Brief December 2019 by The Law Society of Western Australia

VOLUME 46 | NUMBER 11 | DECEMBER 2019

Year in Review Annual Report 2018/19 Annual General Meeting The Year in Numbers

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Volume 46 | Number 11 | December 2019

CONTENTS

ARTICLES 06

Modern Ethical Dilemmas: Upholding Client Confidentiality as the Cornerstone of the Legal Profession Pointing the Finger – Making Allegations of Wrongdoing by Another Practitioner to the Legal Profession Complaints Committee Israel Folau The Last Line of Defence: Part II The Contract Claims

Society Sundowner

2018/19 Annual Report: President's Report

Selected 2019 Submissions

Law Society Annual General Meeting

A Matter of Trust: Re Application of Country Road Services Pty Ltd (Re Browne Family Trust) [2019] NSWSC 779

Mock Trial Competition Grand Final

Mandatory Cancellation of Visas Pursuant to Section 501 of the Migration Act 1958 (Cth)

YLC Mixed Netball Competition

Open House Perth

Chief Executive Officer's Report

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. Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Senior Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Charles McDonald RRP $16.00 incl GST. Printed by Vanguard Press

Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dr Rebecca Collins, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, 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

President: Greg McIntyre SC Senior Vice President: Nicholas van Hattem

REGULARS

Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Hayley Cormann

02 President's Report

45 Cartoon

04 Editor's Opinion

46 Law Council Update

36 Federal Court Judgments

47 Professional Announcements

38 High Court Judgments

48 Classifieds

40 Family Law Case Notes

48 New Members

43 Quirky Cases

49 Events Calendar

Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Matthew Howard SC, Gary Mack, Denis McLeod, Jodie Moffat, Shayla Strapps, Paula Wilkinson, Joel Yeldon Junior Members: Jack Carroll, Brooke Sojan, Demi Swain Chief Executive Officer: David Price

44 Drover's Dog 01

PRESIDENT'S REPORT Greg McIntyre SC President, The Law Society of Western Australia

Welcome to the December edition of Brief, the final edition for 2019 and my last Report to you as President.

Year in Review Included in this final edition of Brief for the year are excerpts from the 2018/19 Annual Report, including my comments and a Report from the Law Society’s CEO, David Price. You will also find some interesting statistics from the Law Society’s activities, represented in graphical form in ‘The Year in Numbers’. Selected Law Society submissions for the year are also published and demonstrate the Society’s role as the voice of the legal profession. To view the full Annual Report, please visit lawsocietywa.asn.au/annual-reports.

Annual General Meeting In this Brief you will also find a review of the Law Society’s Annual General Meeting (AGM), which was held on Thursday, 21 November. I was pleased to address members at the AGM and provide information on the Law Society’s activities during 2018/19. The AGM approved the Annual Report and Financial Statements and a membership part payment plan for eligible individual members, which will be available in 2020/21. In my remarks I relayed information regarding engagements with the President’s Twitter account during the year, which are indicative of the level of interest in the Law Society’s advocacy work in particular. Examples of topics which garnered significant engagement included family violence, mandatory sentencing, Indigenous constitutional recognition and the Uluru Statement, and raising the age of criminal responsibility. I take the opportunity to again congratulate John Ley SC, who was elected as the Law Society’s newest Life Member at the AGM. Thank you to Herbert Smith Freehills, which hosted the AGM at its premises.

Legal Profession Uniform Law Joshua Thomson SC, Solicitor-General of WA, has provided an update on two recent and significant developments in WA's progress in joining the Uniform Law. First, in late September 2019, the Victorian Parliament passed the Legal Profession Uniform Law Application Amendment Act 2019. Once proclaimed, this Act will ensure that, upon joining the Uniform Law, Western

02 | BRIEF DECEMBER 2019

Australia will have a representative on the Legal Services Council and the Admissions Committee. Second, the preparation of the Legal Profession Uniform Law Application Bill 2019 (WA) met a drafting milestone in early November, with the release of a consultation draft to various stakeholders, including the Legal Practice Board, Legal Profession Complaints Committee, Law Society and the WA Bar Association. That consultation process is running until early December and it is anticipated that the Application Bill will be introduced into Parliament in early 2020.

Voluntary Assisted Dying In November, the Law Society published its submission in response to the Voluntary Assisted Dying Bill 2019 (WA) (the VAD Bill). As the voice of the legal profession, the Law Society is best placed to review and consider law reforms when they are drafted as Bills. Given the complex nature of this Bill, a draft Consultation Bill would have been an appropriate process. The Law Society has identified eight areas in the submission that should be given further consideration by the Parliament during the debate of the VAD Bill. You can read the full submission at lawsocietywa. asn.au/submissions. The Shadow Attorney-General has advised that the Society's submission will be of assistance in addressing clauses presently being considered by the Legislative Council.

New Senior Counsel The Law Society congratulates the six practitioners appointed as Senior Counsel, as announced by the Hon Chief Justice Peter Quinlan in November. The appointments are Jason MacLaurin, Joseph Garas, Henry Jackson, Laura Christian, Julie Taylor and Justin Whalley. On behalf of the Law Society and the wider legal profession I congratulate each of the newly-appointed Senior Counsel.

Quality Practice Standard The Law Society’s Quality Practice Standard (QPS) recognises firms that have developed and adhere to documented internal processes, which are designed to improve client satisfaction and avoid wastage.

Quality Practice Standard law firms are audited each year to ensure they comply with standards that exceed the requirements set out by legislation. Firms complying with QPS can use the Approved Quality Practice logo on their letterheads and promotional material. Congratulations to the following firms, which were recognised as Approved Quality Practices this year: •

Colt Legal Pty Ltd (previously HKT Legal Pty Ltd);

•

The Australasian Lawyers Group Pty Ltd (trading as Butlers Lawyers & Notaries);

•

ETDK Pty Ltd (trading as DCH Legal Group); and

•

Maximillian Pty Ltd (trading as Bailiwick Legal).

To find out more about QPS, please visit lawsocietywa.asn.au/accreditation/qualitypractice-standard-qps.

Law Council President’s Award The Law Society congratulates Haley Allan, who received the Law Council of Australia President's Award at the Law Council's Gala Dinner on Thursday, 28 November. Ms Allan was recognised for her compassion and dedication to help others through her career and volunteer work. She was the recipient of the Law Society's Lawyer of the Year Award in 2018. Congratulations also to human rights advocate Bill Mitchell from Queensland, who was the joint Award winner.

Thank You and Best Wishes It has been an honour to serve as Law Society President in 2019. I take the opportunity to thank the Law Society’s members, our Executive and Council, Committee members and the Law Society’s dedicated and professional staff for their support and commitment. I wish everyone a very enjoyable holiday season, and all the best for the New Year.

2020 Council The Law Society's Council for 2020 is listed below, following the election which closed on 13 November 2019. Thank you to members who voted and to everyone who nominated for a position on the Council. Council Executive Members

Nicholas van Hattem President

Jocelyne Boujos Senior Vice President

Rebecca Lee Junior Vice President & Treasurer

Greg McIntyre SC Immediate Past President

Barrister, Francis Burt Chambers Council Term Expires: 12/2020

Partner, Sceales Lawyers Council Term Expires: 12/2020

Barrister, Francis Burt Chambers Council Term Expires: 12/2020

Barrister, John Toohey Chambers Council Term Expires: 12/2020

Council Ordinary, Junior and Country Members

Rebecca Bunney Ordinary Member

Daniel Coster Ordinary Member

Nathan Ebbs Ordinary Member

Ante Golem Ordinary Member

Head of Practice – Family Law, Cullen Macleod Lawyers Council Term Expires: 12/2021

Senior Associate, Moray & Agnew Council Term Expires: 12/2021

Managing Principal, Bennett + Co Council Term Expires: 12/2020

Partner, Herbert Smith Freehills Council Term Expires: 12/2020

Mark Hemery Ordinary Member

Jamie Hodgkinson Ordinary Member

Matthew Howard SC Ordinary Member

Craig Slater Ordinary Member

Partner, Hotchkin Hanly Lawyers Council Term Expires: 12/2021

Partner, Haynes Robinson Council Term Expires: 12/2021

Barrister, Francis Burt Chambers Council Term Expires: 12/2020

Barrister, Francis Burt Chambers Council Term Expires: 12/2021

Brooke Sojan Ordinary Member

Shayla Strapps Ordinary Member

Paula Wilkinson Ordinary Member

Thomas Camp Junior Member

State Prosecutor, Office of the Director of Public Prosecutions WA Council Term Expires: 12/2021

Chief Executive Officer, Mental Health Law Centre Council Term Expires: 12/2020

Director, Kim Wilson & Co Council Term Expires: 12/2020

Solicitor, Inquiry into the City of Perth Council Term Expires: 12/2020

Lea Hiltenkamp Junior Member

Gemma Swan Junior Member

Melita Medcalf Country Member

Lawyer, Glen McLeod Legal Council Term Expires: 12/2020

Associate, Butlers Lawyers & Notaries Council Term Expires: 12/2020

Solicitor in Charge, Legal Aid WA, Pilbara Regional Office Council Term Expires: 12/2021

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

2019 has been a big year for the law, the profession, the Law Society and Brief. Greg McIntyre SC’s last report as Society President, and other items, note congratulations to those appointed to positions with the Society and other professional organisations, and thanks and appreciation to outgoing officeholders. Brief extends special thanks to outgoing Society President Greg McIntyre SC for his fine stewardship, and congratulates next year’s President Nicholas van Hattem. Brief thanks all our readers, especially those who have provided feedback, and all our contributors, especially regular contributors. This edition features, in addition to our regular segments, items recapping the Society’s year, Martin Cuerden SC on Making Allegations of Wrongdoing to the LPCC, part two of Chris Edmonds SC on the Israel Folau case, Jonathan Haeusler and Michelle Hankey’s A Matter of Trust piece, Tim Houweling on Client Confidentiality and Sophie Manera on Mandatory Cancellation of Visas. Many thanks also to the Law Society staff responsible for producing Brief being Madeleine McErlain, Manager Marketing & Communications, Andrew MacNiven, Senior Communications and Media Officer and Charles McDonald, Communications and Design Officer for their fantastic and tireless efforts. Brief is taking a break until February next year and wishes all readers a happy and restful break over the holiday period, as is the WA tradition, to recharge for 2020. Historically, the WA Tired Feeling (WATF) mentioned in last month’s editorial was thought to reach its height in this period and was raised in the 15 February 1901 edition of the Boulder Evening Star which recorded that the “good people of York are remarkable for exhibiting the peculiarly ‘tired feeling’ so characteristic of Western Australians” in that while the Commonwealth was proclaimed on 1 January, they could not find enough “go” to celebrate it until six weeks later. Arguably, York was well ahead of the curve in deciding a better time to celebrate a national day is one that gives a little more time to get one’s act together after New Years. Regardless of whether WATF still applies, working on Christmas is always a threat – and one to be avoided. Cromwell’s Parliament sat on Christmas Day 1656, the Long Parliament of 1640 to 16531 having prohibited the celebration of Christmas2

04 | BRIEF DECEMBER 2019

(embraced with the same enthusiasm as the USA embraced prohibition 100 years ago). The Christmas Parliament dealt with such bodice-rippers as bills concerning a sheriff’s courts in Wiltshire, before having to address the poor attendance of members, and the ban on Christmas celebrations. Records show one member was given leave to visit his “sick child”. The records did not catch Cromwell’s likely snide remark “Oh yea, so verily so – and I just remembered that I didn’t extinguish my open hearth at home”. One notable “trial” on Christmas Day was of Romanian President Nicolae Ceaușescu and his wife Elena 30 years ago in the wake of the fall of the Berlin Wall. The fleeing Ceaușescus had only been captured on 22 December and the trial, the verdict and the execution were all wrapped up on Christmas Day3. Scepticism was expressed about the trial’s fairness, especially when, while the trial lasted nine hours, a heavily edited videotape of about 50 minutes only was released4. Concerns were not allayed when a 90 minute version only, which nowadays would be called the “Extended Executioner’s Cut”, was released. Of course there was a real possibility that the first seven and a half hours of the nine hour trial were taken up by the traditional “minor housekeeping matters which should not take up too much of your Honour’s time.” Rumours circulated that the death sentence had already been declared on Christmas Eve, leading to the disturbing prospect the trial was conducted according to Chapter XII of Lewis Carroll’s Alice in Wonderland (1865)5. It was also rumoured the Ceaușescus had died on Christmas Eve, their corpses propped up for shooting the next day, leading to the truly terrifying prospect the proceedings were conducted according to the hit comedy Weekend at Bernie's, released earlier that year. Controversy also arose when, only months later, the presiding Judge General Gica Papa committed “suicide” attributed to “mental unbalance” – that explanation being the third most common for suspicious deaths in the former Eastern Bloc behind “accidental umbrella poisoning” and “dissidentitis”. Another prominent event held on Christmas was Rocky Balboa’s defeat of Russian Ivan Drago in Moscow in Rocky IV6, after which Rocky delivered such a stirring unifying speech that, according to what millennials

believe, it led directly to the fall of the Berlin Wall.7 The fall of the Berlin Wall is attended with fascinating curiosities – including its start with a mishandled public announcement by an East German official, who intended to proclaim a disingenuously cosmetic proposed measure for relaxing travel to the West, but was taken to be a total freeing up of travel restrictions – resulting in the wave of humanity who flooded the Wall, believing it was being done away with8. The seriously botched press announcement was such a disaster that, apparently, the only job the official he could get afterwards was as Prince Andrew’s press secretary. Another little heard of, but seminal actor in the drama, was head Stasi officer on the Wall Harald Jäger who, through a combination of being insulted and abused on the night by his commanders, and believing he had incurable cancer and was to die anyway9, decided to allow people through rather than shooting them. As it turned out, Jäger did not have cancer, and because the regime collapsed, he was not subject to disciplinary action, so he died neither of cancer or “mental unrest” and subsequently led a quiet life in Poland. Brief wishes all a fantastic festive season, free from the stresses of the Cromwells, Ceaușescus, Balboas and Dragos, or Jägers. NOTES: 1.

Possibly presided over by the forebears of recently retired UK Speaker John Bercow and fraught by issues arising from “Popexit.”

“Christmas-Day in the Commons, 1656”, Dr S Roberts, www. thehistoryofparliament.wordpress.com.

Matei Calinescu; Vladimir Tismaneanu, The 1989 Revolution and Romania's Future, 40 Probs. Communism 42 (1991).

There is little information on whether authorities were exclaiming “Forget that – read the transcript!”

‘No, no!’ said the Queen. ‘Sentence first — verdict afterwards.’

Interestingly, a USA v Russian boxing match was the theme of this year’s Creed II, where the Rocky-trained son of Apollo Creed (Apollo of course killed by Ivan Drago in Rocky IV) takes on Ivan Drago’s son. Also interesting is the back story where it is revealed that a disgraced Ivan Drago had relocated to Ukraine to raise and train his son (and presumably only managed to survive upon a salary from being appointed to the board of the Ukranian oil and gas company Burisma).

Given Rocky/Stallone’s manner of speech, it’s possible the Russian patrons’ sympathies were drawn by them assuming it was an admirable good faith attempt to speak Russian in an “Ich bin ein Berliner” moment, even though he was attempting speaking English, or its derivative, Brooklynese.

The Surprising Human Factors Behind the Fall of the Berlin Wall, M E Sarotte, www.history.com.

And also possibly through being subjected to endless taunts by his men about being the “Jägermeister” and suggestions that he drop a few “Jägerbombs” on the protesters.

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

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Modern Ethical Dilemmas: Upholding Client Confidentiality as the Cornerstone of the Legal Profession By Tim Houweling, Director, Cornerstone Legal Adjunct Professor at Law in Ethics, Murdoch University This article is based on a paper presented at a Law Society CPD seminar. To explore our CPD programme, please visit lawsocietywa.asn.au/cpd-seminars.

"The degree of confidential character of the relation between the client and his solicitor… is in the eyes of law the very highest… (such that the Court)… can fix a standard for the behaviour of its own officers which is higher than it would be practicable to exact from persons in other types of confidential relations." – Rakusen v Ellis, Munday Clarke [1912] 1 CH831:840 per Fletcher Moulton LJ I INTRODUCTION

II THE CASE OF NICOLA GOBBO

Imagine having a client who shares information with you that could be used to stop a gangland war underway on the streets of Perth after 25 people have already been killed, what should you do with that information? Or imagine your client, charged with an offence, tells you that he was involved in murdering two girls on a separate occasion and there is a search underway for the missing girls. Your client describes the locations where the bodies are dumped enabling you to locate the remains of the girls. What do you do?

Nicola Gobbo was charged with drug offences in 1994. She was registered as a police informant. She graduated law school in April 1997 and began to work as a Barrister representing Tony Mokbel and other Melbourne gangland criminals. She was registered as Informant 3838 and disclosed confidential information in 386 cases, including against her own client Tony Mokbel.

These dilemmas have faced lawyers in the last 40 years. One lawyer in Melbourne known as Nicola Gobbo the other facing two lawyers in the US, Armani and Belge in the mid 1970s.

06 | BRIEF DECEMBER 2019

Nicola Gobbo (‘Lawyer X’) was exposed as police informant 3838 early in 2019. It was revealed that over the course of some 15 years she had provided police with confidential information obtained from clients throughout her legal career. While at first blush, it may be argued that Lawyer X could properly disclose information to police to prevent the commission of an offence, it is something

quite different to register as a police informant and deliberately disclose confidential client information to police. A lawyer’s duty of confidentiality fundamentally arises out of the fiduciary duty to act in the best interests of a client.1 Being paid by a client to act in their best interests, while disclosing confidential information gained in the course of that relationship, to the very organisation prosecuting, strikes at the core of the duty of confidentiality and lawyer-client relationship, and undermines the entire criminal justice system. The High Court, in rejecting the continuation of the suppression order concerning the identity of Lawyer X stated: “EF’s [Lawyer X’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the

sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person's conviction be re-examined in light of the information. The public interest in preserving EF's anonymity must be subordinated to the integrity of the criminal justice system.”2 The actions of Nicola Gobbo exposed in the Royal Commission into the Management of Police informants presents a clear breach of a lawyers ethical duties and has had widespread repercussions on the criminal justice system. In particular, as those persons convicted of crimes on the basis of information unfairly obtained, resulting in an unfair trial, will now require reexamination. The consequences of Nicola Gobbo’s conduct in disclosing confidential information as a police informant, is significant, as it now brings into question the validity of those convictions and is likely to cause unprecedented expense and difficulty to attempt to restore justice. Even more disturbing, is the likely long term effects that the broader profession will endure, in terms of undermining the public confidence forming the foundation of the lawyer-client relationship, and thereby undermining the ability of the lawyer to effect the administration of justice.

The High Court, when considering the question of public interest in light of the suppression order that hid the identity of Lawyer X, referred to the findings of the Court of Appeal of the Victorian Supreme Court that:

became the subject of investigation and the grand jury ultimately found that the attorneys had discharged their duties compliant with their professional obligations in retaining the information in confidence.5

“the very great importance of ensuring that the court’s processes are used fairly and of preserving public confidence in the court meant that the public interest in disclosure outweighed the public interest in immunity.”3

Because the lawyer Belge had inspected the bodies of the victims of Garrow he was charged under the Public Health Act that requires that anyone knowing of the death of a person without medical attendance, to report the same to the proper authorities.

