37 minute read
Developing the limits of section 100A: when is a distribution to a discretionary beneficiary not a distribution?
Following from the exhibition, a dynamic panel came to life to discuss elements raised by the exhibition and appropriately entitled The Women Should Have a Voice - The Future of Women’s Social Justice in WA. Presented by the Law Society in association with the Karrakatta Club and inspired by Cowan’s service and continuing legacy of social justice advocacy in Western Australia, this panel looked at the work still to be done. Cowan’s legacy of social justice advocacy is vast, but incomplete. While Cowan vowed to represent the interests of women and children during her time in Parliament and her community work from the 1890s reflects her advocacy for the protection of mothers and children, in 2021 the panel will reflect on the silences of history and give voice to those who were not protected. As the groundswell of the modern women’s movement rises again, it is a timely reflection of Cowan as a woman of her time, what she achieved, who were excluded and how much is yet to be addressed and achieved today. Facilitated by Deputy Lord Mayor, City of Perth, Sandy Anghie, the panel represented the voices of leading advocates working in the social justice arena advocating for change, law reform and equality for all women. The post panel conversations were feisty and inspired. Thank you to Dr Christine Cunningham, Higher Degrees by Research Coordinator for the School of Education, Edith Cowan University, Ms Krista Dunstan, WA Investment and Trade Commissioner for ASEAN, Emeritus Professor Carmen Lawrence, Senior Honorary Research Fellow, School of Psychological Science, UWA, Mr Conrad Liveris, Director, In Her Seat, Dr Carolyn Tan, In-House Legal Counsel, Yamatji Marlpa Aboriginal Corporation, Ms Toni Church, Curator, Old Court House Law Museum.
Law Week finished on a social high with the Law Week Awards night. Over 180 Law Society members, members of the judiciary and friends came together at The Westin to celebrate the Lawyer of the Year Awards with style and toast to the end of a successful Law Week.
The event saw Kendra Turner accept the 2021 Lawyer of the Year Award (less than five years’ experience) and Peter Le received the 2021 Layer of the Year Award (more than five years’ experience. Congratulations to this year’s winners and our 2020 recipients Heidi Gan and Hamish Glenister (less than five years’ experience award) and Lucy Dickens (more than five years’ experience award) who were also celebrated on the night. The event also included recognition of practitioners who have held a practicing certificate for 50 and 60 years and celebrated our newest Law Society Life Members: Mr John Ley SC and Mr Denis William McLeod But Law Week is not just about events, it’s about promoting the narrative of access to justice and equal access to justice and advocating on issues that matter. The Law Society was very active on social media and a series of articles were published in Business News: Access to Justice might never be equal, but can it be fair? By Shayla Strapps, Junior Vice President & Treasurer of the Law Society of Western and Australia, CEO and Director Ruah Legal Services and Mental Health Law Centre
Our vision is equal access to justice for everyone in Western Australia – Here we explain what the legal profession is doing to help achieve our vision. By Dominique Hansen, CEO and Company Secretary at Law Access
The legal profession must lead change to eliminate its workplace sexual harassment. By Christopher Burch and Anlee Khuu, The Law Society’s Young Lawyers Committee “The Women Should Have a Voice”: Edith Cowan’s legacy of social justice in Western Australia. By Toni Church, Museum Curator, The Old Court House Law Museum.
If a society values its children, it must cherish their parents. By Debbie Henderson, Chief Executive Officer, Family Inclusion Network of WA Inc.
Thank you to all who got involved in the years’ Law Week and thank you to our sponsors Public Purposes Trust, The Department of Justice Western Australia, Glen McLeod Legal, HHG Legal Group and Murdoch University.
14 15
13. Lea Hiltenkamp, Glen McLeod Legal 14 & 15. Old Court House Law Museum exhibition The Women Should have a Voice – Edith Cowan’s Legacy of Social justice in Western Australia 16. Practitioners recognised by the Legal Practice Board for holding a practising certificate for 50 and 60 years
16 18
19
20 22
21
17. Law Week Panel - The Women Should Have a Voice - Toni Church, The
Law Society of WA, Dr Carolyn Tan, Yamatji Marlpa Aboriginal Corporation
Conrad Liveris, In Her Seat, Emeritus Professor Carmen Lawrence,
Senior Honorary Research Fellow, School of Psychological Science, UWA,
Ms Krista Dunstan, WA Investment and Trade Commissioner for ASEAN,
Dr Christine Cunningham, School of Education, Edith Cowan University
Sandy Anghie, Deputy Lord Mayor, City of Perth 18. YLC Screening - Anthony Dique, Hammond Legal, Chris Burch, Corrs
Chambers Westgarth, Anlee Khuu, Momentum Legal 19. Musical performance at the Law Week Cocktail Party 20. Hon John Quigley MLA, Attorney General of Western Australia, Tonya
McCusker AM, The Hon Malcom McCusker AV CVO QC 21. Peter Le, City of Rockingham – Recipient of the Lawyer of the Year Award more than five years practising 22. Selina Gates, Hammond Legal, Tom Camp, Butcher Paull & Calder, Ante
Golem, Herbert Smith Freehills
Special thanks to Law Week supporters and sponsors
Lawyer of the Year Award Sponsor (more than 5 years’ experience)
The Winners of this year’s Lawyer of the Year awards took a moment to answer a few questions and reflect on their journey.
