Brief June 2018

VOLUME 45 | NUMBER 5 | JUNE 2018

Also inside Enhancing Community Access to Justice and Law Reform – The Hon John Quigley MLA, Attorney General of Western Australia Press for Progress: Gender Parity and the Legal Profession Araya v Nevsun Resources and Law Reform

LAW WEEK 2018 EVENT WRAP UP

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Volume 45 | Number 5 | June 2018

11

CONTENTS

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20

ARTICLES 06

Law Week 2018

11

Enhancing Community Access to Justice and Law Reform

18

Araya v Nevsun Resources and Law Reform

20

Press for Progress: Gender Parity and the Legal Profession

24

Setting aside commercial arbitration awards for procedural unfairness under the Commercial Arbitration Act (2012) (WA)

33

Don McLeod’s Unusual Quest

39

Young Lawyers Event Update

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.).

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Editor: Jason MacLaurin 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 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 Submission of articles: Contributions to Brief are always welcome.

For details, contact brief@lawsocietywa.asn.au

REGULARS

President: Hayley Cormann

02 President's Report

45 Cartoon

04 Editor's Opinion

46 Law Council Update

40 Aunt Prudence Juris: Your one stop solution to problems after law school

48 Professional Announcements

41 Ex Juris: Travel tales from the legal profession

48 Classifieds 49 Events Calendar 49 New Members

Senior Vice President: Greg McIntyre SC Junior Vice President & Treasurer: Jocelyne Boujos Immediate Past President: Alain Musikanth 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 Junior Members: Zoe Bush, Sarah O’Brien-Smith, Brooke Sojan Country Member: Kerstin Stringer Chief Executive Officer: David Price

42 Drover's Dog 44 Family Law Case Notes 01

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

Welcome to the June edition of Brief, as we mark the halfway point of 2018.

It has been an exciting year so far for the Law Society and the profession, with a large number of social and educational events taking place, and significant advocacy work going on behind the scenes.

by the Interim Report, may create significant increased case load work for the Supreme Court. The Law Society’s preference would be to retain an appeal route within the WAIRC, whether through a Full Bench, or simply to the Chief Commissioner for unfair dismissal and denied contractual benefit matters.

Position Paper on End of Life Choices

Australian Solicitors’ Conduct Rules Consultation Paper Submission

The debate as regards voluntary euthanasia – medical intervention to end a patient’s life at the patient’s request – has been raised in Parliament a number of times over the last two decades. Renewed debate in Western Australia has followed developments in other States, particularly Victoria, which passed the Voluntary Assisted Dying Act 2017 (Vic) in November 2017.

To consider this important area, in January 2018, the Law Society established an End of Life Choices Working Group comprising representatives from the Elder Law and Succession Committee, Human Rights and Equal Opportunity Committee and Ethics Committee.

The Law Society has now produced a position paper which outlines its policy on the issue. Importantly, while the Law Society takes no position on the moral arguments for or against voluntary euthanasia, or the merits or otherwise of legislating for voluntary euthanasia, we will engage on the legal issues raised by the end of life choices Parliamentary inquiry. The full position paper can be found at lawsocietywa.asn.au/policyand-advocacy.

Review of the State Industrial Relations System In March 2018, the Interim Report of the Ministerial Review of the State Industrial Relations System was published. In a recent submission, the Law Society expressed its concern that the Interim Report appears to suggest the possible abolition of the Full Bench of the Western Australian Industrial Relations Commission (WAIRC).

The Full Bench of the WAIRC has always acted as a suitable “filter” of appeals, ensuring limited cases progress to the Industrial Court of Appeal (as constituted by the Supreme Court). The Law Society has concerns that appeals direct to a Supreme Court judge from the WAIRC, as suggested

02 | BRIEF JUNE 2018

The Law Council of Australia is undertaking a review of the Australian Solicitors’ Conduct Rules (Rules). This is the first comprehensive review of the Rules since they were first promulgated in June 2011. The Law Society reviewed and has provided comments back to the Law Council on the consultation draft.

The Law Society indicated it was generally content with the changes proposed by the Law Council, save in two distinct areas.

In particular, proposed new rule 22.9 provides: A solicitor must not confer or deal directly with any party who is unrepresented unless the party has signified willingness to that course.

This rule appears to be inconsistent with the obligation on solicitors to confer with the other side and resolve disputes at an early stage. As a party to the proceedings with an address for service, the lawyer should be able to contact that party for any relevant matter. Additionally, the rule has the potential for abuse by self-represented litigants. The Law Society has therefore advised the Law Council that it opposes this proposed rule.

Another issue relates to consultation question 111: Where a solicitor forms a view that a fellow practitioner might be suffering a mental impairment, does that solicitor have an ethical duty to respond. If so, should that be a matter to be raised initially, and within a confidential setting, with the relevant professional association and addressed under a pastoral care program, or should the appropriate ethical duty be to report the issue to a regulatory authority?

The Law Society has advised the Law Council it opposes the inclusion of such a requirement without further consideration, as it raises questions about a general

duty to report instances of unsatisfactory professional conduct or professional misconduct.

Privacy Policies The Privacy Amendment (Notifiable Data Breaches) Act 2017 came into effect on 22 February 2018 as regards “notifiable data breaches”. As entities to which the Privacy Act applies, both the Law Society and Law Mutual (WA) are aware of the obligations established by the Act in relation to notifiable data breaches. Among other things, and as a result, the Privacy Policies of the Law Society and Law Mutual (WA) have now been updated, and can be found at our website: lawsocietywa.asn.au/terms-and-conditions/ privacy-policy.

Renew Your Essential Membership The Law Society’s 2018/19 membership year commences on 1 July 2018. The Law Society is your partner in providing professional and personal support, representing you at the local and national level and continually delivering high value benefits for your membership. I am pleased to advise that there have been no increases to membership prices this year, giving you outstanding value for your essential membership of the legal profession.

To stay informed, visible, connected and relevant, and to retain member benefits such as your subscription to Brief, please renew your membership of the Law Society, if you have not already done so. If you pay for your own membership, it is easy to renew – simply visit members.lawsocietywa.asn.au and click on the ‘payment details’ icon. If you have queries relating to your membership, please email membership@lawsocietywa.asn.au or call (08) 9324 8692.

Contact the Law Society As always, we love to hear from our membership, and we invite engagement and input in a variety of ways including through the significant number of committees of the Law Society, regular surveys, and both informal and formal occasions when feedback can be provided to us.

In addition, we encourage you to contact either me, any other member of the Executive or the Law Society’s Chief Executive Officer directly, to share with us your ideas, feedback and concerns.

KBE IS ON THE MOVE! FROM JUNE 2018, KBE HUMAN CAPITAL WILL BE LOCATED AT LEVEL 18, 140 ST GEORGES TERRACE PERTH WA 6000 SALARIED/EQUITY PARTNERSHIP OPPORTUNITIES PARTNER/SPECIAL COUNSEL – CORPORATE – Highly regarded national firm with rapidly expanding Perth office. Long established WA Partnership. Extensive national support. Opportunity for an established Partner or high calibre SA/SC to build the firm’s Corporate/M&A/ECM offering in the WA market.

Joining a team comprising two Corporate Partners, you will advise publicly listed companies and multi-national groups across the full spectrum of Corporate/Advisory matters. This position would suit a Partner or motivated SA/SC looking for their next career move. Extensive experience in Corporate/M&A with some exposure to ECM, and a transportable client base of $200K+ and/or a strong network of referral sources will see you secure this role.

PARTNER – CONSTRUCTION – Minimal fee base required. Establish and grow a successful Construction Team within a full service national firm, alongside a highly motivated and innovative leadership team. This rapidly growing national firm is looking for an ambitious and experienced Construction Law Partner or confident SA/SC to establish and lead the Construction Group in WA. The firm has a strong reputation throughout Australia, and has long been a key player in the WA market. You will have experience advising principals, contractors and subcontractors across a variety of building and Construction Law matters.

You will be involved in the full spectrum of strategic advisory and Construction Litigation, building/leading a team of junior and senior lawyers. This position would suit an experienced Partner or high calibre SA/SC who is looking for a new challenge, with the ability to bring across a transportable fee base of $200- $400K+.

PARTNERS – FAMILY LAW – Market leading teams.

We are currently 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, taking part in BD activity, and oversee file strategy for HNW clients across complex property and children’s matters. You will be able to demonstrate a $100k+ transportable fee base or established referral network from which to build a quality HNW focused practice.

PARTNER/SPECIAL COUNSEL – PROPERTY AND COMMERCIAL LAW – Take over a $1M+ practice from Retiring Partner. This a rare opportunity for a Property and Commercial Lawyer at the Partner or SA/SC level to join a long-established firm and take over the practice of 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. This Partner, one of the firm’s founders, is now planning to transition their clients to a Senior Lawyer over the next 24-36 months. The incoming lawyer will need a

strong background in Commercial/Property Law from a leading firm (either top/mid-tier or boutique), with a significant level of drive to lead and further build the practice over the next 10+ years.

PARTNER – WORKPLACE RELATIONS – International firm. Leadership role within new entrant to WA. Establish and grow a successful ER/IR team alongside top-tier Partners. Following recent growth in complimentary practice areas, a leading international firm is seeking a Workplace Relations Partner/SC to build and lead a new practice in WA. The incoming Senior Lawyer will benefit from an extensive internal referral network, with the ability to bring across enough work to cover their own salary costs. In establishing the team in WA, the board is seeking an ambitious and experienced Partner to lead the Employment and Industrial Relations Group in WA. The firm has a strong reputation in the international market and a clear plan to further grow by expanding their service offering into WA. This position would suit an experienced Partner or a SA/SC level lawyer from a top-tier firm. You will have exposure to a range of complex matters and be driven to build and lead a practice across both front end and back end matters. We are interested in speaking to lawyers with 8+ years’ PAE, with the ability to manage junior lawyers, provide commercially minded advice and bring across a transportable fee base of $300K+.

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

2 YEARS’ PAE TO SENIOR ASSOCIATE/SPECIAL COUNSEL BANKING & FINANCE LAWYERS – Two top-tier firms (permanent and 12 month contract opportunities available). KBE is working with several leading Banking & Finance teams to secure lawyers with 3-7 years’ PAE. Opportunities at both national and international firms.

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 slightly different benefits, including performance bonuses, flexible working conditions, time off in lieu, and other financial/nonfinancial incentives.

CORPORATE/M&A SENIOR ASSOCIATE – Build and lead the junior/mid-cap Corporate Group of a boutique firm. We are currently advising a premier boutique law firm to secure an experienced Corporate Advisory/M&A Lawyer to build and lead a practice focused on the junior/mid-cap markets. We are interested in speaking to lawyers with 5+ years’ PAE with experience from a national/ international or leading boutique firm. If you are seeking a genuine career progression role with the ability to transition into a Partner role within 2 to 3 years, then we would like to speak with you.

ENERGY & RESOURCES LAWYERS – National/international and boutique firms. Several of Australia’s best regarded E&R teams are seeking junior to mid-level Lawyers with 3-6+ years’ PAE. The successful candidates will

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

work alongside quality Partners who take an active interest in mentoring, with two of the teams offering genuine flexible working conditions.

INSURANCE LAWYERS for multiple firms across all tiers. We are currently working with several of KBE’s key clients across multiple tiers to secure Insurance Lawyers from 2 years’ PAE through to SA/SC level.

These positions involve working with a range of insurers and high profile self-insureds across a variety of insurance matters. We are interested in speaking with suitably qualified Lawyers with 2+ years’ experience in some or all of 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.

IN-HOUSE ROLES – Junior Lawyers for various In-House Counsel Roles. The WA in-house legal market is rapidly gaining momentum. KBE is receiving 1-2 new in-house briefs on a weekly basis. Our current active client briefs would suit Junior Lawyers with 2-4 years’ PAE and mid-level lawyers with 4-8 years’ PAE who are keen to move across into an in-house role, working closely with senior stakeholders and briefing complex matters to top-tier law firms. Our clients are open to considering experience from a variety of practices area, providing you are keen to learn, join a highly collegiate teams, and are comfortable working directly with senior stakeholders both internally and externally.

LEGAL COUNSEL – 5-10+ years’ PAE working with Australian energy company. KBE has been briefed exclusively to secure a Legal Counsel for a leading Australian energy company. The company services clients throughout Australia, and the successful applicant will gain exposure to the full spectrum of legal work and projects across their client base.

Given the skill set required, we are ideally seeking a lawyer with solid energy experience from either an international, national or boutique firm or an in-house counsel role.

LITIGATION LAWYERS – Top-tier national and quality boutique firms. KBE has multiple new opportunities for both junior (2-4 years’ PAE) and Associate/SA level Litigation Lawyers (4-10 years’ PAE) to join rapidly growing national and boutique firms. Many of our key clients are gearing up for strategic growth and now hiring quality lawyers to work closely with market leading Partners, with extensive client contact and the ability to run matters with significant autonomy.

WORKPLACE RELATIONS LAWYERS – Multiple firms across all tiers. If you are a Junior Lawyer, Associate or Senior Associate with 2-5 years’ PAE or 5-10+ years’ PAE, then you are in high demand.

KBE has a diverse range of opportunities offering a combination of above market salaries, performance based and other incentives, and flexible working conditions.

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 Editor, Brief | Barrister, Francis Burt Chambers

As the cover reflects, this month’s Brief contains a number of items on last month’s Law Week, one of the Law Society’s most significant annual events.

Law Week provides an opportunity for the profession to engage with the community to promote a shared understanding of the crucial role the law plays in society.

It also demonstrates the various objects of the Law Society, which is concerned not only with its members, but also with service to the community and promoting and explaining the importance of the law, lawyers, our legal institutions, and the principles under which they operate.

Although, it is difficult at times explaining, as a lawyer, that the law has a very limited ability to effectively adjudicate upon the present controversy which is threatening the civil order, if not also many relationships: “Is it Yanny or Laurel?”1 Admittedly, some international jurisdictions enjoy more exotic locations for their Law Weeks.

Last year’s English Law Week was held in Moscow and St Petersburg, being organised by the Law Society and Bar Council of England and Wales in partnership with several Russian law societies and the British Russian Law Association.

And, as a reward for attending the event, which included considering and discussing the important topic for the week of The Law – a noble profession or just business? participants have likely been subjected to surveillance and being pestered by Special Counsel Robert Mueller or even, more recently, Australia’s own Four Corners programme.

In what is either related or wildly unrelated (and fake) news, depending on your point of view, Stormy Daniels’ attorney Michael Avenatti was involved last month in a terse exchange with a New York judge that demonstrated some of the challenges and rewards of the practice of the law (also a topic practitioners reflect upon in Law Week). Mr Avenatti had filed a pro hac vice2 motion to intervene in proceedings involving Trump attorney Michael Cohen, but only wanted to appear as and when that case moved forward. New York Judge Kimba Wood told him that either he intervened or he didn’t and if he did “you would have to stop on its tracks your

04 | BRIEF JUNE 2018

publicity tour on television and elsewhere” and that “you will not be permitted to use this Court as a platform for anything”.

Confronted with this vexing problem, Mr Avanetti, in the American (or at least Californian) way decided almost immediately to withdraw his motion and was promptly seen later in interviews for MSNBC and CNN. June is of course a month for deadlines, especially given the end of the financial year. And lawyers are no strangers to deadlines.

The term “deadline” has a number of attributed sources. One is from the Civil War where it apparently described a line around a military prison beyond which soldiers were to shoot escaping prisoners.

This may not resonate with lawyers, other than junior lawyers caught trying to escape from their office buildings prior to midnight without having completed a task or sufficient billable hours3. A derivation of the word “deadline” perhaps more relevant to lawyers comes from early printing presses, which had a guideline on the bed of the press beyond which text would not print4.

If Mr Avanetti’s reaction to professional challenges might be considered very American, a recent case (albeit also involving an American attorney) concerning a missed deadline has qualities that Australian practitioners – perhaps depending on what football team you barrack for – might well appreciate...

excellent” but “disaster then struck in the form of bad officiating, Jazz turnovers and poor shot selection, the absence of the best defense player in the league, and [opposition player] Russell Westbrook.”

In line with an Australian trait, the intense analysis of what went wrong continued, including more specific references to bad officiating, with the motion noting that “phantom contact between Rudy Gobert and Carmelo Anthony, a particularly egregious foul call, resulted in Gobert’s fourth infraction and limited his playing time for the rest of the game.”

And, consistent with another Australian trait, there was grudging respect for the opposition: “Painful though it is for plaintiffs’ counsel to admit it, Russell Westbrook is a very good basketball player.”

The other attorneys, acting in the best traditions of collegiality and as followers of sport – another Australian trait – did not oppose the application and the extension of time was granted by the Court.

Readers, who are of course always encouraged to make submissions to Brief, whether serious or on the lighter side, are invited to share with Brief the best or worst excuses they have heard of for missed deadlines, or any sports related mishaps in the law.

NOTES: 1

To the uninitiated, this is an audio recording (described as an audio illusion) that has gone viral. Different people hear either “Yanny” or “Laurel” – and are adamant about that which they hear. Also to the uninitiated: it would be an excellent idea to stay that way. The “Yanny or Laurel” test usually starts with statements such as “Hey, listen to this, it’s very cool – tell me, does it say ‘Yanny’ or ‘Laurel’?” and ends with statements more along the lines of “Are you crazy?”, “I don’t think I even know who you are now”, “you need help”, “go get your belongings” and “you’re fired”.

2

Latin for “for this occasion” or “for this event” but which could well be a third option to “Yanny” or “Laurel” to be heard on the audio illusion.

3

Or at least junior lawyers from times past – many years back the offices of large law firms were affectionately dubbed “sky prisons”.

4

Lossing’s History of the Civil War (1868) and Henry, Printing for School & Shop (1917) as referenced in the entry for the term “deadline” in Meriam-Webster.com.

5

“Attorney misses deadline due to ‘emotional impact’ of Utah Jazz loss, asks for more time”, 30 April 2018, desertnews.com.

Utah attorney Brian King missed a deadline for filing a Court document opposing the other side’s motion by 18 minutes, having filed it at 18 minutes past midnight.

Mr King’s motion for an extension of time attributed the delay to the emotional anguish suffered when his beloved Utah Jazz basketball team blew a 25-point lead in a playoff game against the Oklahoma Thunder5.

