Brief September 2018

VOLUME 45 | NUMBER 8 | SEPTEMBER 2018

Welcome

Peter Quinlan 14th Chief Justice of WA Also inside The Viability of Small and Medium Sized Legal Practices A Costly Case of Unreasonably Refusing to Mediate A Practitioner’s Guide to Criminal Code Infringement Notices

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Ross Wheatley (LLB, LLM) Principal M 0401 344 040 E ross@lawavenue.com.au Kate Fagan-Green Partner E kate@lawavenue.com.au

Law Avenue

45 Ventnor Avenue, West Perth WA 6005 T (08) 6117 3830 www.lawavenue.com.au

Volume 45 | Number 8 | September 2018

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CONTENTS

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ARTICLES 06

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.).

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Ceremonial Welcome for New Chief Justice, Peter Quinlan

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Q&A with the Hon Chief Justice Peter Quinlan

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A Costly Case of Unreasonably Refusing to Mediate

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

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Black Tie Gala Dinner Event Wrap Up

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Communications and Design Officer: Charles McDonald

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The 2018 Joint Form General Conditions for the Sale of Land: a Guide to the Important Changes

A Practitioner’s Guide to Criminal Code Infringement Notices

42

Golden Gavel 2018 Event Wrap Up

Editor: Jason MacLaurin

44

The Foreign Buyers Surcharge Bill – a Drafting Nightmare

27

The Viability of Small and Medium Sized Legal Practices

Trials and Tribulations: Ambelin Kwaymullina

Published monthly (except January)

Senior Communications and Media Officer: Andrew MacNiven RRP $16.00 incl GST. Printed by Scott Print

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

49 Cartoon

04 Editor's Opinion

50 Professional Announcements

45 Drover's Dog

50 New Members

46 Family Law Case Notes

51 Classifieds

47 Ex Juris: Travel Tales from the Legal Profession

52 Events Calendar

Senior Vice President: Greg McIntyre SC Junior Vice President & Treasurer: Jocelyne Boujos Immediate Past President: Alain Musikanth Ordinary Members: Brahma Dharmananda SC, Elisabeth Edwards, Ante Golem, 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

48 Law Council Update

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

Welcome to the September edition of Brief.

Welcome to the Hon Peter Quinlan, 14th Chief Justice of WA It was my privilege to appear at the welcome ceremony for the Hon Peter Quinlan, 14th Chief Justice of Western Australia on Monday, 20 August at the David Malcolm Justice Centre, to address the Supreme Court on behalf of our valued Law Society members.

The ceremonial welcome provided an important opportunity to reflect on the Chief Justice’s vast legal experience and professional qualities, as well as offering insights into how His Honour, in his role as leader of our judiciary, might seek to shape the legal landscape and justice system in Western Australia. You can find His Honour’s remarks from the welcome ceremony on page 6 of this edition of Brief.

We offer the Chief Justice the support and best wishes of the Law Society for what will no doubt be a challenging and rewarding journey ahead, and the Law Society looks forward to continuing to work closely with His Honour in the best interests of the legal profession and the broader community.

In the meantime, Jason MacLaurin, Editor of Brief, had a wide-ranging discussion with the Chief Justice, which can be found on page 9.

The Black Tie Gala Dinner Also in this month’s edition you will find a full review of our Black Tie Gala Dinner, held on Saturday, 4 August 2018. It was an unforgettable evening at Crown Towers Perth, with hundreds of members of the profession and judiciary enjoying entertainment, collegiality and the chance to contribute to a worthy cause through our charity auction. Please turn to page 12 to read more and to see if you were snapped by our photographer on the night!

Elections for 2019 Law Society Council Nominations for election to the Law Society’s Council for 2019 will open in October 2018. The annual elections for Council provide an opportunity for members to step forward and nominate

02 | BRIEF SEPTEMBER 2018

for a place on the Law Society’s decision-making body, which provides strong, representative and collaborative governance.

Council sets the strategic direction for the Law Society, and, with the assistance of the Law Society's committees, acts as the voice of the legal profession through submissions and regular liaison with government bodies, the court system and other stakeholders.

Nomination forms will be sent to eligible members electronically in early October.

I encourage all members to consider nominating, so that the Law Society’s 2019 Council has the broadest possible representation from across the legal profession of Western Australia.

Look out for further information on the Council elections in the coming weeks.

The Justice Project Final Report The Law Society, as a constituent member of the Law Council of Australia, has been an active participant in The Justice Project, a national, comprehensive review into the state of access to justice in Australia for people experiencing significant disadvantage. The Justice Project Final Report was released in August and makes 59 recommendations based on 129 submissions of case studies.

Focusing on 13 priority groups identified as facing significant social and economic disadvantage, the report shines a light on justice issues for these groups by uncovering systemic flaws and identifying service gaps. It also highlights aspects of the justice system that are working well.

Recommendations include: •

a full review of the resourcing needs of the judicial system;

•

significant government investment in legal assistance services required to address critical gaps (at a minimum $390 million per annum) and ensuring future funding through an evidencebased, sustainable and stable funding model;

•

a stronger focus on the needs of Aboriginal and Torres Strait Islander people and people in rural, regional and remote Australia;

•

funding and supporting multidisciplinary, holistic servicing models

which address people’s complex legal and non-legal problems; •

a COAG Access to Justice Framework to underpin a whole-ofgovernment commitment to justice access; and

•

prioritising preventative and early intervention approaches as well as successful exit strategies – including safe and secure housing, mental health and disability services, youth engagement, family support, and rehabilitation.

The Law Society will pursue the Justice Project's recommendations with the Law Council of Australia, government, parliament, the legal profession and other stakeholders to advance its findings in Western Australia. The Final Report can be accessed at lawcouncil.asn.au/justiceproject/final-report.

Solicitors’ Use of the Title ‘Special Counsel’ The Legal Practice Board is seeking the views of the profession on the use of the title "special counsel" by law practices as a means to describe a category of senior employed solicitors. The profession has been invited to make submissions to the Board on this matter by Monday, 22 October 2018. Any submission should be forwarded by email to general@lpbwa.com with "Use of the title Special Counsel" in the subject line.

Further information can be found at: lpbwa. org.au/Documents/Legal-Profession/ News/Notice-to-Profession-re-use-of-titleSpecial-Couns.aspx The Law Society is preparing its own submission to the Legal Practice Board in relation to this issue. Members are invited to provide their comments to the Law Society via advocacy@lawsocietywa.asn.au by 23 September 2018.

Review of the Criminal Injuries Compensation Scheme in Western Australia The Department of Justice is undertaking a review of the Criminal Injuries Compensation Scheme in Western Australia. The Law Society has made a submission to the Department of Justice, which can be accessed at lawsocietywa. asn.au/submissions.

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

This month’s Brief celebrates the appointment of the new Chief Justice of Western Australia, the Hon Peter Quinlan, and includes an interview with Brief and the Chief Justice’s speech at his welcome.

Brief congratulates the new Chief Justice, who has impeccable qualifications and qualities, and richly deserves the office.

The new Chief Justice follows his eminent predecessor, the Hon Wayne Martin AC, QC, whose outstanding accomplishments and career were the subject of last month’s Brief.

The continuity in excellence of our Chief Justices is something the Western Australian public, and its legal profession, can be proud of and have confidence in. While both the new and former Chief Justices are of course strong individual characters, the consistency in the matters at the forefront of their attention in the demanding task of leading the administration of justice in this State, is notable.

These common themes, like leitmotifs, ensure a smooth transition commanding the confidence of the public and the profession in the administration of the law.

Such leitmotifs, which can be gleaned from this and last month’s edition of Brief, are matters such as access to justice (in all its manifestations), Indigenous issues, technology, diversity, and the timeliness and cost of administering justice.

There is some similarity in this regard to artists of the same school or movement: while there may be different brush strokes, techniques and focus upon subjects, fundamentally consistent themes, concepts and objectives permeate their works, including a brilliance in and dedication to their craft.

Another consistent theme, which manifests itself all judicial farewells and welcomes, is the humility expressed about the assumption and performance of judicial office, and the expression of near embarrassment about the laudatory things said about them at their ceremonies.

The above are all examples of the best qualities for a judicial officer. They stand in very stark contrast and opposition with what sometimes passes as what people may think constitutes artistry in the law, in other places.

04 | BRIEF SEPTEMBER 2018

Recently, adult actress and President Trump litigant Stormy Daniels released a statement about her lawyer that evoked, simultaneously, the kind of mixed reaction as occurred sequentially at the end of Raiders of the Lost Ark upon the opening of the Ark of the Covenant.1 Ms Daniels said of her lawyer Michael Avenatti (and apologies to readers in advance): “Every time I watch him work, I think, this is what it must have been like to see the Sistine Chapel being painted. But instead of paint, Michael uses the tears of his enemies.” It seems that Mr Avenatti was not motivated to take strident measures to prevent his client releasing this statement (or to disclaim it).

The concept of drinking an enemy’s tears is attributed to Genghis Khan (or, if recent memory serves, to at least one of the rival contestant women in The Bachelor, seeking the love and/or attention of rugby union legend Nick “Honey Badger” Cummins).

While one is prepared to be stand corrected, surely painting something with another’s tears is not going to produce much colour or contrast and hence would be useless as art?

And, one would be wrong: in 20142 artist Robert Ryman’s painting, essentially a “white on white” painting,3 sold for $15 million.4 Nevertheless, it can be undesirable for a lawyer to be compared to an artist. For instance, who would want to be described, by the Court, as the “Jackson Pollock of oral and written submissions.”

Returning to Mr Ryman, and his “white on white” art, Mr Robert Storr, the Dean of Yale’s Art School commented that for some time “Mr Ryman has focused upon the diversity of whiteness”. The concept of “diversity of whiteness” is something that can probably be regarded nowadays as a topic that should not be approached with a ten foot (blue) pole. Or maybe Blue Poles.5 Indeed, Mr Ryman’s exhibition at the Saatchi museum6 had an entire gallery that looked like a room on the show The Block where the contestants are crying and fighting with each other because they didn’t finish anything on time.7 And, even being Michelangelo-esque does not guarantee lucrative returns. Judge

Joseph Weis of the United States Court of Appeals for the 3rd Circuit in Philadelphia, in slamming lawyers seeking apparently grossly excessive costs said “even a Michelangelo should not charge Sistine Chapel rates for painting a farmer’s barn.8 And, comparing lawyers to fictional characters can also be perilous. In April this year a Canadian judge almost caused a mistrial by saying to Counsel: “Some of your cross-examination is beginning to remind me of the Charlie Brown cartoon where Lucy is asked to write an essay about oceans, and Lucy writes there are no oceans in Nebraska, there are no oceans in Iowa, there are no oceans in Colorado, and goes through all of the states that don’t touch an ocean, and she gets a failing grade.”9 While this was not exactly complimentary about the lawyer or his forensic skills, the Judge did not accuse the lawyer of Lucy’s worst quality: constantly fooling Charlie Brown by pulling the football away the moment he was about to kick it.

Readers are invited to write to the Editor with any stories about their own “Lucy pulling the football away at the last minute” experiences in the law.

NOTES:

1.

To some, her homily to her lawyer evoked feelings of “It’s Beautiful!” and to others, face-melting and head exploding – the Editor chose to advise his wife: “Don’t look at it…just keep your eyes shut.”

2.

See “Why Pay $15 Million for a White Canvas?”, L Bershidsy, www.bloomberg.com (14/11/14)

3.

Otherwise known as a blank canvass or, in the legal profession “I’m about to start – I’ve done all the research – it’s all in my head”.

4.

As if to demonstrate the huge effort involved, the artist didn’t bother to give the work a title.

5.

A new feature for Brief – with every edition comes a free Jackson Pollock joke.

6.

The Editor recoils at the prospect of giving that museum any publicity, given it is owned by a man who was so appalling to Nigella Lawson (whose approach to comfort food is shared by the Editor).

7.

See https://goo.gl/images/1MwDxm.

8.

See “It’s the 90’s, Counselor: ‘Superfluous’ Fees Denied”, D Margolick, www.nytimes (14/8/92)

9.

See “B.C. judge concludes his Charlie Brown comments do not warrant mistrial”, K Fraser, www. vancouversun.com (19/4/18).

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

M&A OPPORTUNITES

will enjoy mentoring junior lawyers and oversee file strategy for HNW clients across complex property and children’s matters. $250k transportable fee bases or established referral networks required.

2018. The successful candidate will have experience advising across corporate/ASIC/ASX compliance issues with strong exposure to the Corporations Act.

PARTNER – HEAD OF COMMERCIAL LAW FOR PERTH OFFICE – NATIONAL FIRM. A rapidly growing national firm and long-term client of KBE is seeking an experienced Partner to establish a Commercial Group in WA. The firm has a strong reputation and has grown to become a leader in the Australian legal market, with a focus on advising public, large private, and highly respected SME businesses.

With several top-tier Partners in the Perth office and rapid expansion plans, this is an opportunity for an established Partner or SA/SC with a small transportable client network of $250k+ to build/lead the Western Australian Commercial Law team.

2 YEARS’ PAE TO SENIOR ASSOCIATE /SPECIAL COUNSEL

With the Directors/Partners looking to transition to retirement either immediately or in the very near future, this is a rare opportunity to benefit from many years of hard work, purchase a sensational little firm/practice, and potentially add some complimentary revenue streams to bring new revenue to the firm (for example, Estate Litigation).

PARTNERS – INSOLVENCY AND LITIGATION – PARTNERSHIP OPPORTUNITIES ACROSS NATIONAL/INTERNATIONAL AND RAPIDLY GROWING WA FIRMS. Numerous opportunities have arisen for experienced Insolvency/Litigation Partners to join national/international and boutique firms, joining either as a Partner or Head of Insolvency/Litigation. Minimal transportable networks or fee bases of $250k+ required.

CORPORATE/M&A LAWYERS – MULTIPLE FIRMS ACROSS ALL TIERS. If you are a Junior Lawyer, Associate or Senior Associate with 1-4 years’ PAE or 5-10+ years’ PAE, then you are in very high demand.

Each of our clients offers a variety of benefits, including performance bonuses, flexible working conditions, time off in lieu, and other financial/nonfinancial incentives.

This acquisition opportunity should rapidly deliver a profit for a suitably positioned WA firm, or an ambitious SA/SC or Partner looking to take the next step in their career and buy into the firm within the next 12-24 months, benefiting from deep client /referral relationships and good-will.

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

SALARIED/EQUITY PARTNERSHIP OPPORTUNITIES

IN-HOUSE LEGAL OPPORTUNITIES

WILLS & ESTATE PLANNING PRACTICE – ACQUISITION OPPORTUNITY FOR SMALL TO MEDIUM-SIZED FIRM. This is a unique opportunity to acquire an established Wills & Estates Planning firm, add to your existing service offering and expand your revenue base. Alternatively, we would like to speak with mid-level to senior Wills & Estate Planning Lawyers with 4-20+ years’ PAE who may be interested in taking over the firm over the next 12 -24 months.

The firm boasts a long established and loyal client base, exceptional reputation and one of the best referral networks in the sector in Perth. The Directors/Partners are all exceptional human beings; it will be important that the buyer (or incoming Lawyer) shares their passion for providing a quality service, with genuine care for the firm’s clients.

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

PARTNER – CORPORATE ADVISORY/M&A/ECM – RAPIDLY GROWING CORPORATE TEAM. KBE is working with a key client to secure a Corporate /M&A/ECM Partner to inherit/lead an established practice, with a strong focus on Corporate Advisory, IPO’s and Equity Capital Markets. This firm has experienced rapid and sustained growth with one of the most innovative leadership teams in Western Australia. The successful candidate will be a lateral Partner hire or driven SA/SC, who is keen to work closely with the firm’s Senior Partners to further build the Corporate practice through leveraging your combined client networks and overseeing existing deal flow.

PARTNERS – FAMILY LAW – TWO MARKET LEADING FIRMS. We are seeking two Senior Family Lawyers to take on Partnership/leadership roles as part of our client firms’ growth and succession plans. You

THE IN-HOUSE LEGAL MARKET CONTINUES TO GAIN SIGNIFICANT MOMENTUM. KBE IS RECEIVING 1-2 NEW IN HOUSE COUNSEL OPPORTUNITIES EACH WEEK. We are currently working on 10+ urgent and exclusive In-House Counsel roles and would like to speak with Junior Legal Counsel with 2-5 years’ PAE and Legal Counsel with 6-10 years’ PAE. Two urgent roles are listed below: IN-HOUSE LEGAL COUNSEL – EPCM/CONTRACTING. 3-6 YEARS’ PAE. This high profile ASX listed company services clients in Australia and internationally. Working closely with a senior GC and junior Legal Counsel, this position will involve negotiating, reviewing and drafting a variety of commercial agreements including hire agreements, services contracts, leases and other commercial contracts. In addition, you will assist in preparing annual reports, liaising with the ASX/ASIC in relation to all corporate governance, provide Company secretarial support, and advise major acquisition opportunities. Our client is seeking a lawyer with 3-6+ years’ PAE with strong commercial acumen, from a Corporate, Mining /Energy/Resources or Projects/Construction background either in private practice or in house.

A salary package $150,000 to $200,000 is on offer, commensurate with your experience.

JUNIOR LEGAL COUNSEL – CORPORATE/M&A/ BANKING AND FINANCE FOR ASX200 COMPANY. 2-6 YEARS’ PAE. KBE has been exclusively briefed by this well known, rapidly growing ASX200 company to source a junior to mid-level Corporate /M&A Lawyer. You will work directly with a number of Senior Legal Counsel on all Corporate and acquisition related matters, in a company that is looking to acquire several high profile businesses in

Chris Bates

Siemone Neutgens

Sharon Apathy

Managing Director

Principal Consultant

Principal Consultant

M: 0411 645 984 E: chris.bates@kbe.com.au

M: 0403 383 326 E: siemone.neutgens@kbe.com.au

M: 0413 132 049 E: sharon.apathy@kbe.com.au

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

FAMILY LAWYERS – THREE OF WA’S STRONGEST FAMILY LAW TEAMS. Three exceptional Family Law practices are looking to secure quality Family Lawyers with 2-6+ years’ PAE. With an enviable client base and advising HNW individuals regarding complex property/children’s matters, our clients are seeking confident junior lawyers who are accustomed to working with C-suite business leaders (both as clients and referral sources).

INSURANCE/COMMERCIAL LITIGATION LAWYER – TOP-TIER INTERNATIONAL FIRM. This Insurance Group is widely regarded as one of the strongest across Australia, including a number of Award Winning Partners. Working across a diverse range of Insurance matters, including PI, D&O, Liability as well as complex Commercial Litigation, you will be supervised by two tier-one Partners who genuinely enjoy mentoring and consistently invest in the development of their team. The Partners take an active interest in the careers of the juniors and spend time teaching and training on an ongoing basis. Striving to be an Employer of Choice, the firm prides itself on maintaining a high level of professionalism and sustaining a balanced and positive work environment. To be successful in this role, you will have 3-6 years’ PAE in Insurance /Commercial Litigation from a quality firm, with the desire to take on additional client facing responsibilities and run matters with significant autonomy.

LITIGATION LAWYERS – MULTIPLE ROLES – NATIONAL/INTERNATIONAL TOP-TIER FIRMS. Opportunities for junior and mid level Litigation Lawyers to join four progressive national /international firms. All teams are seeking lawyers with 3-7 years’ PAE and experience in Construction Litigation, Mining and Resources Litigation.

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 W: kbehumancapital.com.au

Ceremonial Welcome for the Hon Peter Quinlan, 14th Chief Justice of WA

By The Hon Chief Justice Peter Quinlan Monday, 20 August 2018, Supreme Court of Western Australia Le Miere J, thank you for your words of welcome today and for all of your assistance to me over the past two weeks. To those at the bar table and those who spoke, Mr Attorney, Mrs Cormann, Mr Howard, thank you for your kind words. I have had the great pleasure of working with each of you closely throughout my legal career and I thank you for all your support. You are all hereby charged with that common law offence first identified by Justice Patrick Keane of outrageous flattery in a public place.

To the many distinguished guests, colleagues, family and friends, can I thank you all for your attendance today? I am overwhelmed by your presence. I would have acknowledged you all by name, but I now suspect that would take too long and I am already likely to breach my preference for brevity, so I will confine particular acknowledgments to three.

First, may I particularly acknowledge the presence in court of the Governor of Western Australia Kim Beazley AC, and the Treasurer the Honourable Ben Wyatt MLA, and thank the Premier the Honourable Mark McGowan MLA who had to be called away on urgent personal business, for his apologies.

As the leaders of the executive arm of government and also as representative of the legislative branch, you do the court a great honour by your presence today.

The mutual respect of the separate arms of government in Australia is one of the great strengths of our democracy and one for which we should all be grateful.

Your attendance today is a concrete illustration of that mutual respect for which I extend the court’s thanks.

Secondly, I thank the many members and former members of other courts here today, both State and Federal. Your presence is a testament to the great 06 | BRIEF SEPTEMBER 2018

bonds of respect and affection that exist within our integrated national court system. I am delighted that so many of you could be here today.

Queen's Counsel I ever appeared against, and Le Miere J to my right was the first Queen's Counsel to have me as a junior when I joined the independent Bar.

And thirdly, may I especially thank you, Mr McGuire, for your welcome to all of us to this place within the country of the Whadjuk people of the Noongar clan.

Can I personally pay my respects to your elders past and present and indeed to all of those of the First Nations throughout Western Australia. I have had the great privilege in my career to spend time with many of those people, from the Bardi, Nyulnyul and Yawuru to the north, to the Banjima, Innawonga and Nyiyaparli in the Pilbara and the Martu people in the great desert to our east. The relationship between our justice system and the First Peoples of Australia still has a long way to go, but your presence today and your gracious welcome remind us how far we have come and give us resolve for the future.

I am therefore able to say with confidence that in joining this court, I have learnt important lessons from every judge of the court. I am sure and relieved that I will be able to continue to do so. In that membership of the court, I include, of course, my predecessor, the Honourable Wayne Martin AC QC who I am pleased to see is here today with Margie. Wayne Martin was one of my referees when I joined the Bar 18 years ago. He has always been the model of a sharp intellect, strong work ethic and no nonsense commitment to justice.

Thank you to all of the judges of the court for your warm welcome. Apart from having appeared before your Honours, I have had the great benefit throughout my time in practice of working with or alongside each and every member of this bench. While they will have no reason to remember it – for example, Buss J to my left was the first

Many people in the profession, no doubt thinking they were being encouraging, have said to me I have large shoes to fill. That is undoubtedly true. Certainly, it’s a large office to fill. Thank you, Wayne, for your many years of service to the court and to the people of this State. Thank you also to the wonderful welcome from the personal staff I have gratefully inherited, Chris Curtis, Stan Carvell, Matheo Vinciullo, Emily Archer, Angela Milne and Val Buchanan – indeed, to all the staff of the court. Thank you all for looking after me so well thus far and

in particular for putting together today’s ceremonial sitting.