Kendra Turner Winner - less than 5yrs experience
Why did you choose to study law?
I think, like a lot of people, I didn’t know what I wanted to pursue after high school. I considered various other degrees in psychology, sport and architecture, but ultimately chose law because I saw knowledge of our legal systems as essential in affecting social change. This is something I was, and am still quite passionate about. Funnily enough though, I never saw myself as becoming a lawyer. I was accepted into the University of Notre Dame in 2014 to complete a double degree in Law and Behavioural Science. Throughout my studies I had planned to pursue a career in the social sciences. It wasn’t until my penultimate year that I considered pursuing a career in law. I think this came down to peer pressure in applying for clerkships, but none the less, I’m happy to have made the decision I did to become a lawyer!
What has your career path been like so far?
I have had a varied career path. During university I undertook several volunteer placements with community legal centres, notfor-profit organisations, and a small litigation firm in Fremantle. In these roles I had the opportunity to deliver essential services and promote access to justice within the local community. I also worked in both hospitality and retail for most of my university years, and later in my studies, conducted workshops with high school students, that aimed to create safe spaces to discuss topics related to diversity and inclusion. In early 2018, I applied to work as paralegal with Corrs Chambers Westgarth (Corrs) on a big litigation matter, and have worked with them ever since. I celebrated my admission as a lawyer in December 2020, and am currently completing my third practice group rotation at Corrs. In September, I hope to settle in my chosen practice group and officially kick start my career!
What are your words of encouragement for other junior lawyers?
The legal profession draws high achievers, so I would encourage all junior lawyers to be kind to yourself. You can only do your best, and regardless of the situation, you should be proud of yourself for having done so.
If you had a message for more senior members of the profession what would that be?
I would encourage senior members of the profession to reach out to junior lawyers and law students, to offer their support and mentorship. I really do think our belief in someone can be the catalyst for their success – whatever ‘success’ means to them. I’m grateful for the support and guidance I have received over my career, and credit my professional development to the senior lawyers that have taken me under their wing.
What has been the proudest achievement of your legal career to date?
I have had the honour of receiving this award, as well as the WLWA 2021 Junior Woman Lawyer of the Year award, both of which I am incredibly grateful for. For me though, my proudest achievement has been staying true to my values, and getting to combine my passion for promoting diversity and inclusion both within business and communities.
What motivates you to work in the area you do?
As mentioned before, I am passionate about promoting diversity and inclusion within business and communities. I often think a reason I initially disregarded a career in law was because I never saw myself represented in the Western Australian legal (and business) community. It really is hard to see yourself as being something you can’t see. Now a practicing lawyer, I love the challenging nature of my work, and for me, seeing greater representation of diverse women in positions of power and influence motivates me to continue doing what I’m doing.
Do you have a positive story of your role as a lawyer and how it has made a positive difference to the public/ community?
I am a Management Committee Member of the Society of African Australian Lawyers Inc. (SAALI). We officially launched in November 2020, and aim to promote more diversity and inclusion in the Western Australian legal profession, particularly among people of African heritage. I think the establishment of SAALI has, and will create a positive difference in the Western Australian legal and wider communities. When graduating university in 2019, I thought I would be the first lawyer of African heritage I knew. Now being a SAALI member, I have an extensive network of legal professionals I can turn to for support and guidance. I get excited every time I see a law student attend one of our events or follow our LinkedIn page. This is because I know these students will graduate university with the support of SAALI, and can look up to the many successful legal professionals that look just like them.
Peter Le Winner - more than 5yrs experience
Why did you choose to study law?
I wanted to help people, and so I thought being a lawyer and having knowledge of the law could help me to do that.
What has your career path been like so far?
