Brief February 2015

Volume 42 | Number 1 | February 2015

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Contents

GO DIGITAL!

Volume 42 | Number 1 | February 2015

Take me with you.

28

24

02

President’s Report

34

Sir Lawrence Walter Jackson

Matthew Keogh

The Hon Nicholas Hasluck AM, QC

04

Editorial

36

Caveats: An Essential Guide to Caveats

Julian Sher

Doug Solomon

06

Profits versus professionalism

46

Family Law Case Notes

Gino Dal Pont

47

Thomas Hurley Case Notes

08

2015 Council

48

Law Council Update

10

Meeting of the Minds

49

Pam Sawyer

12

End of Year Celebration

50

Professional Announcements

14

Be a Judge for the 2015 Mock Trial Competition

Daniel Vivian

51

Classifieds

16

Disputing a Tax Assessment from Objection to Hearing - Part Two

51

New Members

52

Events Calendar

Michael Flynn

24

Privilege in the in-house context

Adam Santa Maria

28

FEATURE National e-Conveyancing – removing the mystique

Michele Lancaster

33

Use ‘That’, which is Almost Always Better

Victor Ageev

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 Manager - Business Development Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Communications and Media Officer Tanya Holzmann Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

EDITOR Julian Sher

PRESIDENT Matthew Keogh

EDITORIAL COMMITTEE Cheyne Beetham, 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 Elizabeth Needham

PROOFREADERS Michael Hardy, Leisa Mundy 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: lawsocietywa.asn.au

VICE PRESIDENT Alain Musikanth TREASURER Hayley Cormann ORDINARY MEMBERS Alison Aldrich, Marie Botsis, Tara Connolly, Hayley Cormann, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Greg McIntyre SC, Marshall McKenna, Denis McLeod COUNTRY MEMBER Georgia Pickering

ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome.

For further details, please contact communicationsofficer@lawsocietywa.asn.au

JUNIOR MEMBERS Emma Cavanagh, Ray Christensen, Rosie Hill IMMEDIATE PAST PRESIDENT Konrad de Kerloy

01

report

President's Report Matthew Keogh, President, The Law Society of Western Australia

You know, it’s a most extraordinary thing, my Learned Friend. We go through all the mumbo-jumbo, we put on the wig, and the gown, we mutter the ritual prayers, “If your Lordship pleases”, “Ladies and Gentlemen of the Jury”, abracadabra, fee fie foe bloody fum. And just when everybody thinks you’re going to produce the most ludicrously fake piece of cheesecloth evidence, there it is, clear as a bell! The truth! Don’t you find it? You know, it’s bloody scary sometimes, ha ha, but there it is, the truth. Naked and embarrassing!

Horace Rumpole Happy New Year and welcome to the first edition of Brief for 2015, and my first report to you as President.

In a sense I started my duties as President in late 2014, with the honour of appearing on behalf of the profession and the Law Society at the special sitting of the Supreme Court in celebration of the great life and contribution to the law of the late former Chief Justice, David Malcolm AC QC CitWA. As I said then, “While David Malcolm’s passing is a sad time, today should be seen as a celebration of a life well lived in service of his clients, the profession, the law, and the state.”

Personally, I was never afforded the opportunity of appearing before Chief Justice Malcolm, having been admitted just two months after his retirement from the bench. Similarly, as the youngest President of the Society in its nearly 88 year history, I am not in the same cohort as other leaders of our profession, such as those in the judiciary, members of regulators or leading government. I think this is a good thing as it affords me a unique perspective on the issues we as a profession and community have to encounter and deal with, in particular, a longer term horizon. This also demonstrates the leadership of the Society in tackling the challenge of

02 | Brief February 2015

generational change, which can be a struggle for many organisations.

you can do for the Society (as well as the profession and the community at large).

YOU’RE THE VOICE! It’s always useful at the beginning of a year to take a step back and reflect. I would like to build upon the thoughts of the Immediate Past President in his reports in 2014. Konrad emphasised the importance of the rule of law. Without the rule of law, we have tyranny and it is as important in the theory as in the practice. This is why very careful consideration must be given to laws that exclude the capacity of our courts to review the actions of government. As lawyers, this is something we all know to be true. The corollary of this is the importance of the content of the law.

It is for this reason that the Society must stand tall as the voice of the legal profession in Western Australia. The Society’s voice must not only be used in the direct interest of our members and in support of the principle of the rule of law but also in defense of our courts and the administration of justice.

The voice of the legal profession must also be heard on what laws need to be changed and what changes to the law are unacceptable.

While as a profession and a Society we must work constructively with regulators and governments, noting with appreciation when things are done well, we must also not be afraid to stand tall and use our voice at appropriate times.

The Society is your society and our capacity to deliver results and services for you depends on your engagement with us as well as with us engaging with you. We want to know what you think about issues and what you would like to see your Society doing about them.

As a voluntary association, the more we all contribute, the more we can achieve.

So if you feel strongly about something please volunteer to lend a hand in developing the Society’s position or response. Essentially, ask what the Society can do for you but also ask what

WORK HAS ALREADY STARTED The hustle and bustle of the work of the year has commenced, with media interviews, finalisation of submissions regarding aspects of the ‘national’ legal profession in New South Wales and Victoria and our first Society Council meeting for 2015 already behind us. The beginning of the year is also an exciting time, as Councillors are reaching out to the Convenors of the Society’s Committees in consultation leading up to our newly instituted annual planning day with the Senior Management Team in early February.

As President, I am looking forward to being able to oversee the implementation of the great work undertaken by Council in 2014 under the leadership of our Immediate Past President, Konrad de Kerloy; in particular, our new Strategic Plan and recommendations from our organisational review. Members should start seeing the difference in 2015, with a Society that is even more responsive to what you want and more visible in leading the charge on the issues that matter to the profession.

In addition to the work coming out of our planning day, some of the key areas of work that we already know will be pursued by the Society in 2015 are: Mental health, wellbeing, retention and gender bias All of these areas are important in and of themselves but there is no escaping the high degree of interrelationship between them and the importance to the profession of making improvements in these areas.

This is why in 2015 the Society will be working with the Law Council of Australia on the national action plan in response to its National Attrition and Retention Survey (NARS) of the profession.

You will also no doubt recall the Law Society’s 2011 Report on Psychological Distress and Depression in the Legal Profession authored by Dr Christopher Kendall. The Society has worked hard to implement the recommendations of this report and it has been considered by many of our counterparts in other states and territories in implementing their own responses to these issues.

This year will see the review of the report, its recommendations and their implementation by our Mental Health and Wellbeing Committee, which will then report its recommendations to Council.

Related to these issues, are those raised in Chapter 2 of the 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report, many of which involve recommendations calling for work by the Society. The Society will be working through its Joint Committee with Women Lawyers WA to formulate its response and develop a plan as to how it can work towards the implementation of those recommendations.

Finally, in recognition of the importance of these issues, the Society has recommended to the Legal Practice Board that it consider introducing a CPD requirement to obtain a point in respect of mental health or the self-care of practitioners. As one of the oldest and traditionally most collegial of the professions, we must make sure that we look after one another.

Access to Justice We will be continuing our work on the enhancement of the Society’s Law Access pro bono clearing house service in 2015 through our new subsidiary Law Access Ltd; moving now into the implementation stage with the establishment of the Law Access Ltd board, of which I am very proud to be the inaugural chairperson. There are more exciting things to come in this regard very soon.

Also, the Productivity Commission released its report into Access to Justice Arrangements regarding civil and family matters in December 2014.

The report throws up many interesting proposals, including recommendations of increases in funding for access to justice services, reform of court processes, providing more transparency to consumers regarding estimated legal costs and opening up work in certain areas to non-lawyers. The Society will of course be giving strong consideration to the Productivity Commission’s recommendations but is also interested

in the profession’s views on both increasing access to justice and how recommendations may have unintended negative consequences.

Oversupply of law graduates / undersupply of law jobs Whichever way you cut this problem, it is causing immense stress on law students and graduates, their families and the profession as a whole, which would genuinely like to be able to help all those wishing to become lawyers.

The Society will be working this year with its counterparts in other states and territories as well as the Law Council of Australia through its Legal Education Committee to look at ways in which these issues can be best tackled.

A STRONG TEAM FOR YOU The Society Council features many new faces from various areas of practice in 2015 and I look forward with working with them all in the continued betterment of the Society for its members. Indeed, the Society’s Council of 20 personifies an appropriate balance of new youth and the experience of years, with nine young lawyers,1 four barristers, seven principals, a country lawyer, two suburban lawyers, a community lawyer, three government lawyers, nine women lawyers, two family lawyers, four criminal lawyers, and front and back end corporate lawyers of various guises.

In 2015, we welcome Alison Aldrich (Alison & Associates), Tara Connolly (Valenti Lawyers), Nicholas Ellery (Corrs Chambers Westgarth), Catherine Fletcher (Office of the Director of Public Prosecutions), Marshall McKenna (Allens), Georgia Pickering (Bunbury Community Legal Centre) and Ray Christensen (Zilkens). They join continuing members, new Senior Vice President Elizabeth Needham (Francis Burt Chambers), new Vice President Alain Musikanth (Francis Burt Chambers), new Treasurer Hayley Cormann (Clayton Utz), Marie Botsis (DLA Piper), Brahma Dharmananda SC (Francis Burt Chambers), Nathan Ebbs (Bennett + Co.), Adam Ebell (Office of the Director of Public Prosecutions), Greg McIntyre SC (John Toohey Chambers), Denis McLeod (McLeods), Emma Cavanagh (Minter Ellison), Rosie Hill (State Solicitor’s Office) and, of course, our Immediate Past President Konrad de Kerloy (Herbert Smith Freehills).

Toohey Chambers), Pamela Hass (WA Department of State Development), Clinton Russell (Francis Burt Chambers), Nicholas van Hattem (State Solicitor’s Office), Cameron Syme (Latro Lawyers), Hayley Ellison (Culshaw Miller) and former President Craig Slater (Francis Burt Chambers). All brought unique insight and passion to their roles on Council, with all having served with distinction on various committees of the Society, including the Executive and in particular Craig as President.