Some parts of his motion were almost poetic, and would resonate with many in the profession: “Foreseeable, but unwished for, circumstances, together with unforeseen emotional impact from those circumstances, constitute good cause for this motion” and that up until his team’s collapse “prospects for the timely submission of the opposition memo were

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

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EVENT WRAP UP

LAW WEEK 2018

Selected photographs by The Scene Team

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY The biggest and best Law Week yet!

The Law Society was delighted to showcase over 50 events for the community and legal profession across Western Australia during Law Week 2018. The Law Society hosted seven major events between Monday, 14 May and Friday, 18 May, attended by over 800 people. The focus of Law Week was on law and justice in the community, access to justice and recognition of legal practitioners who have provided exceptional service to the profession and community.

Law Week opened on Monday, 14 May with the Law Week Breakfast at the Parmelia Hilton, Perth, where over 130 practitioners enjoyed breakfast in a lively and upbeat atmosphere, in the company of special guests including the Hon John Quigley MLA, Attorney General of Western Australia.

The Attorney General discussed the State Government’s significant law reform agenda, with a particular focus on initiatives directed towards improving access to justice. You can find the Attorney General's full speech in this edition of Brief.

The Attorney General also presented the 2018 Community Service Law Awards. From a strong field of nominees, barrister David

06 | BRIEF JUNE 2018

Blades and tenant advocacy service Tenancy WA were named individual and organisation winners respectively (pictured page 9, third row, far left, with the Attorney General). Other finalists included law firm Estrin Saul, and lawyers Thomas Scutt and Raya Stanton.

The Law Society hosted young leaders in the WA community at a Youth Civics Leadership Day on Monday, 14 May. As part of the day’s activities, students had the chance to meet young lawyers, who generously volunteered their time to explain the work they do and how they came to practise law.

On Tuesday, 15 May, National Pro Bono Day, the annual Law Access Walk for Justice attracted a record-breaking attendance of more than 450 lawyers. More than $42,000 was raised for the vital Law Access pro bono referral service, thanks to a magnificent fundraising effort from the WA legal profession.

Events for the community took place throughout Law Week, including free information sessions and legal advice. Events were hosted by organisations and firms across Western Australia, examining topics including ‘Representing Yourself at a Magistrates Court Criminal Trial’, ‘10 Things You Need to Know About the Consumer Laws That Protect You’ and ‘Cyber-Safety for Teachers’.

Law Week 2018

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EVENT WRAP UP

The Law Society’s Young Lawyers Committee hosted a panel presentation on the subject of Access to Justice for Indigenous Peoples. Attendees at the old Supreme Court building witnessed a lively debate on issues including the right to parole, bail for Indigenous accused in regional and remote locations, access to interpreters and the leadership and positive contributions of Indigenous communities.

At the Law Society’s Social Justice Career Opportunities Evening on Thursday, 17 May, representatives from 10 not-for-profit and community organisations provided attendees with information about career pathways in the human rights and social justice areas.

The Law Society hosted three major events on an action-packed Friday, 18 May. At the Old Court House Law Museum, a soldout audience heard extraordinary stories from role model women Aboriginal lawyers. The panel discussion, titled My Culture My Story; Aboriginal Women Leaders in Law, was facilitated by Deanne Fitzgerald and the trailblazing panellists included Kelsi Forrest, Ashleigh Lindsay, Kate George and Sue Gordon AM. At the Law Society, a capacity audience of country members from across Western Australia, including Broome, the Kimberley, the Pilbara, Geraldton, Bunbury, Margaret River, Donnybrook, Narrogin,

08 | BRIEF JUNE 2018

Albany and Esperance attended the CPD Day for Country Practitioners. Delegates heard from eminent presenters including the Hon Wayne Martin AC, Chief Justice of Western Australia and Morry Bailes, President of the Law Council of Australia, with content specially tailored to the needs of country practitioners.

The Law Week Awards Night at Bankwest Place, Perth, included the much-anticipated announcement of the Law Society’s Lawyer of the Year Awards. Congratulations to award winners Haley Allan (more than five years' experience category) (pictured page 8, top row centre with President Hayley Cormann) and Tegan Harrington (less than five years' experience category) (pictured page 7, middle row far left with President Hayley Cormann). Other finalists included Patricia Aloi, Reuben Saul Jahnke, Danielle Bechelet and Katy Welch.

Practitioners with more than 50 years’ service to the WA legal profession and the Law Society's most recently Accredited Family Law Specialists were also recognised. Guests enjoyed canapés, refreshments and good conversation, in a fitting end to another successful Law Week.

The Law Society would like to thank everyone who participated in the Law Week festivities this year. There was much to talk about and lots more on the agenda as we look forward to Law Week 2019.

Law Week 2018

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Special thanks to Law Week supporters and sponsors

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Enhancing Community Access to Justice and Law Reform

By The Hon John Quigley MLA, Attorney General of Western Australia

This article is adapted from the speech given by the Attorney General at the Law Society’s Law Week Breakfast on Monday, 14 May 2018.

Good morning everyone, and may I say how pleased I am to be here today for the first event in what promises to be an action-packed and informative Law Week.

May I first acknowledge and thank Hayley Cormann, President of the Law Society of Western Australia for personally extending the invitation to me.

I am very pleased to be the keynote speaker opening this year’s Law Week.

I am particularly excited to speak on the topic of ‘Enhancing Community Access to Justice and Legislative Reform’.

I have chosen this topic as several justice initiatives go hand in hand with this year’s Law Week theme focussing, as it does, on Law and Justice in the Community, and the importance of recognising pro bono work undertaken by West Australian lawyers and law firms that support access to justice.

Enhancing community access to justice Access to justice has traditionally been seen as simply access to the courts and viewed as meaning the ability of individuals to approach the courts for relief. To a certain extent that remains true as courts are ultimately the arbiters of legal issues, able to declare what the law is, what the rights and obligations of parties are and to enforce those declarations.

Factors such as cost, cumbersome court procedures, difficulty in obtaining legal representation, and geographical distance are some of the reasons why some people are not in a practical position to approach the court for relief.

The importance of access to justice cannot be underestimated, as it is an essential element of the rule of law and democracy. In the absence of access to justice, people are unable to have

Photographs by The Scene Team

their voice heard, exercise their rights, challenge discrimination or hold decisionmakers accountable.

Therefore, I would like to start today by setting out how some justice initiatives are aimed at promoting equal access to justice by improving: •

Access to legal services; and

•

Court processes and procedures in the civil litigation system.

Access to legal services Unfortunately, access to legal services is outside the financial means of many Western Australians who either cannot afford a lawyer to represent them or fall outside the means test for Legal Aid assistance. This is largely due to the high costs of legal representation.

One way to address this is by increasing the funding to the free legal services sector, which has suffered two decades of deteriorating Federal funding.

11

In April 2017, the State Government committed $1.2 million to the community legal sector to ensure disadvantaged and vulnerable Western Australians have access to free legal help.

This year I announced the State Government’s approval for the use of $2 million from the Criminal Property Confiscation Grant Fund to enable community legal centres to continue to operate until a sustainable future funding model is agreed to. Government will also undertake to review the operation of community legal centres, in partnership with the centres, to determine if the services can be delivered more effectively.

A second way of addressing the issue, in my view, is for Western Australia to participate in the National Uniform Legal Profession scheme.

The scheme aims to create a common market for legal services across Australia, so there will be one set of laws governing legal practice across jurisdictions that adopt the scheme; including a single set of admission requirements for all potential lawyers.

Firms seeking to engage foreign lawyers to undertake specialised work will benefit from a simplified process for admitting them to practice Australian law. These measures will enable legal practitioners to practice more easily across jurisdictions.

This may result in legal practitioners with diverse skills and expertise coming across from other jurisdictions to WA and from WA to the other common market jurisdictions, thereby increasing the supply of legal services. This could broaden the range of legal services available to WA consumers, lead to healthy competition and a reduction in costs to consumers.

Additionally, consumers will also be entitled to the same rights, obligations and remedies across jurisdictions. They will have access to new efficient ways to resolve service complaints.

In all, the above initiatives will lead to an increase in consumer access to legal services and greater confidence in the use of legal services.

Court processes and procedures Another method of improving access to justice is to make court processes and procedures simpler and cheaper, particularly for users of the civil justice system.

E-filing is one such method of reducing costs of legal services. It enables law firms or self-represented litigants to lodge

12 | BRIEF JUNE 2018

documents with the court electronically, and as a result costs are reduced.

One such initiative is the Courts and Tribunals' electronic lodgement service, which enables legal practitioners, government agencies, organisations and self-represented litigants to lodge a subset of documents to the Supreme Court of WA, the State Administrative Tribunal, the District Court of WA and the Magistrates Court of WA. The Supreme Court and District Court mandated eLodgement for law firms and organisations from the 1 March 2018 for general division civil court matters. There will be a limited number of exceptions to compulsory eLodgement.

Within the SAT, eLodgement for certain commercial tenancy matters is already compulsory for law firms and organisations.

Firms seeking to engage foreign lawyers to undertake specialised work will benefit from a simplified process for admitting them to practice Australian law.

These measures will enable legal practitioners to practice more easily across jurisdictions.

This also helps individuals, particularly those who live large distances from Perth, overcome issues of geographical distance and further improves access to justice and the efficiency of the civil litigation system.

As you may be aware, I intend to introduce a new legislative regime in relation to representative proceedings in Western Australia substantially based on Part IVA of the Federal Court Act 1976 (Cth) which is in line with the recommendations of the Law Reform Commission of Western Australia.

Representative proceedings at its heart is an access to justice issue; there are many in our community with the right and very deserving case for legal compensation but are unable to access the courts because the Legal Aid Commission has limited funding for civil proceedings.

The introduction of a representative scheme will enhance access to justice

and promote efficiency, transparency and consistency in the administration of justice where a number of people have suffered loss, injury or damage as a result of a multiple wrong.

The scheme will be a clear and comprehensive set of procedures for the conduct and management of representative proceedings. It will provide for matters which include the threshold requirements to commence a representative proceeding, standing, group (or class) membership, settlement, discontinuance of proceedings, costs, distribution or payment of money to group members and appeals.

The introduction of this scheme is also timely and complements the Government’s policy associated with the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA), which received Royal Assent on 19 April 2018. The scheme will further increase access to justice for victims of child sexual abuse because victims may be able to use the Representative Proceedings procedure in Supreme Court civil actions.

The introduction of representative proceedings is a WA Labor election promise made at the last election and I intend on introducing legislation this year to meet that commitment.

Legislative reform I would now like to speak to you about the State Government’s legislative reform initiatives, and the steps the Government will take to implement its ambitious law reform program in Western Australia.

I intend to actively progress law reform across a number of key areas.

It has been a little over a year since the State election and when I last presented the Law Awards. During that time I have introduced 17 bills into State Parliament.

While some of this legislation hasn’t yet passed the Legislative Council, where Labor does not control the numbers, I am confident that it will eventually go through. These are changes that Western Australians have been calling for over many years.

Uniform evidence law The State Government is committed to maintaining uniformity of law across jurisdictions as far as practicable, and in addition to the consideration being given to the National Uniform Legal Profession scheme; I am also considering the adoption of uniform evidence law.

I have asked the Department of Justice

to consider the development of a new evidence act, to adopt those aspects of the Commonwealth’s uniform evidence legislation that would benefit WA, retain WA provisions that are necessary for the proper administration of criminal justice in WA, and incorporate considered improvements and recommendations to WA’s evidence legislation.

Adoption of the Commonwealth uniform evidence legislation by other jurisdictions has not occurred in a consistent manner. Each jurisdiction’s evidence act excludes some Commonwealth provisions, and contains additional provisions that are reflective of State/Territory differences and interaction with State/Territory legislation. WA will adopt a similar approach.

Amendments to court jurisdictional boundaries and other legislation I currently have a number of Bills before the WA Parliament relating to the operation of courts.

The Court Jurisdiction Legislation Amendment Bill 2017 was introduced into the Legislative Assembly on 18 October 2017. It proposes to alter the criminal jurisdiction boundaries between the Supreme Court, District Court, and Magistrates Court to improve the timeliness, efficiency and effectiveness of the criminal justice system.

Another Bill, the Court Legislation Amendment Bill 2017 was introduced into Legislative Council on 6 September 2017. Notably, it proposes

amongst other things, to increase the mandatory retirement age for magistrates from 65 to 70 years.

The Coroners Amendment Bill 2017, which is currently before the Legislative Council, will amend the Coroners Act 1996 to implement recommendations of the Western Australian Law Reform Commission contained in its 2012 report Review of Coronial Practice in Western Australia.

It aims to reduce delays and remove the current unnecessary impost on the resources of the Office of the State Coroner and the Western Australia Police.

Further criminal appeals Work is underway to progress amendments to the Criminal Appeals Act 2004 to introduce a new right for a person to make a second or subsequent appeal in criminal matters.

The basis of the appeal will be that there is either “fresh and compelling” or “new and compelling” evidence which supports the conclusion that there has been a substantial miscarriage of justice.

Amendments to the Suitors Fund Act 1964 The Suitors’ Fund Act 1964 (WA) (the Suitors’ Fund Act) establishes the Suitors’ Fund to assist in the liability for costs of certain litigants and certain litigation where decisions are upset on appeal or proceedings are rendered abortive for reasons unrelated to the conduct of the parties. Any applications for payment must be made to the Appeal Costs Board.

The Suitors’ Fund Amendment Bill 2017 and Suitors’ Fund Amendment (Levy) Bill 2017 were both introduced into Legislative Assembly on 29 November 2017. Together these Bills will remove the maximum amount that may be imposed on an initiating process to finance the Suitors’ Fund, and to provide that the fee to be imposed be prescribed in regulations.

Removing the time limit for child sexual abuse victims to take legal action As briefly mentioned earlier, the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (WA) has received Royal Assent.

It removes limitation periods for all child sexual abuse actions and will address a number of the civil litigation reforms recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse in their Redress and Civil Litigation Report.

In a first for Australia, the Act provides a legal basis for suing institutions in the name of their current office holders for historical child sexual abuse. It overcomes legal difficulties in suing an unincorporated institution. It is known that many churches and other institutions are, or were at the time, not incorporated.

The Act includes provisions overriding certain sections of the Federal corporations law, which will enable office holders to access the assets of related trusts and corporations for the purposes of satisfying the judgement amount.

13

The Act also ensures that victims are treated fairly by requiring the Legal Costs Committee to consider a cap on the legal fees that may be charged in child sexual abuse cases.

WA continues to engage with the Commonwealth and other jurisdictions in regard to the Commonwealth’s proposed redress scheme.

Dangerous Sexual Offenders The Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA) received Royal Assent on 13 December 2017 and its substantive provisions are now operational.

The amendments aim to strengthen the protections to our community under the Bail Act 1982 and the Dangerous Sexual Offenders Act 2006 (WA). It implements the most constitutionally robust method of reversing the onus of proof so that offenders bear the burden of satisfying the court that they will substantially comply with the standard requirements of a supervision order; and to ensure that an offender who has breached a supervision order is not released on bail unless there are exceptional reasons why the accused should not be kept in custody.

supervision order (PSSO). The HROB regime will be similar to that in place for dangerous sex offenders, where certain serious violent offenders can be placed in detention or under very close supervision in the community beyond the sentence imposed by the court if they continue to pose a serious risk to the community.

Presumption against bail and parole for terror suspects Government is committed to implementing legislative reforms in accordance with the Council of Australian Governments Nationally Agreed Principles (“COAG National Principles”), for a presumption against bail and parole to apply to persons who have demonstrated support for, or have links to, terrorist activity. A multi-agency working group has been established to consider amendments to the Bail Act 1982 and the Sentence Administration Act 2003, as well as identifying resourcing dependencies to support implementation of a robust scheme for WA. This initiative is part of a broader strategy to enhance WA’s counter-terrorism capability, and links into a coordinated National approach.

High Risk Offenders legislation

Enhancing the operation of the Bail Act and related amendments

Consideration is being given to developing new legislation that will establish a High Risk Offenders Board (HROB), and at the same time will provide for a new form of post-sentence

Work is underway to progress a package of reforms to the Bail Act 1982 (Bail Act). Proposals under consideration include legislative recommendations

14 | BRIEF JUNE 2018

from the review of the Bail Act, which was completed in 2014. Many of the recommendations were made in response to the 2009 findings of the WA Coroner in the case of Mr Ward, and seek to implement legislative changes aimed to reduce overrepresentation of Aboriginal people in custody and provide a legislative framework aimed at reducing transportation of accused children over long distances.

Other amendments under consideration are in response to emerging issues; particularly in relation to persons accused of serious sex offences against children, and to align with other legislative developments relating to post sentence supervision of offenders and greater sensitivity toward and enhancing protection of victims of family and domestic violence.

No Body, No Parole The Sentence Administration Amendment Act 2018, otherwise known as “no body, no parole” legislation, received Royal Assent on 23 March 2018 and is now operational. The new provisions require the Prisoners Review Board: •

when considering whether a relevant prisoner should be granted an early release order; and where the location of the remains of the victim of the murder is unknown to a member of the WA Police Service, to not make a release order or release recommendation (as the

case may be) unless satisfied that the prisoner has cooperated with a member of the police service in the identification of the location, or last known location, of the remains of the victim of the murder.

The reforms go a long way to restoring faith in the justice system for the families of murder victims. It is hoped that these new ‘no body, no parole’ laws will lead to greater cooperation by prisoners and bring about closure for the victim’s relatives.

Expungement of Homosexual Convictions The Historical Homosexual Convictions Expungement Bill 2017 was introduced into State Parliament on 1 November 2017 and is at the stage of Second Reading in the Legislative Council.

It will create a standalone legislative scheme which allows an eligible person to apply for expungement of certain historical convictions in respect of consensual sexual activity which were at the time illegal. It is proposed that this be through an administrative process so that applicants will not have to have their application heard in court. The proposed scheme will be sensitive to the privacy of applicants and robust enough to ensure that issues of consent, age and other matters relevant to current crimes are adequately addressed. This legislation is a priority for the McGowan Labor Government.

In introducing the Bill, the Hon Mark McGowan, Premier, made a statement of apology on behalf of the Government of WA; recognising the stigma and ramifications of having these historical homosexual convictions on record.

Criminal Law (Mentally Impaired Accused) Act 1996 Work is underway to progress major

reforms to WA’s mentally impaired accused legislation which, in its current form, is outdated and unjust.

