Brief November 2014 by The Law Society of Western Australia

Volume 41 | Number 10 | November 2014

COMPLEX TESTAMENTARY TRUSTS AND ESTATE PLANNING

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Contents

GO DIGITAL!

Volume 41 | Number 10 | November 2014

Take me with you.

14 02

President’s Report

Freeman of the Town

Konrad de Kerloy

Pam Sawyer

Editorial

Rebecca J Lee

Executive Director’s Report

Speech on the occasion of the Launch of the Report of the 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce

David Price

Justice Janine Pritchard

Being demanding

Gino Dal Pont

Book review of Non-adversarial justice by Michael King, Arie Freiberg, Becky Batagol, Ross Hyams

Overview of the 2014 Quality Practice Standard (QPS) Survey Results

Review by Susannah Hill

Family Law Case Notes

Thomas Hurley Case Notes

Law Council Update

Professional Announcements

New Members

Classifieds

Events Calendar

YLC Ball Rêver de Paris!

Cheyne Beetham

FEATURE Complex testamentary trusts and estate planning

Matthew Burgess

LPCC Current Issues

Legal Profession Complaints Committee

Notre Dame Law Alumni Sundowner

Matthew Keogh

2014 Mock Trial Competition Grand Final

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. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by The Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Eleanor Jackson Business Development Executive Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Communications Officer Tanya Holzmann Graphic Designer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

EDITOR Rebecca Lee

PRESIDENT Konrad de Kerloy

EDITORIAL COMMITTEE Erin Blight, Ronald Bower, Gregory Boyle, Andrew Cameron, Rebecca Collins, Rebecca Lee, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Julian Sher, Moira Taylor

SENIOR VICE PRESIDENT Matthew Keogh

PROOFREADERS Rebecca Lee, Tanya Holzmann Brief is the official journal of THE LAW SOCIETY OF WESTERN AUSTRALIA Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: www.lawsocietywa.asn.au ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

VICE PRESIDENT Elizabeth Needham TREASURER Alain Musikanth ORDINARY MEMBERS Brendan Ashdown, Marie Botsis, Hayley Cormann, Brahma Dharmandanda SC, Nathan Ebbs, Adam Ebell, Pamela Hass, Nicholas van Hattem, Greg McIntyre SC, Denis McLeod, Clinton Russell COUNTRY MEMBER Cameron Syme JUNIOR MEMBERS Emma Cavanagh, Hayley Ellison, Rosie Hill IMMEDIATE PAST PRESIDENT Craig Slater

report

President's Report Konrad de Kerloy, President, The Law Society of Western Australia

VALE - THE HON DAVID MALCOLM AC CITWA KCSJ QC It is with great sadness that the Society learnt of the passing of the Honourable David Malcolm AC CitWA KCSJ QC. David was a long standing member of the Society and served with distinction on a number of its committees, its Council and as its Vice President (19861988) before his appointment to the Supreme Court of Western Australia as Chief Justice, a position which he occupied with distinction between 1988 and 2006. He was made a Life Member of the Society. David was a giant of the Western Australian legal profession and an outstanding Australian. He will be remembered as a person of enormous intellect, energy, innovation and humanity who made an extraordinary contribution to the administration of justice and to the community of Western Australia. He served voluntarily on many committees, trusts and foundations including as Chairman, Judicial Section of LAWASIA; Chairman, Federal Practice and Litigation Section, Law Council of Australia; Chairman, Special Airborne Services Trust; President, Scouts Association Board; Trustee for Youth at Fairbridge (WA) Inc.; Trustee, Francis Burt Law Education Centre and Museum; President, Guilford Grammar School Foundation; Chairman, Guilford Grammar School Board; Deputy Chairman, Woolaston Theological College; member of the UWA Senate; and Deputy Chairman, Board of Governors, Anglican Schools Commission. David was a Rhodes Scholar. On his return to Western Australia in 1962 he was made a partner of Muir & Williams on his admission day, 21 April. He thereafter set about establishing that firm’s reputation as one of the preeminent firms in Western Australia. Muir & Williams eventually went on to become, Muir Williams Nicholson &

02 | Brief November 2014

Co and subsequently Muir Williams Nicholson with Freehill Hollingdale & Page; Freehill Hollingdale & Page; Freehills; and now Herbert Smith Freehills. In 1978, overtures were made by Freehill Hollingdale & Page to Muir Williams Nicholson regarding a joint venture. David, together with a number of other Perth partners saw the possibilities of an alliance between an eastern states’ firm and a Western Australian firm. Today it is difficult to imagine how controversial and innovative that alliance was. The Muir Williams Nicholson partners were divided, the senior partner of the day, Bill Elphick warning, when he eventually gave way to the enthusiasm for the alliance of the younger aforementioned partners, and David Malcolm in particular: “Alright, I’ve only got a few years to go. But I tell you what. They’ll be running you inside five years and you won’t be running anywhere.” Both men were right! But the alliance set a model which other firms followed. That model saw the emergence of the large fully integrated Australian firms which has seen some of those firms also become part of international multijurisdictional practices. His funeral service, which David Price and I attended on behalf of the Society, was a dignified affair held at St George’s Cathedral. Two heartfelt (and at times humorous) eulogies were delivered by his wife Kaaren and his long-time friend and fellow judge, the Honourable Neville Owen. The service was a fitting tribute to the man, his achievements and his service to the community. He will be deeply missed by his many friends and colleagues and the legal profession in general.

WELCOME – THE HONOURABLE JUSTICE ROBERT MITCHELL On 15 October 2014 I attended a Ceremonial Sitting of the Supreme Court of Western Australia and extended the Society’s congratulations and best wishes to Justice Robert Mitchell on his appointment as a judge of the Supreme Court. Justice Mitchell’s appointment is welcomed not only by the Society but also by the legal profession in general. There is, of course, very good reason why that is so. His Honour is not only an exceptional lawyer but he is also is also a very well-liked and respected member of the legal profession. Justice Mitchell completed the degree of Bachelor of Jurisprudence with first class honours at the University of Western Australia in 1989. While completing the degree of Bachelor of Laws part-time, he served as professional assistant to the then Solicitor General for Western Australia, the Honourable Kevin Parker AC. His Honour has worked for the State in various capacities ever since graduating with a Bachelor of Laws from the University of Western Australia in 1991. His Honour obtained a Master of Laws with distinction from the same university in 1997. Justice Mitchel has been a long time member of the Society and has made a significant contribution to its committees. His Honour is a current member of the Environment, Town Planning and Local Government Committee and was previously a member of the Administrative, Constitutional and Migration Law Committee. Justice Mitchell joins the Supreme Court at a time of unprecedented and unrelenting demand on its human resources. In my welcome speech I commented “I am afraid to say it your Honour but your future on the bench offers, to adapt a well-known saying only ‘toil, tears and sweat’”. The Society

is very pleased that the government has recognised the need for additional resources to meet the pressing demands on the Court. The Society has no doubt that Justice Mitchell is very well adapted to shoulder these demands and that he will you will bring intelligence, insightfulness, grace and courtesy to his judicial office. WELCOME – HER HONOUR JUDGE VICKI STEWART On 29 October 2014 I attended a Ceremonial Sitting of the District Court of Western Australia and extended the Society’s congratulations and best wishes to Judge Vicki Stewart on her appointment as a judge of the District Court. In some jurisdictions judges are selected by the Judicial Appointments Commissions. The English Commission has identified five core qualities and abilities which an aspirant for judicial office should possess. They are (i) intellectual capacity; (ii) personal qualities; (iii) an ability to understand and to deal fairly; (iv) authority and communication skills; and (v) efficiency. Judge Stewart has all those core qualities and abilities. They have been displayed by her Honour for over a decade as a highly regarded Magistrate and before that for some years as a parttime Childrens’ Court Magistrate . Judge Stewart has three personal qualities which make her a very worthy appointment to the District Court. They can be summed up in three words: courtesy, common-sense and compassion. Those qualities have been drawn on by her Honour in the challenging roles as head of the Drug Court and subsequently as the inaugural head of the START Court, which is responsible for administering the Mental Health Court Diversion and Support Program. Judge Stewart’s appointment is particularly welcomed by the Society in a year when two very important reports have been published which deal with the retention and advancement of women in the legal profession, the National Attrition and Re-engagement Study (NARS) prepared by the Law Council of Australia and the 2014 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Report prepared by the Women Lawyers of Western Australia. Both reports highlighted statistics which show a considerable gender imbalance in senior positions in the legal profession,

including on the bench. The Society has been advocating strongly and continues to advocate strongly for gender imbalance on the bench to be addressed by the appointment of women based on merit. The Society is therefore very pleased that the government has appointed a person of the calibre of Judge Stewart. LAWYERS FOR A CAUSE On Saturday, 25 October 2014, members of the legal profession donned running shoes and cycle wear in the name of raising money for the Chief Justice's Law Week Youth Appeal Trust. In its third year, this biennial charity sporting event, coordinated by the Law Society of Western Australia, saw over 150 members of the legal profession take part in a 5km walk, 10km run or 40km cycle all along the Swan River. Participants consisted of 53 runners, 86 walkers, 17 cyclists and 9 volunteers from the Society. Although the weather forecast and the clouds looked ominous at 7.45am, participants showed up for registration outside the Royal Perth Yacht Club in Crawley and commenced their sporting leg of choice. They all returned to the club at 10am for a brunch where the charitable trust's patron, the Honourable Wayne Martin AC, Chief Justice of Western Australia, reminded participants of the importance of giving back to the community, especially for causes that assist in diverting youth away from the criminal justice system.

monies over the years have included the Noongar Patrol Outreach Service, Beyond Blue, Perth Inner City Youth Service Inc., Turkey Creek Branch ELECTION OF COUNCIL FOR 2015 Elections are well underway for six ordinary members to be elected to the 2015 Council. It is particularly pleasing that 11 members of the Society, representing a wide cross-section of the legal profession, have nominated for the six positions. The ability of the Society to successfully lobby and promote the interests of its members depends, in part, on the experience and diversity of its Council. I am sure that the 2015 Council will benefit from the considered wisdom which the new councilors will bring to the decision making of the Council. I extend my personal thanks for all those practitioners who have put themselves forward for election to these important positions. Congratulations to the following members of Council who have been elected unopposed. Executive President Matthew Keogh Vice President Elizabeth Needham Vice President Alain Musikanth

The event was a great way for members of the legal profession to raise money as well as enjoying the magnificent views of the Swan River and the City. The generous support of our sponsors meant that all $14,400 contributed by the participants will go to the Chief Justice’s Law Week Youth Appeal Trust.

Junior Members

The Society gives thanks to the event's founding premium sponsor Bradly Bayly Legal, the continued supporting sponsors Marsh and Clayton Utz and welcomed new sponsor Unisearch Expert Opinion Services.

The 2014 Annual General Meeting of the Society was held on Tuesday, 28 October 2014. The agenda of this meeting and the Annual Report including financials is now available on the Society’s website at lawsocietywa.asn. au/annual-general-meeting. A summary of the Annual Report is in the Executive Director’s report on page 6.

This Chief Justice Law Week Youth Appeal Trust was established in 2001 by the Society with the objective ‘to create an ongoing charitable fundraising effort by legal practitioners to support youth charities, including (but not limited to) those for youth with disabilities and, in particular, youth support services that assist in diverting youth from the criminal justice system.’ Beneficiaries of Trust

Emma Cavanagh Ray Christensen Rosie Hill 2014 ANNUAL GENERAL MEETING

editorial

Gender Bias and Trusts Rebecca J Lee, Barrister, Francis Burt Chambers, Editor, Brief Journal I have long considered November a rather daunting month, as it’s essentially the last chance to achieve one’s goals for the year before the silly season kicks in. I hope you are well on the way and, far from feeling daunted, already looking toward next year’s goal posts. In any case, may this penultimate issue of Brief for 2014 help guide you, or at the very least provide some guilt-free respite from quotidian stresses.

Australia is very different in 20 years’ time.”

LADY JUSTICE

Those working in wills and probate are in for a treat this month: a learned and detailed analysis of complex testamentary trusts by View Legal’s Matthew Burgess. Many readers will find this article useful, however, not only because trusts can have such far-reaching legal consequences, from family to property law, but also because we are all, surely, hoping to have something squirrelled away at the end. As Mr Burgess points out, increasingly sophisticated estateplanning strategies have been developed lately, in response to changing times: the accumulation of considerable wealth, including by Baby Boomers, while personal and business relationships are often shorter, and potentially more complex. Meanwhile, laws have changed, and there is ongoing uncertainty about tax considerations (though it still remains true that nothing is more certain than death and taxes). Read on for an overview of variations on the widely accepted testamentary discretionary trust approach, including cascading trusts that efficiently pass capital to multiple generations of a family. Among this article’s top tips: South Australia looks favourably upon perpetuities.

Women Lawyers of Western Australia (WLWA) recently unveiled their 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report, which examines the extent that gender bias exists in this state’s law, administration of justice and legal profession. When the original report was released 20 years ago, there were no female judges on our Supreme Court, so an obvious indication of the progress that has been made was the choice of speaker at the review report launch: her Honour Justice Janine Pritchard. The numbers on the Supreme Court bench remain heavily dominated by male justices, however – perhaps a fair indication of the limit of that progress. As a female practising in the West since 1994, and a former WLWA president, I was naturally a very interested launch attendee, but as Justice Pritchard observed on the occasion, “In the context of our law, in its practice and in its administration, gender equality is not a women’s issue, it is a justice issue.” For this reason, her Honour’s speech is reproduced on pages 36-39. It is a useful window onto the historical context, aims and findings of the new report, which examines key areas of concern such as Aboriginal women and girls, restraining orders, and career paths for women in the legal profession. I hope that after reading this speech, you will be inspired to visit the WLWA website (wlwa.asn.au) and download a copy of the report, which includes 197 recommendations. As current WLWA president Cathryn Greville has said, “Let’s ensure the picture for women in Western 04 | Brief November 2014

Congratulations to the many (already very busy) people who volunteered their time and expertise to bring this important review report about, and I hope to see news about the progress of their recommendations in future issues of Brief. WHERE THERE’S A WILL THERE’S A WAY

FROM THE LPCC Some matters that the Legal Professional Complaints Committee investigated recently have prompted a couple of reminders that will be valuable to a great many practitioners. Firstly, settlement conferences, including pre-trial and mediation, are, with few exceptions, in confidence. That is, any statements or material from such conferences can’t be used directly in later proceedings

– though they could prompt a line of enquiry that leads to admissible evidence. Secondly, practitioners visiting clients in correctional facilities are bound by legislation, as well as the standing orders of specific institutions, concerning who may be visited, and what may be brought onto the premises. It is all too easy to forget that mobile or USB stick in your bag, but remember that contraband can have serious consequences – perhaps even jail time, rather ironically. AND NOW FOR THE GOOD NEWS ... After all that heavy mental lifting, I hope you will also enjoy the good news we have gathered this month, including dispatches from the Young Lawyers Committee’s Paris-themed ball, and Notre Dame School of Law Alumni’s inaugural soiree. We are also pleased to report positive results from the Society’s recent Quality Practice Standard survey, as respondents expressed high to very high satisfaction with this accreditation scheme. Satisfaction with non-adversarial approaches to justice also seems to be high according to our reviewer, at least among the judiciary and academia, and there is already a new edition of the 2009 book Non-Adversarial Justice, suggesting that this area of law is both developing rapidly and gaining support. Finally, I join every Society member in congratulating one of our current councillors, Denis McLeod, on his latest honour: Claremont’s rarely bestowed Freeman of the Town award. Our report on the ceremony suggests that the McLeods managing partner and UWA Adjunct Professor has discovered the day’s 25th hour, or has a busy clone or two. Whatever the case, well done Denis!