Your Council is supported in 2015 by the Executive Director of the Law Society, David Price and a team of dedicated staff. Following our organisational review, the Senior Management Team now comprises Andrea Lace (General Manager – Advocacy), Aine Whelan (General Manager – Programmes), Leanne Follows (General Manager – Corporate Services) and Jo-Anne Munro (General Manager – Law Mutual). The whole Council looks forward to working closely with the staff of the Society in 2015.

Of course, I would also like to thank our recently retired Editor of Brief, Rebecca Lee for her work over the last 3 years and welcome new Editor, Julian Sher, both of Francis Burt Chambers. Rebecca oversaw the movement of Brief’s production in-house to the Society, which has been a great success, and we look forward to the further evolution of Brief under Julian’s experienced leadership.

Last but not least, a huge thank you to Teresa Baker. Many of you will have met or spoken to Teresa in her role as the Society’s receptionist over the last 17 years. Teresa retired at the end of 2014 after an amazing effort and tireless work for us all.

In conclusion, I would like to leave you with this passing thought for the year: illegitimi non carborundum.

NOTES

1.

A ‘young lawyer’ is defined as a practitioner admitted for less than 6 years or under 35 years of age.

I would also like to thank my now former colleagues who have left the Council of the Law Society at the end of 2014: Brendan Ashdown (John

03

editorial

Taking over the Reins Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal Once the initial excitement of my appointment as the latest editor of this esteemed journal had worn off, the reality started to set in. Instead of spending all summer – as all good Australians are supposed to do – on the beach (or occupied in some other similar seasonal leisure activity), I have had to knuckle down, come up with a few good ideas and write my first editorial. This has had to be crammed in between the inevitable festive activities and the rush for the airport on a family holiday. So here goes …

My first task is to say how genuinely humbled I am to be selected for this role.

I thank my predecessor, Rebecca Lee for her kind words, in her announcement in December’s Brief that I would be her successor. I am conscious of the responsibility that rests on me, but I am reassured by the support I have received from all concerned - from the President of the Society, the Brief Editorial Committee, the staff and also from my friends.

Brief describes itself as “the official journal of the WA legal profession.”

Traditionally it has served as a vehicle for communicating official messages and announcements from the Society and disseminating articles of legal interest.

On the lighter side it has included reports of social and sporting activities, as well as an Alston cartoon. Anyone who takes the trouble to page through old editions of this journal will be fulsomely rewarded with a verbal and pictorial history of the WA profession. The notable personalities who have made such a tremendous contribution and the important issues that the profession has had to grapple with, are all part and parcel of that rich tapestry.

To a certain extent this journal has carried the stamp of each of its editors over the years, reflecting changes in the way the profession has grown and conducted itself. The most striking feature of contemporary practice is that we practise in a globalised profession, not merely a national one. This applies irrespective of whether we practise in the largest international or national partnerships, a small firm, or as sole practitioners, whether for corporations or government, 04 | Brief February 2015

or whether we practise criminal or civil law. This is the result of the rapid technological revolution that has occurred as well as other factors connected with the movement of people and businesses, responding to international socioeconomic developments.

These changes are reflected in such things as the discussions around the topic of the national regulation of legal practice; the evolution of commercial arbitration law, insolvency law and foreign bribery law and a myriad of other areas. Not least of these, in the current global climate, are national security laws and human rights.

An area of particular practical interest is the perennially important subject of professional ethics. In today’s globalised world, compliance with ethical rules will continue to produce challenges. These are not to be confused with challenges to our fundamental ethical principles, but are more correctly challenges to their implementation, posed by the complex world in which we all practise.

My aim as editor is to build on what has gone before, by continuing to include feature quality articles of legal substance and also focus on personalities and events of significant interest to the profession.

To be a forum for contemporary issues of practical importance to us all, I also hope to include in future editions, differing views on topical matters and monthly columns on ethics and professional practice, using case studies from Australia and abroad. There is a good deal to learn from overseas and interstate experience, while recognising that not everything from other jurisdictions is beneficial or relevant to WA. In that spirit my intention is to introduce a mixture of periodic columns: from overseas and interstate contributors, some formerly practising in WA, as well as other available material, including public speeches and papers by eminent jurists.

I recognise that despite the rapid pace of technological change and the volume of interesting material on the internet, practitioners do not always have the time to access ‘too much information’. I hope that Brief will be able to mould the volume

of available interesting material into a more manageable size to meet the time constraints of busy lawyers.

I take this opportunity to encourage all members to contribute to Brief and not wait to be asked – although I am positive that the editorial committee will occasionally ‘tap people on the shoulder’.

It is important that Brief represents the diversity of practice within WA, otherwise it cannot accurately be said to be the journal representing the diverse membership of the Society – and more broadly, the profession. Importantly, that diversity of contribution will be the key to Brief maintaining its role as an essential communication medium for members.

For those reasons, we need regular contributions from all modes of practice – solicitors in private and public practice, in-house lawyers, barristers and academic lawyers, as well as young lawyers and graduate lawyers.

This month’s issue of Brief contains a variety of topics from the practical to the historical. They include the second instalment of Michael Flynn’s article covering every aspect of disputing tax assessments, an explanation of e-conveyancing by Michele Lancaster, a discussion of legal professional privilege in an in-house context by Adam Santa Maria, Victor Ageev’s observations on grammar and word usage, and a tribute to the late Sir Lawrence Jackson from a speech by the Hon Nicholas Hasluck AM, QC. The usual President’s column and social news will continue.

Finally, I encourage our readership to engage with Brief, especially by suggesting new topics or features for future inclusion. In the dim distant past, Brief used to include a Letters to the Editor section. I am not averse to resurrecting this if readers are minded to put pen to paper, or, preferably, email the editor.

Brief welcomes your thoughts and feedback.

Send all letters to the editor to brief@lawsocietywa.asn.au

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ethics

Profits versus professionalism Professional controls on charging boost claims to professionalism Gino Dal Pont Professor, Faculty of Law, University of Tasmania

It is trite to observe that the practice of law has, in modern times, largely translated into a business. There was once an evident distinction between a profession and a business. According to Street CJ, in remarks uttered in 19501 (albeit judicially endorsed as recently as 2011),2 a business “is an occupation or calling in which the primary object is the pursuit of pecuniary gain”. In a profession, his Honour contrasted, “pecuniary success is not the only goal”; instead “[s]ervice is the ideal, and the earning of remuneration must always be subservient to this main purpose”.

The division between profession and business has witnessed attack not only by an expansion in the endeavours that claim professional status but by invasions of business methods and mentality into accepted professions.

In the legal sphere, for instance, the advance of competition law has in effect sounded the death knell of solicitorclient scales of costs; the ostensible price fixing qualities of these scales cannot, it is reasoned, survive a truly competitive marketplace. It has proven hardly surprising that, as a consequence, many (indeed most) lawyers charge clients on the basis commonly adopted by businesses operating in such a marketplace, according to time. And the competitive push has sanctioned (and even encouraged) lawyer advertising, which in times not too long past would have presented as anathema to the profession. Anachronistic business structures too could not withstand the business swell, and so Australian law recognises the incorporated legal practice, in which non-lawyers may invest and be involved in managing.

The alleged translation from profession to business has hardly been constrained in the face of a societal trend described as ‘affluenza’, namely the desire for more and more of what is material, and now rather than later.3 Well before any affluenza epidemic, a study in the United States revealed a dramatic increase within a generation of students entering 06 | Brief February 2015

tertiary studies valuing the idea of “being very well off financially”.4 When coupled with the pressures to view law as a business, how realistic is it to expect members of the legal profession to be immune to these gravitational pulls?

The barometer of a good business, after all, is ultimately the profits it generates.

That a business is driven by so-called ‘higher ideals’ will hardly shield it from a negative financial comparison with other businesses that, driven solely by mercenary aims, derive greater profits, and with this enjoy higher share prices and prospective dividends. In an era where law firms can list on the stock exchange, and there exists in any case heightened interest in the financial performance of non-listed firms, the drive to maximise law firm profits aligns with the business mould.

The foregoing assumes that professionalism has no lingering, and constraining, effect on profit maximisation. Yet this is not entirely correct. There remains, inter alia, a vindication of subsisting professional status when it comes to the fees that feed into those profits. Whereas a business that succeeds in charging more (and more) for its service(s) in the competitive marketplace is perceived as a successful business, the same cannot necessarily be said of a law practice. The professional proscription on overcharging here performs its arguably most valuable function, in counterbalancing the business focus inhering in the bulk of law practices.

It is, in this sense, perhaps the most pointed control on professionalism, and also emphasises (in part) the fiduciary standard applicable to lawyer-client dealings.5 Together these legal and professional controls serve to temper the core element that underscores the principal driver to increase profits, namely greed.

It is no surprise, accordingly, to find explicitly within the legal profession legislation a statement that the “charging

of excessive legal costs in connection with the practice of law” is capable of amounting to professional misconduct or unsatisfactory professional conduct.6 The (sometimes considerable) unilateral power of lawyers, vis-à-vis their clients, to determine the amount and scope of charging makes the professional sanction for overcharging all the more significant to sustaining professionalism, and in so doing tempering the human tendency towards greed. The point assumes especial significance where the lawyer-client relationship is punctuated by a knowledge and power imbalance favouring the former.7 More broadly, it has been observed, it is essential that lawyers “deal with clients in relation to fees, as in all matters, fairly”, and “ensure that the fees they charge their clients are reasonable and proportionate to the circumstances of each case”.8 At a time when complaints against lawyers (more) frequently target solicitor-client costs, and access to justice is at a premium, these remarks can be neither overlooked nor downplayed.

NOTES

1.

Re Foster (1950) 50 SR (NSW) 149 at 151.

2.

Legal Services Commissioner v Walter [2011] QSC 132 at [19] per Daubney J.

3.

C Hamilton and R Denniss, Affluenza: When Too Much is Never Enough, Allen & Unwin, 2005.

4.

See P J Schiltz, ‘On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession’ (1999) 52 Vanderbilt L Rev 871 at 896–7 (citing statistics that in 1970 some 39% of students entering college rated ‘being very well off financially’ as an ‘essential’ or ‘very important’ life goal, whereas in 1993 that figure had almost doubled to 75%).

