Investment Treaty Arbitration: How much does it cost? How long does it take? (2017), a survey by Allen & Overy LLP. Available online at http://www.allenovery.com/publications/en-gb/ Pages/Investment-Treaty-Arbitration-How-much-doesit-cost-How-long-does-it-take-.aspx The construction industry’s productivity problem. The Economist, 17 August 2017. Available online at: https:// www.economist.com/news/leaders/21726693-andhow-governments-can-catalyse-change-constructionindustrys-productivity-problem Although in saying that, media reports indicate that an award issued in a gas price dispute between Naftogaz and Gazprom held at the Arbitration Institute of the Stockholm Chamber of Commerce will have an impact of US$75 billion over the life of the contract (http:// en.interfax.com.ua/news/economic/472287.html).

Global Construction Disputes Report 2016, Arcadis.

Available online at: https://www.arcadis.com/ media/3/E/7/%7B3E7BDCDC-0434-4237-924F739240965A90%7DGlobal%20Construction%20 Disputes%20Report%202016.pdf See for example Apache Oil Australia Pty Ltd v Santos Offshore Pty Ltd [2016] WASCA 213.

The Law Society’s wellbeing and resilience programme LawCare WA has a holistic approach to wellbeing and resilience.

Membership of the Law Society provides complimentary access to LawCare WA to help you manage your career, life, health and wellbeing.

Member Assistance Programme

Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

Health and Wellbeing

Members of the profession connect with experienced practitioners for advice on ethical issues or complaints through the Senior Advisors Panel and Western Australian Bar Association Referral Service.

Working in the legal profession can be rewarding and challenging. It is important to find balance in your life as you juggle career, family, friends and hobbies.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

• • •

Attend complimentary Pilates classes provided by HBF twice a year Participate in sporting tournaments hosted by the Law Society’s Young Lawyers Committee Take advantage of exclusive offers through the Law Society’s member privileges programme

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

43

BOOK REVIEW

The Secret Barrister: Stories of the Law and How It’s Broken Pan Macmillan (UK) 2018 Review by Dr Steven Cohen

The Secret Barrister: Stories of the Law and How it’s Broken is an extraordinary and frightening analysis of the British criminal justice system. At its very core, the book is a dissertation on the erosion of the rule of law through the vagaries of austerity measures and dogmatic politics.

Written by an anonymous criminal Barrister, (who we shall call SB), the book draws us into a polemic using courtroom anecdotes, arguing that Brits should be gnashing their teeth at the inadequacy of their nation in protecting a fundamental pillar of democracy.

The case illustrations are both moving and unacceptable: a man, charged with raping his two daughters is found not guilty because of a police failure to collect and collate the necessary evidence. The abolition of the Forensic Science Service enables the police to tender to the lowest bidder, resulting in a mass of premonitory failures when cases proceed to hearing. A war crimes trial is disbanded because the privatisation of interpreters means the company responsible for providing qualified interpreters is unable to offer up anyone suitably qualified.

The exemplars are not limited to courtroom tussles. The somewhat antiquated British system of 44 | BRIEF AUGUST 2018

dispensing Magistrates’ hats to friends of friends who belong to gentlemen’s clubs, who are willing to undertake a modicum of charity work, complete a form, pass an interview and sit for 13 days per year comes in for irate condemnation, as do the cuts to the Crown Prosecution Service (equivalent to our more generously funded DPP), whose financial constraints have resulted in too many trials being disbanded because of a lack of preparation.

Overall, the portrayal is of a criminal justice system not just on the brink of collapse, but one of combustible disintegration. When the government places more value on reducing the tax on beer by one penny, than it does in investing an equivalent amount into the criminal justice system, SB argues that the result is a system that is incapable of protecting its most vulnerable people. The upshot is too many people become collateral victims of a system that is failing to live up to its historical common law assurances.

By necessity, SB keeps his or her identity well hidden, despite a high profile blog and Twitter presence.

Whistleblowing by its very nature incorporates a high degree of risk.

Curmudgeons, who are willing to speak up, are oft to be crucified as the messenger. By remaining

anonymous, the writing is uninhibited and demonstrably critical of the Crown Courts, the prison cells, the bureaucrats and politicians who design and implement policy.

The writing is nonchalant and self-deprecatory. Offbeat phrases like “bewigged sexagenarian” and “roulette framed justice” are peppered throughout. Combined with a soft cynicism, the text is highly readable, funny and smart.