I do not propose to outline a reform agenda this afternoon. Rather, what I hope to bring is a commitment to and a sense of urgency for our first and overriding responsibility – that this and other courts in this State be able to be deliver justice according to law. It is that responsibility upon which public confidence in the court rests, and it is upon that confidence in turn that the rule of law ultimately depends.

As to that confidence, a former American Chief Justice Warren Burger said in the year that I was born: A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people, and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law, in the larger sense, cannot fulfil its primary function to protect them and their families in their homes, at their work, and on the public streets.

Preserving that sense of confidence is a heavy responsibility. It must be preserved and it must be increased. It is a responsibility which rests not only upon a Chief Justice but upon every judge of every court and on every member of the legal profession. Nor is it optional. I have a great love for the legal profession. It has given me so much and its work is important and fulfilling. It contributes enormously to the stability of our society. But we can do more, or at least we can do it better.

If we as a profession, courts and practitioners alike as officers of an independent branch of government, do not find better ways to increase access to justice for the whole community, our independence will come under threat to the detriment of all. If that occurs, we will, in the parlance of our times, be totally hosed. I do not pretend to have the answers as to how we can do better, but there must be answers and it is incumbent upon us to find them.

In that regard, those of you who know me well will know that I have something for a fondness for the Rule of St Benedict. That rule begins with the Latin word “obsculta”. The Honourable Eric Heenan QC is unable to be here today and sent his apologies. But if he were

here, no doubt he would tell us that “obsculta” translates as “listen” with an exclamation mark. It is, I hope, a command that I will follow in the years to come – to listen to others, particularly my fellow judges, as to how we can best discharge our duties.

As the Honourable Wayne Martin said from this chair exactly a month ago, beneficial changes can only come about through consensus. Just as importantly as demonstrated by the motto “obsculta”, the task in finding consensus is not to win approval for one’s own ideas, but to be able to discern what is best from the ideas of all, including oneself.

Listening is equally important in a broader sense, as our community becomes more and more diverse, in its ethnic and linguistic diversity, our different cultures, different faiths and beliefs, different gender roles and identities and diverse mores and preferences. No person can, of course, embody that diversity and no one should pretend to do so. It is essential, then, in maintaining public confidence that they, so far as possible, reflect that diversity in their membership and in their modes of thought.

While there is a significant way to go in achieving a satisfactory level of gender and other diversity in our courts, I am pleased to say from my previous role as Solicitor General that it is a matter at the forefront of the executive government’s mind with whom responsibility for judicial appointments ultimately rests.

For those of us already here, however, it is incumbent that we bring to our task not only our inescapable backgrounds, cultures and life experiences, but a capacity to genuinely listen to the perspectives and life experiences of others. For now, can I turn to acknowledge and thank those whose contribution to my own life brings me to this day.

My mother and father, Michael and Carole Quinlan, who not only met mine and my siblings’ every material and spiritual need, but gave us the great gift of their own example of commitment, love, service and perseverance.

From dad, I was able to know what a commitment to a professional vocation was before I even knew what those words meant, and to see a humble sense of service able to endure over decades. From mum, I was given an example of devotion to others and a faithfulness and perseverance in the face of what has often been great struggle that has been an inspiration.

My brothers and sisters who are all here today were my first and longest circle of friends. To whatever extent I can claim any true gentleness, I owe it to my older brother Tim. My younger brother Anthony, or Boof as he is known within the family, is the master of industriousness and grand schemes.

Apparently, he was very relieved at my appointment because it enabled him to take a break from being the high achiever and the favourite within the family. Never fear, Boof, you will have resumed the mantle by this time next week.

My sister Annabelle, the life of every party, ensures that every family gathering finishes with dancing into the wee small hours. I am sorry, Belles, we may have a curfew tonight. And my younger sister Gabi who carries the torch as the family chronicler and the keeper of the extended family folklore. Thank you all, together with Jen, Tini, Mick and Max for being here to share today.

Thank you also to my in-laws, Tony and Pauleen Gates and my sister-inlaw Tonia McNeilly and her husband Matthew for all your love and support for almost 30 years. I think Pauleen and Tonia in particular are still baffled that I have made it here given their alarm at the parlous state of my footwear when they met me back in 1989. Fortunately for me, my shoes can’t be seen from up here.

When I started in the law in 1993, I was fortunate enough to work as the professional assistant to Kevin Parker AO QC as the Honourable Kevin Parker AC QC then was. Kevin was and is a person to whom the legal profession and the administration of justice in this state owe an enormous debt and to whom I and many others owe a great personal debt. There have now been five former professional assistants to Kevin Parker to join this court commencing with the Honourable Christine Wheeler AO QC. Four of those five sit on the bench today.

Pritchard, Mitchell, Smith JJ and now myself – not a bad strike rate for a young fellow, Kevin. I am delighted that you could be here today.

I then spent my first years in practice at the then Crown Solicitor’s Office and now the State Solicitor’s Office was and is one of the great institutions of the law in this State. The example I had in those early years was of exceptionally talented lawyers committed to hard work, excellence and genuine public service.

The Crown Solicitor’s Office was also conspicuous, in that of the great mentors and examples in the office, most of them were women - Christine 07

Wheeler, Mary Ann Yeats, Lindy Jenkins, Janine Pritchard, Caroline Thatcher, Jennifer Smith to name a few. It is no coincidence, as Smith J pointed out at her recent welcome ceremony, that of all the women appointed to this court in its history, three quarters of them can claim their formative years at the Crown.

Moving to the Bar in 2001 brought new experiences, mentors and lifelong friends. I remain convinced, Mr Howard, that a strong independent Bar is essential to the maintenance of the rule of law in our society and I am privileged to have been part of its story. There are too many people and too many groups for me to thank over those 16 years, so I will again mention three.

First, Craig Colvin SC as his Honour then was. When Craig left the Bar for the bench earlier this year, he was its spiritual centre and the epitome of what it was to be an independent barrister.

Craig’s wise counsel and ethical compass have long been and remain of invaluable help to me. Thank you, Craig, for your fine example and for your presence here today.

Secondly, the members of the Common Law Bar, Lampropoulos SC, Pratt, Offer, his Honour Judge Herron and many more. These were the practitioners who really taught me that as Sir Gerard Brennan once said, the law is administered more frequently and more directly by legal advisers than it is by judges. But justice is best served by advice which is brief, timely, direct and impartial and that our clients come to us for solutions for their problems, not for an opportunity for us to advance ourselves or our own causes.

Finally, to my friends around the big round table beneath Allendale Square, who provided respite from the inevitable stresses of legal practice and provided an opportunity concentrate on the important issues of the day. What was Dante’s crowning achievement? Which side really was responsible for the great East/West schism? Has Nicki Minaj gone too far this time?

The main stalwarts, of course, for whom no impending court deadline proved reasonable excuse for a long lunch were Hammond and Quail. I have said it before, you two were my lifeline in difficult times for which I will be forever grateful. And, of course, the contingent grew with Banks-Smith, Russell, Lendich, Papamatheos and Heenan Junior, and in more recent years, van Hattem, Cavanagh and Govinnage. Thank you all for your friendship and counsel.

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Which brings me to my last stop in practice, returning to Crown Service as Solicitor General of this great State. For that opportunity, I have the former State government to thank who entrusted the task to me a little over two years ago.

Thank you to my staff, Noelene Luttrell, Kate Dromey and Jen Perera for making me sometimes look good over those two years.

It is often said that being Solicitor General is the best job in the law. It is no doubt one of the most fulfilling. I am delighted that the Solicitors General of Australia are able to be represented here today in the person of my friend from Queensland Peter Dunning QC. The collegiality and spirit of cooperation among the Solicitors General of the Commonwealth and States of Australia and Territories is indeed one of the great unsung achievements of our Federation, and I am grateful to have been a part of it.

Over the past 16 months, I have had the adventure of working with a new government and in particular in providing assistance to you, Mr Attorney. Together with the indominable Ms Egan, your energy, enthusiasm for justice and commitment to reform has been both invigorating and infectious, and your commitment to the independence of the judicial branch of government are a credit to the Government of this State. I look forward to continuing to work with the executive government, whilst always respecting the proper bounds of our respective roles, throughout my term as Chief Justice.

And so finally to some more personal thanks, to the pillars of my support.

Firstly, to the Benedictine community of New Norcia whose abbot the Reverend John Herbert OSB is able to be here today. John, you and the community have been an enormous support to me over many years and I am proud to call you friends and brothers.

So much of the practice of the law involves posturing, displaying and showing. If we are not careful, our constructed personas can overtake us and distract us from what really matters, and so it is a great blessing to have a place where I can, as Bob Dylan would put it, "lay down my weary tune" – a place with enough silence for me to hear again the still, small voice that animates me and constantly calls me back to reality. Thank you, John, for your guidance and friendship, not to mention all the whiskey.

And so to the bedrock of my life, the six people sitting over there glaring

like a jury of my peers. Gabe, Harper, Audrey, Jude and Lux, you are my and mum’s crowning achievement. Gabe gave me strict instructions not to say anything about him, so I won’t. But if I had, I would have said what a fine young man he has become with an independence of thought that takes no authority for granted, especially my own. Harper, so attentive and caring for all around her; Audrey, with her acerbic wit and gift for friendship; Jude, so flamboyant and joyful; and Lux, ever mischievous and spunky. Thank you all for the joy and meaning that you bring to our lives.

And so to Lucette, the other half of my soul. I learned a new word a few years ago during a long case – uxorious.

Where is Eric Heenan when you need him? U x o r i o u s. It is an adjective which means “having or showing an excessive fondness for one’s wife”. Paul Yovich SC reckons there is a picture of me next to its definition in the dictionary, and for good reason.

Lucette and I met when I was in first year law school. She has been there on every step of this journey. There is not a thing I have done or could have done without the strong partnership we have built over 30 years. My gratitude to you is beyond expression, and that we set out on this next part of our journey together makes the climb easy and the burden light. To borrow from Theodore Roethke’s Words for the Wind: One with the sighing vine, One to be merry with, And pleased to meet the moon.

She likes wherever I am.

I bear, but not alone, This burden of joy.

And I dance round and round, To see and suffer myself In another being at last.

Le Miere J commenced his remarks with a reference to my convict ancestor Daniel Connor who arrived here eight years before the appointment of the first Chief Justice. Connor died in 1898, and by that time, he had become a successful business owner in the colony.

His funeral was officiated by Bishop Matthew Gibney who concluded with the following words, which I ask you all to keep in mind in the coming years: Be to his virtues ever kind, And to his faults a trifle blind.

Thank you all once again for your attendance.

Q&A with New Chief Justice, the Hon Peter Quinlan

By Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief

Your judicial welcome ceremony was the first in Australia, we understand, with a welcome to country ceremony. Can you give us some background to that and its significance?

I am not sure that it was an Australian first. Certainly it is the first time I have seen it occur in a Western Australian Court. The background is fairly simple.

There is a growing recognition of the vital place of the First Peoples of Australia and their various cultures in all of our institutions and that recognition calls for us to rethink the protocols we adopt for important events in public life. The commencement of a new Chief Justice seemed like such an event.

The Parliament of Western Australia, for example, recently moved to commence each of its sitting days with an acknowledgement of country. Such acknowledgements are important. And so too is the need to hear indigenous voices at such events, speaking for themselves and sharing with us the lessons that these ancient cultures can offer.

You are the fourth member of this court, and the 5th former PA of the Hon Kevin Parker AC QC to become a judge of the Court.

Another is a Senior Counsel and another is a Professor of political science. What is it about the incubator of that role that has led many of them to such prominence?

It’s both the role and the person, I think, that has made for successful careers for many ex-professional assistants to the solicitor general.

The role itself is unique in exposing young lawyers to the highest levels of the legal profession and judicial system at such an early stage in their careers. To have the opportunity to see the High Court in action, for example, is an absolute privilege and one you never forget.

Kevin Parker, himself, was also an outstanding mentor and leader. He always had a very unassuming and self-effacing way of promoting the importance of the law and of the legal profession and in instilling in his staff a sense of the broader role of lawyers in the community. In that environment, a sense of public service really does tend to rub off on you.

You made particular reference to a Benedictine concept concerning listening at your welcome. What inspired you to refer to that and are there those in the law you have come across who were the best and inspirational exponents of it?

We live in an age, particularly with the ubiquitous presence of social media, where everyone is talking all the time and have an almost proprietorial attachment to their own opinions. And because we are always talking over one another all the time, no-one listens.

I am as susceptible to this as anyone else.

So it is very important to be constantly reminded, as Benedict does, to “listen”.

Which doesn’t mean just to hear what the other person is saying but to take on board their experience and ideas. The full quote, in fact, concludes with the words “with the ear of the heart”. It is that sort of active listening we need to cultivate.

There are many great exponents of this I have encountered in my time in the law: the Hon Christine Wheeler AO QC was an early example I was able to observe as counsel, and later as a judge. Another was the Hon Neville Owen, who was

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always attentive in exchanges between bar and bench and had a genuine curiosity for others’ ideas. The Hon John Chaney, who recently retired from the Court was also great listener, who managed to put counsel at ease so that everyone had an opportunity to be heard.

At your welcome Matt Howard SC quoted from Micah 6:8 “Do justice, love kindness, walk humbly”. Does this passage have resonance with you as you approach your judicial life?

Would that we were all able to successfully integrate justice, kindness and humility!

There is something to be gained from each of those goals and, in a sense, for a judge they very much belong with each other.

Justice Craig Colvin, at his welcome to the Federal Court, had a wonderful line: “Manifestly, our imperfections mean that we are unable, without some hypocrisy, to sit upon the judgment of the behaviour of others.” I think this captures the connection between justice and humility really well. To be able to do justice, as a lawyer or as a judge, requires a sense of your own inadequacy for the task.

Nothing is more inimical to the attainment of justice than a lawyer, or a judge, who is so confident of themselves that they become rigid and inflexible.

Kindness too has an important role. In a professional context, it is probably more accurate to refer to courtesy; but it means the same thing. The great advantage of a properly functioning legal system is that it enables disputes to be resolved peacefully and courteously. It is no small thing to be able to profoundly disagree with another person with civility and courtesy, and many aspects of public life

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appear to have lost that ability. At their best, however, I still think you can find that sense of civility in courtrooms and between professionals.

view the practice of the law and the intrusion of business models into legal practice that can sometimes separate it from a sense of obligation to the community as a whole.

What challenges do you see facing the Supreme Court over the next 10 years?

I also worry about young lawyers coming through. How much real training are they getting to equip them for legal practice?

Are they being properly inculcated into the ethos of the legal profession and its great history? Are some of them simply working too hard and for too long to sustain a healthy life?

The biggest challenge is how we cope with the increasing size and complexity of disputes, both civil and criminal.

Go into any major civil trial today and you will see rows and rows of files of documents and teams of lawyers on every side. And yet all of that preparation and all of that input is funnelled towards one judge, perhaps with modest research and administrative assistance. That is a real problem: the effect that it has on judges and the effect that it has on the delivery of justice for the community.

The same applies to criminal trials, particularly where juries are involved: how to manage the vast amount of information that is available into a form where it can be properly understood and where the outcome is the result of a process of justice and not simply a consequence of convenience or even fatigue.

Obviously related to these matters are the perennial problems of cost and limited resources; problems that are not limited to the Supreme Court but affect every court in the State.

What wider challenges do you see for the administration of justice in Western Australia?

Undoubtedly access to justice is the largest challenge. The cost of legal advice and representation has become, in many areas, prohibitive. Part of that is complexity, but part of it is cultural. It’s the way people in the legal profession

In this regard, I think, in some respects there has been a fracturing of the legal profession as practitioners and firms have become hyper-specialized. Too many parts of the profession become isolated from each other – and don’t understand the work that each other do.

Such fracturing of the profession is, ultimately, not good for the profession or the system as a whole. I would love for us to find ways to bring the profession together under a unified sense of purpose: large firms, small firms, sole practitioners and government lawyers alike.

What upsides do you see coming from advancing technology, especially in the Court’s ability to dispense justice at all levels- and what downsides, difficulties and problems are there from the same?

The upside is, or at least it should be, that matters, particular routine matters are dealt with more quickly and cheaply.

I think, with e-filing for example, we are already seeing the benefits of advancing technology, used effectively.

The downside, which I fear is all too easy to fall prey to, is that the technology simply leads matters towards more complexity, more documents, longer

documents and unnecessary cost. Even a simple change in technology, like modern word processors has meant that advices, submissions and judgements have got longer and longer. This is, often, not a good thing.

As with all things technology has got to serve the justice system and not the other way around. And I think that is a really difficult thing to achieve. But we have to be vigilant about it.

Are you in favour of a judicial commission as a model of governance for West Australian Courts?

of course, be important but I sometimes think we elevate them to a level of importance and complexity that is not necessary. I am sure litigants, counsel and judges would prefer to be dealing with substantive matters rather than interlocutory skirmishes and we are always looking at ways to reduce their impact.

In the past we have very much focussed on eliminating (or at least reducing) interlocutory disputes by practices such as compulsory conferral. I am not sure that that has been as successful as we would have hoped. Conferral has almost become

In some ways it is these same features that also attracted me to Crown service.

The ability to practice law in a way where the work comes first, and where it is in some ways easier to meet your overriding obligation to the administration of justice, is a great privilege. Of course “commercialism” has crept into all areas of the law, and everyone in the profession needs to work at the balance between their duties as a professional and their commercial interest. But I think that that’s easier to do as a government lawyer.

So long as it preserves the independence of the judiciary, I am very much in favour of a judicial commission. The models I have seen so far have met that requirement and I would encourage their development.

As with every other area of public life, the Courts have had to develop new ways of being transparent and accountable.

It is a fact of modern life that more and more people will speak up and complain about what they see as unfairness or misconduct, which is a good thing. And so, a forum for dealing with complaints, in a transparent and independent way, is to be welcomed.

Of course, with this caveat. Any system of accountability must enhance, and not detract from, the independence of the judicial branch of government. This is a non-negotiable if our system is to continue to serve its function within our society as a whole.

a new business area! Perhaps what is needed is to put interlocutory matters in their proper place; to deal with them more summarily, without detailed written submissions and written judgements. This is an area in which I think we could all afford to be a little more rough and ready.

Are there aspects of Court practice in other jurisdictions that you would like to adopt here? What particular aspects of the Supreme (or other Courts) here do we, in your view, do best in.

You mentioned at your welcome the importance of an independent Bar and also of working in the public sector - what were the most valuable and memorable lessons or experiences you had in each of them?

First, what do we do best? From my observation, Western Australia has the best system of Court based mediation in Australia, both in terms of the rules and procedure concerning mediation and the expert mediators we have throughout the system. Western Australia was one of the first (if not the first) jurisdictions to introduce compulsory court-based mediation and I think it has served us very well.

What might we look at from elsewhere?

I may be wrong, but I suspect some of the other jurisdictions may deal with interlocutory disputes better than we do – especially in some of the specialist commercial lists. Interlocutory issues can,

The independent Bar is a remarkable institutional when you reflect on it, which could perhaps only have come out of the English common law tradition. It operates on something of a paradox: that a collection of professionals band together in a spirit of collegiality so that they can be fearlessly independent.

That combination of collegiality and independence is an incredibly fulfilling way to practice law. And not only is it good for the practitioner, it provides enormous benefit to the community as a whole. A strong independent Bar enables smaller firms to compete against large firms and so is a great leveller in the legal profession.

Without wanting to give away spoilers for your future addresses to newly admitted practitioners, what, in this current environment, do you think are the most important things to impress upon those entering the profession?

I’ll give away one spoiler; something I referred to in my welcome and which I have referred to in my note of congratulations to every practitioner whose admission I have moved. It’s a quote from Sir Gerard Brennan that “the law is administered more frequently and more directly by legal advisers than it is by judges”. New members of the profession should understand and embrace the fact that what they are doing, in their work, is administering the law and administering justice. Not just assisting the Courts to do so: but doing it directly themselves. Every time a lawyer provides frank, independent and accurate advice to a client that resolves a large or a small problem, they are directly administering justice. That is how they should view their work.

And also: remember to enjoy your work and take satisfaction in it. It’s incredibly important for the life of our community and we need you.

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EVENT WRAP UP

The Black Tie Gala Dinner Celebrate • Connect • Contribute

On Saturday, 4 August, the Law Society in association with the Western Australian Bar Association held its biennial Black Tie Gala Dinner. A chance for the legal profession to get together in a collegiate environment, nearly 400 joined us for a wonderful evening of reflection, entertainment, socialising and donating to an important cause.

Guests enjoyed sophisticated entertainment, quality wines, and three course fine dining in the luxurious surrounds of the Ballroom at Crown Towers, Perth. The keynote speech of the evening was delivered by the Federal Attorney-General for Australia, the Hon Christian Porter MP. AFL legend Peter Bell, hosted the evening as MC and kick started the night with a very special Welcome to Country with father and son duo Dr Richard Walley OAM and Olman Walley, culminating in a powerful performance counterpointing traditional and hip hop digeridoo sounds to captivate the audience.

Later in the evening, guests were treated to a surprise performance at the Steinway grand piano installed in the centre of the ball room, where guests had full circle view of international concert pianist Irina Vasilieva accompanying soprano Emma Pettemerides in a stunning rendition of favourites Somewhere Over the Rainbow and Time to Say Goodbye. The night concluded with jazz band Hip Mo’ Toast led by the incredible soulful voice of Libby Hammer.

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The evening also focused on giving back with generous guests raising important funds for Anglicare WA’s programme Street Connect. Guests participated enthusiastically and outbid each other in the silent auction for money-can’t-buy experiences, holidays, exclusive memorabilia, and art work.

Congratulations to those attendees that were successful in securing a coveted item from the auction, and we sincerely thank Law Society supporters for donating items and our generous sponsors for supporting the event.

We are delighted to announce that we raised $16,500 for the Chief Justice’s Youth Appeal Trust which will assist with their ongoing support of local charities including this year’s beneficiary Anglicare WA's programme Street Connect, which will receive $15,000.

The Law Society would also like to acknowledge the efforts of Attorney General the Hon John Quigley in securing a further funding of $15,000 for Street Connect from the Department of Justice.

The Attorney General and his Department were happy to support Street Connect, a program that aims to make connections with marginalised young people who gather regularly in public places, who may sleep rough, and engage them in positive life changes.

With a total of $31,500 raised by the Black Tie Gala Dinner, the Law Society would like to thank everyone who contributed so generously to achieve this fantastic outcome.

A special thanks to the sponsors of the evening; our Platinum Sponsor Jackson McDonald and Gold Sponsors: Bankwest, The College of Law, Herbert Smith Freehills, HHG Legal Group and Houlihan Lokey.

