Brief October Edition

VOLUME 47 | NUMBER 7 | OCTOBER 2020

‘Publication’ of Defamation in the Digital Era Also inside...

Extraordinary But Not Without Foundation: The WA Government’s Response to an Unprecedented Threat Section 92 of the Constitution and the Future of our Federation Sharing Transcripts of Judicial Proceedings (and their costs) Between Parties; Copyright Infringement or a Frugal Sleight?

Self-care during COVID-19 Obituary: Stephen Thackray; Holding Court to End

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Volume 47 | Number 7 | October 2020

ANS

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CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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ARTICLES 05

‘Publication’ of Defamation in the Digital Era

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Third Parties in Family Law Proceedings

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Sharing Transcripts of Judicial Proceedings (and their Costs) Between Parties; Copyright Infringement or a Frugal Sleight?

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Traps for Bilingual Lawyers – A Risk Management Reminder

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Claims Harvesting

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Early Career Lawyers Overwhelmingly Want Our New ‘Business as Usual’ to Include Flexible Work Options

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CREATE PLAN

Extraordinary But Not Without Foundation: The WA Government’s response to an Unprecedented Threat Section 92 of the Constitution and the Future of our Federation Self-care during COVID-19

38

Ombudsman Elected President of World Body

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Obituary: Stephen Thackray; Holding Court to End

The Accountability Agencies at Albert Facey House

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

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

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

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

Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Charles McDonald RRP $16.00 incl GST.

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

REGULARS 02 CREATE PLAN

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Senior Vice President: Jocelyne Boujos Junior Vice President & Treasurer: Rebecca Lee

President's Report

50

Quirky Cases

Editor's Opinion

51

Cartoon

40

Book Review

52

Law Coucil Update

42

WA Case Notes

53

Professional Announcements

45

Drover's Dog

53

Classifieds

53

New Members

46

High Court Judgments

48

Family Law Case Notes

Immediate Past President: Greg McIntyre SC 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

01

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

WA Mental Health Week 2020

Elections for 2021 Law Society Council

This year, for the first time, I start some sentences with the words “my psychologist says”. 2020 was the first year I sat down with a psychologist. I’m so glad I did. My biggest reflection is: why didn’t I do this years ago? The answer is: I didn’t want to.

I thought mental health help was great – for other people. I thought I didn’t need it, and I think I had some sense of pride about that. I now reflect on that attitude with shame.

Members eligible to nominate for a position on the Law Society’s Council in 2019 will have now received an electronic link to the nomination form. Nominations close on Wednesday, 14 October. I strongly encourage members to consider nominating for Council.

2020 – well, it’s been a year. As one uncertainty piled onto another, I became increasingly withdrawn, quiet and sad. The principal reason I got help was a good friend in the law who told me that her favourite conversations were the chats she had with colleagues about their new insights following their own psych appointments.

My friend was right. They are some of my favourite chats now too.

I suspect another reason I got help was the Hon Attorney General’s remarkable address at Piddington’s Mental Health forum last year. The Hon John Quigley MLA spoke candidly, openly and bravely about his own experiences. The sub text: even some of the most optimistic and exuberant people can sometimes use some help.

Every year, both R U OK? Day (10 September) and WA Mental Health Week (10-17 October) remind us of the importance of reflecting on our health and wellbeing. This year’s Mental Health Week theme is Strengthening Our Community – Live, Learn, Work, Play and is aimed at increasing mental wellbeing in WA communities.

The pandemic meant profound change for all of us, in our work and lives, and those of our clients. Legal firms and their staff have faced unprecedented challenges and have had to balance the delivering of services with health and safety. Many adapted swiftly to an online mode of service delivery and working remotely.

Never has it been more important to be mindful of mental health and wellbeing. Thankfully, there is plenty of support and resources available to help deal with change. Some of these can be found in the Law Society’s Continuing Professional Development programme, and our Law Care programme. For some of us, help may require speaking with a true subject matter expert. (How many times have we counselled junior lawyers against being social workers?) For others, making time for an authentic conversation with a trusted colleague may be a good place to start.

As part of Mental Health Week Western Australia, the Law Society’s Mental Health Panel will share different perspectives on creating positive mental health in the work place, doing it better and walking the talk through use of effective tools in the upcoming webinar, “Creating Positive Mental Health: Different Perspectives, Doing it Better, Walking the Talk” on 13 October and I encourage you to join in the discussion.

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It is essential the Law Society continues to be representative of our broad and diverse legal profession in Western Australia, and I therefore encourage any eligible member who is thinking of nominating to please do so. It may also help to reach out to existing councillors, or members of executive, if you’d like to discuss your nomination.

Once the nomination period closes, voting will open on Wednesday, 28 October, with ballot papers transmitted to eligible members electronically by independent voting services organisation CorpVote.

Ballots will close at 3.00pm WST on Wednesday, 11 November. I strongly encourage all eligible members to engage with the voting process.

The Law Society benefits from the knowledge and experience of its Council members. The Council plays a pivotal role and sets the strategic direction of the Law Society, and, with the guidance and recommendations of the Law Society’s committees, acts as the voice of the legal profession through submissions and regular liaison with government, the courts and other stakeholders. Please look out for further information on the Council elections in the coming weeks.

of our experiences during COVID-19. The results of the survey is shown on page 35.

The survey overwhelmingly found that early career lawyers want to keep the option to work flexibly from home, but need their employers’ support to do so effectively. The survey results will inform our work on a Guide to Workplace Entitlements for early career lawyers, and a Best Practice for Legal Workplaces Discussion Paper.

In the December edition of Brief, we will be commemorating the YLC’s 40th anniversary, providing an interesting look at past and present initiatives from this dynamic group of young lawyers. Make sure you keep a look out for the next edition of Brief.

WA Supreme Court Judgment Following Trial of Bradley Edwards “This is a trial like no other. This is a trial like every other. Those apparently irreconcilable statements are both true.”

These were the opening words of his Hon Justice Hall’s 619 page judgment delivered on 24 September following the trial of Bradley Robert Edwards. Extensive investigation led to an “unusually lengthy and detailed prosecution case”, involving 95 trial sitting days, 240 witnesses and 2,879 exhibits.

On behalf of the Law Society, I acknowledge the committed work of the senior counsel and all lawyers engaged in this trial, and their significant contribution to the administration of justice in this State. A full media statement in available on the Law Society’s website.

Uniform Law Update

End of Year Celebration – Save the Date

The Law Society hosted one of its most important CPD seminars this year on 30 September: an introductory information session on Legal Profession Uniform Law (LPUL). The biggest ever seminar hosted by the Law Society, a record breaking 350 plus attendees heard from the Hon John Quigley MLA, Attorney General for Western Australia, Joshua Thomson SC, Solicitor General, the Legal Practice Board and more, about the key changes between the current WA Legal Profession Act and associated rules and regulations and the WA Legal Profession Uniform Law and uniform general rules.

The Law Society’s annual End of Year Celebration is fast approaching! The event will be held on Thursday, 10 December 2020, from 5.30pm to 7.30pm, at Lamont’s Bishops House.

The End of Year Celebration is always a fantastic evening, so please save the date in your diary now so as not to miss out.

With its imminent implementation, it is vitally important for all legal practitioners to have sound knowledge of LPUL. As part of the Law Society’s LPUL CPD Seminar series, Twilight Thursdays will provide focused sessions looking at some of the most impactful changes in more detail. All the sessions will be recorded and will be replayed on Mondays. In addition, the Law Society has also developed an LPUL central hub on our website to keep members informed.

YLC COVID-19 Survey The YLC working group on early career lawyer working conditions recently carried out a survey

Registrations to reserve your place at this event will be open soon.

Law Society Annual General Meeting The Law Society’s Annual General Meeting will be held on Thursday, 19 November 2020 at 5.15pm on Level 26, QV1 Building, 250 St Georges Terrace – the offices of Herbert Smith Freehills.

Please mark this in your calendars, and I look forward to seeing as many members as possible there for our meeting, followed by drinks and refreshments.

For now, I wish you all a safe and happy month of October, and as always, would love to hear from you, our members. Please contact either me directly, any other member of the Executive or the Law Society’s Chief Executive Officer, to share with us your ideas, feedback and concerns.

Advocacy Column Ethical Guidance Panel and Silks List The Law Society has engaged in a ‘refresh’ of its Seniors Advisors Panel (which has been renamed as the Ethical Guidance Panel), and updates the list of experienced lawyers who are willing to advise their fellow practitioners on ethical and practice matters.

Members will now find on the Society website a list of all Senior Counsel / Queen’s Counsel in Western Australia, along with the names of senior practitioners who have been appointed to the ‘Ethical Guidance Panel’. A practitioner seeking assistance should, at least in the first instance, contact a silk or a member of the Ethical Guidance Panel directly. Alternatively, if a difficulty in relation to availability or necessary expertise is encountered, a practitioner may telephone the WA Bar Association on (08) 9220 0477 for a referral to a silk, or may telephone the Society on (08) 9324 8600 for a referral to a member of the Ethical Guidance Panel Guidance Panel with relevant expertise.

The Law Society thanks its Ethics Committee for instigating the review and those members who have generously volunteered to be on the panel.

Legal Profession Uniform Law

of the Uniform Law, as well as a Frequently Asked Questions section, will be published on the Society’s Uniform Law website hub. Links to any publications by the Legal Practice Board WA will also be available on the hub.

State Election 2021: Update of Briefing Papers The Law Society continues to update it’s Briefing Papers to express its policy position to both the Government and the Opposition on issues relevant to the legal profession.

Since the last issue of Brief, the following papers have been updated and are available on the Law Society website: • Imprisonment of fine defaulters • Issues affecting incarceration rates of Aboriginal and Torres Strait Islander Children • Insurance Claims Harvesting Papers on ‘Judicial Resources’ and ‘Domestic and Family Violence’ are before the relevant Committees and will be finalised presently.

Definition of Sexual Harassment in the ASCR The Law Society has contributed to the Law Council of Australia’s review of rule 42 of the Australian Solicitors Conduct Rules regarding the reformulation of the prohibition on sexual harassment. The Law Society’s correspondence will be published on the website and the final report of the Law Council of Australia will be promulgated in Friday Facts.

who hold documents on behalf of their clients and are faced with a request to access these documents.

Particular attention is given to access to wills as this is the area where most problems seem to arise.

The Guidelines are available on the Law Society website.

Efficiencies from COVID-19 in the District Court The Law Society has written to the Chief Judge to support continuing efficiencies introduced by the Court due to the COVID-19 pandemic in the longer term, namely appearances by teleconference or videoconference for certain hearings.

The Society contends that in respect to the remote hearing procedures in Courts: • whether by telephone or video, remote hearings not suitable for any matters where there is substantive argument; • remote hearings may be of value in routine directions hearings or listing conferences; and • in any event, a departure from appearing in person should only be by consent of all parties involved and if that is not forthcoming, all parties should attend in person.

The Law Society also supports the view of Legal Aid WA that in the criminal jurisdiction of the District Court due the following practices should be retained:

The Law Society’s Working Group on Uniform Law is busy co-ordinating the preparation of CPD Seminars and Factsheets to prepare the profession for the commencement of the new regime from 1 July 2021. The Society’s introductory webinar was an edifying session and the Society extends its sincere thanks to all involved.

Guidelines: Release of Wills and Other Documents

• audio link and video link appearances for administrative type hearings (e.g. trial listing hearings and sentence mention appearances); and

In the coming weeks the series of Factsheets on various aspects

The purpose of these Guidelines is to provide assistance to lawyers

• the allocation of ‘not before’ times for sentencing matters.

• Compulsory Criminal Case Conferences (with some variations);

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

Coming into the final quarter of 2020, many are no doubt thinking the ancient Mayans were onto something and shouldn’t throw away their gold, chocolate, or human heart betting slips quite yet. Our unique local “hub” has been through the “premiership term” and there is a surreal vibe. COVID still looms large(est) as highlighted by POTUS now having got it. While much needs to be done before Australia resembles her pre-COVID self, there is a semblance of normalcy in our local hub, coupled with serendipitous insights into how the law might be practiced post-COVID. This October edition reflects this dynamic, with items on COVID and its impact, such as Angela Heise on self-care during COVID, and the YLC’s report on younger lawyers’ views as to what ‘business as usual’ post-COVID might involve. We also have Michael Douglas and Charles Dallimore on Section 92 of the Constitution and its significance, given the litigation flowing from COVID measures.

This edition has other items of importance to the profession. We are grateful for the Attorney General John Quigley MLA’s article “Extraordinary But Not Without Foundation: The WA Government’s Response to an Unprecedented Threat” about the “Clive Palmer” legislation.

We also have Jonathan O’Connor on the Sharing of Transcripts, Fiona Stanton on Claims Harvesting, Information Commissioner Catherine Fletcher on the Accountability Agencies at Albert Facey House, Nicola Jansen on Third Parties in Family Law Proceedings, and Dr Andrew Lu OAM on Traps for Bilingual Lawyers.

Our feature article is a prescient one: Michael Douglas and Martin Bennett on ‘Publication’ of Defamation in the Digital Era, an area where the law is trying to keep pace with modern society.

The centenary anniversary of the first Melbourne to Perth flight is coming up, which is pertinent given that a Melbourne to Perth flight it something which, ironically, seems unachievable for most Australians at the moment.

The flying time for this first flight was 19 hours 10 minutes. Several readers would have felt, after a joyous tailwind-assisted trip over East, that the flight back from Melbourne seemed to take 19 hours and 10 minutes: especially West Coast Eagles fans in 1991, 2005 and 2015, and Dockers fans in 2013, returning from the AFL Grand Final.1 The participants in that epic flight, pilot Francis Briggs and his entrepreneur sponsor C.J. De Garis, are characters of their time, sharing a passion for adventure and the potential for

04 | BRIEF OCTOBER 2020

commercial air travel (and also living through the Spanish Flu pandemic).

Francis Briggs was born in India, though via Saint Helier then Jersey, ended up in Adelaide. He was trained by and flew with the Royal Flying Corps in WWI, taking him to Egypt (where he contracted Spanish Flu), France, Scotland, and all over England.

Charles Kingsford Smith was a colleague. He transported Australian PM Billy Hughes to and from the Versailles peace conferences – an acquaintance that served him well upon return to Australia when Hughes helped him out with his flying ventures. He ended up in Perth, heading up the Shell Corporation’s aviation department here.

When assigned to a post at Stonehenge on Salisbury Plain, Briggs wrote, dissatisfied with what was passed off as an aerodrome, that there were: “no hangars, no nothing. At some time or other somebody has set up a bloody big heap of massive stones likely to prove obstructions on the edge of the drome” making him (in a big swing) either the most, or the least, witty person in Britain at the time.2 Briggs’ writings are great reading, though may offend modern sensibilities by being peppered liberally with unfortunate references to “The Hun”.

Back in Australia Briggs teamed up with C.J De Garis, a flamboyant entrepreneur who made his (temporary) fortune in the Mildura dried fruit industry. He came up with the phrase “Sun-Raysed” (ultimately “Sunraysia”) which permeated his prolific and innovative advertising campaigns. His advertising extended to promoting dried fruits as a treatment for the Spanish Flu, with the catchphrase: “I fear no more the dreaded ‘flu, For Sunraysed fruits will pull me through”.3 De Garis’ enthusiasm for a Melbourne to Perth flight was influenced by his investments in Adelaide and Kenedup, WA (the latter being the subject of a local hub Royal Commission in 1923). Although exonerated, his investments ultimately resulted in serious financial trouble, such that he, rather audaciously, faked his suicide by drowning in Port Phillip Bay, leaving behind no less than 70 farewell letters (given the lack of modern technology, this was an, albeit fraudulent and narcissistic, achievement in itself). Tragically, after this ruse was exposed, and upon detection fleeing to NZ, he did take his own life. He remains an enigmatic figure in Australian history: businessman, newspaper owner, commercial airline pioneer, author, playwright and theatre producer.

The Editor’s eye was caught, in a century old newspaper advertisement for Sun-raysed fruits,

by an ad on the same page for “Dr. Sheldon’s Gin Pills” which (somewhat counterintuitively) claimed to conquer “sluggish kidneys”.

This may come as a surprise to many whose experience of gin is that it ultimately leads to feeling like an Eagles or Dockers fan in 1991, 2005, and 2015 or 2013 respectively, and reviving a sad teenage journal to write poetry by candlelight in the style of a downbeat Sylvia Plath or Emily Dickinson.4 Further research on Samuel Sheffer, an Iowan born chemist who set up Australian pharmaceutical and personal care product businesses, including Rexona Pty Ltd, revealed an uncanny legal connection.

The Scheffers’ daughter and director of several of their companies, Mary Alice Evatt, become an “Evatt” in November 1920 by marrying Herbert Vere (Bert) Evatt – yes, the High Court Justice, politician, and diplomat.

Evatt’s rich life, legend and legacy cannot be adequately described in this Editorial. He has been described as many things. Especially, it seems, by his High Court colleague Sir Hayden Starke.5 Evatt had been junior counsel for the State in the famous, and initially dubbed, “Western Australian Trading Concerns Case” (aka the Engineers’ case) which the last Editorial noted could have borne the local WA hub element in its shorthand name. The Editor accepts that, as his kids would tell him and younger (or older readers with daughters) may recognise from the 2004 film Mean Girls, that he should “Stop Trying to Make ‘Fetch’ Happen” and it will forever be known as the Engineers Case.

This edition of Brief contains our usual and much appreciated regular items and, on a sad note, an obituary for former Chief Judge of the Family Court of WA, Stephen Thackray. Brief also notes the sad passing earlier this year of the Honourable Justice Michael Murray AM QC, Supreme Court Justice, Parliamentary Inspector of the Corruption and Crime Commission, and a Society President and Life Member and hopes to have items in the next edition marking his passing.

Endnotes 1 Also, anyone who (like the Editor) is a devoted Meatloaf fan, after the 2011 Grand Final.

2 Frank Briggs, SA Aviation Museum www.saam.org.au.

3 C.J De Garis, Australian Dictionary of Biography, adb.anu.edu.au.

4 The great Irish comedian Dylan Moran referred to gin as “mascara thinner”.

5 “Sir Owen Dixon’s ‘parrot’” being apparently one of the more polite: Lloyd, C; “Not Peace but a Sword - The High Court Under J.G. Latham” (11 Adel. L. Rev. 175)

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

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‘Publication’ of Defamation in the Digital Era

By Michael Douglas Consultant, Bennett + Co and Senior Lecturer, University of Western Australia and Martin Bennett Founding Principal, Bennett + Co

Most commentary surrounding Australian defamation law suggests that the law is outdated or ill-equipped for the digital era.1 There is superficial truth to that suggestion.

Australian defamation law is the product of centuries of common law development and various iterations of unsatisfying legislative intervention.2 It is fragmented and not entirely coherent. It can be tricky.3 Yet that does not mean that we should do away with defamation law. The action protects reputation—one of the most valuable things a person can have. In the digital era, in which online content is increasingly accessible and permanent, reputation is perhaps more valuable than ever. Reputation is important, and so defamation law is important.

06 | BRIEF OCTOBER 2020

In this article we explore one aspect of how defamation law has adapted to the digital era: the development of the ‘publication’ element of the cause of action. In the last few years, a number of cases have touched upon this element, challenging expectations as to the scope of defamation liability. We show that Australian defamation law is adapting to

the digital era, albeit in a way that some media and tech companies may not like.

Publication in defamation law The cause of action is constituted by publication of defamatory matter of and concerning the plaintiff. Liability is strict; intention is not necessary for liability.4 If the matter is defamatory then damage is presumed.5 The concepts of ‘publication’ and ‘matter’ are related. The latter is the medium by which publication is made. The Uniform Defamation Acts provide that ‘matter’ includes: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical;

(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication; (c) a letter, note or other writing; (d) a picture, gesture or oral utterance; and (e) any other thing by means of which something may be communicated to a person.6 ‘Matter’ is thus technology neutral. With the distinction between libel and slander abolished,7 the spoken word can found defamation, as can a WhatsApp message or a meme.8 ‘Publication’ in defamation law is a term of art. It involves communication.

It requires that defamatory meaning be conveyed to a person other than the plaintiff. According to the High Court majority in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575:9 Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer.

Until then, no harm is done by it.

This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.

As a ‘bilateral act’, publication requires more than mere authorship and even more than merely posting content on the internet.10 Unless a person other than the plaintiff has the defamatory matter actually available and communicated to them, then their opinion of the plaintiff will not be diminished; there will have be no reputational damage because there will have been no publication. Publication is a question of fact.

Most instances of publication of defamation involve a so-called ‘positive’ act: the defendant says something, or writes something, which is comprehended by others. But omissions may also satisfy the publication element in certain circumstances. In Byrne v Deane [1937] 1 KB 818, proprietors of a golf club were ‘publishers’ of an arguably libellous notice on the club’s notice board by failing to prevent the dissemination of the matter.

The proprietors were aware of the notice but failed to act.

Another aspect of the proposition that ‘authorship and publication are distinct’ is that individuals, including corporate persons, may be liable as ‘publishers’ of defamation which another person has

also published. Anyone who participates in dissemination of the defamation is a publisher.11 In the circumstances of Byrne v Deane, the proprietor of the notice board was sued, but the author of the notice if identified could have also been sued.12 This is not a question of vicarious liability. Each publisher is primarily liable.

Moreover, the plaintiff has no obligation to sue all publishers of the defamation. For example, if Brief publishes a defamatory article, the defamed person could sue The Law Society, its editors, or the author, but may elect to avoid suing The Law Society and the editors. The Voller case, discussed below, demonstrates such an election.

In the last few years, Australian courts have increasingly recognised that companies providing web search platforms may be liable for the damage their services inflict on the reputations of natural persons."

Publication by search providers: the Google cases In the last few years, Australian courts have increasingly recognised that companies providing web search platforms may be liable for the damage their services inflict on the reputations of natural persons. Corporate manifestations of Google are a familiar party to leading defamation cases that have developed the law surrounding ‘publication’.13 In Trkulja v Google LLC (2018) 263 CLR 149, the High Court considered the defamatory capacity of Google search results.14 Searching for Mr Trkulja’s name returned Google Image search results containing images of Melbourne underworld figures. The Court held that it would be open to the ordinary reasonable person making a Google search to conclude that defamatory imputations were conveyed by the search results. An interesting aspect of that holding was the Court’s agnosticism on how the ordinary, reasonable person would perceive the

technical processes underlying the Google search engine.15 Some Google users understand the correlation between keywords and images is a function of algorithms and user behaviour, and not a deliberate sleight, but others would not.

Accounting for the variety of IT savvy within the community, the Court set a generous standard for capacity of the publication to defame. The proceeding was inappropriate for disposal at the interlocutory stage.

A broader takeaway from Trkulja is that a search engine’s automated composition of online content created by others is a ‘publication’ that may found defamation liability. With countless businesses relying on automation and AI to produce content accessible on the internet, any composition of content—not just text or audio authored by the particular business—is potentially defamatory matter.

Defteros v Google LLC [2020] VSC 219 went a step further. The plaintiff, a Melbourne criminal law practitioner, had sued Google over results of a Google search of his name that linked to news articles that were defamatory of him.

Richards J held that Google was not just publisher of the results page—it had published the content within the news articles linked in the results: The inclusion of a hyperlink within a search result naturally invites the user to click on the link in order to reach the webpage referenced by the search result. The analogy with a reference in a library catalogue, while useful, does not quite capture what occurs when a search engine provides a user with search result that includes a hyperlink to a webpage. A hyperlink is more than simply a reference to where information can be found on the Web. A closer analogy is a librarian who, instantaneously, fetches a book from the shelf and delivers it to the user, bookmarked at the relevant page. All that is left for the user to do is to open the book and read it. In my view, the provision of a hyperlink within a search result facilitates the communication of the contents of the linked webpage to such a substantial degree that it amounts to publication of the webpage.16 If this approach is right—and we think that it is—then Google is a secondary publisher of everything defamatory on the internet accessible via its search results.17 Defteros was not the first decision to consider publication of defamation by hyperlink. Almost a decade ago, the issue was considered by the Supreme Court

07

of Canada in Crookes v Newton [2011] 3 SCR 269. It was argued that posting hyperlinks amounted to publication of the content underlying the link. Abella J opined that: Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.18 Although some hyperlinks may be presented like footnotes, others are presented with the expectation they will be read. The following dictum of McLachlin CJ and Fish J is preferable: [T]he combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances.

Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text. If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content. The defendant must adopt or endorse the defamatory words or material; a mere general reference to a web site is not enough. Thus, defendants linking approvingly to an innocent Web site that later becomes defamatory would not be liable. … [I]n our view, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.19 In Google Inc v Duffy (2017) 129 SASR 304, Kourakis CJ considered this dictum and held that understanding publication by hyperlink in terms of ‘incorporation’ of defamatory material by reference is preferable to understanding it in terms of ‘adoption or indorsement’.20 On the approach articulated by McLachlin CJ and Fish J, context is key. The difference between this approach and that in Defteros is the degree to which the court should rely on a positive expression of approval by the ‘linker’ with respect to the underlying content. In Australia, positive approval of matter is not a

08 | BRIEF OCTOBER 2020

requisite element of publication; all that is required is that the publisher makes the content available in comprehensible form to third parties.

about Voller. Members of the public commented on those stories. Some of those comments were defamatory of Voller.

Following Defteros, search engine providers are not the only individuals that need to be wary of the defamation risk of a hyperlink. You, dear reader, are publisher of any defamatory content to which you provide a hyperlink via a LinkedIn post or a Twitter tweet. An express disclaimer attached to your ‘linking’ may be insufficient to found a ‘bane and antidote’ argument.21

Voller commenced proceedings in defamation but not against the authors of the comments. Rather, he sued the entities responsible for the pages: Nationwide News (behind The Australian, part of ‘Democracy’s Greatest Threat’),26 Fairfax (now Nine, behind SMH), and Australian News Channel (behind that impartial television brand, Sky News).

The innocent dissemination defence in the Uniform Defamation Acts22 is a defence to liability rather than a denial of the publication element.23 However, it does provide Google and intermediary publishers with some protection where they are unaware of the existence of the defamation. It is not difficult to put such publishers on notice of the defamatory content. A quick email to a generic company email account, or completing the platform’s reporting feature, may suffice. In Defteros, Richards J considered that a reasonable time for Google to consider a notice and remove content was 7 days; that finding may guide courts’ consideration in future cases.24 The trend in the cases, including Voller, is towards a stronger stance on when a publisher ought reasonably have known that they published defamatory matter.

Publication by traditional media organisations: Voller Dylan Voller is the young man whose poor treatment in custody in the Northern Territory inspired a Royal Commission. He has attracted considerable attention from traditional media organisations in recent years. (By ‘traditional media’, we mean the entities behind Australia’s newspapers and television stations and associated online platforms. Think Rupert Murdoch and his frenemies.)

Since traditional media companies have had their business models disrupted25 by tech companies, they increasingly turn to their online content to sell the advertising which keeps their lights on.

They publish articles and video on their websites, then share news of that content on social media platforms. Typically, a certain traditional publication—like The Australian—will have its own presence on a social media platform; the company behind that traditional publication may not.

Consistent with that model, the Facebook pages of several Australian traditional media publications posted links to stories

In proceedings in the Supreme Court of New South Wales, Rothman J considered the preliminary issue: ‘Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users?’ Much to the horror of the defendants and the traditional media industry, the answer was ‘yes’.27 There is much detail to this case and its appeal not explored here. We focus on the publication element of the cause of action.

Rothman J had regard to the defendants’ use of social media as central to their business models. The evidence confirmed our lay understanding that content which creates more engagement—that is, creates more likes and comments— gains prominence on Facebook, and so in turn, is more likely to drive traffic to hyperlinked websites.28 Traditional media companies share content and encourage engagement in furtherance of their own commercial interests.29 His Honour held that ‘[e]ach defendant was not merely a conduit of the comment.

It provided the forum for its publication and encouraged, for its own commercial purposes, the publication of comments’.30 Each defendant was ‘publisher’ by virtue of its participation in the dissemination of the defamatory matter.31 His Honour concluded that the defendants could not turn a blind eye to the likelihood of defamation; operating a Facebook page for commercial ends entails a risk of liability.32 The defendants appealed. In Fairfax Media Publications v Voller [2020] NSWCA 102, Basten JA, Meagher JA, Simpson AJA dismissed the appeal, affirming that operators of Facebook pages could be ‘publishers’ of defamatory comments made by other Facebook users in content shared on the operators’ Facebook pages. Meagher JA and Simpson AJA explained: not every person who plays a “but

for” role in the communication of defamatory material participates in the publication or “makes it available” (the language in Dow Jones v Gutnick at [26]); … not every person who is aware of a risk that something they do will give rise to defamatory comment is a publisher. Each of these propositions may be correct.

However neither engages with the relevant question.33 They rejected the media argument that the first-instance decision created novel tortious liability for a failure to act, explaining that ‘[i]t is not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person’.34 They continued: ‘the effect of the principle confirmed in Trkulja v Google is that a person who participates and is instrumental in bringing about publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees’.35 At the time of writing, the publisher defendants in Voller appear to be seeking special leave. We predict they will fail.

In Trkulja, the High Court said that ‘[i]n point of principle, the law as to publication is tolerably clear. It is the application of it to the particular facts of the case which tends to be difficult, especially in the

relatively novel context of internet search results’.36 Respectfully, the principles lose all colour when divorced from context.

In the digital era, the life of the law of publication is not tolerably clear. Rothman J’s observation in Voller was better: ‘the principles [in this area] are in the process of emerging’.37 This does not disclose a defect in defamation law. To the contrary, it shows that the common law is capable of doing exactly what it was always supposed to do: mediate between continuity and change.

Law reform on the horizon: publication by social media companies For the last couple of years, NSW Attorney-General Mark Speakman has touted the urgency of legislative intervention to ‘modernise’ ‘outdated’ defamation law for the ‘social media age’.38 To that end, the Council of Attorneys-General (‘CAG’) provided a NSW-led Working Party with a mandate to propose amendments to the Model Defamation Provisions underpinning the Uniform Defamation Acts. In late 2019 the Working Party released the socalled ‘Model Defamation Amendment Provisions’ for consultation.39 The reform process was somewhat delayed by COVID-19. Then in July 2020, CAG suddenly approved a further amended version of proposed amendments to Australia’s Model Defamation Provisions.

At the time of writing, NSW has taken the plunge with the Defamation Amendment Act 2020 (NSW). Other jurisdictions are expected to follow soon.

For the most part, the Model Defamation Amendment Provisions do not disturb the principles considered above in relation to the publication element of the cause of action. An exception is a proposed amendment to the ‘multiple publication rule’ in relation to limitation periods.40 Under the current law, each download of online content is a distinct publication founding the accrual of a cause of action.41 So media companies with an online presence are under a continuous spectre of liability: applying the multiple publication rule, the time starts running on a cause of action each time the matter is downloaded. The proposed amendment supplants this orthodoxy with a ‘single publication rule’: the time starts running in a singular fashion and essentially when the content is first online.

The NSW Working Party has also flagged a second stage of reform, underpinned by a consultation that would directly follow introduction of the Model Defamation Amendment Provisions.42 The second stage would look at whether intermediaries, like Google and Facebook, should be held to the same standards as traditional media companies like Nationwide News when it comes to ‘publication’. In a transparent appeal to the traditional media companies on 09

responsibility: to make sure the Australian market remains open to them. In the future, we may see more Australian plaintiffs bringing defamation cases against internet intermediaries.

whose support the Government depends, in 2019, Attorney-General Christian Porter said to the National Press Club: My own view is that these online platforms should be held to essentially the same standards as other publishers but that how this should occur requires a sensible measured approach to reform taking into account the differences in the volume of material hosted between Twitter or Facebook and a traditional newspaper for instance.43 If Defteros is right, then Google is already there, and if Voller is right, then perhaps so is Facebook. One difference between these classes of defendant is that intermediaries enjoy protections under sch 5 cl 91 of the Broadcasting Services Act 1992 (Cth) that traditional media companies may lack.44 Another is that intermediaries’ platforms are often underpinned by transnational corporate groups headquartered in the United States. Certain US companies enjoy a general shield from defamation liability for the content they host under s 230 of the Communications Decency Act 1996 (US). Recently, after Twitter purported to fact-check him, President Trump purported to make an executive order diminishing that provision. The order is of tenuous constitutional validity, but nonetheless, suggests that the shield that Facebook and the like enjoy under US law is not impenetrable.45 Even if s 230 were to disappear, Australian defamation judgments will still be largely unenforceable in the United States.46 Certain foreign intermediary defendants may nonetheless pay up out of a selfinterested sense of corporate social

Traditional media defendants would appreciate the Attorney-General’s enthusiasm to ‘level the playing field’ with respect to defamation liability. They are dying a slow death at the hands of their competitors: intermediaries like Google and Facebook. Ironically, however, removing the few shields provided to intermediaries may actually increase the damage suffered by traditional media.

As new deep pockets emerge, there will be more incentives for plaintiffs to sue.

Plaintiffs need not limit claims to the tech companies. Your next Voller might sue Nationwide News and Facebook.

Each participates in the publication, and so each is publisher of the defamation.

The vengefulness of traditional media executives may be preventing them from realising that, at least with respect to defamation liability, their relationship with intermediaries is not a zero-sum game.

14 15 16 17

18 19 20 21 22 23 24 25

26

27 28 29

Conclusion The meaning of ‘publication’ of defamation has changed in recent years.

This should not be lamented unless you have a stake in a media company.

You do have a stake in your reputation.

Thankfully, the law has adapted to ensure that your reputation continues to receive adequate protection as technology and society changes. Legislators may fiddle further with ‘publication’ in coming months. But the ragged history of legislated defamation law reform shows that ‘different’ does not always mean ‘better’. With respect to the publication element, defamation law is equipped for the digital era.

Endnotes 1

2 3 4 5

6 7 8 9 10 11 12

10 | BRIEF AUGUST 2020

13

See, eg, Matt Collins, ‘Nothing to Write Home About: Australia the Defamation Capital of the World’ (2019) 46(10) Brief 31; see also J C Gibson, ‘Adapting defamation law reform to online publication’ (2018) 22(2) Media and Arts Law Review 119.

See the discussion in Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 3rd ed, 2017).

As recognised by the Chief Justice of Australia: Susan Kiefel, ‘Foreword’ to David Rolph, Defamation Law (Lawbook, 2016) vii.

Although it may be relevant to publication by omission, as discussed in this article.

Although the proposed requirement of ‘serious harm’ may depart from that orthodoxy. This issue is explored elsewhere. See Lachaux v Independent Print Ltd [2019] 3 WLR 18 (Lord Sumption); see also ‘Law reform on the horizon’, below.

See Defamation Act 2005 (WA) s 4.

See Defamation Act 2005 (WA) s 7.

See, eg, Abdulrazaq v Hassan [2019] EWHC 2930 (QB).

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, [26]; see also [44] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

Sims v Jooste (No 2) [2016] WASCA 83, [17] (Martin CJ).

Goldsmith v Sperrings Ltd [1977] 1 WLR 478, 505 (Bridge LJ).

Webb v Bloch (1928) 41 CLR 331, 363.

30 31 32 33 34 35 36 37 38

39

40 41 42

43

44 45

46

See, eg, Duffy v Google Inc (2015) 125 SASR 437; see generally Ryan J Turner, ‘Internet Defamation Law and Publication by Omission: A Multi-jurisdictional Analysis’ (2014) 37(1) UNSW Law Journal 34.

See Michael Douglas, ‘Defamatory Capacity in the Digital Age’ (2018) 26(1) Tort Law Review 3.

Trkulja v Google LLC (2018) 263 CLR 149, 169 [54] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

Defteros v Google LLC [2020] VSC 219, [55].

Contra Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [195]. See further Michael Douglas, Alex Tharby and Jessica Border, ‘Google as publisher of everything defamatory on the internet: Defteros v Google LLC [2020] VSC 219’, Bennett + Co (online), 7 May 2020 <https://bennettandco.com.au/areas/ defamation/google-as-publisher-of-everythingdefamatory-on-the-internet-defteros-v-google-llc2020-vsc-219/>.

Crookes v Newton [2011] 3 SCR 269, 286 [30].

Crookes v Newton [2011] 3 SCR 269, 294 [48], [50].

Google Inc v Duffy (2017) 129 SASR 304, 355–6 [170]– [172].

See Farquhar v Bottom [1980] 2 NSWLR 380, 388 (Hunt J).

See Defamation Act 2005 (WA) s 32.

Fairfax Media Publications v Voller [2020] NSWCA 102, [37].

Defteros v Google LLC [2020] VSC 219, [64].

Michael hates this word but unfortunately it is apt in these circumstances. See Clayton M Christensen, Michael E Raynor and Rory McDonald, ‘What is Disruptive Innovation?’, Harvard Business Review (online), December 2015 <https://hbr.org/2015/12/ what-is-disruptive-innovation>.

See Richard Cooke, ‘News Corp: Democracy’s Greatest Threat’, The Monthly (online), May 2019 <https://www.themonthly.com.au/issue/2019/ may/1556632800/richard-cooke/news-corpdemocracy-s-greatest-threat#mtr>.

Voller v Nationwide News Pty Ltd [2019] NSWSC 766.

Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [13]–[18].

Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [209].

Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [224].

Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [229]. See Trkulja v Google LLC (2018) 263 CLR 149, 164 [40] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [231]–[232].

Fairfax Media Publications v Voller [2020] NSWCA 102, [97].

Fairfax Media Publications v Voller [2020] NSWCA 102, [106].

Fairfax Media Publications v Voller [2020] NSWCA 102, [111] (Meagher JA and Simpson AJA); see also [41] (Basten JA).

(2018) 29 CLR 149, 163–4 [39] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

Voller v Nationwide News Pty Ltd [2019] NSWSC 766, [192].

See Mark Speakman, ‘Review Recommends Defamation Cyber-Age Reboot’ (Media Release, 7 June 2018) <https://www.justice.nsw.gov.au/Documents/ Media%20Releases/2018/review-recommendsdefamation-cyber-age-reboot.pdf>; Michael Pelly, ‘Changes to “outdated” defamation law fast-tracked for social media age’, Financial Review (online), 31 January 2019 <https://www.afr.com/companies/ professional-services/changes-to-outdateddefamation-law-fasttracked-for-social-media-age20190130-h1an29>.

See Unofficial Consolidation of the Model Defamation Provisions, prepared by the Parliamentary Counsel’s Committee and approved by the Standing Committee of Attorneys-General on 21 March 2005 (as amended if based on draft d15 of the Model Defamation Amendment Provisions 2020) <https://www.justice. nsw.gov.au/justicepolicy/Documents/review-modeldefamation-provisions/model-defamation-provisionsas-amended.pdf>.

Proposed sch 4.1 of the Model Defamation Amendment Provisions.

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.

Defamation Working Party, Background Paper – Model Defamation Amendment Provisions (Consultation Draft) (December 2019) 30 <https://www.justice.nsw.gov.au/ justicepolicy/Documents/review-model-defamationprovisions/defamation-final-background-paper.pdf> Christian Porter, Address to the National Press Club (Canberra, 20 November 2019) <https://www. attorneygeneral.gov.au/media/speeches/addressnational-press-club-canberra-20-november-2019>.

An issue considered to some extent in Fairfax Media Publications v Voller [2020] NSWCA 102.

See Michael Douglas, ‘Trump’s Twitter Tantrum May Wreck the Internet’, The Conversation (online), 29 May 2020 <https://theconversation.com/trumps-twittertantrum-may-wreck-the-internet-139660>.

See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act 28 USC 4101-4105.

Sharing Transcripts of Judicial Proceedings (and their Costs) Between Parties; Copyright Infringement or a Frugal Sleight?

By Jonathan O'Connor

On the first page of every transcript of a judicial proceeding in Australia is a disclaimer which legal practitioners will be familiar with. In the Western Australian jurisdiction, the disclaimer reads as: Copyright in this document is reserved to the State of Western Australia. Reproduction of this document (or part thereof, in any format) except with the prior written consent of the Attorney General is prohibited. Please note that under section 43 of the Copyright Act 1968 copyright is not infringed by anything reproduced for the purposes of a judicial proceeding or of a report of a judicial proceeding.

Most courts and tribunals in Australia adopt the approach that transcripts cannot be shared between parties. For example, the relevant Practice Note of the Federal Court of Australia provides that “subject to the Federal Court Rules and any order or direction of the Court, transcripts cannot be shared between parties”.1 This article will explore whether sharing transcripts of judicial proceedings between parties actually constitutes copyright infringement and suggests that the courts and tribunals in Western Australia should adopt an approach where parties seeking to save costs on transcripts can avoid the risk of copyright infringement altogether.

Section 43(1) of the Copyright Act 1968 (Cth) Section 43(1) of the Copyright Act 1968 (Cth) (Copyright Act) states that “the copyright in a literary, dramatic,

musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding”. Judicial proceeding is defined as “a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath”.2 Apart from the rule that the exemption applies only to the parties’ use of copyrighted material in the course of current judicial proceedings (i.e. not future or contemplated judicial proceedings)3, it has been observed that there is extremely limited authoritative guidance as to the scope of s 43(1).4 The language of s 43(1) and the cases addressing it essentially provide that as long as the use of copyrighted material is for the general purpose of the judicial proceeding, for example tendering a photo or a newspaper article into evidence, it will come within the exemption.

Does the sharing of transcripts between parties fall within the s 43(1) exemption?

Unfortunately, there appears to be only one case specifically addressing this question, being Zurich Bay Holdings Pty Ltd v ATM Enterprises Pty Ltd [No 2] [2011] WADC 48 (S) (Zurich).

In Zurich, the plaintiff had been successful in a claim for damages arising from breach of contract5 and the parties were arguing as to the costs of the trial. One of the issues related to the cost of the transcript of the trial.

The plaintiff had ordered and paid for the transcript. The defendants proposed to the plaintiff that they would pay to the plaintiff 50% of the cost of the transcript in exchange for a copy of it. The plaintiff refused and the defendants had to order and pay for the transcript separately.

Scott DCJ noted that “the defendants’ counsel said that it was a practice for

parties to share costs in the manner the subject of their counsel’s proposal and that the refusal on the part of the plaintiff was, in all the circumstances, unreasonable. I can sympathise with the submissions made by counsel for the defendants. I cannot see any reasonable basis for the plaintiff to take that position.

Parties to litigation should be encouraged to take reasonable steps to reduce costs”.6 It was identified that copyright issues may arise if the plaintiff provided a copy of the transcript to the defendants and that some parties may be reluctant to share a transcript for fear of breaching copyright.

On this issue, Scott DCJ held that “there was not likely to be a breach of copyright by the cost of the transcript being shared in the manner proposed by counsel for the defendants”.7 It is noted that his Honour does not specifically say that there was not likely to be a breach of copyright because sharing the transcript with another party comes within the s 43(1) exemption. However, given his Honour’s references to s 43 in the preceding paragraphs, it is likely the basis for his conclusion. His Honour held that the approach taken by the plaintiff to refuse to share the cost of the transcript was unreasonable and limited the recovery of the cost of the transcript to 50%.8 In the absence of other authority on this matter, Zurich provides that it is likely that parties can share the transcript of a judicial proceeding between themselves without infringing the copyright in the transcript due to the exemption provided in s 43(1) of the Copyright Act.

The approach to sharing transcripts in Western Australia The rules and other sources of information, such as factsheets and websites, for the Western Australian courts and tribunals do not address whether parties can share transcripts with 11

other parties, or alternatively provide that parties can purchase transcripts jointly and split the cost.

The position is provided on Auscript’s website. Auscript provides transcription services for most of the Western Australian courts and tribunals. In the FAQs section of Auscript’s website, the following questions and answers are given: Copyright Question 1: Can I share a transcript?

No. Sharing transcripts is a direct breach of copyright and could lead to increases in transcript prices. In instances where transcript sharing is suspected or admitted to, Auscript reserves the right to withhold services.

Transcript copyright is and remains the property of the Court. This is stated clearly on all order forms and court transcripts, as well as in Auscript’s Terms and Conditions.

Each party must order their own copy of the transcript.

Question 2: Can parties involved in the same matter in Court share transcripts to save costs?

No. Auscript has the exclusive licence. Transcript copyright is and remains the property of the Court.

This is stated clearly on all order forms and Court transcripts, as well as in Auscript’s Terms and Conditions.

Each party must order their own copy of the transcript.

Costs/Payments Question 2: How is cost calculated?

To receive a multi-party discount, parties must order and confirm payment on or before the hearing date. A multi-party discount is not applied to any orders received after the hearing date. Any discount will be detailed on final invoice.9 The fact that parties can receive a discount by ordering together is something that arguably should have been mentioned in answer to the question “can parties involved in the same matter in Court share transcripts to save costs?” and on each court or tribunal’s website. In addition, the extent of the discount is not clear. Why would the parties not be able to share the ordinary cost of the transcript evenly? Creating subsequent copies of a transcript cannot produce any more than the bare minimum of additional costs, being the administrative expenses of copying the PDF containing the transcript and sending it to the other parties.

12 | BRIEF OCTOBER 2020

Nevertheless, despite the decision of Zurich, the approach in Western Australia is clear. Parties should not share the transcript of a judicial proceeding with each other and must order their own copy of the transcript.

A different approach In the Australia Capital Territory, Epiq provides the transcript services for most of its courts and tribunals. Their approach to parties sharing the costs of transcripts is stated on the ACT Courts’ website: If parties (including the court) order the same transcript with the same turnaround time (e.g. same day, next day etc.) and the orders are placed with the current provider EPIQ within 7 days of each other, EPIQ will share the transcript costs between those ordering.

If agreement is reached to order the same transcript, with the same turnaround time and orders are placed with EPIQ within 7 days of each other: a.) parties should alert EPIQ to the cost sharing request in their cover email to EPIQ, b.) parties may also choose to copy in the other parties in their email request.10

In light of this duty, Western Australia should consider adopting an approach similar to the ACT by allowing parties to jointly purchase and evenly share the costs of transcripts of judicial proceedings between themselves and the court or tribunal.

Conclusion Due to the exemption provided in s 43(1) of the Copyright Act and the decision of Zurich, it is likely that parties can share transcripts of judicial proceedings between themselves without infringing the copyright in the transcript. Further, refusing to share the transcript and its costs with other parties when requested to may mean that the refusing party will not recover the full cost of the transcript if successful in the proceeding.

However, it is much more preferable that parties be able to avoid the risks that come with sharing transcripts altogether.

Given the judiciary’s duty to minimise the costs of parties in dispute, Western Australia should consider adopting the following approach to transcripts: 1.) allow parties to jointly purchase and evenly share the cost of a transcript of a judicial proceeding between themselves and the court or tribunal, provided they all order the transcript within a certain timeframe; 2.) in cases where someone wishes to order a copy of the transcript outside of this timeframe, they should pay a discounted amount; and 3.) clearly publish the above on each court or tribunal’s website, any relevant forms and on Auscript’s website.

The judiciary’s duty to minimise the costs of parties One of the primary aims of the judiciary is to minimise the costs of parties in dispute.11 For example, one of the outcomes which case management in the District Court of Western Australia aims to achieve is “the timely resolution of litigation at a cost affordable to parties”.12 In the Federal Court of Australia, “the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible”.13 As was noted in Zurich in the context of sharing transcript costs, “parties to litigation should be encouraged to take reasonable steps to reduce costs”.14 It is common in long trials for parties to order a running transcript, meaning the transcript for each day is provided to the parties at the end of the day. Additionally, in trials which have been conducted intermittently it is common for parties to order transcripts of the previous sittings.

In such cases, the court or tribunal is likely to want a copy of the transcript for its own benefit and, arguably, has a duty to evenly share the cost of the transcript with the parties.

Endnotes 1

2 3

4 5 6 7 8 9 10 11

12 13 14

Federal Court of Australia, Practice Note (GPN-ACCS): Access to Documents and Transcripts, 25 October 2016, para 6.2; the sharing of transcripts between parties is not addressed in the Federal Court Rules 2011 (Cth).

Copyright Act 1968 (Cth) s 10.

Ogawa v Spender [2006] FCAFC 68, [15]; Sandy v Kiama Municipal Council [2019] NSWCATAD 49, [41]-[44]; The Environmental Group Ltd v Bowd [2019] FCA 951, [195][196].

Demlakian Engineers Pty Ltd v The Owners of Strata Plan 80453 [2014] NSWSC 401, [121]-[124]; Sandy v Kiama Municipal Council [2019] NSWCATAD 49, [41]-[44].

Zurich Bay Holdings Pty Ltd v ATM Enterprises Pty Ltd [No 2] [2011] WADC 48.

Zurich Bay Holdings Pty Ltd v ATM Enterprises Pty Ltd [No 2] [2011] WADC 48 (S), [88]-[89].

Ibid, [94].

Ibid, [95].

‘FAQs’, Auscript (Web Page) <https://www.auscript.com/enAU/resources/faqs/>.

‘Forms for Ordering Court Transcripts’, ACT Courts (Web Page) <https://courts.act.gov.au/forms/other-services/ ordering-transcripts>.