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

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This leading top tier firm has an established client base which includes banks and large financial institutions, property developers and property agents. An opportunity currently exists for a Litigation Lawyer seeking career development. Your role will focus on a mix of contractual and property disputes, insolvency and some broader commercial litigation matters. Working with the Partners, you be responsible for managing your own files and offering valuable mentoring and supervision to junior Lawyers. To be considered for this stand out opportunity, you’ll currently have 2-5 years PAE with strong and demonstrated expertise in commercial litigation. Client focused and results driven, you are ready to move forward in your career. In return you’ll work in a well resourced firm and will be rewarded with a warm, professional environment, competitive package and career progression. contact amy Borthwick at amy.borthwick@hays.com.au or 08 9254 4598.

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report

Executive Director's Report David Price, Executive Director, The Law Society of Western Australia As mentioned by the President in his report, the Society held its Annual General Meeting last month and it is my pleasure to summarise some of the highlights of the work done by the Society over the last financial year. You can view the full 2013/2014 report at lawsocietywa.asn.au/ annual-reports. NATIONAL LEGAL PROFESSION REFORM

LIMITATION OF LIABILITY SCHEME On 1 July this year, the Society launched its Limitation of Liability for the benefit of its members. The scheme mirrors the offering of other Law Society’s around the country and 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.

Late last year, the Victorian and New South Wales governments agreed on a uniform scheme for regulation of the legal profession in their two States. The uniform scheme is expected to come into force in Victoria and New South Wales early next year.

SUBMISSIONS

•

Use of Technology in District Court

During the course of this year the Society has undertaken a review of the uniform scheme and considered whether it would be appropriate for Western Australia.

•

Review of the Native Title Act 1993

•

Productivity Commission Interim Report on Access to Justice April 2014

The review has taken into consideration whether, and to what extent, enacting legislation to apply the Uniform Law in Western Australia would:

•

Statutory Review of The Prohibited Behaviour Orders Act 2010

•

Review of Continuing Professional Development Scheme by Legal Practice Board of Western Australia

•

The Law Council of Australia’s National Attrition and Re-engagement Study

•

PI Insurance for Pro Bono Legal Work - Legal Practice Board of WA

(a) address the concerns expressed by the Attorney-General of Western Australia in a speech which he delivered in November 2011; and (b) be consistent with the 13 points articulated in the Law Society’s National Regulatory Framework Policy Positions (LSPPs). NEW STRATEGIC PLAN In May 2014, the Society adopted a new Strategic Plan which took effect from July 2014. The plan outlines strategic and operational priorities to determine three key outcomes for the Society over the next four years. The Society will continue to work to be the essential membership for the legal profession by delivering against the three key strategic priorities of: •

Strong Advocacy;

•

High Value Services; and

•

Organisational Excellence.

The Strategic Plan is available on the Society’s website for members who would like more information.

06 | Brief November 2014

The Society made a total of 54 submissions to various State and Federal government departments and the Law Council of Australia on topics including:

EXECUTIVE MEETINGS The Society Executive also held a number of meetings on a variety of important matters. Meetings were held with: •

Federal Attorney General George Brandis QC

•

Attorney General of Western Australia, the Hon Michael Mischin MLC

•

The Hon Wayne Martin AC, Chief Justice of Western Australia

•

Legal Aid Western Australia

•

The Deans of Law Schools

•

Western Australian Bar Association

•

Family Court Judges and the Family Law Practitioners Association

•

President Elect and Secretary General of the Law Council of Australia

•

The Department of the Attorney General

•

Representatives of the Large Law Firm Group

MEMBERSHIP The Society achieved another record membership number reaching 3,583 members. The bi-annual membership survey was completed and overall satisfaction ratings have increased by 21 percent over the past 5 years, while ratings for high value membership have increased by 17 percent. The production of Brief was also successfully brought in-house. PROFESSIONAL DEVELOPMENT The Society’s Compulsory Professional Development (CPD) programme successfully re-launched its eLearning platform, which allows members of the profession to access CPD anytime, anywhere. CPD delivered 64 face-to-face seminars and 12 interactive seminars via the eLearning platform. There were 3,017 participants in CPD seminars at the Law Society, indicating a 6 percent increase in participation from the previous year. COMMUNITY SERVICES Council received the Doing the Public Good feasibility study of pro bono models for Western Australia in November 2013 and approved the recommendations which included that an enhanced Law Access business plan be prepared and released for consultation. The draft business plan has now been also been approved. LAW MUTUAL (WA) Over the last 12 months, Law Mutual (WA) has increased the amount of time and resources allocated to risk management activities and services. Law Mutual’s focus has been on developing a range of services available to practitioners and firms. These services and activities have been designed to reflect the different levels of expertise providing practical and useful information to minimise the risk of claimsprone situations arising and improve the way Insured practitioners handle these situations if they do arise.

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ethics

Being demanding Letters of demand must avoid abuse of lawyer authority and power Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Membership of a profession evidently brings with it certain privileges. Otherwise, there may be little to distinguish a profession, or calling, from any other occupation. There would, moreover, be little explanation for the burgeoning claims to professional status across a wide variety of occupations. In the context of the legal profession, the core privilege is a monopoly on an entitlement to be held out as providing legal advice, or at least most forms of legal advice, whether or not for reward. The special skill and learning that underscores professional status ordinarily creates, at least in the legal field, a relevant inequality between lawyers and non-lawyers. It serves both to give the spoken or written word of lawyers a degree of authority, in a legal sense, and to vest in members of the profession a power in dealing with the legal system which exceeds that available to the layperson. As history reveals human nature is hardly immune from abuse of authority or power, it stands to reason lawyers may face temptations of this kind. This in turn explains why the law imposes fiduciary obligations on lawyers vis-à-vis their clients. It also explains the various professional constraints to which lawyers are subjected in dealing with unrepresented litigants.1 The ‘no contact rule’, which prohibits lawyers from making direct contact with an opponent who is legally represented, is likewise underscored by a concern to avoid abuse of power or authority. Consistent with this theme, it behoves lawyers to take care as to the use of their letterhead. It has been judicially observed, to this end, that “the use, by a practitioner, of his or her letterhead, in correspondence with a member of the public, may be a relevant consideration in the determination of whether the practitioner has unfairly used their professional position in order to gain a benefit over, or to intimidate, a member of the public”.2 If the lawyer is acting for himself or himself in the matter, and this 08 | Brief November 2014

is clear in the relevant correspondence, there may be little unethical in using the practice letterhead. The position may be different, however, if the evidence reveals that the letterhead is used chiefly in an attempt to flex his or her (perceived) legal authority as a lawyer. In instances where the lawyer is not a party to the matter, the issue has of late seen ventilation, on at least two separate occasions, in the specific scenario of lawyers who have allowed debt collection or mercantile agencies to utilise law practice letterhead in communicating with (alleged) debtors.3 On the most recent of those occasions, the Victorian Civil and Administrative Tribunal perceived “a significant difference in impact between a letter of demand from a debt collection agency, and a letter of demand from a solicitor”.4 The tribunal explained, “[t]he fact that a solicitor is acting in the matter and has sent a letter of demand on behalf of a client would generally signify that the matter has become more serious for the person alleged to owe the debt; that it has been escalated” and thus “signify that the matter is one step closer to legal proceedings”.5 Moreover, the fact that a lawyer has been engaged, and has been willing to write a letter of demand, brings with it the inference that the claim in question has substance. Though many laypersons may be unaware of it, the modern professional requirement not to pursue cases without reasonable prospects of success feeds into the legitimacy of this expectation. In each of the two cases the correspondence had contained false or misleading statements as to the entitlements of the (alleged) creditors, thus highlighting the need for lawyers also to vet carefully any correspondence being sent on their letterhead. The general trend of consumer protection law towards a more rigorous evaluation of conduct capable of being misleading or deceptive is hardly a matter from which lawyers, in professional practice,

can be immune.6 Once an exaggerated, inaccurate or even unfounded claim translates to the practice letterhead, there is no room to avoid a disciplinary consequence merely by pleading that it reflected client instructions. In such a scenario, the lawyer is no mere ‘hired gun’ or cipher through which to implement client wishes. It is no defence to plead that the letter was written by the relevant mercantile agency. Importantly, ethical goalposts may well have shifted in time. In one of the two decisions the tribunal accepted, in line with submissions from the relevant legal regulatory body and the Australian Competition and Consumer Commission, that some forms of letters of demand that in the past may not have resulted in disciplinary or regulatory action against lawyers now will.7 For instance, while it may once have been acceptable for lawyers to claim their costs incurred in writing letters of demand as well as the debt itself, this view can no longer be maintained. Such a practice is nowadays seen to be both misleading and an illegitimate abuse of the lawyer’s authority. Ultimately, the modern legal response aligns with professionalism being more about responsibility than about power. NOTES

See G E Dal Pont, Lawyers’ Professional Responsibility, 5th ed, Lawbook Co, 2013, pp 719–21.

Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 at [54] per Murphy JA.

Legal Services Commissioner v Sampson [2013] VCAT 1177; Legal Services Commissioner v Nomikos [2013] VCAT 1682.

Legal Services Commissioner v Nomikos [2013] VCAT 1682 at [521].

Legal Services Commissioner v Nomikos [2013] VCAT 1682 at [522].

See, for example, Australian Competition and Consumer Commission v Sampson [2011] FCA 1165.

Legal Services Commissioner v Sampson [2013] VCAT 1177 at [35].

Overview of the 2014 Quality Practice Standard (QPS) Survey Results To date, the QPS scheme has attracted firms of all sizes and across all practice areas. Recently the Law Society of Western Australia conducted an email survey of QPS certified firms to better understand the types of firms attracted to the scheme and to ascertain the firms’ satisfaction on a number of criteria associated with the provision of the QPS certification scheme. The responding firms expressed high to very high satisfaction in the survey, on topics that included the training provided, the Society’s administrative support and the audit performance. The firms that responded to the email survey were mainly small to medium in size. The majority of the clients of the responding firms were individuals or small companies. Certification gives some comfort to those clients who are not necessarily sophisticated users of law firms. The type of work undertaken

by responding QPS certified firms tended to fall into two distinct areas: general commercial - civil, commercial, property and family law and associated work - family, probate. There is a lot of competition in these areas and QPS accreditation may give the certified firms a marketing edge. Responses suggested that the QPS accreditation is an alternative to more high-level quality assurance certificates requiring ISO 9001 compliance. It is very encouraging to note that all responding firms believed the QPS certification scheme to be an effective management tool. The responses suggested QPS firms are interested in assistance with effective information barriers, file and data retention and, managing and recording CPD obligations. The responses also provided assistance on the question of the costs associated with preparing a firm

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for accreditation, the use of advisors to do that and the areas where the Society could assist. In addition to the general QPS survey, the Society also conducted exit surveys following the QPS compliance audits. The audit survey was designed to ascertain the firm’s audit experience. All responses received to date confirmed that firms find the audit process very positive and valuable. The Law Society of Western Australia thanks all participants who responded to the surveys. The responses received will assist the Society to tailor developments and services in the future. For more information about QPS, visit the Society's website lawsocietywa.asn.au/ quality-practice-standard. Alternatively, contact Francesca Giglia (08) 9324 8606 or via email qps@lawsocietywa.asn.au.

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Young Lawyers Ball

Rêver de Paris!

We’ve all spent long days and nights in our offices, glancing out the window (or perhaps more accurately, twisting and leaning to peer through an internal window/door, across (and down) the hall and through the frustratingly off-centre window of the partner’s office) dreaming of a holiday in one of the most romantic cities on Earth … Paris! Well on Saturday, 20 September 2014, nearly 400 young lawyers and their lovers were able to have a night where the dream of Paris, of youth splendour and ageless charm, became a reality. The grand ballroom at the Hyatt on the Swan River was transformed into a grand ballroom of the Louvre overlooking the Seine. The ladies of the law took to the Parisian theme with vigour, turning out in frocks that would not have been out of place on the Champs Elysees. Not to be outdone, the men shone in two and three piece suits, monogrammed pocket squares and shoes so shiny you could see the Sacre Coeur reflected in the leather. As the night wore on, and after three courses of delicious, French-inspired food, lawyers and lovers alike took to a dance floor only a few metres from the twinkling lights of la Tour Eiffel to lose themselves in an evening of music, fun and frivolity. The YLC would like to thank KBE Human Capital, Bellanhouse Legal and Centia Private Financial Office for their sponsorship. The YLC hopes that all of its guests had a wonderful, magical evening, Rêver de Paris!

society events

12 | Brief November 2014

X E L P M CO S T S U R T TARY

N E M A T S TE G N I N N A L P E T A T S E AND AUGUST 2014

Matthew Burgess Director, View Legal Pty Ltd In recent years, the need for effective structuring of business and personal assets has been brought into sharp focus for high net worth individuals and business owners. Fundamental changes in the law, the vast amounts of wealth accumulated within superannuation funds and the shortening lengths of both business and personal relationships have necessitated the evolution of estate planning structuring beyond traditional formats. A significant factor in the changing face of estate planning is the transfer of wealth from Australia’s ‘baby boomer’ generation. Statistically, this segment of the population is by far the wealthiest and best educated in Australia’s history. Consequently, far more sophisticated estate planning strategies are being developed in order to minimise the ability for wealth to be

attacked by creditors, former spouses, business associates and disgruntled beneficiaries. While the marketplace has largely accepted the benefits of using testamentary discretionary trusts (TDT) to pass wealth efficiently, the range of options that the testamentary trust can provide and the advantages that variations from a ‘standard’ testamentary trust present can easily be overlooked. It is more often the case that the decision to utilise testamentary trusts is the beginning rather than the end of the estate structuring process. The focus of this paper is on the increasingly common variations sometimes referred to as ‘master’ testamentary trusts, and will include a consideration of the alternative meanings, common purposes and taxation treatment of these structures.

feature

testamentary trusts as ‘will trusts’. While this term is a relatively useful plain English label, it is applied in defiance of the reality that all wills effectively contain terms of a trust, with the executors as trustees and the inheritors the beneficiaries. REVIEW OF TESTAMENTARY TRUSTS Testamentary trusts usually refer to a more extended and operative trust arrangement than the bare

At its simplest, a testamentary trust is a and TDT may be summarised as follows: estate then held by the trustee of the trust created by any will. Most testamentary trusts are TDTs operating not unlike ‘normal’ inter vivos trust that is formed on the death of the will TDT. Essentially, estatewith is administered trusts, the complete classes of potential beneficiaries, extensive powers and unfettered maker. The terms of the trust are set out discretionary in by the concluding with the discretions as executor, to distributions of income and capital. the deceased’s will. For this reason, estate designated assets or portions of the planners often refer to testamentary trusts A timeline of the administration of an estate and TDT may be summarised as follows: as ‘will trusts’. FIGURE 1 While this term is a relatively useful plain-Figure 1 English label, it is applied in defiance of the Assets of will reality that all wills effectively contain terms maker Vesting date of Trust of a trust, with the executors as trustees Death Assets and the inheritors the beneficiaries. of Estate

Testamentary trusts usually refer to a more extended and operative trust arrangement than the bare trust created by any will. Most testamentary trusts are TDTs, operating not unlike ‘normal’ inter vivos discretionary trusts, complete with classes of potential beneficiaries, extensive powers and unfettered discretions as to distributions of income and capital.

