Brief August 2020

VOLUME 47 | NUMBER 6 | AUGUST 2020

Is Covid-19 the Mother of all Disruptors for the Legal Profession?

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The Role of Courts in Supporting Arbitration: A Review of Recent Developments in the Asia-Pacific 2020 Contentious Business Determinations Family Provisions Claims by Second Spouses: The Growing Importance of Independence and Autonomy Stick to the Fundamentals and Your Firm Can Become – and Remain – Viable

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Volume 47 | Number 6 | August 2020

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CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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ARTICLES

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

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

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

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50 Years of the District Court

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The Role of Courts in Supporting Arbitration: A Review of Recent Developments in the Asia-Pacific

Stick to the Fundamentals and Your Firm Can Become – and Remain – Viable

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Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec)

Is Covid-19 the Mother of all Disruptors for the Legal Profession?

Climate Change Concerns for Planning in WA: Lessons from the Gloucester Mines Decision

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Time Children Had the Same Protection from the Use of Physical Force as Adults

RRP $16.00 incl GST.

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Admissions Ceremony – During COVID-19 Pandemic 3 April 2020

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UWA Law School Year of ‘94 (& Friends) 25th Courtyard Reunion

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2020 Contentious Business Determinations

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Tortious Liability for Subsidiaries

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From My Client to Our Client – It’s Time for a Change of Mindset

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Employer Super Guarantee Amnesty Ends Soon

Family Provisions Claims by Second Spouses: The Growing Importance of Independence and Autonomy

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

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

Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dianne Caruso, Dr Rebecca Collins, Megan Cramp, Patricia Femia, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Teresa Szunejko, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome.

For details, contact brief@lawsocietywa.asn.au.

President: Nicholas van Hattem Senior Vice President: Jocelyne Boujos Junior Vice President & Treasurer: Rebecca Lee

REGULARS

Immediate Past President: Greg McIntyre SC

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President's Report

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Ethics Column

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Editor's Opinion

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Law Council Update

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WA Case Notes

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Cartoon

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Book Review

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Quirky Cases

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Federal Court Judgments

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Professional Announcements

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High Court Judgments

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New Members

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Family Law Case Notes

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Classifieds

Ordinary Members: Rebecca Bunney, Daniel Coster, Nathan Ebbs, Ante Golem, Mark Hemery, Matthew Howard SC, Craig Slater, Brooke Sojan, Shayla Strapps, Paula Wilkinson Junior Members: Thomas Camp, Lea Hiltenkamp, Gemma Swan Country Member: Melita Medcalf Chief Executive Officer: David Price

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PRESIDENT'S REPORT Nicholas van Hattem President, The Law Society of Western Australia

Welcome to the August edition of Brief.

In the Nyoongar seasonal calendar, August is the start of Djilba or “first spring”. The worst of the cold stormy days are behind us. The nights become clearer. There are an increasing number of pleasant warm days.

Many of us can reflect with gratitude as more parts of our work and social lives reopen. We still think of our friends, particularly in Victoria and in other restricted places, whose return to happier times is further away.

We’ve been pleased to see that our website’s COVID-19 hub has been a useful resource for members. We’re staying vigilant, while hoping that there will be no second wave in WA. We’ve now added a second hub link, to post all the latest information and updates on Legal Profession Uniform Law. While seasons change, two things remain constant: continuous changes in and to our profession, and the Society’s commitment to keep us informed, prepared and supported.

Society Sundowner On 28 July, the Law Society held its first event since the COVID-19 social restrictions were eased with a Society Sundowner at City Beer Hall on Milligan Street. The event was sold out and it was great to catch up with colleagues and peers from the profession we have not seen for a while and enjoy an evening of friendship and camaraderie.

New and exciting events are in the pipeline, details of which will be published on the website once available. (Please note that the Law Society continues to closely monitor advice and guidelines from the government regarding COVID-19 restrictions and social distancing.)

Membership Renewals The new membership year commenced on 1 July and is now well and truly underway.

The Society has received a fantastic response to the offerings presented in our COVID-19 renewal package with 1,586 eligible members choosing to take up CPD Freedom at no additional cost for the 2020/21 year. I would also like to specifically acknowledge and thank those members who chose to renew their membership at the full price, forgoing the 30% reduction in

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support of the Law Society. The confident response from our members in choosing to maintain their membership with the Society in the current environment is very appreciated and I thank those members.

Legal Profession Uniform Law The anticipated implementation of the Legal Profession Uniform Law (LPUL) scheme means big changes are coming to the Profession in Western Australia and it is more important than ever to ensure you have access to the most trusted and up to date information.

In preparing for the introduction of the new scheme, the Law Society has developed a Legal Profession Uniform Law (LPUL) central hub lawsocietywa.asn. au/legal-profession-uniform-law/ to keep members informed. In addition, the LPUL CPD Seminar Series will be launched in September 2020 and delivered across the lead up to LPUL implementation 1 July 2021.

The CPD Seminar Series will focus on the key changes between the current WA Legal Profession Act and the associated rules and the WA LPUL and associated rules (yet to be publicised).

I encourage you to attend the CPD Seminar Series to keep abreast of developments and make sure you are informed by the best speakers and trusted legal professionals.

Law Mutual (WA) Resources for Legal Practitioners The COVID-19 pandemic created an environment of profound change and uncertainty for the legal profession. Legal practices, like many other businesses, have had to change a number of work practices.

Law Mutual received several requests from legal practices for assistance in dealing with the issues posed by the pandemic.

Enquiries included questions on managing clients in a remote setting; undertaking client interviews, witnessing documents, and supervising practitioners when everyone is working remotely.

Following consideration of the insureds’ enquiries, and discussions with interstate counterparts and other jurisdictions, Law Mutual reviewed the requirements of the Practice and Matter Management Guidelines and developed the following

resources to assist legal practitioners: • •

•

COVID-19 Pandemic Matter Management Guidance; Information Management and Security when Working from Home Guidance; and Video Conferencing Guidance.

These resources are available on the Law Society’s website here and I encourage practitioners to refer to these helpful documents to assess if their practice has adequate procedures in place to mitigate risk, and adapt the resources for their own practices, where necessary.

The Joint Law Society/Australian Women Lawyers Charter The Law Society has adopted the Charter for the Advancement of Women in the WA Legal Profession, prepared by the Joint Law Society/Women Lawyers Committee, as part of its ongoing commitment to the advancement of women in the legal profession. (The Charter was originally developed by the Law Society of New South Wales and adapted by the Law Society of Western Australia to reflect current Western Australian law.)

Women make up about 50 per cent of the legal profession, and have made significant advances in all areas of practice. However, impediments still remain to the retention and career progression of women in the profession.

The Law Society’s Charter for the Advancement of Women is designed to promote and support strategies to retain women in the profession over the course of their careers and encourage and promote the career progression of women into senior executive and management positions.

The Charter is published on the Law Society’s website here and is also a guide for all Western Australian law firms to use.

Since my previous President’s Report, the Law Society has been advocating on a variety of issues affecting the legal profession and the wider community through submissions, advisory initiatives and campaigns. On the next page, in the “Advocacy” column, you can read more about the important work the Law Society and Council have been doing behind the scenes.

Advocacy Column Work Health and Safety Bill 2019 – Industrial Manslaughter Law Reform

culturally and historically significant sites such as the caves at Juukan Gorge.

The Work Health and Safety Bill 2019 (WHS Bill) was introduced into the Legislative Assembly on 27 November 2019, and passed into the Legislative Council on 20 February 2020. In May 2020 the WHS Bill was referred to the Standing Committee on Legislation, and submissions were sought prior to the Standing Committee tabling its report to the Parliament on 11 August 2020.

The recommendation is drafted within the context that the Commonwealth has an international obligation in accordance with acceptance of the United Nations Declaration on the Rights of Indigenous People that ‘Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage’.

It is recommended that this obligation should be embraced and law reform proceed for the protection of Aboriginal and Torres Strait Islander Heritage, in co-operation with the States and Territories, to make them effective, adopting the recommendations of the Evatt Report and employing processes which have proved effective under the Environment Protection and Biodiversity Conservation Act 1999.

The Law Society has considered sections 30A and 30B of the Work Health and Safety Bill 2019.

The following provides a summary of the views of the Law Society on legal issues arising from the industrial manslaughter laws proposed for Western Australia.

The Law Society noted that: a.

b.

the introduction of a summary offence under section 30B, in addition to the serious offence under section 30A, represents a move away from, rather than toward, national harmonisation of OHS legislation; and the “breach of duty” contemplated by sections 30A and 30B is broadly defined. The Law Society recommends consideration be given to identifying specific duties which would give rise to the serious criminal sanctions contemplated by the legislation.

The key recommendations the Law Society is advocating are that: a.

in all the circumstances, the appropriate jurisdiction for a prosecution under 30A would be the District Court rather than the Magistrates Court;

b.

further guidance ought to be given to confirm the applicability of privilege against selfincrimination in a prosecution under the new provisions;

c.

the Bill should be amended to expressly confirm the applicability of defences under the Criminal Code; and

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consideration should be given to providing for Legal Aid funding for prosecutions under the new provisions.

You can read the full submission here

Inquiry into the Destruction of Caves at the Juukan Gorge On 24 May 2020, caves at Juukan Gorge in the Pilbara region of Western Australia were destroyed by mining company, Rio Tinto, to make way for the expansion of an iron ore mine. In 2013, Rio Tinto received Ministerial consent to destroy or damage the cave site under section 18 of the Aboriginal Heritage Act 1972 (WA). This Act has been considered for review, in some form, since 2012.

The cave sites are recognised as significant to the Puutu, Kunti Kurrama and Pinikura people of Western Australia, with evidence of continuous human habitation going back 46,000 years.

Following the destruction of these caves, an inquiry has been launched by the Joint Standing Committee on Northern Australia, in seeking to avoid future destruction of heritage sites. The Law Council of Australia is assisting with the inquiry with a submission to the Committee and requested input from the Law Society.

The Law Society’s submission concludes that there is no legislative regime at a State or Commonwealth level which is effective to guarantee the protection of

Read the full submission here

Children and Community Services Amendment Bill 2019 On 25 June 2020, the Legislative Council referred the Children and Community Services Amendment Bill 2019 (Bill) to the Standing Committee on Legislation for inquiry and report by 15 September 2020.

The Bill amends the Children and Community Services Act 2004 (CCS Act) to implement recommendations of the: •

Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse

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statutory review of the CCS Act.

Following an invitation from the Committee, the Law Society made a submission in response to the Children and Community Services Amendment Bill 2019 (WA) and the proposed amendments to the Bill set out in Supplementary Notice Paper No 157 Issue No 3 dated 17 June 2020.

The Law Society’s submission focuses on the aspects of the Bill aimed at amending the CCS Act to better promote a strong connection between family, culture and community for Aboriginal and Torres Strait Islander children and can be read here.

2021 State Election Advocacy Campaign The Law Society has prepared a set of key policy issues to promote to Government and Opposition during the 2021 Western Australian election campaign based on the following six (6) Election Platform Topics: 1.

Increase access to justice;

2.

Court resources: • Infrastructure; • Judicial appointments; • Jurisdiction;

3.

Reducing crime:

4.

Justice project (implementation of);

5.

Amendment to the Administration Act; and

6.

Rule of law

• Including sentencing and justice;

The Law Society has written various Briefing Papers to identify issues and make recommendations for the State Government and Opposition to commit their support to. The Briefing Papers include: Legal Assistance Funding; Closing the Gap; Justice Reinvestment; Amending the Administration Act to Increase the Statutory Legacy; and Death Penalty.

Over the next two months, the Law Society will be writing to both the Premier and the Leader

of the Opposition seeking their response to the recommendations contained within all the Briefing Papers that form part of the Law Society’s Election Advocacy Campaign.

Gender Equity Court Appearance Survey Women lawyers are not appearing in numbers commensurate with the proportions of women in the profession, as demonstrated by The Law Council of Australia’s 2009 Court Appearance Survey and the Visible Targets a Case for Equitable Briefing by Kate Eastman SC of June 2016 and the New South Wales Bar Association Equitable Briefing Working Group Review of the Application in New South Wales of the Equitable Briefing Policy of Law Council Australia (August 2015).

To obtain robust and replicable data to identify whether targets are required to address the limited number of women lawyers appearing in WA Courts the Law Society will be arranging for a survey to be conducted to identify those matters in which women appeared.

The Law Society has now sent a letter to the Australian Heads of Jurisdiction seeking their assistance with the survey including a suggestion that Associates in the Court of Appeal, Supreme Court, District Court, Family Court, Federal Court and the Federal Circuit Court in Perth for a period of 1 September to 30 November 2020 complete a survey for each attendance at Court.

National Roundtable Addressing Sexual Harassment in the Legal Profession Following recent media reports into sexual harassment, the Law Council of Australia (LCA) held a national Roundtable on 8 July 2020 that brought together experts across the country to address the issue of sexual harassment in the profession.

The Law Society of Western Australia was represented at the roundtable by the Chair of our Joint Law Society/Women Lawyers Committee, Charmaine Tsang. Ms Tsang is also the Law Society of Western Australia’s representative on the Law Council’s Equal Opportunity Committee.

Amongst the attendees at the Roundtable there was consensus and agreement that the Sex Discrimination Act 1984 (Cth) requires urgent amendment to extend the prohibition of sexual harassment to all areas of life, and not just in respect of certain relationships and situations.

Participants at the Roundtable also agreed that the legal profession should act upon key recommendations contained in the Australian Human Rights Commission’s Respect@Work Report. Other areas identified as requiring law reform included defamation, conduct rules, occupational health and safety laws, and time limits to make complaints.

The Roundtable acknowledged that law reform must be accompanied by cultural change in the legal profession, which could be achieved through measures including: a national model sexual harassment policy and guidelines; a centralised source of information and suite of educational tools; the facilitation of consistent complaints processes across Australia; and the development of appropriate training.

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

This edition’s feature article, Trish Carrol’s “Is COVID-19 the Mother of all Disruptors for the Legal Profession?”, is timely and pertinent, as COVID-19 continues to dominate our lives.

Issues concerning quarantines, shutdowns of borders and commerce, the interaction between the Commonwealth and the States, and the tension between personal and public rights, have been brought into sharp relief. In all this, the law, and the legal profession are not only affected by, but also influential in the resolution of, these issues.

While this Edition has items about COVID-19, it also has our recurring mix of informative and entertaining regular items, as well as other articles of interest to the profession, such as Clare Thompson on the recent Contentious Business Costs Determinations and Sally Bruce on Family Provisions claims by second spouses. We also have the Chief Justice’s admissions ceremony address, which is a good reminder of not only the effect of COVID-19, but also the refreshing of the profession, and the challenges faced, by those entering it. At the other end (sorry, mid-range) of the spectrum is an item on the UWA class of ‘94’s 25th Courtyard Reunion. We also have David Bruns’ reminiscences on the District Court, which this year celebrates its 50th anniversary.

Another prominent legal anniversary is the 100th anniversary of the “Engineers Case”1, which has a distinctively local flavour.

As anyone who has sat a Constitutional Law exam within the last 60 days can instantly recall, the issue in that case was whether the WA Minister for Trading Concerns could be joined as a party to an “industrial dispute” under the Commonwealth Conciliation and Arbitration Act 1904 (Cth).2 This famous decision was initially known as the “Western Australian Trading Concerns Case” until, for reasons that are unclear, it became dubbed the “Engineers Case”3.

WA’s legal fraternity may consider this to be a multi-layered slight, especially to anyone familiar (looking at you, UWA class of ’94) with the historically acrimonious relationship between law and engineering students, and the dystopian-hell that was the UWA Law School v Engineers annual tug of war (for the uninitiated, it had all the wonderfully eccentric pointlessness of the Eton Wall game, with what followed the largely

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incidental tug of war resembling a Mad Max movie). Readers are invited to submit any of their favourite (or most traumatic) tug of war memories.4

Mallon was, pertinent to our times, one of the earliest recognised cases of a “healthy carrier” exhibiting virtually no symptoms over the years.

While controversies over Australian quarantine and border protection measures continue, it is notable that an infamous 2015 incident involving the same has been recently recounted in the most unlikely of places: Johnny Depp’s UK defamation trial action against The Sun, involving his ex-wife Amber Heard.

Mallon was tracked down after, in 1906, a wealthy family vacationing in a rented mansion in Oyster Bay, Long Island, where Mallon was the cook, contracted typhoid.

The mansion’s owner, concerned (unlike the admirably cool Mick Doohan) that the mansion would become un-rentable, retained a public health expert to track the source. Mallon was traced through similar outbreaks in wealthy families in previous years and quarantined, without due process, for almost half her life on the dismal North Brother Island in the East River, NY (not far from the notorious Rikers Island prison) without being given even an opportunity, as would probably happen nowadays, to appear on Celebrity Masterchef.

The UK Court heard evidence about the circumstances in which Heard and/or Depp dishonestly smuggled, contrary to Australian quarantine laws, their Yorkshire terriers “Pistol” and “Boo” into Australia, where they stayed at GP motorcycle racing legend Mick Doohan’s Coomera Waters mansion in Queensland. Readers will recall Barnaby Joyce’s offer of a temporary stay of the death penalty for Pistol and Boo, if they were voluntarily deported from Australia forthwith (which they were).

The evidence though suggests that Pistol and Boo were likely the least offensive and toxic inhabitants of Doohan’s house – others being more deserving of deportation, or at least the applicable 10-day quarantine period.

Given a damage bill of more than $200,000 and blood, bits of fingers, and other things spattered and written (not with a pen) on whatever wasn’t smashed to pieces, Mick Doohan must go down as one of the most laid back landlords ever, apparently being still “cool” about things.5 Law students might consider proposing a revival of the Law School v Engineers tug of war at Mick’s place.

Public sympathy and lawyers taking up her cause resulted in Mallon’s release from the island in 1909, on the condition she would not be involved in food preparation. Sadly, after a few years, Mallon could not make a living from other endeavours, and was caught working as a cook at a maternity hospital and returned to North Brother Island for the remaining 23 years of her life.

Typhoid Mary’s case is tragic one, and her treatment very harsh when compared to another infamous historical figure, who got away from an island quarantine, broke some promises, and was returned to an island for their final years. Typhoid Mary’s offense after leaving the island was just to try to earn a crust doing what she loved, whereas Napoleon Buonaparte of course, re-declared war on half of Europe.

One has to also feel for the UK trial Judge, Mr Justice Nicol. Last year, in an earlier interlocutory hearing a brother judge commented that “as libel actions go, this one is particularly straightforward”6. Yet Justice Nicol had to deal at the conclusion of the trial with that vexed question that unfortunately lawyers are all too familiar with, and bedevil so many civil trials these days, in saying to Counsel that “I’m struggling at the moment to find why I would have to make a decision as to who defecated in the bed”

Endnotes

Very rough quarantine justice was dealt out to Mary “Typhoid Mary” Mallon whose downfall resulted from her being (from all account an excellent, apart from the typhoid bacillus) cook for some of the wealthiest families in North Eastern USA. The Irish born

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Amalgamated Society of Engineers v Adelaide Steamship Co Ltd & Ors (1920) 28 CLR 129, delivered on 31 August 2020.

Which involved a departure from the existing law concerning the immunity of State instrumentalities from Commonwealth legislative control.

See in particular High Court Justice The Hon Stephen Gageler AC’s recent speech “Engineers; The Drama of Its Day in the Climate of its Era” in (2020) 31 PLR 4 On the Editor’s part, one of his best friends, a prominent leading barrister, was retired hurt after being slugged in the head with a sock filled with sand soaked in motor oil.

The previous year, the Law School’s literal flag bearer “El Cid” was, sadly also literally, set on fire.

“Mick Doohan ’cool’ with renting Gold Coast mansion to stars despite property being ‘trashed’ by Hollywood actor Johnny Depp”, G Stolz, dailytelegraph.com.au (18/7/20) Mr Justice Nicklin in [2019] EWHC 1113 (QB)

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

50 Years of the District Court

By David Bruns Francis Burt Chambers

The District Court began on 1 April 1970 as a result of a need for an intermediate court in WA. From the start, as its name suggests, it had a focus on providing superior court services to the regions.

I have been asked to write about my experiences in the District Court. They began as an articled clerk in February 1977 in Bunbury.

Being in Bunbury gave me an insight into the role of the District Court as a court that, unlike the Supreme Court, had several homes. The District Court at Bunbury sat in a building that was closed off except for the three-monthly visits of the court (and some other courts).

As if to reinforce the regional nature of the court, shortly after I began my articles, Judge Pidgeon became the second “Chairman of Judges”, the title itself (now replaced by Chief Judge) giving a nicely collegial aura to the court. Judge Pidgeon had been appointed to the court in 1970 as one of the original judges directly from his practice in Bunbury. There were still in 1977 many tales told about his practice as the leading litigation lawyer in town, and also his model train set. His former home in Bunbury still had a shed at the back which contained fragments of the alpine landscapes through which the trains used to chuff. Both in practice and as a judge, dealings with Bill Pidgeon were always pleasant.

My first District Court chambers appearance and my first District Court trial were however before Judge Des Heenan – also one of the original appointments but later to become the third Chairman of Judges and subsequently a Justice of the Supreme Court. Des Heenan taught me a lot on those two occasions but I do not recall feeling grateful at the time; collegiate and instructive the encounters might have been, but one left them

very aware of one’s deficiencies as an advocate. Being in Bunbury also meant that one was quite likely to (and did) bump into Judge Heenan taking a lunchtime stroll while one was still traumatised but there could be then discerned an amiable and sociable side to his character not previously apparent.

The other inaugural appointments were Judge Syd Good (the first Chairman) and Judge Bob Jones. I never encountered Judge Good but I gather that few did – his time was mostly absorbed by administration. Judge Jones I met only after he had transferred to the Supreme Court and he was charming to all.

In those days in Bunbury, a visit by a judge for a sitting was generally combined with drinks with the profession, which gave a junior country practitioner a chance to talk with judges socially, an opportunity not generally open to practitioners in Perth. I also had easy access to the resident Deputy Registrar Owen Smith who on occasion was even prepared to hold the door of the Registry open to 4:01 pm if I had cut things too fine in filing something on the last day.

In 1982, I moved to Perth and changed into an insurance lawyer, which meant even more contact with the District Court but the District Court at Perth had a rather different feel. It was then at the former Public Trust Office, 565 Hay Street, Perth but in 1983, moved to the brand new Central Law Courts.

In the meantime, Judges Ackland, O’Connor, Gunning and O’Dea had been appointed. Judge O’Connor became known as ‘Gentleman Jim’ because of his placid nature but Judges Ackland, Gunning and O’Dea had a more gritty side. My first jury trial was before Judge O’Dea. My second jury trial was before Judge Samuel who was sadly (and I think uniquely) to die in active office shortly afterwards in 1986.

My third jury trial was the 1988 prison riot trial which was presided over by Judge Des Heenan. That trial lasted over four months and it demonstrated to me the demands on a judge involved in running such a trial – there were 20 accused with 14 defence counsel. Judge Heenan had a serious heart attack soon after that trial, which should have come as no surprise.

During the trial, Judge Heenan allowed the prisoners to make sketches of what was going on in the courtroom so as to keep them occupied. I still have copies of some of those sketches.

I do not intend to canvass the many other judges appointed after Judge Samuel but must mention the appointment of Judge Toni Kennedy in 1985 as the first female judge. I can recall that her appointment was controversial at the time. I don’t think anyone would now deny that she had a distinguished career but I fear that her first 12 months might have witnessed some negative attitudes. I would also like to mention Michael Muller who had been a colleague of mine as a solicitor in Bunbury in the late 1970s but who was to be appointed as a judge, and a widely respected one, in 1993. Other judges from “the regions” include former Chief Judge Kevin Hammond (Northam).

Generally over the last 20 years, the court has acquired a reputation of being composed of hardworking judges with an esprit de corps other courts would envy.

One innovation for which the District Court can be lauded was that of the pretrial conferences in 1985. The Insurance Commission of WA (as it then was not) has always been the most frequently appearing litigant in the court and the innovation was especially valuable for cases in which it was involved but I remember how effective I thought they were and how bewildered I was at the hostility to the concept amongst colleagues who practised in other courts.

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The Role of Courts in Supporting Arbitration: A review of recent developments in the Asia-Pacific

By The Hon Justice Angus Stewart Judge of the Federal Court of Australia Paper presented by video to the International Congress of Maritime Arbitrators ICMA XXI in Rio de Janeiro, Brazil, 9 March 2020.

Good morning honoured guests, fellow judges and delegates to ICMA in Rio. It is a great disappointment to me not to be with you in Rio for the Congress. I was at the ICMA Congress in Copenhagen and in Hong Kong before that, and I really wanted to be in Rio too. Please accept my apologies for being absent. I thank the organisers for inviting me to nevertheless present this paper by way of video.