Chief Justice Allsop AO, ‘Judicial Case Mangement and the Problem of Costs’ (Speech, Lord Dyson Lecture, Sydney, 9 September 2014) <https://www.fedcourt.gov.au/digitallaw-library/judges-speeches/chief-justice-allsop/allsopcj-20140909#_ftnref23>.

District Court of Western Australia, Practice Note, Consolidated Practice Directions & Circulars to Practitioners Civil Jurisdiction, 14 July 2020, para 12.1.2.

Zurich Bay Holdings Pty Ltd v ATM Enterprises Pty Ltd [No 2] [2011] WADC 48 (S), [89].

Federal Court of Australia Act 1976 (Cth) s 37M(1).

Extraordinary But Not Without Foundation: The WA Government’s Response to an Unprecedented Threat

John Quigley MLA

By John Quigley MLA Attorney General of Western Australia

Passage of the Iron Ore Processing (Mineralogy Pty Ltd) Amendment Act 2020 (‘Amendment Act’) has demonstrated that extraordinary legislation makes many in the legal profession uncomfortable.

This reaction is proper, and is to be expected.

The West Australian Government believes that such Acts should be passed rarely and only when the circumstances are so serious that not legislating would result in significant harm.

Clive Palmer’s $30 billion damages claim against the State of WA is one such occasion.

It is common ground that the emergency legislation passed at speed through State Parliament last month (August) to extinguish arbitral awards underpinning Mr Palmer’s claim was extraordinary and unprecedented for WA. But that doesn’t mean the Amendment Act is not built upon a solid foundation of case law and precedent.

Notwithstanding the critics’ cries of “banana republic”, “17th century star chamber” and “charade for democracy”, the Act is far from ill thought-out.

There are three key constitutional principles which underpin the operation

of the Amendment Act. These principles are all well-established in the High Court by cases from other states in Australia.

The first principle is that it is always within the power of Commonwealth or State Parliaments to alter the rights and liabilities of a person, even in respect of pending litigation.

In a 2015 case called Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83 at [26] then-High Court Chief Justice French, current Chief Justice Kiefel as well as Justices Bell and Keane specifically stated: “it is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution even if those rights are in issue in pending litigation.”

They illustrated this point by reference to a 1998 case called H A Bacharach Pty Ltd v Queensland [1998] HCA 54; (1998) 195 CLR 547, a unanimous decision of five High Court justices. Duncan itself was a case involving New South Wales legislation.

It effectively declared that the ICAC had power to take future action, after the legislation passed, in respect of conduct which was retrospectively to be regarded as corrupt.

The second principle is that it is within the power of a State Parliament to expropriate property without providing just compensation.

This was established in a 2001 case called Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399.

In that case, coal in certain lands in New South Wales was vested in the Crown by the Coal Acquisition Act 1981.

That Act provided for payment of compensation to landowners, but an amendment in 1990 introduced a cap on the amount of compensation which was payable.

This legislation prevented Durham Holdings pursuing a claim for over $93 million for coal compensation, because the cap applicable to that company was $23.25 million, effectively depriving Durham Holdings of approximately $60 million of compensation.

The High Court refused to hold the New South Wales legislation invalid, because they said it had been the settled position respecting State legislative power since the Wheat Case (1915) 20 CLR 54, that

13

from the Eastern States have been less enthusiastic, with some adopting Mr Palmer’s now-familiar catchcry that WA has abandoned the Rule of Law. Far from it. The Amendment Act, having been passed through both houses of State Parliament, is the law. As explained, it does not infringe the any principle based upon the Rule of Law which prevents the Executive interfering with judicial decisions by altering rights and liabilities in pending litigation.

Others grasp that this is law-making, not law-breaking, but contend that is not justified.

One op-ed correspondent to a national newspaper, a university law professor, posited that retrospective lawmaking should only be undertaken on the rarest of occasions when it was squarely the public interest. there was no requirement for a State Parliament to provide just or properly adequate compensation upon the acquisition of property.

The third principle is that, while there may be some circumstances in which the party-specific nature of legislation can indicate a tendency to interfere with the exercise of judicial power, legislation can be specific to particular individuals or corporations: Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031 at [23]; Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306 at [26]. Party-specific legislation has been considered and upheld on a number of occasions by the High Court. As the first principle I have outlined demonstrates, it is wellestablished that altering rights and liabilities in pending litigation is not an interference with judicial power.

The Amendment Act recently passed with bipartisan Liberal Party support through the WA Parliament does not seek to take away the estimated $1 million a day in royalty revenue which Mr Palmer reaps from his Sino Iron project in the Pilbara under the terms of his state agreement.

What it concerns is a separate proposal

by Mr Palmer’s Mineralogy Pty Ltd and International Minerals Pty Ltd to develop the adjacent Balmoral South precinct, a proposal submitted to former State Development Minister and Premier Colin Barnett.

In 2012 Mr Barnett rejected the proposal, which an independent arbitrator found had been “defective”, and in 2014 Mr Barnett then approved the proposal with 46 conditions.

I told State Parliament in my second 14 | BRIEF OCTOBER 2020

reading speech that Mineralogy and International Minerals say that they had a contractual right to have the proposal properly considered in 2012 (despite it being defective) and that they lost the opportunity to develop a new project which they would have sold to overseas interests. They pursue arbitral awards for damages totalling the entire annual budget of WA even though they did nothing about pursuing the proposal between 2014 and 2018, and still hold the rights to develop Balmoral South.

The Amendment Act essentially says that any claim for damages for this speculative lost opportunity cannot now be pursued.

If the proposal had been submitted pursuant to development legislation, rather than pursuant to a fast track contractual state agreement, there would be no question about damages.

Whether you view the Amendment Act as taking away a contractual right without providing proper compensation, or you view it as adjusting the contractual liabilities of the State in a pending arbitration, those things can happen because of the well-settled underlying principles about State legislative power.

At a practical level, the legislation was the only option available to Cabinet as it confronted a potential looming financial catastrophe.

Mr Palmer’s $30 billion damages claim posed a potential threat to the financial wellbeing of WA taxpayers, and the Government had no choice but to extinguish that threat.

While the Act has by and large been well received within WA, commentators

To illustrate his argument, the writer cited as an example the Burmah Oil company suing His Majesty’s Government after retreating British troops destroyed oil reserves to stop them falling into Japanese hands during World War II. After an appeal court upheld the company’s compensation claim in 1965, the Westminster Parliament passed an Act that retrospectively extinguished the British government’s liability.

The law professor’s argument was that the British Parliament was justified in shielding its citizens from a liability stemming from actions taken on their behalf during a war.

I agree. But I rather think the professor’s example bolsters the state’s case rather than undermines it.

Coronavirus has been widely described as the biggest social and economic upheaval since World War II and the most destructive pandemic since the Spanish flu of 1918-19.

The idea that WA could absorb a multibillion dollar hit to the State’s finances at this time is simply unthinkable. We could not.

Those opposed to the legislation began by disputing the $30 billion claim figure – led by Mr Palmer who repeatedly described it as “bullshit”.

The figure, plus unspecified damages, costs and interest, is now indisputable following my tabling in Parliament of Mineralogy and International Minerals’ statement of claim for the equivalent of AU$27.75 billion, signed by one Clive F Palmer.

But Mr Palmer continues to claim that

the legislation has ruined his whole State Agreement – the Act of WA Parliament passed in 2002 which underpins his mining interests in the Pilbara.

order and good government of Western Australia” and that “extinguishing a potentially crippling liability is in the interests of the State”.

This is demonstrably incorrect. Not only does Mr Palmer continue to reap the lucrative royalties from the Sino Iron project facilitated by the State Agreement, his right to develop Balmoral South is preserved by our legislation. Indeed, the WA Government has invited such a proposal.

However, the Law Society expressed some concern about provisions in the Amendment Act which exempted the state from certain liabilities and excluded the Freedom of Information (FOI) Act.

WA has a long history of more than 70 state agreements over several decades – 50 of which remain in force. They provide important certainty underpinning longterm planning and are supposed to be entered into in the spirit of mutual respect and cooperation to achieve the shared goal of a viable resources project.

This is the first time that the holder of a State Agreement has invoked legal clauses contained therein to sue the people of WA for damages.

It is for this reason that state and federal industry and political leaders do not share critics’ view that the legislation poses any risk to investment in WA. The WA Chamber of Minerals and Energy has said it “does not believe that the actions by the WA Government will be detrimental to the resources sector” because “the WA Government took very unique action against a very unique dispute on behalf of the people of WA”.

Federal Attorney-General Christian Porter said the Commonwealth was “not going to get in the way of the WA State Government making its best judgements about what’s in the best interest of West Australians in this matter”.

The Law Society of WA in a statement acknowledged that “Our State’s Constitution provides that Parliament is bound to pass laws for the peace,

It said such terms required close scrutiny and further justification.

I will aim to do just that.

All of the measures to limit the application of ordinary accountability measures like right of appeal, FOI and natural justice – which I concede are extreme – were taken to limit Mr Palmer’s avenues for further litigation against the State.

His flurry of legal claims since passage of the Amendment Act show that these fears were well founded.

It is the case that in the past, aggressive litigants have attempted to have criminal charges laid against individual public officers who worked on legislation which affected that party.

This occurred after passage of the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015.

To prevent this, the Amendment Act contains a very narrow exemption from criminal liability for officers involved in its preparation and operation. The Act certainly does not permit the Premier, or anyone else, to commit violent crimes, as Mr Palmer has absurdly claimed.

Similarly, aggressive litigants can use FOI laws as a tool for “discovery” of material to use in legal challenges, or to flood governments with nuisance applications to drain administrative resources.

Unfortunately, to protect the State’s legal position, it was necessary to prevent

LEAVING A

FOI access by any and all applicants because it would be impossible to know on whose behalf an application was being submitted, and for what purpose. In any event, one would expect that almost all relevant documents would be subject to legal professional privilege or public interest immunity.

An FOI exemption was also a feature of the Bell (Finalisation of Proceeds) Act. I am confident that the Government, under the guidance of some of the brightest legal minds in Australia, has made the legislation as strong as possible to withstand Mr Palmer’s challenges.

Of course Mr Palmer has vigorously pursued his “hobby” of litigation, and after first denying the size of his damages claim, now threatens that WA “will be up for more damages than they would have in the arbitration”.

I thought Law Society of WA President Nick van Hattem distilled the issues very well when he said on radio on 13 August that “In the same way that lawyers get uneasy when Parliament takes someone’s rights away, or when Parliament talks about taking away natural justice, lawyers also get uneasy when people talk about using litigation as a hobby”.

These are complex matters with competing principles, each of which must be weighed carefully against the public interest.

I expect the views on our legislation within the legal community to be many and varied.

However, I trust that the legal profession will grant that the Government, faced with a large financial risk, exercised the powers vested in it by Parliament in good faith and for the right reason – to protect the public of Western Australia.

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

15

Section 92 of the Constitution and the Future of our Federation

By Michael Douglas * Consultant, Bennett + Co and Senior Lecturer, University of Western Australia and Charles Dallimore * Solicitor, Bennett + Co

‘[T]rade, commerce, and intercourse among the States … shall be absolutely free’. So reads the first paragraph of s 92 of the Constitution. What does it mean?

That question will be entertained by the High Court of Australia in Palmer v State of Western Australia (Case B26/2020). At the time of writing, a hearing is scheduled before the Full Court for 3 November 2020.

The Court will be assisted by a wealth of case law. ‘No provision of the Constitution has been the source of greater judicial concern or the subject if greater judicial effort than s 92’.1 Writing extra-judicially, Justice Gageler has remarked that

16 | BRIEF OCTOBER 2020

between the High Court’s inception in 1903 and the landmark decision of Cole v Whitfield (1988) 165 CLR 360, the Privy Council had determined 139 cases on s 92.2 (When his Honour studied con law, apparently a third of the subject was on s 92.) There have been 10 or so decisions since. Apparently, there are questions about s 92 still unanswered.

This short piece considers the background to s 92 and some of the factors that could impact the Palmer case.

Background to s 92 At the Convention Debates, the words ‘absolutely free’ were described by NSW Premier George Reid as a bit of ‘laymen’s language’ intended to avoid ‘legal technicalities’.3 Edmund Barton retorted, ‘[i]t is the language of three lawyers’. Isaac Isaacs continued, ‘[a]nd one of the lawyers who helped to frame the clause now finds fault with it’. The debate continued. It continues today through the efforts of another Australian of considerable stature: Clive Palmer.

Despite the purposeful non-technical language, it is clear that intercourse among the Australian States could never be ‘absolutely free’ in the literal sense. If it were otherwise, then a law authorising

‘arrest of a fugitive offender from one State at the moment of his departure into another State’ would be unconstitutional.4 A literal reading would mean anarchy.

Courts have taken different approaches to limiting the literal meaning of s 92; the meaning of the section vacillated for much of the 20th century.5 At one point it was said to mean freedom from a law having as its ‘real’ object the interference with state trade.6 Then it meant various other things. New cases posed new questions.

For example, does the collocation of ‘intercourse’ with ‘trade’ and ‘commerce’ add any colour?7 A ‘revolution’ occurred with Cole v Whitfield.8 The case concerned a Tasmanian regulation9 prohibiting the possession of crayfish under a particular size, whether or not they were taken in Tasmanian waters. In the course of interstate trade, importers brought crayfish from South Australia to Tasmania for the purpose of sale to the mainland and overseas markets. The crays were undersize by the Tasmanian regulation but were big enough by South Australian standards. A senior inspector of the Tasmanian Fisheries Development Authority laid a complaint against the importers, which included the operations manager of a crayfish farm in Tasmania. The complaint was dismissed by a magistrate; the inspector had the order reviewed in the Supreme Court of Tasmania,10 which was subsequently removed into the High Court.11 The Court considered the history of s 92, including the constitutional conventions. It concluded that s 92 should be construed as requiring that interstate trade and commerce be immune only from discriminatory burdens of a protectionist kind.12 The parties agreed that prohibiting the possession of undersized crayfish in Tasmania (wherever caught) was a necessary means of protecting crayfish stocks in Tasmanian waters.13 The Tasmanian regulation did not offend s 92.

Cole v Whitfield resolved much of the uncertainty surrounding s 92. A law that applies to all trade and commerce, interstate or intrastate, is less likely to be protectionist than one that discriminates ‘on the face of the law’; but a law that discriminates by its effects, even if it does not discriminate ‘on its face’, may nevertheless contravene s 92 ‘if the discrimination is of a protectionist character’.14 Whether a law contravenes s 92 thus turns on the practical operation of the law, which involves questions of fact and degree.15 Courts must consider whether the effects of a law—

including discriminatory effects— are disproportionate to its aims.16 This requires a kind of balancing exercise.

Chordia (and others)17 have explained that the modern application of s 92 may turn on proportionality.18 ‘Proportionality’ is familiar to public lawyers;19 it is often deployed with respect to the implied freedom of political communication.20 In McCloy v New South Wales (2015) 257 CLR 178, the High Court explained that: ‘[t]he term “proportionality” in Australian law describes a class of criteria which have been developed by this Court over many years to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done’.21 Courts consider whether an impugned provision is suitable, necessary and adequate in striking a balance between the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.22 According to Justice Edelman, this kind of structured proportionality testing ‘promotes transparent reasoning in the application of an abstract constitutional implication’.23 It is an ‘intellectual tool’24 that can reveal the chain of reasoning underlying an implication exercise that may otherwise be opaque. Affording a non-literal construction to the constitutional text of s 92 involves the kind of balancing exercise to which structured proportionality may be suited.

Not all members of the current High Court are fans of structured proportionality.25 Notably, Justice Gageler has reservations.26 Neither Justice Nettle nor Justice Gordon deployed proportionality in McCloy because they did not have to.27 Will those Justices join with the ‘troika’ of the Chief Justice, and Justices Bell and Keane, when they have cause to consider section 92? Where will Justice Edelman place his chips? And will that approach favour his domicile of origin (go Mark), or his domicile of choice (boo-urns Clive)?

Arguably, structured proportionality would just add unnecessary confusion to s 92. According to Chordia, ‘the application of structured proportionality in such a context would have the very real potential of weakening the stability introduced by the Cole v Whitfield test’.28 Yet the Cole v Whitfield test concerned the ‘trade’ and ‘commerce’ aspects of s 92, not intercourse; it might be distinguishable. It might be argued that a burden on intercourse need not establish a discriminatory purpose or effect in order to contravene s 92.29 Subsequent cases suggest that freedom of interstate intercourse may be limited for a good

purpose without contravening s 92.30 Whatever happens, Clive Palmer’s constitutional challenge is likely to make law.

The Palmer challenge Readers would be all too familiar with the context for Palmer’s constitutional challenge. It may be summarised as follows.

Following the WHO’s declaration of a COVID-19 pandemic in March, in April, Premier Mark McGowan (hero) shut the Western Australian border. More specifically: On 5 April 2020, the second respondent, the State Emergency Coordinator for Western Australia, issued the Quarantine (Closing the Border) Directions (WA). They have since been amended several times, most recently on 19 July 2020. I will refer to the current version as the “Directions”. The Directions were made pursuant to the Emergency Management Act 2005 (WA).31 On 18 May, Clive sought permission to enter WA and was refused.32 The following week he and his company, Mineralogy Pty Ltd, commenced proceedings in the High Court of Australia seeking a declaration that the Emergency Management Act and/ or the Directions are invalid, in whole or in part, on the basis that they contravene s 92 of the Constitution.33 In June, the Chief Justice remitted part of the matter to the Federal Court34 to consider ‘the reasonable need for and efficacy of the community isolation measures contained’ in the Directions.

After a trial, and the Federal Government flip flopping on the extent of its betrayal of Western Australia via intervention in the proceedings,35 Justice Rangiah determined factual issues based on a considerable amount of expert evidence.36 Hs Honour held that ‘[t]he border restrictions have been effective to a very substantial extent to reduce the probability of COVID-19 being imported into Western Australia from interstate’, avoiding potentially catastrophic health consequences.37 He cautioned: In view of the uncertainties involved in determining the probability that COVID-19 would be imported into Western Australia from elsewhere in Australia, and the potentially serious consequences if it were imported, a precautionary approach should be taken to decision-making about the measures required for the protection of the community.38

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are literally at stake. So is the future of Australian democracy.

Individual liberty is a core Australian constitutional value.43 For example, we are free from deprivation of liberty absent a court’s adjudication.44 National unity is another core constitutional value,45 which colours the content of our liberty when it comes to movement between State borders. There is a decent argument to be had that, in the ordinary course of things, individuals on Australian soil should be free to move between the jurisdictions of the Commonwealth of Australia with minimal interference.

Still, in their written submissions, the plaintiffs argue that the ‘absolute’ hard border is contrary to authority on s 92, and in any event, is not ‘reasonably required’ to achieve its objectives.39 The State may counter that Cole v Whitfield produced ‘a massive enlargement of the authority of all seven parliaments and their attendant executive governments’,40 which provides Western Australia with the requisite ‘degree of latitude to limit border-crossing as long as it is appropriate and to protect public health’.41 Indeed, as much was contemplated by Justice Brennan in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1: ‘[w]here the true character of a law… is to protect the State or its residents from injury, a law which expressly prohibits or impedes movement of the apprehended source of injury across the border into the State may yet be valid’.42

Concluding thoughts The circumstances that precipitated the challenge to s 92 are ripe for derision.

After months of evidence supporting the efficacy of working from home, the proposition that a person like Mr Palmer needs to travel interstate to conduct his business operations is hard to accept.

It is not like he is a fly-in-fly-out worker for Mineralogy. The irony is that the hard border is there to protect Clive as much as anyone else.

Although the challenge by Clive is the subject of jokes, the consequences of his case could not be more serious. Lives 18 | BRIEF OCTOBER 2020

2020 has been anything but ordinary. Our constitutional values are under strain.

Thousands of Australians have already experienced deprivation of liberty at home or in hotel rooms—with sound justification—for the sake of public health.

Countless businesses are no longer free to trade as they once did. Intra-Australian freedom of movement is nothing like it once was. There are cogent reasons of principle and policy for you to be OK with this.

When s 92 was being conceived at the dawn of our Commonwealth, Henry Parkes argued that freedom of trade and intercourse would be an ‘absolutely necessary condition of anything like perfect federation’.46 In the COVID-19 era, perfect anything, let alone perfect federation, is no longer feasible. The perfect is the enemy of the good. At the time of writing, despite the global pandemic, life in Perth is pretty good. It needs to remain that way.

Endnotes * 1

2

3

4

5

6 7 8

9 10 11 12

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These views are ours and do not represent the views of our employers.

Cole v Whitfield (1988) 165 CLR 360, 383–4, (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

Stephen Gageler, ‘The Section 92 Revolution’ in James Stellios (ed), Encounters with Constitutional Interpretation and Legal Education (Federation Press, 2018) 26, 28.

Convention Debates (Melbourne, 11 March 1898), quoted in FR Beasley, ‘The Commonwealth Constitution: Section 92 – Its History in the Federal Conventions (Pt 1)’ (1948) 1(1) University of Western Australia Law Review 97, 97.

Cole v Whitfield (1988) 165 CLR 360, 393 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

As recounted in PH Lane, ‘The Present Test for Invalidity under Section 92 of the Constitution’ (1988) 62 Australian Law Journal 604.

James v Cowan (1932) 47 CLR 386, 396 (Lord Atkin).

Considered in Uebergang v Australian Wheat Board (1980) 145 CLR 266, 280 (Barwick CJ).

Stephen Gageler, ‘The Section 92 Revolution’ in James Stellios (ed), Encounters with Constitutional Interpretation and Legal Education (Federation Press, 2018) 26.

Sea Fisheries Regulations 1962 (Tas) reg 31(1)(d) made pursuant to the Fisheries Act 1959 (Tas) s 59.

Pursuant to Judiciary Act 1959 (Tas) s 107.

Pursuant to Judiciary Act 1903 (Cth) s 40(1).

Cole v Whitfield (1988) 165 CLR 360, 407 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

Cole v Whitfield (1988) 165 CLR 360, 362–3, 409

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

(Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ); Stephen Gageler, ‘The Section 92 Revolution’ in James Stellios (ed), Encounters with Constitutional Interpretation and Legal Education (Federation Press, 2018) 26, 32.

Cole v Whitfield (1988) 165 CLR 360, 408 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

Cole v Whitfield (1988) 165 CLR 360, 400 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 473–4.

Notably: Susan Kiefel ‘Section 92: Markets, Protectionism and Proportionality - Australian and European perspectives’ (2010) 36(2) Monash University Law Review 1.

Shipra Chordia ‘Border closures, COVID-19 and s 92 of the Constitution – what role for proportionality (if any)?’ on AUSPUBLAW (5 June 2020) <https://auspublaw. org/2020/06/border-closures,-covid-19-and-s-92-ofthe-constitution>.

See generally Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21(1) Melbourne University Law Review 1.

Eg, McCloy v New South Wales (2015) 257 CLR 178.

McCloy v New South Wales (2015) 257 CLR 178, 195 [3] (French CJ, Kiefel, Bell and Keane JJ).

McCloy v New South Wales (2015) 257 CLR 178, 194–5 [2].

Comcare v Banerji (2019) 93 ALJR 900, 941 [188].

Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448, 483 [158] (Gageler J).

As recounted by Murray Wesson, ‘Unions NSW v New South Wales [No 2]: Unresolved issues for the implied freedom of political communication’ (2019) 23 Media & Arts Law Review 93.

McCloy v New South Wales (2015) 257 CLR 178, 234–8 [140]–[149]; Murphy v Electoral Commissioner (2016) 261 CLR 28, 71–2 [99]–[101]; Brown v Tasmania (2017) 261 CLR 328, 366–7 [157]–[161]; Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448, 484 [160] (Gageler J).

McCloy v New South Wales (2015) 257 CLR 178, 259 [222], 282 [310].

Shipra Chordia ‘Border closures, COVID-19 and s 92 of the Constitution – what role for proportionality (if any)?’ on AUSPUBLAW (5 June 2020) <https://auspublaw. org/2020/06/border-closures,-covid-19-and-s-92-ofthe-constitution>.

As argued in John Pyke, Government Powers under a Federal Constitution: Constitutional Law in Australia (Lawbook Co, 2nd ed, 2020) 564 [32.170].

AMS v AIF (1999) 199 CLR 160; see also APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322.

Palmer v State of Western Australia (No 4) [2020] FCA 1221, [2].

Plaintiffs’ Submissions in Palmer v State of Western Australia (B26/2020), filed 22 September 2020, [7].

Palmer v State of Western Australia (No 4) [2020] FCA 1221, [4].