III THE LAKE PLEASANT BURIED BODIES CASE Difficulties arising from the conflict of duties in respect of client confidentiality, contrasted with a lawyer’s own morality and deep consideration of ethics, are clearly illustrated in the widely known, Lake Pleasant case4. This case took place in the United States, and involved two criminal defence attorneys who, in the course of acting for their client, were informed by their client of a further two murders committed by the client, which did not form part of the case. Armani and Belge represented Robert Garrow charged with murder. Mr Garrow disclosed to the lawyers that he had committed two other unsolved murders. The parents of victims made public requests for information on the murders. The attorneys were given details of where the bodies were buried and were able to follow their client’s instructions to confirm the existence and location of the bodies. The attorneys, Belge and Armani, considered that they were bound to retain that information in confidence, and they did so. The accused, Mr Garrow, finally confessed to the murders under direct questioning during the course of the trial, after which time, it became known that the attorneys had been aware of this information all along.The two attorneys

His Honour Justice Gale dismissing the charge said: “It is the decision of this court that Francis R. Belge conducted himself as an officer of the court with all the zeal at his command to protect the constitutional rights of his client. Both on the ground of a privileged communication and in the interests of justice the indictment is dismissed.” Years later in an interview entitled “The Robert Garrow Case,”6 Armani said: “your mind is screaming one way ‘relieve these parents, what is your responsibility?’ should you report this, shouldn’t you report this?, one sense of morality wants you to relieve the grief, and the other is your sworn duty.” … “It’s a terrible thing to play God at that moment, but in my judgment, and I still feel that way, that their suffering is not worth jeopardizing my sworn duty or my oath of office, or the Constitution.” If the Lake Pleasant case was being heard in Australia in 2019, the result would likely be the same. History provides that the lawful breach of client confidentiality to prevent the commission of an offence is not easily met in any

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"In Ancient Rome, potentially as far back as 122 BC, the first privilege arose" event, but particularly given the facts of the Lake Pleasant case, as the offence of murder had already occurred and there was nothing that allowed the lawyers to disclose this information obtained in confidence.

a client is underpinned by the duty of confidentiality. It is the cornerstone of the legal profession, as it enables a lawyer to properly ensure the effective administration of justice in the carrying out of their duties.

IV LEGAL ETHICS

V THE DUTY OF CONFIDENTIALITY

Legal ethics can be difficult to explain to those who do not carry the fiduciary obligations of a lawyer, but at heart it is the preservation of the Court to effectively administer justice, and lawyers as officers of the court have a fundamental duty to the administration of justice.

In lecturing students in law and introducing them to the law of ethics, they are often required to challenge their fundamental concepts of ‘right’ and ‘wrong’. This often requires detailed discussion and analysis of a person’s own moral compass in the context of the rules which govern the modern task of lawyering. This dilemma is best encapsulated in the essay entitled “Can Lawyers be Trusted” where the learned author stated:

Confidential information given to a lawyer must remain confidential, to do otherwise is to undermine the integrity of the administration of justice. Protecting confidentiality insures full and frank disclosure of all the circumstances in which an event took place, and provides the foundation for the legal practitioner to be able to appropriately advise their client and properly represent matters in court consistent with the practitioners fundamental obligation. If confidentiality is not upheld, it undermines the lawyerclient relationship to the core, and may have an effect that clients would be less likely to inform their legal representatives of the true nature of their case and those client’s cases would be weighted to fail. Prominent author and professor, Gino Dal Pont in his article ‘To Keep a Confidence’ states that “confidentiality goes to the heart of the lawyer/client relationship”.8 The justification for maintaining lawyerclient confidence is now readily accepted by Courts as expressed by Dal Pont in his article: 1. it is to enable clients to freely communicate with their lawyers; and 2. to enable free communication with lawyers who are best positioned to provide necessary advice. The relationship between a lawyer and

08 | BRIEF DECEMBER 2019

“Many in the public see the two types of conflict as linked. They assume the lawyers who claim the right to violate common moral constraints in order to serve their clients are merely rationalizing what is in their own or legal professions collective self-interest. But lawyers often regard the two types of conflict as profoundly different. In law, they argue, as in medicine and other professions, the calling generates its own requirements but at times must override ordinary moral constraints. It is only by adhering scrupulously to these requirements that they truly deserve the trust of their clients and thereby serve long run societal interests.”9 To fully understand the interrelationship between the duty of confidence, and the administration of justice, which are both inextricably interweaved with a person’s moral compass, it is necessary to take a brief excursion through history to give some further context to the rule.

VI THE HISTORY OF THE DUTY In Ancient Rome, potentially as far back as 122 BC, the first privilege arose with publicans (advocates) books being sealed and these advocates were likely exempt from being required to give evidence against those, which they represented.10 Although there is no indisputable authority to confirm that the duty stems from ancient Rome, the ancient premise focused on advocates is very similar to what later became the duty of client confidentiality.11 This demonstrates that initially, the privilege rested with the oath and honour of the attorney.12 Importantly, the privilege was that of the attorney as a professional and not that of the client. It was the honour of the business of lawyering, which precluded the lawyer from needing to divulge secrets and privileged information, and was not, in the early time, seen as the opportunity to ensure that the lawyer was fully informed. Moving forward to the earliest reported case in English Common Law, which appears in the 16th Century, in the case of Lee v Markham.13 By 1577, there was no dispute regarding the availability of the duty of confidentiality, with the Court of Chancery determining that: “Thomas Hawtry, gentleman… is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same, and that he shall be in no danger of any contempt, touching the not executing [sic] of the said process.”14 In this way, the duty historically applied to ‘gentlemen’ in the course of their business as an advocate. Accordingly, it was readily accepted that ‘gentlemen’ were not required to divulge information as they were required to maintain the trust of their

associates. The courts therefore, were unsupportive of placing these gentleman in a position which could risk this trust. Blackstone’s Commentaries on the Laws of England provides: “no counsel, attorney, or other person, entrusted with the secrets of the cause by the party himself, shall be compelled, or perhaps allowed to give evidence of such conversation or matters of privacy, as came to his knowledge by virtue of such trust and confidence”.15 It is the recognition of the fundamental significance of ‘trust and confidence’, which provides the foundation of the lawyer-client relationship and marks the commencement of fiduciary obligations therein. In following the evolution of the concept since this time, one can see the reflection of societal values moving from the primary purpose of protection of the reputation of the moral upstanding ‘gentleman’, to a broader concept which places obligations on the solicitor and moves the priority to the protection of the client. By 1820, it was held that the duty of confidentiality was to be extended to apply to information given to a solicitor in his professional capacity, even if that solicitor was not employed by the ‘client’.16 This is reflective of the role of the solicitor, as a member of a profession, endowed with the specialist skill and entrusted with special standing and legal protections, it is necessary that he be subject to obligations arising in his capacity as a fiduciary. The client, vulnerable to the solicitor through the disclosure of confidential information, thereby requires protection from this vulnerability, by way of the solicitor’s obligation, not to exploit this vulnerability. Shortly after, in 1824, this was recognised by the Jurist John Beames, who stated “the privilege of a counsel, attorney, or arbitrator, to refuse discovery [of confidential information], is [no longer] his privilege, but that of his client”.17 The purpose of the duty of confidentiality evolved from that which associated primarily with the protection of honourable and loyal legal professionals, to a protection afforded to the client, was then evidenced in the justification as being to promote the legal system and the administration of justice.18 By 1901, the obligation on the legal practitioner was again broadened, as lawyer – client confidentiality was confirmed to be of such stature that it was held to continue even after the death of a client.19

Since then, common law principles have been reduced to clear and concise writing in the form of the various legal profession acts, rules, regulations and guidelines. These ‘codes of conduct’ have provided a guideline to how lawyers are to conduct themselves. While the ethical duties of lawyers may, at times, be difficult to describe to persons who are not lawyers, they are nevertheless founded on a long line of cases and provide the foundation for the system of justice that we have come to enjoy.

VII CONFIDENTIALITY IN THE CONTEXT OF PROFESSIONAL RESPONSIBILITY When a person becomes a lawyer, an oath or affirmation is made to: “…truly and honestly conduct myself in my practice as a lawyer and an officer of this honourable court according to the best of my knowledge and ability.” Furthermore, Rule 9 of the Legal Profession Conduct Rules20 makes clear that: “a practitioner must not disclose client information to a person other than the client unless the person is – (a) an associate of the practitioner’s law practice; (b) a person engaged by the practitioner’s law practice for the purpose of providing legal services to the client; or (c) a person employed or otherwise engaged by an associated entity of the practitioner’s law practice for the purposes of providing administrative services to the client.” Confidential information takes a broad meaning within the Legal Practice Conduct Rules and includes “information confidential to a client of which a practitioner becomes aware in the course of providing legal services to the client”. It stands to reason then, that the duty of confidentiality arises out of the fiduciary nature of the lawyer-client relationship. The client, in engaging the assistance of a legal practitioner, necessarily requires guidance through the legal system. Such guidance, can only be properly administered by way of full and frank disclosure of all of the circumstances relevant to the issue(s) at hand. The trust and confidence between lawyer and client is of such significance, in that it affords protection to the lawyer, in the form of immunity where such full and frank disclosure is not made by the client. Similarly, in circumstances where full and frank disclosure is provided to the

solicitor, it is of fundamental importance that confidence is maintained. It is in this way, that the integrity of the justice system is properly able to be given effect. Lord Westbury, commenting in respect of the solicitor-client relationship notes, “…there is no relation known to society, of the duties of which it is more encumbent upon a court of justice strictly to require a faithful and honourable observance, than the relation between a solicitor and client.”21 Solicitors, by reason of their education and standing in society, as members of a profession, are bound to observe strict professional and moral requirements. Failure to adhere to these requirements, will result in discipline or ejection from the profession. The profession then, self-regulating in this way, is only able to uphold the administration of justice, through the delicate balancing of professional obligations in the face of the true version of events. This can only be done, where clients have confidence in their solicitors to disclose all of the circumstances relating to the matter at hand. In the matter of Incorporated Law Institute of New South Wales v R D Meagher, Isaacs J commented on the conflict between the many duties owed by solicitors that: “There is therefore a serious responsibility on the court – a duty to itself, to the rest of the profession, to its suitors, and to the whole community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential.”22 Professional responsibility then, necessarily involves recognising how to balance the various duties owed by lawyers: 1. To the administration of justice; 2. To the court; 3. To the client; 4. To the public; and 5. To the profession. The legal profession enjoys special privileges, and similarly, requires a standard of practice which incorporates the highest ethical morals. It differs to those generally encapsulated by the broader community, and requires an in-depth analysis and consideration of ethical dilemmas by practitioners. This is because a breach of law by practitioners 09

not only involves legal sanctions, but lawyers are subjected to additional professional sanctions which could ultimately affect their ability to continue to practice law. This is necessary to uphold and maintain public confidence in the profession. Secondly, the fact that lawyers enjoy the privilege of being excused from complying with certain aspects of the law for the purposes of protecting their clients, such as in circumstances of legal professional privilege, requires that such privileges are not to be abused, and demonstrates the significance of the protection of the duty of confidentiality. Lord Reid discusses the interrelationship of the duties upon solicitors that: Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes, or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or standards of his profession require him to produce.23 Relevantly, Lord Reid discusses the administration of justice in the context of the other duties owed by solicitors, including duty to the standards of the profession and to the public. It is of fundamental importance that, whilst there is a recognition of the overriding duty to the court, it is not to blindly take precedence over other duties, but rather, consideration must be had in respect of the delicate act of balancing all duties such that the standards of the profession are able to be upheld. Whilst the duty of confidentiality prevents a legal practitioner from disclosing information obtained through the representation of their client, of course, there necessarily will be circumstances upon which disclosure of confidential information is required. This duty of confidentiality including exceptions is stated in the Legal Profession Conduct Rules 2010 (WA) (‘LPCR’). These have also been adequately explored in case 10 | BRIEF DECEMBER 2019

law, and are clearly set out to include circumstances which may give rise to ‘the probable commission of a serious offence’24, or circumstances in which a person’s health or wellbeing is in imminent danger of serious harm.

VIII SOME CASES IN PERTH The duty is held to a high professional standard, being subject only to the paramount duty to the administration of justice.25 This is demonstrated in the case of LPCC v Johnson.26 In this case, the independent children’s lawyer representing young children in a family law dispute, disclosed confidential information to the children’s school, when a father attended the school to drop off a child’s bicycle. The confidential information related to the mental illness including schizophrenia and sex offences of the father. The court deemed that Johnson had learned the confidential information in the context of her acting as a lawyer and, in the circumstances, there was no justification in disclosing the information. The Tribunal ruled that it did not fall within the exception and held that Johnson was guilty of unsatisfactory professional conduct. Similarly, in 2009 it was held that, Mr Trowell,27 being part of the Australian legal team acting for Schapelle Corby, disclosed confidential information to the media in 2005, that Corby’s Balinese legal team had asked the Australian government for money to bribe the judiciary in Indonesia. Mr Trowell, in his defence, raised that disclosure was required to prevent the possible commission of crime. The Tribunal held that the circumstances were not serious enough to be considered sufficient to warrant the disclosure of confidential information. From the above examples, it is clear that in assessing the disclosure of confidential information, regard must be made to the nature and scope of the disclosure, weighted by the seriousness of the probable commission of the offence. It is only in the most serious of circumstances, will the duty of confidentiality not be upheld. There are other examples of precedent sharing, or assistance being given across law firms. In a recent case in Perth a Lawyer writes to her Police Officer boyfriend: “Baby is it possible for you to grab me a police report form… a criminal damage burg. can I call I’ll explain.” The Police Officer accesses the Police computer and provides the information. On a separate occasion the Lawyer wrote

an email to the Police Officer and said “OK want to take my statements now”. The Police Officer replies, “Yes definitely babe, I’ll do it Do you want to dictate over the phone or just email me the guts and I’ll formulate it”. The Lawyer sends information to the Police Officer boyfriend and the Police Officer then sends statements to the Lawyers home email account saying: “Hey princess here are the statements. Good luck with the trial today I know you will smash it. Just try and let the prosecutor leave court with a pinch of dignity (but not too much). He needs to know that today you owned him in that court.” The obviousness of the breach is selfevident. Some lawyers consider it acceptable to take with them or use precedents from other law firms, leaving to one side the duties to an employer and stealing intellectual property, the sharing of precedents often includes a clear breach of confidentiality.

IX BALANCING ETHICAL DILEMMAS INVOLVING CONFIDENTIALITY At heart is the question of the application of ethics. As a profession, lawyers are bound together, and are required to accept the ethical code that binds it, having its foundation in the overarching duty to the Court and to the administration of justice. The duty of confidentiality is a basic, fundamental duty forming the cornerstone of our justice system. Where any practitioner considers a circumstance arising out of their professional capacity occurs, requiring the disclosure of confidential information, it needs to be approached with extreme caution, having regard to the wider repercussions for the profession. Nicola Gobbo claimed, that she was “motivated by altruism, rather than for any personal gain”.28 This suggestion seems shallow, in the face of the longevity of offending, coupled with her receiving payment for information provided. True altruism necessarily entails a concern for others over and above concern for oneself, which appears to be absent in the circumstances. Nicola Gobbo, having held a special position as a member of a profession, with access to confidential information which would not otherwise be publicly available, abused her position by failing to carry out those ethical responsibilities as required. Information was entrusted to her in favour of her own special sense

of ethical responsibility, whatever that may have been motivated by. She asks us to ignore the fact that she was paid by police for information and have an understanding that she was motivated by a higher sense of morality, one that was higher then the need to ensure Justice itself. Nicola Gobbo states: “what led me to do that was my own frustration with the way in which certain criminals — Carl Williams — were seeking to control what suspects and witnesses could and could not do or say to police via solicitors, who were not in my view, acting in the best interests of their clients because of the undue influence and control of ‘heavies’ such as Williams… I provided (police) with information that was of value to investigators in the months prior to late July 2004 and again afterwards.” It is clear, when contrasting the justification provided by Armani in the Lake Pleasant Buried Bodies Case, with that of Lawyer X, that one solicitor understands his duties in the broader context of the requirements of the profession, while the latter undermines the proper administration of justice. The duty of confidentiality provides the necessary confidence that people need to have in the legal profession, which in turn allows the effective administration of justice. Where that lawyer-client relationship is undermined through the disclosure of confidential information, it undermines the foundation of the legal profession as a whole, by attacking the very fabric which binds it together. Consider for a moment, the possibility of a society in which people did not trust their lawyers, who are bound by the rules of profession, including the duty to the court, to the administration of justice and

the duty not to mislead the court. Would there be any justice at all?

X CONCLUSION The ethical standards by which a legal practitioner must comply are distinguishable from ethical duties in other professions, and from the broader community. For example, a doctor or an accountant are professional positions where confidentiality is to be maintained. Legal practitioners, as officers of the court, have an overarching duty to the Court and to the administration of justice. Legal practitioners must be fit and proper persons who are able to effectively balance competing ethical obligations, in the effective pursuit of the administration of justice. It is not only possible, but required, that lawyers are able to competently and concurrently represent their client in the proper pursuit of the administration of justice as officers of the Court. This can, and should be done, whilst maintaining and protecting the confidentiality and interests of their clients. A legal practitioner necessarily requires full knowledge of the true nature of a case but needs to ensure that the case is presented to the court in an honourable and ethical manner.

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.

58, at 5. People v Belge (1975) 372 NYS 2d 798. People v Belge (1975) 372 NYS 2d 798 (‘Lake Pleasant Case’) US decision. The Robert Garrow Case: https://www.youtube.com/ watch?v=kYN9gTZJB-I. Greenough v Gaskell [1833] 1 Myl & K 98, 103. Dal Pont “To Keep a Confidence, Maintaining Lawyer/ Client Confidentiality can Present General Ethical Challenges” (May 2014) Brief 8. Sissela Bok “Can Lawyers Be Trusted?”University of Pennsylvania Law Review. Vol. 138, No. 3 (Jan., 1990), pp. 913-933 page 914. A H J Greenidge, The Legal Procedure of Cicero’s Time (Clarendon Press, 1901) 484. Richard Steinhaus, Warren Ludlam and Louis Lee Abbott, ‘Report on Attorney-Client Privilege Study’ (1965) 18(3) Bulletin of the Section of Taxation, American Bar Association 83, 84. J Wigmore evidence 2290, at 542 (Rev. Ed J McNaughton 1961). [1568] Toth 48, [1568] 21 ER 120. Berd v Lovelace [1577] 21 ER 33. Sir William Blackstone, Commentaries on the Laws of England III (Clarendon Press, Oxford, 1765-1769) 370. Cromack v Heathcote [1820] 129 ER 857. John Beames, The Elements of Pleas in Equity, with Precedents of Such Pleas (Gale, Making of Modern Law, 1824) 280. Greenough v Gaskell [1833] 1 Myl & K 98, 103. Bullivant v Attorney-General for the State of Victoria [1901] AC 196. Legal Profession Conduct Rules 2010 (WA). Tyrell v Bank of London (1862) 10 HLC 26 at 39-40, Lord Westbury. Incorporated Law Institute of NSW v RD Meagher (1909) 9 CLR 655 at 681. Rondell v Worsley [1969] 1 AC 191 at 227, Lord Reid. Rule 9(3) Legal Profession Conduct Rules 2010 (WA). LPCR r 5. [2013] WASAT 159 and LPCC v Trowell (2009) 62 SR (WA) 1. LPCC v Trowell (2009) 62 SR (WA) 1. Melbourne gangland lawyer explains why she became a police informant: https://www.abc.net.au/news/201812-04/informer-3838-criminal-lawyer-to-policeinformant-her-own-words/10579100.

It is fundamental that client’s have confidence in their legal representation to facilitate the administration of justice. In this way, confidentiality forms the cornerstone of the lawyer-client relationship. The undermining of the confidence required in the lawyerclient relationship threatens the very foundations of the legal profession. Endnotes 1. 2. 3.

LPCR rr 6(1)(a), 7(d). AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58, at 10. AB (a pseudonym) v CD (a pseudonym) [2018] HCA

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Pointing the Finger – Making Allegations of Wrongdoing by Another Practitioner to the Legal Profession Complaints Committee By Martin Cuerden SC, Barrister, Francis Burt Chambers This article is based on a paper presented at a Law Society CPD seminar. To explore our CPD programme, please visit lawsocietywa.asn.au/cpd-seminars.