The Criminal Law (Mentally Impaired Accused) Act 1996 sets out the options available to the courts when dealing with a person who is either acquitted on the basis of unsoundness of mind, or alternatively, found unfit to stand trial.

The reforms are a priority for the McGowan Labor Government, and are in line with the Government’s election commitments. The reforms will include the following: •

Expanding the disposition options available to the judiciary so that community-based orders are available for people found unfit to stand trial;

•

Limiting the terms of custody orders to ensure they align with, and are no longer than, the likely sentence had the person been found guilty; and

•

Introducing procedural fairness provisions to provide for the rights to appear and review.

Family Violence The Hon Simone McGurk MLA has been appointed as WA’s first Minister for the Prevention of Family and Domestic Violence, and I have been working closely with her to improve the justice system’s response to victims of these crimes.

In 2014 the Law Reform Commission of WA released its final report into ‘Enhancing Laws Concerning Family and Domestic Violence’. The Government is reviewing the recommendations in that report that have not yet been implemented to consider ways of strengthening family and domestic violence legislation in WA, including improving ‘special witness’ protections to reduce the re-traumatisation of victims

giving evidence in court.

This is one of a number of policy initiatives that cut across Government and aim to promote a more nuanced understanding of the dynamics of family violence, while also holding perpetrators to account for their actions.

The Domestic Violence Orders (National Recognition) Act 2017 received Royal Assent on 8 November 2017 and permitted WA to join the national Council of Australian Governments scheme. The legislation will ensure automatic crossrecognition of domestic violence orders across State and Territory boundaries – a very good thing for victims moving or travelling interstate.

Technology-facilitated abuse Victimisation is ever-changing and the justice system must be capable of responding to such changes as and when they arise. A prime example of this is the rise of technology-facilitated abuse, which has unfortunately become increasingly common as technology pervades every aspect of our lives.

Technology-facilitated abuse, also commonly referred to as ‘revenge porn’, can occur when intimate photos or videos are created and distributed without the subject’s consent. The consequences can be devastating and, all too often, this is occurring within the context of family violence or abusive relationships.

The Government is committed to introducing laws which will criminalise the non-consensual distribution of intimate images. This will enable police to prosecute, and hold offenders to account, for this appalling behaviour.

Non-consensual distribution is already an offence in a number of other Australian jurisdictions, and it is important that WA law keeps up with technological change.

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15

reducing remand rates; and

Privacy legislation WA does not have an overarching legislative privacy regime. For this reason, consideration is being given to the need for, and form and content of, privacy legislation to govern the collection, storage, release and use of personal information in WA. Fine default A package of reforms is under consideration to equip the Fines Enforcement Registry with tools to better manage debtors at earlier stages of the fines enforcement process, so that the need to issue a warrant of commitment (imprisonment) would be less likely to arise.

These include: allowing the Registrar of the Fines Enforcement Registry greater flexibility to issue work and development orders in cases of hardship, and making it simpler for the judiciary to issue Work and Development Orders at the sentencing stage to offenders who would likely struggle to pay a fine.

Other options also being considered include: •

Legislative change to require a court to issue a warrant of commitment and only in limited circumstances;

•

Introduction of alternate fines enforcement mechanisms such as garnisheeing; and

•

Improved information gathering and sharing capabilities of the Fines Enforcement Registry.

I aim to introduce a consensual work and development regime into the fines enforcement process which will be similar to the enhanced Conditional Release Orders which I’ll mention shortly.

Custody notification service The Coronial enquiry into the death of Ms Dhu recommended the introduction of a custody notification service in WA. The recommendation is that the State Government give consideration to a statewide 24 hours per day, seven days per week custody notification service based on a model implemented in New South Wales. The NSW custody notification service requires police to contact the Aboriginal Legal Service if an Aboriginal or Torres Strait Islander person is detained.

The detainee is then provided with early legal advice and welfare assistance.

The objectives of the CNS are: •

To reduce the risk of preventable deaths in custody;

•

To increase police bail rates thereby

16 | BRIEF JUNE 2018

•

To reduce the number of defended hearings and thereby help to ensure a reduction in false confessions, court time, remand rates and length of jail time.

The Commonwealth Government offered the state $1.8 million over three years for such a CNS service. This offer was rejected by the previous Government, but discussions have been recommenced with the Commonwealth regarding access to this funding.

The WA Government is committed to establishing a Custody Notification Service in WA before the end of 2018.

Conditional Release Orders (CROs) The Sentencing Legislation Amendment Act 2016 introduced changes to CROs with the aim to provide courts with a genuine alternative sentencing option to a fine; allowing a court to require an offender participate in educational, vocational or personal development programs, unpaid work or activity approved by the Director General of the Department of Justice.

To support the new CRO scheme, which is yet to become operational, the Department of Justice is working to expand the range of personal development programs. The Department is in the process of connecting with local communities and identifying suitable programs and the scheme will be trialled in the next 6 months.

Criminal Code Infringement Notices (CCINs) The WA Ombudsman recently conducted a review of CCINs. The Department of Justice is considering the findings of the report.

Currently, CCINs can only be issued for two offences: disorderly conduct and stealing under the value of $500. The Ombudsman found many benefits to CCINS, and recommended that the range of offences to which CCINS applies be expanded.

The Department of Justice, in consultation with WA Police, has already undertaken work to identify potential offences to be included within the CCINs scheme.

The Department of Justice is also giving consideration to improvements to ensure the scheme is appropriate for Aboriginal people.

Corruption and Crime Commission (CCC) The Corruption, Crime and Misconduct and Criminal Property Confiscation

Amendment Bill 2017, which is at the stage of Second Reading within the Legislative Council, seeks to equip the CCC with powers to fight organised crime in this state; gaining functions to investigate and to initiate and conduct civil confiscation proceedings relating to unexplained wealth and criminal benefits, and to seek court orders freezing assets. These powers will complement the powers of the Director of Public Prosecutions.

The Corruption, Crime and Misconduct Amendment Bill 2017, which was referred to the Procedure and Privileges Committee on the 20 March 2018, seeks to restore the power and jurisdiction of authorities, in particular the CCC, over misconduct by members of Parliament that could constitute a breach of the Criminal Code. It is argued that an amendment by the Liberal Government in 2014 removed the CCC’s jurisdiction in these matters; with the effect that relevant misconduct covered by the Parliamentary Privileges Act 1891, is exclusively determinable by a House of Parliament.

Financial Transaction Reports Act The Financial Transaction Reports Amendment Bill 2018 was introduced into Legislative Assembly on 20 February 2018. It proposes to amend the Financial Transaction Reports Act 1995 to enable WA Police to access information and documents reported under the Commonwealth’s Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

The proposed reforms will support enhanced WA Police capability to target money laundering and associated crimes committed in WA. In particular, it will improve WA Police effectiveness in restricting and disrupting the illicit drug trade.

Closing As you can see, the McGowan Labor Government has made considerable progress toward implementing its commitment to reform of the justice system and other initiatives. I look forward to continuing work on these important reforms for WA. It has been a pleasure talking to you today. The Law Society’s calendar of events is always of a high quality. I wish you all the best and encourage you to attend as many sessions as you can.

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Araya v Nevsun Resources and Law Reform

By Shaeron Yapp, Manager Strategic Policy and Business, Walk Free Foundation

Araya v Nevsun Resources1 is a groundbreaking slavery case before the Canadian courts. It is the first international trial against a corporation on grounds of modern slavery within its supply chains.

The questions raised by the case – should, and can, corporations be held responsible for crimes of modern slavery carried out by suppliers? should, and can, victims of modern slavery sue the parent company in international courts?

– could have important ramifications for global companies operating in emerging markets.

The facts and the legal issues raised in this case were described as “exceptional” by legal counsel instructed2 and a decision in this case will be crucially important for civil society groups, lawyers, corporate advisors, financiers and investors globally.

The Exceptional Facts In 2014, three Eritrean workers filed a lawsuit against a mining company in the Supreme Court of Canada. The plaintiffs are currently refugees living in Ethiopia.

Simply put, the plaintiffs allege Nevsun Resources, a Canadian resources company, was complicit and profited from crimes of modern slavery, using forced labour to build the Bisha Mine in Eritrea. Six further claims have been filed against Nevsun on behalf of 59 additional plaintiffs on the same basis.

Eritrea, is a small and secretive state.3 It became an independent nation in 1993, after a long war with Ethiopia. Instability, chronic drought, violence and civil unrest continue despite two decades of independence. Eritrea is strategically placed in the Horn of Africa and is a resource-rich country with copper, gold, silver and zinc reserves. With a government actively looking for foreign investment, it is on the cusp of economic development.4 18 | BRIEF JUNE 2018

The Eritrean Government has a “national service program”, which requires six months of military training, and 12 months of service to the Government. Reports by the International Labor Organization have found that conscripts have been forced to construct infrastructure and other projects for economic development to further the interests of the State, far beyond this stated period.5 With an estimated four million victims of state imposed forced labour globally,6 Eritrea has one of the poorest track records for state imposed forced labour. The Global Slavery Index 2016 ranked Eritrea within the three worst performing countries in the world for its government response to modern slavery.7 This is the backdrop against which Nevsun began its investment in Eritrea.

Nevsun Investment Nevsun was the first foreign company to develop a mine in Eritrea. It holds a 60% shareholder interest in the project, with the remaining shareholding in the venture held by the Eritrean Government.

In 2008, Nevsun contracted the Eritrean Government to build the mine and infrastructure, which involved the recruitment of local Eritrean workers.

Nevsun currently has a market cap close to CA$900 million.8

The Claim The plaintiffs allege that they were conscripted by the Eritrean Government under the “national service programme” and forced to build the Bisha Mine in inhumane conditions, including forced labour, slavery, imprisonment, torture, cruel, inhuman or degrading treatment and crimes against humanity.

“The mine was like an open prison,” said one former security guard, speaking on condition of anonymity to protect family still in Eritrea. “They

can take you and do what they want with you. I was owned by them. We were like objects for the government and for foreign companies to do with us what they wanted.” (The Guardian, 14 October 2016)9 The legal claim against Nevsun is under international customary law. The claim is not that Nevsun directly engaged in alleged breaches of human rights, but it was a complicit accessory – in other words aided, approved of, acquiesced in, condoned, or failed to prevent these crimes.

Aman said he finally escaped from the mine in 2014 and fled to Europe.

“I’m not surprised by the Eritrean government, as they already use conscripts as slave labour. It is accepted as normal,” he said. “But the Canadian company should know better.” (The Guardian, 14 October 2016)10 Nevsun has denied that forced labour was used to build the mine, due to screening procedures used to ensure no conscripts worked at the mine. And, even if forced labour was used, as a parent company, it was not responsible for employing those workers. Finally, on a legal technicality – the starting defence for Nevsun was that the plaintiffs had no legal standing to file a case in Canada, if there was to be a dispute, it should be tried and heard before the Eritrean courts.

The Legal Technicality – Which Court?

The Latin doctrine of forum non conveniens has historically been used as a procedural block to prevent human rights violations, including; slavery offences being brought against corporations. The doctrine allows Courts to dismiss a case on the basis that it should be heard in another, ‘more

appropriate' forum. Usually judges refer cases to be heard in the same jurisdiction, where the crimes have allegedly occurred, rather than another jurisdiction; for example, where the corporation is headquartered.

The plaintiffs argued that any case heard in Eritrea could never be a fair trial, as the local courts have no independence from the state whose very conduct was being deliberated.

Nevsun’s response was that the plaintiffs had no connection with Canada, and were unfairly “forum shopping”, creating inconvenience and undue expense of litigating in Canada (thousands of miles away from local witnesses and documents).

Yet in both the first instance trial and appeal decisions, the courts held that Canada was the most appropriate jurisdiction to hear the case, particularly given the allegations were of grave humanitarian concern, relating to jus cogens (fundamental principles of international law).

The judges commented it was in the public interest to let this case go to trial, irrespective of the complexities and legal technicalities.

The Next Appeal – Sovereignty The final appeal, before the court can proceed to hear the merits of the claim, is with the Canadian Supreme Court, the highest court in Canada. Nevsun lodged its appeal application on 19 January 2018.

This appeal is premised on two questions submitted to the Supreme Court.

The first is a Canadian court can make a judgment over the legality of the sovereign acts of a foreign state. Nevsun stressed the practical and political challenges of bringing such a claim against Eritrea, and asserts such fundamental principles of international law properly belongs to international courts, not Canadian domestic courts.

The second is whether Canadian common law can recognise for the first time, a cause action for damages based on customary international law norms. Nevsun contends this is out of step with international consensus, with unprecedented policy implications, which is already opening the floodgates of new litigation.11 This latest appeal means there may be a long wait ahead, before the case can proceed to hear merits of the claim – whether in fact the plaintiffs were victims of modern slavery and, whether the

defendant company was complicit.

Developing Trends Whilst the merits of the claim have not yet been heard, these decisions remain crucially important. It highlights an increasing appetite from the Canadian judiciary, and is arguably indicative of a global trend for foreign courts to exercise jurisdiction and hear cases of grave humanitarian concern in emerging markets where legal systems are still developing, fragile, or non-existent. No longer can directors and shareholders hide behind the ‘corporate veil.’

Similar US cases brought against Costco and Nestle under Californian supply chain transparency laws have also been brought by activist NGOs.12 Each have ultimately failed not only due to lack of evidence, but also because this is largely untested and developing law for corporates to be sued for complicity with slavery in supply chains. The legal bar is set very high, requiring evidence of blatant and deliberate criminal actions taken by corporate or business directors directly.

As the judges commented in the Nevsun Case, it is critical to allow cases that bring up difficult or important points of law to proceed. This will ensure that common law continues to evolve to meet the legal challenges of modern day society and, to grapple with crimes namely, modern day slavery.13

their commercial operations, both through their own activities and their supply relationships.15 Time will tell how the Nevsun case will be determined, and if other international courts will follow it its footsteps. What is clear, is that these developments in Canada are early warning signals. Prudent corporates, legal advisors and investors should pay close attention.

NOTES: 1

2

3

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5

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7

8

9

Outside of the courts, the trend continues towards greater accountability of corporates for human rights abuses. In a major development in January 2018, the Canadian Government announced the newly created independent watchdog, the Canadian Ombudsperson for Responsible Enterprise, to investigate the conduct of Canadian companies operating overseas. This watchdog is the first of its kind in the world. The Ombudsman will investigate complaints and make recommendations for remedies, focusing on sectors including mining, oil and gas and the garment sector.14 Canada is home to nearly 75% of the world’s mining companies.

10 11

Early Warning Signs

13

The Nevsun case is already having knock on effects for global corporates not only in mining, but across construction, engineering, technology and energy firms operating in newly emerging markets. Increasingly, stakeholders are already asking corporates to answer questions about the consequences of

12

14

15

Araya v Nevsun Resources Ltd 2017 BCCA 401, link to judgment: http://www.courts.gov.bc.ca/jdb-txt/ ca/17/04/2017BCCA0401.htm Paragraph 2, Reasons for Judgment of the Honourable Madam Justice Newbury: http://www.courts.gov. bc.ca/jdb-txt/ca/17/04/2017BCCA0401.htm.

“BBC News Eritrea Country Profile”, dated 30 October 2017, accessed 23/01/2018: http://www.bbc.com/ news/world-africa-13349078.

“UN Side Event, “Demystifying Eritrea: the Ground Reality, Mining and Human Rights”, Madaote, accessed: http://www.madote.com/2018/03/un-sideevent-demystifying-eritrea.html [26 March 2018] International Labour Organization 2016, Observation (CEACR) - adopted 2015, published 105th ILC session (2016). Available from: http://www.ilo.org/dyn/normlex/ en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ ID,P11110_COUNTRY_ID,P11110_COUNTRY_ NAME,P11110_COMMENT_YEAR:3256806,103282,Eri trea,2015. [28 April 2017] International Labour Organization, Forced Labour, Modern Slavery and Human Trafficking, available at: http://www.ilo.org/global/topics/forced-labour/lang-en/index.htm. [15 March 2018] Global Slavery Index 2016, Eritrea Country Report, available at: https://www.globalslaveryindex.org/ country/eritrea/ [15 March 2018] Company Report – “Nevsun Resources Ltd”, Simply Wall Street, available from: https://simplywall.st/stocks/ ca/materials/tsx-nsu/nevsun-resources-shares#info [26 March 2018] “Canadian firm faces new forced labour claims over Eritrean mine”, the Guardian Online, Karen McVeigh, Friday 14 October, accessed 23/01/2018: https://www. theguardian.com/global-development/2016/oct/14/ canadian-firm-nevsun-resources-new-forced-labourclaims-eritrea-bisha-mine As above.

E.g., Choc v. Hudbay Minerals Inc., 2013 ONSC 1414 (alleged human rights abuses in Guatemala); Garcia v. Tahoe Resources Inc., 2017 BCCA 39, leave to appeal to dismissed June 8, 2017, SCC File No. 37492 (alleged criminal conduct in Guatemala); Anvil Mining Ltd. c. Association canadienne contre l’impunité, 2012 QCCA 117 (alleged abuses committed by military in Congo); Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191 (alleged human rights abuses in Ecuador); Das v. George Weston Limited, 2017 ONSC 4129 (alleged liability for damage suffered in Bangladesh); Yassin c. Green Park International Inc., 2010 QCCA 1455 (claim for aiding and abetting alleged war crimes in Israel).

“Nestle faces new lawsuit in Californian court alleging use of fish sourced from Thai company using slave labour”, Business and Human Rights Resource Centre, accessed 23 January 2018: https://businesshumanrights.org/en/nestl%C3%A9-faces-new-lawsuitin-california-court-alleging-use-of-fish-sourced-fromthai-company-using-slave-labour. “Costco and CP Foods face lawsuit over alleged slavery in supply chain”, Felicity Lawrence, The Guardian Online, 20 August 2015, accessed 23/01/2018: https://www. theguardian.com/global-development/2015/aug/19/ costco-cp-foods-lawsuit-alleged-slavery-prawnsupply-chain.

Paragraph 83, Reasons for Judgment of the Honourable Madam Justice Newbury: http://www. courts.gov.bc.ca/jdb-txt/ca/17/04/2017BCCA0401. htm.

“New ombudsperson to investigate behaviour of Canadian companies abroad”, Levon Sevunts, Radio Canada International, 17 January 2018, accessed 23/01/2018: http://www.rcinet.ca/en/2018/01/17/newombudsperson-to-investigate-behaviour-of-canadiancompanies-abroad/.