Executorship period

TDT

Full range of discretionary beneficiaries Debts

 

A timeline of the administration of an estate

Essentially, the estate is administered by the executor, concluding with the designated assets or the estate then held by thetrusts trustee of the TDT. MatthewCOMMON Burgess Complex testamentary & estate planning VARIATIONS AND ISSUESportions WITH of SIMPLE TDT STRUCTURES

Multiple TDTs

pass control to the children of that

3 Common variations and issues with simple beneficiary on their death. This flexibility It is not uncommon for each intended beneficiary to become the trustee of their TDT ‘own’ TDTstructures (Figure 2).

can:

(a) prevent the potential for family provision application in most states, except, potentially New South Wales; and

This is often desirable because it is easy to delineate what the beneficiary 3.1 isMultiple TDTs receiving, i.e. instead of receiving (b) have the effect of passing the one-third control of an entire estate, the of the TDT‘own’ structure ‘down 2). person is in sole control of a TDT that to becomebenefits It is not uncommon for each intended beneficiary the trustee of their TDT (Figure the line’ of descendants of the holds one-third of the estate, with the original patriarch and matriarch. distribute the income ortocapital This ability is oftento desirable because it is easy delineate what the beneficiary is receiving, i.e. instead of of the trust tocontrol themselves or family receiving one-third of an entire estate, the person is in sole control of a TDT that holds oneMatthew Burgess 2014 as with the the beneficiary sees fit. the©income third members of the estate, ability to distribute or capital of the trust to themselves or family members as the beneficiary sees fit.



Testator

 Beneficiaries

TDT #1

TDT #2

TDT #3

Another common benefit is that any remaining assets of a TDT (i.e. not distributed out of the TDT during the lifetime of the beneficiary), will normally pass control to the children of that beneficiary on Another common benefit is that any Multigenerational issues for single their death. This flexibility can: a.

remaining assets of a TDT (i.e. not TDTs distributed out of the TDT during the prevent the potential for family provision application in most except potentially The basicstates, transparency of a ‘oneNew TDTSouth lifetime of the beneficiary), will normally

Wales; and b.

If one spouse dies leaving the estate to the other (as is most often the case), one TDT is often formed (Survivor’s TDT). This scenario is complicated significantly where the surviving spouse outlives the other for an extended period, due to the likelihood of remarriage and (sometimes) further children. The main, conflicting, issues that arise in this regard are: (a) the surviving spouse cannot ‘write a will’ for the assets held in the survivor’s TDT, as they are not personal assets. This issue can be managed to some extent by careful passing of trust control mechanisms;

FIGURE 2

Figure 2



per main beneficiary’ approach can be complicated by the reality of most nuclear families, particularly those with baby boomer patriarchs and matriarchs, because of the nature of trusts.

16 | the Brief have effectNovember of passing the2014 benefits of the TDT structure ‘down the line’ of descendents of the original patriarch and matriarch.

(b) often the surviving spouse can distribute the assets out of the survivor’s TDT at any time; which means the assets may be consumed or bequeathed according to the spouse’s will; and (c) the spouse that dies second could gift their assets (via their will) to the originally created survivor’s TDT. On death of the surviving spouse (which, as noted, may occur either in quick succession or alternatively many years after the death of the other) the single TDT model creates logistical and administrative issues where the couple have more than one child. In particular,

Matthew Burgess the structure of the roles of trustee, appointor and beneficiary will be Figure 3 relevant.

Complexfeature testamentary tru FIGURE 3

The complications with a single TDT are often exacerbated the more children there are. The issues are often wider than just being ‘locked in’ and having differing ideas as to investing and distributing trust assets. For example:

 

Trust





Single TDTs only partially solve this problem if control of the spouse’s TDT created on the death of the first spouse is to be passed to the children of the first marriage.

3.4 ‘Hybrid’ solutions

‘Cougars’ and ‘cradle-snatchers’



Flow of assets

(a) there may be more children than the number of allowed trustees (in most states the limit is four); or (b) if one of the second generation children passes (or has passed) away leaving children of their own, it will be difficult and cumbersome administering the TDT in the interests of all potential beneficiaries. The discretionary nature of TDTs can become a double-edged blade in these circumstances.

(On death of surviving spouse)

(b) include mandatory succession of control provisions;

(c) include restrictions or prohibitions One of the highest profile risks of on the ability to distribute capital of a multigenerational estate plan is the trust; or not always necessary to completely abandon the single TDT structure in favour of m remarriage on deathItofisone partner in However, if the surviving spouse has (d) mandate the passing of control, a relationship. ManyOften commentators requisite control, they can of course a single TDTthecan provide the required platform by usingtheone or more including trusteeship and of the followi have remarked on, and many families distribute the capital of the TDT to powers to remove and appoint discovered first hand, the practical themselves. This can effectively mean trustees. issues that result ona. remarriage and the result is often theexclude same as if certain the the classes ofthat beneficiaries can members of the family; subsequent death of the surviving original couple had only simple (i.e. not Simple examples of the approaches spouse. TDT) wills (Figure 3). summarised above can include b. include mandatory succession of control provisions; appointing a joint trustee (often Where the survivor of the original ‘Hybrid’ solutions independent) to act with and ‘balance’ relationship updates their estate plan It is not always necessary to completely otherwise spendthrift beneficiary to provide for their new and restrictions or prohibitions on the abilityanto c. spouse include distribute capital of the abandon the single TDT structure in or delaying the receipt of powers of trust; or predecease them (statistically likely favour of multiple TDTs. Often a single appointorship until a beneficiary reaches where the new spouse is significantly TDT can provide the required platform by a certain age. younger than the first then the passing d.spouse!), mandate of control, including the trusteeship and powers to remove and using one or more of the following: assets from the first marriage may flow In other circumstances implementing a in part or whole to the newtrustees. spouse, who (a) the classes of beneficiaries can form of master trust will be appropriate. may feel no or little obligation to provide exclude certain members of the in their will for the children of the first family; Simple examples of the approaches summarised above can include appointing a joint tru marriage.

independent) to act with and ‘balance’ an otherwise spendthrift beneficiary or delaying th powers of appointorship until a beneficiary reaches a certain age. In other circumstances implementing a form of master trust will be appropriate. Help grow hope for future generations

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WHAT ARE ‘MASTER TRUSTS’ Master trusts are commonly used to identify either of the following two situations: (a) a ‘cascading’ testamentary trust that seamlessly passes the capital from a single TDT in the first generation to multiple TDTs in the second generation (Cascading TDT Figure 4). This typically resolves many of the above issues with single TDTs in the second generation and third generations without (necessarily) sacrificing flexibility; or (b) a single holding trust to preserve the family wealth over the course of generations with a ‘custodial’ mindset rather than one of ownership (Traditional master trust – Figure 5). Access to the capital (and occasionally the income) is carefully managed for the advancement of family members, without giving away or dividing the ‘family jewels’. The traditional master trust structure is increasingly common within the high and ultra high net worth (HNW and UHNW) sector. Each of the above concepts is dealt with in turn below.

CASCADING TDTS A Cascading TDT arrangement is one development of the single TDT structure that provides further degrees of the flexibility of trust structures. Typically, a cascading TDT is one where: (a) one ‘head trust’ holds the estate of one deceased spouse on trust for the surviving spouse and direct descendants; (b) the surviving spouse has full control of income and, with the consent of one or more beneficiaries, the timing of the distribution of capital; (c) a proviso that capital may only be distributed without the requisite consent into one or more further TDTs established under the same will for the benefit of the next tier of beneficiaries. This might occur automatically on the death of the surviving spouse or earlier at the surviving spouse’s option; and

interest’ style outcome for the surviving Matthew Burgess spouse.

cascadingComplex TDTstestamentary to one tier is the trusts & estate planning desirability of not ‘locking up’ the assets and removing control over the distribution As a result cascading TDTs, when drafted of capital for extended periods of time. correctly, can also cover many of the Other than ensuring that the benefit of 5 Cascading multi-generational issues TDTs above. their estate flows to the next generation possibly a third,that most will further makers will Variations onTDT Cascading A Cascading arrangementTDTs is one development of and the single TDT structure provides be relatively ambivalent as to how wealth of the of trust structures. It isdegrees possible toflexibility continue to create is managed further down the line by their further ‘tiers’ of cascading TDTs into Typically, a Cascading TDT is one where: descendants. the generation of the grandchildren a. one ‘head trust’ holds the estate of one deceased spouse on trust for the surviving spouse and There is also some increased uncertainty and beyond of the original will makers. direct descendants; as to the concessional tax and stamp However, the combined term of all layers duty treatments that cascading TDTs of the TDTs will likely be subject to the b. the surviving spouse has full control of income and, with the consent of one or more beneficiaries, have enjoyed to date, as discussed limitation imposed by the laws against the timing of the distribution of capital; further below. For this reason, as well perpetuities (in all states other than South c. a proviso may onlythe be distributed without consent intoon onetrusts or more asthe therequisite ongoing focus by the Australia). Thisthat willcapital mean that TDT further TDTs established under the same benefit of the tier of(ATO) beneficiaries. This Australian Taxnext Office and other structure must end within 80 years fromwill for the mightof occur on the death of the surviving spouse or earlier at the surviving spouse’s revenue authorities, it may be advisable the death theautomatically first will maker. option; and to limit regulated distributions of capital to Another reason for the limitation of the short to medium term. d. normally the second tier of TDTs are controlled by the children of the original couple, with their lineal descendents as further potential beneficiaries.

FIGURE 4 Figure 4



(d) normally the second tier of TDTs are controlled by the children of the original couple, with their lineal descendants as further potential beneficiaries.



Head TDT

Figure 4 The above approach effectively preserves the capital of the estate and facilitates a further division into manageable discrete trusts to be controlled by the next generation of surviving children. The result can provide a seamless transfer through at least one further generation, while maintaining a much more flexible ‘life 18 | Brief November 2014





Child’s TDT #1

Child’s TDT #2

Child’s TDT #3

The above approach effectively preserves the capital of the estate and facilitates a further division into

feature Tax treatment

its purpose is to inform staff that the Commissioner will not depart from the long-standing administrative practice of treating the trustee of a testamentary trust in the same way that a ‘legal personal representative’ is treated for the purposes of Division 128.

There has been some uncertainty as to the taxation treatment of the subsequent transfer of a capital gains tax (CGT) asset from the trustees of a cascading TDT to the second tier TDT. In most circumstances where a trust distributes its capital gains tax, CGT event E7 will happen under section 104-85 of the Income Tax Assessment Act 1997 (ITAA 1997). However, proponents of a cascading TDT arrangement generally seek to rely on the exception contained in Division 128 ITAA 1997. This rule allows any capital gain or capital loss made on a post-CGT asset to be disregarded if, when a person dies, an asset they owned passes:

This is generally accepted to mean that there is an exemption from CGT covering the ‘transfer’ from the LPR to the trustee of the testamentary trust in the first instance, as well as the subsequent transfer to an eventual beneficiary of the estate.

Part IVA There is a significant potential benefit from a taxation perspective in the cascading TDT approach (as with those of any TDT), in that there is effectively a ‘3 stage’ transfer of estate assets before a CGT event would occur, which may be effectively delayed until the asset is transferred to the hands of a beneficiary up to 80 years after the death of the original will maker.

(a) to their legal personal representative (LPR) or to a beneficiary; or

Furthermore, it would appear that the exemption applies in the context of cascading TDTs for the subsequent transfer to the second tier TDT. However as noted above, the appropriateness moving forward of the cascading TDT structure may be in doubt.

(b) from their LPR to a beneficiary.

CGT

Duty treatment

Taxation Ruling TR 2006/14 states that a ‘trust to which Division 128’ of the ITAA 1997 applies means:

Should the exemption summarised above not apply, then CGT will be triggered in the same way as for deceased estates normally, i.e.

As is the case with almost every transaction that may be subject to stamp duty, the position in each Australian state is different.

(a) the difference between the will maker’s original cost base and the market value of the asset at the date of the distribution to the second tier TDT; or

Particularly in the area of cascading TDTs, the need to specifically consider the exact factual circumstances and then overlay both the terms of the relevant stamp duty legislation and the practical application of that legislation by the relevant revenue authority is critical.

‘… a deceased estate to the extent that it is a trust over an asset originally owned by a deceased individual and which may pass to the beneficiary in accordance with section 128-20 (that is, under the will, by intestacy and so on).’

(b) where the asset was a pre-CGT asset in the hands of the deceased, the increase in value since the death of the deceased to the date of distribution.

… ‘In the context of CGT events E5, E6 and E7 this means that the exception applies if subsection 128-15(3) applies to relieve any capital gain or capital loss that arises (or would apply in that way if there were a capital gain or capital loss) when an asset passes from the deceased's legal personal representative to a beneficiary in their estate.’

Given the significant potential downside to the cascading structure if the taxation treatment is ever revised, thought should be given in each instance as to what the beneficiaries’ options are after the death of the first spouse. For example, the surviving spouse’s TDT might specifically include an ability to distribute capital to the beneficiaries directly prior to the vesting date.

In 2003 the ATO released Practice Statement LA 2003/12 which states that

As is the case with standard TDT’s, given that the cascading TDT is predominantly driven by estate and succession planning considerations, Part IVA should be unlikely to be applied.

As a general rule, any distribution under a will is exempt from stamp duty in each Australian state. The issues in relation to cascading TDTs from a stamp duty perspective are in many respects similar to the CGT position. In other words, while the initial transfer into a cascading TDTs seems to clearly satisfy the exemption provisions in each state, any subsequent transfers out of a cascading TDT could be subject to a duty impost.