The dénouement is a call to protest, rather than simply an annotation of the current state of criminal justice in the United Kingdom. The system needs to change and to change, the populace needs to be educated. The entreaty is to dismiss the rhetoric and banal platitudes of “putting victims first” and referring to Legal Aid as “the most generous in the world.”

Instead, SB suggests a need to fix the structural inequalities that have befallen the justice system, offering well thought ideas.

The alternative to overhauling the current malaise is too frightening.

Perhaps it is best summed up by borrowing from the American jurist, Judge Sturgess, “Justice is open to everyone in the same way as the Ritz Hotel.” Let’s hope Britain doesn’t get to that point.

Dr ver's Dog Send your submissions to the Dog via brief@lawsocietywa.asn.au

Well now, the Black Tie Gala Dinner on 4 August 2018, bringing together the legal profession, has come and gone, which was most enjoyable. One of the great strengths of a profession is the relationships which develop between members. In WA we have the added advantage that the profession is relatively small and close knit. That said, your Dog wonders why only about 65% of the profession are members of the Society, considering all the services it provides. In a way it is a bit like those golfers who play at a public golf course – get changed in the car-park, play the course, have a drink and go home. No connection with the bonds that tie a profession together.

The construction work, enhancements and expansions to the Crown Towers since 1985 have been remarkable, all to enhance tourism and gambling. Gambling is a strange activity, knowing as one does (or should do) that the odds are so heavily weighted in favour of the casino operator, especially on ‘one armed bandits’!

Conversely, the betting syndicate involving David Walsh, Zeljko Ranogajec and Philip Turner, mathematicians, who developed and used algorithms in their betting systems, was able to amass large amounts of money. David Walsh is, of course, well known for the Museum of Old and Modern Art (MOMA) in Hobart. It still seems that success at gambling is at best occasional! Your Dog should point out he has an absolute aversion to the betting advertisements on TV – an insult to the intelligence of the viewer!

As your Dog recently lounged in a sunny spot in Hay Street Mall he picked up an interesting article by Timothy Marney, Commissioner of the Mental Health Commission of WA. Mr Marney points out that in WA men account for almost three quarters of deaths by suicide, and that nearly half of Australian males have experienced a mental health problem in their lifetime. Those are fearsome statistics.

Mr Marney describes the strong societal pressure on men to appear to be strong emotionally: not to show weakness or to disclose one’s real emotions or feelings. Some then turn to drugs, alcohol and other things to suppress feelings – to disconnect.

In turn this can result in feelings of isolation and loneliness, frustration, anger, anxiety or depression. With that comes insomnia, stress and relationship problems. He suggests and encourages all men, young and old to talk about their feelings and mental health.

The song ‘The Cat’s in the Cradle’ by Harry Chapin is one which epitomises the breakdown in communication between so many fathers and sons, as does ‘Father and Son’ by Cat Stevens.

Interestingly, according to YouTube ‘The Cat’s in the Cradle’ has had about 50 million ‘views’.

Just imagine writing an advice on opinion which enjoyed more than 100 ‘views’! Pitching that at a more esoteric level, imagine if the Federal Court registry could record the number of ‘views’ on celebrated decisions! How many would there have been on, say, Chevron Australia Holdings Pty Ltd v FCT [2017] FCAFC 62!

Your Dog has often wondered why there have been, relatively speaking, so few composers who have been able to put together successful musicals and operatic music. Think of George Gershwin, Gilbert and Sullivan, Rodgers and Hammerstein, Lloyd Webber and Rice, Sondheim, Bernstein, Porter and Jerome Kern.

It is much the same with opera – Mozart, Tchaikovsky, Bizet – to

name a few. In an age where rockets reach planets, medical science has defeated or controlled so many diseases, it seems that only a handful can mix music and acting in one composition?

Your Dog thoroughly enjoys listening to music clips on YouTube, marvelling at the singing and musical ability of various performers.

Carly Simon, for instance, with ‘Jesse’, at Grand Central Station, or ‘Losing my Religion’ by R.E.M, said to have had 27 million ‘views’, ‘Born to Run’ by Bruce Springsteen with 34 million views, ‘Dancing in the Dark’ with 90 million views, and ‘Streets of Philadelphia’ 80 million views.

