Brief September 2019

VOLUME 46 | NUMBER 8 | SEPTEMBER 2019

Crowdfunding Litigation: A Problem or a Solution?

Also inside Courtesy in Court: Cuts Both Ways Cultural Change – The Shift from Party Autonomy to Court-Managed Litigation Judicial Cooperation in Cross-Border Insolvency

The Law Society’s Wellbeing and Resilience Programme Did you know? Your membership with the Law Society provides complimentary access to these support programmes through LawCare WA. To find out more about all resources offered through LawCare WA, visit www.lawsocietywa.asn.au/lawcare-wa

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

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

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

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Referral service provided by WABA

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

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

Volume 46 | Number 8 | September 2019

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CONTENTS

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ARTICLES Courtesy in Court: Cuts Both Ways

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Crowdfunding Litigation: a Problem or a Solution?

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Lawyers Make a Difference: Dr Andrew Lu OAM

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Golden Gavel 2019

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Judicial Cooperation in Cross-Border Insolvency

Cultural Change – The Shift from Party Autonomy to Court-Managed Litigation

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, Jack Carroll, Dr Rebecca Collins, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831

REGULARS 02 President's Report

42 Quirky Cases

04 Editor's Opinion

44 Drover's Dog

21 Ethics Column: Publicity and Costs of Innocence

45 Cartoon 47 Professional Announcements

33 Law Council Update

48 Classifieds

34 High Court Judgments

48 New Members

36 Federal Court Judgments

49 Events Calendar

40 Family Law Case Notes

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

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

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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.

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 Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Hayley Cormann Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Emma Griffiths, Matthew Howard SC, Gary Mack, Denis McLeod, Jodie Moffat, Shayla Strapps, Paula Wilkinson, Joel Yeldon Junior Members: Jack Carroll, Brooke Sojan, Demi Swain Chief Executive Officer: David Price

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

Elections for 2020 Law Society Council Nominations for election to the Law Society’s Council for 2020 will open in October 2019. Nomination forms will be sent via email to all eligible members on Tuesday, 1 October. Nominations for election to Council will then close on Wednesday, 16 October.

On Wednesday, 30 October, electronic ballot papers will be transmitted via email to all members eligible to vote. The election process will be managed by CorpVote, an independent voting services organisation.

Ballots will close at 3.00pm WST on Wednesday, 13 November.

The annual elections for Council provide eligible members with the opportunity to nominate for a place on the Law Society’s decision-making body. The Council sets the Law Society's strategic direction, and, with the guidance and recommendations of the Law Society's committees, acts as the voice of the legal profession through submissions and regular liaison with government, the courts and other stakeholders.

If you are considering nominating for Council, I encourage you to do so. The Law Society benefits from the knowledge and experience of its Council members and seeks the broadest possible representation from across the Western Australian legal profession.

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

Addressing Sexual Harassment in the Australian Legal Profession Survey In Friday Facts of 19 July 2019, the Law Society sought members’ views in response to a number of questions set out in the Law Council of Australia’s Discussion Paper Addressing Sexual Harassment in the Australian Legal Profession.

model clauses which lawyers and workplaces can adapt and use, and/or accompanying factsheets or educational materials to inform decision-making in relation to when and if it is appropriate to use nondisclosure clauses in settlement agreements; 6.

There should be a voluntary code for law firms, practices and chambers (or directors, partners and barristers) to adopt, and provide reports on number of sexual harassment complaints, number of women in senior positions, etc.;

The Law Society is currently providing mentoring opportunities to two Indigenous Year 10 students, who are interested in considering a legal pathway as a career.

The students will have a scheduled programme for undertaking tasks, learning more about the legal system and the range of career opportunities that exist within the legal profession.

7.

Best practice guidelines should be uniform across the country;

Sir Ronald Wilson Lecture

8.

The Law Council’s role should be promoting rules, best practice and showing leadership;

9.

Policies or practices should address the role of witnesses and bystanders to sexual harassment;

10. Bystanders and whistleblowers should report inappropriate behavior even where the victim does not report it; and 11. There should be protection of victims and whistleblowers from adverse employment consequences as a result of reporting.

There were various general comments made in relation to the role of the Law Council as being leadership, advocacy, lobbying, provision of information and training.

Law Society Mentoring Programme The Law Society offers three mentoring programmes through its Advocacy team: 1.

The Law Society’s Junior Practitioner Mentoring Programme, which is open to certificated practitioners who are Law Society members and who have been admitted for less than five years;

2.

The Law Society’s Senior Practitioner Mentoring Programme, which is open to certificated practitioners who are Law Society members and who have been admitted for more than five years; and

There was strong support indicated for the following: 1.

More oversight from regulatory bodies and/or professional bodies;

2.

Responsibility for change and compliance should not be left to individual workplaces;

3.

The Law Council should publish general mandatory standards of conduct for the legal profession;

4.

The Law Council should publish best practice guidelines for the legal profession in relation to sexual harassment policies, complaints processes, procedures, and/or training;

5.

The Law Council should publish

02 | BRIEF SEPTEMBER 2019

universities with law schools with regard to the Aboriginal and Torres Strait Islander Law Student Mentoring Programme.

In 2018/19, 16 junior practitioners and two senior practitioners completed the respective mentoring programmes.

3.

The Aboriginal and Torres Strait Islander Law Students’ Programme, which is open to law students in any year of their study of law.

The mentoring programme commenced in July 2018 and ended in May 2019.

Concurrently, between April and June, a call-out for expressions of interest from mentees and mentors is made via Friday Facts and through contacting metropolitan

On 7 August the Law Society was delighted to present the 2019 Sir Ronald Wilson Lecture – Panel Discussion: ‘Climate Change – Political and Legal Accountability’ at Brookfield Place, Perth. The new panel discussion format was well received by attendees, including judiciary, legal practitioners, school students and teachers, law students and interested members of the public.

I was pleased to act as moderator for the lively and thought-provoking discussion.

Thank you to our panel including Bronwyn Bell, Manager Policy – Natural Resources, The Chamber of Minerals and Energy of Western Australia; Tim Macknay, Principal Solicitor, Environmental Defender’s Office Western Australia. Thank you to our sponsor Murdoch University.

Golden Gavel Competition On Friday, 26 July, over 200 attendees were treated to a hilarious evening of comedy as 10 courageous young lawyers showcased their satirical skills in front of their peers at the 2019 Golden Gavel Competition.

Congratulations to the winner Claudia Carr from Herbert Smith Freehills, who will represent Western Australia at the National Golden Gavel. Read more about the Golden Gavel in this edition of Brief.

Law Access Information Evening for Young Lawyers I was pleased to speak to young lawyers and law students on Thursday, 29 August at a Law Society Young Lawyers Committee event hosted by Kott Gunning. The event helped raise awareness for the important work of Law Access and provided attendees with information on how to get involved in pro bono work generally. Thank you to Dominique Hansen, Chief Executive Officer of Law Access, Greg Mohen, Partner, Kott Gunning Lawyers and Richa Malaviya, PLT Placement at Law Access who shared their views and experiences.

Hosted by the District Court of Western Australia and the Law Society of Western Australia.

An evening for the legal profession to celebrate this special occasion.

To register your interest, please email membership@lawsocietywa.asn.au

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

This month’s Brief contains thought, and hopefully response, provoking articles, and, in short, an array of diverse pieces, which is what Brief strives to present to its readers.

Former Supreme Court Justice and present CCC Commissioner John McKechnie QC’s article ‘Courtesy in Court: Cuts Both Ways’ contains insightful observations about a difficult issue for the profession. It broaches actual experiences, and has informed and thoughtful observations about the topic of bullying in the law. It does so in the context of current considerations, such as workplace obligations (raised recently by Federal Court Chief Justice Allsop AO) and the Victorian Bar’s 2018 wellbeing survey.

Law Council President Arthur Moses SC’s article on ‘Crowdfunding Litigation’ is also a thought-provoking take on this topical matter. It considers perceived benefits of crowdfunding litigation with apparent public interest aspects, against the problems and risks presented with such funding, and the basis for it.

The early 1770s saw an early example of crowdfunding, by a micro-credit initiative, the Irish Loan Fund, set up by the remarkable satirist, political commentator, author, poet, nationalist and cleric Jonathan Swift.1 Swift’s practical proposal for relieving the suffering of impoverished and famineafflicted Irish provides an interesting counterpart to his more famous satirical solution, the cannibalisation of infants.

This year is the 290th anniversary of Swift’s A Modest Proposal (For preventing the Children of Poor People From being a Burthen to Their Parents or Country, and For making them Beneficial to the Publick) a work that has been a source of delight to readers, and is considered the greatest English language work of political and social satire.

There is a good case for it being compulsory reading in all schools (including law schools). One hesitates though about this modest proposal, as, if recent Naplan results and the ongoing effects of social media and video games are anything to go by, an appreciation of satire may have gone the same way as the qualities of self-awareness, shame, perspective, regular sleep hours, or an ability to not take offence at just about everything.

Australian tennis super [star – or insert your preferred adjective] Nick Kyrgios is certainly onto the issue in (mostly) blaming his 3rd round US Open exit on the video game Call of Duty and its deleterious effect on his eyesight.2 This may have been savage Swiftian satire about the effects of

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video games, or just making up excuses for a lamentable performance.3

to fill in the optional adjective above, SuperYahoos.

There is a real risk that the reaction to A Modest Proposal nowadays would be, not appreciation and edification, but rather the suspension of the teacher and angry protests by militant vegans and very possibly Greta Thunberg.

This edition also has the Hon Justice Virginia Bell AC on ‘Cultural Change – The Shift from Party Autonomy to Court-Managed Litigation’, Federal Court Justice Jacqueline Gleeson on Judicial Cooperation in Cross-Border Insolvency, the much appreciated regular items from Professor Gino Dal Pont and Family Law Case Notes Robert Glade-Wright, and new and again much appreciated items on Federal Court and High Court judgments

by Dan Star QC and Andrew Yuile respectively, along with a Lawyers Make a Difference piece featuring Dr Andrew Lu OAM. Finally, on a sad note, we have an obituary (first published in The West Australian) marking the remarkable life and career of former District Court judge Nigel Clarke.

Film buffs will recall an A Modest Proposal motif lurking in the 1973 dystopian nightmare film Soylent Green. And, that the film was set in the rapidly approaching year 2020 where a corporation, Soylent Industries (a combination of “soy” and “lentil”) controls most of the food supply and sells artificially produced food wafers, including "Soylent Green.” Film buffs will recall the iconic line in the finale with Charlton Heston yelling “Soylent Green is people!" (apologies for the spoiler).

Any sequel would almost certainly be a courtroom drama about the mother of all crowdfunded class actions against Soylent Industries brought by, amongst others, some really angry vegans.

Swift’s other famous work, Gulliver's Travels did not go easy on lawyers, and also introduced the “Yahoo”. Gulliver speaks to the Houyhnhnms, talking horses who rule over human-like deformed creatures called Yahoos, who are rude, unsophisticated, and uncouth. Gulliver describes lawyers as “a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves.”4 And, that lawyers are “usually the most ignorant and stupid generation among us, the most despicable in common conversation […] disposed to pervert the general reason of mankind in every other subject of discourse as in that of their own profession”. So, snobbishly insisting on reading the unexpurgated version of Gulliver’s Travels to one’s children at bedtime can be awkward.

Australians are often accused of being “Yahoos”. An early example was at the hand of the legendary English cricketer W G Grace who, after touring Australia 145 years ago, wrote to a friend (the letter later published in a newspaper)5 stating: “I send you a few farewell lines as you are about the only man I care to say goodbye to in this country of snobs and yahoos”.6 W G Grace also wrote that “Australia itself is a fine country, but wants steeping for 24 hours in the sea to rid it of the human vermin crawling on it”, which channels either a weird variant upon Noah’s Ark, or a 19th century musing upon the possible upside of drastic climate change. If W G Grace were alive today he might well have dubbed some of our tennis players,

Endnotes 1.

Microfinance and Famine: The Irish Loan Funds during the Great Famine, A Hollis & A Sweetman (2003) www.microfinancegateway.org.

2.

Invoking the catch-cry that “it’ll make you go blind” is of course a historically popular, though mostly ineffective, admonition.

3.

The Editor knows which one he’s betting on, and which player he will never again bet on in a tennis match.

4.

Gulliver's Travels, Chapter IV.

5.

Lest it be thought the friend was indiscreet in forwarding the letter to a local newspaper, Grace had written: “I care so little for the colonial opinion that you may publish this letter if you like. It will show the cads what I think of them”; which is sort of like an olden-day provocative “please retweet.”

6.

“W. G. Grace On The Colonies and Their Institutions”, Wallaroo Times & Mining Journal (20/5/1872) Trove.com.

Article on Israel Folau Since publication of the article (in August Brief), Mr Folau has filed his Statement of Claim. On matters of fact, it is accepted that Mr Folau’s contract included that he be bound by the Professional Player Code of Conduct (which contains provisions along the lines of those in the Code and described in the article).

As regards his religion, Mr Folau is a member of the Truth of Jesus Christ Church and it is pleaded that his media posts were consistent with what is preached at this church. (The reference in the article to his being a practising member of the Australian Christian Churches appears to be out of date). As regards the causes of action, there are a number of claims for breach of contract in addition to unlawful termination under s772 of the Fair Work Act. These include that a term prohibiting his manifesting his religious beliefs is void as against public policy (so the issue of freedom of religion will ride in on that ‘unruly horse’), that any such term is not open as a matter of proper construction, and that if it was a valid term there was no breach in fact. As regards the Tribunal’s decision there are further claims that the decision on penalty was absurd or unreasonable, and void as an unreasonable restraint of trade.

The difficulty of termination having been directed by the Tribunal, not Rugby Australia, is met by the claim that insofar as Rugby Australia acted on the Tribunal’s erroneous decision, it breached the contract. – Chris Edmonds

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Courtesy in Court: Cuts Both Ways

By John McKechnie QC

Judicial bullying has been in the legal news lately. In the UK, the Bar Council has called on barristers to take action over bullying by judges and has taken the step of issuing a guide to practitioners. Although, the Bar Council stressed, it is believed only a very small number of judges are bullies. But who really knows?

Chief Justice Allsop of the Federal Court has warned judges they could face a bullying claim under the Fair Work Act noting that "courts are also work places".

Although a courtroom is a public institution, the judge is not the employer of counsel and it remains to be seen whether the Fair Work Act extends to a State court. The State’s Occupational Safety and Health Act 1984 s 22 places a duty on a person that has to any extent control of a workplace to take practicable 06 | BRIEF SEPTEMBER 2019

measures to ensure that persons in the workplace are not exposed to hazards.

Hazard is widely defined and means anything that may result in an injury to a person or harm to the health of a person.

Bullying may well qualify if it causes harm. Whether a court is a work place is a question.

What may have been startling to lawyers and judges alike was the Victorian Bar 2018 wellbeing survey. More than 850 barristers responded and 59% of

barristers reported they had experienced or witnessed judicial bullying.

No similar survey has been conducted in WA and it would be wrong to draw too much from a jurisdiction which may have a different culture. Nevertheless it is almost certain that some bullying, harassment or offensiveness does happen in Western Australian courts and tribunals. It isn’t just a problem from the past, no longer an issue. Both the profession and the Bench are bigger now which means a greater likelihood of inexperienced advocates appearing before a range of judicial officers, each different in temperament and ability.

I spent 41 years in the law as junior counsel, senior counsel and judge.

This article is a reflection on judicial interaction with the Bar. For obvious reasons, my examples are historical.

What is bullying?

The first difficulty is recognising bullying.

Bullying is defined in the Macquarie dictionary: 1. a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people; 2. to be loudly arrogant and overbearing.

Harassment is defined as: to disturb persistently; torment, as with troubled cares etc. In Brown v Cashman [2013] VSCA 122, the Court of Appeal adopted without objection the definition "workplace bullying is repeated unreasonable behaviour directed toward an employee or group of employees that creates a risk to health and safety".

Within this definition "unreasonable behaviour" means behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten. A risk to health and safety includes a risk to the mental or physical health of the employee.

So stated, bullying can be judged on an objective standard according to reasonable people. This does not wholly answer the question however, because every one of us may have different responses to a situation. Each of us may also have a different response from time-to-time depending on our current mental and emotional state. What might be brushed off by a recipient one day as simply a rude judicial officer, on another day might be regarded as bullying.

Judicial Officers I look back and see examples of bullying that I have witnessed and then explore why that might have come about and if the same conditions still apply.

I do not think that judicial workload is a complete explanation for bullying. The judicial workload may be punishing.

Magistrates Courts for instance deal with a significant workload with the expectation that cases will be moved through expeditiously. This can cause stress, which on occasion, may lead even the most placid judicial officer to lose their temper and say things that they shouldn’t. The District Court and the Supreme Court similarly have large lists with the added constant pressure of reserved judgments piling up. Alleviating judicial stress will help prevent flare ups but do little to change a judicial officer who is temperamentally unsuited for the work.

As an articled clerk, I was constantly in Masters Chambers. Master Staples was a perfect gentleman, understanding that

we who appeared before him were taking our first hesitant steps in advocacy.

Often deputising for Master Staples was Registrar Morris. Registrar Morris had a practiced art of demeaning those who appeared before him. It was what I regard now though not then, as bullying.

Registrar Morris had been a Japanese prisoner of war and had endured what the rest of us thankfully had not.

Although he was often difficult to appear before, in my eyes his behaviour was excused by his service to his country.

This example illustrates how there may be reasons for bullying behaviour which explain it. Registrar Morris’s attitude was well known but nothing was done.

The Magistrates Court was peopled by a mix of magistrates, some of whom were frankly terrifying to a junior lawyer.

Chief Magistrate Hogg and Magistrate PV Smith in particular were difficult to appear before. Looking back now, I do not regard either of them as bullies.

Rather I think they were jaded having heard it all before, and disinclined to make allowances for young practitioners.

The chances of securing an acquittal before them were remote but it was possible in a good case. Magistrate AG Smith on occasions would demean the unfortunates who appeared before him in order to gain a quick laugh – at their expense. Beware the judge who courts publicity. There have been other magistrates whose behaviour has been the subject of appellate judgments, sometimes trenchantly expressed which speak for themselves. Some magistrates have appeared frequently in the appellate lists – others rarely if ever.

In later times as a judge I have witnessed appeals brought simply because the counsel or litigant felt bullied. As a result they felt they were not heard. Even if the magistrate was right in law and fact (often the case) the time spent by all on the appeal could have been avoided by a less confrontational style from the primary judicial officer.

Sometimes a judicial officer may be stressed because they are out of their depth. A good working rule to avoid appeal – if you are incompetent at least be pleasant.

And now I come to the District Court.

The first District Court consisted of Syd Good QC, Chairman of Judges, who was rather a non-playing captain/coach. The other two initial judges were Bill Pidgeon and Des Heenan, both of whom became Supreme Court judges.

Neither was a bully, although Des Heenan on occasions could be fussy and

particular to the point of distraction. He once said of a question I had rephrased three times "Mr McKechnie, that last question was very very nearly proper."

That said, he was the finest criminal judge I appeared before.

Bill Pidgeon's odd way of speaking and little idiosyncrasies concealed a very good legal mind, a fact overlooked by some lesser members of the Bar who would joke about him. He would test argument but without invective and, to the distress of some, was almost always right.

Then Frank Ackland was appointed to the Bench. Ackland DCJ is probably widely regarded as the biggest bully of the District Court for good reason.

Appearing before him was always difficult even for prosecutors and Frank was generally pro-prosecution. He would often bully counsel for no other reason, it seemed, than that he could. And yet, he once showed me an extraordinary personal kindness and I have heard others speak of similar matters. He was temperamentally unsuited to be a judge, brusque and difficult.

It has to be said that Judge Brian O'Dea was also a bully. Though often bluff and good natured, he could turn sarcastic and intimidating. On at least one occasion on circuit he turned his chair around and faced the wall while defence counsel addressed the jury.

It is fair to say that I encountered no bullies in the Supreme Court. The Chief Justice, Francis ‘Red’ Burt, was terrifying and sent one's knees knocking at times but I think he was sometimes bored and liked to play with counsel. Michael Murray QC tells of a prosecution, for bigamy. When he rose as a prosecutor to announce that he represented the Crown he was met by the judge asking "which Crown?"

The prosecutor and defence retired in confusion and returned a few days later each armed with silks. By then, Burt CJ thought the answer was obvious.

