Brief March 2019

VOLUME 46 | NUMBER 2 | MARCH 2019

The Honourable Stephen Thackray The Rule of Law and the Independence of the Judiciary: Values Lost or Conveniently Forgotten?

Also inside WA to Join Legal Profession Uniform Law Trials and Tribulations Interview: Verity Long-Droppert Issues from the 2018 Review of the Contentious Business Determinations Vale the Hon Geoffrey Miller QC Farewell to the Hon Justice Michael Barker

TAKE CONTROL of your CPD needs NOW ist L o D o T : on i t u l Unlimited live seminars* Reso ts Face-to-face | live streamed webinars n i o p D P C Unlimited eLearning seminars* Get Access 24/7 | wherever you choose ey n o m e v a e S m A library of seminar papers* i t ore Free to download m up e e Fr CPD FREEDOM ress Only $600 or $300 t s ce u d e R Contact us today ty * i l i b i lex f on (08) 9324 8640 t Ge

All done with CPD Freedom For full details and how to purchase, please visit lawsocietywa.asn.au/cpdfreedom *

TERMS, CONDITIONS, FEES AND EXCLUSIONS APPLY. INC GST.

Volume 46 | Number 2 | March 2019

26

CONTENTS

16

FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

34

40

ARTICLES 08

16

The Rule of Law and the Independence of the Judiciary: Values Lost or Conveniently Forgotten?

Farewell to Chief Judge Stephen Thackray from the Family Court of Western Australia

20

Trials and Tribulations Interview: Verity Long-Droppert

22

Wanted: Lawyers Who Offer High-Quality Pro Bono Legal Advice

23

The Law Society Lawyer of the Year Awards

24

CPD Summer Getaway Event Review

26

Elder Abuse and the Family

34

Issues from the 2018 Review of the Contentious Business Determinations

39

Vale the Hon Geoffrey Miller QC

40

Farewell to the Hon Justice Michael Barker from the Federal Court of Australia

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

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

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

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 Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, Natalie Connor, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome.

For details, contact brief@lawsocietywa.asn.au

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

46 Law Council Update

Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Emma Griffiths, Karina Hafford, Matthew Howard SC, Joanna Knoth, Fiona Low, Denis McLeod, Jodie Moffat, Shayla Strapps, Paula Wilkinson

04 Editor's Opinion

47 Professional Announcements

Junior Members: Zoe Bush, Brooke Sojan, Demi Swain

43 Quirky Cases

48 Classifieds

44 Drover's Dog

48 New Members

45 Cartoon

49 Events Calendar

Country Member: Kerstin Stringer Chief Executive Officer: David Price

01

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

Welcome to the March edition of Brief. It has been a busy start to the year for the Law Society and the profession, with a farewell ceremony for the Hon Michael Barker QC, departing from the Federal Court (my remarks from the ceremony are published in this edition of Brief) and welcome ceremonies for Chief Judge Gail Sutherland, taking up the role from the Hon Stephen Thackray in the Family Court of Western Australia and Judge Ciara Tyson to the Family Court of Western Australia (who has more recently been appointed as a Justice of the Family Court of Australia) and the Hon Stephen Lemonis to the District Court. As well the Hon Darren Jackson has recently been appointed as a Justice of the Federal Court of Australia. We have had our first Society Sundowner of 2019 and the CPD Summer Getaway.

You can read more about the latter in this edition of Brief.

The Law Society’s Council met for the first time in 2019 on Tuesday, 26 February.

We were delighted to welcome our newly elected Councillors Vice President and Treasurer Rebecca Lee (returning after a short break), Demi Swain, Joanna Knoth, Shayla Strapps, Nathan Ebbs (also returning after a short break) and Matthew Howard SC. I look forward to working with them and those in the second year of their term this year, as we seek to advance the interests of our members, the legal profession and the community.

Western Australia Agrees to Adopt Legal Profession Uniform Law As you may be aware, it was announced in late February that Western Australia had agreed to adopt the Legal Profession Uniform Law. The Law Society welcomed this announcement, which was made by the Attorney General, the Hon John Quigley MLA. 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. A single, uniform set of professional conduct rules providing inter-jurisdictional consistency can only benefit consumers 02 | BRIEF MARCH 2019

of legal services, the legal profession and regulators, especially with national and international firms now being commonplace.

The Attorney General has advised that legislation will be introduced to the WA Parliament later this year to apply the Uniform Law in this State, with WA to formally join the scheme on 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. You can read a further update on the Legal Profession Uniform Law Scheme from Joshua Thomson SC, Solicitor General of Western Australia, on page 3.

International Women’s Day Friday, 8 March marks International Women’s Day. This year’s campaign theme is #BalanceforBetter, which promotes a gender-balanced world.

As I noted in my report in February’s Brief, 2019 will see a continuation of work towards the strategic objective adopted by the Law Society in March 2016 of gender diversity and advancement of women in the legal profession. In this endeavour, the Law Society can call upon the expertise and knowledge of a Council which includes 12 women (from a total of 20).

New Law Society Professional Standards Scheme Commencing 1 July 2019 On 15 February 2019, the Professional Standards Council of Western Australia resolved to approve the Law Society’s

new Professional Standards Scheme that will commence on 1 July 2019. The Professional Standards Scheme provides law practices with the opportunity to limit liability in the event of a claim.

Participation in the Society’s Professional Standards Scheme continues to grow.

As at 25 February 2019, the Scheme had 1,550 participating members compared to 1,438 participating members for the same period in 2018.

Over the coming months, the Law Society will provide further information to members in relation to the new Scheme and the benefits it can provide. All enquiries regarding the new Professional Standards Scheme should be directed to the Scheme Coordinator at pss@lawsocietywa.asn.au.

Law Mutual (WA) Insurance Arrangements At its recent meeting, the Law Society’s Council approved the 2019/20 insurance arrangements for Law Mutual (WA). Law Mutual (WA) insureds will receive their invoices in the coming weeks. Rates are slightly higher than the previous year, due to increased claims activity and a generally hardening PI insurance market.

Being Well in the Law The Law Society recently launched Being Well in the Law, a health and wellbeing resource and guide for lawyers. The publication, originally developed by the Law Society of New South Wales, has been adapted by the Law Society of Western Australia to ensure it is relevant to the needs of local lawyers and to reflect WA specific resources. I thank the Law Society of NSW for allowing the publication to be adapted in this manner.

Being Well in the Law can be found on our website at lawsocietywa.asn.au/ lawcare-wa/health-and-wellbeing/#workand-career.

Don’t forget, as a member of the Law Society you have complimentary access to LawCare WA, our holistic health and wellbeing programme. You can find out more by visiting lawsocietywa.asn.au/ lawcare-wa, or, if you need assistance, call 1300 687 327.

Update on the Legal Profession Uniform Law Scheme

By Joshua Thomson SC Solicitor General of Western Australia There have been two recent developments in relation to Western Australia joining the Legal Profession Uniform Law Scheme.

The first is that WA has finalised negotiations with the States of NSW and Victoria for the terms of an Intergovernmental Agreement or IGA. WA and NSW have now signed it. It is anticipated that Victoria will do so shortly. The IGA implements a set of principles which were agreed between the three jurisdictions late last year.

The second development is that approval has been given by the government for drafting the Legal Profession Uniform Application Bill (WA), to replace the existing Legal Profession Act 2008 (WA).

The IGA provides for an expected timeframe for the implementation of its terms by 30 June 2020. If implementation has not occurred by 30 June 2021, or such other time as has been agreed between the three jurisdictions, the previous bilateral IGA which existed between New South Wales and Victoria revives. Realistically, the WA government anticipates that the Legal Profession Uniform Application Bill will be introduced into Parliament in the second half of 2019, and should be passed by the end of this year. There will then be a need to work out transitional arrangements, and make preparations for the implementation of the Scheme. It is presently anticipated that it will come into effect on 1 July 2020.

There are several important institutions within the framework of the Scheme.

The first is the Standing Committee of the Attorneys-General of each jurisdiction. The Standing Committee has important functions under the IGA and under the Uniform Law. The second important institution is the Legal Services Council, which is constituted under the

Uniform Law. It makes Uniform Rules and monitors their implementation to ensure consistency across participating States. The third important institution is the Legal Services Commissioner, who is responsible for the operation of the Legal Services Commission.

The Commissioner has the objectives of promoting compliance with the requirements of the Uniform Law and the Uniform Rules, ensuring the consistent and effective implementation of the Uniform Law and the Uniform Rules, and raising awareness of the Scheme.

There are also several important instruments that should be mentioned.

The first is the Uniform Law, which provides for the framework of the Scheme. There are also Uniform Rules and Uniform Regulations which are made pursuant to the Uniform Law. The Uniform Rules underpin the operational detail of the Uniform Law. They include the General Rules, which are about such matters as practising certificates and trust monies. They also include the Admission Rules, concerning the qualifications for admission to the legal profession and the Conduct Rules, which set out ethical conduct rules for practitioners.

One of the important features of the IGA is that it provides that the Uniform Law, the Uniform Regulations and the Uniform Rules cannot be amended without the unanimous agreement of the Standing Committee. This is important, because it prevents the whole framework of regulation from being altered without the consent of the Attorney-General of WA. It is a significant advantage of WA being an early participant in the Uniform Scheme.

Another important feature of the IGA is that at least one member of the sevenmember Legal Services Council has to be from WA. As well, the appointment of a Legal Services Commissioner has to be with the unanimous approval of the Standing Committee.

Committee. That is because the triennial operating budget of the Legal Services Council has to be unanimously approved by the Standing Committee.

The obligation of parties to the Scheme to make a funding contribution is in proportion to the total number of legal practitioners within the Participating Jurisdiction. The obligation to make such contribution only arises at the time when the Uniform Law is implemented in a jurisdiction.

The IGA provides that the role and responsibilities of the Standing Committee is to develop and ensure consistent policy for the regulation of the legal profession and perform the functions allocated to it under the Uniform Law. It is agreed that the Standing Committee will not intervene in the daily operations of the Legal Services Council, the Legal Services Commissioner or a designated local regulatory authority. The designated local regulatory authority is responsible for the determination of applications for admission to the legal profession in a jurisdiction, the renewal of practising certificates, and individual complaints and disciplinary matters. In WA, the designated local regulatory authority will be the Legal Practice Board, and it will delegate some of its regulatory functions to the Legal Profession Complaints Committee.

The progress which has been made in moving WA towards joining the National Uniform Legal Profession is substantial.

It will provide uniformity of access to the market for legal services, and ought to benefit our local legal profession while at the same time retaining many of the existing features of our present method of regulating legal practitioners. It is anticipated that a steering committee will be set up to liaise between practitioners, the Law Society, the Legal Practice Board and the government to ensure a smooth transition for WA in joining the Scheme.

The funding of the Scheme is also subject to the control of the Standing

03

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

As the 2019 legal year continues to kick into gear, this month’s Brief contains an array of items on diverse topics. Many thanks again to all who contributed and sent in material, especially novel items which are much appreciated.

Featured items include former Family Court Chief Judge Thackray’s David Malcolm Memorial Lecture upon the rule of law and independence of the judiciary and former Chief Judge Thackray’s farewell speech. In addition, we have Law Society President Greg McIntyre SC’s speech to farewell Federal Court Justice Michael Barker.

Sadly, this edition also contains an obituary for the Hon Geoffrey Miller QC, a towering figure in the law in this State, a former President of the Law Society and Supreme Court Justice, and a great loss to the profession.

These items provide an important reminder of the need for a strong and independent judiciary, and legal practitioners, and for characters in the law of great integrity and distinction (and how fortunate Western Australia has been, and is, in this regard).

March is often associated with the ominous ‘Ides of March’. Though, it should be noted that 20 March is the UN’s far more upbeat ‘International Day of Happiness’. This is one instance where the UN seems to have narrowly missed the mark – the AFL season doesn’t start until 21 March.

The Ides of March’s hold on being the most foreboding date in March may have been weakened, when 31 March became the last day for accruing CPD points. The 31st might well be dubbed a National Day of Panic, as some practitioners scramble around, trying to confirm they have the full complement of points. The Law Society’s extensive CPD programme, including the recent Summer Getaway (covered in this edition) is a good way to avoid such last-minute panic.1 The Ides of March, however, still captures the classical and popular imagination due to the powerful imagery of the notorious assassination of Julius Caesar by the Roman Senate in 44BC. Nowadays, public scenes of frenzied violent mayhem by a group of people in weird and occasionally revealing clothing attacking a man, could actually be a Fringe Festival performance gone wrong (or performed exactly as intended)2 or 04 | BRIEF MARCH 2019

a particularly raucous episode of The Bachelor.

Of interest is the line delivered by Julius Caesar in Act 1, Scene 2 of Shakespeare’s play – to which the soothsayer responds with “Beware the Ides of March” – which is “Who is it in the press that calls on me? I hear a tongue shriller than all the music Cry "Caesar!" Speak, Caesar is turn'd to hear.”

In this context “press” means the crowd.

As such, in modern parlance from embattled leaders, it might be said that due to fake news, the fake press is the enemy of the press.

More modern events concerning questions of betrayal involving lawyers have presented themselves, both here and overseas. Locally, there has been the revelation of the exploits of the infamous and now revealed ‘Lawyer X’. Internationally, there has been the spectacle of President Trump’s former personal lawyer Michael Cohen turning super-grass on his old client and giving testimony before a House Committee: his opening statement reading like the official compendium of the pinned tweets of Cher, Kathy Griffin and Alec Baldwin.

Both events were quite extraordinary spectacles, but perhaps a sign of the times.

A most famous movie scene involving a lawyer turning against their client comes at the end of the Brian de Palma’s The Untouchables about Elliott Ness (Kevin Costner) and Al Capone (Robert de Niro), in the depiction of Capone’s trial for tax evasion in the midst of the prohibition era. At the conclusion of the (brilliant) movie, and after the trial judge switches a paid-off-jury for another jury, Capone’s lawyer takes it upon himself to pro-actively change Capone’s plea to guilty, and is then punched in the face by Capone for good measure – an act which apparently was not sufficient indication from the client that he didn’t want to plead guilty (the ending being an excellent example of Samuel Taylor Coleridge’s theory of “the Willing Suspension of Disbelief” in storytelling arts).3 The switching of the jury actually happened, though the lawyers’ switch to the guilty plea did not. The imprisonment of Capone for 11 years happened because the judge rejected a plea bargain agreement between prosecution and defence for 2½ years’ imprisonment.

And there was in fact an element of Capone’s conviction arising because it was not accepted that, as Capone’s trial lawyer submitted, "A lawyer cannot confess for his client."4 Specifically, there was a letter found from Capone’s tax lawyer, Lawrence Mattingly, which had offered to try to settle any tax liability of Capone, which had been denied. The letter itself quite expressly said that it “made without prejudice to the rights of the above-mentioned taxpayer in any proceedings that may be instituted against him. The facts stated are upon information and belief only” and then proceeded to speculate about hypothetical, and lowball, income figures.

It seems the defence’s arguments that a lawyer cannot confess for a client were rejected in favour of the prosecutor’s argument that “Suppose a murderer could put a sign on his gun, ‘This weapon is not to be used as evidence against me.’ What a refuge for criminals that would be!” and so the letter was admitted as evidence.

It is quite possible that Capone would have actually preferred, and regarded as more fair, being convicted in the way depicted in The Untouchables.

Finally, it seems apt to note, on the just-passed 90th anniversary of the St Valentine’s Day Massacre, that the decision to try Capone for tax evasion, rather than bootlegging or other crimes was, in many accounts, because the Attorney-General reasoned that “jurors (like almost everybody else) loved to drink but loathed tax cheats.”5 Some things perhaps never change.

NOTES: 1.

It seems the day of writing this Editorial is also the International Day of Shameless Plugs.

2.

It is sometimes difficult to tell.

3.

Or, as Ryan Reynolds as Deadpool put it in Deadpool 2, when breaking the fourth wall and commenting on the very movie he was in, after a fortuitous break: “Man, that’s lazy writing”.

4.

Al Capone Trial (1931): An Account by Douglas O. Linder (2011) law2.umkc.edu; “To: the prosecutor, with love from the defence counsel”, Ethical Grounds – The Unofficial Blog of Vermont's Bar Counsel, vtbarcounsel. wordpress.com.

5.

“Eliot Ness and Al Capone: The men, the myths and the Bad Man in the Dark”, Neely Tucker, The Washington Post.

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

UNRIVALLED LEGAL TALENT

Western Australia’s

LEGAL MARKET is changing...

ARE YOU READY? Contact Western Australia’s leading legal recruitment firm, and stay one step ahead of the curve.

Market Hot Spots Associate – Insurance Litigation

Partner – Commercial and Litigation

Associate/Senior Associate – Tax Lawyer

• Guide and mentor a group of junior and mid-level lawyers • Transportable client base of $200,000+

• Premier international firm looking for an experienced Tax Lawyer with 3 to 10 years’ PAE

• Complex and diverse range of professional indemnity, public liability and commercial litigation matters

• Opportunity for a Partner, SA/SC wanting to join a growing boutique law firm

• Work alongside several of WA’s leading Tax Lawyers in this highly successful team

• Significant autonomy and career progression on offer

• Top-tier firm, award winning team

• Sophisticated client base of private companies, businesses and HNW individuals

Chris Bates

Siemone Neutgens

Sharon Lotufo

Managing Director

Principal Consultant and Hub Team Manager

Principal Consultant

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

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

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

KBE LEGAL HUB P: 08 6467 7889 A: Level 18, 140 St Georges Terrace, Perth W: kbe.com.au

Letter to the Editor Steven Penglis SC Barrister, Fourth Floor Chambers

Dear Sir, Two recent Reasons for Decision involving (in different ways) delays by Judges in delivering judgements have prompted me to write to you and hopefully put the establishment of a Judicial Commission in Western Australia back on the Society's radar.

G v O [2018] WASCA 211 is a decision of the Court of Appeal (WA) setting aside orders made by a judge of the Family Court of Western Australia. The trial the subject of the appeal was heard over 8 days from 26 November 2014 to 5 December 2014. The trial judge delivered his Reasons for Decision on 25 May 2017, being just over 2½ years after the trial. The Court of Appeal said that a period of over 2 years "clearly constitutes" inordinate delay: [62]. The Court of Appeal noted "there was no explanation in the reasons for the delay in delivering judgment or of the steps taken to ensure that the delay did not deprive his Honour of the capacity to properly assess the evidence led at trial": [70].

The Court of Appeal held that "this is not a case ... where a miscarriage of justice arises merely from a failure to set out the steps taken to ensure that the delay in delivering judgment did not deprive the trial judge of the capacity to properly assess the evidence": [72]. However, the Court of Appeal held "it does, however, remain necessary for this court to scrutinise the findings of the trial judge, including creditbased findings, with special care and to be alert to the prospect that delay has led the judicial function to miscarry. When that is done in this case, it can be seen that the trial judge's reasons and factual findings in relation to the critical issue of the parties' common intention or mutual commitment were deficient": [73].

The Court of Appeal concluded that, in the circumstances, "a miscarriage of justice arises from the inadequacy of the trial judge's reasons and the factual findings made in relation to the parties' mutual commitment to a shared life": [96]. As it was "not in a position to itself make findings as to all the circumstances of the

06 | BRIEF MARCH 2019

parties' relationship, so as to itself form a view as to whether the parties were in a de facto relationship", the Court of Appeal ordered a new trial, noting that this was "a most deplorable result" which was "deeply regrettable": [98].