In that context, who would hazard a guess as to the number of ‘views’ which Lord Buckmaster, Lord Atkin, Lord Tomlin, Lord Thankerton and Lord Macmillan have enjoyed since writing Donoghue v Stevenson [1932] All ER 1 (HL)? At, say, 200,000 a year for 86 years, 17,200,000?

Opinions and decisions composed in verse, in a form put to music, could be the way of the future: royalties would pour in, as people drive around humming songs like: The snail slipped into the bottle, and drowned in the ginger beer, The lady from Paisley drank it, and came over all queer.

The lady cried “You have a duty of care, “I know not why or where!”

The beak tweeted “Completely right, it’s new law, my dear.”

Put to, say, the music of ‘Dancing in the Dark’, the practice of law would have practitioners humming their favourite case report in the office, at client meetings, and performance reviews, like a hive of bees! It would be great! One could turn on the Shazam app to check the authority being sung at other law firms! Something like that could get to 100 million ‘views’! Hourly billing would disappear – its place taken by the number of ‘views’. It would be an immediate antidote to anger and anxiety. Juries give no reasons, why do judges?

In the same vein, picture the judgment in Westpac Banking Corporation v The Bell Group (in liq) [2012] WASCA 157 handed down as follows: The Bell Group was bust, its founders’ dreams turned to dust, The bankers paid funds against an issue of bonds, and tied up the lot.

They knew at the time that all was not well: Their claim to repayment belongs properly in hell.

Delays in Court processes would be a thing of the past! With the right music and lighting effects there would be a never ending stream of visitors to the David Malcolm Justice Centre and other Courts! Artificial intelligence would not be able to compete with true genius!

45

FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Property – Unit trust controlled by husband but owned by his 99 year old father was not “property” In Harris & Dewell and Anor [2018] FamCAFC 94 (25 May 2018) the Full Court (Strickland, Murphy & Johnston JJ) dismissed an appeal against Rees J’s property settlement by the wife who argued that the asset pool should include units of the E Unit Trust which were controlled by the husband although his 99 year old father was sole unit holder. The shares of the corporate trustee (“FPL”) were owned by the father (67%) and husband (33%). The director of FPL was a solicitor who acted on the husband’s instructions.

Rees J had found that the husband controlled the trust, but that the units were not property but a financial resource of the husband. Rees J ([66]) cited Stephens [2007] FamCA 680 in which Finn J said that “no earlier authority … [has held] that control alone without some lawful right to benefit from the assets of the trust is sufficient to permit the assets … to be treated as property of the party who has that control”.

The Full Court said (from [67]): “ … [P]roperty … of a trust can be treated as property of a party for s 79 purposes where evidence establishes that the person or entity in whom the trust deed vests effective control is the ‘puppet’ or ‘creature’ of that party. ( … ) [68] Control is not sufficient of itself. What is required is control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust. … [I]t is in that sense that Finn J speaks of ‘some lawful right to benefit from the assets of the trust’. ( … ) [71] The husband did not have powers vested in him, or in any entity which he controlled or would do his bidding, that permitted of that result for him. The evidence was certainly to the effect that the current director of the trustee FPL … would likely do the husband’s bidding. However, the trustee does not have ultimate control over the vesting of trust property. That … has at all times rested with, and currently rests with, the father.”

Property – Declaration that farm was owned by mother-in-law’s company on trust for wife’s company due to a family agreement set aside In Camden Pty Ltd & Laue and Ors [2018] FamCAFC 91 the Full Court allowed an appeal by the farm’s owner (Camden P/L run by the

46 | BRIEF AUGUST 2018

husband’s mother) due to FCWA’s failure to apply case law as to an intention to create contractual relations.

Walters J held ([44]-[45]) that an agreement was made “partly orally and partly by conduct” for its transfer to Barkers P/L run by the late husband who farmed it with the wife. A transfer was signed but not registered but the husband’s mother was to receive a monthly stipend for life, the husband to pay all debt.

The Full Court ([53]) cited Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 at [25]: “ ... [T]he word ‘intention’ [‘to create contractual relations’] … is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”

And Secola v McCann (No 2) [2011] WASC 342 at [18]: “If the parties’ intention is equivocal, evidence of subsequent conduct may be adduced to establish whether an agreement was concluded.”

The Full Court ([55]) said that the following factors did not point to an intention to create legal relations: • • •

• •

That any agreement was never reduced to writing; The husband always felt he had a moral obligation to maintain his mother after his father’s death; The parties’ businesses had historically been operated independently and only became entwined after the death of the husband’s father; The “agreement” was reached in a social context and did not involve any lengthy or serious discussions; and Property B was Camden’s only incomeproducing asset and the “agreement” resulted in it being transferred outside of Camden.