Last year, the 60th anniversary of the New York Convention1 was celebrated in events around the world. The Convention came into force on 7 June 1959. Of 193 member countries of the United Nations, 159 state parties have adopted the Convention – an adoption rate of more than 80%.2 An example of the continuing worldwide reach of the New York Convention is its recent adoption by Australia’s close neighbour and trading partner, Papua New Guinea, which acceded to the Convention on 17 July 2019.3 Another Pacific neighbour, the Maldives, acceded to the Convention on 17 September 2019.4 The New York Convention is complemented by the UNICTRAL Model Law on International Commercial Arbitration.5 Together these instruments

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provide the framework whereby most national courts supervise arbitrations and enforce arbitral awards. Despite the worldwide consensus on key aspects of international arbitration represented by these instruments, national courts continue to interpret and apply the regimes in sometimes subtly different ways.

The Full Court of the Federal Court of Australia in TCL Air Conditioner v Castel Electronics6 in 2014 reiterated the necessity of paying “due regard” to “the reasoned judgments of common law countries in the [Asia-Pacific] region, such as Singapore, Hong Kong and New Zealand” in interpreting and applying the New York Convention and the Model Law. That is the underlying rationale to my consideration of cases from these

jurisdictions in this paper. Some cases are maritime or shipping cases, but I will also draw upon general commercial arbitration cases. The principles in such cases are equally applicable to maritime cases.

As will be seen, differences in judicial methodologies between jurisdictions on the approach to arbitral supervision and enforcement continue to contract because of a growing internationalist tendency amongst domestic judges.7 As identified by the Honourable Murray Gleeson AC QC, former Chief Justice of the High Court of Australia, in a recent speech, forum neutrality is a powerful consideration for parties in choosing a seat of arbitration.8 Another relevant consideration may be whether the approach of the jurisdiction under consideration on key questions of supervision and enforcement conforms with the approach taken in other comparable and competing jurisdictions.

By demonstrating a commitment to international principles developing in different jurisdictions, national courts will better serve the efforts of their national arbitration institutions to attract and support arbitration.

through the IAA by recognising that the quelling of a dispute by arbitration is not an exercise of judicial power but the enforcement of the binding result of the agreement of the parties to submit their dispute to arbitration.14 The following year in the resumed case in the Federal Court, the constitutional challenge having been dismissed in the High Court, the Full Court of the Federal Court referred to case law from Hong Kong, Singapore, New Zealand, the United States, Canada and the United Kingdom in finding that the public policy exception to recognition and enforcement under the Model Law is limited to the fundamental principles of justice and morality of the state.15 An example of what could constitute a matter fitting that description is illustrated by the Victorian Supreme Court decision in Indian Farmers Fertiliser Cooperative Ltd v Gutnick16 in 2015.

Indian Farmers Fertiliser Cooperative v Gutnick In Gutnick, the Court found that where an award allowed for double recovery it would likely be contrary to public policy.

Importantly, Croft J recognised the policy of minimal curial intervention, which was adopted in the TCL case with respect to the public policy ground, to apply to all applications made under the Act and the Model Law.17

Recent Cases and Developments in Australia Background Australia acceded to the New York Convention without reservation in 1975.9 The International Arbitration Act 1974 (Cth) (IAA) is the exclusive statute in Australia governing international arbitrations seated in Australia and the enforcement of awards in Australia.10 It is basically an umbrella law implementing both the New York Convention and the Model Law.11 It also implements the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, but that can be put to one side for present purposes.

The IAA designates the Model Law as the exclusive, mandatory procedural law for all international arbitrations seated in Australia.12 There has been a series of recent decisions in Australia which have influenced the course of international and domestic arbitration since the landmark decision of the High Court of Australia in TCL Air Conditioning v The Judges of the Federal Court of Australia13 in 2013.

The judgment upheld the constitutional validity of giving force to the Model Law

His Honour ultimately found that the respondents had failed to establish that the award allowed for double recovery and that their reliance on public policy thus stumbled at the first hurdle.

However in obiter, his Honour stated that he would be prepared to accept that “where an arbitral award allows for double recovery, or where enforcement would result in double recovery, fundamental principles of justice and morality may be engaged”.18 An application for leave to appeal was dismissed by the Victorian Court of Appeal which affirmed the decision and reasoning of Croft J. 19 Mango Boulevard In 2018, in Mango Boulevard Pty Ltd v Mio Art Pty Ltd,20 a domestic commercial arbitration case heard by the Queensland Court of Appeal, the Court took a narrow view of what it means for a party to not be able to present its case in arbitration for the purposes of setting an award aside under Art 34 of the Model Law. The amount of leeway which the Court provided to the arbitrator by upholding the award is demonstrative of the proenforcement attitude now common in Australian courts.

Mango Boulevard and Mio Art had entered into a joint venture for the development of land. Under a share sale agreement, Mio Art agreed to sell a parcel of land at a cost of $22 million to the joint venture vehicle and then half of their shares in the vehicle to Mango Boulevard.

The agreement contained a formula and process by which the price for the shares was to be determined. In the event of a dispute the parties were to submit to arbitration and the arbitrator was to use the valuation formula prescribed in the contract. This involved making an assessment of the likely income and development costs and then applying an agreed formula which was described as a “matter of calculation, rather than professional judgement”.21 An agreed value would inevitably follow because of a required assumption of a profit on cost percentage return of 25 per cent.22 However, in determining the price for the shares, the arbitrator used his own valuation methodology which was said to measure “all relevant market considerations”.23 The arbitrator did not clearly inform the parties that he was considering using a different valuation methodology, but he had made indications throughout, especially during closing submissions.

Mango sought to set aside the award under ss 34(2)(a)(ii) (unable to present its case) and 34(2)(b)(ii) (conflict with public policy) of the Commercial Arbitration Act 2013 (Qld) which sections correspond with the Articles of the Model Law with the same numbering. Mango submitted that the arbitrator had prevented it from presenting its case because it was not advised of the departure from the prescribed formula until closing submissions and enforcement was against Australian public policy. The Court of Appeal rejected that argument, referring to the TCL Air Conditioner v Castel Electronics24 decision, a Hong Kong case25 and other Australian cases26 for the principle that there must be “real unfairness or real practical injustice”27 before a matter will be set aside on the Art 34(2)(a)(ii) basis.

Important to the Court’s reasoning was the fact that months had passed between the time when the reasoning was raised with the parties and when the hearing was concluded in which Mango had an opportunity to address the point or recall expert evidence. This case therefore represents a relatively narrow approach to Art 34 set-aside applications.

Rinehart v Hancock Prospecting Pty Ltd The question of the reach of arbitral 07

clauses and their enforceability arose for decision by the High Court of Australia in Rinehart v Hancock Prospecting Pty Ltd; Rinehart v Rinehart28 last year.

agreement can nevertheless hold the claimant to the agreement. I will canvass that case when I deal with other recent Singapore cases shortly.

In the settlement of disputes amongst family members concerning some of the most valuable iron ore deposits in Australia, deeds had been concluded which provided for the submission of any future disputes “under” the deeds to arbitration. Upholding the Full Court of the Federal Court, the High Court placed heavy reliance on the context in which the deeds had been concluded, including the value that the parties at that time placed on keeping the details of their disputes out of the public domain, to conclude that disputes “under” the deeds included the claims that were subsequently made that the deeds were unenforceable or invalid. On that basis court proceedings advancing those claims were stayed under s 8 of the Commercial Arbitration Act 2010 (NSW) which is the state-level analogue to Art 8 of the Model Law.

The definition of “party” which was front and centre in Rinehart v Hancock does not have an equivalent in the Model Law so the decision on the cross appeals is not particularly pertinent to other jurisdictions, but the decision is another reflection of the High Court’s strong support for arbitration.

In reaching its conclusion, the High Court found it unnecessary to refer to the House of Lords decision in Fiona Trust & Holding Corporation v Privalov29 in which the difference between disputes “arising under” and those “arising out of” an agreement were considered. The essential point is that it is a matter of construction of the clause in question that turns not only on the language used but also the context. In this case it was the context that was decisive.

In cross appeals, the High Court also came to consider the claims by various companies in the family group of companies that the claims against them were also subject to the arbitration clauses even though they were not parties to the deeds containing those clauses.

With reference to the definition of “party” to an arbitration agreement in the NSW statute which includes “any person claiming through or under a party to an arbitration agreement”, the High Court stayed the court proceedings in favour of arbitration.

The extension of the right to rely on arbitration clauses to those claiming “through or under” a party to an arbitration agreement is also found in the Federal IAA (s 7(4)). The High Court held that when an essential element of a defence to a claim was or is vested in or exercisable by a party to the arbitration agreement, then the defendant to that claim can rely on the agreement. That is extraordinarily broad protection.

I should add that a very recent Singapore High Court case deals with the question when a non-party to an arbitration 08 | BRIEF AUGUST 2020

Conclusion With Australian courts steadily hearing more cases in relation to supervision and enforcement of arbitrations the courts will continue to define the boundaries of the public policy ground with reference to international jurisprudence, as was done in TCL Air Conditioner v Castel Electronics and Gutnick. It seems clear from the Mango Boulevard judgment that the pro-enforcement attitude cemented in TCL Air Conditioner v Castel Electronics will remain and keep Australia in line with our pro-arbitration neighbours, Singapore and Hong Kong.

New Zealand New Zealand remains a minor player in international arbitration in the Asia-Pacific but is continuing to develop its position in the region.30 New Zealand acceded to the New York Convention in 1983.31 The Arbitration Act 1996 (NZ) (AANZ) by its Sch 1 corresponds for the most part to the provisions of the Model Law. While the AANZ applies to both domestic and international arbitrations, some parts apply by default to domestic commercial arbitrations only.

Wahiao An interesting 2017 case on the provision of reasons by the arbitral panel is Ngãti Hurungaterangi v Ngãti Wahiao32 (Wahiao) in which the NZ Court of Appeal examined the requirement for a reasoned domestic arbitral award in complex cases.

The Court found that the boundaries of the requirement to give reasons is delineated by the subject matter of the dispute, but that at a minimum engagement with the parties’ submissions and the evidence along with a recital of the reasoning to justify the result based on that engagement is required. The reasoning of the Tribunal was contained in only five paragraphs despite the importance of the subject-matter, the amount of evidence to be assessed and the appointment of a former judge to the panel. The Court found that this was insufficient in the circumstances.

New Zealand will remain a jurisdiction to watch in the arbitration space as it increases its share of international arbitrations being held or enforced there.

Singapore Singapore is one of the world’s leading centres for international commercial and maritime arbitrations. It acceded to the New York Convention in 1986 with a reciprocity reservation33 and adopted the Model Law by s 3 and Sch 1 of International Arbitration Act34 (SIAA). With regard to the grounds for setting aside of awards under Art 34(1) of the Model Law, s 24 of the SIAA expands the grounds to specifically include fraud and corruption or breach of the rules of natural justice.

Duncan v Diablo A 2017 Singapore High Court case, Duncan v Diablo Fortune Inc,35 concerned the arbitrability of matters in that jurisdiction. An application to court was brought by the liquidators of Siva Ships International Pte Ltd. In a bareboat charter, Siva Ships had provided a lien to Diablo over sub-freights, sub-charter or sub-hire. The liquidators sought to establish that the lien was void for want of registration as a charge under s 131(1) of the Companies Act.36 Diablo filed to stay these proceedings in favour of arbitration in reliance on the arbitration clause in the charterparty.

Reflecting Art 8 of the Model Law, s11(1) of the SIAA provides that “[any] dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so”. The Court refused to grant the stay on the ground that the dispute did not fall within the scope of the arbitration agreement and was not arbitrable. The Court found that a dispute under s 131(1) of the Companies Act inherently relates to the statutory insolvency regime and was therefore not arbitrable. The Singapore courts (and legislature through s 11(1) of the SIAA) approach non-arbitrability from the same public policy perspective as outlined

by Allsop J in his Honour’s important judgment in Comandate Marine Corp v Pan Australia Shipping Pty Ltd37 in 2006.

RALL v AGMS The case of Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd38 (RALL v AGMS) in 2019 was an appeal from a decision of the Singapore High Court39 rejecting an application by Rakna Arakshaka Lanka Ltd (RALL) to set aside a final arbitral award made in Singapore.

The Court of Appeal found that a party

which does not engage with arbitration proceedings does not lose its right to later apply to set aside the award on a ground which could have been relied on to set aside the proceeding at an earlier stage.

The question which ultimately came to be determined by the Court of Appeal was whether a defendant to arbitration proceedings, who declines to participate in those proceedings because it takes the view that the arbitration was wrongly started or continued due to a lack of jurisdiction, is entitled to stand by while the claimant proceeds with the arbitration without losing its right to challenge the jurisdiction of the tribunal in set aside proceedings before the supervisory court.

Under Art 16(3) of the Model Law a party has 30 days to challenge a preliminary ruling of a tribunal on a jurisdictional matter in court. AGMS argued that RALL’s failure to utilise that mechanism precluded it from later setting aside the arbitral award on a jurisdictional basis.

The Court of Appeal ruled that the preclusive effect of Art 16(3) does not extend to a respondent who has stayed away from the arbitration and not contributed to any wastage or additional costs. A party is entitled to avail themselves of all the remedies the law provides where the party is of the opinion that they are not subject to the jurisdiction and there is no duty to participate at any stage.

BXS v BXT BXS v BXT40 was the first application to set aside an arbitral award heard before the Singapore International Commercial Court (SICC). The applicant sought to set aside the award and the respondent sought to strike out the application on the basis that it was brought two months outside of the three-month time limit for recourse against an arbitral award imposed by Art 34(3) of the Model Law. The arbitration agreement stipulated that there were to be three arbitrators and that the Singapore International Arbitration Centre (SIAC) Rules applied to the arbitration without stating which edition of the Rules applied. Unlike the SIAC Rules at the time that the arbitration was commenced, the Rules at the time of the agreement did not provide for an expedited hearing before a single arbitrator. It might be considered surprising that the Court found that the later rules applied and that if the parties intended the earlier rules to apply that should have been more clearly indicated.

The Court found that once the three months in which to bring a set aside application have expired, the right

to apply to set aside an award is extinguished and the Court could not make an order under its own primary legislation to remedy that. It followed that regardless of the merits of the set aside application, which the Court rejected in any event, the set aside should be struck out.

ST Group Co Ltd v Sanum Investments In ST Group Co Ltd v Sanum Investments Limited41 the Singapore Court of Appeal held that an arbitral award that is made in a seat of arbitration not chosen by the parties will not be enforced. Sanum and some of the ST Group parties entered into a joint venture. The dispute resolution clause of the master contract stated that any arbitration was to be seated in Macau. Sub-agreements were made, one of which stated that the seat of the arbitration should be Singapore. Sanum commenced arbitration in Singapore after ST Group purported to terminate the agreement. The ST Group parties objected to the SIAC arbitration and did not participate further after their objection was dismissed. Sanum was awarded damages of US$200 million for breach of contract by the Tribunal. ST Group appealed against the leave order which was granted to Sanum to enforce the award in Singapore.

The Court first found that the dispute arose under the master agreement rather than any of the sub-agreements.

Because of that, the Court found that the correct seat of the arbitration was Macau, not Singapore. The Court referenced RALL v AGMS for the principle that a party who objects to the jurisdiction of the tribunal but does not participate in the arbitration proceedings at all would still be able to set aside the award or oppose enforcement proceedings. The Court found that the choice of an arbitral seat is one of the most important matters for parties to consider when negotiating an arbitration agreement. As such, once an arbitration is wrongly seated, in the absence of waiver of the wrong seat, any award that ensues should not be recognised and enforced by other jurisdictions because the award had not been obtained in accordance with the parties’ arbitration agreement. For that reason, the leave which had been granted to enforce the award in the lower court was set aside.

Hai Jiang 1401 Pte Ltd v Singapore Technologies Marine Ltd In Hai Jiang 1401 Pte Ltd v Singapore Technologies Marine Ltd42 the Singapore High Court allowed an anti-suit injunction (ASI) on the basis of what is called the ‘quasi contractual’ ground. The

‘quasi contractual’ ground arises in circumstances where the ASI claimant is claiming to not be a party to the contract which the ASI respondent is suing/ arbitrating upon in a jurisdiction which is inconsistent with the arbitration clause of an arbitration agreement. An ASI can be granted to restrain the ASI respondent from bringing or continuing the proceedings abroad if the proceedings are inconsistent with the arbitration clause under the contract which the claims would inherently be subject to if any contractual relationship existed.

In this case Singapore Technologies, a ship yard, brought proceedings in the United Arab Emirates (UAE) against the vessel MV Seven Champion for nonpayment of crane upgrade works. That vessel was owned by Hai Jiang, who had bare-boat chartered the vessel to a third party who entered into the repair contract with the yard. The repair agreement provided that it was governed

by Singapore law and disputes were to be arbitrated according to the Singapore Chamber of Maritime Arbitration Rules.

The third party had prima facie assigned the rights under the contract to Hai Jiang but it was later wound up and the vessel was sub-chartered again. This was when the vessel was arrested in the UAE by the respondent.

Hai Jiang applied for an ASI on the basis of the assignment and that the yard’s claim was based on a contract with an exclusive Singapore arbitration clause.

The assignment ground was successful [45] as was the ‘quasi contractual’ ground. The Singapore Court followed the Sea Premium Shipping Ltd v Sea Consortium Pte Ltd43 case to grant an ASI under the quasi contractual ground as an exercise of the court’s equitable jurisdiction.

Conclusion Singapore remains a jurisdiction which is committed to an internationalist approach and minimal curial intervention which are both approaches increasingly evident in Australia.44 The Singapore courts will nevertheless jealously enforce the parties’ arbitration agreement.

Hong Kong Hong Kong remains a leading jurisdiction for arbitration in the Asia-Pacific. It is known as a pro-enforcement/proarbitration jurisdiction which cements its popular utilisation for arbitration proceedings.45 Hong Kong also has a deserved reputation as a jurisdiction with a strong rule of law, judicial independence and specialization in the arbitration arena.

09

Endnotes 1 2 3 4 5

6

7 8

9 10

Hong Kong’s status as a Special Administrative Region and the Basic Law means that despite being a part of China, Hong Kong maintains its previous legal system.46 Hong Kong acceded to the New York Convention as part of the United Kingdom in 1975 and adopted the Model Law for both international and domestic arbitrations. The legislation giving effect to these instruments, the Hong Kong Arbitration Ordinance47 (HKAO), differs from the legislative mechanisms of Australia, NZ and Singapore. Unlike those jurisdictions, it does not extract all its provisions verbatim from the Model Law.48 Astro Nusantara Astro Nusantara International BV v PT Ayunda Prima Mitra49 is a 2018 decision of the Hong Kong Court of Final Appeal. It concerns a long-running dispute between Malaysian broadcaster Astro Group and Indonesian media conglomerate Lippo Group. It is similar to the Singapore RALL v AGMS case in that the Court expounded the entitlement of the parties to use all their legal avenues to avoid an arbitral judgment.

Stated briefly, there were Singapore awards that the respondents did not seek to set aside in Singapore. They also did not apply within the prescribed 14 days to set aside the enforcement judgment in Hong Kong because they did not believe that they had assets in Hong Kong.

However, when the claimants obtained a garnishee order in respect of a US$44 million debt due to one of the respondents, that respondent applied for an extension of the 14 day period in order to apply to set aside the enforcement 10 | BRIEF AUGUST 2020

judgment.

The Court of Final Appeal held that the two remedies principle meant that the respondents could choose whether to apply to set aside the awards at the seat or to resist enforcement elsewhere.

These options were independently available. The courts below had thus erred in treating the fact that no application had been made to set aside the awards in Singapore as significant.

The extension of time was thus granted.

Conclusion Hong Kong continues to maintain its reputation as a pro-enforcement jurisdiction, but the Astro Nusantara case shows that the jurisdiction equally values the rights of parties to utilise all available mechanisms to avoid enforcement.

This is a similar outlook to that taken in Singapore.

Reflection This selected review of recent decisions demonstrates a continuation of the Asia-Pacific regional trend towards an internationalist and consistent development of international arbitration jurisprudence in domestic courts.50 Some of the themes which have developed are a strong commitment to the New York Convention and the Model Law, minimal curial intervention and widespread citation of international and regional jurisprudence in making decisions on international arbitrations. It can be expected that developments in the maritime jurisdiction will follow this same trajectory in the region.

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 37 38 39 40

41 42 43 44 45

46 47 48

49 50 **

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959).

Wayne Martin, ‘60 Years of the New York Convention – The Role of the Courts’ (2018) 6 (2) The ACICA Review 14, 14.

Albert Jan van den Berg, ‘Contracting States’, New York Arbitration Convention (Web Page) <http://www. newyorkconvention.org/countries>.

Ibid.

UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended on 7 July 2006). Available at <https://uncitral.un.org/en/texts/arbitration/modellaw/ commercial_arbitration>.

TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; 232 FCR 361 (‘TCL v Castel’), 383-384 [75] (Allsop CJ, Middleton and Foster JJ).

Dean Lewis The Interpretation and Uniformity of the UNCITRAL Model Law on International Commercial Arbitration (Wolters Kluwer, 2016) 139-142.

Murray Gleeson, ‘Advocate, Judge and Arbitrator: Perspectives on Commercial Law’ (2018) 34 BCL 82 (presented at New South Wales Bar Association: Commercial Law Section, Inaugural Bathurst Lecture: 3 May 2018).

Lewis (n 7), 68.

Deborah Tomkinson and Jun Won Lee, ‘Australia as a seat for international commercial arbitration — a secure neutral option in the Asia-Pacific region’ [March 2015] Australian Alternative Dispute Resolution Law Bulletin 5, 5.

Lewis (n 7), 68.

International Arbitration Act 1974 (Cth) ss 16 and 21(1).

TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533.

Ibid 544 [5], 575 [107] (Hayne, Crennan, Kiefel and Bell JJ).

TCL v Castel (n 6) [76].

[2015] VSC 724 (‘Gutnick’).

Ibid [19].

Gutnick (n 16) [105].

Gutnick v Indian Farmers Fertiliser Cooperative Ltd [2016] VSCA 5; 49 VR 732.

[2018] QCA 39 (‘Mango Boulevard’).

Ibid [98] (McMurdo JA).

Ibid.

Mango Boulevard (n 20) [100] (McMurdo JA).

TCL v Castel (n 6) [55].

Mango Boulevard (n 20) [103] (McMurdo JA).

See Mango Boulevard (n 20) [104] (McMurdo JA) for the full list.

Ibid.

[2019] HCA 13; 366 ALR 635.

[2007] 4 All ER 951.

Fiona Tregonning, ‘Update from New Zealand: International Arbitration in the Region is Full Steam Ahead’ MinterEllison (Web Page, 8 March 2018) <https://minterellison.co.nz/our-view/update-fromnew-zealand-international-arbitration-in-the-region-isfull-steam-ahead>.

Jan van den Berg (n 3).

[2017] NZCA 429; 3 NZLR 770.

Jan van den Berg (n 3).

(Singapore, cap 143A, 2002 rev ed).

[2017] SGHC 172 (Singapore, cap 50, 2006 rev ed).

[2006] FCAFC 192; 157 FCR 45.

[2019] SGCA 33.

Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Private) Ltd [2018] SGHC 78.

[2019] SGHC(I) 10 (Anselmo Reyes IJ). See also Sharma v Military Ceramics Corporation [2020] FCA 216 which references this case and considers whether time can be extended.

[2019] SGCA 65.

[2020] SGHC 20.

[2001] EWHC 540 (Admlty).

Craig Edwards, ‘Australia and Singapore – Differences in Applications to Set Aside an Arbitral Award?’ (2019) 29 Australian Dispute Resolution Journal 234, 236.

Shahla Ali, ‘Balancing Procedural and Substantive Arbitration Reforms: Advancing International Arbitration Practice in Hong Kong’ in Anselmo Reyes and Weixia Gu (eds), The Developing World of Arbitration (Hart Publishing, 2018) 39, 43.

Lewis (n 7), 63.

(Hong Kong) cap 609.

Jaclyn Smith, ‘The enforcement of international arbitral awards in the Asia-Pacific region – a comparative study of recent cases’ (2014) 30 Building and Construction Law Journal 151.

[2018] HKCFA 12; 21 HKCFAR 118.

Smith (n 48), 164.

Justice Stewart gratefully acknowledges the assistance of his associate James King in the preparation of this paper.

Is Covid-19 the Mother of all Disruptors for the Legal Profession?

By Trish Carroll Principal of Galt Advisory This article was originally published in the Australasian Law Management Journal in April 2020 and is republished with the permission of the Law Council of Australia’s Australian Law Management Group.

In an effort to understand the long-term changes that the COVID-19 pandemic may have on the legal profession, Trish Carroll taps into the minds of final-year law students and also ponders what the fallout will mean for lawyers’ engagement with clients.

Who would have thought Plato’s view in Republic in 375BC about “necessity being the mother of invention” would remain just as astute in 2020?

businesses must now be starting to consider what AC will be like and what it will require of them.

Never have law firms responded faster to change than now. It’s as though 20 years of obfuscation has been wiped away, possibly forever, and what a wonderful silver lining that would be from this Covid-19 cloud.

More recently, celebrity chef Colin Fassnidge wrote in an article about his family in The Sun Herald on April 12, 2020: “Now that we’re all locked in, we are trying not to kill each other. We want to come out of this with the same number of people we had at the start.”