WZASX v Minister for Immigration [2018] FCCA 3363 is a decision of a judge of the Federal Circuit Court of Australia. It concerned an application pursuant to section 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to file an application pursuant to s. 476 of the Migration Act 1958 (Cth). It is recorded that the hearing of the matter took place on 27 November and 18 December 2013, with the date of the last submission (presumably in writing) being 4 August 2014. The decision (dismissing the application) was delivered on 22 November 2018, just short of 5 years from the original hearing date, and just over 4Âź years from the date of the last submission.

His Honour acknowledged "that these reasons for judgment have been very significantly delayed". His Honour explained "the essential reason for that is the case load in the Western Australian Registry of this Court over several years, which, as recently as November 2017, has been described by the Federal Court as "extreme": WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers, and in particular including the CB, Ms Pasha's Affidavit (which was not cross-examined on), all of the relevant submissions from both the applicant and the Minister, and the Transcript.

In those circumstances, the delay, which the Court very much regrets, has had no effect upon the Court's rationale in these Reasons for Judgment" [69].

It cannot be seriously disputed that "justice delayed is justice denied". As the Court of Appeal stated in G v O, "inordinate delay in

delivering judgment" may deprive a Court "of the capacity of properly assessing a party's case", resulting in "a denial of procedural fairness": [67].

Nor can it be seriously disputed that our Courts are under-resourced. Judges (and other officers) are thus not afforded appropriate time to consider and write decisions, with the inevitable result of delay beyond that which is acceptable.

To be clear, I make no criticism of the Courts for such delay. Any criticism for such delay lies squarely at the feet of Government.

However, it also cannot be seriously disputed that there is a small number of judges – and I am not by this letter suggesting that the judges involved in the cases referred to above are amongst that number – who repeatedly fail to deliver decisions on what comes anywhere close to a timely basis.

I acknowledge that it is open to the parties, directly or through their solicitors, to write to the heads of the relevant jurisdiction in order to complain about such delay. Notwithstanding the best endeavours of those heads of jurisdiction, it would appear that this is not always effective.

In 2013, the Law Reform Commission of Western Australia published a report in which it recommended the establishment of a Judicial Commission in this State (largely based on the New South Wales model) to deal with complaints against judges, including as to delays. In response to the Commission's discussion paper that preceded the report, the Law Society made a written submission which was substantially in support of the Commission's (then draft) recommendations.

The Legislature has recognised that a proper system of justice requires "a means of redress for complaints about lawyers" in order "to promote and enforce the professional standards, competence and honesty of the legal profession": section 401 of the Legal Profession Act 2008 (WA). As a result we have an independent statutory body to provide a means of redress for complaints about legal

practitioners, namely the Legal Profession Complaints Committee. In my opinion, it is difficult to comprehend the absence of an independent statutory body to provide a means of redress for complaints about judges.

Our system of justice requires every aspect of the court process to be prosecuted without undue delay. Unacceptable delay by practitioners or judges is inimical to the administration of justice. Repeated delays by a small number of judges over and above that which is necessarily caused by insufficient funding need to be addressed.

Of course, this is not the only issue which warrants the establishment of a Judicial Commission. There are numerous others. They are identified in the Law Reform Commission's Report. I commend that report to those who have not read it.

I acknowledge that those who oppose establishing a Judicial Commission point to the separation of powers and the importance of maintaining an independent Judiciary. I accept that those matters are of fundamental importance, but I believe they are matters which go to the function and powers of a Judicial Commission, not whether a Judicial Commission should be established at all.

I ask that the Law Society revisit this issue and lobby the State Government to "dust off" the Law Reform Commission's 2013 report and implement it.

Yours faithfully

Steven Penglis

07

The Rule of Law and the Independence of the Judiciary: Values Lost or Conveniently Forgotten?

By The Hon Stephen Thackray Former Chief Judge, Family Court of Western Australia David Malcolm Annual Memorial Lecture, 27 September 2018

I begin by acknowledging the traditional owners of the land on which we meet, the Wadjuk people of the greater Noongar clan and by paying my respects to their elders past, present and emerging. I also acknowledge and pay respect to all the other Aboriginal people of our country.

I am honoured to have been invited to deliver the fourth David Malcolm Memorial Lecture, shortly before the anniversary of David’s passing four years ago. I especially acknowledge the presence tonight of Mrs Kaaren Malcolm, Chief Justice Peter Quinlan and many other distinguished guests, colleagues and members of the faculty of Notre Dame University.

This university is the place where David spent many happy and rewarding and, I am sure, more tranquil times after his retirement as the 12th and longest serving Chief Justice of Western Australia. It is fitting therefore that people gather here each year to remember one of the greatest citizens and certainly one of the greatest jurists this State has ever produced.

The judges who have previously given this lecture were, in order of appearance, 08 | BRIEF MARCH 2019

Neville Owen, Robert French and Michael Barker of the Supreme Court, High Court and Federal Court respectively. Apart from their high offices and their brilliance, those three judges all had something in common with David Malcolm: integrity and independence – the essential attributes of any judge, most especially a head of jurisdiction.

The three previous lecturers also had another thing in common – they all had the privilege of knowing David much better than I did. As a very young lawyer, I worked for a firm of solicitors at 524 Hay Street, the modest building which then housed the tiny Western Australian Bar. David joined the Independent Bar in 1980, and I moved out of 524 Hay Street in the following year, by which time David had already taken silk and become President of the Bar! The closest I ever came to him in those days was when I trekked upstairs to Bar Chambers, clutching the $1.50 fee required to have an affidavit witnessed.

Winding the clock forward a quarter of a century, the Family Court of Western Australia was honoured when David, by then Chief Justice, sat on the bench at the ceremony at which I was welcomed as a judge. He bounded into our chambers that morning with that towering presence, that sense of energy

and that never-ending smile which were his trademarks. I was grateful for his presence, but I will always be indebted for the letter he sent to my Chief Judge afterwards, which for me characterised the generosity of his spirit. This being my last public speech before my farewell ceremony, I hope you will forgive me for thinking it appropriate that it is given in honour of a great man who took the time to be there at the start of my judicial career.

As I come to the end of my time as a Chief Judge, we have a new Chief Justice of Western Australia who is starting his journey in David’s footsteps.

At the same time, the Family Court of Australia, of which, until tomorrow, I am the senior Appeal Judge, prepares to farewell a Chief Justice for the second time in 12 months. This concurrence of events leads me to reflect on the nature of judicial leadership, and on David’s example and legacy in that role,

since judicial leadership is inextricably intertwined with my main theme, judicial independence.

An obvious, and regrettably current, circumstance in which the role of a Chief Justice as leader assumes prime importance arises when a court or some of its judges are under attack, whether from politicians, interest groups, or in the media. The leadership needed from a head of jurisdiction is now even more critical than it was in the past, when it was an accepted role of AttorneysGeneral to defend judges from attack, including attack by fellow politicians.

As many here know, the judges of the Family Court of Australia, both in its appeal and trial divisions, have this year experienced public criticism that is illinformed, inaccurate and unfair.

David Malcolm recognised the role Chief Justices should play in such circumstances. In an article in the Southern Cross Law Review, he pointed out: It is necessary to remind the public and the other arms of government that the judiciary is an equal and independent arm of the government.

The Chief Justice must be ready to speak for the judiciary of the nation, or of a State or Territory, on issues such as those that affect judicial independence and attacks on the judiciary.

Recognising the reciprocal nature of the obligation, he went on immediately to add: The Chief Justice has a responsibility to ensure that relations with the legislative and executive arms of the government are appropriate, mutually respectful and cordial.

David accepted that the formal powers of a Chief Justice “are in fact, quite limited”.

But he recognised the influential role a Chief Justice can and should perform in maintaining the delicate balance between the three arms of government, and also the importance of including the community we serve in this important discourse. Thus he wrote: The role of a Chief Justice is one of leadership. The Chief Justice is expected to be the spokesperson and representative of the judiciary ... in its dealings with the executive government and the community.

In my experience, Chief Justices agonise over the choices they must make as spokesperson. After all, as Chief Justice French emphasised, they are “but one amongst equals” and should therefore

speak – or remain silent – not for themselves but for the body of judges. It is essential therefore that a Chief Justice develops a mechanism by which he or she can share information about matters of policy with all the judges and gather their views on matters of importance to the court. The mechanism should ensure there is room for a range of views, and a culture where judges are able to express opposing views in a proper forum. In this way, Executive Government can be confident that any representations made are indeed the views of the judges.

Representations to government are usually best made privately, but there are times when a Chief Justice needs to speak publicly, especially when views critical of the judges have been aired publicly by representatives of the government. The propriety of doing so is recognised by guidelines adopted in 2014 by the Council of Chief Justices of Australia and New Zealand. Those guidelines contemplate comment where, for example, proposed laws relate “to the abolition of existing courts and the creation of new courts” and in respect of laws which affect “the jurisdiction and powers of the courts”. Unsurprisingly, the guidelines contemplate such comments being made by the head of jurisdiction, no doubt after consultation with the judges.

Of course one contribution a Chief Justice can always make to any debate is to ensure that the public has an accurate appreciation of the work of his or her judges. Chief Justices will have an understanding of the day-to-day work of the judges because they share in that work and have long experience of it from the other side of the bar table. As Chief Justice Malcolm said: So far as I am aware, all Chief Justices in Australia regularly sit in Court. It is inconceivable that a Chief Justice would act entirely as an administrator and never sit as a judge. A Chief Justice is chosen and appointed to be a judge and is expected to demonstrate leadership in that capacity.

There can be no doubt David Malcolm lived up to this expectation. Apart from running an efficient court, being the face of the judiciary to the West Australian community, and making many speeches in Australia and overseas, he also sat regularly both at first instance and on appeal. His reputation spread well beyond the borders of our own State, and it was therefore no surprise when he was asked to preside over a specially constituted bench of the New South

Wales Court of Appeal to hear a case involving a member of that court.

It was said at his farewell that David “led from the front, never shirking the difficult cases”. The importance of a Chief Justice leading his or her judges by example in deciding cases cannot be overstated. While each individual judge enjoys complete independence, a group of judges in my experience is no different to any other group in a workplace. The tone is always set from the top is an adage well worth remembering, and fundamental to all forms of leadership.

David Malcolm had amongst his many talents those of an outstanding sportsman. He would therefore forgive me for quoting from Australian cricket captain Ian Chappell who played his last test match in the same summer that David joined the Independent Bar. Chappell said this in a speech to the Wanderers Cricket Club, which was simply entitled Captaincy: Respect is vital to a captain. He must earn it in three categories: as a player, as a human being and finally as a leader.

Chappell went on to stress the importance of the skipper of the team being good enough to hold his place as a player, and criticised what he perceived to be the English method of selection which he felt did not always achieve this result, leading to the team playing “virtually one man short.” I am sure the judges of the Supreme Court of Western Australia never felt they were playing one man short under the captaincy of David Malcolm.

I will return shortly to the topic of team selection, as it is vital to a consideration of the title I have chosen for this talk – The Rule of Law and the Independence of the Judiciary: Values Lost or Conveniently Forgotten?

The rule of law and the independence of the judiciary were recurring themes in David’s writing and work. In fact, I contend that the most enduring of his legacies is the contribution he made internationally to these twin pillars of our democracy.

Amongst his many roles, David was Chair of the Judicial Section of LAWASIA and organised the Conferences of Chief Justices of Asia and the Pacific, of which he also served as Chair. The assemblies of those groups were arranged to coincide, so when they met in Japan in 2003, David gave not one, but two speeches, each dealing with aspects of judicial independence.

09

The David Malcolm Justice Centre, named in honour of the Hon David Malcolm AC QC

He commenced his address to the 10th Conference of Chief Justices in Tokyo with these words: It is almost universally acknowledged that one of the hallmarks of a democracy is the independence of the Judiciary. A Judiciary which exists merely to do a Government’s bidding or to implement Government policy provides no guarantee of liberty.

Once upon a time, most politicians accepted that truth. One in this mould was Winston Churchill – a great hero of mine. Churchill spent a lifetime opposing tyranny in all its forms, some of which we now see re-emerging in precisely the same insidious ways that occurred in his lifetime. Whilst never a lawyer or judge, Winston Churchill had a clear understanding of the role the judiciary performs in preserving our freedom from tyranny. He maintained that: The independence of the courts is, to all of us, the guarantee of freedom and the equal rule of law. It must, therefore, be the first concern of the citizens of a free country to preserve and maintain the independence of the courts of justice, however inconvenient that independence may be, on occasion, to the government of the day.

As our Chief Justice, David Malcolm was 10 | BRIEF MARCH 2019

similarly unwavering in his commitment to judicial independence. He spoke in defence not only of his court but of all courts and all judges. In my humble opinion he was the very model of a good Chief Justice who tries to work in harmony with the Executive Government, but never becomes its servant or mouthpiece.

David knew that judicial independence is indispensable to public confidence in the administration of justice. He knew also that it is not an end, but a means to an end. One of his contemporaries, Chief Justice Sir Gerard Brennan, had been at pains to point this out when addressing the Australian Judicial Conference in 1996: Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed.

David Malcolm did more than just talk about judicial independence. He was instrumental in the formal adoption by the Conference of Chief Justices of the Asia Pacific of what is known as the “Beijing Statement of Principles of the Independence of the Judiciary”. Under his leadership, ours was the first region in the world where such a set of principles

was adopted. His role in this regard was acknowledged by Chief Justice Wayne Martin in his valedictory oration at the sitting of the Supreme Court convened after David’s death.

I will return to the articles of the Beijing Statement in a moment. But first, I want to develop the topic of team selection, since it is central to any consideration of judicial independence.

Winston Churchill certainly understood its importance and he understood, in particular, how important it is to avoid the appearance of the process of selection of judges being associated with political considerations. After his visit to Italy in August 1944 following the fall of Mussolini, Churchill sent a message to the Italian people in which he emphasised, not for the first time, that “the price of freedom is eternal vigilance”. In answering the question of “what is freedom”, Churchill said that there are one or two simple tests by which the freedom of a country can be measured in the modern world. One of the tests he posed for any country was whether “their courts of justice [are] free of all association with political parties”.

The same point was made by the Right Honourable Beverley McLachlin, the former Chief Justice of Canada, who coincidentally was appointed Chief

Justice of British Columbia in 1988, the same year David Malcolm became the Chief Justice of Western Australia.

Mrs Malcolm tells me that their paths crossed over the years, and their thinking about judicial independence certainly coincided. In a speech called “The Decline of Democracy and the Rule of Law”, Chief Justice McLachlin gave some tips about what judges and heads of jurisdiction can do to preserve and promote judicial independence. She started off by saying that, as judges: We can educate the public and the politicians about what judicial independence means and why it is vital to our democracy and our social well-being.

Getting down to the specifics of team selection, her Honour went on to say: We should support an appointment process that appoints judges on merit, and not political affiliation.

And she immediately added: We must never allow ourselves to be co-opted by governments.

Delivering much the same message, Brennan CJ said to the 1997 Australian

persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.

Legal Convention: Treating Courts as political players will lead politicians to make political appointments, to offer personal or institutional rewards for judicial conduct that is politically desirable and to impose penalties for decisions that are politically unacceptable.

Mutual understanding of and respect for the functions of each branch of government is essential to rebuild and preserve an appropriate relationship between the judicial and the political branches.

Through the agency of David Malcolm and others, these sentiments now find formal expression in the Beijing Principles which I mentioned earlier.

Articles 11 and 12 provide as follows: 11. To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence.

12. The mode of appointment of judges must be such as will ensure the appointment of

David provided valuable commentary on the Beijing Principles in the 2003 Western Australian Law Review, where he wrote, echoing sentiments he had expressed in Tokyo a little earlier: It is necessary that the influence of the executive should be kept to a minimum in order to reduce potential for improper considerations. In the interests of public confidence in the impartiality of appointees, the selection process should be open and formal.

This brings me to the critical question – “how is Australia measuring up in 2018 to the Beijing Principles?” Is the appointment process “open and formal”?

Are appointments being made solely on the basis of competence and merit as we should not only hope but expect and demand? Or are some being made on the basis of political affiliation or personal

YOUR HOME STYLE to ARTIQUE ARTISTRY & CRAFTSMANSHIP AWARDED CUSTOM HOME DESIGNER & BUILDER Building with confidence since 1988

Build a High Quality Custom Home – Completed at less cost than your average Project Builder

• Free design by Designer/Builder • Designed for your site & lifestyle • Demolition & approvals included • Direct contact with Builder • Complete pricing – no hidden extras

Contact Malcolm Goode ‘Today’ for a personal obligation free appointment to discuss your new home ideas, direct with the Designer/Builder/Director himself providing the confidence of over 30 years’ experience in producing Great Homes.

T: 0418 959 741

www.artiquehomes.com.au

enquiries@artiquehomes.com.au

• Completion costs less than project builders – All inclusive costs • Awarded Quality & Trust since 1988 • Custom building – why settle for less?

• Experience the difference with Artique

Artique EST. 1988

HOMES

CUSTOM HOME DESIGNER & BUILDER

Experience – C onfidence – Trust

Artique Building Pty Ltd – BC #9669 Registered Builder/Supervisor: Malcolm Goode – BP #7816

11

connection or what the Executive expects those appointed will do to further some policy agenda?

made on grounds of suitability rather than the other considerations he mentioned?

After the unfortunate events that unfolded elsewhere in Australia a couple of years back, we might have had cause for optimism that governments would appreciate the potential for backlash if a perception arose that any person had been chosen for office for reasons other than suitability. It is therefore troubling that statements are now being made openly in the media questioning whether some appointments have been made on grounds other than merit.

Professor Parkinson is not alone in drawing attention to concerns relating to the basis upon which at least some appointments have been made. After outlining her own concerns, Professor Margaret Thornton of the Australian National University wrote on 19 April 2017:

For those who work in the area, it is particularly concerning that these complaints appear primarily focused on appointments to courts and tribunals that deal with family law disputes.

Unfortunately, they bring to mind the story told of Lord Halsbury, the former Lord Chancellor of Great Britain, who was asked whether “ceteris paribus” (i.e. all other things being equal), the best man would be appointed to a vacant judicial position. His Lordship apparently responded “ceteris paribus be damned, I’m going to appoint my nephew”.

I have in mind here especially the comments made by Professor Patrick Parkinson on ABC Radio National on 2 June 2018 when asked about the constitution of the new court the federal government has announced will be created to deal with family law matters.

He said: What happens between now ... and January 1st when this new court is meant to occur is very, very important, and we have to have a dialogue about the right model for this new court and ensure that we have expert specialist people, who are not just friends of the Prime Minister or the Attorney-General, not just Liberal Party members, but people who know what they are doing who will be appointed to the new bench.

What was it that moved Professor Parkinson to make that statement?

To give some context, it must be understood that Professor Parkinson, who is now Dean of Law at the University of Queensland, is perceived to be one of the more conservative commentators on family law. He has often been consulted by government, and was described in the Sydney Morning Herald of 26 March 2018 as “arguably Australia’s most distinguished scholar in family law”.

Why is it that a person with his background feels the need to insist publicly upon appointments being 12 | BRIEF MARCH 2019

As courts are the bulwark of a democratic society, we should not unquestioningly accept the absence of transparency. We must put pressure on the [Attorney General] and the ... Government to reinstate formal criteria in deciding appointments to all federal courts.

Another academic and newspaper columnist writing in the Melbourne Age on 8 June 2018 said this about what she described as “some highly unsuitable appointments”.