“Australian Mining Company defends Eritrea at the UN”, Human Rights Law Centre, published on 14 March 2018, accessed : https://www.hrlc.org.au/ news/2018/3/13/australian-mining-company-defendseritrea-at-the-un-2 [26 March 2018]

19

Press for Progress: Gender Parity and the Legal Profession

By Hayley Cormann, President, The Law Society of Western Australia This article is adapted from a speech given at the University of Notre Dame to mark International Women’s Day on 8 March 2018.

International Women’s Day is an excellent occasion to meet, to reflect on our progress and to think about the challenges we still face in society and in our workplaces, arising from gender differences.

In 2018, we are asked to look at these issues through a theme; ‘Press for Progress’, a theme intended to act as a unifying call for action, for all to continue our work towards gender parity in our communities. Like many of my friends and colleagues, as a lawyer, a female and a mother, every day I live the challenges that come our way, arising from gender, and from the stereotypes that have become attached to it.

It is clear that in the legal profession, and across other sectors, we are regularly losing talented, senior women who drop out of the ranks for a number of reasons, as their career progresses.

Troublingly however, these problems exist even in the beginning; they do not simply develop down the line because, for example, a woman has children and more often than not becomes the primary carer.

There are in fact, deep-seated differences still perceived between genders in the workplace, and these stereotypes often arise long before this.

20 | BRIEF JUNE 2018

In workplaces around the country, women are at least as qualified as their male counterparts. And yet, problematically, the Workplace Gender Equality Agency tells us full-time average weekly ordinary earnings for women is still 15.3% less than those for men.

Worryingly, there remains a gap in the average undergraduate starting salary, with women already earning 1.8% less than men, increasing to 16.5% for postgraduate employees. There is no good reason for this discrepancy between genders at that level, or at any level.

But a contributor to this is the concept of unconscious bias. It is a cultural phenomenon that has developed over a long period of time, and means that, unknowingly, many people automatically associate male with ‘leader’ and female with ‘carer’ or ‘homemaker’. These longheld constructs are difficult to break down, but are why unconscious bias training is so important, and is increasingly available and encouraged in our community.

Aside from the gender bias factor, why else is this happening? And in particular, why are we losing talented women from the workforce?

In many cases, it is because this stuff is hard – combining domestic and family responsibilities and paid employment outside the home often seem incompatible. And in Australia still, by and

large, it is women who take an enormous domestic and extra-curricular load outside their workplaces, often over and above their male counterparts.

In my own case, the load outside my office alone is all-consuming. It can be torturous, involves chronic sleep deprivation, and is often lonely. At this stage in my life, those commitments come in the form of a couple of small children. With them, both immediately and gradually, came an enormous amount of additional work outside the workplace. Both commenced with near debilitating morning sickness for nine months each, followed by the interesting and delightful trauma that was childbirth, round-the-clock awakenings, unsettled nights, breastfeeding, and developmental phase after developmental phase that comes with young children.

But then came the unavoidable craving, just a few months into maternity leave, for a return to the workplace. In this profession, this came in the form of donning a suit and returning to the office, pretending to be completely unchanged and unaffected. Returning to solve complicated legal problems for sophisticated clients, with sharp and often unforgiving counsel on the other

side of the bar table.

there has to be a way forward.

This period for me has as a result, been, and remains often, almost unbearable.

And yet, this is sometimes what is asked of us. There is a beautiful quote doing the rounds on the internet again recently, from award-winning Australian journalist Annabel Crabb. Women in their careers are kicking more goals than ever before, but as Annabel so beautifully articulates:

As mothers, we are constantly reminded of our commitments, by society, by its stereotypes and most of all, by our own children. And, with a now schoolaged child, I often feel even the school is against the mothers, making it as difficult as possible for us to have a life other than one with our fulltime attention on the school year! Add sickness doing the rounds over and over in the household; sleepless nights; immunisation appointments; meals; you name it, the challenges are endless and seem deliberately set up to make us fail.

The obligation that evolves for working mothers, in particular, is a very precise one; the feeling that one ought to work as if one did not have children, while raising one’s children as if one did not have a job.

I think Annabel, by and large, has it right; in today’s society, and in her assessment of the expectations that women feel on themselves.

But it is time to push back. It is time to embrace those competing commitments in our lives, to most certainly not apologise for them nor consider them mutually exclusive commitments. And for us now, more than ever, it is time to live in the moment.

Despite the continuing demands on our time, which I blame largely on the overuse and abuse of email, I am determined,

This is hard. Every day is a challenge. But this challenge is necessary. For me above all else, it is necessary for my daughters, who are lucky to have two parents completely committed to them, but who both also have roles outside the home.

In their futures, if that is what my children choose, they need to know they have that choice, and are free to follow it.

Being female in the 21st Century must, above all else, involve our own freedom to choose. And I like to think that in 20 years’ time, the choices, and the commitments our children make, won’t be as difficult as they have been in previous generations.

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21

This is because if I were to have a son, the same needs to be said for him. I would like him to have choices. To pursue career goals and make a contribution to society outside the home, or to be home to raise his children. Or, increasingly, to share the challenges and rewards of doing both, and where possible, share it with someone he loves. Available to him, I would like to think there will be a society and a workplace that embraces his choices, and does not punish or sideline him for them, just the same as it does not for women.

And I think, more and more, it no longer does for women. In the workplace, our choices to have a family are now embraced and supported. But the risk with this is that we leave the men behind in these roles; because women end up down a path of still having to do it all; take on more and more work outside the home; kicking career goals so to speak, and yet, remaining the primary carer and household manager.

At this stage in my life, this is how it still works in my household. And, as the mother, it is true it has been a natural phenomenon. Pregnancy and childbirth are gifts to women, and naturally, those months before birth, and traditionally immediately post-birth are reserved for mothers and cannot be delegated. But over time, the expectation surrounding the role of fathers in those early days of a child’s life, and certainly as those children grow, is expanding, and becoming more commonplace.

We have dads in delivery rooms where they were historically not welcome. Dads getting up at night to attend to the kids, and dads changing nappies around the clock. Dads doing school drop-offs and staying home with sick children.

In my case, and for my household to run smoothly, there are people employed with jobs, and responsibilities, and they even have key performance indicators!

Success depends on many factors. In my case, I am very lucky, because we can outsource a lot. This is a financial decision, and a financial freedom, that we have because of the education both my spouse and I were fortunate to get, and the kind of work opportunities available as a result.

There are many jobs, sectors and industries where that is not possible. For financial or for other reasons, a person might remain full time at home in a domestic or caring role. But the key being that this must not result in discrimination, or judgment, in sidelining or shunning the person from the community or workplace.

Nor should that decision any longer be a

22 | BRIEF JUNE 2018

question of a person’s gender. It is simply a need, or a decision, of the person and their family, that is to be respected and celebrated.

life over the last few years, it has been about hanging on; as simple as figuring out how to turn up to work at all during those periods, and to survive it.

In my case, and notwithstanding my ability to delegate and outsource, what I have found is that, particularly when the children are little, it still helps if one person in the house takes ultimate domestic and childcare managerial responsibility.

Someone to coordinate everything, and someone, dare I say it, to juggle all the balls.

In a career, there should be no race, there is no end point; each day is just that, putting one foot in front of the other today, and tomorrow will take care of itself.

In my household, that is presently me.

I do not apologise to anyone for that, and I embrace it. In fact, if truth be told, I relish it, and I would actually have trouble releasing it to anyone else. Is it because I am a woman? Not entirely. But nor does it matter. The reality is, it suited me as a 30 year old to take time out for pregnancy and childbirth. My spouse, not so. But we operate on the basis that his time will come, and his role as a dad will be even more important as our children grow.

For now, this means I aim to work my career around my family responsibilities and choices, rather than the other way around. I don’t want to miss too much at home, and so in the workplace, I take all opportunities available to make it work, and where I don’t immediately see the opportunity, or there isn’t one available, I ask for it.

After the birth of both of my children, my firm, Clayton Utz, assisted me to implement and alter as required, casual and flexible working arrangements, and overall has been incredibly supportive of my family and domestic commitments.

Flexible working practices are growing in availability and popularity. They empower employees to make their own decisions as to when and where they are most productive. It is an area where women can benefit greatly, but not just women.

From the top down, men and women in the workplace must work together to eliminate the perception that flexibility is incompatible with senior roles, and that it should only be available for women as primary carers.

There is no doubt, if I am to be honest, that my choice to significantly reduce my practice and hours came with downsides.

I have watched my peers progress more rapidly, I have not been in a position to pursue and earn promotions, I have said “no” to work, and to cases, so as not to over commit myself.

But I made a decision some time ago, that I am ok with that. We are not in competition with anyone other than ourselves. And for me, at this stage in my

As I said, being a woman in the 21st century should be about the choices we have, and I choose my path, and I own it.

As President of the Law Society in 2018, I am proud to say that diversity, inclusion and supporting women in the law are topics very much at the forefront of our activities.

We regularly host discussions on workplace gender equality initiatives being undertaken in the profession, as well as initiatives on diversity and inclusion in legal practice.

Earlier this year the Law Society was delighted to present some inspiring workplace diversity initiatives from WA firms that are helping to retain talented lawyers in the workplace. Libby Lyons, Director, Workplace Gender Equality Agency, joined us from Sydney with partners Margie Tannock (Squire Patton Boggs), Jake Howard (Norton Rose Fulbright), Elizabeth Macknay (Herbert Smith Freehills) and Leanne Nickels (DLA Piper). Law Society Councillor Catherine Fletcher chaired the highly engaging session.

At Law Summer School earlier this year, our members heard from Diane Smith-Gander, Non-Executive Director at Wesfarmers, who spoke about the economic imperative of gender equity. The Society remains committed to achieving better diversity in the profession, including as to gender.

What can we do to ‘Press for Progress’ and move towards gender parity?

In the community, and in your own workplaces, there is a huge untapped market of women with the skills and knowledge to make a valuable contribution to our economy, something that would, by extension, benefit all Australians.

Talk to your colleagues about their circumstances, and what is going on in their lives. We too often see talented women leave the workplace because they do not feel supported to balance competing demands and choices. Or, because the decision to commit as a primary carer, and still be fully engaged at work, can be too great. Or because while on leave and raising children, we can easily become disengaged and lose

the confidence we once took for granted at work.

Include and engage with both the men and the women around you; question where there is a lack of female participation, and figure out how it might be overcome.

Don’t think of flexibility in the workplace as an option only for women or mothers of young children. Embrace it where it is available, and enjoy the benefits across all aspects of your lives that can be achieved if you engage in the workplace in this way.

Above all else, support the men and women around you; those trying to change stereotypes for the better, those trying to combine some of the most challenging years in raising children with some semblance of a career. And finally, tackle those head on who do not yet understand the benefits available through achieving true gender parity.

The climate is very much right at this time for broad change to take hold, and I think that now is the time to unite our communities in the push for gender parity, and to work together to make our daily challenges bearable.

Advancement of Women in the Legal Profession In August 2016, the Law Society delivered a Directions Paper in response to the Women Lawyers of Western Australia 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Review.

The Directions Paper identifies opportunities for the Law Society to undertake and progress initiatives that support the advancement of women in the legal profession.

Since the release of the Directions Paper, the Law Society has: • investigated setting voluntary gender targets and consulted firms on their views about gender targets • promoted resources relating to the Workplace Gender Equality Act 2012, flexible workplace arrangements, bullying and harassment • encouraged the State Government to adopt an equitable briefing policy for State agencies • successfully advocated for the amendment of the Supreme Court Consolidated Practice Directions to state that a part-time or flexible practice is not a bar to appointment as Senior Counsel • liaised with the Legal Practice Board of Western Australia to collate data on gender balance in the profession and retention issues • encouraged courts to accommodate practitioners with family responsibilities who are not able to appear in court outside normal court sitting times • hosted and promoted seminars on unconscious bias, diversity and inclusion • offered a mentoring programme to practitioners seeking career guidance

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Setting aside commercial arbitration awards for procedural unfairness under the Commercial Arbitration Act (2012) (WA)

By Nunzio Lucarelli QC, Barrister, Aickin Chambers, Melbourne

Introduction A party to a domestic commercial arbitration aggrieved by an award made against it, may apply to a court to have it set aside relying on one of the several grounds specified in s34 of the Commercial Arbitration Act 2012 (WA) (CAA).1 Two of the grounds in s34 have been considered in detail in several recent cases. The two grounds are that first, the aggrieved party was unable to present its case (the “unable to present its case” ground)2 and secondly, that the award is in conflict with the public policy of the state (the public policy ground).3 These two grounds are commonly referred to as the procedural fairness or natural justice grounds. They are often relied upon together by aggrieved parties in applications to set aside domestic commercial arbitration awards.

Section 34 of the CAA is based on Article 34 of the Model Law on International Commercial Arbitration of the United

24 | BRIEF JUNE 2018

Nations Commission on International Trade Law (Model Law).4 Article 34 of the Model Law is also reproduced in s34 of the International Arbitration Act 1975 (Cth) (IAA). It is well recognised that judicial consideration of Article 34 of the Model Law, as well as s34 of the IAA, is of relevance and importance to the interpretation and application of s34 of the CAA (and its mirror provisions in the equivalent Commercial Arbitration Acts of the other States and Territories). Judicial consideration of equivalent provisions in other countries (particularly in other common law based countries) is relevant and Australian courts should have due regard to them.5

The foundation stone of procedural fairness in commercial arbitration The foundation stone of procedural fairness or natural justice in domestic commercial arbitration is contained in s18 of the CAA. That section, which is based

on Article 18 of the Model Law, reads: “18. Equal treatment of parties The parties must be treated with equality and each party must be given a reasonable opportunity to present the party’s case.”

Section 18 of the CAA has been described as the “golden rule” of arbitration establishing the requirement that it be fair.6 It has also been said that s18 “… expresses a fundamental principle of all arbitration; that it has to be fair”.7 Section 18 of the CAA (as with Article 18 of the Model Law) “…is not an expression of a technical rule; it is the expression of a fundamental non-derogable requirement of fairness and equality”.8 The note to s18 of the CAA states that the section differs from the Model Law to the extent that it requires a party to be given a “reasonable” instead of “full”, opportunity of presenting its case. In Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd,9 Croft J stated that the

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words “reasonable” and “full” in s18 of the CAA, and in Article 18 of the Model Law, impose the same standard.10 That is, in this context, the word “full” in Article 18 imposes the same obligation as the word “reasonable” in s18 of the CAA to achieve the objective that a party be treated with equality in the conduct of the arbitration.

Principles of general application to the “unable to present its case” ground and the public policy ground The CAA, and the cases that deal with applications for setting aside on the “unable to present its case” ground or on the public policy ground, establish several principles of general application. It is useful to identify nine of those principles.

First, the aggrieved party making the application must ensure that it states, without delay, that there has been a failure to comply, in the arbitral process, with a procedural requirement, otherwise it may be taken to waive its right to object to the non-compliance.11 Therefore, it is incumbent upon a party to raise procedural breaches during the arbitral proceedings.

Second, an application to set aside may not be made after three months has elapsed from the date on which the party making the application received the award.12 Put simply, an aggrieved party should apply to set aside an award within three months of receiving it.

Third, the remedy of setting aside an award is not an appeal. As a result, the court will address itself to the process and will not examine “the substantive merits of the dispute, or… the correctness or otherwise of the award, whether concerning errors of fact or law”.13 In this way, the courts are only concerned with the structural integrity of the arbitration proceedings.14 Fourth, the moving party must show “that real unfairness and real practical injustice”15 has been suffered by it from the way the arbitration was conducted. Put another way, the cases emphasise that any breaches of the rules of procedural fairness or natural justice relied upon must lead to “real unfairness and real practical injustice”.16 How unfairness manifests in any particular case depends on the circumstances.17 26 | BRIEF JUNE 2018

Fifth, the setting aside mechanism does not give rise to a right of recourse simply because the arbitrator made an error of law or fact.18 Sixth, the courts have adopted a policy of minimal curial intervention as to arbitration proceedings. As a result, the courts will not interfere in the merits of an arbitral award so as to give the aggrieved party a “second chance to canvass the merits of their… case”.19 That is, the courts will not set aside an award if the aggrieved party’s real purpose is to redress strategic decisions made by it in the conduct of the arbitration.20 Seventh, for the purposes of the “unable to present its case” ground, the moving party bears the onus of establishing the basis for that relief. This arises from the opening words of s34(2)(a) which state that the party making the application is to furnish proof of the matters relied upon.

Eighth, even if an aggrieved party establishes a lack of procedural fairness or a breach of natural justice in the conduct of the arbitration, the words “may be set aside by the court” in s34(2) (a)(ii) confer a discretion on the court.

That discretion “…must be exercised in accordance with the purposes and policy of the Arbitration Act”.21 For the discretion in s34(2) to be exercised in favour of the applicant, “…real unfairness or real practical injustice will need to be demonstrated.”22 Ninth, it is likely that an applicant, relying on the public policy ground to set aside an award, also bears the onus of establishing the basis for the court to set aside the award. This arises as the applicant for relief would need to persuade the court to find the award is in conflict with the relevant public policy.23

The “unable to present its case” ground To succeed in an application to set aside an award relying on the “unable to present its case” ground, the aggrieved party needs to show either that: a. it was not treated with equality; or b. it was not given a reasonable opportunity to present its case.

Party not treated with equality The treatment of parties to an arbitration with equality (as required by s18 of the CAA) potentially extends to a number of facets of the arbitration. These facets include: giving the parties an

opportunity to address the issues arising in the arbitration and an opportunity to present lay and expert evidence (oral and documentary). If the tribunal does not afford the parties to the arbitration comparable opportunities as to these facets, then the award may be set aside or annulled.24 Equal treatment in this context does not mean “precisely identical treatment” particularly as arbitral tribunals are “… afforded considerable discretion in their procedural decisions.”25 Equal treatment does not mean that the tribunal must not choose between the evidence and legal arguments presented by the adversaries in the arbitration. That, in fact, is the very task that the tribunal must perform in arriving at its decision and discharging its obligations under the arbitration agreement. A surprise decision by an arbitral tribunal or the demonstration of procedural prejudice may be (but is not necessarily) sufficient to establish that an aggrieved party has been treated unfairly.26 Reasonable opportunity to present its case Denying a party to an arbitration a reasonable opportunity to present its case may constitute a breach of the rules

of procedural fairness or natural justice that may warrant the court exercising its power to set aside an award.