American columnist Thomas Friedman wrote an op-ed piece in The New York Times on March 17, 2020, that spoke of the world BC – Before Corona – and the world AC – After Corona. We all know what BC felt like, even if that now feels like decades ago, and many firms and

Fassnidge’s goal struck me as being equally true for law firms. Most of the media reporting about what firms are doing reflects Fassnidge’s goals; certainly none are talking about staff cuts yet. However, it got me thinking about how people nearing the end of their law

studies, those who have just completed a summer clerkship, or who work in casual paralegal jobs, are feeling about their future in the law.

I engaged with 12 final-year law students.

Some of them worked during 2019-20 as summer clerks in international, large Australian or mid-sized Australian firms.

Others did not have clerkships. Here is a summary of how they’re feeling about their future as lawyers, how their peers are feeling about the impact of the virus on their careers, what they would see as priorities if they were running a firm, and what changes they think will happen in the profession in the AC world.

About their future as lawyers...

There are mixed feelings. Some hold a view that the world will always need lawyers. Others felt anxious about their futures as lawyers. Others said the pandemic had made them realise that some areas of specialisation are particularly vulnerable. As one aspiring

11

lawyer put it: “My desire to one day be involved in media and entertainment law has, to an extent, diminished after witnessing the complete shutdown and halt of the music and arts industry.”

Some said that they would be keeping an eye on which practice areas are stronger and more stable during challenging economic times, while others were considering their options for pursuing non-private practice law careers. Those with graduate offers from international firms doing cross-border international work are the most confident and optimistic that their futures remain the same as in the BC world. Even so, some admitted that the pandemic has caused them to rethink how working as a lawyer will change as a result of the pandemic.

It has made them realise that broadening their skills in the event of another crisis should now be on their radar.

This quote sums up the way quite a few of the students are thinking: “The ability to take some time off from working, while keeping a close eye on the way in which people have reacted to Covid-19, has definitely made me rethink other options I might have for the degree. It is pretty easy to take the ‘easy road’ and go from uni straight into corporate law.

The forced self-reflection resulting from

12 | BRIEF AUGUST 2020

the coronavirus has reminded me that there is much more to life than taking this route.”

How their peers are feeling about the impact of the virus on their careers ...

The prospect of Covid-19 as an imminent threat to employability of law students is a hot topic. Many of those yet to apply for a clerkship are panicking, mainly due to the fact that the distinction average they have worked so hard to achieve might be nullified by a lack of demand in the job market. They’re expressing statements like: “There’s no chance any firm this year will offer clerkship positions” and “you have to pick a good practice group or else there’ll be no work for you”.

Those with graduate positions in their firms of choice mostly believe they will start a year or two from now and that things should be back to normal by the time they start. Some expressed concern that their start dates may be pushed back. Others were concerned that pay levels may stall, particularly as they have heard stories of staff being asked to take pay cuts and suggestions that those cuts will have a knock-on effect. Some are learning that even having a graduate job is no guarantee because “when the going

gets tough, law firms won’t look out for young graduates”.

Priorities if they were running a law firm ...

Almost everyone said that, from what they could tell, most law firms seem to understand the correlation between employee welfare and business success.

They hoped firms making decisions to cut staff were making those decisions based on evidence and with adequate forethought. They felt a major priority ought to be ensuring staff trusted the leadership to make the best decisions and trust that what they say is true. As one person put it: “They need to be communicating the reasoning behind their business decisions transparently to staff, so they can understand why they’re making the decisions they’re making and have faith in the leadership.”

One law student went as far as to say that: “If pay cuts were necessary, partners should take the majority of the cuts because they are essentially the owners of the business and have a responsibility to ensure that it is financially viable.”

Reducing salaries was regarded as likely to be an important aspect of being

able to keep staff. There was a strong view that salary reductions should be proportionate to the employee’s salary and reductions should be across the board, not selective. This is what they described as a “we’re-all-in-this-together approach”.

Shelving non-business essential projects came second, although defining what is ‘non- business essential’ was a topic of debate. Many students felt firms should invest some of their surplus to Covid-19 resources to begin the underlying work needed to accelerate more streamlined ways of working.

need to be able to work from their office to be productive will no longer be the norm.”

•

•

Next came rethinking office space and its use after the virus as flexible work practices, especially working from home, will have proven to be a viable arrangement. Firms could find themselves needing a lot less office space and possibly rethinking where that office space needs to be located.

Following is a snapshot of respondents’ views regarding the long-term impact that the pandemic will have: “Virtual courtrooms and teleconferencing will become more popular. These emerging technologies have been around since before the pandemic and they are only starting to be used seriously by firms and courts now. I also feel that solicitors will start embracing working remotely more and be less reluctant to do so in the future.”

•

“As a young person I really hope that this event will change a number of processes in the legal industry.

First, I hope more senior lawyers will have developed a level of comfort with using technology, working from home and engaging in video calls seamlessly. I also hope they stop their archaic reliance on printing by becoming familiar with the presentation of information on computer screens. Second, legislative instruments allowing, and with some mandating, I hope electronic filing with the courts will be expanded to include all jurisdictions and courts. Then (some) barristers might become more comfortable with reading electronic briefs. Third, I think the client experience will remain reasonably similar. I don’t expect law firms will discount the importance of meeting face-to-face with clients.”

•

“Working flexibly will be the new norm. The perception that lawyers

“The virus has emphasised the importance of having working from home and virtual meeting capabilities, but this technology is not ground-breaking. The virus has probably acted as a wakeup call for the firms who didn’t have those capabilities before.”

Next came rethinking office space and its use after the virus as flexible work practices, especially working from home, will have proven to be a viable arrangement."

Likely changes post-virus...

•

“The online court system is functioning well and many of the courts will look to the Federal Court as a great example of how a modern court should operate, and attempt to mirror its technological literacy and capabilities.”

Where are the clients in all this ...?

It’s not surprising that clients did not feature highly in the thoughts of the law students, although the need for firms to keep them updated on what their future places of work are doing was regarded as very important.

It’s the same for clients. Never has staying in touch (figuratively speaking) been more important. Many firms have acted on their understanding of their clients’ hunger for accurate and helpful information to help them steer their businesses through this.

When you think of all the money most firms spend on client entertainment and client education delivered using face-to-face training, workshops and discussions, it’s fantastic to see how those budgets appear to have been redirected to establishing Covid-19specific information hubs. Here are three of the best: •

International firm White & Case has an impressive Covid-19 Resource

Centre where information relevant to different geographic regions is updated almost daily: https://www. whitecase.com/coronavirus-hub •

Australia’s largest law firm by number of Australian lawyers, Minter Ellison, has pulled out all stops to keep its clients, and the market, up to date on issues and implications arising from the pandemic. It has established CuRT, a 24/7 Covid-19 Response Team chat bot: https:// www.minterellison.com/covid-19implications-insightsmpact

•

Australian mid-sized accounting firm BDO has a great array of information, including practical videos and webinars: https://www. bdo.com.au/en-au/covid19

This virus is a real test for how well firms genuinely understand their clients and their needs. At times like this, no one wants to be inundated with irrelevant or untargeted information. Smaller firms are proving adept at bringing to their clients, and the market, targeted information.

They may not have the resources of the firms highlighted above, but they are making impressive efforts.

One example that struck me as a bit different comes from Kain Lawyers, an Adelaide- headquartered <50 person firm that quickly implemented a Covid-19focused series of newsletters analysing five critical global dimensions from an Australian perspective. One of the key differentiating factors is that Kain has engaged outside experts to provide commentary, in addition to sharing the firm’s own experts’ analysis. These are accessible at http://www.kainlawyers. com.au/news/covid-19-news/. If you take a look, I suggest also reading the firm’s decision-making principles at this time, which are summarised as “Be Safe, Be True, and Be Positive.” Aren’t they wonderful principles?

Whether your firm is mega or minnowsized, the pandemic has implications for your business and your clients’ businesses. Being proactive, practical, positive and prepared to spend the time and effort to help clients understand how they can take advantage of whatever legal protection or opportunity is available to them to minimise the impact on their business will be valued now, and remembered for a long time to come.

As one of the young soon-to-be lawyers said: “Firms need to take a long-term view to a short-term problem. Keeping clients and staff is vital as the cost of getting and keeping both is so high.”

From the mouths of babes!

13

Admissions Ceremony During COVID-19 Pandemic 3 April 2020 Coram: Quinlan CJ, Martin J And Tottle J The Hon Peter Quinlan, Chief Justice of WA

QUINLAN CJ: Can I thank you, Mr Solicitor for appearing today to move the admission of all of those admitted this morning?

Given the very unusual circumstances of today's sitting, both the Court and, I am sure, those who are admitted this morning, are grateful that, as second law officer of the Crown and the most senior practising lawyer in the State, you have taken the time to appear to move all of their admissions. Your appearance here today is symbolic of the relationship of mutual trust and respect that exists between the different arms of government in this State.

And on behalf of the Court I again extend our congratulations to those of you who have been admitted to the legal profession this morning, as officers of this Court.

You should all be justly proud of this achievement, which no doubt comes following years of commitment to hard work and the study of the law.

Regrettably, due to the circumstances required by the COVID19 pandemic, it has not been possible for your family and friends to attend today's sitting, although it is being livestreamed and will be available on the Court's website.

In their absence I express on your behalf, and on behalf of the Court, the debt of gratitude to all those family and loved ones who have supported and encouraged you on the journey that brings you to today. No one makes such journeys on their own, and for this reason your family, friends, teachers and mentors are entitled to share in your achievement today.

As I said at the outset, you are now are officers of this Court. As officers of the Court, you have become an integral part of the third arm of government: the independent judiciary. That is one of the reasons why, even in today's difficult circumstances, this ceremony is conducted in public and your solemn

14 | BRIEF AUGUST 2020

promises are made before the Court publicly.

Today you also take your rightful place as part of the legal profession. A strong independent legal profession is essential to a strong independent judiciary, without which the rule of law and our democratic system of government could not long survive.

In times of crisis, the maintenance of the rule of law is more important than ever; and is the means by which the common good of the community can be assured, while at the same time ensuring that the rights of individuals, particularly those who are vulnerable, can be protected.

At the heart of what it is to be a member of a profession, to be a professional, is the notion of service. It involves a commitment to use one's particular specialised skills for the benefit of others and not for one's own benefit.

In recent weeks we have seen this kind of conspicuous service on display from those dedicated men and women in the health professions: doctors and nurses, and allied health professionals, who are working tirelessly, often at great risk to themselves, in caring for those affected by the pandemic.

That commitment to service has been an inspiration to us all, and a strong and ever-present reminder to those of us in the other professions, of what it means to be a member of a profession.

I hope all of you draw inspiration from their professionalism and adapt it to your own professional calling. As our brothers and sisters in the health professions continue their vital work, they must be supported by others in the community stepping up to do their part to provide the services that are essential to the good of the community.

And people from all walks of life are continuing to provide that service and support in a myriad number of ways.

So too, the legal profession is called to do its part, and has responded to that call,

in many ways. Government lawyers who are working around the clock to ensure that the extraordinary measures required to meet this emergency are both effective and lawful. Solicitors providing advice to clients, particularly vulnerable clients, as they order their businesses and their lives to meet these new measures. Counsel who continue to advocate for the rights of their clients in often extremely testing circumstances.

In all of these ways, the legal profession is administering the law and administering justice and, together with the courts, ensuring the maintenance of the rule of law.

You are now part of that profession. That is how you should view your work and its importance. Administering justice and administering the law.

The current challenges that we all face are also a strong reminder that, now that you are members of the profession, you should take care to look out for your colleagues. The practice of the law can be difficult and demanding, and at times, stressful. This is the case, now more than ever, and it is incumbent upon those of us who are able to do so, to find ways to support and ease the burden on those within the profession who may be at particular risk. So take care to look after yourself and to look after each other.

Remember, a collegiate profession is a healthy profession.

And finally, enjoy your work as a legal practitioner. It is a fine and noble calling and, practised well, will bring great satisfaction and fulfilment. Always remember to take time to celebrate a job well done and share your experiences with colleagues. It all contributes to the health of the profession.

On behalf of the Court, I congratulate you again and wish you well in your future careers as part of the legal profession in this State.

The Court will now adjourn.

UWA Law School Year of ‘94 (& Friends) 25th Courtyard Reunion

By Michael Tucak 1994 Blackstone Society President

Class of 1994 (an d Friends)! Photo s Courtesy

“The years just melted away!”, “Great night, just like ‘ol times!”, “So much fun :) looking forward to the next one!”, and “Fabulous to catch up with so many of the old crew (but really not so old, right?)”.

These were some of the rave reviews received by the producers of “UWA Law School Year of ‘94 (& Friends) 25th Courtyard Reunion” (long title) in March.

Following on the breakout success of “Class of 1993 Reunion” a year earlier under the directorial genius of Michael Lundberg (Quinn Emmanuel Urquhart & Sullivan), the Class of ‘94 set about organising a sequel to top the original – and hopefully building a new tradition of 25 Year UWA Courtyard Reunions.

Using the “Lundberg Template”, a fresh Organising Committee’s first decision was to blur the lines of “Class of 1994” due to the friendly, collegiate nature of law school at the time, and due to many classmates having had different final semesters or graduations. The, “and Friends” was an inclusivity that paid off.

After months of Committee planning, with a productivity rate of about 16% (nil billable), the big night was set for 7 March – just a week before the world as we knew it changed forever. Just like “the skipper, five passengers and a three hour cruise”, little did we know it was the last party or social gathering we’d have for three months. Luckily, everybody survived, and the Minnow was not lost.

100 former UWA Law School students gathered in the Law School Courtyard –

where the beloved fountain stood proud, and gleamed, eager to greet us all.

A major coup was securing the original “DJ Da Do Ron Ron” out of retirement, who luckily had no trouble sourcing music of the “pre-1994 era”. It just needed dusting off and two “CD players” (Brief readers under 30 – google “Compact Disc”).

Organising committee member (and former Blackstone VP) Greg Berinson proved he had lost nothing of his social organising skill with that star recruit.

Food for the evening was provided by CARAD ‘Fare Go’ Food Truck, a social enterprise staffed by refugees and asylum seekers, who served up delicious fare, and was organized by Megan Kaino.

Drinks (and related paraphernalia) came under the skilled auspices of Committee member Andrew Dienhoff.

Also building the connections over 25 years, current Blackstone Society VPs were on hand to assist with everything from set up, serving drinks, and let’s just say, “fountain guidance”. A big thank you to Zac Bosnakis (Careers VP), Roshni Kaila (Equity VP), Luigi Rayapen (Social VP) and Adam Cajaglis (Wellness VP), and President Andrew McDade. Article references sorted!

Cam Campbell

Committee member Michelle Harries (nee Airey) co-ordinated that event crew.

One regret of the evening was several UWA Law School staff members being unable to attend – not only were they missed, but this scuttled plans to claim CPD points in all four competency areas through a series of “bar-side” mini-lectures. Many thanks to Mr Peter Handford for representing the staff, and Law School Deputy Head Professor Robyn Carroll, and her team Tash Terbeeke and Lechelle Green, for their help – and permission to use the Courtyard.

A memorable moment for many was a speech by ‘Class of ‘94’ alumnus Amanda Forrester, Western Australia’s current (and first female) Director of Public Prosecutions, who after reminiscences and reflections, made a strong call to action for all of us to “play our part” in shaping the world at this time in our careers. It was inspirational to think that yes, we have that opportunity.

All told, it was a night of much merriment, remembering absent friends, and reconnecting to a part of ourselves we’ll always carry with us, and to those we’d shared that journey with, and who have thus helped shape us too. 5 STARS.

15

Supreme Court of Western Australia

2020 Contentious Business Determinations

By Clare Thompson Chair, Legal Costs Committee

On 18 June 2020, eight contentious business costs determinations made by the Legal Costs Committee under the Legal Profession Act 2008 were published in the Government Gazette, all of which came into effect on 1 July 2020. The determinations were the result of reviews undertaken by the Legal Costs Committee of the nine contentious business determinations which had commenced operation on 1 July 2018.

Senior Practitioner and Senior Counsel; and

The major items arising from the 2020 reviews are: •

discontinuance of a separate determination for appeals heard in the District Court;

•

inclusion of an item in the Supreme & District Courts civil determination dealing with applications for compromise under Order 70;

•

a substantial increase for preparation of schedules under District Court rules 45C and 45D;

•

introduction of a refresher fee;

•

closing the gap between the rates for Counsel and those for both

16 | BRIEF AUGUST 2020

•

no general increase in rates.

The Legal Costs Committee is required to review each determination it issues within 2 years of it being published. For at least the past 10 years the Committee has adopted the practice of reviewing contentious business determinations in even numbered years and noncontentious determinations in odd numbered years.

In undertaking its reviews, the Committee seeks submissions from relevant legal profession organisations including the

Courts, Law Society, WA Bar Association, Criminal Lawyers Association, Family Lawyers, and from the general public.

In about October in each year, the Committee writes to the various legal organisations who may be interested in the area of law being reviewed and seeks submissions. It also publishes two advertisements in about October or November in the West Australian, calling for public submissions.

In February 2020, the Committee held a seminar with members of the Law Society to discuss issues with the determinations and found this to be a very useful and insightful forum.

If the Committee has identified a particular issue it would like to receive submissions on, it will write to individuals and legal bodies who might have insight into that issue. In 2020, the Committee identified several issues which required particular input and invited a broad range of comment from various legal bodies who had particular experience in those areas of law. The two issues of particular interest raised in the 2020 reviews were the introduction of a specific item for RSC

Order 70 applications, and the continuing utility of item 36 of the 2018 Supreme and District Courts civil determination.

As a result of the submissions received, the Committee decided to introduce a specific item for Order 70 applications which is discussed below, and retain item 36.

The Committee identifying issues is not the only source of change; by far the most common source of change is a practitioner mentioning something either directly to a Committee member or in submissions. Without this input the Committee would not be able to do its job as it does not have amongst its membership sufficient breadth of practice to cover all types of legal work.

As always, the notes in the first several pages of the determinations form part of the determination and should be read in conjunction with the various tables. The notes explain in more detail how various items work and how charges are to be calculated.

District Court Appeals Between 2005 and 2018 the number of contentious business determinations grew from 5 to 9 as a result of various changes in the profession and amendments to the Legal Profession Act. These changes included the introduction of a criminal law determination for the Supreme and District Courts, the establishment of SAT, introduction of the Magistrates Court replacing the old Local Courts, and the introduction of family law determinations.

The large number of determinations plainly has an impact on practitioners, particularly those who practice in more than one area of work, and so involves a compliance cost for practitioners, as well as the potential for incorrect costs disclosure arising from the multiplicity of determinations.

In 2020, the Committee considered whether we could reduce the number of determinations as a means of reducing compliance costs on legal practice and streamlining the process of making determinations. The Committee decided that a logical step was to discontinue the District Court (Appeals) Determination, which deals with all appeals heard in the District Court. The items which that determination previously covered have been included in the new item 26 of the 2020 Supreme and District Courts (Contentious Business) Determination, as well as sundry other items which cover travel, photocopying etc. The new item 26 is intended to cover all appeals heard in the District Court, regardless of how they arise, the area of law involved, or where they originate.

Whilst the Committee would like to further reduce the number of contentious business determinations, there are limitations on what can be done given the number of Courts and the SAT required to be covered, and the substantial difference in practice between civil, family and criminal work. This is an issue the Committee is likely to consider again in an upcoming review.

Order 70 Applications under RSC Order 70, compromises involving a person under a legal disability, have been included as a specific item of the Supreme & District Courts civil determination for the first time. These applications most commonly arise in personal injury and Family Provision Act claims so the Committee consulted with the Public Trustee and various lawyers who practice in the area of personal injuries, to obtain feedback on whether an item would be useful and if so, how it might be structured.

The item as adopted envisages a

three phase process: an application is filed by chamber summons with an accompanying affidavit, counsel’s opinion is prepared, the application is heard. Very frequently counsel giving the opinion is already briefed as counsel for the plaintiff, so a fee on brief is not chargeable for the opinion as that counsel will already be familiar with the matter and will likely have been involved in the settlement negotiations. If counsel is not otherwise engaged in the matter, a fee on brief is chargeable. A small allowance is provided for the hearing as counsel’s opinion forms the backbone of the application and it is rare for extensive additional submissions, either oral or written, to be required.

The Committee recognises that most frequently Counsel and not Senior Counsel is briefed to give the necessary opinion and appear at the hearing of the application. Sometimes however Senior Counsel is warranted, in which case the orders sought should include one to the effect that briefing Senior Counsel was warranted in the circumstances of the case, so that your client can recover counsel fees on taxation at Senior Counsel rates.

Preparation of schedules under DCA Rules 45C and 45D A specific item for preparation for schedules under rules 45C and 45D of the District Court was first introduced in 2010 and has remained the same, i.e. 8 hours, since that time. After consideration of submissions provided to the Committee by a group of practitioners who practice in personal injury law and therefore have considerable experience with the operation of rule 45C and in particular the amount of work required to comply with it, the Committee decided to increase the time allowance to 12 hours which is a 50% increase. Of course, given the determinations provide for maximum

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amounts with some limited exceptions, this increase will not translate into a 50% rise in the amount allowed on taxation as practitioners will still have to demonstrate what amount is appropriate, up to the maximum, at a taxation.

Refresher fees Refresher fees are now included in the trial item for civil trials, item 22 in the 2020 Supreme & District Courts civil determination. A refresher fee is essentially a fee for counsel reacquainting themselves with a matter if it has been adjourned for a substantial period. It is calculated as 1 dayâ&#x20AC;&#x2122;s fee for counsel, at the appropriate rate.

A refresher fee only applies if there are 20 business days or more between parts of a trial and does not apply if the trial has been adjourned for the preparation and filing of final submissions, with the resumption of trial being for oral closing addresses. In addition to meeting the 20 days criteria, the trial judge must consider it reasonable that a refresher is chargeable, so you should seek an order to that effect at the time of seeking costs orders.

Counsel fees The rates for Counsel have historically always been lower than Senior Practitioner and substantially lower than Senior Counsel. The Committee has taken the view that the cost of practice is lower for barristers than those in the amalgam and hence there is proper justification for the differences in the rates between Senior Practitioner and Counsel.

The Committee has received a range of comments from the profession regarding the differential, but no real evidence that the costs of practice at the bar is on a par to that in a law firm, so it has been difficult to justify a substantial change.

The suggestions the Committee has received have mainly been requests to change the rates for Counsel so that they align with those of Senior Practitioner.

One suggestion received was a proposal for three tiers of counsel to be introduced in the determination to replace the current two tier model, leading to an increase in the rates for more senior barristers who were not designated as Senior Counsel.

This model proved extremely problematic to implement given the varying levels of seniority and range of experience at which people join the bar from the amalgam, and met some resistance from the profession, being out of step with the realities of the structure of the profession.

Given the number of comments received 18 | BRIEF AUGUST 2020

over the years on this issue, in 2018 the Committee increased Counsel rates disproportionally to other rates, so as to move to narrow the gap between Counsel and Senior Practitioner and Senior Counsel. This has continued in 2020, with Counsel rates being the only practitioner rates to be increased in the 2020 determinations.

As a result of the 2020 reviews, Counselâ&#x20AC;&#x2122;s hourly rate now equates to 91% of the Senior Practitioner rate in the superior courts, up from 81% in 2014, and 87% of the Senior Practitioner rate in the Magistrates Court and SAT, up from 80% in 2014.

An analysis of the changes in hourly rates over the past four reviews is set out in the following tables.

Supreme, District and Family Court hourly rates inclusive of GST:

Other issues The Committee received submissions in support of substantive rates increases, however with a closing date of 10 March 2020 for submissions it was clear these had been written at a time when the economic situation was far better than June 2020, when decisions were made by the Committee.

The entire profession has been impacted by the COVID19 pandemic.

The Committee was acutely aware of the forecast economic impacts and the implications for the legal profession across all areas of practice. The Committee formed the view that it would be inappropriate to put in place a general increase when large sectors of the Australian economy, including lawyers, are being asked to take pay cuts, many

2014

2016

2018

2020

% change 2014-20

Counsel

385

396

418

451

17.14

Senior Counsel

671

682

682

682

1.64

Senior Practitioner

473

484

495

495

4.65

Magistrates Court and SAT hourly rates inclusive of GST:

employees are being laid off and business closed.

2014

2016

2018

2020

% change 2014-20

Counsel

319

330

341

363

13.79

Senior Counsel

528

539

539

539

2.08

Senior Practitioner

396

407

418

418

5.55

It is clear that the changes made to rates over the past several reviews have led to a gradual and disproportionate increase in Counsel rates, which has been a deliberate policy of the Committee so as to address the issues raised by members of the profession.

However, if the profession wants to see more change in this area, either by further narrowing the gap or some other outcome, the Committee will need to be provided with submissions which address the substantive issue: the difference in the cost of practice for Counsel at the bar and practitioners in the amalgam. In the absence of evidence that the cost of practice for a barrister at the independent bar is equivalent to that of a solicitor in private practice, the Committee will likely be reluctant to abandon a policy which has been the foundation of its decisions as to rates for at least the past 24 years.