Children – Denial of relocation to NZ upheld – Judge’s reference to Morgan & Miles “checklist” was not in error In Molloy & Reid [2018] FamCAFC 89 (11 May 2018) the Full Court (Thackray, Murphy & Aldridge JJ) dismissed the mother’s appeal against Tree J’s refusal of permission for her to relocate to New Zealand. An order was also made for equal shared parental responsibility

and that the children live with the mother, but spend time with the father four nights per fortnight (with an extra night for the eldest child).

The Full Court said (at [16]): “After reciting paragraphs 79 to 81 from Morgan & Miles [2007] FamCA 1230 … and without making any further comment about their content, his Honour … discussed each of the identified issues, determination of which he had earlier said was ‘likely to substantially impact upon the outcome’ …

The Court continued (at [27]-[29]): “The essence of the argument here was that the judge had led himself into error by focusing on the ‘checklist’ of issues … supplied by Boland J in … Morgan & Miles.

The mother’s summary of argument went so far as to assert that his Honour had relied on Morgan & Miles ‘as the basis of his decisionmaking’ … where neither party had referred to the case in argument.

[28] Relying on … Deiter [2011] FamCAFC 82 counsel for the mother drew attention to what were said to be dangers associated with judges having regard to ‘checklists’ which place ‘glosses’ on an already complicated statute, thereby ‘obscuring’ the law. It was argued that … the primary judge had ‘let the checklists control the outcome’ …

[29] We accept that the Full Court in Deiter … commented adversely on the way a magistrate had applied the ‘checklist’ in Morgan & Miles, but nothing said by the Full Court there proscribed efforts by trial judges to paraphrase the law in the way Boland J had done in the earlier case. Indeed, it might reasonably be said that careful paraphrasing of legislation can illuminate the law and demonstrate that it has been correctly understood. The difficulty the Full Court saw in Deiter … was not that the magistrate had regard to the ‘checklist’ in Morgan & Miles but … that he may have misunderstood the nuances in one item on the list and hence misapplied what Boland J had said.”

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

Destination, Uluru, Australia Country

Ex Juris: Travel Tales from the Legal Profession Alice Springs, Uluru and Kata Tjuta Unless you are a fan of the heat, the best time to visit Australia's centre is in winter when there is a possibility of green landscapes.

Getting there can be a challenge but there are flights to Alice Springs and Uluru. For the more adventurous and experienced drivers, a trip up the Gunbarrel Highway can be considered, though it is not recommended. The original Gunbarrel Highway was surveyed by Len Beadell for rocket range tests from Woomera and later also used for when there was atomic bomb testing in South Australia.

Australians are great travelers and lawyers are no different. Each month a reader of Brief tells us about their favourite travel destination.

experience raining on the rock without having to listen to John Williamson.

Naturally, you will be there to photograph sunset on the rock, a truly amazing sight.

In the early morning, take a camel ride through the desert with a genuine Aussie breakfast at the conclusion. It will be cold, but if you enjoy sitting uncomfortably on an ill-tempered beast, the trek is worthwhile. My travel companions enjoyed it. I stayed in bed.

Alice Springs is an interesting town in a valley, fairly typical though somewhat larger than most rural Australian towns. It ranges from picturesque to poverty in the space of a few blocks.

In the evening, take the Sounds of Silence tour, an unforgettable experience. From a viewing platform, you can watch the sunset over the Rock while drinking sparkling wine and canapés, then join other guests at a silver service dinner. The night sky is particularly clear and bright without light pollution.

Guides explain some of the bigger stars and constellations, and some of the ancient legends about Uluru.

Visitors to Uluru and Kata Tjuta should allow a minimum of three days, preferably five or six as there is lots to do. The custodians of the land request that visitors do not climb Uluru. To respect the culture, this writer recommends that you refrain. Instead, walk around the base or take a guided tour and learn about the plants, animals and rock art. If you are lucky as we were, it will rain during your stay and you can

A holiday in Yulara, the Ayers Rock Resort is not cheap, but lawyers and judges should have little problem in finding the necessary.