For a party to be given a reasonable opportunity of presenting its case does not require it to be given every opportunity of doing so. In Re Coldham & Ors; Ex Parte Municipal Officers Association27, Gaudron J stated that:28 “[P]rocedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled”.

In Equitable Funds Management Ltd (In Liq) v Heinze & Anor29 Mullins J stated that the opportunity to present a party’s case constitutes: 30 “[A] fundamental right of a party to an arbitration to have a right to be present at any hearing and a reasonable opportunity to put forward the party’s own case to the arbitrator, both as to argument and to evidence…”.

In Dongwoo Mann + Hummel Co Ltd v Mann + Hummel GmbH31 the court considered Article 34(2) of the Model Law

(upon which s34(2) of the CAA is based).

In that case, Chan Seng Onn J stated that:32 “Whether a party was or was not able to present its case at the arbitration is very much a question of fact and degree, and it necessarily focuses on the overall conduct of the proceedings with particular attention paid to the conduct of the tribunal and the parties themselves.”

Several recent Australian decisions have examined the ambit of the “unable to present its case” ground. These decisions provide guidance as to the types of matters that may or may not constitute an adequate basis for setting aside an award relying on that ground.

Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd33 (Amasya Enterprises) In Amasya Enterprises the parties entered into a building contract for the construction of a meat processing plant. Atsa was the builder. Disputes arose during the construction works.

Both parties purported to terminate the contract.34 In accordance with the terms

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of the building contract, the parties submitted their claims to arbitration. An arbitration hearing was conducted over several days during which oral evidence was called and tested and documents were tendered. After the hearing the parties exchanged lengthy written submissions including written reply submissions. A final oral hearing was conducted following the exchange of the written reply submissions.35 The arbitrator found that neither Amasya or Atsa were entitled to terminate the building contract.

He found, instead, that the contract had been mutually abandoned and that as a result Atsa was entitled to recover, on a quantum meruit basis, for the work it had performed.36 Amasya applied to set aside the award on the “unable to present its case” ground and the public policy ground. In the alternative, Amasya sought to oppose the enforcement of the award by Atsa relying on ss36(1)(a)(i) and (b)(ii) of the CAA.37 Amasya argued that it had been denied any opportunity to present its case in the arbitration as to quantum meruit. It argued that the quantum meruit award was something the arbitrator himself arrived at as a result of going “off on a frolic of his own”. It also argued that quantum meruit had not been pleaded, opened or developed in argument in the arbitration.

Croft J rejected Amasya’s arguments and held that the quantum meruit claim had been raised by Atsa in its reply submissions. His Honour held that the reference (however brief) in Atsa’s written reply submissions was “enough to raise the issue” so as to give Amasya 28 | BRIEF JUNE 2018

an opportunity to present its case at the time of the closing submissions before the arbitrator.38 That is, His Honour held that as the issue had been raised in Atsa’s reply submissions, Amasya had an opportunity to address and to argue that an award, on a quantum meruit basis, should not be made.39 Amasya also argued that the reference, in Atsa’s reply submissions, to abandonment and quantum meruit was “incoherent” and a “throwaway line” and raised an argument not open as a matter of principle.40 Croft J was of the view that it was not necessary to make a finding as to these matters as even if they were correct, it did not mean that they were not raised in the arbitration.

His Honour held that Amsaya had chosen not to pursue the abandonment of contract/quantum meruit point that had been raised (albeit briefly) by Atsa in one paragraph of its written reply submissions.41 In this respect, His Honour held that the arbitrator was not required to warn or communicate with the parties as to the findings he proposed to make as to the abandonment of contract or as to quantum meruit.42

Mango Boulevard Pty Ltd v Mio Art Pty Ltd43 (Mango Boulevard) In Mango Boulevard, the appellant and the respondent were parties to a joint venture for the development of property pursuant to various agreements including a Share Sale Agreement (SSA). Pursuant to the SSA, the respondents agreed to sell half of their shares in the joint

venture vehicle which owned the relevant property. The price of the shares was to be fixed by a stipulated formula in the SSA. The value of the property was a factor in calculating the price of the shares. That price would be more if the value of the property was higher. The SSA provided that, if the parties could not agree on the value of the property, it was to be determined by arbitration. The SSA required the arbitrator to follow the formula in clause 4 of that agreement in determining the value of the property.

In valuing the property, the arbitrator found that “competent and prudent or rational developers would not buy such a Property [being the property the subject of the arbitration] unless they reasonably believed that they could make a profit of 30% to 45% on all costs (inclusive of the actual purchase price of it)”.44 The appellant asserted that this approach had not been pleaded or argued by the respondent and that the arbitrator did not raise with it the approach or possible approach he may adopt.

The appellant in Mango Boulevard applied to set aside parts of the award. It did so relying on the “unable to present its case” ground and the public policy ground. In substance, the appellant argued that the arbitrator had failed to accord procedural fairness or had acted in breach of the rules of natural justice. The appellant asserted that the approach taken by the arbitrator had not been pleaded, and was not raised with the appellant’s key valuation expert or its other expert witnesses. It was accepted by the parties that the arbitrator’s approach had not

been pleaded and was considered by the arbitrator (alone) to be apt.45 The appellant failed at first instance46 and appealed.

In the Court of Appeal, McMurdo JA (with whom Fraser JA agreed) accepted the trial judge’s analysis that procedural fairness is not an express ground for setting aside an arbitral award under s34 of the CAA but it is a factor that: “[M]ay engage the ground that a party was unable to fairly present their case or (sic) the ground that an award is in conflict with the public policy of the State.”47 Relevantly, McMurdo JA also accepted that the grounds in s34 of the CAA are not satisfied by a “…failure to accord procedural fairness or any breach of the rules of natural justice as applied in other fields of discourse of law”. Rather, the context is whether a ground, such as that in s18 of the CAA applies.48 In Mango Boulevard, the Court of Appeal dismissed the appeal as: a. the arbitrator clearly raised, during final addresses, the possibility of the approach he ultimately adopted as to the valuation49; b. the possibility of the arbitrator’s approach was also raised at later hearings and in a list of issues prepared by the appellant; c. the arbitrator’s possible approach was able to be addressed by submissions which were made some weeks after the approach was first raised by the arbitrator; and d. the appellant made oral submissions on the approach to the arbitrator.50 McMurdo JA, in Mango Boulevard, held that the appellant: “…well understood what the arbitrator had in mind. Yet the

appellant did not attempt to lead further evidence and, in particular, to recall any of those witnesses…it was not denied the opportunity to do so.”51

Hui v Esposito Holdings Pty Ltd52 (Hui’s case) Hui’s case concerned an international commercial arbitration. The applicant in the arbitration (Esposito) applied to have various preliminary issues determined. Those issues concerned whether the arbitration respondents owed to the arbitration applicant various amounts under a share sale agreement.

The arbitrator agreed to determine the preliminary issues and stated (in setting them down for hearing) that the hearing would not deal with set-off defences or other defences that might be available to the arbitration respondents as to those issues. Esposito acquiesced in, if not encouraged, the approach to the preliminary hearing articulated by the arbitrator.53 Esposito and Mr Hui, one of the arbitration respondents, appeared at the hearing of the preliminary issues. The remaining arbitration respondents did not appear at that preliminary hearing as they believed that defences and set-offs, as to the identified issues, would not be dealt with as part of that hearing.

During the hearing of the preliminary issues, the arbitrator suggested that potential set-off defences and other defences, in connection with the issues before him, should be dealt with. In its initial submissions as to the preliminary issues, Esposito had not agitated for the determination of the potential setoff defences and other defences. Once raised by the arbitrator during the hearing of the preliminary issues, Esposito encouraged the arbitrator to deal with the

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potential defences and set-offs. Esposito made submissions as to some of the defences and set-offs for the first time in its closing address at the hearing of the preliminary issues. The arbitrator made findings as to the preliminary issues as part of a partial award. In doing so, he also made findings as to the availability of set-off and other defences as to those issues.

Upon becoming aware that the arbitrator’s partial award as to the preliminary issues included determinations as to potential defences and set-offs to these claims, Mr Hui applied to the arbitrator for him to modify his partial award and to disqualify himself.

Mr Hui’s application, for modification of the partial award, sought the removal of findings as to the set-off and other defences on the grounds that he had not been afforded procedural fairness and that there had been a breach of the rules of natural justice. The other arbitration respondents supported Mr Hui’s application. The arbitrator rejected Mr Hui’s application. The arbitrator took the view that the arbitration respondents, as reasonable litigants, would have foreseen the possibility of the tribunal determining the set-off and other defences and that therefore there was no breach of procedural fairness.

Mr Hui and the other arbitration respondents applied to the Federal Court to have the partial award, as to the preliminary issues, set aside and to have the arbitrator removed for bias. The application to set aside the partial award was based on the assertion that the arbitrator had exceeded his jurisdiction and had failed to accord procedural fairness to the arbitration respondents concerning the availability of several setoff defences and other defences following the preliminary hearing.

In Hui’s case, Beach J held that:

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29

a. the problems arising in the case had been partly caused by the strategic choices made by Esposito and agreed to by the arbitrator in determining preliminary issues where the issues between the parties had not been crystallised;54 b. contrary to the arbitrator’s finding, it was not reasonably foreseeable by the arbitration respondents that the arbitrator would determine the set-off defences particularly as the arbitrator’s conduct at and before the preliminary hearing “reasonably induced the opposite belief”;55 c. the parties well understood that the arbitrator had determined that “the preliminary hearing would not concern the availability of setoff defences or their merits.”56 In particular, some of the arbitration respondents did not attend the preliminary hearing and could not have foreseen any exploration of the issues;57 d. the set-off defences and other defences, sought to be advanced by the arbitration respondents, were reasonably arguable58 and thereby “the applicants [had] lost a valuable opportunity;”59 and e. there had been an egregious breach of s34(2)(a)(ii).60 The court in Hui’s case confirmed the following principles of law applicable to the setting aside of awards relying on s34(2)(a)(ii) (i.e. the “unable to present its case” ground): a. an award must only be set aside if real unfairness or real practical injustice results,61 b. real unfairness or real practical injustice is established where there was a realistic, rather than fanciful, possibility that the award may not have been made or may have differed in a material respect in favour of the party said to have been denied the opportunity;62 c. the onus is on the party seeking to set aside the award to establish the relevant grounds and there is no reverse onus on the party seeking to uphold the award to establish that the failure to provide the opportunity would have made no difference;63 d. the relevant inquiry is whether a party had an opportunity to deal with an issue. In that context a party is entitled to both an affirmative and responsive opportunity to be heard.

This includes being given adequate and actual notice of any adverse 30 | BRIEF JUNE 2018

case;64 e. the opportunity afforded need only be reasonable and may be satisfied if the relevant issue is raised, even if only briefly;65 f.

the applicants were not seeking relief to protect themselves from their own failure of strategic choice;66

g. Articles 18, 32(2)(a)(ii) and 34(2)(b) (ii) have overlapping themes and a breach of Article 18 (of the Model Law or s 18 of the CAA) will ultimately establish the “unable to present its case” ground (in Article 34(2)(a)(ii)) although whether the court will grant a remedy depends on how egregious the breach was;67 h. the public policy ground (i.e. the ground in s34(2)(b)(ii)) must be construed narrowly such that “… any breach of the rules of natural justice must be egregious and must fundamentally offend principles of justice and fairness;”68 and i.

unfairness or practical injustice should be able to be “expressed shortly” and “demonstrated tolerably shortly”.69

Cameron Australasia Pty Ltd v AED Oil Ltd70 (Cameron’s case) In Cameron’s case a dispute arose as to whether Cameron Australasia Pty Ltd (Cameron) was liable to AED Oil Ltd (AED) for the costs of rectifying leaks to a gas

lift hub connector and production flowline hub connector in a well in the Timor Sea. AED alleged that the leaks were due to the negligence of Cameron. The dispute was submitted to arbitration. The Tribunal found that Cameron had breached its duty of care to AED and decided that Cameron was liable to pay damages and interest to AED. Cameron applied to set aside the award made by the Tribunal.

AED applied to enforce the award. In its application, Cameron relied on, among other things, the “unable to present its case” ground. The focus of Cameron’s application to set aside the award, relying on that ground, was a ruling made by the Tribunal, after the hearing had concluded, not to allow Cameron to re-open its case.

Cameron had sought to re-open so that it could withdraw the admission that it had made that it owed a duty of care to AED and to amend its defence and to present submissions that it did not owe a duty of care.

Cameron had admitted that it owed a duty of care to AED was based on the decision of the New South Wales Court of Appeal in The Owners – Strata Plan No6/288 v Brookfield Australia Investments Ltd (Brookfield decision).71 Cameron’s lawyers apprehended that the Brookfield decision applied to their situation and that therefore it should admit that it owed a duty of care to AED. Cameron proceeded in the arbitration on that basis and admitted that it owed AED the pleaded duty of care.

Based on Cameron’s admission that

it owed AED a duty of care, AED, on the first day of the arbitration hearing, abandoned its claim in contract against Cameron as nothing turned on whether the claim was in negligence or for the breach of an implied contractual term.

By the first day of the hearing of the arbitration, the High Court had granted special leave to appeal in the Brookfield decision. Cameron ran its case at the hearing before the Tribunal on the basis that it owed AED a duty of care. Cameron adopted that position knowing that the High Court had granted special leave to appeal in the Brookfield decision.

After the hearing before the Tribunal, the High Court overturned the Court of Appeal’s decision in Brookfield. Relying on the High Court’s decision, Cameron sought to re-open the arbitration to withdraw its admission and to deny that it owed a duty of care to AED. By the time that Cameron made its application, the Tribunal had not made its award.

Cameron submitted to the Tribunal that it would suffer substantial injustice if it were not permitted to put its case (i.e. that it did not owe a duty of care to AED) based on the law as stated by the High Court in overturning the Brookfield decision.

The Tribunal refused Cameron’s application for leave to re-open its case as to the limited issue of whether it owed AED a duty of care. AED submitted that the Tribunal ruling, in refusing Cameron leave to re-open, was discretionary and that there was no error in the exercise of the discretion.

In refusing Cameron’s application, on the “unable to present its case” ground Croft J stated:72 “Critically to the present proceedings, there is no basis for suggesting, let alone seriously submitting, that Cameron was denied a “full” or “reasonable” opportunity of

1958 Our Story Begins

presenting its case to the Tribunal in seeking to re-open the hearing other than in accordance with the requirements of ss8 and 34 of the Act or that, otherwise, there has been some failure to accord Cameron procedural fairness or natural justice.”

The public policy ground In TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd73 (TCL Air Conditioner) the Full Court of the Federal Court considered the public policy ground in s34(2)(b)(ii) of the IAA, which is in precisely the same terms as s34(2)(b)(ii) of the CAA. TCL and Castel were parties to an agreement for the exclusive distribution in Australia by Castel of air conditioning units manufactured by TCL in China.

Castel commenced an arbitration against TCL seeking damages based on the sale in Australia by TCL of air conditioners in breach of the exclusive distribution agreement.

An arbitration was conducted and the tribunal made an award in Castel’s favour.

The quantum of the award was based on an assessment of the financial impact of the importation of TCL air conditioning units upon Castel’s sales in Australia.74 TCL sought to set aside the award under Article 34 of the Model Law (i.e. s34 of the IAA). Castel sought to enforce the award under Article 35 of the Model Law. TCL resisted enforcement under Article 36 of the Model Law.75 TCL asserted that the arbitrators had failed to accord it procedural fairness amounting to a breach of the rules of natural justice and therefore the award was in conflict with, or contrary to, the public policy of Australia (relying on Article 34(2)(b)(ii) of the Model Law).76 TCL contended that it was “denied an opportunity to present evidence and argument”77 on findings

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relied on by the Tribunal to quantify the damages sustained by Castel as a result of TCL’s breach.78 In TCL Air Conditioner, the Full Court of the Federal Court held that TCL could not establish that it had suffered any real unfairness or real practical injustice.79 It also held that TCL was seeking to misuse the court’s function in connection with arbitration by “dressing up”80 complaints about the tribunal’s factual findings as an allegation as to “asserted procedural unfairness.”81 The Full Court held that the Tribunal’s calculation of damages was based on the proper evaluation of the available evidence and that TCL had “… received a scrupulously fair hearing in a hard fought commercial dispute”82 and it could not establish that the Tribunal’s findings were not based on evidence.

The Full Court concluded that “no rule of natural justice was breached”.83 The Full Court articulated several principles as to the phrase “public policy” in Articles 34 and 36 of the Model Law (i.e. in s34(2)(b)(ii) of CAA). The Full Court identified six key principles as to the meaning and application of the phrase “public policy” in s34(2)(b)(ii) of the CAA. First, the phrase “public policy” is: 84 “…understood to be limited to the fundamental principles of justice and morality conformable with, and suited to operation within, of the international nature of the subject matter – international commercial arbitration, a context very different from the review of public power in administrative law.”

Second, the review of international jurisprudence leads to the conclusion that “public policy” is “…limited to the fundamental principles of justice and morality of the state, while recognising the international dimension of the context.”85 Third, the expression “public policy” (in

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31

the context of art 34 of the Model Law, s34(2)(b) of the IAA and s34(2)(b) of the CAA) is to be given a narrow meaning.86 Fourth, a factual finding by a tribunal, without probative evidence, may constitute a breach of the rules of natural justice in the context of commercial arbitration. In this context, the Full Court said that:87 “This would be so when the fact was critical, was never the subject of attention by the parties to the dispute, and where the making of the finding occurred without the parties having an opportunity to deal with it”.

The Full Court hastened to add that it does not follow that a wrong factual conclusion lacking probative evidence (giving rise to legal error) should necessarily “…be characterised as a breach of the rules of natural justice…” in an arbitration context.88 Fifth, no award in an international arbitration “…should be set aside for being contrary to Australian public policy unless fundamental norms of justice and fairness are breached.”89 Sixth, it is essential that unfairness or practical injustice in an international commercial arbitration, should, if it exists, “…be able to be expressed shortly and likewise, demonstrated tolerably shortly.”90

awards, on the “unable to present its case” ground or the public policy ground, are to be strictly applied and that those grounds do not permit relief where an aggrieved party seeks to correct strategic decisions it made in the conduct of the arbitration.