Pursuant to Judiciary Act 1903 (Cth) s 44.

See Palmer v State of Western Australia (No 3) [2020] FCA 1220, [38].

Palmer v State of Western Australia (No 4) [2020] FCA 1221.

Palmer v State of Western Australia (No 4) [2020] FCA 1221, [366].

Palmer v State of Western Australia (No 4) [2020] FCA 1221, [366].

Plaintiffs’ Submissions in Palmer v State of Western Australia (B26/2020), filed 22 September 2020, [9]–[14].

PD Connolly, ‘Cole v Whitfield – The Repeal of Section 92 of the Constitution?’ (1991) 16(2) University of Queensland Law Journal 290, 290.

Anne Twomey, ‘States are shutting their borders to stop coronavirus. Is that actually allowed?’, The Conversation (online), 22 March 2020 <https:// theconversation.com/states-are-shutting-their-bordersto-stop-coronavirus-is-that-actually-allowed-134354>.

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 58.

See discussion in: James Stellios, ‘Liberty as a Constitutional Value: The Difficulty of Differing Conceptions of “The Relationship of the Individual to the State”’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018) 177.

Magaming v The Queen (2013) 252 CLR 381, 400, 401.

See discussion in: Gonzalo Villalta Puig, ‘Free Trade as an Australian Constitutional Value: A Functionalist Approach to the Interpretation of the Economic Constitution of Australia’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018) 287.

Convention Debates (Sydney, 4 March 1891).

Self-care during COVID-19 Taking the time to connect with yourself and what you really need will ensure you get through the hard times.

By Angela Heise Emotional Productivity and Leadership Coach This article was first published in the Law Society of NSW Journal

When Socrates spoke about “care of the self” more than 2,500 years ago, his definition of self-care was one of “care for the soul”, the search for self-knowledge, and the understanding of ourselves beyond body, status, wealth, and reputation. As he explained: “Once we know ourselves, we may learn how to care for ourselves, but otherwise we never shall.”

Our modern definition of self-care is very different. It relates to the deliberate maintenance of mental, physical and emotional health, especially in the context of handling stress. This has come into even sharper focus in the current coronavirus crisis where we are learning to be more deliberate in how we manage ourselves. Taking hand sanitisers, masks and physical distancing aside, we have become aware of structures that only in their absence show us how much we have been taking them for granted. These are constructs that go beyond those providing economic stability. They support us as social human beings and help us maintain mental and emotional health.

Eating out in a restaurant, attending a concert, playing a group sport or working out at the gym ... these aren’t merely self-care activities; they connect us with others and give our lives meaning.

So what would happen if you wentback to Socrates’ definition of self-care in times of COVID-19? What if knowing yourself and nourishing your spirit to get to know who you really are became the goal?

You don’t need to completely dismantle your life. You could simply use the interruptions to a previously automated life as an opportunity to look at how you can support yourself in living an authentic, fulfilling life. Which, as studies have shown, supports mental health.

Here are some practical suggestions beyond eat well, drink lots of water and get quality sleep: •

Outside of COVID restrictions, we maintain so-called weak social ties. These consist of the everyday encounters with people we have superficial relationships with. While these connections may never go beyond small talk, they provide essential social support. Make a point to say hello to people you encounter.

Check in with your neighbours. And, of course, consciously connect with people you love.

•

Seemingly everyone has an explanation as to why we are in the current situation and how political, social and economic structures aren’t working. Stay away from dramatising media. Contribute to a constructive discussion about evolving opportunities. You will find that you build resilience when you consider opportunities rather than focus on gloom and doom.

•

Feel your emotions. Rather than discount or suppress them, make use of them. They show you when

something is or isn’t working. A socalled ‘negative’ emotion always has a positive intent. Find out what it is and take constructive action.

•

And, yes, meditate. You don’t need to sit for hours pretzeled in the lotus position. A few minutes of breathing deeply, becoming present with yourself and mindful of what is going on for you at that moment will do wonders for reconnecting with yourself. It will take you off automatic.

While it can be uncomfortable to notice what you may want to ignore, when you learn to observe rather than judge your thoughts, you will reduce stress, make better choices and support self-esteem.

You know what works for you and your mental and emotional health. If you aren’t sure, isn’t this the perfect time to find out?

As always, please ask for help. If there is one thing we are learning at the moment, it is that connection matters – and how important it is to connect from the soul.

Angela Heise is an emotional productivity and leadership coach with more than 20 years’ experience.

She supports people to be the best they can be at work and in life. Find out more at angelaheise.com

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The Accountability Agencies at Albert Facey House

By Catherine Fletcher Information Commissioner, Office of the Information Commissioner

Albert Facey House, located at 469 Wellington Street in the Perth CBD, is a government owned building located next door to the former Perth GPO building and opposite the Perth Railway Station. The location was formerly occupied by the Central Hotel which existed on that site from as early as 1909. Albert Facey House, constructed in the late 1980s, overlooks Forrest Place which was created in 1923.

Albert Facey House is named in honour of Albert Barnett Facey (1894 - 1982), an Australian soldier who fought at Gallipoli and who is perhaps best known for his autobiography, A Fortunate Life.

Excerpts from A Fortunate Life feature throughout Albert Facey House, engraved on the stone wall cladding in the lobby and referenced on the glass partitions and wallpaper graphics throughout the remainder of the floors. They are a poignant reminder of a past, but not forgotten, era in the history of Western Australia.

Tenants of Albert Facey House acknowledge the Whadjuk Noongar people as the traditional custodians of the boodjar, on which Albert Facey House stands. The agencies in Albert Facey House pay their respects to all members of the Aboriginal communities and their cultures, and to Elders both past

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and present, in a number of ways. This includes having signed, in July 2019, a joint statement of intent to work together where appropriate to, among other things, identify opportunities for Albert Facey House to be promoted and recognised as a cultural capability hub. This is appropriate given the long standing popularity of Forrest Place, and the land on which it is situated, as a community meeting place.

In 2020 Albert Facey House is occupied by a number of accountability agencies with oversight or review roles over various aspects of the public and private sector. Those agencies currently include the Economic Regulation Authority, the Equal Opportunity Commission, the Office of the Auditor General, the Office of the Information Commissioner, the Ombudsman, the Office of the Inspector of Custodial Services, the Health and

Disability Services Complaints Office and the Mental Health Tribunal.

From early 2021 the Office of the Commissioner for Children and Young People will also be located at Albert Facey House.

Members of the legal profession may interact with these agencies when acting for clients or seeking information to hold Western Australian State and local government bodies, and sometimes private bodies or individuals, accountable for their decision making and actions.

The sharing of Albert Facey House by these accountability agencies has also proven valuable for other joint activities related to their roles in promoting probity, integrity, accountability and transparency in respect of services accessed by the public or provided to the public.

This article provides a brief insight into the role of a number of the agencies at Albert Facey House and their leaders. A separate article about the role and leadership of the office of the Ombudsman features separately in this edition of Brief. The December edition of Brief will feature an article about freedom of information from the Information Commissioner.

harassment in employment, education and accommodation are also unlawful.

Economic Regulation Authority The Economic Regulation Authority (ERA) is Western Australia’s independent economic regulator. The ERA’s role is to regulate the gas, electricity and rail industries, and license providers of gas, electricity and water services.

The ERA was established by the Economic Regulation Authority Act 2003 (WA). This Act provides for the ERA to carry out inquiries and other functions under the following legislation: • • • •

Jenness Gardner, Chief Executive Officer of the Economic Regulation Authority

Energy Coordination Act 1994 (WA) National Gas Access Act 2009 (WA) Railways (Access) Act 1998 (WA) Water Services Act 2012 (WA)

The ERA also conducts inquiries into economic matters referred to it by the Treasurer, provides support to the independent Rule Change Panel, and has a range of regulatory and review roles in the Wholesale Electricity Market and retail gas market.

The ERA aims to ensure that the delivery of water, electricity, gas and rail services in Western Australia is in the long-term interest of consumers and to maintain a competitive, efficient and fair commercial environment. The ERA makes its decisions independently from industry, government and other interests, and is not subject to government or ministerial direction when carrying out regulatory functions.

Another unique challenge for the ERA is that, while it is an independent Government authority, the majority of the agency’s funding comes from the industries it regulates. The ERA must monitor the costs of performing each of its functions and ensure these are measured, reported and charged back to industry with a high degree of accuracy and transparency.

Many of the regulatory regimes administered by the ERA were designed for a world that no longer exists. For example, WA’s electricity market, which now has a level of renewable generation not imagined when the current system was designed.

In addition, many of these sectors are encountering rapid technological change.

The Chief Executive Officer of the ERA, Jenness Gardner, manages the operation of the ERA’s 68 member Secretariat and supports the ERA’s decision-making authority, the Governing Body. A significant challenge for the ERA’s leadership is to retain and attract staff with a high level of technological skill and the ability to adapt quickly to new ways of working.

More information about the ERA is available at https://www.erawa.com.au/.

Equal Opportunity Commission The office of the Commissioner for Equal Opportunity is established under the Equal Opportunity Act 1984 (WA) (the EO Act).

The EO Act came into effect in July 1985, setting out the grounds of unlawful discrimination and the areas of life in which Dr John Byrne AM, discrimination is prohibited. Those grounds Commissioner for Equal Opportunity include race, sex, pregnancy, impairment, age, and sexual orientation, in the areas of employment, education, accommodation, membership of clubs, and the provision of goods and services. Sexual and racial

The EO Act makes it unlawful to victimise someone who has lodged a complaint, or who has otherwise asserted their rights under the Act. The Act also provides for exceptions, such as educational institutions established for religious purposes, genuine occupational qualification, and accommodation for aged persons.

In 2019-20 the Equal Opportunity Commission received 1,318 enquiries and handled 578 complaints of discrimination.

The Commissioner is appointed by the Governor for a term of up to seven years and exercises independent functions and powers derived from the EO Act. The Commissioner is independent in the sense there is no capacity for the responsible Minister to direct the Commissioner in relation to the performance of those functions. This affords the Commissioner operational autonomy.

The core functions of the Commissioner are to investigate and attempt to conciliate complaints of discrimination and harassment, and to provide training, information, and advice to the community about equal opportunity law. The Commissioner may refer complaints which are not resolved by conciliation, or which are dismissed by the Commissioner, to the State Administrative Tribunal for determination.

The Commissioner is supported administratively by the Equal Opportunity Commission, comprising approximately 20 FTE public sector employees, undertaking the Commissioner’s functions under the EO Act, some of which are delegated.

There have been four Commissioners since 1985 and Dr John Byrne AM has been in the role since 2016.

More information about the Equal Opportunity Commission is available at https://www.eoc.wa.gov.au/.

Health and Disability Services Complaints Office The Health and Disability Services Complaints Office (HaDSCO) is an independent statutory authority providing an impartial resolution service for complaints relating to health, disability and mental health services in Western Australia and the Indian Ocean Territories, covering the public, private and not-for-profit sectors and prison health services.

Sarah Cowie, Director of HADSCO

The Office was initially established in 1996 as the Office of Health Review and changed its name to HaDSCO in 2010. The functions of HaDSCO are set out in the Health and Disability Services (Complaints) Act 1995 (WA), Part 6 of the Disability Services Act 1993 (WA) and Part 19 of the Mental Health Act 2014 (WA). Under these Acts, the Director of HaDSCO’s primary functions include: • • • •

Dealing with complaints by negotiated settlement, conciliation or investigation; Reviewing and identifying the causes of complaints; Providing advice and making recommendations for service improvements; and Educating the community and service providers about complaints handling.

HaDSCO’s focus is to achieve quality outcomes for service users and providers by resolving complaints as informally as possible, usually through Alternative Dispute Resolution, in the

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most timely and efficient manner.

In 2019-20, HaDSCO received 2,629 complaints. It achieved various outcomes for individuals including apologies from service providers, explanations for treatment decisions and clinical outcomes, improved access to services and, in some instances, financial remedies such as fee refunds. HaDSCO also identified a number of service improvements that were implemented by service providers to enhance services for the wider community.

HaDSCO continues to provide an important role during the COVID-19 pandemic. Between 26 February 2020 and 30 June 2020, 161 complaints were received specifically about COVID-19 matters, representing 17 per cent of all matters in this period. Issues were raised around infection control measures, access to services and COVID-19 testing arrangements. These matters were prioritised and arrangements were made with service providers to streamline complaint resolution processes to minimise the impact on their service delivery during the pandemic.

The Director, Ms Sarah Cowie, was appointed to the role in April 2016 by the Governor of Western Australia. Ms Cowie reports to the Deputy Premier; Minister for Health; Mental Health, the Hon Roger Cook MLA and provides information to the Minister for Environment; Disability Services; Electoral Affairs, the Hon Stephen Dawson MLC on issues relating to the disability sector. Ms Cowie is supported by highly-skilled and dedicated staff. Ms Cowie’s focus is on supporting improvements to health, disability and mental health services through complaint resolution and sector improvement. Ms Cowie and her staff recognise the inherent value in resolving complaints and using the outcomes of the process to drive system changes.

More information about the Health and Disability Services Complaints Office is available at https://www.hadsco.wa.gov.au/home/.

Mental Health Tribunal The Mental Health Tribunal (Tribunal) is an independent decision-making body established by the Mental Health Act 2014 (WA) (Mental Health Act).

In Western Australia individual psychiatrists are empowered to make involuntary Karen Whitney, treatment orders authorising psychiatric President of the Mental Health treatment without consent. The Tribunal’s Tribunal main functions are to review every involuntary treatment order made by a psychiatrist in WA to ensure patients are protected from any abuse of power under the Mental Health Act, and to determine, on an ongoing basis, whether the patient still needs the order.

The Tribunal can also decide other questions under the Mental Health Act, including whether a psychiatrist may perform electroconvulsive treatment on a patient.

The Tribunal makes decisions based on information provided at a hearing. The panel at each hearing usually consists of a lawyer, a psychiatrist, and a community member. The legal member is the presiding member, managing the hearing and delivering the decision on behalf of the panel. Legal members decide all questions of law (including mixed questions of law and fact) with a majority of the three members deciding any other questions. On 30 June 2020, the Tribunal had 60 members consisting of legal members, sessional psychiatrist members and community members.

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The Tribunal usually holds hearings at the hospital or health service treating the patient. The Tribunal expects the patient’s psychiatrist to prepare and tender a medical report to the panel, and to attend the hearing. The Tribunal also strongly encourages patients and their families to attend hearings. Patients may bring an advocate or a lawyer to speak for them if they choose. At the hearing, participants can call evidence, examine or crossexamine witnesses, and make submissions. Whilst the formal rules of evidence do not apply, the rules of procedural fairness do. At the end of a hearing, the Tribunal decides the questions in issue, notifies the participants of its decision, and provides oral reasons which can be transcribed if required. The Tribunal’s decisions are reviewable by the State Administrative Tribunal.

The current President of the Tribunal is Karen Whitney. The President’s primary role is to ensure that the Tribunal’s activities are directed towards achieving its mission of safeguarding rights and promoting compliance and accountability under the Mental Health Act. The President must ensure that this mission is achieved in the most efficient and effective way possible.

The President is ultimately responsible to the Minister for the governance of the Tribunal and all operational decisions and outcomes.

More information about the Mental Health Tribunal is available at https://www.mht.wa.gov.au/.

Office of the Auditor General The origins of the Office of the Auditor General (OAG) date back to the first months of settlement of the Swan River colony. In May 1829, even before landing on shore, Captain Stirling formed a Board of Counsel and Audit for the management of the Caroline Spencer, property of the Crown and of public property Auditor General within the settlement. The early recognition of the importance of the audit function is encapsulated in section 65 of the Constitution Act 1889 (WA).

The independence and the powers of the Auditor General have been strengthened and expanded since those early beginnings to meet the changing needs and expectations of the community and the Parliament, and to reflect the nature of the public sector that is audited.

The Auditor General reports directly to the Parliament and through two oversight committees, the Public Accounts Committee and the Estimates and Financial Operations Committee. The results of the OAG’s work is encapsulated in approximately 30 audit reports tabled in Parliament each year, and communicated through briefings to members and committees of the Parliament. The Auditor General Act 2006 (WA) and Financial Management Act 2006 (WA) further require the Auditor General to form an opinion on whether a Minister’s decision not to provide information requested in Parliament is reasonable and appropriate. The OAG also investigates public interest disclosures (protected whistle blower allegations) relating to mismanagement of public resources.

While the OAG’s main focus is on whether public money is used for Parliament’s intended purposes, broader aspects of performance are also audited. The OAG currently conducts annual audits of 180 State and 148 local government entity finances and key performance indicators, as well as entities’ financial management and governance controls. The OAG also has powers to ‘follow-the-dollar’, which involves auditing functions delivered by non-government parties under contract on behalf of the State, and analyse how organisations spend government funds received through grants.

Another important function of the OAG is its performance auditing of the efficiency and effectiveness of public sector activities and service delivery. The OAG’s performance audit reports require audited entities to respond to recommendations for improvements and commit to implementation timelines.

Performance and focus area reports often include better practice checklists that provide guidance for all entities, and a new forensic audit function is using data analytics and other investigatory techniques to delve deeper to identify financial misappropriation.

Commissioner in July 2019 for a five year term following 12 months acting in the role. The Information Commissioner is supported by 13 staff at the Office of the Information Commissioner.

The current and State’s 19th Auditor General, Caroline Spencer, is the first woman appointed to the role. The Auditor General, informed by her executive team, makes strategic decisions about office resourcing, performance audit topics and timing and other material issues affecting delivery of statutory functions and requests for audit. The role involves extensive stakeholder engagement, particularly with State and local government elected members, CEOs and Commissioners, community groups, the Parliament and its committees.

The Office of the Inspector of Custodial Services (OICS) was established in 2000 as an independent statutory agency responsible for inspecting and reporting on the performance and standards of practice Eamon Ryan, in Western Australia’s prisons. In late 2003 Inspector of the Inspector of Custodial Services Act 2003 Custodial Services (WA) (the ICS Act) came into operation and the jurisdiction of OICS was extended to include the detention centre for young people.

More information about the Office of the Auditor General is available at https://audit.wa.gov.au/.

Office of the Information Commissioner The role of the Information Commissioner (the Information Commissioner) is established under the Freedom of Information Act 1992 (WA) (the FOI Act).

The Commissioner is appointed by the Governor, is independent of executive government and reports directly to the Parliament and not to, or through, a Government Minister.

Catherine Fletcher, Information Commissioner

The objects of the FOI Act are to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public. Those objects are achieved primarily by the creation of a general right of access to State and local government documents subject to, and in accordance with, the FOI Act and also by requiring that certain documents concerning State and local government operations be made available to the public. An agency is required to deal with a valid application under the FOI Act by making a decision about access or amendment in accordance with the FOI Act. The main function of the Information Commissioner is to provide independent external reviews of decisions made by agencies under the FOI Act on access applications and requests to amend personal information. In 2018/19, 19,258 access applications were made to Western Australian State and local government agencies. In that year, the Information Commissioner received 176 applications for external review.

The Information Commissioner’s other responsibilities include ensuring that agencies are aware of their responsibilities, and that members of the public are aware of their rights, under the FOI Act; providing assistance to members of the public and agencies on matters relevant to the FOI Act; and recommending to Parliament legislative or administrative changes that may assist the objects of the FOI Act to be achieved.

The Information Commissioner is also a member of the State Records Commission, a body that has oversight of the State Records Office.

Catherine Fletcher was appointed to the role of Information

More information about the Office of the Information Commissioner is available at https://www.oic.wa.gov.au/en-au/.

Office of the Inspector of Custodial Services

The ICS Act requires that each facility (prisons, the juvenile detention centre, court custody centres and prescribed lockups) must be inspected and reported upon at least once every three years. The Inspector has discretion to undertake inspections, announced or unannounced, at any other time and on any number of occasions. The powers of the Inspector are wide-ranging and include the right of free and unfettered access to each facility, vehicles used, people and documents.

The Inspector, staff and Independent Visitors have a high level of activity and presence within each facility.

The Inspector is also responsible for administering the Independent Visitor service in Western Australia. Independent Visitors are appointed by the Minister to specific facilities and are required to visit at least once every three months, however in practice they visit more frequently.

The Inspector works towards improving the transparency and accountability of the custodial system and reports directly to Parliament. The work of the Inspector includes publishing inspection standards for custodial environments, working with agencies to improve outcomes, achieving efficiencies and best practice in the system, and working to reduce risks for individuals in custody and the system overall.

The OICS has a Community Liaison Officer who provides the Inspector and staff with a highly valued cultural context in working with prisoners and young detainees, their families, and people in the community.

The emergence of COVID-19 and the response measures taken to combat its spread required a modification to the usual way of doing business for the Office. Under the principle of ‘do no harm’, the Office adjusted its methodology for mandated inspections and the strategy of continuous inspection through regular liaison visits. Recent easing of restrictions has allowed a resumption of close to usual practice, with modifications for COVID-19 safe practice.

The current Inspector of Custodial Services is Eamon Ryan, who was appointed in May 2019 for a five year term. Eamon is the third Inspector since 2003.

More information about the Office of the Inspector of Custodial Services is available at https://www.oics.wa.gov.au/.

Note that other key oversight agencies that were not featured in this article, notably the Public Sector Commission (PSC) and the Corruption and Crime Commission (CCC), are respectively located at Dumas House, West Perth and in Francis Street, Northbridge.

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Third Parties in Family Law Proceedings

By Nicola Jansen Consultant & Accredited Family Law Specialist, Oâ&#x20AC;&#x2122;Sullivan Davies This article is aimed at legal practitioners specialising in family law.

The involvement of third parties in family law property matters is becoming an increasingly difficult area of practice that is fraught with difficulty for the unsuspecting client and lawyer. Sophisticated estate planning and protection measures can be difficult to unwind, particularly when family lawyers are now frequently being engaged to provide their opinion on what is becoming known as dynastic asset protection and estate planning.

Part VIIIAA of the Family Law Act 1975 (Cth) (the Act) came into effect on 7 December 2004 and sets out some of the express powers the Court has regarding third party interests1. It can substitute debtors2, transfer shares3, compel a third party to â&#x20AC;&#x153;do a thingâ&#x20AC;? and even alter their rights in property4 and it can do so despite anything to the contrary in any other laws of the Commonwealth, State or Territory; and any trust deed or other instrument5.

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The Family Court can also do the following in so far as third parties are concerned: 1. Set aside transactions pursuant to s106B6; 2. Make Orders regarding ante-nuptial or post-nuptial settlements pursuant to s85A7; 3. Make findings that third party property is a financial resource of the relevant spouse;

4. Find that a third party is a sham or an alter-ego of one of the parties; and/or 5. Make declarations pursuant to s78 that third party property is that of one of the spouses.8 Third parties may also find themselves involved in Family Court proceedings via associated jurisdiction9 and the accrued jurisdiction of the Court.

The purpose of this paper is to provide an overview of: 1. How to evaluate whom to join and how; 2. Powers of the Court under Part VIIIAA; 3. Types of third parties/trusts; 4. Alternatives to joining; and 5. Other relevant considerations.

This paper does not cover third party involvement in parenting proceedings.

Part VIIIAA of the Act

following 3 elements:

As noted above, the Court has particularly wide powers regarding the Orders that may be made in property settlement matters involving third parties. However, these powers are not without limit. Section 90AE(3) sets out the circumstances and applicable considerations that the Court must turn its mind to prior to utilising these powers. In short, these are:

• •

•

•

•

• •

The order must be reasonably necessary to effect the appropriate division of property between the parties to the marriage; If the order concerns a debt of a party to a marriage and if it is not foreseeable at the time the order is made that the debt will not be paid in full10; The third party whose rights are being affected is afforded procedural fairness; It is just and equitable to make the order; The order takes into account: »» The taxation effect on the parties (including third party/ies); »» The social security effect of the order; »» Administration costs in relation to the order; and »» The capacity of the party to the marriage to repay the debt after the order is made (if applicable).

Preliminary considerations What is a third party?

“Third party” has a wide meaning in the context of family law proceedings11 and, among other individuals and entities, can include parents of parties, trustees of a trust, executors, business partners, companies and children (adult or under 18).

From a practical perspective, a lawyer faced with a potential third party must undertake the necessary “due diligence” and groundwork before providing any advice about joinder applications.

Trust interests There are, generally speaking, two umbrella groups of trusts - express and non-express trusts. Express trusts are trusts that generally formed based on the intention of the settlor. A non-express trust is a trust that is trust that is created by implication of law (a resulting trust) or as an equitable remedy imposed by a court (constructive trusts).

In equity, express trusts must have the

•

Certainty of creation/intention; Certainty of object (beneficiary/ies); and Certainty of subject (the trust property or assets)12.