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“The Gala Dinner was a brilliant evening and it was so nice to spend time with colleagues in the beautiful Crown Towers” – Katrina Kerl, Cullen Macleod 7

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1. Helen Prince, Equus Chambers; Greg McIntyre SC, Senior Vice President, The Law Society of Western Australia

5. Dr Richard Walley OAM; Olman Walley

2. Matthew Edmondson; Her Honour Judge Kate Glancy, District Court of Western Australia; The Hon Justice Joe McGrath, Supreme Court of Western Australia; Hayley Cormann, President, The Law Society of Western Australia; The Hon Justice Janine Pritchard, The Supreme Court of Western Australia

7. The Hon John Quigley MLA, Attorney General of Western Australia; Michelle Quigley; Lucette Quinlan; The Hon Peter Quinlan, Chief Justice of Western Australia

3. Charmaine Tsang, President, Women Lawyers of WA (Inc); Belinda Wong, Corrs Chambers Westgarth; Dr Andrew Lu, The Law Society of Western Australia

6. Hayley Cormann, President, The Law Society of Western Australia

8. Ronan Boothman; Alyce Rae; Jack Campion, Mila Banovic; Michael Barnes; Belinda Wong; Sasha Dawson and Julien Blias of Corrs Chambers Westgarth

4. Michael Barnes; Julien Blias; Ronan Boothman and Jack Campion of Corrs Chambers Westgarth

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“I was delighted to attend the Black Tie Gala Dinner at the invitation of Presidents Hayley Cormann and Matt Howard SC. The location, food and company was outstanding, as were the formalities.

Congratulations on such a brilliant event, which whilst offering all the glamour that the West can offer, served also to raise funds for homeless and afford the legal profession of Western Australia a wonderful and collegiate opportunity to socialise with one another. Thank you for the warm welcome and experience, and well done!” – Morry Bailes, President, Law Council of Australia

4 “The Black Tie Gala Dinner was a fantastic night and a great opportunity for representatives from all the various aspects of the profession to renew acquaintances, catch-up and enjoy some good food and wine. The event was superbly organised, well run and the charity auction raised money for a great cause – which I was very pleased to be able to support. I will certainly be attending next time the event is on.” – Nigel Hunt, King & Wood Mallesons

Special thanks to our sponsors Platinum Sponsor

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Gold Sponsors

“The Gala was a sensational evening.

It was great to see so many colleagues joining together, and extra special to share the excitement of the big news of that week – the appointment of our new Chief Justice.” – Nick van Hattem, Councillor, The Law Society of Western Australia

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1. Linda Richardson; William Sloan and Paula Wilkinson of Kim Wilson & Co Family Lawyers 2. Stephen Hodder, Chief Executive, The Law Society of South Australia, David Price, Chief Executive Officer, The Law Society of Western Australia; Morry Bailes, President, Law Council of Australia 3. The Hon Christian Porter MP, Attorney General for Australia 4. Stephen Davies SC, Vice President, Western Australian Bar Association

7. Konrad de Kerloy, Treasurer, Law Council of Australia; Diane de Kerloy; Olga Klimczak, Herbert Smith Freehils; Declan Doherty, Environmental Defender’s Office Western Australia; Jane Ballard, Herbert Smith Freehills; Anna Creegan, Herbert Smith Freehills: Katie Brennan, Herbert Smith Freehills: Rachael Le Tessier, Herbert Smith Freehills: Stuart Barrymore, Herbert Smith Freehills; Karen Farley SC, Legal Aid Western Australia 8. Anne Hurley; Simon Creek, Murray Thornhill and Janene Bon of HHG Legal Group

5. Attendees placing bids in the silent auction 6. The Hon Len Roberts-Smith QC; Morry Bailes, President, Law Council of Australia; The Hon Christian Porter MP, Attorney General for Australia; Jennifer Porter; The Hon Justice Janine Pritchard; Stephen Davies SC, Vice President, Western Australian Bar Association; Tori Anderson, Anglicare WA; Mark Smith; Hayley Cormann, President, The Law Society of Western Australia; Senator the Hon Mathias Cormann, Minister for Finance; Michelle Quigley, The Hon John Quigley MLA, Attorney General of Western Australia

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The 2018 Joint Form General Conditions for the Sale of Land: a Guide to the Important Changes

By Paul Donovan, Director & Helen Burnside, Senior Associate, MDS Legal

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

INTRODUCTION

FINAL INSPECTIONS

On 13 February 2018 the latest version of the Joint Form of General Conditions for the Sale of Land (General Conditions) was published for use.

Under the General Conditions, the Buyer has always been entitled to inspect the property on 1 occasion within five business days of the Settlement Date (clause 5.1(a)).

The 2018 version of the document represents the first review of the General Conditions in seven years and a substantial number of amendments have been made.

The General Conditions are designed to enable an equitable foundation to exist for the vast majority of contracts entered into between buyers and sellers of real estate in WA. The document represents both a practical and legal solution to many of the complex issues that arise when real property is sold. It has evolved over a long period of time and endeavours to address practical problems in the real estate industry and legal problems as identified by the courts.

The purpose of this article is to provide detail of some of the major changes that have been made to the General Conditions in the 2018 version. It should be noted that a very large number of smaller changes have been made to the document, including the organising and ordering of individual clauses and the tidying up of the wording of provisions.

16 | BRIEF SEPTEMBER 2018

However, under the 2018 General Conditions, if following the first inspection the Buyer identifies items that require rectification by the Seller under the contract, the Buyer may give notice of those items to the Seller and is entitled to inspect the property again to ensure that they have been rectified.

This will assist buyers who are concerned about issues that require rectification at the property. Although sellers have always had an obligation to ensure that the property remains in the same state at settlement as it was immediately prior to the offer and acceptance being signed (pursuant to the representation in clause 9.1(f) (formerly 9.1(e)), now buyers will have a right to reinspect the property after giving notice of any problems to ensure that they have been rectified. Buyers who note plant and equipment that is not in good working order will also be able to give notice of those issues to sellers and reinspect the property prior to settlement to ensure that the problems have been remedied.

REPRESENTATIONS AND WARRANTIES BY SELLERS AND THE RAMIFICATIONS OF THEM BEING BREACHED The following changes have been made to the “Seller Representation and Warranty” Clause 9 of the General Conditions: (a) The fact that the representations and warranties are made by the Seller on the Contract Date and the Seller is taken to repeat those at the Possession Date is spelt out and emphasised; (b) Unless the parties have otherwise agreed, if the Seller is in breach of a warranty in clause 9 or 10 the Buyer has no right to terminate the Contract or defer or delay Settlement or withhold any part of the Purchase Price, unless the “breach unreasonably affects the proposed use of the Property by the Buyer or materially affects the value of the Property”; (c) It is now expressly provided that the representations and warranties can be excluded as specified in the Contract (i.e. special conditions in the

offer and acceptance) as well as otherwise “disclosed in writing” (this has already been the case with clause 10); and (d) The reference to representations and warranties applying at the “Contract Date, Possession Date and Settlement”, has been changed so that the reference to “Settlement Date” has been removed. However, “Possession Date” is now defined in clause 26.1 to be the earlier of the date Settlement occurs or the date that the Buyer is given possession under clause 6.1.

Note that under clause 6.1 the Buyer is now entitled to possession on the earlier of the date for possession (if any) specified in the Contract and Settlement (there is no longer any reference in the General Conditions to the potential for possession of the land to be given to the Buyer where there has been no mention of early possession in the Contract.

Presumably this can still occur

by variation to the Contract by the Parties).

(a) Clauses 13.3(a) and (b) provide that: (i)

In the portion of clause 10 (that applies when the Land is a Strata Lot) that deals with Representations and Warranties the following changes have been made: (a) The fact that the representations and warranties are made by the Seller on the Contract Date and the Seller is taken to repeat those at the Possession Date is spelt out and emphasised, as with clause 9; and

(ii) the Contract is conditional upon the Subdivision Plan being in Order for Dealing within 3 months after the date of endorsement of approval by the Planning Commission; and

(b) The reference to the representations and warranties applying to the Settlement Date, as well as the Date of Contract and Possession Date has been deleted, as with clause 9.

SUB-DIVISIONS AND THE CONCEPT OF “FUTURE LOTS” The following changes have been made to the Clause 13, the “Subdivision” clause, of the General Conditions:

the Contract is conditional upon the Planning Commission having endorsed approval on a Subdivision Plan within 12 months after approval for subdivision by the Planning Commission;

(iii) the periods referred to above can be extended in the Contract or a subsequent agreement in writing between the Parties. (b) Previously, if the conditions were not satisfied within the times stipulated then the Contract terminated at midnight at the end of the last day of the relevant period without the requirement for

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notice by either Party to the other (see the previous clause 13.7).

Contract automatically terminates – see the case of Casella v Hewitt [2008] WASCA 13.

(c) However, now, clause 13.3 provides that if the conditions specified are not satisfied either Party may at any time prior to the relevant condition being satisfied elect by Notice to the other Party to terminate the Contract and if that notice has been given the Contract terminates on the date of service of the Notice.

As mentioned above, the provisions dealing with the failing to satisfy condition 13.3 have changed. Clauses 13.3(a) and (b) provide that:

The Concept of a “Future Lot” has been introduced into the General Conditions to reflect changes made in 2016 to the Sale of Land Act, 1970.

In particular, clauses 13.9, 13.10 and 1.4 have been introduced into the document. Further details regarding these changes are dealt with below but the provisions in the Sale of Land Act are designed to deal with the situation where a developer of land is seeking to sell land that the developer does not yet own, while providing protection to consumers in that process.

(b) the contract is conditional upon the Subdivision Plan being in Order for Dealing within 3 months after the date of endorsement of approval by the Planning Commission; and

When Does Clause 13 Apply?

The provision applies to land which is not a Lot as defined in the Planning and Development Act, 2005 (PD Act) at the date on which the last party to sign the contract signs it. It should be stressed that if clause 13 was not included in the general conditions (that arises out of the provisions of section 140 of the PD Act) the attempted sale of land that was not yet a Lot (e.g. was intended to be the product of a subdivision) would likely be illegal and unenforceable due to the provisions of sections 135 and 136 of the PD Act. It should also be noted that the term “Proposed Strata Lot” is defined in the General Conditions as meaning “a Lot on a Strata Plan which on the Contract Date has not been registered at Landgate”. Clauses 13.6, 13.7 and 13.10 apply when the land is a proposed Strata Lot.

Why is it Important?

If the requirements of condition 13.2 are not met (conditions requiring the application for submission to be lodged with the Planning Commission within 3 months after the Contract Date and approval being granted within 6 of the Contract Date (or any longer period specified in the Contract or agreed in writing), the 18 | BRIEF SEPTEMBER 2018

(a) the contract is conditional upon the Planning Commission having endorsed approval on a Subdivision Plan within 12 months after approval for subdivision by the Planning Commission; and

(c) the periods referred to above can be extended in the Contract or a subsequent agreement in writing between the Parties.

Previously if the conditions were not satisfied within the times stipulated then the Contract terminated at midnight at the end of the last day of the relevant period without the requirement for notice by either Party to the other (see the previous clause 13.7).

However, now, clause 13.3 provides that if the conditions specified are not satisfied either Party may at any time prior to the relevant condition being satisfied elect by Notice to the other Party to terminate the Contract and if that notice has been given the Contract terminates on the date of service of the Notice.

This gives rise to a question. That is, what if no notice is given? The new clause 13.3 appears to contemplate that if no notice is provided then the contract will continue to run (i.e. will not be automatically terminated) and if the conditions are satisfied before any notice is given the Contract will no longer be able to be terminated due to the time limits not having been met. However, assuming this is the intention of the new clause, there is some doubt as to whether the clause achieves this intention. Clause 13.3(a) expressly states that the Contract is “conditional” upon the stipulated time frames being met and clause 13.3(b) only allows the time limits to be to be extended in the Contract or in a subsequent written agreement.

This would seem to count against a construction that permits, in effect,

the time limits to be extended without agreement such that if the parties overlook sending a notice (or choose not to) the period will automatically be extended.

A measure of uncertainty therefore exists as to what the position is when no notice is given under clause 13.3.

It would seem prudent, therefore, if a party does wish the time limit to be extended for that extension to be agreed in writing. Likewise, if either party does not want there to be a risk that the time limit is running automatically because a notice has not been given, the party should give a notice ending the contract.

Lawyers involved with these sorts of contracts may be called upon to give advice as to the impact of clause 13.3 and what should be done to preserve or terminate the contract. If the actions referred to in the previous paragraph are not taken there is a risk that a dispute will arise as to whether the contract has been terminated or not and this might wind up in costly litigation.

Leaving the issues referred to above regarding clause 13.3, ignorance of the time periods in clause 13 can result in an unwary Buyer or Seller finding that the contract that they have relied upon is void and they have no legal recourse to recoup any loss.

Further, because the requirements take place over a substantial period of time, the value of the Property being sold will may well have risen or fallen by the time these conditions need to be satisfied.

If the value of the property has decreased or the Buyer cannot finance the purchase, the Buyer will often want to get out of the contract.

Non-performance of a requirement in clause 13 provides the best possible excuse for a Buyer seeking termination of the contract, with the deposit then being refunded and no possibility of a claim against the Buyer for defaulting on the contract. Sellers should therefore be careful to comply with the time limits in clause 13 or they risk the contract being terminated and having to resell the property possibly at a lower price, depending on the market.

Conversely if the value of the property has increased significantly, the Seller may seek to rely on clause 13.5 to terminate the contract with the aim of renegotiating a new contract for a higher sale price.

Future Lot Contracts Clauses 13.9 and 1.4 of the General Conditions have been introduced to deal with the concept of the “Future Lot Contract”. This term was formally introduced to Western Australian property law as a consequence of the Sale of Land Amendment Bill, 2016 and came into effect from 3 April 2017.

To understand this important new concept in the General Conditions one needs to also be familiar with the relevant provisions of the Sale of Land Act, not the least of which is because even the definition of “Future Lot Contract” in the General Conditions refers back to the Sale of Land Act. A Future Lot Contract is defined in section 11 of the Sale of Land Act as being: an executory contract for the sale and purchase of one or more lots to be created by subdivision where the vendor is a person — (a) who is not the proprietor of the lot or lots to which the contract relates; but (b) who will become, or will be entitled to become, the proprietor of that lot or those lots; In 2014 the WA Court of Appeal in the case of Barker v Midstyle Nominees Pty Ltd [2014] WASCA 75 (Midstyle) considered the then restrictions upon the sale of subdivisional land set out in section 13 of the Sale of Land Act. As things were in 2014, section 13 imposed restrictions upon the right to sell 5 or more lots in a subdivision or proposed subdivision or 2 or more lots in the case of a subdivision or proposed subdivision under the Strata Titles Act, 1985. In particular, a person was precluded from selling any such lots unless the person was the proprietor, an agent of the proprietor, sold the lots as one of 5 or more lots (or in the case of Strata Titles property, 2 lots) to one person in one transaction, was empowered to do so under legislation, or was presently entitled to become the proprietor of the lot. The section made it clear that a person was deemed to not be presently entitled to become the proprietor of a lot unless the person was at the date of the sale of the lot entitled to be registered as proprietor of it.

In Midstyle the parties admitted that a contravention of section 13 had occurred. The questions that fell to be

decided centred on the ramifications of that breach. The Court of Appeal concluded that the failure to comply with the section did not result in the contract being void. However, the contract was enforceable by the Buyer but unenforceable by the seller/ developer. It remained unenforceable

by Midstyle upon Midstyle becoming, and after Midstyle became, the registered proprietor of the Land.

Subsequent to the Midstyle case being decided, the State Government recognised that the ramifications of section 13 were undesirable, particularly for small developers and, consequently, the efficient conduct of that section of the market. In particular, it was recognised that developers often wish to sell lots for good reason before they have become entitled to become the registered proprietors of those lots.

Often the developer needs to obtain the commitment of buyers of the subdivided lots that are intended to make up the proposed development before lending institutions will lend the money needed to finance the purchase of the parent lot to be developed. Without the ability to onsell the subdivided lots in the parent lot before becoming the registered proprietor (or entitled to be the registered proprietor) a developer would often be unable to proceed with the planned development.

All of this would not be in the best of interests of developers, consumers wanting to buy into such developments or the economy.

For example, a developer with an option to buy a parent lot (or lots) who was not able to enter into a contract to buy the parent lot until finance was obtained (and the bank would not provide finance until buyers had committed to buy into the development) would effectively be precluded by section 13 from proceeding with the development.

However, without clear protections for Buyers, changes to the law permitting developers to be able to sell lots in a subdivision for which the developer was not entitled to be the registered proprietor carried with it, in the view of government, unacceptable risks. These included unscrupulous developers absconding with deposit monies or other problems arising if finance for a development fell through.

The 2016 amendments to the Sale of Land Act were introduced to find a solution to these problems.

Noteworthy features of these changes are as follows: (a) The amendments apply to all subdivisions, not just those of 5 lots or more (or, in the case of Strata subdivisions, 2 lots or more) (sections 11 and 13A); (b) Sellers must give a warning (in a prescribed form) that they are not the owners of the parent lot and, if the warning is not given, the contract is illegal and void.

A seller who enters a Future Lot Contract that does not contain the warning commits an offence (section 13C); (c) The contract must include a condition (called the Vendor’s Condition) whereby the seller must become, or be entitled to become, the proprietor of the land within a prescribed time (being 6 months or such other time that is agreed in the contract with the Buyer of the subdivision lot or a variation to that contract). A seller is entitled to become the proprietor of the lot if the seller is entitled to be registered as proprietor or that lot under one or more registrable instruments or under an application or applications under the Transfer of Land Act, 1893 which have been lodged with the Registrar of Titles. If the Vendor’s Condition is not included in the contract, the contract is illegal and void and the Buyer may recover from the Deposit Holder (or any other person to whom the deposit was paid) the deposit and any other money paid under the contract (such as any further instalment of the purchase price) plus any interest accrued on those amounts. A seller who enters a Future Lot Contract that does not contain the Vendor’s Condition commits an offence (section 13B); (d) The seller and, if applicable, a buyer must make all reasonable endeavours to ensure that the seller can satisfy the Vendor’s Condition.

This includes obtaining the necessary regulatory approvals for the subdivision or proposed subdivision and creating or lodging the necessary plans for the subdivision or proposed subdivision. The seller must 19

the contract is illegal and void and the Buyer may recover from the Deposit Holder (or any other person to whom the deposit was paid) the deposit and any other money paid under the contract plus any interest accrued on those amounts (section 13D). It is interesting to note that there is no provision that a Seller who enters a Future Lot Contract that does not contain this condition commits an offence.

comply with any of these provisions by the Deposit Holder amounts to an offence by that person. A Deposit Holder may deduct from any of these required payments to the Buyer any amounts due under the Contract to the Seller in respect to any period during which the Buyer was in occupation of the relevant lot or lots or entitled to receive the rents or profits of that lot or those lots (section 13E); and

(h) The Seller must pay any deposit or other amount payable by the Buyer under the contract to a Deposit Holder specified in the contract within 2 working days after receipt of the payment. If this does not occur the seller commits an offence. Further, the contract is illegal and void and the Buyer may recover from the Deposit Holder (or any other person to whom the deposit was paid) the deposit and any other money paid under the contract (such as any further instalment of the purchase price) plus any interest accrued on those amounts.

(k) The Registrar of Titles may from time to time require an audit of a Deposit Holder’s trust account for the purpose of determining compliance with the requirements of section 13E and a Deposit Holder must comply with that request.

Such an audit must be carried out by a person who the Registrar of Titles considers to be suitable qualified. If the Deposit Holder fails to arrange for the audit then the Registrar may engage a person chosen by the Registrar, require the Deposit Holder to give access to the trust account and other records (and apply for a Court order is this is refused within a reasonable time) and recover the costs of doing this from the Deposit Holder (section 13F).

As set out in section 13E, a failure by the Deposit Holder to arrange for this audit when required is an offence.

also give the Buyer reasonable information about the steps taken to satisfy the Vendor’s Condition within a reasonable time of receiving any written request for information by the Buyer. These provisions are taken as being included in any Future Lot Contract despite any agreement to the contrary (section 13G); (e) If the Vendor’s Condition is satisfied the seller must give the Buyer notice in writing of that fact within 10 “working” days after the satisfaction has occurred. If that notice is not given the Vendor’s Condition is taken to not have been satisfied (section 13H); (f)

If the Vendor’s Condition is not satisfied the Buyer may terminate the contract by notice in writing to the seller or the seller may terminate the contract by notice in writing to the Buyer but only if the seller has complied with section 13G. If the Vendor’s Condition is taken not to have been satisfied due to the failure of the seller to comply with section 13H the Buyer may terminate the contract by notice in writing to the Seller, but the Seller is not entitled to do so. If the contract is terminated under this section, the Buyer is entitled to recover from the Deposit Holder specified in the contract (or any other person to whom the deposit was paid) the deposit or any other amount paid by the Buyer under the contract and any interest that has accrued (section 13I);

(g) A Future Lot Contract must provide that any deposit or other amount payable by the Buyer under the contract must be paid to a Deposit Holder specified in the contract within 2 working days after receipt of the payment and held by the holder “on trust for the person entitled to receive it under the contract”.

It should be noted that the Deposit Holder holds the money on trust for a particular person (i.e. as a trustee), not as a stakeholder (a Deposit Holder is defined in section 11 to be an Australian Legal Practitioner, a real estate agent or a settlement agent). If this required provision is not included in the contract 20 | BRIEF SEPTEMBER 2018

(i)

A Deposit Holder must:

(i) operate a trust account

in an authorised deposittaking institution (ADI, as defined in section 11) to which all these types of deposits must be paid;

(ii) arrange for the trust

account to be audited when required under section 13F(1);

(iii) hold the amounts on trust

for the Buyer until the right for the Buyer to recover the amounts arises as set out above in relation to sections 13C, 13D or 13I, settlement of the Future Lot Contract occurs, the completion of the transfer of the lot or lots to which the Future Lot Contact relates occurs, or the any other circumstances that would entitle the seller or buyer to be paid the amounts occur.