The cases emphasise that the failure to plead an issue in the arbitration does not prevent the arbitral tribunal from making a finding as to that issue. All that is necessary is that the aggrieved party is given an opportunity to address the issue. It is sufficient even if issues are raised for the first time in closing or reply submissions, for them to be the subject of findings by the arbitral tribunal provided that the aggrieved party had an opportunity to deal with them.

Despite the restrictive approach taken by the courts in the setting aside of domestic commercial arbitral awards, there are circumstances in which the “unable to present its case” ground and the public policy ground provide a basis for relief for an aggrieved party.

Recent court decisions have strongly reinforced the principle that lack of procedural fairness or the breach of the rules of natural justice per se do not entitle an aggrieved party to set aside an award. It is essential that the aggrieved party be able to demonstrate that it has suffered real unfairness or practical injustice as a result. Whether or not real unfairness exists depends on the circumstances of the case. The recent cases also emphasise that the setting aside of domestic commercial arbitral

32 | BRIEF JUNE 2018

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

Conclusion Domestic commercial arbitration awards may be set aside if of a party to the arbitration is not afforded procedural fairness or where there is a breach of the rules of natural justice in the conduct of the arbitration. The CAA imposes a strict three month time limit on the making of applications to set aside awards and an aggrieved party must be vigilant not to waive any complaint it may have as to lack of procedural fairness or breach of natural justice. Although the equal treatment of parties in an arbitration is a foundation stone of the arbitral process, that treatment is limited in its application.

19

3 4 5

6

7 8 9 10 11 12 13 14

15

16 17 18

The CAA is part of the harmonised legislative commercial domestic arbitration regime in Australia.

The CAA is substantially uniform with commercial arbitration Acts passed in each of the Australian States and Territories.

See s34(2)(a)(ii) of the CAA. This legislative ground is based on Article 34(2)(b)(a)(ii) of the Model Law on International Commercial Arbitration of the United Nation Commission on International Trade Law (Model Law). This legislative ground relies on the words “or was otherwise unable to present the party’s case” in s34(2)(a)(ii).

See section 34(2)(b)(ii) of the CAA. This ground is based on Article 34(2)(b)(ii) of the Model Law. See generally s1D of the CAA. It explains the role of the Model Law in the Act. TCL Air Conditioner (Zhongshan) v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 63 per Allsop CJ; Middleton and Foster JJ (TCL Air Conditioner). See also Aircraft Support Industries Pty Ltd v William Hare UAE LLC (2015) 298 FLR 183; [2015] NSWCA 229 at [59] per Bathurst CJ (Beazley P and Sackville AJA agreeing).

Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 326 (20 June 2016) at [27] per Croft J (Amasya); see also TCL Air conditioner (supra).

TCL Air Conditioner (supra) at [68].

Ibid at [87].

[2016] VSC 326 (20 June 2016).

Ibid at [28].

This requirement is expressed in s4 of the CAA. See s34(3) of the CAA. Pacific China Holdings Ltd v Grand Pacific Holdings Ltd [2012] HKCA 200 at [7] per Hon Tang V-P. Grand Pacific Holdings Ltd v China Holdings Ltd (in liq) (no. 1) [2012] 4 HKLRD at [7] per Tang V-P (with whom Kwan and Fok JJA agreed); cited with approval in Cameron Australasia Pty Ltd v AED Oil Ltd (Cameron’s case) [2015] VSC 163 at [20] per Croft J. TCL Air Conditioner at [111]; Sauber Motorsport AG v Giedo van der Garde BV (2015) 317 ALR 786; [2015] VSCA 37 (12 March 2015) at [8], per Whelan, Beach and Ferguson JJA; Hui v Esposito Holdings Pty Ltd (2017) 345 ALR 287; [2017] FCA 648 at [229(b)] per Beach J. TCL Air Conditioner at [111].

Ibid at [110]; see also Sauber Motorsport AG (supra) at [8].

Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2015] 1 SLR 114 at 134-5 [67] per Belinda Ang Saw Ean J, cited with approval in Cameron’s case at [23] per Croft J.

47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90

AKN v ALC [2015] SGCA 18, [37]-[39] per Meron CJ, cited with approval in Cameron’ case at [21] and [50] per Croft J; see also Grand Pacific Holdings Ltd v Pacific China Holdings Ltd (in liq) (No 1) [2012] HKLRD 1 at [7].

Hui’s case at [228] per Beach J. Gallaway Cook Allan v Carr [2013] 1 NZLR 826 at [66] per Harrison J. Section 1C of the CAA states that the paramount object of the Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.

TCL Air Conditioner at [153].

See the opening words of s34(2)(b) of the CAA. Born, GB International Commercial Arbitration, 2nd Ed, Volume III, Wolters Kluwer, at p 3233.

Id. Amasya (supra) at [50] per Croft J. (1988) 84 ALR 208 Ibid at p 220.

[2003] QSC 362 (13 October 2003).

At [79].

[2008] 3 SLR(R) 870.

At 892 [55]. Cited in Cameron Australasia at [23] Amasya Enterprises (supra).

At [6].

At [7] to [12].

At [13].

At [37].

At [68].

At [70].

At [71].

At [74].

At [76].

[2018] QCA 39 (20 March 2018).

At [21].

At [32] and [105].

Mango Boulevard Pty Ltd v Mio Art Pty Ltd & Ors [2017] QSC 87; 1 Qd R 245 (18 May 2017).

At [102].

Id At [106].

At [106].

At [108].

(2017) 345 ALR 287; [2017] FCA 648 (9 June 2017).

At [238].

At [7].

At [96].

At [126].

At [161].

At [180] and [195].

At [187].

At [229(a)].

At [183].

At [184].

At [185].

At [224].

At [225].

At [227].

At 229(a)].

At [229(b)].

At [229(c)].

[2015] VSC 163.

(2013) 85 NSWLR 479.

At [49].

(2014) 232 FCR 361; [2014] FCAFC 63.

At [4].

At [5].

At [6].

At [7].

At [33] – [41].

At [153].

At [53].

Id. Ibid at [167].

Id. Ibid at [74].

Ibid at [76].

Ibid at [77].

At [83].

Ibid at [83].

Ibid at [111].

Ibid at [113].

Don McLeod’s Unusual Quest

By Nicholas Hasluck AM, QC

A client’s quest for justice can sometimes take his lawyer to unexpected places in the social mix and whet the lawyer’s appetite for legal practice accordingly.

I was reminded of this while thumbing through some papers concerning one of my former clients, Don McLeod, a legendary figure in the annals of West Australian legal history. I will turn to the nature of his unusual quest in a moment but let me begin by describing my first encounter with the man in question – a time when I knew next to nothing about him.

In the early 1970s some well-known West Australian lawyers were persuaded to work full time for the fledgling Aboriginal Legal Service (or ALS) in the north of the state. John Toohey, Henry Wallwork and Peter Dowding each gave a year to the Service in return for a small salary and access to a house and car in Port Hedland. Each made a substantial contribution to changing the way the courts operated.

John Toohey was appointed to the High Court some years later and participated

in the famous Mabo decision. However, in the early 1970s, I knew him principally as my former tutor in Real Property at the UWA Law School and as a leading barrister to whom I had sent Briefs from time to time. On one occasion, while he was working with the ALS in Port Hedland, he had to hurry down to Perth on urgent business. At short notice, I agreed to spend a week or so up north filling in for him while he was away.

I had been to Marble Bar and Wyndham on mining cases but this was my first trip to Port Hedland. On the day after my arrival, while I was still getting used to the fine red dust that settled on everything inside the sparsely-furnished ALS office, a small, bearded, deeply-tanned fellow in khaki shorts and faded singlet appeared in the doorway. He quickly introduced himself: Don McLeod, from Strelley Station. He wanted me to represent a member of the Aboriginal community at Strelley (known as the ‘Nomads’ group) who had just been arrested for assaulting two women in the course of a fracas. The man was listed to appear before the local Magistrate.

I went to the lock up with Don McLeod and interviewed the alleged assailant, a well-built but taciturn Aboriginal man.

Getting to grips with his story wasn’t easy. A little later I drove out to the Strelley pastoral property with Don to gather some extra information. A guilty plea was entered in due course and with Don’s assistance from the witness box I made a lengthy plea in mitigation.

In the course of talking to Don over several days about the case and about matters troubling the Nomads group at Strelley, I found him easy to get along with. He was thoughtful, wellspoken and had a clear mind. He was never strident but quietly firm in his views. He disapproved of missions and bureaucrats and had a strong belief that the blackfellow should strive for legal and economic autonomy by running his own business enterprises. He always used the term ‘blackfellow’ or ‘blackfella’ and used it as a badge of honour.

It became clear from our various conversations, and from the reading and research I undertook upon returning

33

with support from the Seamens’ Union.

The strike showed a capacity to plan previously thought to be impossible by the white community. Throughout the Pilbara a large number of Aboriginal workers walked away from their work places, establishing a campsite outside Port Hedland.

Police moved in eventually, arresting dozens of Aboriginal men for leaving their employers without written permission.

They were locked in chains, as was McLeod, who was arrested for enticing people to strike. A public outcry led to their release. The outcry led also to certain of the graziers agreeing to pay improved wages to the stockmen.

After a year or more of uncertainty and industrial trouble, in the course of which McLeod’s links to the Communist Party were emphasised by the media, a number of the Aboriginal workers gradually returned to their former employment.

Others declined to do so. The dissident strikers finished up living either at the Twelve Mile camp on the coast near Port Hedland – sustaining themselves by traditional bush skills and selling pearl shell – or living at the inland camp of Moolyalla. There, under McLeod’s leadership, they were able to engage in alluvial mining. to Perth, that Don McLeod had been working on behalf of Aboriginal people in the Pilbara region for many years, especially for stockmen on the pastoral properties. He had acted as their spokesman and saw himself as a means of changing the uncomprehending habits of people in authority.

Don McLeod was born at Meekatharra in 1908. He left school at sixteen and quickly picked up the skills necessary for making his way in the outback, gaining experience in prospecting, well-sinking and as a bush mechanic. He became interested in anthropology and as the years went by began to sympathise with the plight of the indigenous people around him.

His concern was timely because the presence in the north west of Western Australia of large numbers of servicemen during the Second World War had begun to expose Aboriginal people to ideas and patterns of conduct which had seldom come their way under the established pastoral regime before the war – a severe, paternalistic regime in which it was normal for Aboriginal workers to receive no payment other than rations of food and clothing.

During the early years of the war McLeod was part of the racial mix of workers on

34 | BRIEF JUNE 2018

the Port Hedland wharf. Between ship arrivals he worked in the Nullagine district on water-boring jobs and befriended various Aboriginal groups. In 1942, unexpectedly, he was invited to an Aboriginal ‘law meeting’ held at Skull Springs, east of Nullagine, with over twenty language groups in attendance.

McLeod was the only European at the gathering having contracted to take a truck load of timber to the region so that his presence would not arouse the suspicion of local police. The meeting decided that a strike should be held in order to improve wages and working conditions, but subject to careful planning.

McLeod played an active role in planning the strike along with Aboriginal leaders such as Dooley Bin Bin, Clancy McKenna, Ernie Mitchell and Crow Yougarla. The planning was kept secret. Dooley was responsible for spreading work of the proposed strike by riding from station to station on an old bike, posing as a visiting relative. Clancy McKenna was of mixed descent. He was to represent the strikers of Marble Bar and the coastal region. He would meet with McLeod after dusk in the mangroves on the outskirts of the Twelve Mile camp to update him on the strike.

The historic strike began on 1 May 1946 at the start of the shearing season,

The Aboriginal, a local newspaper sympathetic to the strikers, provided this account of the situation in January 1954: About 800 natives stopped work, but their demands were met with a flat refusal by station owners. McLeod and several others were arrested. He was later sentenced to 3 months gaol for having been within 5 chains of a group of natives. But his appeal to the High Court was successful and he was released after serving only 1 day of the sentence in the Port Hedland gaol. He spent a total of 25 days in gaol during remands. The day after McLeod’s release, following the High Court decision, about 200 natives gathered in Port Hedland with the avowed intention of pulling down the gaol, but McLeod sent them away quietly.

In 1948 he and a few natives started a cooperative mining venture at Pilgarnoora.

They left this area but returned the next year to mine Wolfram when the price rose. The group grew larger and a company – Northern Development Mining – was formed in November 1951 to mine wolfram, scheelite and tantalitecolumbiteares. The group has acquired four pastoral stations totalling about 1,200 acres with headquarters at Yandeyarra Station 100 miles south west of Port Hedland … McLeod scorns suggestions that he is teaching the natives to be

communists and denies he is a boss, dictator or leader. He is their adviser and his suggestions are not carried out unless they are endorsed by native committees. His solution (for governance) is the formation of two companies each with about 12 shareholders, 4 of whom would come from the natives controlling committee …. Tantalite-columbite are two associated minerals of strategic value and are used in the manufacture of the world’s jet aircraft engines, surgical instruments, radio and television equipment.

The newspaper report presented a positive picture of McLeod’s activities, and it seems clear that his vision went beyond industrial action. He hoped to set up a series of mixed Aboriginal and white communities. Their possessions were to be shared on cooperative lines, closer to Aboriginal practice than what he saw as the exploitative methods pursued by pastoralists in a capitalist economy. It seemed that his ideals might meet with success when the Korean War underpinned the making of significant profits from the mining of wolfram and tantalite, profits that were invested in the purchase of five pastoral properties centred on Yandeyarra. However, as mineral prices declined, and disputes

arose with partners in the mining venture, the prospect of success receded.

much stricter and continued to control the Nomads’ finances.

By the end of 1954 the Aboriginal company was in voluntary liquidation.

Factions led by McLeod’s former allies, Ernie Mitchell and Peter Coppin, had grown disenchanted with McLeod’s leadership and had broken away.

McLeod’s supporters were based at Moolyella. A group under Mitchell’s leadership formed a company called Mugarinya and established another station at Yandeyarra. Later, under Peter Coppin’s leadership, they eventually secured a perpetual lease of the property.

McLeod’s disillusionment after the split is reflected in a letter dated 17 April 1958 written to the federal Minister for Territories. He spoke of watching developments in the Northern Territory with great interest and went on to complain of various matters in Western Australia: "Missions who will connive with the police or JPs who have deepseated prejudices." He said also: "Our experience shows that the West Australian government would rather have a servile broken blackfellow such as the missions turn out than one showing an independent self-reliant approach to life."

The bitterness of the split was evident in McLeod’s account of the Pilbara strike published some years later. He saw the split as being engineered by the Commissioner of Native Affairs, Stanley Middleton, and characterised the Yandeyarra reserve as ‘a gift for being good boys and conforming to the State’s required image of the docile blackfellow.’

On the other hand, according to Coppin’s biographer, Jolly Read, Yandeyarra was managed along different lines to McLeod’s rule. Coppin saw the need to make the station commercially viable. He allowed the Mugarinya people to come and go as they pleased, but McLeod was

In the early 1970s, with the support of the desert people remaining loyal to him, McLeod set up a company to acquire Strelley for the Nomads (sometimes known as ‘McLeod’s mob’). In the aftermath of the few days I had spent in Don’s company in Port Hedland, I provided some legal advice related to the running of the Strelley station and the acquiring of some other properties that were to be run in conjunction with Strelley. It was in this context that I was introduced to Don’s principal advisers, Ray Butler and Jack Williams. A school

Murdoch law students rank in world’s best a closely fought Quarter Final moot against the University of International Business and Economics from Beijing, China.

The student team was ranked seventh in the world at the Global Finals of the Foreign Direct Investment International Arbitration Moot held at Suffolk University Law School in Boston, United States.

Murdoch University’s Director of Mooting, Lorraine Finlay said the team’s performance was outstanding.

Murdoch University’s mooting team included Marché Bantum, Andrew Shinnick, Heather Costelloe and Joshua Scoles.

More than 100 teams from law schools around the world competed in this prestigious international event, which focused on issues of international commercial arbitration and investment law.

In the preliminary rounds the Murdoch team competed against teams from France, the United Kingdom, Malaysia and Brazil.

They went on to defeat the top-ranked team from the University of Ottawa before losing

“The FDI Moot is a prestigious international competition that involves some of the top law schools in the world,” Ms Finlay said.

“For our Murdoch team to do so well in the competition shows just how talented and hard working our students are. It also highlights the quality of our mooting program at Murdoch, which delivers world-class advocacy training to our students.

“All three Murdoch students who spoke in the oral rounds were ranked amongst the Top 50 Advocates in the world and congratulations particularly to Andrew Shinnick who was named in the top ten competitors.”

Andrew has represented Murdoch University in a number of moot competitions during his undergraduate degree, as well as coaching a number of Murdoch moot teams.

“The moot was one of my best experiences in the law school. The opportunity to display my skills on a global stage was truly inspiring,” he said.

The students’ success at this competition is a great reflection on the strength of the Murdoch mooting program and the many exciting opportunities available for our students.

Other National and International mooting competitions in which Murdoch Law School participates cover Constitutional Law, Contract Law, Public International Law, International Mediation & Arbitration, Space Law and Maritime Law. Interested in supporting Murdoch Law School’s mooting program? Contact our Mooting Coordinator, Michelle Barron in the Murdoch Law School: m.barron@murdoch.edu.au

For more information, please visit our website http://www.murdoch.edu.au/School-of-Law/

CRICOS Provider Code 00125J SCH663 05/18

Murdoch University law students have ranked among the best in the world after triumphing at a recent international moot competition.

murdoch.edu.au

35

independent of the state system was established on the property and funding was obtained from the federal government’s Disadvantaged Schools Commission. Both adults and children were to be educated with Aboriginals teaching their own language.

In the course of doing this legal work Don began talking to me about the so-called ‘Section 70 constitutional issue’ that had been close to his heart for many years.

Put shortly, when responsible government was conferred upon the State of Western Australia the rights of the Aborigines were protected by Section 70 of the Constitution Act 1889 which provided for the payment of 1% of the gross revenue of the State to the Aborigines Protection Board for Aboriginal welfare. This was thought to be an ‘entrenched’ provision but it was later purportedly repealed by the Aborigines Act of 1905. The question in Don’s mind was whether Section 70 had been validly repealed and whether, in any event, the Aboriginal people had obtained vested rights that survived the repeal.

I provided some preliminary observations in a letter to Don McLeod dated 13 May 1975 and in due course obtained an opinion on the matter from John Toohey.