He was a great one for posing a question for counsel just before the luncheon break or the evening adjournment that would send you to the books all night to be met in the morning with the judge telling you, "I suppose the answer is…"

It may not always be appreciated by the Bar, but judges, particularly those of quick mind, can sometimes get bored and give in to the temptation to play a bit. Red Burt was one. My friend and mentor Paul Seaman was another. It was done without malice but could unnerve inexperienced counsel.

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Judges might state their tentative views in a way that may feel intimidating.

Generally they are seeking a response so that if their view is wrong, they can be put right. Counsel should recognise the practice for what it is, not bullying, but a genuine attempt to engage. My friend David Ipp, happily still with us, was onesuch. He appeared to enjoy jousting with counsel and could take as well as give. On one occasion after being harried for a time by him in the Full Court, he said "Well you will never convince me of that proposition". I responded that I had given up on him but still had hopes for the other two judges. Ipp roared with laughter and I do mean that literally. As a postscript – I lost, 2/1 Ipp J dissenting!

The moral – keep going.

Justice Franklyn had a reputation for being difficult to appear before although I never encountered this. On occasion when he would grow testy, I would simply smile which seemed for some reason to disarm him. (I tried this with testy counsel when I was a judge to similar effect. It usually worked. It even worked on Colin Lovitt QC). Maybe it was simply because Justice Franklyn liked me. Ms Evelyn Vicker, now Deputy Coroner, once juniored me and after I had submissions 08 | BRIEF SEPTEMBER 2019

upheld asked incredulously "How do you get away with it? I would have been asked my authority for everything."

I started appearing in the High Court in the 1970s with at least one silk between me and them so any bullying was of little concern. Not that I saw any. The anecdotally bad days of bully judges were past. I appeared before Chief Justices Barwick, Gibbs, Mason, Brennan and Gleeson. All were far wiser than me and did not have to resort to bullying behaviour to prove a point.

Moreover, silks appearing before them were more than able to hold their own. I heard Michael McHugh QC (as he then was) respond to a question from Gibbs CJ "I'm not going to debate that with your Honour."

On one memorable occasion, the Bench was laying into a silk who had a difficult case. Finally the silk had enough. He stopped and started gathering up his papers. Barwick CJ asked him if he was finished. He responded that as his presence seemed to be irritating the court, for the benefit of his client, he would withdraw and leave his junior to complete the submissions! He left, and all the other silks left with him. Barwick

CJ adjourned the court and 20 minutes later, with everyone back in their places, proceedings resumed without reference to what had happened.

I do not advocate this course of action unless you are very senior and very brave.

I appeared before the High Court many times. Usually the Court let counsel make their submissions in relative peace unless you were pushing a particularly unmeritorious point. On special leave applications, they might let counsel develop the point in near silence.

However when the 20 minute time limit was reached, counsel would be told "time is up" and requests for extension often refused. That is not bullying but efficiency.

Some judges have saved their bullying, or at least adverse comments to the reserved judgment, sometimes without according fairness, procedural or otherwise, to counsel.

This may be particularly unfair as there is little counsel can do about it: Lawrie v Lawler [2016] NTCA 3; 168 NTR1. In that case, counsel tried unsuccessfully to intervene on the appeal to respond to

some criticism from the trial judge.

However Judges can listen and make amends. The late Geoff Miller QC once appeared against me in a fraud case with two accused. The appeal against conviction by one accused was allowed and in the course of the judgment it was suggested that both Geoff and I had overlooked a basic and fundamental point.

Those who remember Geoff will guess how objective and calm he was about criticism! In consequence of the result, the other accused had to have his appeal allowed too. This was automatic, but Geoff and I both appeared and had the opportunity to point out the error by the appeal court. In fact, we said, not only did each counsel appreciate the point at trial, it had been argued before the judge.

The Court, led by Wallace J graciously apologised. Geoff was mollified but only because the unusual circumstances gave us the opportunity for correction.

Wallace J was always polite to counsel – but once his mind was made up, usually early, little could be done to shift it.

The great judges, Kennedy, Brinsden, Malcolm among many others and judges

in the District Court such as Hammond, Sadleir, Healy et al, never raised their voice and commanded respect through their courteous manner.

They engaged politely with counsel, seeking to test propositions sometimes firmly, but always in a way that was trying to get at the right answer. This is not bullying.

Although I have only named a few (particular favourites of mine) the same could be said of most judges in both courts.

It is of course sometimes necessary for a judgment to criticise some aspects of counsel or solicitor’s decisions as to the case, preparation, tactics or submissions. This should always be done temperately and only to the extent necessary, remembering that Counsel has no right of reply.

The same might be said of appellate judgments overturning primary decisions.

It can be assumed that a judicial officer is trying their best to reach the correct and just result. From time to time errors will be made, especially in busy courts when time is pressing.

While it may be necessary to discipline a serial judicial offender – one who persists in a course of action that has been the subject of earlier judgments – a judgment that aims at the person, not the decision, is capable by being harassing. Again, the judicial officer like the lawyer has little if any redress. (Sometimes a judge can indulge in a little guilty glee. I once had a judgment unanimously reversed by the Full Court, only to have the High Court later restore my judgment. The fact that they politely insinuated that I appeared to have reached the right result more by luck than good management did not greatly dim my private delight).

Counsel Very often the curial environment is set by counsel. Time is a judicial resource.

Because of the constant work, judges need to devote as much time as is necessary for the resolution of a case but no more. Counsel who are ill-prepared, ill-informed or simply like the sound of their own voice will add to stress that a judge is feeling in trying to reach the right judgment in a particular case, as efficiently as possible.

Indigenous Law Clinic year Murdoch University Law students enrolled in the ILC: Michelle Henderson, Tanielle Martin, Ella McLeod, Mollie Ann Middleton and Mayoori Nadesan.

The Indigenous Law Clinic (“ILC”) is a partnership between Murdoch University’s School of Law and the Aboriginal Family Law Services. The ILC came into being through the vision of Corina Martin, CEO of AFLS and Anna Copeland, Director of Clinical Legal Programs, Murdoch University to provide legal assistance to Indigenous people living in remote regions and provide Murdoch University Law students with practical legal experience. It is structured as a three-point elective unit, running throughout semester 1 and 2 of 2019.

Through the ILC, the students have been exposed to legal problems facing Indigenous clients in the regions, assisting in casework, practice in file management and provision of legal services to real clients. Guest speakers have included Chief Judge Thackray of the Family Court, and Professor Robert Guthrie of the Office of Criminal Injuries Compensation.

The ILC involves Murdoch Law students working under the supervision of Lawyers from AFLS one day per week at Murdoch University. In semester 1 of 2019 five final

The students have primarily worked in the area of Criminal Injuries Compensation.

They have been responsible for interviewing and keeping their clients informed with the state of their matter, arranging mental health assessments, drafting statements and preparing compensation applications.

The students have also been exposed to matters concerning Family Law, Care and Protection and Restraining Order Applications.

The students involved have welcomed the opportunity for real life experience, one saying: “When I first looked at the legal file, the client was just a name, but having to undertake an interview with the client made me realise that I am dealing with a person and how could I best focus on providing that person with help and legal assistance.”

More importantly, the service assists in service delivery to indigenous clients in the regions, by supporting the important work of the Aboriginal Family Law Services.

For more information, contact Anna Copeland at a.copeland@murdoch.edu.au or Corina Martin at office@afls.org.au

CRICOS Provider Code 00125J MCO0003255 05/19

Murdoch students extend their clinical program through services to regional remote indigenous clients.

murdoch.edu.au

09

Particularly in the Court of Appeal, the court is entitled to expect counsel appearing before them to be on top of their brief and well able to enter into a dialectical interchange. The Court of Appeal is not a training ground for advocates. The stakes are often high and the time taken for any one case is necessarily double or triple the time of a primary judge depending on the number of judges sitting.

Judges also get genuinely offended at what they see as over-servicing of a matter and may express their displeasure. This is not bullying.

Early in my judicial career I was called on to consider an injunction in relation to a two page letter from a firm of solicitors containing statements that were said to be misleading. The injunction was ancillary to much larger, more complex proceedings. For the injunction hearing the parties filed over a thousand pages of affidavit material and cited over 30 cases. The matter was resolved by the parties and judge focusing on one 10 | BRIEF SEPTEMBER 2019

paragraph of the letter.

Most judges could tell similar stories.

How often is the practice direction not followed so that the judge is presented with a lever arch file (or two) filled with cases that some junior lawyer has compiled and copied, most of which will never be referred to. "It is just for your Honour’s assistance!" Seriously – or is it about increasing the costs?

Then there are counsel who are themselves bullies. They will pick fights with the judge. Sometimes they will be so immersed in the battle that they cannot see the judge’s interventions are in fact trying to help not hinder their cause and will argue with the judge anyway. The late Alex Shand QC was reprimanded for his comments to a magistrate and he is not the only barrister.

I remember one youngish counsel appearing on a plea in mitigation before Judge O’Dea. The judge commenced by saying to counsel that he was considering giving his client probation.

Counsel then said that he hoped he

would persuade the judge otherwise.

I assume he was hoping for some lesser penalty. He then proceeded to address the judge, never renowned for his patience, while the judge grew visibly more and more irritated. Finally, the judge said "you are beginning to persuade me". At this point Brian Singleton QC, who was sitting behind counsel waiting for his matter to be called, hissed in a not so sotto voce "sit down you fool". The judge said "I think you have just received some excellent advice from Mr Singleton". Counsel did sit down and the judge gave his client probation.

Bullying by anyone involved in the administration of justice is wrong.

Bullying of judicial officers can occur, particularly in Magistrates Court or tribunal. I have observed examples from some who should know better, silks and senior juniors, browbeating a magistrate and treating them with derision. Such behaviour is arrogant, wrong and poor advocacy. On the other hand I witnessed Tom Hughes QC, then probably

Australia’s leading silk, appear with proper deference and respect before a magistrate half his age and experience.

If it is good enough for Tom Hughes it ought to be good enough for everyone.

Conclusion Bullying in court from Bench or Bar is unacceptable. It is however to be distinguished from occasional rudeness or testiness. So what is to be done?

Counsel should develop reasonable resilience to deal with a judicial officer who is simply grumpy or perhaps stressed. When the behaviour goes beyond testiness, then others may need to step in to protect a lawyer from bullying or harassment. It is hard for the bullied or harassed to take on their tormentor. The chief judicial officer is an obvious first step but there are others.

Any Senior Counsel is likely to make time to assist.

I have used only historical examples to illustrate this article. From them, and from my experience over the years some threads emerge.

There have been and probably are still bullies who are judicial officers. In every generation there are not many but sufficient for the profession to be aware of a potential threat to health.

For bully lawyers, remember the judicial officer, not you, is the person chosen to sit in judgment. This is not mere verbiage.

A judicial officer exercises the power of the State. Counsel can only make submissions. The judicial officer decides.

They are entitled to decide without, in the words of the judicial oath "fear".

Bullies, whether judicial officers or counsel, tend to be people who have always been intimidating. They misuse their power to harass others.

Sometimes this is temperament – some people seem to be born angry.

counsel are acting on legal aid rates, nothing but the best is good enough.

Another characteristic may be incompetence. They feel, and are inadequate for the task and displace their emotions onto others.

I used to get mildly irritated at a plea in mitigation that consisted of "Your Honour has the pre-sentence report.

There is nothing I can add."

Training in emotional intelligence can help some.

This was just lazy advocacy. A presentence report gives facts. Counsel for an offender should give context and advocate reasons for a particular disposition. Rolling the arm over is never acceptable and counsel who do so should be prepared for judicial wrath.

Stress is another factor, though people who are appointed to a court have generally learned to handle stress. Stress is more an explanation for occasional rudeness or brusqueness.

Some things are not judicial bullying. Any judicial officer is entitled to expect that counsel will be competent and prepared.

They are entitled to expect that the client will be well represented especially if the client is paying big fees. But even when

Judicial officers and counsel each have responsibility for the administration of justice. Justice is more likely achieved if each acts with courtesy and respect.

Bullying in whatever form should have been left in the playground.

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11

#LawyersMakeADifference

Dr Andrew Lu OAM Partner, HBA Legal; Company Director

#LawyersMakeADifference highlights real stories of lawyers using their skills to help people in our community. In this article, Dr Andrew Lu OAM, Partner HBA Legal and adjunct senior lecturer in law at the University of Western Australia, shares his story.

I came to the practice of law through the Arts, where the concept of a portfolio career and project-based work is common, and there is a substantial practical component to the training. In contrast my legal training in the 1990s was by case method and almost entirely theoretical, but I enjoyed my law studies to such an extent that I returned for a second helping… and a third… and a fourth.

I have practised full-time as a defendant insurance lawyer, advising insurance companies and the health industry in medical negligence, disciplinary and accreditation cases. I have also taught law, which has informed my legal practice almost as much as legal practice has informed my teaching.

As an adviser to hospitals, I am mindful that many complaints about professional services arise when communication channels break down, so part of what I do is to preserve or salvage relationships. The rising popularity of less-adversarial approaches to dispute resolution or dispute prevention, such as health mediation, is changing the nature of the work I do.

Anyone who has been in the Australian legal profession these past two decades has lived through the nationalisation and

12 | BRIEF SEPTEMBER 2019

rebranding of long-standing local law firms, the internationalisation of national firms, the rise of boutique practices, the incorporation of legal practices, and the listing of law practices on the stock exchange. Though I did not know it at the time, I started working as a solicitor at the dawn of a new sunset for the linear legal career. The era when progress to partnership was a reasonable expectation of any competent solicitor prepared to put in the work, and when becoming a senior associate really meant you were on your way to becoming a principal of a legal practice, is over.

Today’s legal careers look more like the portfolio Arts career, so comparisons with the career trajectories of past generations can lead to disappointment and are unfair.

Career breaks, the movement and transfer of partners or entire teams and clients between different firms, insourcing and outsourcing, part-time law partners, nonpartner or even non-lawyer shareholders of incorporated practices, the law as a second career, and the freedom to move into and out of private practice with secondments in-house, have become common disruptions. These have added to

the diversity of perspectives among today’s lawyers, and arguably aided the retention and recognition of lawyers who want to continue in practice but may not have been able to do so before workplace flexibility was normalised.

One of the great benefits of an education in the Law, and of having met many others whose legal studies helped them to make impactful contributions, is to recognise that the respectful professionalism of the Law, the empathy and collegiality that binds us, and the primary duty that all lawyers owe as officers of the Court, has social currency. Many who have read law but may not have been admitted as practitioners, or who have worked briefly in legal practice before directing their passions and talents towards other activities, continue to selfidentify as lawyers. Some are influential in politics and public life. Very many of the philanthropy managers I have met began their careers as lawyers in the top tier of law firms. I also have friends who are journalists, company directors, management consultants, operations managers, administrators, writers, actors, insurance brokers, mining entrepreneurs, estate agents, chefs and doctors who have law degrees. They are the hidden lawyers making a difference.

Service to support good governance in the not-for-profit sector brings its own significant rewards, and lawyers are in high demand as company directors. The challenge for the busy lawyer, especially at

the mid-career stage of a senior associate with many competing professional and personal demands, is to recognise the opportunities to make a difference and to make time for projects that enrich society. I have experienced the power of connection and of collaborating around a shared passion with senior and respected thinkers time and again, through serving on the boards of Arts and not-for-profit organisations. Having joined my first Arts board as a junior, I have valued the chance to contribute to support the generous work of artists in telling the important stories of Australia. I am a non-executive director of the National Gallery of Australia Foundation, the Australian Youth Orchestra, the Arts Law Centre of Australia and the Melbourne International Film Festival. All are companies of long standing that do valuable national work with limited resources. Supporting organisations I respect, as a business volunteer, reminds me that lawyers in private practice breathe rarefied air. We are properly resourced to do our work. We can learn much about inclusion, leverage, collaboration and resilience from the third sector.

In a conservative profession that tends to perpetuate tradition, very few senior Australian lawyers look or sound like me. I identify simultaneously as a first-generation migrant, as an LGBTIQ+ Australian of Asian ethnicity, an introvert in a profession that favours extroverts for leadership, and as someone of Chinese heritage in a country where that is an impediment in the jobs market. Sobering research by ANU reveals that in modern multicultural Australia, a Chinese job applicant must make 68% more job applications to secure the same number of interviews as an Anglo-Saxon applicant.

Through mentoring and encouragement from senior colleagues, I have stopped being apologetic and begun to embrace my identity as a minority of a minority.

Last year was the 200th anniversary of Chinese migration to Australia. For the very first time, a Chinese-Australian barrister was appointed Queen’s Counsel. A lawyer of Chinese heritage has never served as a judge of any Australian court, although over 5.6% Australia’s population has Chinese ancestry. Whilst lawyers as a group are steadfastly committed to justice and fairness, equity and diversity in leadership

remains a challenge. The ‘bamboo ceiling’ is a phenomenon of the Australian legal profession that until recently had no label.

It describes a problem of explicit or implicit bias in the Australian legal profession that has constrained the advancement of Asian Australian lawyers into senior roles in firms, in Government, and at the independent bar. Without seniority in legal practice, appointment to a tribunal or court is not possible. Only through being aware of biases in selection and promotion, and targeted interventions, can ceilings be smashed. As we observe from the increasing numbers of talented women lawyers stepping into senior roles long merited by their experience and service, ripples of change begin by knowing the facts, recognising the bias, and taking steps to foster inclusion. The Australian legal profession is just beginning to discuss the challenge of intersectionality, and to champion how cultural diversity in legal practice makes a difference. Those of us who have overcome the perception of disadvantage have an especially precious opportunity to promote positive change.

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13

Cultural Change – The Shift from Party Autonomy to Court-Managed Litigation

By The Hon Justice Virginia Bell AC High Court of Australia

Reform of the conduct of civil litigation in common law jurisdictions over the past 25 years has seen a distinct shift from party autonomy to the court management of proceedings. In New Zealand and the Australian jurisdictions, this has been driven, at least in part, by the enactment of a statement of the “overriding” or “overarching” purpose of the procedural code. Hong Kong with estimable subtlety has settled on a statement of “underlying” purpose. All have in common consideration of proportionality in case management decision-making. So, too, do the Rules of the Supreme Court of Canada.

Case management as the means of reducing the high costs and delays of civil litigation was pioneered in the United States. From their inception, the Federal Rules of Civil Procedure contained a statement that they should “be construed to secure the just, speedy, and inexpensive determination of every action”. An amendment in 1993 made clear that federal courts were to administer the Rules to that end. Recognition that the ‘just resolution’ of cases requires 14 | BRIEF SEPTEMBER 2019

consideration of proportionality in its individual and collective aspects was the innovation of the Woolf reforms.

Under r 1.1(2)(c) of the Civil Procedure Rules 1998 (UK) (“the CPR”), the court is enjoined to deal with the case in a way that is proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of the parties (“individual proportionality”).

Under r 1.1(2)(e), the court is enjoined to allot an appropriate share of

court resources to the case while taking into account the need to allot resources to other cases (“collective proportionality”). The statements of overriding purpose adopted in other jurisdictions following the Woolf reforms are variously expressed but generally pick up both these aspects of proportionality.

The adoption of the overriding objective is suggested to have involved a shift in the theory of civil justice as fundamental as the shift effected by

the judicature reforms of the late 19th century1.

Professor Zuckerman characterises the latter as rejecting the fetish for rigid procedural formalism in favour of an equally strong fetish for the ideal of “doing justice on the merits”2.

Professor Zuckerman does not subscribe to the siren call of the latter ideal. It is famously encapsulated

by Collins MR in In the Matter of an Arbitration between Coles and Ravenshear3: “The relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.”

The attainment of “complete justice” under the Rules of Court 1875 (UK) was facilitated by orders XXVII and LXIX which required the court to make all necessary amendments and conferred power to grant relief from the consequences of procedural default.

Together they fostered the conduct of civil litigation on the principles espoused

by Bowen LJ in Cropper v Smith4: “Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.”

There is force to the view that the liberal approach to amendment coupled with the forgiveness of procedural non-compliance and the rule in Birkett v James5 effectively rendered the rules of court optional6.

Doing “complete justice” not uncommonly favoured the litigant with deep pockets and came at a cost to other litigants waiting to have their disputes dealt with in a timely way.

And, not uncommonly, as Professor

Zuckerman observes7: “For desire not to allow matters of procedure to stand in the way of doing justice on the merits created extensive scope for litigation that had nothing to do with the merits but which could well prevent a merits based resolution of the dispute.”