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capital. The defining feature is that each generation is provided with a more custodial role, preservin and increasing the corpus of the original legacy for the benefit of descendents. Master Trusts and derivations have proven to be a popular method for the holding and preservation

"Particularly in the area of cascading TDTs, the need to specifically consider the exact factual circumstances and then overlay both the terms of the relevant stamp duty legislation and the practical application of that legislation by the relevant revenue authority is critical."

On the face of the legislation in most Cascading TDTs (perhaps most relevantly wealth and UHNW families. Australian states, there seems to be in HNW movement of funds by wayIncreasingly, of loan and families in these segments are seeking to put in a reasonably arguable position place that more structured security arrangements), these are also to maximise the impact and preservation of family ‘custodial’ arrangements subsequent transfers out of a cascading different from state to state. Furthermore, wealth over a greater reach of future generations. TDT (either into a sub trust or to an there are in some instances proposed ultimate beneficiary) should be exempt changes to these rules that while there Due to the focus ‘trustee ofannounced the family timetables wealth’ rather than ownership and consumption of wealth in from stamp duty. haveon been publicly for implementing the changes, there have a particular generation, the structure must be carefully considered and tailored to achieve the wishes Having said this, in at least two Australian also been deferrals ofthere the proposed startTDT with more prescriptive governance, successio of the first will maker. Typically is only one states, the interpretation applied by date. the relevant stamp duty authorities and isadministrative provisions than a usual TDT. in fact that no exemption applies. In Ultimately, then, it is important to flag one Australian state, this interpretation with the client considering a master trust Generally capital is only made available to family members on a secured basis, often via interposed represents a change in what was the potential stamp duty costs and the family trusts. overriding Other provisions mightspecific allow limited otherwise a longstanding approach. need to ensure advice access to funds at specific milestones or to assist is sought at the relevant point in time. specific personal investments, including education or the purchase of homes. In relation to other transactionswith involving

Often these provisions will represent a ‘greatest good for the greatest number’ approach by leveraging the application of wealth to points of need or merit within the future family members of the TRADITIONAL MASTER TRUSTS budding ‘dynasty’. Figure 5 Master trusts, sometime referred to as ‘head’ or ‘dynastic’ trusts, are generally distinguished by a single TDT structure that selectively makes the distributions available over time, with limited access to capital. The defining feature is that each generation is provided with a more custodial role, preserving and increasing the corpus of the original legacy for the benefit of descendants. Master trusts and derivations have proven to be a popular method for the holding and preservation of wealth in HNW and UHNW families. Increasingly, families in these segments are seeking to put in place more structured ‘custodial’ arrangements to maximise the impact and preservation of family wealth over a greater reach of future generations.

FIGURE 5

Master Trust Flow of capital often limited or secured to limit risk of capital erosion.





Generation 1

Generation 2

CGT and stamp duty Due to the focus on ‘trustee of the family wealth’ rather than ownership and Unlike cascading TDTs, the majority of consumption of wealth in a particular the trust estate is held in the same trust generation, the structure must be until distribution. As there is no transfer of carefully considered and tailored to capital assets out of the master trust, the achieve the wishes of the first will maker. duty questions that relate to cascading Typically there is only one TDT with more TDTs (as outlined above) simply do not prescriptive governance, succession and arise. administrative provisions than a normal Law against perpetuities TDT. © Matthew Burgess As2014 touched on earlier in this paper, in all Generally, capital is only made available multigenerational structures the effective to family members on a secured basis, ‘deadline’ for ultimate wealth distribution often via interposed family trusts. Other presented by the law against perpetuities provisions might allow limited access to is a relevant consideration. funds at specific milestones or to assist In master trusts, where the corpus of the with specific personal investments, trust is not expected to be expended including education or the purchase of or distributed for an extended period homes. of time, the potential CGT triggered on Often these provisions will represent a final vesting of the trust is a significant ‘greatest good for the greatest number’ issue. A further issue is how to effect the approach by leveraging the application of desired ‘dynastic’, long term operation of wealth to points of need or merit within the trust, when it has what is effectively the future family members of the budding an 80 year deadline in most Australian ‘dynasty’. jurisdictions. 20 | Brief November 2014

 Generation 3

South Australia is unique in Australia at the present time in that the law against perpetuities has essentially been abolished. This potentially removes these issues for master trusts where the operative law is that of South Australia. While the scope of this paper does not allow an in-depth examination of the various issues surrounding operative law, it is important to consider this issue in the specific context of any master trust arrangement. For many clients, at least some thought should be given to whether it is possible to establish a master trust regulated by South Australian law. Distribution of benefit and voting rights Master trusts represent a potential ‘reversal’ of the usual complications that arise in relation to balancing the control and benefits from TDTs. Control, while important, is often uncomplicated by being given to independent professionals or family offices acting in the relevant roles.

feature

" The secured loan strategy can be conducive to an objective common to many HNW and UHNW family founders â&#x20AC;&#x201C; fostering financial capacity and entrepreneurial abilities within the future generations of the family."

Some master trusts, however, often allow voting (or representatives), as well as entitlement to benefits based on ancestral family lines back to the patriarch or matriarch of the family. This can potentially lead to either a steady dilution of both in more fecund family lines and a concentration of control in others. Alternative provisions include splitting

control or benefits equally between members of an eligible class, such as generations from the patriarch/matriarch, or on the age or marital status of the descendants. One major practical consideration can be the point at which a master trust becomes uncommercial. For example, even a $1 billion corpus becomes only $4 million

each when split over five generations of three children; and even less if other forms of expenditure and allowance for inflation is included. For this reason, and the other costs (both financial and emotional) necessary to administer a master trust, the structure may not present a workable solution other than for HNW and UWNW families.

MASTER TRUST CAPITAL PRESERVATION One strategy used increasingly by all trust controllers, and particularly in relation to master trust, is the ‘secured loan’. For example, the master trust may provide funds to a beneficiary to purchase a home, on the basis that a registered mortgage will be provided back to the master trust. What happens when the equity in property increases? If the value of the property increases, or debt to an external financier is reduced, the arrangement can often be ‘topped up’. This can be done by gifting further amounts equal to the increased equity amount to the master trust. It is important to note that the gift of the increased equity will be considered a separate transaction for the purposes of bankruptcy clawback period rules. What are the advantages of this approach? The secured loan strategy can be conducive to an objective common to many HNW and UHNW family founders – fostering financial capacity

and entrepreneurial abilities within the future generations of the family. This can be encouraged by allowing regulated access to the corpus of the master trust to assist appropriate aspirants.

(b) it only protects the amount of net equity in the asset at the time of the loan - as mentioned above, it will not protect increases in the asset value the individual holds; and

Other advantages of utilising a secured loan arrangement can include:

(a) the arrangement achieves broadly equivalent protection for the asset compared with the master trust retaining ownership; and

Variations to loan arrangements

(b) particularly if the asset to be acquired is a main residence, CGT advantages to the approach. The only transaction cost should be a mortgage registration fee. What are the disadvantages of this approach? The disadvantages of utilising the approach, compared to other methods of preservation include: (a) the arrangement is more complex than separate ownership, and involves the preparation of additional documentation (including loan agreement and security/mortgage documentation);

One variation utilised by several multigenerational entrepreneurial families avoids loans to family businesses in favour of actual ownership of the business entity itself. In these scenarios the aspirant family member only receives control of the business entity after predetermined criteria are met, such as ‘repayment’ of the capital amount. The master trust may be provided a benefit, such as a share of capital growth, should the business be successful during the period of the ‘loan’. This structure can work well in practice and keep the borrowing aspirant accountable to the family council or trustees throughout the process.

CONCLUSION

While the general acceptance of and movement towards testamentary trusts and TDTs can be seen as a natural evolution, these structures should not be considered as replacements for rigorous estate planning and wealth succession, particularly in circumstances such as mixed families or where a series of succession events may occur within a short timeframe. Often, there will be mechanisms endemic to TDTs that may be utilised to optimise outcomes for will makers and their families by using some form of master trust. Alternatively, for many families the more administratively simple approach of multiple TDTs may present a deceptively relevant structure. The author gratefully acknowledges the assistance of each co-director at View Legal Pty Ltd: Naomi Arnold, Patrick Ellwood and Tara Lucke, who assisted with various aspects of the preparation of this paper. DISCLAIMER: The material and opinions in the paper should not be used or treated as professional advice and readers should rely on their own enquiries in making any decisions concerning their own interests.

22 | Brief November 2014

broader horizons Latest Opportunities - November 2014 As 2014 draws to a close, activity in the Perth legal market remains steady, with many employers still looking to fill key positions before the end of the year, and many candidates looking to secure new positions now, for a New Year start. We currently have a number of exceptional job opportunities and quality legal candidates registered. Contact us today for a confidential discussion about your career options, or for assistance with your strategic legal staffing requirements. Please find below a selection of our latest job opportunities for November.

Senior Corporate / Commercial Lawyer

Property Lawyer

Continuing to undergo significant growth, this leading firm is looking to strengthen the capabilities of its Corporate & Commercial practice with the strategic appointment of a Senior Associate.

This premier firm requires a Commercial Property specialist to help drive the continued growth of the firms thriving property practice.

You will work with a high degree of autonomy to service the firms existing client base of medium to large corporate clients, and will assist the partners with work, growth and development of the practice and supervision of junior lawyers. You will directly advise your clients on all commercial negotiations, preparing complex commercial agreements and contracts including, joint ventures, sale and purchase agreements. M&A work, capital raisings and general corporate advisory work will also form part of your role. At least 5 years PAE in corporate & commercial law, proven experience acting for both public and private companies, the ability to lead business development initiatives and build strong client relationships will be key to your success. Future partnership opportunities exist for those with the ability to build a profitable client base.

Senior Construction Litigator

2-4 YEARS

Acting for a diverse base of global, Australian and Perth based clients, including listed corporate clients and private companies, the team delivers advice and support across every aspect of property and major development projects including; property sales, acquisitions and disposals, leasing matters, property financing, due diligence, land access and tenure matters. As part of a small team, you will work at the coalface of major real estate deals within the Perth market, will have a high level of autonomy, responsibility and direct client contact. There is ample opportunity to progress upwards within this smaller team structure, with short term SA promotion prospects available to the right person. You will require strong technical expertise in property law, 2 years with a leading local Property practice and a confident, commercial approach in your dealings with clients. Progress your career with this growing team.

Corporate M&A Lawyer 2 YEARS +

This premium Construction practice is in a class of its own and supports an enviable client base on major projects in the Asia Pacific region. A growth opportunity now exists for an experienced Senior Associate to take a lead role in the management of all major construction disputes within the group. You will act for major mining, oil & gas, engineering and construction companies, developers and contractors involved in the disputes of key resources, infrastructure and development projects. As the most senior member of the team with expertise in back-end construction, you will work on major construction litigation and arbitration matters and will be directly responsible for advice to clients, management of proceedings, delegating tasks to junior lawyers, briefing counsel and advocacy work. You will require substantial construction litigation expertise, developed with a top tier group, outstanding negotiation skills and solid advocacy experience. Supported by a collaborative and highly skilled partnership, you will be given every opportunity to develop professionally and progress within the firm.

To maintain business growth and service existing client demands, this top Corporate practice has an immediate requirement for an exceptional junior lawyer. You will be engaged upon a range of high-end corporate matters, working alongside lawyers of considerable skill and reputation. The firm is an undeniably good place to work and offers a genuine work life balance. The atmosphere is friendly and professional, with all assistance provided to you to ensure your development and progression. You will liaise closely with your clients, who will include midcap miners, listed companies and other key players in the energy & resources sector, will foster key relationships and over time, position yourself into a more senior position within the firm. To be considered, you will require outstanding academics, a strong working knowledge of the Corporations Act and ASX Listings Rules and 2-3 years PAE in both public and private M&A, capital raisings and general corporate advisory matters.

Stacey Back Director

p 08 9380 9914 m 0406 647 577 e stacey@profilelegal.com.au

Profile Legal Recruitment

www.profilelegal.com.au

Now is the ideal time to strike. Parkes Legal Recruitment has a full range of new legal opportunities currently available

Team Leader Information Logistics Are you a Qualified Lawyer not looking to practice law, with solid experience in e-discovery? Due to an interstate move, a rare role has become available in this global Top Tier. Duties include: • Managing client information on disputes matters including observation and collection through to trial • Deliver quality e-discovery, information management and case management services • Ensure data is collected, ingested and filtered correctly and efficiently • Manage databases including user set up, data imports, indexing, productions and exports • Prepare and conduct presentations to internal and external audiences • Provide training to Partners, Solicitors and clients when required • Liaise with leadership team regarding recruitment, training and induction process You will possess a minimum of 5 years experience with e-discovery, project management experience together with proven leadership and relationship management experience. A superior opportunity not to be missed. Ref: AMB3176

Real Estate and Property Lawyer 2-3 Years PQE This international firm continues to attract some of the region’s best lawyers and has a relaxed yet professional feel. Their staff facilities are first class and they have a strong reputation for looking after both their lawyers and support staff. Their Real Estate Team is recognised as one of the strongest in the region. Their high-end matters cover all aspects of: • land development and sub-divisions • acquisitions and disposals • property projects • commercial leasing In your exciting role you will have close day to day involvement with a range of blue chip clients. You will receive mentoring from an A Grade Partner who is at the very top of the field. As the ideal candidate you will possess a minimum of 2 years of relevant experience, a strong academic record and a dynamic approach. Ref: RW3178

PERTH’S LEGAL SPECIALISTS www.parkesrecruitment.com.au

PARKES LEGAL

Contact Ross Wheatley on 9221 4932

Projects and Resources Lawyer

Dispute Resolution Lawyer

Family Lawyer

1-4 Years, Elite National Boutique Firm

1-3 Years, Leading Global Firm

2-5 Years, Perth CBD

This pre-eminent national boutique firm is powered by some of the regions strongest lawyers in LNG, Oil and Gas and resources. They are now looking to add a talented lawyer with 1-4 years to their Corporate and Resources Division.

The firm has a commanding global reputation; you will be working upon high value matters involving significant international groups. The firm offers a host of unique benefits including local and international secondments. The experience and training that you will receive in this role will be first class and highly valued moving forward.

The firm is well established with a built up client base and is located in the Perth CBD. They accept instructions in all areas of family law and are headed by two talented directors who are very well regarded within the area.

You will be working alongside a host of Partners across offices who are recognised leaders in corporate, resources and major project law. The firm has been very carefully structured and has attracted the “best of the best”. The Partners have considerable management experience several having been managing partner of significant offices for international practices. The key difference with the firm is that you will have regular involvement with and access to the decision makers. Ref: RW2708

You will be joining an elite growing dispute resolution team headed by one of the region’s foremost dispute resolution practitioners. In addition to the Partner you will be working alongside a talented Special Counsel and 2 Senior Associates. In your role you will draw upon a full suite of dispute resolution methods and will be involved in significant litigation matters, international arbitrations, shareholder disputes and regulatory matters.