They were made as grace and favour appointments. Now those grace and favour appointments will be presiding over the most serious family law cases in the country.

Cases where there are incidents of sexual abuse, of child abuse, and of family violence.

In the same article, Professor Parkinson was again quoted as being “desperately troubled” by some of the appointments that have been made. The quote continued: I say this with all seriousness, the government and the opposition ... need to come together to devise an independent, merit-based and nonpolitical appointment process for all judges in federal courts or tribunals.

The first point to make and which must be made very strongly is that the concerns that have been expressed are not directed at all, or even most, judges hearing family law cases. Of course, the same would not be able to be said in future if we moved away from a merit based system of appointment. It is not enough, though, for litigants to be confident that they have a good chance of coming before a competent judge – that confidence should be absolute.

The second point is that none of the concerns expressed are related to judges or magistrates of our State Family Court. In fact, it is fair to say that our Court is looked upon around the nation as the model of a good family law system, not only because of its unique structure but also because there can be no perception that appointments

have been made other than on merit.

Returning then to the calls for changes to the appointment process, it should be appreciated that family law cases are dealt with not only by two separate courts in the Eastern States and by our unified State court here, but also by the Administrative Appeals Tribunal, which deals inter alia with the contentious issue of child support. Family lawyers and academics therefore also take an interest in the way in which appointments are made to that Tribunal, and I doubt it was by accident that Professor Parkinson included tribunals in his call for reform.

Examination of the public record will demonstrate why so many judges, lawyers and academics agree with Professor Parkinson that the time is ripe for a careful, bipartisan examination of the appointment process. I make no apology for saying so in a public forum, and I cite no less authority for doing so than the man whom we honour tonight.

While David recognised that “consistently with the need for judicial independence there is a general restraint on judges expressing views on matters of current political controversy”, he was also very clear in stating: It is my firm belief that a judge should be fully entitled to speak out on a matter related to the administration of justice, even a matter of public controversy, so long as he or she does not give people cause for suspecting bias or partiality in the cases to be heard in the Court. A judge must also refrain from comment on matters of political controversy.

There are however, matters that involve the administration of justice on which members of the judiciary may have not only a right but a duty to speak out.

I am further fortified in drawing attention to this topic by quoting Chief Justice McLachlin: Judicial independence, as its history attests, has not been won by fiat or by accident. It has been won by the vigilance and courage of lawyers and judges over the centuries. And it is by that same vigilance and courage that it is sustained...

And no less a person than Sir Gerard Brennan spoke out publicly on the same topic in 2008 when he drew attention to “an increase in the number of anecdotal reports of unmeritorious appointments”, leading to him to argue that “the time has passed when it is possible to have any confidence in the system to discover and evaluate the abilities and the

The Family Court of Western Australia, where the Hon Stephen Thackray was Chief Judge until his retirement in December 2018

character of prospective appointees to Commonwealth courts”.

There is much more that could now be said about the background to the current calls for all appointments to Commonwealth courts and tribunals to be made on the basis only of merit, but this is neither the time nor the place.

Examination of freely available material, including past editions of The Australian and interstate daily newspapers going back to at least 2008, would suffice to give at least some indication of the extent of the problem. What troubles me is that some people associated with the process seem not to understand there is a problem at all.

It is not often that we get an insider’s view of how the process sometimes works. One exception appeared in The Canberra Times in an interview with a former Senator who had been appointed to a very senior, and highly remunerated, role in a tribunal. Having noted that the Senator had lost pre-selection after many years in politics, the article went on to say that “some of [the Senator’s] colleagues in the [Government] felt badly about his involuntary departure”.

I pick up the story with the former

Senator’s own words: “My colleagues had been knocking on my door throughout 2014 with offers of various sorts, they felt some sort of sense of responsibility to see I was looked after so I did have a number of offers made...

“Initially I said no – I’d been working for governments one way or the other for close on 30 years and wanted to get off that treadmill for a while and see how I would go working in the private sector.

The Canberra Times article continued: Was he offered an overseas post?

“Yes ... that’s all I can say, sorry.”

So the offer of the tribunal did not come out of the blue but had the added attraction of being part of the legal system.

He was due to go on holiday in Europe with his wife, as the appointment was about to be announced.

“I realised I would have to spend some of that holiday brushing up on the law so I took a couple of text books with me and ploughed

through them on the trains.”

Having thus explained how he had prepared himself for this senior role, after his long absence from the law, the former Senator said this: “I wouldn’t have predicted [this appointment] at all ... I wouldn’t have said I was an outstanding lawyer because I never wanted to make it my career.

“I had always seen it as a vehicle towards getting into politics, never as an end in itself. So coming back all these years later and suddenly finding myself back in the law, is a funny type of feeling.”

Perhaps it is best that I allow that story to speak for itself and merely ask how many similar stories remain untold.

Unless the concerns expressed by Professor Parkinson and others are entirely misplaced, the answer is that there are enough to give cause for disquiet. This is not to suggest that past political office, or political associations or friendships with politicians, should be a disqualification to holding judicial office.

However, the public needs confidence that those appointed to judicial office owe fidelity to the law, not to those who 13

appointed them.

We pride ourselves on having inherited the best of the English legal traditions and I suggest the time may have come to look to that country for modern guidance about how to ensure the public retains confidence that those appointed to sit in judgment on them are the very best we have to offer and that their appointment can stand up to scrutiny against the Beijing Principles.

In speaking of fluctuations in the English approach to judicial appointments, Sir Harry Gibbs, another of our former Chief Justices, explained back in 1987 that: Political influence continued to play too great a part in the making of judicial appointments in England until the time of the Second World War. However, from 1946 onwards both Conservative and Labour governments in England have endeavoured to select only the best person available for any judicial position and to exclude entirely any consideration of personal or political influence. The policy ... is a bipartisan policy, formulated by Lord Chancellors who put the public good before party interests; it is supported only by tradition, and has no constitutional or legal foundation.

This bipartisan policy now has legal foundation in the UK, courtesy of the Constitutional Reform Act 2005 and the independent Judicial Appointments Commission. The intent, quite simply, is to provide an open and formal procedure for appointments. There have been calls for something similar here at least as far back as 1977 when Sir Garfield Barwick argued that appointments should not be left to the Executive alone. From his great vantage point, as both a former AttorneyGeneral and a Chief Justice, Barwick explained again in 1995 that: Left to politicians, the appointments are not always made exclusively upon the professional standing, character and competence of the appointee. At times, political party affiliation ... form some of the criteria for choice. Sometimes party-political considerations are the dominant reason for it...

Commonwealth courts even though appointees will be exercising the judicial power of the Commonwealth in diverse areas including family law, bankruptcy, migration and industrial matters—issues which affect the vital interests of individuals.

Barwick was succeeded by Sir Harry Gibbs, who wrote in the 1987 Australian Law Journal about Australian departures from the high standards being set in the UK. He said: The work of the judiciary is too important to entrust it to those of doubtful competence, and a bad judge may do irreparable damage, since there are some judicial errors which even the most elaborate system of appeals cannot remedy.

The further conclusive reason why appointments should not be made on political grounds is ... that they are capable of shaking public confidence in the judiciary.

There was a time, not that long ago, when an Australian federal government developed what appeared to be a successful mechanism, falling short of a formal Judicial Appointments Commission, to recommend appointments to the family courts.

The approach was consistent with the bipartisan recommendation of the Senate Standing Committee on Legal and Constitutional Affairs in 1994. It is unclear why that mechanism has been scrapped.

Perhaps whilst we consider something more formal, it might be worth giving it another try?

In the meantime, as Sir Harry Gibbs has pointed out, “we must depend on the statesmanship of those in all political parties”. Inevitably, given the comments of Professor Parkinson and others, upcoming appointments to courts administering family law, in whatever shape those courts may take, will be scrutinised with more than usual interest for evidence of statesmanship.

Barwick’s views were strongly supported in 2008 by Sir Gerard Brennan, who spoke of the particular importance of a “structured” process of appointment to what is now known as the Federal Circuit Court. Sir Gerard wrote that:

I propose to conclude by making brief reference to the current debate about the future form of the family law system.

On 30 May 2018, the Commonwealth Attorney-General announced his intention to create a combined court in the Eastern States which would improve the efficiency of the “existing split family law system, [by] reducing the backlog of matters before the family law courts, and driving faster, cheaper and more consistent dispute resolution”.

Appointments to that Court are likely to attract less attention than appointments to the higher

Those of us who have been around for a while could not help but recall on hearing these remarks that the Attorney-

14 | BRIEF MARCH 2019

General who created the current “split family law system” had, almost 19 years earlier, used eerily similar words when proclaiming that his new system would provide a “quicker, cheaper option” for family law dispute resolution. We could also not help recalling that the Honourable Alastair Nicholson, then Chief Justice of the Family Court of Australia, warned in 1999 that: [the] fragmentation of [the Family Court’s] closely integrated system … will result in a less satisfactory and more expensive service. The potential for public confusion, forum shopping and waste of resources on shuffling matters between courts is high. The funds proposed to be spent on the [new court] could be used far more effectively by providing Magistrates within the framework of the Family Court of Australia.

The appointment of magistrates within the framework of “one specialist family law court” is what the Semple Review recommended in 2008 after wide consultation and examination of the coherent system in Western Australia.

Plans to give effect to the Semple Report were successfully opposed by those who had introduced “the split family law system”. The split system has therefore stumbled along until 2018 when we are now informed, on the basis it seems of a report from a firm of accountants, that the flaws in the system are not entirely the fault of the government that created it, but rather the inefficiency of the court whose Chief Justice accurately predicted the outcomes we now see.

As our Chief Justice, David Malcolm understood that consultation about change is always desirable. Indeed, it is essential if we are to avoid decisions about change being based on incomplete, inaccurate, or misunderstood information. For example, that firm of accountants could have consulted with experienced trial and appellate judges in both courts in the Eastern States about what their raw data actually meant. And they could have consulted with those of us in the West, who already have a fully unified system, to help explain how the stark differences in the data relating to judicial officers working at different levels bears no relationship to efficiency.

It would be fair to say there is unanimity in supporting some changes to the system in the East. It is the form the changes take that is important since, in the seeming anxiety to rush change, we would not want Parliament to throw out the baby with the bathwater. After all,

with all its faults, our system is regarded internationally as one of the finest, if not the finest, in the world.

Those who understand the system; know its history; and participate in the day-to-day work need to be consulted, not just about the detail of the Bills before Parliament, but about the broader policy, including the unprecedented plan to make no new appointments to the superior division of the proposed new court. This plan to slowly abolish the Family Court of Australia has profound implications for family law and deserves careful scrutiny, and proper consultation.

Given David Malcolm’s focus on eradicating all forms of gender bias in the law, I suggest he would have insisted that such consultation as has occurred to date ought to have included women – not just because we are dealing with families but because this is 2018.

It was, after all, the National Council of Women of Australia and its 620 affiliated organisations who, in two years of consultations leading up to the 1975 Family Law Act, strongly advocated for “specialised Family Courts” comprising specialist judges of superior status, working in one unified court alongside judicial officers at a lower level “specially appointed and trained” for the work. This concept could have been achieved in the Eastern States, as it has been in Western Australia, had the Semple Report been implemented. The concept of a two-tiered specialised court has been abandoned in the plan now presented to the Federal Parliament. Ironically, the Semple Report is being heavily relied upon as evidence supporting that plan!

Now that the policy has been decided, and the Bills have been introduced, there is a consultation process underway.

Notwithstanding the government has

been unable to secure a majority in the Senate on the progress of its Bills, the Commonwealth Attorney announced last week that: In the meantime, I will be discussing with the courts the need to advance the development of new processes, procedures and operational guidelines for the new court. There is no reason this important work which will be fundamental to establishing the new court cannot commence pending the final passage of the legislation.

This announcement is cause for concern if the consultation is intended to be meaningful. The Family Court of WA and the Western Australian legal profession are taking a keen interest in the progress of the Bills. They affect us because we have been informed that the associated policy not to appoint any more judges of superior status will be applied to our Court, thus diminishing the status of family law. They affect us because the Bills contain provisions relating to appeals which diminish the status of our specialist Family Law Magistrates. And they potentially affect us as there are now indications that the proposed merger will lead to changes in longstanding arrangements between our Court and the Family Court of Australia that have greatly benefited Western Australian families.

Quite apart from the fundamental question of the structure of the new court and whether the Semple model would provide a better framework, one important issue for the consultation process is whether all judges who hear family law cases should satisfy the test of suitability now laid down for Family Court judges in section 22 of the Family Law Act. In the context of the argument I have made tonight for appointment on merit,

this would have the distinct advantage that Australia’s family lawyers not only support that requirement of suitability, but that they also have a very good collective understanding of who meets it.

Hopefully there is going to be sufficient time for wide community consultation on these issues just as there was prior to the 1975 Family Law Act. In the meantime, we should be wary of law reform being driven by statistics produced by firms of accountants in the guise of measuring or quantifying the productivity of the courts.

As Chief Justice Murray Gleeson said: Nobody has yet devised a satisfactory indicator of judicial productivity, probably because the concept of productivity of judges is no more amenable to measurement than the productivity of parliamentarians. It is possible to measure some aspects of the performance of a judge or a court; and this may have utility. Justice, however, is more a matter of quality than quantity, and the desired judicial product is not a decision, but a just decision according to law.

David Malcolm understood that the true measure of a judicial system is not only its quality, but the faith the community has in the integrity and independence of its judges. I have been privileged to have held office under his influence, and that of his worthy successor. As I prepare to leave office, I have confidence that our new Chief Justice of Western Australia will preserve and build on the legacy of the man whose memory we honour this evening. A rich legacy that arises from David’s powers of intellect, integrity and, above all else, independence.

Shearn HR Legal - Human Resource + Recruitment is proud to announce its 21st Anniversary in 2019, having first opened the doors on 16 February 1998 and still going strong! It has been a pleasure working with the legal fraternity, locally and afar, over all these wonderful years and it is our aim to continue doing so, for many years to come. Please call or email for a confidential discussion about your most important asset, you or your firm, for your legal career needs and requirements.

Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au

15

Farewell to the Honourable Chief Judge Stephen Thackray Ceremonial sitting of the Family Court of Western Australia Thursday, 13 December 2018

Chief Judge Thackray: Chief Justices, distinguished guests, colleagues, family and friends. First, I too join in acknowledging the Noongar people and I pay my respects to their elders past and present. I also want to acknowledge all the other Aboriginal people of our state, especially those in the Pilbara with whom we have worked so happily in our exciting new project. Secondly, I thank you all for giving up your time to come along here today. You are all busy people, and this is a very busy time of year and I am particularly honoured by your attendance.

I am acutely conscious of the fact that I am now the only thing standing between you and a drink. More importantly, I know that I am the only thing standing between me and a drink. This is a considerable inducement to keep my remarks short while trying to thank some of the many people who have helped me and our Court over the last 22 years.

I begin by thanking those at the Bar table for the thought, effort and, indeed, creativity they have put into their speeches today. These ceremonies, to my knowledge, are the only times when judges hope to hear exaggerations of the most outrageous kind and I am glad that you have left no stone unturned.

Thank you, Mr Attorney, for your remarks. You are the fifth State Attorney with whom I have had the pleasure of working and it would be fair to say that you continue to be one of the busiest.

Mr Macliver, thank you for your remarks on behalf of the Commonwealth Attorney, who was also one of the five State Attorneys to whom I have just referred. He is now one of six Federal Attorneys I have seen come and, save for him, go. He too has been very busy.

Now, Ms Cormann, you have very quickly become a veteran of the farewell and welcome circuit in your term as President 16 | BRIEF MARCH 2019

of the Law Society. I have heard and enjoyed many of your addresses this year, but I have to say that I enjoyed this one the most, so thank you.

And Mr Davies, thank you for your very generous remarks on behalf of the members of the Western Australian Bar Association. If it is true that I have been courteous to members of your association, it is only what is rightfully due to them for the courtesy they have shown me over many years. I particularly appreciate the support of the Bar Association and the Law Society for the efforts that you have collectively made, along with us, to try to create a better family law system for the people in this state.

And finally, thank you, Mr Sloan, for your remarks. I think this is the first occasion you have addressed a ceremonial sitting as President of the Family Law Practitioners’ Association, but you have taken to it like a fish to water. Your credibility amongst your membership may not survive today, but I nevertheless appreciated what you have said.

I have to say that when hearing what the speakers were saying, I was looking around at the people assembled in this room, and I realised I was being given credit for a great many things where I played only a very small role. Sitting here, standing here, today, are the people who achieved those things: Memorandums of Understanding, better relationships with the community, the Columbus Project.

These were truly team efforts. It was my pleasure at times to lead it, to champion it, but I was far from the person who did it – and so to all of those who have heard those things being talked about, you know what you did in those programs and I thank you for helping me look good. I will take some of the credit today, but you did it.

My Court and I, of course, are honoured by the presence on the Bench of the

Chief Justice of Western Australia and the Chief Justice of the Family Court of Australia. This is the first occasion on which they have attended a sitting of our Court in their new roles and I know that the Judges of this Court join me in congratulating them on their appointments and wishing them the best in their very important positions.

Chief Justice Alstergren was welcomed in Melbourne only on Monday and we look forward to resuming the happy association that has traditionally existed between our two courts. Chief Justice Quinlan was a valued advisor in his former role as Solicitor General and I have appreciated his ongoing wise counsel. I have also greatly appreciated the support and assistance of all the other Solicitors General of our State.

I am also honoured by the presence on the Bench of the former Chief Justice of Western Australia, the Honourable Wayne Martin AC, and the former Chief Justice of the Family Court of Australia, the Honourable Diana Bryant AO. Both these people have been important to me at different stages in my career.

Coincidentally, all three of us worked at the same law firm in Perth early in our careers. They, no doubt, obtained their employment at Lavan & Walsh due to their brilliance, whereas I obtained mine because I liked the feel of the soil through my hands while gardening, but that is another story.

Diana is the one who must assume major responsibility for me being here today at all. By the time I left law school – and it is true, I took the family law unit because there were no cases – I had decided that there were two areas in which I would never practise, one of which was family law. So it might be said that my career ever since has been a monumental failure. Indeed, that probably has been said, but that is also another story.

The Hon Stephen Thackray speaking at his farewell as Chief Judge of the Family Court of Western Australia

As I am still standing between you and a drink, I will not go into how I ended up assisting Diana and realising that family law is far more challenging and personally rewarding than I had ever imagined. It is sufficient to say I am indebted to her for setting me on the family law pathway. I once told her that if, back at Lavan & Walsh, we had predicted she would end up Chief Justice and I would end up as Chief Judge, they would have called for the people in white coats to come and pick us up.

As for Chief Justice Martin, I knew of him even before I commenced law school, such was his reputation. The first person I met who knew him was an especially big fan. Wayne’s mother was one of the first customers of my gardening round from which I earned the princely sum of $3.50 an hour. He was a great Chief Justice of our state through almost all my time as Chief Judge. He was always there when I needed a sounding board or advice about some tricky situation and I will be forever grateful. Sincere thanks, also, to his media advisor, Val Buchanan, who has also guided me wisely for many years.

Thanks also to the friends who have turned up today. Having heard these speeches, I expect much greater respect from now on, or at least some respect.

But I take this opportunity to apologise to those friends – and, indeed, to everybody else here – for all my terrible puns, but I can practise harder now that I am to become a punsioner.