The Magistrates Court civil determination will be the subject of an immediate review as a result of the changes to the Magistrates Court Civil Procedure Rules, which came into effect on 1 June 2020.

Unfortunately the Committee was not aware of the changes being made to the rules at the time the review was being undertaken, so it has decided to review the 2020 determination immediately, so as to ensure that it properly reflects practice in the Magistrates Court under the new rules. It is anticipated that the review will be completed by 31 December 2020. Submissions are welcome.

Copies of all the determinations are available at www.legalcosts.wa.gov.au.

Family Provisions Claims by Second Spouses: The growing importance of independence and autonomy

By Sally Bruce Special Counsel, Jackson McDonald Introduction In writing this article, the “spouse” I have in mind is a person in or approaching retirement, who has enjoyed a long-term relationship with their (now deceased) second spouse or de-facto partner, who has been married or in a de-facto relationship previously and who may have adult children, but not of the second marriage. In other words, a blended family.

Blended families have always provided fertile ground for family provision disputes. Yet testators still struggle to find the right balance between the competing moral claims of the second spouse and the testator’s own children from a prior relationship.

To be fair, it’s not always easy to identify what is “the right balance”. It depends on the circumstances and is guided by the notion of “community expectations” which may mean different things to different people.

It is the notion of “community expectations” which I want to explore further in this article. How have the community’s expectations, in terms of what constitutes proper and adequate provision for a long-term second spouse, changed over the years and how has this change in community attitudes been reflected in the cases. Importantly, what is the position today.

General principles In Luciano v Rosenblum (1985) 2 NSWLR

65, Powell J held at 69: “It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.”

Although this case was decided 35 years ago, I think it’s fair to say that, as a statement of general principles, it still represents the benchmark today. Of course, community expectations in terms of what secure in one’s home means and 19

as to the amount of income and/or capital that is proper and adequate for a surviving (second) spouse, will have changed.

surely have obtained an absolute interest in the matrimonial home, had the case been decided today.

The following cases evidence the shift in community attitudes towards spouse claims over the years.

Salmon and Anor v Blackford

Changing attitudes Crisp v Burns Philp Trustee Company Limited Perhaps the lowest form of provision that can be made for a second spouse (or any spouse for that matter) is a mere right to reside in the matrimonial home.

I am pleased to say that, as far back as 1979, Holland J in Crisp v Burns Philp Trustee Company Limited (NSWSC 18 December 1979, unreported) took the view that the grant of a mere right to reside in the matrimonial home did not represent proper and adequate provision for a long term spouse. It is this case which is the origin of the “Crisp order” (i.e. a portable life estate).

In Crisp, a widow of 38 years made a family provision claim against the will of her husband, under which she was left a mere right of residence in the matrimonial home. The couple had no children and the husband wished to preserve the capital of his estate for his siblings and their children.

The Court found that the provision made for the widow was inadequate having regard to the large size of the estate, the long duration of the marriage, the lack of competing claims and the lifestyle to which the widow had become accustomed. A mere right to reside unduly restricted the widow’s personal liberty and choice of where to live.

Instead, the Court determined that the capital value of the matrimonial home ought to be made available in the nature of accommodation fund, to assist the widow to secure alternative accommodation as and when her needs changed, even if it involved payment out of capital that would not be recoverable.1 And so the “Crisp order” was born – ie an order in the nature of a flexible life interest, striking a balance between the accommodation needs of the spouse on the one hand, and, on the other, the testator’s desire to preserve the capital for the benefit of his or her own children.

While a flexible life interest is a step up from a mere right to reside, the result in Crisp is a product of community attitudes in 1979. In circumstances where the estate was large, the marriage was long and there were no other competing moral claims on the estate, the widow would

20 | BRIEF AUGUST 2020

Salmon and Anor v Blackford,2 decided almost 20 years after Crisp, evidences a shift in community attitudes, over that time, as to what constitutes proper and adequate provision for a second spouse and in particular, as to what being secure in one’s home means.

In Salmon, the second spouse had been married to the deceased for some 30 years. By his will, the late husband left her a life interest in the matrimonial home (subject to her paying all outgoings) with the residue passing to the husband’s 3 daughters from a prior marriage.

Taking into account the following factors, the court granted the second spouse an absolute interest in the matrimonial home (worth around $275,000) in lieu of the life interest left to her under the will: •

the long duration of the marriage

•

the second spouse’s contribution to the deceased’s welfare and her contribution as a home maker

•

the size of the estate (it had a net value of around $550,000)

•

the second spouse’s need for security and independence

•

the fact that all of the daughters were in a comfortable position in their own right.

Unlike Crisp, security of accommodation for the second spouse in Salmon took the form of an absolute interest in the matrimonial home, rather than a flexible life interest, leaving the second spouse in a position where she was independent and in control of her own destiny, rather than beholden to two of her stepchildren, in their capacity as executors and trustees of her late husband’s will.

Notwithstanding the result in Salmon, it must be borne in mind that family provision cases are highly fact-specific and undoubtedly there will still be cases today where the court favours a Crisp order over an absolute interest.

Manley v Anderson A case in point is Manley v Anderson.3 In the context of an estate worth ~$5.4m, the de-facto husband of 19 years was left with a mere right of residence in the matrimonial home (worth ~$950,000) subject to him paying the outgoings, together with an annuity of $600 per month. The balance of the estate was left to the children and grandchildren of the testator.

The de-facto husband asserted that a mere right of residence in the matrimonial home was insufficient and sought an order that the matrimonial home be transferred to him absolutely. However, rather than granting the de-facto husband an absolute interest in the matrimonial home, the court made a Crisp order.

Having regard to the length of the relationship, the outcome of this case is a bit surprising, although it was only decided 9 years ago. It’s not clear how or whether the concepts of security and independence were factored into the decision, since the de-facto husband was left in a position where he was beholden to the deceased’s daughter, in her capacity as executor, to facilitate a move to alternative accommodation.

Perhaps the outcome can be explained by reference to the fact that the de-facto husband was 80 at the time of trial (with a life expectancy of 8 years), had assets in his own right worth ~$895,000 and a net annual income of about ~$56,000. Still, it was a very large estate.

Ng v Lau; In the Estate of Ken Kui Yen Lau The 2020 decision of the NSWSC in Ng v Lau; In the Estate of Ken Kui Yen Lau4 demonstrates that a Crisp order need not necessarily deprive the surviving spouse of his or her independence. In this case, the second spouse of some 17 years was left with a life interest in the matrimonial home; the remainder interest passing to the deceased’s son.

The second spouse, aged 74, sought an absolute interest in the matrimonial home in lieu of the life interest left to her under the will. However, the court determined that further provision should be made by way of a Crisp order, noting that such an order would enable the second spouse to continue to reside in the matrimonial home for as long as she desired or was able, with the security and flexibility to change her accommodation as she aged.

The court accepted that there can be circumstances which weigh against the making of a Crisp order, including where the widow is left beholden to the stepchildren in a situation where the relationship between them is hostile.

However, in this case, while the court recognised that the relationship between the second spouse and the deceased’s adult son had its difficulties, the court determined that that was sufficiently addressed in practice by the concession made by the adult son that he would resign as co-executor of the will if a Crisp order were made, leaving the second spouse to continue as sole executor. In this way, the independence of the second

spouse could be assured.

To further explain the outcome of this decision, bearing in mind the second spouse had been in a relationship with the deceased for 17 years: •

the second spouse had assets in her own right worth ~$1.1m

•

in addition, the second spouse had an income of $54,000 per annum (including an additional amount of $19,319 per annum, which the second spouse commenced receiving from the deceased’s Comsuper pension upon his death)

The court found that the second spouse’s own financial circumstances demonstrated that she maintained a level of financial independence unconnected to any gifts left to her under will, although that did not conclusively militate against her claim to further provision.

Hawking v Ventura I want to go back to 2016 now and look at Hawking v Ventura.5 This case involved a claim by the domestic partner of Owen Brown.

The plaintiff and Mr Brown had been in a relationship for 13 years prior to his death.

In the context of an estate worth ~$1.7m, the deceased left the plaintiff with a life

interest in the matrimonial home, together with income from an investment of $500,000. The balance was left between his 7 children from an earlier relationship.

The concepts of security and independence are prominent in Hawking, indicative of the shift in community attitudes towards spouse claims.

The plaintiff was impecunious. She sought provision from the estate to the extent of an absolute interest in the matrimonial home plus $500,000. And she succeeded.

Steinmetz v Shannon

The court granted the plaintiff outright ownership of the matrimonial home, noting that it would provide her with more flexibility and greater security. A life interest was unsuitable because it would not enable the plaintiff to maintain herself independently and autonomously.

The court also determined that the plaintiff should be entitled to the capital sum of $500,000 absolutely, rather than a mere right to the income generated by that sum. That would provide the plaintiff with the autonomy to invest it as she saw fit. It would enable her to draw upon the capital sum to meet the vicissitudes of life and provide her with some independence.

The court noted that the plaintiff’s life expectancy was another 21 years. The estate was sizeable and there were no competing claims. The court considered that the plaintiff was entitled to enjoy a standard of living to which she had become accustomed.

Independence and autonomy also feature in this next, and last case, I want to mention: Steinmetz v Shannon.6 This case involved a claim by a second wife against the sizeable estate (~$6.8m) of her late husband, with whom she had been together for 28 years.

By his will, the deceased left his second wife (aged 65) the contents of the residence they had shared as a couple. The rest of the estate was left to the deceased’s 2 children by his first marriage, subject to a proviso they pay the second wife an indexed annuity of $52,000 for the rest of her life.

In her own right the second wife (who was 65 at the time of her husband’s death) had assets worth ~$727,000 and it had been the practice of the couple not to comingle their property.

By her claim, the second wife sought an amount of $2m (in lieu of the annuity which had a present value of $880,000).

On appeal, the second wife was awarded $1m for accommodation, together with $750,000 to maintain her in the style and 21

station which she enjoyed during her late husband’s lifetime.7 White JA considered that, having regard to the size of the estate, which was ample to meet all competing claims, the provision of an annuity of $52,000 per annum was manifestly inadequate for the second wife’s maintenance having regard to her moral claim on the estate as the de-facto partner or wife of some 28 years, including the last 15 years as the deceased’s full-time carer8.

Brereton JA agreed, holding at [87]: “In the context of a marriage of this length, in which on any view the appellant had made sustained and substantial contributions to the welfare of the deceased, where there was no-one else responsible for her maintenance, with an estate of this size, and absent any competing claim, provision which did not allow her to retain ‘the benefits, the security, the holidays, the comforts and the additional financial advantages that she enjoyed during her relationship with the deceased’ was not adequate for her proper maintenance and advancement.”

As to the insufficiency of the annuity, Brereton JA held at [144]: “Quite apart from the question of its form and enforceability, however, to leave a 65 year old widow reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, rather than placing her in control of her own resources, is in this day and age not an appropriate form of provision for a widow who is well and truly capable of managing her own affairs and where there have historically been tensions between her and at least the first respondent. However reliable the respondents might be, this form of provision effectively obliges her to have an ongoing relationship with them, and to trust them to perform the obligation, and does not afford her the independence and self-reliance which, according to today’s community standards, a widow should have. It is not only rigid and paternalistic, but demeaning and controlling.”

Note the importance attributed to independence and self-reliance, which Brereton JA evidently considered a spouse should enjoy, according to today’s community standards.

Today While the passage from the judgement of Powell J in Luciano v Rosenblum set out above still rings true today, I think

22 | BRIEF AUGUST 2020

financial adjustment. In my view, the community expects a testator to provide for his or her spouse financially no less than her entitlement upon matrimonial property adjustment on divorce.”

the community’s expectation of what it means to be secure in one’s home has shifted.

At a minimum, being secure in one’s home must now be regarded as including the flexibility to change one’s accommodation in the future. So a mere right to reside or even a rigid life interest is unlikely to hit the mark, although a flexible life interest may do.

While the grant of an absolute interest in the matrimonial home is obviously the best scenario for a spouse claimant, it must be accepted that there are circumstances in which a Crisp order will be regarded by the court as more appropriate.

A Crisp order can achieve both security and flexibility of accommodation.

However, it cannot achieve independence, autonomy and selfreliance, unless the second spouse has control over the will trust and so left in charge of his or her own destiny. In that regard, I hope that the approach taken by Kunc J in Ng v Lau; In the Estate of Ken Kui Yen Lau is followed in the future.

It must be acknowledged that, notwithstanding general principles, it can be difficult to predict the outcome of family provision cases, spouse claims included. They are highly fact-specific and the jurisdiction discretionary in nature (informed by the notion of community expectations).

I do wonder how the court tackles the notion of community expectations. It’s a pretty nebulous concept in some respects and must of necessity involve a subjective element. A more objective frame of reference would be helpful, if one could be found.

In Steinmetz v Shannon, Brereton JA made some interesting observations at [148]-[149] about “cross-checking” what the second wife might have obtained by way of financial adjustment under the Family Law Act 1975, had the marriage ended by divorce, rather than death. At [148] Brereton JA observed: “While the considerations that inform matrimonial property adjustment under Family Law Act, s 79, are not identical to those referred to in Succession Act, s 60(2), there is a substantial overlap. Moreover, there is neither social sense nor legal logic in parallel regimes that would have the consequence that the widow of a marriage that endures is left worse off than would have been the case had she separated from her husband immediately before his death and commenced proceedings for matrimonial

I’m not a family lawyer, but I would hazard a guess that in many circumstances a spouse would do better in a financial adjustment order under the Family Law Act than in an order for proper and adequate provision under the Family Provision Act. And I agree with Brereton JA that it does not make sense that a widow of a marriage that endures is left worse off than would have been the case if she had separated from her husband immediately before his death and commenced proceedings for matrimonial financial adjustment.

If Brereton JA is right, and the community does expect a testator to provide for his or her spouse financially no less than her entitlement upon matrimonial property adjustment on divorce, then perhaps a widow/er should have the right to elect, upon the death of his or her spouse, whether to pursue a claim for proper and adequate provision in the Supreme Court or, in the alternative, a claim for financial adjustment in the Family Court.

Such a right of election is in my opinion consistent with the growing emphasis on independence, autonomy and selfreliance. I also believe it would make it a bit easier for testators to work out what testamentary provision they should, or are expected to make for their long-term second spouse, and discourage them from shifting assets out of their name in an effort to thwart a prospective family provision claim by the second spouse.

Endnotes 1 2 3 4 5 6 7 8

Crisp v Burns Philp Trustee Company Limited (NSWSC, per Holland J, 18 December 1979, unreported) at p12.

Salmon and Anor v Blackford [1997] NSWCA 274 (BC9700319).

Manley v Anderson [2011] NSWSC 1013.

Ng v Lau; In the Estate of Ken Kui Yen Lau [2020] NSWSC 713.

Hawking v Ventura [2016] VSC 258.

Steinmetz v Shannon [2019] NSWCA 114.

Shannon v Steinmetz [2019] NSWCA 114 at [146].

Shannon v Steinmetz [2019] NSWCA 114 at [36].

Stick to the Fundamentals and Your Firm Can Become – and Remain – Viable

By Rob Knowsley Principal, Knowsley Management Services

Many legal practices become unviable because the principals do not adequately understand the need for genuine profitability and liquidity, but they can turn it around by focusing on some simple fundamentals, writes Rob Knowsley.

The viability of legal practice is again the flavour of the month.

Lawyers are often counselled to look hard at how technology can assist them with the future viability of their practice, no doubt because suitable technology, properly used, is perceived to have the ability to reduce labour inputs while getting various tasks performed well.

In turn, this should free up time to handle more matters, and thus generate additional revenues. It should also reduce errors that need to be rectified, which cost the practice time and money that cannot be recovered, reducing potential revenues.

However, in most practices that I examine which have poor profitability (and which, therefore, have very suspect viability) the people who should be considering important changes to the operation of the practice, including smart use of good technology, are too busy being busy as they try to keep the practice afloat. That means they cannot properly address the fundamentals of existing problems, let alone prioritise steps to take and organise their effective implementation.

Furthermore, in such practices cash is all too often under great pressure. Put simply, principals juggling cash to keep the practice afloat, while not even drawing

a proper salary for themselves, are often not quick to seek external assistance to put them on the right track.

Profitability and liquidity the key Viability is tied up with genuine profitability and liquidity. Both these elements have many aspects that need to be attacked consistently at a fundamental level, and both are very dynamic and can get out of control quickly when even well-designed practice processes are insufficiently adhered to, and when that lack of adherence is not addressed.

Readers of earlier articles (see list below) will know that I stress the importance of genuine profitability simply because too many lawyers do not yet act as if they fully ‘get’ that their practice is not actually profitable if it can’t produce a real profit return after providing a proper salary for their work. Profit is not a return for your work; it is a return over and above your salary (actual or notional) for running a very sound business.

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As I did research for this article, I came across articles that compound this misconception, with one legal practice management consultant writing a recent article setting out his understanding that a good legal practice will have profitability in the range of 40 per cent to 45 per cent of revenues … and sometimes 50 per cent! After making allowance for a proper salary for principals, I would more often expect to see profit in a range between 12 per cent and 22 per cent of revenues.

Note that even practices with margins at the low end of this range can generate exceptionally good returns per principal – it is certainly ‘all in the particular numbers’.

In practices with suspect viability, genuine profits are very often non-existent, and all sorts of consequent issues are obvious as soon as some basic investigation is carried out. In looking into definitions of ‘viability’ as my starting point for another article a short while back, I came across this from the Australian Taxation Office: “Viability is defined as the ability to survive. In a business sense, that ability to survive is ultimately linked to financial performance and position. A business is viable where either:

Readers will immediately note that the definition assumes a return to the business owner, and the need for sufficient cash resources for unprofitable periods.

My advice to the big majority of firms that are generating poor profits, with all the natural consequences that brings the longer it goes, is to immediately focus on a few key fundamentals that will make a great difference to profitability and cash (liquidity) in the short term.

More difficult, time-consuming and potentially stressful decisions can usually wait until there is ample cash available and the Gordian Knot is untied (or simply sliced clean through).

The fundamentals…

Any firm needs enough of the right sorts of matters to keep the resources it intends to keep investing in fully occupied. That enables the firm to generate the revenues needed to create a healthy profit margin.

As principals, you need to identify exactly what would be needed, and how to get the volume coming in.

•

it is returning a profit that is sufficient to provide a return to the business owner while also meeting its commitments to business creditors

Everyone involved needs training so they can properly conduct all communication with each prospective client from the outset. This involves attentive listening, and asking permission to ask questions, so that the prospect’s need for assistance can be properly elicited.

•

it has sufficient cash resources to sustain itself through a period when it is not returning a profit.”

It also involves explaining what you will, and will not, be able to do to assist, how you will do it, and what the potential

24 | BRIEF AUGUST 2020

benefits will be for the prospect. You need to professionally help the client to arrive at an agreement with you on the likely cost to them, so they can work out in their own mind, in their own time, a personal cost-benefit analysis on their potential investment.

Disclosure requirements are mandatory and commercially sensible, so you should also establish credit terms and ensure they are implemented, including, everywhere relevant, retainer funds in trust.

Process the work promptly and efficiently while communicating well with the client at all times.

Bill as promised, and ensure very prompt collection.

Doing all the above in enough volume to generate revenues that will create a healthy profit margin will go a long way to ensuring viability.

Finally, when there is temporarily not enough client file work to keep your resources busy, use their spare time to do a greater volume of pragmatic business development so as to increase enquiries for the kind of instructions you consider most desirable. There is no silver bullet for practice viability. There is in any event no need for such a miracle because running the practice soundly, and according to the fundamentals, will always do the trick.

Climate Change Concerns for Planning in WA: Lessons from the Gloucester Mines Decision

By Belinda Moharich Moharich and More

The modern origins of town planning commenced in the late 1800’s with the advent of industrialisation and the need for city builders to consider how better to plan for larger populations living within cities.

During the 19th century, industrialised cities had grown at a significant rate, with the pace and style of development largely dictated by individual landowners or corporations. The evils of urban life for the working poor were becoming increasingly evident as a matter for public concern.

The laissez faire style of government was starting to give way to a New Liberalism, which encouraged intervention on the part of the poor and disadvantaged.

In a tangible sense, this movement manifested in an attempt to provide the factory workers of the city with healthier environments. This led to the first sets of rules for things such as the provision of adequate sanitation and requirements for sunlight penetration into tenement buildings.

It also saw the advent of the discipline and profession of town planning – the first academic planning program began at the University of Liverpool in 1909.

Here in Western Australia our Government was grappling with the same issues – the Town Planning Association of Western Australia was inaugurated on the 31st of March in 1916, and they were instrumental in the passing of the Town Planning and Development Act 1928 which remained in place until it was repealed on the coming into operation of our current Act, the Planning and Development Act 2005.

The discipline of town planning has, during this modern era of planning, been the ultimate shape shifter – as noted, 120 years ago, the concerns raised related to health of factory workers – giving rise

to rules regarding sanitation and the like, and movements such as Ebenezer Howard’s Garden City movement.

From those early days, the art of plan making and the concept of the city as a machine - segregating particular uses into zones was born.

In the 1960s and 1970s there was a backlash to this modernist concept of the city as a machine, and the New Urbanism movement began which proposed walkable cities that retain their local character.

And at each of those junctures, planning frameworks and the laws governing them were amended to have regard to those issues that were important to the community – to the extent that today, there are a number of considerations – as are borne out in the list in clause 67 of Schedule 2 of the Planning and Development (Local Planning Scheme) Regulations 2015 (known as the Deemed Provisions) – to which a planning decision-maker is to have regard in determining an application –

Matters to be considered by local government In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application — (a) the aims and provisions of this Scheme and any other local planning

scheme operating within the Scheme area; (b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving; (c) any approved State planning policy; (d) any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d); (e) any policy of the Commission; (f) any policy of the State; (g) any local planning policy for the Scheme area; (h) any structure plan, activity centre plan or local development plan that relates to the development; (i)

any report of the review of the local planning scheme that has been published under the Planning and Development (Local Planning Schemes) Regulations 2015;

(j)

in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve;

(k) the built heritage conservation of any place that is of cultural significance; (l)

the effect of the proposal on the cultural heritage significance of the area in which the development is located;

(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of

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the height, bulk, scale, orientation and appearance of the development; (n) the amenity of the locality including the following — (i) environmental impacts of the development; (ii) the character of the locality; (iii) social impacts of the development; (o) the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource; (p) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved; (q) the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk; (r) the suitability of the land for the development taking into account the possible risk to human health or safety; (s) the adequacy of — (i) the proposed means of access to and egress from the site; and (ii) arrangements for the loading, unloading, manoeuvring and parking of vehicles; (t)

the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;

(u) the availability and adequacy for the development of the following — (i) public transport services; (ii) public utility services; (iii) storage, management and collection of waste; (iv) access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities); (v) access by older people and people with disability; (v)

the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses;

(w) the history of the site where the development is to be located; 26 | BRIEF AUGUST 2020

(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals; (y) any submissions received on the application; (za) the comments or submissions received from any authority consulted under clause 66; (zb) any other planning consideration the local government considers appropriate.’

More recently, the issue of sustainable development, and sustainability generally – has emerged as a guiding issue for urban planning.

And with that slightly long-winded introduction, what I will be speaking about today is recent case law relating to sustainability as a relevant planning consideration, in light of the Gloucester decision.

Framework Sustainability as a development concept was enshrined in 1987 in a report called Our Common Future that was published by the United Nations. This document sought to discuss environment and development as one single issue.

The publication of Our Common Future laid the groundwork for the convening of the1992 Earth Summit and the adoption of Agenda 21, the Rio Declaration and to the establishment of the Commission on Sustainable Development.

An oft-quoted definition of sustainable development is defined in the report as: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

In Western Australia, sustainability has been enshrined in our planning legislation since the commencement of the Planning and Development Act 2005 in 2006.

Section 3(1)(c) provides – ‘The purposes of this Act are to – (a) consolidate (various pieces of legislation); (b) provide for an efficient and effective land use planning system in the State; and (c) propose the sustainable use and development of land in the State.’

I am going to return to the way in which the courts in Western Australian have dealt with sustainability as a planning

consideration in a moment, but first, I would like to speak about a recent decision of the New South Wales Land and Environment Court and two from the NSW Independent Planning Commission which I think encapsulate the way this issue of sustainability can be considered in a planning sense – and the changing appetite for these issues to be considered in the context of a development approval.

Before I begin though, I should note – unlike the practice in Western Australia set out in the Mining Act 1978, mines in New South Wales require development consent. Therefore the decisions in New South Wales are not directly applicable in a planning sense, although the reasoning may have broader application.

Rocky Hill Mine The first decision is Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7. This was a decision of His Honour Chief Justice Preston, of the Land and Environment Court. The Land and Environment Court is the equivalent of our State Administrative Tribunal in respect to reviews of planning decisions.

This case related to Gloucester Resources Limited’s (GRL) application for an open cut coal mine, known as the Rocky Hill Coal Project.

The proposed coal mine was located close to the town of Gloucester, which is located inland from Forster on New South Wales’ central coast.