The advice from Toohey was sympathetic but ultimately not encouraging so no legal proceedings were commenced at that time.

36 | BRIEF JUNE 2018

It seems that Don then sought a further opinion from John Macdonald QC at Lincoln’s Inn in London who was a widely-respected expert on colonial legal matters. I played no part in submitting the Brief to Macdonald and am not sure how exactly the obtaining of an opinion was achieved. The Macdonald Opinion is dated 15 July 1977 and it seems that Don may have gone to London at about that time in regard to this matter. Macdonald was of the view that governmental irregularities had occurred but concluded, with some regret, that "these breaches of duty are not ones that can be enforced by the courts."

McLeod and his supporters didn’t take the matter any further for the time being.

Moreover, it wasn’t long before they felt obliged to attend to a more immediate issue.

In 1979 the Noonkanbah Pastoral Company and Youngngora Community sought to restrain the Amax mining company from drilling for oil on their pastoral lease near Fitzroy Crossing. This became a highly controversial political issue. It came to a head when the Premier of the State, Sir Charles Court, sided with the drilling company and arranged for a police convoy to conduct the drilling team to the site in the face of opposition

by Aboriginal protesters who blocked the road. Over fifty people including Aboriginals, unionists, clergymen

and others were arrested during the confrontation.

At an early stage of this controversy Don McLeod approached me for some legal advice, again of an unusual kind. He had prepared a Proclamation denouncing the government, but was apprehensive that he and his supporters might be prosecuted for sedition. I briefed Ian Temby QC to give some further advice.

We hurried along to Temby’s chambers at 524 Hay Street, Perth, as matter of urgency. After a flurry of intense discussion Temby proposed some comparatively small amendments to Don’s draft, and the die was cast.

The Proclamation was eventually read aloud at Noonkanbah. A photo of Don McLeod reading the Proclamation appears in the final pages of his autobiography How The West Was Lost. It shows him, in shorts and singlet, surrounded by blackfellows from the Nomads group, looking exactly as he did when I first met him in Port Hedland: a bearded figure, small of stature, but calm and determined.

The Proclamation included passages to this effect: Before the coming of the whiteman, there was a Law for all men and all time … The people lived in a state of virtue and democracy under the Law, without recourse to kings, princes or police … Whereas in 1889 limited

sovereign powers were transferred to the state of Western Australia, this transference of power was subject to conditions pertaining to the maintenance of our welfare … The setting up of a department, and the placing of funds meant for the purpose of promoting our welfare in the hands of a government minister, was contrary to the terms and intent of the 1889 agreement and therefore we deem it unlawful … We, the Beneficial Owners of this land, stand prepared to negotiate with Federal authorities at all times … Nevertheless, with due consideration of the above history, we hereby resume our titles, rights and interests in this Land, our Estate, by raising our flag, firing a volley and reading this Proclamation.

The reading of the Proclamation didn’t lead to any arrests or prosecutions. In the end, no significant traces of oil were discovered at Noonkanbah and the well was abandoned in November 1980. The dispute is described in various works including Quentin Beresford’s biography of Rob Riley, a leading figure in the Aboriginal Legal Service at that time.

According to Riley’s biographer: "The post-Noonkanbah period was an intense and heightened era of Aboriginal politics.

Noonkanbah highlighted the failure of governments both federal and state to deal with Aboriginal aspirations, a situation which lasted until the 1992 High Court Mabo decision upholding native title. As a consequence, the Noonkanbah dispute energised both the Aboriginal Legal Service and the Kimberley Land Council, fostered the internationalisation of the Aboriginal cause, engaged the ALP at both state and federal levels and radicalised activists."

Soon after the Noonkanbah dispute I left my law firm, Keall Brinsden, to become a barrister. In that capacity, under instruction from another law firm, I gave

BWA-Ad264 200218.indd 2

some further advice to Don McLeod about the Section 70 constitutional issue, but no proceedings were commenced.

My appointment to the state Equal Opportunity Tribunal (as it then was) meant that I was no longer at liberty to act for Don and his supporters, and I ceased to do so.

Some years later, in 1993, by which time the Nomads group was being guided by other legal advisers, Aboriginal plaintiffs from Strelley Station, including Crow Yougarla (who had been with Don McLeod from the days of the pastoral workers strike), lodged a Writ in the Supreme Court of Western Australia seeking a declaration that the purported repeal of the provision for Aboriginal welfare in the Constitution Act of 1889 was invalid. The matter was vigorously contested by the State and finished up in the High Court of Australia eventually. It will now be useful to take a closer look at the issues in the case.

The section 70 protective clause in the Constitution Act had two important elements. It envisaged the continued existence of the Aborigines Protection Board – a body responsible to the Governor, not to the West Australian Parliament or to the Premier and his ministers. Further, there was to be an annual appropriation to the Board of one per cent of the State’s gross revenue. These funds would lie beyond parliamentary control so long as the protective clause remained in force.

Within a few years of the constitutional enactment Premier Forrest and his supporters began agitating for parliamentary control of native welfare.

After protracted negotiations with the British government the section 70 clause was purportedly repealed by the West Australian Aborigines Act 1897 on the grounds that it was inconsistent with the grant of responsible government to

Western Australia. It was then discovered that the 1897 Act had not been properly proclaimed. The colonial Parliament confirmed the repeal and the abolition of the Protection Board by passing the Aborigines Act 1905 (WA).

Yougarla and his fellow Aboriginal plaintiffs argued that the attempts to repeal section 70 by the statutes passed in 1897 and 1905 were invalid for failure to comply with certain ‘manner and form’ provisions of the Australian Constitutions Act of 1850.

The principal issue concerned the validity of the 1905 Act as the later of the two enactments. As to this issue counsel for the plaintiffs submitted that the Act which purported to repeal the one percent provision in section 70 failed to comply with the requirements laid down by section 32 of the 1850 Constitutions Act whereby certain Bills passed by the colonial legislature had to be tabled in both House of the Parliament at Westminster for a minimum of 30 days before being presented for Royal Assent.

On the plaintiffs’ case, this procedural failure meant that the 1905 Act was invalid.

Counsel for the State sought to strike out the statement of claim and argued also that Yougarla and his friends had no standing to bring the claim because the amount in question, if payable, were payable to the successor of the Aborigines Protection Board; that is, the plaintiffs themselves had no reasonable expectation of obtaining a financial or other material benefit from the litigation.

These and other technical issues went first to a single Judge of the Supreme Court, then to the Full Court, and ultimately to the High Court, where it was ruled that the plaintiffs were entitled to proceed.

The matter then went to trial before

20/2/18 11:09 am

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Justice Murray of the Supreme Court on the basis of a statement of agreed facts (with a bundle of supporting documents).

His Honour found that the Bill for the 1905 Act had not been tabled at Westminster as apparently required by the manner and form provisions relied upon by the plaintiffs. Eventually, however, he found against Yougarla and his fellow plaintiffs on the grounds that certain provisions of the Interpretation Act 1984 (WA) operated retrospectively and were sufficient to cure the deficiency.

Significantly, and consistently with the reasoning of some of the judges at the earlier procedural stage of the litigation, His Honour upheld the plaintiffs’ contention as to the principal issue; that is, the plea doggedly pursued by McLeod for so many years that there had been a failure to comply with the manner and form provisions. This did indeed cast doubt upon the validity of the 1905 Act. An appeal to the Full Court against the decision at first instance was dismissed, and the matter was, again, taken further to the High Court. In the end, however, the High Court upheld the State’s main contention that the manner and form provisions in question applied only to Bills providing for the vesting of legislative powers in a bicameral Western Australian parliament. Once such a step had been taken – as it was in the Constitution Act of 1889 which created two Houses of Parliament for the Colony – the manner and form requirements of section 32 were spent.

Put shortly, then, the final court of appeal held that there was no requirement that the later of the two Acts in doubt – the Aborigines Act 1905 – should be tabled before the Parliament at Westminster as argued on behalf of Yougarla. The manner and form requirements in question applied to constitutional provisions but not to a Bill concerning native welfare.

The repeal of section 70 by the 1905 Act was therefore valid and the special one per cent provision had ceased to apply.

The plaintiffs were represented throughout these complex proceedings

by Stephen Churches and the late Peter Johnston, led by David Bennett QC before the Full Court, and by David Jackson QC before the High Court. The State was represented by the Solicitor General Bob Meadows QC. Don McLeod’s quest to secure one per cent of the state’s revenue for the Aboriginal people was brought to an end by this decision. In the meantime, as his health began to fail, he had moved to Perth. Following his death in April 1999 he was buried at Strelley with the funeral 38 | BRIEF JUNE 2018

being attended by hundreds of people from around the region.

In addition to acquiring Strelley, the Nomads group, at the peak of its aspirations (pursuant to McLeod’s original vision) had also managed to acquire other nearby stations as the years went by. The acquisitions included Warralong, Carlindi, Lallarookh and Callawa. However, it appears from the Coppin biography mentioned earlier that: "Today, all but Warralong are abandoned."

Nonetheless, Don McLeod left behind a considerable record of achievement.

The 1946 strike, in which he played such an important role, was a landmark in the fight for Indigenous rights. His activities both then and in later years established that Aboriginal people had the potential to embark upon significant political and commercial enterprises.

Not surprisingly, the Pilbara strike and the role of those involved are reflected in Western Australian literature. Donald Stuart’s documentary novel Yandy provides a convincing account of how ‘McLeod’s mob’, opposed by police and pastoralists, ultimately secured improvements in the strikers’ conditions and won their rights to independence.

The book goes on to show how, after many trials and tribulations, the Aboriginal protagonists established their mining co-operative in the vicinity of Marble Bar and Port Hedland. A play by Jolly Read provides a dramatic version of the story.

In Windmill Country by Dorothy Hewett the poet included one of her best-known ballads: Clancy and Dooley and Don McLeod. The poem ends: Don McLeod beat at a mulga bush, / And a lot of queer things came out in a rush, / Like mangy dogs with their flattened tail, / They’ve sneaked him off to the Hedland jail. / But Clancy and Dooley and Don McLeod / walk by the wurlies where the wind is loud, / And their voice is new as the fresh sap running, / And we keep on fighting and we keep on coming.

The poet must have been clairvoyant, for they did keep on coming. Yougarla’s name appears in the reported decisions of the High Court: Yougarla v Western Australia (2001) HCA 47. In 2010 four streets in the Canberra suburb of Bonner were named after the strike leaders: Dooley Bin Bin Street, Peter Coppin Street, Clancy McKenna Crescent, and Don McLeod Lane. It was said of Don McLeod, in an obituary published in the Sydney Morning Herald, that "he was one of the first white Australians to take up the Aboriginal cause, a passion which consumed him until his death."

These reminiscences are included in the author’s recently-published book ‘Jigsaw: Patterns in Law and Literature’

by Nicholas Hasluck, Australian Scholarly Publishing, www.scholarly.info.

Young Lawyers Event Update An invigorated Young Lawyers Committee has kicked off the 2018 social calendar with Small Firms Network drinks, the annual Beach Volleyball tournament and Speed Networking, part of the Committee’s Inter-Profession Networking series of events.

The Small Firms Network is an initiative created by the Committee which gives young lawyers in small to medium sized firms the opportunity to socialise, share their experiences and forge relationships.

On a warm evening on Wednesday, 7 March 2018, the Committee hosted its Small Firms Network drinks at the Standard in Northbridge. We were joined by a number of friendly new faces and everyone enjoyed a relaxed evening getting to know one another. Details for the next Small Firms Network drinks will be released soon and if you’d like to be on the Network’s growing mailing list, email younglawyers@lawsocietywa.asn.au.

On Friday, 9 March 2018, the Committee hosted the popular annual Beach Volleyball Tournament at Sand Sports Australia in Nedlands. Ten teams participated in five rounds of beach volleyball with Steenhof Brothers challenging the reigning champions HopgoodGanim Lawyers in the grand final. Ultimately HopgoodGanim Lawyers retained its title in a hard won battle.

Congratulations to everyone who played for their effort, sportsmanship and banter and we look forward to seeing everyone back again next year.

On Thursday, 19 April 2018, the InterProfession Speed Networking event saw over 100 junior lawyers, accountants, bankers and other professionals come together for a networking event with a twist. Participants were given the challenge of approaching someone they had never met before and striking up a conversation. After four minutes a bell was sounded, signifying they were to find a new partner. In all, there were eight rotations, giving everyone the

opportunity to make at least eight new connections, with a view to strengthening connections with those they clicked with over drinks and canapés after the structured networking. Networking expert and Master of Ceremonies Anna Dartnell from Bis Industries effectively guided participants through the process.

Participants threw themselves into their task with gusto and the room was filled with chatter long after the formal networking process had ended. We thank our friends from our invited organisations PerthYP, ANZ Young Professionals Network and Young Engineers Australia WA, our sponsor Burgess Paluch Legal Recruitment and EY for providing the venue.

Keep an eye out for some exciting new Committee initiatives in 2018, including a network for “Later Lawyers” to help support and connect junior lawyers who may have come to the law later in life, and our new “Aunt Prudence Juris” advice column, for those hard to ask questions about life as a young lawyer.

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Aunt Prudence Juris Your one stop solution to problems after law school Ever wondered about how to recover from a faux pas at work, how to reject work-social invitations without becoming a pariah, or whether honesty can cost you your job? Life as a junior is filled with perils, but it’s not all doom and gloom! The YLC is starting a column to answer those beleaguered questions of yours or to hear your side of the story.

Dear Aunt Pru,

Dear LOST,

How do I approach someone to be my mentor?

Approaching somebody who you want to be your mentor is not much different to approaching that spunky young man or woman for their number. Expect these common symptoms: breathlessness, sweating and chronic procrastination. However, the good news is that the more times you do something like this, the easier and less awkward it gets. Also, don’t forget that most people in our profession would be flattered to be considered mentor-worthy – we aren’t particularly known for our modest egos, after all. Therefore, you should always begin with the presumption that a lawyer will be happy to mentor you, or at least answer your questions, providing that they have the time and the ability to do so.

Yours in mentorship, Looking for Oversight and Senior Training

That said, soliciting mentorship is a lot like popping the question; even if you know the answer is likely to be “yes”, it can still be a daunting experience mustering up the courage to ask. Make it easier on yourself by doing a little homework on the person. LinkedIn, profiles on company websites and good old Google are treasure troves of information. Find out about common interests or networks and don’t be afraid to draw on them. Importantly, when you meet the person for the first time, bring your business card if you do have one, or if you don’t, take theirs.

As the saying goes, no pain, no gain. And I assure you, there are worse things than not getting a response to your LinkedIn invitation.

No question is too big or small, and Auntie loves a nip of gossip!

So send your burning questions to Aunt Pru at http://freesuggestionbox.com/pub/iddzxds 40 | BRIEF JUNE 2018

NB: If you would like to share your personal thoughts and experiences on mentoring, write to us - we would love to hear from you! Publications will be anonymous unless indicated otherwise.

Hugs and kisses, Auntie

Tasmania, Cradle Mountain

Ex Juris: Travel Tales from the Legal Profession Tasmania

By Tom Camp, Solicitor, Mony De Kerloy Barristers and Solicitors

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

Stepping down the ramp onto the tarmac and taking my first breaths upon leaving the plane, I was immediately struck by the purity and sweetness of the Tasmanian air. Indeed, there is a wholesomeness in Autumnal Tasmania that is experienced in each breath.

My better half and I divided our Tasmanian trip into two distinct parts.

The first involved staying in a charming redeveloped coach house cottage which forms part of a historic bed and breakfast at a Victorian mansion near the heart of Hobart (I highly recommend you stay at Corinda if you can). From this cosy base, we were perfectly located to experience some of the finest Hobart had to offer.

From catching a comedy show in Australia's oldest working theatre, the Theatre Royal, to marvelling at the modern wonder that is MONA and its cultural treasures, and exploring the famous Salamanca Markets, I was struck

by Hobart's impressive history and its equally impressive present. Of course, there are also world class restaurants and bars which allow you to sample the culinary and liquid delights of Tasmania.

The next part of our trip began with a visit to the towering peak of Mount Wellington, which affords an incredible view of Hobart and surrounds. We then picked up our campervan and began the less comfortable but more immersive part of our journey, a five day round trip of as much of Tasmania as we could fit in. This included visiting the historical Port Arthur, which is full of mournful tales and unique beauty, climbing Mount Amos in the stunning Freycinet National Park, which provides a fantastic view of Wine Glass Bay and nearby opportunities to pick up fresh East Coast Oysters, and being struck by the charm of Launceston.

If you enjoy nature as much as I do, a trip to Tasmania is not complete without a visit to Cradle Mountain National Park, one of Australia's natural wonders.

From getting up close to the infinitely adorable wombats, wandering through moss covered walks ending with magical waterfalls or climbing mountains with crater lakes and views that will leave you awestruck, there is not a dull moment.

As my friends, family and anyone who will listen will attest, I can go on and on about my eight days in Tasmania, which seem so full yet were all too brief. My only hope is that in distilling my time there I have managed to do the Apple Isle justice (which reminds me, you must try the local gins). If you find yourself with some accrued leave and a desire for a trip that can be at once as hospitable as it is beautiful then you need look no further than Tasmania.

Tell us about your favourite (or not so favourite) destinations and why you travel there. Please send your contributions to brief@lawsocietywa.asn.au

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

June is that time of year when your Dog’s thoughts turn to the enchanting sound of rain falling on the roof, as one snuggles up in bed, or curls up on the floor with a glass of wine next to a log fire listening to music, such as Rachmaninoff Piano Concerto No 3. Rupert Brooke’s evocative poem The Great Lover describes it so well: …These I have loved: White plates and cups, clean-gleaming, ringed with blue lines; and feathery, faery dust; Wet roofs, beneath the lamp-light; the strong crust of friendly bread; and many-tasting food; Rainbows; and the blue bitter smoke of wood; and radiant raindrops couching in cool flowers; And flowers themselves, that sway through sunny hours, dreaming of moths that drink them under the moon; Then, the cool kindliness of sheets that soon smooth away trouble; and the rough male kiss Of blankets; grainy wood; live hair that is shining and free; blue-massing clouds; the keen Unpassioned beauty of a great machine; the benison of hot water; furs to touch; The good smell of old clothes; and other such -- the comfortable smell of friendly fingers, Hair’s fragrance, and the musty reek that lingers about dead leaves and last year’s ferns. . .