(j)

The Deposit Holder must repay the monies if the rights to recover referred to above arise. A failure to

To enable contracts the subject of the General Conditions to comply with the requirements of Future Lot Contracts set out above, clauses 1.4 and 13.9 have been introduced and the appropriate inclusions in clause 13.10 have been made. In particular: (a) the Vendor’s Condition (section 13B) has been included in clause 13.9(a)(1); (b) the obligation on the Seller to give the necessary warning under section 13C; (c) The need for the Seller to use reasonable endeavours to obtain approvals, lodge plans and give information to the Buyer (section 13G); and the need for the Seller to notify the Buyer within 10 Business Days (the definition of “working” day in section 11 equates to the definition of Business Day in clause 26 of the General

Conditions) of the Vendor’s Condition being satisfied (section 13H) has been stipulated in clause 13.9(a)(2); (d) clause 13(b) stipulates that if the Contract is terminated by the Buyer due to clause 13.9(a) (1) not being satisfied or under the Sale of Land Act clause 13.10 applies. Clause 13.10 relevantly provides that the Deposit and any other money paid by the Buyer under the Contract must be promptly repaid to the Buyer, if the Deposit has been invested by the Deposit Holder in accordance with clause 1.9 the Buyer is entitled to the interest, if any other money has been paid to the Deposit Holder by the Buyer and invested in a Deposit Financial Institution the Buyer is entitled to the interest on that money and, subject to these stipulations, no Party has any claim or right or action against the other arising from the termination, except in respect to any matter which arose before the termination;

PEXA_LSWA_185x130mm_V2_OL_FA.indd 1

(e) clause 13.9(c) provides that clause 13.9 and the Sale of Land Act have priority over any other provision of the Contract; and (f)

clause 1.4 provides that, if the Contract is a Future Lot Contract: (a) clause 1.1(c) (enabling the Deposit to be paid to the Seller if no Seller Agent or Representative has been appointed) does not apply (the effect of the Sale of Land Act is that the Deposit must be held by a real estate agent, a lawyer or a settlement agent); (b) clauses 1.2 (stipulating that the Deposit is held by the Deposit Holder as a stakeholder, setting out the Deposit Claimant and Deposit Respondent process set out in the part of this paper dealing with deposits) and 1.3 (setting out the treatment of deposits with Strata Lots) do not apply until

the condition in clause 13.9(a)(1) (the Vendor’s Condition) has been satisfied; (c) the Deposit or other amount payable by the Buyer under the Contract must be paid by the Seller to the Deposit Holder specified in the Contract within 2 Business Days after receipt of the payment from the Buyer and held by the Deposit Holder on trust for the person entitled to receive it under the Contract or the Sale of Land Act; and (d) the Deposit Holder must comply with the Sale of Land Act.

Obligations upon lawyers regarding Future Lot Contracts As can be seen from the above analysis of the Future Lot Contracts regime, there are considerable obligations now placed upon lawyers in relation to these types of contracts. These include:

7/8/18 5:05 pm

21

(a) The need for lawyers to be aware of all of the provisions of the Sale of Land act and the corresponding clauses (1.4, 13.9 and 13.10) of the General Conditions;

be aware that there is a slight difference between the Sale of Land Act and the General Conditions as to the timing of when the Future Lot Contract process comes to a finish. As set out above, section 13E contains a provision that the monies must be held on trust until (amongst other things) the completion of the transfer of the lot or lots to which the Future Lot Contact relates occurs. However, clause 1.4, in effect, says (as also set out above) that clauses 1.2 and 1.3 do not apply until the Vendor’s Condition has been satisfied. Under clause 13.9(a)(1) and section 13B, the Vendor’s Condition is satisfied when the Seller is entitled to become the proprietor (not, necessarily, when that process has been completed). In order to comply with section 13E it is recommended that lawyers who are Deposit Holders ensure that the transfer of the lot is completed before treating their obligations under the Sale of Land Act as coming to an end and becoming stakeholders entitled to the benefit of clauses 1.2 and 1.3;

(b) The significance of the provisions that have been introduced into the General Conditions and, effectively, an inability for them to be deleted; (c) The time limit imposed upon Sellers to comply with the Vendor’s Condition (6 months) and the need for this limit to be extended in the Contract or a variation to the Contract if required; (d) The need for the Seller (and if applicable the Buyer) to make reasonable endeavours to comply with the Vendor’s Condition and to provide information to the Buyer within a reasonable time of receiving any written request for information; (e) The need for the Seller to give the Buyer notice in writing if the Vendor’s Condition is satisfied within 10 Business Days after the satisfaction has occurred; (f)

The rights of the Buyer to terminate the Contract if the Vendor’s Condition is not satisfied;

(i)

(g) The need for the Seller to pay to the Deposit Holder the Deposit and any other monies paid by the Buyer under the Contract within 2 Business Days; (h) The fact that the Deposit Holder holds the Deposit and other monies as a trustee “on trust for the person entitled to receive it under the contract” rather than a stakeholder.

Therefore, clauses 1.2 (stipulating that the Deposit is held by the Deposit Holder as a stakeholder, setting out the Deposit Claimant and Deposit Respondent process set out in the part of this paper dealing with deposits) and 1.3 (setting out the treatment of deposits with Strata Lots) do not apply unless and until the requirements of the Sale of Land Act have been met.

To that end, lawyers need to 22 | BRIEF SEPTEMBER 2018

(j)

The need to understand that Deposit Holders hold monies as trustees for Buyers pursuant to the Future Lot Contracts regime, they do not act as stakeholders and their fiduciary duties are owed to the Buyer. That said, for practical purposes if a dispute arose between a Seller and Buyer who was entitled to those trust monies it may well be prudent for a Deposit Holder to seek directions from the Supreme Court pursuant to section 92 of the Trustees Act, 1962. This way a trustee can be assured of personal protection and avoid the risk of litigation by a disgruntled party against them; and The obligations under the General Conditions and the Sale of Land Act upon Deposit Holders including, but not limited to, that they must operate a trust account in an ADI, comply with requests from the Registrar of Titles for an audit and hold the amounts

on trust for the Buyer until the right for the Buyer to recover the amounts arises under the Contract or the Sale of Land Act (as set out above), settlement of the Future Lot Contract, the completion of the transfer of the lot or lots to which the Future Lot Contact relates or the occurrence of any other circumstances that would entitle the Seller or Buyer to be paid the amounts.

Offences by Deposit Holders (including lawyers) and Sellers regarding Future Lot Contracts As set out in the analysis above there are various obligations placed upon Deposit Holders (including lawyers) and Sellers under the Sale of Land Act in relation to Future Lot Contracts that amount to offences if not complied with.

Until the 2016 amendments offences under the Sale of Land Act attracted a maximum penalty of $750. That has now been increased to $100,000.

Lawyers need to be aware that they are very much at risk of being liable for the penalties imposed on Deposit Holders if the provisions are breached.

Further, lawyers should be in a position to clearly warn Sellers of the ramifications of any breaches by them of the provisions of the Sale of Land Act. Indeed, any lawyer who failed to provide reasonable guidance and warning to Sellers of these matters may be liable in contract or tort for if the Seller runs afoul of these requirements.

Time Limits in this Condition 13 (not just Future Lot Contracts) Often Misunderstood The parties to contracts are often unaware or confused about the time limits that apply under Condition 13 (not just in relation to Future Lot Contracts). Lawyers should carefully explain the time limits.

Termination of the Contract As seen above in relation to Future Lot Contracts, where the Contract is terminated pursuant to the operation of clause 13, clause 13.10 provides: (a) Any money paid by the Buyer under the contract must be repaid (including the Deposit); and

(b) Any interest earned on the Deposit or on any other money paid by the Buyer must be paid to the Buyer.

This provision applies to all terminations that occur pursuant to clause 13.

Other than the repayment of the Deposit and other money, no party will have any claim or right of action against the other arising from the termination, except in relation to any matter which arose before the termination.

SERVICE OF NOTICES, INCLUDING (NOW) BY EMAIL Previously, the General Conditions did not provide for Notices to be served by email. Unless service using this method was provided for in a special condition in the Contract, service by email carried with it a real risk of being ineffective.

Clause 21 of the General Conditions sets out the requirements for service of Notices under the Contract.

Clause 21.4 now provides that if an email address is specified in the Contract or by a Party or Representative (that is defined as being a lawyer or settlement agent – not a real estate agent) then a Notice to the relevant Party or Representative may be sent to the specified email address. A Notice sent by email is treated as served when it is sent unless the sender receives a return email to the effect that the email was not transmitted successfully and on the day on which it is sent but if the email is sent by the sender on a day which is not a Business Day or after 5.00pm, (addressee’s time), it is treated as having been given on the next Business Day. Clause 21.4 specifies that the Parties to the Contract, in those circumstances, consent to a Notice being given by email.

An email address (and/or facsimile number) of a Representative or a Party referred to by a Representative in correspondence with a Party or Representative is taken as being the email (or facsimile) address of that Party or Representative for the purposes of the clause. However, the Representative may also give a notice that an email (or facsimile) address previously specified in correspondence is not the email address of the Party or Representative.

The standard REIWA offer and acceptance is being amended to provide for specific details of email addresses to be included.

EARLY POSSESSION BEFORE SETTLEMENT AND LIABILITY TO PAY OUTGOINGS There have been some amendments to the parts of the General Conditions which concern early possession and the liability to pay outgoings.

Early possession and terms contracts are dealt with in clause 14 of the General Conditions. However, entitlement to possession is dealt with more broadly in clause 6.

As set out above in relation to representations and warranties by sellers, clause 6.1 has been amended to state that the Buyer is entitled to possession on the earlier of the date for possession (if any) specified in the contract and settlement. Prior to this amendment, the Buyer was entitled to possession on the earlier of settlement, the date for possession specified in the contract, and the date that the Buyer was given possession.

In effect, this amendment means that a buyer will not be entitled to possession prior to settlement unless a date for early possession is specified in the contract. The practical impact of this change will, however, likely be minimal provided that buyers and sellers who wish the Buyer to have early possession amend the contract accordingly. Nevertheless, buyer and sellers (and their representatives) should be conscious of this need for the contract to be amended when early possession is discussed after the contract has already been signed.

The definition of “Possession Date” has also been amended. In the 2011 General Conditions the Possession Date was simply the date on which the Buyer was entitled to possession of the property. Now, Possession Date is the earlier of the Settlement Date and the date on which the Buyer is given possession of the property. This change was likely made for drafting reasons – to avoid the need to repeat “the earlier of the Settlement Date and the Possession Date” in other clauses of the contract.

Clause 6.2 has been amended as well. Previously, the General Conditions stated that clauses 14.6 to 14.9 apply until settlement where the Buyer is given early possession

of the property. In the 2018 General Conditions a distinction has been drawn between early possession given for a period of less than one month prior to settlement and early possession given for longer periods.

In either case, clauses 14.6 of 14.9 of the General Conditions will apply until settlement. However, in the case of early possession for a period of longer than one month, those clauses only apply subject to the conditions of the Residential Tenancies Act, 1987 (RTA) until settlement.

As such, although there have only been minor amendments to clause 14 itself, with clause 14.1 amended to clarify that clauses 14.6 to 14.9 only apply if the Buyer is given possession of the property before settlement, the specific reference to the RTA may have a significant impact on buyers and sellers.

If the RTA applies, a buyer who is given early possession of the property will effectively be a tenant under a residential tenancy lease until settlement. This will not be the case in every instance of early possession.

A “residential tenancy agreement” is defined in the RTA as an: agreement, whether or not in writing and whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence; As such, the RTA will not apply in cases where the property in question is commercial, rather than residential.

It also may not apply where early possession of residential premises is provided for some reason other than them being used as a residence by the Buyer. However, in cases where a buyer is permitted to reside in a property more than one month prior to settlement, the RTA will often apply.

Although, of course, the potential applicability of the RTA arose as a consequence of the terms of that act before this amendment to the 2018 General Conditions, many buyers and sellers (and even lawyers) have been unaware of that potential. This amendment to the General Conditions now draws attention to that issue.

Whether the RTA actually does apply to particular instances where early possession is given more than one month prior to settlement depends on the proper construction of the RTA and is the subject of some conjecture.

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DEPOSITS Clause 1.2(f) of the General Conditions has been amended to allow a Deposit Holder (generally the Seller’s Agent) who has been served with a Deposit Holder Notice to deduct from a deposit their legal costs incurred in connection with obtaining legal advice in relation to the deposit.

Previously, the Deposit Holder was only entitled to deduct their legal costs incurred in connection with actual interpleader proceedings from the deposit. However, this would still leave the Deposit Holder out of pocket where they obtained legal advice in relation to the Deposit Holder Notice but did not commence legal proceedings. Given the cost of issuing legal proceedings as compared to the sum of a typical deposit, interpleader proceedings are usually not commercially attractive.

Nevertheless, it is often necessary for a Deposit Holder faced with competing demands for a deposit to obtain legal advice. This amended provision provides some protection for Deposit Holders placed in such a position.

Clause 1.9 (formerly 1.8) has also been amended. This clause now states that the Deposit Holder may invest the deposit in an interestbearing trust account if requested by the Buyer and permitted by law.

Previously, clause 1.8 stated that the provision in clause 1.7 (now 1.8) did not prevent the Deposit Holder paying the deposit into a trust account with a trust account with a Deposit Financial Institution in the name of the Deposit Holder. (Clause 1.7 stated that a party was not entitled to direct the Deposit Holder to pay the deposit to any person before the earlier of the possession date and settlement.)

Effectively, this change means that the Deposit Holder will only be entitled to pay the deposit into an interestbearing trust account at the request of the Buyer.

The procedure for paying and claiming a deposit should be considered in light of these new developments.

subject to a security interest to which the Personal Property Security Act, 2008 (PPSA) applies.

pay from the balance of the purchase price, the Landgate fee to register a discharge of mortgage at settlement.

Of course, the PPSA sets up a national online register of security interests attached to personal property, the Personal Property Security Register (PPSR). The PPSR may record whether another party has an interest in the Property Chattels.

This new provision clarifies any ambiguity as to the obligation to pay for the discharge of the Seller’s mortgage.

The PPSR does not apply to real property. As such, it does not record interests in land.

The Seller must, on the written request of the Buyer, give to the Buyer a reasonable time before settlement all information necessary to allow the Buyer to determine whether the property chattels are subject to a security interest to which the PPSA applies.

If the chattels are subject to a security interest, then the Seller must remove the interest from the PPSR on or before the settlement date, provide the Buyer with a release of the security interest in a form acceptable to the Buyer or otherwise deal with the security interest by written agreement with the Seller.

This is more likely to arise in relation to commercial sales than residential sales.

DUTY Clause 3.3 has been amended such that the Buyer must arrange for the transfer to be duty endorsed at settlement or, where the duty has been assessed through revenue online, a certificate of duty to be given at settlement.

In part, this change arises from the introduction of electronic conveying discussed in greater detail below.

However, it also represents a change from the previous version of the General Conditions pursuant to which the transfer was to be duty endorsed and delivered to the Seller prior to settlement.

PPSR – SECURITY INTEREST

PAYMENT OF LANDGATE FEE TO REGISTER DISCHARGE OF MORTGAGE

A provision has been added to the General Conditions (clause 2.8) which entitles the Buyer to obtain from the Seller all information necessary to allow the Buyer to determine whether chattels sold with the property are

Clause 3.6 (formerly 3.7) has been amended by the inclusion of a new subclause (b). The new subclause states that where there is a registered mortgage on the land the Seller must pay, or must request the Buyer to

24 | BRIEF SEPTEMBER 2018

FOREIGN RESIDENT WITHHOLDING Clause 3.7 has been added to the General Conditions in relation to foreign resident capital gains withholding payments.

In broad terms, under the Tax Administration Act, 1953 (Cth), where the Seller is a foreign resident and the property is sold over the threshold amount (currently $750,000), the Buyer is required to withhold an amount from the purchase price and pay that amount to the Australian Taxation Office.

As such, pursuant to clause 3.7, the Buyer must deduct the “Withholding Amount” (being the amount required to be deducted according to section 14-200 of Schedule 1 to the Tax Administration Act) from the purchase price and pay that sum to the Commissioner, unless the Seller provides the Buyer with a “Clearance Certificate” at least 2 days before settlement. Sellers who are Australian residents can complete this form to avoid having any sum withheld from the purchase price. The form can be completed online on the ATO website.

Real estate agents and conveyancers cannot complete the form on behalf of the Seller. The Seller may complete the form him or herself, or engage a solicitor, accountant or tax agent to do so. The Seller may provide a paper PDF version to the agent or conveyancer to enter the details online to expedite the process.

The Buyer will need to provide evidence at settlement that the Withholding Amount has been paid to the Commissioner, a written undertaking to pay the Withholding Amount to the Commissioner immediately following settlement or any other evidence related to the payment of the Withholding Amount that is acceptable to the Seller.

Sellers will often be able to recover much of the withheld money (depending on whether or not there has been a capital gain) by lodging a tax return.

Of course, under the Contract (the Offer and Acceptance) the Buyer is obliged to pay the balance of the settlement sum to the Seller at settlement. As such, there is potentially a conflict between the Offer and Acceptance and clause 3.7.

ELECTRONIC CONVEYANCING Clause 3.12 has been added to the General Conditions and concerns electronic conveyancing. The clause applies if Landgate has required that the contract be completed by electronic settlement, the contract specifies that there will be an electronic settlement, or the parties agree to electronic settlement.

From May 2018, Landgate will require that all new, stand-alone transfers be lodged electronically.

Clause 3.12 deals with the practicalities of electronic conveyancing, including that each party must be, or engage a representative who is, a subscriber under the Electronic Conveyancing National Law.

RATE ENCUMBRANCES Pursuant to clause 2.1 of the General Conditions, the Seller sells the property free of any encumbrance other than encumbrances specified in the contract or, if the property is a strata lot, interests recorded on the strata plan.

There have been some amendments to the way in which the General Conditions deals with Rate Encumbrances.

A “Rate Encumbrance” is defined as a charge created over the land by an Act which arises from an Unpaid Rate Outgoing (an outgoing in respect to the land which, at settlement, is the subject of an assessment by an authority and unpaid). Under the previous version of the General Conditions, a “Rate Encumbrance” could also arise from a Future Rate Outgoing, being an outgoing that is not yet the subject of an assessment at settlement. However, under the amended General Conditions, obligations to pay “Future Rate Outgoings” are not treated as Rate Encumbrances. Nevertheless, as discussed further below, the practical impact of this change is minimal.

Under the previous version of clause 2.3 of the General Conditions, Rate

Encumbrances would not be treated as encumbrances (and therefore not offend clause 2.1) in certain circumstances. That is, provided that the Seller’s Representative provides a written undertaking to the Buyer Representative to deduct an amount equal to the amount required to pay each Unpaid Rate Outgoing and pays that amount to the relevant authority, or the Buyer Representatives provides a written undertaking that monies will be held in trust at settlement to pay the Unpaid Rate Outgoings, the Rate Encumbrance will not be treated as an “Encumbrance”.

Strata Title by Offer and Acceptance, as set out below: (a) A warning has been added to the top of the form stating that if the purchase price is $750,000 a Withholding Amount (pursuant to clause 3.7 of the General Conditions, as discussed at paragraph 75 and following above) may apply to the Contract. (b) The previous condition 4 on the Offer and Acceptance form has been deleted and moved to the front of the document in the form of a warning. The warning states that if GST is relevant to the transaction then the relevant GST provision should be outlined in the Special Conditions or the GST annexure. This is consistent with the previous condition.

Under the amended General Conditions, if the land is subject to a Rate Encumbrance at settlement the Seller must provide the Buyer at settlement any discharge, withdrawal or other settlement required to remove the Rate Encumbrance from the Certificate of Title and arrange for the Unpaid Rate Outgoing to be paid at Settlement.

(c) A new condition 4 has been added to the form which states, “The parties consent to the information in this Contract being used/disclosed by REIWA and the Seller Agent in accordance with the privacy collection notices pursuant to the Australian Privacy Principles that appear on the REIWA and Seller Agent’s websites.”

If the Rate Encumbrance is not yet registered on the Certificate of Title it is to be dealt with largely in the same way as it was under the previous version of the General Conditions.

Clause 2.4, which previously dealt with Rate Encumbrances arising from Future Rate Outgoings (being an outgoing for which an assessment has not yet been issued at settlement), has been deleted.

Future Rate Outgoings are now dealt with in clause 7.7, which in practical terms largely reproduces the previous clause 2.4. This clause should be referred to directly as to the procedures and requirements that are stipulated.

(d) Spaces for the Buyer and seller to include email addresses for the service of notices has been added to the form. (e) The form now refers to the 2018 General Conditions, not the 2011 General Conditions. …

REGISTRATION OF TRANSFER Clause 20.2 has been amended such that the Seller is no longer obliged, on the request of the Buyer, to give the Buyer or Buyer’s mortgagee a written undertaking to comply with its obligation to do everything reasonably requested by the Buyer to enable the transfer to be accepted and registered at Landgate. Prior to this amendment, at the Buyer’s request the Seller was required to provide the undertaking in favour of the Buyer or the Buyer’s mortgagee 3 days prior to settlement.

OFFER AND ACCEPTANCE REIWA has made some amendments to the Contract for Sale of Land or

Paul Donovan is a director of MDS Legal and is a founding director of that firm and its predecessors. He has over 35 years’ of experience as a lawyer and specialises in a wide range of areas of commercial advice and litigation, including in relation to property law. Paul has appeared as counsel in all major courts in Western Australia.

Helen Burnside is a Senior Associate at MDS and was admitted as a lawyer in 2011. She has been employed at MDS Legal since 2013. Helen specialises in the same areas of law as Paul and has extensive experience in providing commercial advice and court representation, including on matters concerning property law.

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26 | BRIEF SEPTEMBER 2018

The Viability of Small and Medium Sized Legal Practices

By Rob Knowsley Principal, Knowsley Management Services For quite some years now there has been a lot of discussion about the viability of small-medium legal practice; unfortunately, much of it quite negative.

For at least the last thirty years’ various pundits have signaled the eventual disappearance of the smaller, general, legal practice. Commentators more recently have argued that we are heading to a gross over-supply of private practice lawyers, assuming that there will not be enough work to go around, and that revenues and profitability will inevitably fall.

I have a much more positive view of the future and have penned this article from that perspective, looking back across the decades since my Admission in 1975 to draw on a wide range of experiences in the trenches with small-medium

practices. I freely acknowledge that my thoughts on what is important to viability will not necessarily align with what might be found in a textbook on the subject.

Preliminary points Law is a Profession, with very special considerations applying, but for the big majority of practices very similar considerations apply as to those for ‘normal’ businesses. Viability is important in both.

What ‘viable’ is understood to mean will differ widely, even wildly, from practitioner to practitioner.

One dictionary definition of ‘viable’ is, “Capable of living, developing, or germinating under favourable conditions”.

Many readers might consider that current conditions are somewhat less

than favourable, but as always, those participants in any marketplace who best understand and best react, getting the fundamentals right, will achieve the best outcomes. There are sensible responses available for increased competition, increased regulation, pricing pressures and technological developments.

What size delimits a ‘small-medium’ legal practice? For the purpose of this article, I would set an arbitrary number of lawyers in total at 30, for the upper limit of small-medium practices. Numerous statistics available to us use different numbers. My reasoning is that above this level practices tend to have genuinely experienced managers.

Importantly, although the range of numbers used to delineate ‘small’ or ‘medium’ can be a bit rubbery, the principles of viability for practices are pretty much standard. In looking into the definitions of ‘viability’ as my logicaI 27

starting point I quickly came across this from the Australian Tax Office.

“Viability is defined as the ability to survive. In a business sense, that ability to survive is ultimately linked to financial performance and position.