The proposal was to extract 21 million tonnes of coal over a 16 year period – with a total period of activity of 21 years when the site establishment and construction at the commencement of the project, and the closure activities such as back-filling and rehabilitation was taken into account.

By industry standards it should be noted that what was proposed was not a particularly large mine.

The application was refused in the first instance by the NSW Planning Assessment Commission (now superseded by the Independent Planning Commission), and GRL appealed the decision to the Land and Environment Court.

The development application was refused by the Planning Assessment Commission primarily due to an inconsistency of the proposal with the objectives of the zoning of the land, the significant visual impacts of the mine and that the project was not in the public interest.

Notably, the predicted greenhouse gas

emissions of the project and any resulting impact on climate change was not a reason for refusal.

However, when the appeal was instituted, a local interest group called ‘Gloucester Groundswell’ applied for, and were successful in being joined as a party to the proceedings.

The basis of its application for joinder was that it was able to raise two issues that were not otherwise going to be addressed in the proceedings – those being the unacceptable social impacts on the community, and the impact of the development on greenhouse gases.

Groundswell contended that the Rocky Hill Coal Project should be refused because the greenhouse gas emissions from the Project would adversely impact upon measures to limit dangerous anthropogenic climate change.

Groundswell argued that the effects of carbon in the atmosphere arising from activities at the proposed mine, and the burning of the coal extracted from the mine, were inconsistent with existing carbon budget and policy intentions to keep global temperature increases to below 1.5º to 2º Celsius (C) above pre-industrial levels and would have a cumulative effect on climate change effects in the long term.

Groundswell submitted, “in light of that substantial planning harm, and the critical importance of combatting climate change now, the Project should be refused”.

Groundswell developed this argument by explaining that there were a number of greenhouse gases that would be emitted because of the project – both at the project site and beyond. Using the Greenhouse Gas Protocol’s definitions, those emissions were categorised as Scope 1, 2 or 3 – Scope 1 emissions are direct

emissions from owned or controlled sources. In this case, that included emissions from GRL in the undertaking of mining activities, and the combustion of fuels used in the mining plant and equipment.

Scope 2 emissions are indirect emissions from the generation of purchased energy. Scope 2 emissions physically occur outside the boundary of the coal mine, such as at the power station that generates the electricity that is purchased for the coal mine to operate.

Scope 3 emissions are all indirect emissions (not included in scope 2) that occur in the chain of activities related to the project, including both upstream and downstream emissions – for example this would include the emissions generated by the transportation of purchased fuel or other materials or products, and perhaps more importantly, the use of the coal that was mined by end users.

The court took some 50 pages of the 205 page judgment setting out the history of case law throughout Australia and the United States on this issue, and in particular the capacity for a planning decision-maker to take into account Scope 3 emissions in considering the impact of greenhouse gases in the project.

Ultimately, the Court refused the application on the basis that approving the Project would adversely impact the visual amenity and rural and scenic character of the valley, the community and the existing, approved and likely preferred uses of the land in the vicinity of the proposed mine. Whilst His Honour held that the project should be refused based on these impacts alone, he also held that ‘Greenhouse gas emissions of the project and their likely contribution

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to adverse impacts on the climate system, environment and people adds a further reason for refusal.’

It is this additional reason for refusal, and his Honour’s reasoning in coming to this conclusion, that has made this judgment particularly controversial.

In relation to greenhouse gas emissions, his Honour’s reasoning can be summarised as follows: In considering impacts of a proposed development on the environment and in consideration of principles of ecologically sustainable development, both direct and indirect greenhouse gas emissions should be considered, as should consideration of climate change.

It does not matter that the emissions of the project may represent only a small fraction of the global total of greenhouse gas emissions. The global problem of climate change needs to be addressed by multiple local actions to mitigate emissions by sources.

There is a causal link between the project’s cumulative greenhouse gas emissions and climate change and its consequences. The exploitation and burning of a new fossil fuel reserve cannot assist in achieving the reductions in greenhouse gas emissions that are necessary in order to achieve the 1.5 to 2 degree goal in the Paris Agreement.

In the context of planning law, what is very interesting about this case is the capacity for decision-makers to take into account activities that are completely remote from the activity being assessed.

So for example, in this case, the fact that the coal extracted was to be burnt somewhere else – in a location that might be completely removed from the planning jurisdiction or even Australia, was considered to be a relevant planning

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consideration.

The other interesting point is that there is no requirement for that offsite impact to be unacceptable in its own right – if it adds to a cumulative impact, that is enough.

I should note – GRL decided not to appeal this decision – and so the decision will not be overturned. In one sense I am slightly disappointed by this – it would have been interesting to see how higher courts dealt with the issues raised and it might have had broader application in other jurisdictions had that been the case.

At the time the decision was published, a number of planning and environment lawyers in New South Wales made comments in the media about the impact that the Gloucester decision would have on future applications. Well, that position has come to pass, with two further decisions handed down by the Independent Planning Commission (IPC) since the Gloucester decision.

United Wambo Open Cut Coal Mine Project The first of those is the decision in the United Wambo Open Cut Coal Mine Project, handed down on 29 August 2019.

This project is a joint venture between Glencore Coal Pty Limited and Peabody Energy Australia Limited.

The Wambo mine proposal is in the Hunter Valley coalfield, and adjacent to two existing mines – the effect of the approval of the new mine would be to integrate open cut mining operations across the two existing mines.

Concerns about local environmental and social issues were not as important in this case compared with the Rocky Hill mine, or the Bylong project which I’ll speak about next, because the mine was to be located in an area considered to be a brownfield site, already impacted by mining operations.

However, the IPC did look carefully at the GHG emissions from the proposed mine. In respect of Scope 1 and Scope 2 emissions, the IPC was satisfied that the mine, to be operated jointly with two existing mines, would provide economies of scale to reduce these emissions.

They were concerned however about the impact of Scope 3 emissions – as I’ve mentioned earlier – these are the ‘end user’ emissions. Their view was that having regard to the Gloucester decision, and the requirement to consider environmental issues, those Scope 3 emissions needed to be managed.

28 | BRIEF AUGUST 2020

And the way they did that in this case, was impose conditions which obligate the Applicant to only sell its coal to countries who are signatories to the Paris Agreement.

The conditions relating to this point are in the following terms – The Applicant must prepare an Export Management Plan for the development to the satisfaction of the Planning Secretary. This plan must set out protocols that require the Applicant to use all reasonable and feasible measures to ensure that any coal extracted from the development that is to be exported from Australia, is only exported to countries that are: a) parties to the Paris Agreement within the United Nations Framework Convention on Climate Change; or b)

countries that the Planning Secretary considers have policies for reducing greenhouse gas emissions that would otherwise be similar to policies that would be required of that country if it were a party to the Agreement at (a) above;

as at the date of sale. The purpose of the Export Management Plan is to ensure that all reasonable and feasible measures are adopted by the Applicant to minimise greenhouse gas emissions identified as Scope 3 emissions in the EIS to the greatest extent practicable.

The Applicant must not commence Phase 1B until the Export Management Plan is approved by the Planning Secretary.

The Applicant must implement the Export Management Plan as approved by the Planning Secretary for the life of the development. The Planning Secretary may determine that the Export Management Plan should be amended if it is satisfied that a change to obligations arising under the United Nations Framework Convention on Climate Change or Paris Agreement, or the policies of a country that is within B32(b) above, necessitates an amendment to the Export Management Plan.

The Planning Secretary may determine that the Applicant is no longer required to implement the Export Management Plan if due to the existence of other State or Federal legal mechanisms introduced by the NSW or Commonwealth Governments regulating the subject matter of the Export Management Plan, there is

no longer any need for the Export Management Plan to be implemented by the Applicant.

There is a test that is to be applied to the validity of conditions of planning approval, relating to nexus and reasonableness. In this case, the IPC justified the conditions that had been imposed in the following way – [311] Accordingly, the Commission finds that the Scope 3 Conditions are: •

for a planning purpose, as it mitigates an environmental impact caused by the Project and is responsive to the requirements of the Mining SEPP;

•

is related to the development; and

•

is a reasonable measure over which the Applicant has some control.

As a result, the Commission is of the view that a condition requiring the sale of extracted product coal for export to countries that are parties to the Paris Agreement or that otherwise have equivalent domestic policies for reducing greenhouse gas emissions at the date of sale, meets the Newbury tests for a lawful condition.’

Bylong Coal Project The second is the Bylong Coal Project, a project proposed by KEPCO Australia Pty Ltd for an open-cut and underground coal mine in the Bylong Valley, located about 55km north-east of Mudgee.

On 18 September 2019, the IPC refused the application for a number of reasons including groundwater impacts, that there were land use conflicts with productive agricultural land uses, that the land could not be rehabilitated to the standard required under the planning framework among other reasons. Of relevance in this forum however, is the reliance on the Gloucester decision in respect of the impact of coal on climate change.

The IPC took the view that the general obligations in sections 4.15(1) of the Environmental Planning and Assessment Act 1979 to among other things, take into account the likely impacts of the development, including environmental impact, and to take into account the public interest (including the principles of ecologically sustainable development) allowed them to consider matters such as climate change.

Interestingly the IPC had regard to New South Wales policy that sat outside of the mainstream planning framework – the NSW Climate Change Policy

Framework which seeks to achieve a net-zero emission target by 2050. The State Government in their submissions argued that this document did not have direct application in the assessment of development applications, however the IPC was of the view that it was open for them to consider this document in coming to their determination.

The argument was also put that the mine would provide only a very small impact in the context of the targets for the Paris Agreement – in the amount of 0.03%.

Citing the Gloucester decision the IPC noted that it does not matter that it is only a small fraction because ‘climate change needs to be addressed by multiple local actions to mitigate emissions by sources’.

There are three reasons why the decision is important here in Western Australia – First, like the New South Wales system, our Planning and Development Act lists as an objective ‘sustainable development.’

Secondly, the decision certainly sets a much higher emphasis on this issue of sustainable development in a way that has not been formulated before, and no doubt there will be a ripple effect throughout the country as these issues are considered, particularly with the current backdrop of environmental activism and a heightened urgency to act in ways that mitigates further environmental harm.

Thirdly, the decision has the capacity to be applied to different factual scenarios – it could, for example, be used to refuse a subdivision on the edge of the metropolitan region, if there was a good argument that approving the development could lead to greater car usage – or it could be used to prevent the development of an intensive feedlot because of the generation of methane.

Western Australia In the Western Australian context, there have been three decisions of the Tribunal since the commencement of the Planning and Development Act 2005 which have made reference to this issue of sustainability.

In the decision of Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59, the Tribunal recognised that – ‘sustainability is now a core element of orderly and proper planning’.

In that decision, the Tribunal gave

meaning and effect to the term ‘sustainable use and development’ by reference to the – •

Western Australian State Sustainability Strategy,

•

SPPs which were drafted having regard to that Strategy,

•

local planning policies and

•

the decisions of other environmental courts and Tribunals.

When one considers that approach, you can see how the decision in Gloucester will find favour in Western Australia.

In the decision of Mount Lawley the dispute arose as to whether sand extraction should be allowed for Mount Lawley to use to achieve appropriate site levels in its adjoining subdivision development. The WAPC objected to the removal of the sand because it would be needed by Main Roads for the construction of the proposed PerthDarwin Highway.

The evidence before the Tribunal was that if Mount Lawley were unable to use this sand, they would have to transport it from somewhere else, sending over 101,00 cubic metres of fill in 11,000 truck movements through the existing residential estate of Ellenbrook. This was to be compared with the needs of Main Roads, which was 50,000 cubic metres of fill, that would be transported on the regional road network.

In approving the application, the Tribunal relied upon the principles of sustainability as that term related to social, environmental and economic impacts of the proposal.

Following on from that 2007 decision was the decision in Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71, which allowed the extension of approved operating hours of a concrete batching plant in East Perth.

In that case, the Tribunal approved the application, in part on the basis that the location of the concrete batching plant was proximate to the CBD and regional road network and therefore reduced carbon emissions for travel.

The most recent decision in this line of case law was handed down in January of this year – Robertson and City of Albany [2019] WASAT 3.

In this case, what was proposed was an application for an extractive industry on the Nullaki Peninsula in Albany to extract limestone for the use as a road base, but also for farmers to add to their soils to neutralise acidity.

The evidence before the Tribunal was that limestone was in limited supply locally, and that farmers in the Great Southern Region were required to purchase their limestone from the Margaret River area, requiring truck movements to and from those regions to fulfil orders.

The Tribunal in this case determined that – ‘the proposed development is consistent with the objective of the PD Act to ‘promote the sustainable use and development of land in the State’ and the aim of the Scheme to ‘[p]romote the sustainable management of all natural resources … to prevent land degradation …’.

This is because the proposed development would reduce carbon emissions by reduced travel distances to supply lime to farmers in the Great Southern Region and would mitigate the significant environmental problem of land degradation through soil acidification by the supply of lime. The proposed development is therefore consistent with the sustainable development principles of sustainable use and effective integration of economic, social and environmental considerations in the decision making process.’

So what can be gleaned from these decisions – First, given the fact that the Robertson decision is one that is very recent, it is clear that this issue of sustainability is still considered to be a relevant consideration in the determination of development applications, notwithstanding the fact it is not specifically mentioned in clause 67 of the Deemed Provisions; Secondly, in each of these decisions, the concept of sustainability has been used to justify the approval of an application rather than its refusal.

Thirdly, each decision related to the impact of transport emissions to get the product to its end user, which under the Greenhouse Gas Protocol definitions, would be considered a Scope 1 emission.

In conclusion - in terms of what we might expect in Western Australia – in light of the Gloucester decision – may be more arguments where sustainability is used as a reason for refusal, and potentially a much broader reach in that argument – taking into account Scope 2 and Scope 3 emissions to justify that a proposal does not constitute sustainable development.

The challenge where these issues are raised, will be balancing these issues of sustainable development against the suite of other relevant considerations.

29

Time Children had the Same Protection from the Use of Physical Force as Adults

By Linda Savage Ambassador for Children and Young People in Western Australia

In 1994, the Chief Justice David Malcom’s ‘Taskforce on Gender Bias’ recommended the government commence a ‘committed, co-ordinated and concentrated campaign of awareness’ about domestic violence.1 It was to counter attitudes, still prevalent when the Taskforce reported, that ‘a man’s house was his castle’: that what happened behind closed doors, including the use of physical force, was between a man and his wife: that it was different from other crimes. The invisible line between the public and the private was so embedded, that the Taskforce recommended that police be required to actively collect evidence, interview witnesses and investigate allegations of crimes involving domestic violence. That police training must include a unit on domestic violence. 2 A quarter of a century later, the majority of Australians now have a good understanding of violence against women.

Few believe that violence of any kind against women can be justified, a change in attitudes believed to be essential to stemming the high rates of violence against women by partners and former partners.3 Governments too understand the scourge of ‘domestic terrorism’, as evidenced by their commitment of millions of dollars to support Australians experiencing domestic, family and sexual violence due to the fallout from Coronavirus.4 Australia’s response to domestic and family violence in the last decade has been propelled by the National Plan to Reduce Violence against Women and 30 | BRIEF AUGUST 2020

their Children (2010-2022).

The National Plan’s vision is an Australia free from all forms of violence and abuse, including physical, sexual, emotional, social, verbal, spiritual and economic, by current or former intimate partners or family members against women and children. Challenging legal and social acceptance of violence, and turning a blind eye to violence in the home, has been a fundamental part of women’s struggle for equal rights. Integral to changing attitudes is building consensus that violence, including the use of physical force, is never acceptable or defendable whether perpetrated by a stranger or a family member. Not slapping, belting, hitting or even threatening it. A It is an unqualified message that assaulting another is no longer tolerated in public or private.

It is why many people are surprised to learn that the use of physical force, ‘assault’, is acceptable and defendable in Australia when the person on the receiving end is a child. Australia’s children are specifically denied the legal protection from the use of physical force that adults take for granted when it is rebranded as corporal punishment, and is deemed to be “reasonable correction” or “reasonable chastisement”.

In Western Australia Section 257 of the

Criminal Code WA provides when the use of physical force against a child may be lawful.

Discipline of Children ‘It is lawful for a parent or a person in the place of a parent, or for a school master, to use by way of reasonable correction, towards a child or pupil under his care, such force as is reasonable under the circumstances.’

‘Reasonable correction’, a term more suited to Gilead and The Handmaid’s Tale, than 21st Century Australia, is not defined in the Criminal Code. Only NSW has tried, defining what is not reasonable as physical force that is not trivial, or negligible and that is applied to a child’s head or neck, or any other part of the body that results in bruising, marking or other injury lasting longer than a ‘short period’.5 The use of physical punishment to ‘correct’ behavior has a long and ugly history. Underpinning it is the belief that certain human beings are the property of others, and they have the right to use physical force if needed to ‘bring them into line’. For wives their husbands. For slaves their owners. For children, adults, especially their parents.

Historically children have been regarded as the absolute possessions of adults as Thomas Hobbes explained in ‘The Elements of the Law’ in 1640: ‘Children therefore, whether they be brought up and preserved by the father, or by the mother, or by whomsoever, are in most absolute subjection to him or her,

that so bringeth them up, or preserveth them. And they may alienate them, that is, assign his or her dominion, by selling, or giving them, in adoption or servitude to others; or may pawn them for hostages, kill them for rebellion, or sacrifice them for peace, by the law of nature, when he or she, in his or her conscience, think it to be necessary.’

It fitted well with the belief that children were less than fully human. A ‘blank slate’, as another philosopher John Locke wrote in his famous work ‘An Essay Concerning Human Understanding’ in 1690. Either intrinsically evil and in need of improvement to become a virtuous adult, or born innocent, but vulnerable to corruption by the adult world.

Attitudes to children have changed significantly, especially in the last fifty years, but the notion of children as possessions is still baked into our culture.

Research by the Valuing Children Initiative in 2016, reported that 70% of adults surveyed agreed that children ‘belong’ to their parents until they reach the age of 18.6 Perhaps it is not surprising then, that in 2017 Relationships Australia reported that 37% of men and 22% of women, said parents should be able to use corporal punishment to discipline their children.7 The United Nations Committee on the Rights of the Child defines corporal punishment or any physical punishment, as ‘punishment that is used and intended to cause some degree of pain or discomfort, however light.’8 The United Nations Convention on the Rights of the Child says that children must be protected from all forms of violence, including physical force. Not for the first time, in 2019, the Committee on the Rights of the Child, that monitors how countries fulfil their obligations, recommended Australia explicitly prohibit corporal punishment in law in all settings, including in the home, in public and private schools, in detention centres and in alternative care settings, and repeal the legal defence of “reasonable chastisement”. 9 So too have organisations like the Royal Australasian College of Physicians, the National Commissioner for Children and Young People and the former Chief Justice of the Family Court of Australia, Alistair Nicholson.

Little is known about the prevalence, chronicity, severity and nature of corporal punishment in the Australian context.10 Like sexual abuse in institutions, it almost always occurs behind closed doors, without witnesses and where those in charge, namely parents, have almost unchallenged authority. What is known though is that there is no clear benefit,

or positive outcome using corporal punishment. Rather the evidence shows there are negative outcomes for children including mental health problems, antisocial behavior, low self-esteem and a greater likelihood that a child may develop aggressive behavior themselves.11 Even mild physical punishment can reduce school engagement and cognitive performance.12 Shamefully, it is always an unfair fight.

Adults are big. Children are small. And the smaller they are, the more vulnerable they are. Children aged three to five, whose developmental state and size makes them particularly vulnerable to physical and psychological harm, are more likely than other children to be physically disciplined.

Children with disabilities, 3.6 times more likely.

When children are asked about their experience of physical punishment the common themes that emerge are that it hurts them physically; it arouses negative emotions including sadness, anger, fear and confusion; it models that using physical punishment is a means of resolving conflict; and occurs when parents are angry.13 Like the pattern of domestic violence, it carries the risk of escalating from a push or a slap and becoming progressively worse over time.

The reality is the undefined and opaque line between physical abuse of a child and acceptable physical discipline is impossible to draw. The Western Australian Department of Health tacitly acknowledges this in information published under the auspices of the WA Health Statewide Protection of Children Unit: ‘The point at which punishment begins to move into abuse is subjectively and culturally defined. In an effort to make this line objective many researchers and practitioners have used the presence, or absence of resultant physical injury to delineate the point at which punishment can be distinguished from abuse. However, this remains a contentious area and from the child’s perspective punishment that does not result in physical injury may still be experienced as abusive.’14 In 1979, Sweden became the first country to explicitly ban all forms of corporal punishment. It has led to a change in attitudes with support for corporal punishment among parents dropping from just above 50 percent to barely 10 percent since 1960.15 The most recent country to do so was Japan in 2019.

To date 59 countries have prohibited all corporal punishment of children, including in the home.16

Condoning the use of physical force against children is not only harmful to children and infringes their human right to protection from harm, but is out of step and contradicts the message that violence is never acceptable. Yet remarkably, neither the National Framework for Protecting Australia’s Children 2009 – 2020, nor the National Plan to Reduce Violence against Women and their Children (2010-2022) even address the issue of corporal punishment of children.

It is time the Western Australian Parliament took the lead in removing the defence allowing the use of physical force against children, and send a clear and unequivocal message that assaulting a child, for whatever reason, is as repugnant and out of step today as excuses used in the past to justify assaulting women.

Endnotes 1 Report of the Chief Justice’s Taskforce on Gender Bias.

30 June 1994 Recommendation 75.

2 Recommendations 78 & 90.

3 2017 National Community Attitudes towards Violence against Women Survey. https://www.anrows.org.au/ NCAS/2017/home/ (20 May 2020) The NCAS provides comprehensive national data about Australia’s attitudes towards violence against women; however, there are no comparable national data sources to measure attitudes about other forms of family and domestic violence, including against children or men.

4 Media Release 29 March 2020 https://www.pm.gov.au/ media/11-billion-support-more-mental-health-medicareand-domestic-violence-services-0 (20 May 2020) 5 Crimes Act 1900 No 40 (NSW) Sect 61AA. 6 The Valuing Children Initiative Benchmark Survey: 2016. http://valuingchildreninitiative.com.au/wp-content/ uploads/2019/06/Australians-Attitudes-to-Children-TheValuing-Children-Initiative-Benchmark-survey-2016.pdf (20 May 2020).

7 Relationships Australia. April 2017 -Corporal Punishment https://www.relationships.org.au/what-we-do/research/ online-survey/april-2017-corporal-punishment (20 May 2020).

8 UN Committee on the Rights of the Child (CRC), General comment No. 8 (2006): The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19; 28, Para. 2; and 37, inter alia), 2 March 2007, CRC/C/GC/8, available at: https://www.refworld.org/docid/460bc7772.html (20 May 2020).

9 UN Committee on the Rights of the Child. Concluding observations on the combined fifth and sixth periodic reports of Australia. 2019 https://tbinternet.ohchr. org/_layouts/15/treatybodyexternal/Download. aspx?symbolno=CRC/C/AUS/CO/5-6&Lang=En ( accessed 5 May 2020).

10 Poulsen, A 2019, Corporal punishment of children in the home in Australia: a review of the research reveals the need for data and knowledge. Children Australia. https:// www.researchgate.net/publication/333824904_Children_ Australia_Corporal_punishment_of_children_in_the_ home_in_Australia_a_review_of_the_research_reveals_ the_need_for_data_and_knowledge (20 May 2020).

11 Gershoff ET, Grogan-Kaylor A. Spanking and child outcomes: Old controversies and new meta-analyses. J Fam Psychol. 2016;30(4):453-469. doi:10.1037/ fam0000191 https://pubmed.ncbi.nlm.nih.gov/27055181/ (20 May 2020).

12 Font SA, and Cage J. Dimensions of physical punishment and their associations with children’s cognitive performance and school adjustment. Science Direct Vol 75 pp 29-40 https://doi.org/10.1016/j.chiabu.2017.06.008.

13 Corporal Punishment Key Issues. AIFS CFCA Resource Sheet March 2017 https://aifs.gov.au/cfca/publications/ corporal-punishment-key-issues (20 May 2020).

14 Government of Western Australia, Department of Health Information Sheet 5 https://ww2.health.wa.gov.au/~/ media/Files/Corporate/general%20documents/Child%20 protection/PDF/InfoSheet05-Physical-abuse.ashx (20 May 2020).

15 Modig, C 2009, Never Violence -Thirty Years on from Sweden’s Abolition of Corporal Punishment https://www. government.se/contentassets/6bfb214c582448b6ace 4d32978361577/never-violence---thirty-years-on-fromswedens-abolition-of-corporal-punishment (20 May 2020).