Accommodation ranges from luxury through budget. You can also choose to ‘glamp’ or camp. Remember everything has to be shipped to the middle of Australia. For this travelling lawyer, it is one of the iconic destinations in the country and should replace at least one

For lawyer petrol heads, the speed limit between Alice Springs and Yulara is 130km/h so you can put pedal to the metal.

Bali trip.

Kata Tjuta, formerly known as the Olgas, is a shortish drive away. There are guided tours through the ravines but they are also accessible for solo travellers with only a reasonable level of fitness required. Quite different from Uluru which is a monolith, you can easily spend a day exploring the paths and trails of Kata Tjuta and still be left wanting more. If the rock wasn't nearby, Kata Tjuta would still be worth the journey. When counting the cost of travel, think of it as a two for one deal.

Assiduous lawyers will know that Ayers Rock was the scene of a famous murder which created new law. I refer of course to R v Crabbe [1985] HCA 22; 156 CLR 464 where the High Court wrestled with the concept of recklessness and foresight and wilful blindness, all the complexities of which could be solved if common law jurisdictions adopted the Griffith's Criminal Code. What case were you thinking of?

Tell us about your favourite (or not so favourite) destinations and why you travel there.

Please send your contributions to brief@lawsocietywa.asn.au

47

Law Council Update

Asian legal leaders descend upon Canberra to discuss regional rule of law The independence of the judiciary and the legal profession will be a major area of focus at the 29th Presidents of Law Associations in Asia (POLA) Conference to be held in Canberra this Thursday and Friday (2-3 August).

The conference will feature leaders of the legal profession from more than 15 countries in Asia including: Malaysia, Cambodia, China, India, Singapore and the Philippines.

Observers include the President of LAWASIA, Christopher Leong and Vice President of the International Bar Association, Horacio Bernardes Neto.

tranche of data from the Law Council of Australia's landmark Equitable Briefing Policy.

The Equitable Briefing Policy was launched in 2016 and encourages entities that select barristers to make all reasonable endeavors to brief women.

The goal is for women to be briefed in at least 30 per cent of all briefs, and to receive at least 30 per cent of the value of all brief fees by 2020.

The inaugural Equitable Briefing Policy Annual Report, launched by Law Council President, Morry Bailes, found over the first reporting period – the 2016-17 financial year – that: •

Women barristers received 20 per cent of the total briefs.

Law Council of Australia President, Morry Bailes, said the conference’s focus on threats to the judiciary and legal profession in the region indicates a heightened level of awareness and concern among senior representatives of the legal profession in Asia.

•

Women barristers received 15 per cent of the total fees charged by barristers.

•

Among junior barristers, women barristers received 28 per cent of briefs.

•

Among senior barristers, women barristers received 12 per cent of briefs.

“This major international conference is an important opportunity for the leaders of bars and law societies in the region to discuss significant rule of law issues,” Mr Bailes said.

“What gets measured gets managed. While this first round of data shows there is obviously a long way to go, we have been greatly buoyed by the enthusiasm for change among the profession,” Mr Bailes said.

“Asia continues its inexorable rise as a global centre of economic influence, and Asia’s impact on geo-politics, the international rules-based order and the rule of law are increasingly significant.

“In this context, the views expressed by this grouping of legal profession leaders has a level of significance that should not be underestimated.

“This year’s conference will also consider the central role of the legal profession in promoting fair and ethical treatment of all people, whether through our influential position of trust in business circles or by championing inclusion and diversity in our own workplaces.”

Other issues to be discussed include: •

anti-corruption and transparency;

•

business and human rights; and

•

inclusion and diversity in the legal profession.

POLA is a non-political organisation that provides a forum for the leaders of bar associations from across the Asia region to exchange ideas and information, collaborate on issues of mutual interest and promote friendships.

A fairer future for women barristers, steps closer as Equitable Briefing Policy data released The Australian legal profession’s efforts to create a more equitable environment for women barristers has reached an important milestone today, with the release of the first

48 | BRIEF AUGUST 2018

“The overwhelming majority of large Australian law firms and many of the nation's biggest corporations have now formally signed onto the Equitable Briefing Policy – over 350 organisations and individuals in all.

“Shifting a longstanding culture will not happen overnight. Yet we are confident that through the conscious efforts of signatories in volunteering to self-regulate, coupled with steadfast regular reporting, we can make a real difference in the coming years.

“We know that women are graduating from Australian law schools in significantly larger numbers than their male counterparts, yet they make up a lower percentage of barristers (23 per cent in 2015), spend fewer hours in court, and get paid less in fees. As a profession we can and must improve in this area.