Against this background, it was the stated intention of the Woolf reforms to effect a fundamental transfer in the responsibility for the management of civil litigation from the litigants and their legal advisors to the courts8. There appears to have been considerable resistance in England from the profession and the bench to implementing that transfer9. This led, after Sir Rupert Jackson’s review of litigation costs10, to the reformulation of the overriding purpose to emphasise the need to enforce compliance with the rules and the introduction of new strictures on relief for noncompliance11.

Following these amendments, the Court of Appeal laid emphasis on the need for strict compliance as of “paramount importance” to the determination of an application for relief from sanctions12. One unexpected consequence was the generation of a deal of opportunistic satellite litigation; parties were inclined to oppose applications for relief in the hope of securing a windfall gain13. The Court of Appeal has subsequently revisited the issue adopting a more nuanced approach which, among other things, cautions that opportunistic behaviour in taking advantage of minor errors by an opponent is to be visited with heavy costs sanctions14.

The concern that court management of litigation may increase the costs burden, whether because of excessive management or as the result of “front loading” in the many cases that ultimately settle, led some to oppose its introduction in Australia. The impetus for its adoption was the need to tackle delay. The modest hope of its early proponents was that costs might be at least maintained at the same level15. However, more than a decade before the enactment of provisions requiring the court to take account of collective proportionality in managing proceedings16, the New South Wales Court of Appeal had acknowledged that the capacity to do justice for other litigants in a timely way is a relevant consideration in the administration of civil justice17.

In Sali v SPC Ltd, the High Court of Australia allowed that the judge managing a case was “entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.”18 As the joint reasons in Sali explained19: “What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”

Sali, however, proved to be somewhat ahead of its time. In late 1996, in Queensland v J L Holdings, the High Court took up the invitation to restate the rule in Cropper v Smith in the context of the application of case management principles20. At issue was the correctness of the trial judge’s decision to refuse leave to amend the defence. This was complex commercial litigation. The application to amend came at a time when the case had been set down for trial after a series of contested interlocutory hearings. The amendment raised substantial new factual issues. The trial judge gave principal weight to the likely loss of the trial date if the amendment were allowed, observing that courts had come to recognise the need for some limits on a party’s right to present its defence.

On appeal, the appellant complained that the trial judge had permitted case management to divert her from a proper balance of the relative injustice to each party. Notwithstanding the winds of change in the common law world (Lord Woolf’s final report had been published five months before J L Holdings was heard), the High Court adhered to the classical theory of civil justice, holding that principles of case management were not to be allowed to supplant the attainment of justice21. In particular, the statements in Sali were not to be understood as suggesting that case management might be employed to shut out a party from litigating any fairly arguable claim or defence.

At the time J L Holdings was decided, the Federal Court of Australia Act 1976 (Cth) did not contain a statement of overriding purpose. Over the course of the next decade the Australian jurisdictions largely incorporated 15

statements modelled on r 1.1 of the CPR. In Aon Risk Services Australia Ltd v Australian National University22 the High Court returned to a consideration of case management principles in the context of an action governed by a rule which provided that the rules of civil procedure were to be applied: “with the objective of achieving (a) the just resolution of the real issues in the proceedings and (b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties” (emphasis added)23.

As with J L Holdings, in issue were the principles governing the exercise of the power to grant leave to amend.

Focus was on the rule, drawn from order XXVII of the Rules of Court 1875 (UK), that “all necessary amendments … must be made for the purpose of … deciding the real issues in the proceeding; or … avoiding multiple proceedings.”24 The facts presented a somewhat egregious example of the conduct 16 | BRIEF SEPTEMBER 2019

of substantial commercial litigation.

The plaintiff commenced proceedings against its insurers and Aon, its insurance broker. On the third day of a trial which had been fixed for a four-week hearing, after settling with its insurers, the plaintiff applied for an adjournment to amend its statement of claim to plead a substantially different case against Aon. The application was allowed and the plaintiff was granted leave to amend. An appeal to the Court of Appeal was dismissed, the majority taking the view that the determination was governed by J L Holdings.

Aon was granted special leave to appeal to the High Court. The decision marks a departure from the conception of the “just resolution” of proceedings embraced in J L Holdings. The joint reasons spoke of the recognition in the common law world of the need for a new approach to tackle the problems of delay and cost in civil litigation.

Their Honours endorsed Waller LJ’s observation in Worldwide Corporation Ltd v GPT Ltd, that the concern that case management not supplant the attainment of justice does not pay

sufficient regard to the fact that courts are concerned to do justice to all litigants25.

Aon rejects that the rules confer an unqualified duty to permit the late addition of a new claim. The requirement to make all “necessary amendments” did not extend in that case to an entirely new claim: the proposed claim was not at the time of the application a “real issue” in the proceeding between the plaintiff and Aon. While a proper opportunity must be given to parties to plead their case, Aon allows that limits may be placed on re-pleading when delay and cost are taken into account26. It follows that it is no longer acceptable for a party to be permitted to raise any arguable claim or defence at any stage in proceedings on payment of costs.

The joint reasons in Aon acknowledge that even indemnity costs may not undo the prejudice of a late amendment. And they acknowledge that this may be so notwithstanding that the litigation is between sophisticated commercial parties.

v Henderson27 / Port of Melbourne Authority v Anshun Pty Ltd28 grounds29.

In his separate reasons, French CJ considered that abuse of process principles might be invoked against any attempt to litigate the new claim in later proceedings30.

since the documents were listed both in the privileged and non-privileged sections of ERA’s Lists of Documents.

Nonetheless, the solicitors for the Armstrong parties refused to return the documents contending that privilege had been waived.

In Australia, post-Aon, where a discretion is sought to be exercised in favour of one party to the disadvantage of another, the court looks for an explanation for the indulgence sought.

It does not suffice to show that the application is brought in good faith. It is necessary to identify circumstances giving rise to the need to amend (or the other relief sought) so that these factors can be weighed against the effects of delay in light of the overriding objective.

ERA brought a motion seeking the return of the documents and that their opponents be restrained from making any use of them. Following a threeday hearing, the primary judge held that in the case of nine documents the disclosure had been inadvertent.

The Armstrong parties appealed to the Court of Appeal. Determination of the appeal gave rise to lengthy consideration of the basis in law or equity for the relief claimed. Ultimately, the Court of Appeal concluded that an obligation of conscience could not be sheeted home to the solicitors for the Armstrong parties and the appeal was allowed.

Considerations of individual and collective proportionality require courts to be astute to restrain opportunistic satellite litigation. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (“ERA”)31 the principles explained in Aon were developed in the context of an interlocutory skirmish which should not have been litigated.

The concern to avoid multiple proceedings was addressed by observing that Aon might have led evidence to answer the claim as originally framed against it and moved for judgment. In the circumstances, it was not apparent how the plaintiff could have resisted an application for a stay of any fresh proceedings based on its new claim on Henderson

The parties to a commercial dispute had been ordered to give verified, general discovery. ERA’s solicitors used an electronic database to review some 60,000 documents. On 13 occasions, the reviewer incorrectly selected the option “no” in answer to an automatically generated question asking if privilege was claimed, and the documents were mistakenly disclosed to the Armstrong parties.

ERA’s solicitors brought the error to the attention of their opponents promptly. In the case of nine of the documents the error was evident

ERA was granted special leave to appeal to the High Court.

The Court observed that the trial judge had been faced with an evident mistake which had occurred in the course of discovery, a court-ordered procedure.

The orders which should have made were to permit ERA’s lawyers to amend their Lists of Documents and to return the privileged documents.

The Court was critical of the reliance of the solicitors for the Armstrong parties on waiver, noting that the rules of court impose a duty on parties to civil proceedings to further the overriding purpose and require that their lawyers not put the client in breach of that duty.

Requiring the Court to rule on waiver and the availability of injunctive relief was not consistent in the circumstances with the discharge of the lawyer’s duty32. The issue had served merely to

17

distract the parties from progressing the matter towards final hearing, encouraged the outlay of considerable expense and squandered the resources of the court33.

ERA did not raise consideration of the scope of discovery that ERA had been required to give. Within a year of the initial hearing of ERA’s motion, a practice direction was issued in the Equity Division of the Supreme Court limiting the nature and extent of orders for discovery in the Division. Under the practice direction, an order will not generally be made until after the parties have served their evidence and then only if it is necessary for the resolution of the real issues before the court. A party seeking discovery must not only set out the reasons why it is necessary but must also provide the court with an estimate of its likely cost34.

Generally, the Australian jurisdictions have abandoned general discovery subject to the Peruvian Guano test35.

In this respect, too, the rules governing the conduct of litigation evince a shift from earlier conceptions of “complete justice”. Brett LJ’s (as his Lordship then was) test was posited upon the view that the fullest facts should be before the court to enable it to do complete justice between the parties.

Applied to the conduct of modern litigation, the test has been productive of excessive expense and oppression.

The rules governing discovery in the Federal Court of Australia in terms 18 | BRIEF SEPTEMBER 2019

require consideration of proportionality in determining whether to make an order and its scope36. The practice note issued by the Federal Court of Australia, states the expectation that parties and their representatives will “display common-sense and moderation in requests for discovery, in disputes about discovery and in expending costs on both”37.

In England, the Woolf reforms, as enacted, made general discovery the exception. Discovery was to be limited to those documents the parties intended to rely upon, those that were adverse to their case and those that supported the opponent’s case.

Nonetheless, discovery remained a source of excess costs38. Following the Jackson reforms an approach more tailored to the circumstances of the particular case has been adopted. As with the Federal Court of Australia’s practice, under the new regime the expectation is that the parties will endeavour to agree on the level of disclosure that is reasonably necessary and on the most cost effective means of providing it39. It may be too early to gauge the extent to which these expectations are met.

The advent of civil procedure reforms has also given wider scope to the doctrine of abuse of process. In England, r 1 of the CPR has outflanked the rule in Birkett v James40. In Securum Finance Ltd v Ashton, Chadwick LJ made clear that the court

will now take into account the fact that earlier proceedings have been dismissed for want of prosecution on any application to strike out fresh proceedings41: “The reason, as it seems to me, is that, when considering whether to allow the fresh proceedings to continue, the court must address the question whether that is an appropriate use of the court’s resources having regard (i) to the fact that the claimant has already had a share of those resources in the first action and (ii) that his claim to a further share must be balanced against the demands of other litigants.”

In Tomlinson v Ramsey Food Processing Pty Ltd, it was noted that while the doctrine of abuse of process may be invoked in areas in which estoppels also apply, it is inherently broader and more flexible than estoppel. Abuse of process is capable of application to relieve against injustice to a party or impairment to the system of administration of justice notwithstanding that a party to a subsequent proceeding is not bound by an estoppel42. The reasons in Tomlinson cited Johnson v Gore Wood & Co in this regard43.

The question in Johnson was whether the plaintiff’s claim should be struck out on the ground that it should have been made in an earlier action brought

by a company under his control.

The focus, given that the parties to the two actions were different and estoppel could not run, was on what Lord Bingham of Cornhill described as “Henderson v Henderson abuse of process”44. While the plaintiff’s action was not found to be abusive, it was not doubted that it may be an abuse to bring proceedings notwithstanding that the plaintiff is not bound by an estoppel. Lord Bingham of Cornhill described abuse of process on Henderson v Henderson grounds as distinct from cause of action estoppel and issue estoppel but as sharing the same underlying public interest: that there should be finality in litigation and that a party should not be twice vexed in the same matter.

His Lordship added that it is a public interest that is reinforced by “the current emphasis on efficiency and economy in the conduct of litigation” both in the interests of the parties, and the public as a whole45.

The circumstances in which a claim which might have been pursued in earlier proceedings will be stayed as an abuse of process notwithstanding that the person making the claim is neither a party nor the privy of a party to the earlier proceeding, was squarely raised in for consideration in the High Court in UBS AG v Tyne46. Mr Tyne, in his capacity as a trustee of a family trust, commenced proceedings against UBS in the Federal Court of Australia claiming damages and equitable compensation arising out of advice and representations made by UBS to Mr Tyne and “through him” to certain “Tyne-related entities”. The latter included the former corporate trustee of the family trust and an investment company, Telesto, of which in each instance Mr Tyne was the controlling

mind. The trust’s claimed losses arose in connection with the pledge of its assets to secure Telesto’s liabilities under credit facilities extended by UBS. Mr Tyne in his personal capacity, Telesto and the former trustee had earlier brought proceedings in the Supreme Court of New South Wales (“the SCNSW proceedings”) arising out of the same facts and making essentially the same claims as those made on behalf of the trust in the Federal Court.

Mr Tyne and the former trustee discontinued their claims in the SCNSW proceedings, leaving Telesto as sole plaintiff. The SCNSW proceedings were permanently stayed on the ground that Telesto was seeking to re-litigate causes of action which in substance had been determined in proceedings in the High Court of Singapore, giving rise to a res judicata estoppel.

UBS sought to have the Federal Court proceedings stayed as an abuse of process. The primary judge acceded to the application, holding that the trust should have brought its claims in the SCNSW proceedings and that it had failed to give a proper explanation for its failure to do so. On appeal, the Full Court of the Federal Court of Australia, by majority, held that there had not been an abuse of process in circumstances in which the trust’s claims had not been decided on their merits.

UBS was given special leave to appeal to the High Court. UBS contended that the “overarching purpose” of the conduct of civil litigation in the Federal Court as “quickly, inexpensively and efficiently as possible” is not given effect by allowing one or more of a number of plaintiffs, under the control of the same individual, to discontinue proceedings, stand back and allow

those proceedings to continue to final determination, then, depending on the outcome of the earlier proceedings, and without proper explanation, to and, in substance, the same claims against the same defendant47. A majority accepted those arguments.

In so doing, the majority adopted Lord Bingham of Cornhill’s account of the scope of abuse of process as requiring48: “a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the processes of the court in seeking to raise before it the issue which could have been raised before.”

The corporate trustee was not privy in interest with Telesto, however, in circumstances in which related parties were under common control, the majority accepted that the making a claim which ought reasonably to have been made in the earlier proceeding was an abuse of process. The Trust’s claims would not have been met by a plea of res judicata and could have been determined on their merits in the SCNSW proceedings. Mr Tyne’s perception of the forensic advantage to the Tyne-related parties in holding back the trust’s claim with a view depending on the outcome of the SCNSW proceedings to bringing it in another court was held to be the antithesis of discharge of the duty imposed on parties to conduct proceedings consistently with the overarching purpose49.

The broad merits-based judgment of which Lord Bingham spoke

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recognises that the fact that an issue could have been litigated in an earlier proceeding does not necessitate the conclusion that it should have been litigated in that proceeding50.

Here, notwithstanding unconditional discontinuance of the trust’s claim in the SCNSW proceedings, acceptance that the trust’s claims were arguable, and that delay had not made their fair trial impossible, the majority’s judgment was that the Federal Court proceedings were an abuse of process.

The conclusion took into account all of the circumstances, including the absence of adequate explanation for the decision not to pursue the trust’s claim in the SCNSW proceedings.

The dissentients in UBS AG v Tyne considered that a “right-thinking person” would not look askance at the commercial reasons for the decision made by the previous trustee to discontinue its involvement in the SCNSW proceedings. It had done so without objection, in circumstances in which there had been no determination on the merits of its claims and the delay had not been “inexcusable”. In these circumstances their Honours assessed the Federal Court proceedings were not an abuse of process51. The majority countered that courts must be astute to protect litigants and the system of justice itself against abuse of process. They reasoned that it harks back to a time before the enactment of statements of overriding/overarching purpose to expect courts to indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation52.

The Supreme Court of Canada emphasised the breadth and flexibility of the abuse of process doctrine in Behn v Moulton Contracting Ltd53. The Court dismissed an appeal against orders striking out a defence. The defence sought to challenge the validity of certain logging licences on constitutional and other grounds. In circumstances in which no challenge had been made at the time the licences were issued, the pleas in the defence were held to amount to an abuse.

LeBel J, giving the judgment of the Court, endorsed the earlier statement of McLachlin J (as her Honour then was) in dissent in R v Scott, that the doctrine of abuse of process evokes the “public interest in a fair and just trial process and the proper administration of justice”54. LeBel J went on to note that unlike the concepts of res judicata and issue estoppel, abuse of

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process is unencumbered by specific requirements. Since the administration of justice and fairness are at its heart, abuse of process may preclude litigation of an issue in circumstances in which the requirements for issue estoppel are not met55.

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The New Zealand Court of Appeal was guarded about the application of the Securum Finance proportionality analysis to the High Court Rules (NZ) in Bank of New Zealand v Savril Contractors Ltd56. Notably, however, the conclusion that the fresh proceedings in that case were an abuse of process took into account not only fairness to the defendant, but the Court’s view that continuance of the proceeding would bring the administration of justice into disrepute57.

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In a critique of the impact of the Woolf and Jackson reforms, Dr Sorabji who serves as Principal Legal Advisor to the Lord Chief Justice, praises Aon for its embrace of a concept of justice that encompasses “the need to secure all litigants with an effective and equitable share of the court’s resources so as to enable them to achieve access to justice as well as maintain public confidence in the courts”58. The claim that court managed litigation serves to increase access to justice is not readily susceptible of empirical demonstration.

And while maintenance of public confidence in the courts may be a fuzzy concept, the concern to avoid the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public monies59 is one not to be gainsaid.

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26 27 28 29

30 31 32

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34 35 36 37

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39 40 41 42 43 44

Endnotes 1 2 3 4 5 6 7 8

9 10 11 12 13 14 15

16

Sorabji, English Civil Justice after the Woolf and Jackson Reforms (2014) at 1.

Zuckerman, Zuckerman on Civil Procedure: Principles of Practice, 3rd ed (2013) at 23[1.65] 26[1.69].

[1907] 1 KB 1 at 4.

(1884) 26 Ch D 700 at 710.

[1978] AC 297.

Sorabji, Civil Justice after the Woolf and Jackson Reforms (2014) at 69-70.

Zuckerman, Zuckerman on Civil Procedure: Principles of Practice, 3rd ed (2013 at 31[1.81].

Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (1996).

Dyson, “The Jackson Reforms and Civil Justice” (2015) 39 Australian Bar Review 215.

Jackson, Review of Civil Litigation Costs: Final Report (2009).

Civil Procedure Rules 1998 (UK), rr 1.1(2)(f), 3.9.

Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795.

Dyson, “The Jackson Reforms and Civil Justice (2015) 39 Australian Bar Review 215 at 225.

Denton v TH White Ltd [2014] 1 WLR 3926.

Sourdin, “Judicial Management and Alternative Dispute Resolution Process Trends” (1996) 14 Australian Bar Review 185 at 192; Allsop, “Judicial Case Management and the Problem of Costs” (2015) 39 Australian Bar Review 228 at 236-237.

Civil Procedure Act 2005 (NSW), ss 56 and 57.

45 46 47 48 49 50 51 52

53 54 55 56 57 58 59

Byron v Southern Star Group Pty Ltd (1995) 123 FLR 352 at 352-354 per Kirby P; Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 553-554 per Clarke JA, 601-605 per Powell JA. Sali v SPC Ltd (1993) 67 ALJR 841 at 843-844 per Brennan, Deane and McHugh JJ; 116 ALR 625 at 629; [1993] HCA 47.

Sali v SPC Ltd (1993) 67 ALJR 841 at 844 per Brennan, Deane and McHugh JJ; 116 ALR 625 at 629.

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 148; [1997] HCA 1.

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 per Dawson, Gaudron and McHugh JJ. (2009) 239 CLR 175; [2009] HCA 27.

Civil Procedure Rules 2006 (ACT), r 21(1).

Court Procedures Rules 2006 (ACT), r 501.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 212 [94]-[95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, citing Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894.

(2009) 239 CLR 175 at 213 [98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. (1843) 3 Hare 100 at 115 per Wigram V-C [67 ER 313 at 319].

(1981) 147 CLR 589 at 602 per Gibbs CJ, Mason and Aickin JJ; [1981] HCA 45.

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 209-210 [86]-[87] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 193 [33].

(2013) 250 CLR 303; [2013] HCA 46.

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at 325 [64] per French CJ, Kiefel, Bell, Gageler and Keane JJ. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at 324 [59] per French CJ, Kiefel, Bell, Gageler and Keane JJ. Supreme Court of New South Wales, Practice Note SC Eq 11, 26 March 2012.

Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 62-3.

Federal Court Rules 2011 (Cth) r 20.11.