Turning to my family, Janet, my very lucky wife, and our two children, James and Amanda and James’ lovely wife, Leandri, who asserts she is, in fact, not only my favourite child, but that I make no attempt to hide it. This may or may not be true, but I am truly blessed to have had all of them to love me and to look after me and, to the extent possible, keep me grounded and focused on things other than my work.

I am very proud of James for having never given any indication that he wanted to be a lawyer and for having chosen a sensible career as a computer programmer who can fix any electronic device with just a withering glance. I am also extremely proud of Amanda, who succumbed to the temptation of not only becoming a lawyer, but a family lawyer, and was brave enough, three years ago, to join the independent Bar where she has done well. Looking back, I suppose there was always a good chance one of my kids would become a lawyer. I was tidying up my room recently and I came across one of Amanda’s first pieces of artwork which had been beautifully scribbled on the back of a draft of one of my client’s affidavits!

Janet, whose intelligence and abilities far outstrip mine, has given up her own career to be the superb mother of our children and full-time carer, confidante and counsellor for me, as well as becoming the longest standing volunteer at the Fremantle Community Legal Centre. She is a private person who would not wish me to rattle on, so I will only say this: I owe my career and most of the best things in my life to Janet.

We met at 15. We married at 21. Nearly 43 years later, we are looking forward, happily, to the next stage of our life together.

I was grateful to hear my parents acknowledged. My five brothers and sisters and I were lucky to have grown up in a loving and happy home. Sadly, during my years at the Court, we have lost my parents, Janet’s parents, and three of my siblings, leaving only my brothers Peter and Greg, who I am so glad are here today with my sister-inlaw Penny, together with Janet’s sister, Margaret. Special thanks and thoughts to my sister-in-law, Marisa, who is too unwell to attend.

Turning from my own family to my Family Court family. I have been so fortunate to have had exceptional personal staff.

I am delighted that here today are my associates Elsie Pavich, Jennifer Edwards, Anna King and Kathryn Mayze 17

It is true that I try to learn the names of our staff so that they hopefully know I regard them as individuals rather than functionaries. It is amazing, though, how many of the new ones have the same name; “Mate” being the most common. I particularly thank those members of our staff and of the Federal Court who have assisted to put together this event. These ceremonies require a lot of thought and effort, and I am sorry that Kathy in particular has spent so many sleepless nights worrying about the details.

Thanks also to Justice McKerracher and the Justices of the Federal Court for allowing us the use of this courtroom today. This is a much happier occasion for our Court than the first time we had need of this room, when we marked the passing of our much-loved colleague, Carolyn Martin, who was a dear friend of mine and many others in the room and who is still missed today.

2018 Law Society President Hayley Cormann addressing the Court

and my Court officers, Tonia TardivelJones, Cherryl Barron, John Moffat and Lex Clark. I could wax lyrical about all of them, but I will just single out the team that I have had with me now for the last seven years, Kathy Mayze and Lex Clark. No judge could have been better served by these dear friends of mine, no judge could have had so many laughs, no judge could have had his or her every need anticipated in the way mine have been. They have gone beyond the call of duty and I will miss them desperately.

I will also miss my terrific Legal Associates, especially as it is they who have saved me from so many embarrassing errors, legal and arithmetical. They have also explained to me many very modern references, so I am now familiar with Madonna, Michael Jackson and Whitney Houston, and I feel very up to date. I also know that U2 and YouTube are two different things, so I feel quite confident as I step out into the world beyond this Court. Thanks, therefore, Benn, Michelle, Alison, Kate, Prue and Emilie, all of whom are here, and thanks also Kelly, who will be here from London shortly for our final party. I am very proud of each of you.

I also want to thank the rest of the staff of the Court, both past and present, for all their help, inspiration and friendship.

18 | BRIEF MARCH 2019

Turning then to my other judicial colleagues. First, to those of you and your partners who have come from the East, I am honoured and amazed to see you here. I do have a bone to pick with you, however. When we put together the invitation list, I explained to Kathy that although there were more people invited than could fit in the room, all would be well because none of those from the Eastern States would come. And yet here you are, around 20 of you at great personal expense and inconvenience have made the trek across the Nullarbor, which is why we have had to squeeze in all these extra chairs.

I would like to acknowledge all those visitors individually, and I would also like to have invited many more of my valued friends and colleagues from the Family Court of Australia and the Federal Circuit Court who I got to know over years travelling around Australia on the Appeal Court. However, time and space do not permit this luxury, so I will mention instead one smaller group, the former Principal Registrars of the Family Court of Australia, Angela Bova and Patricia Christie, who have come over from Brisbane and Adelaide respectively.

Angela nursed me through my early days as Principal Registrar of this Court, and Pat was the last independent Principal Registrar of the Family Court of Australia.

It was a great loss when Angela left, but she had many valuable years in the role.

It was an equally great loss when Pat left. The court could have done with her experience, wisdom and efficient and steady hand during the last 12 months.

Thank you both very much for coming.

I will also make a quick mention of one other visitor from the East and one from the North, who have been associated with two ventures that have given me much satisfaction in the concluding stages of my career. Registrar Teresa Kane from Brisbane was the National Appeals Registrar during my time as the Senior Judge of the Appeal Division, and she gave me a very great thrill and surprise yesterday by turning up unannounced in my office. Together, and with the help of many others around Australia, including my greatly respected colleagues who have come over here today, we achieved a great deal in the Appeal Division in a short space of time.

Thank you for coming, Teresa. I am really touched that you are here.

And thank you to my friend Devon Cuimara who has come all the way down from Newman in our far north. As Mr Sloan has said, it was my chance meeting with Devon that provided the spark for our project with the Martu and Nyiyaparli people of the Western Desert.

This has sustained and exhilarated me in the final stage of my career and it has given me the privilege of working with an extraordinarily talented and committed group of people from the Aboriginal Legal Service, Aboriginal Family Law Services, Legal Aid WA and the Pilbara Community Legal Centre. I leave that project in great hands and I hope to be a part of it in the future.

Returning closer to home, my most sincere thanks must go to my judicial colleagues, past and present. Every one of them has supported me in all the many roles I have performed in this Court, and they too have encouraged and sustained me every step along the way.

They have, I think, forgiven my mistakes, and together we have celebrated some great achievements. As we have heard, we are blessed in this State with the most cohesive and collegiate Family Law system in Australia. This is due in great part to the statesmen who, in 1975, recognised the value of a State Court exercising both State and Federal jurisdiction. It is due also to the strong foundations built by the earlier Judges of our Court, who I greatly admired as a young lawyer.

The strength of our system is due also to the work and commitment of the community organisations, not-for-profits and State Government departments whose leaders are here today and with whom we have forged a partnership that I think has greatly benefited our community.

The Bar table and attendees at the ceremonial sitting of the Family Court of Western Australia

Much of the thanks for the strength of our system must also go to the local legal profession. I wish the general public could see the way family lawyers go about their work. Of the thousands of couples who separate every year, only a small proportion end up in this Court and, of them, only a tiny proportion end up going to trial. The system would collapse otherwise. A major contributor to that phenomenon is the work of family lawyers who, in my experience, bend over backwards to bring about agreements between their clients.

I was proud to be a member of their Association, very proud to be their President and incredibly honoured by what Mr Sloan has just said about becoming a life member. I have to say that this has been an ambition of mine and I am truly grateful to be finally about to reach it, not only because I gather I don’t have to pay the fees. Is that right?

I am sorry that so many of the legal profession cannot be seated in the room today, but I am glad to know that you, along with Court staff, are watching the show in the overflow room – assuming that someone didn’t cut the cord again.

I recognise also the assistance and cooperation of both State and Federal Governments in providing the resources that are so necessary for an efficient

legal system. Unlike the position in the Eastern States, appointments to this Court following retirements of judicial officers have been made swiftly during my term, and Governments, both State and Federal, have tried to help us through those difficult years in which we have had judges on the long-term sick list.

Our wait times for trial are still longer than we would hope, although this is not surprising, given the challenges we have faced and the increase in our workload.

We are still bursting at the seams, and we anxiously await the Federal Government’s advice as to whether we will be given the funds to build four new courtrooms in the space that has been sitting empty in this building for years.

But despite our challenges, we are hearing more trials than ever before. We are dealing with more cases than we ever have before, and I am extremely proud to report that, today, there is not one trial judgment from any of our Judges or Magistrates that is overdue.

dedicated and hardworking and poised to take full advantage of the digital age.

Together, as you have heard, they work as a team, with good humour and a constant willingness to bog in and help each other out.

I want to conclude with a quote from our former Chief Justice, David Malcolm, who sat on the Bench the day I was welcomed and whose widow, Kaaren, is here today. Speaking to a group of law students, David once said, “Take your work seriously. Take any office you hold seriously, but don’t make the mistake of taking yourself too seriously. Secondly, however difficult and challenging the office or the task, find a way to make it fun. If it’s not fun, it’s not worth it.”

Ladies and gentlemen, I have to say that, looking back over my 22 years here, it has been fun – and totally worth it.

Thank you very much for coming today.

I leave this Court in exceptionally good hands. We have Judges, Magistrates and Registrars who were appointed on merit and who work far too hard. We have Family Consultants who are highly skilled, motivated and work hard in a seamless, multidisciplinary way with our judicial officers. We have a staff that is

19

Trials and Tribulations: Verity Long-Droppert

By Melanie Callow Junior In-House Lawyer at Vix Technology

Verity Long-Droppert

Verity Long-Droppert knew early on in her career that she aspired to be a barrister, and chose to go to the bar after only a couple of years in practice. As well as breaking with convention in the Western Australian legal profession, she is a member of the softball squad training for selection in the Olympic team for Tokyo in 2020. She discusses her career trajectory and her aspirations for the profession in this Trials and Tribulations interview with YLC member Melanie Callow.

What made you choose law?

At school I really enjoyed politics and law but I never thought I was destined for a career in law. At uni I decided to do Arts/Law which I enjoyed, and then I did a year of History honours. So I was tossing up between a PhD in history, or whether to go down the law pathway. I decided to apply for graduate positions and I got one straight out of uni, so it's not like I fell into it, but things just fell into

20 | BRIEF MARCH 2019

place for me in that regard. That was in 2015, and I started my career at Jackson McDonald.

What was probably a nonchalant approach to the law was really invigorated by a partner in the commercial litigation team at that firm.

I had – and still have – a really excellent mentor in Darren Pratt. He is passionate about his work, and he led by example.

He allowed me to have something to strive for, which is really important to me.

We were doing complex litigation, lots of big ongoing matters and I learnt so much from him and the senior barristers that were on those matters.

I got to a stage where I was considering my career path, and my end goal. I am really interested in advocacy, and I enjoyed the time that we had in court in the commercial litigation team. I’d heard that in the eastern states because it’s not a fused profession, people go straight from uni to the bar as readers, or as juniors to senior lawyers, and I thought – aside from being in Western Australia and it being incredibly unconventional – there's no different skill set that those people have. So I thought ok, I would like to develop that very specific skill set as early as possible. I decided to take a leap of faith, to have faith in my own ability, and to take the road less travelled.

Tell me about working as a barrister so far?

I am full time as a barrister at Albert Wolff Chambers. In 2018 I spent three months in America playing professional softball and so at the moment it has been good to be in charge of my own time whilst being in the Aussie squad and having the 2020 Olympics as a goal. Being able to fit in training and gym and still being able to do my work without letting the team down, or having to be concerned about anyone else’s expectations, except for myself and the people I'm working for, has been great.

What kind of work are you focusing on?

Everyone has said to me when you first start out it’s really important you have an open mind about the kind of work you would like to do and to try some things out so that you can refine your practice as you go, and that's been my attitude towards it so far. I'm taking work from a number of different sources in a number of different areas and that has been a good introduction to practice as a barrister. I think that as I grow older and more experienced there will naturally and organically be a practice area that develops for me, but at the moment I'm

saying no to nothing – it’s about being affable and available.

What do you think are the personal qualities that have gotten you to where you are?

I think probably the biggest one is selfbelief but I get a lot of support from the people around me – my family, my partner, my colleagues at Chambers and my mentors – so that self-belief is generated in part through other people, which I'm really grateful for. At the end of the day it’s believing that there's nothing really stopping me from taking this path, and having confidence in my own ability to be successful. In sport and in life I’m always striving to be the best person that I can be, and I think that kind of approach has enabled me to get to this point.

What advice do you have for other young lawyers?

Don’t be weighed down by convention. If there is something that you feel like you want to do and you feel as though you have the right support networks and the confidence to be able to do it, then don't let convention or what you might perceive people to think of that decision prevent you from doing it. Whether that is to go in-house, go to the bar at a younger age,

work for a not-for-profit, whatever it is – follow your dreams, just because something is unconventional or something that other people might not be doing doesn't mean that you shouldn't be doing it.

I think in life you need support to take those big steps. It doesn't necessarily have to be family but having someone that you trust, like a mentor, someone in the profession, from uni, or from a past job, to help you arrive at some of these big decisions is really important. You might have the best ability in the world but as we all know there is no substitute for experience, so being able to draw from different people can make you more confident in the decisions that you're making.

What does the future look like for you?

Gaining as much experience as I can in different areas, building up my networks and relationships as much as possible, and then building my practice as a barrister so that it's really refined and something that I can be really proud of.

The immediate future will just be taking those steps one by one.

What would you like to see done differently in the legal profession?

This is going to sound like a bit of an answer that you might expect from a young female barrister, but when I was working for Jackson McDonald and we were working on those big complex litigation matters and I'd be sitting at the back of the court room observing the multiple parties and several times I would make note of the fact that there were no female barristers at the bar table. I was just sitting there thinking where do I fit in here? I think there's not a simple answer to that as an issue, but ultimately at the end of my professional career I would love it if the Verity of that particular time and place, the young solicitor, was able to see a greater percentage of female barristers at the bar table in those really big cases. It would be really healthy for the profession because there's nothing to separate the ability of male and female barristers or lawyers in general.

I don't pretend to have all of the answers but in whatever way it might come about, whether it's just individual females saying “I can do this and I'm going to and this is what I want to strive to be”, or whether it's policies or pathways through mentoring schemes, or perhaps a combination of all of that, if the end result is at the end of my career that's changed, then I'd be really happy with that.

21

Wanted: Lawyers Who Offer High-Quality Pro Bono Legal Advice

Left to right: 2018 Individual winner David Blades, Attorney General the Hon John Quigley MLA, Kate Davis and Carmen Acosta from Tenancy WA, the 2018 organisational winner.

Individuals and organisations to be recognised for their pro bono legal assistance Attorney General John Quigley is inviting legal practices, practitioners and community organisations to nominate candidates for the 2019 Attorney General’s Community Service Law Awards.

helping a marginalised and largely unrepresented group in the community, and for approaching his pro bono work with vigour and an unwavering commitment to justice.

Presented as part of WA Law Week in May, the two Law Awards recognise one individual legal practitioner and one organisation which have provided outstanding pro bono legal services to the Western Australian community.

In the 2018 organisational category, Tenancy WA was recognised for providing specialist legal advice, representation and education to women and children, particularly those facing family violence, who are at greater risk of homelessness than others in the community.

“These awards are important because they publicly acknowledge individual lawyers and legal organisations who have donated their time and skill to help those who may not otherwise be able to access legal services,” Mr Quigley said.

The 2018 individual law award winner was David Blades, a legal advocate for asylum seekers recognised for his commitment to 22 | BRIEF MARCH 2019

Nominations for the 2019 awards are now open and must be received by the Department of Justice by 2.00pm on Monday, 15 April 2019.

Now it its 13th year, previous winners of the individual award include: •

Sam Vandongen (2017) for working as lead counsel for Pintupi man Gene

Gibson, wrongly convicted of the manslaughter of Josh Warneke.

•

Michael Tucak (2016) for services he provided to the Western Australian arts and cultural community for more than 20 years.

•

Adam Levine (2015) who coordinated work for K&L Gates’ Perth office and provided legal services to Manna Inc.

•

Elspeth Hensler (2014) who acted for refugees, foster carers and war veterans.

•

David Jenaway (2013) who handled the day-to-day management of Herbert Smith Freehills’ pro bono program.

•

For more information, visit www.justice.wa.gov.au/lawaward

2018 WA Lawyer of the Year Awards Winners (L-R): 2018 Law Society President Hayley Cormann, Haley Allan, Dr Jürgen Bröhmer - Professor and Dean of Law, Murdoch University and Tegan Harrington.

THE LAW SOCIETY LAWYER OF THE YEAR AWARDS In the lead up to Law Week, the Law Society invites members to submit entries to the Law Society Lawyer of the Year Awards.

The Law Society Lawyer of the Year Awards recognise practitioners who have made particularly noteworthy contributions to the Western Australian legal profession, over and above what might be reasonably expected through paid legal employment.

Do you know someone who could be the Law Society Lawyer of the Year?

Nominations for the Law Society Lawyer of the Year Awards are now open until 2.00pm Monday, 15 April 2019.

Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 years’ experience) and Lawyer of the Year (less than 5 years’ experience).

Winners are announced at the Law Week Awards Night and Cocktail Evening, on Friday, 17 May 2019 at The Westin, Perth.

For full criteria and further information, please visit www.lawsocietywa.asn.au/law-week Proudly sponsored by

Principal Sponsor

Law Society Lawyer of the Year Award Recipients Practitioner with more than five years’ experience 2018 – Haley Allan 2017 – Simon Creek and Nicholas van Hattem 2016 – Claire Rossi and Glen McLeod 2015 – John Fiocco 2014 – Melanie Cave 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier 2009 – Steven Penglis 2008 – Dr Johannes Schoombee Practitioner with less than five years’ experience 2018 – Tegan Harrington 2017 – Krista McMeeken 2016 – Michael Geelhoed 2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack 2012 – Tammy Solonec 2011 – Breony Allen 2009 – Toni Emmanuel 2008 – Anna Rakoczy

Lawyer of the Year (less than five years’ experience)

lawsocietywa.asn.au Law Week 2019

23

2019 CPD Summer Getaway A Valuable and Rewarding Day of Learning

The Law Society’s CPD Summer Getaway reminded us that a career in the law provides endless opportunities for growth and the accumulation of knowledge.

On Friday, 22 February 2019, we were delighted to welcome delegates to the University Club in Crawley, for a valuable and rewarding day of learning.

Practitioners had the chance to attend one or both of two events – ‘Design Thinking: Designing a Flexible Workplace’ and ‘Essential Topics for the Busy Lawyer’.

Attendees learned new ways of thinking in Nick Lim’s Design Thinking workshop, while communications expert Ben Richards encouraged lawyers to delegate and praise more.

24 | BRIEF MARCH 2019

The Hon Peter Quinlan, Chief Justice of Western Australia, concluded the day with a reflection on the profession's commitment to pro bono legal work.

Thank you to our valued sponsor LEAP Legal Software for their support of the CPD Summer Getaway.

Our thanks also to everyone who attended and we look forward to seeing you again soon!

If you missed out on this occasion, please visit lawsocietywa.asn.au to keep up to date and discover more great Law Society CPD seminars and social events.

Sponsored by

Discover more Law Society events at lawsocietywa.asn.au/upcoming-events

25

Elder Abuse and the Family Working towards a national plan on Elder Abuse, and beyond

By Justin Stevenson Director Civil Law Division, Legal Aid Western Australia

This article is adapted from a paper presented at a Law Society of Western Australia CPD seminar on 26 September 2018

Elder Abuse is an issue at the forefront of the minds of policy makers, both State and national.