5.

There are instances, to this end, where courts have couched overcharging under a fiduciary mantle: see, for example, Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228.

6.

See Legal Profession Act 2008 (WA) s404(b).

7.

Veghelyi v Law Society of New South Wales (CA(NSW), 6 October 1995, unreported) at 8–9 per Mahoney JA.

8.

Legal Profession Complaints Committee v O’Halloran [2013] WASAT 105 at [26].

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SERVERS

2015 COUNCIL Please make welcome your 2015 Council.

EXECUTIVE

Matthew Keogh President

Elizabeth Needham Senior Vice President

Senior Associate, Herbert Smith Freehills Council Term Expires: 12/2015

Barrister, Francis Burt Chambers Council Term Expires: 12/2015

Alain Musikanth Senior Vice President

Hayley Cormann Treasurer

Barrister, Francis Burt Chambers Council Term Expires: 12/2015

Senior Associate, Clayton Utz Council Term Expires: 12/2015

Alison Aldrich Ordinary Member

Marie Botsis Ordinary Member

Principal, Alison & Associates Council Term Expires: 12/2016

Senior Associate, DLA Piper Council Term Expires: 12/2015

Tara Connolly Ordinary Member

Brahma Dharmananda SC Ordinary Member

Solicitor, Valenti Lawyers Council Term Expires: 12/2016

Barrister, Francis Burt Chambers Council Term Expires: 12/2015

COUNCIL

08 | Brief February 2015

meet the council

Nathan Ebbs Ordinary Member

Adam Ebell Ordinary Member

Principal, Bennett + Co Council Term Expires: 12/2015

State Prosecutor, Office of the Director of Public Prosecutions Council Term Expires: 12/2015

Nicholas Ellery Ordinary Member

Catherine Fletcher Ordinary Member

Partner-in-Charge, Corrs Chambers Westgarth Council Term Expires: 12/2016

State Prosecutor, Office of the Director of Public Prosecutions Council Term Expires: 12/2016

Greg McIntyre SC Ordinary Member

Marshall McKenna Ordinary Member

Barrister, John Toohey Chambers Council Term Expires: 12/2016

Partner, Allens Council Term Expires: 12/2016

Denis McLeod Ordinary Member

Georgia Pickering Country Member

Managing Partner, McLeods Council Term Expires: 12/2015

Principal Solicitor, Bunbury Community Legal Centre Council Term Expires: 12/2015

Emma Cavanagh Junior Member

Ray Chistensen Junior Member

Solicitor, Minter Ellison Council Term Expires: 12/2015

Solicitor, Zilkens Council Term Expires: 12/2015

Rosie Hill Junior Member

Konrad de Kerloy Immediate Past President

Solicitor, State Solicitor's Office Council Term Expires: 12/2015

Partner, Herbert Smith Freehills Council Term Expires: 12/2015

09

Meeting of the Minds

The Society’s Executive met with the following organisations and dignitaries late last year:

The Attorney General and the Aboriginal Lawyers Committee The Society’s Executive met with the Hon Michael Mischin MLC, Attorney General of Western Australia and the Society’s Aboriginal Lawyers Committee on 10 September 2014.

From left front row: Tammy Solonec; Abbey Shillingford; Krista McMeeken; Laura Vincent; and Lucinda Robinson.

From left back row: Nikki Forrest; Matthew Hansen; the Hon Michael Mischin MLC; Matthew Keogh; Micah Kickett and Alain Musikanth.

The Leader of the Opposition; Shadow Attorney General and Shadow Minister for Police The Society’s Executive met with the Hon Mark McGowan MLA, Leader of the Opposition; John Quigley MLA, Shadow Attorney General and the Hon Michelle Roberts MLA, Shadow Minister for Police on 19 September 2014.

From left: Greg McIntyre SC; Krista McMeeken; Matthew Keogh; the Hon Michelle Roberts MLA; the Hon Mark McGowan MLA; Konrad de Kerloy; John Quigley MLA; Alain Musikanth; John Fiocco; and Elizabeth Needham.

The Country Practitioners Committee and the South West & Great Southern Law Society Inc. The Society’s Executive met with Country Practitioners Committee and Ms Georgia Pickering, President of the South West & Great Southern Law Society Inc. on 3 December 2014.

From left: Elizabeth Needham; Matthew Keogh; Georgia Pickering; Konrad de Kerloy; Alain Musikanth; and Peter Brindal.

10 | Brief February 2015

broader horizons Latest Opportunities - February 2015 With January already behind us, the New Year is well and truly in full swing!

Now is the perfect time to secure your dream role, as employers have identified strategic business needs for the new calendar year. Or, if you are seeking new legal talent to support your business, we have a number of quality candidates registered, ideally positioned for their next career move. Contact us today for a confidential discussion.

Please find below a selection of our latest job opportunities for February.

Commercial Litigator

Construction & Projects Lawyer

3-5 YEARS PAE

4 YEARS +

Led by a forward thinking partnership, this top local practice has an immediate requirement for a highcalibre mid-level lawyer to support their growing Commercial Litigation team.

This recognised firm has established itself as a major international player, with a particular focus on the Asia Pacific region. With substantial growth plans in place, a talented Projects lawyer is required to join this leading practice group.

Acting for medium to large corporate clients, including many listed resources companies, your work will include contractual, corporate and insolvency matters, construction litigation and project related disputes.

Managing your own files, you will have daily interaction with clients and will be encouraged to build and develop your own practice.

You will demonstrate 3-5 years PAE acting for corporate clients on major commercial disputes and a background working for a top tier or quality boutique firm. Top of the market remuneration, achievable targets and greater work life balance is offered, without sacrificing quality of work. This truly is a firm with a difference.

Insolvency Lawyer 4- 6 YEARS PAE

You will be engaged on a diverse range of commercial matters related to major mining, energy, infrastructure and construction projects, with responsibility for due diligence; review, drafting and negotiation of commercial agreements, EPC, EPCM contracts and other Australian Standard contracts. Advice on front end construction, contract and general commercial matters throughout the lifeline of key projects will also form part of your role.

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Your role will focus on insolvency, banking & finance litigation and restructuring matters, acting for major banks, financial services clients, accounting firms, property companies and other corporate entities. You will generate insolvency work and maximise business with the firms existing client base, as well as assist in further developing the teams specialist insolvency practice.

With a highly desirable client base which includes listed companies in the energy & resources sector, you will gain top transactional experience working on leading M&A deals, capital raisings, private equity, general corporate advisory and compliance, project and joint venture work.

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1.

2.

3.

SOCIETY 4.

EVENT 5.

7.

6.

8.

END OF YEAR

CELEBRATION!

On Wednesday, 3 December the Society and its Young Lawyers Committee formally ended the 2014 calendar year with a sophisticated soirĂŠe on the stylish outdoor piazza of the Parmelia Hilton Hotel.

The festive occasion was attended by over 135 guests and provided all with an opportunity to mingle and share a relaxed drink while enjoying the setting sun and delicious canapĂŠs.

It was a great evening with the air pleasantly filled with chatter, laughter and smooth atmospheric tunes from members of the WA Youth Jazz Orchestra.

Proudly sponsored by Hays, this event was an excellent opportunity for all those working in the legal profession to catch up before Christmas and celebrate another end to a fantastic year.

Congratulations to Deb MacDonald, who won the door prize of a bottle of champagne from Hays Legal Recruitment.

Society President, Konrad de Kerloy and YLC Convenor, Emma Cavanagh both spoke briefly and thanked those members that had assisted and contributed to the Society throughout the 2014 year.

It was the perfect wind-up to what was a busy and fruitful year and to welcome the early days of summer.

The Society hopes everyone had a safe and relaxing holiday period.

Proudly sponsored by

CAUGHT ON THE NIGHT:

1.

Brendan Ashdown, John Toohey Chambers; Konrad de Kerloy, The Law Society of Western Australia; Sukhwant Singh, Magister Legal; and Swain Thambyappah.

2.

Sue Langmair and Leanne Follows, The Law Society of Western Australia.

3.

Stephen Davies SC, Francis Burt Chambers; Jessica Henderson, Francis Burt Chambers; John Syminton, Warren Syminton Ralph; and Ted Sharp, Herbert Smith Freehills.

4.

5.

Katrina Palmer, Leaker Partners; Cameron Pearce, Hays Legal; and Emma Cavanagh, Minter Ellison.

6.

The Hon Justice John Chaney, Supreme Court of Western Australia; and His Hon Chief Judge Peter Martino, District Court of Western Australia.

7.

Gemma Mitchell, Consumer Credit Legal Services (WA) Inc; Harriet Hay; Curtis Ward, Consumer Credit Legal Services (WA) Inc; and Elisha Butt.

8.

Deb MacDonald, Legal Practice Board.

David Price, The Law Society of Western Australia; Cheryl Gwilliam, Department of the Attorney General; and Christopher MacCarthy, University of Notre Dame.

13

Be a Judge for the 2015 Mock Trial Competition Daniel Vivian, Solicitor, Price Sierakowski, talks about his experience as a Mock Trial Judge.

How long have you been a mock trial judge?

being able to recover their notes that they had inadvertently left in their school bags.

Would you recommend mock trial judging to others (and if so why)?

I have been a mock trial judge for three years now. I was introduced to it when a friend in the YLC asked me if I would be interested.

The teacher’s view was that the opposing team’s barrister would have to conduct her cross-examination without the aid of her notes.

I would recommend mock trial judging or coaching to anyone who is interested in advocacy or who practices criminal law.

It sounded like something a bit different and it could be a lot of fun.

What does it involve?

To my mind, the teacher’s sole motivation was that she wanted the opposing team to be disadvantaged so that her students would win the mock trial.

For me, mock trial judging involves a whole lot of fun and a chance to learn a bit more about advocacy.

I was very disappointed with this attitude and felt confronted by the teacher’s ultracompetitive demeanour.

Frankly, if I’m not smiling during the mock trial, then it really is no mock trial at all!

To me, the primary goal of mock trial is for the students to learn new and important skills in a fun and exciting environment. The end result (i.e. who wins and loses the mock trial) is of little importance.