You will be confident running your own files with limited supervision and will enjoy practising in family law. You will be able to efficiently manage your files and be committed to achieving the best available outcomes for your clients. The firm is widely regarded as an excellent environment in which to practice family law. They have a warm and welcoming culture and a high end client base. Ref: RW3163

Ref: RW3160

Finance and Projects Lawyer

Corporate Advisory Lawyer

Workplace Relations

1-5 Years

Senior Associate

Special Counsel, Part-Time or Full-Time

This corporate finance team are very highly rated and have extensive experience in providing all corporate, project and structured financing arrangements. They are retained by a variety of clients across industries including: resources, oil and gas, property, government and telecommunications. The team have a proven track record acting upon some of the region’s most significant finance and banking transactions.

Join this first class corporate advisory practice and have key involvement in a full range of corporate transactions.

This highly regarded workplace relations team has a loyal and high-end client base drawn from across industry sectors. The team is headed by two talented Partners and are ideally looking for a Special Counsel with a strong background in workplace relations law. The team is very open to part-time and full-time applicants and this position would work very well as a part-time role.

You will receive careful guidance and training within this close knit team. Your matters will be varied and you will gain broad exposure from an early stage. If you are looking to step up and play a key role in your matters then this is an ideal opportunity and attractive alternative to practising within a top tier firm. Ref: RW1518

This prominent corporate team is very highly regarded in the region and is called upon to oversee key corporate transactions for their impressive client base. There is considerable scope for career development within the team and this is a perfect lateral move for an ambitious lawyer looking to fast track their career. Your matters will include: • corporate mergers, acquisitions and disposals • joint ventures and farm-in agreements • IPOs, placements and rights issues • capital management strategies, including buybacks and capital reductions Ref: RW3038

PARKES LEGAL SUPPORT

The firm has a strong reputation as a destination of choice for lawyers and offers a host of attractive benefits and first class facilities. Equally the workplace relations team in particular has a very positive and friendly feel. This is an ideal team to join with a warm camaraderie, high-end client base and strong lawyers at all levels. Ref: RW3164

Contact Angela Bamford on 9221 0944

Legal EA

Legal Secretary

Labour & Employment Law

Property / Finance

Property

Top Tier is seeking an experienced Legal Secretary / EA who can easily supporting two Partners who have very different working styles. You will need to be flexible, adaptable and able to assist one of these Partners best utilise a Secretary!

Award winning Top Tier is seeking a Legal Secretary to work with a highly regarded Partner and his team. This role has some Paralegal elements and would suit an experienced Secretary seeking to expand their career.

Brilliant boutique firm is seeking a new addition to their Property team in early January. Interviews commencing soon! You will need to be a senior secretary with a minimum of 3 years recent experience in property law.

To be considered for this opportunity, you will need to have a minimum of 5 years experience as a Legal Secretary (employment law experience is highly advantageous) a flexible approach to tasks combined with the ability to deal with change and conflicting priorities. Superb firm, CBD Location, excellent salary on offer.

3-5 years experience as a Legal Secretary, combined with property experience will see you excel in this role. You will also need to possess advanced Word skills together with a fast and accurate typing ability. Some mentoring experience will be highly regarded as there is a junior Administrator on hand to assist.

You will need to enjoy a busy role, be a strong team player and willing to pitch in and assist other secretaries when required. A fast typing speed (over 70wpm) combined with advanced Word skills are essential. A generous salary plus numerous benefits are on offer.

Ref: AMB3175

Ref: AMB3170

PARKES LEGAL Ross Wheatley (BA LLB)

T: (08) 9221 4932 M: 0401 344 040 E: ross@parkesrecruitment.com.au

Ref: AMB3199

PARKES LEGAL SUPPORT Angela Bamford T: (08) 9221 0944 M: 0423 471 524 E: angela@parkesrecruitment.com.au

LPCC Current Issues Legal Profession Complaints Committee

Confidentiality of Settlement Conferences Most, if not all, of the various courts and tribunals operating in Western Australia have procedures which require the parties to proceedings to attend conferences in an attempt to settle proceedings. These conferences include pre-trial conferences, mediation conferences and compulsory conferences (referred to generally in this article as settlement conferences). Each court and tribunal has different legislative provisions and practice directions governing the operation of these conferences. In some cases, the relevant legislation imposes a duty of confidence on the parties attending such conferences, for example, s71(1) Supreme Court Act 1935. In other cases, the relevant legislation may require the conference to be held in private, for example, s54(6) State Administrative Tribunal Act 2004. In the case of pretrial conferences in the District Court, there are no such provisions, however, the Procedure Guide for Unrepresented Litigants refers to a pre-trial conference as a ‘confidential meeting’.1 Irrespective of whether a specific duty of confidentiality is imposed, the relevant legislation invariably specifies that, subject to certain exceptions, evidence of anything said, or any admission

26 | Brief November 2014

made, in the course of the conference is not admissible in the proceedings. This inadmissibility arises from the ‘without prejudice’ nature of the communications. The inadmissibility of without prejudice communications (which essentially operates as a constraint on the later production of material or information to the court), must be distinguished, however, from broader considerations of confidentiality, which may affect the divulging of information to persons outside of the court process. Such wider obligations of confidence are likely to arise in relation to settlement conferences and practitioners should be aware of those wider obligations. For example, in C v M2, Kenneth Martin J examined whether s71 of the Supreme Court Act imposes a duty of confidentiality or whether it is limited to specifying evidentiary inadmissibility. Kenneth Martin J found that: A wider obligation of overarching confidentiality, applicable to all proposed participants in the mediation is imposed. The imposition

“... the relevant legislation invariably specifies that, subject to certain exceptions, evidence of anything said, or any admission made, in the course of the conference is not admissible in the proceedings.”

of confidentiality rests beyond narrower inadmissibility constraints. Dual protections arising from confidentiality as well as inadmissibility deliver protections to the mediation process and participants going wider than simply imposing a constraint against subsequent use of information or a document in evidence at a trial. In that case, a party to the proceeding who had distributed a report he had received from his lawyer on what had occurred at a mediation conference to five persons he considered had an interest in the subject matter, was held to have breached the confidentiality of the mediation. In Ian West Indoor and Outdoor Services Pty Ltd v Australian Posters Pty Ltd,3 Emerton J considered whether the legislation under which the Victorian Civil and Administrative Tribunal (VCAT) operated, imposed an obligation of confidentiality upon parties participating in compulsory conferences. As is the case with the State Administrative Tribunal (SAT), the legislation provided that such conferences (which may be used to promote settlement) are to be conducted in private and provided that evidence of anything said or done in the course of a compulsory conference is not admissible in any hearing before the tribunal in the proceedings. Despite finding that the fact that compulsory conferences are to be held in private does not, of itself, import obligations of confidentiality,4 Emerton J found that the information which was imparted during the compulsory conference in question was imparted in circumstances that imported an obligation of confidence. Emerton J stated: Accordingly, although the VCAT Act provides very limited statutory protection for confidential information divulged in the course of a compulsory conference, 28 | Brief November 2014

the circumstances in which that information is divulged and, in particular, the understanding of the persons to whom it was divulged that it be kept confidential, may give rise to an obligation of confidentiality. A compulsory conference held for the purposes of enabling the parties to ‘lay bare their souls’ in order to facilitate a conciliation and resolution of the dispute is most likely to import an understanding by the participants that anything said is said in confidence.5 Accordingly, what is said and done in settlement conferences conducted in courts and tribunals where the operative legislation does not impose a duty of confidence is still likely to be found to have been divulged in circumstances giving rise to an obligation of confidence. This would be the case particularly when, as is often done at the outset of such conferences, the presiding officer specifically says that what is said and done during the conference is confidential. Although a duty of confidentiality invariably arises, are there any limits on what is covered by that obligation? Can a participant in a settlement conference make any use of the factual information contained in statements, admissions or communications made during such a conference? In C v M, Kenneth Martin J briefly considered this issue although was not called upon to decide it. His Honour indicated that he found the reasoning of McDougall J in 789TEN v Westpac (789),6 compelling.7 In 789, McDougall J considered different observations which had been made in earlier cases on this issue but concluded that there is distinction to be drawn between communications (written or oral) made at mediation and the information contained in them. This means that parties who have been participants in a mediation may pursue lines of enquiry they learned about at mediation and seek to prove in the proceedings, by admissible evidence, the facts or information which gave rise to the line of enquiry. However, they cannot seek to prove the fact or information by reference to statements or material from the mediation. In a matter which came to the LPCC’s attention, a practitioner attended a pretrial conference in the District Court with his client who was a plaintiff in a personal injuries matter. During the pretrial conference, the defendant’s counsel raised an issue concerning the reliability of the plaintiff’s treating doctor’s report on the plaintiff’s symptoms and whether the doctor was supporting a long term

patient, rather than providing an honest and independent opinion. The matter did not settle at the pre-trial conference. Subsequently, the practitioner informed the defendant’s solicitor that he had informed the doctor of the position taken by the defendant at the pre-trial conference regarding his report. The defendant’s view of the doctor’s report was conveyed during an attempt to settle the matter at a pre-trial conference. Although there is no statutory provision importing a duty of confidentiality in pre-trial conferences, it is more likely than not that the circumstances in which the defendant’s position was conveyed imposed an obligation of confidentiality on the practitioner. Accordingly, the practitioner should not have informed the doctor of the position taken by the defendant. However, the practitioner could have used the information to have asked further questions of the doctor going to the issue of the reliability of his report and whether any of his opinions were swayed by his long term relationship with the plaintiff. To do so would not have breached the obligation of confidentiality. Practitioners are asked to take care, to preserve the confidentiality of what is said and done at settlement conferences and to ensure that their clients are also made aware of these obligations. Divulging confidential information from settlement conferences may amount to unsatisfactory professional conduct or professional misconduct and result in disciplinary proceedings.

Prison Visits – Know the Rules From time to time the committee is required to investigate the conduct of a practitioner arising out of the practitioner’s visit to a prison or other correctional facility. The right of a legal practitioner to visit a prisoner held in a Western Australian correctional facility is contained in section 62 of the Prisons Act 1980. Broadly, that section provides that a legal practitioner may visit: (a) a prisoner who is a client, for the purposes of pending court proceedings; (b) with the approval of the Superintendent of the facility, any other prisoner for a bona fide purpose. All prison visitors must comply with rules relating to prison visits. As well as the Prisons Act and the Prison Regulations 1982, practitioners intending to visit a correctional facility should

make themselves aware of the Adult Custodial Rules,8 in particular Operational Instruction 18, and any standing orders issued by the Superintendent of the facility they are intending to visit.

capacity of a family member or friend.

CONTRABAND

Another investigation undertaken by the committee involved an allegation that a practitioner had provided a prisoner with a prohibited item (a music CD). The practitioner had believed that disc contained police evidence, but in any event the practitioner had not followed prison procedure which required the approval of prison staff before a disc containing police evidence was handed over to a prisoner.

A recent investigation into a practitioner’s conduct involved an allegation that the practitioner had taken, albeit inadvertently, a prohibited item (a mobile telephone) into a prison. Practitioners intending to visit a prisoner should make themselves aware of items which are not permitted to be taken into the facility. Generally, as well as the more obvious items such as weapons and substances, the following types of items are prohibited in prisons:

HANDING OVER ITEMS TO A PRISONER

“It goes without saying that a deliberate breach would in all likelihood result in prosecution.”

•

film

•

computer games

SUMMARY

•

cameras and other photographic devices

•

mobile telephones

•

portable digital media players

•

USB storage devices

•

any other item that may threaten the safety or security of the prison.

The Superintendent of a prison has wide powers to ensure the security and good governance of the facility. Depending upon the seriousness of a contravention of the rules and regulations relating to prison visits a practitioner could be banned from visiting any Western Australian correctional facility for a specified period. It goes without saying that a deliberate breach would in all likelihood result in prosecution. Furthermore, a practitioner’s contravention may constitute unsatisfactory professional conduct or professional misconduct under the provisions of Part 13 of the Legal Profession Act 2008 including where a practitioner uses their practitioner status to take advantage of lawyer/client privileges when the visit is not client related.

Operational Instruction 18 of the Adult Custodial Rules provides that a legal practitioner visiting a prisoner in an official capacity may take in a dictaphone and relevant papers. However, laptops and mobile phones are not permitted. Operational Rule 18 does not apply in circumstances where the visit is not official (refer to section 62 of the Act), accordingly it will have no operation if a practitioner is visiting a prisoner in the

Practitioners intending to visit a prison are encouraged to make themselves aware of the legislative and other provisions relating to the types of items and material that may not be taken into the facility. Given how easily a prohibited item could be carried into a prison inadvertently (a mobile phone in a jacket pocket, a USB on a key ring or in the bottom of a brief case or handbag), it is suggested that practitioners carefully check to ensure that they do not take any prohibited item into a correctional facility. Further, practitioners should check with a prison officer before handing anything over to a prisoner, plus make and maintain a contemporaneous note for their file of any item handed over. NOTES

District Court of Western Australia Procedure Guide for Unrepresented Litigants, at para 11.1.

[2011] WASC 175.

[2011] VSC 287.

ibid., para 22.

ibid., para 26.

[2004] NSWSC 594.

ibid., at para 94.

Available online at www.correctiveservices.wa.gov.au.

Create a legacy to be proud of Optimising the quality of life for people living with disability When discussing donations, wills and bequests with your clients, please consider

The Rocky Bay Foundation Rocky Bay is a leading provider of disability services, offering support and independence to thousands of children and adults living with disabilities such as muscular dystrophy, spina bifida, trauma injuries, intellectual disability and autism.

Enquiries to: Frank Nathan, 139 Gregory St, Wembley WA 6014 T: (08) 9387 7408 E: frank_nathan@hotmail.com

Notre Dame Law Alumni Sundowner

Matthew Keogh Senior Vice President, the Law Society of Western Australia and Senior Associate, Herbert Smith Freehills The inaugural University of Notre Dame Australia School of Law (Fremantle) Alumni CBD Sundowner was recently held at Herbert Smith Freehills on 20 August 2014. Looking out from Level 36 of the QV1 Building, 100 alumni from across the last 13 years of the law school’s graduating history came together to reminisce, network and be updated on the present activities in the Law School.