•

Whether the person is from a culturally or linguistically diverse (CALD) community. Some older people from CALD communities may experience social isolation to a higher degree than other Australians.

•

The older person may otherwise be more vulnerable to abuse because of ill-health or disability and more dependent on adult children or others in the community for care and support, regardless of their age.

Likewise, as practitioners, we are concerned at the increase in clients experiencing elder abuse, particularly financial elder abuse.

In Western Australia, the Select Committee into Elder Abuse Final Report: I Never Thought it Would Happen to Me: When Trust is Broken was tabled in State Parliament on 13 September 2018. The Select Committee made 35 recommendations, and several of them are referred to in this article.

A year earlier, the Australian Law Reform Commission released its final report: Elder Abuse – A National Legal Response.

Defining Elder Abuse

‘older person’ in Western Australia be set at 55 years of age for Aboriginal and Torres Strait Islander people and 65 years of age for nonAboriginal and Torres Strait Islander people.

It is important to adopt a broad definition of elder abuse.

The age at which someone is considered to fall into the category of “elder” is usually about 65, however this should not necessarily be applied in an inflexible way. The Final Report of the Select Committee into Elder Abuse (Western Australia), September 2018, recommended that: RECOMMENDATION 2 For the purposes of defining elder abuse, the starting age for status as an 26 | BRIEF MARCH 2019

It follows that there are several other factors to consider including: •

Whether the person is Aboriginal or Torres Strait Islander. There is a significant gap in the life expectancy of Aboriginal and Torres Strait Islander people and other Australians.

The World Health Organization (WHO) definition of elder abuse is favoured, primarily because it is broad, includes the feature of a relationship of trust, and would also include neglect: ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’ The Final Report of the Select Committee into Elder Abuse (Western Australia), September 2018 concurred with this definition of elder abuse.

The following case study illustrates why the age of the person is not necessarily as determinative of elder abuse as the personal circumstances of the person.

CASE STUDY – JUDITH Judith, a 55 year old lady with a history of mental health issues, including schizophrenia and bipolar disorder, contacted Legal Aid WA (LAWA) for assistance. At various times throughout her life she had been hospitalised and received treatment for these issues.

She was estranged from one of her daughters who lived interstate. Her other daughter, who lived in Perth, was her carer and had an enduring power of guardianship for Judith.

The relationship with her daughter was fractured, and Judith told us that her daughter was verbally abusive towards her and had physically assaulted her on one occasion.

Judith had sold her property and gave the entire proceeds of sale to her daughter, with the intention of her daughter building a new home.

This home was to include a granny flat with its own access and entrance to the road. She estimated she gave her daughter $270,000. Judith was reluctant to move in with her daughter due to their relationship breakdown but felt pressured to do so.

Judith was not consulted during design or construction of the house. Upon completion, she discovered that the granny flat had not been built. Instead, a small wing at the very back of the property was constructed, which contained a bedroom with an ensuite and a small kitchenette. Judith was very unhappy about this. She felt very isolated at the back of the property.

Judith received the disability support pension and had no other savings. She was also socially isolated. She wanted to move out, however lacked the strength and support to do so. She did not want to upset her daughter by asking her for

any money to help her to move out, nor take any action that may adversely affect her relationship with her grandchildren.

Judith did not want to take any action that may upset her daughter, so we were limited in our ability to respond to this situation. Indeed, our visit to Judith was conducted without her daughter’s knowledge.

We could provide legal advice about Judith’s position and her legal options*, as well as information about support services that may be able to assist Judith to transition out of the property and assist her to live independently. * for a recent discussion of the available remedies in trust and equity law, see the edited article by Patricia Lane, Reform in Elder Law – Granny Flats, (2018) 92 ALJ 413.

Elder Abuse can take many forms In our legal practice we are more likely to come across instances of financial or material elder abuse. Other forms of elder abuse include neglect, emotional or psychological abuse, social abuse, physical abuse, or sexual abuse.

the commission of elder abuse.

However, I suspect that the term “elder abuse” may not necessarily resonate with the general population.

Use of the term “elder” may hold connotations for some in the community that an Elder is a certain respected older person in a particular community, rather than any older person.

Whilst for some, use of the term “abuse” may hold connotations akin to violence or physical abuse, such as domestic and family violence, and sexual violence.

There is a risk that the term “Elder Abuse” may alienate many people and some may consider that the message doesn’t apply to them. We should seek to use language that engages people at all levels and across all demographics and age groups.

A series of focus groups with people of various ages and backgrounds in the community would be valuable in determining the most appropriate title to send the right message about the importance of stamping out ageism, safeguarding the rights of older people, and ending abuse, mistreatment and neglect of older people.

For more detail about the broad spectrum of elder abuse and its manifestations I recommend the “examples and signs of elder abuse” identified at pages 15 - 16 of the Elder Abuse Protocol: Guidelines for Action (2017), published by the Alliance for the Prevention of Elder Abuse: WA (APEA: WA).

What are some of the risk factors?

•

A level of dependency on an adult child

Elder Abuse by another name?

•

An adult child with a guardianship order over the parent

•

Complex family relationship dynamics

•

Allegations of verbal abuse and physical violence

The term “elder abuse” is generally favoured because it is used nationally and internationally and is well-known and understood by agencies working to raise awareness of elder abuse, and to prevent

The above case study about a frustrated assets for care arrangement reminds us that there are many risk factors that contribute to the occurrence of elder abuse, including:

Gifts in Wills help us fund Research

Support

Prevention

Australia will become the first country to effectively eliminate cervical cancer if vaccination and screening rates are maintained1. Our daughters and granddaughters will likely live in a world that is free of cervical cancer thanks to Professor Ian Frazer AC, former VicePresident and President of Cancer Council Australia and our investment in cancer research.

Gifts in wills make a real difference. When writing a Will for a client please ask them to consider including a charitable gift.

To find out more contact us on 08 9212 4333 or visit cancerwa.asn.au.

Cancer Council Western Australia (Inc). Level 1, 420 Bagot Road, Subiaco, WA 6008.

ABN: 15 190 821 561 Lancet Public Health 2 October 2018

1

27

•

Social isolation

•

Mental health problems with limited coping strategies

LAWA provides advice and assistance to clients presenting with financial elder abuse problems. A significant proportion of these matters involve duress or fraud committed by an adult child, sometimes in circumstances where the older person has low levels of financial literacy.

Dependence

•

Significant disability

•

Poor physical health

•

Mental disorders (such as depression)

•

Low income or socio-economic status

•

Cognitive impairment

•

Social isolation

Paragraph 2.62 of the ALRC report identifies the following risk factors for perpetrators, namely: •

Depression

•

Substance abuse: alcohol and drug misuse, and

•

Financial, emotional, relational dependence on the abused.

The following case study illustrates how risk factors such as advanced age, ill health, remoteness and loss of a longterm partner combine to increase the risk of elder abuse occurring.

CASE STUDY – WILLIAM William was a 90 year old man living in the North-West. He was diagnosed with cancer of the lymph glands and was given a 10% chance of survival.

He travelled regularly to Perth for medical treatment. William had recently lost his wife of 52 years.

William did not keep his money in the bank, preferring to keep it at home in cash. He is unsure exactly how much cash there was, however he believed it was over $100,000. Because he was worried about leaving the cash at home while he went to Perth for medical appointments he gave the parcel of money to his son for safe keeping. He informed his son that he could use small amounts of cash

28 | BRIEF MARCH 2019

(b) require the appointed decision maker to support and represent the will, preferences and rights of the principal;

Subsequently, William recovered from his illness and asked his son to return the money to him. He required the money to fund his move into an aged care facility. His son only returned $14,000, refused to communicate with him and all contact ceased.

We are very familiar with the risk factors set out at paragraph 2.61 of the Australian Law Reform Commission (ALRC) Final Report, May 2017, in relation to the person experiencing the abuse: •

powers, powers that are limited or restricted, and powers that are subject to conditions or circumstances;

from time to time but had to return all the cash in full to William, when he recovered from his illness. If he passed away, he informed his son that he could keep the cash as he was his only living child. There was email evidence of this agreement.

(c) enhance witnessing requirements; (d) restrict conflict transactions; (e) restrict who may be an attorney; (f) set out in simple terms the types of decisions that are outside the power of a person acting under an enduring document; and

After sending a letter of demand to William’s son, the remaining $86,000 was eventually paid back.

How prevalent is elder abuse?

Research indicates that about 1 in 20 older Western Australians will suffer some form of elder abuse. Financial abuse is the most likely form of elder abuse. With the increasing costs of aged care, there has also been a corresponding spike in the number of older people entering into informal assets for care arrangements with their families. These arrangements are usually made verbally, with no written agreement in place.

At times, elder abuse can be difficult to detect and may remain hidden until the older person reaches a crisis situation.

In our experience, cases involving possible elder abuse may be brought to our attention by doctors (GPs) and allied health workers such as social workers working in hospitals.

Where elder abuse occurs in the home environment, it will be more difficult to identify its prevalence.

(g) mandate basic requirements for record keeping.

Recommendation 5-2 State and Territory civil and administrative tribunals should have: (a) jurisdiction in relation to any cause of action, or claim for equitable relief, that is available against a substitute decision maker in the Supreme Court for abuse, or misuse of power, or failure to perform their duties; and (b) the power to order any remedy available to the Supreme Court.

Recommendation 5-3 A national online register of enduring documents, and court and tribunal appointments of guardians and financial administrators, should be established after: (a) agreement on nationally consistent laws governing:

Data collection for agencies working with older people remains a difficult issue.

i. enduring powers of attorney (including financial, medical and personal);

A defining moment – the ALRC Final Report

ii. enduring guardianship; and

The Final Report of the ALRC: Elder Abuse – A National Legal Response was delivered in May 2017.

I have reproduced a selection of the recommendations below which will be of interest to practitioners:

5. Enduring Appointments

Recommendation 5-1 Safeguards against the misuse of an enduring document in State and Territory legislation should: (a) recognise the ability of the principal to create enduring documents that give full

iii. other personally appointed substitute decision makers; and (b) the development of a national model enduring document.

Some of the recommended changes are quite burdensome however the added burdens around requirements such as witnessing and conflict transactions must be considered in the context of the magnitude of the potential abuse or misuse of an enduring document. It is arguable that the detriment in establishing the recommended safeguards outweighs the benefit (of protection to donors of the enduring power).

It is accepted though that fraud could still be perpetrated, notwithstanding the safeguards recommended by the ALRC. In our experience, elderly clients are extremely reluctant to commence court proceedings against a family member, especially an adult child.

The cost and complexity of Supreme Court proceedings is also a major disincentive to relying on this jurisdiction for satisfaction, whereas SAT (with an established human rights stream) is more flexible and informal in the way it can attempt to achieve resolution of disputes.

In our experience, a national register could assist financial institutions to have a clearer picture of the existence, revocation or other details concerning enduring documents.

Recommendations 20 – 26 of the Final Report of the Select Committee into Elder Abuse (Western Australia) resonate with the abovementioned ALRC recommendations in many respects.

6. Family Agreements

Recommendation 6-1 State and Territory tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement.

Recommendation 6-2 The Social Security Act 1991 (Cth) should be amended to require that a ‘granny flat interest’ is expressed in writing for the purposes of calculating entitlement to the Age Pension.

I strongly endorse the recommendation made by the ALRC that State tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement.

The Supreme Court is not truly accessible to all but the wealthiest individuals and corporations. The family dynamics and power imbalances involved in these types of disputes also mean that a tribunal is a much more appropriate forum for attempting to resolve disputes around family arrangements.

Recommendation 28 of the Final Report of the Select Committee into Elder Abuse (Western Australia) provides: RECOMMENDATION 28 The Government direct the Law Reform Commission of Western Australia to inquire into the possible expansion of the State Administrative Tribunal’s jurisdiction to cover disputes that involve assets for care arrangements.

the Keystart loan, which required the borrower to reside in the property, so the property needed to be sold.

Returning to the ALRC Final Report: 8. Wills Recommendation 8-1 The Law Council of Australia, together with State and Territory law societies, should develop national best practice guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they provide thorough coverage of matters such as:

One of Alfred’s late wife’s children felt aggrieved that the property was no longer in her mother’s estate and believed she had an interest in the property. In an ill-conceived effort to prevent the sale of the property, she registered a caveat against the property.

Despite our numerous requests to remove the caveat, she refused to do so.

We obtained an order in the Supreme Court WA to have the caveat removed, allowing the property to be sold.

(a) elder abuse in probate matters;

Several months after the property was sold, the other party applied to SAT for an order for Administration over Alfred. If successful, he would have lost the right to look after his own finances and the other party would be responsible for managing Alfred’s financial affairs.

(b) common risk factors associated with undue influence; (c) the importance of taking detailed instructions from the person alone; (d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and (e) the importance of ensuring that the person has ‘testamentary capacity’ – understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits.

We represented Alfred in SAT and the application was dismissed for lack of any evidence that Alfred was suffering from a mental impairment.

9. Banking

Recommendation 9-1 The Code of Banking Practice should provide that banks will take reasonable steps to prevent the financial abuse of vulnerable customers, in accordance with the industry guideline, Protecting Vulnerable Customers from Potential Financial Abuse.

The guideline should set out examples of such reasonable steps, including in relation to:

The following case study examines family dynamics, estate planning and some of the perils of family relationships when an adult parent remarries:

CASE STUDY – ALFRED Alfred was an elderly widower, who remarried later in life. Alfred’s new wife was approximately 20 years younger and the new couple both had adult children from their previous marriages.

(a) training staff to detect and appropriately respond to abuse;

The couple purchased a property as joint tenants through a shared equity loan from Keystart Home Loans.

Based on their respective ages, the couple decided that Alfred’s wife would likely survive him and as such, her will left her property to her adult children.

(c) reporting abuse to the relevant authorities, when appropriate;

However, things turned out differently and Alfred survived his wife. Due to the right of survivorship as a joint tenant, Alfred became the sole registered proprietor of the property.

Alfred’s health deteriorated, and he was required to move into a nursing home. This breached the terms of

(b) using software and other means to identify suspicious transactions;

(d) guaranteeing mortgages and other loans; and (e) measure to check that ‘Authority to Operate’ forms are not obtained fraudulently and that customers understand the risks of these arrangements.

CASE STUDY – GEORGE George, a 79 year old man was referred to LAWA by a hospital social worker. He usually resided in NSW with his wife who was in intensive

29

care, receiving medical treatment because of her dementia. George had a stroke seven years ago and was paralysed down the right side.

Although he demonstrated some minor cognitive deficits, he had capacity to instruct.

One son resided in NSW and the two other sons resided in WA. George complained that the eldest son travelled to NSW and had sold all of the furniture in his house in NSW and also took $80,000 from his bank account, allegedly acting under a power of attorney. George was adamant that he did not sign a power of attorney. He stated that his eldest son took him to the bank. He wanted to return to NSW when his wife was well again.

George sought assistance for the return of the money taken from his account.

We contacted Legal Aid NSW, and they undertook title searches of the property which showed that the title was registered jointly in the names of George and his wife. No power of attorney was registered.

Bank statements obtained showed that $80,000 was recently withdrawn from George’s account, leaving a balance of just under $8,000.

We contacted the eldest son and demanded that he return the $80,000 to George’s account. Following our demand, the money was returned in full.

Financial services have made dealing with elder abuse (and vulnerable customers more generally) a priority.

Chapter 14 of the Banking Code of Practice 2019 relevantly provides:

We will take extra care with vulnerable customers

38. We are committed to taking extra care with vulnerable customers including those who are experiencing:

a) age-related impairment;

b) cognitive impairment;

c) elder abuse;

d) family or domestic violence;

e) financial abuse; f) mental illness; g) serious illness; or h) any other personal, or 30 | BRIEF MARCH 2019

financial, circumstance causing significant detriment.

We may become aware of your vulnerability only if you tell us about it.

39. We will train our staff to act with sensitivity, respect and compassion if you appear to be in a vulnerable situation.

Each bank that has adopted the Code will comply by 1 July 2019.

Unfortunately, the Code does not, in my view, go far enough in protecting vulnerable people from actual or potential elder abuse when guarantees are involved.

debt, if any, becomes clearer after the sale of her daughter and son-in-law’s property.

The bank agreed to exercise its rights to repossession of the primary security only at this stage.

The ALRC made recommendations in relation to guardianship and administration:

10. Guardianship and Financial Administration

Recommendation 10-1 Newlyappointed private guardians and private financial administrators should be required to sign an undertaking with respect to their responsibilities and obligations.

Recommendation 10-2 The Australian Guardianship and Administration Council should develop best practice guidelines on how State and Territory tribunals can support a person who is the subject of an application for guardianship or financial administration to participate in the determination process as far as possible.

CASE STUDY – ALICE Alice was a 68 year old age pensioner.

She had no other income or assets apart from the unit she lived in. She was estranged from her daughter and son-in-law, the first and second defendants in Supreme Court litigation.

The plaintiff bank obtained default judgment in a mortgage action in the Supreme Court against Alice. She was named as the third defendant because she was the guarantor for the loan taken out by her adult daughter and son-in-law. The first and second defendants were ordered to give up vacant possession of the property secured by the mortgage and pay to the bank an amount just under $500,000.

Alice was ordered to give up vacant possession of her property and pay to the bank an amount just under $100,000. The bank had taken security over Alice’s property, pursuant to the usual terms of the guarantee – the bank in effect had two secured properties attached to the loan.

Alice was commercially unsophisticated and had not been involved with the court system before.

She felt terribly alone and scared and had been unable to deal with a situation that she didn’t understand.

We contacted the lawyers acting for the bank, requesting that they take a fair and reasonable approach to this matter and repossess and sell the first and second defendant’s property before resorting to seizing and selling Alice’s property. We argued that it was unnecessary to seize Alice’s property before the amount of the

To be effective, this requirement should be accompanied by education, support and assistance to improve the understanding of guardians and financial administrators of their roles, responsibilities and obligations. However, any training or education should not be compulsorily imposed on all guardians or administrators, as there will be many who are quite capable of undertaking their duties in accordance with good conscience and the legal requirements.

These concepts are also reflected in the recommendations made in the Final Report of the Select Committee into Elder Abuse (Western Australia).

The final case study illustrates another instance involving potential elder abuse.

It highlights the benefits of Health Justice Partnerships, by establishing relationships and referral pathways between health professionals and legal services.

CASE STUDY – JUNE A concerned GP contacted LAWA to seek legal advice on behalf of his patient, June, a 90 year old lady.

Her 87 year old husband died the week before. They had been married for 20 years, however, title to the matrimonial home had always remained in his name only.

Her husband’s will bequeathed the matrimonial home to his four children and herself in five equal shares.

After his death, one of the husband’s adult children from his first marriage moved into the home, made arrangements to sell the home and had applied to SAT for a guardianship order over June.

The GP considered that June had mental capacity, although noted that she was somewhat frail.

We provided advice to June about safety planning, potential entitlements under the Family Provision Act 1972, and the guardianship application which had been made to SAT. Following our involvement, the application to SAT was discontinued.

Recommendation 18 of the Final Report of the Select Committee into Elder Abuse (Western Australia) provides: RECOMMENDATION 18 The Government investigate further opportunities to develop and fund new health-justice partnerships and expand existing partnerships that are currently being delivered to older people in the community.

Access to justice Improving access to civil justice options for people affected by elder financial abuse should be a policy and legislative reform priority.