Federal Court of Australia, Central Practice Note: National Court Framework and Case Management, 25 October 2016 at [10.13].

Dyson, “The Jackson Reforms and Civil Justice” (2015) 39 Australian Bar Review 215 at 218219; Aikens, Report and Recommendations of the Commercial Court Long Trials Working Party, Judiciary of England and Wales, (2007) at 26ff.

See Civil Procedure Rules 1998 (UK) r 31.5(2)-(8).

[1978] AC 297 at 320.

[2001] Ch 291 at 308 [31].

(2015) 256 CLR 507 at 518-519 [25] (“Tomlinson”).

[2002] 2 AC 1.

[2002] 2 AC 1 at 31; see Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 at 184-185 [24]-[25].

Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.

UBS AG v Tyne (2018) 92 ALJR 968.

UBS AG v Tyne (2018) 92 ALJR 968 at 972 [6].

UBS AG v Tyne (2018) 92 ALJR 968 at 972-973 [7] citing Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.

UBS AG v Tyne (2018) 92 ALJR 968 at 980 [55].

Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.

UBS AG v Tyne (2018) 92 ALJR 968 at 990 [105][106] per Nettle and Edelman JJ. UBS AG v Tyne (2018) 92 ALJR 968 at 979 [45] per Kiefel CJ, Bell and Keane JJ, [61] per Gageler J. Behn v Moulton Contracting Ltd [2013] 2 SCR 227.

Behn v Moulton Contracting Ltd [2013] 2 SCR 227 at 245, quoting R v Scott [1990] 2 SCR 979 at 1007.

Behn v Moulton Contracting Ltd [2013] 2 SCR 227 at 245-246 [40]-[41].

[2005] 2 NZLR 475 at 500 [99].

Bank of New Zealand v Savril Contractors Ltd [2005] 2 NZLR 475 at 501 [105].

Sorabji, English Civil Justice after the Woolf and Jackson Reforms (2014) at [232]-[234].

UBS AG v Tyne (2018) 92 ALJR 968 at 981 [59] citing Tyne v UBS AG [No 2] (2017) 250 FCR 341 at 351 [17].

Publicity and Costs of Innocence Gino Dal Pont Professor, Faculty of Law, University of Tasmania

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An increasingly consumerist society has meant that clients are more inclined to complain about legal services than in the past.

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That a lawyer considers a complaint unjustified is no ground for refusing to comply with inquiry into it.

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Aspects relating to publicity and costs of tribunal disciplinary proceedings may impact adversely on lawyers even if the complaint is not sustained.

Australian society’s increasingly consumerist nature, inter alia, makes it unsurprising that members of professions should correspondingly be exposed to client complaints.

The legal profession has hardly proven immune, to the extent that most Australian jurisdictions have in the last 20 years or so created statutory bodies or offices charged with receiving and investigating complaints (and sometimes also prosecuting them), in place of professional bodies with parallel functions.

Of course, it cannot be assumed that all client complaints are well founded. To the contrary, a large majority are either summarily dismissed or not sustained following some inquiry. At the same time, it is common for the complaint-receiving body to invite the lawyer in question to respond to the complaint.

This in turn takes irrecoverable time, and thus incurs an opportunity cost. But as the failure to give an adequate response can itself be characterised as unprofessional, lawyers do well to cooperate.1 Not only is cooperation strongly advisable to avoid a potential disciplinary stain, it may in many instances serve to prevent the complaint going any further. And even if it does not have this effect, assuming that what is revealed is not serious misconduct, statute in most jurisdictions now permits the disciplinary inquiry and determination (and with this any sanction) to remain under the auspices of the relevant regulatory body.2 The benefits of such a course, even if they ultimately sound in a disciplinary order, are not insignificant, at least not when compared to the alternative, typically proceedings in the State Administrative Tribunal. Aside from likely being more “formal” and “adversarial” than matters before a regulatory body, and capable of generating more severe disciplinary sanctions, these are characterised by two other factors disadvantageous to lawyer-respondents.

Ethics Column

The first is that, as a general rule, tribunal proceedings are heard in public, and there is ordinarily no suppression of the lawyer’s identity. That the tribunal has found that one or more, or even all, of the disciplinary charges have not been sustained is no ground by itself to justify identity suppression. The reason, it seems, is that “[t]ransparency and public exposure in cases involving a profession are required by public policy as a means of maintaining public confidence”.3 The foregoing is evidently a strong public policy.

After all, even if the lawyer is ultimately acquitted, the very reporting of his or her identity in the disciplinary sphere often carries a (perceived) reputational hit. Yet courts and tribunals have made explicit that potential reputational damage from being named in disciplinary proceedings is no justification to shield the lawyer’s identity.4 One of the few instances that has prompted a suppression order targets where a tribunal (or court) harbours serious concerns for the impugned lawyer’s wellbeing should his or her identity be publicly disclosed. The threshold for this intervention is high,5 and not substantiated merely by pleading depression or anxiety to explain misconduct.6 The second disadvantageous factor for lawyers in tribunal proceedings targets costs.7 Against the statutory backdrop of each party bearing its own costs, it cannot be assumed that a lawyer acquitted of unsatisfactory professional conduct or professional misconduct will receive costs in his or her favour. This rests on the notion that “[r]egulatory authorities should be able to bring disciplinary actions, where there is a reasonable foundation for doing so, without the risk of a costs order if the action is ultimately unsuccessful”.8 In view of the foregoing, it behoves lawyers to attempt to defuse complaints at an early stage, and to cooperate with any complaints inquiry, even if this is galling.

Endnotes 1 2 3 4 5

6 7 8

See Dal Pont, “Reporting for Duty” (Oct 2005) 79 LIJ 78.

Legal Profession Act 2008 (WA) s 426 (“summary conclusion of complaint procedure”).

Law Society of Tasmania v LH [2003] TASSC 90 at [6] per Slicer J. See, for example, New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 at [86].

See, for example, Legal Practitioners Complaints Committee v A Practitioner [2010] WASC 13 (where the respondent was found to be at a risk of suicide and self-harm were here identity divulged).

See, for example, Legal Services Commissioner v Shand [2017] QCAT 159.

State Administrative Tribunal Act 2004 (WA) s 87(1).

Council of the Law Society of the Australian Capital Territory v Legal Practitioner ‘D3’ (Costs) [2014] ACAT 8 at [23].

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Crowdfunding Litigation: A Problem or a Solution?

By Arthur Moses SC President, Law Council of Australia This article was first published in Australasian Lawyer

Every Australian should be able to afford to access justice, and have the means and opportunity to raise a meritorious claim to be determined by the courts.

Unfortunately, that is not always the reality.

The cost of litigation can be prohibitive.

Understandably, the price of accessing justice in Australia remains a live concern for the community and the legal profession.

Advocates of third-party litigation funding have long argued that such funding affirms the rule of law by facilitating access to the courts for complainants who otherwise could not afford to seek recourse to our justice system.

Social media platforms bring our society together to collaborate in ways we never before thought possible. At first glance, crowdfunding litigation seems like an

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obvious solution to the age-old challenge of raising sufficient funds to pursue a claim.

The reality, however, is that the rise of crowdfunding litigation has prompted complex professional, ethical and practical questions that the community, courts and the legal profession must carefully work through. To ensure that what is done with good intentions does not have the unintended consequence of undermining the rule of law, the merits of a case, or public confidence in our courts or justice system.

Where money is given in the course of litigation, there is a compelling need to look the gift-horse squarely in the mouth.

These complexities have been brought to the fore by the recent controversy surrounding Israel Folau’s crowdfunding campaign. Folau, a professional rugby player, had his contract with Rugby Australia (RA) terminated in May after making anti-LGBT remarks. GoFundMe later cancelled Folau’s crowdfunding campaign to raise money for his legal fight against RA, citing its own antidiscrimination policies.

It is inappropriate to speculate about the substance or merits of Mr Folau’s legal case. These are matters for Mr Folau and his lawyers. It is important we respect Mr Folau’s right to bring a case and have the matter heard before a court of law, not by a court of public opinion.

It is also inappropriate to speculate about the motives behind GoFundMe’s decision to cancel Mr Folau’s campaign.

As a social media platform and provider, GoFundMe’s terms and conditions are clear, publicly available and reserve a significant discretion for the company to

terminate a campaign.

It has been said by some commentators who I respect that there is an element of disproportion in the attention the Folau case has received, as compared with other crowdfunded cases like Senator Hanson-Young’s. It is because of the increasing trend towards crowdfunding that I have felt compelled to respond to raise concerns regarding ethical considerations for lawyers. These concerns apply equally to other crowdfunded matters, whoever the parties.

The real question is whether allowing crowdfunding as a source of funds for litigation is ever in the public interest.

The first issue is that lawyers have strict professional, legal and ethical obligations which govern what and how much lawyers may charge for legal services, who they may receive monies from, how such monies are to be handled, and how such monies are to be accounted for.

An obvious difficulty with crowdfunded litigation is that it is very difficult for a lawyer to know precisely who has contributed funding and for what purpose.

I am troubled that lawyers would accept crowdfunding-generated money for fees in circumstances where a lawyer does not know the source of the money or the basis upon which the money was provided. This creates real ethical concerns.

The second issue is the possibility that misrepresentations could be made to the public to invite crowdfunding. Without commenting on the Folau case, I am concerned as a general principle that false or inaccurate representations, whether intentional or unintentional, could well be made to the public regarding crowdfunded litigation to suggest a case is in the public interest, when in truth it may just be a contractual dispute over money.

This could place a lawyer in the invidious position of receiving money donated

by members of the public based on unlawful conduct by their client. Further, it may involve false representations or exaggerated claims being made as to the prospects of success of a court case in order to induce donations, which are at odds with the lawyer’s advice. In either circumstance, arguably no lawyer should continue to act as monies may be knowingly received based on a false premise.

The third issue is that crowdfunding could lead to a client disclosing their lawyer’s advice as to the prospects of success of a case. This may constitute a waiver of privilege, since donors are not the client, and may entitle an opposing party to seek a copy of the advice. This could be damaging to the case.

There must be a balance between promoting access to justice and ensuring court processes are not abused or unwittingly undermined by third parties who, despite best intentions, are in one sense meddling in a case between two parties.

If a lawyer is paid using the proceeds of a crowdfunding campaign, this may expose them to a claim brought by persons who had contributed to the crowdfunding, who may argue they were misled as to the money’s use or do not approve of the conduct of the case.

There are also questions around what should occur with any funds leftover if money raised is not used in its totality, including whether it should be returned to those who donated or to the person who collected the funds.

Part of the answer is that crowdfunding platforms should ensure proper vetting procedures are in place before a campaign goes live. This would involve confirming the platform’s terms and conditions were not breached from the outset to avoid the types of controversy we have recently seen.

Australia’s legal profession must also closely consider establishing express ethical rules and guidance

for practitioners who are conducting crowdfunded litigation.

The Law Council of Australia is working to establish a working group of experts to explore the issue and consider a possible regulatory framework for discussion with government and the courts.

Our courts have powers to minimise the risk of justice processes being abused or undermined by crowdfunded litigation, but the issue is whether these protections are sufficient.

For example, a court may order a party to disclose how much money has been raised through crowdfunding and only allow the litigation to proceed if there is an undertaking that unspent money will be returned to those who donated.

A cap may be placed on the fees a lawyer can charge in order to ensure invoices generated reflect work undertaken, not simply the funded amount that a lawyer knows to be available.

A court may make a security for costs order against a crowdfunded party in order to place some of the monies raised into a bank account so that in the event that the litigation is unsuccessful, the opposing party’s costs would be paid.

Courts may take into account that a litigant has received crowdfunded monies and the conditions that formed the basis of the funding. This may be deemed a relevant factor in a security for costs application, requiring a litigant to deposit money into a secured account.

If the case is dismissed or the litigation fails, this money would be used to pay legal expenses of the opposing side.

Much has been said in the context of crowdfunded litigation about religious freedom and freedom of expression.

But crowdfunding litigation is not going to secure religious freedom, which is deserved by all Australians. Reasonable people also accept that these freedoms are not unbridled.

We must look elsewhere to secure meaningful safeguards for these principles.

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EVENT WRAP UP

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1. Attendees at the Golden Gavel Dinner 2019 2. Alexandra Martin, Norton Rose Fulbright; Kellie Hayman, Norton Rose Fulbright; Timothy Philbey, Norton Rose Fulbright 3. Daphne Schilizzi, Kott Gunning; Conor Breheny, Kott Gunning; Danielle Hadida, Kott Gunning; Jack Carroll, Kott Gunning

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4. Andrew Huxtable, Allens; Nathan Kearns, Allens; Laura Jackson, King & Wood Mallesons; Sharon Ho, King & Wood Mallesons

Golden Gavel 2019

5. Phillip Nguyen, Cor Cordis; Matilda Stoneman, Clayton Utz; Jordie Fienberg, Pragma Lawyers 6. The Hon Peter Quinlan, Chief Justice of Western Australia

On Friday, 26 July, over 200 attendees were treated to a hilarious evening of comedy as 10 courageous young lawyers showcased their satirical skills in front of their peers at the 2019 Golden Gavel Competition.

Congratulations to Claudia Carr from Herbert Smith Freehills, who was crowned the winner of the 2019 Golden Gavel competition and will represent Western Australia at the National Golden Gavel later this year.

Well done to the fantastic runners-up Corey White, Brennan & Co and Brandon McEvoy, Ashurst and Ebony Back, Allens

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who was chosen as the winner of the People’s Choice Award.

Thank you to all the brave contestants who competed and thank you to our panel of eminent judges, including Law Society President Greg McIntyre SC, the Hon Peter Quinlan, Chief Justice of Western Australia, and Mara Barone SC.

Presented by:

Golden Gavel 2019 14

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7. Corey White, Brennan & Co; Kellie Hayman, Norton Rose Fulbright; Brandon McEvoy, Ashurst; Jason O’Meara, Pragma Lawyers; Mara Barone SC, Claudia Carr, Herbert Smith Freehills; The Hon Peter Quinlan, Chief Justice of Western Australia; Greg McIntyre SC, President of The Law Society of Western Australia; James Constantine, Clayton Utz; Briony Whyte, Jackson McDonald; Angus Paterson, MinterEllison; Holly Gretton, King & Wood Mallesons; Ebony Back, Allens 8. Jessica Antal, Clayton Utz; Nicole Courtney, Clayton Utz; Heather Costelloe, Clayton Utz; James Constantine, Clayton Utz; Matilda Stoneman, Clayton Utz; Jordan Hill, Clayton Utz 9. Dan English, Clayton Utz; Jonathan Cockcroft, MinterEllison; Louis Mitchell, Corrs Chambers Westgarth; Scott Howieson, Clayton Utz; Thomas Burke, Clayton Utz 10. Áine Whelan, The Law Society of Western Australia; The Hon Len Roberts-Smith QC; Mara Barone SC; Greg McIntyre SC, President of The Law Society of Western Australia 11. Brandon McEvoy, Ashurst 12. Corey White, Brennan & Co 13. Ebony Back, Allens 14. Mara Barone SC; The Hon Peter Quinlan, Chief Justice of Western Australia; Greg McIntyre SC, President of The Law Society of Western Australia 15. Danielle Battista, DLA Piper; Tessa Richardson, Corrs Chambers Westgarth; Kala Campbell, Corrs Chambers Westgarth; Matheo Vinciullo, King & Wood Mallesons; Claudia Carr, Herbert Smith Freehills 16. Claudia Carr, Herbert Smith Freehills

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17. Ashleigh Weaver, Jackson McDonald; Adam Versaci, Jackson McDonald; Daniel Sutherland, Jackson McDonald; Hayley Kurz, Jackson McDonald; Briony Whyte, Jackson McDonald

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Vienna International Centre, headquarters of the United Nations Commission on International Trade Law (UNCITRAL)

Judicial Cooperation in Cross-Border Insolvency

By The Hon Justice Jacqueline Gleeson, Federal Court of Australia

In matters where it applies,1 the Model Law imposes a duty on the relevant court to cooperate “to the maximum extent possible” with foreign courts.

A duty of judicial cooperation might initially seem surprising. At its most basic, the role of the judge is to do justice according to law. “Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts”.2 The judge’s task is to identify and reconcile any relevant legal principles and apply them to the dispute at hand.3 Where might judicial cooperation with judges of different nation states fit into the performance of that task? In what circumstances might a judge be required 26 | BRIEF SEPTEMBER 2019

to take action which is not directly relevant to the dispute before the Court?

Further, open justice is a fundamental aspect of the administration of justice in Australia.4 Australian courts must sit in public except in rare and exceptional cases. How might an Australian judge cooperate with a foreign judge without offending the principle of open justice?

Back in 2005, before the adoption of the Model Law in Australia, the eminent corporations jurist Justice Barrett, now of the New South Wales Court of Appeal, contemplated the idea of judicial cooperation. His Honour referred to protocols by which United States and Canadian courts had conducted joint hearings and said: The words of the Model Law here – “communicate directly with foreign courts or foreign representatives” – leave open the possibility of a judge in Sydney or Melbourne or

Brisbane phoning a judge of the US Bankruptcy Court for a chat about what order should be made in the case of X. Deeply rooted principle would, of course, be against this. Judges do nothing that might affect the position of X without giving X an opportunity to be heard. And judges do nothing in the absence of the public except in exceptional circumstances where the public interest in open justice is outweighed by some other public interest. The new concepts are going to have to accommodate the old ways in this area – and I do not think anyone should have in mind an image of cosy judicial fireside chats sorting out Enron or Parmalat or HIH. 5 Fast forward to 2016: insolvency judges from 10 jurisdictions around the world, including our own Federal Court of Australia (Justice Nye Perram)

and the Supreme Court of New South Wales (Justice Ashley Black), met to form the Judicial Insolvency Network (JIN), which produced the “Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters” (JIN Guidelines).6 The Guidelines were drafted by the judges themselves together over the course of a two day meeting.

The JIN Guidelines have now been adopted by 10 courts internationally including the NSW Supreme Court as well as Courts in the important cross-border insolvency jurisdictions of Bermuda, the British Virgin Islands, Delaware (USA), England and Wales, Singapore and the Southern District of New York (USA).

The Federal Court is seeking to adopt the JIN Guidelines and is awaiting their approval by the Council of Chief Justices of Australia and New Zealand.

The JIN Guidelines offer an example of judicial cooperation in the pursuit of judicial cooperation in cross-border insolvency proceedings. The Guidelines recognise that cooperative action need not offend either national sovereignty or the legitimate interests of parties to a proceeding that is related to a cross-border insolvency. Further, the Guidelines identify the aims that may be promoted by a cooperative approach between courts.

Today, I will look at both species of international judicial cooperation. First, I will consider judicial cooperation as provided for by the Model Law and the various sources available to guide judicial cooperation, including the JIN Guidelines.

Then, I will outline some of the broader cooperative activities of the judiciary, which are designed to promote the operation of the Model Law more generally.

Judicial cooperation under the Model Law The preamble to the Model Law refers to judicial cooperation at the outset, stating that the purpose of the law is to provide effective mechanisms for dealing with cases of cross-border insolvency so as to promote the objective of: (a) Cooperation between the courts and other competent authorities of this State and foreign States involved in cases of cross-border insolvency …

Chapter IV of the Model Law is entitled “Cooperation with foreign courts and foreign representatives”. Within that Chapter, Article 25 and Article 27 provide for cooperation between courts (and between courts and foreign representatives) in the cross-border

insolvency matters that are referred to in Article 1 of the Model Law. I am concerned here only with cooperation between courts.

As modified by s 11 of the Cross-Border Insolvency Act 2008 (Cth) (CBI Act), Article 25 provides: Cooperation and direct communication between a court of this State and foreign courts or foreign representatives 1. In matters referred to in article 1, the court shall cooperate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a registered liquidator (within the meaning of s 9 of the Corporations Act 2001 (Cth)).

2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives.

The Model Law does not specify any mode of communication. However, the UNCITRAL Guide to Enactment of the Model Law (UNCITRAL Guide to Enactment)7 notes that the ability of courts, with the appropriate involvement of the parties, to communicate “directly” and to request information and assistance “directly” from foreign courts is intended to avoid the use of timeconsuming procedures traditionally in use, such as letters rogatory.

According to the UNCITRAL Guide to Enactment, Article 25 is “designed to overcome the widespread problem of national laws lacking rules providing a legal basis for cooperation by local courts with foreign courts in dealing with cross-border insolvencies”.8 The Guide contemplates that “enactment of such a legal basis would be particularly helpful in legal systems in which the discretion given to judges to operate outside areas of express statutory authorization is limited.