A business is viable where either: •

•

it is returning a profit that is sufficient to provide a return to the business owner while also meeting its commitments to business creditors; or it has sufficient cash resources to sustain itself through a period when it is not returning a profit”.

Readers will immediately discern an important difference between ‘surviving’ and ‘thriving’.

It is difficult to discuss viability without examining carefully what is meant by ‘a return to the business owner’. In my view that has to be clarified in terms of implications in day-to-day operation of a legal practice. If the owner works in the business (as is the case in smallest practices), the owner has to, at least nominally, be allocated a salary commensurate with their effort and market value of their work, plus normal benefits.

Why would employees be provided with various benefits beyond base salary as a matter of legal obligation, or market forces, and the owner working alongside them not? Think Annual Leave, Long Service Leave, Carer’s Leave, Superannuation etc.…it’s quite a long list when you really turn your mind to it.

In determining remuneration for the owner’s efforts in working in the business alongside employees, it is important not to use a figure that is purely nominal and unreasonably low. To do so is to risk real confusion about whether the practice is properly profitable and viable.

It may indeed be ‘surviving’, but at what hidden impact on the owner? In this regard I regularly see Principals paying (or notionally allocating) themselves a salary that is considerably less than that being paid to some employed lawyers in the firm. Where that scenario is actually appropriate, it should be the exception rather than something quite common.

It should also be noted that the mere ‘allocation’ of a reasonable salary to an owner who works in the business, for the purpose of better assessing practice viability, is not to be confused with issues of taxable income. As a rough indication, I would be surprised if a full-time 28 | BRIEF SEPTEMBER 2018

Principal should be allocated a salary package of less than $200,000.

This basic remuneration for working in the business is one part of an owner’s total return, but it is not to be confused with ‘Return on Investment’. After the ‘remuneration package’ of a working owner, what is considered a reasonable return on investment? That could be the subject of a separate article or, indeed, a book!

Practice management guidance from lawyers’ Professional bodies seldom, if ever, addresses what is considered to be a reasonable profit margin in percentage terms, whether before or after Principals’ salaries. Businesses are valued every day including a calculation of the level of risk that historical (last 2-3 years often) genuine profit is likely to be maintainable for a reasonable period in the future.

The higher the risk perceived to the maintainability of the historical profit, the greater return an investor in the business should want to see, so they can recover their investment more quickly before any big risk factors may kick in. Simply put, the higher the risk, the faster the investor should want to get their capital invested repaid. That said, it is reasonable that different owners will be happy to live with different expectations about returns, but need to be mindful that potential successors may well have different expectations, that could well impact their perception of the value of the practice.

(More on succession later).

Well-managed small-medium legal practices are on average only moderately risky in my view, and ROI sought might be expected to be 20-25% typically.

Note the critical qualification, ‘well-managed’.

Fundamentals It should go without saying that responsiveness to enquiry, quality communication, and doing the legal work well and promptly are givens.

At the heart of viability are profitability and management of working capital.

Note that the ATO addressed both these in its definition above, talking about cash resources needed to sustain the business through periods where it is not making a profit.

Planning Planning is essential, but it is important not to over-complicate planning at the expense of continuous execution of a good basic plan.

Identify a manageable group of key things you need to always do well to achieve reasonable goals, set out how often, and arrange to do them, regularly tracking performance. Ensure everyone is accountable to someone for doing what they undertook/promised to do, and follow up!

Too many firms invest a lot of effort in overly-elaborate plans, and begin to fail on execution the moment the plans are completed. The plan is not the end goal, only the preparation for the commencement of the next stage of the journey, setting out what you were trying to do and how you will go about it.

Identify a level of profitability that would be acceptable, and work out how you would achieve that, generating sufficient revenue to cover expenses (including all salary of owners discussed earlier), and creating an acceptable profit margin.

Identify the types of work that you believe are available that you and your team have strong skills in, and that generate acceptable fee levels.

Build into all your planning a strong understanding that the big majority of all revenue will go to expenses, including all salaries and associated outlays. It is only after all that revenue is generated that additional revenue will create your genuine margin. This is a key part of the reason not to take planning lightly or to leave most things to chance.

If you haven’t done this exercise before it would be wise to target what appears a modest margin of 10-15% of revenues.

This is where the vast majority of smallmedium firms sit anyway, and once achieved, provides a very sound platform for significant improvement. This exercise will in effect give you a basic budget.

So for example, if a sole practice is aiming to provide the owner with a salary of $200,000 (including various benefits related to motor vehicle etc.), and was aiming at genuine profit above that of 10% of revenue, it would need to turn over $500,000. Expenses at 90% or $450,000 (including salary), leaves genuine profit at 10% of revenue or $50,000. If revenues could be lifted by 10% to $550,000, and expenses kept at $450,000, genuine profit increases sharply to $100,000, and the margin now is just over 18%.

The revenues in the main will come from the labour of your people applied to the clients’ files. Doing some careful human resources planning will show you how much of the available labour can be applied to client files if they are available

to be worked on, and how much labour needs to be allocated for investment into what I term, ‘FirmTime’.

FirmTime covers such things as Marketing, Technology, Training, Knowledge Management, Supervision, Services Development, Premises and general firm administration. In this aspect of your planning, appreciate that the cost to you of each available hour of labour is the same whether the investment is applied to ClientTime or FirmTime. Plan both carefully, matching available skill sets to whatever type of work that you expect to need/want to get done in each planning period.

As a practical example, if you have an employee who is full-time, and expected to work for you a 38-hour week, 7.6 hours a day, and you hope to recover time spent on client file work at $200/ hr, there is a very significant investment in any time spent on the firm that is not ClientTime. Typically, even two hours a day represents an annual investment of over $90,000…an “opportunity cost” if you like. For this reason, many firms try to keep a tight control on lawyer time that is not spent on clients’ legal matters, and prefer to pay specialists (often contracted only when needed) to do many aspects of other work that is needed in the practice from time to time.

Clearly firms have widely differing views on this issue around efficient use of valuable resources.

Cash Flow and Credit Control There will be few lawyers who don’t deeply appreciate the very practical difference between when a file gets worked on, when it can be invoiced in whole or part, and when the fees may be paid (in whole or part).

Only a limited number of firms are wellenough organised to not need a cash

flow budget, simply because in most firms invoicing doesn’t immediately follow the work being done, and in many firms, payments to you don’t immediately follow invoicing.

Take into account cash flow expected from Debtors carried forward from earlier planning periods, and of course factor in the availability or otherwise of an overdraft facility to assist in smoothing cash flows, and the need to expend funds on capital items not included in your expenses.

There are plenty of other items to plug into your cash flow, especially GST flows in and out, and anticipated irregular drawings over and above salary.

Credit control has not historically been a strong point in a lot of legal practices, and it is essential that you have clear reasonable terms for all types of work, and do not slip into the error of honouring your terms more in the breach than the observance.

Marketing The fees you can create through the work of your team, and invoice and collect, depend on the availability of the right types and volumes of work, effective timely attendance to the work, and sensible pricing of the work. Despite this critical ‘recipe’, few small-medium firms do much planning around the required flow of new work needed to keep each person/team properly busy.

In my experience this failure ties in to the deep dislike of marketing of many lawyers. That is, they would prefer not to accept that the volume and type of work that comes to the firm in the future is a direct result of the quality of execution of the complete range of activities they undertake now. Many tend to believe that the work will ebb and flow naturally, and will come at satisfactory levels in the future if they simply do a good job on the work they already have.

Cash can dry up very quickly, and as it starts to flow less regularly than it should, pressure comes on owners first.

That very pressure can impact owner performance on legal work and running the practice, further impacting the financial health, and general health, of the practice.

The reality is that even when the existing work is done well, there are many reasons why new work can reduce to a level where the practice can no longer generate a margin at all, let alone a reasonable one, and owners have to take less and less from the firm, or worse, have to inject more of their own capital to keep the firm going.

Payment terms are an area in which firms can be firmer when marketing is effective and providing choice in clients and work.

Simply put, when there is more than enough to do, clients who are unwilling to adhere to reasonable terms should not be taken on.

A firm needs to view sensible marketing as fully consistent with being professional, in that it helps existing clients, referrers, contacts and elements of the wider public with information that is of use to them in navigating their lives and/or businesses.

There are plenty of matters that can “go pear-shaped” and tie up cash for much longer than expected. It is important not to create weakness in future cash flows through poor client management from the very point of engagement.

The length constraints of this article do not allow us to canvas the ‘How’ of practical marketing, but suffice to say that wide experience shows that it can be done reasonably easily, at reasonable cost.

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29

There are many potential channels for information flow out from a practice, and it is not particularly difficult to test some.

Of course websites and social media may have a place, as may seminars and newsletters and speaking engagements, to name just a few. Sadly, one-size-fits all is not applicable.

An effective contact database is an important tool to underpin many of these efforts, and keep track of them and their relative success, and your return on investment of time and money. Not all ‘offthe-shelf’ practice management systems incorporate contact databases of sufficient power and flexibility for this undertaking.

In financially healthy businesses marketing and pricing are closely inter-linked. All of us recognise that when new work is pouring in we are usually more confident with setting out our pricing and our payment terms, and then sticking to them. The opposite is true when the possible piece of work we would like to be instructed on is one of very few on the horizon.

Being heavily tied up in work that cannot ever produce a decent margin is like a large sea-anchor on a practice: very inhibiting, dispiriting, and almost certainly preventing any clear thinking on the right way to get out of the maze.

Aside from the need for confidence when scoping and estimating fees for potential new instructions, there is great scope for lawyers in small-medium firms to improve their skills in pricing.

With all the discussion over recent decades of the failure of lawyers to record their time spent accurately, it is easy for lawyers to assume that if they do record accurately, the time they will thus be able to charge will be both acceptable to clients, and provide a good profit margin. Neither of those assumptions is necessarily correct.

Many clients are looking for better value in the services they receive, and the thoughtful lawyer will combine an improved level of skill in communicating value to each particular client in each particular matter, with a wider range of pricing options to meet the wide range of circumstances.

The thoughtful lawyer will be aware that psychology plays an important role in clients’ perception of value.

Again, the vigorous debate over the inappropriateness of charging clients by time spent regularly obscures the harsh reality that charging merely by time is often a very poor outcome for the lawyer given the value the client is delivered.

Planning for your team to be properly busy to planned levels involves knowing how

30 | BRIEF SEPTEMBER 2018

much new work that will entail from time to time, approximately what it should produce in revenues, and how to go about ensuring you do in fact get it, through sensible, costeffective marketing.

At the most basic level keep good records of where your work comes from, and what it seems to generate in revenues on average.

Some review of work types and sources will make clear where opportunities for further effort lie. There will be relationships that can better nurtured, or proven referral sources than can be duplicated.

Existing clients are a very rich source of new work, and more so if they are regularly provided with practical, down-to-earth, tips on where they may be facing potential hidden problems, or where there may be opportunities they could consider acting upon. This potential “gold mine” is one of the most often under-utilised opportunities in small-medium practices. Having enough work and charging properly for it will go a long way to guaranteeing viability.

Technology Make your technology choices based on a clear understanding of how they will considerably improve your achievement of your particular goals, not because something seems exciting or interesting, or because many competitors seem to be using it. This applies to time-saving, effectiveness, file velocity, quality control, marketing, financial management, cash flow etc.

Technology needs to be in your practice for a clear purpose, and the potential to assist is undoubtedly huge. However, the relationship between technology and its perceived purpose is often not managed by lawyers such that the benefits are highly tangible. All too often the cost is incurred, but the training has not been undertaken properly to ensure that at least the bulk of the benefits are actually delivered. Expensive equipment and software sits largely unused.

As professionals we are as blessed as others in business by the range and power of the technology available to us, far greater than ever before in history. To quite a degree technology has closed the capability gap between small firms and large, but only if it is used smartly to help achieve clear goals.

Succession As with so many other aspects of legal practice, what a particular owner hopes for by way of succession will vary greatly from the hopes of others. Some hope for little more than a smooth transition for

their remaining clients to a new lawyer, while some others have inflated views of the value of what they perceive they have built over many years of hard work.

The main debate these days appears to be whether succession can reasonably be achieved by a sale in which one or more purchasers pays an owner of a small-medium practice for a share of the practice assets including goodwill.

Certainly it is happening much less frequently than it used to. In my view the main reason for that is that the vast majority of such practices are hardly profitable, and the key factor behind that situation is poor management over considerable periods of time. The fact that practices of little value are not being purchased for significant sums is hardly surprising.

On the other hand, where practices can be demonstrated to be profitable beyond principals’ salaries, financially stable and relatively low risk, with strong client bases and excellent marketing, good sales are still being achieved. In the real world beyond ill-informed opinion and urban myth, goodwill still exists, and is being bought and sold in profitable practices.

Summary Populations are growing, families are continuing to change, business is continuing to develop rapidly (whether local or global), laws are continuing to become more complex, and people will need quality legal assistance more than ever.

There is an ever-increasing array of service offerings in the marketplace aimed at different segments of the population. The internet is playing an increasingly large role.

Nevertheless, there is a very bright future for small-medium legal firms that are clear in who they want to assist, with what services, and in what manner. They do need to plan and organise well, deliver excellent services that clients perceive to be good value, charge sensibly, have quality credit management, be good leaders and managers, good marketers, and good financial managers.

Beyond merely being “viable” there remains great opportunity to thrive!

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31

Trials and Tribulations: Ambelin Kwaymullina Representing the Young Lawyers Committee, I was fortunate to meet with Ambelin Kwaymullina, a UWA lecturer in Law, and an award-winning writer and illustrator of children’s and young adult fiction, published both in Australia and overseas. As well as being a respected legal academic she also has a PhD in creative writing, and her latest book, co-written with her brother Zeke, is to be published in late 2018.

By Melanie Callow Solicitor, Tait & Co Business Lawyers You started at UWA as an arts student. What made you want to study law?

I actually fell into it to be honest. The Schools of Indigenous Studies and Law had jointly started a Pre Law course to encourage Indigenous students in to law.

I really enjoyed it, so from there I did the four year LLB course. In contrast to arts, I loved the immediacy of the law; the way you learn something and you get to apply it straightaway.

Can you outline the steps in your career?

For the first seven years I worked in water and environmental law reform.

Law reform is not easy as there is so much that goes in to making a law and so many opinions to consider, and then you have to react quickly to the changes once the legislation gets in to Parliament and goes through the legislative process.

32 | BRIEF SEPTEMBER 2018

It is stressful, but it can be fun because it’s so dynamic.

From there I became a Parliamentary Advisory Officer to the Legislative Council Standing Committee on Legislation. This was a very high pressure but enjoyable working environment with everyone helping each other out and a great sense of camaraderie. It was during this time that I decided I wanted to write.

After that I came back to UWA working in Legal Services doing policy and freedom of information work, and then finally to the UWA School of Law where I’ve been teaching for ten years. I teach Administrative Law, and Indigenous Peoples and the Law, and I’ve also taught other subjects. I love teaching and I love working with the students.

I enjoy the way it’s new every year; the students are new, there are new cases in my area of law, and there is always something current happening

in the media relevant to administrative law. I think it’s fair to say the students would probably prefer older cases when perhaps the High Court were less inclined to write seven judgement decisions! Covering administrative law in the space of a semester is huge and it’s tough because there is so much happening and it is so fast moving.

Our students are now postgraduate so they’re a bit older and arrive after being trained in another discipline, so they have to learn a whole new way of thinking for a law degree. I really enjoy interacting with them and supporting them.

What are some of the projects you are involved in at the present time?

I do a lot of work building Indigenous engagement across the private sector.

I really enjoy talking to people about how they can engage, how they can sustain engagement, and what the

positive outcomes of this are.

This is a really exciting and dynamic space at the moment with many businesses developing Indigenous engagement plans.

Engaging happens in three main ways; firstly; building respect in ways such as introducing cultural competency training in corporate workplaces; secondly, building relationships with Traditional Owners, and lastly, by providing opportunities such as employment for Indigenous people, and supplier diversity. This means incorporating Indigenous companies into the supply chain of large companies. WA is really ground zero for the Indigenous business revolution which is booming at present.

What difficulties or particular challenges have you had in your career?

When I started in the Public Service I was the first and only Indigenous person in my department, and one of only a very few women. It was challenging but there were also opportunities, in that most of the people were very receptive and wanted to engage with Indigenous people but didn’t know how to go about it.

Working in Parliament came with different challenges because it was a 24/7 job.

Although I loved it, as I mentioned, it was during this time I had decided that I wanted to write professionally so I had to let this job go to allow me the time.

So by then writing had become really important to you?

The law is my main focus, but writing is a way I can explore the law in different ways because there are obviously a lot of historical and legal injustices. I can’t fix those past injustices so for me writing is a way of working through them using creativity to imagine - what if the world were different? How do you battle injustice, and how do you overcome it? The law can be quite a structured realm and it drives your thinking into structured patterns. Sometimes I think you need to be able to think - this is the law – but does it have to be? Could it be something else and what would that look like?

Tell me about the changes you would like to see…

I’d like to see the law take more account of people than it does in general. I think historically legal processes have not

facilitated positive relationships between people and have been quite adversarial.

They’ve often been disempowering and alienating, and we now see massive changes across all areas of law with a move to mediation and other ways where more account is taken of positive relationships, as opposed to adversarial ones. I would of course, as an Indigenous person, like to see more social justice and like to see the law take more account of vulnerable people to achieve more just outcomes.

Most of my law students, and the teenagers I write for and interact with, show a desire for a world that is better and fairer for everybody. I think in the end the law will change as the generations coming through are wanting these changes. Young people want to see equality and they want to see people treated fairly.

Law now has a particular emphasis in dealing with stress. Nowadays I take a breath and give myself five minutes to sit quietly with a cup of tea or go for a walk around the campus. One of the great parts of working here is that I can walk out of my office door and see trees and plants and peacocks, and it’s so lovely that I just walk for a while - and then I’m fine.

My advice would be to find the thing that works for you – it doesn’t have to be the same as anyone else. Live consciously, recognise the signs when stress is building in you and take five minutes to walk, or meditate, or play sport, or whatever you choose, before the stress starts to build up. If law students can learn to manage stress it will help when they leave law school and they can avoid the terrible effects that years of stress has on your body.

How has a law degree helped you?

The law teaches you to interact with organised knowledge, and that is a skill you can apply to so many things. I apply it to writing novels, and I apply it to conceptualising the things people need to know to engage appropriately with Indigenous people. Legal research is obviously massively helpful, together with advocacy, not only legal advocacy, but how to construct an argument in support of a proposition, and how to argue on behalf of someone.

How do you divide your time between law and writing?

Probably 75% of my time goes into law, and 25% goes into writing. Most Australian professional writers make an average of $12,000 from writing so they have to have a job doing something else.

I love my job teaching law, so I squeeze my writing in around it late at night and on weekends.

As well as stress management, is there any other advice you have for young lawyers?

Figure out what it is that you want. If you are more interested in policy, then look towards government, or somewhere similar. Or if corporate law is your thing then look for something in that space.

Find what it is that makes you happy because everyone will be advising you about where you should work and what you should be doing. Go do that thing that you want to do and that makes you happy.

Don’t put it off and wait for something else to happen. Otherwise before you know it, years will have gone by and you will still be doing that stop gap thing and that’s just no way to live your life.

If you had your time again would you still study law?

I have a new book that I have been really busy doing the copy edit. It was cowritten with my brother Zeke and it deals with injustice and violence, with a female narrative. It wasn’t an easy book to write but we were both passionate about telling the story.

The only thing I’d do differently is study commerce as well. I work a lot in the Indigenous business space now and it makes me wish I had a commerce degree! Having said that I’m terrible with numbers so I probably would have been really bad at it!

You mentioned your stressful work in law reform. How did you deal with that stress?

And a final word…

Very badly! In those days I would deal with it by eating a giant box of chocolates! I’d go without sleep and I lived in a constant state of high anxiety.

Life should be enjoyed so if law is for you then find ways to enjoy it. Don’t allow it to overwhelm you. You entered law because you had a passion for justice.

Find ways to pursue that and pursue the things that make you feel fulfilled.

33

A Costly Case of Unreasonably Refusing to Mediate

By Michael Hollingdale Accredited Mediator Director, Hollingdales The recent Canadian decision in Canfield v.

Brockville Ontario Speedway, 2018 ONSC 3288 (CanLII) provides an instructive review of the principles a Court may consider when weighing the cost consequences to an unsuccessful party who had unreasonably refused to mediate.

The facts After a jury trial lasting seven days, the jury assessed the plaintiff’s damages for his personal injuries claim at C$267,000 exclusive of interest and before adjustment for contributory negligence. Damages were reduced by 25% for contributory negligence. As a result, the total amount he recovered was C$220,750, including interest.

This decision concerned the plaintiff’s claim for his costs of the action of approximately C$270,000 on a partial indemnity basis.

The defendant, who had strongly contested liability, submitted that C$150,000 would be appropriate.

at a reduction of 22% (or $60,000). That refusal therefore cost the defendant an additional 8% or $20,000 in this case.

The balance of the other reduction, namely 22%, can be attributed to the judge’s view that the plaintiff had incurred disproportionate costs. He observed at para [65]: ‘It was Rolls-Royce preparation for … a family sedan of a case.’

The defendant unsuccessfully argued that it genuinely believed it had a strong position on liability and so its refusal to participate in mediation was not unreasonable.

In rejecting that submission, Justice Mew considered numerous authorities from Canada and England and Wales. In particular, at [46] he cited as his preferred approach that of another Canadian judge, Price J:

In July 2017, some two months before the trial, the plaintiff again suggested mediation, however no mediation resulted.

The costs decision The judge in Canfield’s case, Justice Mew, after weighing all the relevant factors, other than the refusal to mediate, decided that an appropriate downward adjustment to the plaintiff’s claim for costs would be in the order of 30%, or $80,000. However, taking into account the defendant’s unreasonable refusal to mediate, he reduced that adjustment by 8% (or $20,000) to arrive

34 | BRIEF SEPTEMBER 2018

The Court of Appeal has accepted, however, that not all disputes are suitable for mediation and that a refusal of mediation may well be justified. It was held [in] Halsey v Milton Keynes General NHS Capital Trust; Steel v Joy, [2004 EWCA Civ. 576, [2004], 1 W.L.R. 3002] that before making an adverse costs award for a refusal to participate in mediation the court must consider whether the refusal was justified. Depriving a successful party of his costs is justified only if the unsuccessful party shows that the successful party acted unreasonably in refusing to agree to ADR. The reasonableness of ADR refusal, Dyson L.J. explained, must be judged by reference to all of the circumstance [sic.], including the following: (i) the nature of the dispute; (ii) the merits of the case (the factor that a party reasonably believes that he has a strong case is relevant to the question of whether he has acted reasonably in refusing ADR); (iii) whether other methods of settlement have been attempted; (iv) whether the costs of the ADR would be disproportionately high; (v) delay in suggesting mediation which may have the effect of delaying the trial of the action; and (vi) whether the mediation had a reasonable prospect of success.