As much as early intervention and prevention of elder abuse is highly desirable (through targeted community legal education and awareness initiatives), there will always be instances of elder financial abuse which involve transfers of large sums of money or real

BWA-Ad264 200218.indd 2

property. Serious allegations of duress, undue influence, fraud or unconscionable conduct may also be a feature of elder financial abuse cases.

In some instances, Supreme Court litigation will be the only available forum for redress, after all other attempts to settle a dispute through negotiation or mediation have been exhausted. Of course, litigation is a very costly and stressful option which rarely delivers positive outcomes for the older person.

The Final Report of the Select Committee into Elder Abuse (Western Australia) turned its mind to the issue: RECOMMENDATION 28 The Government direct the Law Reform Commission of Western Australia to inquire into the possible expansion of the State Administrative Tribunal’s jurisdiction to cover disputes that involve assets for care arrangements.

It will be interesting to observe whether in the future there is an appetite to make changes to the way that people can seek redress for failed assets for care arrangements.

The family dynamics and power imbalances involved in these types of disputes may mean that a tribunal is a more appropriate forum for attempting to resolve disputes involving family arrangements. In my experience, elderly clients are extremely reluctant to commence court proceedings against a family member, especially an adult child.

The cost and complexity of Supreme Court proceedings is also a major disincentive to relying on this jurisdiction for satisfaction, whereas SAT is more flexible and informal in the way it can attempt to achieve resolution of disputes.

There is merit in considering a move away from traditional adversarial

litigation models towards managed case models used by tribunals.

It may be difficult to define the precise scope of the types of matters which could be dealt with in a State based civil and administrative tribunal. The parameters for suitability of matters will need to include criteria such as the applicant’s age, circumstance of vulnerability, whether there was a transfer of land, other property or assets, and consideration as to whether there was fraud, duress, undue influence or unconscionability involved in the transaction.

Other potential barriers include how to deal with long established legal and equitable principles and remedies, common law notions such as the presumption of advancement, caveatable interests and indefeasibility of title.

The situation becomes more complicated where the assets of the older person are in different jurisdictions and/or the perpetrator of the abuse resides in a different jurisdiction to the assets or to the older person.

A national approach may therefore be warranted, especially considering the decision of the High Court in Burns v Corbett [2018] HCA 15. The decision has the effect of confirming that the Civil and Administrative Tribunal of New South Wales (NCAT) (and by extension other State based tribunals that are not a “court of a State”) does not have jurisdiction to adjudicate disputes between residents from different States.

The Supreme Court of WA has warned that SAT is a tribunal not a court even when constituted by a judicial member (see Erunjin Pty Ltd v Western Planning Commission [2010] WASC 32, [55]).

This jurisdictional issue arises because the High Court has held that only the

20/2/18 11:09 am

31

Federal Courts or a ‘courts of a State’ (a special term in the constitution) can exercise federal judicial power. It has also held that only these courts can determine the types of dispute which are set out in sections 75 and 76 of the Constitution. These include: •

disputes between residents of different States

•

disputes between a State and a resident of another State

•

disputes in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.

This means that State Tribunals cannot exercise federal judicial power or determine these disputes, unless they are able to be described as a ‘court of the State’.

Looking forward…

Commonwealth funding initiatives The Commonwealth Government handed down its 2018-19 Budget on 8 May 2018. Under the broader heading “Guaranteeing the essential services Australians rely on”, there are many budget initiatives aimed at “Choice and a healthy long life”. Whilst the majority of initiatives are directed to the aged care system, the Commonwealth Government announced it would: •

•

online register for enduring powers of attorney. An online register was a key recommendation of the ALRC inquiry into elder abuse. The 2018-19 Federal Budget provides funding to develop a national online register of enduring powers of attorney, subject to the in-principle agreement of State and Territory governments to reform enduring powers.

In August 2018, funding of $2 million was announced by the Hon Ken Wyatt AM, MP to the Older Persons Advocacy Network (OPAN). The new funding would allow OPAN to continue and expand its work to support people experiencing elder abuse, whether in the community or in aged care and to advocate for their rights and protection.

The Older Persons Advocacy Network (OPAN) is a national network comprised of nine State and Territory organisations that have been successfully delivering advocacy, information and education services to older people in metropolitan, regional, rural and remote Australia for over 25 years.

Provide $22 million to protect older Australians from abuse, including by funding trials of specialist elder abuse support services.

OPAN’s free services support older people and their representatives to address issues related to Commonwealth funded aged care services. OPAN is funded by the Australian Government to deliver the National Aged Care Advocacy Program (NACAP). OPAN aims to provide a national voice for aged care advocacy and promote excellence and national consistency in the delivery of advocacy services under the Program.

Work with the States and Territories to develop a national online register for enduring powers of attorney.

National Plan to combat Elder Abuse

Briefly, the additional $22 million is provided over five years and will support: •

the expansion and evaluation of trials of specialist elder abuse support services;

•

an Elder Abuse Knowledge Hub;

•

a National Prevalence Research scoping study; and

•

the development of a National Plan to address elder abuse.

The development of a National Plan to address elder abuse is being led by a Council of Attorneys-General officer-level Working Group on Protecting the Rights of Older Australians. In Western Australia the Department of Communities has the lead role in the development of a National Plan.

In addition to the development of a National Plan, the Commonwealth Government announced in the budget that it would work with the States and Territories to develop a national 32 | BRIEF MARCH 2019

The ALRC recommended the development of a National Plan on elder abuse, that provided a coordinated framework for planning and policy development across the Commonwealth, State and Territory governments. In my opinion, some of the main concerns relating to the abuse of older people that need to be addressed in the National Plan are: •

preventing financial elder abuse,

•

increasing financial literacy of older people,

•

creating an online register of enduring appointments,

•

harmonising State and Territory legislation about enduring appointments, with a focus on safeguards against the misuse of these documents,

•

preventing physical and sexual abuse in aged care settings, and

•

promoting the autonomy and agency of older people, with respect as an underlying key message

The development of a National Plan was announced by the Commonwealth Attorney-General the Hon Christian Porter MP in February 2018 at the National Elder Abuse Conference in Sydney. A working group was formed and has made significant progress on developing the National Plan.

Legal Aid WA (LAWA) The Civil Law Division at LAWA regards elder financial abuse as a priority area of legal need. Assistance in elder financial abuse matters is provided by way of legal advice, minor assistance or representation under a grant of legal aid. We assist in a range of matters where elder abuse is a feature, including the following: •

Granny flats and assets for care arrangements

•

Misuse of Enduring Powers of Attorney

•

Legal capacity, guardianship and administration, State Administrative Tribunal

•

Home loans and elderly guarantors/ mortgage default

•

Financial arrangements and financial abuse, including stealing and fraud

•

Protection and safeguarding from violence (VROs)

LAWA has also appeared in hearings at SAT in guardianship and administration matters, especially where elder abuse is a factor.

In recognition of the surge in elder abuse matters we have implemented a dedicated senior’s rights and advocacy service which will deliver an enhanced advice and assistance service, as well as develop and deliver community legal education.

WA State Government The State Government has backed the majority of recommendations included in the Select Committee into Elder Abuse Final Report. Only one of the report’s recommendations, which called for a State register of enduring powers of attorney was rejected, with the government noting that the Federal Government was developing a comprehensive national register for enduring powers of attorney, and that this was the State Government’s preferred approach.

LAWA has recently launched its Seniors Rights and Advocacy Service to combat elder abuse and safeguard the rights of older Western Australians.

AVAILABLE NOW

CPD PROGRAMME FEBRUARY TO JUNE 2019

build YOUR KNOWLEDGE WITH THE LAW SOCIETY lawsocietywa.asn.au 33

Issues from the 2018 Review of the Contentious Business Determinations

By Clare Thompson Barrister, Francis Burt Chambers | Chair, Legal Costs Committee This article is adapted from a paper presented at a Law Society of Western Australia CPD seminar on 24 October 2018

Introduction Western Australia is one of the few jurisdictions to retain a full range of costs determinations set by an independent authority not associated with the Courts.

In this State that role is undertaken by the Legal Costs Committee, a statutory authority established for the purpose of making those determinations, regulating the charges that can be made and the costs which can be recovered for providing legal services. A full list of all the current determinations is set out at the end of this paper.

In the past decade the two reviews of the legislative framework regulating the legal profession in WA, leading to the Legal Practice Act 2003 and the Legal Profession Act 2008, have resulted in the retention of the Committee and with minor exceptions, its powers and functions have remained largely unaffected. There is of course a current review going on with a view to WA becoming part of the national scheme.

It remains to be seen whether the Legal Costs Committee will be retained, or retained in its present form, when those changes take place.

34 | BRIEF MARCH 2019

Costs determinations operate to regulate the charges which a legal practitioner, including a barrister, is entitled to charge in the absence of a written costs agreement. They also serve the function as being the basis on which a taxation of costs is undertaken by the taxing officers of the various courts in this State, which means that even in circumstances where you have a costs agreement contracting out of the determination, a taxation either on a party/party basis or on a legal practitioner/own client basis, will always lead to a consideration of the rates charged by the practitioner in light of the applicable determination.

In the absence of a determination specifically relevant to a dispute, a taxation as between practitioner and client, i.e. a Legal Profession Act taxation, will be undertaken by analogy to the relevant determination. Whilst in most cases this would likely be the Supreme Court determination, it might not be, for example, if the work performed was in the AAT and the SAT determination was regarded as the more analogous. Consequently, it is important to be aware of all the relevant determinations and how your fees might

sit relative to them.

It is fundamental to the use of determinations to understand that they set maximum amounts which practitioners can charge in the absence of a written agreement. They do not set average amounts or even “the usual� amount.

Legislative framework Part 10 of the Legal Profession Act 2008 contains provisions in Divisions 5 and 9, which deal with the setting of determinations. Section 310 in Division 9 establishes the Legal Costs Committee, whose function it is to set the determinations.

The setting of determinations comes about by reason of the provisions of Division 5 of Part 10 of the Legal Profession Act. Section 275 provides that the Committee may make legal costs determinations, regulating the costs that may be charged in respect of noncontentious business and contentious business before a range of courts and tribunals. The Legal Profession Act 2008 saw the inclusion of the State

Administrative Tribunal and the Family Court of Western Australia in the list of jurisdictions for which the Committee could make determinations, as a result of which, in 2008 and 2009 the Committee promulgated determinations for each of those jurisdictions for the first time.

Those determinations are practitioner/ own client determinations.

Part 10 Division 5 Legal Profession Act provides that the Committee is required to review each determination once in every two years after it is promulgated.

The Committee is empowered to set determinations of costs on any basis that it regards as reasonable. Therefore, whilst there is a set timeframe within which determinations are reviewed, there is at the same time a degree of flexibility as to how determinations will look and whether they will vary from review to review or across different types of work. Because of this the same basis of charging is not used in all determinations or for all items within determinations, see for example the 2010 amendments to the Probate Determination, the Notaries Determination and new Item 12 in the 2018 Supreme Court Determination.

The Committee is able to hold general inquiries and make a report to the Attorney General on any matter relating to its jurisdiction.

A written agreement which is outside the limitations of the determination is an agreement under Division 6 of Part 10 of the Legal Profession Act 2008, known as a “costs agreement”, with the obligation to enter into a written costs agreement pursuant to Section 282 being quite separate from your obligation under the Act to provide clients with appropriate costs disclosure. Therefore, if you intend to charge more than the determination allows for, you have to provide costs disclosure and enter into a written costs agreement. If, on the other hand, you only seek to recover costs up to the limits provided for in the relevant determination, you do not have to enter into a costs agreement but you still have an obligation to provide costs disclosure.

Legal Costs are also governed by other legislation in specific instances. For example, section 27A Motor Vehicle (Third Party) Insurance Act provides that a legal practitioner, which includes a barrister, cannot enter into an agreement to charge more than the amount in the determination applicable to proceedings under that Act. Part 2A Civil Liability Act which came into effect on 1 July 2018 is to the same effect in respect to personal injuries claims arising from child sexual abuse. Consequently, there

should be no lawyers charging more than the rates in Table A of the Supreme and District Courts Contentious Business Determination 2018, for those types of claims.

There are also restrictions in place in respect to Workers Compensation work, which is not governed by a determination under the Legal Profession Act, but rather one set by the Workers Compensation Commission.

The Committee and its approach to costs The Legal Costs Committee comprises three legal practitioners and three non lawyers, one of whom must be an accountant. The present members of the Committee are myself as Chair, Matthew Curwood and Brendan Ashwood as the legal practitioners and Marcus Cocker (a retired public servant), Janice Dudley (an academic at Murdoch University) and Angela Gaffney (an accountant) as the non lawyers. The Committee has had quite stable membership over the past 10 years or so with Brendan Ashdown’s appointment in 2016 the most recent change. Ms Gaffney has been a member since the early 1990s. As a result, the Committee’s corporate memory is substantial.

The Committee is supported through the Department of the Attorney General by a secretary. The Committee’s budget is in the order of $110,000 per annum, paid from consolidated revenue and its expenses include members’ sitting fees, advertising, publication of determinations in the Government Gazette and secretarial services. The Committee operates via regular meetings where submissions on the determinations are considered and decisions are made.

Members of the Committee are paid an annual stipend. The amount is modest and has not been increased in the 16 years I have been on the Committee.

As a statutory authority, the Committee’s annual reports are tabled in Parliament each year, along with the accounts.

All determinations are published in the Government Gazette shortly before their effective date and are available on the internet at the Committee’s web page www.legalcosts.wa.gov.au. They are also available in various loose leaf services.

A full historical set of determinations is available on the web-site, going back to 1996.

The Committee can make whatever enquiries it chooses, subject to a requirement that we seek submissions.

In practice this means that we are very flexible in how we approach the information gathering phase of our enquiries. We have had the opportunity to obtain input on particular issues with various people over the years, ranging from Judges, Magistrates and Registrars of various courts, to members of the profession with particular practice areas, as well as consumers and the LPCC. We have been assisted in this by the Law Society and WA Bar Association providing access to members in particular practice areas who can assist in our deliberations. This means that despite the fact that all practice areas are not represented at the Committee table, we endeavour to obtain real information from practitioners in the field of the determination under review.

When a determination is published, it comes in two parts, a report which sets out what we have done and why, and the determination itself. Not everything we change is explained in the report but we endeavour to explain the significant changes made or how we envisage certain items working.

The principles underpinning the determinations There are a number of principles which guide the way in which the Committee sets determinations. These include: 1.

Determinations are a consumer protection mechanism; consequently they are not intended to be and will never be, reflective of actual market rates.

2.

Determinations provide for reasonable rates of remuneration for the work done by a practitioner of a particular seniority. It is always open to seek special costs orders to lift the scale if the rates are not sufficient in particular circumstances.

3.

All figures in the determinations are GST inclusive.

4.

Numbers are generally divisible by 11, to reflect the GST component, which is referred to in the reports as “administrative ease”.

5.

Daily rates provided for counsel in the contentious business determinations reflect a ten hour day, which is intended to cover everything done on a court day, even if the actual hours worked by counsel were more than the ten allowed for. This means that if you intend to charge for non-court work on an hourly basis in addition to 35

the ten hours allowed by the scale, you must disclose this in your costs agreement and if you are capped by reason of either the Motor Vehicle Act or the Civil Liability Act, you cannot charge more than the daily rate.

6.

Contentious business determinations are reviewed in even numbered years, as a group, so that the same hourly rates are applicable in all determinations in that group.

7.

Non-contentious business determinations are reviewed in odd numbered years, as a group, so that the same hourly rates are applicable in all determinations in that group.

8.

There is no difference based on area of law.

9.

In Family Law, there is no difference in rates arising from whether the matter is heard by a Judge or a Magistrate. I explain this further below.

10. In the contentious business determinations, work done in the superior courts attracts higher rates than work done in the Magistrates Courts. This is because of the higher monetary jurisdiction, or more serious offences which are tried in these courts and because it is generally recognised that more senior practitioners appear in the superior courts.

The Committee uses the Magistrate’s Court rates for the State Administrative Tribunal because of the underlying philosophy of SAT and the fact that a great deal of work undertaken in SAT is done by non lawyers.

11. The Committee aims to produce its determinations to a regular pattern.

Therefore, since 2004 contentious business determinations have been amended with effect from 1 July in the relevant year. The non-contentious determinations are generally reviewed in the odd numbered years, with an effective date of 1 July.

Deliberations by the LCC Prior to commencing a review of the determinations the Committee must advertise, which is usually done in the West Australian, and write to various identified people, including the Chief Justice and the Law Society, requesting submissions. We also write to specific organisations in appropriate 36 | BRIEF MARCH 2019

circumstances, for example, the Criminal Lawyers Association in relation to the criminal determinations. We always also invite the WA Bar Association to make submissions.

In undertaking a review, the Committee will look at a range of issues and give consideration to all the submissions that are made to it. We also obtain the most up to date CPI data and have in the past commissioned questionnaires for the purpose of providing us with key information. We meet with practitioners and others with an interest in the area, if there are questions we need answered or issues which require clarification.

In the past 5 years or so the Committee has undertaken regular reviews of taxed bills in both the Supreme and District Courts. This provides us with useful information on the quantum of costs claims made for various items, amounts taxed off, the items commonly relied on, understanding of appropriateness of various scale items and similar. The information we obtain is generic rather than particular to individual matters and helps us understand trends. We do not obtain copies of bills or any identifying material.

Trends/issues There are a number of significant trends in costs in the Supreme and District Courts in the past few years. It appears that the Courts are taking a close look at legal costs, particularly in the context of civil claims which involve individuals, rather than corporate parties, and so who may otherwise have barriers accessing justice.

The first significant trend has been the move from taxation of costs in the Supreme Court to provisional assessments. Over 50% of costs assessments in the Supreme Court are finalised through provisional assessments, which provides for a quicker and cheaper resolution of costs disputes. The Committee’s reviews of costs has not identified any substantial difference in outcomes in provisional assessments as compared to traditional taxations.

The second trend has been the increased scrutiny of costs in personal litigation, particularly estate litigation.

This type of litigation involves more than Family Provision Act claims, which I deal with below, and includes applications for directions under section 92 Trustees Act, applications for proof in solemn form and other civil litigation involving questions as to the assets of an estate,

e.g. claims in equity. The courts have questioned the need for representation of different parties with a coincidental interest (e.g. various beneficiaries using separate representation), the active involvement of executors in disputes between beneficiaries, the active involvement of beneficiaries when the executor is the proper defendant or plaintiff, the quantum of costs charged in Family Provision Act claims, the taking of issues in various types of claims which should not have been taken and so on.

The courts are looking to practitioners to actively manage cases in the most cost effective manner possible to ensure they get to trial on the real issues and don’t take longer to try than they should.

A third trend, or perhaps merely an observation is that virtually no bills of costs are taxed at 100% and many have 20% or more taxed off. This result pertains to both Supreme and District Court taxed or assessed bills. So, don’t expect to have your client’s bill accepted at its face value.

Finally, the courts have become increasingly conscious of the costs in terms of court resources and to the parties of “costs” litigation. It is worth reading the passage at [118] – [122] in Johnson v Denwest Nominees Pty Ltd (t/as Cunderdin Roadhouse) [2017] WASCA 200. Similarly critical comments have been made in Blatchford v Laine [2018] WASC 207, Blatchford v Laine [2018] WASC 207(S) and Miller v Taylor [WASC] 75.

Some issues dealt with in the 2018 reviews Family Provision Act claims In calling for submissions for the 2018 reviews in September 2017, the LCC specifically raised concerns regarding costs in Family Provision Act claims.