However, even in jurisdictions in which there is a tradition of wider judicial latitude, enactment of a legislative framework for cooperation has proved to be useful”.9 Article 27 identifies relevant forms of cooperation. It provides relevantly: Forms of cooperation Cooperation referred to in articles 25 and 26 may be implemented by any appropriate means, including: (a) Appointment of a person or body to act at the direction of the court; (b) Communication of information

by any means considered appropriate by the court; (c) Coordination of the administration and supervision of the debtor’s assets and affairs; (d) Approval or implementation by courts of agreements concerning the coordination of proceedings; (e) Coordination of concurrent proceedings regarding the same debtor; (f) [The enacting State may wish to list additional forms or examples of cooperation].

Australia has not made any alteration to Article 27 as it is in force by the CBI Act. The UNCITRAL Guide to Enactment states that Article 27 was included in the Model Law in recognition that the idea of cooperation “might be unfamiliar to many judges and insolvency representatives”.10 The Guide states that the list is indicative “to avoid inadvertently precluding certain forms of appropriate cooperation and limiting the ability of courts to fashion remedies in keeping with specific circumstances”.11 Aims of mandating judicial cooperation under the Model Law According to the UNCITRAL Guide to Enactment, the objective of Chapter IV is “to enable courts and insolvency representatives from two or more countries to be efficient and achieve optimal results”.12 Cooperation may be “the only realistic way, for example, to prevent dissipation of assets, to maximize the value of assets (e.g. when items of production equipment located in two States are worth more if sold together than if sold separately) or to find the best solutions for the reorganization of the enterprise”; “[t]he ability of courts, with appropriate involvement of the parties, to communicate ‘directly’ and to request information and assistance ‘directly’ from foreign courts or foreign representatives is … critical when the courts consider that they should act with urgency”.13 The UNCITRAL Guide to Enactment notes that a “widespread limitation on cooperation and coordination between judges from different jurisdictions in cases of cross-border insolvency is derived from the lack of a legislative framework, or from uncertainty regarding the scope of the existing legislative authority, for pursuing cooperation with foreign courts”.14 The UNCITRAL Practice Guide provides the following 27

further explanation of impediments to judicial cooperation: In addition to the absence of specific authorization, there is very often hesitance or reluctance on the part of courts of different jurisdictions to communicate directly with each other. That hesitance or reluctance may be based upon ethical considerations, legal culture, language or lack of familiarity with foreign laws and their application. Some States take a relatively liberal approach to communication between judges, while in other States judges may not communicate directly with parties or insolvency representatives or, indeed, with other judges. In some States, ex parte communications with the judge are considered normal and necessary, while in other States such communications would not be acceptable. Within States, judges and lawyers may have quite different views about the propriety of contacts between judges without the knowledge or participation of the representative or counsel for the parties. Some judges, for example, accept that there is no difficulty with private contact among them, while some lawyers would strongly disagree with that practice. Courts typically focus on the matters before them and may be reluctant to provide assistance to related proceedings in other States, particularly when the proceedings for which they are responsible do not appear to involve an international element in the form of a foreign debtor, foreign creditors or the foreign operations of the debtor.

The UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation (2009) (UNCITRAL Practice Guide) states that “[j]udicial cooperation is increasingly viewed as essential to the efficient and effective conduct of crossborder insolvency cases, increasing the predictability of the process, because debtors and creditors do not have to anticipate judicial reactions to foreign proceedings, and enhancing the equitable treatment of all parties”.15 The Practice Guide identifies the following potential benefits of establishing communication in cross-border proceedings: 1. assisting parties in better understanding the implications or application of foreign law, particularly the differences or overlaps that may otherwise lead to litigation; 28 | BRIEF SEPTEMBER 2019

2. facilitating resolution of issues through a negotiated result acceptable to all; 3. eliciting more reliable responses from parties, avoiding inherent bias and adversarial distortion that may be apparent where parties represent their own particular concerns in their own jurisdictions; 4. serving international interests by facilitating better understanding that will assist in encouraging international business and preserving value that would otherwise be lost through fragmented judicial action; and 5. the possible revelation of some fact or procedure that will substantially inform the best resolution of the case and may, in the longer term, serve as an impetus to law reform.

The overarching aim of the JIN Guidelines is the preservation of enterprise value and the reduction of legal costs. The JIN Guidelines sets out the following six matters which the Guidelines aim to promote: the efficient and timely coordination and administration of parallel proceedings;16 1. the administration of parallel proceedings with a view to ensuring relevant stakeholders’ interests are respected; 2. the identification, preservation, and maximisation of the value of the debtor’s assets, including the debtor’s business; 3. the management of the debtor’s estate in ways that are proportionate to the amount of money involved, the nature of the case, the complexity of the issues, the number of creditors and the number of jurisdictions involved in parallel proceedings; 4. the sharing of information in order to reduce costs; and 5. the avoidance or minimisation of litigation, costs, and inconvenience to the parties in parallel proceedings.

Sources of guidance about judicial cooperation Court practice notes The Federal Court’s practice note GPN-XBDR “Cooperation with Foreign Courts or Foreign Representatives” is not prescriptive.17 It provides that: 1. The manner of cooperation appropriate to each particular case

will depend on the circumstances of that case. Clause 2.4 foreshadows that “[a]s experience and jurisprudence in this area develop, it may be possible for later versions of this practice note to lay down certain parameters or guidelines”.18 2. Cooperation between the Court and a foreign court or foreign representative under Article 25 will generally occur within a framework or protocol that has previously been approved by the Court, and is known to the parties, in the particular proceeding. Ordinarily it will be the parties who will draft the framework or protocol. In doing so, the parties should have regard to: (a) “Guidelines Applicable to Courtto-Court Communication in Cross-Border Cases” published by the American Law Institute (ALI) and the International Insolvency Institute (III) (ALI Guidelines);19 and (b) The UNCITRAL Practice Guide.

The references to prior court approval and the parties’ knowledge of an approved protocol emphasise that judicial cooperation may only occur in compliance with Australian laws of procedural fairness.

The ALI Guidelines are dated 16 May 2000. Although they are entitled “Principles of cooperation among the NAFTA Countries”,20 at the time of preparation only application between Canada and the United States was contemplated because of the very different rules governing communications with and among courts in Mexico.

There are 17 guidelines, with the stated intention of encouraging and facilitating cooperation in international cases. They are not intended to alter or change the domestic rules or procedures that are applicable in any country, nor to affect or curtail the substantive rights of any party in proceedings before the Courts.21 The UNCITRAL Practice Guide is a lengthy and useful document, which addresses two main subjects: 1. Possible forms of cooperation under Article 27 (Section II).

2. Cross-border insolvency agreements (Section III). These are the agreements contemplated by Article 27(d) of the Model Law. The Practice Guide includes “sample clauses”, which are based to varying degrees upon provisions found in actual insolvency agreements.22 The NSW Supreme Court’s Practice Note

SC EQ 6 is substantially similar to the Federal Court practice note, but with one important difference.23 That is, it refers to and annexes the JIN Guidelines.24 The JIN Guidelines add to the other sources of guidance about judicial cooperation by providing a framework for parties to cross-border insolvency proceedings to customise protocols that will facilitate courtto-court communication and cooperation in the relevant case. As with other guidelines that have been published on this subject, the JIN Guidelines emphasise their nonbinding nature, their aim of improving insolvency outcomes and that judicial cooperation may not occur in a manner which is inconsistent with the domestic laws of the relevant courts.

The Supreme Courts of the Northern Territory, Tasmania and Western Australia have each published a practice note that is substantially similar to the Federal Court practice note.

The Supreme Court of Victoria’s practice note SC CC6 refers to the UNCITRAL Practice Guide and the following three more recent publications of the ALI and III:25 1. The Global Principles for Cooperation in International Insolvency Cases (Global Principles);26 2. Global Guidelines for Court-to-Court Communications in International Insolvency Cases (Global Guidelines);27 and 3. Global Rules on Conflict-of-Laws Matters in International Insolvency Cases (Global Rules).28 I am not aware of any relevant publication by the Supreme Court of Queensland and South Australia.

Other sources of guidance about judicial cooperation The European Union has published the “EU Guidelines for Court-to-Court Communications in Cross-Border Insolvency Cases”, referred to as the “EU JudgeCo Guidelines”.29 These 18 Guidelines are very closely based upon Global Guidelines.

The Global Principles, Guidelines and Rules are the product of a report entitled “Transnational Insolvency: Global Principles for Cooperation in International Insolvency cases” (ALI-III Global Principles Report) presented to the ALI and III in 2012.30 Following the publication of the ALI-III report, the Council of Chief Justices asked the Australian Academy of Law to prepare a report about what further benefit, if any, might Australia

get from those documents. A report was subsequently prepared by Professor Rosalind Mason, Sheryl Jackson and Mark Wellard. That report reached the following conclusions about the ALI-III Global Principles Report: 1. it is a valuable reference point on cross-border insolvency; 2. it is a resource for policy makers considering domestic policy reform; 3. it provides Australian courts with a comprehensive approach to cross-border insolvency cases that addresses key issues and that has been reviewed by experts from a range of jurisdictions; 4. if the current Practice Notes or Directions are updated to refer to the Global Guidelines, this will reflect more extensive international support; and 5. for practitioners, particularly if directed to the full ALI-III Global Principles Report by the courts, it is a credible resource with which to approach the administration of insolvent global businesses and address parties’ competing interests that yet acknowledges the role of local insolvency and procedural laws.

UNCITRAL has also published a second explanatory text, entitled “UNCITRAL Model Law on Cross-Border Insolvency: The Judicial Perspective”, 2011 (Judicial Perspective). This document contains a chapter entitled “Cooperation and Coordination”.31

communications.

4. Copies of any recording of the communications, of any transcript of the communications prepared pursuant to any direction of any court involved in the communications, and of any official transcript prepared from a recording may be filed as part of the record in the proceedings and made available to the parties and subject to such directions as to confidentiality as any court may consider appropriate.

5. The time and place for communications between the courts shall be as directed by the courts. Personnel other than judges in each court may communicate with each other to establish appropriate arrangements for the communications without the presence of the parties.

The JIN Guidelines acknowledge that “direct” communication is explicitly contemplated by Article 25. Guideline 7 proposes methods of direct written communication as well as two-way communications with the other court, by telephone or video conference call or other electronic means. However, the guideline notes that in relation to this form of communication, Guideline 8 should be considered.

The Commentary to the EU JudgeCo Guidelines includes the following “safeguards” for direct “judge-tojudge” cross-border communication in international insolvency cases:

Communication with other courts

1. direct “judge-to-judge” cross-border communication should occur only where such communication is necessary;

The JIN Guidelines establish communication in open court on notice to affected parties as the default position. Thus, Guideline 8 specifies that:

2. direct “judge-to-judge” cross-border communication should relate to matters which do not concern the substantive merits of the case; and

1. In the normal case, parties may be present.

3. direct judicial cross-border communication can only take place where there are sufficient procedural safeguards in place to ensure that parties have an opportunity to be heard on the application to communicate and (if appropriate) to attend (or be represented at) the occasion on which the communication takes place.

Forms of cooperation

2. If the parties are entitled to be present, advance notice of the communications shall be given to all parties in accordance with the rules of procedure applicable in each of the courts to be involved in the communications.

3. The communications between the courts shall be recorded and may be transcribed. A written transcript may be prepared from a recording of the communications that, with the approval of each court involved in the communications, may be treated as the official transcript of the

Joint hearings The JIN Guidelines include the following principles for application in connection with a joint hearing of courts in different jurisdictions, noting that by the implementation of the principles, “neither a court nor any party shall be deemed 29

to have approved or engaged in any infringement on the sovereignty of the other jurisdiction�: 1. Each court shall have sole and exclusive jurisdiction and power over the conduct of its own proceedings and the hearing and determination of matters arising in its proceedings.

2. Each court should be able simultaneously to hear the proceedings in the other court.

Consideration should be given as to how to provide the best audio-visual access possible.

3. Consideration should be given to coordination of the process and format for submissions and evidence filed or to be filed in each court.

4. A court may make an order permitting foreign counsel or any party in another jurisdiction to appear and be heard by it. If such an order is made, consideration needs to be given as to whether foreign counsel or any party would be submitting to the jurisdiction of the relevant court and/or its professional regulations.

5. A court should be entitled to communicate with the other court in advance of a joint hearing, with or without counsel being present, to establish the procedures for the orderly making of submissions and rendering of decisions by the courts, and to coordinate and resolve any procedural, administrative or preliminary matters relating to the joint hearing.

6. A court, subsequent to the joint hearing, should be entitled to communicate with the other court, with or without counsel present, for the purpose of determining outstanding issues. Consideration should be given as to whether the issues include procedural and/or substantive matters. Consideration should also be given as to whether some or all of such communications should be recorded and preserved.

The EU JudgeCo Guidelines commentary notes that a joint hearing requires that either court can also question a person who has appeared before the other court or allow one or more persons to speak.

Authentication of laws and orders The JIN Guidelines 12 and 13 facilitate the speedy recognition and acceptance of laws and orders made in other proceedings “except on proper objection on valid grounds and then only to the extent of such objection�, providing that 30 | BRIEF SEPTEMBER 2019

a court shall: 1. recognise and accept as authentic the provisions of statutes, statutory or administrative regulations, and rules of court of general application applicable to the proceedings in other jurisdictions without further proof (for the avoidance of doubt, such recognition and acceptance does not constitute recognition or acceptance of their legal effect or implications); and 2. accept that orders made in the proceedings in other jurisdictions were duly and properly made or entered on their respective dates and accept that such orders require no further proof for purposes of the proceedings before it, subject to its law and all such proper reservations as in the opinion of the court are appropriate regarding proceedings by way of appeal or review that are actually pending in respect of any such orders.

JIN Guidelines 12 and 13 are consistent with EU JudgeCo Guidelines 11 and 12.

Particular cases In 2010, Scott Atkins delivered a very comprehensive paper which contains, among other things, consideration of particular cross-border protocols including a study of the protocol in the liquidation of Lehman Brothers.32 That liquidation gave rise to the sole judgment of an Australian court concerning judicial cooperation: Parbery; in the matter of Lehman Brothers Australia Limited (in liq) [2011] FCA 1449.

Judicial cooperation more generally Cross-border insolvency is one of several areas in which Australian judges have recognised the importance of collaboration with their foreign counterparts. By developing relationships with insolvency judges in other jurisdictions, we learn from overseas experience and also develop an appreciation of courts with which an Australian court may, in due course, be required to cooperate under Article 25.

Judicial Insolvency Network33 The JIN serves as a platform for sustained and continuous engagement, for the furtherance of the following three objectives: 1. judicial thought leadership in crossborder insolvency and restructuring; 2. to develop best practices in crossborder insolvency and restructuring;

and 3. to facilitate communication and cooperation amongst national courts in cross-border insolvency and restructuring matters.

The current chairperson is Judge Robert Drain of the US Bankruptcy Court, Southern District of New York.

Following the inaugural meeting and the publication of the JIN Guidelines, in September 2018, the second JIN conference was held in New York and attended by 18 judges from around the world including Chief Justice Allsop of the Federal Court and Justice Fabian Gleeson of the NSW Court of Appeal.

The conference concluded with the establishment of projects on the following four topics: 1. core principles on recognition of foreign insolvency proceedings; 2. modalities for court-to-court communication: to devise a set of modalities to guide international stakeholders on how courts from diverse backgrounds can communicate effectively; 3. interaction between insolvency law and admiralty law: to draft a set of guidelines to assist in insolvency matters with admiralty law elements, especially in relation to the arrest of ships and Articles 19, 20 and 21 of the Model Law; and 4. alternative dispute resolution for insolvency disputes.

JIN meeting, Singapore, April 2019 Last month, there was a meeting of the JIN in Singapore, coinciding with the INSOL Annual Regional Conference.

Most attention was directed to a draft set of guidelines for modalities for court to court communications. At this stage, the draft is confidential.

The third JIN conference will be held in 2020.

INSOL International/UNCITRAL/World Bank Judicial colloquia on Insolvency In April 2019, INSOL International,34 UNCITRAL and the World Bank held the thirteenth multinational judicial colloquium on Insolvency in Singapore.

The judicial colloquium is a biennial two day event. The twelfth judicial colloquium was held in Sydney in March 2017 and was attended by nine judges of the Federal Court and the NSW Supreme Court, including the Chief Justices of each of those courts.

The judicial colloquium is held in

conjunction with the INSOL Annual Regional Conference. This year, the colloquium enjoyed a record attendance of just over 100 judges from across the world.

The colloquium is attended by judges from countries who have adopted the Model Law, as well as judges from countries that are considering adopting the Model Law or are interested in understanding the Model Law. Judges from the European Union, which has its own cross-border insolvency regime, also participate.

Both the Federal Court and the NSW Supreme Court typically send a representative to the judicial colloquium.

This year, it was attended by Justice Brigitte Markovic of the Federal Court and Justice Ashley Black of the Supreme Court.

The agenda of the colloquium has developed to cover broadly similar topics on each occasion, which provide an educative function for judges with no previous experience in cross-border insolvency, as well as presentations and group discussions based on recent developments. Judges with greater expertise share their wisdom and enthusiasm with others.

Topics addressed in Singapore included the bases of cross-border co-operation and the resources available to judges; judicial aspects of cross-border insolvency; and the new UNCITRAL model laws on enterprise group insolvency and recognition and enforcement of insolvency-related judgments.

Justice Markovic participated in a panel discussion about the theory and practice of restructuring enterprise groups. There was also a session in which the judges broke into groups to discuss the model law developments and their potential usefulness for their various jurisdictions.

On the second day of the colloquium, there was discussion of court-to-court communication guidelines; reciprocity requirements in legislation or arising out of public policy considerations; the work of the judicial training college conducted

by INSOL and the World Bank Group; alternative dispute resolution in insolvency cases; and finally, recent developments, especially in the area of maritime related cross-border insolvency.

In my case, the judicial colloquiums have provided extremely helpful preparation for dealing with applications under the CBI Act. While such applications will not always be commercially urgent, it is quite conceivable that they will require urgent attention to protect assets. Thus, article 17(3) of the Model Law provides that an application for recognition of a foreign proceeding shall be decided upon at the earliest possible time. On the other hand, recognition applications are relatively infrequent. The judicial colloquiums that I have attended enabled me to benefit from the experience of my overseas counterparts and to share my own experiences. I found it particularly interesting to hear from judges who specialise in corporations and insolvency law from the US Bankruptcy Courts, the

Supreme Court of Bermuda, the Cayman Islands Grand Court and the United Kingdom.

UNCITRAL documents reveal that the judicial colloquiums have been significant in developing guidance about judicial cooperation. For example, the UNCITRAL Guide to Enactment (para 217) reports that the second judicial colloquium, held in 1997, heard reports of a number of cases in which judicial cooperation in fact occurred from the judges involved in the cases. From those reports, points emerged which are recorded in the Guide and in the Judicial Perspective. One of those points was that communication should be done openly, in the presence of the parties involved (except in extreme circumstances), who should be given advance notice.

The Judicial Perspective was prepared following a request from judges attending the eighth colloquium in 2009. The first draft was prepared by Justice Paul Heath of the High Court of New Zealand and was developed through consultations with judges.

INSOL Annual Regional Conference The regional conference attracts around 1,000 delegates each year. The conference focusses on emerging issues in practice, and its audience includes lawyers, policy makers and insolvency practitioners. As the judicial colloquium is held immediately prior to the conference, Australian judges will generally attend both events: a four day cross-border insolvency immersion experience!

31

This year, there were sessions which focussed attention on offshore, “midshore” and on-shore investment structures in South-East Asia and China. From a judicial perspective, the conference offers an opportunity to learn about the context in which particular cross-border legal problems may arise.

At the same time as the judicial colloquium, INSOL also holds an academics’ colloquium.

In 2008, Chief Justice Brenner of the British Columbia Supreme Court delivered a speech to the INSOL Annual Regional Conference held in Shanghai, published in the Australian Law Journal.35 The topic was “Cross border court communications”. Of particular interest, Chief Justice Brenner reported on his personal experience of the operation of two cross-border protocols in proceedings in the United States and British Columbia.

Asian Business Law Institute The ABLI was launched in January 2016 in Singapore, in conjunction with the International conference on “Doing Business Across Asia – Legal Convergence in an Asian Century”.