Smiling, laughing and joking from the bench will do wonders for all involved because: 1. It will set the tone for the entire evening and everyone (yourself especially) will enjoy themselves; 2. The students will relax and perform better; and 3. Everyone will get more out of the experience.

Mock trial judging involves patience, understanding and a sense of humour.

What has been your most difficult experience as a mock trial judge?

The most difficult time was when a teacher of one of the teams complained during the trial about the opposing team

14 | Brief February 2015

There are several reasons why: 1. You have the invaluable opportunity to get a glimpse of what it is like to be judge; 2. One of the best ways to learn something is to teach it; 3. Trial experience, particularly for junior civil litigation practitioners, is very rare. Mock trial judging and coaching provides an opportunity to experience trial preparation and procedures in a 100% safe environment; and 4. It’s fun!

What has been your most rewarding experience as a mock trial judge?

The most rewarding experience has been to witness first-hand the remarkable improvement in both public speaking and advocacy, which the students are able to accomplish.

I have judged some teams who struggled to come to grips with proper examination-in-chief and crossexamination techniques. However, in the space of only three months, the same teams were presenting cases which would have even seasoned veterans of the bar nodding their heads in approval.

However, be warned: expect to be amazed by what the students (some as young as 15) are capable of.

I personally enjoy going into the mock trial having already formed a preliminary view on the evidence and what my judgment will ultimately be.

I am amazed at how frequently the students are able to so cleverly and strongly challenge my preconceived ideas about the evidence and how I, as the judge, should interpret it.

With Thanks

We would like to extend a warm thank you to the volunteers, who acted as coaches and judges during the 2014 competition. We are now putting a call out to all members who may be interested in assisting us either as coaches or judges for the 2015 competition. Previous participation in the competition is not required, we will run an information session on Wednesday, 25 February 2015 which explains the competition in detail.

Please contact us on mocktrial@lawsocietywa.asn.au or on 9324 8604 to register your interest.

Many thanks for participation in the 2014 competition go to: JUDGES

Gayann Walker

Natasja Pollemans

Carolyn Moss

Marlene Rudland

Adam Ebell

Greg Mohen

Nicholas van Hattem

Claire Rossi

Miranda Robertson

Adam Haque

Hannah Milligan

Nilan Ekanayake

Clinton Bonomelli

Paola Lovi

Adam Santa Maria

James Newton-Palmer

Olivia Loxley

Colin Thorpe

Peter Quinlan

Alan Watkins

Jarred Johnstone

Paddy Mohen

Craig McIntosh

Ranjani Sundar

Amy Sinclair

Jemimah Mills

Robert Nash

Darren Naylor-Pratt

Rein Squires

Asanka Gunasekera

Jeremy Birman

Sam Hemachandra

Debra De Blank

Rhiarne Bruce

Ashley Macknay

Jessica Berry

Sam Mengler

Elyce Lines

Brian Mahon

John Vaughan

Shirley Vine

Hylton Quail

Rosemary BlakeyScholes

Chad Silver

Jonathon Horne

Tim Lethbridge

Jacqui See

Rowan Mieklejohn

Cheyne Beetham

Joy Horwood

Timothy Goyder

James Graham

Sarah Jones

Chris Mofflin

Kate Wilson

Timothy Mason

Jason Neo

Sean Gomes

Christopher Townsend

Kathryn Roach

Scott Wilkins

Daniel Johns

Lorraine Finlay

COACHES

Jessica Henderson (Walker)

Simon Jacob

Simon Davis

Daniel Harrop

Maria-Elena Cheshire

Adam Nolan

John Park

Daniel Morris

Marilyn Krawitz

Alan McNeil

John Rando

Simon Steenhof Vlada Lemaic Zoe Lim

Daniel Vivian

Mary Brown

Alex McGlue

Kate Banasik

Debbie Taylor

Marshall McKenna

Alexander Mossop

Kate Turtley-Chappel

Elyse Johnstone

Matthew Briggs

Amy Ryan

Kerrigan Mercer

Emily Zylstra

Michelle Linehan

Anne Durack

Lana Tian

Farah Mehta

Natalie Wigg

Aoning Li

Luisa Harris

Fraser Robertson

Natasha Stewart

Ashley Roberts

Margaret Breen

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16 | Brief February 2015

DISPUTING A TAX ASSESSMENT FROM OBJECTION TO HEARING PART TWO

Michael Flynn Barrister and Immediate Past President of the Tax Institute

This article is the second of a two part series which explains the steps in a dispute with the Commissioner of Taxation. In the first part (published in December 2014), I explained the steps that are typically followed by the ATO when making an amendment to an assessment and how to draft an objection to an assessment or amended assessment. I concluded by pointing out that the ATO is currently much more amenable to alternative dispute resolution. In this article I will explain the options that are available to a taxpayer if the ATO disallows an objection and the matter is unable to be resolved out of court.

17

APPEAL TO ADMINISTRATIVE APPEALS TRIBUNAL OR FEDERAL COURT Under section 14ZZ of the Taxation Administration Act if a person is dissatisfied with the Commissioner’s objection decision they may either apply to the Administrative Appeals Tribunal (AAT) for review of the decision or appeal to the Federal Court against the decision.

1.1 Factors to consider when deciding to appeal to the Tribunal or to the Federal Court The main difference between the AAT and the Federal Court is that the AAT provides an administrative review of the decision. Under s43(1) of the AAT Act the Tribunal may exercise all the powers and discretions conferred on the Commissioner. The Tribunal therefore makes its own decision on the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The Federal Court on the other hand is unable to exercise powers conferred on the Commissioner. It must resolve a dispute by ascertaining the facts and applying the law to those facts. Therefore, if an amended assessment or penalty depends upon the exercise of a discretion by the Commissioner, the Administrative Appeals Tribunal may be the appropriate forum.

If you wish to challenge a discretion or determination it may be necessary to appeal to the AAT, even though you would prefer the Federal Court to hear the matter. For example, if the main point of the appeal is to challenge a failure by the Commissioner to remit penalty tax, there would be no point in appealing to the Federal Court. Another issue where you would ordinarily be better off in the AAT is where the amendment to the assessment is out of time under s170 of the ITAA 1936 but the Commissioner is alleging that the taxpayer understated the taxable income due to fraud or evasion.

Another type of dispute that you should ordinarily take to the Tribunal rather than to the Federal Court is a dispute about 18 | Brief February 2015

whether the taxpayer has been guilty of fraud and evasion. If the Commissioner alleges fraud and evasion the taxpayer, in order to succeed in the Federal Court, must show that the Commissioner, in forming his opinion, fell into the kind of error referred to in Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 and Kolotex Hosiery (Australia) Pty Ltd v FCT (19741975) 132 CLR 535: see Kajewski v FCT 2003 ATC 4375; [2003] FCA 258 at [107].

In Kajewski, the taxpayer misunderstood the nature of the challenge he had to mount, and so never really had a chance of succeeding: The applicants have sought to show that the Commissioner erred in forming the opinion that there was an avoidance of tax due to fraud or evasion because the applicants, their advisers and other witnesses have given evidence in this court to the effect that there was no such fraud or evasion, evidence it is said which this court should accept. In rejecting the applicants’ attack on the amended assessments because they are excessive, I have explained why this part of the applicants’ case is, on the evidence before me, unfounded. But, in any event, for the reasons given, the issue of fraud and evasion is not at large for this court. In accordance with Avon Downs and Kolotex, the Commissioner’s opinion that there was fraud or evasion involved must stand unless the applicants can show that the Commissioner, in forming that opinion, fell into the kind of error therein referred to. Only if the applicants can establish, by reference only to the material that was before the Commissioner, that his opinion was vitiated by some such deficiency in the approach he took in reaching that opinion will it be open to this court to form its own view on the question of fraud or evasion.

Consistently with their submissions that the appeal to this court is by way of hearing de novo, the applicants did not seek to mount the kind of attack on the Commissioner’s determination that there was fraud or evasion involved that must be made before

this court can consider that issue for itself. No challenge to the formation by the Commissioner of the opinion necessary to enliven his power under s170(2) to issue the amended assessments here in question within the principle in Avon Downs was raised by the applicants, let alone made out at trial.”1 Hence, in order to succeed the taxpayer must show that the Commissioner’s determination is vitiated by legal error by challenging it on the traditional judicial review grounds (for example, that the Commissioner applied the wrong test, that he took into account an irrelevant matter, that he failed to take into account a relevant matter or that his determination was so unreasonable no reasonable decision-maker would have made it).

A further limitation within which a taxpayer must work is that ordinarily, the only relevant evidence would be the material before the Commissioner when he made his determination. Fresh evidence would be inadmissible. The onus is on the taxpayer to challenge the formation of the Commissioner’s opinion.

“The Commissioner does not need to justify the decision, save in response to an appropriate attack upon it”: Weyers v FCT 2006 ATC 4523 per Dowsett J at 4555.

The AAT is not constrained in the same way as the Federal Court in considering a challenge to a finding of fraud and evasion. Accordingly, the taxpayer can overturn assessments outside the 4-year limitation period by leading new evidence about the circumstances in which the tax was avoided. It is unnecessary to show that the Commissioner’s determination was vitiated by legal error: the Tribunal will make its own decision about whether the taxpayer was guilty of fraud and evasion, based on the evidence before it.

There are a number of other differences between the Tribunal and the Federal Court that may influence the taxpayer when deciding which one to choose. Set out on the following page is a table2 that summarises the key differences between the two venues –

AAT

FEDERAL COURT

From which decision

A reviewable objection decision may go to the AAT: section 14ZZ of the TAA

A reviewable objection decision may go to the Federal Court: section 14ZZ.

Timing

An application for review must be lodged within 60 days: section 14ZZA TAA. The AAT may grant an extension of time: s29(7) of the AAT Act.

An appeal must be lodged within 60 days: section 14ZZN TAA. There is no provision for the Federal Court to grant an extension of time to lodge an appeal.

Location

Federal Ct registry in State where –

AAT registry where application is filed.

(a) ATO officer who made objection decision is located or (b) Where Applicant ordinarily lives or where a corporate applicant has its head office or carries on significant part of business Powers

The AAT stands in the shoes of the Commissioner: section 43(1) AAT Act. The AAT may confirm, vary or set aside the decision. It has no power to make or amend assessments.