From local firm (Gibson & Gibson Lawyers, now Slater & Gordon), to national firms (Gadens & Minter Ellison), to international firm (Dentons), to in house (Hyatt Hotel & Centre) and now at local government (City of Rockingham).
If you had a message for junior members of the profession what would that be?
As Justice Michael Kirby always say, “the law is not for show ponies”, it is hard work but it is the most rewarding work that one can do.
What has been the proudest achievement of your legal career to date?
I think all 3 of these rank equally – Being the inaugural president of the Asian Australian Lawyers Association (WA Branch) and promoting cultural diversity and inclusion in the legal profession; Winning the State’s Volunteer of the Year for Multicultural Communities 2019, for my work in helping various multicultural organisations achieve their social service objectives through the provision of legal, governance, risk and compliance advice; and of course Winning the Law Society of WA’s Lawyer of the Year Award 2021! No greater honour than to be recognised by your peers.
What is a great challenge you have had to overcome that helps you to be a better person and help you approach your work?
I came to Australia at the age of 4 as a little refugee boy after the end of the Vietnam War. Being a refugee in Australia has had a profound impact on my life in three ways. Firstly, it has made me appreciate all the opportunities that this country has given me. Secondly, it’s helped me to be resilient and to handle the pressures and demands of being a lawyer. And thirdly, it has encouraged me to consciously give back whenever I can.
What motivates you to work in the area you do?
I guess being a child refugee, it has always been in my DNA to work for a community based organisation and the City of Rockingham is very much a community focused organisation. It’s one of the largest local governments in Western Australia, it’s a very progressive and innovative local government and I believe the first local government in WA to have in house legal counsels.
Do you have a positive story of your role as a lawyer and how it has made a positive difference to the public/ community?
Using my local government knowledge and skills to advocate for new clubroom facilities, after 30 years without any decent facilities, for a grass roots soccer club in the northern suburbs called Westnam United, a club that I have been playing soccer for since my childhood, which has a focus on the diaspora communities and disadvantaged youths around the low social economic suburbs of Mirrabooka, Balga, Girrawheen, Koondoola, Marangaroo. From humble beginnings, the Club has grown from 1 senior team to 5 senior teams and 4 junior teams. I am pleased to say, no more cold showers for the players!
What are the challenges of being a lawyers that the public doesn’t necessarily see?
At times, the practice of law can be very demanding, relentless and never ending and always unforgiving, but I wouldn’t do anything else!
By Anlee Khuu, Momentum Legal Member, The Law Society’s Young Lawyers Committee
On 17 May, the Young Lawyer’s Committee held a special Law Week screening of In My Blood it Runs hosted by Corrs Chambers Westgarth, a documentary that follows 10-year-old Dujuan, an Aboriginal boy of the Arrernte people, growing up in Alice Springs. Dujuan has trouble with the law and is suspended from school, but there is no doubt that he is a well-meaning and funloving child who loves his family and his family love him.
Betty Garlett, member of the Baladong Clan and respected Noongar Elder provided a special Welcome to Country and thanked lawyers for continuing to do good work. Lexi Lachal, Lawyer, Civil Law and Human Rights Unit of the Aboriginal Legal Service, then spoke about the Aboriginal Legal Service’s important work in providing access to justice and encouraged those who would like to contribute to reach out to the Aboriginal Legal Service. These are important messages for both Law Week and the upcoming National Reconciliation Week. In My Blood it Runs emphasised the lack of support to Dujuan and his family. Dujuan is skipping school and starting to have trouble with the law and breaking into cars. His family members, his teachers and the police warn him that he could go to juvenile detention if he continues. However, a young child can’t understand the consequences of his actions, and the authorities do not provide any solutions that could actually assist Dujuan’s well-being. Dujuan’s family and the Aboriginal elders try to find ways to help Dujuan. In particular, I really felt for Dujuan’s mother and grandmother who only want the best for him and have tried everything to discourage Dujuan from truancy and breaking the law. When they receive a letter from the government regarding child welfare, they become anxious and fearful due to memories of the Stolen Generation. While the letter may only be a pro forma letter and not actually lead to Dujuan being taken away, the documentary shows how it is triggering to Dujuan’s mother and grandmother and unjustifiably punishing Dujuan’s family when they are already trying everything possible to raise Dujuan. While there are many sad moments in the film, it is also celebrates Dujuan’s bright personality. He is a delight on screen. He enjoys the company of his siblings and playing with other children. Dujuan does not intentionally cause anyone grief. When his aunt is taken to hospital, Dujuan is upset and visits her in hospital to use his healing powers he learned from the Aboriginal elders on her leg wound. While the authorities may see him as a delinquent, Dujuan is a friendly, well-meaning child who is beloved by his family and proud of his cultural heritage. It is interesting to see that, while Dujuan is forced to move schools twice and does not get good grades, he is a keen learner when he is encouraged, especially when it comes to his culture. Unfortunately, Dujuan’s interest in his culture is not supported in the first two schools that he attends and the teachers impose a onesize-fits-all approach. For example, Dujuan’s family lament the lack of education on the Arrernte language and they try to teach him at home. When Dujuan goes to live with his father, he regrets not knowing very much about the Arrernte language himself and hopes Dujuan will be able to learn his culture.