Its Board of Governors is chaired by Chief Justice Sundaresh Menon of the Supreme Court of Singapore. The Board includes the Honourable Robert French AC, former Chief Justice of the High Court of Australia, and the Honourable Kevin Lindgren AM QC FAAL, former Judge of the Federal Court.

ABLI’s inaugural Advisory Board includes the following Australian members, nominated by the Board of Governors: •

Professor Richard Garnett, Professor of Law, University of Melbourne.

•

Professor Rosalind Mason, Professor of Insolvency & Restructuring Law, Faculty of Law, Law School, Queensland University of Technology.

•

Mr Donald Robertson, Partner, Herbert Smith Freehills.

ABLI’s current projects are entitled: 1. Asian Principles of Business Restructuring. This project, jointly undertaken with the International Insolvency Institute, is working towards the convergence of procedures and practices for business reorganisation regimes in Asia. Chief Justice Allsop and Justice Markovic are members of the Advisory Committee for this project.

2. Convergence of the rules and standards for cross-border data 32 | BRIEF SEPTEMBER 2019

transfers in Asia. This project is working towards the convergence of rules and standards for cross-border transfers in Asia.

3. Asian Principles for the Recognition and Enforcement of Foreign Judgments. This project is working towards the convergence of the substantive laws of Asia on the recognition and enforcement of foreign judgments.

LAWASIA Judges also participate in the annual conference of LawAsia, the Law Association for Asia and the Pacific, with whom UNCCA has an association. Last year, Justice Robert McDougall of the NSW Supreme Court delivered a paper to an insolvency session at the conference held in Siem Reap, Cambodia. The paper was entitled “Recognition of Foreign Insolvency Proceedings – An Australian Perspective”.36 This year, the conference will be held in Hong Kong in November 2019. The conference will include an insolvency session entitled “Reorganisation Alternatives for Cross-Border Insolvency in Asia”. The programmes states that it is hoped to draw upon judicial speakers for the session.

Conclusion In summary, judicial cooperation on the subject of cross-border insolvency continues to flourish. Recent initiatives such as the JIN Guidelines reflect courts’ recognition of the imperatives for judicial cooperation and a preparedness to engage among foreign courts in a manner that is appropriate and effective, in accordance with the requirements of the Model Law. Endnotes 1

2 3

4

5

6

7

The scope of application of the Model Law is set out in Article 1 of the Model Law, as affected by s 9 of the Cross-Border Insolvency Act 2008 (Cth) and the Cross-Border Insolvency Regulations 2008 (Cth). The Regulations exclude ADIs, general insurers and life companies from the operation of the Model Law. John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477 (McHugh JA).

Raymond Finkelstein, ‘The Role of the Judge: – Judicial Activism and the Rule of Law, October 2005’ (2006) 9(1) The Flinders Journal of Law Reform 17.

See, for example, s 17 of Federal Court of Australia Act (1976); John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors [2004] NSWCA 324; (2004) 61 NSWLR 344 at [17]-[21]; Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5 at [64] and [88] (Besanko and Robertson JJ); [113]-[115] (Flick J).

Reginald Ian Barrett, ‘Cross-Border Insolvency – Aspects Of The Uncitral Model Law’ (Paper presented at 22nd Annual Banking and Financial Services Law Association Annual Conference, Cairns, 6-7 August 2005) 2.

The Guidelines can be found at http://www.jin-global. org. They are also annexed to the NSW Supreme Court’s Practice Note No. SC EQ 6.

UNCITRAL ‘Model Law on Cross Border Insolvency with Guide to Enactment’ http://www.uncitral.org/

8 9 10 11 12 13 14 15

16

17

18 19

20 21 22

23

24

25

26

27 28 29

30 31

32

33

34

35 36

uncitral/en/uncitral_texts/insolvency/1997Model.html, [218].

UNCITRAL Guide to Enactment, [213].

Ibid.

Ibid, [41].

Ibid, [220].

Ibid, [211].

Ibid, [218].

Ibid, [209].

UNCITRAL Practice Guide, [56] <http://www.uncitral. org/pdf/english/texts/insolven/Practice_Guide_english. pdf>.

“Parallel Proceedings” is defined in the JIN Guidelines to mean: “cross-border proceedings relating to insolvency or adjustment of debt opened in more than one jurisdiction”.

Cross-Border Insolvency Practice Note: Cooperation with Foreign Courts or Foreign Representatives (GPNXBDR) (25 October 2016) Federal Court of Australia <http://www.fedcourt.gov.au/law-and-practice/ practice-documents/practice-notes/gpn-xbdr>.

Ibid, cl 2.4.

The American Law Institute, Principles of Cooperation Among the NAFTA Countries (16 May 2000) International Law Institute <https://www.iiiglobal.org/ node/939>.

NAFTA has three member States: Canada, Mexico and United States.

UNCITRAL Practice Guide, [20].

Annex 1 to the UNCITRAL Practice Guide includes summaries of the cases in which the cross-border insolvency agreements that form the basis of the Practice Guide were concluded.

Practice Note SC EQ 6 – Cross-Border Insolvency: Cooperation with Foreign Courts or Foreign Representatives (15 September 2017) Supreme Court of New South Wales <http://www.practicenotes. justice.nsw.gov.au/practice_notes/nswsc_pc.nsf/ a15f50afb1aa22a9c%20a2570ed000a2b08/4f96eb110 6eb1b61ca25819f0002a5dc?OpenDocument>.

Ibid; the Supreme Court practice notes that the Court “adopts the JIN Guidelines … and (subject to applicable rules of substantive and procedural law and to hearing any interested party in a particular case) will be guided by them in cases involving cross-border insolvency or restructuring of one or more companies situated in different jurisdictions. This position is adopted on an interim basis and pending consideration by the Council of Chief Justices of any further amendments to the uniform Corporations Rules and this Practice Note in respect of the JIN Guidelines.”

Practice Note SC CC 6 – Cross-Border Insolvency Cooperation with Foreign Courts or Representatives and Coordination Agreements (30 January 2017) Supreme Court of Victoria <https://www.supremecourt. vic.gov.au/law-and-practice/practice-notes/sc-cc-6cross-border-insolvency-0>.

American Law Institute, ‘Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases’ [30 March 2012] American Law Institute <http://iiiglobal.org/sites/default/files/ alireportmarch_0.pdf>.

Ibid.

Ibid.

EU JudgeCo Guidelines, Leiden University <https:// www.universiteitleiden.nl/binaries/content/assets/ rechtsgeleerdheid/fiscaal-en-economische-vakken/ guidelines.pdf.>.

American Law Institute, above n 26.

‘UNCITRAL Model Law on Cross-Border Insolvency: The Judicial Perspective’ (2012) United Nations Commission on International Trade Law <https://www. uncitral.org/pdf/english/texts/insolven/V1188129Judicial_Perspective_ebook-E.pdf>.

Scott Atkins, ‘International Cooperation and Coordination in Cross-Border Insolvency’ in Kevin Edmund Lindgren International Commercial Litigation and Dispute Resolution (Ross Parsons Centre for Commercial, Corporate and Taxation Law, 1st ed, 2010).

The website, http://www.jin-global.org, is a location where interested parties can find out more about the JIN and its projects.

INSOL International is a world-wide federation of national associations of accountants and lawyers who specialise in turnaround and insolvency. There are currently over 44 Member Associations with over 10,500 professionals participating as members of INSOL International. Individuals who are not members of a member association join as individual members.

Donald Brenner, ‘Cross Border Court Communications’ (2009) 83 Australian Law Journal 90.

Robert McDougall, ‘Recognition of Foreign Insolvency Proceedings – An Australian Perspective’ (Paper presented at the 31st LAWASIA Conference, Siem Reap, Cambodia, 3 November 2018).

Law Council Update

providers requiring them to provide information that would otherwise require a warrant, and the absence of judicial oversight for such notices to be issued;

Law Council welcomes INSLM review, public consultation into encryption legislation The Law Council of Australia has welcomed public consultations into encryption legislation that will form part of a review by the Independent National Security Legislation Monitor (INSLM).

The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth), which has attracted significant public attention, was referred to the INSLM for review by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

Law Council President, Arthur Moses SC, said he welcomed the INSLM’s recognition that transparency of national security laws was a prerequisite to obtaining public confidence in these laws.

“The consultation for this review will play a very important role in ensuring public trust in this legislation,” Mr Moses SC said.

He said serious concerns remained in relation to the encryption legislation, which were rushed through the last parliament.

“The Law Council supports aspects of this Act that give agencies additional powers to help keep us safe,” Mr Moses SC said.

“However, we continue to hold serious concerns about how encryption legislation could impact on the privacy and rights of law-abiding Australian citizens, the media and corporate sector.

“The Law Council looks forward to making a submission to the review to assist the INSLM’s consideration of this important matter.”

The Law Council’s concerns with the Act include: •

The potential for notices to be issued to telecommunications

•

Allowing law enforcement or ASIO to effectively detain individuals to provide ‘compulsory assistance’ without the necessary safeguards for detention, including being allowed to contact a lawyer;

•

Failing to make clear that legal professional privilege is protected in all circumstances; and

•

Allowing senior bureaucrats at ASIO to confer civil immunity, instead of the Attorney-General.

Proposed Don Dale site ‘flouts’ Royal Commission recommendations, affront to process The Northern Territory Government’s decision to build the new Don Dale detention centre next to an adult prison sends the message it is a “rite of passage” for young inmates, lawyers say.

Both the Law Society Northern Territory and Law Council of Australia have slammed the announcement, which contradicts a key recommendation of the Royal Commission into the Detention and Protection of Children in the Northern Territory.

Law Society President, Maria Savvas, said she was frustrated and disappointed at the decision, which again illustrated the Territory government’s disregard for the Royal Commission findings.

“The final report clearly states ‘the new facilities should not be located on, or in close proximity to, adult prison precincts’, yet here we are,” Ms Savvas said.

“This sends the wrong message to young people and the community.

It says to young people in detention

‘this is your stepping-stone to the big house’.

“The community is not properly informed of the reality – that only a very small number of young people are in detention. Often, they come from complex backgrounds, ingrained disadvantage and trauma, and have underlying health problems.

“It’s obvious current strategies aren’t working. Investing in rehabilitation that empowers and educates – not institutionalisation that criminalises and marginalises – must be the way forward.”

Speaking at the National Indigenous Legal Conference (NILC) in Darwin, Law Council President, Mr Moses SC, said he was “dismayed” at the decision, which “flouts the recommendation of the Royal Commission”.

“This decision is a travesty for our children in the Northern Territory,” Mr Moses SC said.

“It will send the message to our children who are the subject of detention, that the adult prison is your rite of passage in this life.

“Those involved or entrusted with law reform, policy and decision making in relation to youth justice should not be repeating the mistakes of the past.

“The consistent failure of the NT government to implement the Royal Commission’s recommendations, despite promising to adopt them all, is an affront to the entire process and an insult to those involved.”

Indigenous barrister and chair of the Law Council’s Indigenous Legal Issues Committee, Tony McAvoy SC, spoke in favour of a resolution, which received the unanimous support of more than 330 delegates at the NILC condemning the Territory government’s decision.

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HIGH COURT JUDGMENTS Andrew Yuile Owen Dixon Chambers West, Melbourne

Administrative law Migration – detention pending removal – special case – drawing of inferences Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 (orders 13 February 2019; reasons 12 June 2019) concerned whether ss189 and 196 of the Migration Act 1958 (Cth) gave authority to the Commonwealth to detain the plaintiff for what he alleged would be an indefinite period. Section 189 of the Act requires an officer who knows or suspects a person to be an unlawful noncitizen to detain that person. Section 196 of the Act requires unlawful non-citizens to be detained under s189 until they are removed or deported from Australia.

Section 198 requires that unlawful non-citizens be removed “as soon as reasonably practicable” if the noncitizen is a detainee and an application for a visa has been refused and finally determined. The plaintiff was an unlawful non-citizen who had been in detention since 2010. He had used several names with overseas officials and had also made visa applications in Australia using different names, nationalities and other personal details. His accounts of his background were inconsistent.

He admitted that some applications contained false details. He also did not cooperate with Australian officials who were trying to establish his identity and nationality. The plaintiff, who argued that he was stateless, commenced proceedings in the High Court arguing that his detention was unlawful because the mandate to detain in ss189 and 196 is suspended where removal from Australia is not practicable at all or in the foreseeable future. In the alternative, the plaintiff claimed that the provisions exceeded the legislative power of the Commonwealth. The parties did not agree, for the Special Case, that there was no real prospect of deporting the plaintiff from Australia in the foreseeable future. The plaintiff submitted, however, that inferences to that effect could be drawn. The plaintiff agreed that if none of the inferences he argued for could be drawn, the questions in the Special Case did not arise. The Court unanimously held that the necessary inferences could not be drawn, because it could 34 | BRIEF SEPTEMBER 2019

not be assumed that it was beyond the plaintiff’s power to provide further information concerning his identity, and that might alter his prospects of removal. It followed that there was no factual basis to question the lawfulness of the plaintiff’s detention. Kiefel CJ, Keane, Nettle and Edelman JJ jointly; Bell, Gageler and Gordon JJ jointly concurring. Answers to questions stated in the Special Case given.

Trade practices law Consumer protection – unconscionable conduct Australian Securities and Investments Commission v Kobelt [2019] HCA 18 (12 June 2019) concerned the meaning of “unconscionability” in s12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth). That section provides that a person must not, in trade or commerce and in connection with the supply of financial services, engage in unconscionable conduct. The respondent operated a general store in Mintabie, South Australia, selling goods including food, fuel and secondhand cars. Almost all of his customers were resident in two remote Aboriginal communities. The respondent provided credit through a system known as “book-up”, where customers provided the respondent with a debit card linked to a bank account into which wages or Centrelink benefits were paid (with their PIN). The respondent provided goods and was authorised to withdraw funds as they arrived from customers’ accounts to reduce customers’ debt. 50% was applied to debt and 50% was made available for customer use. Customers had little practical opportunity to access the funds themselves. The respondent also exercised a degree of discretion over what was bought from the store, especially when customer funds were low, and enabled purchases through other stores nearby. The only issue was whether the respondents’ actions under this system were unconscionable. The primary judge found that they were, because the respondent “had chosen to maintain a system which, while it provided some benefits to his Anangu customers, took advantage of their

poverty and lack of financial literacy to tie them to dependence on his store”.

The Full Court allowed an appeal. The Full Court held that the customers were vulnerable under the system, but the respondent’s actions were not unconscionable given customers’ understanding of the system, their voluntary entering into the contracts, actions that customers could take, and that the respondent had not acted dishonestly or had exerted undue influence on his customers. There was also anthropological evidence suggesting some benefits to customers culturally under the book-up system. A majority of the High Court dismissed an appeal.

Although customers under the book-up system were more vulnerable, no feature of the respondent’s conduct exploited or otherwise took advantage of their vulnerability. The basic elements of the system were understood and accepted.

The acceptance of the system reflected cultural matters, not lack of financial literacy. Kiefel CJ, Bell J jointly; Gageler J and Keane J each separately concurring; Nettle and Gordon JJ jointly dissenting; Edelman J separately dissenting. Appeal from the Full Federal Court dismissed.

Trusts and corporate law External administrators – receivers – trustee company – rights of indemnity – trust assets In Carter Holt Harvey Woodproducts Pty Ltd v Commonwealth [2019] HCA 20 (19 June 2019), the High Court considered whether property held on trust by a corporate trustee operating a trading trust was property of the company when insolvent, and the creditor priorities in respect of that property. Amerind Pty Ltd carried on a business solely in its capacity as trustee of a trust. After being unable to settle demands for payment from a bank, receivers were appointed and the company was wound up. The trust assets were realised and the bank’s demands satisfied. At issue in this case were the priorities applicable to realised surplus funds. The respondent claimed it was entitled to payment for benefits of Amerind’s employees in priority to other creditors, under ss433, 555 and 556(1)(e) of the Corporations Act 2001

(Cth). Those provisions allow, amongst other things, for payment of certain employee benefits to be paid in priority out of property of the company coming into the receiver’s hands, or property comprised in or subject to a circulating security interest. As a trustee, Amerind did not itself own the assets of the trust, but did have a right to be indemnified out of the trust assets. Questions arose as to whether the right of indemnity could be assets of the trust, and whether the property held on trust by Amerind could itself be property of the company for the purposes of s433(3). The trial judge said that the assets held on trust were not part of the assets of the company, meaning that the employees would not get priority. The Court of Appeal reversed that decision, finding that the right to be indemnified out of the trust assets was property of the company.

It also found that the trust assets were themselves assets of the company. The High Court held that, “the ‘property of the company’ that is available for the payment of creditors includes so much of the trust assets as the company is entitled, in exercise of the company’s right of indemnity as trustee, to apply in satisfaction of the claims of trust creditors.” But proceeds from an exercise of the right of exoneration may be applied only in satisfaction of trust liabilities to which the right relates. Kiefel CJ, Keane and Edelman JJ jointly; Bell, Gageler and Nettle JJ jointly concurring; Gordon J separately concurring. Appeal from the Court of Appeal (Vic) dismissed.

Constitutional law Federal jurisdiction – s 79 Judiciary Act – meaning of parent In Masson v Parsons [2019] HCA 21 (19

June 2019), the High Court considered the operation of s79(1) of the Judiciary Act 1903 (Cth) and whether it operated to pick up provisions of the Status of Children Act 1996 (NSW) concerning parentage. The appellant provided semen to the first respondent for the purposes of artificial insemination. The first respondent conceived as a result.

The appellant believed himself to be fathering the child and would support and care for the child. His name was entered on the child’s birth certificate as the father. The child lived with the first respondent and her partner, but the appellant had a continuing role in the child’s financial support, health, education and welfare. The first respondent and her partner decided to move to New Zealand with the child.

The appellant instituted proceedings in the Family Court seeking orders, amongst other things, sharing parental responsibility and restraining the relocation of the child. The issue at first instance was whether the appellant was a legal parent of the child. Section 60H of the Family Law Act 1975 (Cth) deals with children born as the result of artificial conception. The judge at first instance held that the appellant did not come within that section so as to qualify as a legal parent, but s60H was not exhaustive of establishing parentage and he qualified as a parent “within the ordinary meaning of the word”. On appeal, the Full Court held that s79 of the Judiciary Act picked up and applied, in federal jurisdiction, s14 of the Status of Children Act. That section provides a series of presumptions about legal parentage. The appellant had not rebutted the presumptions and as a result was not a legal parent. The High Court noted that the purposes of s79 of the Judiciary Act is to “fill a

gap in the laws which regulate matters coming before courts exercising federal jurisdiction … by picking up the texts of State laws governing the manner of exercise of State jurisdiction and applying them as Commonwealth laws”. Section 79 does not pick up and apply State laws determinative of an individual’s rights and duties, as opposed to a law directed to the manner of exercise of jurisdiction. In this case, s14 of the Status of Children Act operated as an irrebuttable presumption of law. It was determinative of rights.

It was not a law relating to evidence or regulating the exercise of jurisdiction.

As such, s14 was not a law to which s79 of the Judiciary Act was capable of applying. The High Court also held that s79 could not apply in this case because the Family Law Act had “otherwise provided”. Finally, the respondents argued that, if not picked up by s79, s14 of the Status of Children Act was a valid law of NSW applying of its own force in federal jurisdiction. The Court accepted that s14 could generally apply of its own force, but held that s14 was inconsistent with the Family Law Act pursuant to s109 of the Constitution, meaning that s14 could not apply in this case. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly; Edelman J separately concurring. Appeal from the Full Family Court allowed.

Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email ayuile@vicbar.com. au. The full version of these judgments can be found at www.austlii.edu.au.

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

Class actions

Contracts

Industrial law

Dispensation from giving notice to group members of the commencement of the proceedings, of their right to opt out of the proceedings and of the application for approval of the settlement

Specific performance – “fourth category” of Masters v Cameron

Breach of right of entry laws by union and union officials – personal payment orders

In Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia [2019] FCA 859 (30 May 2019), the Court made orders: 1. pursuant to s33X(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), for the applicant to be relieved from the requirement to give notice to group members of the commencement of the proceeding and of their right to opt out of the proceeding; and 2. pursuant to s33X(4) of the FCA Act, for the applicant is relieved from the requirement to give notice to group members of the application for approval of the settlement.