The Federal Court can only review the exercise of a discretion by the Commissioner if it is satisfied that the discretion was not exercised according to law.

This is highly unlikely to occur. It is not sufficient that the court would have arrived at a different decision.

Further appeal rights

An appeal from AAT to Federal Court is an appeal on a question of law: section 44 AAT Act. For example, that the Commissioner failed to take into account all matters required to be considered in exercising his discretion.

AAT findings of fact are not open to appeal, unless they have been made in error of law.

There is a right of appeal to the Full Federal Court, with the possibility of further appeal to the High Court, subject to special leave.

Evidence

Rules of evidence do not apply: section 33(1)(c) AAT Act. However, the AAT is subject to the requirements of procedural fairness. T-documents are provided by ATO and automatically form part of evidence.

The Federal Court has more limited powers of review. The Federal Court is bound by formal rules of evidence.

The AAT can also receive evidence not before the Commissioner. Evidence inadmissible in the Federal Court will be admissible in the AAT, where it will then be a question of weight. If a taxpayer’s evidential basis is weak, it is preferable to commence proceedings in the AAT, as findings of fact made by the AAT are difficult to overturn.

Difficult to obtain documents by way of discovery or subpoena.

Evidence on appeal

Factual findings made by the AAT may be incontestable; may only be challenged in the Federal Court on the basis that the findings involved an error of law.

Factual findings made by the AAT may be incontestable; may only be challenged in the Federal Court on the basis that the findings involved an error of law.

Confidentiality

AAT proceedings can take place in private if the taxpayer requests: section 35 AAT Act, section 14ZZE TAA.

Proceedings are public unless confidentiality orders are made pursuant to section 51 FCA.

Formality

Proceedings are generally conducted in a more informal fashion. The AAT is not bound by previous AAT decision, however it must observe procedural fairness.

The Federal Court is bound by previous decisions and rules of evidence. The taxpayer must have legal representation.

Costs

The AAT has no power to award costs in taxation appeals; each party bears their own costs. Because AAT proceedings are less formal, they will generally cost less than Federal Court proceedings.

A Federal Court appeal entails higher costs.

Generally, the successful party will obtain an order for party and party costs. Party and party costs do not provide a full indemnity for costs incurred. Indemnity costs may be obtained where a Calderbank offer has been made prior to the trial.

Efficient Disposal

Review of an AAT decision is usually by a single judge, therefore an AAT review may add an additional hearing.

An appeal from a presidential member of the AAT can be heard by a Full Federal Court where the Chief Justice of the Federal Court and the President of the AAT agree. An appeal from a judge sitting as a member of the AAT must be heard by the Full Ct. Furthermore, as a result of the limited nature of an appeal to Federal Court, the matter may be remitted to AAT for a further hearing.

The Federal Court will have view to the Civil Dispute Resolution Act 2011. The matter may be remitted to the AAT.

19

"If on the other hand the matter were appealed to the Federal Court it would be necessary to obtain orders for discovery against the Commissioner, which the Federal Court is very reluctant to make."

An explanation of some of these further factors appears in the next two sections of my paper.

1.2 Administrative Appeals Tribunal If a taxpayer lodges an appeal to the AAT, the ATO is required to provide the Tribunal with the following documents – a. A statement giving the reasons for decision b. The notice of the taxation decision c. The taxation objection d. The notice of objection decision e. Every other document that is in the Commissioner’s possession or under the Commissioner’s control and is considered by the Commissioner to be necessary to the review of the objection decision.

These documents are usually known as the section 37 documents or the ‘T-documents’. The T-documents effectively constitute a court book – that is, a central point of reference for the Tribunal and the parties. I have found in a number of cases that an advantage of the AAT over the Federal Court is 20 | Brief February 2015

the requirement that the Commissioner provide the T-documents, for two reasons. First, it shifts the burden of preparing the court book from the taxpayer to the Commissioner. This can be a relevant consideration if the taxpayer has limited funds or the solicitor or accountant representing them has limited resources for preparing a court book. Secondly, the Commissioner is required to supply every relevant document in his possession to the taxpayer and the Tribunal. It is therefore unnecessary to seek orders requiring discovery of documents. If on the other hand the matter were appealed to the Federal Court it would be necessary to obtain orders for discovery against the Commissioner, which the Federal Court is very reluctant to make.

After the Tribunal receives the T-documents it would normally convene a directions hearing. Directions hearings are usually held by telephone between a registrar of the Tribunal, a representative of the taxpayer and a representative of the ATO. At the initial directions hearing, the registrar ordinarily makes orders requiring the taxpayer to file any material on which he or she intends to rely within a certain period (typically six or eight weeks) together with a statement of facts and contentions. The statement of facts

and contentions is intended to summarise the facts as the taxpayer sees them and the contentions the taxpayer is making.

The Tribunal also makes orders requiring the Commissioner to file any further material on which he intends to rely and a statement of facts and contentions. After the parties have filed their evidence and statements of facts and contentions there is a further directions hearing and the Tribunal will ordinarily order a conciliation conference.

A conciliation conference is a form of alternative dispute resolution. The Tribunal requires the ATO and the taxpayer to attend at its offices and appear before a registrar or member of the Tribunal who acts as conciliator. In my experience, different members and different registrars conduct conciliation conferences in very different ways. The standard model involves convening a meeting of all the parties at which the Tribunal member or registrar outlines the procedures that he or she will follow in running the conciliation conference and requests statements from both parties of their positions. Typically, the parties will then regroup in separate rooms and the member or registrar will speak to each in turn to try and find out whether they are interested in settling the dispute and if so what their parameters are.

However, I have also had the experience of a senior member requiring all the parties to be present in the room at the same time while he listened to them delivering their arguments and then told them what his assessment of those arguments was. I found this to be an unproductive exercise.

On the other hand, I have had the experience of senior members conducting conciliation conferences who have achieved settlements the parties thought unlikely when they arrived at the Tribunal. It can be a powerful influence on settlement to have the senior member who might otherwise have been hearing the matter express a considered view about a party’s prospects.

If the matter fails to settle at a conciliation conference the Tribunal would ordinarily set the matter down for hearing. Often it will also make orders requiring each party to file and serve written submissions in advance of the hearing.

At the hearing the parties have the opportunity to give their evidence.

The Tribunal is not bound by the rules of evidence but may inform itself on any matter “in such manner as it thinks appropriate”: s33(1)(c) of the Administrative Appeals Tribunal Act 1975.

Under s33(1)(c) the Tribunal may have regard to any evidence that is rationally probative, including circumstantial and hearsay evidence: FCT v La Rosa (2002) 50 ATR 450, at [35] and [143]. However s33(1)(c) does not allow the Tribunal to ignore a claim of legal professional privilege: Re Lindsay and Australian Postal Commission (1989) 18 ALD 340. It also does not authorise the Tribunal to decide cases without a basis of evidence having probative force: Rodriguez v Telstra Corp Ltd [2002] FCA 30 at [25].

My experience in the Tribunal is that objections to evidence are often taken,

but the Tribunal typically admits the evidence and treats the objection, if sound, as affecting the weight to be afforded to the evidence.

applicant must serve a copy of the Notice of Appeal on the Commissioner or the Australian Government Solicitor.

The T-documents automatically form part of the evidence, though it is possible for a party to object to material included in the T-documents (for example, on the grounds of privilege). In addition, the Tribunal typically allows the parties to provide witness statements. If a party calls a witness the other party is permitted to cross-examine that witness.

If a party requires a witness for cross examination the witness will enter the witness box, indicate to the Tribunal that their witness statement is true and correct and would then ordinarily be cross-examined. Almost invariably, the Commissioner does not call any witnesses. The cross examination is therefore typically conducted by the Commissioner’s counsel of the taxpayer’s witnesses.

At the conclusion of the evidence the parties make submissions. The Tribunal then normally adjourns to consider its decision. A written decision with reasons ordinarily follows within 2-3 months.

1.3 Proceeding in the Federal Court Proceedings in the Federal Court are governed by the Federal Court Rules 2011. Under rule 33.02 a party who wants to appeal from an objection decision must file a Notice of Appeal. The Notice of Appeal does not have any substantive content. The applicant must file a Notice of Appeal in the registry of the court in the state or territory in which the office of the ATO which made the decision is located or in which, if the applicant is an individual the applicant resides or if the applicant is a corporation the state or territory in which it has its head office or carries on a significant part of its business. The

The Commissioner must within 28 days file a copy of the Notice of the reviewable objection decision, a copy of the taxation objection, any return or other document in the Commissioner’s possession or under the Commissioner’s control to which the taxation objection relates that is relevant to the hearing of the matter and either an appeal statement that outlines the Commissioner’s contentions and the facts and issues in the appeal.

The Federal Court has issued a practice note setting out how tax cases should be conducted in the Federal Court. In each registry a judge has been appointed as the tax list-coordinating judge. The practice note indicates that the appeal statement should state in summary form – a. the basic elements of the party’s case or defence; b. where applicable, the relief sought; c. the issues the party believes are likely to arise; d. the principal matters of fact upon which the party intends to rely; and e. the party’s contentions (including the legal grounds for any relief claimed) and the leading authorities supporting those contentions.

The Commissioner’s appeal statement is to be filed within 28 days of the date of the application served on the Commissioner. The applicant’s appeal statement is to be filed and served within 40 days of the date on which the application was served on the Commissioner. An initial directions hearing, called the ‘scheduling conference’ is set down not less than 45 days from the date of the filing of the

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21

application. The scheduling conference is to be conducted by the tax listcoordinating judge and at the scheduling conference the parties are expected to explain who the initial witnesses will be and set out what the pre-trial schedule should be for all steps required to bring the proceeding to trial. The trial date is set for as soon as practicable. In addition, parties are only permitted very limited discovery of the other party’s documents.

that the assessment is excessive or that the taxation decision should not have been made or should have been made differently: sections 14ZZK(b) and 14ZZO(b) of the Taxation Administration Act 1953. The Commissioner is entitled to rely on any deficiency in evidence in support of his position: Federal Commissioner of Taxation v Dalco (1989) 168 CLR 614 per Brennan J at 624. The burden is that of the ordinary civil onus of proof: FCT v Dalco (1990) 168 CLR 614; Allied Pastoral Holdings Ltd v FCT [1983] 1 NSWLR 1.