A complaint about a legal practitioner under Part 13 of the Legal Profession Act 2008 (WA) may be made by any of the persons specified in s410(1) of the Act.1 They include any legal practitioner.2 Unlike a member of the public, a legal practitioner does not need to have some direct personal interest in the matters alleged in the complaint.3 Accordingly, the Act contemplates that a legal practitioner may make a complaint about a matter of which he or she has no direct or personal involvement. In what circumstances should a practitioner make, or refrain from making, a complaint about another practitioner? Both the Act and the Legal Profession Conduct Rules 2010 (WA) are largely silent as to the answers to these questions. There is an express obligation on 12 | BRIEF DECEMBER 2019

practitioners under s227 of the Act to report irregularities with respect to trust accounts.4 Further, a legal practitioner director of an incorporated legal practice must ensure that all reasonable action available to him or her is taken to deal with any unsatisfactory professional conduct or professional misconduct of a practitioner employed by the practice.5 Presumably ‘reasonable action’ would include reporting such conduct to the Committee. For completeness, it may also be observed that a practitioner has obligations with respect to reporting a breach of Part 3 of the Act (which prohibits persons other than practitioners

from engaging in legal work),6 although by definition this is outside the scope of this paper. Outside these specific instances, however, the Act and the Conduct Rules are silent on the subject. There is also surprisingly little authority on the subject. Turning first to the question of when a practitioner is under an obligation to make a complaint about another practitioner’s conduct, it might well be argued that in the absence of specific reference to such an obligation in the relevant conduct rules, a practitioner is not always under a professional obligation to report a breach of professional standards to the relevant authority – in this State, the Committee.7 Conduct rules in various common law jurisdictions outside Australia impose such an obligation (variously expressed),

but none of the Australian jurisdictions do so. However, in Legal Practitioners Complaints Committee v Fleming (2006) 48 SR (WA) 29; [2006] WASAT 352, the State Administrative Tribunal recognised the existence of a professional obligation to refer another practitioner’s breach of professional standards to the Committee. The Tribunal said (at [78]): “It is no light matter to raise a complaint against a fellow practitioner. … However, it is essential to the maintenance of professional standards and the confidence of the public in the (largely) self-regulated legal profession, that where professional standards are not met, and the matter cannot be resolved, the issue be referred to the appropriate authority. Practitioners have a professional obligation to do so.” The Tribunal did not need to make a decision as to the existence of the obligation, still less its scope and content, as in that case the practitioner did in fact make a complaint about another practitioner’s conduct. The Tribunal commended him for having done so. Practitioners would be well advised to proceed on the basis that there is such a professional obligation as recognised by the Tribunal in Fleming. But this raises further questions as to its scope and content. What level of satisfaction or belief must the practitioner have that a breach of professional standards has occurred before he or she is required to refer another practitioner’s conduct to the Committee? How serious must the conduct be?8 And what is meant by the reference in Fleming to “where … the matter cannot be resolved”? It also raises issues as to the circumstances in which a practitioner might be under a professional obligation to make a complaint about another practitioner within the same legal practice.9 This may include particularly difficult issues concerning complaints by junior members of a legal practice against a more senior practitioner within the practice, and the related issue of whistle-blower protection.10 These issues are beyond the scope of this paper. The answers to the questions above are not necessarily straightforward. Where the issue has been dealt with by relevant conduct rules, the relevant level of satisfaction or belief that a practitioner

must have that a breach of professional standards has or may have occurred before coming under an obligation to report has been variously expressed in terms which range from ‘reasonable grounds to suspect’,11 to the existence of a ‘firm opinion that the conduct in question had more likely than not occurred’.12 Further, relevant conduct rules (where they exist) sometimes (but not always) express the obligation in terms of misconduct which is serious or which goes to the practitioner’s honesty or fitness to practice. I would offer the following as tentative answers to these questions. First, I would suggest that where a practitioner has knowledge or a firm belief based on sufficient evidence that another practitioner has committed at least a serious breach of professional standards – in the sense of conduct which goes to another practitioner’s honesty or fitness to practice – he or she is under a professional obligation to report the matter to the Committee. In my view, this follows from the fact that a practitioner’s paramount duty is to the court and to the administration of justice,13 and the fact that the purposes of Part 13 of the Act include to provide for the discipline of the legal profession in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally,14 and to promote and enforce the professional standards, competence and honesty of the legal profession.15 As the Tribunal said in Fleming (at [72]): “A practitioner’s duties to his client, and his duties to the Court, do not exhaust his professional responsibilities. The duty to the Court may be seen as a duty to the community in the proper administration of justice. Moreover, as an officer of the Court concerned in the administration of justice, a practitioner owes duties also to the standards of his profession, to the public and to his fellow practitioners. The duties of fairness and honesty owed to the Court in relation to the conduct of litigation are also owed to fellow practitioners in other areas of practice. …” I would suggest, however, that mere suspicion is insufficient to give rise to an obligation to report. By ‘suspicion’, I mean a state of conjecture or surmise where proof is lacking, falling short of belief but more than mere idle wondering. It is a positive feeling

of actual apprehension or mistrust, amounting to a slight opinion but without sufficient evidence.16 In my view, the passage in Fleming is consistent with this view. The Tribunal made the point that it is ‘no light matter’ to raise a complaint against a fellow practitioner. Further, the language in the passage stated suggests that the Tribunal was referring to a situation in which there had in fact been a breach of professional standards, which implies that the practitioner knew or firmly believed – not merely suspected – there had been such a breach. Is the obligation limited to serious breaches of professional standards, or does it extend to any breach? In my view, the better view is that it extends to knowledge or a firm belief of any breach of professional standards (except perhaps breaches which are trivial). For one thing, the distinction between ‘serious’ and other breaches for this purpose may be unclear. The Act distinguishes between professional misconduct and unsatisfactory professional conduct,17 but the question of characterisation of particular conduct is a matter for the Tribunal based on the whole of the circumstances. Professional misconduct includes (but is not limited to) unsatisfactory professional conduct where the failure to reach or maintain appropriate standards is substantial or consistent. In Fleming itself, the conduct in question was the making of knowingly misleading representations to another practitioner (the complainant) in the course of professional communications, namely without prejudice negotiations. The Tribunal held that the practitioner was guilty of unprofessional conduct (the position being governed by the 1893 and 2003 Acts), and he was fined $7,500. Accordingly, it was not conduct which went to the practitioner’s fitness to practice (although the Tribunal did characterise it as dishonest).18 Further, this is implicitly supported by the Tribunal’s reference in Fleming to an obligation to make a complaint “where … the matter cannot be resolved”. If the obligation was limited to reporting serious breaches of professional standards, it is difficult to see how it could be ‘resolved’ without referral to the Committee. As to the suggestion that a breach of professional standards may be resolved without the need to make a complaint, it is perhaps difficult to understand precisely what the Tribunal meant. It 13

should certainly not be understood to mean that a practitioner is under some sort of obligation to investigate and seek to resolve an apparent breach of professional standards before making a complaint. In my view, this observation may be understood as applying in the context in which the apparent breach of professional standards is of a less serious nature and arises out of conduct of one practitioner towards another. For example, where a practitioner has failed to comply with an undertaking to a practitioner, it may be appropriate to give the practitioner an opportunity to comply, or to make good the failure, before making a complaint to the Committee.19 Another example might be where one practitioner has written discourteous correspondence to another; the recipient of the correspondence might well, upon receiving an apology, be justified in taking the matter no further. However, in Fleming itself, the conduct was the dishonest and intentional misleading of the complainant practitioner. It is not apparent from the Tribunal’s reasons that there was any 14 | BRIEF DECEMBER 2019

attempt to ‘resolve’ the matter before making a complaint, nor is it apparent how it could be resolved short of referral to the Committee. Professor Dal Pont suggests that it is often courteous, prior to contacting a professional or regulatory body or lodging a complaint, to correspond with the lawyer in question, detailing the concerns and inviting a response.20 However, in my view this will not always be appropriate. Amongst other things, a practitioner has no investigative powers and no right to interrogate another. The bodies with the relevant statutory powers to investigate and decide on the accuracy and sufficiency of a practitioner’s response are the Committee and the Tribunal, not the practitioner. The next question is: in what circumstances is it inappropriate for a practitioner to make a complaint about another practitioner? As said above, in Fleming the Tribunal made the point that it is ‘no light matter’ to raise a complaint against a fellow practitioner. Similarly, in Legal Profession Complaints Committee v in

de Braekt (2011) 75 SR (WA) 336; [2011] WASAT 1 at [107] the Tribunal said: “Legal practitioners should be slow to make allegations of impropriety against other legal practitioners or their client. Such allegations should not be made unless there is a reasonable basis upon which to make them.” This observation was made in the context of an allegation of impropriety in correspondence, but the same principle applies in the context of an allegation of wrongdoing to a disciplinary body such as the Committee. So much was held by the Full Court of the Northern Territory in McLaren v Legal Practitioners Disciplinary Tribunal (2010) 26 NTLR 45; [2010] NTSC 2, in which it was held that a practitioner was herself guilty of misconduct in making a complaint about another practitioner when she did not have evidentiary ie factual material capable of supporting the allegations. In that case, the Full Court referred to the fact that the complaint made serious allegations of wrongdoing against the fellow practitioner, although it is not apparent that the decision

itself turned on the serious nature of the particular allegations. In my view, a complaint of a breach of professional standards is of itself a serious allegation. Accordingly, to make a complaint against another practitioner without a reasonable basis, ie a sufficient evidentiary basis for doing so, is itself likely to be a breach of professional standards. The Full Court in McLaren said that the position is analogous to making a serious allegation in court documents. The Court approved as ‘uncontroversial and accurate’ the following statement of the tribunal in that case:21 “We find that the obligation carried by a legal practitioner is to take care when making serious allegations of impropriety against another on behalf of a client. The obligation arises not only when making allegations or preparing pleadings in a court proceeding but in other situations where the practitioner is protected by privilege and, indeed, in all circumstances, to maintain standards of decency and fairness. The appropriate standard of care is exercised by ensuring that there is evidence upon which allegations might be made and in the light of that evidence by seeking specific instructions in relation to the allegations.”22 A practitioner’s obligations in this respect are stated in rule 36(3) of the Conduct Rules, which provides that a practitioner must not draw or settle any court document that alleges criminality, fraud or other serious misconduct by a person unless the practitioner believes on reasonable grounds that, relevantly, factual material already available to the practitioner provides a proper basis for the allegation.23

To have sufficient evidence to make the allegation does not, of course, mean that the practitioner must be in a position to prove it. It is the Committee’s role to investigate and (if appropriate) to seek to prove the allegation. It goes without saying that a complaint to the Committee must be made bona fide, and not for the purpose of obtaining some sort of tactical advantage. As I have said above, in my view it will often be unnecessary – and in some cases positively inappropriate – to write to the other practitioner before referring the conduct to the Committee.

And fifthly, it must not be threatening or intimidating.26 A practitioner should not threaten to make a referral to the Committee. Endnotes 1 2 3 4

6 7

If a practitioner does see fit to first write to another practitioner before making a complaint to the Committee, I would offer the following suggestions.

8 9

First, a practitioner must not do so for the purpose of obtaining some sort of tactical advantage over one’s opponent. Such conduct is itself likely to amount to the use of unfair or dishonest means,24 and to otherwise amount to professional misconduct. Secondly, the correspondence should be sent to the practitioner concerned on a strictly private and confidential basis. It should not be sent to the legal practice generally. Thirdly, correspondence may properly be sent for the purpose of seeking clarification or explanation of some matter which the practitioner genuinely wishes to clarify before deciding whether to make a complaint to the Committee. A practitioner should not seek to interrogate or cross-examine another practitioner, demand explanations or otherwise assume the role of an investigative body. Correspondence should not be argumentative.

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Fourthly, it should be temperate, factual and courteous.25

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20 21 22

24 25 26

Part 13 is concerned with ‘Complaints and discipline’. Section 410(1)(d). Compare s410(1)(e). Although strictly the obligation is to report the irregularity to the Legal Practice Board, not the Committee. Legal Profession Act s106(3). There is a corresponding obligation upon a legal practitioner partner of a multidisciplinary partnership: s135(2). Conduct Rules rule 16(6). See, for example, Ross, Ethics in Law, Lawyers’ Responsibility and Accountability in Australia, 6th ed, 2014 at [7.77], [7.80]. See Dal Pont, Lawyers’ Professional Responsibility, 6th ed, 2017 at [24.25]. Obviously, there is no issue where the obligation to report falls on a legal practitioner director or legal practitioner partner of a multi-disciplinary partnership under s106(3) or 135(2) of the Act. See Dal Pont at [24.25] and Ross at [7.72]ff. Lawyers: Conduct and Client Care Rules 2008 (NZ) rule 2.8. Attorney U v Mississippi Bar (1996) 678 So 2d 963 at 972, cited in Dal Pont at [24.25]. See Conduct Rules rule 5. Section 401(a). Section 401(b). George v Rockett (1990) 170 CLR 104 at 115-116. Sections 402, 403. Pars [67], [87]. Conduct Rule 22(2) specifically contemplates that a practitioner may release a practitioner from his or her undertaking to the practitioner. Dal Pont par [21.195]. At [141]-[142]. The last part of the last sentence of that passage is explicable on the basis that, in that case, the practitioner purported to make the complaint on instructions from her client. The rule also provides that the practitioner must believe on reasonable grounds that the evidence by which the allegation is made will be admissible, but I would suggest this has no applicability in this context given, amongst other things, that the Tribunal is not bound by the rules of evidence. Conduct Rules rule 16(1). See rule 6(1)(b) of the Conduct Rules. See Ridehalgh v Horsefield [1994] Ch 205 at 237-238.

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Israel Folau: The Last Line of Defence PT II – Counteroffensive: The Contract Claims By Chris Edmonds SC

Did the circumstances of Rugby Australia/Rugby NSW’s termination of Mr Folau’s contract for breach of the Code, itself constitute a breach of their contract? In a recent article in Brief (‘Israel Folau: The Last Line of Defence’, July 2019 – here referred to as Part I), the background to the dispute between Mr Folau and Rugby Australia was outlined and the issues likely to arise in his claim for unlawful termination under the Fair Work Act 2009 (Cth) (Fair Work Act) examined. Mr Folau has since added claims for breaches of contract against both Rugby Australia and the Second Respondent, Waratahs Rugby Pty Ltd (Rugby NSW – together the Respondents). For their part, the Respondents have denied each claim and set out at length the events leading to the termination of Mr Folau’s contract, including the proceedings before, and the reasons of, the Code of Conduct tribunal (the tribunal). The matter is set down to be heard by the Federal Circuit Court of Australia (or, if the application of Rugby Australia is successful, the Federal Court) (the Court), in February 2020 (subject to a mediation in December 2019). The contest between the parties raises a number of complex jurisdictional and contractual issues, in addition to the scope of unlawful termination for ‘religion’.

The pleadings between Mr Folau and the Respondents have closed (subject to Mr Folau’s recent amendment to his statement of claim).1 The Respondents have each filed Defences and although there is a considerable overlap, some matters have been raised by one only of them.2 By reference to the traditional rules of pleading, the parties’ documents are rather informal. Each party includes background material and circumstances, (eg ‘by way of general answer’), evidence (including reference to affidavits), matters of argument, and points of law, (in several instances, supported by a case reference and in other instances claiming the opponent’s pleading is ‘liable to be struck out’). Such an approach is apparently now accepted on the basis that the Federal Circuit Court of Australia is not a court of strict pleading and that any difficulty thereby arising can be dealt with under case management principles.3

BACKGROUND

Rugby NSW was terminated following a hearing and determination by the tribunal. The charge against Mr Folau, in essence, was that in publishing messages on social media posts, including that homosexuals and others would go to hell unless they repented, he breached various provisions of the Rugby Australia Professional Player Code of Conduct (the Code).5 Mr Folau, in response to the tribunal decision upholding the charge and directing termination, elected to not appeal that decision as provided for in the Code, but to initiate proceedings against both Respondents under the Fair Work Act claiming that such termination was unlawful because based on reasons including his religion. In default of a settlement before the Fair Work Commission, he made a similar application under the Fair Work Act to the Federal Circuit Court of Australia and added claims for breach of contract.

The essential facts in the dispute are recited in Part I. In summary, Mr Folau’s contract or contracts (the player contract)4 with Rugby Australia and

The pleadings have revealed factual matters in addition to (and clarification of) those outlined in Part 1. Such matters, largely not in contention, or readily

16 | BRIEF DECEMBER 2019

proved, include the following.

The player contract Both the 2015 player contract, and the 2018 player contract, included that Mr Folau was bound by the Code.6 Substantive terms of the Code included (in summary) that he: (1) not engage in conduct, (2) use social media, or (3) make public comments, likely to (a) be detrimental to the best interests, image and welfare of the game or Rugby Australia or Rugby NSW, or (b) bring the game or Rugby Australia or Rugby NSW into disrepute, and (4) promote the reputation, and prevent disrepute, of the game7 and (5) not bully etc any person including by homophobic comments. Prohibited use of social media included content that vilified a person because of their sexual orientation. The Code set out a disciplinary regime (outlined in Part 1) in the event of an alleged breach including a hearing and determination of penalty by the tribunal.

Mr Folau’s religion Mr Folau is a devout Christian and a member of the Truth of Jesus Christ Church (TJCC).8 His beliefs included his spreading the ‘word of God’, including passages from the Bible and the doctrines of his Church.

Mr Folau’s social media posts In April 2018, Mr Folau posted on social media a message that ‘God’s plan’ for gays was ‘Hell’, unless they repented. In April 2019, Mr Folau posted two further messages (the posts). The first (set out in Part I) was a warning that drunks, homosexuals etc would go to hell unless they repented. The second was under a caption relating to gender being made optional on birth certificates and stated that 'the devil' blinded people who must repent their 'evil ways'. Mr Folau pleads that the content of the posts was consistent with the Bible, traditional Christian views and the preaching at the TJCC, that they were made in his own time and were substantially unrelated to rugby. These matters are not admitted and the last point is denied by the Respondents on the basis that Mr Folau’s social media ‘profile’ shows him in a Waratahs rugby jersey. Further, Rugby Australia pleads the imputations said to arise from the posts, including in particular that homosexuality is a matter of choice and comparable to that which renders a person a criminal (the reference in the posts to ‘thieves’) or causes great hurt (‘adulterers’, ‘liars’). Rugby Australia pleads a number of meetings and correspondence with Mr Folau following the 2018 post by which, in substance, whilst acknowledging his religious beliefs, he was told, and he acknowledged, that such post had caused sponsors' concern, was hurtful, offensive, disrespectful and in breach of the Code, and that future posts concerning his religious views must be respectful and the making of a similar post would have significant consequences for him. In late 2018, the parties entered into the 2018 player contract.

The tribunal hearing Mr Folau made concessions during the hearing by his counsel and in evidence including that: (1) the posts constituted a low level breach of the Code (as conduct detrimental to the best interests etc of the game), (2) the posts had the potential to cause offence to certain people including homosexuals and transgender

people, and damage to Rugby Australia and (3) following the 2018 post, he understood that it was made clear that such posts were unacceptable. Notwithstanding this, in the course of the hearing, he was not prepared to withdraw the posts and accepted it was possible he would make further posts whether or not Rugby Australia approved.

and terminating the player contract etc in reliance upon such a condition, constituted a breach of contract.

The findings by the tribunal (pleaded by Rugby Australia) included that: (1) the posts constituted a breach of substantive terms of the Code (ie the prohibitions in (1)-(4) above) and were of a high level, (2) it was clear to Mr Folau that a future post of a similar nature to the 2018 post would have similar damaging consequences, (3) Mr Folau’s failure to remove the posts or take action to moderate hurt caused represented a breach of trust, so that termination was justified, (4) the Respondents were not interfering with or sanctioning his religious beliefs and (5) there was no common law right to freedom of speech or of religion, and employment contracts were not interpreted subject to such, nor by reference to human rights.

Rugby NSW also disputes the posts were ‘lawful’ because, in publishing them, Mr Folau breached the Anti-Discrimination Act 1977 (NSW), prohibiting homosexual vilification; and as an employer it was, under that Act, bound to take reasonable steps to prevent this. (If this defence were to succeed it would seem likely to undermine the entire claim).