The proceeding is a class action under Part IVA of the FCA Act seeking declarations and injunctions for alleged breaches by the Northern Territory and/or those in charge of the certain detention centres of duties owed by them under the Youth Justice Act 2005 (NT), the Youth Justice Regulations 2005 (NT), Policy Determinations made under the regulations and, in addition, for alleged breaches of the Racial Discrimination Act 1975 (Cth). Group members comprise children detained in Alice Springs Youth Detention Centre and the Don Dale Youth Detention Centre. No damages are sought by the proceeding.

The parties negotiated a settlement of the proceeding, approval of which has not yet been heard or determined by the Court. Justice White exercised discretions under s33X(2) and (4) to relieve the applicant from having to give notice to group members of the commencement of the proceedings, of their right to opt out of the proceedings and the application for approval of the settlement.

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In Lucas v Zomay Holdings Pty Ltd [2019] FCA 830 (4 June 2019), the Court determined a dispute about the sale of a pharmacy business in the Eastlands Shopping Centre at Rosny Park, in Tasmania. The applicant contended that he entered into a legally binding contract for the purchase of the Priceline Pharmacy Eastlands business and he sought specific performance of it. The respondent contended that the offer to purchase was not binding.

The Court considered the category of contract dubbed the “fourth” category of agreements to contract described in Masters v Cameron (1954) 91 CLR 353 at 360-361: at [60]-[63]. O’Callaghan J stated at [70]: “In my view, the Offer to Purchase is clearly an agreement that falls within the so-called fourth category of Masters v Cameron. That is to say, the parties intended to be bound immediately, notwithstanding that they contemplated the need for further documentation.”

The Court would have granted declaratory relief and made an order for specific performance: at [89]. However after the hearing, but before judgment, an administrator was appointed to the respondent so the Court did not do so yet having regard to the operation of s440D of the Corporations Act 2001 (Cth).

Practice and procedure Application for extrension of time – apprehended bias In Gambaro v Mobycom Mobile Pty Ltd [2019] FCA 910 (14 June 2019), the Court granted an application for an extension of time for leave to appeal from interlocutory orders of Federal Circuit Court of Australia. Rangiah J held that the applicant’s proposed appeal had sufficient prospects of success for apprehended bias and unfair conduct by the primary judge: at [23]-[24] and [29].

The appeal is to be heard by a Full Court.

In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises case) (No 2) [2019] FCA 973 (21 June 2019), the Court imposed pecuniary penalties in total of $100,000 on the union, $7,800 on one union official and $11,500 on another union official.

The penalties were for a number of contraventions of s500 of the Fair Work Act 2009 (Cth) (FW Act) and also for a contravention of s340(1) of the FW Act: at [108].

Bromberg J made personal payment orders against the union officials so as to require the individuals to pay the penalty imposed and not to seek or encourage the union to pay to him any money or provide any financial benefit referable to the payment of the penalty, and additionally, not accept or receive from the union any money or financial benefit referable to that payment: at [86]-[94].

Bromberg J explained at [93]: “The systemic willingness of the CFMMEU, through the Divisional Branch, to support the unlawful conduct of the officials of the Divisional Branch by paying the pecuniary penalties imposed upon them demonstrates that it is likely that officials of the Divisional Branch will not personally pay for penalties imposed for their contraventions. But that is not all.

It also demonstrates that there will be no condemnation or other detrimental consequence inflicted upon those officials by the Divisional Branch.”

Furthermore, at [94]: “The unique circumstances demonstrate that it is likely that, in the absence of a personal payment order, MacDonald and Long will not feel the sting or experience the burden of any pecuniary penalty imposed upon them.”

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 973

Insurance Interpretation of professional indemnity insurance policy – insolvency exclusion In AIG Australia Limited v Kaboko Mining Limited [2019] FCAFC 96 (14 June 2019) the Full Court considered the meaning of an insolvency exclusion endorses on an insurance policy covering directors and officers liability. The primary judge found that the insolvency exclusion did not preclude cover under the insurance policy for the claims made by the respondent (Kaboko). The applicant’s appeal was dismissed.

The insolvency exclusion endorsed on the policy was expressed as follows: The Insurer shall not be liable under any Cover or Extension for any Loss in connection with any Claim arising out of, based upon or attributable to the actual or alleged insolvency of the Company or any actual or alleged liability of the Company to pay any or all of its debts as and when they fall due.

The key question was whether it is the subject matter of the Claim that must have the specified insolvency link or

whether the link is also established where, by reason of the circumstances that have led to the bringing of the claim, it can be said that the Claim arises out of, is based upon or is attributable to the actual or alleged insolvency of Kaboko or its inability to pay its debts when due.

Allsop CJ, Derrington and Colvin JJ held at [50]: “...for the purposes of the insolvency exclusion, a Claim does not arise out of, is not based upon and is not attributable to the insolvency of Kaboko or its inability to pay its debts unless the subject matter of the Claim has that character (being a character derived in the case of civil proceedings from the acts, errors or omissions that are the subject of the proceedings and the associated loss that may become the Loss if the proceedings are successful).

The exclusion is not to be read as applying where the insolvency of Kaboko or its inability to pay its debts might be said to have motivated or led to the Claim being brought (for reasons other than providing a material part of the basis of the Claim).”

Administrative law and contempt of court

Findings of contempt set aside – primary judge denied procedural fairness to convicted Jorgensen v Fair Work Ombudsman [2019] FCAFC 113 (8 July 2019) was an appeal from orders made in the Federal Circuit Court of Australia (FCCA) which had the effect of convicting the appellant (Mr Jorgensen) of contempt of court and sentencing him to a period of imprisonment. In late 2014, the Fair Work Ombudsman (Ombudsman) commenced proceedings against Jorgensen and one of his companies alleging that the company had contravened s716(5) of the Fair Work Act 2009 (Cth) because it had failed to comply with compliance notices which required the company to pay $29,956.75 for outstanding wages and entitlements of three of its employees. The company was ordered to pay a pecuniary penalty of $55,000 and to comply with the compliance notices and Mr Jorgensen was ordered to pay a pecuniary penalty of $12,000.

In 2015, the Ombudsman obtained freezing orders which had the effect of restraining the company from disposing of or dealing with any of its assets other than in certain specified circumstances.

In 2017, the Ombudsman commenced

37

proceedings against Mr Jorgensen in the FCCA alleging that he was in contempt of court by causing the company to breach the freezing orders. In 2018, the primary judge convicted Mr Jorgensen of nine counts of contempt of court. On 10 May 2018, the primary judge sentenced Mr Jorgensen to imprisonment for 12 months, but ordered that he be released on 20 May 2018 if he paid a sum of money to the Ombudsman which represented the amount that the company had initially been ordered to pay the Ombudsman in the underlying proceeding. Mr Jorgensen appealed both his conviction and the sentence imposed on him by the primary judge. The orders made by the primary judge were stayed pending the hearing and determination of the appeal and Mr Jorgensen was released on conditional bail.

The conviction appeal raised three issues (at [8] and [88]-[92]): a) whether Mr Jorgensen was denied procedural fairness during his trial in the FCCA by reason of the primary judge’s excessive and inappropriate interventions during the course of his evidence b) whether the primary judge misdirected himself in relation to the proper interpretation of the “ordinary and proper course of business” exception in the freezing orders and the relevant mental element of the contempt charges which had been brought against Mr Jorgensen c) the primary judge’s use of a particular documentary exhibit in making what, at least on his Honour’s view of the contempt charges, was an important finding against Mr Jorgensen.

The Court first considered the ground of a denial of procedural fairness by reason of the primary judge’s excessive interventions. Greenwood, Reeves and Wigney JJ explained at [93]: “Where, as here, an appeal involves grounds involving allegations of apprehended bias or denial of procedural fairness along with other substantive or discrete grounds, the appeal court should first deal with the issues of bias or procedural fairness. That is because those grounds, if made out, would strike at the validity of the trial and require the matter to be remitted for retrial:.. [citations omitted]. If the bias or procedural fairness ground is made out, it may then be inappropriate to determine the remaining grounds of appeal”. However, the Full Court held that this was a case where it should consider and determine the remaining grounds of appeal even though Mr 38 | BRIEF SEPTEMBER 2019

Jorgensen succeeded on the procedural fairness ground of appeal (at [161]-[165]).

Mr Jorgensen succeeded on all issues (at [235]-[240]). The proviso that an appeal may be dismissed where there is no substantial miscarriage of justice (s28(1) (f) of the Federal Court of Australia Act 1976 (Cth)) did not apply to any of the errors made by the primary judge. The Full Court made orders setting aside the declarations and order that had the effect of convicting Mr Jorgensen of contempt and remitting the matter to the FCCA for retrial by a different judge.

On the main ground of procedural fairness, the Full Court held that a detailed review and analysis of the trial transcript clearly supported a finding that the trial judge’s interventions were such that both the “disruption ground” and the “dust of conflict” ground were made out (at [105]). The “disruption ground” is made out where the interventions unfairly undermine the proper presentation of a party’s case (at [99]). The “dust of conflict” ground is made out where the questioning or intervention is “such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance” (at [99]): R v T at [38]. There were 12 features of the primary judge’s interventions that concerned the Full Court (at [109]-[141]). In summary, Greenwood, Reeves and Wigney JJ said at [148]: “The primary judge significantly interrupted and disrupted the orderly flow of Mr Jorgensen’s evidence concerning what turned out to be the determinative issues. His Honour was also sarcastic, disparaging and dismissive of significant parts of Mr Jorgensen’s evidence.

His Honour’s aggressive and, at times, unfair questioning appeared on occasion to confuse Mr Jorgensen and cause him to make concessions he may not otherwise have made. His Honour also frequently cut Mr Jorgensen off while he was endeavouring to explain critical aspects of his case, in particular his belief that the impugned transfers fell within the ‘ordinary and proper course of business’ exception. The extent and nature of the primary judge’s interventions were such that it is impossible to avoid the conclusion that Mr Jorgensen was relevantly impeded from ‘giving his account in such a way as to do himself justice‘: cf. Lockwood v Police (2010) 107 SASR 237 at [16]”.

Administrative law and migration law Ground of proper, genuine and realistic consideration – whether the primary judge should have drawn a Jones v Dunkel inference from the failure of the Minister or a member of his staff to give evidence In Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 (2 July 2019) the appellant appealed from the dismissal of his judicial review application by a single judge of the Federal Court. The underlying decision was a decision by the respondent (the Minister) personally under s501(3) of the Migration Act 1958 (Cth) to cancel the appellant’s visa on character grounds.

The first ground of appeal, which succeeded, was that the Minister committed jurisdictional error by failing to give proper, genuine and realistic consideration to the merits of his decision to cancel the appellant’s visa.

Central to this ground was whether the

Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112

Minister considered the material before him for a time too short to allow an active intellectual process to be applied to the merits of the decision. The appellant’s primary contention was that the Minister spent no more than 11 minutes considering the material before making his decision. The Minister contended that the evidence demonstrated that he could have taken up to 1 hour, 9 minutes. The majority (Murphy and Rangiah JJ) accepted the appellant’s case that the Minister spent only up to 11 minutes considering the materials, while O’Callaghan J dissented on this point. The Minister accepted that if the Court were to find that his consideration was for the time period contended by the appellant, the Minister could not have engaged in the active intellectual process in respect of the material that was necessary to discharge his statutory function.

In determining this first appeal ground, the majority considered the application of the rule in Jones v Dunkel (1959) 101

CLR 298, as neither the Minister nor any member of his staff gave evidence as to when he began his consideration of the decision (at [82]-[91]).

The Full Court rejected the second ground of appeal that the primary judge failed to accord procedural fairness to the appellant as a self-represented litigant by not informing him that he could seek further discovery from the Minister concerning how or when the decision was made; ask the Court to draw inferences from the Minister’s failure to put on evidence about what the Minister did to consider the decision; and ask the Court to issue subpoenas to the Minister and/or others to give evidence (at [102]-[111]).

Evidence

In Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102 (21 June 2019) the Full Court dismissed an appeal from a ruling excluding a line of questioning in cross-examination for lack of relevance. Central to the Full Court’s judgment was the manner in which the case was conducted prior to and at trial.

Middleton, Perram and Anastassiou JJ considered the parties’ obligation to plead all causes of action and defences explicitly (at [28]-[35]).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

Appeal of ruling excluding line of questioning in cross-examination – importance of “explicit clarity” in pleadings

39

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

Children – Threshold hearing on Rice & Asplund – Application dismissed In Mahoney & Dieter [2019] FamCAFC 39 (7 March 2019) the Full Court (Alstergren DCJ, Ryan & Kent JJ) dismissed the mother’s appeal against dismissal of her application for variation of a final parenting order made by the Family Court Division of the District Court of New Zealand (NZ) and registered in 2018 in Australia where the father lived with the parties’ child pursuant to that order. The order, made after a finding that the mother posed a risk of harm, removed the child from the mother’s care and permitted the father to relocate with the child from NZ to Australia, the mother to spend supervised time with the child during school holidays in NZ. The mother later obtained a medical report that she was mentally stable, and applied to the Family Court of Australia for the child to spend unsupervised time with her (and ultimately live with her in NZ). Austin J dismissed the application as the mother had failed to establish a sufficient change in circumstances to warrant reconsideration of the order.

On appeal, the Full Court said ([10]): “In describing the reason for the child’s removal from the mother’s care … the [NZ] court explained that: ‘ … The transfer was necessary for the welfare and safety of [the child] because of the mother’s intense fixed and wrong beliefs about the father’s behaviour … These beliefs are not related to his parenting … If [the child] learns about these beliefs the damage to her will be adverse and lifelong.’”

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The Court continued ([12]): “At the final parenting hearing the mother attributed the cause of her parental difficulties … to … a brain injury and hypothyroidism, which she had addressed. However, the evidence before the [NZ] court revealed that the mother continued to hold fixed and wrong beliefs about the father’s behaviour … (including that the child was conceived through rape). ( … )” The Court concluded ([39]): “A proper reading of the [NZ] judgment demonstrates that … the decision turned not on whether or not the mother had a mental illness, but that [her] fixed beliefs … whatever their genesis or label, posed a risk of harm to the child. … ”

Property – Transfer of house by husband to sister and brotherin-law held to have been for good consideration In Deodes [2019] FamCAFC 97 (11 June 2019) the wife lost her appeal from dismissal of her application for a declaration that a property the husband transferred without her knowledge to his sister and brotherin-law weeks before the parties’ wedding was held on trust for the husband. The husband had owned the property since 1992; the parties began living together in 2001 and the transfer was in 2004.

The husband and transferees gave evidence that at the time of transfer the property was worth $232,000 and that the consideration paid to the husband was $152,000, the $80,000 balance being credited against a debt the husband then owed to his sister. The wife claimed that there was an oral trust between the husband and transferees to hold the

property on trust for the husband.

At trial Magistrate Walter of the Magistrates Court of Western Australia found that the $80,000 loan was then owing, held that the property had been transferred for good consideration and dismissed the wife’s application for a declaration of trust.

The Full Court (Strickland, Kent & O’Brien JJ) agreed, concluding (at [29]): “Her Honour found that the husband owed the second respondent $80,000 at the time of the transfer. She was not persuaded that the transfer was designed to defeat any claim the wife might have. She was satisfied that appropriate market value had been paid, and that the husband benefited from the sale by the discharge of his debt secured by mortgage, the discharge of his debt to [his sister] … and the receipt of cash. …”

Children – Mother’s secretly taken video of hand overs admissible – Her audio of father’s private conversations with the children inadmissible In Coulter & Coulter (No. 2) [2019] FCCA 1290 (15 May 2019) Judge Heffernan heard the father’s application to exclude the mother’s secretly made video recordings of the father’s attendance at her home for hand overs and two audio recordings of conversations between him and the children.

After referring to a court’s discretion (under s 135 the Evidence Act 1995 (Cth)) to exclude evidence if its probative value is substantially outweighed by the risk of prejudice, being misleading or wasting time or (s 138) exclude improperly or

illegally obtained evidence unless the desirability of admitting it outweighs the undesirability of doing so, the Court said ([10]): “I am satisfied that it was not improper for the mother to make the video recordings of the two hand overs. … Hand overs occur in circumstances where the mother has a legitimate interest in her personal safety … and in preventing the children from being exposed to conflict and unpleasantness between the parties. At the time that the mother made the video recording, it is her evidence that she had been having ongoing difficulties of that sort with the father. The mother had an ongoing concern about the father’s apparent obsessiveness with matters personal to her and his abusive, coercive and controlling behaviours and past episodes of violence. She was in the process of seeking an intervention order against him to deal with those issues. …

Recording his behaviour was not improper in that context, even allowing for the secrecy with which it was done. In considering the question of impropriety, I also give weight to the conclusion … that the conduct in recording the hand over was not contrary to a relevant Australian law.

[11] In my view, it was improper of the mother to make secret audio recordings of private conversations between the father and the children. It involved a significant breach of trust with respect to the children, who were entitled to privacy in their conversations with their father irrespective of any motives he may have had to enlist them in his dispute with the mother.

The Court found ([12]-[23]) that the video was not illegal but that the audio contravened the Listening and Surveillance Devices Act 1972 (SA) and that ([24]-[25]) discretion should be exercised to exclude the audio recordings because the desirability of admitting that evidence (as relevant

to the mother’s case of parental alienation) was outweighed by the undesirability of doing so, having regard to the children’s right to have private conversations with their father.

Property – Wife’s $1m inheritance – $1.74m pool ($360K added back for her reckless investment losses as was husband’s life insurance) In Anaya [2019] FCCA 1048 (18 April 2019) Judge Hughes considered a 45 year marriage between the 86 year old wife and the husband, who was 85 and died during the proceedings.

The parties had no children but each had three children from previous relationships. They agreed that their contributions were equal except for the wife’s $1m inheritance in 1991.

The wife’s loss of $360,000 by investing with fraudulent brokers after separation was notionally added back. She argued that the husband’s life insurance proceeds should be added back too because while the policies were brought into the marriage by the husband they had been maintained throughout the marriage but ultimately paid out on his death to his children.

The Court said (from [51]): “ … [T]he wife conceded she had provided separate signed authorities for many of the transactions … [which] contained warnings about the risks of the investment which she read but failed to heed. ( … ) [75] Despite her evident emotional and likely psychological distress, I am satisfied the wife’s conduct was reckless and comes within the second category of behaviour contemplated by Baker J in Kowaliw [[1981] FamCA 70]. ( … )”

vested in the beneficiaries. ( … ) Although the policies were owned by the husband prior to the commencement of the relationship … they were of low value at that time … The premiums were paid from joint resources … The policies clearly formed part of the parties’ assets which the husband had a duty to preserve. His children are the beneficiaries of his whole estate … I am satisfied that the funds paid under the policies should be notionally added back … ” Finding that the net pool was $1.74m including add-backs, the Court ([92]) assessed contributions as 65:35 in the wife’s favour. The Court made no further adjustment under s 75(2), saying ([100]-[101]): “ … The adjustment to the wife … means she will take property to a value of a little over $1.1 million. Although close to $400,000 of that is notional property … she should still have sufficient resources to pay her current debts and leave some cash funds.

Counsel for the wife argued … the wife should take another 20 per cent … to account for her future needs but in light of the adjustment on contributions I am not persuaded there should be any further adjustment to her. I also bear in mind that the wife will take the Property C unit which is an appreciating asset unlike the remaining assets.”

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

As to the insurance policies, the Court said ([78]): “Upon the death of the husband the life insurance policies

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The Tale of the Indefatigable Officer

By John McKechnie QC One of the first pieces of legislation by the new Commonwealth Parliament in 1901 was the Immigration Act, which remained in force for nearly 60 years. Its aim was to limit non-white immigration, particularly Asian immigration, and preserve the predominance of the British within Australia.

Mr Ah On, about whom we shall shortly read more, was Asian.

A would-be immigrant was given a dictation test and required to write out 50 words in any European (or later, a prescribed language) dictated by an immigration officer. The test was usually given in English but could also be in another language.

Some of the dictation tests were difficult to emote, even if the test was in English.

If the land is ploughed when wet the furrows, may, and in all probability will, where a more finished appearance will be more pleasant to the eye, but land so ploughed will be more inclined to become set or baked and when in this state will not produce a maximum yield.

An alternative: It is only in the south that any training in his profession is undertaken by the fetish man: in all other parts of the region the office devolves on its holder in quite an accidental manner: the distinction is thrust upon some native whose fortune has in some way distinguished him from his fellows.

If a would-be immigrant managed to write what was dictated as one of these alternatives, there were other options for the customs officer. The immigrant could be given a test in any European language, perhaps the Italian weather report.