My experience of the Scheduling Conference is that the judges generally aim to bring the case for hearing as soon as possible, and only allow limited time to prepare affidavits by witnesses.

This means it is important to be as advanced as possible in assembling the evidence before you file your appeal.

approval by Lockhart J in relation to s14ZZK(b) in Federal Commissioner of Taxation v Munro (1997) 37 ATR 249 at 258). The section also gave rise to ‘a rebuttable presumption of law that an assessment is not excessive’: McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 at 314 (Jacobs J) - or as Latham CJ said in Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63 at 88: the assessment is ‘prima facie right and remains right until the appellant shows that it is wrong’.

21 According to the Commissioner, there was no requirement on his part to show that the assessment issued to Hua-Aus could be sustained or supported by evidence: Gauci 135 CLR at 89 (Mason J). It was for Hua-Aus to show that the assessment issued to it was excessive, and the Commissioner was ‘entitled to rely upon any deficiency in proof of the excessiveness of the amount assessed to uphold the assessment’: Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 at 624 (Brennan J).

"In both the Federal Court and the AAT the onus is on the taxpayer to show that the assessment is excessive or that the taxation decision should not have been made or should have been made differently ... "

The judge also usually makes orders for mediation. The mediation is conducted by the Federal Court registrar, unless the parties decide to engage an external mediator.

The ATO is generally reluctant to agree to an external mediator unless the taxpayer pays the whole of the cost.

What this means in practice is summarised in the following passage, taken from Hua-Aus Pty Ltd v FCT (2010)184 FCR 430: 20 The Commissioner submitted that the effect of s14ZZK(b)(i) was to raise, in relation to the Notice of Assessment of GST net amount issued to Hua-Aus, a ‘presumption of the existence of the circumstances which attract liability to the tax assessed’: Macmine Pty Ltd v Federal Commissioner of Taxation (1979) 53 ALJR 362 at 378; 24 ALR 217 at 250 (Murphy J) (cited with

My experience of Federal Court registrars is mixed. In many cases they do very little to bring about a settlement, whereas an external mediator (former High Court judges are popular) is often more proactive.

1.4 Proving the taxpayer’s case In both the Federal Court and the AAT the onus is on the taxpayer to show

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22 In other words, in challenging the Notice of Assessment of GST net amount, it was for Hua-Aus to establish any fact that demonstrated the assessment to be excessive. As Latham CJ said in Danmark Pty Ltd v Federal Commissioner of Taxation (1944) 7 ATD 333 at 337: ‘I agree that upon an appeal the

onus rests upon the taxpayer of establishing the facts upon which he relies and if it is necessary for him to establish a particular fact in order to displace the assessment he must satisfy the court with respect to that fact.’

Edmonds J accepted these submissions.

Two situations pose particular challenges for taxpayers: situations where the assessment is a default assessment, based on an estimate by the Commissioner of the taxpayer’s correct taxable income, and those where the assessment is based on allegations of conduct that the taxpayer denies, such as allegations that a transaction was a sham, or that the taxpayer entered into a Part IVA scheme.

In default assessment cases the ATO frequently cites the decision in FCT v Dalco (1990) 168 CLR 614 as supporting the proposition that in order to succeed, the taxpayer must establish the precise, correct taxable income figure. This is incorrect, but in 2013 the law was amended to introduce this requirement.

FCT v Dalco (1990) 168 CLR 614 concerned a taxpayer whom the Commissioner had assessed under s167(b) of the ITAA 1936 (that is, on the basis that he was not satisfied with the return furnished). The taxpayer was able to demonstrate that the Commissioner had based the assessment on income derived by companies and trusts with which he was associated. The trial judge found that he had not satisfactorily explained the source of the income he in fact controlled in the relevant years of income. He had therefore failed to discharge the onus, so the assessments were upheld. A majority of the Full Federal Court overturned that decision, on the basis that the taxpayer had demonstrated that the Commissioner had no legal basis for treating income belonging to the companies and trusts as the taxpayer’s income. But in finding for the taxpayer the majority added the underlined words: It was open to the taxpayer to endeavour to demonstrate that each of the assessments (that is, each of the processes of assessment) was excessive in that it was not warranted by law. It is that submission which we have accepted, but we make it clear that we do not find error in his Honour’s findings of fact that Mr. Dalco did not show that in fact his income for each of the tax years was

less than the figure arrived at by the Commissioner, and did not show that his only income was disclosed in his income tax returns.3

the original assessments, assuming assessments had earlier issued upon his returns, or to entitle him only to the setting aside of the amended assessments and a referral back to the Commissioner, or to some other decision.5

Unsurprisingly, the High Court overturned this decision. Brennan J concluded that – ... where, as here, the taxpayer has not proved that his actual taxable income is less than the amount assessed, the court does not know all the material facts and it cannot find that the amount assessed is wrong. A taxpayer who shows on the facts that are known a mere error by the Commissioner in assessing the amount of the taxpayer’s taxable income does not show that his objection should have been allowed or that the appeal against the assessment must be allowed. ...

Unless the amount of the assessment is found to be excessive in the sense of being greater than the taxable income on which tax ought to have been levied, the taxpayer fails on his appeal.4 Ma v FCT (1992) 37 FCR 225, decided shortly after Dalco, demonstrates that Dalco does not require a taxpayer to prove with precision their correct taxable income. In Ma the Commissioner assessed the taxpayer on an asset betterment basis. Burchett J allowed an appeal from a decision of the AAT upholding the assessments, because – As was pointed out in argument, the position before the Tribunal, when the taxpayer has proved, in the words of Brennan J, that ‘the amount assessed as taxable income is wrong’, is neither exactly as it is before a court (the situation in Dalco itself), nor exactly as it was before the Boards of Review. The Tribunal, under s43 of its Act, is expressly empowered to set aside the assessment and remit the matter to the Commissioner for reconsideration. If the taxpayer has shown by evidence that the only receipts which could possibly be income were the amounts paid into the bank account, and that many of those amounts represented the same capital reinvested after previous withdrawals, he has shown that an assessment based upon the counting as income of all the payments (save certain, which the argument set on one side) must be excessive. The question, then, is whether he has proved sufficient to entitle him to the setting aside of the amended assessments and their replacement by assessments in the amounts of

Ma’s case has been followed in a number of later decisions, for example, in Kimche v FCT (2004) 57 ATR 28 another case concerning default assessments where Ryan J, after quoting the passage above from Ma, concluded that – 30 It follows, I consider, that if, in a case like the present, the taxpayer is able to establish facts tending to show that some part of a particular receipt did not bear the character of income but is unable to quantify with precision the amount of that part then the assessment will be excessive only in respect of the minimum amount which could have borne a different character.

Unfortunately for taxpayers, in 2013 ss14ZZK and 14ZZO of the Taxation Administration Act were amended so that the taxpayer now has the burden of establishing “that the assessment is excessive or otherwise incorrect and what the assessment should have been”.

This amendment applies to assessments made on or after 1 July 2013 that relate to the year ended 30 June 2014 or later years. This means that taxpayers will henceforth be required to show what their correct taxable income should be in all cases. The amendment therefore makes the burden more difficult to satisfy.

The difficulties associated with satisfying the onus of proof are important to bear in mind throughout a tax dispute. The ATO is acutely aware of the advantage it has over taxpayers. If you are unable to demonstrate that the taxpayer can prove his or her allegations on the balance of probabilities the ATO is unlikely to yield.

NOTES

1.

Kajewski v FCT 2003 ATC 4375 per Drummond J at [107].

2.

This table is based on a table included in a paper

by J Dunne, C Kinsella, and M Clough “Managing Tax Disputes Model Solutions” presented at the Tax Institute’s Tax Specialists Workshop presented on 25 October 2012 at Peppers Moonah Links Resort, Mornington Peninsula, Melbourne. I have updated it and added some further factors of my own.

3.

Dalco v FCT 88 A.T.C.4649, at p. 4666 per Gummow and Sheppard JJ.

4.

FCT v Dalco (1990) 168 CLR 614 per Brennan J at 625. Mason CJ, Deane and Dawson, Gaudron and McHugh JJ agreed with Brennan J. Toohey J delivered a concurring judgment.

5.

MA v FCT (1992) 37 FCR 225 at 232-233.

23

PRIVILEGE IN THE IN-HOUSE

CONTEXT

24 | Brief February 2015

Adam Santa Maria Principal Legal Counsel, Argonaut For the In-House & Government Lawyers Committee of the Law Society of Western Australia

“ ... appropriate advice to your employer might be to amend your employment contract, your job title or your job description to ensure that there is sufficient clarity around the capacity in which you are employed or can act.”

The current downturn in the economic environment across our state has largely meant an increase in the workload of the in-house lawyer, who is under increasing pressure (along with lay staff generally) to add value to the business - often by expanding their role to include broader commercial matters. Correspondingly, we have also seen a downturn in the level of briefing of external lawyers as a general rationalisation of costs is demanded across organisations.

In this difficult environment, the In-House and Government Lawyers Committee of the Law Society of Western Australia is concerned to remind in-house counsel that the preservation of confidentiality in advice provided to their employers is of paramount importance in ensuring that employers (clients) are protected and their potential for exposure to legal or regulatory sanction is minimised. The doctrine of legal professional privilege is central to this protection.

This article serves as a brief reminder to lawyers of some of the key issues relating to privilege that should be considered when practising in an in-house environment.

RATIONALE AND SCOPE OF THE PRIVILEGE Whilst rooted in ancient traditions beyond the scope of this work,1 the High Court in Australia has established that citizens, who are accorded rights and obligations at law have the prerogative to fully understand and enforce such rights through the courts.2 In doing so, the ability to obtain legal advice in a frank and open manner free from fear of disclosure of related communications has been held to be sacrosanct in the absence of express legislative interference.3 As such, the doctrine of legal professional

privilege, which developed to protect this principle, is considered fundamental to the administration of justice as a whole4 and acts as a substantive common law right preventing communications between a lawyer and client from forced disclosure.5 Since confirmation that legal professional privilege extends to in-house lawyers just as much as to any other lawyer came in the decisions in Alfred Crompton6 and Waterford,7 and after the abandonment of the sole purpose test in the late 1990’s,8 the doctrine of legal professional privilege in the in-house context can be summarised as applying to: •

confidential communications;

•

between a lawyer acting in their professional capacity and their client (their employer);

•

for the dominant purpose of: •

seeking legal advice; or

•

for use in pending, anticipated or existing legal proceedings.