MR FOLAU’S CONTRACT CLAIMS AND THE DEFENCES By his amended statement of claim, Mr Folau has made a number of claims based upon breach of contract. Following these is the claim under the Fair Work Act for unlawful termination based upon Mr Folau’s religion. Rugby Australia’s defence to this last claim includes that its termination for ‘religion’ (which is otherwise denied) was based on the inherent requirements of Mr Folau’s position, within the meaning of the Act. (The claim against Rugby Australia under the Fair Work Act was considered in Part I and is not further reviewed here). The contract claims pleaded are broadly in the order set out below. Following these is the generic defence raised by Rugby Australia, in answer to all the claims. While recognising the significant limitations involved, (the pleadings do not constitute the case in much the same way as ‘the map is not the territory’9), some comments are made as to issues likely to arise in the Court with respect to these claims.

Condition contrary to public policy Mr Folau pleads that a condition in the player contract permitting his employer to prohibit the lawful expression of his religious belief in his own time, would be contrary to public policy and void. Therefore, the conduct of the Respondents in issuing the breach notice

The Respondents say it is lawful for an employer to provide a code of conduct. Further, no such condition as alleged prohibited Mr Folau manifesting his religion, provided he did so in a manner that did not breach the Code.

It is interesting that the claim does not identify any specific Code condition – the argument is that whatever clause is relied upon by the Respondents is necessarily one against public policy. Invoking public policy is creative and opens up a range of issues (freedom of religion etc). And it appears that public policy in general would support freedom of religious expression, even if, as for the implied freedom of political communication under the Constitution, such ‘freedom’ does not create a personal justiciable ‘right’.10 But success on this ‘unruly horse’11 is difficult and fact dependent. It involves consideration of both the alleged reprehensible conduct (ie restricting freedom of religious speech), and upholding the particular contract (and freedom of contract generally) and avoiding injustice. Moreover, in this case it involves also consideration of the consequence of Mr Folau’s exercise of this freedom. The relevant Code clauses are not inherently objectionable and reliance upon them by the Respondents in the circumstances was in response to action itself contrary to public policy (as reflected in anti-discrimination legislation) – namely, denigrating the gay and transgender community.

Condition – proper construction The claim, associated with the first, is that on a proper construction of the player contract, no clause in it could be interpreted as prohibiting the lawful expression of a religious belief. So again, there was a breach of contract by the Respondents. The claim is denied. Both claim and defence are likely to involve similar issues to those in the preceding claim.

Condition – no breach in fact The claim, in the alternative, is that if there were a valid condition permitting 17

the prohibition of Mr Folau’s lawful expression of his religious belief, his conduct in publishing the posts, did not amount to breach of such condition. The claim is denied; that is (expressed positively), the defence is the posts did constitute a breach of relevant clauses of the Code.

Implied term – reasonable exercise of discretion Mr Folau pleads by his amended claim (and in his Replies) that: (1) the Respondents had a contractual discretion whether to initiate termination proceedings etc, (2) there was an implied contractual term that this discretion must be exercised reasonably and in good faith and with fidelity to the bargain and (3) in issuing the breach notice etc the Respondents breached this term. The Respondents have not yet filed a response to this claim. They seem likely to contest that any such term should be implied in fact (given the extensive provisions of the Code) or in law (given the extensive provisions of the Fair Work Act).12 Further, that if such a term is to be implied, they will deny that it was breached. They will likely say there is no evidence of bad faith on their part and the findings and decision of the tribunal are some evidence that in their issuing the breach notice etc they acted reasonably and with fidelity to the player contract. If such a term were to be implied, perhaps one form the argument might take is that, in the circumstances, the Respondents’ decision to allege and support a high-level breach and termination was not proportionate to the seriousness of the breach. The exercise of the discretion thereby miscarried and the term was breached.

18 | BRIEF DECEMBER 2019

Breach – giving effect to the tribunal’s decision The claim is that: (1) the tribunal erred in its construction of the player contract (above), (2) the tribunal’s decisions as to a high-level breach and in directing termination were absurd or unreasonable (including in the Wednesbury sense) and (3) the tribunal decision is void by reason of apprehended bias of one of its members, including by reason of her previous support for LGBTI and human rights causes. Therefore, the Respondents breached the player contract in giving effect to the tribunal decision. The claim (in (2) above) of an unreasonable (or possibly an irrational) decision in the public law sense may rely upon recent High Court authority which allows for the possibility of the application of these concepts in considering breach of an employment contract.13 Claims (1) and (2) are denied. Rugby Australia also pleads that the issue of proper construction was a matter the parties agreed would be for the tribunal and the only proper challenge to it was by an appeal – which was not taken (see its general defence below). The Respondents have not yet responded to claim (3). At the hearing Mr Folau objected to the member’s appointment, but having heard the application, she refused to recuse herself. The Respondents seem likely to dispute this claim, including on the basis that it was a matter for the member and for the tribunal acting under its own procedures. Mr Folau’s argument on this subject would seem necessary to the extent he

must show it was the Respondents, not the tribunal, which were responsible for his dismissal. But it might be thought artificial for Mr Folau to rely upon the claim that the Respondents breached the player contract by acting on the tribunal’s allegedly erroneous etc reasoning and decision. Under the terms of the player contract, the Respondents were contractually obliged to respect and give effect to the decision of the tribunal. Given the decision made upholding the charge, it was for Mr Folau, not them, to appeal against it under the Code on the basis of alleged tribunal error.

Conduct in restraint of trade The claim is that the decision of the tribunal as to termination means Mr Folau cannot play for the Wallabies or for an Australian team in the Super Rugby competition and so constitutes an unreasonable restraint of trade, is contrary to public policy and void. It was therefore a breach of contract for the Respondents to rely upon the decision. The Respondents deny the claim and plead moreover that Mr Folau can apply for a new contract with Rugby Australia or a Super Rugby team and can play for other international club teams. Rugby NSW also pleads (and cites authority), that the termination does not constitute a contract in restraint of trade as a matter of law, because here the contractual restraint is limited to playing for the Respondents – not for third parties.14 By his Reply, Mr Folau pleads that by rules incorporated into the player contract, he may not play for an Australian Super Rugby team without the ‘contractual consent’ of Rugby Australia. The basis of the claim is not clear. In

the usual case, the cause of action is centred on the effect of a provision in a contract or arrangement, which upon termination of such contract or arrangement, operates to restrict the covenantor’s trade – relevantly, the opportunity to seek engagement as a professional rugby player with another employer in Australia. There is no specific provision in the player contract to this effect. Possibly a claim in that form might have been built around the rule pleaded by Mr Folau (above), by which it appears he is precluded from playing rugby for any Australian Super Rugby team without the ‘contractual consent’ of Rugby Australia. But Mr Folau’s claim of restraint is specifically directed at ‘the decision of the tribunal’. This course may have been adopted because the relevant terms of the Code do not in terms restrict the player’s trade. Or because any such engagement, and contractual consent, would be dependent upon his (again) agreeing to the Code. (He seems likely to refuse – so the issue would revert to the legality and enforceability of the relevant clause.) And perhaps Mr Folau seeks to justify basing the claim on the decision of the tribunal by reference to the principle that ‘the rules as to restraint of trade apply to all restraints, howsoever imposed, and whether voluntary or involuntary.’15 One effect of this approach is that the restraining circumstance would be examined at the date of the tribunal’s decision (which would allow Mr Folau to rely on events leading up to termination), rather than the date the contract with the challenged provisions was made (which would require him to identify the offending terms). In either scenario, there is likely to be an exhaustive examination of the reasonableness of the provision, or decision, to protect the legitimate interests of the Respondents (they bearing the onus) and in relation to the public interest.16

Breach of natural justice and of implied evidence term

reason of the apprehended bias of one of the members (above).

This new claim is that the Respondents were told before the hearing that the termination of Mr Folau’s contract was likely to cause division within the players. Their failure to give evidence of such breached (1) the express term of the player contract that proceedings before the tribunal would observe the rules of natural justice and (2) an implied term that all material evidence would be put before the tribunal. The tribunal decision was therefore void and in giving effect to it, the Respondents breached the player contract.

In terms of the Federal Court’s jurisdiction generally, a claim having been brought under the Fair Work Act, the Court would have original federal jurisdiction with respect to the disposition of that claim and the associated contract claims. The defence raises the extent to which it would be limited by proceedings before, and the decision of, the tribunal.

The Respondents have not yet responded to this claim. Accepting the factual claim, and that the term might be implied, it may be questioned whether this ‘failure’ amounted to the breaches alleged or with the consequence of voiding the decision.

Generic defence – tribunal’s decision conclusive Rugby Australia pleads that given: (1) Mr Folau did not claim before the tribunal that the player contract or Code was contrary to public policy etc, (2) Mr Folau’s concessions before the tribunal of breach of the Code (above), (3) the 'final and binding' nature of the tribunal decision under the Code in the absence of any appeal and (4) Mr Folau has not brought court proceedings contending that the tribunal did not conduct the hearing in accordance with the player contract; that it is not now open to Mr Folau to contend that: (a) any term, or the tribunal decision, was contrary to public policy, (b) his conduct did not breach the Code, (c) the tribunal misconstrued the Code or acted unreasonably or (d) termination was based on religion. Mr Folau (by his Reply) seeks to meet this claim, in part, on the basis that the tribunal decision is (additionally) void by

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The defence in (1), (3) and (4) (above) appears to be centred upon the provisions of the Code providing that the tribunal decision is (subject to an appeal under the Code) ‘final and binding’. The general principles with respect to this issue appear to be these.17 Such ‘final and binding’ provisions would not preclude an application to the court based upon claims such as restraint of trade (which was not raised before the tribunal) or breach of contract (ie if upholding the tribunal’s decision would in effect involve a breach of contract) or unlawful termination (it may not be possible to contract out of the unlawful dismissal provisions of the Fair Work Act). The parties are unlikely to have intended that the tribunal’s opinion on such matters of law would be final (or would preclude a new claim being litigated). However, the scheme of the Code, including the ‘final and binding’ provisions, do not allow for a court to undertake a general ‘merits’ review or a rehearing, at least on matters decided by the tribunal. In relation to the contract claims, unless it is established that the tribunal has erred on some point of construction or legal principle, or its decision is made without evidence or is manifestly unreasonable or irrational (drawing on public law concepts), the tribunal decision will stand. Many of the expressions of the Code under consideration (eg ‘detrimental to the best

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interests of the game’) would call for a value judgment – one for the tribunal, not the court, to make. Moreover, in the case of a specialist tribunal, the court will have some regard to the expertise of its members and the informality of the proceedings. The defence in (2) (above) raises the issue of the effect in the Court of informal admissions made by Mr Folau directly, and through his counsel, in the tribunal. No doubt the weight to be attached to them was a matter for the tribunal and there may be some issue whether his personal concessions eg as to a low-level breach of the Code, would formally qualify as admissions to the extent they depended upon a legal standard. The tribunal does not appear to have based its decision upon these concessions. Mr Folau will present new evidence before the Court. And much of his case is based on the finding of a high-level breach and termination. However, there appears to be no reason why the concessions made could not be tendered and used by the Respondents in his cross examination in the Court. They would seem to require explanation as to how they came to be made.18

SUMMARY Given the extensive manner in which the claim has been pleaded, it seems certain that Mr Folau will have the opportunity to argue his case for freedom of religious expression. He will likely argue he has support for such a claim from recent English decisions.19 But the weakness in the counterattack remains – how does Mr Folau justify his freedom to express his religious views when these constitute an attack on a minority group? That issue would arise generally because such conduct is itself likely to be contrary to public policy and is possibly illegal. But here it is central to the dispute because the conduct is contrary to an express provision in the player contract. Part of the defence expressly raised is that Mr Folau was entitled to (and did without interference from the Respondents) express his religious views provided only that they did not breach the Code. That position, in some respects, reflects the legal doctrine discussed in Part 1; that freedom to manifest a person’s religious beliefs is respected up to the point where it breaches the law. The difficulty for Mr Folau’s claims generally is that the Code provisions do not appear unreasonable in themselves and are commonly employed. Whether their application in the circumstances

20 | BRIEF DECEMBER 2019

was unreasonable etc will require an examination of the events leading up to termination, including the tribunal’s reasoning and decision. Whilst it seems certain that the terms of the Code will not preclude the Court’s consideration of legal issues arising from the tribunal’s determination, it is not obvious (from such parts of its decision as have been pleaded) that the tribunal has misinterpreted the Code, or reasoned in an irrational manner, or reached an unreasonable (in the relevant sense) decision. Again, while Mr Folau may present new evidence to the Court, he is likely to face examination on the evidence given and concessions made before the tribunal. And relevant parts of the tribunal’s findings (cited above) will not provide Mr Folau any comfort in relation to his claims against the Respondents under the Fair Work Act. The manner in which the Federal Court (and given the likelihood of an appeal, the appeal court(s)) resolves these issues is likely to continue to attract the public’s interest. (Particularly now the public have no further interest in the outcome of the Rugby World Cup).20 Images in this article are licensed under Creative Commons Attribution 2.0 Generic license. Courtesy davidmolloyphotography.com

Paterson, ‘Disciplining athletes for off-field indiscretions: a comparative review of the Australian Football League and the National Football League’s personal conduct policies’ (2009) 4(1) Australian and New Zealand Sports Law Journal 105. 8.

The TJCC was recently founded in NSW. Prior to this, Mr Folau was reportedly a member of the Australian Christian Churches.

Alfred Korzybski.

10.

Under the Constitution, with respect to both political opinion and religious freedom, the relevant provisions have been held to impose restrictions on legislative power and not to create individual rights. As to the former see most recently Comcare v Banerji [2019] HCA 23 [20]; 93 ALJR 900. As to religious freedom see eg A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (Black). These principles were recently applied in the context of a complaint arising from a pamphlet offensive etc to homosexuals in Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48. As to the importance of freedom of religion generally, note Gibbs J’s reference in Black (at [24]) to forbidding the making of any law ‘prohibiting the free exercise of any religion … for the purpose of protecting a fundamental human right’. See also Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120, 130: ‘Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society.’ The case is discussed in Part I.

11.

Fitzgerald v FJ Leonhardt Pty Ltd (1977) 189 CLR 215, 231-2.

12.

Commonwealth Bank of Australia v Baker (2014) 253 CLR 169 [118] (Baker).

13.

Baker [42].

14.

Citing Petrofina (Great Britain) Ltd v Martin [1966] Ch 146, 180. It seems unlikely that this principle would defeat a claim for an unlawful restraint of trade where, as here, the defendant organisation, Rugby Australia, exercises considerable control over the trade in question (professional rugby within Australia). That is so even if Mr Folau might seek employment in a team not controlled by Rugby Australia, eg the new professional competition organised by Global Rapid Rugby.

15.

Buckley v Tutty (1971) 125 CLR 353 at 375, holding that the doctrine of restraint applied whether or not it could be said that the plaintiff rugby league player was contractually bound by the relevant provision. The rule in this case operated so as to permanently restrict a player, who was a registered member of one club, from joining another club without the consent of the contracted club. That consent might be withheld even where the club did not use the player. The provision was held to go beyond what was reasonably necessary to protect the interests of the association and so constituted an unreasonable restraint of trade. The existence of an appeal tribunal to which the player might have applied was not considered a bar to his relief. But notwithstanding the breadth of the language used in the passage quoted, the doctrine does not appear previously to have been relied upon beyond the issue whether a contract (as opposed to some other arrangement) was a necessary condition for the operation of the doctrine; ie it does not appear to have been invoked with respect to the effect of a domestic tribunal upholding a disciplinary charge and ordering termination of the player’s contract.

16.

See most recently the comprehensive examination of the subject in De Belin v Australian Rugby League Commission Limited [2019] FCA 688 (challenge to a rule requiring that league player be stood down pending determination of criminal proceedings). The subject is also discussed in the articles at Note 7 and eg Neville Rochow, ‘Toward a Modern Reasoned Approach to the Doctrine of Restraint of Trade’ (2014) 5 Western Australian Jurist 25 and Warren Pengilley, ‘Sporting Drafts and Restraint of Trade’ (1994) 10 Queensland University of Technology Law Journal 89.

17.

Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 (note that this decision is not available on AustLII) followed eg in Mitchell v Royal New South Wales Canine Council Limited (2001) 52 NSWLR 242. These cases suggest there may be a basis also to bring a claim in the nature of judicial review for breach of procedural fairness. The principles from these cases, outlined in the text, share features with the restrained approach of the court in an appeal from, or judicial review of, a discretionary decision.

18.

Voulis v Kozary (1975) 180 CLR 177, 192-3 (Jacobs J at [4]). Mr Folau has pleaded that his concessions were made in the context of seeking a settlement in the best interests of the game.

19.

R (on the application of Ngole) v The University of Sheffield [2019] EWCA Civ 1127; Smith v Trafford Housing Trust [2013] IRLR 86, both mentioned in Part I.

20.

In his amended statement of claim, Mr Folau pleads his omission weakened the Wallabies performance in the Cup, in support of his damages claim of approximately $14m.

(flickr.com/photos/125524007@N08) Endnotes 1.

The pleadings are comprehensive, totalling over 100 pages, in addition to the Respondents’ ‘Responses’. As indicated, an amended claim has recently been filed (15 November 2019) with new allegations to which the Respondents will need to respond. All of these documents are available to the public on the Federal Circuit Court of Australia website – ‘Public Interest Cases’.

In particular, only Rugby NSW pleads that Mr Folau’s posts were unlawful as being in breach of the AntiDiscrimination Act 1977 (NSW) (the Anti-Discrimination Act). Under the Act, discriminatory conduct is unlawful but does not attract criminal sanctions. Were the Court prepared to make a positive finding on that issue, such finding could presumably be relied upon by both Respondents.

Justice Anna Katzmann, ‘Pleadings and case management in civil proceedings in the Federal Court of Australia’ (FCA) [2015] FedJSchol 23, [37].

Although Rugby Australia issued the breach notice, it appears that at the date of Mr Folau’s 2019 social media posts and termination, Mr Folau was relevantly employed by Rugby NSW. It issued a notice of termination, as did Rugby Australia ‘to the extent necessary’. It is not clear what finding the tribunal made as to which was the relevant employer. With respect to the claim for unlawful termination, Mr Folau has alleged that each Respondent was relevantly involved in the other’s conduct in terminating the contract. There is no equivalent allegation with respect to the contract claims.

The Professional Player Code of Conduct, as opposed to the Rugby Australia Code of Conduct, is not publicly available.

Both Mr Folau and the Respondents also make reference to the Laws of World Rugby also incorporated into the player contract, prohibiting discrimination on grounds including of religion and sexual orientation, presumably with a view to supporting their respective interpretations of provisions of the Code.

Conduct rules using these expressions are commonly employed, and regularly criticised: eg Paul T Jonson, Sandra Lynch and Daryl Adair, ‘The contractual and ethical duty for a professional athlete to be an exemplary role model: Bringing the sport and sportsperson into unreasonable and unfair disrepute’ (2013) 8(1) Australian and New Zealand Sports Law Journal 55 and James J

Society Sundowner

On Thursday, 24 October 2019, Law Society members and guests gathered at The Spaniard bar in Wolf Lane, Perth, for a sold-out Society Sundowner. Guests enjoyed an evening of friendly conversation over refreshments and delicious Spanish canapes. The private bar upstairs proved to be the perfect venue to relax after a day at the office and catch up colleagues while enjoying views of the city. Thank you to our sponsor Incito Wealth for their valued support of the event. Keep an eye on our website (lawsocietywa.asn.au) and in Friday Facts for exciting upcoming events from the Law Society! Pictured: 1. Holly Kerr, Karen La 2. President Greg McIntyre SC; sponsor prize-winner Dora van der Westhuyzen; Sam Gray (sponsor Incito Wealth)

2018/19 Annual Report The following is a summary of the Law Society's 2018/19 Annual Report, which was approved by members at the Annual General Meeting held in November 2019. A full version of the Annual Report is available on the Law Society's website.