The evening was the brainchild of the newly formed alumni steering committee, who have gathered together to work with the Law School to enhance its relationship with its alumni, and provided an excellent opportunity for informal catching up as well as for others to realise that their opposing legal colleagues were indeed only a few years ahead of them at the same law school. The brief formalities involved a welcome from one of the alumni steering committee members and now Senior Vice President of the Law Society of Western Australia, Matthew Keogh (class of 2004), who updated alumni on the work of the steering committee in organising the new twice yearly law alumni newsletter, Ex post facto and 10 year reunions, with more events to come. The alumni steering committee is working for closer relationships between alumni and the Law School, as well as 30 | Brief November 2014

to continue the great camaraderie and collegiality that exists between students at the Law School into their practice of the law and whatever other fields alumni find themselves in. The Managing Partner of the Perth Office of Herbert Smith Freehills, Tony Joyner also welcomed alumni guests, a number of whom were from the firm, and looked forward 2.

to receiving instructions from Notre Dame Law School alumni as they moved into in-house roles. The present Dean of the Law School, Professor Doug Hodgson also spoke, updating alumni on the present developments in the Law School, its recent successes in enrolments and expanded research work. Of course, the symmetry of Herbert Smith Freehills hosting the inaugural Alumni CBD Sundowner given how many hours alumni had previously spent in the ‘Freehills Hollingdale and Page’ lecture theatre was also noted. A great time was had by attendees, who looked forward to the next holding of the event. Notre Dame Law School Alumni who are interested in attending such events in the future, receiving the Ex post facto alumni newsletter or helping the alumni steering committee should email their details to alumni@nd.edu.au.

Images: 1. Matthew Keogh, Senior Vice President, the Law Society of Western Australia and Professor Doug Hodgson, Dean of the Law School 2. Mark Palermo; Mapanza Nkwilimba; Gerald Yin and Tina McAulay 3. Chris Mulley and Sarah Jones

DOWNLOAD YOUR LAW SOCIETY APP All the information a legal professional could ever need, right in the palm of your hand. This FREE comprehensive iPhone/iPad and Android device application has been developed by the Law Society of Western Australia for use by its members.

ACCESS • Contact information for courts and tribunals; barristers and their chambers; selective metro and country firms including direct dialling capability and map-it options • Information for an array of important agencies and organisations (both national and local) • Daily State and Federal court lists • Calendar of key CPD, Society and Law Mutual dates that can sync to your device calendars

CONNECT • With the Society across all social media platforms • With details for Society and Law Mutual key personnel

lawsocietywa.asn.au/societyapp

2014 MOCK TRIAL COMPETITION GRAND FINAL With a record breaking 92 teams from 41 schools who competed in the competition this year, the 2014 Mock Trial Competition has been quite the event. On Monday, 20 October 2014 the grand final was deemed a huge success, with the Honourable Justice John Chaney of the Supreme Court of Western Australia, adjudicating the show down between Perth Modern School and Mt Lawley Senior High School. The grand final trial was a gripping competition where the students donned robes and argued their case in the Supreme Court. The outcome was closely contested with only a few points difference, but it was Mt Lawley Senior High School who were announced the victors at the presentation that followed the trial, this being their second consecutive win. Here, Justice Chaney favourably compared the advocacy skills displayed by the students with those seen in courtrooms. Konrad de Kerloy, President of the Law Society of Western Australia, along with Cheryl Gwilliam, Director General of the Department of the Attorney General presented both teams with certificates and trophies at the event in front

of the students’ families, school officials and members of the legal profession. Not only were there a record number of schools competing this year, but it is also the first time in the 28 years the competition has been running that the grand final was held between two state schools. Congratulations to Paige Stevens from Lake Joondalup Baptist College, who was the recipient of the Murdoch Scholarship for the Most Outstanding Mock Trials Student, presented by Jürgen Bröhmer, Dean of Murdoch School of Law. Thank you to the sponsors Department of the Attorney General and the Public Purposes Trust of the event and the near 100 lawyers and law students who volunteered their time to act as judges and coaches throughout the competition. If you would like to volunteer for judging or coaching in the 2015 competition please email mocktrial@lawsocietywa.asn.au

WINNING TEAM Back Row: Siobhan Galavan (Teacher), Olivia Sandri, Clara Lee, Megan Farmer, James De Lore Middle Row: Rhiarne Bruce (Coach), Jadviga Kobryn-Coletti, Joseph Pangerl, Stacey O’Dwyer, Chaz Carrington-Wilson, Rosie Blakey-Scholes (Coach) Front row: Cheryl Gwilliam, Director General, Department of the Attorney General, Justice John Chaney, Supreme Court of Western Australia, Konrad de Kerloy, President, The Law Society of Western Australia

32 | Brief November 2014

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Freeman of the Town Recently, Society Councillor, Denis McLeod was awarded the Freeman of the Town from the Town of Claremont

The Freeman of the Town is an honour bestowed by a municipality upon a valued member of the community, or upon a visiting celebrity or dignitary. Arising from the medieval practice of granting respected citizens freedom from serfdom, the tradition still lives on although today the title of ‘freeman’ confers no special privileges. Today it provides an opportunity to recognise and honour people who demonstrate outstanding commitment and contribution to the Town’s community. The Town of Claremont has awarded the Freeman of the Town very rarely – reserving this honour so that it is seen as an exceptional thing, not something awarded lightly. Previous recipients include Peter Weygers, a former mayor, Peter Olsen, former mayor, Trevor Nicholas, a long serving and distinguished former councillor of Claremont and Sally Anne Hasluck, recognised for her distinguished service to the Claremont community. Mr McLeod has successfully defended the Town of Claremont’s heritage numerous times. He is also well known for his knowledge of local government law, something which goes far beyond knowing and understanding the Local Government Act. KBE-Brief-Final.pdf

CMY

34 | Brief November 2014

4/03/2014

At the ceremony, Claremont Mayor Jock Barker highlighted Mr McLeod’s dedication. Denis McLeod is committed to Claremont as a corporate citizen. He takes an active interest in local government matters in the Town. He established his law practice in Claremont in 1982 and the firm is committed to remaining in Claremont well into the future as evidenced by the redevelopment of its offices which is progressing at this time. Denis makes himself available as a sounding board, helping hand and confidant to the Town of Claremont officers, in particular to the CEO. This is a service based on his friendship with the Town and is not fee for service based. Joint past winner of the 2012 Lawyer of the Year award, and current member of the Society council, the Society would like to congratulate Mr McLeod on his latest achievement. 4:32 pm

pam sawyer

Speech on the occasion of the Launch of the Report of the 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce 23 September 2014

Justice Janine Pritchard1 Supreme Court of Western Australia Distinguished guests, ladies and gentlemen: I am absolutely delighted to be present this evening for the launch of the Report of the 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report (the 2014 Report) and to have the opportunity to say a few words about the 20th Anniversary Review Project (the Review Project) and the 2014 Report itself. This evening I would like to speak briefly about three matters: 1. The historical context for the 2014 Report and the genesis of the Review Project; 2. The scope and dimensions of the Review Project; 3. Implementation of the recommendations in the 2014 Report. THE HISTORICAL CONTEXT FOR THE 2014 REPORT AND THE GENESIS FOR THE REVIEW PROJECT The release of the 2014 Report is a significant occasion. Its significance lies not just in the contents of the 2014 Report, but in the fact that the 2014 Report is the continuation of an ambitious project started in 1993 by the then Chief Justice of Western Australia, the Hon David Malcolm AC. I am particularly pleased that David’s wife Kaaren, and his daughter Manisha, are able to be here to represent David tonight. The law, the judiciary and the legal profession in 1993 were somewhat different when compared with the position today. There were, for example, no female judges on the Supreme Court of Western Australia. Judge Antoinette Kennedy had been on the District Court since 1985, and Mary Ann Yeats would join her in July 1993. In 1985, Carolyn Martin had been the first woman appointed as a stipendiary magistrate. There were no female judges on the Family Court of Western Australia and there were no female Federal Court judges in Perth. There were no female silks in Western Australia. And as for the substantive law, de facto relationships were not within the jurisdiction of the Family Court and there was no restraining orders legislation, to

36 | Brief November 2014

and the organisation and work of the legal profession.5 Chief Justice Malcolm described his objective in establishing the Taskforce in the following way:6 What I am concerned about is to ensure that we facilitate equality of women before the law and in the administration of justice, as well as equality of participation in the practice of the law and the administration of justice. …

give you but a couple of examples. The existence of gender bias in the law and in the administration of justice had been examined in the United States, in Canada, in the United Kingdom, and more recently in Australia. In 1990, Regina Graycar and Jenny Morgan published The Hidden Gender of Law2 in which they examined hidden gender bias in the law, its institutions and among male lawyers and judges in Australia. In 1993, David Malcolm published an article in the first volume of the Australian Feminist Law Journal.3 (I venture to suggest that not many Chief Justices in this country have published articles in that Journal.) Chief Justice Malcolm revealed that in August 1990 he attended a conference in Edinburgh on the subject of Equality and the Administration of Justice: Race, Gender and Class. As a result of what he heard and learned at that conference, the Chief Justice came to appreciate that there was a need for all judges, himself included, ‘to be made aware of the possibility of unconscious bias in decision-making and of bias in the substantive law in its application to women’.4 But Chief Justice Malcolm did not simply seek to educate himself and other judges about gender bias. He embarked on a rather more ambitious project. Following on from the example set by a number of states in the United States and a number of Canadian provinces, the Chief Justice appointed a Taskforce on Women and the Law (the Taskforce), to investigate the extent to which gender bias existed in the law and in the administration of justice in Western Australia, and to make recommendations for its elimination. The Taskforce was to examine gender bias in relation to the substantive law, the judiciary, the procedures of the courts, 38 | Brief November 2014

There are obstacles to be removed. The judiciary, the profession and all who work in the courts need to be aware of and understand the hidden or unconscious gender bias in the law and the administration of justice so that it can be consciously and conscientiously eliminated and avoided. On 30 June 1994, Justice Henry Wallwork, the Chair of the Taskforce, presented the Chief Justice with the report of the Taskforce (the 1994 Report). The force of the recommendations made in the 1994 Report, together with the support of the Chief Justice, prompted the government of the day to take action. And the commitment to action was sufficiently strong that the then Attorney General Peter Foss QC MLC published a Progress Report in April 1997 outlining what action had been taken by the government to implement the recommendations in the 1994 Report. In the end, however, while many recommendations of the 1994 Report were implemented, many others were not. And that was despite the fact that there were, and still are, signs that gender bias may exist in the operation of the substantive law, in the way the legal profession operates, and in the administration of the law. For a recent example, one need look no further than the National Attrition and Re-engagement (NARS) Study Report7 published by the Law Council earlier this year, which contained some very concerning findings about the extent to which women in the legal profession continue to experience gender bias and sexual harassment. So it was very timely that in about early 2011, Women Lawyers of Western Australia determined that a review should be conducted of the 1994 Report, with a view to a report being published in 2014 to coincide with the 20th anniversary of the 1994 Report. Let me now turn to briefly discuss the scope and dimensions of the Review Project.

THE SCOPE AND DIMENSIONS OF THE 2014 REVIEW PROJECT The terms of refserence for the Review Project were to review the extent to which recommendations made in the 1994 Report had been implemented, in so far as recommendations from the 1994 Report had not been implemented, to consider whether they should be, to investigate the extent to which gender bias continues to exist in the law and administration of justice in Western Australia, and to make recommendations for its elimination. As in the 1994 Report, the subject areas addressed in the 2014 Report are: •

Women’s Access to Justice and the Environment of the Courts

•

Career Paths for Women in the Legal Profession in Western Australia

•

Appointment to the Judiciary

•

Aboriginal Women and Girls and the Law

•

Victims of Crime

•

Restraining Orders

•

Education; Laws which Discriminate against Women; Women’s Role as Law Makers

•

Women and Criminal Laws and

•

Women and Punishment.

It is no understatement to say that the work involved in producing the 2014 Report has been enormous. The size of the 2014 Report (over 650 pages) and the 197 recommendations made in it, are testament to the work which has gone into the Report. It has involved extensive research into the substantive law and relevant literature, extensive investigation of the way in which the law is administered in this State, extensive consultations with stakeholder groups and individuals, and a very considerable drafting and editing process. The work was guided by a steering committee, who gratefully received the support of the Department of the Attorney General and of its Director General, Ms Cheryl Gwilliam. But much of the ‘hands on’ work of investigation and consultation, and of the generation of suggestions for reform, was done by the members of sub-committees established to look at each of the subject areas of the Report. The members of the subcommittees were very busy women and men who were good enough to devote considerable portions of their time, on a voluntary basis, to the Review Project and we are indebted to them all. The 2014 Report identifies many ways

in which gender bias continues to exist in the law and its administration in Western Australia. That in itself is no small achievement. However, like the 1994 Report, the more significant aspect of the 2014 Report is that it makes many recommendations about how that gender bias may be eliminated. I turn, then, to make some brief comments about those recommendations and their implementation.

IMPLEMENTATION OF THE RECOMMENDATIONS IN THE 2014 REPORT

The recommendations in the 2014 Report deal with a wide range of subjects, and are diverse in nature. Some of them have a very practical focus, for example, the recommendation that the lack of basic toilet and parenting facilities in some of our regional courts be remedied,8 that information on court websites about court processes be provided in a wide range of languages,9 and that a women’s services directorate be established within the Department of Corrective Services to oversee services to women in prison.10 Other recommendations involve the reform of the substantive law, and there are a number of suggested amendments to the Evidence Act, the Restraining Orders Act, and the Criminal Code.11 Some of the recommendations are directed to the means by which systemic change can be made in the way in which law is practised in law firms and at the bar.12 Others are concerned with the education of lawyers, law enforcement officers, and judicial officers about gender and cultural issues which impact on women’s experience of the law, including the experience of Aboriginal women.13 And while many of the recommendations revisit subjects addressed in the 1994 Report, others

address completely new issues, such as the way in which the voices of aboriginal women might be better heard in the native title process.14 Finally, I have already observed that the work done in the 2014 Review was done by both women and men. Similarly, the implementation of the recommendations in the 2014 Report will depend upon the support and commitment, not just of women, but of men too. The reality is

that men continue to occupy many key decision making roles in our society and legal profession: whether as Ministers in government, as heads of jurisdiction within the judiciary, and as the majority of partners in law firms. More importantly, addressing gender bias in the law, as well as in our society more generally, is not simply a feminist issue, or a women’s issue. Earlier this year the United Nations launched a campaign for gender equality called ‘Heforshe’ which recognises this very point, and which encourages men to speak out about the inequality that faces women and girls around the world. In the context of our law, in its practice and in its administration, gender inequality is not a women’s issue, it is a justice issue. Let me return to the theme with which I began. Chief Justice David Malcolm established the Taskforce in 1993 with a view to eliminating gender bias in the law. This 2014 Report presents a renewed challenge to all of us, women and men, to take up the recommendations in the 2014 Report, and to consciously and conscientiously eliminate gender bias wherever it may exist in the law and in the administration of justice in this State.

NOTES

Chair of the Steering Committee, 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report.