Neither side had such a strong position on liability that it would have been reasonable to decline an offer to mediate. Although, in Halsey, Dyson L.J. stressed that the court should be sensitive to the fact that large

Justice Mew’s decision provides useful guidance on how the discretion to make adverse costs orders in the case of a party unreasonably refusing to mediate might be exercised.

The following passages are taken from Justice Mew’s decision: [49] The position in England and Wales is conveniently summarised by Professor Zuckerman (Adrian Zuckerman, Zuckerman on Civil Procedure, 3ed (London): Sweet & Maxwell, 2013 at p.1335) as follows:

The court may take the view that had the parties engaged in ADR, the dispute would have settled without proceedings and therefore disallow all or some of the costs of the party who declined ADR even if that party was successful. Experience shows, as Brooke L.J. explained in Dunnett

When the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live.

[50] Professor Zuckerman does, however, go on to note, again, consistent with the sentiments expressed by Price J. in David v. Transamerica:

In cases where each of the parties has an arguable case, and each faces a risk of loss in the proceeding, mediation can offer a reasonable prospect of settlement. In such cases, a refusal to participate in mediation is a factor that the court can properly consider in determining whether the party has engaged in unreasonable conduct that has caused unnecessary costs to be incurred and that warrants rebuke by means of a costs sanction. This determination requires a case-by-case analysis.1

Neither party made offers to settle that would have engaged the costs consequences provided for in the court rules. The outcome achieved by the plaintiff though was significantly better than the defendant’s last offer, which was little more than a 'go-away' offer.

Under the Rules, there was no requirement to mediate. In April 2015, the plaintiff's solicitor wrote to the defendant's solicitor to confirm a telephone conversation in which the latter had advised that the defendant and its insurer were not willing to engage in a mediation settlement process. This followed the plaintiff offering to settle for C$300,000.

v Railtrack Plc [2002 EWCA Civ 303, [2002] 2 All E.R. 850 at para. 14], that:

organisations are vulnerable to pressure from plaintiffs who, having weak cases, invite mediation as a tactical ploy, the converse also applies. Courts should be aware that insurers, who are in the business of litigating, can, and do, take hardball positions against economically more vulnerable opponents.

[56] The present case is not one of those circumstances where a plaintiff was trying to shake down an insurer by demanding mediation of a wholly unmeritorious case. To the contrary, it is a case where the insurer took a tough and uncompromising stance.

That, of course, is a defendant’s prerogative. Defendants do not have to settle. But if reasonable opportunities to mediate are spurned, that can be a relevant factor when fixing costs.

[57] It was, in my view, unreasonable for the insurer to decline mediation in this case. That should be reflected in the disposition of costs. Had a mediation occurred in 2015 or even in 2017, substantial costs would have been avoided.”

•

What can we learn from this decision?

•

The case offers some salient lessons on the risks of not participating in mediation even when it is not mandated under the court’s rules.

1.

It reinforces the approach being taken in Australian courts that seeks to encourage participation in pre-action or at least pre-trial mediation even when mediation is not mandatory. This has arisen from a focus on the “overriding objective” of the rules which is to enable the court to deal with cases justly and at proportionate cost.

2.

The judge’s decision to adjust the reduction to the plaintiff’s costs by 8%, or about C$20,000, because of the defendant’s refusal to mediate is consistent with his view that ‘substantial costs would have been avoided’ had the parties mediated.

3.

The defendant paid a hefty price in any event for its loss, having incurred its own costs of the proceedings, that it claimed were in the order of C$115,000. When the award of damages and the adverse costs awarded to the plaintiff are taken into account the numbers add up as follows:

•

Award of damages: C$220,750 Plaintff’s costs: C$210,000 Defendants own costs: C$115,000 Total: C$555,000

4.

In terms of proportionality of the costs incurred in this case, the amounts present an object lesson on the risks of litigation. Had the defendant at least negotiated when the plaintiff first offered to settle for C$300,000 some 2 years before trial and before most of the costs were incurred, it may have not only negotiated a lower settlement sum but saved an equivalent amount in costs.

5.

The case provides another example of excessive optimism (sometimes referred to as optimism bias) of a party, its insurer or its legal advisers, about its prospects at trial. The point of mediation is to enable the parties to test their assumptions and when appropriate receive a dose of reality checking against any optimism bias.

NOTES 1.

David v. Transamerica Life Canada, (2016) 131 O.R. (3d) 314, at para. 97

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35

A Practitioner’s Guide to Criminal Code Infringement Notices

By Dr Elyse Methven Lecturer, University of Technology Sydney Faculty of Law, and Lisa Billington, PhD Student, University of Technology Sydney* On 30 March 2015, Western Australia police (WAPOL) officers began issuing $500 on-the-spot fines, referred to as ‘criminal code infringement notices’ or ‘CCINs’ for two offences: stealing anything up to the value of $500, and disorderly conduct. The CCIN regime was progressively rolled out across the State. Although the past three years have seen exponential growth in the number of CCINs being issued by WAPOL officers, preliminary research suggests WA legal practitioners and community legal organisations are largely unaware of the breadth and depth of the impact which these on-the-spot fines are having on the WA community — particularly on Aboriginal and Torres Strait Islander 36 | BRIEF SEPTEMBER 2018

people and vulnerable populations.

This is not surprising. The civil (rather than criminal) nature of the expiation processes, the lack of protections inherent in the CCIN regime, and the wide and opaque use of discretion in the issue (and withdrawal) of CCINs by WAPOL officers, make CCINs particularly resistant to public attention and scrutiny.

It is, indeed, the strong discretiondependence of the CCIN regime and the concomitant lack of oversight which make it so vital for WA legal practitioners and community organisations supporting vulnerable people to have clear and unambiguous information regarding the legal and administrative mechanics of

CCINs; the legal (and non-legal) options available for people who receive CCINs; and the key findings of the recent WA Ombudsman’s review of the CCIN regime1. This article addresses this gap in practitioner and community knowledge by providing a practical guide to, and conducting a critical analysis of, CCINs.

1 Background Over the past two decades a number of Australian jurisdictions have introduced various regimes facilitating the issue of on-the-spot fines by police officers for certain minor offences. While the terminology used in the legislation and

enforcement of these regimes vary across jurisdictions, their fundamental premise remains the same: to divert alleged minor offenders away from the court system and “reduce the administrative demands on police in relation to relatively minor offences”2.

Historically, infringement notices (known variously in other jurisdictions by terms such as ‘penalty notices’ and ‘expiation notices’) have been used for regulatory rather than criminal offences — for fare evasion and littering, for example3. More recently, however, there have been moves in Australia and the United Kingdom to expand the use of infringement notices for offences characterised as criminal in nature4.

Importantly, unless and until a judicial determination of criminal guilt is made, CCIN recipients should not be labelled ‘offenders’ nor ‘criminals’ as they have committed no offence. Unfortunately on occasion police and politicians continue to incorrectly use this terminology to refer to CCIN recipients5.

2 Receiving a CCIN in WA In 2011, the Criminal Code Act 1913 (WA) (WA Criminal Code) was amended to allow WAPOL officers to issue CCINs for prescribed minor offences. The WA legislation was largely modelled on the NSW ‘penalty notices’ regime, operating since 2008. WAPOL officers commenced issuing CCINs on 30 March 2015. This section provides an overview of the mechanics of issuing a CCIN in WA, including who has authority to issue CCINs, who may receive a CCIN, how they are issued, what CCINs may be issued for, and how a CCIN can be resolved.

A. When can a CCIN be issued?

Under the Criminal Code (Infringement Notices) Regulations 2015 (WA) (Regulations) and the Criminal Procedure Act 2004 (WA) (CP Act) s8, a CCIN may be issued by an “authorised officer”, and every WAPOL officer (other than a senior police officer) is an authorised officer6.

There are currently two prescribed categories of offence for which WAPOL officers have authority to issue a CCIN. These are: •

behaving in a disorderly manner in a public place, in sight or hearing of any person in a public place, or in a police station or “lock-up”7; and,

•

stealing anything capable of being stolen, up to the value of $5008.

These two offences were selected due to “the volume of people committing

these offences” and their “low-level nature”9. It is anticipated the regime may encompass a wider range of offences in the future10.

The WA Criminal Code defines “disorderly behaviour in public” as including the use of “insulting, offensive or threatening language” and/or behaving “in an insulting, offensive or threatening manner”11. As discussed shortly, one of the more disturbing features of the CCIN framework is the lack of clear guidance for the community regarding what constitutes language or behaviour considered “insulting” or “offensive”, and therefore, exactly what behaviour or words might fall within the ambit of the CCIN regime.

offensive or insulting). Nor does the CCIN form specify the authorised officer’s reasons for electing to issue a CCIN19.

The infringement notice must be served within 21 days after the day on which the alleged offence is believed to have been committed20. An image of a sample CCIN can be found below:

A WAPOL officer can show that she or he is authorised to issue a CCIN by producing their Certificate of Authority, and must do so if requested by the intended recipient12. An authorised officer may not issue a CCIN where the officer believes the alleged offender is/was under 17 years of age at the time of the alleged offence13. By contrast, the NSW legislation (on which the WA provisions were largely modelled) stipulates that CCIN recipients must be aged 18 years or older.

Issuing a CCIN is one of a number of actions available to WAPOL officers in relation to the two categories of alleged offences outlined above. Although not publicly available at this time, WAPOL have a “CCIN Policy”14 which provides WAPOL officers with a range of possible alternatives to the issue of a CCIN, including arrest, summons, caution, referral to a Juvenile Justice Team, or ordering a person to move on15. In practice, which alternative is applied to each situation relies solely on the discretion of the “responding authorised officer”16. The issue of police discretion is discussed in further detail shortly.

B. How are CCINs issued?

An authorised officer who has reason to believe that a person has committed a prescribed offence may issue an infringement notice that complies with CP Act s9 in relation to the alleged offence17. One CCIN may relate to only one alleged offence18. A CCIN specifies the offence alleged to have been committed (for instance, ‘behaving in a disorderly manner in a public place’), and the time and place of the offence.

However, the CCIN does not, and need not, stipulate the sub-category of disorderly conduct (for instance, whether it was ‘offensive’ or ‘insulting’ language) or the facts constituting the alleged offence (such as the words alleged to be

I. Service of a CCIN It may surprise practitioners to learn that WAPOL officers do not actually serve CCINs ‘on-the-spot’. Although colloquially referred to as on-the-spot fines, prior to serving a CCIN, police must return to the station, enter the details of the CCIN into the computerised Non-Traffic Infringement Management Solution (NTIMS) system, then post the notice to, or serve it personally on, the recipient. Police may also take the person back to the station to take identity information, such as fingerprints, off CCIN recipients21.

It has been suggested to the authors that some people are not receiving their CCINs due to the broad — and potentially unreliable — modes of service stipulated by the CP Act: the CCIN need not be served by registered post; the recipient’s address details on their licence or other public documents relied on may be out-of-date; and police are able to serve CCINs to another person “who appears to have reached 16 years of age and who appears to be residing at, or in charge of, or employed by the person in charge of, the place where the named person is known to reside or work”22. Officers do not have to prove receipt of the CCIN in order for the $500 fixed fine, and further penalties detailed below, to be incurred 37

by the alleged offender23. Plainly, these legislated methods of service cannot guarantee that the relevant person receives their CCIN, particularly within the short time-limits allowed for payment and appeal.

C. Resolving a CCIN Under the CCIN regime, the ‘modified penalty’ to expiate the alleged offence is a fixed rate of $50024. Penalties must be paid within 28 days of the issue (as opposed to the actual receipt) of the CCIN. Once the fine is expiated, the bringing of criminal proceedings and the imposition of sentences are prevented.

Although payment of a penalty cannot be regarded as an admission of guilt, during the second reading speech to the Criminal Code Amendment (Infringement Notice) Bill 2010 (WA), the Minister for Police, Robert Johnson, acknowledged payment of the “fixed penalty” may encompass an “implied admission of culpability”25. This notion is concerning given that it seems that most people who receive CCINs do not seek legal advice; there has been no finding of criminal guilt; and, that persons may be paying the fines for a number of reasons in circumstances where they have not committed an offence at law. These include for reasons of convenience and the perceived threat of a criminal conviction. Indeed, the CCIN threatens prosecution as a consequence of nonpayment by stating: “If you do not want to be prosecuted in court for the alleged offence, pay the modified penalty above to an approved officer within 28 days after the date of issue of this notice”.

D. Reviewing or appealing a CCIN Recipients of CCINs have 28 days from the date of issue to elect to challenge the CCIN in court (court-elect). If a person chooses this option, they may be found guilty or not guilty, and if the latter occurs, be sentenced accordingly. A person can also seek an internal review by an approved WAPOL officer of the decision to issue a CCIN (there appears to be no time-limit for such a review to take place). The flowchart below provides an outline of the various means of resolving a CCIN in WA, including the consequences of non-payment and options for requesting a review of a CCIN.

3

Reviewing the WA CCIN regime and its impact on Aboriginal and Torres Strait Islander people and vulnerable Australians

38 | BRIEF SEPTEMBER 2018

The package of amendments encompassed by the 2011 changes to the WA Criminal Code included a mandatory review of the CCIN regime by the WA Ombudsman over a 12-month monitoring period. The legislation required the Ombudsman to pay particular regard to the impact of the CCIN regime on Aboriginal and Torres Strait Islander people. The report was published in December 2017. This section provides an overview of the key statistics and findings contained in the Ombudsman’s report26 in the context of a critical analysis of both the WA CCIN scheme and its manifestly disproportionate impact on Aboriginal and Torres Strait Islander people and vulnerable Australians.

Before considering the metanarrative of the CCIN regime reflected in the Ombudsman’s findings, however, it is worthwhile to consider two of the (many) stories of individuals who have found themselves caught in the crossfire of the quasi-administrative and quasicriminal nature of the CCIN scheme.

The circumstances of these cases foreshadow some of the fundamental flaws in the CCIN regime, discussed shortly.

First, we recall the 2015 case (much publicised by Australian media outlets27) of an Indigenous woman being issued a CCIN for allegedly stealing a $6.75 box of tampons at a service station in Coolgardie — a remote mining town.

Consistent with the application of the fixed penalty, the woman was required to pay a $500 fine within 28 days, a sum 74 times the value of the item allegedly stolen. When questioned by media outlets regarding the appropriateness of issuing a CCIN in these circumstances, the WAPOL spokesperson justified the decision on the grounds of efficiency, stating, “prior to March, we would have to arrest her under suspicion, bring her back, do a recorded interview — it would have taken pretty much all day” 28. Then Police Minister, Liza Harvey, lauded the issue of a CCIN as the triumph of “swift justice” 29.

Second, we highlight a case related by the Aboriginal Legal Service of WA (ALSWA) in a submission to the recent Australian Law Reform Commission inquiry into the disproportionate incarceration of Aboriginal and Torres Strait Islander people30. The submission recounts how ALSWA “represented M, a 57-year-old Aboriginal man who was issued with an infringement for disorderly conduct” on a rare occasion in which a CCIN was brought to their attention.

ALSWA describes the facts constituting

the alleged offence as follows31: M was the front passenger in a vehicle driven by his partner. The police stopped the vehicle at 9pm, allegedly because the vehicle was swerving. However, the police did not issue a traffic infringement.

The police searched M and his son under the Misuse of Drugs Act but no drugs were found. It was alleged that M leaned out of the window and shouted “You fucking dick head”. The police officer told M he would receive a fine for disorderly conduct in the post.

Ultimately, M elected to have the matter dealt with in court. He was acquitted on the basis that “his words … in all of the circumstances and judged by contemporary standards … did not amount to disorderly conduct.” 32 It should be emphasised that these two case studies are exceptional for one key reason: they were brought to the attention of the public and the legal community. Ordinarily, CCINs evade legal review or public oversight, as described below.

A. WA Ombudsman’s review of the CCIN regime In December 2017, the WA Ombudsman released a report reviewing the operation of the newly-instituted CCIN regime over a 12-month ‘monitoring period’ between March 2015 and March 2016. Of the 2,978 CCINs issued across WA during the monitoring period, the Ombudsman found CCINs were disproportionately issued to people of ‘Aboriginal appearance’, to people who were homeless, and to people with a mental illness and/or intellectual disability33: •

36 per cent of CCIN recipients were recorded by WAPOL as being ‘Aboriginal’ in appearance34 (Aboriginal Australians comprised approximately 3.1 per cent of the general population of WA over a similar period)35;

•

While 68 per cent of CCINs were issued in metropolitan police districts and 32 per cent issued in regional areas36, 54 per cent of CCINs issued to Aboriginal people were issued in regional locations, in particular, in the Kimberley and Pilbara Districts37;

•

Of the 1,080 CCINs issued to Aboriginal people during the monitoring period, 70 per cent were for ‘disorderly behaviour’ (for people whose appearance was ‘non-Aboriginal’ the rate was 52 per cent)38;

•

Data suggests that “recipients with greater levels of socio-economic disadvantage” were more likely to receive a CCIN, and “were the least likely to pay”39 the fixed amount — strikingly, during the monitoring period, only 1.4 per cent of CCIN recipients of ‘Aboriginal appearance’ had paid the modified penalty40.

time, if at all, with fine-enforcement measures capable of leading to further debts, driver-license sanctions, vehicle immobilisation, property seizure and so on; •

and finally, as with all fines, a person’s ability to pay depends on their ability to source funds, which can be from external sources43.

Figures: CCINs issued — Gender and Offender Appearance41

While the constraints of a short article preclude an exhaustive recounting of each relevant statistic contained in the Report, even this small cross-section of the data demonstrates clear areas of concern regarding the inequitable operation and application of the CCIN regime. These issues are examined, briefly, below.

B. Critical analysis of the CCIN regime The figures and case studies reviewed in this paper highlight five fundamental issues with the current operation of the CCIN regime: •

•

first, fixed fines fail to account for the recipient’s subjective circumstances and objective culpability (for example, a fine which represents 74 times the value of the goods alleged to have been stolen by a person who appeared to be economically disadvantaged42); second, the disproportionate issue of CCINs to certain segments of the general population, in particular, to Aboriginal and Torres Strait Islander people;

•

third, a correlation between greater socio-economic disadvantage and increased likelihood of receiving a CCIN;

•

fourth, vulnerable and financially disadvantaged CCIN recipients often do not and cannot pay their fines on

“responding authorised officer”47 elects to issue a CCIN for conduct perceived as “disorderly”, the officer may be performing the conflicting roles of alleged victim (as in the case of M, recounted above48), investigator and judge. It has been persuasively argued49 that such discretion-dependant processes are particularly unsuitable to findings of ‘disorderly’ conduct, for which a decision-maker must necessarily infer ‘community standards’ when determining whether language or behaviour is offensive or insulting50. Relevantly, the Australian Law Reform Commission’s 2017 Pathways to Justice report on Indigenous incarceration has recommended state and territory governments review legislative provisions which criminalise offensive language with a view to repealing or narrowing the provisions.51

i. Police discretion

a) Requesting a review of CCINs

A critical issue, however — and one largely overlooked by the literature — takes place prior to a CCIN being issued; that is, the exercise of discretion by a WAPOL officer regarding whether to issue a CCIN or utilise other measures such as arrest, summons, caution, referral to a Juvenile Justice Team, or ordering a person to move on44. As noted above, only the (unpublished) WAPOL CCIN Policy provides guidance for authorised officers concerning the manner in which to exercise this discretion45.

This breadth, and inscrutability, of police discretion is not confined to the point of CCIN-issue but extends to the matter of CCIN review. CCIN recipients may request a review of their CCIN by an approved person52 by applying, in writing, to WAPOL Infringement and Management Operations.53 When making this request the person (or their lawyer) may wish to seek reasons from police as to why the CCIN was issued in the first place, including the facts which constituted the alleged offence.

However, it is unclear from publicly available information whether, and the form in which, WAPOL keep records of such information54.

Material contained in the Ombudsman’s report suggests factors which affect the exercise of police discretion in the context of CCINs include: establishing an alleged offender’s identity and postal address; the investigative requirements of a matter, particularly for the prescribed offence of stealing; the need to put a stop to the offending behaviour; and, consideration of an alleged offender’s criminal history46. Even with these glimpses into WAPOL guidelines, it is clear that the wide and opaque use of discretion in the issue (and withdrawal) of CCINs by WAPOL officers make the scheme particularly resistant to external critique.

Consider, for example, how this discretion may operate in the context of an alleged offence of offensive language. In this case, where a

According to the Ombudsman’s report, the WAPOL CCIN Policy stipulates55: Adjudication is required when an alleged offender believes the CCIN was issued in error … A claim for adjudication will need to meet one or more of the following criteria: • The CCIN was issued to the wrong person (false particulars); • The alleged behaviour was due to an established mental illness or impairment. (A medical certificate must be provided confirming the mental illness or impairment); • The issue of the CCIN was incorrect at law e.g. the alleged offender was under 17 years at the 39

date of the offence, the offence was not a prescribed CCIN offence at the date of the offence; or • An alternative means of action is more appropriate than the issuance of a CCIN. No guidelines are available which clarify how a matter may be considered “more appropriate” to alternative means of action than the issue of a CCIN. It is worthwhile to note that requesting a review of a CCIN (prior to payment of the fine) does open the alleged offender to the possibility of the adjudicator determining — through an inscrutable process — to pursue prosecution for the alleged offence56. On the other hand, if the person has paid the nominated penalty (and any further sanctions incurred), it appears that not only are police prohibited from prosecuting the person for the alleged offence, but also that the person retains the ability to request a review of the decision to issue a CCIN. If following such a review, police decide to withdraw the CCIN, the person must have “the amount of money paid … refunded”57. Relevantly, during the monitoring period covered by the Ombudsman’s report, just 27 recipients of the 2,978 CCINs issued over the period (that is, 1 per cent) sought a review of the notice. Of the CCINs reviewed, 66 per cent of notices were withdrawn58.

4 Conclusion It has been elsewhere argued that CCINs were implemented, and have been rationalised, on the basis of neoliberal economic values whereby “[r]outine police investigation and traditional court processes are commodified and depicted as unnecessary impediments to productivity; and justice is measured in hours and dollars rather than in terms of procedural fairness, the punishment fitting the crime and the application of the rule of law”59. This bypassing of traditional legal processes executed by the CCIN regime is demonstrated by the present lack of awareness among WA legal practitioners and the general community regarding the volume and impact of CCINs issued by WAPOL. This article has reviewed and critically analysed the CCIN regime in WA. A range of troubling statistics — particularly with regard to the disproportionate negative impact of the CCIN scheme on Indigenous and vulnerable Australians — suggests further reform and education is needed in order to ensure that the “swift justice”60

40 | BRIEF SEPTEMBER 2018

promised by the use and enforcement of CCINs is not, in reality, “swift injustice”61.

Additionally, this analysis has identified profound gaps in publicly available information regarding the manner in which WAPOL officers are authorised and instructed to exercise their discretion within the CCIN regime, both at the point of issue and the point of review.