16 Global Initiative to End All Corporal Punishment of Children https://endcorporalpunishment.org (20 May 2020).

31

Tortious Liability for Subsidiaries

By John Southalan 1 Barrister (WA Bar Association) and Melanie Noid 2 Law Graduate (Curtin Law School) Over 800 ASX listed companies are involved in mineral exploration and development in more than 100 countries

"An emerging body of jurisprudence in the United Kingdom and Canada indicates a judicial willingness to find parent companies directly liable in negligence in respect of acts or omissions of subsidiaries on the basis that the parent company owed a duty of care to those harmed"3

This ‘emerging body of jurisprudence’ may not replicate in Australia (discussed below) but there are laws and proposals in the UK, France and Switzerland for extra-territorial laws regarding parent companies and human rights impacts by their affiliates.4 This jurisprudence and legislative change on the other side of the world makes the issue of tortious liability for foreign subsidiaries a topic for consideration regarding Australia’s extractives sector. Australian mining and services companies have a growing global footprint. Over 800 ASX listed companies are involved in mineral exploration and development in more than 100 countries,5 and a 2016 study of mining companies showed over half with investments in foreign companies.6 This paper summarises two cases, currently underway, concerning parent company tortious liability for subsidiaries.

In the United Kingdom, Zambian villagers are suing Vedanta Resources plc (Vedanta) and in Canada, Eritrean citizens are suing Nevsun Resources Ltd (Nevsun). The paper examines the implications arising from these, internationally, before turning to their relevance to Australian case law around tortious liability for subsidiaries.

32 | BRIEF AUGUST 2020

Vedanta Resources (UK company, Zambian subsidiary) In 2015, over one thousand Zambian citizens commenced proceedings in the UK courts against Konkola Copper Mines (KCM) and Vedanta for contamination of watercourses (used for drinking, livestock and irrigation) from the Nchanga Copper Mine in Zambia.7 Vedanta, incorporated and domiciled in the United Kingdom, is the ultimate parent company of KCM, a

public company incorporated in Zambia.8 Vedanta challenged the jurisdiction of the UK Courts to hear the matter. In April 2019, the UK Supreme Court affirmed lower court decisions, allowing the case to proceed in the UK.9 One of Vedanta’s grounds of appeal had been that there was no triable issue against it because it had not ‘done anything in relation to operation of the mine sufficient either to give rise to a common law duty of care in favour of the claimants or a statutory liability’.10 The Supreme Court rejected Vedanta’s appeal, referring to ‘published materials in which Vedanta … asserted its own assumption of responsibility for the maintenance of proper standards of environmental control over the activities of its subsidiaries, and in particular the operations at the mine, [and] also implemented those standards by training monitoring and enforcement...’.11 The judgment signals that a parent company’s potential liability in negligence for activities of its subsidiaries may be drawn from group-wide standards and policies,12 sustainability reports,13 and published statements. The Court

reasoned this would be especially where a parent company has some intervention in operations and ‘holds itself out as exercising the degree of supervision and control of its subsidiaries, even if it does not in fact do so’ and where management services agreements existed between the parent and subsidiary.14 The claim has been combined with similar proceedings, and a trial date set for October 2021.15

Nevsun resources (Canadian company, Eritrean subsidiary) When proceedings commenced, Nevsun was a publicly-held British Columbia corporation.16 The Canadian Court proceedings arose from Nevsun’s 60% interest, through a chain of subsidiary corporations, for the development of a gold, copper and zinc mine located in Eritrea.17 The plaintiffs (Eritrean refugees) assert that Nevsun has liabilities from the conduct of its subsidiary Bisha Mine Share Company (BMSC). The claim, filed in November 2014, alleges that Nevsun was ‘complicit in the use of forced labour, slavery, torture, inhuman or degrading treatment, and crimes against humanity at the mine’.18 Nevsun argued that it did not owe a duty of care because of the ‘several corporations in the corporate ladder between itself and BMSC’.19 Further, Nevsun explained, ‘BMSC required that no forced labour be used to build the mine and had various policies in place including a Construction, Environmental and Social Management Plan to guard against abuses.’20 The lower Canadian courts rejected Nevsun’s jurisdictional challenges, and this was also the decision of the Canada’s Supreme Court in February 2020 in Araya v Nevsun Resources.21 There have been subsequent interlocutory decisions, and the parties had a mediation scheduled for June 2020.22 Like the UK Supreme Court decision in Vedanta, the Canadian Araya decision is not a precedent that a parent company is liable for the impacts from a subsidiary’s mining operations, but these decisions confirm such a claim may succeed. The Canadian proceedings also examine corporate violations of international customary law.23 That is, the plaintiffs claim ‘damages under customary international law...for the use of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity’ on the argument this is actionable through Canadian common law.24 The Canadian Supreme Court rejected Nevsun’s application for summary dismissal that such a claim could not succeed, with the majority judgment (Wagner CJ, Abella,

Karakatsanis, Gascon & Martin JJ) commenting as follows.

[85]... Some areas of international law, like treaties, require legislative action to become part of domestic law ... [86] On the other hand, customary international law is automatically adopted into domestic law without any need for legislative ... In England this is known as the doctrine of incorporation and in Canada as the doctrine of adoption. ...

[114] Ultimately, for the purposes of this appeal, it is enough to conclude that the breaches of customary international law, or jus cogens, relied on by the Eritrean workers may well apply to Nevsun. The only remaining question is whether there are any Canadian laws which conflict with their adoption as part of our common law. I could not, with respect, find any.

[132] Customary international law is part of Canadian law. Nevsun is a company bound by Canadian law.

It is not “plain and obvious” to me that the Eritrean workers’ claims against Nevsun based on breaches of customary international law cannot succeed. Those claims should therefore be allowed to proceed.

International implications Any Australian company with British or Canadian links will be following these cases carefully, because the final decisions may well have direct ramifications in value chains and responsibilities.

There is, however, a broader import from these cases, and their attention to parentcompany actions and policies, because of the developments for companies to pay more attention to their supply chains and subsidiaries. The last decade has involved significant global movement for companies to use more due diligence within their operations, and to remediate and report regarding impacts identified.

Examples include the Guiding Principles on Business and Human Rights25 and the OECD Guidelines for Multinational Enterprises.26 These have resulted in some domestic law changes.27 But perhaps more significant is their presence or influence in developments by industry bodies, such as the MCA’s Enduring Value framework28 and its Canadian equivalent forerunner,29 as well as the London Metals Exchange.30 Documents created through these processes may have interesting ramifications in tortious

proceedings. For instance, Nevsun had commissioned an earlier Human Rights Due Diligence31 which addressed the issue of slavery, so it will be interesting to see what implications that has in the Canadian proceedings.32 Various commentary considers the UK and Canadian decisions will cause changes in corporate behaviour, or at least the publication of group-wide policies/ procedures.33

Australian parent-subsidiary liability In Australia, with the exception of asbestos-related cases, there are few court decisions of parent-company responsibility for harm done by its subsidiary. There are, of course, various statutory regimes where other parties may be liable for a company’s actions34 but these are not examined here. The focus of this paper is the potential for common law – in the absence of any statutory regime – to impose liability on a parent company because of activities performed by a subsidiary.35 In 1997, the NSW Court of Appeal ruled a parent company (CSR Ltd) liable for its subsidiary (Asbestos Products Pty Ltd) because ‘CSR brought itself into a relationship with the employees of Asbestos Products Pty Ltd by placing its staff in the role of management at Asbestos Products Pty Ltd’.36 This approach is consistent with WA cases.

The first Australian decision which directly imposed liability on a parent company from its subsidiary37 was the WA Supreme Court’s 1988 decision Barrow v CSR Ltd. Justice Rowland’s reasoning there was similar to that in CSR Ltd v Wren, that it was the extent of the parent company’s involvement and control which grounded the direct duty and liability.38 A similar result occurred in 1998 NSW proceedings CSR v Young.39 These decisions are not necessarily ‘piercing the veil’ but perhaps better understood in a different way. That is: the courts are not examining and consciously ignoring the corporate structure, but rather the particular facts show parent company officers directly involved, sufficient to legally implicate the parent company itself. Justice Rowland, in Heys v CSR, saw this as perhaps semantics. ‘[W]hether one defines all of the above in terms of agency, and in my view it is, or control, or whether one says that there was a proximity between CSR and the employees of ABA, or whether one talks in terms of lifting the corporate veil, the effect is, in my respectful submission, the same.’40 33

law but not an automatic part of it’.56 In relation to rights under international treaty law: the courts have repeatedly indicated that Australia’s entry into a treaty does not give rise to a direct source of rights and obligations in Australian domestic law.57 Australian courts also have a different approach to the UK in relation to parent – subsidiary liability in tortious claims. This is succinctly outlined in Warren’s 2017 article.

Asbestos in its natural mineral form

However, His Honour’s analysis there has not relevantly featured in any subsequent jurisprudence.41 Much of the asbestos jurisprudence seems more influenced by the dynamics of product liability (and the circumstances in which that arises and attaches liability to the producer42) rather than making general precedents around parent-subsidiary liability.

A useful indication of contemporary Australian approaches on potential parent-subsidiary liability is the 2007 decision of Premier Building v Spotless Group (causes of action were in negligence, nuisance and statutory compensation).43 The Victorian Supreme Court’s reasons outlined the relevant criteria it considered: •

managerial control including the number directors of the subsidiary who were also directors of the parent company;44

•

accounting practices especially which company had paid accounts and wages;45

•

dealings with regulatory authorities, specifically which company held licences;46 and

•

the company making the strategic decisions.47

In Premier, the Victorian Supreme Court concluded that the facts did not attach liability for the polluting acts of the subsidiary to the parent company.48 There has been a similar result in the NSW Court of Appeal, in James Hardie & Co v Hall,49 with the unanimous reasoning there unequivocal.

‘In the absence of any evidence that a subsidiary company is a mere facade, the fact that a parent company exercises control and influence over its subsidiary 34 | BRIEF AUGUST 2020

does not of itself justify lifting the corporate veil so as to create a duty of care on the part of the parent company towards an employee of the subsidiary’.50 These developments led to the view of Professor Warren (until 2017, the Chief Justice of the Supreme Court of Victoria) that: ‘The Australian experience has certainly been that direct parent liability has almost completely fallen off the radar, although much of that can probably be attributed to the narrow approach taken by the Australian cases’.51

Implications There is academic commentary suggesting these UK and Canadian developments may be replicated in Australia,52 but there is little jurisprudence supporting that view. Indeed, what decisions there are, point the other way.

On current Australia precedent, it seems unlikely our common law would emulate the recent Canadian and UK approaches.

Australian courts take a different approach to Canada’s automatic adoption of international customary law (and its rights) by the common law. The few Australian precedents that exist indicate such a development needs statutory intervention. In Nulyarimma v Thompson, a majority of the Full Federal Court indicated that courts/common law cannot ‘enforce’ international customary law without legislative enactment of that law.53 While there has been academic critique of that decision,54 it has been subsequently noted and approved.55 The strongest the argument might be put, which has some judicial support, is that customary international law can be ‘a potential source of Australian common

‘[T]he English law has taken a more generous approach when delimiting the circumstances in which it will consider imposing a duty of care on a parent company. ...[F]eatures of parent company control of the subsidiary, such as the issuing of instructions to the subsidiary; parental approval for capital expenditure; products manufactured to parent company standards; and superior knowledge on the part of the parent company regarding health issues... were enough [in the UK case of Chandler v Cape58] to sustain a duty of care on the part of the parent; but in the judgment of the NSW Court of Appeal in James Hardie,59 they fell short of the circumstances required to lift the corporate veil.’60 Warren’s view was that any significant changes to ‘be made to veil-piercing within corporate groups, that will have to be done by legislation’.61 This is further confirmation (in addition to the cases noted above) that Australian common law seems unlikely to develop that way anytime soon.62 Indeed, a search of Australian court databases (for issues and cases arising in Vedanta) revealed almost nothing of relevance.63 So, absent future High Court authority or legislative change, there is limited basis for Australian tortious liability for the actions of overseas subsidiaries. Such liability could arise where the structure is a façade or where the Australian parent acts in such a way that the relevant impacts are effectively direct actions of the parent company itself. The role of group-wide policies and procedures is interesting. The Vedanta decision might suggest some caution (with its potential to contribute to attaching control and thus liability) but other commentary sees these as a way to help inform and protect against liability.64 The current state of Australian authority – particularly James Hardie v Hall65 – make it unlikely that parent liability for foreign subsidiaries would arise solely from group policies.

Endnotes 1 2 3

4

5 6 7 8

9 10 11 12 13 14 15 16

17 18 19 20 21 22 23

24 25

26

27 28 29 30 31

Adjunct Professor (University of Western Australia and Murdoch University), john@southalan.net LLB(Dist) BSc(Hort)(Hons) GradDip(SustainMgmt), melanie.noid@postgrad.curtin.edu.au Brumby, 'Parent Company Liability in the Extractive Industries: A New Frontier for Business and Human Rights' (2018) 36/3 Company & Securities Law J 185, 186.

Palombo, ‘The Duty of Care of the Parent Company: A Comparison between French Law, UK Precedents and the Swiss Proposals’ (2019) 4/2 Business & Human Rights J 265, 266.

Satchwell & Redden ‘Redefining Australian mining: Understanding the new global footprint’ (International Mining for Development Centre, May 2016), 4.

‘Redefining Australian mining’ (above n5), 12.

Vedanta Resources & Anor v Lungowe & Ors [2019] UKSC 20, [1] & [5].

Vedanta Resources v Lungowe (above n7), [2], indicating KCM was not a 100% subsidiary of Vedanta, and that the Zambian Government held a minor stake in KCM. Vedanta Resources v Lungowe (above n7), [102].

Vedanta Resources v Lungowe (above n7), [17].

Vedanta Resources v Lungowe (above n7), [61].

Vedanta Resources v Lungowe (above n7), [52]-[53] & [55].

Vedanta Resources v Lungowe (above n7), [58].

Vedanta Resources v Lungowe (above n7), [53], [55] & [59].

Lungowe v Vedanta Resources & Ors [2020] EWHC 749 (TCC), [16].

Gize Araya & Ors v Nevsun Resources 2017 BCCA 401, [2]. Nevsun was acquired by Zijin Mining Group in December 2018: www.zijinmining.com/business/ product-detail-47445.htm (accessed 27 May 2020).

Araya v Nevsun Resources (above n16), [2].

Araya v Nevsun Resources (above n16), [4].

Araya v Nevsun Resources (above n16), [13].

Araya v Nevsun Resources (above n16), [10].

Nevsun Resources v Gize Araya & Ors 2020 SCC 5.

Araya v Nevsun Resources 2020 BCSC 504, [1].

In addition to also seeking damages for torts including conversion, battery, false imprisonment, conspiracy and negligence: Nevsun Resources v Araya (above n21), [4].

Nevsun Resources v Araya (above n21), [60] extracting the pleadings.

‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (Annex to UN doc A/ HRC/17/31, United Nations Human Rights Council, 21 March 2011).

‘OECD Guidelines for Multinational Enterprises’ (Annex to Declaration on International Investment and Multinational Enterprises OECD/LEGAL/0144, Organisation for Economic Co-operation & Development, 25 May 2011). eg. the developments mentioned in the introduction about the UK and France, and Australia’s Modern Slavery Act 2018 (Cth).

‘Enduring Value’ (Australian minerals industry framework for sustainable development, Minerals Council of Australia, 2015 ed).

‘Towards Sustainable Mining 101: A Primer’ (Mining Association of Canada, 18 July 2019).

‘Overview of LME responsible sourcing’ (Setting the Global Standard, London Metals Exchange, October 2019).

LKL ‘Human Rights Impact Assessment of the Bisha Mine in Eritrea’ (Commissioned by Nevsun Resources Ltd, April 2014).

32

33

34

35

36

37 38

39

40 41

42 43 44 45 46 47 48 49 50

The trial court noted these materials and processes in its decision on jurisdiction (Araya v Nevsun Resources 2016 BCSC 1856, [57]-[65]), but the content and implications of the document (regarding potential corporate liability) has not yet been examined. eg. Mulley & Leary, Current Global Trends and Developments in Mining (2019, Global Legal Group); Pamplona & Ebert, ‘Business and Human Rights: Trends in International Governance and Domestic Litigation’ (2019) 16/3 Revista de Direito Internacional 1, 6.

Such as director’s liability for breach of duties (eg. Corporations Act 2001 (Cth), s180-181; Circle Petroleum v Greenslade [1998] QSC 172; 16 ACLC 1577) or misleading conduct (eg. Australian Consumer Law Sch 2 to Competition and Consumer Act 2010 (Cth), s18; Australian Competition and Consumer Commission v Energy Watch [2012] FCA 425, [107]-[110]); parent company liability for subsidiary insolvent trading (eg. Corporations Act, s588V; In the matter of: ACN 007 537 000 (liq), Robert Parker [1997] FCA 1264; 80 FCR 1); officer liability for corruption or other offences (eg. Corporations Act, s1307 (falsification of books); Gregg v Commonwealth Director of Public Prosecutions [2019] NSWCCA 254); or ‘shadow director’ liability (eg. Grimaldi v Chameleon Mining [2012] FCAFC 6; 200 FCR 296, [35][37]).

On director’s potential liability for corporate human rights impacts, see Cermak, ‘Directors’ Duties to Respect Human Rights in Offshore Operations and Supply Chains: An Emerging Paradigm’ (2018) 36/2 Company & Securities LJ 124.

CSR Ltd v Wren (1997) 44 NSWLR 463, 463 & 485. See also Turner, ‘Revisiting the Direct Liability of Parent Entities Following Chandler v Cape Plc’ (2015) 33/1 Company & Securities Law Journal 45, 52-55.

Warren, ‘Corporate Structures, the Veil and the Role of the Courts’ (2017) 40/2 Melbourne University LR 657, 677.

Timothy Barrow v CSR Ltd & Midalco [1988] WASC 236, 217-218 (although the Judge framed the decision in terms of ‘proximity’, consistent with the negligence law at that time). ‘[T]he reality was that CSR was itself conducting the operations, through ABA: it conducted the operations by establishing a wholly owned subsidiary and causing the wholly owned subsidiary to give it comprehensive powers as agent’: CSR Ltd v Young 16 NSWCCR 56; (1998) Aust Torts Reports 81-468, 64-953.

Barrow v CSR Ltd (above n38), 218.

This quote appears in only two decisions since: Queensland Newspapers and Ipswich City Council [2015] QICmr 30, [43] (a footnote that, in some circumstances the concepts of ‘agency’, ‘alter ego’ and ‘piercing the corporate veil’ can produce similar results) and Wintle v Stevedoring Industry Finance Committee [2002] VSC 39 (an application for judicial recusal for apprehended bias). eg. Amaca P/L (formerly James Hardie) v Dennis Moss [2007] WASCA 162; Amaca P/L (formerly James Hardie) v Hannell [2007] WASCA 158; 34 WAR 109.

Premier Building and Consulting v Spotless Group [2007] VSC 377, [15].

Premier Building v Spotless (above n43), [355], [372] & [388] Premier Building v Spotless (above n43), [375] & [390].

Premier Building v Spotless (above n43), [360] & [375].

Premier Building v Spotless (above n43), [368] & [377].

Premier Building v Spotless (above n43), [384].

James Hardie & Co v Hall (estate of Desmond Putt) [1998] NSWSC 434; 43 NSWLR 554.

James Hardie & Co v Hall (above n49).The quote is from the headnote summarising the reasoning

LEAVING A

51 52 53

54

55 56 57

58 59 60 61 62

63

64

65

particularly at 584-585 per Sheller JA (agreed by Beazley & Stein JJA).

‘Corporate Structures, the Veil and the Role of the Courts’ (above n37), 686. eg. ‘Parent Company Liability in the Extractives’ (above n3), 201.

Nulyarimma v Thompson [1999] FCA 1192; 96 FCR 153, [26] per Wilcox J; [57] per Whitlam J. This decision concerned whether customary international law on genocide was directly actionable. Merkel J was in dissent on this aspect, at [132] & [160]-[161]. eg. Cassidy, ‘The Problematic Relationship Between Customary International Law and the Domestic Courts’ (2009) 2 J Applied Law & Policy 119, 126; Walker & Mitchell, A Stronger Role for Customary International Law in Domestic Law? (2005, The Federation Press); Charlesworth & Ors, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25/4 Sydney Law Review 423, 455-457. eg. Mokbel v The Queen [2013] VSCA 118; 40 VR 625, [28]-[30]; Sumner v United Kingdom of Great Britain [2000] SASC 91, [32].

Sumner v GBR (above n55), [32] (emphasis in original). eg. Minogue v Williams [2000] FCA 125, [22]; Dietrich v The Queen [1992] HCA 57; 177 CLR 292, 305-306 per Mason CJ & McHugh J, 321 per Brennan J, 348-349 per Dawson J, & 350-360 per Toohey J. Chandler v Cape Plc [2012] EWCA Civ 525.

James Hardie v Hall (above n49).

‘Corporate Structures, the Veil and the Role of the Courts’ (above n37), 683.

‘Corporate Structures, the Veil and the Role of the Courts’ (above n37), 673.

In a recent High Court decision, Justice Nettle referred to ‘common law doctrines …developed in step with customary international law’: Love v Commonwealth [2020] HCA 3, [264]. But that was a case concerning the implications of the term ‘alien’ in the constitution, and none of the other justices referred to customary international law.

There was one proceeding, against Anvil Mining companies, which did not progress beyond pre-action discovery to determine whether there was evidence about facilitating government troops in human rights abuses. The company brought an application objecting to the proceedings on the basis of the lawyers’ funding (Kunda Pierre & Others v Anvil Mining [2008] WASC 30(S)). The whole proceedings were subsequently withdrawn after the applicants’ instructions could not be obtained because the Congolese authorities were preventing the relevant NGOs from obtaining instructions, and there had been death threats: Kunda Pierre & Others v Anvil Mining [2008] WASC 30(S), [6][11]. eg. Pimentel ‘SCC decision in Nevsun a warning for Canadian companies operating overseas’ (Canlii, 5 March 2020). The Nevsun proceedings will be interesting to follow in this regard, see n32 above.

Above n49; noting also the High Court refused leave to appeal (Putt v James Hardie [1998] HCATrans 280 per Gleeson CJ & Gaudron J); and the NSWCA reasoning has been noted, and not disapproved, by a subsequent unanimous Court of Appeal in Morley v Australian Securities and Investments Commission [2010] NSWCA 331, [65].

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

35

From My Client to Our Client – It’s time for a change of mindset

By Joel Barolsky, Managing Director of Barolsky Advisors, Senior Fellow of the University of Melbourne

Joel Barolsky outlines five of the key reasons why partners are often tempted to ‘hoard’ clients rather than share them across the firm – and how this poor practice can lead to terrible results for clients and the firm itself.

What’s the prevailing mindset in your firm?

Do people talk about ‘my’ clients or ‘our’ clients? Are client relationships primarily owned by individual partners or principals, or are they viewed as assets of the firm?

outcomes and a very inefficient process. At the time, the partner’s bonus was principally linked to his personal billings, so there was a huge disincentive for him to involve others.

Many firms are still struggling with this idea of institutionalising their key client relationships. While there are attempts to cross-sell and refer others, it is usually done from the perspective of calling in a specialist to address a specific (often narrow) client need. The client is still someone’s client, with others ‘helping out’ when asked. It’s not an ongoing firm-wide collaborative effort to create the most value for the client and for the firm.

2. Power - in professional services firms a senior practitioner’s power base is often linked to their ability to make rain and drive revenue growth. Having personal ownership of high revenue clients feeds this perception and power is increased from the implied threat of leaving the firm and taking a sizeable chunk of revenue with them.

Similarly, being Mr or Ms Big with big clients is one way that large egos can be stroked.

Individual client ownership adds strategic risk and weakens the firm. If future cashflows are predominantly linked to the reputation and relationships of a person who can leave at any time, what’s the firm really worth? Future partners will simply pay less or be less inclined to take on firm risks if they deem there is no relationship capital in the firm.

There are five principal reasons that underpin client hoarding.

3. Legacy - a vast majority of client relationships start out as one-to-one, person-to-person engagements.

Very few commence as firm-to-firm collective pitches. The individual who wins the initial work tends to keep on going and over time develops strong personal relationships with key buyers and influencers. While these personal bonds are great, they can come to define the overall relationship and limit others stepping into the frame and joining the club as equals.

1. Reward - the firm’s measurement and reward system incentivises the individual to hold on to the client and do as much work as they can for that client, regardless of whether they are the most suitable provider or not. I recently heard of a case where a law firm’s commercial partner ran a major dispute for ‘his’ client, rather than refer the matter to the firm’s specialist litigators. A post-mortem of the file revealed the approach had not only exposed the firm to undue risk, but the client ended up paying about 20 per cent more for sub-standard

4. Distrust - in some instances partners simply do not trust the quality of advice and service delivered by their colleagues. They feel the client would do better by going elsewhere. Some firms are in indeed challenged by very high variability in technical ability and inconsistent service standards.

Client hoarding is probably a good thing in these cases! However, from my experience the problem of inconsistency is often overstated and the real problem is professional arrogance and distrust based on ignorance.

The not-so-fabulous five

36 | BRIEF AUGUST 2020

5. Control - recent Harvard Business School research by Heidi Gardner suggests that heightened performance pressures in professional services drive people to seek control and adopt a ‘go it alone’ mindset that ultimately undermines collaboration. Larry Richards’ research work points to lawyers, in particular, having a strong autonomy and control streak.

Cultural versus process solutions I often see firms trying to fix this problem of individual client ownership with process solutions. They put in new business development processes that require people to sit together and prepare and execute a client plan. They install new CRM systems and try to get people to institutionalise client knowledge. They train staff in a new sales methodology that requires pre- and post- call planning.