R. Graycar and J. Morgan, The Hidden Gender of Law, Federation Press, 1990; second edition 2002.

The Hon D. Malcolm AC, Chief Justice of Western Australia, ‘Women and the Law – Proposed Judicial Education Programme on Gender Equality and Task Force on Gender Bias in Western Australia’, (1993) 1 Australian Feminist Law Journal 140.

1 Australian Feminist Law Journal 140, 141. 5.

Law Council of Australia National Attrition and Re-engagement Study (NARS) Report, 2014, Urbis Pty Ltd.

Recommendation 1.23.

Recommendation 1.39.

10.

Recommendation 9.25.

11.

See, for example, recommendations 5.2, 5.6, 6.3, 6.4, 6.6, 6.7, 8.2, 8.3, 8.4, 8.8, 8.9, 8.14 and 8.15.

12.

See the recommendations made in Chapter 2 of the 2014 Report.

13.

See, for example, recommendations 1.30, 1.31, 2.14, 4.1, 4.2, 4.3, 4.5, 4.6, 4.7, 4.20 and 4.22.

14.

See, for example, recommendations 4.25, 4.26 and 4.30.

Today should not be seen as a day which marks the culmination of a process. Today represents the start of a new chapter in a process which commenced over 20 years ago, but which remains as important as ever. 39

book review

Book Review Non-adversarial justice by Michael King, Arie Freiberg, Becky Batagol, Ross Hyams Review by Susannah Hill, Associate, Clifford Chance

The publication of the second edition of this book marks only five years since the first edition was published, evidence of the rate of development, and the emerging interest in, this area of law. The foreword by Chief Justice Wayne Martin is a testament to his belief in both the concept of non-adversarial justice but also to the collection of work and its authors. Non-adversarial justice (as the authors have aptly termed it) is a burgeoning trend in Australia. Unlike the adversarial system, non-adversarialism is ‘problem-oriented’ and ‘solution-focused’. The focus of the book, as with non-adversarial justice generally, is not just on the court system, but on the justice system more broadly. It is a system not without its challenges and critics – many argue that restorative justice (a component of the broader non-adversarial justice) is an inadequate means of dealing with criminals and serious offenders. This book adequately addresses the criticisms of this form of justice in an even handed way. While non-adversarial justice is a fairly new concept, not all processes under this umbrella are novel. In particular, the authors point to the coronial inquiry as

an example of a non-adversarial process which has proved effective over a long time. The book is made up of 15 substantive chapters. Chapters 2 to 7 look to the key concepts and the theoretical underpinnings of those concepts: therapeutic jurisprudence, restorative justice, preventive law, creative problem solving, holistic law and ADR. Chapters 8 to 13 describe the various courts, procedures and programmes that promote non-adversarial justice. It is found in family law, problem-oriented courts (that is, drug courts, mental health courts, family violence courts), intervention schemes, indigenous sentencing courts, processing cases without resort to the courts, and coroner’s cases. More victim involvement, post-sentence supervision, less formal processes, and a ‘holistic’ approach (which involves considering each element of the problem which led to the dispute), frequently emerge. The broader implications of a nonadversarial approach on the court, the legal profession and academia, is covered in chapters 14 to 16.

Judicial and academic support for the concepts articulated in this book is increasing. While acknowledging some political resistance, the authors demonstrate that there is strong support for non-adversarial processes from practitioners, courts and nonpractitioners. It is particularly helpful where, in assessing the relevant non-adversarial courts, such as family violence courts, mental health courts and indigenous courts, the authors consider the position in each state or territory where those courts exist. To an extent, the book is research driven in its content. It provides an honest assessment of not just the benefits of, but also the shortcomings in, non-adversarial justice processes. It provides the history of these processes, and gives an overview of the plethora of programmes and initiatives within this lesser known field of the law. It is a highly informative book, that will assist lawyers and non lawyers in understanding the way nonadversarial initiatives can be integrated, to the benefit of the legal and broader community.

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case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Children – Relocation – Mother wins appeal to relocate from Perth to the Pilbara – ‘Preliminary view’ expressed by trial judge – Mother’s concession that she could stay in Perth treated as her proposal In Jurchenko & Foster [2014] FamCAFC 127 (18 July 2014) the Full Court (Bryant CJ, Thackray & Duncanson JJ) upheld the appeal of a mother against Kaeser AM’s dismissal of her application to relocate with the parties’ two year old daughter from Perth to a town in the Pilbara where the mother’s new husband was offered permanent employment. The mother was the child’s primary carer while the father had spent ‘relatively little time’ with the child (para 5). Kaeser AM with the parties’ agreement expressed a preliminary view (para 17) that the “child should have … a meaningful relationship with both parents [but] … [the court] may have some difficulty accepting … that a meaningful relationship can be maintained [if the mother relocates] … ” The Full Court said (para 22): It must be remembered that the Family Law Act … does not obligate a court to ensure a child maintains a meaningful relationship with both parents: Mulvany & Lane [2009] FamCAFC 76 at [89]. Rather, the court must consider the benefit to a child of having such relationships. … we do not consider [the Acting Magistrate] was in a position at the outset of the trial to form even a ‘preliminary’ view concerning what benefit there might be to the child having a ‘meaningful relationship’ with the father or how that benefit ought be weighed with the many other factors the Act requires be taken into account. As to the mother’s concession to the father’s counsel that she would if necessary stay in Perth, the Full Court said (para 98) that it “[did] not consider that the mother’s answers in cross-examination ‘revealed a third option’ at all”. The Full Court continued at para 109: In this respect the present case bears much similarity to Heaton & Heaton (2013) 48 Fam LR 349 where the Full Court, in allowing an appeal against an order refusing relocation, said [at [32]]: ‘His Honour was first required to determine the children’s best interests by reference to the well known ‘primary’ and ‘additional’

42 | Brief November 2014

factors referred to in s60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother’s ‘fall-back position’ of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.’ In remitting the case for re-hearing the court concluded (para 112) that “the complaint is that the enquiry was diverted to [a] determination of the location in which the child could maintain a ‘meaningful relationship’ with both parents, rather than determining which of the proposals was better for the child”. The court added (paras 123-124) that “having a ‘meaningful relationship’ with both parents is but one part of a set of arrangements that makes up a care arrangement”; that [a]ll parts of the arrangement must be considered before deciding what outcome is in the child’s best interests; and that the Acting Magistrate “did not discuss, but rather assumed, there was benefit to the child in having … a [meaningful] relationship, without saying why, or what weight he placed on that factor”. Children – UK parenting order registered by the Family Court of Australia under Child Protection Convention – Mirror order made with machinery terms to facilitate enforceability here In Merrick & Wellington [2014] FamCA 514 (14 July 2014) Bennett J heard a consent application under the 1996 Child Protection Convention to register a parenting order of the Family Court in England, UK. The UK order allowed the mother to relocate the parties’ child from the UK to Perth (Australia) if “the mother obtain[ed] an order from the Family Court of Australia that reflect[ed] the [UK] child arrangements order” (para 3). Bennett J said (para 10) that under 69E of the Family Law Act our court has jurisdiction in respect of a child who is not present or resident here or an Australian citizen if “it would be in accordance with a treaty or arrangement between Australia and an overseas jurisdiction, or the common law

rules of private international law, for the court to exercise jurisdiction in the proceedings”, the Convention being such a treaty. Bennett J observed (paras 22-23) that “[the] Convention contemplates a two stage process [being] recognition by operation of law [followed by] a declaration of enforceability or registration of the … order … called ‘registration for enforcement’”. The order was registered under Reg 12(1) of the Family Law (Child Protection Convention) Regulations 2003 and (para 36) the order made by Bennett J “contain[ed] all of the terms of the UK order together with some machinery provisions so that it will be readily enforceable in Australia”. Children – Child Abduction Convention – Father unilaterally returned with the children from extended stay in Canada when mother expressed wish to separate – Habitual residence In State Central Authority & Trembath [2014] FamCA 468 (1 July 2014) Dawe J dismissed a Hague Child Abduction Convention application by the State Central Authority on behalf of the mother for the return of two children to Canada (where the family had been living for some months on an extended stay until the mother expressed her wish to separate and the father returned with the children to his farm in South Australia) on the ground argued by the father that the children were habitually resident in Australia. Children – Court’s jurisdiction to restrain a parent from leaving Australia and request the AFP to place him on the Watch List In Zanda [2014] FCCA 1326 (2 July 2014) after an earlier interim hearing at which the mother was granted ex parte orders, the father argued at the next return of the case that the court lacked jurisdiction to make an order (as it did) restraining his departure from Australia or requesting the Australian Federal Police to place his name on the Airport Watch List (para 46). Judge Harman referred to authority (paras 48-60) and s 114(3) of the Family Law Act and held (para 66) that the court did have such jurisdiction. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. www. thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol.

case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT

Designs Act

appeal by the Minister against a decision of the Federal Circuit Court of Australia that found jurisdictional error by the Refugee Review Tribunal. The Full Court reviewed authority as to when a tribunal fails to consider a claim not expressly advanced and when the claim is not made at all. The court concluded the FCCA had erred in considering whether the respondent was required to modify conduct to avoid risk of persecution when the basis for it was not established.

Infringement

Patents

In BlueScope Steel Limited v Gram Engineering Pty Ltd [2014] FCAFC 107 (26 August 2014) a Full Court reviewed authority under the Designs Act 1906 (Cth) on the issues of the nature of the monopoly granted, obvious imitation and fraudulent imitation before dismissing an appeal and cross-appeal on questions of fact from the primary judge.

Composition of nucleic acid

Industrial law

Adjournment

Contract of employment

In Shannon v Commonwealth Bank of Australia [2014] FCAFC 108 (29 August 2014) a Full Court dismissed an appeal against a decision of the primary judge to refuse an adjournment.

Bankruptcy ‘Convene’ a committee In Burke v Inspector-General in Bankruptcy [2014] FCAFC 112 (3 September 2014) a Full Court considered whether the requirement in s155H(2) of the Bankruptcy Act 1966 (Cth) that a committee ‘convene’, required that it be formed or meet.

In Stratton Finance Pty Limited v Webb [2014] FCAFC 110 (2 September 2014) a Full Court considered authority as to the role of subsequent conduct of the parties in resolving ambiguity in contracts of employment in a claim for underpayment of commission. The court also considered when multiple contraventions constituted one course of conduct for the Fair Work Act 2009 (Cth). Insurance Fire insurance – ACT – whether rebuilt building a substantial alteration In Vivekananda (in his capacity as Executor of the Estate of Jayammal Vivekananda) v Insurance Australia Ltd t/as NRMA Insurance [2014] FCAFC 116 (26 August 2014) a Full Court considered whether the provisions of the ACT Building Act 2004 (ACT) meant that a building damaged by fire had to be reinstated or rebuilt and constituted a substantial alteration for the purposes of the relevant insurance policy. Migration Jurisdictional error – consideration of claims made In Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 (22 August 2014) a Full Court allowed an

In D’Arcy v Myriad Genetics Inc [2014] FCAFC 115 (5 September 2014) a Full Court considered whether the description of the composition of isolated nucleic acid constituted claim for manufacture within s18(1)(a) of the Patents Act 1990 (Cth). Practice

Tax International tax In Task Technology Pty Ltd v Commissioner of Taxation [2014] FCAFC 113 (5 September 2014) a Full Court considered whether payment of royalties under an agreement was subject to the 1981 Convention between Australia and Canada. HIGH COURT Contract – implied terms Employment – contract of employment – implied terms of contract – when term of mutual trust and confidence implied In Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014) the High Court concluded that the common law of Australia did not recognise an implied term in contracts of employment that neither party would without reasonable cause act in a manner likely to damage the relationship of trust and confidence between them. B was employed by the appellant bank. His position became redundant. He was not able to access the bank’s policy for redeployment due to errors by the bank’s

officers. The trial judge in the Federal Court and the majority of the Full Court of the Federal Court concluded that was in breach of the bank’s implied obligation. The High Court concluded there was no obligation and allowed the Bank’s appeal: French CJ, Bell and Keane JJ jointly; sim Bell J and Gageler J. Consideration generally of implied terms in contract law. Appeal allowed. Insurance Contract – remedies – insurer not to refuse indemnity unless acts of insured affect risk – whether acts of insured affect risk – insurance of trucks – failure of insured/owner to psychologically certify drivers – whether this act affected claims In Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33 (10 September 2014) the respondent owned B-Double trucks that were insured with the appellant insurers. The policy required, inter alia, that the drivers be certified as psychologically attuned to driving the trucks. Trucks were involved in collisions in Western Australia while being driven by drivers who had not been psychologically tested and certified and the appellant insurers denied indemnity. The insurers accepted that the failure to test and certify the drivers had no effect on the actual risk for s54(2) of the Insurance Contracts Act 1984 (Cth). The insurers contended that they could refuse to pay the ‘claim’ under s54(1) of the Act as the ‘claim’ was limited to a claim for an insured risk and having the trucks driven by uncertified drivers was not such a risk. The insurers failed at trial and before the Court of Appeal (WA). Their appeal to the High Court was dismissed in a joint judgment: Hayne, Crennan, Kiefel, Bell and Gageler JJ. The High Court concluded the failure to ensure the drivers were certified was an act of the insured that occurred after the policy was formed for s54(1) and the section operated to prevent the insurers from denying liability as a consequence unless their interests were actually prejudiced which was not the case. Decision in Johnson v Triple C Furniture & Electrical Pty Ltd [2012] Qd R 337 overruled. Appeal dismissed.

Thomas Hurley is a Victorian barrister, phone (03) 9225 7034, email tvhurley@ vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au

law council update

LAW COUNCIL CALLS FOR ROBUST PARLIAMENTARY DEBATE ON FOREIGN FIGHTERS BILL

However, the Law Council considers there remain measures in the Bill which would benefit from closer scrutiny.

The Law Council of Australia welcomes the report of the Parliamentary Joint Committee on Intelligence and Security in relation to the Crimes Legislation Amendment (Foreign Fighters) Bill 2014.

“The Law Council particularly draws to the Parliament’s attention the need for careful drafting with respect to the proposed ‘declared area’ offence, including consideration of whether the range of legitimate purposes is sufficiently well-described.

Law Council of Australia President, Mr Michael Colbran QC, said the Foreign Fighters Bill contains significant measures which seek to protect Australians and the security of our nation. “The Law Council supports the Government’s resolve to provide a strong legislative regime to criminalise acts of terrorism and protect Australians from the threat of those who travel overseas, participate in hostile activity and return to Australia. “It is important to react appropriately to the terrorist threat but to do so in a way that supports and manifests the principles of individual freedom that underpin our society. “The Parliamentary Committee’s recommendations will help to ensure the fundamental freedoms we value in Australia continue to be protected under these new measures,” Mr Colbran said. The Law Council notes that the Committee report reflects many of the Law Council’s recommendations relating to the Bill, including ensuring that information obtained from a foreign country under torture or duress, directly or indirectly, will not be admissible in an Australian court; clarifying the meaning of the terms ‘encourage’, ‘promotion’ and ‘advocacy’ with regard to the proposed ‘advocacy of terrorism’ offences; and introducing certain safeguards in respect of Customs’ expanded detention powers. The Law Council also supports the Committee’s additional recommendation that its oversight functions be expanded to include the Australian Federal Police’s counter-terrorism activities. 44 | Brief November 2014

•

The Legal Services Council will play a key role in the new uniform legal services scheme and will oversee the implementation of the Legal Profession Uniform Law to ensure its consistent application across participating jurisdictions, which at this stage include New South Wales and Victoria.