Further research is needed to ascertain how WAPOL officers are exercising their discretion with regard to the issue (or otherwise) of CCINs and how officers might better exercise that discretion to promote justice — and, to avoid injustice.

Notes *

1

2

3 4 5

6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23

24 25 26 27

28 29 30

This research was undertaken as as part of a UTS Early Career Research Grant Project on the use of on-thespot fines.

Ombudsman Western Australia. A Report on the Monitoring of the Infringement Notices Provisions of The Criminal Code. Perth, 2017.

Robert Frank Johnson, Minister for Police, Second Reading Speech of the Criminal Code Amendment (Infringement Notices) Bill 2010 (8 September 2010). ibid. ibid.

See, eg, Western Australia Police. Criminal Code Infringement FAQs. Western Australia: Western Australia Police Force; 7 December 2015; cited 9 July 2018.

Available from: https://www.police.wa.gov.au/PoliceDirect/Infringement-Payments-and-Enquiries/CriminalCode-Infringements/Criminal-Code-InfringementFAQs. This source states: “A CCIN is a Criminal Code Infringement Notice that will be issued to offenders for nominated minor criminal offences”. See also Criminal Code Compilation Act 1913 (WA) (WA Criminal Code) s722, which uses the wording of “alleged offender” and “alleged offence”.

Regulations r6.

WA Criminal Code s74A (2). ibid., s378.

Peter Collier.

Western Australia Parliament.

Parliamentary Debates. Legislative Council: 23 February 2011. Refer Note 1, Vol.2, p.45.

Refer Note 1: there is no framework against which to assess whether CCINs should apply to a particular offence.

WA Criminal Code s74A (1).

Regulations r6. ibid., r5; CP Act s7.

Refer Note 1, Vol.1, p.12. ibid., Vol.1, pp.15–16; Vol.2, pp.30–42. ibid., Vol.1, pp.16.

CP Act s8. ibid., s9 (3).

Regulations sch2.

CP Act s10.

WA Criminal Code s722; Criminal Investigation (Identifying People) Act 2002 (WA) ss47,67-9.

CP Act s10, sch2. ibid., sch2 stipulates that “A person who serves a named person with a document or other thing under this clause must record the service information in a service certificate signed by the person”.

Regulations sch1.

Refer Note 2.

Refer Note 1.

Calla Wahlquist, Aboriginal Woman in WA Fined $500 for Stealing $6.75 Box of Tampons. Online: The Guardian; 15 October 2015; 9 July 2018. Available from: http://www.theguardian.com/australia-news/2015/ oct/15/aboriginal-woman-in-wa-fined-500-for-stealing675-box-of-tampons. ibid. ibid.

Aboriginal Legal Service of Western Australia.

Submission to the Australian Law Reform Commission’s Discussion Paper of Incarceration Rates of Aboriginal and Torres Strait Islander People. Perth: 11 September 2017; 10 July 2018, p.38. Available from: http://www. als.org.au/wp-content/uploads/2017/10/ALSWASubmission-to-the-ALRC-Inquiry-on-IncarcerationRates-of-Aboriginal-and-Torres-Strait-Islander-

Peoples-.pdf. See also Australian Law Reform Commission. Pathways to Justice — Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples. Sydney: 2018; 28 March 2018.

31

ibid.

32

ibid.

33

Refer Note 1, Vol.1, pp.43–44, 49; Vol.3, pp.94–97.

34

The WA Police determine and record ‘offender appearance’ from three categories: Aboriginal, Caucasian and Other. There is no category for Torres Strait Islander People given the very small percentage of Torres Strait Islanders in WA. Valid criticisms can be levelled at WA Police for identifying the Aboriginal or Torres Strait Islander identity of a person by means of ‘offender appearance’. The standards for collecting and recording Aboriginal or Torres Strait Islander status should be derived from the identification of a person as Aboriginal or Torres Strait Islander, including by descent, self-identification, and acceptance of the person as an Aboriginal or Torres Strait Islander by their community (see ibid., Vol.1, pp.7, 35–36; Vol.4, p.7).

35

ibid., Vol.1, pp.14–15.

36

ibid., Vol.1, p.14.

37

ibid., Vol.3, pp.30–31.

38

ibid., Vol.3, p.31.

39

ibid., Vol.1, p.20; Vol.3, pp.99–100.

40

ibid., Vol.3, p.100.

41

ibid., figs.2, 5.

42

Refer Note 27.

43

Pat O’Malley. The Currency of Justice: Fines and Damages in Consumer Societies. London: Routledge, 2009, p.4.

44

Refer Note 1, Vol.1, pp.15–16; Vol.2, pp.30–42.

45

ibid., Vol.1, pp.15–16.

46

ibid., Vol.1, pp.15–16; Vol.2, pp.30–42.

47

ibid., Vol.1, pp.16.

48

Refer Note 30.

49

[Source removed for purposes of blind peer review].

Time to Define the Cornerstone of Public Order Legislation: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW). University of New South Wales Law Journal 2013, Vol.36, p.534. The ‘Janus Faces’ of Offensive Language Laws: 1970-2005. UTS Law Review 2006, Vol.8, p.118. Poverty, Police and the Offence of Public Nuisance. Bond Law Review 2008, Vol.20, p.

7. Elliot Johnson, Commissioner. Royal Commission into Aboriginal Deaths in Custody National Report.

Canberra, 1991. NSW Law Reform Commission.

Penalty Notices. Sydney, 2012.

50

Melser v Police [1967] NZLR 437 at para 444 (Turner J); quoted with approval in Heanes v Herangi (2007) 175 Crim R 175 at para 209 (Johnson J).

51

Australian Law Reform Commission. Pathways to Justice — Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples. Sydney: 2018; 28 March 2018, rec12–4.

52

CP Act s15.

53

The postal address provided is: Locked Bag 40, Perth Business Centre WA 6849. People may also email: fines@police.wa.gov.au. Western Australia Police Force.

Can I Seek a Review of a CCIN? Perth: Western Australia Police Force; 31 October 2016; 10 July 2018. Available from: https://www.police.wa.gov.au/FAQ?faq=CanI-seek-a-review-of-a-CCIN&q=aaef400c-2766-4facb50b-f23c34d5f44d.

54

Refer Note 1, Vol.2, pp.35–36.

55

ibid., Vol.2, p.54.

56

ibid., Vol.1, pp.16–17.

57

CP Act s15 (4). It is unclear from a review of the CP Act what would happen if further enforcement sanctions had been incurred by the CCIN recipient (such as driver’s license suspension or disqualification). The authors suggest that following the logic of s15 (4), where a CCIN is withdrawn, the person should be able to apply to a court to have any enforcement sanctions overturned.

58

Refer Note 1, Vol.1, p.16.

59

Cheap and Efficient Justice? Neoliberal Discourse and Criminal Infringement Notices. University of Western Australia Law Review 2018, forthcoming.

60

Refer Note 27.

61

Interview with Peter Collins, Director of Legal Services, Aboriginal Legal Service of Western Australia on 6 July 2018 in Perth, Western Australia.

Unethical or incompetent — Does it matter?

Gino Dal Pont Professor, Faculty of Law, University of Tasmania

• At common law “professional misconduct” does not extend to mere negligence.

• Statutory misconduct definitions, however, do encompass matters of incompetence.

• A qualitative distinction nonetheless remains between “unethical” and “incompetent” conduct.

Practitioners will no doubt be aware of the statutory definitions of “professional misconduct” and “unsatisfactory professional conduct”, which are nowadays uniform across Australia. In its statutory sense, “professional misconduct” is defined to include, inter alia, inclusively by reference to two limbs: conduct that would justify a finding that the lawyer is not a fit and proper person to engage in legal practice; and unsatisfactory professional conduct that involves “a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”.

“Unsatisfactory professional conduct” targets a lawyer’s conduct in connection with the practice of law that “falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”.

The foregoing must be seen against the backdrop of the longstanding and venerable common law definition of “professional misconduct”,1 espoused by the English Court of Appeal in the late nineteenth century, namely conduct that “would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency”.2 An important aspect concerning this definition, which remains extant in view of the inclusive statutory definitions above, is its focus on “disgraceful or dishonourable” conduct. Conduct that amounts to no more than “mere negligence” does not meet this descriptor, it has been held.3 And while there is some suggestion that “gross negligence” or “recklessness” may do so, its appearance coincides with lawyers who have failed to exercise proper supervision over trust moneys.4 It follows that, by introducing matters surrounding “competence and diligence” into the disciplinary sphere, the disciplinary net has been expanded. There is accordingly a recognition that professional discipline is not confined to questions of “ethics” but can tranverse into matters of “competence”.

Protection of the public is a core objective of disciplinary proceedings, and it cannot be doubted that the public

Ethics Column

need protection from incompetent lawyers as much as it does from unethical lawyers. Yet questions of competence have traditionally been addressed by way of threshold qualification and experience (and, more recently, by mandatory continuing education), against the backstop of (chiefly) tort law. The expansion of the disciplinary environment into the (in)competence sphere, when coupled with the modern availability of compensation orders in the disciplinary process, may obviate the need for clients to personally pursue incompetent lawyers in tort.

At the same time, one should not overlook the qualitative difference between conduct that is “unethical” as opposed to conduct that is “incompetent”, even if under statute they may fall under the same moniker.

That a lawyer’s lack of competence in a matter does not, by itself, cast any aspersion as to his or her “ethics” — namely honesty or integrity — may assume direct relevance to any “disciplinary” response. It may be that question marks over competence can be addressed by sanctions directed to developing or restoring competence, including via education and supervision, allied potentially with restrictions on practice.

Incompetence in one (or even multiple) instances does not necessarily infuse the entirety of a lawyer’s practice.

When it comes to conduct that casts a shadow over a lawyer’s “ethics”, it may prove more difficult to shape disciplinary orders that develop or restore honesty or integrity. This is because unethical behaviour in one (or more) instances is often perceived as revealing a more encompassing lack of honesty or integrity, something that goes to a person’s character. And, as the New South Wales Court of Appeal has observed, “[c]haracter does not change readily”.5 This explains why unethical behaviour is often met by “punitive” sanctions (from the lawyer’s perspective), and an attendant suspicion as to the efficacy of additional education to achieve some ethical restoration.

It stands to reason that, notwithstanding being placed under a common umbrella in the disciplinary environment, it cannot be assumed that matters of “ethics” inhabit the same sphere as those of “competence”.6 Endnotes 1.

2.

3.

4.

5.

6.

See Edmonds, “Misconduct of Australian Lawyers Under Legislation Based on the National Model — Aligning the Common Law Tests with the New Statutory Regime” (2013) 39 Mon ULR 776.

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761 per Lord Esher MR. Myers v Elman [1940] AC 282 at 288 per Viscount Maugham; Re Veron (1966) 84 WN (Pt 1) (NSW) 136 at 143 (CA).

See, for example, Re Mayes [1974] 1 NSWLR 19 at 25–26 per Reynolds and Hutley JJA; Re a Barrister and Solicitor (1979) 40 FLR 1 at 22 (FC(ACT)).

Re B [1981] 2 NSWLR 372 at 381 per Moffitt P. Hence the recent remark that “making of a knowingly false representation involves a substantial failure to achieve a reasonable standard of competence and diligence” (Legal Practitioners Complaints Commissioner v Mancini [2018] SASCFC 29 at [71]) improperly conflates the two.

41

EVENT WRAP UP 2

1

3

4

6

7 1. Corey White, Brennan & Co 2. Lyle Swithenbank, Jackson McDonald 3. The Hon Peter Quinlan, Chief Justice of Western Australia (at the time Solicitor General of Western Australia) 4. Karri Coles, Norton Rose Fulbright 5. L-R Corey White, Brennan & Co; Heather Costelloe, Clayton Utz; Sam Gillis, Allens; Karri Coles, Norton Rose Fulbright; Lyle Swithenbank, Jackson McDonald; Patrick Mackenzie, King & Wood Mallesons; Lauren Ziegelaar, Gilbert + Tobin; Josephine Kwok, Herbert Smith Freehills; Benjamin Thomas, Ashurst; Chris Burch, Corrs Chambers Westgarth

5

Golden Gavel 2018

6. Chris Burch, Corrs Chambers Westgarth 7. Malcolm Hoad, Law in Order; Siemone Neutgens, KBE Human Capital; Jaspreet Sandhu, KBE Human Capital; Ilaam Schroeder, Law in Order; Brett Walker, Law in Order

Collegiality, modesty and social grace: all of these lawyerly virtues were temporarily suspended on the evening of Friday, the 6th of July 2018, as 230 members of the profession and honoured guests gathered at the Pan Pacific Hotel for the annual Golden Gavel competition, presented by the Law Society of Western Australia’s Young Lawyers Committee.

The audience gasped in horror and roared with laughter as ten brave young lawyers from all walks of life (read: nine mid-to-large-tier firms and one plucky criminal lawyer from a boutique enterprise) gave five-minute speeches to answer topical questions posed of them. This year, the topics spanned from the banal to the baroque, including ruminations on enduring HECS debt and being hassled for legal advice at barbeques, to the section 44 political saga, to the legal consequences of the banking royal commission and beyond.

42 | BRIEF SEPTEMBER 2018

Moderator Jeremy Rich did his best to keep the competitors’ rampaging egos and imprudent tongues in check, which – despite his valiant efforts - proved to be an exercise in futility. Proud references to personal privilege, conspicuous consumption and embracing cruelty as a vocational accomplishment lent the evening a distinct air of pitch-black comedy.

Nonetheless, the crowd was duly entertained, the speeches were hilarious, and the threecourse meal and beverage package suitably enhanced the entertainment on offer.

Special thanks to our sponsors Premium sponsor

Supporting sponsor

Golden Gavel 2018

Attendees at Golden Gavel 2018

Once the dust had settled, it fell to the elite adjudication panel of the Hon Chief Justice Peter Quinlan (at the time Solicitor General of Western Australia), Hayley Cormann and Simon Freitag SC to restore a measure of decorum to the night. Chief Justice Quinlan took to the podium on their collective behalf and dissected the ten speakers with the kind of expert precision and ferociousness that would singlehandedly justify his nomination to silk status, had he not already achieved that honorific during the course of his career. Indeed, those who did not attend may be certain that the ten smoking piles of ash that were formerly Golden Gavel contestants were course-corrected by the end of the night, and then some, once the Chief Justice had finished with them.

Although all speeches were presented compellingly, in the end there could only be one. As such, it was definitely a sign of our times that the commemorative gavel plaque for best speaker was awarded to Lyle Swithenbank of Jackson McDonald, who cinched the prize with his day-in-the-life account of a morally bankrupt banking lawyer.

Credit is due to Mr Swithenbank for speaking with such verve and passion for the more despicable aspects of his job that the last remaining shred of hope I held for humanity was cleaned away with the dessert plates.

The final results, all tallied, were: Lyle Swithenbank, Jackson McDonald (first place); Corey White, Brennan & Co (second place); Karri Coles, Norton Rose Fulbright (third place); Chris Burch, Corrs Chambers Westgarth

(People’s Choice Award). While the remaining six competitors did not place, they can take comfort in the knowledge that the views and arguments that they shared were just as reprehensible as those of their colleagues, though marginally less successful.

All in all, the Golden Gavel competition remains a highlight of the Law Society’s social calendar, a wonderful occasion for WA’s firms to raise a glass, let their hair down and joke in good nature about their role in the collapse of Western civilisation. Finally, thanks must once again be extended to our sponsors KBE Human Capital and Law in Order, whose gracious patronage allowed for the fantastic evening.

James Marzec

43

The Foreign Buyers Surcharge Bill – a Drafting Nightmare

By Grahame Young Barrister, Francis Burt Chambers The Duties Amendment (Additional Duty for Foreign Persons) Bill 2018 was introduced into Parliament on 13 June 2018 with the intention it should become operative on 1 January 2019.

The WA approach has been to make the Foreign Buyer Surcharge Chapter an independent source of liability without relying on an underlying dutiable transaction or relevant acquisition.

The Bill is to implement a 7% surcharge on residential property in the State acquired by a foreign buyer.

The new Chapter inserted by the Bill incorporates definitions from a number of State and Commonwealth Acts as well as from the transfer duty and landholder duty Chapters.

The surcharge is in addition to transfer duty or landholder duty and is imposed at a flat rate, there is no shading in.

The surcharge will only apply to land that is, or is capable of being, or is intended to be, used solely or predominately for residential purposes. Vacant land zoned solely for residential use is included.

Residential developments of more than 10 properties, commercial residential properties such as hotels, student accommodation and retirement villages will not be liable.

The surcharge applies to acquisitions by foreign persons of residential lands by dutiable transactions subject to transfer duty.

It also applies to acquisitions of interests in a residential landholder, being an entity that is entitled to lands in Western Australia, directly or indirectly through linked entities, with a value of $2 million or more and is also entitled to residential lands in the State of any value.

This article does not seek to explain the provisions of the Bill, but rather to comment on the drafting technique employed.

There is a distinct difference between the approach taken by the drafter of the WA Bill to that taken by the drafters of the equivalent legislation in other jurisdictions. The latter may be characterised as short form legislation, crudely summarised as “If there is a dutiable transaction by which a foreign person acquires an interest in residential land, or a relevant acquisition of an interest in a residential landholder by a foreign person, then the foreign buyer surcharge is imposed on the value of the relevant residential property.” The result is the provisions in other jurisdictions comprise only a relatively few sections.

44 | BRIEF SEPTEMBER 2018

The drafting technique employed is then to reproduce or incorporate the relevant sections from the transfer duty or landholder Chapters with appropriate modifications.

Sometimes the modified section is reproduced in full, for example section 9 in the transfer duty Chapter reads: Duty is imposed on dutiable transactions.

The equivalent section of the Bill is 205G which reads: Foreign transfer duty is imposed on foreign dutiable transactions.

Some sections refer back to the equivalent transfer duty section. For example, section 205J in the Bill setting out when liability for the surcharge arises refers back to section 19, and section 205P on dutiable value applies the relevant sections in the transfer duty Chapter but substituting references to the terms defined in that Chapter with those defined in the new Chapter.

When the Bill deals with the equivalents of what may be called non-standard transfer duty transactions; put and call options, trust acquisitions, corporate trustees, partnership acquisitions, WA business assets and conditional agreements and, more importantly, the foreign landholder duty provisions, the technique is taken one step further.

Subject to some specified sections or divisions being omitted, the whole of the relevant provisions of the transfer duty or landholder duty Chapters are adopted, but with modifications, which may apply generally or only to some of the adopted provisions.

The result of this drafting technique is that to ascertain how the new surcharge will apply a reader must pay attention to: • • • •

• •

The definitions adopted from other State or Commonwealth Acts; The particular substantive sections of the new Chapter; The other sections of the Act referred to in those sections; The sections of the new Chapter that apply sections from other Chapters; The other sections of the Act so applied; and The modifications to the applied sections.

The upshot is that the reader will be forced to consider simultaneously up to four different parts of the Act, while applying the modifications in one part to sections in another and then to attempt to make all provisions work together as a consistent and harmonious whole.

This is not user-friendly drafting and the potential for confusion and the misapplication of the provisions is obvious.

Only time will tell if this drafting approach rather than that adopted in other jurisdictions will create more issues for taxpayers and their advisers, revenue officers and the judicial officers called on to decide any questions of construction.

It is no doubt inevitable that attempts will be made to create unofficial versions combining the substantive sections of the new Chapter, the definitions adopted from other Acts and the applied sections from the other Chapters after making the required modifications, with all sections then being placed into a logical order.

Where a section is applied as a standalone provision, the task may not be difficult, but sections such as sections 205P and 205Q will not be as easy to present in a logical way.

The likely existence of a variety of unauthorised versions relied upon by different users will only emphasise the problems caused by the chosen drafting technique.

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

“Try to remember the kind of September When life was slow, and oh, so mellow.

Try to remember the kind of September When grass was green and grain so yellow...”

“Definitely recurrent, sometimes consequential, and occasionally spectacular, the solar eclipse understandably occupies a provocative and luminous place in history and in art. For example, Herodotus reports that a solar eclipse during the war between the Medes and the Lydians caused the combatants, who interpreted the eclipse as a divine omen, to suspend hostilities and to negotiate peace. In Borodin’s magnificent opera, an eclipse portends disaster for Prince Igor’s military campaign against the Polovtsians. In a popular 1970s song, the splendid Carly Simon introduced the attendance of a former suitor (reportedly the actor Warren Beatty) at a solar eclipse as probative evidence of his putatively insufferable vanity:

At this time of year your Dog’s thoughts often turn to the lyrics and music of this song, performed by Harry Belafonte, the words composed by Tom Jones, of no relationship to the Welshman!

September and the spring flowers in the diversity hotspot we take for granted are out of this world. I wonder, as population expands and more and more areas are converted to residential and industrial locations, given our relatively high rate of animal extinction, whether the magic that is WA is treasured by all its people as it should be.

It was in that benign frame of mind your Dog recently read the decision in the Marion Circuit Court for the State of Indiana between The First Church of Cannabis Inc & Ors v State of Indiana. The Church and its leaders, including the descriptively named “Granny J”, one Janet GoldenHogan, claimed they constitute a church whose members are entitled to consume marijuana as a sacrament pursuant to the Religious Freedom Restoration Act (RFRA). The RFRA is said to afford the Plaintiffs the right to possess and consume marijuana despite the provisions of the Indiana Criminal Code.

One has to admire the ingenuity of the Plaintiffs and their advisors. Perhaps marijuana does that! On the day Governor Pence signed the RFRA into law, the Church applied to the Internal Revenue Service (IRS) for status as a non-profit charitable organisation under the Internal Revenue Code, with the assistance of the Church board member and attorney, Jonathan Sturgill. The IRS granted that status, making donations to the Church tax deductible to the donor.

The Church planned to supply marijuana for use in its services, possibly in the amount of “one joint per person”. It would also sell marijuana joints in its gift shop. Participants at church services could smoke as much or as little as they wanted, but would not be required to smoke marijuana.

At the point in the service where marijuana would be consumed Bill Levin, one of the Plaintiffs, envisioned participants “laughing, having fun, [and] telling jokes.” The Defendants opposed the application, providing information and expert opinion as to the public health safety hazards of marijuana use, even if used as a religious sacrament.

Perhaps unsurprisingly, but disappointingly to the Plaintiffs, the Court granted summary judgment to the Defendants.

The decision in United States of America v Joseph Bishop, in the Middle District of Florida, is no less amusing: it reads, in part, as follows:

Well I hear you went to Saratoga And your horse, naturally, won Then you flew your Learjet up to Nova Scotia To see the total eclipse of the sun Well, you’re where you should be all the time And when you’re not, you’re with some underworld spy Or the wife of a close friend, Wife of a close friend, and You’re so vain You probably think this song is about you” …..