That peaceful reflectiveness is rudely contrasted

by Magistrate Deen Potter’s View from the Bench: Magistrates Courts in Western Australia: Navigating Conveyor-Belt Justice, a paper presented at a Law Society CPD seminar in March 2018.

Magistrate Potter writes that when compared to an 11% increase in the usual residents in Western Australia over five years to the 2016 Census, there has been an increase of 17% in case lodgements and an increase of 30% in criminal case lodgements.

Even more astounding is the increase in imprisonment as the sentencing disposition, up from 3,262 in 2012/13 to 6,908 in 2016/17, a 91% increase in five years.

To deal with the increase in workload the Magistrates Court now sits seven days a week, 363 days in the year, with a Duty Magistrate on call 24 hours a day, 365 days of the year. Magistrate Potter’s comments about family violence are just as much cause for concern, for as he points out such violence is not based on socioeconomic circumstances, race, religion or creed. The only difference is the matter of visibility. It seems to

42 | BRIEF JUNE 2018

pervade society. At this rate just imagine where our society will be in another five or 10 years? Where do we start in trying to rectify this and to wind it back?

More statutes and regulations, and more draconian sentencing regimes are surely not the answer?

From time to time your Dog receives payments in cash from clients, which requires him to fill in reports to the AUSTRAC CEO as to the amount and details of the people involved. Your Dog is well aware of s 28(3) of Part V of the Financial Transaction Reports Act, the penalty for failing to report being two years in the clink stitching mail bags. What will happen when mail bags become defunct, and go the way of the telegraph and the telex, is not yet known!

Your Dog is watching with interest the progress of the proceedings instituted by AUSTRAC against Commonwealth Bank of Australia Ltd: the defence includes an admission that CBA was late in filing more than 53,500 reports of deposits exceeding $10,000 taken through ATM’s in a three year period. As readers would be aware, your Dog is highly numerate! If a firm of solicitors collected $535 million in lots of $10,000 a time, which it failed to report, the starting point would be 107,000 years in gaol. Even with a 50% discount for a plea of guilty it would still be 53,500 years! Of course, one would be likely to lose one’s practice certificate (and a few other things)! Conversely, a financial institution which runs its business in that way is fined, at the cost of the shareholders, and that seems to be about it. Most of the shareholders probably do not know it has occurred!

It appears to be an odd outcome, where those running the operations in that way are not seen to be the wrongdoers. Admittedly, Commonwealth Bank of Australia reportedly contends that this occurred by reason of a single systems-related error, and that such

contraventions should be regarded as one course of conduct. This is a refined argument derived from “the dog ate my homework” defence, it being closely similar to the way in which parcels of money are deposited in the jaws of an ATM: there can be no mens rea, because it was a systems-related error. The circumstances in which this defence could be mounted are unlimited!

Reading some of the transcripts of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry provides food for reflection. At page 1006 of the Transcript of hearings on 16 April 2017 Counsel assisting said: In the 12 months to July 2016, approximately 2.3 million Australians aged 18 and over received advice from a financial planner. This round of hearings will explore some of the issues that directly impact on Australians in their dealings with the financial advice industry including the charging of fees for financial advice that is not provided or not provided in full, which we will refer to as fees for no service, the provision of inappropriate financial advice, and instances of improper conduct by financial advisers, including misappropriation of customer funds.

It seems extraordinary to the Dog that any institution could design and operate a business practice relating to the provision of financial advice, or any advice or service, that is not provided, or is not to be provided in full, let alone misappropriation of customer funds!

A PR consultant advising on a business name for

such an organisation could suggest a name such as Grabbit, Snatchit and Runne, accompanied by pictures of the partners in their break and entering gear. It would provide light relief from the usual smiling faces of financial planners that characterise most business advertisements.

The Benson Commission into the Provision of Legal Services chaired by Sir Henry Benson of Coopers & Lybrand (as it then was) based much of its work on the concept of a profession. There are different attributes of a profession: a disciplined group of individuals which possess special knowledge and skills in a widely recognised body of learning, which is derived from education, research and training at a high level, and which is recognised by the public as such. It is characterised by ethical standards imposed at levels above those which could be enforced by governmental or other bodies.

Counsel assisting described some of the more notorious events, in particular those of Storm Financial Services.

The decision of Edelman J (as he then was) is reported at ASIC v Cassimatis (No 8) [2016] FCA 1023. It is a decision which requires a bottle or two of red wine, and about three log fires to digest, and one is left shaking one’s head in wonderment at what goes on and is allowed to continue in that industry. It is small wonder, then, that the Commission refers to the “Financial Industry”. There is not much there to persuade the Dog that it has achieved, or can aspire to achieve the status of a profession.

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

Procedure – Full Court grants adult son access to his parents’ 1977 court file pursuant to FLR 24.13 In Carter [2018] FamCAFC 45 (6 March 2018) the Full Court (Ainslie-Wallace, Murphy and Aldridge JJ) allowed the appeal of a 53 year old son against Johns J’s dismissal of his application for access to his parents’ 1977 court file. After their separation in 1976 he lived with his mother and three siblings until he was 15 when he began living with his father. When 17 he boarded with another family.

His wish was to search the court record in the hope of “mak[ing] some sense of” why his family became “dysfunctional” and to better understand why he was separated from his siblings ([17]-[20]). Johns J limited the son’s access under FLR 24.13 to his parents’ consent parenting orders, refusing leave to search the rest of the file.

Ainslie-Wallace J (with whom Murphy and Aldridge JJ agreed) said (at [22]-[23]): “The primary judge found that the appellant had a proper interest in the proceedings to make the application (r 24.13(1)).

However, she refused the appellant access … because … she was concerned as to what benefit he might obtain from inspecting the file … Her Honour said … that she was not persuaded ‘that the pursuit of such information is reasonable’.”

Ainslie-Wallace J concluded (at [36]-[38]): “Her Honour was obliged to consider whether the appellant’s request to access the file was reasonable in light of his stated purpose … This purpose was that he wanted to look at the file to see whether there was anything in it which might make sense of his living arrangements after his parents’ separation and to undertake an ‘autopsy’ on his family history …

Her Honour determined that the access sought was not reasonable in light of that purpose, not by reference to the dictates of the rule but by reference to … whether to inspect it would provide him with answers.

In my view, her Honour erred by having regard to irrelevant matters when determining the question of reasonableness of the request for access and the matters to which she referred were unsupported by evidence before her.”

Property – Competing approaches to valuation of “rural lifestyle property” In Granger [2018] FCCA 51 (12 January 2018) a “rural lifestyle property” was valued by single

44 | BRIEF FEBRUARY 2018

expert “Mr L” at $595,000 but by the wife’s valuer “Mr J” at $800,000. The valuers agreed ([35]) that the property was not commercially viable and that there were a limited number of comparable sales. Judge Terry preferred Mr L’s valuation, saying (from [39]): “There are problems with Mr J’s approach.

First, he used the carrying capacity of the property to arrive at a figure which represented the bottom of his range but he conceded … that the property was not … commercially viable … and that this was not an appropriate method … to value this property. ( … ) [43] … Mr J determined the values of the various components of the land (wooded, improved pasture, cleared) by extracting rates from other sales which he said were not comparable.

[44] … [T]here was a dispute about whether Mr J had correctly identified the amount of improved pasture … ( … ) [46] I cannot … be satisfied … that the property has the higher proportion of cleared land … [I] f the carrying capacity method is discounted as a proper valuation method Mr J’s only method of valuing it was the component method. He had no regard to sales material ( … )

(…)

[21] The wife seeks a decree of nullity on the basis that at the time of her marriage … she was still married to Mr D. ( … ) [26] The submissions of the wife’s solicitor were unconvincing. It was also apparent that the wife’s solicitor’s experience is predominantly in migration law and his involvement with the parties seemed to be concerned with an application for the parties to secure a visa … ( … ) [28] I was left with the distinct impression that the application for a decree of nullity was ancillary to other applications … pending pursuant to the Migration Act … ( … ) [30] The … [marriage] certificate reflects that each of the parties were ‘Never Validly Married’.

[31] Whilst it may have accurately described the husband’s marital status, it did not apply to the wife. ( … ) The Court declared her latest marriage a nullity on the ground that she was lawfully married to another person. In referring the parties to the Commonwealth DPP, the Court concluded (from [58]):

[50] Mr J was firm … that there were no comparable sales … but there is some sales data and Mr J … did not make any attempt to cross-check his component approach with any of [it].”

“It is difficult to view the wife’s conduct and perhaps that of the husband as anything less than a wilful disregard of the requirement that she make full and frank disclosure in relation to her marital status.

Nullity – Wife remarried before determination of her divorce proceedings – Visa considerations

[59] The evidence … strongly supports the proposition that the wife and by implication the husband, were prepared to … misrepresent … that at the time of the marriage ceremony the wife … [was not] married to Mr D.

In Kirvan & Tomaras [2018] FamCA 171 (21 March 2018) the wife married “Mr D” overseas in 2015 but moved to Australia on a student visa in 2016. She declared her marriage in her visa application but a month later advised the Department of Immigration that she and Mr D had separated. She then filed divorce proceedings, but due to service difficulties a divorce was not granted until late 2017. In the meantime the wife began living with the respondent, marrying him in mid-2017.

[60] Whilst the Court has the discretion as to whether the papers should be referred, I consider … th[is] conduct … to be blatant in order to undergo a marriage ceremony … where they knew that it was not permissible to do so.

[61] It is a matter for the relevant authorities as to whether the parties or either of them will be the subject of prosecution [for bigamy].”

Berman J said (from [18]): “The parties were concerned as to the cultural integrity of their cohabitation … [being] not married. They decided to marry notwithstanding that each of them knew that the wife’s marriage to Mr D was not yet formally dissolved. The wife contends … that the parties felt that the ‘marriage was not valid any longer’.

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.

45

Law Council Update

Family and Federal Circuit Court reform details awaited The Law Council was interested to learn of the Australian Government’s plans to amalgamate the Federal Circuit Court of Australia and the Family Court of Australia, indicated by them as a necessary first-step toward resolving the crisis in our courts.

The amalgamation of the two courts, would see a single point of entry for all family law and general federal law matters through the newly created Federal Circuit and Family Court of Australia (FCFCA), with appeals to be heard by a single judge of the Federal Court.

Law Council President, Morry Bailes said it is understood the proposed changes are intended to see more cases being finalised, faster and at a significant cost saving to the benefit of children and Australian families, however warned greater detail was needed noting the Law Council would support any constitutionally valid reforms which have that effect.

“We have known for some time that the court system is in crisis, ultimately costing Australian families who have been denied access to justice,” Mr Bailes said.

“Waiting times of up to three years in the Family Court to finalise cases which involve disputes around children and property and allegations of family violence is unacceptable.

“The long wait serves only to add undue stress to what is already an incredibly painful and difficult time for the families involved.

Intelligence and Security to repeal ASIO’s detention power and revise its questioning power.

“The Law Council has long argued that the current ASIO questioning and detention powers fail to strike the right balance between protecting the community while upholding the rule of law,” said Morry Bailes, President of the Law Council of Australia.

“Today the Committee has recognised this imbalance and we welcome these recommendations,” Mr Bailes said.

The Committee recommended that ASIO’s current detention powers under the Australian Security Intelligence Organisation Act 1979, be repealed and that the Government develop legislation for a reformed ASIO compulsory questioning framework.

The motion was passed following the Federal Budget which did not address the crisis in legal aid, and ahead of National Pro Bono Day held on Tuesday 15 May. The motion was introduced by Centre Alliance (formally NXT) Senator Stirling Griff and Australian Green’s Senator Nick McKim and passed without the need for a formal vote. It included that: The Australian Government’s share of funding compared with the states has dropped from 55 per cent ($11.57 per capita) in 1996-97 to 32 per cent ($8.40 per capita) in 2017-18 – and is forecasted to drop further to $7.78 per capita in 2019-20.

A return to a 50 per cent share would have required $190 million in Budget, that did not occur.

“It is crucial for our security and law enforcement agencies have appropriate powers to detect, prevent, and prosecute terrorist activities,” Mr Bailes said.

Tens of thousands of people are left unrepresented because only a tiny proportion are now eligible for legal aid – well below the 14 per cent living below the poverty line.

“But the appropriate balance must be struck between ensuring national security and safeguarding the fundamental legal rights central to our democracy.

“The Senate recognises Australia's legal aid sector is in deep crisis. Today's motion makes that absolutely clear,” said Morry Bailes, President of the Law Council of Australia.

“In addition, ASIO’s Questioning and Detention Warrants have not actually been used since they were introduced, which should raise questions around their efficacy as an intelligence tool,” Mr Bailes said.

“The legal assistance sector has been underfunded for a generation, and yet we still see a downward trend in legal aid spending by the Australian Government,” Mr Bailes said.

“Lives are being ruined because people who encounter legal problems cannot afford a lawyer to present their case effectively. As the motion outlines, legal aid funding is now so scarce that being below the poverty line may not be enough.

“We must provide faster access and better outcomes for the Australian families who rely on the court system to deliver fair and just outcomes in family law matters.

The Law Council has argued, consistent with the recommendations of the second Independent National Security Legislation Monitor, that the model used by the Australian Criminal Intelligence Commission (ACIC) as a starting point for the reforming ASIO’s questioning powers.

“Urgent reform has been needed to begin to get the system back on its feet, however decades of chronic underfunding of the court system and legal aid has largely contributed to the lengthy delays and backlogs experienced today.

“Adopting the ACIC Model would allow for judicial oversight of the exercise of the coercive powers. It would also create greater consistency in the powers given to intelligence agencies and offer greater certainty as to their operation,” Mr Bailes said.

“The increasing number of self-represented people appearing before the courts also contributes to the time that courts take to deal with matters and leads to unjust outcomes.

In the revision of the questioning power, it is critical that the examination of an accused person by ASIO should be deferred until after the disposition of any charges.

“Further investment in the courts and legal aid is still required to deliver the best outcomes for children and Australian families,” Mr Bailes said.

“If this is not accepted, authorisation should be required from the Federal Court before a summons is issued to a person who is subject to criminal proceedings.

“On behalf of all Australians who will engage with our justice system, we urge the Australian Government to heed the Senate’s concerns and ensure that we all have equality before the law.

Law Council applauds recommendation to repeal ASIO’s detention power

Senate calls for legal aid funding increase post Budget

“The Law Council will continue its advocacy, including through the Justice Project, and we are grateful the Senate has expressed its position so powerfully today.”

The Law Council of Australia has thrown its full support behind recommendations by the powerful Parliamentary Joint Committee on

46 | BRIEF JUNE 2018

The Senate has passed a motion calling on the Australian Government to reverse the downward trend in legal aid funding, which is now at its lowest level in over 20 years.

“And it isn’t just Australia’s most disadvantaged missing out. Many middleclass Australians can’t afford to pay for legal representation and are forced to front the court alone.

“As the Productivity Commission has made clear – when it called for an urgent injection of an additional $200 million for civil legal aid – timely legal assistance stops simple problems from escalating into more serious matters that bring great cost to the taxpayer and community.

The motion follows another motion earlier this year calling for increased funding for the Federal courts.

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Professional Announcements

Kimberley Morrison

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Leach Legal Leach Legal are very pleased to congratulate Senior Associates Kimberley Morrison and Nicola Jansen on achieving their qualifications as Accredited Family Law Specialists.

Kimberley and Nicola now join the ranks of only 47 accredited practitioners in Western Australia.

Career moves and changes in the profession

Blackwall Legal LLP

Dwyer Durack Lawyers

Blackwall Legal LLP is pleased to announce that effective Monday, 28 May 2018, the firm will be located at the new address of Level 26, 140 St Georges Terrace Perth. Please note all telephone and email contacts will remain the same.

Eleanor joined Dwyer Durack in March 2018 as the Head of Personal Injuries and Insurance Litigation Department.

West Family Lawyers West Family Lawyers has moved. As of 7 May 2018, the firm of West Family Lawyers will be located at 506A Hay Street, Subiaco. The balance of contact details remain the same.

Eleanor’s practice centres on personal injury ligation Eleanor Scarff having worked within the personal injury industry for over a decade and has established an excellent reputation for prosecuting claims on behalf of injured persons in all areas of personal injury law.

Classifieds Missing Will Any person having knowledge of the existence or whereabouts of a Last Will and Testament of DALE ANTHONY FANNING, late of 72 Cargill Street, Victoria Park, Western Australia, Mining Consultant, is requested to contact the Administrator elect at care of Balfour Meagher Legal & Business Advisors at Suite 6, Level 2, 11 Ventnor Avenue, West Perth, Western Australia or at mark@bmlegaladvisors.com.au or on telephone: 08 9322 3842.

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

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New Members

New members joining the Law Society (May 2018)

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Associate Membership

Ms Alexandra Lambert University of Notre Dame Australia

Mr Konstantine Christou Legal Aid Western Australia - Perth Office

Mrs Rachel Burr The Information Management Group

Miss Julie Lumsden Murdoch University - School of Law

Mr Jason McLellan

Miss Isabelle Cameron Clifford Chance (Sydney)

Mr Riccardo Martino Curtin University - School of Business Law & Tax

Mr Aaron Chinyimba Murdoch University - School of Law

Mrs Rozalina Mustafa James Chong Lawyers

Ms Allison Cook University of New England

Mr Asja Mustapha Edith Cowan University - Business & Law

Miss Caitlyn Cooke University of Western Australia - Law Faculty

Ms Felicity Negus University of Western Australia - Law Faculty

Mr Mark Currell Clifford Chance (Sydney)

Miss Elisha Rayner Murdoch University - School of Law

Ms Larissa Dassanayake Curtin University - School of Business Law & Tax

Miss Sandra Rios Cueto Curtin University - School of Business Law & Tax

Ms Meg Green University of Notre Dame Australia

Ms Kristen Townsend Murdoch University - School of Law

Mr Jacob Kahwaji Clifford Chance (Sydney)

Mr Clinton Wang Curtin University - School of Business Law & Tax

Miss Stacey Watts Department of Mines, Industry Regulation and Safety

Restricted Practitioner Ms Kylie Cheong Aherns Lawyers Mr Joseph Hai Tuyet Ho Robson Legal Mrs Lauren Howard Mountains Lawyers Mr Teck Ling Chan Galic Mr David Morrissey Perth Family Law Centre

Ms Zemyna Louise Kuliukas Curtin University - School of Business Law & Tax

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