What happens is that people don’t pitch up to client planning meetings, they don’t bother to update the CRM, and they fill in coloured sheets once or twice and then go back to the good old days.

In legal services, I believe one has to tackle this issue, first and foremost, as a cultural problem. In some instances, it goes to the heart of the firm’s purpose or raison d’être. Is the firm there as a place for individual owners to practice their profession, or is it a business that seeks to create and build shareholder and stakeholder value? If it’s more the former, it’s going to be a long, hard battle trying to build the firm’s relationship capital.

Cultural solutions start with strong leadership and a commitment to live the firm’s values. If your firm’s values reflect something about respect, integrity, teamwork, service excellence, or similar ideas, then there’s enough ammunition there to start and win the battle. It’s really up to the firm’s leadership group as to whether they have the courage to take on this issue and fight!

Employer Super Guarantee Amnesty Ends Soon Time is running out for employers to contact the ATO about the Super Guarantee payments amnesty.

Employers who are behind in paying compulsory Super Guarantee (SG) contributions to staff have until 7 September 2020 to come forward and take advantage of an amnesty currently being offered by the Federal Government.

paid, those businesses will be refunded their administration charges under the amnesty if they meet the amnesty criteria.

In a media release on 18 September 2019, the Assistant Minister for Superannuation, Financial Services and Financial Technology Jane Hume said: “Since the one-off amnesty was announced, over 7,000 employers have come forward to voluntarily disclose historical unpaid super.”

This SG amnesty is a one-off opportunity for employers to disclose and pay unpaid SG including interest, that they owe for their employees.

“The ATO estimates an additional 7,000 employers will come forward due to the extension of the amnesty. This means around $160 million of superannuation will be paid to employees who would otherwise have missed out.”3

Employers that take advantage of the amnesty can claim tax deductions as part of the process and will not incur administration charges or penalties. Flexible payment plans can also be arranged.

The ATO has further advised that while it acknowledges the impact of COVID-19 and the 2019–20 bushfires, the law does not currently allow for variations to the amnesty deadline date.

However, interest will need to be paid on the amnesty contributions paid to employees’ super fund accounts.

The Australian Taxation Office (ATO), which is administering the amnesty, has advised that the costs to businesses which choose not to come forward and take advantage of this “one-off” amnesty opportunity will be “significant”.1 The ATO has also advised that: “After the amnesty ends our ability to remit penalties applied as a result of an audit is limited by law [as contained in the Treasury Laws Amendment (Recovering Unpaid Superannuation) Act 2020]. This means shortfalls will have a minimum penalty of 100 per cent applied but can be as much as 200 per cent.”2 SG shortfalls for any quarter between 1 July 1992 and 31 March 2018 may be eligible for the amnesty if they have not previously been disclosed or are not subject to a current or previous audit.

To benefit from the amnesty, employers must lodge one approved SG amnesty form for each quarter and complete a declaration form confirming application for the amnesty by 11.59pm deadline on 7 September 2020.

When the SG amnesty was originally announced in May 2018 (with an initial deadline of 23 May 2019, now extended to 7 September 2020) many businesses lodged a super guarantee charge statement disclosing SG shortfalls, with administration charges of $20 per employee per quarter. If already

Super guarantee (SG) contributions increase The SG rate will increase from 9.5 per cent to 10 per cent on 1 July 2021.

Further increases are planned - to 10.5 per cent on 1 July 2022; then to 11 per cent on 1 July 2023; to 11.5 per cent on 1 July 2024; and a final increase (under the current law) to 12 per cent on 1 July 2025.

Employees should note when these changes will take effect and check with their employers at these times to ensure the new SG rate has been implemented. Your super fund should also send you information about the changes.

With compulsory SG employer contributions comprising the lion’s share of super contributions paid, these changes to the SG rate are a material improvement in the extent to which Australians retire with higher retirement savings.

Regular contributions to your super account are important as they allow you to build your account balance over time, to be better placed for dips in investment markets in the short term (such as during COVID-19). It is always worth remembering that super is a long-term investment.

Modelling by Industry Super Australia shows that as a result of the scheduled SG increases, a 30-year-old worker on an average wage would stand to gain more than $85,000 in extra super by the time they retire.4

In addition to SG payments paid by employers, employees can also make additional voluntary contributions to their super in the forms of both [i] concessional pre-tax contributions (such as salarysacrificing) and [ii] non-concessional after-tax contributions (such as personal contributions).

It is important to remember that a cap exists on how much can be contributed to your super each financial year. For 2019/20, irrespective of age or income, the total amount that can be contributed as a concessional pre-tax contribution (e.g. your employer’s SG contributions plus your own voluntary salary sacrifice contributions) is $25,000.

If you are not sure how much in superannuation contributions your employer has paid into your super during the year and how much that leaves for you to potentially make in additional voluntary salary sacrifice contributions – without exceeding the combined total of $25,000 – your super fund will be able to assist with these calculations.

The current non-concessional after-tax contribution cap is $100,000 for each financial year. However, people under the age of 65 on 1 July in a financial year may be able to contribute in excess of the $100,000 cap up to an amount of $300,000 in a single financial year pursuant to the “bring-forward rule”. Please note that if your total super balance is over $1.6 million, no further nonconcessional contributions can be made in any year.

Other options to add to your super are also available – your super fund will be able to provide you with information about other ways to contribute to your super.

Andrew Proebstl is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@legalsuper.com.au.

Endnotes 1 2 3 4

See https://www.ato.gov.au/Business/Business-bulletinsnewsroom/Employer-information/Superannuationguarantee-amnesty/ See https://www.ato.gov.au/Business/Business-bulletinsnewsroom/Employer-information/Superannuationguarantee-amnesty/ See https://ministers.treasury.gov.au/ministers/janehume-2019/media-releases/extending-superannuationguarantee-amnesty-reunite-members See https://www.industrysuper.com/media/greg-combetdont-delay-the-superannuation-increase/

37

WA Case Notes

By Chris Burch, Lawyer, Corrs Chambers Westgarth

KWLD v Western Australia [2020] WASCA 94

at the Court. This inquiry was disclosed to the parties.

In KWLD, the Court made two things clear:

The Court noted that Criminal Appeals Act s 40(1)(h) empowers it to require a person constituting a lower court to give a report about any aspect of their decision or the case in which it was made. Where it applies, s 40(1) (h) authorises the Court to require a report as to whether a primary judge made private inquiries in the absence of the parties, and if so the information received from those inquiries: [61].

•

it has an inherent power to order that a primary judge report on bail proceedings to ensure the effective exercise of its appeal jurisdiction under the Bail Act.

•

it will likely be a fundamental departure from the proper judicial process, and result in an unfair hearing or give rise to a reasonable apprehension of bias, for a primary judge to make and fail to disclose out-of-court inquiries as to matters going to the exercise of their bail discretion.

Those conclusions arose from a District Court Judge’s variation of the appellant’s bail conditions after personally seeking information from the Clerk of the Geraldton Court and the appellant’s dentist.

However, an appeal under the Bail Act is not ‘an appeal’ within the meaning of s 40(1), with the result that there is no power to order such a report in bail appeals: [62], [64]. Nor does rule 30 of the Supreme Court (Court of Appeal) Rules authorise the Court to require such a report  it is limited to records of things ‘held by the primary court’: [67].

The Court’s inherent power to request a report from a primary judge

The Court found, though, that it is implicit in the conferral of jurisdiction

by Bail Act ss 15A and 15B that it have the power to make such orders where to do so is necessary for the effective exercise of its appellate jurisdiction: [69]. That may well be the case where a transcript in primary bail proceedings is not available, or a primary judge has made out-of-court inquiries that are not apparent from the transcript.

The appellant sought an order that the primary judge provide the Court with a report as to inquiries made by the primary judge. The application was made under Criminal Appeals Act s 40(1)(h).

The Court accordingly ordered that the primary judge provide a report of his inquiries that were not disclosed to the parties; that is, those relating to the appellant’s dentist.

There was evidence from the practice manager of the appellant’s dentist that the primary judge had telephoned her. He asked whether the appellant actually needed the appointments he had attended, and why they could not all have been done at once given the appellant was on home detention. This was not disclosed to the parties.

A reasonable apprehension of bias where Judges become protagonists

Understandably, that gave rise to a reasonable apprehension of bias, with the Court setting aside and re-determining the appellant’s bail conditions.

Separately, the primary judge had requested the Clerk of the Court check CCTV recordings to verify a community correction officer’s report (requested by the primary judge, in line with Bail Act s 24A(1)) that the appellant had attended 38 | BRIEF AUGUST 2020

On turning to consider whether the primary judge’s actions gave rise to a reasonable apprehension of bias, the Court began by quoting Mason J — ‘… It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations … from a stranger with reference to a case [they have] to decide’: Re JRL; ex parte CJL (1986) 161 CLR 342, 350. The Court noted that breaches of that fundamental

principle may infringe the hearing and bias rules, and result in an unfair hearing or give rise to a reasonable apprehension of bias: [77].

The Court found that that principle had been infringed by the primary judge instigating private out-of-court factual inquiries as to matters going to the exercise of his bail discretion, and failing to disclose all of those inquiries to the parties: [79], [108]. The Court clarified that by allowing a Judge to receive ‘such information as he thinks fit’, Bail Act s 22 does not authorise a Judge to make private inquiries in the absence of the parties, or not to disclose private inquiries: [108].

It was also relevant, in the circumstances, that the primary judge was the one who instigated the variation of the appellant’s bail conditions: [91].

The Court considered that fact increased the prospect that a reasonable observer would see the judge as investigating and prosecuting the case for a bail variation, rather than ruling on a disputed question as to the appropriate bail conditions.

As to the primary judge’s out-of-court communications with the Clerk of the Court, the Court considered that the fact they were with a court officer did not make them less objectionable: [98].

And in relation to the primary judge’s undisclosed inquiry to the appellant’s dentist, the Court considered this constituted a significant departure from the proper judicial approach: [101].

As a result, the Court concluded that a fair-minded lay observer might reasonably apprehend that, having taken on the role of protagonist in the proceedings, the primary judge might not bring an impartial and unprejudiced mind to exercising the bail discretion on the basis of material properly before the Court, and allowed the appeal: [109], [111].

The decision KWLD v Western Australia [2020] WASCA 94

BOOK REVIEW

Shaping Australia’s West The Life of John Nicholson

By Robert Nicholson Review by Megan Cramp, Senior Attorney, Kellogg Brown & Root Pty Ltd

Shaping Australia’s West tells the story of the life of John Nicholson, an eminent member of the Perth community between 1896 and 1941. This authoritative and thoughtfully put together work was authored by Robert Nicholson.

Well known in legal circles, the author is a former Deputy President of the Administrative Appeals Tribunal, Justice of the Supreme Court of Western Australia and Judge of the Federal Court of Australia. He is also well placed to tell this story, being that of his grandfather.

The author describes how he came into possession of a bundle of documents which tell the story of the life of his grandfather. Those documents led to further investigations and, ultimately, the creation of a book which traces the life of a man who came to be known as ‘Honest John’. The book tells the story of John’s early life in Scotland, migration to Australia, and his family and public life in Perth.

A picture painted well by words but enhanced by photographs from the family collection - this book tells the story not only of the Nicholson family, but of Perth in its infancy. We catch glimpses of early Perth, which had a population of only about 50,000 at the time. The city struck John as being small. However, “with the advent of the discovery of gold one was encouraged to have unbounded faith in its future.”

Imbued with that faith, John and his wife Flora purchased and remained ensconced for life in a house at 22 King’s Park Road. A devoted husband and

father of four children, John also became a prominent member of the Perth legal community.

In 1914, John was presented with a requisition signed by around 200 prominent professional and businessmen asking him to come forward as a candidate for Mayor of Perth. This was the start of a career in politics which saw John take up a seat as a member of the Legislative Council from 1918 to 1941. In doing so, he developed a great knowledge of life up and down Western Australia as well as within particular legal relationships.

John became known as a man of civic duty and integrity who made outstanding contributions to the development and governance of Western Australia. John assisted to establish the Red Cross in Western Australia, developed care for veterans, and played a leadership role in many community organisations. We are painted a picture of a man who well deserved the name ‘Honest John’.

With the advent of genetic ancestry testing, tracing one’s family history is an increasingly popular notion. The excitement and pride that comes with discovering that a family member was of great importance or esteem is likely one of the factors that drove the author to share his discoveries with the world.

While not all of us are lucky enough to have such admirable relatives, the common thread of wonder at the bravery it takes to start a new life is relatable to all readers of this immigrant nation.

This authoritative work was clearly written with a genuine interest in that very issue. A question which permeates throughout the book is why John left Scotland. While the precise reasons may never be known, the author suggests that John had been a migrant for whom Australia offered immense hope and who was forever optimistic about the prospects for Western Australia.

John’s sense of optimism, community and civic duty is something which has endured through his descendants. One is hopeful that these values will continue to permeate the community of Perth. A sense of hope and community are well needed in these trying times.

39

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

Administrative law Judicial review of decision granting exemption from prohibition of live animal export – procedural fairness – legal unreasonableness In Animals Australia Federation v Secretary, Department of Agriculture, Water and the Environment [2020] FCA 905 (26 June 2020) the Court determined an application for judicial review of the decision to grant an exemption under s12(1) of the Australian Meat and LiveStock Industry (Prohibition of Export of Sheep by Sea to Middle East – Northern Summer) Order 2020 (Cth) (Northern Summer Order) to permit the export of sheep in the Northern Hemisphere summer.

For animal welfare reasons, s8 of the Northern Summer Order prohibits the export of live sheep from Australia by a sea-going vessel to certain parts of the Middle East between 1 June and 14 September. Section 12 of the Northern Summer Order provides the Secretary with a discretion to grant an exemption from the prohibition.

On or about 2 June 2020, a delegate of the Secretary decided not to grant the second respondent (the exporter) an exemption under s12(1) of the Northern Summer Order (the first decision). The Department of Agriculture, Water and the Environment (the Department) did not provide a copy of the exporter’s exemption application to Animals Australia or formally invite it to make submissions concerning the first decision. However, Animals Australia provided submissions against the granting of the exemption. The reasons for the first decision acknowledged that the decision-maker considered submissions received from (inter alia) Animals Australia.

The first decision was effectively reversed a little more than ten days later when another delegate of the Secretary decided to grant an exemption to the exporter (the second decision).

Animals Australia was not aware of the Secretary’s consideration of a second application for exemption made by 40 | BRIEF AUGUST 2020

the exporter until after the second decision had been made. The reasons for the second decision noted that the decision-maker gave some weight to the submissions from Animals Australia in relation to the first decision.

The applicant challenged the second decision in urgent circumstances on the grounds of a denial of procedural fairness and legal unreasonableness (at [40]).

Animals Australia was not given an opportunity to provide information or submissions regarding the making of the second decision to the decision-maker.

The critical question was whether the Secretary was required to afford it any such opportunity.

No party challenged the standing of Animals Australia to challenge the second decision (at [41]). The Court considered the relationship between standing and the entitlement to procedural fairness (at [67]-[69]). The Court also considered how the concept of legitimate expectation does not engage the principles of procedural fairness (at [70]-[71]).

Justice Kenny held that Animals Australia did not have a sufficient interest to be entitled to procedural fairness (at [73] and [76]). Further, the course of dealings between Animals Australia and the Department could not of itself give rise to an interest sufficient to attract an obligation to afford Animals Australia a right to be heard in connection with the making of the second decision (at [81]).

Finally, the ground of legal unreasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 was not made out (at [87]-[93]).

Environmental law EPBC Act – forestry operations – whether exemption in s38 lost – if exemption lost, whether action is likely to have a significant impact on listed threatened species Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 (27 May 2020) is the Court’s final judgment in

a proceeding brought by an environment group (the applicant) seeking relief against VicForests, a Victorian statutory agency responsible for the management and sale of timber resources in Victorian state forests. The proceeding concerned forestry operations in 66 native forest coupes in the Central Highlands region of Victoria and the effect of those forestry operations on two native fauna species, the Greater Glider and the Leadbeater’s Possum. Both are listed as threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Greater Glider is listed as “vulnerable” and the Leadbeater’s Possum is listed as “critically endangered”.

Under s38 of the EPBC Act, forestry operations that are conducted “in accordance with” a Regional Forestry Agreement (RFA) are exempt from provisions in the EPBC Act that otherwise control actions that have, or are likely to have, a significant impact on matters of national environmental significance (including listed threatened species).

One such provision is s18 of the EPBC Act, which provides that a person must not take an action that has, will have or is likely to have a significant impact on a listed threatened species.

In summary, there were two key issues in the case. The first main issue was whether the exemption in s38(1) of the EPBC Act was lost for certain of VicForest’s forestry operations.

The second key issue was, if the s38 exemption was lost, whether the forestry operations were an action that was likely to have had or is likely to have a significant impact on the Greater Glider or Leadbeater’s Possum (or both) under s18 of the EPBC Act. Following a contested trial, Mortimer J upheld the applicant’s key claims. On the first key issue, the Court held that VicForests lost the exemption in s38(1) of the EPBC Act because its forestry operations were not or are not likely to be undertaken in compliance with the Central Highlands RFA. This issue was determined in relation to certain coupes that were scheduled to be logged (the

Scheduled Coupes) and also other coupes that already had been logged (the Logged Coupes). As to how the exemption conferred by s38 of the EPBC Act is lost, Mortimer J expressly adopted and applied her reasoning from her earlier judgment determining a separate question in the proceeding (see (2018) 260 FCR 1).

In relation to future forestry operations, the Court held that VicForests is not likely to comply with cl 2.2.2.2 of the Code of Practice for Timber Production 2014 (Vic) (the Code) in the Scheduled Coupes. Accordingly, for any forestry operations proposed to be undertaken

by VicForests in the Scheduled Coupes, its conduct will not be covered by the s38(1) exemption (at [6(d)] and [1178]).

In relation to past forestry operations, the Court held there were a range of miscellaneous breaches of the Code

by VicForests in its forestry operations in the Logged Coupes. This included breaches of cl 2.2.2.2 and other clauses of the Code, sometimes in conjunction with parts of the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests.

In relation to those forestry operations, VicForests’ conduct was not covered by the s38(1) exemption in the coupes in which the breaches occurred (at [6(b)-(c)] and [1287]-[1290]).

Non-compliance with cl 2.2.2.2 of the Code was central to the Court’s findings. Clause 2.2.2.2 of the Code required VicForests, in planning and conducting its forestry operations, to apply the precautionary principle to the conservation of biodiversity values. Accordingly the Court’s judgment contains consideration of the precautionary principle (at [800]-[859]).

Turning to the second key issue, the Court held that VicForests’ conduct of forestry operations is likely to have had, or is likely to have, a significant impact on the Greater Glider as a species and/or the Leadbeater’s Possum as a species. Therefore, s18 of the EPBC Act was contravened and/or is engaged, depending on whether the action has been undertaken, or is proposed to be undertaken [at [6(h)] and [1455]). For the purposes of s18 of the EPBC Act, the Court held that each forestry operation in each of the 66 impugned coupes is an action; each series of forestry operations in each coupe group is an action; the forestry operations undertaken in the Logged Coupes are, collectively, an action; the forestry operations proposed to be undertaken in the Scheduled Coupes are, collectively, an action; and

Forestry operations

the forestry operations in all of the 66 coupes are, collectively, an action (at [6(g)] and [1339]).

The Court gave the parties an opportunity to make submissions on declaratory and injunctive relief.

Industrial law and regulatory law Systemic contraventions of record keeping obligations admitted – Quantification of civil penalties Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) deals with the records that must be kept by organisations including a list of officeholders. Breach of these obligations are civil penalty provisions. In Registered Organisations Commissioner v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 96 (11 February 2020) the Court imposed pecuniary penalties of $445,000 in total for contraventions by the union of ss230 and 233 of the RO Act (at [7] and [136]). The Court found that the union contravened s232(2) of the RO Act on 82 occasions from 2015 to 2017 by failing to notify the Fair Work Commission of changes made to records required to be kept within the prescribed period.

Nearly all of these contraventions were admitted. The union also admitted that it contravened ss230(1)(b) and (c) of the RO Act on four occasions by failing to include certain information in the 2015 and 2016 annual List of Offices and Office Holders.

The only dispute on liability were four of the 82 alleged contraventions of s233(2).

The union sought (and obtained) leave to withdraw its admissions in order to argue that as there was no power under the relevant union rules for the purported abolition of the offices there was no requirement to lodge a notification of the purported change with the Fair Work

Commission. The Court rejected the union’s position and found that there was still a breach of s232(2) of the RO Act (at [56]). Flick J construed the recordkeeping obligation in s232(2) as applying to all changes, whether they be later held to be within or without power (at [59]).

The Court heard competing submissions from the parties on the application of the well-established principles relevant to determining the quantum of penalties. For example, the union and the Commissioner were in dispute about the extent to which the many contraventions were properly distinct or arose out of a course of conduct (at [86]-[95]). Flick J considered the case law concerning the course of conduct principle at [26]-[30].

Another key contested area between the parties was the extent to which consideration is required of each of the individual breaches when quantifying penalties in the circumstances of numerous contraventions (at [102][122]). Flick J held (at [108]): “It is not considered necessary in a case where there are many contraventions extending over a period of years and involving many different Union officers to ascribe a particular penalty to each contravention or such contraventions as constituted a course of conduct”.

The union has appealed to the Full Court on the quantum of penalty on various grounds such as that the primary judge erred in applying the course of conduct principle and that the penalty was manifestly excessive (NSD33/2020). The appeal is expected to be heard on 18 August 2020.

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.

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HIGH COURT JUDGMENTS David Kelsey-Sugg Castan Chambers, Melbourne

Criminal law Sentence – manslaughter In Strbak v The Queen [2020] HCA 10 (18 March 2020) the appellant, Ms Strbak and her partner had been jointly charged before the Supreme Court of Queensland with the manslaughter of the appellant’s son, Tyrell. Tyrell, who was aged four, died as the result of blunt force trauma to his abdomen. The appellant’s partner pleaded guilty to manslaughter and was sentenced on the agreed footing that he was criminally negligent in failing to seek medical assistance for the child. A short time later the appellant pleaded guilty to manslaughter.

The High Court observed that under the common law of Australia, on the trial of a criminal allegation (save in rare and exceptional circumstances), no adverse inference should be drawn by the jury (or the judge in a trial without a jury) from the fact that the accused did not give evidence. The question raised by the appeal was whether the same stricture applied to the resolution of a dispute as to the facts constituting the offence in sentencing. If it did, a further question was whether that position is modified by s132C of the Evidence Act 1977 (Qld), which relevantly provided that, if an allegation of fact is not admitted or is challenged, the sentencing judge may act on the allegation if the judge is satisfied on the balance of probabilities that the allegation is true. The High Court answered that question in the affirmative.

Kiefel, Bell, Keane, Nettle and Edelman jointly. Appeal from the Court of Appeal of the Supreme Court of Queensland allowed.

Police powers Search warrants – validity of warrant Smethurst v Commissioner of Police [2020] HCA 14 (15 April 2020) was a special case stating questions of law for the opinion of the Full Court of the High Court.

The first plaintiff, Ms Smethurst, was a journalist employed by Nationwide 42 | BRIEF AUGUST 2020

News Pty Ltd, the publisher of the Sunday Telegraph. On 4 June 2019, the Australian Federal Police (AFP) searched her residence. The police held a search warrant that had been issued by a magistrate the previous day. The warrant relied on acts by Ms Smethurst and the Sunday Telegraph on 29 April 2018 that were contrary to “section 79(3) of the Crimes Act 1914, Official Secrets”.

quashing the warrant.

Believing that the warrant was valid, the AFP took possession of Ms Smethurst’s mobile phone. They demanded and obtained her passcode to access the phone. After they copied the data from her mobile phone to a laptop, the executing officer reviewed documents returned from keyword searches of the data obtained and selected the documents that he thought fell within the terms of the second warrant. Those documents were copied onto a USB storage device. The USB was kept by the AFP and the mobile phone data which had been copied to the laptop was deleted from the laptop.

In Moore v Scenic Tours Pty Ltd [2020] HCA 17 (24 April 2020) the appellant, Mr Moore, booked a holiday tour for himself and his wife with the respondent, Scenic. The tour, which involved a European river cruise, did not proceed as promised. It was not in issue that Scenic had breached consumer guarantees in the Australian Consumer Law (ACL). Mr Moore claimed damages in respect of loss suffered by him as a result of Scenic’s breaches. The alleged loss included, among other things, disappointment and distress for breach of a contract to provide a pleasant and relaxed holiday recognised as a compensable head of loss in the High Court’s decision in Baltic Shipping Co v Dillon (1993) 176 CLR 344. The issue for the High Court was whether, as Scenic contended, s16 in Pt 2 of the Civil Liability Act 2002 (NSW) (CLA) applied to preclude Mr Moore from recovering damages for loss of that kind.