Additional requirements (eg requiring a formal trust deed) may also exist by operation of statute.

When examining a matter that may include trust interests, you should review the relevant documents and consider, for example, the answers to the following questions: 1. Who are the specified and general beneficiaries?

2. Does the Deed provide any default beneficiaries?

3. Do the trust resolutions indicate a pattern of distributions, not only to the relevant spouse, but the spouse as compared to the other beneficiaries (for example, do all the beneficiaries receive an equal share of the income each year?); 4. Who is the appointor?

5. Who provided the Trust capital?

6. If there are any purported Deeds of Variation, are they properly drafted and executed in accordance with the requirements of the original Trust Deed?

7. Is the timing of any restructure questionable?

8. What are the powers of the trustee?

9. What are the loan account and UPE details?

Company interests If you are considering a shareholding in a family company as opposed to a trust, you should examine the Constitution or Articles of Association for the powers attached to the various classes of shares (and, of course, obtain a current and historical search of company details from ASIC). Valuations issues will also tend to arise with respect to shareholdings.

Documents you request may vary depending on whether the other party is a shareholder of the company, or a shareholder and officeholder. If the spouse is an officeholder only, you should consider on what basis any documents pertaining to that entity are relevant to the case, and limit any request for documents to the particular documents you say are required.

Is the property matrimonial property?

The lead case in this area in relation to trust property is Kennon & Spry13, which highlighted the ability of the Family Court

to include trust property as matrimonial property.

In paragraph 70 of the judgment, French CJ stated: “66. ….for so long as Dr Spry retained the legal title to the Trust fund coupled with the power to appoint the whole of the funds to his wife and her equitable right it remained in my opinion property of the parties to the marriage for the purposes of the power conferred by the Family Court by s.79 the assets would have been unarguably property of the marriage absent the subjection to the Trust…

70. The characterization of the assets of the Trust, coupled with Dr Spry’s power to appoint them to his wife and her equitable right to due consideration, as property of the parties to the marriage is supported by particular factors.

It is supported by his legal title to the assets, the origins of their greater part as property acquired during the marriage, the absence of any equitable interest in them in any other party, the absence of any obligation on his part to apply all or any of the assets to any beneficiary and the contingent character of the interests of those who might be entitled to take upon a default distribution at the distribution date.”

If there is one thing the authorities in the area teach us, it is that the question of whether trust property falls within an asset pool of the marriage will depend on the facts of each case. This demonstrates how fundamentally important it is completely to proof your client and source all relevant documents before providing detailed advice on entitlements.

Once you have identified whether the assets of the trust are likely to be included in the asset pool available to be divided (or, more correctly, whether the party or parties’ interest in the trust is likely to be considered property), the question becomes whether joining is necessary.

The trustee of a trust (if, for example, the trustee is a company controlled by one of the parties), does not necessarily have to be joined to the proceedings.

The Full Court in Stephens14 reiterated that a trustee should only be joined if the orders sought cannot be carried out or the property pool cannot be determined without an order against a third party.

If there are sufficient assets elsewhere in the pool from where a claim may be satisfied, or if there are no concerns with future enforcement, a third party may not have to be joined. They must still, however, be afforded procedural fairness

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Family Court of Western Australia

and should be notified of the proceedings in the event they are not an entity controlled by a spouse.

Can a trust be implied?

Often, particularly in family arrangements, legal title to an asset is not held by one of the parties to the relationship, but one spouse claims that the asset (either in whole or in part) should be included in the pool as a result of an implied trust.

Constructive trusts A constructive trust arises by operation of law where: 1. The parties have a common intention regarding beneficial interest; or 2. There is no common intention but it would be unconscionable for the legal owner to deny others a beneficial interest (in this sense, the finding is remedial in nature).15 The High Court held in Baumgartner16 at 148 that “a constructive trust can be imposed as an equitable remedy in accordance with a “general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances which it was not intended that the other party should enjoy them.”

Whether or not a constructive trust exists will depend on whether a matter falls

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within a “distinct category of case” as identified by Deane J in Muschinski v Dodds17.

Interestingly, the High Court approved a passage from Scott on Trusts18 in the case of Giumelli19 pointing out that the adjective “constructive” derives from the verb “construe” rather than “construct”the Court “construes the circumstances in the sense that it explains or interprets them; it does not construct them”.

An example of a situation whereby a constructive trust may exist is where the parties to proceedings live on a property owned by an entity controlled by the Wife’s parents and the parties have paid for their home to be constructed on the property, as well as numerous other improvements.

Other examples include: 1. Grefeld & Grefeld and Anor20: The husband took funds from his sister’s bank account in Germany under the terms of a power of attorney executed in Germany. He then purchased a property in the wife’s name with those funds. The trial judge in the first instance founds that the property was held on constructive trust for the sister and ordered that the wife transfer the property to the sister. The wife appealed and claimed that the husband had borrowed the funds from the sister, that a fiduciary relationship between

the two did not exist and that her title was indefeasible. The appeal by the wife was unsuccessful.

2. Gabini & Gabini21: The Wife held two properties. One registered in her sole name, in respect of which she claimed that she held one half on trust for her mother. The other property was registered in the name of 4 people and the wife held a one quarter share which she claimed to hold on trust for her parents. The Husband claimed that the principles of advancement applied and, on that basis, there was no trust. The Trial judge found (and the Full Court upheld) that the principle of advancement was rebutted based on the facts.

3. B & B & Ors22: In 1993, the husband and his two children purchased a property as tenants in common in equal shares. The husband and wife were still living together and had been for approximately 28 years.

The husband contributed $10,000 of the $181,000 purchase price. One child paid $500 and the balance was borrowed. The children and the husband equally contributed to the mortgage repayments. By the trial, the husband had paid approximately $77,000 in mortgage repayments and the children had each spent approximately $27,000 each. The Court did not find a resulting trust

favour of the other or others.”26

due to the injustice it would cause to the children (see below regarding resulting trusts as a result of disparity in contribution to purchase price).

The Court found that the Husband’s interest in the property was 50%, and that the children held 24% and 26% respectively.

A detailed discussion of the relevant principles in this area are set out by the Full Court in Crafter and Ors & Crafter and Ors23. When in doubt, consider obtaining an opinion from Counsel well versed in principles of trusts and equity.

Resulting or implied trust A resulting trust arises by operation of law where there is a failure to dispose of an entire beneficial interest in property so that the interest reverts back to the settlor of the trust. It is based on the presumption that the parties intended to create a trust.

The Court will begin by assuming that equitable title to property follows from legal title. In other words, if two people hold legal title to property as tenants in common in equal shares, the presumption is that they also hold beneficial title in equal shares. This is a rebuttable presumption that may arise in one of two situations.24 They are described by Gibbs CJ in Calverley v Green25: “where a person purchases property in the name of another, or in the name of himself and another jointly…unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement…there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly and the property is put into the name of one only, there is, in the absence of any relationship, presumed to be a resulting trust in

“two persons have contributed to the purchase money in unequal shares, and the property is purchased in their joint names, there is…in the absence of a relationship that gives rise to the presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed to the purchase money.”27 Note that the above only applies in relation to the purchase price of a property. Payment of mortgage repayments do not apply, but they may be recoverable on some other equitable basis.

Whether to join Rule 6.02 Family Law Rules 1. A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.

Example: If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act, a third party who will be bound by the order must be joined as a respondent to the case. [subsection 2 deleted for the purpose of this paper] Note 1: The court may dispense with compliance with a rule (see rule 1.12).

Note 2: Pre-action procedures must be complied with by all prospective parties under rule 1.05.

When evaluating whether to join a third party, particularly in the context of a party’s interest in a trust, regard must

be given to the Full Court’s comments in B Pty Ltd and Ors & K and Anor28. The Court said in that case [at 29]: In our view, all that s 90AE(2)(b) does… is to enable the court to adjust the property interests of a third party for the purpose of effecting a division of the present property of the parties to the marriage, between those parties.

Only in the sense that altering interests may leave a bundle of rights or interests that are consequent upon the alteration, may the exercise of power create interests, but these “new” interests will be the residue of what already existed at law…

In short, s90AE is used to alter rights in property that already exist - it cannot be used to create new interests to arbitrarily increase the asset pool. The Court reiterated this in the matter of Cule & Cule. The parties in that matter were largely united against the third parties, primarily the Husband’s brother. The wife in that matter sought orders that: •

The second, third, fourth and fifth named respondents do all acts and things and sign all documents necessary: »» To effect any transfer of shares or other assets of the second, third, fourth or fifth named respondents to the Applicant or such other person as this Honourable Court may order so as to give effect to any Orders for a property adjustment made by this Honourable Court; »» To sell any shares or other assets of the second, third, fourth or fifth named respondents as may be ordered by this Honourable Court.

The Mr Cule, who at that stage was selfrepresented, filed an application seeking identical orders. The third parties filed a

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strike-out application. The Court said: “…27. Much more careful thought needs to be applied as to how the wife could obtain any entitlement out of the trust bearing in mind that such an order might also give rise to significant taxation liabilities if distributions were made from the trust as would seem to have been anticipated but not necessarily stated by the wife. Obviously, any restructuring of the trustees control would have serious implications for the beneficiaries of the relevant family trusts. They would need to be heard in relation to the due administration of the trust particularly if there was an order that altered the entitlements of the various family trusts. It is also obviously a problem where the trusts conduct a business… …. 63. In our view, the correct conclusion was that, as the wife set out her proposed claim, she did not show that the power conferred by s 90AE could arguably be engaged. Any order made pursuant to s 90AE(2) (b) must be for the purpose of effecting a division of property between the parties. The order that the wife proposed was for the purpose of increasing the property of the parties, by an unknown amount and on unknown principles.”

Service of the application and affidavit and any other relevant document is essential.

Also be mindful of your obligations to afford procedural fairness to those that may be impacted by your client’s orders sought. For example, you may have to give notice of the orders sought if those orders impact on third party rights, including the rights of a wider class of beneficiaries of a trust.

Resisting an application for joinder If a third party is a necessary party within the meaning of rule 6.02, it may be difficult to resist any application for joinder. However, when advising a third party who seeks advice as to how to avoid being drawn in to proceedings, it is essential to look at whether the party advocating the joinder application has sufficiently particularised their case.

Former Chief Judge Thackray said in As Chief Judge Thackray said in In the Marriage of Painter and Notaris [2005] FCWA 12, at para. [28]: “Whist it may (possibly) be reasonable in proceedings between husband and wife in this Court for one party to be permitted to delay specifying their claim until after full-disclosure is provided, I am far from convinced such indulgences should be extended where third parties are drawn into proceedings. If the wife considered she has a claim against third parties, she should state it with particularity and not embark on what might otherwise appear to be a ‘fishing expedition’” (emphasis added).”

Before joining a party, you must identify who you are joining. Who you should join is largely determined by the final Orders that you seek in relation to property.

Common third parties include:

•

Individual in their personal capacity.

The Trustee of a Trust; Individual in their capacity as Executor of an Estate; and Company.

How to join a third party Once you have decided whom to join and that they are a necessary party, the “how” is relatively straightforward and set out in rule 6.03. In short, if you are filing an initiating application, you name the third party in your application and set out the reasons for joining them. If proceedings are already on foot and you wish to join a third party, you must file an Application in a case with an affidavit in support. The affidavit must set out the facts relied upon to support the addition of the new party and include a statement of the proposed new party’s relationship to the existing parties.

28 | BRIEF OCTOBER 2020

•

Interestingly, the notes of rules 6.02 and 6.03 state that pre-action procedures must be complied with by all prospective parties. This includes the requirement to make disclosure of documents relevant to a fact in issue and make a genuine offer to settle.

Who to join

• • •

•

Final remarks It is often said that lawyers must have a general knowledge of other practice areas to be an effective family lawyers.

We have to be mindful of law relating to commercial matters, property, equity & trusts and crime. Matters involving third parties in particular require a good working knowledge of equity and trusts and commercial matters. The importance of understanding the fundamental elements of your client’s case against any third party prior to joining them cannot be understated.

Endnotes 1 2 3 4 5 6 7 8

9 10 11

Summary of legislative and case law considerations when third parties are involved •

• •

•

Section 79(10): Sets out creditors and others who are entitled to become a party; Rule 6:02: Sets out the test of what constitutes a necessary party; Rule 14:07: Any person seeking to intervene must serve written notice on each person listed in 79(10); A third party can institute proceedings to set aside orders that defeat their interests as a creditor (when such orders were made

without notice) or apply to set aside a financial agreement pursuant to ss4A or 4B; If acting for reluctant third parties, consider a strike out application pursuant to rule 10.12; An applicant seeking to join third parties must be careful to particularise their case to minimise risk if strike-out application is filed and must ensure there is sufficient evidence to demonstrate that, if proved, the law arguably provides the relief sought by them. This is not necessary akin to a Statement of Claim, but shares some similarities.

Ideally a document summarising the particulars of claim should be prepared ahead of a joinder application, particularly if it is likely that the third parties will be hostile.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Division 2A of the Family Court Act 1997 (WA) (FCA) sets out comparable powers S90AE(1)(a)-(b) S90AE(d) S90AE(2) s90AC S222 of the FCA There is no mirroring provision of 85A in the FCA. It is worth noting that the s78 equivalent in the FCA, s205ZA, includes an additional provision specifying that the declaration is not binding on anyone other than the de facto parties.

S33 i.e. there is no reason for the Court to assume that the debt will not be fully repaid S90AB: “A person who is not a party to the marriage”.

The High Court confirmed that this can also include the Australian Taxation Office in Commissioner of Taxation v Tomaras [2018] HCA 62, particularly that one spouse may be substituted for the other, on the basis that the statutory requirements of s 90AE(3) are satisfied.

Knight v Knight (1840) 3 Beav 148 [2008] HCA 56 Stephens v Stephens & Ors [2007] FamCA 680 Muschinski v Dodds (1985) DFC 95-020 and Baumgartner v Baumgartner (1988) DFC 95-058 Supra Supra Scott on Trusts (4th ed, 1989) Vol 5 (1999) 196 CLR 101 at 111 [2012] FamCAFC 71 [2014] FamCAFC 18 [2001] FMCAfam 13 [2012] FamCAFC 199 On Equity, Young, Croft and Smith (2009) Thomson Reuters (1984) 155 CLR 242 Ibid at 246 Id at 246 and 247 [2008] FamCAFC 113

Traps for Bilingual Lawyers – A Risk Management Reminder

By Dr Andrew Lu OAM Partner, HBA Legal This article is adapted from a paper presented at a Law Society of Western Australia CPD seminar on 10 September 2020. It will be presented again in February 2021.

“It is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection”1 “In earlier times, when Australia was comprised of a generally homogeneous English-speaking population, we were less sensitive than we are now to the difficulties of persons appearing in our courts without the advantage of proficiency in the English language… Times have changed…2

Australia is a nation of migrants, and one of the world’s most culturally diverse nations. More than 300 languages are spoken on this land, including 150 Aboriginal languages.

Australia does not have an official language. However, legal processes in Australia are conducted only in English.

Australia’s justice system is monolingual.

English is also the language most often spoken in Australian homes, even when it is not the occupant’s first language.

In a country where 25% of us were born overseas, and half of us have a parent who was born overseas3 and a similar percentage of residents speak a language other than English at home4 this aspect of multiculturalism is one of our nation’s strengths. But because effective communication is an essential aspect of our justice system, we need to ensure that access to justice is not constrained.

The cultural diversity of Australia is an opportunity for bilingual lawyers of diverse heritage to support clients in need of legal services. Bilingual lawyers enable multicultural Australia to access justice.

The cultural profile of law graduates from Australia’s 40 law schools now broadly mirrors the cultural and linguistic diversity of Australia. By taking instructions or

explaining legal principles in the client’s preferred language, bilingual lawyers fulfil an important function to help make legal advice more accessible5.

A bilingual service is particularly valuable for members of our community who may be more recent migrants from non-English speaking countries, or those who have faced structural barriers to achieving English language proficiency despite living in Australia for many years. Some migrant women, older migrants, or those who may have been unable to complete their education due to civil strife, may struggle to achieve English language proficiency. A person who is not in the workforce, who has caring responsibilities that keep them in the home, who live and interact predominantly with native speakers of their preferred language, or whose cultural considerations such as a fear of losing “face” through appearing silly by practising English, may all limit access to information and legal advice.

Until recently, migrants could only access up to 510 hours of subsidised English

language training under the Adult Migrant English Program, with most participants completing only 300 hours of training.6 This is not enough to achieve functional English to enable participation in society, let alone to understand legal rights and obligations or to enforce them through tribunals or courts.

Some of the approaches adopted by lawyers to translation and interpretation, whether for convenience or to save costs, can expose a legal practice and its solicitors to additional liability risk.

As recent decisions remind us, whether it is a bilingual solicitor translating oral evidence into affidavit form without independent certification, or something more complex that ends up before a judge, things can go wrong. Solicitors would be better served by avoiding the potential for conflicts and disagreements between clients, opponents and decisionmakers by engaging professional and independent NAATI7 accredited interpreters and translators.

This paper addresses some recent cases to remind practitioners of the traps for bilingual lawyers working with Culturally and Linguistically Diverse (CALD) clients.

It is also of course of broader relevance to lawyers advising clients who may not be fluent in English and may require

29

assistance from an interpreter or a translator.

Context The reality is that in Australia, the professionalisation of interpretation and translation services since the 1970s, together with translation apps available on any smartphone or mobile device, has meant that there are more resources than ever before to facilitate communications between CALD clients, witnesses, their lawyers, and decision-makers.

Prior to colonisation, this land that we now call Australia was home to linguistically diverse First Nations Peoples for some 60,000 years.

In the 231 years since colonisation, English, Mandarin Chinese, Arabic, Cantonese and Vietnamese have become the top 5 of the 300 languages of this country now spoken in Australian homes.8 In the 2011 Census, Mandarin Chinese first surpassed Italian as the most-spoken language in Australia, after English. By the 2016 Census, Italian was no longer even in the top 5 of languages spoken in Australia.

Before the professionalisation of translation and interpretation, nonEnglish speaking clients had to make do with help from family and friends. For example, William Ah Ket, Australia’s first barrister of Chinese heritage who signed the bar roll in Victoria in 1904, was born in 1876 in Wangaratta Victoria to a Chinese immigrant father who became so proficient in English that he worked from time to time as a court interpreter, and a Chinese immigrant mother who spoke no English. Ah Ket, like his father, also worked as a court interpreter. He then studied law at Melbourne University.

His intention was to help the Chinese community at a time when Chinese immigrants who came to Australia during the gold rush were facing discrimination.

That discrimination culminated in the colonies declining to naturalise Chinese.

With Federation, the Immigration Restriction Act 1901 (Cth) ensured the cultural and linguistic diversity of Australia was constrained by restricting immigration through prescribing a dictation test in any European language9, designed to exclude non-Europeans from landing in Australia. This policy supported non-Asian immigration for the first 6 decades of Federation.

Guidelines, tips and cases In this paper, we deal only with a small number of recent decisions through which solicitors are reminded to take care when 30 | BRIEF OCTOBER 2020

performing or making use of translations and interpretations. This is intended as a gentle reminder to all solicitors who advise CALD clients or deal with CALD witnesses, as we discuss four common traps for the bilingual lawyer.

Additional considerations and risks will arise if a bilingual lawyer is also advising on Australian law in a language other than English.

Linguistic diversity has the potential to expose a lawyer to additional risks when the lawyer also translates documents, or where a lawyer and client are using different dialects, such as Singaporean Hokkien versus standard Taiwanese Hokkien.

For the bilingual lawyer in a bilingual law firm, drafting correspondence and making file notes in a language other than English may be convenient for the lawyer and the client, but may also create new challenges if there is ever a taxation of costs, or a professional complaint against the bilingual practitioner.

That said, the obligation to keep records does not specify that records must be kept in English. Meticulous file notes kept in Chinese or Arabic might be adequate for the bilingual practitioner, their bilingual staff, and a bilingual client, but they will still make it difficult to respond to a professional complaint or claim. A file written entirely in Chinese or Arabic will pose added challenges for Law Mutual, the costs consultant, or the State Administrative Tribunal.

When is an interpreter required?

In every case involving a non-English speaking client10, independent professional judgment on the need for an interpreter or professional translator is appropriate.

An interpreter is advisable: 1. If requested by the client 2. Where a client cannot comprehend or respond to basic questions in English 3. If the client is difficult to understand or can only respond in a limited way 4. If the client relies on family or friends to communicate 5. When the client prefers to speak in their own language 6. When the client speaks English as a second language and is in a stressful, complex or unfamiliar situation11 The Judicial Council on Cultural Diversity (JCCD) has issued resources to inform the use of interpreters in courts and tribunals, first published in 2017. The JCCD’s ‘Recommended National

Standards for Working with Interpreters in Courts and Tribunals’12 (Recommended National Standards) include Model Standards, Model Rules and a Model Practice Note for lawyers and courts. The Recommend National Standards are the product of a working group of the JCCD including decision-makers, academics, and translators, convened under former JCCD Chairman and then Chief Justice of Western Australia the Hon Wayne Martin AC QC, and convened by the Hon Justice Melissa Perry of the Federal Court.

The Recommended National Standards have not yet been adopted, but they have been widely reproduced. They include practical guidance for decision-makers and lawyers. They incorporate a “Fourpart test for determining need for an interpreter”13 with examples to guide the practitioner or decision-maker, that has previously been adopted by the Northern Territory Aboriginal Interpreter Service.

Part 1: Ask the party or witness about an interpreter Part 2: Assessing speaking ability – ask questions that require a narrative response Part 3: Assessing comprehension and speaking relevant to the context Part 4: Assessing communication Clients may refuse an interpreter, so it is important to clarify and address the reasons for a refusal. As professional interpreters as also bound to keep matters confidential, this should be explained clearly to the client. The client might also be reticent about incurring the additional costs of a professional interpreter, but it is important to explain that the cost is necessary even if their lawyer is bilingual.

If your legal practice employs many bilingual solicitors who are also NAATI accredited to interpret and translate documents from the client’s language into English and vice-versa, this may be an opportunity to add value to the client experience by involving one bilingual lawyer in the provision of the advice, and the other bilingual lawyer as the interpreter14.

In the same way that you must not witness an affidavit that you prepared (you should secure the services of a colleague independent of the proceeding to do the honours), you should not perform the dual roles of solicitor and translator of a document that may later be relied upon and challenged in court.

Resources are available to practitioners online, and to inform good policy-making in your own law practice. In addition to the Recommended National Standard, documents such as the Legal Aid NSW “Guidelines on interpreting and translation”15 are also readily available to assist in dealings with the culturally and linguistically diverse.

Among the practical recommendations worth remembering are to clarify to your non-English speaking client that the paramount duty of an interpreter is to the court, which is self-evident for any lawyer who is both representing a party and interpreting. Accredited interpreters and translators are held to professional standards. The plurality of interest that arises for the bilingual lawyer is sufficient to give pause for thought on whether to engage a professional interpreter.

It is now convenient to turn to four potential traps for bilingual lawyers, so as to avoid them where possible.

Trap 1- dialects As Jen McMillan has observed in her article, particular care ought to be taken where the client or witness speaks a dialect in which the lawyer is not fluent.16 Thus, in Rocco Condello v Sung Soo Kim [2018] NSWSC 394, a succession case, an affidavit taken in standard Italian and translated by a plaintiff’s solicitor without an interpreter, and not read back to the witness in English before it was sworn, was problematic. As Kunc J17 stated “this approach, while convenient, is not proper practice”18.

The issue became apparent during the giving of the evidence at trial, with the assistance of an interpreter fluent in both the standard Italian and the Calabrese dialect.

1. Kunc J further noted19 that:-

2. Being bilingual does not make one qualified to interpret; and Even where the lawyer speaks the same language as the witness, an independent and qualified interpreter must be retained to translate affidavit evidence given in the foreign language into English and an affidavit from the interpreter obtained to verify the fact of translation and that the English version was translated back to the witness before being sworn.

Trap 2 – professional interpreters acting as interpreters in their own case In Rogic v Samaan [2018] NSWSC 1464, evidence of a plaintiff and witness at hearing was given through a Serbian interpreter, however their affidavit evidence was interpreted into English by a bilingual lawyer.

The Court (again, Kunc J) noted that professional interpreters are highly skilled and adhere to a code of ethics that emphasises competence, accuracy and independence.

Accordingly, even a solicitor who is a professional interpreter should not act as an interpreter in her own cases, to avoid conflicts that might arise if there is a question about the accuracy of an interpretation, or unconscious or conscious bias.