The documentary ends on a good note. The Aboriginal elders decide that Dujuan is better off living with his father to learn his culture and it appears that Dujuan starts to thrive when living on Country, and he is starting to learn the Arrernte language at his new school as well as at home. However, it would be naïve to think that there is a simple conclusion. In My Blood it Runs is part of a continuing campaign for change. It is not a film that starts and ends neatly in under two hours, because that is not the reality.
CPD DAY FOR COUNTRY PRACTITIONERS 2021
By Amelia Englert, Solicitor, McAuliffe Legal I joined the Law Society’s Country Practitioners Committee in 2017 and the Committee has worked with the Law Society to develop the CPD Day for Country Practitioners. The CPD Day was first held in 2018 and has been held annually ever since. I attended the first two events in person and enjoyed this experience thoroughly. Due to COVID 19, the Law Society held the 2020 event via a live webinar which was also an option for this year’s event. Although I had all intentions of attending in Perth this year, my work and family commitments prevented me from doing so (I recognise that all lawyers are generally time-poor but country lawyers are especially so due to less support). The speakers at this year’s event were all highquality speakers presenting relevant material on topics covering different CPD areas. The first speakers presented in the area of ethics - screening and identifying clients. I took away some helpful information on implementing procedures to assist in managing these conflicts. Given the tight knit communities in the country, screening is highly important. Country lawyers regularly make ethical decisions about representing or opposing people they know including friends and family, which raises personal interest conflict issues. It was interesting to hear the material regarding the “accidental client” relevant to unrepresented parties, an area of high risk in country practice. I was reminded to be especially careful in corresponding with unrepresented parties and to communicate clearly (in writing) to them that “you are not my client”. A presentation regarding legal complaints rounded out the area of ethics and highlighted that effective client communication is crucial, particularly regarding costs expectations. Addressing costs at the initial consultation, although awkward, is highly important and likely to avoid a future complaint. The substantive topics presented by the other speakers covered drafting trusts, strata law changes, family provision claims and tax implications (in family law and wills & probate). For me, the most helpful points (I could definitely add more but for the sake of brevity have kept it to one from each speaker) were: (a) pay particular attention to drafting power of amendment clauses in trust deeds; (b) keep an eye on the commencement of the
Community Titles Act 2018 (WA) (there are already similar developments in my region); (c) prepare specific testator evidence (separate to the Will) as to excluded beneficiaries; and (d) consider Division 7A of the Income Tax
Assessment Act 1936 (Cth) in family law matters.
The highlight of the CPD Day for me was the panel discussion with His Honour Judge John Staude, Magistrate Dianne Scaddan, Carmel McKenzie and His Honour Kevin Sleight as Chair. They provided their perspectives on the changes to court processes in their relevant jurisdictions due to the impacts of COVID 19. Some processes were already in place prior to COVID 19 (such as attending court by audio/ videolink and online filing) which I expect will become more efficient and streamlined as they are now more important than ever. I take note of the advice of the panel regarding such appearances and I will definitely not say “Hi” when appearing by audio/videolink. It was a pleasant surprise to hear that His Honour Kevin Sleight and Carmel McKenzie were longstanding members of the Country Practitioners Committee. With this in mind, I end this article with an invitation to country practitioners to join the Law Society’s Country Practitioners Committee as we are always in need of new committee members and it is a way of getting more support to country practitioners and working with other country lawyers on important policy and advocacy work.