“I note that the trend for junior women barristers is encouraging. Meanwhile, the Law Council of Australia has been working hard with its Constituent Bodies and other stakeholders within the profession on efforts to boost the retention of women. So, we are hopeful we will see those junior barrister trends graduating into the senior barrister ranks over time.

Australian-first Modern Slavery Bill celebrated The Law Council has today welcomed the introduction of the first federal Modern Slavery Bill in Australia by the Australian Government.

The proposed Modern Slavery Bill contains

provisions for supply chain reporting that encourages certain entities, with an annual consolidated revenue of more than $100 million, to report on modern slavery risks in their supply chains.

Law Council President, Morry Bailes, said addressing modern slavery in Australia was paramount in eliminating slavery and slaverylike conditions globally.

“It is estimated that millions of people worldwide are held in slavery or in slavery-like conditions, however modern slavery is not an issue confined to the third world,” Mr Bailes said.

“There are people living in slavery-like conditions in Australia today. This may include forced labour, wage exploitation, involuntary servitude, debt bondage, human trafficking, forced marriage and other slavery-like exploitation.”

The Law Council has long-supported the establishment of a Modern Slavery Act and welcomed the inclusion of a Modern Slavery Reporting Requirement however, expressed disappointment that the Bill does not include: an Anti-Slavery Commissioner to provide guidance and a mechanism through which concerns regarding company operations in relation to human rights violations or modern slavery may occur; a proposed revenue threshold for reporting requirements, set no higher than $60 million (rather than the proposed $100 million); penalties for non-compliance with the legislation; and access to a national redress scheme for victims of modern slavery.

“Victims of modern slavery are often vulnerable and without appropriate support. They tend to be found in domestic work, hospitality, agriculture, construction and sadly include a number of women trafficked from Asia for sex work,” Mr Bailes said.

“A national redress scheme would provide effective remedy for victims of modern slavery and compensation for the harm they have suffered.

“The inclusion of an Anti-Slavery Commissioner in Australia would also be a useful point of contact for all matters relevant to Modern Slavery in Australia. A Commissioner could provide community outreach and education to stakeholders involved in Australia's response to modern slavery, including law enforcement, civil society and the private sector.”

 Panellists the Hon John Quigley MLA, Attorney General of Western Australia, the Hon Justice Robert Mazza, Supreme Court of Western Australia, Peter Collins, Aboriginal Legal Service of Western Australia, Tammy Solonec, Amnesty International Australia and chair Michael Lundberg, Quinn Emmanuel Urquhart & Sullivan

 Attendees at the Law Week Panel Discussion

Law Week Panel Discussion: Access to Justice for Indigenous Peoples The Law Week Panel Discussion is always a highlight in the Young Lawyers Committee calendar – an opportunity to explore a pressing legal issue in Western Australia, with the assistance of pre-eminent leaders in the area.

This year’s Panel Discussion, held on Wednesday, 16 May at the Old Supreme Court building at Stirling Gardens was no exception.

The esteemed panel comprised the Hon John Quigley MLA, Attorney General of Western Australia, the Hon Justice Robert Mazza, Supreme Court of Western

Australia, Peter Collins, Director of Legal Services at the Aboriginal Legal Service of Western Australia, and Tammy Solonec, head of the Indigenous Peoples Rights’ Team at Amnesty International Australia.

The panel, deftly guided by chair Michael Lundberg, Partner at Quinn Emmanuel Urquhart & Sullivan, analysed the myriad issues impacting Indigenous peoples’ interactions with the criminal justice system – from limited access to legal representation, to cultural and linguistic barriers to obtaining and complying with bail.

Panellists’ different perspectives – as a judge, Minister, NGO leader and legal representative – led to a robust

discussion. Attendees were treated to insights, many of which were the product of panellists’ decades at the coalface.

Attendees also heard about recent developments in the area, including the State Government’s introduction of a Custody Notification Scheme, which was formally announced later that week.

Underpinning the robust discussion was a clear consensus – WA’s Indigenous incarceration rate, the highest in the nation, is in large part due to WA laws, policies and practices. The need for reform is acute. The Panel Discussion was a valuable opportunity to explore what that reform might look like.