President's Report Greg McIntyre SC President

The 2018/19 financial year was a productive and successful one for the Law Society. In this Report, I outline some notable events and discuss a number of key advocacy initiatives undertaken by the Law Society in 2018/19.

Significant Judicial Welcomes and Farewells In July 2018, Law Society Life Member and former President the Hon Wayne Martin AC QC retired as 13th Chief Justice of Western Australia after more than a decade of service to the community. 2018 Law Society President Hayley Cormann attended the ceremonial farewell for the Chief Justice on Friday, 20 July 2018 at the Supreme Court, addressing the Court on behalf of the Law Society’s members and paying tribute to His Honour at the conclusion of a distinguished judicial career. The Law Society was delighted to welcome Western Australia’s 14th Chief Justice, the Hon Peter Quinlan at a Supreme Court ceremony on Monday, 20 August 2018. The Law Society

22 | BRIEF DECEMBER 2019

has continued to work closely with His Honour throughout the year in the best interests of the legal profession and broader community. Extensive interviews with both the retiring and newly-appointed Chief Justice were published in the Law Society’s Brief journal.

Black Tie Gala Dinner On Saturday, 4 August the Law Society and WA Bar Association co-hosted a Black Tie Gala Dinner for the legal profession at Crown Towers, Perth. It was an unforgettable evening with hundreds of members of the profession and judiciary in attendance. Federal Attorney General the Hon Christian Porter MP gave a sharp and entertaining keynote address. The WA legal profession again displayed its generosity by bidding on a range of unique experiences and prizes in a charity silent auction, with part proceeds going to Anglicare WA’s Street Connect programme through the Chief Justice’s Law Week Youth Appeal Trust.

Landgate In August 2018, the Law Society welcomed the decision by the Government of Western Australia to reject the sale of Landgate and instead keep it in public hands. The Law

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

Best Practice Guide In late 2018, the Law Society developed an information guide to encourage best practice, fairness and compliance with legal obligations when employing graduates and junior practitioners. This useful guide covers issues such as remuneration, conditions of employment and employee supervision and is accessible through the Law Society’s website.

Legislation to Expunge Historical Homosexual Convictions In September 2018, the Law Society welcomed the passage of legislation through State Parliament to implement a scheme for the expungement of historical convictions related to consensual homosexual activity. The passage of the legislation followed

extensive advocacy by the Law Society, which had originally made a submission in April 2016 to the former Attorney General.

Unlawfully Engaging in Legal Work In 2018/19 the Law Society published a fact sheet on unlawfully engaging in legal work. The fact sheet sets out the provisions of the Legal Profession Act prohibiting a person from engaging in legal work unless the person is an Australian Legal Practitioner. It also addresses the purpose of the prohibition, the meaning of ‘legal practice’, and examples of actions that are, and are not, classified as legal practice.

National Redress Bill In November 2018, the Law Society expressed its support for a proposed amendment to the National Redress Bill, which was the subject of debate in the WA Legislative Council. The Bill as drafted would have barred survivors of child sexual abuse from applying for criminal injuries compensation if they had already received a redress payment. The Law Society supported an amendment allowing victims to retain their existing statutory right to claim criminal injuries compensation regardless of any redress payment, on the grounds of uniformity and fairness. Ultimately, the State Government agreed to incorporate the amendment to the Bill, ensuring survivors of child sexual abuse retained their existing statutory rights. Had the Bill not been amended, it would have resulted in Western Australia standing alone as the only State in which an applicant would have been unable to receive criminal injuries compensation after accepting a redress payment. The amended legislation will now help create a nationally consistent redress scheme, which the Law Society has always supported.

Legal Profession Regulations The Law Society made representations to the Attorney General and other stakeholders to effect amendments to the Legal Profession Regulations 2009. The Attorney General was receptive to those representations and a number of amendments were gazetted on 27 October 2018. The changes included making in-house counsel exempt from having to take out cover under the Law Mutual (WA) insurance arrangements in relation to legal services provided to related entities to their employing entity; making volunteers to Community Legal Centres, Legal Aid and the Aboriginal Legal Service exempt from having to take out cover under the Law Mutual insurance arrangements; and amendments to clarify and simplify administration of the Law Mutual insurance arrangements.

Justice Project An outreach role of the Law Society, as the representative of the profession, is advocating for justice for all members of the community. The Justice Project of the Law Council of Australia identified 13 vulnerable groups suffering significant impediments to obtaining access to justice. The Law Society has established a Justice Project Working Group, constituted by two members from each relevant Law Society Committee (including the Access to Justice, Elder Law and Succession, Indigenous Legal Issues, and Administrative, Constitutional and Migration Law Committees). The Working Group will undertake a review of the Justice Project Report’s findings and prepare an implementation strategy to progress those recommendations relevant to Western Australia.

Imprisonment for Unpaid Fines In January 2019, the Law Society and Law Council of Australia released a joint statement, calling on the WA Government to repeal laws that have led to disadvantaged members of our community being incarcerated due to non-payment of fines. I was pleased to note the Law Society’s advocacy was taken up by the media. An article was published in The West Australian and I took part in interviews with ABC Radio's AM and Statewide Drive programmes. The State Government has said it takes the issue very seriously and has indicated that it intends to introduce legislation into Parliament, acknowledging the impact on vulnerable members of our community and making imprisonment for fine default a last resort.

New Law Society Professional Standards Scheme On 15 February 2019, the Professional Standards Council of Western Australia resolved to approve the Law Society’s new Professional Standards Scheme, which commenced on 1 July 2019. The Professional Standards Scheme provides law practices with the opportunity to limit liability in the event of a claim.

Legal Profession Uniform Law In late February 2019, the Law Society welcomed the announcement that Western Australia had agreed to adopt the Legal Profession Uniform Law. This development represents another positive step towards a national legal market. The Law Society has been in favour of Western Australia adopting the Legal Profession Uniform Law for many years.

the legal profession and regulators, especially with national and international firms now being commonplace. The legislation to enable the legal profession to join the Scheme is anticipated to be introduced and passed in the WA Parliament by 1 July 2020. From that date, the Legal Services Council, which oversees the implementation and operation of the Uniform Law, will be expanded to seven and include at least one member from Western Australia. The Law Society has always maintained that Western Australia should have guaranteed representation on the national Legal Services Council and that WA should continue to maintain a local regulatory body made up of representatives of the legal profession and independent of government. The Law Society understands that these requirements are pre-conditions of the Western Australian Government joining the Scheme and will be met under the Uniform Law.

Updates to Law Society Briefing Papers The Law Society maintains a collection of Briefing Papers outlining its policy positions on issues relating to the law, legal profession and community. In 2018/19, the Law Society made changes to a number of Briefing Papers, to bring them up-to-date. The Briefing Papers are publicly accessible through the Law Society's website.

Law Week Law Week 2019 brought the legal profession and public together in May, with a focus on law and justice in the community. Over 40 Law Week events were held across Western Australia, including around Perth and in regional areas.

National Reconciliation Week The Law Society was proud to support National Reconciliation Week 2019. The Law Society sponsored a banner for the State Government's Street Banner Project. The Law Society was also a supporter of the National Reconciliation Week Breakfast held on 31 May at Crown Perth.

Conclusion Further detailed information about the Law Society's activities can be found in the CEO's Report, General Manager Reports and Committee Reports. My thanks to the members of the Law Society's Council, Committees and staff for all of their efforts in 2018/19.

A single, uniform set of professional conduct rules providing inter-jurisdictional consistency can only benefit consumers of legal services,

Chief Executive Officer’s Report David Price Chief Executive Officer

I am pleased to report that the Law Society has again experienced continued membership growth this past financial year. In 2018/19, the Law Society’s total membership grew to 4,138 (including Life and Honorary Members), as the legal profession continues to discover the value and benefits of Law Society membership. It was again a busy year that included the planning and implementation of our new Professional Standards Scheme (which provides a significant benefit for Law Society members by capping occupational liability). Over 90 CPD seminars and webinars were successfully delivered and the Law Society performed important advocacy work for the benefit of the community and shaping the future direction of the legal profession. Over 30 events were delivered including our memorable Black Tie Gala Dinner at Crown Towers Perth, at which members of the legal profession were very generous in their support. The Law Society was delighted to announce the donation of $15,000 from the Chief Justice’s Youth Appeal Trust to Anglicare WA's programme Street Connect from the funds raised on the night. I would also like to acknowledge the efforts of Attorney General the Hon John Quigley MLA in securing further funding of $15,000 for Street Connect from the Department of Justice. As a constituent member of the Law Council of Australia, the Law Society was consulted and worked together with the Law Council on a number of important national and international matters affecting the legal profession as well as the community including The Justice Project, a national, comprehensive review into the access to justice in Australia for people experiencing significant disadvantage. 24 | BRIEF DECEMBER 2019

This past financial year, Law Mutual (WA) continued to offer a range of Risk Management seminars for insureds that were focused on the needs of different categories of practitioners and law practices and various types of professional indemnity claims. The 2018/2019 risk management seminars and other training proved to be successful and were attended by over 1,800 insured practitioners. Law practices are able to obtain a 5% discount on their total Contribution Amount for the new insurance year, if they have fulfilled specific requirements for the discount. As part of the Law Society’s commitment to promote the positive contributions of lawyers to the community, the social media campaign #LawyersMakeADifference was launched during Law Week 2019, aiming to break down stereotypes and tell powerful, positive stories. The campaign featured a number of videos of lawyers discussing their experiences and why their work is important to them. It was also promoted to the business community on the Business News online platform. The Law Society has reaffirmed its commitment to reconciliation in accordance with its Reconciliation Action Plan (Innovate RAP). In 2018/19, the Law Society was proud to support the largest ever Reconciliation Breakfast to further raise awareness of reconciliation. As part of the Law Society’s RAP, all Law Society employees were invited to complete the SBS Cultural Training Program during 2018/19. We look forward to further building upon the Law Society's achievements as part of the next RAP that is currently being prepared for 2019 to 2021. I have only touched on the very broad range of activities the Law Society has undertaken in the past 12 months and I would encourage you to read the General Mangers’ and Committee reports in this year’s Annual Report.

Member Feedback The Law Society’s overall performance remains strong and continues to improve and according to an independent online survey conducted by CATALYSE® in October 2018, the Law Society’s Overall Performance Index Score has increased by five points (from 66 to 71 points) over the past two years. The Law Society continues to be well regarded as the voice of the legal profession. There is strong agreement among members that the Law Society is addressing essential professional development needs through its Continuing Professional Development (CPD) programme and it is keeping members well informed about changes in legislation and key issues affecting the profession. The Law Society will maintain a strong focus on these areas, and strive for high performance, as they are considered to be of greatest importance for members.

Looking Forward New Strategic Plan 2020-2023 Building on the framework and successful implementation of the current 2017-2020 Strategic Direction (ending 30 June 2020) the Society’s Council has adopted a new 2020-2023 Strategic Plan effective from 1 July 2020. The 2020-2023 Strategic Plan retains the current Vision for the Society as “the essential membership for the legal profession” and the Purpose “The voice of the legal profession” while introducing the following four new strategic imperatives: A strong and respected voice Acting as the voice of the legal profession in Western Australia on issues that are important to our members, the Law Society proactively engages with key stakeholders to influence positive change for the profession across a broad range of areas. Our work focuses on key legislative changes, and recognises the

undertaken in the later part of 2019.

Forward thinking organisation delivering value to members

need to advance the profession generally amongst the wider community whilst maintaining a strong commitment to access to justice for all.

The Law Society is recognised as an engaged, sustainable, and forwardthinking organisation where Council, Committee members and staff are aligned with the vision and purpose.

A vital support to members We will support members by delivering targeted, relevant and highly valued services, including offering support, events, and access to communities. We will do this by equipping them to develop their careers, expertise and businesses. A sustainable and supported future for members In a sector being challenged by a changing landscape, new platforms, new competitors and changing customer needs, the Law Society understand that members and their firms need to be forward looking, agile and entrepreneurial. We will work with our members to identify the driving forces of change in the sector, and to develop programmes and services to help equip all our members for a sustainable career in the profession by giving them the tools to develop their skills and knowledge.

Thank You

Organisational Review

Our success is thanks to a combination of the exceptional service and commitment provided by our Council Members, Executive, Committee Members and Law Society staff.

It is now five years since an Organisational Review was conducted in 2014 and the Law Society’s overall performance remains strong and continues to improve, as evidenced by the independent Member Survey mentioned above.

I would like to extend my sincere thanks and appreciation to Immediate Past President Hayley Cormann, current President Greg McIntyre SC, and both their Executive teams in 2018/19 for their dedicated support.

The Law Society has identified that in order to successfully deliver the four new strategic imperatives to members, an external consultant should again be engaged to work with key stakeholders to reassess the Organisational Review which was undertaken in 2014 and to make further recommendations to ensure that the Law Society is able to meet the Purpose, Strategic Imperatives, Key Areas of Transformation and Strategic Goals set out in the new 2020-2023 Strategic Plan in an environment where budget and price sensitivities exist. This work will be

Thank you also to the Law Society Council Members of 2018 and 2019 and our many Committee Members, all of whom volunteer many hours of their time and make invaluable contributions towards making the Law Society the voice of the legal profession in Western Australia. Finally, I would like to thank the Law Society’s staff members for their loyalty, commitment and support as we work together for continued success. We look forward to the year ahead.

THE YEAR IN NUMBERS 2018/19

4,138 members

Ordinary 3,151

ILP 242

Student 346

Associate 286

Judicial 68

Life 34

Honorary 11

200+

firms accredited through the Quality Practice Standard

members accredited through the Family Law Specialist Accreditation programme

Policy Briefing Papers updated and published to communicate the Law Society's policies on key issues affecting the profession

members shaped the L aw Society’s advocacy by sitting on committees and contributing submissions to Council

4,691

2,435

1,609

8,655

registrations for the Law Society’s Continual Professional Development offering

registrations for Law Society events

participating members in Professional Standards Scheme, an increase of 16% members opting to cap their professional liability

people educated on the legal profession through the Francis Burt Law Education Programme 25

Selected 2019 Submissions

Title of submission

Submission to

Voluntary Assisted Dying Bill 2019

Premier of Western Australia

Family Violence Legislation Reform Bill – Consultation Draft

Department of Justice

Criminal Code Amendment (Agricultural Protection) Bill 2019

Department of Justice

Joint Signing Authority From Law Practice Trust Accounts

Property Exchange Australia

Criminal Organisations Control Act 2012 – Discussion Paper

Department of Justice

Proposed Law Council Policy on Sustainable Development

Law Council of Australia

National Harmonisation of Recognition of Grants of Probate

Attorney General of Western Australia

Electronic Register of End of Life Choices

Attorney General of Western Australia

Review Powers of the President of the Children’s Court WA and the Information Sharing Capability by the Children’s Court

Department of Justice

Consolidated Practice Directions – Expert Evidence

Supreme Court of Western Australia

Claims Harvesting

Department of Justice

Limitation Periods for Claims

Health and Disability Services Complaints Office

Review of Citizenship Revocation Provisions By Independent Security Legislation Monitor

Law Council of Australia

Ministerial Expert Panel on Voluntary Assisted Dying – Death Certification

Deparment of Health

National Inquiry into Sexual Harassment in Australian Workplaces

Law Council of Australia

Explore the Law Society's submissions online at lawsocietywa.asn.au/submissions

26 | BRIEF DECEMBER 2019

Law Society Annual General Meeting The Law Society of Western Australia's Annual General Meeting (AGM) was held on Thursday, 21 November at the Perth offices of Herbert Smith Freehills. Members attended to participate and learn more about the Law Society's activities and achievements in 2018/19. The AGM approved the Law Society's Annual Report and Financial Statements. Extracts from the Annual Report are included in this edition of Brief. The complete document can be accessed at lawsocietywa.asn.au/annual-reports. Congratulations to John Ley SC, who was elected as the Law Society's newest Life Member. Mr Ley SC has been an active member of the Society since he joined in 1975, including serving as the Society's President in 1999. Following the AGM, attendees took the opportunity to catch up with colleagues and members of the Society's Council while enjoying refreshments and the picturesque views from level 36 of the QV1 Building. The Law Society thanks Herbert Smith Freehills for the use of its premises and hospitality. Pictured: 1. The Law Society's Executive addressing the AGM 2. Ante Golem; President Greg McIntyre SC; Konrad de Kerloy 3. Brooke Sojan; Hayley Cormann; Nicholas van Hattem; Demi Swain

A Matter of Trust: Re Application of Country Road Services Pty Ltd (Re Browne Family Trust) [2019] NSWSC 779 By Jonathan Haeusler TEP*, Special Counsel and Michelle Hankey, Solicitor, Williams + Hughes Commercial and Litigation Lawyers

Decision Re Application of Country Road Services Pty Ltd (Re Browne Family Trust) [2019] NSWSC 779 concerned an application made by the trustee of a family trust under s 81 of the Trustees Act 1925 (NSW). The trustee as plaintiff (and sole party to the proceedings) sought orders conferring upon it the power to distribute the trust’s capital and income otherwise than in accordance with the trust deed.1 Section 81(1) is in the following terms: “81 Advantageous Dealings

28 | BRIEF DECEMBER 2019

(1) Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the instrument, if any, creating the trust, or by law, the Court: (a) may by order confer upon the trustees, either generally

or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, including adjustment of the respective rights of the beneficiaries, as the Court may think fit, and (b) may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.”

In a judgment that was both incisive and unsparing (the proposed orders were referred to as a “tax minimisation scheme”2) Parker J concluded that the application would not be a dealing in “the management and administration” of the trust property and thus fell outside the scope of s 81.3 The application was dismissed.

Role of trustee Having found against the plaintiff, His Honour went on to query whether the proceedings had been appropriately constituted from the outset. The question was posed: is it the trustee’s role to seek additional powers so that it might administer the trust in a different way?4 Parker J noted that the trustee’s task is to administer the trust in accordance with the trust instrument.5 His Honour cited the explanation of the trustee’s role given by the NSW Court of Appeal in Re Dion Investments Pty Ltd [2014] NSWCA 367; (2014) 87 NSWLR 75 [94], Barrett JA (Beazley P and Gleeson JA agreeing):

Variation of the terms of a trust (including by way of conferral of some new power on the trustee) is not something within the ordinary and natural province of a trustee. It is not something that it is “expedient” that a trustee should do; nor, fundamentally, is it something that is done “in the management or administration of” trust property. A trustee’s function is to take the trusts as it finds them and to administer them as they stand. The trustee is not concerned to question the terms of the trust or seek to improve them. I venture to say that, even where the trust instrument itself gives the trustee a power of variation, exercise of that power is not something that occurs “in the management or administration of” trust property. It occurs in order that the scheme of fiduciary administration of the property may somehow be reshaped. (Emphasis added).

His Honour considered that where an application under s 81 is to be made, it should be brought not by the trustee, but by those who are propounding the change (usually, the beneficiaries).6 The benefits of this approach are twofold: •

First, it ensures that the costs of unsuccessful proceedings are borne appropriately. His Honour noted that where an application is unsuccessful the trustee will not be entitled to costs out of the trust fund. He found

it to have been presumptuous of the trustee as plaintiff to have incurred expenditure in anticipation of a successful outcome.7 His Honour went on to say that “[t]hose who are promoting the change, who would usually be beneficiaries of the trust or other interested persons, should, at least at the outset, bear the financial cost of propounding the application. The trustee should be joined as a defendant but would usually adopt a position of neutrality”.8 •

Second, in cases where the trustee adopts a position of neutrality, it enables the trustee to act as contradictor or otherwise arrange for the presence of one.9 His Honour said that “in any case where there is room for debate, the Court may be assisted by the presentation of argument on an adversarial basis … If the trustee is in any doubt, in a particular case, about whether to act as a contradictor, or to join someone else to do so, the Court’s advice can be sought on that question”.10

Takeaways: •

The case serves to remind us that the trustee’s role is to administer the trust in accordance with the terms of the trust instrument. Section 81 is concerned with the management and administration of trust property. The Western Australian equivalent is found at s 89 of the Trustees Act 1962 (WA). These sections are

not concerned with the beneficial interests of the beneficiaries and it is not appropriate to attempt to vary beneficiaries’ interests under them.11 •

More broadly, the case also suggests that the usual role of a trustee should be one of neutrality. In considering applications that are brought outside the scope of the trustee’s function, the application should be brought by those propounding the change. The trustee’s position of neutrality will serve to: o

ensure that application costs are borne appropriately; and

assist the Court by enabling the trustee to act in the role of contradictor or arrange for the presence of one. When in doubt, the trustee can seek the Court’s advice on the question.