Dan Star QC
Owen Dixon Chambers West, Melbourne
Courts and judicial system
Apprehended bias – trial judge does not recuse himself – Full Court held hypothetical observer might reasonably apprehend that the trial judge might be influenced subconsciously by extraneous information
In GetSwift Limited v Webb [2021] FCAFC 26 (5 March 2021) the ultimate issue in the appeal was whether the primary judge should have disqualified himself from hearing the trial in a class action proceeding (Webb proceeding). The primary judge decided not to disqualify himself. The Full Court allowed the appeal. Relevantly, the appeal raised questions concerning the knowledge to be attributed to the hypothetical observer (the fair-minded lay observer) and the extent to which extraneous information in the mind of a fact finding judge which is to be discarded might still have a subconscious effect on the decision to be made by that judge. The issue arose in circumstances where the primary judge was intending to hear a regulatory civil penalty proceeding and a representative proceeding under Pt IVA of the Federal Court Act 1976 (Cth) consecutively. In the Webb proceeding, Mr Webb made allegations against GetSwift Limited (GetSwift) of continuous disclosure contraventions under s674(2) of the Corporations Act 2001 (Cth) (Corporations Act), and of false or misleading statements and misleading or deceptive conduct in contravention of ss1041E and 1041H of the Corporations Act, s12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s18 of Sch 2 to the Competition and Consumer Act 2010 (Cth). There were also allegations against a director of GetSwift, Mr MacDonald, by reason of knowing involvement in GetSwift’s contraventions. Civil penalty proceedings were also brought by ASIC against GetSwift and (among others) Mr Macdonald for alleged contraventions of the Corporations Act and the ASIC Act (ASIC proceeding). The allegations raised by ASIC and by Mr Webb were largely the same and the primary judge accepted that he would be dealing with largely the same course of events in the class action as in the ASIC proceeding. The ASIC proceeding had been heard and judgment was reserved. The primary judge was due to commence hearing the Webb proceeding. The primary judge intended that judgment in each proceeding would be based on (and only based on) the evidence adduced in, and argument advanced in, each proceeding (that is, without regard to the evidence adduced in, and argument advanced in, the other proceeding). In both cases, it was highly likely that the factual issues would be determined by reference to the documentary evidence that was common to both the Webb and ASIC proceeding and inferences drawn from it. Therefore, the primary judge would have already formed some views about the documentary evidence adduced in the ASIC proceedings if he heard the Webb proceeding (at [10]). GetSwift submitted that the primary judge erred in failing to conclude that a fairminded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the Webb proceeding by reason of his having heard evidence and argument in the ASIC proceeding (at [13]). Middleton, McKerracher and Jagot JJ summarised the principles applicable to apprehended bias (at [26][45]). GetSwift succeeded on the ground that a fair-minded lay observer might reasonably apprehend that the primary judge, consciously or subconsciously, might be influenced by extraneous information from the ASIC proceeding (extraneous information ground) (at [46]-[62]). However, the Full Court did not accept the ground that a fairminded lay observer might reasonably apprehend that, in hearing, considering, and forming views about the material in the ASIC proceeding, the primary judge might have prejudged the resolution of issues common to both proceedings (prejudgment ground) (at [63]-[69]).
Consumer law
Unconscionable conduct – whether Kobelt, precedent or statutory interpretation requires that exploitation or taking advantage of some pre-existing vulnerability, disadvantage or disability is a necessary element of statutory unconscionability
In Australian Competition and Consumer Law v Quantum Housing Group Pty Ltd [2021] FCAFC 40 (19 March 2021) the Full Court determined an important issue as to the meaning and application of statutory provisions that call for a standard of business conduct in Australia that is not, in all the circumstances, unconscionable, in this case s21 of the Australian Consumer Law (ACL) being Schedule 2 to the Competition and Consumer Act 2010 (Cth). The ACCC brought proceedings against Quantum Housing Group Pty Ltd and its sole director and secretary, alleging conduct that involved misleading representations in contravention of ss18(1), 29(1)(l) and 29(1)(m) of the ACL and that was unconscionable in contravention of s21 of the ACL. The respondents admitted the contraventions including unconscionable conduct under s21 of the ACL. The primary judge made orders including declarations for the contraventions of ss18(1) and 29(1) of the ACL and ordered penalties. However, the primary judge refused to conclude and to declare that the conduct was unconscionable. The ACCC appealed the failure of the primary judge to make a declaration as to unconscionable conduct.