49

Professional Announcements Career moves and changes in the profession

Dwyer Durack

Pemberton Robertson Family Lawyers

Slater and Gordon

Dwyer Durack are pleased to announce the appointments of Daniel Gill to Head of Department Succession Law and Jessica O’Neil to Head of Department Family Law. Jessica replaces Simon French who is now concentrating on growing Dwyer Durack’s Family Law Mediation & Arbitration practice.

Pemberton Robertson Family Lawyers are pleased to announce Leah Kronberger has joined the firm commencing on Monday, 2 July 2018 as a Senior Associate. Leah comes to us with a wealth of family law experience and passion for her chosen profession.

Slater and Gordon is pleased to announce the promotion of Daniel Stojanoski to the position of Senior Associate.

Jessica joined Dwyer Durack in September 2016. Jessica has extensive experience in complex financial matters and child-related proceedings, including matters involving Jessica O’Neil trusts and corporate structures, international child abduction, Hague Convention applications, relocation and recovery orders, and allegations of child abuse and domestic violence.

Daniel joined Dwyer Durack in January 2008 and was admitted to practice February 2010. He primarily practises in contentious estates and in 2017 was named by Doyle’s Guide as an Australian Wills, Estates & Succession Planning rising star.

Bennett + Co Bennett + Co is pleased to announce a number of recent promotions within the Commercial Litigation and Dispute Resolution section of the firm: Dalitso Banda, Thaw Thaw Htin, Michael Nas and Amy Rumble have been promoted to Associate Principal, Alex Tharby and Kristine Hodgson to Senior Associate and Alexandra Zhu, Shemali Samaraweera and Clara Hagan to Associate.

Greenstone Legal Daniel Gill

HHG Legal Group The Directors of HHG Legal Group, Simon Creek and Murray Thornhill, are delighted to recognise a year of well-rounded success by promoting practitioners across the firm.

Effective 1 July 2018, Ben Majoe has been elevated to Special Counsel (Family Law).

Tim Colcutt has been promoted to Senior Associate (Commercial Litigation). Caroline Teo has achieved the title of Counsel (Family Law), and Gregory Rogers has been appointed an Associate (Commercial Litigation).

The firm is also pleased to announce the employment of two new junior solicitors: Julia McCullagh (Commercial Litigation) and Vanessa Lanicanio (Family Law).

Greenstone Legal is pleased to announce that Lee-Ann Cartoon joined the Firm as Special Counsel in Lee-Ann Cartoon May 2018. Lee-Ann is an experienced tax and estate planning lawyer.

She has worked both in Australia and the UK with multinational firms and enjoys assisting clients across a broad range of tax and succession planning matters.

Lee-Ann presents at professional seminars, is a Fellow of the Tax Institute and is spearheading Greenstone Legal’s pro bono involvement with the Curtin Tax Clinic.

Hollingdales Michael Hollingdale, Director of Hollingdales, is pleased to announce the revival of the practice Hollingdales.

Hollingdales replaces the practice known as Hollingdale Mediation. Hollingdales is a commercial law practice that focuses on building, construction and procurement law and major infrastructure projects. It also advises on commercial disputes, particularly those relating to construction and major projects. As an incorporated legal practice Hollingdales also offers independent third party services for mediation, facilitation and other ADR processes.

Contact us on 08 9381 5800 or michael@hollingdales.com.au

50 | BRIEF AUGUST 2018

Daniel Stojanoski

Daniel is an industrial and employment law expert and is highly skilled in discrimination and sexual harassment matters. He is a keen advocate for fair and equitable workplaces and brings a wealth of experience to the role from his government and union background, specifically the CPSU/CSA. Daniel will lead Slater and Gordon’s industrial team in Perth, which services the largest union client base in Western Australia.

Klimek Family Law Michael Klimek is pleased to announce the establishment of Klimek Family Law at Suite 6/300 Rokeby Road, Subiaco.

Klimek Family Law practices in all areas of family law but offers value based billing and scoped fixed fee quotations instead of the traditional time based billing model.

Michael’s contact details are michael@ klimekfamilylaw.com.au and 08 6141 3227.

Rattigan & Associates Rattigan & Associates is a long-established Family Law firm located in Perth’s southern suburbs and we Libby Johanson are pleased to announce the appointment of Libby Johanson as Associate of the firm effective from 1 July 2018.

Libby commenced with our firm as a legal assistant in June 2014 and was later admitted as a Practitioner to the Supreme Court of Western Australia on 5 November 2014. She works in all areas of family law, including property and child related matters.