On this occasion, an Assistant United States Attorney boldly moves (where no AUSA has moved before) to postpone a trial because an agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, has pre-paid the cost of visiting the zone of “totality” of a solar eclipse that will occur on August 21 (about the eclipse, the motion oddly uses the phrase “scheduled to occur,” as if someone arbitrarily sets the eclipse, as an impresario sets a performer, to appear at a chosen time and place, subject always to some unstated exigency).

Cruel fate has dictated that the August 21 eclipse will occur during the trial of an action in which the agent is a principal participant on behalf of the United States. …

When an indispensable participant, knowing that a trial is imminent, pre-pays for some personal indulgence, that participant, in effect, lays in a bet. This time, unlike Carly Simon’s former suitor, whose “horse, naturally, won,” this bettor’s horse has — naturally — lost. The motion is DENIED.” Your Dog

45

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

Children – Birth mother and partner win appeal against declaration that sperm donor was a parent of their eldest child In Parsons and Anor & Masson [2018] FamCAFC 115 (28 June 2018) a birth mother (“Susan”), while living with her partner “Margaret”, had two children “B” (10) and “C” (9) conceived by artificial insemination, for which sperm had been donated by the respondent (“Robert”) for B and by an unknown donor for C. Robert sees the children (they call him “Daddy”) and was registered as a parent on B’s birth certificate while Margaret is on C’s birth certificate. Section 60H of the Family Law Act deems Margaret to be C’s parent ([3]).

At first instance the Court declared Robert to be a parent of B as it was not satisfied that Susan and Margaret were in a de facto relationship when B was conceived. It was held that Robert was a legal parent of B as he had “provided his genetic material for the express purpose of fathering a child he expected to be parent” ([17]). The mother’s application to relocate to New Zealand was dismissed. Susan and Margaret appealed.

Thackray J (with whom Murphy and Aldridge JJ agreed) did not need to decide whether the finding that the appellants were not in a de facto relationship was in error. As to the finding that Robert is a ‘parent’ of B within the meaning of the FLA, the Full Court (at [6]) agreed with the appellant’s submission that “her Honour, who was sitting in New South Wales, erred in failing to recognise that s 79 of the Judiciary Act 1903 (Cth) required her to apply not the FLA but the Status of Children Act 1996 (NSW)”, the effect of which is that “the respondent is conclusively presumed not to be B’s father”.

Thackray J cited s 14 of the State Act which contains four presumptions of parentage arising out of the use of artificial conception procedures, including: “(2) If a woman … becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.”

The appeal was allowed, the parenting order set aside and the case remitted for re-hearing.

Property – Judge who declined to make “manifestly inadequate” consent order disqualified for apprehended bias In Silva & Phoenix [2018] FamCAFC 41

46 | BRIEF SEPTEMBER 2018

(7 March 2018) Strickland J allowed the husband’s [H’s] appeal against Judge Kelly’s order dismissing [H’s] application that he disqualify himself, having refused to make a consent order minuted by the parties. The terms provided for [H] to pay [W] $30,000, nine per cent of the asset pool. A statement of agreed facts was filed and the matter listed for submissions. Judge Kelly was not prepared to make the orders (for being “manifestly inadequate”), at [19] saying (inter alia) that he was “concerned that an award of nine per cent for even a relatively brief marriage is not just or equitable and [he] cannot approve it “.

The matter was listed for trial. [H] then filed an application for an order disqualifying the judge on the ground of actual or apprehended bias.

It was dismissed, whereupon [H] appealed.

Strickland J concluded (at [22]-[24]): “ … [T]he question is … can it be said that his Honour has pre-judged the issue in dispute. That depends on whether his Honour’s comments can be confined to the application … before him, or whether it demonstrates a closed mind that will not be changed when the subsequent hearing takes place.

[23] Although an argument could be mounted that it is the former, on the basis that a judicial officer is able to put aside his views in rejecting the consent orders, and bring an open mind to the subsequent hearing when there will be far more evidence put before him, the test is still whether ‘a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide’.

[24] In my view, it is undeniable that that test is satisfied here. ( … )” The appeal was allowed and an order made that Judge Kelly be disqualified from further hearing the property applications between the parties.

medical treatment. Ms Dodt, a real estate agent, had been out of the workforce for five years since undertaking IVF. Ryan J said (from [17]): “ … [Since] separation [Ms Dodt] had not sought employment in the real estate industry … According to [Mr Elei], pursuant to s 90SF(1)(b)(ii) [FLA], this ought to have resulted in the application for maintenance being dismissed.

[18] This submission ignores that s 90SF(1)(b) … enabled the … judge to be satisfied that [Ms Dodt] was unable to support herself adequately ‘for any other reason’ (s 90SF(1)(b)(iii)). … [T] he … judge determined the question of whether [Ms Dodt] … was unable to support herself adequately by reference to the totality of [her] circumstances and not the narrower ground upon which [Mr Elei] sought to rely. These ‘other reasons’ included [Ms Dodt’s] absence from the paid workforce for five years, that she had been attending a psychologist … had … personal difficulties … and … surgery to her hand … [that she] was impecunious, wished to return to work but required funds … to renew her real estate licence … “ Ryan J concluded from [33]): “ … [T]o determine capacity to pay by reference to property it was incumbent upon the … judge to consider [Mr Elei’s] liabilities and not just his assets. This was not done … ” ( … ) [36] Furthermore … the … judge’s approach to [Mr Elei’s] support of his [former] partner and her children was erroneous. This expense was disregarded on the basis that the appellant provides support ‘to people he has no obligation to support’. The primary judge’s expression suggests that she may have mistakenly blurred s 90SF(3)(d) and (e). ( … )”

Maintenance – Court erred in considering appellant’s property but not his liabilities and in disregarding his support of new partner and her children

The appeal was allowed in part, the order being set aside except as to the lump sum payable.

In Elei & Dodt [2018] FamCAFC 92 (17 May 2018) Ryan J heard Mr Elei’s appeal against Judge Boyle’s interim order that he pay Ms Dodt maintenance of $1,450 per week; her health insurance premiums and $2,000 for

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.

Ex Juris: Travel Tales from the Legal Profession

Jerusalem, Isreal

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

A decision to visit Israel is deeply personal involving as it does, questions of safety, political beliefs and spiritual dimension.

For people of the book, Muslims, Jews and Christians, Jerusalem is a city which is the intersection of several faiths. An example is the Dome of the Rock, the most universally recognised building in Jerusalem, featuring on nearly every photograph. It is sacred to Muslims as the spot from where Muhammad began his night journey, and sacred to Jews of the site of the temple destroyed in 70CE. It is advisable for many reasons to have a guide for Jerusalem. Without a guide, you are likely to miss or be denied entry to some of the city's highlights. Reading Simon Sebag Montefiore's Jerusalem is ideal preparation for a visit to the holy city. Access to the face of the Western Wall is restricted and even approaching it requires a visitor to pass through strict security. But there is another way. There are tours that run beneath the Western Wall. The tour descends into darkness and follows the aqueduct, built during the reign of Hezekiah to the Pool of Siloam. Few are unmoved by the experience of walking on paths 3,000 years old.

Other attractions in Jerusalem include of course the Church of the Holy Sepulchre, where pilgrims come to pray for themselves and others, touching what is said to be the original stone on which Christ was laid.

Myth and history blur as there are at least two churches of the Immaculate Conception and two sites of the crucifixion. Look for the immovable ladder and have the guide tell you the story. And you thought partner's meetings were sometimes difficult!

Be prepared to let the moment take you as there is always something on in the open street market or bands of pilgrims along the Via Dolorosa, the journey Christ purportedly took carrying the cross.

Near to Jerusalem, in the Palestinian authority, is the town of Bethlehem, whose Christian significance is obvious. Only a short distance by taxi but a different world.

A visit to Jerusalem would not be complete without a visit to the Jerusalem museum which features the great Isaiah Scroll discovered in Qumran in 1947. The other museum which is

a must, even though it reduced this hardened lawyer to tears and is harrowing, is Yad Vashem, the memorial to the victims of the Shoah. To properly understand and pay homage, a visit of at least one day is recommended. Some relief can be found in the Garden of the Righteous Among the Nations, those people who risked their lives for liberty to help Jews escape the Holocaust.

Prominent in the garden is a tree commemorating the work of Polish social worker Irena Sendler. For those unfamiliar with her, look up her biography and the play made about her exploits: Life in a Jar. She is one of this lawyer's few true heroes.

Israel is a relatively small country and it is possible, if arduous, to drive from Eilat in the south to Lake Tiberias (the Sea of Galilee) in a long day. More easily managed, is the journey from the Dead Sea to Lake Tiberias following the Jordan River. The road descending to the Dead Sea marks at various stages, the depth below sea level. A bathe in the Dead Sea is obligatory but don't open your eyes under water! It is 39% salt and life guards are employed to flip people onto their back if they over balance and turn face downwards. Many visitors also cake themselves in mud, said to have therapeutic qualities, though it is hard to understand what.

The road north passes Masada, Qumran and Jericho, all of which have their place in Jewish history. Jericho is safe for Christians but Israelis are warned not to enter. The Jordan River, once mighty, is now a mere trickle due to irrigation along both sides. Date plantations are plentiful.

Lake Tiberias has plenty of resort towns and hotels indistinguishable from those in any other country with a beach frontage to lake or sea.

Nearby however and easily reachable by road, are the Golan Heights, and the Church of the Beatitudes.

The Sea of Galilee boat has its own museum.

The boat was unearthed in 1986 after a drought and has been dated to between 40 BCE and 50 CE. It is one of only a handful of well-preserved historical boats in the world and likely to have been identical to those boats used by the fisher disciples.

Driving west from the Sea of Galilee through Palestinian land, a traveller will pass through

Cana where it is possible to buy "Jesus wine".

The wedding at Cana had Jesus turning water into wine; this lawyer was slightly suspicious.

The road leads on to Nazareth, the most populated city of the Palestine authority and of course, a city of great religious significance to Christians. Inevitably, there is a church, built on ruins that date to the start of the Common Era. On to Haifa, a modern port with two stand-out architectural features. The first, is the Baha'i Temple and Garden. Although the temple is not open to visitors, there are tours of the garden which are spectacularly terraced into 18 ordered groves.

Of more interest perhaps to architects than lawyers is the collection of Bauhaus buildings, now somewhat faded, but slowly being restored.

More Bauhaus architecture can be seen in Tel Aviv where the white city is now a world heritage site. Bauhaus architecture constitutes an unusual link between Germany and Israel.

Tel Aviv is now a major modern city, consequently lacking some of the charm and history of other places in Israel, although the Port of Jaffa is well worth a half day's stroll through.

A visit to Israel, I repeat, is a personal decision.

There is much to see and do of historical and modern interest. Some of the political and other problems are intractable and no matter how much a traveller might revel in the past, it is impossible to escape the present. Be aware that you will see armed soldiers and police everywhere and will be confronted at times with high walls confining the Palestinian authority.

Jerusalem in particular will fascinate with the races, religions and pilgrims mixing together in a degree of amity.

For those planning a trip, I would recommend at least 12 days. My time was spent in the north of Israel and I didn't even get to Beersheba or the Negev Desert, so a return trip is in prospect.

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

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

47

Law Council Update

Don’t ignore justice issues in drought relief The Law Council is calling on the Australian Government to prioritise strategies and funding to boost legal services and legal assistance in rural, regional and remote Australia as part of its drought response.

Law Council of Australia President, Morry Bailes, said financial hardship caused by the drought will undoubtedly cause legal problems for farmers and rural communities, yet many will face serious hurdles to getting the legal help they need.

“The law can’t be seen in isolation – we can’t pretend that farmers who are having credit and debt problems because of the drought are not also having legal problems,” Mr Bailes said.

“The government’s drought response must consider what kind of legal needs farmers and their communities have, which is often overlooked.

Family law needs are also likely as relationships come under increased pressure.

“Farmers may be asset rich, but can often struggle to afford a lawyer, particularly in times of drought. On top of that we know that many parts of rural, regional and remote Australia are critically underserviced when it comes to legal services and legal assistance.

“The chronic national underfunding of legal aid and community legal centres also means these vital ‘safety net’ services are struggling to service those in rural, regional and remote Australia.”

The Law Council’s Justice Project, which began in early 2017, is a national, comprehensive review that examined the state of access to justice in Australia for people experiencing significant disadvantage. It is one of the most extensive reviews of its type in 40 years.

The Justice Project’s 1400 page Final Report uncovered significant concerns about unmet legal needs, across civil, criminal and family law in rural, regional and remote communities.

“The Justice Project Final Report

48 | BRIEF SEPTEMBER 2018

found that rural, remote and regional Australians face serious disadvantage when it comes to accessing lawyers, courts and justice,” Mr Bailes said.

“Some regions in Australia are critically underserviced or don’t even have services available. In Western Australia there is a single community legal centre solicitor covering an area that is more than twice the size of the United Kingdom.

“The drought, and the financial hardship it causes, will only exacerbate the disadvantage rural, regional and remote Australians face in accessing justice.

“This is not a small group of people – some seven million Australians live outside our major cities and are facing significant disadvantage in their ability to access justice. In fact, only 10.5 per cent of Australian solicitors are practicing in a country or rural area.

“We are calling on the government, alongside with the legal sector, to prioritise rural, regional and remote justice strategies and funding to deliver services in areas of critical need.

“The strategies recommended in the Justice Project Final Report (rec. 2.11) for rural, regional and remote Australia include: placement, mentoring and incentive schemes, increased legal aid rates and bolstering practitioner referral networks – including to facilitate pro bono assistance.”

Don’t short-change Australia’s justice system by rushing through court merger bills The Law Council is deeply concerned by the truncated three-week timeframe for the public to scrutinise the recently introduced court merger bills.

The two bills, if passed, will merge the current Federal Circuit Court of Australia and the Family Court of Australia into the new Federal Circuit and Family Court of Australia. The bills signify the biggest changes to Australia’s justice system in decades.

The same day the bills were introduced in the lower house, the Senate Legal and Constitutional Affairs Committee reduced the reporting deadline from 15 April 2019 to 26 November this year. The Committee also fixed a submission closing date of 14 September.

Law Council of Australia President, Morry Bailes, said the peak body already held significant concerns about the proposal to merge the courts, and a three-week deadline to scrutinise the bills would short-change a court system already at breaking point.

“Australia's family court system today is under immense pressure but rushing through changes without proper consultation is not the answer,” Mr Bailes said.

“Three weeks for stakeholders and the community to review such a significant overhaul is insufficient and extremely worrying.

“We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick,” Mr Bailes said.

Mr Bailes said that chronic underfunding for more than a decade has led to a court system which continually struggles to meet the needs of the community.

“The measures provide no extra funding for the chronically underresourced court system or associated support services, which allow the court system to deal with cases more quickly.

“Last week the Senate recognised the major impact the proposed merger could have on all Australians’ access to justice when it voted for a mid-April reporting deadline.

“A reporting deadline in mid-April 2019 would allow the Senate to consider the recommendations of the Australian Law Reform Commission’s Family Law Review. The final report is due on 31 March 2019.

“To significantly curtail this deadline is of great concern. We urge the government to reconsider this timeline immediately,” Mr Bailes said.

49

Professional Announcements Career moves and changes in the profession

Lark Lawyers

Gilchrist Connell

Lark Lawyers is pleased to announce the appointments of Sharyn Clarke, Liam McLagan and Joseph Burke as Directors from 1 July 2018.

Specialist insurance law firm Gilchrist Connell heartily congratulates the following talented senior lawyers for their outstanding contribution to client outcomes, service and the firm’s continued success. Marino Gismondi was promoted to Special Counsel and Kate Kellendonk is now an Associate.

Sharyn joined Lark Lawyers’ predecessor in 2007 and in that time has developed considerable experience in a range of commercial areas. Sharyn’s primary focus is estate and business succession planning; an area in which she guides clients through the sensitive and technical issues associated with passing wealth to the next generation.

Liam has returned to Lark Lawyers after spending a number of years creating and growing a financial technology startup.

Liam brings improved commercial, finance and regulatory skills to the firm with a focus on business M & A, fundraising, lending, finance and securities.

Joseph is a new addition to Lark Lawyers and in joining the firm has expanded our suite of legal services to include general and commercial litigation, dispute resolution and employment law. Joseph has extensive experience in those areas developed over the last 10 years, and now heads up the firm’s litigation team.

Marino Gismondi has a strong track record and a wealth of experience in personal injury claims, particularly in workers’ compensation and public Marino Gismondi liability. He has quickly established himself in the firm, achieving results through leading by example and building a strong team culture.

Kate Kellendonk has rapidly developed her skills and knowledge, and maintains a keen focus on achieving early, commercial results.

She handles a variety of Kate Kellendonk workers’ compensation and public liability claims, including property damage and particularly industrial diseases (asbestos related).

Separovic Injury Lawyers Separovic Injury Lawyers are pleased to announce that Veronica Lam has been promoted to the position of Associate within the firm as of 6 August 2018.

50 | BRIEF SEPTEMBER 2018

New members joining the Law Society (August 2018) Ordinary Membership Mr Michael Harding Pilbara Community Legal Service

Restricted Practitioner Ms Rachael King HHG Legal Group

Associate Membership Mr Marcus Berghouse Clifford Chance (Sydney) Ms Leanne Chapman University of Notre Dame Australia Mr Ashton Hardstaff Curtin University Miss Hayley Kurz Jackson McDonald

Blackwall Legal

Miss Gabriele Maluga The University of Western Australia - Law Faculty

Blackwall Legal is excited to announce our most recent appointments.

Mr Andrew McDade The University of Western Australia - Law Faculty

Klimek Family Law

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

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

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

New Members

Rob McKenzie and Chris Pearce

Legal powerhouse Rob McKenzie has joined Chris Pearce in the Partnership. Rob brings over 35 years’ of transactional and business transformation experience to Blackwall Legal.

In addition, Hamish Taylor has joined as Senior Associate who practices predominately in the equity capital markets, corporate contracting and commercial transaction areas.

Hamish Taylor

Mrs Juliane Miley Edith Cowan University Miss Tayla Richards Edith Cowan University

Professional Announcements The Hon Wayne Martin AC QC returns to Francis Burt Chambers offering arbitrator and mediator services The recently retired former Chief Justice of Western Australia, the Hon Wayne Martin AC QC has taken up chambers at Francis Burt Chambers, accepting appointments as arbitrator and mediator.

While Mr Martin will not be providing legal advice or representation, he said: “I am very pleased to return to the chambers which were my professional home for 17 years, and to again enjoy the collegiality of chambers with some former and many new colleagues. I hope to provide guidance and encouragement to younger barristers, and in that way give something back to the profession which has given so much to me.�

Mr Martin commenced practice as a barrister in 1989 at Bar Chambers (as Francis Burt was then known) in the now demolished Law Chambers building in Hay Street. He practised in that capacity until 2006, when he was appointed the 13th Chief Justice of Western Australia. He was President of the WA Bar Association from 1996 to 1999.

The chair of Francis Burt Chambers, Darren Jackson SC, said: "We are delighted to welcome Mr Martin back to Francis Burt Chambers, where he practised for many years. We have no doubt he will resume his role as a great contributor to the life of chambers, and look forward to the guidance and mentorship he will give to our members."

Classifieds BRIEF

Missing Will

Missing Will

Could any person or firm holding a Will made by the late JOHN ARTHUR McDAVITT late of Regents Garden Four Season Booragoon, 495 Marmion Street, Booragoon formerly of 68 McCallum Crescent, Ardross or having the knowledge of the whereabouts of such a Will please contact Harry Formby of Formbys on 9354 0300 or email admin@formbyslawyers.com

Anyone having knowledge of or knowing the whereabouts of the last Will and Testament of the late STEPHEN ALBERT RUSSO (AKA STEFANO UMBERTO RUSSO) is requested to contact Janette Tavelli of Integra Legal on 9218 8588 or by email jtavelli@integralegal.com.au or PO Box Z5615, St Georges Terrace, PERTH, WA 6831

Missing Will

Missing Will

Missing Will

Any person holding or knowing the whereabouts of the last Will and Testament of the late GREGORY DAVID ELSEGOOD (dcd) late of 20/5 Carlisle Street, Shoalwater, is requested to contact Jan Motherwell of Contested Wills & Probate Lawyers on janm@willsinfo.com

MICHAEL YOVICH (also known as MILENKO JOVIC) late of 91 West Street, Northampton, Western Australia died on 7 October 2017 at Northampton, Western Australia.

Would any person holding the last Will and Testament of MICHAEL YOVICH (also known as MILENKO JOVIC) or knowing the whereabouts of such last Will and Testament, please contact the Public Trustee at 553 Hay Street, PERTH WA 6000 on (08) 9222 6733 within one (1) month of the date of publication of this advertisement, quoting reference DE19860701 EM32.

Any person having any information, holding or knowing the whereabouts of the last Will and Testament prepared around 2010 of the late ALICIA (LEE) COLUMBINE PHILLIPS (Date of Birth: January 1939) is requested to contact Owen Phillips on 0422 229 444 or email Owen.Phillips@health.wa.gov.au

For advertising opportunities in Brief please contact: Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

51

Events Calendar

With thanks to our CPD partner

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

SEPTEMBER 2018 Membership Events Monday, 10 September; Tuesday, 18 September; Tuesday, 25 September Pilates Classes

Monday, 11 September The Rise of the Sleeping Giant – Community consultation in the Land Development Industry

Tuesday, 11 September YLC Later Lawyers Discussion and Networking Event

Thursday, 13 September Effective techniques for drafting affidavits

CPD Seminars

Thursday, 13 September Mental Health Hypothetical

Wednesday, 5 September Criminal Property Confiscation Thursday, 6 September Disclosure Obligations and Consequences of Non-Disclosure in Family Court Proceedings Monday, 10 September Elder Law and Succession: conflicts of interest and testamentary capacity

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

OCTOBER 2018 Membership Events Dates TBC Society Sundowner Sole Practitioner and Small Firm Forum Tuesday, 2 October and Tuesday, 9 October Pilates Classes Thursday, 18 October YLC Inter Profession Networking Event CPD Seminars Wednesday, 3 October Secure Data Erasure and Wireless Security WEBINAR Wednesday, 3 October Respectfully Disagreeing with the ATO in Relation to Tax Disputes

Thursday, 11 October Contract Law Masterclass Friday, 12 October Ethics on Friday: Ethical issues in representing alleged perpetrators of family and domestic violence Monday, 15 October Setting Aside Domestic and International Commercial Arbitration Awards Friday, 16 October What is Unique about the Government Contract?

Wednesday, 17 October Recent developments in legislative drafting Thursday, 18 October Property Law Update

Tuesday, 9 October Reaching inwards & outwards: Connecting your way to wellbeing

Monday, 22 October Avoiding Common Pitfalls in Will Drafting WEBINAR

Wednesday, 10 October Fostering healthy relationships with the bench

Wednesday, 24 October Legal Costs Thursday, 25 October Non-linear Legal Careers

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

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

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

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