For the 2-3 years prior to 2018 we had received considerable feedback that there were substantial issues with costs implications in these types of cases. The common complaints included: •

plaintiffs’ costs being an impediment to settlement at mediation because of the structure of fee agreements entered into with their solicitors, e.g. no payment up front but a payment in the range of $35,000 - $70,000 within two weeks of settlement / judgment regardless of outcome, a problem which appears predominantly associated with some lawyers based outside WA and who obtain their clients from marketing on the internet;

•

unrealistic views by plaintiffs of their prospects at trial, often, apparently, fuelled by solicitors who fail to properly advise of the difficulties faced in succeeding in the action, which in turn lead plaintiffs to reject a good offer at mediation and incur further costs before settling the matter prior to trial;

•

a failure to recognise “fatal flaws”: e.g. in very small estates, less than $100,000, it will take a very meritorious claim to overturn a testator’s wishes; the Supreme Court has no jurisdiction to “swap” bequests between beneficiaries e.g. when a claimant is otherwise well provided for but simply would prefer the asset left to his sister; a plaintiff who earns more than the value of the estate;

•

unnecessary and often inflammatory affidavit material filed by plaintiffs in commencing the action, which increases the cost of the affidavit, inflames the parties and may lead to a breakdown in relationships, which doesn’t assist in achieving settlement;

•

failure to provide basic information as to their own financial circumstances in the initial affidavit and failure to explain what they want/need, resulting in further affidavits and hence further costs; and

•

a failure by defendant beneficiaries to attempt to constructively resolve the dispute, and thereby placing issues in contention that are not really, or should not really be, in dispute.

provides for: •

fixed costs to mediation, including an allowance for a subsequent mediation, the amount varying depending on the party;

•

a costs penalty for irrelevant or unnecessary affidavit material;

•

claims post mediation are to be taxed in accordance with the item applying to an originating summons, the maximum for which is $37,290 for a 1 day hearing, but that maximum is limited to $32,340 (being 1 day hearing, 2 days prep for counsel and maximum 40 hours

The Committee has included item 12 in the Determination, to be read with the notes at paragraph 9, to attempt to address some of these issues. Item 12

getting up for senior practitioner); •

additional amounts under other items are not claimable; and

•

generally, a plaintiff’s costs following trial will be capped at the amount of the judgment if successful.

These changes were made in consultation with the Court and in particular the Registrars who case manage and mediate these claims, hence PD 9.2.2 works hand in glove with the amendments to the Determination.

The Committee is of the view that a cap on legal fees should be introduced for

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding.

E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth.

We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

For information, visit www.dogshome.org.au or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.

37

low value estates, being estates worth less than say $750,000, or possibly $1 million. We are of the view that legislation similar to the Motor Vehicle Act and the Civil Liability Act is appropriate. We have written to the Attorney-General regarding this. In this way the balloon payment structure adopted by the various interstate lawyers will not be permissible and they will be capped at item 12 levels because they will not be able to contract out of the determination.

Civil Liability Act – child sexual abuse On 10 April 2018 Parliament enacted changes to the Civil Liability Act which had several significant features being, the limitation period for damages claims arising from child sexual abuse being lifted and lawyers’ fees for this type of work being capped at the level in the appropriate determination.

The Attorney-General wrote to the LCC asking us to consider, in the 2018 reviews of contentious business determinations, whether any particular items needed to be included. In the end we decided that no specific item was required but that the limits in the Supreme Court Determination would apply. At the time the 2018 Determination came into effect there were in fact no cases in the District Court under the changes to the Civil Liability Act, because the limitation period was only lifted from the date on which the 2018 Determination came into effect, so our work in April – June 2018 in this case was predictive and in that sense hypothetical. It is possible that over the coming years some specialist procedures may be brought in to deal with these types of cases in the District Court, and we will look at the issue again in the 2020 review.

Family Law In late 2016, after the publication of the 2016 determinations, it was brought to the Committee’s attention that there was an issue with the coverage of the Family Court Determination at that time as a result of the difference between the Family Court of WA and the exercise of Family Law powers by Magistrates, both sitting in the same building as the Family Court of WA and elsewhere in the State. We implemented an urgent review of family law costs in the Magistrates Court and promulgated the Legal Profession (Magistrates Court) (Family Law) Report 2017 in February 2017. That determination was reviewed in 2018 and will continue to be reviewed concurrently with all contentious business determinations.

38 | BRIEF MARCH 2019

This is the only area of law where there is no difference between the rates applicable to the work done in the Magistrates Court and the superior court. The reasoning behind this is that administratively, for lawyers and their clients and the court, it would be an unnecessary burden to impose different rates, and thereby require variations to costs disclosure depending on the judicial officer hearing the matter.

This is because the allocation of a Magistrate or a Judge to a matter is not pre-determined by the nature or value of the matter itself but often arises from the administrative and judicial resources available on a day to day basis. Additionally, matters may move between a Magistrate and a Judge with no request from a party, but to suit the administration of the Court.

need for a special item had been well known amongst lawyers working in the area, but had never previously been communicated to the Committee. The lesson from this is, if you see something that requires dealing with, let us know.

You don’t have to make a formal submission, just an email to LCC@ justice.wa.gov.au at any time in the cycle will bring the issue to our attention.

The determinations themselves make it very clear they are to be read together.

A new name

The impact of the Federal Court and Family Court merger proposal is something that the Committee will no doubt consider in the 2020 reviews.

Workers compensation settlements A new item 37 was included in the Supreme Court Determination, dealing with settlement deeds made under section 92(f) Workers Compensation and Injury Management Act. This was a good example of what I call “divine osmosis”. Apparently the

Amendments to item 21 There were a number of changes made to item 21 - trials. These deal with the filing of written submissions and the circumstances where an additional charge may be made for providing written closing submissions. Take care to read the changes so that you understand the pre-conditions for an additional fee to be recoverable in a party-party taxation.

Legal Profession (Supreme Court) (Contentious Business) Determination 2016 became the Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2018 with the last review. This does not reflect any substantive change in content but was done to make it clearer to people that this determination covers both of those Courts.

Endnotes 1.

Whilst I am the Chair of Legal Costs Committee WA, all opinions expressed in this paper are mine alone and not necessarily reflective of the views of any or all other members of the committee.

CURRENT DETERMINATIONS Contentious business Legal Profession (Supreme Court and District Courts) (Contentious Business) Determination 2018 Legal Profession (Supreme and District Courts) (Criminal) Determination 2018 Legal Profession (District Court Appeals) (Contentious Business) Determination 2018 Legal Profession (Family Court of Western Australia) Determination 2018 Legal Profession (Magistrates Court) (Family Law) Determination 2018 Legal Profession (State Administrative Tribunal) Determination 2018 Legal Profession (Magistrates Court) (Civil) Determination 2018 Legal Profession (Magistrates Court) (Criminal) Determination 2018 Legal Profession (Official Prosecutions) (Accused’s Costs) Determination 2018

Non-contentious business Legal Profession (Solicitors Costs) Determination 2017 Legal Profession (Non-Contentious Probate Costs) Determination 2017 Legal Profession (Public Notaries) Determination 2017 See our website at www.legalcosts.wa.gov.au for all current and former determinations as well as other useful information.

Vale The Honourable Geoffrey Miller QC

Brief was saddened to learn of the passing of former Law Society President, the Honourable Geoffrey Peter Miller QC, who died on 8 February 2019 at the age of 76.

Geoffrey was always destined for great things, having been educated at Perth Modern School, before going to university, from where he graduated with First Class Honours.

At the University of Western Australia, Geoff was a noted athlete, winning a half blue in 1962 and a full blue in 1963. By a serendipitous turn of events, one of the officials at an athletics meet was a partner in the firm of Boultbee Godfrey Virtue, who offered articles to the young Miller on the spot.

Geoff Miller was admitted in 1965 and practised for a time as a partner at Boultbee Godfrey Virtue before branching out into his own firm, particularly specialising in personal injury and criminal law. He joined the West Australian Bar Association in 1980 and took silk in the same year. It is as a Queen's Counsel that older members of the Society best remember him. He forged a reputation as a formidable crossexaminer. He was always on top of the law in a particular case and had an objective, clinical approach.

Although Geoff on occasion was briefed for the prosecution, it is as defence counsel and as a leading personal injury lawyer that his

reputation grew. Although he acted for many of the "big names" around town, no case was too small and he applied the same energy to a case funded by Legal Aid as to one with a wealthy accused. As an opponent, Geoff was always fair and ethical.

In 1998, Geoff accepted appointment as a Justice of the Supreme Court where he served until ill health caused his retirement in 2009. The last two years were served as a Judge of Appeal.

It was as a Judge in the criminal division and on the Court of Criminal of Appeal, later the Court of Appeal that Justice Miller excelled. In his address at Justice Miller's farewell, Chief Justice Martin remarked: “During argument your Honour has always been quick to let counsel know your tentative thoughts on any and indeed every issue in the case.

In my experience, this was never done in an overbearing manner but rather for the purpose of elucidating the issues and providing counsel with the opportunity to put argument in opposition to your Honour's tentative views which could often be swayed during the course of debate.”

Outside the law, Geoff Miller QC maintained an active interest in many affairs. He was a lifelong supporter of the WA Sporting Car Club and his many high powered vehicles over the years gave testament to this.

Geoffrey Miller could sometimes be found behind the wheel of a vehicle speeding around the Barbagallo Raceway.

He was the co-author of A Dangerous Life, which he wrote with Chum Taylor, a speedway legend.

Geoffrey Miller was an active and enthusiastic race goer, often to be found on a Saturday afternoon at Ascot or Belmont racecourses.

On Sundays, he would always be found in church. He was a deeply devout Christian who practised his faith quietly.

Geoff Miller loved music and Australian art. He led the Supreme Court Art Committee and played a significant part in arranging for the portraits of the Chief Justices that now hang in Number One Court.

During his time at the Bar, Geoffrey Miller mentored numerous young advocates and enjoyed teaching them the art of advocacy.

Geoffrey had a feel for the commercial aspects of law. He was, for a time, a Director of Channel Seven with the late Robert Holmes à Court. In the days before lawyers were able to advertise, Judge Bowden (as he now is) once remarked that the only person who could walk more slowly than Ron Cannon when there was a TV camera about, was Geoff Miller.

The Honourable Geoffrey Miller QC was one of those powerful figures in the law, whose influence will live on long after their passing.

39

Farewell to the Honourable Justice Michael Barker

Ceremonial Sitting of the Federal Court of Australia Wednesday, 30 January 2019

By Greg McIntyre SC, President of the Law Society of Western Australia

Kaia kaia kaia Nyuny kaditj ngulluck nyinniny Whadjuk Noongar Boodjah Nyuny burruniny quop kaditj kanya Nitja baarl birrdiya baarl boodjah Koorah yeye borrdahwan Kaia

Listen up I know that we are on Whadjuk Noongar Land I am carrying the greatest knowledge and respect For the leaders of the country Past present and future Okay 40 | BRIEF MARCH 2019

2019 is the UNESCO Year of Indigenous Languages. It is appropriate given your Honour’s career history and interests that I commenced my address on behalf of the Law Council of Australia and the Law Society of Western Australia with an acknowledgment to country in the Noongar language. I thank Len Collard for his linguistic assistance.

Since your Honour advised me over a coffee in the first half of 2018 of your planned retirement, I have been looking forward to making this speech; seeing it as an opportunity to reflect on your Honour’s career, some significant parts of which I have had the privilege to observe.

I first calculated that this event might occur late in 2018, so I spoke to my predecessor as President of the Law

Society, Ms Cormann about whether she would relinquish the task to me. She readily agreed. When your Honour the Chief Justice wrote to Ms Cormann and Mr Bayles of the Law Council and inquired, ever so politely, whether consideration might be given to a joint address by the two bodies my CEO emailed me to say, well that’s one speech you won’t have to do: the President-elect of the Law Council Konrad de Kerloy can make the speech for both bodies. I quickly responded that it is a speech I particularly wanted to make and that same day had Konrad’s agreement to allow me to speak for both bodies, for which I thank him.

My first professional interaction with your Honour was in 1989 in relation to the case of Bropho v WA. Your Honour had taken on pro bono the argument at first instance that the Crown is bound by the Aboriginal Heritage Act of WA by implication. Master White unsurprisingly adopted the traditional view of the Province of Bombay case that the Crown is only bound by express words or by implication if the legislative purpose would otherwise be wholly frustrated.

Your Honour and I then discussed the matter and (with the advantage of being

to fight the real battle on another day, or to fight the real battle on another battle field more advantageous… or simply to have a re-match… a freedom fighter… an urban terrorist, naive democratic theorist or dilettante with nothing better to do with his or her time”.

Overlooking the pejorative aspects of the description, I embraced the notion his Honour had introduced to me. After the High Court’s decision in Bropho, the then WA Attorney-General, the Hon Joe Berinson, announced that legislation would be introduced to overturn the effect of the decision, which prompted me to present a paper at the 1990 Law Society Winter Conference on Bropho and the Aboriginal Heritage Act subtitled “Death of the Juridical Guerilla”. The presentation included a slide entitled “The Gang of Four Juridical Guerillas” depicting Barker, Churches, Le Miere and McIntyre as various species of primates (referencing the role of his Honour and Dr Stephen Churches in Bropho and Rene Le Miere (then President of the Law Society and now the Senior Puisne Judge of the Supreme Court of Western Australia) in other judicial review cases in the Supreme Court relating to the Old Swan Brewery).

in a salaried position as Principal Legal Officer of the Aboriginal Legal Service of WA at the time) I took it on appeal to the Full Court and High Court. I remain unclear as to how much your Honour’s relinquishing the case to me had to do with the fact that having taken the matter on pro bono your partners at Keall Brinsden may have also incurred the cost of replacing the office furniture in the firm’s reception area after Mr Bropho’s grandchildren exercised their artistic skills on it. Your Honour may have noticed that the case recently provided a substantial basis for the High Court decision in Commissioner of Taxation v Tamaras delivered on 13 December 2018.

On 17 October 1989 your Honour presented to a Law Society Seminar on Prerogative Relief in Western Australia a paper which made reference to the concept of the “Juridical Guerilla”, which you described as the individual seeking prerogative relief as “a means of politicising an issue [to] force an incumbent administration to come to its senses before it is too late[; a person engaging in] an act which is calculated to embarrass the administrator, or buy time to fight the real battle on another day, or

I was so wedded to his Honour’s analysis that I subsequently delivered more seminar papers on judicial review subtitled “Return of the Juridical Guerilla” and “The Juridical Guerilla Rides Again”.

Your Honour was not averse to catchy titles yourself. When I interviewed you for Brief magazine shortly after your appointment to the Supreme Court in 2002 you drew my attention to an article you had written for Brief in 1999 entitled Bagging Judges: Good Sport or a Dangerous Game. In the article you referenced Western Australia’s first resident Judge of this Court, the Hon John Toohey AC QC as saying that the independence of the judiciary cannot be used as an excuse for saying that judges cannot be criticised and expressed the view that our community develops its values from informed and robust criticism of legal principles. When delivering the Sir Ronald Wilson Lecture in 2010 on the topic “On Being a Chapter III judge” you emphasised the difference between the function of a judge in declaring the law and that of a legislator and your subscription to the ideal that a government of laws is better than one of people.

His Honour was Vice President of the National Environmental Law Association when it was first established in 1982

with his colleagues who, like his Honour, remain national leaders in that field: Simon Molesworth (now a Judge of the NSW Land and Environment Court), Ben Boer (now an Emeritus Professor of the University of Sydney), Rob Fowler (now an Adjunct Professor of the University of South Australia) and Dr Gerry Bates (an Adjunct Professor of the University of Sydney and the ANU). That group was famous for forming a barbers’ quartet who at each NELA Conference dinner would render a ditty composed during the Conference which drew attention to controversial environmental issues of the day.

Your Honour was the Inaugural President of the State Administrative Tribunal 2005-9, which was set up based on the 2002 report of the WA Civil and Administrative Review Tribunal Taskforce which you chaired (as acknowledged by the then Attorney-General the Hon Jim McGinty at your Honour’s welcome to the Supreme Court of WA). I know your Honour’s only regret is that you were not able to persuade the Government of the day that the Tribunal should include a jurisdiction relating to environmental matters which would have mirrored the role which the Land and Environment Court of NSW plays.

It has been the practice of the Australian Environmental and Planning Law Group of the Legal Practice Section of the Law Council of Australia over several years to conduct an annual or biennial professional development event at which we choose to invite leading lawyers in the field of Environmental and Planning Law to that event to honour the contribution made to that field of law. Over the past few years I have been simultaneously speaking to his Honour, the Honourable Christine Trenorden, formerly of the Environment, Resources and Development Court of South Australia and another much admired former Judge of this Court, the late Honourable Murray Wilcox AO QC about their availability to attend such an event. As it turned out we were able to have the Honourable Murray Wilcox in attendance in March last year. I know your Honour and the Court would join me in commemorating his gigantic contribution to the law, particularly in the field of Environmental and Planning Law. He was President of the Australian Conservation Foundation between 1979 and 1984 and he is most fondly remembered in Western Australia for his decision in Bennell v Western Australia in which he concluded that the Noongar People comprised a single society 41

put an optimistic view about the future value of native title for native title parties.

When I interviewed your Honour during the course of that conference for a video now posted on the website of the Australian Institute of Aboriginal and Torres Strait Islander Studies we reviewed your involvement as a barrister and judge in the area of Native Title over 25 years and you expressed a desire to continue to make a contribution in relation to Indigenous issues. True to your word I note that the Council of the Law Society at its December meeting endorsed the fact that you have volunteered to be Convenor of its Indigenous Legal Issues Committee and I look forward to working with your Honour in that arena in the coming year.

and Bropho v Tickner relating again to Aboriginal Heritage Protection and the old Swan Brewery site which led to Tickner v Bropho, in which a Full Court, presided over by former Chief Justice, the Honourable Michael Black AC, QC relied on the expressed objects of the Aboriginal and Torres Strait Islander Heritage Protection Act to identify the beneficial purpose of the legislation as an important factor in its interpretation.

The Australian Environmental and Planning Law Group is now planning to honour your Honour Justice Barker and the Honourable Christine Trenorden in March this year in Sydney in the course of an event in which the Mahla Pearlman Oration will be delivered by Professor Megan Davis on Constitutional Recognition of Aboriginal and Torres Strait Islander People: a very good fit for your Honour.

I interviewed your Honour for the Law Society’s Brief magazine in August 2002, a week after your appointment to the Supreme Court of Western Australia on 9 August 2002. You commented that you had “been lucky to be involved in the vanguard of native title litigation soon after the enactment of the Native Title Act in 1993”. I concluded the article with the comment: “His Honour’s elevation has left a significant gap nationally in the ranks of Senior Counsel experienced in the complexities of conducting native title trials”. It may be that the then Chief Justice David Malcolm read that article; in any event, I received a call from him on 13 December 2002 advising me that he had accepted my application for silk.

So I thank your Honour for creating that gap for me.

It appears to me that your Honour has 42 | BRIEF MARCH 2019

been very deliberately transitioning from judicial office into the next phase of your life over the past few years. I have been a Facebook “friend” of your wife Sharon (based on mutual interests in Indigenous affairs) for some years before she became your wife, before I knew that the two of you were acquainted and before I met her in person. She first mentioned you on the related medium, Messenger, when we happened, coincidentally to be both travelling in Spain two years ago and posting our holiday photographs.