When giving legal advice to their employer, the in-house lawyer should consider each of these three limbs both individually and cumulatively and adopt appropriate measures to ensure that the most favourable conditions exist to attract the privilege to appropriate communications, as well as to be able to resist any potential challenge.

CONFIDENTIAL COMMUNICATIONS The first element to be considered is that confidentiality is fundamental to a claim of privilege and therefore it may be waived, either expressly or impliedly, by any conduct that is inconsistent with the maintenance of a communication’s status as confidential. 9

25

“Recognising that disclosure to third parties is often necessary in a business or legal context, any such disclosure must nevertheless be done in a way which ensures confidentiality is maintained ... ”

Where a party acts in such a way, the conduct will generally lead to a loss of privilege10 and it is worth remembering that the courts are prepared to take a wide view in this regard. For example, in Rich v Harrington,11 the Federal Court held that a letter from PriceWaterhouseCoopers Australia’s lawyers stating that their “client has acted at all times with the benefit of external advice and does not believe there has been any … conduct for which compensation could properly be sought” amounted to an implied waiver of privilege. This was based on the view that a reference to the substance or gist of otherwise privileged advice was enough for the advice to lose its character as being sufficiently confidential and thereby its status as privileged.

Although the maintenance of confidentiality is a question of fact, a number of steps can be taken to assist the fact finder in this regard. An in-house counsel, aware of the importance of the lawyer client relationship and the resulting implications for the rights of their client, should therefore take appropriate steps to protect the resulting privilege.

The first of these is to develop practical procedures around the restriction of information flow within the organisation. A suitable policy dealing with the treatment of potentially privileged communications can assist in ensuring relevant communications stand the best chance of retaining their character of confidentiality and thus maintaining their status as privileged.

These policies and procedures should then be implemented and followed as a matter of course, with only those having a real need for access 26 | Brief February 2015

to privileged communications being granted such access. Likewise, privileged communications should always be marked as Privileged and Confidential, and references to legal advice (whether external or internal) should always be done with care, and to the extent practicable only by counsel as opposed to employees or management.

Recognising that disclosure to third parties is often necessary in a business or legal context, any such disclosure must nevertheless be done in a way which ensures confidentiality is maintained to the extent possible. Whether such maintenance necessitates a confidentiality agreement or can be done otherwise on a more informal basis should be a matter that is considered appropriately in the circumstances.

BETWEEN A LAWYER ACTING IN THEIR PROFESSIONAL CAPACITY AND THEIR CLIENT (THEIR EMPLOYER) The central concept here is the existence of a lawyer and client. This should prompt counsel to consider who exactly is their client/employer, particularly in the case of group company structures involving sister and child entities.

Notwithstanding, courts have recently begun to take a wider view as to what constitutes a legal advisor for the purposes of privilege. For example, even though a practising certificate may be required in order to practise as a lawyer in a particular jurisdiction, it has been held that the lack of a practising certificate is not necessarily fatal to a claim of privilege on its own.12 Such flexibility has been taken even further by the Queensland Supreme

Court, which recently held that where legal advisors are employees of a party to litigation, legal professional privilege may still attach, provided “the claim relates to a qualified lawyer acting in the capacity of an independent professional legal adviser … [even though] the defendant’s general counsel [was] not admitted as a legal practitioner in Australia”.13 Rather than following a proscriptive formula, Boddice J focused on the professional capacity in which the advisor was acting, and for the need for the independence of the lawyer.

With respect to independence, it has often been seen as a separate requirement for the attraction of privilege for in-house lawyers in and of itself.

On the other hand, independence may otherwise be considered more broadly as part of the inquiry as to the ability of an in-house counsel to provide their advice in their professional capacity as a lawyer – especially since Archer Capital14 where its significance was considered to have been overstated in past decisions. In that regard, the extent of an in-house lawyer’s ability to act in their professional capacity as a lawyer is often considered as a question of degree.

For example, an in-house lawyer who is also a manager or executive cannot be performing their managerial or executive roles when providing legal advice in order to attract privilege – a clear distinction must be maintained. Similarly, other factors may be taken into account such as the extent to which the in-house lawyer holds shares in the employer, whether their remuneration is linked to the performance of the business or whether there are other more practical procedures in place, including physical and electronic separation of privileged files.

Accordingly, where in-house counsel are employed in a multiplicity of roles or are employed in circumstances where other factors which militate against their independence are present, the capacity in which they are providing advice must always be clear if privilege is to be successfully claimed and defended, particularly as dual legal/commercial roles are now a common business reality for inhouse counsel.

Perhaps then as an in-house lawyer with varying responsibilities, appropriate advice to your employer might be to amend your employment contract, your job title or your job description to ensure that there is sufficient clarity around the capacity in which you are employed or can act. Job titles like Legal Counsel and Legal Officer for example, are inherently more likely to be viewed favourably by a court in a contested claim for privilege than other broader titles such as Manager – Legal Services or the like. The way in which work is undertaken on a day to day basis as part of the broader policies developed in respect of privilege should also be managed, with the separation between legal and non-legal work being maintained as far as possible.

Since the decision of the High Court in Shafron,15 it has become clear that the court will tend to view the capacity in which the in-house lawyer acts by reference to both the actual way in which the role is discharged as well as the usual way in which such a role is normally performed. As a result, questions are raised as to whether or not a lawyer can act both as project driver and governance advisor without being compromised in a practical sense in doing so.

Consequently, the need for separation of workflow and the management of responsibilities is acute.

DOMINANT PURPOSE The necessity to distinguish legal work

from other work dovetails nicely into a consideration of work that is prepared by in-house counsel for mixed purposes in the context of the requirement that the dominant purpose of a communication be for seeking legal advice or for use in pending, anticipated or existing legal proceedings. Where mixed purposes are present, the dominant purpose has been held to be the ruling, prevailing or most influential purpose.16 Where a communication is prepared for dual or mixed purposes of equal weight, privilege will not apply.17 The purpose of a communication is subjective but is also considered as a question of fact. Accordingly, one should be mindful to assist the tribunal of fact in drawing attention to the dominant purpose as explicitly as practicable in all communications involving a privileged communication. Doing so clearly will usually assist in a favourable resolution of any subsequent contest.

came upon a recent and relevant article prepared by John Pease (former General Counsel of Western Power and current Group Director Governance at St John of God Healthcare)18 which provides an excellent summary of the law on this subject and which has a number of further practical steps that should be considered.

These would provide a good start in developing an appropriate privilege framework.

NOTES

1.

The earliest recorded reference of privilege in English case law can be found almost 500 years ago in Berd v Lovelace [1577] Cary 62.

2.

For a more detailed analysis of the varying rationales see Privilege in Perspective, ALRC Report 107 (2007), Ch 2.

3.

The modern judgments in this respect are evident in those handed down in the period since Grant v Downs (1976) 135 CLR 674.

4.

R v Derby Magistrates’ Court; ex parte B [1995] 4 All ER 526 per Lord Taylor CJ at 541.

5.

Counsel practising in jurisdictions outside of Western Australia should be reminded that the privilege, called Client Legal Privilege, also exists under ss118-120 of the Uniform Evidence Acts as well as otherwise in the common law of other state jurisdictions.

6.

Alfred Crompton Amusement Machines Limited v Customs and Excise Commissions (No 2)[1972] 2 QB 102 Per Lord Denning MR.

7.

Waterford v Commonwealth (1987) 63 CLR 54.

8.

Esso Australia Resources Ltd v FCT (1999) 201 CLR 49.

9.

O’Reilly v Cmrs of State Bank of Victoria (1983) 153 CLR 1 at 22–3 per Mason J.

10.

Cf Mann v Carnell (1999) 201 CLR 1 per Gleeson CJ, Gaudron, Gummow and Callinan JJ.

11.

(2007) 245 ALR 106.

12.

Commonwealth v Vance (2005) 158 ACTR 47.

13.

Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 per Boddice J at paras [8], [24].

14.

Archer Capital 4A as trustee for the Archer Capital Trust 4A v Sage Group plc (no 2) [2013] FCA 1098.

15.

Shafron v Australian Securities and Investments Commission [2012] HCA 18.

16.

Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416.

17.

Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 225 ALR 266.

18.

‘Legal Professional Privilege: Ethical risks for inhouse counsel’ Paper presented by John Pease at the Leagalwise, ‘Legal Skills and Ethics for In-house Lawyers’ seminar, Perth 26 August 2014.

CONCLUSION Given the serious consequences that may arise where privilege fails to attach to important documents or is otherwise lost, it is worth undertaking a review of business practices as they relate to the creation, maintenance and communication of potentially privileged material within an organisation that employs legal counsel.

The development and implementation of appropriate policies and procedures to regulate in-house counsel activity is not only good governance, it has the potential to avoid significant and long lasting ramifications. It is certainly worth the time and effort given the myriad of pitfalls that can open up and devour an otherwise sound claim to privilege, particularly given how simple some of the steps are that can be taken.

In the course of writing this article, the InHouse & Government Lawyers Committee

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding.

E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth.

We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

For information, visit www.dogshome.org.au or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.

27

28 | Brief February 2015

feature

NATIONAL

E-CONVEYANCING REMOVING THE MYSTIQUE Michele Lancaster

This article endeavours to explain in plain language what National e-Conveyancing means for lawyers and conveyancers.

Practitioners and conveyancers are encouraged to study the Operating Requirements and Participation Rules for electronic conveyancing in Western Australia and to engage with Property Exchange Australia Ltd which is implementing the first national electronic lodgment network (ELN) called PEXA.