The key issue in the appeal was whether, for conduct to be unconscionable under s21 of the ACL or cognate provisions such as s12CB of the ASIC Act, there is required to be present vulnerability or disadvantage in the person or persons to whom the conduct can be seen as directed and that such was exploited or taken advantage of. Allsop CJ and Besanko and McKerracher JJ held “[w] hilst some form of exploitation of or predation upon some vulnerability or disadvantage of people will often be a feature of conduct which satisfies the characterisation of unconscionable conduct under s21, such is not a necessary feature of the conception or a necessary essence in the embodied meaning of the statutory phrase” (at [4]; see also [78]-[93]). The Full Court’s judgment involved a deep analysis of the different reasons for judgment of the members of the High Court in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 (at [37]-[79]). Having done so, the Full Court held that the primary judge erred in his understanding and application of Kobelt. Allsop CJ and Besanko and McKerracher JJ “rejected the proposition that ratio or seriously considered obiter dicta of a majority of the High Court, indeed, of any justice of the Court in Kobelt (other than Keane J) requires in any case that for conduct to be unconscionable by reference to ss12CB and 12CC of the ASIC Act (or ss21 and 22 of the ACL) there must be found some form of pre-existing disability, vulnerability or disadvantage of which advantage was taken” (at [79]). The Full Court allowed the ACCC’s appeal and made a declaration of unconscionable conduct under s21 of the ACL.
Costs
Public interest litigation – whether depart from usual orders as to costs
In Bob Brown Foundation Inc v Commonwealth of Australia (No 2) [2021] FCAFC 20 (26 February 2021) the Full Court considered costs following the hearing of a separate question resulting in unsuccessful public interest litigation. The Full Court examined and applied the principles in Oshlack v Richmond River Council (1998) 193 CLR 72. Having regard to particular facts and circumstances of the proceeding, the Full Court departed from the usual order as to costs and held there should be no order as to costs.
Consumer law and civil penalties
Appeal from primary judge rejecting agreed penalty and imposing substantially higher penalty
Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49 (9 April 2021) concerned the pecuniary penalty imposed on Volkswagen for its admitted contraventions of s29(1)(a) of the ACL in relation to its deception of the Australian government and Australian consumers about the exhaust emissions of certain Volkswagen-branded motor vehicles which were imported into Australia for sale for about five years from January 2011 to October 2015. Volkswagen and the ACCC jointly submitted to the Court that a penalty of $75 million was an appropriate penalty for the contraventions. The primary judge found that the proposed penalty was manifestly inadequate and instead imposed a penalty of $125 million. The central issue raised by the appeal was whether the primary judge erred in rejecting the jointly proposed penalty and imposing instead the significantly higher penalty. The Full Court made observations about the nature of the primary judge’s decision (at [119]-[133]). Wigney, Beach and O’Bryan JJ rejected the ACCC’s submission that the primary judge’s decision was not discretionary and concluded (at [131]): “. . . The Court’s task in such cases is not limited to simply determining whether the jointly proposed penalty is within the permissible range, though that might be expected to be a highly relevant and perhaps determinative consideration. Nor is the Court necessarily compelled to accept and impose the proposed penalty if it is found to be within the acceptable range, though the public policy consideration of predictability of outcome would generally provide a compelling reason for the Court to accept the proposed penalty in those circumstances. The overriding statutory directive is for the Court to impose a penalty which is determined to be appropriate having regard to all relevant matters. The fact that the regulator and the contravener have agreed and jointly proposed a penalty is plainly a relevant and important matter which the Court must have regard to in determining an appropriate penalty. It does not follow, however, that the determination is not discretionary in nature”. However, the Full Court rejected Volkswagen’s various appeal grounds which in the main were supported by the ACCC. • The Full Court accepted that the primary judge erred in adopting an overly narrow interpretation of s224(2)(c) of the ACL and in not considering whether the absence of prior contraventions on the part of Volkswagen was capable of constituting a mitigating circumstance (at [137]). However, in the circumstances of this case
this could not have had any material effect on the ultimate penalty imposed (at [138]-[146]). • There was no error by the primary judge in finding that the agreed penalty of $75 million was not sufficient to achieve deterrence (at [147]-[167]). In determining this ground, the Full Court examined the circumstances where there may be a relationship between the penalty imposed and the profit derived from the contravening conduct (at [148][149]). • It did not follow that, in not accepting that the agreed penalty was an appropriate penalty and instead fixing a significantly higher penalty, the primary judge gave no or insufficient weight, to the agreement or settlement that had been reached between Volkswagen and the
ACCC, or to the important public policy consideration concerning the promotion of the predictability of outcome in civil penalty proceedings (at [168]-[173]). • There was no error in the way that the primary judge dealt with the penalties imposed on Volkswagen in overseas jurisdictions (at [174]-[184]). • The findings that were made by the primary judge in relation to harm to consumers were findings based on inferences that were open to be drawn, irrespective of the joint submission of the parties (at [185][192]). • Nor was there error in relation to certain matters that Volkswagen contended that the primary judge had regard but were extraneous or irrelevant matters (at [193]-[201]). • The penalty of $125 million imposed by the primary judge was not manifestly excessive (at [202]-[213]).
Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
Dr Michelle Sharpe
Castan Chambers, Melbourne
Constitutional law
In Palmer v Western Australia [2021] HCA 5 (24 February 2021) the High Court was required to consider whether the Quarantine (Closing the Border) Directions (WA) (Directions), which effectively closed the West Australian border from 5 April 2020, infringed s92 of the Constitution. The Police Commissioner for Western Australia issued the Directions under s67 of the Emergency Management Act 2005 (WA) (the Act). Section 67 allows an authorised officer to (among other things) “direct or, by direction, prohibit, the movement of persons . . . into, out of or around an emergency area or any part of the emergency area” during a state of emergency for the purpose of “emergency management”. A Minister may declare a state of emergency under s56 of the Act provided that the conditions enumerated under s56(2) are met. The Minister declared a state of emergency under the Act on 15 March 2020 (after the World Health Organisation declared COVID-19 a pandemic). The challenge to the Directions was brought by Clive Palmer (Palmer) and Mineralogy Pty Ltd, a company of which Palmer is chairman and managing director (the plaintiffs). Palmer regularly travelled between WA and his home in Queensland for business purposes. Palmer applied for, and was denied, an exemption under the Directions. The plaintiffs subsequently brought proceedings in the original jurisdiction of the High Court, in May 2020, seeking a declaration that “either the authorising Act and/or the Directions are invalid, either wholly or in part . . . by reason of s92 of the Constitution”. Section 92 of the Constitution provides, relevantly, “trade, commerce and intercourse among the States . . . shall be absolutely free”. The plaintiffs argued that the Directions imposed a burden on the freedom of intercourse among the Australian people by prohibiting crossborder movement of people. Alternatively, the plaintiffs argued that the freedom of trade and commerce guaranteed by s92 is contravened because the Directions imposed an effectively discriminatory burden with protectionist effect. The defendants (the State of Western Australia and the Police Commissioner) denied that either the Act or the Directions contravened s92 because, they argued, neither had the purpose of economically protecting Western Australia rather they had the legitimate purpose of (and were reasonably necessary to achieve) the protection of the population of Western Australia against risks arising from emergency situations. No agreement could be reached between the parties on the facts necessary to determine the plaintiffs’ claim by the High Court. Accordingly, the High Court remitted the issue to the Federal Court of Australia for hearing and determination pursuant to s44 of the Judiciary Act 1903 (Cth). On 25 August 2020, Rangiah J of the Federal Court found that the facts pleaded by the defendants, in support of their argument that the Directions did not infringe s92, had been proved. Importantly, Rangiah J held that the risk to the health of the Western Australian population was a function of two factors: the probability that COVID-19 would be imported into the population and the seriousness of the consequences if it was imported. Rangiah J concluded that, given the uncertainties about importation of the disease into Western Australia and the potentially serious consequences of the disease, “a precautionary approach should be taken to decision-making about the measures required for the protection of the community” (see [23]). The High Court unanimously (but in separate reasons) rejected the plaintiffs challenge to the Directions. As Gageler observed at [83], “The riddle ‘riddle of s92’ lies in the question begged by the constitutional text: ‘absolutely free from what?’” Citing Cole v Whitfield (1988) 165 CLR 360 at 394 and 398, Gageler J noted at [85] that it has been authoritatively determined that trade and commerce among the states is guaranteed by s92 to be absolutely free from “discriminatory burdens of a protectionist kind”. As to what amounts to discrimination, in joint reasons, Keifel CJ and Keane J explained at [31], “Discrimination in a legal sense involves a comparison of relative equals by which one is treated unequally, or of unequals treated equally”. The High Court was unanimous in finding that the Directions were discriminatory but did not infringe s92 because it was justified to protect the population of Western Australia from COVID-19. But where their Honours parted company was the test adopted to determine this justification. Kiefel CJ and Keane J and, in a separate judgment Edelman J, held that the proper test was the “structured proportionality test” – a rigid test involving three distinct steps (see [269]-[276]). Conversely, Gageler and Gordon JJ, in separate judgments, considered that the proper test for justification was “reasonable necessity”. The test involves an evaluative judgment as to the suitability and necessity of the legislation imposing the burden.