It took a moment for the penny to drop that you were the Michael that she said had suggested we catch up during our travels. As it turned out, we were doing the circuit of Spain in opposite directions. After that I started noticing Sharon’s postings in company with a certain “Mike Bee” and photographs of a person bearing an uncanny resemblance to your Honour. Facebook postings do tend to over-emphasise the recreational aspects of one’s life. However, your Honour is giving the appearance of having fully grasped the concept of enjoying life outside of the law and judicial office.

I will conclude as I started, this time in Meriam Mer (noting your Honour’s respect for Indigenous People, rights and the environment), I leave you with a commandment of the God Malo, the octopus who created the eight tribes of Mer:

Malo tag mauki mauki, Teter mauki mauki.

Malo tag aorir aorir, Teter aorir aorir.

Malo tag tupamait tupamait, Teter tupamait tupamait.

Malo keeps his hands to himself; he does not touch what is not his.

He does not permit his feet to carry him Towards another man’s property.

His hands are not grasping He holds them back.

Indeed, your Honour has another mass media persona. The freoview.wordpress website in March 2017 described you as “Fremantle local Michael Barker” running a new online Fremantle Shipping News lifestyle magazine about today’s Fremantle, Fremantle food, heritage, architecture, art, etc.

He does not wander from his path.

Your Honour has regularly attended and presented papers at the annual National Native Title Conference. In Broome last June you addressed the topic: “Not so fragile a thing: The evolving character of native title, 1993 to 2018” in which you

Loosely translated, Malo’s command, which I leave you with in your retirement, is that you will continue to “do what is right while walking lightly upon the earth”.

He walks on tiptoe, silent, careful, Leaving no sign to tell that This is the way he took.

The Tale of the Famous Button Seller

By John McKechnie QC

There once lived a man who seemed to make a living selling buttons at shows because there was good dough in it.

But the forces of law and order suspected all was not as it appeared.

sometimes seen in the company of convicted or suspicious persons.

The button seller was well dressed and respectful and seemed to have money sufficient for his needs.

The learned Judge had trouble with the meaning of ‘evil fame’. It was not found in standard or legal dictionaries as a phrase of specialised meaning and were not words in common use.

However, it was his companions who caught the eyes of the authorities. They were fellow showmen whom he met in public places by day.

Now it may seem hard to believe but less than 70 years ago, certain behaviour could lead to a person being deemed an idle and disorderly person, a rogue and vagabond, or worst of all, an incorrigible rogue.

Moreover, the law had provisions for preventative justice. A person threatening to commit a breach of the peace was required to give sureties as was a person found to be of evil fame.

The authorities argued that the button seller was a person of evil fame because of his association with convicted and suspected persons.

So it was that one fine day, the button seller appeared before FEA (Alan) Bateman, resident Magistrate. The Magistrate found the charge proved and ordered the button seller to provide sureties.

Thus, the button seller who until that day, was merely a seller of wares at sideshows became famous in an evil sort of way.

Resisting the urge to simply “button it up”, he decided to appeal to the Full Court.

The leading judgment was given by Mr Justice Virtue.

What a marvellous name for a Judge. Until I became a law student, I thought that Justice was his given name and he was a man who combined not one, but two excellent moral qualities.

The Judge went back in time to the reign of Edward III for assistance.

Skipping a few centuries, Sir John (as he later became) then enlisted that trusty helpmate, William Blackstone: … it is held that a man may be bound to his good behaviour for causes of scandal, contra bonos mores, as well as contra pacem … Thus also a justice may bind over all night-walkers; eavesdroppers; such as keep suspicious company, or are reported to be pilferers or robbers; such as sleep in the day and wake in the night; common drunkards; whore-masters; cheats; idle vagabonds; and other persons whose misbehaviour may reasonably bring them within the general words of the statute, as persons not of good fame; an expression, it must be owned, of so great a latitude, as leaves much to be determined by the discretion of the magistrate himself.

If those who sleep in the day and wake in the night were targeted for strong police action, scarcely a university student would be safe.

The Full Court held that the evidence fell far short of establishing that the button seller was famous, let alone infamous. If this evidence was the best they could do, the Full Court effectively told the police to “zip it”.

The Judge noted that police had the button seller under observation for six months and on no occasion had he done anything wrong.

And so the button seller continued his itinerant life hawking his wares throughout the South West and presumably, playing billiards and talking to whomever he pleased.

All that the police had seen was that the button seller frequented hotel bars, billiard saloons, at country and district shows and in the daytime, was

(Adopted from Doyle v Jones (1952) 54 WALR 1)

43

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

One thing about the Year of the Dog is that it is travelling at the speed of Winx over the last 400 metres (or, perhaps less dramatically, the speed of Usain Bolt over 200m)! Where does time go?

Court’s computer docketing program says, so I’ll accept it as true.

As your Dog wandered around the shopping malls, sportsgrounds and other places of entertainment and amusement over the year end break, he had cause to reflect on the way in which people seem to have become larger in recent years. His interest thus piqued, he did some reading on the subject in a report of the National Centre for Health Statistics.

Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, namely Mark A. Cameli, Lynn M. Stathas, Andrew W. Erlandson, Raymond P. Niro, Paul K. Vickrey, Raymond P. Niro, Jr., Robert Greenspoon, Matthew G. McAndrews, and William W. Flachsbart, promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe.

True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

According to this the average North American male stands 1.75m tall and weighs 89.8kgs. He has a 102cm waist and a body mass index of 29, at the high end of the “overweight” category. The average North American female is 1.6m tall, weighs 77.5 kgs, has a 99cm waist and BMI of close to 30.

Things were not always so – between 1960 to 2002 the average increase in weight has been 10.8kgs. Since then to 2016 males on average gained an extra 3.6kgs and females on average an extra 3.1kgs. In 1999 white males averaged 87kgs and black males averaged 85.7kgs. By 2016 the average white male clocked in at 91.6kgs and the average black male at 89.8kgs.

Increasing waistlines around the world are all pretty daunting for epidemiologists! Imagine the size of average waistlines in another 40 years’ time when viewed against those trends!

Wounded though this Court may be by Microsoft’s four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness.

Indeed, to demonstrate the even-handedness of its magnanimity, the Court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up to seventy-two minutes later.

It is interesting to consider the impact which the growth of the sugar trade has had over the last 400 years or so on Africa, the Caribbean, the colonial powers in Europe, and now its contribution to increasing obesity, dental decay, diabetes and heart disease in the Western world and the consequences of that in many other respects – airline seating size being part of that!

Sugar underscored the “Triangle of Trade”, which characterised the supply of manufactured goods to West African countries which were traded for slaves, who in turn were shipped in their millions to the sugar producing countries, which, in turn, shipped sugar, molasses and rum to North America and Europe, and the process was repeated. Would taxes on sugar be likely to reverse what was put in train with the first sugar plantations established by the Portuguese? It seems unlikely, just as taxes on alcopops or other alcohol products have not reduced the consumption of alcohol.

On a lighter note, the issue of time arose in Hyperphrase Technologies, LLC and Hyperphrase Inc. v Microsoft Corporation in the Western District of Wisconsin. The decision of Magistrate Judge Stephen L. Crocker reads as follows: Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this Court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don’t know this personally because I was home sleeping, but that’s what the

44 | BRIEF MARCH 2019

Having spent more than that amount of time on Hyperphrase’s motion, it is now time to move on to the other Gordian problems confronting this Court.

Plaintiff’s motion to strike is denied.

By The Court Your Dog is constantly amazed at some of the proposals which cross his kennel – the latest of which is the Silent Sidelines proposal of the WA Football Commission. When implemented it will make for a cracking comedy show performed by a group of mime artists, or famous art work like “The Silent Scream”! Imagine being escorted in handcuffs from the field for shouting “Great mark”, and so offending the supporters of the opposing team!

One marvels at the thought processes of the geniuses who devise these scintillating outcomes! The obvious solution to raucous behaviour, and to ensure everyone enjoys themselves, would be to remove the goal posts from the field – no posts, no goals, no competition, no referees and a big love-in in the middle of the paddock!

As your Dog watches the dogs at play in the Federal Parliament he is coming to the view that their ability to take on government and to govern in the best interests of all the country has steadily dissipated over the past few years. If the Mini Mental State Examination used to detect cognitive impairment included a question as to the name of the Prime Minister at any time one wonders what the response would be! Maybe the forthcoming election will bring some relief?

Your Dog

45

Law Council Update

Law Council welcomes five new court appointments The Law Council of Australia has welcomed the Attorney-General’s appointment of multiple judges to the Federal and Family Courts of Australia.

Five appointments have been announced – four to the Federal Court and one to the Family Court – increasing the capacity of the courts to deal with their growing workloads.

Darren Jackson SC, Michael O’Bryan QC, Angus Stewart SC and John Snaden have been appointed as judges of the Federal Court of Australia.

Judge Ciara Tyson has been appointed as a judge of the Family Court of Australia.

Mr Jackson, from Western Australia, will commence his position in Perth. He has practiced extensively in commercial law, arbitration, mediation, and public and administrative law.

It is anticipated Mr O’Bryan and Mr Stewart will provide valuable assistance to the Federal Court to accommodate the predicted increase in civil enforcement actions brought

by ASIC after the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.

Mr O’Bryan, who has extensive experience in competition and consumer law, commercial law, corporate and securities law, administrative law and constitutional law, will be based in Melbourne.

Mr Stewart, a leading practitioner in admiralty and maritime law, international trade, international commercial arbitration, and human rights law, will be based in Sydney.

Mr Snaden, who will be Melbournebased, will provide the Federal Court with additional resourcing and expertise in its employment and industrial relations jurisdiction. Mr Snaden is an experienced civil litigation and dispute resolution practitioner, having appeared in many high-profile industrial disputes.

46 | BRIEF MARCH 2019

Judge Tyson will hold a dual commission as a judge of the Family Court of Australia and the Family Court of Western Australia. Her Honour practiced principally in family law in Australia and London before her appointment as a Registrar and Magistrate of the Family Court of Western Australia in 2015.

Law Council President, Arthur Moses SC, said these appointments would bring a wealth of knowledge and experience to the courts.

“The Law Council thanks AttorneyGeneral Christian Porter for making these excellent and timely appointments. These new judges are fearless advocates for the rule of law and are some of the country’s leading practitioners in their respective fields.

Their expertise will be an asset to the judiciary and to the community they serve,” Mr Moses said.

“The Law Council looks forward to the Federal Attorney-General consulting the Law Council on future appointments – as has been agreed. Consultation is critical to promote diverse, merit-based appointments and maintain public confidence in the integrity of Australia’s judiciary.”

AAT appointments must be transparent and merit-based The Law Council of Australia has raised serious concerns regarding the Federal Government’s processes in appointing members to the Administrative Appeals Tribunal (AAT), describing it as secretive with the potential to undermine public confidence.

At least 14 former state and federal MPs and staffers were among 86 appointments to the AAT, announced Thursday.

Law Council President Arthur Moses SC said the legal profession is concerned and troubled by these developments.

“The lack of transparency compromises community confidence in the independence of the tribunal and the

quality of its decision making,” Mr Moses said.

“The independence and integrity of the AAT depends on an apolitical, open and merit-based appointment system.

“The Federal Government’s announcement of 34 new appointments to the AAT made without community consultation and 52 reappointments for existing members is concerning, as a number of members have been reappointed before the expiration of their current terms.

“There is a concern that reappointment of members well before the expiry of their current terms, in the context of an upcoming Federal election, may give rise to a reasonable apprehension that decisions are affected by political considerations and therefore compromises the reputation of the Tribunal.

“The appearance of a conflict of interest can be just as damaging to the AAT’s integrity as an actual conflict.

“Appointments should be made transparently and in consultation with the community, including the legal profession, to safeguard their quality and improve their diversity.

“The AAT deals with a significant number of cases that directly impact on the lives of Australians. It is important those appointed have the necessary skills to discharge its functions according to law and community expectations.

“An AAT that reflects the community it serves better enhances public confidence in the administration of justice, including respect for the rule of law,” Mr Moses said.

The Law Council calls on the Federal Government to implement a transparent appointment process based on merit, similar to that recently announced by the Federal Opposition. Any lack of transparency impacts on the reputations of all members of the AAT, which is unfair.

Professional Announcements Career moves and changes in the profession

Beverley Sorrell

Sharni Mwenda

Clairs Keeley The partners at Clairs Keeley are pleased to announce that as of 1 February 2019, Beverley Sorrell and Sharni Mwenda have been promoted to Senior Associates.

IRDI Legal

Rothstein Lawyers

IRDI Legal are pleased to announce that Emily Williams has joined IRDI Legal as a Senior Lawyer.

Rothstein Lawyers are pleased to announce the appointment of Ken Shen Chong as solicitor.

Emily Williams

The appointment of Emily, previously of Hotchkin Hanly Lawyers, broadens IRDI Legal’s capabilities in commercial and property law.

Ken, who completed his studies at Murdoch University, is a welcome addition to the team of immigration and employment lawyers.

LAW WEEK 2019

SAVE THE DATE

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY SAVE THE DATE • Law Week Breakfast and the 2019 Attorney General’s Community Service Law Awards, Monday, 13 May 2019, Parmelia Hilton Perth • Law Access Walk for Justice, Tuesday, 14 May 2019 • Law Week Panel Discussion Presentation hosted by the Law Society’s Young Lawyers Committee, Wednesday, 15 May 2019, Central Park Theatrette • The Life and Music of Dom Resendo Salvado, Wednesday, 15 May 2019, Old Court House Law Museum, Perth • Social Justice Career Opportunities Evening, Thursday, 16 May 2019, Parmelia Hilton Perth • Law Week Special CPD Day for Rural, Regional and Remote Legal Practitioners, Friday, 17 May 2019, Parmelia Hilton Perth • Law Week Cocktail Party and 2019 Lawyer of the Year Awards, Friday, 17 May 2019, The Westin, Perth

With thanks to Law Week supporters and sponsors Awards Night Principal Sponsor

47

Classifieds Missing Will

Missing Will

Missing Will

Would any person having knowledge of the existence or whereabouts of the last Will and Testament of RICHARD CHARLES MARTIN, late of 143 Derby Road, Shenton Park, Western Australia, who died on 2 October 2018, please contact Butlers, Lawyers & Notaries on (08) 9386 5200, or email legal@butlers.com.au as soon as possible.

Would any person or firm holding or knowing the existence or whereabouts of a last Will and testament or other testamentary document of BIAGIO ROBERTO RISPOLI known as Robert Rispoli late, of Karrinyup, Western Australia, who died on 26 December 2018, please contact Hammond Legal at Level 2, 82 Beaufort Street, Perth WA 6000 or 6311 7080

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of FRANCES HILDA DARNBOROUGH, 8 August 1941, late of 24 Bullara Ramble, Jarrahdale, Western Australia, who died on 9 November 2018, please contact Joss Legal (Addr) Suite 5, 9 Bowman St, South Perth, 6151 (Tel) (08) 9439 6205 (Eml) lawyers@josslegal.com.au

Missing Will Would any person or firm holding or knowing the whereabouts of a Will or other testamentary document or safe custody packet for WAYNE GREENWOOD aka WAYNE HERALD HONEMAN and WAYNE HERALD GREENWOOD, or any other spelling of the word Herald (also spelt Hearld) born 28/08/1961 and having an address in Doonside NSW or any other location, please contact Greenwood Legal (matter reference 4020) PO Box 8021, Norwest Business Park, Baulkham Hills, NSW 2153.

DX9953 Norwest NSW. P: 02 8814 7033 F: 02 8814 7866 E: j.greenwoodco@bigpond.com

BRIEF For advertising opportunities in Brief please contact:

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

New Members New members joining the Law Society (Febrary 2019) Ordinary Membership Ms Lindsay Allan-McConchie Maurice Blackburn Ms Mallika De Toni King & Wood Mallesons

Ms Jac Crombie Edith Cowan University - Business & Law

Ms Antonia Naarstig Murdoch University - School of Law

Ms Ilonka Du Toit Central Queensland University

Mr Alek Norris The University of Western Australia - Law Faculty

Dr Phil Glover Curtin University

Associate Membership

Miss Kellie Grubb Clifford Chance (Sydney)

Mr Ibrahim Bamidele Murdoch University - School of Law

Mr Cameron Hassell Clifford Chance (Sydney)

Ms Dianna Blenkinsopp Edith Cowan University - Business & Law

Mr Reece Lobo The University of Western Australia Business & Law UWA Library

Dr Simonetta Cavilli Murdoch University - School of Law Mr Gad Coffie Murdoch University - School of Law

48 | BRIEF MARCH 2019

Ms Sarah Mohammad Sohail Murdoch University - School of Law Miss Andrea Myers University of Southern Queensland

Ms Adele Schultz Deakin University Mr Castledine Scott Clifford Chance (Sydney) Mrs Jordan Tana Murdoch University - School of Law Ms Rebecca Vele Charles Darwin University Law School Ms Kristal Whitmore The University of Western Australia - Law Faculty Miss Madeline Zulsdorf Murdoch University - School of Law

With thanks to our CPD partner

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

MARCH 2019 Wednesday, 13 March Using Technology to Get More Done

Wednesday, 20 March How to Brief Counsel

Thursday, 14 March Chronic Embitterment and the Litigation Process

Thursday, 21 March The National Redress Scheme: How the law is impacting survivors

Thursday, 14 March Key Developments in Class Actions

Thursday, 21 March The Limitation Act – a practical approach

Thursday, 7 March Employment Law Update

Friday, 15 March Costs – Unravelling the Mystery

Thursday, 7 March Dictation Skills for Lawyers

Tuesday, 19 March Freedom of Information and its Applicability to Litigators

Friday, 22 March Ethics on Friday: Dealing with the Legal Practice Board

CPD Seminars Tuesday, 5 March Costs: The Essentials Wednesday, 6 March The Public Health System and Treatment Liability Claims: Practical issues for lawyers on both sides

Friday, 8 March Ethics on Friday: The ethics of acting against a former client Monday, 11 March Litigation Workshop: what to do when things go wrong Tuesday, 12 March Modern Slavery: what it means for your clients Tuesday, 12 March The Art of Negotiation Wednesday, 13 March The Construction Contracts Act for Beginners

Tuesday, 19 March Surviving Long Hours and High Expectations Tuesday, 19 March Interim and Final Orders for Spousal Maintenance Wednesday, 20 March Property Law Update Wednesday, 20 March Independent Medical Opinions in Personal Injury Claims

APRIL 2019

MAY 2019

Membership Events

CPD Seminars

Thursdays, 4; 11 and 18 April Pilates Classes – Six week course

Friday 17 May Law Week Special CPD Day for Rural, Regional and Remote Legal Practitioners Thursday, 30 May Quality Practice Standard Accreditation Workshop 1 Membership Events Thursdays, 2 and 9 May Pilates Classes Monday, 13 May Law Week Breakfast and the 2019 Attorney General’s Community Service Law Awards

Tuesday, 26 March Managing a Peak Performing Team Wednesday, 27 March Self-talk – managing your inner voice Membership Events Friday, 1 March Young Lawyers Committee Beach Volleyball Competition Commencing Thursday, 28 March Pilates Classes – Six week course

Tuesday, 14 May Law Access Walk for Justice Wednesday, 15 May Law Week Panel Discussion Presentation hosted by the Law Society’s Young Lawyers Committee Thursday, 16 May Social Justice Career Opportunities Evening Friday, 17 May Law Week Cocktail Party and 2019 Lawyer of the Year Awards

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614.

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