Endnotes *

1 2 3 4 5 6 7 8 9 10 11

STEP (The Society of Trust and State Practitioners) is a worldwide professional association for lawyers, accountants and other advisors who help families plan their assets across generations. STEP promotes high professional standards by educating professionals, connecting advisors and families globally, informing public policy and acting in the public interest. Re Application of Country Road Services Pty Ltd (Re Browne Family Trust) [2019] NSWSC 779 [1], [99]. Ibid [107]. Ibid [85]. Ibid [103]. Ibid [103]. Ibid [105]. Ibid [104]. Ibid [105]. Ibid [106] - [107]. Ibid. The Law of Trusts, 2014, Annotated Legislation [41.8140] (NSW) and [81.8940] (WA).

EVENT WRAP UP

Mock Trial Competition Grand Final Proud parents, enthusiastic friends and interested supporters joined two teams of conscientious students and their dedicated teachers and coaches at the Supreme Court Building in October for the Grand Final of the Law Society’s Mock Trial Competition for 2019. The polished, professional demeanour of the two undefeated student teams impressed all onlookers. ‘Jon Snowden’, a computer geek with his fair share of passions, delusions and frenemies, was accused of hacking into Westeros University’s restricted access computer system. A team from Carey Baptist College in Harrisdale acted for the State of Western Australia, attempting to convict Snowden for breaching Section 440A of the Criminal Code. Wesley Gold, a team from Wesley College, had the job of defending the accused. The winning team was Wesley Gold, continuing a tradition for the Gold team, which last won the annual Competition in 2011. Their coaches, Claire Rossi and Rein Squires, have supported them for many seasons and have helped them to improve their skills while having lots of fun.

30 | BRIEF DECEMBER 2019

The two teams appeared before the Honourable Justice Robert Mazza of the Supreme Court of Western Australia, Court of Appeal. Justice Mazza presided over the case with great care and warmth. Greg McIntyre SC, President of the Law Society, welcomed guests following the trial and thanked Justice Mazza for judging the Grand Final. Mr McIntyre SC noted that the Competition plays an important part in fostering young people’s engagement with the justice system, developing skills including public speaking, thinking analytically, and presenting a structured, persuasive argument. Mr McIntyre SC acknowledged the support of the Supreme Court of Western Australia and the Premium Partners: the Department of Justice and the Public Purposes Trust. The Competition is also supported by its Law School Partners: Curtin University, Edith Cowan University, Murdoch University and the University of Western Australia. Mike Celenza, Director of Higher Courts, Court and Tribunal Services at the Department of Justice presented the trophies to the winners and runners-up, and the foyer of the courthouse lit up with happy faces. The Society would like to extend its gratitude to the many members of the legal profession including the judges’ associates, legal practitioners, academic

staff and law students who acted as coaches and judges in the 2019 Competition. Thank you also to the lawyers in the Grand Final Case Working Group who devised the case material for the Grand Final. The Law Society runs the competition as part of the Francis Burt Law Education Programme, which gives students an enjoyable and dynamic introduction to the law. The mock trials are fictional civil and criminal cases, with the rules of evidence and procedures modified and simplified. Each team prepares their own case and the students take on the roles of barristers, solicitors, court staff and witnesses. Students are judged on their opening addresses, witness examinations, objections based on responses, closing

statements and other court activities. This season 1,080 students in Years 10, 11 and 12 participated in 180 trials. Overall, 112 teams from 56 schools took part. Teams of between eight and 12 compete in the Supreme Court and, if required, the Mandurah Courthouse. Each trial lasts no more than two and a half hours. Lawyers interested in volunteering as a coach or judge in 2020 are invited to contact the Mock Trial Coordinator at mocktrial@lawsocietywa.asn.au The Society will be running an information session in February 2020 to provide an introduction to the Competition for new volunteers.

Above: The two Grand Final teams with The Hon Robert Mazza, Supreme Court of Western Australia, Court of Appeal; Greg McIntyre SC, President, The Law Society of WA; and Mike Celenza, Director of Higher Courts, Court and Tribunal Services, Department of Justice.

Premium Partners

WA Law School Partners

We extend our thanks to the following members of the profession who volunteered as coaches or judges in the 2019 Competition. The programme would not be possible without your support. COACHES Alex Manning Alexander Anile Alice Pennycott Alice Robinson Amara Hughes Anthony Durand Aoning Li Astrid Sweeney Belinda Hermawan Brenton Panzich Carolyn Moss Cayli Bloch Claire Rossi Clancy Hindmarsh Coraline De Zilwa Craig Hershowitz Craig McIntosh Danika Adair-La Dino Todorov Erica Thuijs Eugene Wong Francois Carles Gerald Hoe Grant Benskin Jacqui Brown Jane Vickery Janine Villanueva Jessica Berry Jessica Chapman Johanna Overmars John McKechnie John Park John Robertson John Williams Kerry Espley-James Khew Wong Kiri-Lee George Lyndsay O'Brien Marc Saupin Margaret Breen Menka OrellanaÂ Rein Squires Rhys James Sarah Harvey Sean Gomes Simon Steenhof Tyla Ferguson Xuan Rui Yong Zanthi Jordan JUDGES Adam Ebell Aimee Ford Alex McVey Alexander WardNoonan Amelia Hirst Asanka Gunasekera Ashley Roberts Ben Tomasi Braeden Watts Brenda Powell Brittany Cherry Caitlin Joensson Caitlin Liddelow Caris Tysoe Cathryn Palfrey Catinca Hozoc Chad Silver Chadd Graham Cham Madondo Charlie Gribble Chelsea Fruhwirth Chris Townsend

Clinton Ducas Daniel Coster Daniel Harrop Daniel Jenkins Daphne Schilizzi David Mulligan Elisha Rayner Emma Luck Ernest Chua Femke Elferink Gabrielle Inga Glenn Scott Gray Porter Greg Mohen Iva Brnadic James Marzec Janelle Singh Jarrad Goold Jasdev Singh Jay Tampi Jessica Henderson Johanna More Jonathon Horne Joycelyn Tang Kathryn Roach Keely Liddle Ken Yin Kenyon Lee Leslie Gabriel Lily Kuan Linda Keane Lisa Roche Marilyn Bromberg Mark Hemery Marshall McKenna Megan Cramp Michael Cornes Monique Ehlers Naomi Schlaepfer Natalie Wigg Nicholas Mountain Nicola Thomas-Evans Patrick Mackenzie Philip Hardless Rachael King Rachel O'Meara Rebecca Cain Rebecca Dennison Rhianna Brims Rhys Mola Rob Coales Robert Lilley Sam Hemachandra Saoirle McCallion Seamus Rafferty Shana Yeap Shezah Arif Simon Quenby Stephen McGrath Thomas Camp Tim Lethbridge Veenela Veerasamy Yassamin Olson Zaccary Molloy Mencshelyi Zachary Clifford Zoe Kalimeris

Mandatory Cancellation of Visas Pursuant to Section 501 of the Migration Act 1958 (Cth) By Sophie Manera BA, LLB1 Principal Solicitor, Rothstein Lawyers Adapted from a paper originally prepared by Mervyn Rothstein B.Juris,2 formerly of Rothstein Lawyers

Mandatory cancellation of a visa on character grounds arose from amendments to section 501 of the Migration Act 1958 (Cth) (“the Act”) on 11 December 20143 including the introduction of subsections (3A), (3B) and (5). Pursuant to subsection (3A) a foreign national non-citizen’s visa must be cancelled if he/she does not pass the character test because of the operation of the matters set out in subsection (3A). Since that date, not only would the offender be sentenced and imprisoned for the offence(s) but also becomes subject to mandatory cancellation of their visa and resultant detention in a migration detention facility. In certain circumstances, which I will refer to below, 32 | BRIEF DECEMBER 2019

such detention could amount to indefinite detention despite the offender having served their sentence. Cancellation on character grounds was previously (and is still) available under subsections 501 (2) and (3) but they do not impose mandatory cancellation. I would submit that the introduction of mandatory cancellation and also the previously existing rights to discretionary cancellation are important to criminal lawyers when advising a non-citizen

client of the additional consequences of pleading guilty or being found to be guilty.

Current Statistics Since the legislative amendments to the Act in December 2014, the number of visa cancellations on character grounds has increased by over 1100 per cent between the 2013–14 and 2016–17 financial years.4 Most prominently, these legislative amendments introduced a new mandatory cancellation provision by virtue of section 501(3A) of the Act. The number of character cancellations and refusals for the 2018/2019 financial year are 943 and 268 respectively.5

In terms of the top nationalities featured in character cancellations from 1 July 2018 to 30 June 2019, statistics show that New Zealand citizens accounted for nearly half of non-citizens who had their visas cancelled on character grounds.6 This was and still is a hot topic debated here and in New Zealand.

How Section 501 (3A) works From a practical point of view what will happen is that shortly before the convicted non-citizen is due for release either because of having served their full sentence or because they are due to be released on parole they will be served with a Notice of Mandatory Cancellation. Once served with a Notice of Mandatory Cancellation it is open to that person to apply for revocation of that decision under section 501CA (also inserted on 11/12/2014). The invitation to apply for revocation is contained in the notice. At this point, the person will be subject to a strict time limit of 28 days to apply to revoke the cancellation decision.7 Subsections 501(1) and (2), which relate to discretionary refusal and discretionary cancellation respectively, provide that natural justice does apply in the instances contemplated. The person concerned has the opportunity of addressing a Notice of Intention to Consider Cancellation based on a number of factors such as the potential impacts of deportation on family members, the strength, duration and nature of that person’s ties to Australia, whether there are any minor children involved and what would be in the best interests of those children. Subsections 501(3) and 501(3A) provide that natural justice does not apply in those circumstances. When the notice under subsection 501 (3A) is received it’s the mandatory cancellation decision – not an opportunity to be heard. Note the use of the word “must” in section 501(3A). There is no discretion if the specified criteria are met. Notice of cancellation pursuant to section 501(3) (to be exercised by the Minister personally) does not have natural justice apply so no opportunity is given to the visa holder to address the Minister’s concerns, i.e. that the Minister is satisfied the refusal or cancellation is in the national interest. Cancellation of the visa and consequent deportation apply even if someone has spent all their formative years in Australia and has had little or no contact or support with their home country for many years.

As I alluded to above, there are certain instances where the non-citizen cannot return to their home country, for example because of persecution. In that case, there is a real likelihood that that person may (despite having served his/her prison term in Australia) be detained indefinitely because Australia will not refoul a person if there is the likelihood that that person will face persecution if returned to their country of origin. As their visa was cancelled they can only live in the community in limited circumstances otherwise they remain in detention. The character test is set out in subsection 501(6). In subsection 501(6)(a) reference is made to substantial criminal record which is set out in subsection 501(7).

Substantial criminal record – Subsection 501(7) Subsection 501(7) deals with which sentences will result in a person having a substantial criminal record. Sections (7A), (8), (9), (10), (11) and (12) explain how one calculates the requisite terms of imprisonment thus arriving at the period of 12 months referred to in section 501(7). Keep in mind that subsection 501 (3A) specifically refers to a substantial criminal record on the basis of subsection 7 (a), (b) or (c) only. Section 501(7A) provides that for purposes of the character test even if the sentences are to be served concurrently, the whole of each term is counted in working out the total sentence. So, even if the sentences are to be served concurrently, the effect is cumulative. Subsection (8) deals with periodic detention, (9) with residential schemes, (10) with the quashing or pardoning of any conviction. Subsection (11) deals with what amounts to harassment or molestation. This is to clarify what is specifically referred to in subsection 501(6)(d)(ii) and is qualified so that conduct amounting to harassment or molestation under the character test does not have to involve violence or threatened violence but can consist of only damage or threatened damage to property. Subsection (12) sets out the definitions of court, imprisonment and sentence. Keep in mind that for the purposes of subsection 501(3A) substantial criminal record is restricted in its application and is not as wide as its application in subsections 501(2) and (3).

Character test – Subsection 501(6) A person does not pass the character test if the person, inter alia, has a substantial

criminal record as per subclause 501(7). Please also refer to subsections 501(6) (aa) to (h) which deal with offences in detention, membership of a group or organisation which may be involved in criminal conduct, people smuggling and trafficking, regard to past and present criminal or general conduct and the other litany of heinous matters set out in the rest of subsection (6). In particular I would refer you to subsection 501(6)(e) because that particular subsection is specifically dealt with in subsection 501(3A)(a)(ii) namely sexually based offences involving a child. Subsection 501(6)(b) refers to a person being a member of a group or organisation and the Minister reasonably suspects that the group or organisation or person has been or is involved in criminal conduct. Insofar as the operation of subsection 501 (3A) is concerned failure to pass the character test is limited to what is specified in subsection (3A)(i) or (ii). The rest of subsections 501(6) and (7) do not apply.

Ministerial Direction No. 79 Ministerial Direction No. 79 (“Direction”) deals with those matters a decision maker (not necessarily the Minister personally) must take into account when deciding to exercise their discretion to revoke a cancellation decision. When taking the relevant considerations into account, a decision maker must adhere to the following directives as stated in the Direction: 8. Taking the relevant considerations into account (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved. (2) In applying the considerations (both 33

primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations. In cases of mandatory cancellation under Section 501(3A), Part C of the Direction applies, which lists primary considerations as ‘the protection of the Australian community from criminal or other serious conduct’, ‘the best interests of minor children in Australia’ and ‘expectations of the Australian community’. In addition to these primary considerations, a decision maker is also bound to take into account the following other considerations where they are relevant to the visa holder’s situation: ‘international non-refoulement obligations’, ‘strength, nature and duration of ties, impact on Australian business interests’, ‘impact on victims’ and ‘extent of impediments if removed’. Each of these considerations are explained in detail within the provisions of the Direction. I recommend taking the time to have a look at the numerous published Administrative Appeals Tribunal decisions to gain an understanding of how the

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considerations set out in the Direction have been applied to a variety of factual scenarios.

Whether To Apply For Parole in a Subsection 501(3A) Situation If released from prison on expiration of the sentence or earlier on parole the non-citizen will be taken into detention to await the outcome of any application for revocation of the mandatory cancellation. This could take months. Certain clients prefer the “comfort” of remaining in the familiar environment of the prison (as opposed to a detention centre) whilst awaiting the outcome of a revocation application. In other words they hold back applying for parole. They should have explained to them the practical differences between the two options. Furthermore, a non-citizen will not necessarily be taken to an immigration detention centre in the city or state in which they served their term of imprisonment. They may be taken to a detention centre anywhere in Australia, which can make communication and visiting difficult. If the revocation is granted and they are in detention they are released almost immediately. If the revocation is granted and they are in prison they will have to then apply for parole and await the next sitting of the Parole Board to decide whether they be granted parole. All of that could take weeks during which time they remain in prison.

CONCLUSION The Minister has broad powers to refuse or cancel visas on character grounds. What may be able to be attacked is whether the Minister’s decision was legally reasonable. Based on experience and published decisions dealing with section 501 cancellations, this is not easily done. Unless it can be shown that the Minister has acted capriciously without having regard to all the factors for and against cancellation, the decision cannot be attacked. Application for revocation will not necessarily be successful. So, consideration needs to be given at the pleading stage as to whether your noncitizen client should plead guilty if there is a possibility of him/her falling within the operation of subsection 501(2), (3) or (3A) by virtue of the sentence that will follow. Unfortunately in Western Australia it is not open to the court to consider the offender’s prospects of deportation as a relevant sentencing factor. Endnotes 1 2 3 4 5 6 7

Registered Migration Agent No. 1460731. Registered Migration Agent No. 9800297. Migration Amendment (Character and General Visa Cancellation) Act 2014. https://www.homeaffairs.gov.au/research-and-statistics/ statistics/visa-statistics/visa-cancellation. Ibid. Ibid. Migration Regulations 1994 reg 2.52.

YLC MIXED NETBALL COMPETITION On Friday, 1 November 2019, over 150 lawyers braved the wet weather and hit the courts at UWA for the 2019 Mixed Netball Competition. The sold-out event saw 16 teams battle it out over four fast-paced rounds, with Clayton Utz claiming the top prize for the second year in a row. Some cute furry mascots turned up to provide some pawsitivity and cheer on their humans. It was a great evening of fun and friendly competition, with wood-fired pizza and good chats keeping everyone warm.

Thank you to all the teams who joined in on the fun and congratulations to this yearâ&#x20AC;&#x2122;s winners! 35

FEDERAL COURT JUDGMENTS Dan Star QC Owen Dixon Chambers West, Melbourne

What is “financial product advice”, when is it “personal advice” or “general advice” and the duties that arise depending on which type of advice it is. Australian Securities and Investment Commission v Westpac Securities Administration Ltd [2019] FCAFC 187 (28 October 2019) is an important decision on the interpretation and application of the provisions addressing financial services and markets provided for by Chapter 7 of the Corporations Act 2001 (Cth) (the Act). Relevantly, Division 4 in Part 7.1 concerns when a person provides a financial service. The legislation contains a significant distinction between “personal advice” or “general advice” (as defined in s766B). If only general advice is given, the primary obligations on the provider of the advice are fewer (see Pt 7.6 Div 3 and Pt 7.7 Divs 2 and 4). In contrast, where personal advice is given, there are many additional obligations in order to provide protection to the client (see Pt 7.7 Div 3 and Pt 7.7A, Div 2). This Full Court decision explores the contours of “financial product advice”, “personal advice” and “general advice”.

Facts The appeal and cross-appeal was in respect of campaigns in 2014 and 2015 by the respondents/cross-appellants to encourage their customers to roll over external superannuation accounts into existing accounts (the BT accounts) that they held with the first respondent/ cross-appellant, Westpac Securities Administration Limited (Westpac), and the second respondent/cross-appellant, BT Funds Management. The campaign comprised sending letters and making telephone calls to the customers. By the campaign, Westpac successfully increased its funds under management in the BT accounts by almost $650 million. The heart of the appeal concerned whether Westpac’s campaign (in particular by the telephone calls) involved the provision of financial product advice and, if so, whether that financial product 36 | BRIEF DECEMBER 2019

advice should properly be characterised as personal advice or general advice. The campaign involved calls to more than 95,000 customers but ASIC’s case at trial was determined on the basis of sample calls to 15 customers (although on appeal the call to one of the customers was no longer relied on).

Trial judge and main issues on appeal In summary, the trial judge found: a) Westpac’s telephone communications involved the provision of “financial product advice” within the meaning of s766B(1) of the Act. Westpac’s cross-appeal included this threshold issue b) This “financial product advice” in the telephone calls was “general advice” (s766B(4)), and not “personal advice” within the meaning of s766B(3) of the Act. This conclusion was the subject of ASIC’s appeal c) If there was personal advice, there were contraventions of provisions such as to provide services efficiently, honestly and fairly (s912A(1)(a)) and the duty to act in the best interests of the customers (s912B(1)). This also formed part of the cross-appeal. In three separate judgments, the Full Court (comprising Allsop CJ, Jagot J and O’Bryan J) allowed ASIC’s appeal and dismissed the cross-appeal.

Issue 1 – “financial product advice” On the threshold issue, having regard to components of the definition of “financial product advice” in s766B(1) of the Act, what had to be established was that Westpac, by the telephone calls, made a “recommendation or a statement of opinion” that was intended, or could reasonably be regarded as having been intended, to influence the customer in making a decision in relation to his or her BT account. Each of the judges held that the telephone communications amounted to financial product advice as defined

in s766B(1) on the basis of there being both a “recommendation” and a “statement of opinion” as to the required matters. See Allsop CJ at [67], Jagot J at [234]-[240] and O’Bryan J at [340][349]. This was despite the callers not expressly making any recommendation or statement of opinion and there were marketing elements to the calls. The Full Court rejected the distinction that Westpac sought to draw between advertising/marketing, on the one hand, and advice on the other hand (Allsop CJ at [22] and [67] and Jagot J at [218]; see also O’Bryan J at [338]-[339]). Communications could involve both elements.