In the writer’s own experience, where the dialect is most often spoken at home and a client or witness may be less familiar with the standard language (for example Mandarin Chinese which is widely spoken by people from the People’s Republic of China and Taiwan, as opposed to the Cantonese, Hakka or Hokkien dialects which are all commonly spoken by people of Chinese background of a particular dialect group including from former British colonies including Singapore,

Hong Kong and Malaysia and which are also subject to wide regional variation).

Thus, the bilingual lawyer may have a sound understanding of the classical or simplified Chinese text and Mandarin Chinese language, but not with the dialect or appropriate version of the dialect.

Conversely, many bilingual speakers of English and a Chinese dialect may have conversational fluency, but are unable to translate or transcribe legal documents.

The use of a qualified and professional translator or interpreter in such cases is essential to protect both client and lawyer from the risk of details becoming lost or missed.

Trap 3 – interpreter not booked in advance of hearing Practitioners should remember that if interpreters are needed to assist any party to participate fully in a hearing, the solicitor for the affected party is responsible for arranging the interpreter.

Courts have been minded to award costs thrown away against solicitors whose failure to do so means that a hearing cannot proceed.20 In De La Espriella-Velasco v R (2006) 31 WAR 291, [2006] WASCA 31 the appellant submitted that the criminal trial miscarried as a result of a poor quality translation service provided to the applicant by a court-appointed interpreter. The interpret lacked the skill and ability to translate accurately the questions of counsel and the answers given, and this meant that the applicant was unable to give an effective account of the facts vital to the defence.

The trial miscarried notwithstanding that the applicant’s counsel did not maintain an objection to the interpreter continuing to provide the translation service21.

Roberts-Smith JA observed that although translate and interpret were used as

31

raise objections where there may be a reasonable basis to do so. If the lawyer was also the translator of a document, that lawyer’s professional independence will be immediately compromised. The role of the lawyer and her obligation to act in the best interests of her client will at least unconsciously infect the interpretation or translation. The plurality of interest becomes a conflict if the lawyer’s interpretation is challenged by an opponent or other third party.

interchangeable terms, they are distinct.

Interpretation is verbal and translation is written.22 Roberts-Smith JA at [8] referenced an article by Susanna Bessell-Browne “Interpreting and the Law” published in Brief, Vol 19, No 9, October 1992, at 13: Interpreters are concerned with the spoken word. They render orally information and ideas from one language into another.

Interpreters are trained to read meaning from gestures and other non-verbal cues. They link these to the meaning expressed in words so that maximum communication is obtained…

Translators are concerned with the written word. They render written text or recorded verbal matter from one language into another. In most cases the translation is written, however, they may be required to do sight or oral translation and this occasionally is required in courts. Oral translation is a very specialised skill and to be fair to the interpreter he/she should have the opportunity to view the document beforehand. Not all interpreters are translators and vice versa,…

NAATI gives separate accreditation for translators and interpreters, and promulgates professional standards for the profession of interpreting and translating.

A practitioner who is fluently bilingual and acts for a client who is not, should 32 | BRIEF OCTOBER 2020

be mindful of the fundamental obligations under the Legal Profession Conduct Rules 2010, including 6(1) A practitioner must –

(d) avoid any compromise in the practitioner’s integrity and professional independence

and 7

A practitioner must –

(b) treat a client fairly and in good faith, giving due regard to the client’s position of dependence, the practitioner’s special training and experience and the high degree of trust the client is entitled to place in the practitioner…

A bilingual practitioner who personally prepares a pleading or evidence for a client who does not have functional English, and does not provide the client with a professional translation in the client’s preferred language, is likely to breach 7(b) by her failure to deal fairly and in good faith, having due regard to the client’s dependence on the practitioner (for both legal advice, and translation).

Irrespective of whether the practitioner is an accredited interpreter or translator, translations are open to challenge and the writer’s experience and opinion is that bilingual solicitors are uniquely positioned to identify infelicities and errors in the translation or interpretation of evidence. This extends to the bilingual practitioner a positive duty to read and consider the translated material, and to

The similar challenge will be experienced by family or friends, who are unable to remain impartial and are also not bound by any professional or ethical standards such as those applicable to NAATI certified professional translators and interpreters. This lack of accountability to professional standards makes family members or friends potentially less reliable as translators. That will be especially so in circumstances where there are nuances or technical issues to be conveyed, or where there is a power imbalance within the community or family that may contribute to an incomplete translation, or introduce a risk of harm to the client or interpreter.

For example, in family law cases where children of a marriage might be fluent interpreters for parents who might lack functional English, the children might also be the subject of discussion. It would not be appropriate for a child to accompany and interpret for a parent in a matrimonial dispute over residence and contact.

Trap 4 – Prepare translated evidence in accordance with the rules Whenever bilingual solicitors are involved, a cautious approach is necessary when preparing translated evidence for use in proceedings.

The expediency of using in-house language skills and social media to prepare evidence will not excuse solicitors from their duty of skill care and diligence in the preparation of evidence, including affidavits taken in languages other than English and translated for use in proceedings.

Thus in Cao v Zhu [2020] NSWSC 32123, the parties were both Mandarin speakers who were not fluent in English to the level required to take part in the legal proceedings without an interpreter. The parties both retained bilingual Mandarin Chinese speaking solicitors. Their affidavits for use in the proceedings were prepared by the bilingual solicitors on both sides, but the affidavits bore no indication that they had been interpreted

back to the parties. Neither solicitor was a qualified or accredited interpreter.

Additionally, Kunc J noted at [16] that “one affidavit was expressed to have been “witnessed via WeChat” (a messaging application popular in the Chinese community), a practice which is entirely unacceptable and without legal foundation”.

Notwithstanding advances in technology, affidavits must still be witnessed in a manner that complies with the relevant Rules. The use of social messaging to take an affidavit and for convenience or to save costs is not an excuse for a failure to put the evidence in admissible form.24

Working with interpreters in civil proceedings There is a high degree of variability across courts and tribunals, when it comes to the use of interpreters. Courts in WA provide loose guidance on working with interpreters.

In the Supreme Court of Western Australia’s Consolidated Practice Directions25, item 9.13 sets out the current Interpreting and Language Services Guidelines26.

Relevantly, that Practice Direction gives guidance to counsel appearing in cases where interpreters are involved, provides a protocol for the use of interpreters, and even includes the interpreter booking form. The booking form and the Practice Direction make provision for, and encourage practitioners to identify, cultural sensitivities that may mean that an interpreter of a particular cultural background should not be retained.

While the Court does not provide translators, it will arrange interpreters in criminal proceedings and can book them for parties in civil proceedings, though requests must be made not less than 14

days prior to hearing.

In criminal proceedings, it is the court or the prosecutor who is responsible for arranging an interpreter because if the accused cannot understand the trial or sentencing, the proceedings are invalid as they are unfair. In civil proceedings, the lawyer for the party or who calls the witness without functional English who has the duty to arrange the interpreter and well in advance of the hearing.

In NSW, procedural rules have been clarified. In NSW, Part 31 Div 3 of the Uniform Civil Procedure Rules, and Practice Note SC Gen 21, deal with interpreters in civil proceedings. There is a requirement that where affidavits prepared by bilingual solicitors, the final English version must be interpreted from English to the native language of the witness by a certified NAATI interpreter and the interpreter must swear that the witness has indicated understanding and agreement with the contents of their affidavit.

The UCPR and Practice Note also require 2.5 hours for interpreted evidence, for every hour of evidence if the evidence were given in English.27 This provides some guidance for lawyers to estimate the cost of managing cases that require interpreted evidence, and to manage client and witness expectations about the duration of examination or crossexamination. These represent an example of where other jurisdictions are likely to end up through incremental harmonisation of rules.

There will be costs implications for practitioners whose conduct contributes to delays or adjournments of proceedings involving non-English speaking clients.

Endnotes 1 2

R v Tran [1992] 2 SCR 951 at 958 per Lamer CJ. Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 414-418 per Kirby P.

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2016 ABS Census.

Ibid, see also Jen McMillan ‘Traps for bilingual solicitors: working with culturally and linguistically diverse clients’ 54 Law Society Journal April 2019 p90.

See also The Hon Wayne Martin AC, ‘Access to Justice in Multicultural Australia’ Brief, Vol 44, No 8, September 2017, pp22 -28.

See English language program for migrants set for overhaul, SBS Online https://www.sbs.com.au/news/ english-language-program-for-migrants-set-foroverhaul-amid-concerns-about-proficiency (accessed 28 August 2020).

The National Accreditation Authority for Translators and Interpreters is the certification organisation with responsibility for language interpretation and translation professionals in Australia.

See 2016 Census.

Amended in 1905 this was amended to allow the dictation test in any prescribed language, but no languages were ever prescribed so the test continued to be administered in European languages. It was replaced by the Migration Act 1958 (Cth).

This applies equally to a witness as to a client.

See e.g. Guidelines on interpreting and translation, Legal Aid New South Wales, 22 September 2014 pp 6.

See http://jccd.org.au/wp-content/uploads/2018/02/ JCCD-Interpreter-Standards.pdf (accessed 29 July 2020).

Ibid. See proposed Standard 10, and the four-part test in Annexure 4 to the Recommended Standards.

The rates that you might charge the client for this service might not be solicitor rates, but rather might be interpreter rates. If the services are being charged on a fixed-fee basis to the client, this could include a component for in-house accredited translation. The translation should be certified in the usual way by the translator, making clear that they have prepared the translation in their capacity as a translator and not in their capacity as a solicitor. Different standards apply.

September 2014, see www.legalaid.nsw.gov.au (accessed 20 August 2020).

Above n 4.

The Hon Justice Francois Kunc was a contributor to the JCCD Recommended National Standards, and is multilingual, being fluent in six languages.

Condello v Kim [2018] NSWSC 394 at [15].

Ibid.

See eg Zhou & Zhong [2018] FCCA 3393.

Fernando De La Espriella-Velasco v R (2006) 31 WAR 291 at [3].

De La Espriella-Velasco v R at [7], [8].

Cao v Zhu [2020] NSWSC 321 (30 March 2020).

Recent variations to the rules for witnessing affidavits, for COVID-19 purposes where it is not possible to personally sign a document because of social distancing, are a notable exception addressed by courts through practice notes and directions that apply in these specific and extraordinary circumstances.

Consolidated Practice Directions, Supreme Court of Western Australia, updated 20 January 2020 (accessed 30 August 2020).

Ibid. This appears at pp405-422 of the current Consolidated Practice Directions.

Ibid at [16] per Kunc J who notes ‘the Court will expect the profession to be familiar with these provisions and apply them”.

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Claims Harvesting

By Fiona Stanton Barrister, Francis Burt Chambers

The Ethics Committee of the Law Society has become aware of a practice known as “claims harvesting” and “claim farming”.

This practice involves;

a potential client to the legal practice, is expressly prohibited by Rule 18(5) of the Legal Profession Conduct Rules 2010 (WA).

1. organisations identifying potential claimants for compensation for personal injuries suffered as a result of an accident - usually a motor vehicle accident or work accident; and

Section 19 of the Civil Liability Act 2002 (WA) (CLA) makes it an offence to solicit clients at the scene of an accident or a hospital, and prohibits those who attend on an injured person disclosing the name and contact details of that person to a legal practitioner.

2. those organisations seeking a fee from the legal practice for the referral of those potential claimants to that legal practice.

The identification of potential clients is achieved by ‘cold calling’ and by gathering information from other parties who have become aware of the identity of persons involved in a motor vehicle or work accident such as, for example, towing companies and smash repairers.

The payment of a referral fee to a third party that has solicited information identifying a potential client, or referred

Section 20 of the CLA makes it an offence for a person to provide or offer to provide, or to receive or to seek to receive a fee for soliciting or inducing a potential claimant to make a claim. The section defines ‘fee’ to include a bonus, commission, cash payment, deduction, discount, rebate, remission or other valuable consideration.

The Ethics Committee has revised the Society’s Ethical and Practice Guidelines to make clear that in Western Australia, the payment of referral fees to claims

Law Society of Western Australia Professional Standards Scheme The Law Society of Western Australia Professional Standards Scheme (Scheme) provides a significant benefit for Law Society members. The (original) Scheme commenced on 1 July 2014 and does not apply to claims prior to that date or prior to your commencement with the Scheme. That Scheme ceased on 30 June 2019 and was replaced by the second Professional Standards Scheme which operates from 1 July 2019 to 30 June 2024.

Subject to any member’s application for a higher maximum liability cut-off, the Scheme caps occupational liability of participating members to an amount of $1.5 million, $5 million or $10 million depending on the insurance policies and total annual fee income of the law practice.

Participating members are required to disclose their limited liability status to clients. Failure to do so is an offence under the Act. This is an opt-out Scheme which, subject to the provisions of the Professional Standards Act 1997 (WA) applies to Law Society members. Subject to the Act, members may “opt out” by applying for exemption from the Scheme. The Scheme will cease to apply to such a member from the date the exemption is granted.

For further information in relation to the Scheme, please visit the Law Society’s website or contact the Scheme Coordinator on (08) 9324 8600. or by email to pss@lawsocietywa.asn.au

34 | BRIEF OCTOBER 2020

harvesters is unlawful, and constitutes to a breach of the Legal Profession Act 2008 (WA).

In States of Australia that have adopted the Australian Solicitors Conduct Rules (ASCR), receipt of a referral fee is not unlawful if the solicitor has “first disclosed the payment or financial benefit to the client”; ASCR Rule 12.4.4.

Legal Practitioners in Western Australia should ensure that they do not breach Rule 18(5) or assist or become involved in a breach of sections 19 or 20 of the CLA by adopting a practice that may be lawful in States of Australia that have adopted the ASCR. Western Australia is due to adopt the ASCR in 2021. Prior to that adoption, the Ethics Committee will further revise its Ethical and Practice Guidelines in relation to the payment of referral fees.

Early Career Lawyers Overwhelmingly Want Our New ‘Business as Usual’ to Include Flexible Work Options

By Young Lawyers Committee The Law Society of Western Australia

COVID-19 has caused an unprecedented disruption to our profession, and to many of our lives. Before March this year, working from home was not an option available to most early career lawyers, but from that time it became mandatory for many of us.

In July, the Young Lawyers Committee sought the views of early career lawyers, law graduates and paralegals on their experiences during COVID-19. Almost 90% of the 123 people1 who completed the survey said they wanted to keep the option to work from home after COVID-19.

Their experience has demonstrated that, overwhelmingly, our work can be done from home without sacrificing quality or productivity. That depends, though, on employers offering the support needed for early career lawyers to be able to work from home effectively and flexibly.

We note that this report does not capture the experience of early career lawyers after July 2020, including the effect of any redundancies made since that time. We anticipate conducting a further survey early next year to understand the experiences of early career lawyers in the second half of 2020.

Our work can be done from home, with little impact on productivity or quality The majority of respondents agreed that their work could be done from home, and no-one reported that their work could not be done from home at all. Across workplace types (with the exception of community legal centres)2 working from home was not generally reported to negatively impact productivity or the quality of respondents’ work.

Barriers to working from home The majority of respondents felt supported by their employer to work from home. However, that was not everyone’s experience.

5% of respondents were unable to work from home. Two respondents reported that their workplace IT systems did not enable effective working from home at all, while a further 10% of respondents rated their workplace IT systems a 2 or 3 out of 6.3 Reliance on paper was the top-rated barrier to being able to do work from home. A suitable home environment was the second most significant barrier, followed by being required to attend court.

“Reliance on paper was the toprated barrier to being able to do work from home.”

27% of respondents reported that their

employers’ policies were one of the three main barriers to being able to do work from home.

For most, confidentiality and data security were not considered major barriers to working from home, although 15% of respondents did consider this a significant barrier. That may well be related to their workplaces’ IT capabilities; it appeared that employer resources and IT capabilities had an impact on whether work could be done from home, with community legal centres the most significantly impacted.

Interestingly, 35% of respondents found that the requirement to attend court was one of the top three barriers for them, despite a number of jurisdictions moving to remote court hearings during the height of the pandemic in WA. One respondent also mentioned that requiring wet signatures for property transactions 35

posed a barrier. That view was reflected in the responses, with those practising property law most likely to report reliance on paper as a barrier.

Perhaps most strikingly, most of the barriers to flexible work did not appear from the collected data to be matters inherent to the practice of law. For example, less than 23% of respondents reported client meetings as one of the three main barriers to working from home.

Given the overwhelming support by early career lawyers for having the option to work from home, workplace policies which do not support flexible working should be reviewed. The profession’s traditional and ongoing reliance on paper should also be addressed to avoid its impact on remote work, and workplace IT capabilities and data security concerns could be addressed by better resourcing, including by assisting early career lawyers to properly equip their home offices.4 Separately, some respondents reported that their need for face to face collaboration affected their ability to work from home, including because of difficulties obtaining instructions and receiving supervision. A number of respondents reported a lack of willingness by their seniors to support working from home, or that they were set on face to face collaboration. One respondent reported that a practice group leader did not allow working from home despite a supportive firm policy. Further issues raised by respondents included a lack of communication from team leaders, and inability to readily contact colleagues while working from home.

Employers should be mindful of the particular needs of early career lawyers who work flexibly, including mentoring and development needs. It is clear from the data collected by the survey that some workplaces managed to effectively service those needs, with some respondents noting their supervisors were willing to jump on Zoom or have a phone call at any time. Employers should support legal professionals (including early career lawyers) to work from home, particularly when it may be necessary for their or their family’s wellbeing.

Independence and working hours when working from home Results were mixed as to whether working from home increased employees’ independence, with respondents having vastly different experiences. However, working from home did result in over 65% of respondents being able to work more flexible hours.

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While that increased flexibility can be a welcome change, some respondents reported experiencing a lack of separation between work and home, and an “erosion” of the concept of business hours. While 45% of respondents experienced no difference in their weekly working hours (and just under 20% experienced a decrease in hours), over 26% of respondents found that their

weekly working hours increased as a result of working from home. This trend seemed particularly prevalent in the public sector.

One respondent said they were more likely to be required to complete work outside of usual office hours while working from home. While the flexibility of working from home has benefits, it can also negatively affect early career

lawyers if no clear limits are placed on the demands made on their time. A lack of separation between work and home, and an expectation at some workplaces that early career lawyers must always be available, are issues that must be addressed.

Financial impacts on early career lawyers Despite the many positives of having the flexibility to work from home, the disruption caused by the pandemic did impact early career lawyers. Over 22% of respondents experienced a reduction in pay due to COVID-19, either as a result of salary cuts or reduced hours.

Financial impacts were not limited to reductions in pay. Over 48% of respondents were required to purchase office equipment in order to be able to work from home, but only around 8% of those who were required to do so were reimbursed by their employer. Many respondents reported spending hundreds of dollars on this, and some spent in excess of $1,000.

“Over 48% of respondents were required to purchase office equipment in order to be able to work from home, but only around 8% of those who were required to do so were reimbursed by their employer”

Lessons learned The COVID-19 experience in WA has demonstrated that early career lawyers are able to work from home without sacrificing quality or productivity. Having experienced that flexibility, early career lawyers appear to overwhelmingly support having the option to continue working from home.

In light of this, we should not be going back to business as usual. The option to work flexibly, including from home, should be made available to lawyers, including early career lawyers. That does not mean the practice of law should be entirely remote — graduates and restricted practitioners plainly learn valuable skills from face to face interactions with senior colleagues. Employers, though, should support early career lawyers to have a real option to work from home.

Flexible working from home arrangements can improve work-life balance and the wellbeing of early career lawyers.

However, early career lawyers working from home should not be expected to be available all the time or to increasingly work outside business hours, and workplaces must be mindful to ensure

early career lawyers receive appropriate mentoring and supervision.

Of course, the pandemic is not over. We may well return to lockdown in the future.

Workplaces should take this opportunity to eliminate barriers to working from home, to shift attitudes to support working from home, to set up digital files, and to improve IT capabilities for remote access.

The pandemic’s financial impact on early career lawyers is also far from over. While no respondents reported job losses, we are aware that some redundancies have occurred since the survey closed.

The Young Lawyers Committee will continue to monitor the impact on early career lawyers’ job prospects and career progression.

environments for all employees, employers can ensure some of those changes are for the better.

Endnotes 1

Over 83% of respondents were practising lawyers.

Law graduates comprised just over 11%, and persons in paralegal, law clerk or other roles made up the remaining 5% of respondents. Only 8 respondents had been practising for more than 5 years, with the vast majority being early career lawyers. Around 43% were restricted practitioners. The great majority of respondents were under the age of 30. 12 respondents were between the ages of 36 – 50, and 3 were over the age of 50.

2

This may be related to the availability of good IT systems, given that respondents working at CLCs provided lower scores in response to “to what extent have your workplace IT systems enabled you to work effectively from home?”. However, it is important to note that only 2 employees of CLCs responded to the survey, so these results may not be representative.

3

When asked to rate to what extent their workplace IT systems enabled them to work effectively from home.

It is clear COVID-19 will change the experience of an entire generation of lawyers and many of those changes have been and may continue to be uncomfortable. By supporting a move toward more flexible working

37

Chris Field

Ombudsman Elected President of World Body Western Australian Ombudsman and lawyer, Chris Field, has been elected President of the International Ombudsman Institute (the IOI). It is the first time in the 42-year history of the IOI that an Australian has been elected President.

The IOI, established in 1978, is the global organisation for the cooperation of 205 independent ombudsman institutions from more than 100 countries worldwide.

The IOI is organised in six regional chapters - Africa, Asia, Australasian and Pacific, Europe, the Caribbean and Latin America and North America.

His appointment also marks the first time that a President has been elected by IOI members. Historically, Presidents were elected by the IOI World Board. A new voting system, applicable for the first time in the 2020 election, provided the opportunity for every IOI member globally to vote for the position of President.

“I am exceptionally humbled by the support of my colleagues around the world and the opportunity they have given me to advance the ombudsman institution and those we serve” said Chris.

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“It is a particular privilege to be the only Australian to be elected President. In an unashamedly parochial way, I am also very glad the first Australian to be elected President is a proud Western Australian!”

Chris will commence his four year term as President at the rescheduled 12th World Conference and General Assembly of the IOI in Dublin, Ireland.

Chris will bring significant experience to the role of President. He is currently Australia’s longest serving Ombudsman and has previously served on the IOI World Board as Second Vice President between 2016 and 2020, Treasurer between 2014 and 2016 and President of the Australasian and Pacific Ombudsman Region between 2012 and 2014.

In addition to his role as Ombudsman, he concurrently holds the roles of Energy and Water Ombudsman, Chair, State Records

Commission and Chair, Accountability Agencies Collaborative Forum (a forum comprised of: the Ombudsman; Chief Psychiatrist; Information Commissioner; Commissioner for Equal Opportunity; Inspector of Custodial Services; Commissioner for Children and Young People; Director, Health and Disability Services Complaints Office; Director, State Records Office; Director of Equal Opportunity in Public Employment; Chief Mental Health Advocate; and the Commissioner for Victims of Crime).

In what he considers essential to his role as Ombudsman, Chris has a particularly strong theoretical and practising interest in administrative law. He has for the last fourteen years been an Adjunct Professor in the School of Law at the University of Western Australia where he teaches the advanced administrative law unit Government Accountability – Law and Practice, a course he founded with Professor Simon Young (co-author of the university textbook Lane and Young, Administrative Law in Australia). Chris is also the author of a range of publications on the ombudsman and administrative law.

His role as Ombudsman, and now IOI

President, builds on a foundation of long-term legal practice and work as an economic regulator. He commenced his career as a lawyer at one of Australia’s leading commercial law firms, Arthur Robinson and Hedderwicks (now Allens Linklaters), having been articled to (the late) Professor Bob Baxt AO (among other things, a former Chair of the Trade Practices Commission, the forerunner to the Australian Competition and Consumer Commission). A strong interest in trade practices and consumer law led him to the position of Executive Director of the Consumer Law Centre Victoria (a non-government consumer advocacy organisation with a large legal practice for vulnerable consumers) and Chair of the Australian Consumers’ Association (publisher of Choice magazine). After seven years, he left his position as Executive Director to commence as an inaugural Member of the Economic Regulation Authority, Western Australia’s independent economic regulator of electricity, gas, water and rail.

Of his appointment as President, Chris said he hoped to “continue the productivity, professionalism and collegiality that have defined the Board’s work and seeking to continue the outstanding leadership provided by his close colleague, current President, Peter Tyndall, Ombudsman and Information Commissioner for Ireland.”