We congratulate Libby on her appointment and her achievements to date.

Classifieds PERTH’S BUSINESS VALUATION EXPERTS  Family Law Disputes  Partnership Dissolutions

and Admissions  Licensing Applications  Bank Opinions  Purchaser and Vendor Opinions

Missing Will Graduate Commercial Lawyer • 3-6 months contract • Research work in Wickham, West Pilbara • Accommodation provided For more information: phone Kim North on 0408 938 176 or email nwsg.kim@bigpond.com

Any person having knowledge of the existence or whereabouts of the last Will and Testament of WILLIAM JOHN POLAND, late of 48 Summerton Road, Calista, Western Australia (date of birth 26 December 1940), please contact Camm & Associates, Barristers and Solicitors, on (08) 9384 7044, or email rpcamm@cammandassociates.com.au within one month of the date of this advertisement.

Contact:

Graham O’Hehir MBA

Return of Client Documents by a Law Practice

Managing Director (08) 9481 4422 or graham@buyabusiness.com.au

LAW PRACTICE OF JOHN CHARLES MANERA (DECEASED) TRADING AS DURACK & MANERA A.F Carles is one of the Managers of the above law practice under s482(2) of the Legal Profession Act 2008. A number of original wills held by the law practice are now held by Mr Carles. Interested parties can contact him at Carles Solicitors, 1st Floor, 524 Hay Street, Perth WA 6000, telephone 9221 4877 email: fcarles@carleslawyers.com.au

www.buyabusiness.com.au

BRIEF For advertising opportunities in Brief please contact:

Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late Kenneth Gerald Fisher of Castledare Retirement Village, 108 Fern Road, Wilson, Western Australia (previously of 67 Lacey Street, East Cannington, Western Australia) who died on 3 February 2018 please contact Lyons Babington Lawyers of Level 1, 7 Ventnor Avenue, West Perth WA on 9481 1111 or by e-mail at erb@lblegal.com.au within one month of the date of publication of this advertisement quoting reference EB:18114.

Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

New Members

New members joining the Law Society (July 2018)

Restricted Practitioner

Associate Membership

Ordinary Membership

Ms Ishbel McLachlan Clifford Chance

Ms Belinda Albertini

Mr Robin Trotter King & Wood Mallesons

Mr Ben Christianopoulos Curtin Unversity Mr Rahul Madan University of New England Mr Big Rob Southern Cross University

51

Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

AUGUST 2018 Membership Event

CPD Seminars

Saturday, 4 August Black Tie Gala Dinner

Saturday, 18 August and Sunday, 19 August Practical Advocacy Weekend

SEPTEMBER 2018 Membership Events Dates TBC Sole Practitioner and Small Firm Forum Pilates Classes Tuesday 11 September YLC Later Lawyers Event CPD Seminars Wednesday, 5 September Criminal Property Confiscation Thursday, 6 September Disclosure Obligations and Consequences of Non-Disclosure in Family Court Proceedings Monday, 10 September Elder Law and Succession: conflicts of interest and testamentary capacity

Thursday, 13 September Mental Health Hypothetical Thursday, 13 September Effective techniques for drafting affidavits Friday, 14 September Ethics on Friday: Rules of Conduct WEBINAR Wednesday, 19 September Current issues affecting the not-for-profit sector Wednesday, 26 Septemberr Elder abuse and the family Thursday, 27 September The Australian Banking Industry: how did we get here?

OCTOBER 2018 Membership Events Dates TBC Pilates Classes Society Sundowner Mental Health Awareness Lunchtime Seminar CPD Seminars Wednesday, 3 October Respectfully Disagreeing with the ATO in Relation to Tax Disputes Wednesday, 3 October Secure Data Erasure and Wireless Security WEBINAR Tuesday, 9 October Reaching inwards & outwards: Connecting your way to wellbeing

Thursday, 11 October Contract Law Masterclass Friday, 12 October Ethics on Friday: Ethical issues in representing alleged perpetrators of family and domestic violence Wednesday, 17 October Recent developments in legislative drafting Monday, 15 October Setting aside domestic and international arbitration awards Tuesday 16, October What is Unique about the Government Contract?

Wednesday, 24 October Legal Costs

Wednesday, 10 October Fostering healthy relationships with the bench

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8640.

For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692.

For all upcoming events and further information please visit lawsocietywa.asn.au

52 | BRIEF AUGUST 2018

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