Issue 2 – “personal advice” or “general advice” Relevantly, under s766B(2), “personal advice” is financial product advice given or directed to a person where “the provider of the advice has considered one or more of the person’s objectives, financial situation and needs” or “a reasonable person might expect the provider to have considered one or more of those matters”. Under s766B(4), “general advice” is financial product advice that is not personal advice. ASIC succeeded in its appeal grounds that Westpac’s campaign involved the provision of “personal advice” within the meaning of s766B(2) of the Act. See Allsop CJ at [75]-[146], Jagot J at [241][280] and O’Bryan J at [381]-[398]. This was despite the fact that, in each call, the caller said (following the call script) words to the effect that everything being discussed would be general in nature and wouldn’t take into account the customer’s personal needs. On this key issue in the appeal, the Chief Justice summarised his conclusion at [5]: “. . . Westpac’s attempts to have customers transfer funds from their external accounts with other superannuation funds into their BT accounts were carefully calculated to bring about this desired result by giving no more than general advice. It was marketing by telephone selling. The difficulty is that the decision to consolidate superannuation funds

into one chosen fund is not a decision suitable for marketing or general advice. It is a decision that requires attention to the personal circumstances of a customer and the features of the multiple funds held by the customer. Westpac attempted, assiduously, to get the customer to make a decision to move funds to BT without giving personal financial product advice as defined in the legislation. It failed. It gave personal advice, because when the telephone exchanges are considered as a whole and in their context, including importantly the “closing” on the telephone by getting the decision made during the call, there was an implied recommendation in each call that the customer should accept the service to move accounts funds into his or her BT account carrying with it an implied statement of opinion that this step would meet and fulfil the concerns and objectives the customer had enunciated on the call in answer to deliberate questions by the callers about paying too much in fees and enhancing manageability . . .” Each of the judges considered that there were errors in aspects of the primary’s construction of elements of the statutory definition of “personal advice” in s766B of the Act. The various issues of construction were addressed by Allsop CJ at [13]-[30], Jagot J at [241]-[260] and O’Bryan J at [360]-[380].

Issue 3 – contraventions The Full Court held that Westpac contravened a number of provisions that applied where there is personal advice. Most attention was given to the duty to act in the best interests of customers (s961B(1)) and to do all things necessary to provide services efficiently, honestly and fairly (s912A(1). See Allsop CJ at [147]-[176], Jagot J at [286]-[302] and O’Bryan J at [404]-[428]. The Court made strong statements about Westpac’s conduct. For instance, O’Bryan J said at [427]: “. . . Westpac took unfair advantage of that asymmetry [of knowledge] by implementing a carefully crafted telephone campaign, reinforcing in the minds of its customers an erroneous assumption that the decision to consolidate their superannuation into a Westpac fund was straightforward and was likely to generate benefits for the customer by saving fees and by reducing the burden of managing superannuation. The telephone campaign was directed to persons with whom Westpac had an existing relationship and in a real sense occupied a position of trust with respect to the customer’s superannuation fund. Despite knowing that the decision was not straightforward, Westpac did not advise its customers about the matters that they should consider before deciding to consolidate their superannuation. Nor did Westpac even

suggest to its customers that they reflect on the decision or seek advice about the decision. Through the campaign, Westpac pursued its own self-interest and disregarded the best interests of its customers. That conduct can rightly be described as unfair and involved a contravention of s912A(1)(a) of the Act”. The other two judges referred to calculated or systemic sharpness in the campaign’s practices (at [174] per Allsop CJ and [290] per Jagot J)).

Next steps At the time of writing this summary, the Court had not made the declarations and other orders consequential on allowing ASIC’s appeal and dismissing the crossappeal. It is apparent that the matter will need to be remitted to the trial judge for the fixing of pecuniary penalties and other matters. It will be interesting to see if Westpac and BT Funds Management seek special leave to appeal to the High Court from the Full Court’s decision. Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii. edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

HIGH COURT JUDGMENTS Andrew Yuile Owen Dixon Chambers West, Melbourne

Restitution Unjust enrichment – breach of contract – building contracts In Mann v Paterson Constructions [2019] HCA 32 (9 October 2019) the High Court considered the application and interaction of principles of breach of contract and restitution in respect of a building contract. The appellants entered into a “major domestic building contract”, as defined by the Domestic Building Contracts Act 1995 (Vic), with the respondent builder. The contract provided for progress payments to be made on completion of stages of work. As work was being done, the appellants sought 42 variations without giving written notice as required by s38 of the Act. The builder carried out the variations, also without giving written notice as required by s38. Section 38 provides that a builder is not entitled to recover for work done in respect of a variation unless notice has been given (s38(6)(a)) or the Victorian Civil and Administrative Tribunal (VCAT) is satisfied that there are exceptional circumstances or that the builder would suffer significant or exceptional hardship; and that it would not be unfair to the building owner for the builder to recover the money (s38(6)(b)). After being issued with an invoice for the variations, the appellants repudiated the contract, which was accepted, thus terminating the contract. The respondent began proceedings in VCAT seeking damages or, alternatively, moneys for work done and materials provided. VCAT found that the appellants had wrongfully repudiated the contract and that the respondent was entitled to recover for the value of the benefit conferred on the owners, being the fair and reasonable value of the work. That amount was considerably greater than if the claim had been confined to the contract. VCAT also decided that s38 did not apply to a claim for restitution and it did not need to decide whether s38 applied in this case. Appeals to the Supreme Court and to the Court of Appeal were dismissed.

38 | BRIEF DECEMBER 2019

The High Court unanimously held that s38 did operate to limit the amount that might be recovered by way of restitution. It excluded the availability of restitutionary relief for variations other than in accordance with s38. The Court also held that, for amounts not in respect of the variations, the builder could claim for amounts due for stages completed by the time of termination or for breach of contract for any uncompleted stage of the contract. A majority of the Court also held that the builder was entitled to recovery by way of restitution, in the alternative to breach of contract. However, the claimant should not be able to recover more by restitution than would have been available under the contract. Any amount recoverable in restitution should therefore be limited in accordance with the rates or overall price in the contract. Kiefel CJ, Bell and Keane JJ jointly; Nettle, Gordon and Edelman JJ jointly; Gageler J separately concurring with Nettle, Gordon and Edelman JJ. Appeal from Court of Appeal (Vic) allowed.

Corporations law Financial assistance of company to acquire shares in the company Connective Services Pty Ltd v Slea Pty Ltd [2019] HCA 33 (9 October 2019) concerned the scope of s260A of the Corporations Act 2001 (Cth). The appellant companies (Connective Companies) were incorporated in 2001. The shareholders have relevantly been the first respondent (Slea Pty Ltd, (Slea)), the third respondent (Millsave Holdings Pty Ltd (Millsave)) and the fourth respondent (Mr Haron). The constitution of each Connective Company contained a pre-emption clause, requiring that before a shareholder could transfer shares of a particular class, those shares had to be offered to existing shareholders. In 2009, the sole director and shareholder of Slea, Mr Tsialtas, entered into an agreement with the second respondent (Minerva Financial Group Pty Ltd (Minerva)) for the sale of Mr Tsialtas’s shares in Slea. A second agreement was

made in 2010 between Mr Tsialtas, Slea and Minerva. In 2016, the Connective Companies began proceedings against Slea and Minerva (also joining Millsave and Mr Haron), alleging that Slea intended to transfer its shares in the Connective Companies to Minerva without complying with the pre-emption provision. Slea and Minerva applied to have the proceedings dismissed or stayed. One form of relief sought was an injunction under s1324 of the Act, restraining the Connective Companies from prosecuting the pre-emption proceedings on the basis that the proceedings constituted a contravention of s260A of the Act. That provision prevents a company from providing financial assistance to a person to acquire shares in the company except if the assistance does not materially prejudice the interests of the company or its shareholders, or the company’s ability to pay its shareholders. The High Court held that “Any action by the company can be financial assistance if it eases the financial burden that would be involved in the process of acquisition or if it improves the person’s ‘net balance of financial advantage’”. It extends beyond direct contributions to share price. In this case, bringing legal proceedings against Slea was a necessary step for the vindication of the pre-emption rights of Millsave and Mr Haron. The proceedings could have been brought by Millsave or Mr Haron. If that had been done, the provision of any financial assistance by the Connective Companies would have contravened s260A. Instead, the Connective Companies, in which Millsave and Mr Haron held 66.67 per cent of the shares, themselves commenced the proceedings, at the companies’ expense. That commencement was financial assistance to Millsave and Mr Haron. And the Connective Companies had not shown that there was no material prejudice to the Connective Companies or their shareholders. Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ jointly. Appeal from the Court of Appeal (Vic) dismissed.

Migration

genital mutilation offence

Fast Track – procedural fairness – certificates under s 473GB

The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 (16 October 2019) concerned the proper interpretation of s45(1)(a) of the Crimes Act 1900 (NSW). That section makes it an offence to excise, infibulate or “otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris” of another person. A2 and Magennis were charged with mutilating the clitoris of C1 and C2 on separate occasions. Vaziri was charged with assisting A2 and Magennis.

In BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (9 October 2019) the High Court held that procedural fairness did not require the Immigration Assessment Authority (IAA) to inform the applicant of a notification under s473GB(2)(b) of the Migration Act 1958 (Cth). The appellant made an application for a protection visa that was refused by a delegate of the Minister. The application was referred to the IAA for consideration under the Fast Track regime in Part 7AA of the Act. Section 473GB applies to documents given to the Minister or the Department in confidence. Where it applies, s473GB(2) (a) obliges the Secretary to notify the IAA in writing that s473GB applies in relation to a document or information. The IAA may then have regard to any matter in the document or information and may, in certain circumstances, disclose the document or material to the applicant. In relation to reviews by the IAA, s473DA(1) provides that Div 3 of Part 7AA, with ss473GA and 473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [IAA]”. In this case, a s473GB notification was issued to the IAA. The IAA did not disclose to the applicant any of the documents or information in the file and did not disclose the fact of the notification. The applicant argued, relying on the decision in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 (SZMTA), that the failure to tell the applicant about the fact of the notification from the Secretary was a breach of procedural fairness. SZMTA concerned review under Part 7 of the Act by the Administrative Appeals Tribunal. The High Court held that s473DA provides for a different procedural fairness obligation to that imposed under Part 7 of the Act. Section 473DA precludes an obligation equivalent to that in SZMTA. Further, in this case, there was insufficient evidence to infer that the IAA failed to consider exercising the discretion conferred by s473GB(3)(b) of the Act. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly; Edelman J dissenting. Appeal from the Full Federal Court dismissed.

The charges arose from a ceremony called “khatna” performed on C1 and C2. It involves causing injury to a girl’s clitoris by cutting or nicking it. The defence case was that the procedure was merely ritualistic and did not involve any nick or cut to the clitoris of C1 or C2. Evidence was led by the Crown to rebut this. The defence further argued that, even if there was a cut or a nick, there had not been “mutilation” within the meaning of s45(1)(a). The trial judge directed the jury that “mutilate” in the context of this provision meant “injure to any extent”. A nick or a cut was capable of being mutilation. There was also a question whether “clitoris” included the clitoral hood or prepuce. The jury found each accused guilty. The Court of Appeal held that the trial judge misdirected the jury and that “mutilates” should be given its ordinary meaning, requiring more than superficial injury or some irreparable damage. The High Court, by majority, upheld an appeal from that decision. The majority held that, in context, s45(1) (a) should be read as extending to criminalise female genital mutilation in its various forms. That encompassed the nicking or cutting of the clitoris of a child, even if there was no permanent damage. Further, “clitoris” in this context included the clitoral hood and the prepuce. The trial judge had therefore not misdirected the jury. The majority held that the matters should be remitted to the Court of Appeal for further consideration of other grounds of appeal in light of the proper construction of s45(1)(a). Kiefel CJ and Keane J jointly; Nettle and Gordon JJ jointly concurring; Edelman J separately concurring; Bell and Gageler JJ jointly dissenting. Appeal from the Court of Appeal (NSW) allowed.

Tax law

Criminal law

Income tax – capital expenditure – gaming machine entitlements

Statutory construction – meaning of “mutilates” and “clitoris” in female

Commissioner of Taxation v Sharpcan Pty Ltd [2019] HCA 36 (16 October 2019)

concerned whether gaming machine entitlements (GMEs) acquired by the respondent were deductible under s8-1 of the Income Tax Assessment Act 1997 (Cth). The respondent was the sole beneficiary of the Daylesford Royal Hotel Trust. Spazor Pty Ltd, the trustee of the Trust, purchased the Royal Hotel in Daylesford. The trustee did not purchase 18 gaming machines in the hotel, but received a percentage of income derived from them. In 2008, under new legislation, the trustee bid for and was allocated 18 GMEs allowing it to operate the gaming machines itself. The GMEs were paid for by instalment, with forfeiture in default. The trustee claimed the purchase price as a deduction under s8-1 of the Act, or one-fifth of the price under s40-880 of the Act. The claims were disallowed by the Commissioner. That decision was set aside by the Administrative Appeals Tribunal (AAT), which decided that the purchases were not of a capital nature and deductible. The Full Federal Court by majority dismissed an appeal from the AAT’s decision. The High Court unanimously upheld an appeal. The Court held it was not to the point that the price was to be recouped out of daily trading; that the purchase price may have reflected the economic value of the income stream expected to be derived; that the business was integrated and would have been prejudiced if the GMEs had not been purchased; or that a change in the law allowed the trustee to purchase the GMEs. The purpose in paying the purchase price was to acquire, hold and deploy the GMEs as enduring assets of the business for the purpose of generating income. The GMEs were also necessary for the structure of the business. Although by instalment, the purchase was in the nature of a onceand-for-all outgoing for the purchase of an enduring asset, not a regular and recurrent payment for the use of an asset. Further, the High Court held that evidence did not establish that the purpose of purchasing the GMEs was to preserve but not enhance the goodwill of the business. The value of the GMEs to the trustee was also not solely attributable to the effect that the GMEs had on goodwill. Section 40-880 of the Act did not apply. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ jointly. Appeal from the Full Federal Court allowed. Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email ayuile@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au

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

Children – Father’s application for parenting orders dismissed for non-compliance with s 60I (family dispute resolution) In Ellwood & Ravenhill [2019] FamCAFC 153 (6 September 2019) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed the mother’s appeal against orders made on the application of the father in respect of the parties’ daughter (17) and son (nearly 16). His application sought to have the existing, informal parenting arrangement (equal time with daughter but son spending no time with mother due to conflict between them) reflected in an order. In response, the mother applied for the dismissal of the father’s application as s 60I had not been complied with, arguing that the Court lacked jurisdiction. The father filed an affidavit as to his not filing a s 60I certificate, deposing that mediation had been tried by the parties but failed, which the mother disputed. At first instance, a judge of the Federal Circuit Court directed the parties to attend with a family consultant pursuant to s 11F of the Act. The mother appealed. In setting aside the order and dismissing the father’s parenting application, Kent J said (from [21]): “( … ) [T]he provisions [of s 60I(7)] emphasise the requirement for parties to a dispute about parenting orders to make a genuine effort to resolve that dispute with the assistance of family dispute resolution before application is made to the Court. Only if one of the exceptions contained in subsection (9) applies, can an application be filed without the parties having participated in family dispute resolution. Even then, it can be seen that subsection (10) requires the Court to consider an order for 40 | BRIEF DECEMBER 2019

the parties to attend family dispute resolution with a family dispute resolution practitioner. ( … ) [28] … [T]he primary judge was in error in proceeding to hear the father’s application not having made any finding … that any of the exceptions in subsection (9) applied. In other words, the mandatory requirement of subsection (7) applied, and the primary judge was in error in proceeding to hear the application notwithstanding that that mandatory requirement had not been complied with.”

Property – Initial contributions of $4.97m (H) and $500,000 (W) to $12.5m pool assessed at 80:20 In Daly & Terrazas [2019] FamCAFC 142 (13 August 2019) the Full Court (Ainslie-Wallace, Aldridge & Austin JJ) considered a nine year cohabitation between a 47 year old husband and 44 year old wife. The parties’ 14 and 11 year old children lived with the husband and saw the wife on weekends and on holidays. Finding that the husband’s initial contributions were worth $4.97 million and the wife’s $500,000, Rees J at first instance said that during the parties’ relationship they “conducted their financial affairs independently” although “each party invested both formally and informally in properties owned by the other” ([10]) and “each contributed their money and their efforts to the enterprise of their family” ([59]). The $12.5 million pool excluded superannuation, which was worth $342,351 (husband) and $83,619 (wife). The wife had worked professionally and earned income from shares during the relationship. Rees J found that the parties’ contributions up to the date of trial were equal, but that their initial contributions warranted an 80:20 contributions based

adjustment. The wife then received a 10 per cent adjustment for s 75(2) factors, a division of 70:30 in favour of the husband overall. The husband appealed. In dismissing the appeal, AinslieWallace J (with whom Aldridge and Austin JJ agreed) said (from [20]): “In short, the argument as to the first ground, shorn of the lawyerly language of the submission, is: ‘20 per cent is too much’. ( … ) [22] The appeal ground invites this Court to do the impermissible, to substitute our determination of what figure is appropriate to reflect the parties’ contributions instead of her Honour’s. Nothing put to us persuades me that we ought to, and further, her Honour’s conclusion was entirely open to her on the evidence. The outcome is not unreasonable or plainly unjust such that a failure properly to exercise the discretion may be inferred (see House v The King (1936) 55 CLR 499 at 505). [23] In my view his challenge has no foundation and must fail.”

Spousal maintenance – Applicant may reasonably claim expenses not being incurred due to inability to pay In Garston & Yeo (No. 2) [2019] FamCAFC 139 (16 August 2019) Aldridge J (sitting in the appellate jurisdiction of the Family Court of Australia) heard Mr Garston’s appeal against an interim order for spousal maintenance after the breakdown of a same sex marriage. Mr Yeo sought maintenance of $2,500 per week, Judge Boyle at first instance accepting that Mr Yeo was not in good health and although looking for work, he had been unemployed since 2014 while receiving a $1,000 weekly allowance

from Mr Garston. It was ordered that the stipend continue at $1,000 per week, the Court rejecting $1,500 of Mr Yeo’s claimed expenses, including rent, skincare and holidays. In refusing leave to appeal, Aldridge J said (from [24]): “The appellant correctly submitted that a person seeking an order for spousal maintenance must satisfy the court, on the evidence before it, that he or she cannot support himself or herself adequately as set out in s 72(1) of the Act (Hall v Hall [2016] HCA 23 … at [8]). ( … ) [29] A claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves (s 75(2)(d) of the Act) and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus is on what is necessary for support. [30] Often, and conveniently, the identification of reasonable needs may be done by reference to expenses that are currently being incurred but obviously, that will not be possible or lead to adequate support in all cases. It is reasonable to claim that you need more money than you are currently spending (Seitzinger & Seitzinger [2014] FamCAFC 244 … at [53]). Here too, the Financial Statement was prepared very shortly after separation when it would be more difficult to identify the cost of reasonable needs. [31] It follows that the submission that because a claim is an estimate it must be disregarded cannot be accepted. It also follows that verification of expenditure is not necessarily required. ( … )”

Property – De facto partner for 18 months proved “substantial contributions” but not “serious injustice” if order not made In Beaumont & Schultes [2019] FCCA 1831 (17 July 2019) Judge Turner

heard Ms Beaumont’s application for a property order following a childless de facto relationship lasting 18 months, during which the applicant assisted with renovating properties that had been acquired by the respondent in his sole name. The Court (at [48]) reviewed the authorities as to the meaning of “substantial contributions” for the purpose of s 90SB(3)(c)(i). While the applicant’s contributions to the welfare of the family were found not to have been “substantial” ([126]), it was found [116]) that her non-financial contributions pursuant to s 90SM(4)(b) were substantial. They included cleaning, assisting with installation of fence pailings and with spray painting of the fence, sanding the front deck, painting kitchen cupboards, assisting with preparation for the front of the house, doing ‘dump runs’, collecting items from hardware stores and preparing food and drinks. However, in dismissing the application, the Court said (from [135]): “I find … that the applicant would not suffer a serious injustice if an alteration of property interests did not occur. [136] I make this finding based on the following: a. This is a very short relationship of some 18 months. b. The applicant is leaving the relationship in a similar financial position as the applicant entered it … being in full time employment and part way through her degree. c. The applicant made no financial contributions to the acquisition, renovation, maintenance or preservation of the … properties.

applicant’s contributions is small. e. In any event the evidence supports that the renovations as a whole added very little to the overall value of the properties with much of the renovation required to make the properties liveable and rentable. f. The applicant had the benefit of rent free living for the 17 months that the parties cohabitated. g. The applicant benefited from the financial support provided by the applicant on a day-to-day basis including his meeting the costs of outgoings, contributions towards food and entertainment and towards travel. h. The applicant had choices as to how to expend her earnings given these benefits and to penalise the respondent in the choices he made to acquire, improve and retain real property during that time would be unjust to the respondent. [137] As the applicant has failed to establish a serious injustice then the gateway offered by section 90SB(3)(c) shuts resulting in the court not having the jurisdiction to alter property interests due to the breakdown of the de facto relationship.”