To do so, he will work alongside his IOI World Board colleagues, an Executive Committee of the Board comprised of: himself; First Vice President, Mr Viddhavat Rajatanun, Chief Ombudsman of Thailand; Second Vice President, Ms Diane Welborn, Ombudsman for Dayton and Montgomery County, Ohio; Treasurer, Ms Caroline Sokoni, Public Protector of Zambia; and Regional Presidents for Europe and the Caribbean and Latin America.

Chris will also work closely with Mr. Werner Amon, Austrian Ombudsman and Secretary General of the IOI. The Austrian government generously provides funding to the office of the Austrian Ombudsman to provide a staff secretariat to support the work of the IOI, led by the Secretary General who is also one of three Austrian Ombudsmen.

When asked to indicate his goals for his term as President, Chris responded that he aimed to: 1. Contribute leadership on behalf of the global ombudsman community with respect to issues that nations face regarding integrity and good governance;

2. Focus the work of the IOI on promoting access to justice, contributing to the rule of law, advancing human rights, protecting minorities, first peoples and the vulnerable, standing strongly with ombudsmen under threat and supporting developing democracies and emerging ombudsman institutions; 3. Further develop the IOI’s relationship with the United Nations, including promoting the Venice Principles.

The Venice Principles, adopted by the Venice Commission (the Council of Europe’s Commission for Democracy through Law), represent the first, independent, international set of standards for the ombudsman institution. They are the equivalent of the United Nation’s Paris Principles which set out the standards against which national human rights institutions are judged; and 4. Ensure inclusion of every IOI region and member so that all voices are fairly represented and heard.

Chris has said that he hopes to bring his understanding of the modern institution of the ombudsman to his term as President.

He goes on to say that ombudsmen have a range of important functions in modern societies. “The ombudsman institution assists the maintenance of the rule of law through ensuring that the laws of Parliament are not applied arbitrarily” he said. “At the same time the ombudsman mediates between the power of the State and citizens”.

“Perhaps most importantly, the ombudsman is a source of access to justice”. Using Western Australia as an example, Chris is of the view that Western Australia’s judiciary is hallmarked by complete independence and impartiality and extraordinary levels of expertise.

“The ombudsman does, however, have a sensible role, to provide very timely and affordable redress for matters that are not sensibly suited to juridicial consideration.”

Reflecting on his experiences as Western Australian Ombudsman, Chris notes the criticality of timely and cost-effective access to justice was the impetus for a major case and list management improvement project commenced by his office in 2007. The project has delivered very significant results. For example, last year the office finalised 95% of complaints within three months. Furthermore, since 2007, the average age of complaints has decreased from 173 days to 48 days.

These improvements in case management have also produced substantial economic efficiencies with the cost of investigating

and resolving complaints reduced by 36% over the last thirteen years.

While timely resolution of complaints is a perfectly proper expectation of complainants, it is also critical that recommendations following investigations are effective. He points to the fact that every recommendation made by the Western Australian Ombudsman over the past thirteen years has been accepted.

Furthermore, he provides reports to Parliament on the steps taken to give effect to recommendations, ensuring that recommendations that are accepted are also actively monitored to ensure their successful implementation.

He also notes that the modern institution of the ombudsman is increasingly likely to be asked to consider new roles that are complementary, and take advantage of, the existing investigatory and administrative law skills of the office of the ombudsman – a phenomenon that is observable in almost every jurisdiction around the world in which the ombudsman operates. During his term as Ombudsman, for example, successive governments have asked the office to undertake a range of new functions.

These new functions have seen the office expand from 26 to 75 staff.

Chris observes that own-motion (sometimes referred to as own-initiative) investigations are also an important feature of modern ombudsman institutions. Beyond its well-known access to justice role, the office of the Ombudsman is, in effect, a standing Royal Commission, undertaking major investigations of the Ombudsman’s own-motion, including Investigation into ways to prevent or reduce deaths of children by drowning, Investigation into issues associated with violence restraining orders and their relationship with family and domestic violence fatalities and Investigation into ways that State Government departments and authorities can prevent or reduce suicide of young people.

Chris closes by considering his new role in the context of his commitment to Western Australia. “As President, I will play one small role, among so many who contribute so much, but any opportunity to serve Western Australia will be an extraordinary honour”.

“I am certainly hopeful that, in my role as President, I can in any way that is appropriate to do so, advance Western Australia’s interests, including with our great friends, trading and cultural partners in the Asia Pacific Region where my office already has longstanding highly positive relationships”.

39

BOOK REVIEW

Principles of Dispute Resolution (3rd ed.)

By David Spencer Review by Geoff Charlton, RA & GW Charlton Lawyers & Mediators

The back cover proclaims that this is “(a) great authoritative text on the law and practice of dispute resolution in Australia … .” And that, in a nutshell, sums up what this book represents.

The back cover further says that this third edition has been updated by the latest amended legislation and case law. In the 9 years since the 1st edition was published, the list of cases has grown by two whole pages. Moreover, the text has grown by over 40 pages.

With this 3rd edition, there is new material on the theory of conflict; the value of conflict and the state’s role in appropriating conflict for its own benefit; and on disruptive 40 | BRIEF OCTOBER 2020

technologies. Overall, each chapter has been reviewed and updated where appropriate to include the latest developments in the theory, philosophy and practice of dispute resolution in Australia.

It is a complete treatise on dispute resolution.

Furthermore, the book is written in simple English and throughout, the written text is supported by case notes explaining how the law has moulded dispute resolution.

Overall, I found David Spencer’s authoritative text to be readable, a thorough coverage of the field of dispute resolution, as well as providing an insightful, and at times challenging, perspective of the practice of dispute resolution in Australia. He is to be congratulated.

It is highly recommended and a valuable guidebook for both teachers, students and practitioners of dispute resolution.

october – november 2020

CONTINUING PROFESSIONAL DEVELOPMENT webinars OCTOBER 2020 Thursday, 8 October 12.00pm – 2.00pm Family and Domestic Violence and Social Security Law

Wednesday, 14 October 9.00am – 12.30pm CPD 123 For You – Government Lawyers

Thursday, 22 October 4.00pm – 5.00pm Legal Profession Uniform Law: Session Two

Monday, 12 October 1.00pm – 2.00pm Taking Control: 12 Practical time management strategies for busy lawyers

Thursday, 15 October 8.30am – 10.30am Mindfulness in Law: Stress Management, Risk Management & Better Communication

Monday, 26 October 1.00pm – 2.00pm Legal Profession Uniform Law: Session Two Rerun

Tuesday, 13 October 4.30pm – 5.30pm Creating Positive Mental Health: Different Perspectives, Doing it Better, Walking the Talk

Wednesday, 21 October 1.00am – 2.00pm Trusts: Anticipating and rectifying common problems Thursday, 22 October 8.55am – 11.45am Financial Abuse Forum – PART 1

Thursday, 29 October 8.55am – 11.45am Financial Abuse Forum – PART 2 Thursday, 29 October 4.00pm – 5.00pm Legal Profession Uniform Law: Session Three

NOVEMBER 2020 Monday, 2 November 1.00pm – 2.00pm Legal Profession Uniform Law: Session Three Rerun Thursday, 5 November 4.00pm – 5.00pm Legal Profession Uniform Law: Session Four Friday, 6 November 1.00pm – 2.00pm Ethics on Friday: Risk & Ethics Monday, 9 November 1.00pm – 2.00pm Legal Profession Uniform Law: Session Four Rerun

Wednesday, 11 November 1.00pm – 2.00pm ‘Legally’ mine Thursday, 12 November 4.00pm – 5.30pm Legal Profession Uniform Law: Session Five Monday, 16 November 1.00pm – 2.00pm Legal Profession Uniform Law: Session Five Rerun Wednesday, 18 November 9.00pm – 12.30pm CPD 123 For You – Core Skills

Thursday, 19 November 4.00pm – 5.00pm Legal Profession Uniform Law: Session Six Monday, 23 November 1.00pm – 2.00pm Legal Profession Uniform Law: Session Six Rerun

Save the Date

Practical Advocacy Weekend Saturday, 14 November 8.30am – 5.00pm and Sunday, 15 November 8.30am – 1.00pm

Webinars open for registration online at lawsocietywa.asn.au/cpd-seminars/

WA Case Notes

By Thomas Camp Solicitor

MSP Engineering Pty Ltd v Tianqi Lithium Kwinana Pty Ltd [2020] WASC 251 Decision Summary This is a decision of the Master on applications by the defendant for stays of proceedings so that the matters arising in the two proceedings could be referred to arbitration; pursuant to either s 8(1) of the Commercial Arbitration Act 2012 (WA) or through the court’s inherent jurisdiction. The proceedings involved payments owing under two identical construction contracts. The contracts provided that disputes were to be referred to arbitration, but also included a carve-out clause in relation to payments due under the contract. The Master dismissed the applications, finding that the contracts allowed for curial determination of payments due under the contracts, including payments on certificates, even though the ultimate amount owing was in dispute. In dismissing the stay applications, the Master had to choose between two lines of first instance authority, and ultimately declined to follow two first instance decisions of the Western Australian Supreme Court.

Key Facts The proceedings arose from two separate contracts between the parties for works on different stages of a lithium hydroxide processing plant. The contracts were identical modified forms of the AS 4902-2000 (General Conditions of Contract for Design and Construct as Amended). Clause 37.1 of the contracts set out the process of making payment claims and clause 37.2 provided for the independent superintendent to issue certificates evidencing the payment to be made by the principal to the contractor.

In this matter there were two certified amounts outstanding of over $32 million. The progress certificates were reimbursement for payments made by the plaintiff to subcontractors plus a margin. The proceedings were issued on 4 March 2020 by the plaintiff claiming those amounts.

On 6 March the defendant issued show cause notices and notices of dispute which referred to the certified claims and contained a number of claims made by the defendant against the plaintiff which were referred to arbitration. The Plaintiff’s claim was for the certified amounts.

The Decision The Master found that under clause 37, once a certificate was issued the principal is obliged to make payment of the amount

42 | BRIEF OCTOBER 2020

certified to the contractor, although payment does not constitute an admission of liability that the amount claimed is due and owing.

The Master noted that “the clause is drafted in terms which reflect the importance to a contractor of a flow of funds”. These clauses are common in construction contracts.

By clause 42, the contracts provided that disputes between the parties arising in “connection with the subject matter of the contract” had to be handled in a certain manner, and ultimately determined by arbitration. However, clause 42.4 provided that “Nothing herein shall prejudice the right of a party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief.”

Essentially, the Defendant’s position was that this carve-out related only to payments which were due, but were not in dispute.

The Plaintiff argued that it applied to any payments which were due, whether or not they were disputed. Accordingly, the matter in dispute was the scope of the carve-out, rather than the scope of clause 42 as a whole.

The defendant referred to two Western Australian decisions, of Martin CJ in Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd [2017] WASC 304 and Tottle J in GR Engineering Services Ltd v Eastern Goldfields Ltd [2018] WASC 19, where materially identical clauses were considered. In Eriez, Martin CJ held that, in circumstances where the dispute resolution clause was very wide, the carve-out clause could not be referring to amounts which were disputed.

In GR Engineering Services, Tottle J outlined the general principles as follows: “When addressing this constructional issue the authorities provide that the Court should generally adopt a ‘broad, liberal and flexible approach … and should favour a construction which provides a single forum for the adjudication of all disputes arising from, or in connection with, that agreement’. This approach does not mean, though, that the Court may usurp or ignore the language used in the particular provisions of the arbitration agreement.”

His Honour found that the equivalent of clause 42 meant that all disputes having some degree of connection with the Contract should be resolved by the contractual process, and that it should not be understood as providing for some disputes to be resolved by arbitral proceedings and some by curial proceedings. Accordingly, Tottle J favoured a

construction of the carve-out clause that was confined to payments about which there is no dispute.

In the present case, the plaintiff submitted that these decisions were wrongly decided and that the Court should follow the decision of Vickery J in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [No 3] [2013] VSC 435. Vickery J found that an equivalent of clause 42.4 meant that nothing in the contract limited the right of a party to institute proceedings to enforce a payment, even if it was disputed. Martin CJ did not deal with Lysaght in Eriez, but Tottle J decided against adopting the same interpretation of the clause in GR Engineering.

The Master took as the starting point that he should only follow Lysaght if he was clearly of the view that Eriez and GR Engineering were wrongly decided. However, he was satisfied that Lysaght should be followed for the following reasons: 1.

2.

3.

4.

Once an amount is certified by the superintendent under the contracts, then it is due and accordingly must be paid; Allowing the enforcement of payments due under the contract, but otherwise disputed, recognises the importance of keeping money flowing in a construction contract; It also allows an arbitral process to play out, so that the payee’s ultimate entitlement to payment can be determined at a later stage; and There was minimal scope for a duplication of proceedings in the circumstances.

The decision has now been appealed, providing the Court of Appeal with an opportunity to provide more clarity in relation to the correct approach to construing these relatively common form of dispute resolution and carve-out clauses.

In the meantime, practitioners should be mindful that this case is unlikely to settle the conflict in the case law as to whether the carve-out in this form of arbitration clause allows for curial determination in respect of moneys payable under certificates where there is a dispute as to whether those payments are ultimately due. https://ecourts.justice.wa.gov.au/eCourtsPortal/ Decisions/ViewDecision?returnUrl=%2feCourtsPortal %2fDecisions%2fFilter%2fSC%2fRecentDecisions&i d=75fed3c0-88d4-4595-a082-f0c1b8c4d7e4

WA Case Notes

By Rebecca Collins Barrister, Quayside Chambers

Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92 In Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92, the Court of Appeal of the Supreme Court of Western Australia considered the proper construction and application of a joint venture agreement (JVA) between the appellant (Pilbara) and the first respondent (Ammon). The central issue in the appeal concerned the meaning of ‘feasibility study’ in the JVA. Relevantly, the JVA provided that if Pilbara completed a feasibility study by a specified time, it would earn an 80% interest in the joint venture property.

Following completion of the feasibility study, Ammon could elect whether to contribute to the financing of the joint venture and remain in the joint venture with respect to his 20% interest, or, withdraw from the joint venture. If, however, Pilbara did not complete a feasibility study by the specified time, then it would be deemed to have withdrawn from the joint venture.

Significantly, ‘feasibility study’ was not defined in the JVA and there was no express provision of any criteria by which it could be determined whether Pilbara had completed a ‘feasibility study’.

Pilbara completed a study by the specified time but Ammon contended it did not constitute a ‘feasibility study’ of the kind required under the JVA. Ammon then sought declarations in the Warden’s Court to the effect that Pilbara was deemed to have withdrawn from the joint venture, and that a transfer lodged by Pilbara transferring an 80% interest in the joint venture to itself was invalid and unenforceable. The Warden granted those declarations and, in doing so, accepted that certain terms were to be implied into the JVA concerning the feasibility study.

Pilbara then appealed to the Supreme Court which dismissed the appeal.

Pilbara then appealed to the Court of Appeal.

On appeal, Pilbara made submissions on the express terms of the JVA including

that the term ‘feasibility study’ was not defined, there was no reference to it being ‘bankable’ or ‘definitive’ and that Pilbara did not expressly warrant that the feasibility study would have any particular quality. Pilbara also submitted there was no necessity to imply any terms to make the JVA work or to give content to the phrase ‘feasibility study’ and relied on the use of the indefinite article ‘a’ feasibility study in support of that submission.

Ammon submitted, among other things, that it was unchallenged that Ammon could not afford to produce a feasibility study and that such a study lay at the heart of the bargain under which Pilbara was able to earn an 80% interest in the joint venture property. It was for Ammon to raise project finance and the nature of such finance would necessarily have been a matter for Ammon informed by the completed feasibility study.

The Court of Appeal held that the meaning of ‘feasibility study’ was to be understood from a consideration of the JVA as a whole and in the context of the overall scheme and structure of the JVA. It determined that, objectively, the parties contemplated that upon the acquisition by Pilbara of an 80% interest and the corresponding dilution of Ammon’s interest to 20%, there would be a feasibility study for the joint venture which in its nature, scope and analysis would meet the minimum criteria that financiers to the mining industry would ordinarily require before considering a proposal to finance the development and mining. The Court of Appeal reached this conclusion on the basis of the proper construction of the express terms of the JVA as opposed to the implication of terms.

The Court of Appeal observed that there was an incongruity between Pilbara’s suggested flexibility in the term ‘feasibility study’ for the benefit of Pilbara and the agreed outcome that the feasibility study would result in an immediate acquisition by Pilbara of an 80% interest and a corresponding dilution of Ammon’s interest to 20%.

It reasoned that such an outcome was more consistent with the parties having in contemplation some objective standard which, prima facie, reasonable business people would intend in a farmin arrangement of the kind contemplated by the terms of the JVA. The Court of Appeal considered that the construction contended for by Pilbara would give the JVA a nebulous operation in providing a tenuous and effectively unworkable standard for the earning of an 80% joint venture interest by Pilbara.

The Court of Appeal also rejected Pilbara’s submission that if a term could not be implied in fact with respect to a particular subject matter, it would not be possible to find that the subject matter had been dealt with on the express terms of the agreement.

However, the Court of Appeal held that Pilbara was correct to the extent that it contended that three terms found by primary judge were not to be implied in the JVA. This was because on the proper construction of the JVA the parties did not fail to agree upon the standard applicable to a feasibility study upon which the significant changes to the parties’ relationship and interests turned.

Finally, the Court commented on the fact that the parties had not incorporated a defined term of feasibility study and that had they done so the dispute (which has lasted for more than 10 years) would not have arisen. This aspect of the decision provides a useful reminder for those drafting agreements to clearly define key terms to avoid protracted litigation.

As the Court of Appeal decision was based on arguments not litigated in the lower courts (i.e. its conclusion was based on the proper construction of the express terms of the JVA as opposed to the implication of terms), the matter has been remitted to the Warden’s Court to determine whether the study completed

by Pilbara constituted a feasibility study of the kind required under the JVA.

43

Obituary

Holding Court to End Wearing a lime-green shirt so striking it could have frightened any horses met along the way, judge Stephen Thackray strode boldly out from the Bell Tower on Perth's Swan River foreshore.

He was a man of many missions, but this one was dear to heart and mind.

He was among more than 200 people out of bed early to participate in the inaugural Law Access Walk in May 2016.

The 4.4km event ended with breakfast at Annalakshmi restaurant at Elizabeth Quay.

Leading up to the day, Thackray â&#x20AC;&#x201C; chief judge of the Family Court of WA â&#x20AC;&#x201C; had been posting online, to the amusement of colleagues, about his strenuous training regime.

This was all about fun raising and fundraising. Alongside the smiles, there was a serious purpose: boosting the cause of making family law accessible to all. Law Access is a not-for-profit organisation co-ordinating pro bono (free or reduced cost) legal assistance.

Most of the judge's career was in family law. When standing down as chief judge, he was accorded a ceremonial farewell.

As someone keen on furthering Aboriginal access to family law, his own speech included thanks to a notable guest from Newman, Devon Cuimara.

"It was my chance meeting with Devon," the guest of honour said, "that provided the spark for our project with the Martu and Nyiyaparli people of the Western Desert. This has sustained and exhilarated me in the final stage of my career and given me the privilege of working with an extraordinarily talented and committed group of people from the Aboriginal Legal Service, Aboriginal Family Law Services, Legal Aid WA and Pilbara Community Legal centre."

This inclusive touch resonated with the judge's boyhood in Mogumber, near New Norcia, where his family had a farm.

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Primary school classmates included those who would one day be described as part of the Stolen Generation.

Stephen Ernest Thackray was born in Wongan Hills on January 25, 1955, the fifth of six children of Mary (nee Vidler) and Richard Thackray. After leaving Mogumber primary, Stephen's first two years of high school were as a boarder at St Patrick's, Geraldton. After the family sold the farmCoolibah, 7km east of Mogumber - and moved to Perth, he attended Christian Brothers College, Leederville (now Aranmore Catholic College).

He completed a law degree at the University of Western Australia in 1977, gaining the highest class of honours awarded that year. Taking articles at Lavan and Walsh, he was introduced to family law by the then principal family law partner, Diana Bryant, later to be chief justice of the Family Court of Australia.

He served as acting chief justice of the Family Court of Australia during her absence overseas and upon her retirement.

In 1980, Thackray joined Paterson and Dowding, a specialist family law firm, and became a partner the following year.

In 1997, he was appointed principal registrar of the Family Court of WA, where he served until retirement in January last year. He became chief judge in 2007. Presidency of the Family Law Practitioners' Association was among his official roles. Many admired his vigorous advocacy against removal of Federal funding for indigenous family liaison officers who worked in the Family Court early in his term as chief judge.

Relationships Australia WA is among the non-profit organisations to have benefited from Thackray's "energy and care", as mentioned in its tribute notice. The chief executive, Terri Reilly, adds: "Stephen envisioned a highly skilled system supporting the work and clients of the Family Court.

"His ability to make this vision a reality resulted in a system operating in the best interests of families experiencing separation. He promoted a nonadversarial approach that built bridges unique in Australia. As a result of his efforts, this collaboration of legal, dispute

Stephen Thackray, Judge Born: Wongan Hills, 1955 Died: Perth, aged 65

resolution and other specialist services can bring about outcomes achievable for families, including those with complex needs."

After retirement last year, he continued working as a mediator throughout Australia.

One consistent trait was the ability to make speeches that blended information, praise for others, and entertainment stemming from a sense of humour that described himself as a "punsioner (sic) who worried about inflicting further punnishment (again sic) on my audiences". His honour's impartiality allegedly faltered only when the fiercely loyal West Coast Eagles fan saw an umpire pay the opposition a free kick.

Love of gardening restored serenity to the household.

Warmth and compassion were hallmarks of a man who as lawyer made many judgments but who, as husband, saw the decision to marry Janet Ashworth as perhaps his best.

Stephen Thackray died from a brain aneurysm on March 30, survived by Janet, daughter Amanda, son James, daughter-in-law Leandri and brothers Peter and Gregory.

The breadth of vision that marked the Thackray career extended to personal music preferences. Beethoven and Mahler were favourites, but with 21stcentury stars, he was also on the case.

In one farewell speech, he thanked young legal associates "who told me about Madonna, Michael Jackson and Whitney Houston. I also know that U2 and YouTube are two different things, so feel quite confident as I step out into the world beyond this court."

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

It has been with interest that your Dog recently read the decision in Burrows v Houda [2020] NSWDC 485, in which Gibson DCJ considered the use of emoticons (pictures made from punctuation marks, letters and numbers to create an image displaying sentiment) and emoji (pictographs of faces, objects and symbols) in proceedings for defamation for publication of Twitter posts by the defendant, which he had posted on his Twitter feed on 2 occasions.

The defendant had responded to posts by the plaintiff, in one case using the emoji referred to as “zippermouth face”. Another post included the words “ticktock” and an emoji showing a clock. Yet another reply added three emoji: “collision”, “face with tears of joy” and “ghost”. The fourth reply did not make use of emoji, but used English, (or, more likely, American English) with the words “Ohmigod bro!!!!”.

I may point out that automatic spell check has had a difficult time dealing with the words in the previous paragraph depicted as symbols. In a fit of enthusiasm your Dog vainly attempted to use emoji symbols for the entire paragraph, but was defeated!

In the process of ruling on the capacity of an emoji to convey defamatory meaning Gibson DCJ pointed out this appeared to be the first time a court in Australia had been asked to rule on the matter.

In Lord McAlpine of West Green v Bercow [2013] EWHC 433 (QB) Lord McAlpine alleged he was defamed by comments published by the defendant on Twitter implying that he was a paedophile. The defendant had tweeted “Why is Lord McAlpine trending? *Innocent face*”. (In that context, Ms Bercow had about 56,000 followers of her Twitter page).

The claimant’s solicitor had reportedly said “Twitter is not just a closed coffee shop among friends. It goes out to hundreds of thousands of people and you must take responsibility for it. It is not a place where you can say things with impunity, and we are about to demonstrate that”.

In reaching a conclusion as to the meaning of the use of the emoji the Court distinguished between “natural and ordinary meaning” and “an innuendo meaning”. The Court held that a reasonable reader

would understand both meanings of the Tweet and interpret the *innocent face* as insincere and ironical: “There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question.” Accordingly, it was held that the Tweet meant “in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care”.

That matter was ultimately settled, the defendant being required to apologise to the claimant in open court and to pay damages. On the day of the hearing many Twitter users tweeted: “why is Sally Bercow trending? *libel face*”. What goes around, comes around!

Unsurprisingly, Gibson DCJ reached a similar conclusion in Burrows: each of the three imputations was equally capable of conveying defamatory meaning, particularly in the context of social media.

This excursus into the world of emoji inevitably lead your Dog to Emojipedia, of which he had never heard before!