Although the High Court was generally sympathetic to the principles behind the Immigration Act, there were some limits on the breadth of languages that could be employed.

Mr Egon Erwin Kisch was a Hungarian agitator â&#x20AC;&#x201C; by which it meant he was anti-fascist. In the

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1930s, when appeasement was all the rage, he was regarded as a troublemaker. Mr Kisch was fluent in English and several European languages but the customs officer thought he was more than equal to the task of denying entry and gave Mr Kisch a dictation test in Gaelic (of which the customs officer had only a rudimentary knowledge). This was too much even for the High Court who ruled that Gaelic was not a European language under the Immigration Act. All that happened in 1934 and the story of Mr Kisch is well known to lawyers.1 To return to our tale, Mr Ah On seems to have been a shadowy figure. He claimed to be 42 or 43 years old but was more likely 25 to 27 years old. He said he was a gardener in Australia for 28 years but his hands, which he declined to submit to medical examination, presented no appearance of any hard work.

For many years, he avoided authorities but on 15 October 1925, he was found in Osborne Park. He failed the dictation test and the question arose whether he had entered the Commonwealth within three years before failing to pass the dictation test. If so, he was home safe. Mr Ah On called evidence before the Magistrate to show that he had been in Australia for more than three years to no avail. The Magistrate convicted Mr Ah On. All was not over. Mr Ah On appealed to the Supreme Court and on 14 December 1925, he succeeded, although Justice Northmore dissented. The appeal was allowed on the basis that the Magistrate erred in failing to take account of the evidence of Mr Ah Onâ&#x20AC;&#x2122;s witnesses. And so, Mr Ah On walked free.

But not for long. Within a few months, the customs officer, an indefatigable Mr Williamson

located Mr Ah On again in Perth and gave him another dictation test. Again, Mr Ah On failed. The Magistrate dismissed the charge.

This time, Mr Williamson no doubt thought that another appeal to the full court would likely end in a loss again. So it was that Mr Ah On’s case reached the High Court directly on 22 November 1926.

There, Mr Williamson had a win. The court, by majority, allowed the appeal and entered a conviction. An issue was the constitutional question whether the Immigration Act was ultra vires. Although Knox CJ and Duffy J thought it was, the other judges disagreed. Justice Isaacs stated the case plainly on the court’s decision “depends the power of the National Government to give any effective force to what is known as the white-Australia policy or to any policy of controlling undesirable immigration”.

Justice Isaacs did not think much of Mr Ah On who, in his eyes, was a Chinese immigrant who “in all moral probability – he alone being able to confirm or dispel it, surreptitiously foisted himself on this community, successfully eluding observation for some years and eventually has unquestionably perjured himself wholesale in the witness box to escape the consequences”.

method of application – Various court cases have been lost through evidence being furnished that the test had not been correctly applied. The main point to remember is that, although a language may be chosen with which the immigrant is not acquainted, the test should be applied in such a way that he would be afforded a reasonable opportunity to write the passage out if he were literate and knew the language”.

So continued the circular: Pencil and paper should be handed to the person to be tested and it should be clearly explained to him what he is required to do and if necessary an interpreter should be employed to explain the requirement.

[The irony of this sentence seems to have been lost on the Assistant Secretary]. The whole passage should be read over once to indicate what the passage is, and then repeated more slowly as the actual test, a few words at a time right to the end of the passage, whether the pertinent person attempts to write or not.

If there was any doubt that the dictation test was to preserve the White Australia policy, the last instruction would settle it: If the officer has good reason to believe that the person tested could write in English, a passage of not less than 50 words in some other European language may be selected. If an officer is not available to read the passage correctly in the language chosen, a person acquainted with the language may be authorised in writing by an officer to dictate the passage.

The court held that various averment provisions within the Immigration Act were valid and so Mr Ah On was convicted. The consequence was deportation.

Did he go quietly – not a bit of it.

On 30 June 1928, the Mirror newspaper reported: It was learned in Perth this morning that Ah On, the elusive China man had been arrested in Melbourne under the name of Lu Chin. Ah On was the principal figure in the celebrated deportation case that went from Perth through successive courts to the High Court of Australia, the China man being finally convicted. That was many months ago and Ah On has, until now, eluded his pursuers. He will be deported from the country.

And so ended the story of Mr Ah On in Australia but not quite the end of this tale.

On 4 March 1927, the Assistant Secretary of the Home and Territories Department S J Quinlan wrote to the Collector of Customs in Fremantle “Directions to be observed in connection with the application of the dictation test”. He noted “See

The Immigration Act was repealed in 1958.

The Racial Discrimination Act came into force in 1975.

Of course, Mr Ah On and his brushes with the law were long ago and we live in much more enlightened times. No-one now would suggest that applicants for a visa should take an English language test – would they?

Adapted from Ah On and Ah Con v Williamson and Pickett (1925) 28 WAR 74: Williamson v Ah On (1926) 39 CLR 95.

Endnotes 1

Read Our Man K by Nicholas P Hasluck, Penguin, 1999.

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

“Pork-barrelling” 1. To supply an inappropriate share of government money to, in return for political support. 2. “To adopt the practice of pork-barrelling”.

The Macquarie Dictionary, 2nd Edition, 1992, p1377.

Edward Hale, an American writer, used the term “pork barrel” in his story “The Children of the Public”, published in 1863, as a metaphor for public spending on citizens. Pork barrel originally related to storing salted meat. It was said that the phrase “pork barrel bills” used in Congress had been derived from the pre-Civil War practice of giving slaves a barrel of salt pork as a reward, requiring them to compete among themselves to get a share of the reward. The other, more common meaning in those days of no refrigeration, was the fact that a barrel of salt pork was a pantry staple in 19th century households, used as a measure of the family’s financial well-being. James Cooper wrote in 1845 in The Chainbearer – “I hold a family to be in a desperate way, when the mother can see the bottom of the pork-barrel”.

When one looks back and reviews the last few days of the run-up to the 2019 election, one can be left in no doubt as to the significance of pork-barrelling in regard to the election of candidates to the Parliament.

Your Dog is a cautious beast, not given to indiscriminate spending on anything, other than perhaps on a couple of bottles of red wine or whisky! The rate at which, and the amounts of largesse sprayed far and wide by aspirant political parties seeking a majority in the parliament is extraordinary. Even more insidious is the fact that the funds so to be spent (given away) in this fashion are not funds of the government at the time of the announcement. They are funds yet to be extracted from taxpayers who have had the intelligence, application and wish to get ahead, in the process of which they earn taxable income and pay tax. All that governments have to give is what has been or will be extracted from taxpayers.

When your Dog surveys the state of his kennel, and wonders whether the doors should be opened to let other beasts in, he looks at their pedigrees, breeding, bearing, behaviour, their ability to respond to commands, such as “Sit”, “Walk” and so on. He considers their reliability, and the degree of trust which he would perhaps be able to place in them.

Your Dog regards all of this as the “test of employability”.

Applying that test, imperfect as it may be, would one trust the candidate to run one’s practice while absent, not to draw money from the business account other than for legitimate purposes, and to treat the trust account with the honour and respect it deserves, beyond even what the law requires?

If the candidate were to fail these tests, your Dog regards them as unemployable for that position.

Perhaps it is time to debate the basis on which porkbarrelers are selected for election? Sadly, but not

44 | BRIEF SEPTEMBER 2019

infrequently, your Dog reckons the only command some of them have mastered and understand is “Lie”, and if that does not work “Lie again”.

Many have no qualification for the job – running a country’s finances, medical systems, police, armed forces, schools, tax collection and the like is the stuff that makes one think deeply about your Dog’s test of employability and the suitability of the candidates to be so employed.

How many of them have academic qualifications suitable for the job in its various facets, or life experience in management and running of business and other ventures, the role of credit and credit worthiness, investment in infrastructure and the importance of profit: as Winston Churchill commented “You don't make the poor richer by making the rich poorer”.

Conversely, a debate to extend the life of Parliament by a year or more, where there are doubts as to employability of the unemployable, would be madness! Perhaps there should be requirements as to candidacy which require an educational and training process, by which those given to fabricating qualifications and other such things are eliminated: after all, the present system fails to achieve that in a surprisingly large number of cases in the process of nomination, despite face to face interviews in branches of the parties nominating candidates for election.

Talking of debates, the TV and radio appearances of party leaders in shows designed to enable the electorate to determine which one of two would be the better leader are asinine.

Your Dog looks forward to a day where the annual budget is a planned rolling expenditure applicable for the next five years, matched by projected income (i.e. tax collections) in that period, not altered by pork barrel announcements made in the course of the year or in the lead up to triennial elections. On a smaller scale and closer to home, noting that the analogy may not be completely apposite, that is what households and businesses do – why does it not apply to government? If there are unexpected windfalls, put them to one side and save them for that rainy day, so that when the unexpected disaster occurs there is money in the bank.

Well, at the time this is published the election has come and gone, and we have another government. Your Dog wishes those elected wisdom, patience, understanding, and where hard decisions must be made – the preparedness to make them. Those in government have been elected to govern, which is the task they must discharge. Create an environment in which the economy can flourish with a minimum of red tape and bureaucracy – that would be conducive to the creation of wealth for all citizens.

Your Dog

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Vale Nigel Clarke District Court judge

Born: Prestwick, Lancashire, England, 21 November 1929 Died: Stirling, WA, 5 June 2019

Nigel Clarke, a District Court judge for 14 years, was a compound of compassion, erudition, robust humour, and an idiosyncratic approach to punishment.

On his last day in court, April 30, 1998, he made legal history when he cited the Stolen Generation in sentencing an Aboriginal woman to a two-year suspended sentence for killing her abusive partner. He described Susan Penny as a “fractured survivor of the Stolen Generation and a victim of a battered woman syndrome”.

The Aboriginal Legal Service said it was the first instance of a WA judge acknowledging the effects of the State’s removal policies on Aboriginal people.

In January 1990, he ruled that the evidence of two Eucla policemen was highly suspect, and could not be admitted in the trial of two men on drug charges.

The book of record was “maintained with scant regard to police standing orders on the need for accuracy”, he said. “Rejection of the evidence ... should sound a warning to investigators.”

The trial transcript engaged the attention of the Attorney-General, Joe Berinson, the police commissioner, Brian Bull, and the police minister, Graham Edwards.

As a consequence of a secret investigation, three officers were convicted of perjury and conspiracy to pervert the course of justice.

The case that provoked the greatest public outrage, however, was his decision, in November 1996, not to jail a 35-yearold man who had had, since she was 12, a 2½-year sexual relationship with his stepdaughter.

“The literature on child sexual abuse is by no means of one mind as to the inevitability of harm,” he said. “The sexual maturity and consent by a particular child should be a factor in weighing the gravity of the offender’s conduct.” The man was released on a two-year suspended sentence.

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The Court of Criminal Appeal overturned the judgment and Chief Justice David Malcolm sentenced the man to two years jail. “The sentencing remarks imply a reluctance by the learned judge to find that the child had suffered any significant harm,” he said.

Nigel Henry Sherwood Clarke was born on November 21, 1929, at Prestwick, near Manchester, England. He was the only son of Trever Wilbraham Hartley Clarke, a cotton broker, and Winifred Mabel Wragg, a family of faded gentility who lost everything in the Depression.

His father died when he was four, and he was brought up by five females — his mother, who worked at the food ministry, sister Ann, a maternal grandmother and two aunts.

These events — bereavement, Depression and the female environment had a profound effect on him.

At age 11, he won a scholarship to Fleetwood Grammar School in Lancashire, and at 15 met Jillian Wilmot — they were both talented gymnasts — whom he married in Johannesburg, South Africa, on June 2, 1956. They had four children — Richard (born 1957), Phillippa (1959), Ann (1961) and Simon (1964, deceased).

Nigel was academically gifted, excelled at chess and debating, at squash and athletics, and was a ferocious captain of the rugby team.

He never lost his locker-room sense of humour, or a propensity for writing witty, irreverent ditties. Because he did not believe he would fit in, or survive financially among the independently wealthy, he did not accept a scholarship to Cambridge University. Economic necessity and postwar service motivated him to join the Royal Air Force. He graduated as a pilot officer and was awarded the Sword of Honour.

He was then put in charge of all the air force bases in the north of Scotland, including the Orkney and Shetland islands.

Postwar, he studied law at Hull University, Yorkshire, but on graduation had not the money to buy into the profession. In 1952, he accepted a clerical appointment with

OK Bazaars, a supermarket chain in South Africa. He boarded with an Afrikaansspeaking family, and learnt the language.

He then advertised in a local paper: hardworking UK law graduate seeks a legal firm who is willing to pay a living wage and give articles.

Nigel joined M.G. Panovka in the town of Springs in the Transvaal. By now fluent in Afrikaans, he qualified in Roman Dutch law — the basis of the South African system — and became a legal partner.

Three years later, Jill joined him from England and they married.

Nigel’s firm worked for the anti-apartheid movement, defended many Africans in court, and employed black office staff. Dr Hendrik Verwoerd’s government rewarded him by withholding his passport and the Clarkes returned to England.

In 1965 he was invited to Swaziland (Eswatini today) to write a new constitution for its independence from British rule, recognised on September 6, 1968. King Sobhuza II appointed him secretary for justice but after a promising start, corruption within the government led to disillusionment and the family emigrated to WA in December 1971.

At 42, Nigel was recognised as a senior lawyer and he joined Morris Crawcour and Solomon. His belief that the safari suit was the epitome of sartorial excellence raised eyebrows. After a period at Crown Law, and at the Bar, he was appointed a District Court judge on April 2, 1984.

In court, Judge Clarke was courteous to those who appeared before him — lawyers, the accused, plaintiffs or witnesses — but he had no time for the pretentiousness of wig and gown.

“Court dress,” he said in 1992, “is like the Barracks Arch — useless but of inordinate value to many.”

David Hough Courtesy of The West Australian

Professional Announcements Career moves and changes in the profession

Mediator of the Year – Registrar Sandra Boyle Australian ADR Awards 2019

Coulson Legal

The Law Society congratulates Supreme Court Registrar Sandra Boyle, who was awarded Mediator of the Year at the 2019 Australian ADR Awards in August. Registrar Boyle received the national award in recognition of her excellence in the area of domestic mediation and her commitment of many years to the effective resolution of matters through mediation.

Sandra Boyle

Chief Justice Peter Quinlan, on behalf of the Court, congratulated Registrar Sandra Boyle on this richly deserved achievement.

“The success of the Court’s mediation program, and its national reputation for excellence, owe a significant debt to the talent and dedication of Registrar Sandra Boyle”, he said.

“Over the past 12 months, the Registrars and Judges of this Court have conducted more than 400 mediations, empowering the parties before the Court to resolve their disputes efficiently and cost effectively, within the context of the Court’s duty to deliver justice.”

“The outstanding work of the Registrars of the Court have seen its mediation program develop into a national leader. Registrar Sandra Boyle exemplifies the skill and commitment that has built that reputation. It is befitting that Sandra’s significant contribution to mediation, and to the administration of justice in this State, be nationally recognised in this way.”

Coulson Legal is pleased to announce the promotion of Amy Pascoe to Associate Director/Senior Associate.

Amy Pascoe

Amy completed her Bachelor of Laws with Honours at Murdoch University in November 2015, receiving First Class Honours for her Thesis on uplift fees in Australia.

Amy joined Coulson Legal in July 2015 and has worked on complex and difficult legal costs matters in all jurisdictions.

Amy is extremely passionate about costs and educating both practitioners and law students on the importance of costs in practice. She founded the Murdoch University Law School's Costs Law Unit in 2016 together with Coulson Legal's Dr Stephen Shaw and since 2016 has been one of the principal lecturers.

O’Sullivan Davies Lawyers named First Tier Firm

Amy has advised and represented both law practices and clients in numerous solicitor/client and party/party costs matters in the Magistrates Court, District Court and Supreme Court of Western Australia, and on party/party matters in the Federal Court of Australia. In addition, Amy has also advised on and represented parties in relation to costs in both domestic and significant International Arbitrations.

For the seventh consecutive year, O’Sullivan Davies Lawyers has been listed as a First Tier Firm in the 2019 Doyle’s Guide for Western Australian Family Law rankings.

Solomon Hollett Lawyers

Trevor O’Sullivan

James Claringbold

Nicola Watts

Nicola Jansen

The Doyle's Guide is a global publication that ranks leading lawyers and law firms compiled by undertaking independent research based on reviews by clients, peers and relevant industry bodies.

Ryan van der Merwe

Andrew Davies

O’Sullivan Davies Lawyers Consultant Nicola Watts says that the firm has an uncompromising commitment to excellence.

“Excellence is one of our core values and we apply it across all areas including service, knowledge and practice which is what ultimately delivers outstanding results for our clients. It’s very rewarding for it to be recognised and for us to be again ranked as a First Tier Firm in the Doyle’s Guide,” says Ms Watts.

“We’re thrilled that six of our lawyers have been recognised and awarded by the Doyle’s Guide, rewarding our expertise in all aspects of Family Law including HighValue and Complex Property Matters, Parenting Matters and a Rising Star.”

Morgan Solomon & Craig Hollett are delighted to announce the appointment of Andrew Bower to Andrew Bower the role of Associate at Solomon Hollett Lawyers with effect from 1 July 2019. Andrew is an outstanding solicitor who practices primarily in the areas of commercial litigation and commercial law.

Trevor O’Sullivan, James Claringbold, Nicola Watts, Nicola Jansen and Ryan van der Merwe have all been named with managing partner Andrew Davies named as Preeminent practitioner in the Family law field.

Established in 2000, O’Sullivan Davies Lawyers based in Perth is a specialist family law practice with a skilled team of 32 staff. For more information, visit www.osullivandavies.com.au.

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Missing Will

Would anyone holding or knowing the whereabouts of a Will for the late CARLIE ANN FINNERTY late of 7 Midgegooroo St, Ellenbrook, WA, who died on 23 March 2019 please contact Corinne Adams WA Property Lawyers on 08 9380 3600 or cadams@wapropertylawyers.com.au

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Tel: (08) 9315 1515 or call Mercedes Romek on 0422 994 184.

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

Phone Andrew on 9225 6618 to inspect

New Members New members joining the Law Society (August 2019)

Restricted Practitioner Ms Sharna Wood Herbert Smith Freehills

Associate Membership Mr Luke Docker Murdoch University - School of Law

48 | BRIEF SEPTEMBER 2019

Ms Katherine James Flinders University Kek Quan Yao Murdoch University - School of Law Ms Tracy Kim Murdoch University - School of Law Miss Denise Magtuto The College of Law

Mrs Claudia Martin Edith Cowan University Business & Law Ms Annette Thompson Murdoch University - School of Law

Events Calendar

With thanks to our CPD partner

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

SEPTEMBER 2019 CPD Seminars Wednesday, 4 September How to Leverage LinkedIn to Grow your Personal Brand & Business – Webinar

Thursday, 26 September Expanding Your Range of Influence

Thursday, 12 September The Duty of a Lawyer’s Confidentiality

Tuesday, 24 September Networking Event for In-house & Government Lawyers

Friday, 13 September Ethics on Friday: Social Media – Ethical Issues and Pitfalls for Lawyers

Membership Events

Tuesday, 24 September IP, Data and Technology Masterclass

OCTOBER 2019 CPD Seminars Wednesday, 2 October Criminal Law Masterclass Thursday, 3 October Contract Law Masterclass – Advanced Friday, 4 October Contract Law for Young Lawyers Tuesday, 8 October The Many Hats of InHouse Counsel and Government Lawyers Wednesday, 9 October Legal and Ethical Aspects of Artificial Intelligence and Robotics – Webinar Thursday, 10 October Sharing Knowledge: The Small Business Roadshow

by ASIC

Friday, 11 October Ethics on Friday: You Are Not Your Client’s Mouthpiece Monday, 14 October Family Law Masterclass Tuesday, 15 October Succession Law Masterclass Wednesday, 16 October The Legal Services Award – key changes & consequences of a contravention Thursday, 17 October Environment, Town Planning and Local Government Masterclass

Friday, 18 October Legislative Drafting – what are the recent developments at Commonwealth and State levels?

Thursday, 31 October The New Practice Direction on Witness Outlines: a Brave New World or Back to the Future?

Membership Events Thursday, 3 October Careers Uncut Tuesday, 15 October Mock Trial Grand Final

Thursday, 17 October e-Trials – An Introduction

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

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

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

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