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

d. Whilst the non-financial contributions by way of renovations … were accepted as substantial, in the scheme of the extent of the renovations undertaken, the added value to the properties by the nature of the

Open House Perth 2019 #OHP19 #LoveYourCity The Law Society's Old Court House Law Museum

Open House Perth is a free, two-day festival that celebrates the best of architecture, design and the built environment in Perth and its surrounds. It gives visitors unprecedented, behind-the-scenes access to Perthâ&#x20AC;&#x2122;s best places and spaces. From commercial towers to residential masterpieces, heritage gems to modern civic spaces, hidden locations to beautifully realised gardens and some of Perthâ&#x20AC;&#x2122;s leading architecture and design studios, Open House Perth invites people to explore destinations that are not usually accessible to the public for one weekend only. This year, the Law Society's Old Court House Law Museum was part of the Open House Perth weekend, opening on 16 and 17 November along with over 120 other destinations to explore. Over the course of the weekend, 400 visitors called into the Old Court House

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to learn about its architectural features. Conversations ranged from social history, legal traditions and practices, Aboriginal customary law and land changes in the Stirling Gardens precinct. Newly framed artworks enlivened the court room space with fresh perspectives on not only the Old Court House, but also the lush gardens that surround the building. The artworks by Amy Heap, Hubert Smeed and Cedric Emanuel all articulate continuity and change to the external features of the Old Court House. The Old Court House Law Museum is grateful to its team of volunteers, Tony, Randy, Barb and Freda for volunteering

during the Open House Perth weekend. Their enthusiasm, knowledge and welcoming presence was appreciated by all those who engaged with the most valuable object in our collection: the Old Court House! Did you visit the Old Court House Law Museum during Open House Perth? If you did and have a story or memory to share, please email museum@lawsocietywa.asn. au.

The Tale of the Pregnant Passenger By John McKechnie QC

The TSS Kanowna, built in 1902, marked a new era in the Australian coastal trade. It had 'superb' accommodation for 270 passengers and a cargo carrying capacity for 7,000 tons. Commissioned by the owners for the Sydney to Perth route (stopping at Melbourne and Adelaide), it was a comfortable way to travel. It made 86 voyages to Fremantle, carrying over 11,000 passengers before running aground off Wilsons Promontory and sinking in 1929. All of that was in the future though when Mr De Pledge and his wife bought tickets for ÂŁ15 for passage from Adelaide to Perth in December 1903. When Mrs De Pledge went on board before the Kanowna sailed, a stewardess noticed that Mrs De Pledge was in an advanced state of pregnancy. The stewardess asked if it would be wise for Mrs De Pledge to travel and she said that she would risk it. The baby was not due until late January, early February. The Captain was informed. Now the contract of carriage provided that the Captain could refuse to carry a passenger who was dangerously ill. The Captain decided that the pregnant Mrs De Pledge met that definition and refused her passage. She and her husband disembarked in Port Adelaide before having gone anywhere and for a time, had trouble finding a hotel that would take them. Maybe this is a common occurrence in December. There has been at least one other famous example. In due course on 5 February 1904, the world was deprived of another sandgroper but delighted by the appearance of a new croweater. The baby, christened Gwendoline Melina Victoria, grew up, married, passing away in 1988. Mr De Pledge sued the shipping company in the Adelaide local court where he lost, the court deciding the Captain had executed his discretion honestly. And so the matter went off to the full court. Justice Gordon found in favour of Mr De Pledge. He noted that after their luggage was loaded and they had been shown their cabin, Mr and Mrs De Pledge went on shore again and walked about for a couple of hours until the time for sailing. As he noted, "It is remarkable, by the way that the woman should have walked the streets for two hours at the time if she was 'dangerously ill'". He was forthright about the evidence "In my opinion, there is not a tittle of evidence that the woman was ill at the time, much less dangerously ill". What a marvellous word, 'tittle'. Maybe it will join the lexicon of modern judges.

Unfortunately for Mr and Mrs De Pledge, Justice Gordon's view did not find favour with his colleagues. Justice Boucaut avoided it altogether: "I am not going to express any opinion as to whether the woman was dangerously ill, nor to discuss what degree of pregnancy would justify a ship's Captain in refusing to take a lady as a passenger". Instead, Justice Boucaut fell back on the time honoured formula that it was reasonably open for the local court to reach its decision, so that was that. He also engaged in a bit of sophistry. "In fairness to the plaintiff, with whom I sympathise, I will not say that I might not have come to a different conclusion on the evidence if I had been called on to decide the case." After struggling with the double negative, I think the judge was telling Mr De Pledge "you nearly won, but not quite". No doubt words of great comfort to Mr and Mrs De Pledge. The Chief Justice on the other hand was as emphatic in his opinion as Justice Gordon was in his: "there was ample (evidence) to justify the Captain in coming to the conclusion that it would not have been safe for the woman to travel in that condition and he was justified in refusing to take her". Chief Justice Way then entered the world of medicine. Although agreeing that pregnancy is not in itself an illness, â&#x20AC;&#x153;it is common knowledge that there are troubles and inconveniences to it." "The dictionary definition of 'ill' includes 'causing pain, discomfort or inconvenience'. These terms are all applicable to pregnancy or confinement." Some might say that the same could be said about a headache. Sir James Way's knowledge of the illness of pregnancy may have been even more vicarious than for males generally. He did not marry until he was 62. His wife was 44 with a grown up family. Nowadays, most airlines allow pregnant women to travel up until about a month before confinement. There are no more coastal steamers. (Adapted from De Pledge v Australasian United Steam Navigation Company Ltd (1904) SALR).

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

Back in 2017 your Dog described a trip to Spain, and the history of the conquest of the Andalusian regions by the Muslims. It was in 1236 that Ferdinand captured Córdoba after which its reputation for development of astronomy, mathematics and botany went backwards. It was from 1480 onwards the Catholic monarchs commenced persecution of those who did not practise Christianity, in particular Jews and Muslims. It was with some interest, therefore, that your Dog recently noticed the special leave application and dispensation in Pell v The Queen, Case M112/2019. The decision of the Supreme Court of Victoria (Court of Appeal) on 21 August 2019 is the subject of the appeal in which Justice Weinberg delivered a dissenting judgment, on parts of which the appeal is based. It would be an interesting outcome if the appeal later succeeds on the basis of that judgment: it would be a tribute to the independence of thought of judges where the merits of the case under decision and the ability of the presiding officer determines the outcome, rather than some racial, religious or other idiosyncrasy as happened in the 1400s. The special leave application considered the question whether the Court of Appeal majority erred in finding that their belief in the complainant required the Applicant to establish that offending was impossible to raise and leave reasonable doubt. The ancillary question is whether the majority erred in concluding that the verdicts at trial were not unreasonable, as there remained reasonable doubt as to existence of any opportunity for offending to have occurred. The result of the Rugby World Cup was, to your Dog, brilliant. England played outstanding rugby throughout, but the pity is that when they were defeated by a better team on the day, in a petulant display of poor sportsmanship they refused to wear the silver medals awarded to them. One wonders at that degree of petulance amongst professional sportsmen, but there it is. For South Africa and the Springboks it was a wonderful outcome. One remembers the elation and excitement when Nelson Mandela was released from gaol, and subsequently led his country to support and win the World Cup in 1995. At that time the team included one African player. In the recent event more than a third of the members, including the captain and the two try scorers, are of African lineage. The result of one game does not determine the social and economic future of a country, but your Dog hopes that the difficulties of the past few years following the death of Nelson Mandela will be overcome and erased, and that the country as a whole will once again come to play a prominent role in southern Africa. It will be interesting to see the outcome of the UK election. Surprisingly, there are already elements of anti-Semitism in some of the electioneering. It was as recent as 1948 that the Universal Declaration of Human Rights was made.

44 | BRIEF DECEMBER 2019

Article 2 records that everyone is entitled to the rights and freedoms set out in the Declaration without distinction such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Sadly, it seems that not much has changed since then. True, there are in Australia many things that have occurred to equalise the position between different genders and races, but there is probably still a long way to go. Sadly, there are so many ways where, and in which these rights still are not recognised, or are merely the subject of lip service. Article 5 of the Declaration decrees that no-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, yet how often that has occurred and continues to occur, even in the leading democracies of the world! Some years ago, your Dog watched the film Les Intouchables, directed by Olivier Nakache and Éric Toledano with Omar Sy, Franҫois Cluzet and Audrey Fleurot as the lead actors. It became the second biggest box office hit in France. On a recent flight to Melbourne, your Dog noticed the film Untouchable included in the premier film selection, which he viewed. It turned out to be a documentary about the film producer Harvey Weinstein and the allegations of sexual abuse which relate to him, directed by Ursula Macfarlane. The film focuses on interviews with some of Mr Weinstein’s accusers. Whether or not the allegations are accurate, your Dog was appalled to watch and learn of the allegations, the period to which they relate, and the apparent bulletproof nature of Mr Weinstein and his colleagues. It is a strange world where circumstances of that sort proliferate and perpetuate, with apparently little done to stop them. One would hope that consistent with the principles of the Universal Declaration these things would stop. Disappointingly, your Dog recognises that is unlikely ever to be the case. The days have flown by, as we head for Christmas 2019 and the dawning of 2020. Hopefully it will be a year in which a resolution of the issues in the United States between Republicans and Democrats and their President will be resolved, a degree of normality will return to world trade, in particular noting China and the USA are our most important trading partners, and the UK will succeed in its resolve to depart from the European Union. That’s a lot to have on the agenda! It will be interesting to see how it pans out. Your Dog

Law Council Update

Politicians should recognise mandatory sentencing will not make children safer

are “inappropriate” and “depart from the fundamental principle that the punishment should fit the crime”.

The Law Council of Australia is calling on all federal parliamentarians to not support the Federal Government‘s misconceived mandatory sentencing provisions in the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019.

Mr Moses SC said: The government should recognise that looking tough on crime is not the same as being tough on crime and withdraw this legislation. Parliamentarians should not be wedged into supporting measures that won’t work but will throw up a range of unintended consequences.”

Law Council President, Arthur Moses SC, said all Australians agreed that any crime against a child is abhorrent and worthy of the community’s condemnation by the imposition of significant sentences.

“The Law Council supports a comprehensive review of Commonwealth sentencing practices for child sex offences, but mandatory sentencing is a hoax on Australian families who want the government to contribute resources for our police and community service workers to detect and prevent offending.”

But in a dissenting report on the Bill to the Senate Legal and Constitutional Affairs Committee, Labor Party senators rightly concluded “the introduction of mandatory sentencing is likely to create significant new problems – both for children who are victims of sexual abuse as well as for the effective and just operation of the courts”. Mr Moses SC said this conclusion is supported by domestic and international evidence that demonstrated that mandatory sentencing does not make our children safer but leads to more defendants not pleading guilty and delays in trial courts hearing matters. This prolongs stress and anxiety for victims and their families. “Introducing mandatory sentencing sounds like getting tough on crime but it is pure rhetoric,” Mr Moses SC said. “The actual evidence demonstrates more resourcing for police and community services to detect children at risk is more effective to keep children safe than mandatory sentencing which deals with the tragic consequences after a heinous crime has been committed. The Federal Government needs to provide more funds to the states and territories to tackle this scourge not using the same old law and order rhetoric. “There is no evidence that suggests mandatory sentencing reduces crime. The US and other jurisdictions are winding back mandatory sentencing regimes because they don’t work.” Mr Moses SC noted that Labor’s national platform stated the party opposed mandatory sentencing as it has not proved effective in reducing crime or criminality. “On behalf of Australia’s legal community, I urge Labor to remain clear about its values and adhere to these as it did the last time this legislation was introduced by the government in 2017.” In 2018, Centre Alliance also opposed mandatory sentences stating they

46 | BRIEF DECEMBER 2019

In its submission to the inquiry, the Law Council raised several key concerns, including that: •

proposed mandatory minimum sentences could apply to consensual conduct between teenagers, which is not uncommon in the digital age;

•

proposed mandatory minimum sentences do not allow the court full discretion in cases of individuals with significant cognitive impairment or mental illness;

•

mandatory minimum sentencing may result in outcomes which are unjust.

“The whole point of the Voice to parliament is to ensure that our First Nations peoples have an opportunity to propose bills, be consulted on bills, and to express their views on bills before they are enacted as laws of the Commonwealth which may impact upon First Nations peoples. This includes bills about fundamental issues which matter on the ground to First Nations peoples, such as health, welfare and education. “What is being proposed is a voice to government, not to parliament. If it is not constitutionally enshrined but legislated it could be abolished at any time if the government does not like what it was saying. “A Voice to parliament has some degree of public accountability on the part of the parliament while a voice to government does not, something that is of great potential significance if the government has closed ears.” But Mr Moses SC said the Law Council would engage with the work of the Senior Advisory Group. “I have deep respect for the co-chairs of the group, Marcia Langton AM and Tom Calma AO. I particularly note the comments by Professor Langton that she supports the Voice to parliament and that the Uluru Statement requires ‘design work to turn it into a reality that governments can understand’.

Uluru Statement should be respected

“The Advisory Group should be allowed to consult on an option that will allow the Voice to be constitutionally enshrined.”

A voice for Indigenous Australians must be heard by parliament not just by the government if it is to have a meaningful impact on our laws and the administration of justice, says Law Council of Australia President, Arthur Moses SC.

Mr Moses SC noted two former chief justices of the High Court, Murray Gleeson AC, QC and Robert French AC had addressed concerns that a constitutionally-enshrined Voice to parliament would be a “third chamber”.

Responding to the announcement by Minister for Indigenous Australians Ken Wyatt AM of a co-design process for an “Indigenous voice to government”, Mr Moses SC said it was unfortunate the roadmap laid out by the Uluru Statement for a constitutionally enshrined Voice to parliament had not been understood, let alone adopted by the Morrison Government.

“As former Chief Justice of the High Court, Murray Gleeson AC, QC emphasised in July, it is a Voice to parliament, not a Voice in parliament,” he said.

“Let me be clear these criticisms are not directed towards Minister Wyatt, but those within the government who unfairly and in a pre-emptive manner dismissed the concept of a Voice to parliament without properly understanding it,” Mr Moses SC said. “The Uluru Statement from the Heart was conceived from one of the most comprehensive consultations of Indigenous Australians in our nation’s history.

“It is vital that the development of meaningful policy and law reform at federal, state and territory levels, is informed by Indigenous experience and advice. The stark reality is that Indigenous affairs in this country have consistently faltered in large part because parliament has not listened to the voices of Aboriginal and Torres Strait Islander peoples. “What is being proposed now disrespects our First Nations peoples by ignoring the Uluru Statement and ignores the powerful support of the Voice to parliament by former Chief Justices French and Gleeson.”

Professional Announcements Career moves and changes in the profession

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Shine Lawyers is excited to announce the appointment of Kenneth Rukunga as Senior Associate in our Perth office.

Pragma Lawyers announces the appointment of Lydia Litton as Associate.

Kenneth has a wealth of experience in personal injury matters, particularly in workers compensation, dependency matters Kenneth Rukunga and third party actions. Kenneth is passionate about protecting his clientâ&#x20AC;&#x2122;s interests and brings his passion to the team. We extend our congratulations to Kenneth and Shine Lawyers.

Lydia graduated from the University of Notre Dame with a Bachelor of Laws (Honours) in 2012. She was awarded numerous prizes Lydia Litton including for Legal Research and Writing, Evidence and Advocacy. Lydia was admitted to practice in the Supreme Court of Western Australia in 2014 and in the High Court of Australia in 2015. Prior to joining Pragma, Lydia worked for seven years in the Dispute Resolution team at a national law firm that was recognised as a Band 1 Practice in the Asia Pacific Legal 500.

1970 â&#x20AC;&#x201C; 2020

An elegant black tie evening bringing together the WA legal profession. A historic occasion not to be missed, join us as we reflect on the contributions the District Court of Western Australia and its members, past and present, have made to the State of Western Australia over the last 50 years. Enjoy great food, fine wine, music and company; the night will also feature moments of celebration and reflection.

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Classifieds Missing Will

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Would anyone holding or knowing the whereabouts of a Will for the late DIANE TULIP late of 40 Parade Street, Albany, Western Australia born on 9 April 1965 who died on 14 January 2019 please contact Tyn Receveur at DAVID MOSS & CO. PO Box 5744 ALBANY WA 6332 or email tr@dmoss.com.au

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New members joining the Law Society (November 2019) Restricted Practitioner Miss Sabrina Maine South Hedland Pilbara Community Legal Service Inc. Mr Steven Morganti Avon Legal

Associate Membership Miss Ruvi Chipangura Edith Cowan University Mr Thomas French Murdoch University - School of Law Miss Sanella Kristic The Futures Group Dr Marco Rizzi The University of Western Australia - Law Faculty Mr Ryadh Seddiki The University of Western Australia - Law Faculty Ms Kim Wilson Edith Cowan University Business & Law

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

With thanks to our CPD partner

DECEMBER 2019 Membership Events Thursday, 5 December End of Year Celebration

FEBRUARY 2020 Membership Events Friday, 21 February YLC Beach Volleyball Thursday, 27 February Society Sundowner

Tuesday, 25 February 5.00pm – 6.00pm Enforcement of Judgments

CPD Seminars

Thursday, 27 February 9.00am – 12.15pm CPD 123 4U

Friday, 7 February 1.00pm – 2.00pm Ethics on Friday: Ethics and Social Media WEBINAR

Friday, 28 February 12.30pm – 2.00pm Banking Royal Commission – The Aftermath

Wednesday, 12 February 3.00pm -5.00pm Drafting Wills Masterclass

Friday, 28 February 4.00pm – 5.00pm Ethics on Friday: Cybersecurity – how to make your practice safer

Thursday, 13 February 4:30pm – 6:00pm Twilight Thursday: Contentious Business Determinations – 2020 Review: What’s in the mix?

MARCH 2020 Membership Events Thursday, 5 March YLC Logo Launch Sundowner Thursday, 26 March Welcome to the Profession Breakfast CPD Seminars Thursday, 12 March 4.30pm – 6.00pm Twilight Thursday: Can the Law Help People with Body Image Issues: Body Image Law

Friday, 20 March 1.00pm – 2.00pm Ethics on Friday: Getting it right WEBINAR Tuesday, 24 March 9.00am – 11.00am Future proofing your firm Monday, 30 March 9.00am – 12.15pm CPD 123 4U

Wednesday, 18 March 9.00am – 12.15pm CPD 123 4U

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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