The central issue in the special case was a challenge by Ms Smethurst and Nationwide News to the validity of the warrant. The warrant was challenged on the grounds that: it misstated the substance of s79(3) of the Crimes Act 1914 (Cth) (question 1(a)); it did not state the offence to which it related with sufficient precision (question 1(b)); and s79(3) of the Crimes Act, as it stood on 29 April 2018, was invalid on the ground that it infringed the implied freedom of political communication (question 1(c)).

If the warrant was invalid there was also a dispute about the consequential relief that should be granted, in particular whether the High Court should issue a mandatory injunction requiring the return to Ms Smethurst of the information obtained by the AFP (question 4).

The High Court concluded that the warrant issued on 3 June 2019 was invalid on the ground that it misstated the substance of s79(3) of the Crimes Act, as it stood on 29 April 2018, and on the ground that it did not state the offence to which it related with sufficient precision.

The Court made an order for certiorari

Kiefel CJ, Keane and Bell JJ jointly.

Gageler, Nettle, Gordon and Edelman J each separately concurring.

Damages Damages – consumer guarantees – personal injury

Mr Moore submitted, among other things, that loss consisting of disappointment and distress for breach of a contractual obligation to provide a pleasant and relaxed vacation was not precluded by the provisions of Pt 2 of the CLA, because those provisions were concerned exclusively with claims for damages for personal injury; and his claim for the disappointment of his expectation of a pleasant and relaxed vacation was not a claim for personal injury. The High Court accepted that submission.

Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly. Edelman J separately concurring. Appeal from the Court of Appeal of the Supreme Court of New South Wales allowed.

Criminal practice Accusatorial system of criminal justice – companion rule Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 (24 April 2020) was an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s87(1)(b) of the Evidence Act 2011 (ACT). That provision relevantly entails that a representation by an employee of a party may be taken as an admission by the party if the representation relates to a matter within the scope of the employee’s employment.

The principal question for the High Court was whether s87(1)(b) had the effect that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. The High Court answered that question in the negative.

Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly. Edelman J separately concurring. Appeal from the Full Court of the Federal Court of Australia allowed.

Evidence Criminal trial – mixed statements The question for consideration by the High Court in Nguyen v The Queen [2020] HCA 23 (30 June 2020) was: what are the

legal consequences, for a trial governed by the Evidence (National Uniform Legislation) Act 2011 (NT), of the refusal of a prosecutor to tender into evidence a “mixed” video record of interview between the police and an accused person – that is, a record containing both inculpatory and exculpatory statements.

Kiefel CJ, Bell, Gageler, Keane and Gordon JJ jointly. Nettle J and Edelman J each separately concurring. Appeal from the Full Court of the Supreme Court of the Northern Territory allowed.

The appellant, Nguyen, was charged on indictment with offences against the Criminal Code (NT) and stood trial before a jury in the Supreme Court of the Northern Territory. He had been interviewed by the police about the offences in question prior to being charged. The interview was recorded electronically. The recorded interview contained statements by the appellant in the nature of admissions together with exculpatory statements.

Refugees – Application for protection visa – Immigration Assessment Authority

The recorded interview was relevant and admissible, but the prosecution did not tender it as part of the Crown case, although it was not suggested that the statements made by the appellant in the recorded interview were demonstrably untrue or unreliable. The essential reason for the refusal to tender the statements into evidence was that they would not assist the Crown case.

In the High Court, the appellant contended that the prosecution’s obligation of fairness in the conduct of a trial would require the recorded interview containing the mixed statements to be tendered unless there were good reasons not to do so. The High Court accepted this, and said that the decision not to adduce it did not accord with the prosecutorial obligation respecting the presentation of the Crown case and had disadvantaged the appellant.

Immigration

In Minister for Immigration and Border Protection v CED16 [2020] HCA 24 (30 June 2020) the question for consideration by the High Court concerned the meaning of the words, “new information” in Pt 7AA of the Migration Act 1958 (Cth).

In the Federal Court of Australia, the primary judge had concluded that the Immigration Assessment Authority made a jurisdictional error. This conclusion was dependent on his Honour having found that a “certificate” was new information within the meaning given by s473DC(1).

The Minister appealed, arguing that it was wrong to characterise the certificate as “new information”. The High Court agreed and allowed the appeal by application of principles established in prior decisions of the High Court.

Gageler, Keane, Nettle and Gordon JJ jointly. Edelman J separately concurring.

Appeal from the Federal Court of Australia allowed.

David Kelsey-Sugg is a Victorian barrister, ph 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

43

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

Property – Isolating particular contributions overlooked “myriad of contributions” by parties in long relationship

Children – Child welfare – Mother failed to satisfy court that supervision of father was both necessary and available

In Barnell [2020] FamCAFC 102 (1 May 2020) the Full Court (Ryan, Aldridge and Kent JJ) allowed the wife’s appeal of a 25 per cent differential between the parties’ contribution based entitlements assessed by a judge of the Family Court of Western Australia.

In Aitken & Gladstone [2020] FCCA 966 (8 May 2020) Judge McGuire heard an interim application by the father to spend unsupervised time with his six year old child.

The mother sought an order that the father be supervised. The Department of Health and Human Services, Victoria (“DHHS”), who had been the applicant in State Court child protection proceedings for three years, appeared as amicus curiae. DHHS supported the mother’s case, which was consistent with the existing State Court order.

The parties were together for 21 years and had two children (22 and 16) who lived with the wife. The wife had received gifts from her family of $70,000. The husband made initial contributions including an interest in “the B property” which the trial judge held ([20]) should give rise to a 25 per cent contributions based adjustment in his favour.

At trial the B property was worth $340,000 and represented 36 per cent of the net pool ($941,096).

The Full Court said (at [34]): “In Hurst [2018] FamCAFC 146 the Full Court quoted what the primary judge had recorded … as to a property inherited by the husband … ‘the Suburb C property’: ‘[16] Each party received inheritances throughout the marriage which were in large part used for the benefit of the family (other than the [Suburb C] property). (…)

Apart from paying the rates and regular slashing the land has remained untouched.

It cannot be said that the wife has made any contribution to this property other than indirectly by the rates and slashing costs being paid. The [Suburb C] property has appreciated in value over the years and even after separation. This property is now the most valuable asset of the parties.’

(Emphasis in original)” The Court concluded ([42]): “We are persuaded that by isolating the B Property in the manner in which his Honour did and by adopting a differential of as much as 25 per cent between the parties as to their contributions based entitlements as a consequence of ‘quarantining’ the B Property, and giving discrete consideration to that contribution, the primary judge fell into the same error as was made … in … Hurst [above] and Jabour [[2019] FamCAFC 78] … We consider that his Honour’s approach had the overall effect of according a subsidiary role to the wife’s contributions.”

44 | BRIEF AUGUST 2020

The parties had been involved in Federal Circuit Court (“FCC”) proceedings since 2013, including two parenting trials. There had been long-standing State Court intervention orders including an interim accommodation order made in the Children’s Court that the father’s time with X be supervised.

The Court said (from [77]): “ … [I]t is the mother who argues that X’s time with the father should continue to be supervised. … [S]he offers no further particulars … except leaving the obligation for the orders that she seeks on the father … She insists on a supervisor but does not nominate one. ( … ) [80] … I think it disingenuous to simply leave the finding of a supervisor to the father … where he does not seek an order in those terms and when the Department suggests no availability. ( … ) [83] … I am not persuaded that X’s time with his father needs to be supervised in the interim. Significantly, I have found importance for X in maintaining a relationship with his father. I am not satisfied on the evidence that any supervisor, even if necessary, is available. … In this sense, the obligation to show that supervision is both necessary and available sits here with the mother and the Department. ( … )” An interim order was made that X spend unsupervised time with the father, the State Court order to be discharged.

Children – Mother suffers PTSD due to father’s violence – Order for introduction of children to their paternal Aboriginal family In Hallett & Malcolm & Anor [2020] FCCA 835 (15 April 2020) Judge Small heard an application by a paternal grandmother

to spend time with her 9 and 7-year-old grandchildren “X” and “Y”. The children lived with the mother. The father had a history of violence, drug use and criminal conduct, had not seen the children since 2015 and took no part in the case. The children had not spent any time with the grandmother for three years.

The mother opposed the application due to her fear that the grandmother would bring the children into contact with the father. The paternal family were of Aboriginal heritage from the “B” region. Before the Court were a family report prepared by psychologist “Ms L” and evidence from Koori support workers and Aboriginal elders “Ms H”, “Ms N” and “Ms A”.

The Court said (from [419]): “I must craft orders that protect X and Y from … harm ( … ) [423] The children’s views as expressed to Ms L are quite clear: they do not wish to see or spend time with Ms Hallett.

[424] … [T]he children are still quite young, and Ms L’s evidence is that their views have been negatively influenced by their mother. It is difficult to see how they can have avoided that influence, whether directly, by being told that [the grandmother] and the father are ‘bad people’, or indirectly by being exposed to their mother’s severe PTSD around issues involving their father’s family.

[425] While I accept the children’s views as genuine, I do not place a great amount of weight on them because of their young age, and the … influence of their mother. ( … )” The Court continued (from [441]): “The evidence … does not give … much confidence that the … grandmother is capable of caring for the children. ( … ) [456] I am satisfied … that Ms A’s proposal that she work with [the mother] to allow the children to be introduced to paternal family members and taught where they fit into their father’s family and B society at family gatherings and cultural events … will allow them to ‘enjoy’ their Aboriginal culture with other people who share that culture.”

It was ordered accordingly.

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

Charging Professionalism Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

•

Lawyer charging has long proven a vexed issue in society, and a frequent area for client complaint.

•

While complaints often target smaller firms whose clients are not wealthy, a commitment to professionalism more broadly supports a level of charging restraint.

•

Lawyers whose charging reflects over-servicing may nowadays not escape a disciplinary consequence.

Charging by lawyers has long been an issue of concern for society. In the modern era of consumerism, it consistently represents a principal area of client complaint, even if statistics show that most such complaints lack sufficient foundation. At the same time, there is considerable disciplinary case law on lawyer over-charging,1 and the regulation of lawyers, at general law and under statute, has hardly overlooked the topic.

The judiciary assumed a discrete jurisdiction to set aside costs agreements, otherwise without parallel in the law. The latter has since translated to statute, which has also formalised the process of taxation (assessment) of costs, again unique to charging by lawyers.

Unsurprisingly, broadly speaking the members of the legal profession who earn the most money from legal practice are those whose clients have the most money. These lawyers figure infrequently in the taxation (assessment) environment, are rarely the victims of having costs agreements set aside and exhibit little presence in the disciplinary arena vis-àvis overcharging. Indeed, statistics reveal that client complaints chiefly target sole practitioners or small practices, and those who practice family law, personal injury law and succession;2 a common denominator in each instance being clients who are ordinarily not as financially endowed as those who retain larger practices.

The latter, which often have a significant commercial practice focus, are thus more likely to represent what may be termed “sophisticated clients”, where the inequality that has historically characterised the lawyerclient relationship is diluted somewhat. The charging of costs in this environment involves more direct engagement in the market — and its inherent balancing of demand and supply — than any constraint by general law or statutory costs regulation informed, inter alia, by concern over agency costs.

Be that as it may, and granted that an entirely uniform legal profession appears a creature of the past, most lawyers still accept that professionalism must count for

something. In my experience, even the most mercenary lawyers infrequently disclaim the professional mores of public service. Perhaps this is a realisation that the profession hardly exists in a vacuum — to further its own financial position — but by reason of the value (not confined in monetary terms) of its service to society, in all its iterations.

If professionalism is to count for anything, charging is not an inapt place to focus. The prevailing fiduciary character of the lawyer-client relationship itself calls for restraint in a financial sense; indeed, that lawyers practise in what is arguably the only recognised profession to be the subject of the full gamut of fiduciary responsibility itself supports the public service notion.

While fiduciary law may not have featured prominently in the lawyer-client charging environment — chiefly because of the other legal avenues available to address costs issues mentioned earlier — it may not be without significance that on an occasion where it did, a large commercial law firm was the defendant.3 Indeed, a concern underscoring methods of lawyer charging is the prospect that lawyers have significant unilateral discretion when it comes to the services provided within a retainer, and thus (usually) the costs charged for those services. With this, there is the attendant concern that lawyers could be overremunerated for their services. The “blank cheque”4 notion underscoring some people’s perceptions of time charging, and Anglo-Australian law’s disdain for percentage fee charging,5 are in part informed by this very concern. That civil procedure reforms directed to the just, efficient, timely and cost-effective resolution of the real issues in dispute include lawyers as a primary target is similarly a recognition of the need for financial restraint.

In this environment, it is accordingly unsurprising to find a heightened sensitivity, in the disciplinary realm, to lawyers who perform ostensibly unnecessary work for what appears primarily an effort to increase their earnings.6 Concerns surrounding lawyer charging, and associated access to justice, dictate that this sensitivity is unlikely to abate with the passage of time.

Endnotes 1 2 3 4 5 6

See G E Dal Pont, “Contextualising Lawyer Overcharging” (2016) 42 Mon ULR 283.

T Sklar, Y Taouk, D Studdert, M Spittal, R Paterson and M Bismark, “Characteristics of Lawyers who are Subject to Complaints and Misconduct Findings” (2019) 16(2) J Emp Stud 318.

Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228.

Re Ladner Downs and Crowley (1987) 41 DLR (4th) 403 at 428 per Southin J. But in Victoria now see Justice Legislation Miscellaneous Amendments Bill 2019 (Vic), with its proposed introduction of percentage fees in the class action environment, via a new s 33ZDA in the Supreme Court Act 1986 (Vic).

See, for example, Hawkins v Council of the New South Wales Bar Association [2019] NSWCATOD 148.

45

Law Council Update Law Council concerned government amendments to the ASIO Act are an overreach Australia needs to maintain security laws that do not extend further than is necessary to respond to the security threats they are designed to thwart, says the Law Council of Australia.

Appearing at today’s public hearing into the Australian Security Intelligence Organisation Amendment Bill 2020, Law Council of Australia, President Ms Pauline Wright, reiterated calls for the design of intrusive and coercive powers to remain proportionate.

“The Law Council is not denying that intelligence operatives work in a complex and dynamic security environment and need appropriate and adequate powers to keep the community safe,” Ms Wright said.

“But there needs to be greater precision in defining the limits and authorisation thresholds for the proposed powers in the amendment.”

“This will ensure that the use of the powers is not so dependent on executive discretion. Coercive powers such as these should have clear constraints set out in the legislation. Where there is overreliance on Ministerial discretion, public confidence may be eroded” Ms Wright said.

Speaking before the Parliamentary Joint Committee on Intelligence and Security, the Law Council President acknowledged that the Bill includes some beneficial measures, including the removal of ASIO’s power of detention, an extraordinary power that the Law Council has long opposed and which has never been exercised.

“In principle, the Law Council does not oppose the continuation of a compulsory questioning power for a fixed term of up to five years” Ms Wright said.

46 | BRIEF MARCH 2020

“But we are concerned that there are inadequate safeguards especially with respect to the proposal to lower the minimum age of questioning to 14-year-old children. And the lack of a requirement for the judicial authorisation of ASIO warrants is also disquieting.”

“The Law Council remains of the view that post-charge questioning raises an unacceptably high risk of harm to the rights of an accused person to a fair trial, and the proposal to enable internal authorisation for the use of tracking devices, without the need for an externally approved warrant, raises some real concerns, with unintended consequences being likely,” Ms Wright said.

Government going too far prohibiting items in detention facilities A blanket ban on mobile phones appears to be the primary aim behind the current Bill before the Senate Legal and Constitutional Affairs Legislation Committee according to the Law Council of Australia.

Appearing at today’s hearing into the Migration Amendment (Prohibiting Items in Immigration Facilities) Bill 2020, Law Council President, Pauline Wright, said that a ban on mobile phones would unreasonably restrict immigration detainees’ access to timely legal advice.

“Mobile phones are critical tools for people attempting to navigate an extremely complex and time-sensitive legal area,” Ms Wright said.

“Banning the use of mobile phones means that people detained in immigration facilities are denied the ability to access their lawyer at time critical moments, and in a private setting.”

While the Law Council supports effective management of safety in immigration detention facilities,

it is imperative that this occurs in accordance with the rule of law.

The Law Council is concerned that the extraordinarily wide definition of ‘prohibited thing’ within the Bill reaches far beyond what is reasonable and acceptable.

“The lack of a prescribed definition of what is prohibited gives the Minister latitude to declare virtually any item a risk,” Ms Wright said.

“A pen and paper, art supplies, musical instruments and any number of everyday items could be considered prohibited.”

“Prohibiting the access to items must be justified and subject to appropriate oversight and safeguards,” Ms Wright said.

“The Law Council believes that the Bill should not be passed as the case has not been made that the amendments to the legislation are necessary, reasonable or proportionate.”

The Bill also expands existing search and seizure powers, including the widening of the purposes of a strip search, while not providing sufficient safeguards or oversight.

“These amendments water down the existing safeguards and increase the risk of potential misuse and arbitrary decision-making,” Ms Wright said.

“It must be remembered that many people held in detention are genuine refugees, not criminals.”

“The government asserts that these laws are necessary to deal with the rise in the number of criminals in immigration detention. However, standard criminal law processes are already available and if criminal activity is found to be taking place, then the police can and should be called.”

“This is the normal process across Australian jurisdictions,” Ms Wright said.

47

The Tale of the Trickster Tippler

By John McKechnie QC

What does a bottle of Napoleon Brandy and a huge storm have in common? Read on, gentleperson and you shall see.

At the end of a hard day's work outside in the heat, most Australians like to kick back with a beer or two, or maybe a soothing scotch and soda.

Well, Golgie Kelly had been working hard and thought he was entitled to a drink.

That sense of entitlement earned him nine months in the slammer.

You see, the day Golgie was working was not just any day, it was a couple of days after Christmas Day. And it wasn't any old Christmas Day either, it was Christmas Day 1974 in Darwin.

On that Christmas Day, cyclone Tracy struck in all its fury, killed 71 people and caused $837 million damage. More than 70% of all buildings were destroyed.

The federal government swung into crisis mode and sent Major General Alan Stretton to take charge. The Governor General, Sir John Kerr, declared a state of emergency and invested General Stretton with full powers.

Federal public servants, including police officers, flew into Darwin to help with relief efforts.

Even the local gaols were emptied as prisoners joined in the clean-up in difficult conditions and sweltering heat.

And so we return to Golgie who was one such prisoner.

At day's end, feeling in need of a tipple, Golgie approached Mr Lionel Fernandez at Casuarina High School being used as an evacuation centre. Mr Kelly told Mr Fernandez that he was Sergeant Detective Walker of the Commonwealth Police and that he was here to requisition all liquor and spirits at the school. Mr Fernandez, who may have been somewhat credulous, believed Mr Kelly who departed with a bottle of whiskey and a bottle of Napoleon brandy, value $12.

Mr Kelly was soon apprehended and charged with impersonating a police officer and obtaining property by false pretences.

and declared the court closed.

The magistrate, who was hearing another case at the time looked surprised, and adjourned that case to speak with General Stretton.

Subsequently, both men met with Chief Justice Forster, following which General Stretton apologised for his actions, proving once again that the pen really is mightier than the sword.

Back we go to Golgie Kelly who instituted an appeal with the redoubtable Ian Barker as his counsel. Persuasive though he was, the appeal judge would have none of it.

At a time when police from other parts of Australia were being flown into Darwin, at a time when some were in clothes which did not really identify them as police officers, it was surely important to discourage persons from seeking personal gain or advantage by passing themselves off as persons vested with police power and authority.

Nor did Mr Barker's argument, that it was a childlike ruse and that the whole transaction had a faintly absurd tint, find any traction.

So despite the drama which Mr Kelly's sentence had first created with accounts of it published throughout the world, he remained in prison to finish his term.

And the world moved on.

The Chief Magistrate, Mr David McCann, left the Northern Territory shortly thereafter, settled in Western Australia becoming a Magistrate and in due course, Coroner.

On his retirement in 1996, the Attorney General, Peter Foss, paid tribute to his dedication to WA's coronial service and for the teaching role he played in the development of the Australian Coroner's Society.

Mr McCann contributed, albeit perhaps unintentionally, to the development of the concept of procedural fairness as the respondent in Annetts v McCann (1990) 170 CLR 596.

So it was that Mr Kelly appeared before the chief magistrate on 30 December 1974. Darwin was still in chaos, though order was slowly being restored and repairs made. But the majesty of justice continued unaffected.

The Appeal Judge, James Muirhead, AC, KStj, QC, encountered Mr Barker again when Mr Barker, QC prosecuted the case of The Queen v Alice Lynne Chamberlain, the details of which are as well-known as Cyclone Tracy.

The chief magistrate took a serious view of the offence, perhaps worried about looting and lawlessness, and sentenced Golgie Kelly to nine months imprisonment.

He relocated to Perth and became a Royal Commissioner into Aboriginal Deaths in Custody, later returning to the Northern Territory for a time as Administrator.

And that was that.

Nothing can be found as to what became of Golgie Kelly, notwithstanding his moment of world fame.

Well, not exactly. Major General Stretton was told of the facts and the sentence. He immediately strode into the court house, sent his compliments to the chief magistrate

48 | BRIEF AUGUST 2020

(Adapted from Kelly v Brooks (1975) NTJ 927)

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Competitive rates.

Enquiries to Chris Marshall of Marshall Lawyers WA. Phone 0438 922 075.

Missing Will Would any lawyer holding a will for HELEN MAY BROEKSTRA (NEE SHARP), late of Queenstown, New Zealand, born on 14 September 1953 in Perth, Western Australia, who died on 7 November 2019, please contact Susan Thodey of Heaney & Partners, Barristers and Solicitors. Email susan.thodey@heaneypartners.com or phone +64 (9) 367 7002 and +64 (21) 313700. Post: PO Box 105391 Auckland City

Castledine Gregory is pleased to announce that Andrew Roberts has joined the firm as a Special Counsel. Andrew has nearly 30 years’ experience in the areas of planning, local government, heritage and environmental law. He has Andrew Roberts acted for planning authorities, including many metropolitan and regional local governments, as well as private clients. Andrew is highly regarded for his personable and practical approach to assisting clients. He looks forward to continuing and further developing his practice at Castledine Gregory.

Dwyer Durack Dwyer Durack is pleased to announce that Eleanor Scarff has been promoted to Director effective from 1 July 2020.

Whilst Dwyer Durack is one of WA's oldest firms, it has evolved into a modern legal practice and have embraced Eleanor Scarff cultural diversity and gender equality. Eleanor joins Peter Fraser and Maree van der Kwast who are thrilled to see a 2/3 majority female directorship again.

New Members New members joining the Law Society (July 2020) Restricted Practitioner

Missing Will

Missing Will

Any person knowing of the existence or whereabouts of the last Will and Testament made by RUTH REIDY born on 20 January 1921 in New Zealand, please contact Carter Dickens Lawyers, 102/126 Grand Boulevard, Joondalup, WA, 6027.

Telephone: (08) 9408 5212 Email: info@cdlawyers.com.au

MISSING WILL - Edward Judd Stewart Skevington: Would any person or firm holding or knowing the whereabouts of a Will or other testamentary document made by Edward Judd Stewart Skevington born 26/09/1963, found deceased on 17/05/2020, late of 4 Portree Way, Ardross, WA, please contact M6:8 Legal on (08) 9316 8363 or by email: admin@m68legal.com.au within 1 month of the date of publication of this advertisement. Ref: MC

Mr Benjamin Caratti Alan Rumsley Ms Emma Boogaerdt Allens Ms Kayla Herbert Pilbara Community Legal Service

Associate Membership Mr Timothy Doukakis AGH Law Mr Jet Hang Murdoch University School of Law

JOHN LOUIS SHOESMITH late of Nazareth House, Crowtherton Street, Bluff Point, Western Australia who died on 29 September 2018 at Geraldton, Western Australia.

Would any person holding the last Will and Testament of JOHN LOUIS SHOESMITH or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, Perth, WA, 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 20001006 EM26.

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Mr Angus Hornigold A & E Legal Pty Ltd (Trading as A & E Legal)

Mrs Vanessa Rando The University of Western Australia - Law Faculty Ms Ashley Renfro Murdoch University School of Law Ms Brenda Sia Provident Lawyers Miss Alexei Taroy Murdoch University School of Law Miss Megan Usher Edith Cowan University Business & Law Miss Sonya Walker The University of Western Australia - Law Faculty Miss Renee Wiltshire The University of Western Australia - Law Faculty

Miss Megan Menon Austwide Legal Pty Ltd

Ordinary Membership

Ms Adele Offerman University of Notre Dame Australia

Ms Ellie Haas Knowmore Legal Service

Mr Rex O'Rourke Health and Disability Services Complaints Office

Ms Susan Hewitt Bright Side Family Law

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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

Member Assistance Programme

Employee Relations Advice Line

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.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

CoronaCare

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.

LawCare WA now includes a suite of dedicated support programmes called ‘CoronaCare’ to help support you and your organisation manage through the uncertainty that we are all experiencing as a result of the emergence of COVID-19 (Coronavirus). Visit our website to find out more.

Referral service provided by WABA

Phone: (08) 9220 0477

Service provided by Converge International

Phone: 1300 687 327 LawCare WA is available to members of

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*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.