Class actions
Competing class actions
In Wigmans v AMP Limited & Ors [2021] HCA 7 (10 March 2021) the High Court was required to consider whether the Supreme Court of New South Wales had the power to choose between competing group proceedings as to which to allow to proceed on any basis other than on a “first-in-time” basis.
In April 2018, AMP executives gave testimony to the Financial Services Royal Commission to the effect that AMP had deliberately charged some of its clients fees for no service and that it had misled ASIC as to the extent of its conduct. Following this testimony, the value of AMP shares on the Australian Stock Exchange dropped sharply. Subsequently, and in quick succession, five separate open class representative proceedings were commenced on behalf of AMP shareholders who had invested in AMP during the periods of time in which they allege the company should have disclosed the information, revealed at the Royal Commission, to ASIC. The first of these representative proceedings was brought by the applicant (Wigmans). The last two group proceedings commenced were brought by the second respondent (Kolotex) and the third respondent (Fernbrook). Kolotex and Fernbrook later consolidated their proceedings (the Kolotex/Fernbrook proceeding). The head plaintiffs for each group proceeding brought an application to permanently stay the other group proceedings. The primary judge ordered that all of the group proceedings, save for the Kolotex/Fernbrook proceeding, be permanently stayed. Ostensibly, the primary judge made this order pursuant to ss67 and 183 of the Civil Procedure Act 2005 (NSW) (CPA) (which respectively empowers the court to stay proceedings and empowers the court to make any order the court thinks necessary to ensure that justice is done) and the inherent power of the Supreme Court (which encompasses both powers). The primary judge approached the determination of the stay applications by an assessment of the potential benefits expected to flow to group members in each representative proceeding. The trial judge proceeded by reference to the case management principles contained in the “overriding purpose” provided in s56 of the CPA and adopted a “multi-factorial analysis” of the kind endorsed by the Full Federal Court in Perera v GetSwift Ltd (2018) 263 FCR 92 at [195]. The eight factors, identified by the primary judge, as relevant to the determination of the stay applications included: the net hypothetical return to group members; the proposal for security for AMP’s costs; the nature and scope of the causes of action advanced; the size of the respective classes; the extent of any bookbuild (that is the process of joining a sufficient number of members with a sufficient claim value to make the funding of the group proceeding commercially viable); the experience of the legal practitioners and funders and the availability of resources; the state of progress of the proceedings; and the conduct of the representative plaintiffs to date. Applying these factors, the trial judge favoured the Kolotex/Fernbrook proceeding because of its superior proposal with respect to the provision of security for AMP’s costs and the proceeding was to be funded by the lawyers themselves on a “no win, no fee basis”.
Wigmans appealed unsuccessfully to the Court of Appeal of New South Wales. The Court of Appeal found no error in the primary judge’s reasons, although the Court considered that the determination of the stay applications ultimately turned on whether the ends of justice required such a remedy rather than case management principles. Wigmans then appealed to the High Court. In a narrow 3:2 split Wigmans’ appeal failed. Kiefel CJ and Keane J (in the minority) did not consider that either the CPA or the Supreme Court’s inherent power to prevent abuse of its processes authorised the Supreme Court to choose between group proceedings. Their Honours also expressed the view at [15] that the Court’s “fundamental function as the independent arbiter of the merits of the group members’ claims as between them and the defendant sits awkwardly with the assumption, without legislative direction, of a role whereby the Court makes a reputational investment in the choice of sponsor”. Their Honours stated at [43] that the courts below should have determined the stay applications by reference to the principle that it is prima facie vexatious to commence an action if an action is already pending in respect of the same controversy in which the same relief is available. And, on that basis, given that the Wigmans proceeding was first in time, the Kolotex/Fernbrook proceeding should have been stayed. The majority (Gageler, Gordon and Edelman JJ) reached a very different conclusion. The majority considered at [73] that s67 of the CPA was a broad power, unconstrained by any particular criteria, other than having regard to the overriding purpose set out in s56. Similarly, the majority concluded at [94] that the common law does not support a first-in-time rule or presumption. Instead, the majority observed, multiple suits remain to be resolved by the exercise of the Court’s discretion informed by all the relevant circumstances and referred to the approach adopted in equity as illustrated in cases such as McHenry v Lewis (1822) 22 Ch D 397. Accordingly, the majority held at [118] that there was no error in the primary judge’s approach but noted that this was not the only manner in which a court might have resolved the issue. It is convenient to note here that the majority, also expressed the view at [86] and [97] that the “first-in-time”, for which Wigams contended, would be “unworkable” and would lead to “an ‘ugly rush’ to the court door”.
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.