Thus enthused, the best he could come up with for writing this contribution with the use of emoji was *Dog Face*, *Dog*, *Guide Dog* and *Service Dog*, the latter being a dog with the symbol of a safety jacket next to it. Your Dog has never worn a safety service jacket in his life, and does not propose to start now!

Your Dog did not deign to consider *Poodle* as a suitable representation of a Drovers Dog. Poodles are not members of the genus “dog”. They are more suited to those living in the western suburbs of Perth!

The thought of a poodle undertaking service in the company of a drover is so far removed from reality as to invite use of *Hilariously Laughing Face* or “Man doubled over in mirth slapping his thighs*!

Your Dog searched in vain for the emoji of a Drover – such a person, face, object or symbol is not known to the Japanese authors of Emojipedia! It will be interesting to see if any readers of this masterly contribution are able to devise a suitable substitute!

45

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Negligence Common law standard of care In State of Queensland v The Estate of Jennifer Masson [2020] HCA 28 (13 August 2020) (Masson) the High Court restated the common law standard of care to be applied in determining negligence.

The facts in Masson are tragic. In July 2002, the then 25-year old Ms Masson, had a severe asthma attack. The ambulance was called. At the scene of her attack Ms Masson was treated by ambulance officers including Mr Peters, an intensive care paramedic.

Paramedics were provided with a QAS Clinical Practice Manual (CPM). The CPM listed the pre-hospital treatment options for asthmatics depending on the severity of the attack. For asthmatics experiencing “severe asthma” the CPA stated that salbutamol should be considered. For asthmatics experiencing an even more acute attack and at risk of an “imminent arrest” the CPA stated that adrenaline should be considered.

Mr Peters initially decided to administer salbutamol and Ms Masson’s condition appeared to improve. But, during transport to hospital, Ms Masson’s condition deteriorated, and Mr Peters assessed a cardiac arrest as being imminent. Mr Peter then administered adrenaline. Ms Masson survived but suffered sustained, severe, irreversible brain damage due to oxygen deprivation.

She lived in a vegetative state until her death in 2016.

There were two key issues in dispute in the proceeding. The first issue was whether Mr Peters had made a clinical decision to administer salbutamol or whether he had misread the CPM. If Mr Peters had made a clinical decision, the second issue was whether it was an appropriate decision for Mr Peters to have made.

At first instance, the trial judge favoured Mr Peters’ oral evidence at trial, over a 2009 witness statement, in concluding that Mr Peters had made a clinical decision to administer salbutamol. The 46 | BRIEF OCTOBER 2020

trial judge was satisfied that Mr Peters chose salbutamol because Ms Masson had presented with a high heart rate and high blood pressure and Mr Peters was concerned that, in these circumstances, adrenaline might be harmful. The trial judge also considered that this decision was a reasonable response for an ambulance officer for two reasons. First, the decision was not contrary to the CPM because the trial judge considered that the guidelines contained in the CPM were designed to be flexible. Second, the decision was supported by a minority, credible body of medical practitioners who regarded salbutamol as equally preferable to administer as adrenaline.

Ms Masson’s estate successfully appealed to th e Court of Appeal of the Supreme Court of Queensland.

The Court of Appeal favoured the 2009 witness statement over Mr Peters evidence at trial which, the court observed, was an account given closer to the event. The Court of Appeal considered that the 2009 witness statement suggested that Mr Peters had misunderstood the CPM; that he had mistakenly believed that he could not administer adrenaline to an asthmatic who did not have a slower than normal heart rate. The Full Court also considered that, even if Mr Peters had not been mistaken, he failed in his standard of care by departing from the CPM. The High Court, in two sets of reasons, unanimously allowed the State’s appeal and overturned the Full Federal Court’s decision.

In their reasons, Kiefel CJ and Bell and Keane JJ held that it was open to the trial judge to prefer Mr Peters oral evidence. Their Honours noted that the 2009 witness statement was not a contemporary account and “bore the hallmarks of professional drafting”. Their Honours stated that the standard of care to be expected of Mr Peters was “that of the ordinary skilled intensive care paramedic operating in the field in circumstances of urgency”. Their Honours agreed with the trial judge in concluding that Mr Peters clinical

judgment was “neither contrary to compelling inferences nor glaringly improbable”. And their Honours joined in the trial judge’s observations of the CPM, finding that the CPM guided rather than proscribed clinical decision-making.

In a separate set of reasons, Nettle and Gordon JJ reached the same conclusion as their fellow judges. Their Honours considered that the oral evidence of Mr Peters, and the trial judge’s impression of it, was of “paramount importance”. Their Honours noted that basing decisions on lay witness statements was “highly problematic” since the “unspoken reality (is) that lay witness statements are liable to be workshopped, amended and settled by lawyers”. As to the standard of care, their Honours, citing Rogers v Whitaker (1992) 175 CLR 479, observed that the applicable standard for a person possessing a special skill is that of “the ordinary skilled person exercising and professing to have that skill”. Their Honours noted that it is for the courts to determine this standard but that a body of professional opinion may be influential in that determination. And that body of opinion need not align to a majority opinion.

Fair Work Act Calculating entitlement to paid personal/carer’s leave – meaning of “working day” In Mondelez Australia Pty Ltd v Automotive, Food Metals, Engineering, Printing and Kindred Industries Union (AMWU) & Ors [2020] HCA 29 (13 August 2020) the High Court considered how the entitlement to paid personal/carer’s leave (personal leave) is calculated under s96(1) of the Fair Work Act 2009 (Cth) (Fair Work Act).

By way of background, Mondelez operates a number of food manufacturing plants in Australia. Ms Triffitt and Mr McCormack are Mondelez employees and union members. They both work 12 hours shifts and work an average of three shifts a week. Under the relevant enterprise agreement (EBA) Ms

Triffitt and Mr McCormack are entitled 96 hours of paid personal leave per annum.

When Ms Triffitt or Mr McCormack take personal leave for a single 12-hour shift, Mondelez deducts 12 hours from their accrued balance.

Ms Triffitt, Mr McCormack and the AMWU contended that the EBA leave entitlements did not comply with s96(1) of the Fair Work Act. Section 96(1) provides that “(f)or each year of service with his or her employer, an employee is entitled to 10 days of paid personal/ carer’s leave”. Central to the disputed construction of s96(1) of the Fair Work Act was the meaning of “working day”.

The AMWU argued that a “working day” consists of a portion of a 24hour period in which an employee is engaged to work. So, s96(1) allowed an employee to take 10 working days per year in personal leave. But Mondelez argued that “working day” referred to a “notional day” consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period (or 1/26 of their ordinary hours of work in a year). So, Ms Triffitt and Mr McCormack were, on the hours that they worked, entitled to 72 hours of personal leave under the Fair Work Act (less than actually given under the EBA).

The Full Federal Court of Australia favoured AMWU’s construction of a

“working day” as being part of a 24-hour period. But Mondelez was successful on appeal to the High Court. The plurality, consisting of Kiefel CJ and Nettle and Gordon JJ and (in a separate set of reasons) Edelman J, considered that s96(1), properly construed, referred to a “notional day” for broadly three reasons.

First, their Honours noted the statutory context of the Fair Work Act favoured a “notional day” construction. In the Fair Work Act, the accrual of personal leave (s96(2)), payment of personal leave (s99) and the “cashing out” of personal leave (ss100 and 101) all refer to the employee’s ordinary hours of work. Kiefel CJ and Nettle and Gordon JJ also opined that the “notional day” construction accommodates the diverse working patterns of employees and is consistent with the purposes of the Fair Work Act, being, among other things, to provide workplace laws that are fair to working Australians and flexible for businesses.

Second, their Honours noted that the explanatory memorandum to the Fair Work Act described the concept and operation of the personal leave scheme in terms of the ordinary hours worked by employees.

Third, their Honours observed that the legislative history of the Fair Work Act also supported a “notional day”

construction. The Workplace Relations Act 1996 (Cth) (Workplace Relations Act) was predecessor to the Fair Work Act. Section 93F(2) of the Workplace Relations Act included a formula for the calculation of personal leave that included the nominal hours worked by an employee. The explanatory memorandum to the Workplace Relations Act explained that the purpose of the formula was to ensure that employees, whose hours of work vary, accrue appropriate amounts of personal leave. Kiefel CJ and Nettle and Gordon JJ considered that the inclusion of the Workplace Relations Act provisions in the explanatory memorandum to the Fair Work Act demonstrated the continuity of those old provisions.

Gageler J, in dissent, saw no reason to depart from the “standard pattern” in the Fair Work Act of “specifying the number of 24-hour periods in which absence of work is authorised”.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, disciplinary and regulatory law, ph 9225 8722, email msharpe@ vicbar.com.au. The full version of these judgments can be found at www.austlii. edu.au.

47

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

Financial agreements – Agreement “came into effect” pursuant to s 90UI upon separation, not when it was signed In Salvage & Fosse [2020] FamCAFC 144 (12 June 2020) Tree J at first instance made an interim spousal maintenance order of $516.05 per week in favour of the respondent, notwithstanding that a Part VIIIAB financial agreement precluded the claim. The respondent sought that the agreement be set aside for unconscionable conduct or undue influence, arguing that a maintenance order could be made by virtue of s 90UI of the Act. Ryan & Aldridge JJ said ([43]): “ … Section 90UI(2) examines the circumstances of the applicant … ‘when the agreement came into effect’ and if at that time the applicant … is unable to support themselves in the manner described in that subsection, the exclusion … clause is rendered inoperative. This subsection requires that the … party’s circumstances are to be examined ‘taking into account the terms and effect of the agreement’.

Reference to s 90UI(3) makes it clear that where the … agreement provides that the property or financial resources of a de facto spouse are to continue in the ownership of that party, that property or … resource is to be taken into account in determining the circumstances of the party. If the applicant’s circumstances were to be considered when the agreement was signed rather than on the breakdown of the relationship, this provision 48 | BRIEF OCTOBER 2020

is otiose. The work it does is to ensure that the applicant’s circumstances include property and financial resources which the applicant already has (and will retain) are taken into account as well as any property or … resource that the applicant is to receive at the breakdown of the relationship. This lends strong support for the proposition that s 90UI is to be considered at the breakdown of the de facto relationship. Any disquiet is dispelled by asking how could the fact that when a party signs an agreement, which means that at some distant time the party will receive property, mean that at that earlier point in time, the party is unable to support himself or herself without an income tested pension etc.? …[I]t could not.”

Watts J in separate reasons ([145]) also held that the agreement came into effect at separation.

Children – Children had refused to see father for 2 years – Order erroneously made in hope In Masih & El Saeid [2020] FamCAFC 152 (25 June 2020) the Full Court (Ryan, Watts & Austin JJ) allowed the father’s appeal in a case where two children had spent equal time with the father pursuant to interim orders for 5 years, but then refused to see him at all for the next 2 years.

The father alleged parental alienation. A single expert recommended that the father have sole parental responsibility and that the children live with him. Loughnan J ordered that the children live with the mother and that the father’s time

with them increase incrementally over time.

Watts & Austin JJ said (from [50]): “The central feature of the case was the children’s alienation from the appellant and what orders should be made in response thereto ...

There is no reference in the reasons for judgment to the single expert’s evidence as to how the problem of the children’s alienation from the appellant should be best addressed. ( … ) [59] Given the uncontested findings of the primary judge to the effect that the children have meaningful relationships with the appellant and derive benefit from it ( … ) the respondent’s proposal offered little hope of any restoration of the children’s relationships with the appellant … the children would suffer significant harm if denied relationships with the appellant … and it is likely the respondent has not fully supported the children’s relationships with the appellant … the orders made by the primary judge appear to be an exercise in hope rather [than] the experience of compliance. ( … ) [62] Since the respondent had demonstrated her inability to implement an ‘equal time’ residential arrangement for the children over the preceding period of about two years, the reasons for judgment provide no answer to the question of how she would be able to instead comply with orders requiring her to immediately restore the children’s visits with the appellant …”

The case was remitted for re-hearing by another judge.

Children – Registrar’s refusal to file Initiating Application due to non-provision of a s 60I certificate was improper In Valack [2020] FCCA 1354 (29 May 2020) Judge Jarrett considered a case where an Initiating Application seeking both property and parenting orders had been lodged via the Court portal. No s 60I certificate was provided. The applicant contended that there had been abuse of a child or there had been family violence.

The Registrar stated ([3]) “that pursuant to rule 2.06 of the Federal Circuit Court Rues 2001… the application has not been accepted” and that “The Registrar has not approved your request for the nonfiling a current” s 60I certificate. The applicant sought a review of the Registrar’s decision pursuant to r 20.02 of the Federal Circuit Court Rules.

The Court said (from [8]): “ … The work done by s 60I(7) is to proscribe a court from hearing an application for a Part VII order in relation to a child unless certain circumstances exist. ( … ) [T]he use of the phrases exercising jurisdiction and must not hear are more consistent with proceedings that are on foot, rather than proceedings that a party is attempting to initiate. Were it otherwise, the text of the section would be directed to the commencement of proceedings rather than the hearing of them. ( … ) [21] ( … ) In the absence of an extant application no occasion for the exercise of the power set out in s 60I(9) arises. The purported exercise by the Registrar to decide whether s 60I(7) did not apply in this case was improper.”

After considering s 104(1) of the Federal Circuit Court Act, the Court said ([25]): “ … [A] decision about whether to accept the application in this case

… was an administrative decision. It was not a judicial decision. ( … ) That decision is not amenable to review using the mechanism provided for in s 104(2) and FCCR 20.02 …”

The Court directed the parties to file submissions as to whether the Registrar’s decision should be set aside pursuant to the Administrative Decisions (Judicial Review) Act 1977.

Children – Vexatious litigant’s leave application fails – Primary motivation in seeking parental responsibility to challenge deceased mother’s will In SCVG [2020] FamCAFC 147 (12 June 2020) the Full Court (Strickland, Ainslie-Wallace & Austin JJ) dismissed an appeal in a case where a vexatious proceedings order had been made in 2015 prohibiting the father of two children from instituting proceedings. The mother had since died, the father seeking leave to file fresh parenting proceedings in 2020 where the mother had appointed her siblings as the children’s guardians.

The father sought parental responsibility orders, contending that such orders would enable him to challenge the mother’s will on behalf of the children ([40]).

The Full Court said (from [32]): “The application must be dismissed if the intended proceedings are vexatious proceedings (s 102QF(2)).

Alternatively, leave may be granted only if satisfied that the proceedings are not vexatious proceedings (s 102QG(4)). The applicant bears the burden of proving the intended proceedings are not vexatious. (…)

[42] From the applicant’s evidence it is manifest that his principal objective is to bring the proceedings …, to obtain parental responsibility … for the collateral purpose of facilitating his prosecution of separate testamentary proceedings in a different jurisdiction …

(…)

[44] It is accepted as being plainly abusive of civil process to institute proceedings for an improper purpose … which include the use of the proceedings for the predominant or substantial purpose of obtaining some collateral advantage rather than for the purpose for which the proceedings are designed and exist (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 522, 528–529, 532 and 536–537).

[45] In Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503 … it was said: ‘ ... [I]f it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process ... ’ [46] While the applicant’s immediate purpose in bringing the Part VII litigation is to secure an order vesting him with parental responsibility … being an order within the scope of power wielded by the Family Court of Australia, the applicant admits he has an ulterior motive for pursuing an order in those terms.

He called it the ‘decisive’ reason for bringing the proceedings. His pursuit of the Part VII order for the predominant and ulterior motive of prosecuting other civil … converts the intended Part VII proceedings into an abuse of process.”

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.

49

The Tale of the The Disaffected Law Students

By John McKechnie QC

Victoria University in Wellington, New Zealand has an impressive honour roll of law graduates including a Governor General, Prime Minister, four Chief Justices, five Attorneys General and seven Solicitors General.

The author of the Salmond on Torts was a professor at Victoria before becoming a judge. (No prizes for guessing the author's name).

Remarkably, the Government printer acknowledged the problem in 1951, 40 years after the Judicature Act 1908.

So it is little surprise that when Victoria's law students felt they were being hard done by, they would have the temerity to sue someone. Better still; they persuaded someone else to sue for them.

The second and third schedules containing the Code of Civil Procedure in the Supreme Court and the Rules of the Court of Appeal respectively have been omitted on the ground that owing to the number of alterations made therein, it would be misleading to reprint them in their original form; and the reader is recommended to refer to Stout and Sim's Supreme Court Practice and to subsequent Gazettes.

Now, I am sure that many of my colleagues in the law do as I do and drop off every night having read a few pages of the White Book. (If you are too young to know what this is, Google the answer).

As the man said after watching a documentary on ship building "Riveting stuff".

But I digress.

In 1973, students at Victoria and other New Zealand law schools were required to take a subject known as Civil Procedure.

Students studying the subject naturally need to examine the statutes and rules which establish the procedures of the courts.

What an abrogation of responsibility, though one which Messrs Stout and Sim's probably approved.

During the course of the judgment, one detects considerable sympathy by the judges for the plight of the students.

It is probable they had encountered similar difficulties when at law school themselves.

However, the Code of Procedure which is an assembly of all the procedural rules of the Supreme Court, was unobtainable from the Government printer.

The need for students to have access to an up to date text of the code has become more pressing. Obviously it is wrong that this need is not met. Every citizen should be able to obtain a copy of the rules of court at reasonable cost; a fortiori a student studying to become a lawyer.

The only alternative for the student who wanted their own copy was to purchase Sim's Practice and Procedure at the then considerable sum of $32.

The students had sought an order of mandamus to compel the Government printer to update the civil procedure laws and rules.

The law students through the Student Association pleaded with the Government printer and the Law Drafting office but to no avail.

The judges unanimously held that a writ of mandamus could not issue.

How unsatisfactory.

As President McCarthy in the Court of Appeal noted in his judgment: It is of course obvious that a Government should publish its own laws and make their texts available to its citizens. The Government accepts this is so and would wish to be able to comply with the requests of the students. But it says it is not in a position to do this.

In other words, "Sorry, not sorry".

50 | BRIEF MARCH 2020

Perhaps if the students had had access to an up to date copy of the civil procedure, they would have known this.

Postscript: Undeterred by a three nil loss (four if you count the Chief Justice who was the primary judge), the students sought leave to appeal to the Privy Council. Leave was refused.

(Adapted from Victoria University of Wellington Students Association v Shearer (1974) 2 NZLR; Victoria University of Wellington Students Association v Shearer CA 31/73)

51

Law Council Update A shifting culture towards equal opportunity for women in law There has been a rise in the number of female barristers being briefed on matters over the past three years, according to the latest equal opportunity data released by the Law Council of Australia.

The Law Council’s Equitable Briefing Policy Annual Report 2018-19 has found that briefs to female barristers increased by two per cent during the reporting year, with women now receiving 27 per cent of all briefs, on track to surpass the target of 30 per cent before the next reporting period.

Law Council President, Pauline Wright, said that the data reveals a welcome shift in culture.

“The Law Council launched the Equitable Briefing Policy in 2016, with the aim of tracking equal opportunity within the profession. The latest data shows evidence of positive moves within the profession, especially for female junior barristers who are receiving more briefs,” said Ms Wright.

“This allows them to gain more experience to further develop their legal career.”

“It is pleasing to see that we are on track to meet one of the key targets, for women barristers to be briefed in at least 30 per cent of all matters,” said Ms Wright.

Key highlights from the Equitable Briefing Policy Annual Report 2018-19 include: •

•

•

60 per cent of barristers recommended by senior reporting barristers for new matters were female; 62 per cent of barristers recommended by junior reporting barristers for new matters were female; Female junior barristers received 32 per cent of total briefs from reporting Briefing Entities (e.g. firms); and

• Briefing fees to junior and senior female barristers, combined, increased from 17 per cent to 20 per cent of all fees.

52 | BRIEF AUGUST 2020

While the figures are encouraging, Ms Wright says that more work needs to be done to create a fairer environment for female barristers, especially when it comes to equal pay.

the government to carefully review all temporary insolvency emergency measures before extending them beyond 31 December 2020 in order to avoid unintended consequences.

“Briefing rates for senior female barristers are still quite low, in comparison to senior male barristers, which may affect the total value of briefing fees for female barristers,” said Ms Wright.

"Delaying steps that would otherwise lead to the liquidation of unviable businesses exposes more viable businesses to becoming substantial creditors of those unviable businesses.

This has the potential to spread the contagion, making the eventual insolvency wave more widespread and difficult to resolve," Ms Wright said.

“Despite the amount of fees received by female barristers increasing over the past three years, it is disappointing that the gender pay gap between female barristers and their male counterparts is still significant.”

Law Council raises concerns about government's extension to temporary insolvency emergency measures The Law Council of Australia has raised a number of concerns over the federal government's announcement this week that it intends to extend temporary insolvency emergency measures, introduced as a result of the COVID-19 crisis, into 2021.

The joint announcement, made by the Treasurer and the Attorney-General, proposed extending the temporary increase in the threshold at which creditors can issue a statutory demand, extending temporary bankruptcy protections, and extending the temporary relief for directors from any personal liability for trading while insolvent.

Law Council of Australia President, Pauline Wright, noted the commendable rationale for the proposed extension of these measures was to lessen the threat of actions that could unnecessarily push businesses into insolvency and external administration at a time when they continue to be impacted by health restrictions.

However, drawing on the recommendations of the Insolvency & Restructuring Committee (Committee) of the Business Law Section of the Law Council of Australia, Ms Wright urged

"The temporary emergency measures and all other relief being afforded distressed businesses during the current pandemic will eventually be removed. When that happens the insolvent entities that remain will likely be so bereft of assets or possible recoveries that external administrators – who themselves generally conduct small business enterprises – may be reluctant to take on the arduous tasks of liquidating insolvent entities.

"Furthermore, extending the inevitable commencement of liquidations and bankruptcies allows even more time to pass from the date of otherwise potentially voidable transactions, thus increasing the opportunities for pre-insolvency advisors to assist in structuring of an insolvent entity’s affairs to defeat the claims of creditors. Such prolongation could give rise to illegal phoenix activity.

"As a result of these concerns, the Law Council considers that in order to avoid unintended negative consequences, any further extensions to the temporary insolvency emergency measures should be reviewed carefully and, if continued beyond 31 December 2020, any ongoing measures should only be formulated after extensive consultation.

"Striking an appropriate balance is not an easy task, and the Law Council is concerned that simply extending insolvency emergency measures into 2021 may inadvertently cause avoidable economic and social harm."

Professional Announcements Anthony (Tony) Power Tony Power has returned to practice at the independent bar following the completion of the Anthony (Tony) Power Inquiry Into the City of Perth. Tony can be contacted at Murray Chambers or by email to anthony.power@iinet.net.au or on his mobile telephone on 04 1928 1928. Alternatively, by contacting Sue Holloway by email to s.holloway@outlook.com.au.

Slater and Gordan Lawyers On 20 July 2020, Joachim Azzopardi was employed by Slater and Gordon Lawyers, as an Joachim Azzopardi Associate, to lead and manage its Western Australian Public Liability practice.

Joachim brings great experience to the WA team having worked in personal injury for the past decade including work in the workersâ&#x20AC;&#x2122; compensation team at Slater and Gordon approximately five years ago.

Perth City Legal Perth City Legal are pleased to announce that Carl Messina and Mathew Webster have joined our team as senior associates.

Carl and Matt have a wealth of experience in personal injury claims having worked on the plaintiff and defendant side.

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Am giving away work. I have done >1,000 mobile Bank Guarantee explanations to guarantors ($300/ per explanation) and am on call from some banks.

This rare opportunity only comes once in a lifetime.

I wish to do criminal law only.

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Missing Will Mathew Webster

As of 1 January 2021 Carl and Matt will become the new Principals of Perth City Legal.

Warren Syminton Ralph Pty Ltd Warren Syminton Ralph Pty Ltd is now trading as WSR Law.

Would any solicitor, firm or person holding or knowing the whereabouts of a will or other testamentary document of MARK ERNEST SHANG late of Maylands, formerly of Sydney NSW who died in August 2020 please contact his sister Robyn Shang on 0438 409 040 or robynshang@gmail.com

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Joachim is pleased to be back at Slater and Gordon working in an area of personal injury that he is extremely passionate about.

T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

New Members New members joining the Law Society (September 2020) Associate Membership Mr Cameron Bunney The University of Western Australia Law Faculty

Ms Emma McLaughlin Allens Ms Eliza Murphy Curtin University

Ms Mariza Firmansjah Peel Legal Barristers & Solicitors

Mrs Rebecca Rees Edith Cowan University

Ms Brittany King Edith Cowan University - Business & Law

Mr Mark Ringer University of Notre Dame Australia

Miss Isabelle Macdonald Curtin University - School of Business Law & Tax

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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.