•

Mr Black was appointed Chief Justice of the Federal Court of Australia in 1991 and held the position for almost 20 years. Prior to his appointment as Chief Justice he practised at the Victorian Bar.

•

During his time as Chief Justice, the Court consolidated its position as the national intermediate appellate court and had, as well as his judicial duties, statutory responsibility for the administration of the Court.

•

“The Law Council encourages the Parliament to pay close regard to the Committee’s recommendations as it debates the Bill’s provisions.

Under his guidance and control, the Federal Court introduced many innovations in procedural change, including the specialist panel system, the introduction of the Docket System and the ‘RocketDocket’ System.

•

“Careful scrutiny and demonstrated need – rather than a rushed response – is vital to preserving our liberties,” Mr Colbran said.

Mr Black is recognised for his responsive and innovative approach to procedural change and for his outstanding administrative skills.

•

Mr Black was also responsible for leading and directing the creation of the Victorian Bar Readers’ Course and in doing so has influenced the legal education of barristers for over 30 years.

•

His consultative nature combined with his broad background and extensive experience at the Bar and the Federal Court bench, will prove invaluable in his role with the Council.

•

Mr Black has a strong reputation in the legal profession and I am certain he will fulfil this new role with great effectiveness.

“It is difficult to prescribe in legislation the range of legitimate reasons a person may travel to a ‘declared area’ and there is the potential for uncertainty to arise by adopting such an approach before the travel has been undertaken and all the facts and circumstances are known. “In the Law Council’s view, judicial discretion should be permitted to determine whether a defendant’s travel was for a legitimate purpose,” Mr Colbran said. While the Law Council recognises there is urgency in enacting the Bill, robust Parliamentary scrutiny of its measures will aid a proportionate response.

LAW COUNCIL WELCOMES APPOINTMENT OF INAUGURAL CHAIR OF THE LEGAL SERVICES COUNCIL The following statement can be attributed to Mr Michael Colbran QC, President, Law Council of Australia: •

The Law Council of Australia welcomes the appointment of former Federal Court Chief Justice Michael Black AC, QC as the inaugural chair of the Legal Services Council.

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announcements & classifieds

Professional Announcements Career moves and changes in your profession Leaker Partners Leaker Partners are thrilled to announce the appointment of Victoria Brasted as a Partner in the firm as from 1 October 2014.

Paterson & Dowding Family Lawyers

Victoria Brasted

Paterson & Dowding Family Lawyers are pleased to announce the appointment of Rebecca Hall to their team.

Slater and Gordon

Rebecca Hall

Victoria practices in all areas of commercial law including business sales and acquisitions, commercial leasing, and securities and regularly acts for private companies, small to medium enterprises and high net worth individuals.

Rebecca has extensive Family Law experience and is a valued addition to our team.

Victoria has a particular interest in advising clients on how to protect their security interests under the Personal Property Securities Act 2009 regime.

HHG Legal Group is delighted to welcome Richard Staynor who will be providing Consultancy services to the firm in the Wills & Estate Planning Practice. Richard is an Richard Staynor extremely experienced Practitioner and a welcome addition to this extremely busy practice area.

Kott Gunning Kott Gunning announces the re-appointment of Tom Darbyshire as Managing Partner taking over from Stephen Williams who has stepped down after two years in the role.

Tom Darbyshire

Tom is an experience litigator and will continue to play a key role in the firm’s growing Insolvency and Reconstruction practice.

HHG Legal Group

Tolcon Legal are pleased to announce their commencement of practice as of 1 October 2014. Tolcon Legal, directed by Mr Jeremy Tolcon, are a boutique law firm practising in Family Law, Wills and Estates Planning. www.tolconlegal.com.au

Slater and Gordon workers compensation lawyer Irena Siljanoska has been appointed to Associate. Irena commenced with Slater and Gordon’s Perth office in November 2010, having been admitted in March 2009. She practices solely in the workers compensation practice, in both state and federal compensation claims, where she has been a significant part of the department’s growth and also strengthened the firm’s relationship with key union clients. Irena is a member of the dispute user service group at UnionsWA and represents Slater and Gordon in legislative review at WorkCover WA. Vanessa Clark, family lawyer with Slater and Gordon, has been appointed to Associate. After being admitted to the High Court in New Zealand in 2009, Vanessa practiced family law in that country until moving to Australia in 2011. She was admitted to the Supreme Court of Western Australia in April 2011 and is now working for Slater and Gordon after her previous employer Gibson & Gibson was acquired in 2013. Vanessa’s areas of expertise are property law, children’s matters, de facto and same sex relationships, relocation, child abduction (Hague Convention) and divorce, and she also specialises in mediation and litigation. She has played a key role in the significant growth the family law team at Slater and Gordon has experienced.

GENUINE UNIQUE OPPORTUNITY TO OWN A SUCCESSFUL FAMILY LAW PRACTICE OPERATE AS STAND ALONE BUSINESS OR EXPAND EXISTING PRACTICE This well established Family Law Practice is centrally located in a high visibility, high density residential area in a southern suburb. Established client base & steady walk-in new business. Modern, professional oﬃces with capacity for up to 4 practitioners & receptionist. Very good lease terms.

For sale due to personal reasons Oﬀered to the market at $80,000 All enquiries will be treated in complete conﬁdence.

GENUINE SCOPE FOR GROWTH. Gross Fee Value approximately $250,000. Current sole practitioner only works average 3hrs/day - for personal reasons. Includes: Several thousand precedent documents, all oﬃce ﬁttings, software system, computers, furniture & phone system. Contact Lynda Armstrong | larmstrong@buyabusiness.com.au | (08) 9481 4422 | 0439 902 778 46 | Brief November 2014

new members

New Members New members joining the Society ASSOCIATE MEMBERSHIP Miss Priscilla Abishegam Mr Paul Brandalise Mr Matt Gunn Miss Anna Jones Ms Melanie Leano Mr Nicholas Mansfield Mrs Rochelle Mitchell Ms Gemma Richardson Mr Edgardo Sanchez Mrs Sumarie Steyn Mr Christopher Terren Mr Clayton Woodhouse

Turner Freeman Lawyers

Price Sierakowski

Turner Freeman Lawyers Price Sierakowski

NOTICE

ORDINARY MEMBERSHIP Mr Mark Byrnes Miss Rebecca Hall Mr Paul Price

RESTRICTED PRACTITIONER Ms Amber Corrigan HLS Legal Mr Nicolaas Hofmeyr Aboriginal Family Law Service Mr Greg Maher Paterson Michael & Associates Barristers & Solicitors Ms Brid Ni Fhlatharta Herbert Smith Freehills Ms Ciara Dillon Equitas Lawyers Mr Chadley Heslop Mrs Gina Nofal CGL Legal Mr Luke Hall Eaton Hall

Classifieds

MISSING WILL Any law firm or individual having knowledge of any Will made by ISABELLA D’ANGELO born 28 March 1921 died 2 December 2012, of 22 John Street, Bentley please contact GV Lawyers, Solicitors, Locked Bag 3042, Perth, 6832. Telephone: 9325 6188

MISSING WILL The Estate of Zelda Jean Kitson; Deceased 4 September 2013. Anyone knowing the whereabouts of the Last Will of the above named Deceased, please contact Max Owens & Co, 2 Zoe Street Bunbury, Telephone 08 9721 5399. Similarly anyone knowing the whereabouts and/or details of a legal firm called “RD Lane & Son solicitors of Perth”.

Paterson & Dowding Price Sierakowski

DISCIPLINARY PROCEEDINGS I am the subject of disciplinary proceedings before SAT arising from the circumstances in which I took instructions for a Will and an EPA and then procured the execution of those documents. I urgently need objective feedback and guidance from lawyers with experience in such dealings with patients in hospices and in the palliative care wards of hospitals. I will not call you as a witness for me or otherwise involve you in SAT or in further phases of my proceedings. Your discussions with me will be in strictest confidence. If you are prepared to help, please call me (Gavin Wells) on 0404 351 329 ASAP.

JUNIOR LAWYER SEEKING OPPORTUNITY Determined lawyer. Interests: Arbitration, alternative dispute resolution and commercial litigation Building, construction, engineering, infrastructure and projects Government, town planning and environment Energy and resources Should your practice have an opportunity, please contact: legal.jobsearch@yahoo.com.au Your confidentiality is appreciated.

For advertising opportunities in Brief 2015 please contact:

BRIEF 2015

Eleanor Jackson Business Development Executive T: (08) 9324 8639 E: ejackson@lawsocietywa.asn.au lawsocietywa.asn.au

events calendar

Events Calendar Date

Event

Location

Type

Thursday, 20 November

Contemporary issues in employment contract law

The Law Society of Western Australia

CPD

Thursday, 20 November

Contemporary issues in workplace relations law

The Law Society of Western Australia

CPD

Friday, 21 November

Ethics on Friday: Billing and Ethical Conundrums

The Law Society of Western Australia

CPD

Thursday, 27 November

YLC Fundamental Evidence Series: Areas of complexity- hearsay and documentary evidence

The Law Society of Western Australia

CPD

Tuesday 2 December

Strategies for being an effective supervisor

The Law Society of Western Australia

CPD

Wednesday, 3 December

End of Year Celebration

Parmelia Hilton

Thursday, 4 December

Lawyers’ Advice Certificates for Bank Guarantors, Self-Managed Super Funds, Franchise Businesses and Reverse Mortgages

The Law Society of Western Australia

CPD

Thursday 11 December

YLC A view from the bench

The Law Society of Western Australia

CPD

Friday, 20 February 2015

Law Summer School

University of WA Club

CPD

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8600 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8600

One fixed price gives you the flexibility to complete limitless CPD throughout the year.

FOR $800 CPD ACTIVE PROVIDES MEMBERS WITH: • Unlimited* face-to-face CPD seminar attendance • 10 free seminar papers of your choice • $20 flat fee for eLearning seminars

48 | Brief November 2014

BMW

YOUR EXCLUSIVE MEMBER BENEFITS START AT AUTO CLASSIC AND WESTCOAST BMW.

Sales Finance Service Parts

As a member of the Law Society WA, you could be eligible to enjoy the many rewards of BMW Advantage, a member benefit programme that gives you the opportunity to get behind the wheel of the Ultimate Driving Machine. The exclusive ownership benefits include complimentary BMW Service Inclusive for up to 5 years/80,000kms and corporate pricing,* to name but a few. To find out how you could start a rewarding journey with BMW Advantage, visit bmw.com.au/advantage or contact Auto Classic and Westcoast BMW today.

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0409 803 586. autoclassic.com.au LMCT 2271

Westcoast BMW Cnr Luisini Road and Hartman Drive, Wangara. Ph 9303 5888. A/H 0420 985 013. westcoastbmw.com.au LMCT 2271

*Benefits apply to the purchase of a new BMW vehicle and only to the vehicle purchased. Subject to eligibility. Terms, conditions, exclusions and other limitations apply, and can be viewed at bmw.com.au/advantage.

08-146 | Hudson Global Resources (Aust) Pty Limited ABN 21 002 888 762

RepResenting thousands of successful caReeRs Encompassing local private practice and in-house roles with access to global vacancies, Hudson Legal has the broad opportunities you need to succeed in law no matter what your specialisation or where you want to go. Our specialist consultants draw upon legal backgrounds as diverse and challenging as your own to understand your needs and ensure you achieve your career ambitions. And with over twenty years of success in the industry and an international network supporting us, you can trust we know what it takes to reach the forefront of legal recruitment and stay there.

au.hudson.com/legaljobs

properTy

LiTigATion

Senior Associate

Lawyer/Associate

Premier Australian firm seeking Senior Associate with experience on a broad range of project development, strata titles, acquisitions and disposals, and commercial leasing matters. ref: BX/43198

Top-tier Australian brand. Highly regarded LDR team seeking lawyer with 3–5 years’ PAE. Broad, commercial general litigation exposure. Employer of Choice offering genuine opportunity for career progression. ref: 6B/14685

Solicitor/Associate Top-tier firm. Solicitors with 2–5 years’ PAE required. Assist on highprofile PPP, infrastructure, land access, urban renewal and property development matters. Large, collegiate team with Employer of Choice. ref: 6B/14711

Solicitor/Associate

Lawyer Independent firm. Insolvency lawyer with 2–5 years’ PAE required. Act for top-tier lenders on all aspects of corporate insolvency and restructuring. Dynamic firm with active and social culture. ref: BX/40820

Associate/Senior Associate

Prestigious, global firm. Solicitor with 4–5 years’ PAE sought. Enjoy increased exposure on a small team. Transactions deriving from leadingedge infrastructure projects. ref: 6B/15225

Premier firm seeking general commercial litigation lawyer with 3–5 years’ PAE. Varied matters, including white collar crime and product liability. Learn from Partners with specialist industry knowledge. ref: BX/41768

CorporATe & BAnking

ConSTruCTion

Banking Lawyers

Lawyer/Associate

Opportunities for Banking & Finance lawyers with 2–7 years’ PAE. International project finance, corporate finance and property finance transactions. Act for international blue chip banks and lenders. ref: BX/42399

Global firm. Driven, front-end construction lawyer with 2–4 years’ PAE sought for high-powered and excitingteam. Act for blue-chip construction and resources industry infrastructure owners. ref: BX/42754

Corporate e&r Lawyers

Junior Lawyer

Prestigious, international firm. Superb opportunities for lawyers with 3–8 years’ PAE to work on leading corporate, securities, M&A, ECM and private equity matters. ref: BX/43199

Mid/Senior Lawyers National, expanding brand. Varied corporate and general commercial matters. Clients include international resources companies and local property developers. ref: BX/42403

Leading Perth boutique. Opportunity for lawyer with 1–3 years’ top-tier, front-end experienceto develop in client-facing role.Down-to-earth and open environment. Highly regarded Partners. Outstanding salary! ref: 6B/15262

Mid/Senior Lawyer Premier, international brand. Construction litigation lawyer with 4–7 years’ experience sought for a tight knit team with diverse backgrounds. Enjoy direct and open communication. Supportive team. ref: BX/43159

The above roles are just a few examples of the many current opportunities Hudson Legal can assist you with. For further information, please contact Aoife Stapleton on 08 9323 0200 or email your CV to aoife.stapleton@hudson.com.