29

feature BACKGROUND Much progress has been made towards the introduction of National e-Conveyancing throughout Australia. Key milestones have been: •

On 18 June 2014 the first electronic document, a Westpac discharge of mortgage, was lodged electronically with Landgate through PEXA.

•

Release 1 of PEXA enabling banks to lodge electronic mortgages and discharges of mortgages has been implemented in Victoria, New South Wales, Queensland and Western Australia.

•

Release 2 of PEXA enabling transfers to be lodged and financial settlement to occur electronically has been implemented in New South Wales and Victoria.

The next major milestone in Western Australia will be Release 2 of PEXA in May 2015, which will enable lawyers and conveyancers to lodge electronic transfers, caveats and withdrawal of caveats.

NEW/AMENDED LEGISLATION AND RULES •

•

The Transfer of Land Act 1893 has been amended to make changes to accommodate process changes arising from electronic lodgement of transactions.

The Electronic Conveyancing Act 2014 has been passed to enable electronic transactions. This Act implements the national model law, the Electronic Conveyancing National Law (ECNL).

30 | Brief February 2015

•

Consequential amendments have also been made to the Settlement Agents Act 1981, Duties Act 2008 and Taxation Administration Act 2003.

The purpose of the ECNL is to establish the legal framework for electronic conveyancing that will be supported by the relevant land title legislation in each jurisdiction and the rules approved by the registrars through the Australian Registrars National Electronic Conveyancing Council (ARNECC). Under the ECNL, there are two different rules.

Firstly, the Operating Requirements, which govern the conduct of the operator of an electronic lodgement network; and, secondly, the Participation Rules, which govern the conduct of subscribers to the electronic lodgement network. The Operating Requirements and Participation Rules for WA are both available on Landgate’s website: landgate.wa.gov.au/ corporate.nsf/web/National+Electronic+C onveyancing+System.

Provision is made in the Electronic Conveyancing Act 2014 for:

•

the electronic lodgement of documents in the Land Registry;

•

the signing of electronic instruments with digital signatures;

•

subscribers to obtain client authorisations (empowering a subscriber to act for, and digitally sign land registry documents to be lodged through an ELN) on behalf of the client in the system;

•

the establishment of electronic lodgement networks and approval for persons to operate them;

•

the establishment of operating requirements and participation rules based on the model operating requirements and model participation rules developed by ARNECC; and

•

compliance examinations by Registrars to ensure compliance with the operating requirements and the participation rules.

The diagram below provides a high level overview of the legal framework under the ECNL.

Electronic Conveyancing National Law

ARNECC Model Operating Requirements [Distinct set of requirements that are specified by the ARNECC]

ARNECC Model Participation Rules [Distinct set of rules that are specified by the ARNECC]

Operating Agreement [Contract between Registrars and an ELNO]

Participation Agreement [Contract between ELNO and Subscriber]

feature

“The next major milestone in Western Australia ... will enable lawyers and conveyancers to lodge electronic transfers, caveats and withdrawal of caveats.”

CURRENT STATUS OF E-CONVEYANCING IN AUSTRALIA PEXA implementation commenced in the Eastern States in 2013 on a progressive roll out basis and in WA in June 2014.

All four big banks are participating in the Eastern States and are progressively implementing PEXA in Western Australia.

Lawyers and conveyancers commenced participating in November 2014 in the Eastern States and will commence in May 2015 in Western Australia.

PARTICIPANTS IN NATIONAL E-CONVEYANCING Property Exchange Australia Ltd (Formerly National E-Conveyancing Development Ltd). Australia’s first electronic lodgement network operator, operating the platform called PEXA. www.pexa.com.au ARNECC

live in WA in May 2015 in respect of lodgement of caveats, withdrawal of caveats and transfers, it is not mandatory for lawyers or conveyancers to take up the National e-Conveyancing strategy on or after the ‘go live’ date. Documents will still be capable of lodgment in paper with Landgate.

Unless all parties to a settlement agree at the commencement of the transaction to go electronic, the settlement must be conducted manually.

ANTICIPATED UPTAKE BY LAWYERS AND CONVEYANCERS It is envisaged that uptake by the legal/ settlement industry will be ‘slow’ – as was the case in New Zealand (before it became mandatory). The Registrar of Titles in Western Australia has stated that there is no intention at the moment to make National e-Conveyancing compulsory in Western Australia.

Landgate

Not all transactions will be able to be lodged and processed electronically due to the complex details of processing particular settlements, eg adverse possession applications. Whilst dealings in relation to Memorials and Crown Land will continue to be paper based initially, they may eventually be capable of electronic lodgment.

Western Australian Land Registry.

PROPOSED

www.landgate.wa.gov.au/corporate.nsf/ web/National+Electronic+Conveyancing +System

PEXA’s fees are now available on their website.

Australian Registrars National Electronic Conveyancing Council. ARNECC regulates the legal framework for the electronic lodgment of documents with Land Registries. www.arnecc.gov.au

Subscriber Lawyers, settlement agents, financial institutions.

WILL NATIONAL E-CONVEYANCING BE COMPULSORY? No. Whilst it is envisaged that PEXA will go

It appears that subscribers (lawyers, settlement agents, banks) will be charged per transaction rather than via subscription/licence fees.

It is envisaged that these costs could be included as disbursements to the client.

CHANGES TO EXISTING PROCESSES WHEN REGISTERING ELECTRONICALLY

(a) Execution of Landgate forms Practitioners will sign on behalf of their clients using a digital certificate – pursuant to a Client Authorisation form (see proforma contained in Schedule 4 of the Participation Rules). (b) Caveats As is currently the case, the onus will be on the lawyer to ensure a caveatable interest exists. The supporting documentation will no longer be presented to Landgate. It must, however, be retained by the lawyer. (c) Mortgages The mortgagee or lawyer representing the mortgagee will sign the copy to be registered electronically at Landgate. It is up to the mortgagee and/or the mortgagee’s lawyer to ensure a copy of the mortgage signed by the mortgagor is retained. If the mortgagor does not sign a counterpart of the mortgage, the mortgage will not be enforceable against the mortgagor. (Refer to new s105(4) of the Transfer of Land Act 1893.) (d) Prior mortgagee consent Landgate will not require proof of prior mortgagee consent. The execution of a subsequent mortgage without consent will not be in breach of an existing mortgage. (Refer to new s127A(3) of the Transfer of Land Act 1893.) (e) Duplicate Certificates of Title If a duplicate Certificate of Title is on issue for a Title, the lawyer/ conveyancer must obtain the duplicate and destroy or invalidate it.

A certification to this effect is given on the electronic document by the 31

feature only allows lawyers to carry out conveyancing), then the prohibition continues to apply.

initiative1; (b) whether or not they want to embrace e-Conveyancing and, if so, when;

Individual state land registries will continue to exist - a national land registry is not envisaged.

SERVICE PROVIDERS CONSIDER E-CONVEYANCING WILL FACILITATE • 10 minute settlement processing times

“ ... there is no intention at the moment to make National e-Conveyancing compulsory in Western Australia.”

lawyer/conveyancer. Guidance will be provided by Landgate as to how duplicate certificates of title can be invalidated.

JURISDICTIONS Subscribers who represent clients must comply with the laws of the jurisdiction in which they are located. National e-Conveyancing does not impact on the laws empowering professionals to act.

For example, if a licence is required to undertake conveyancing in a jurisdiction, the Subscriber must hold the appropriate licence for that jurisdiction. If the laws of the jurisdiction prohibit a Subscriber from undertaking conveyancing in that jurisdiction (e.g. Queensland which

• Easier scheduling and re-scheduling of settlements • Pre-population of forms utilising details direct from Landgate which could reduce the incidence of requisition notices • Elimination of bank cheques for settlement • On-line settlement of financial transactions, including duties, taxes and disbursements •

Immediate lodgment of instruments and instant acknowledgment of receipt

•

Better utilisation of staff.

WHAT TO DO IN THE LEAD UP TO IMPLEMENTATION OF RELEASE 2 IN MAY 2015 In the remaining months before implementation in Western Australia (May 2015), firms should, among other things, consider:

and, if it is decided to participate, consider: (e) appointing a person or panel of people within the firm to be the ‘e-Conveyancing champion(s)’ apprising themselves of progress, attending seminars, studying the Laws and Rules, formulating procedures, meeting with service providers and preparing staff and client training programmes; and (f) assessing new software or upgrades which will integrate with e-Conveyancing programmes.

1.

Lawyers and conveyancers in Western Australia will be invited to sign up for PEXA in early 2015.

PEXA will shortly launch a new website allowing practitioners to sign up online. In the meantime, practitioners can subscribe to a regular newsletter and register their interest via the PEXA website www.pexa.com.au.

(a) engaging with PEXA and its sponsors (InfoTrack, SAI Global Property, GlobalX Legal Solutions and Veda) in order to learn more about the

e-Conveyancing Forums

Senior representatives from the following organisations will be in attendance to present and answer questions: • Bankwest • GlobalX Legal Solutions

• Property Law Committee of the Law Society of Western Australia

Perth Bunbury* Wednesday, 25 February 2015 3.00pm – 6.00pm Friday, 6 March 2015 10.30am – 1.30pm Central Park Theatrette, Perth Lord Forrest Hotel, Bunbury Fremantle* Wednesday, 4 March 2015 9.00am – 12.00pm Fremantle Sailing Club *Law Mutual Risk Management Seminars to follow

Discover more at lawsocietywa.asn.au/upcoming-cpd-events Enquiries (08) 9324 8600 I Fax (08) 9324 8699

32 | Brief February 2015

(d) liaising with bank/financial institution clients to discuss their expectations,

NOTES

The Society brings you e-Conveyancing Forums in February and March 2015 • PEXA • Landgate

(c) (if the firm does not conduct many settlements) whether or not they should continue offering this service to their clients or whether outsourcing is more economical and prudent from a risk management perspective;

Albany* Friday, 13 March 2015 10.30am – 1.30pm Dog Rock Motel, Albany

3

CPD Points

Use ‘That’, which is Almost Always Better Victor Ageev Law Graduate and Graduate Engineer, AGC Australia

‘Where one which goes many others follow ... The inveterate whicher … is not welcome in good company.’1

•

It is trite to say that those in the legal profession are educated, and so it is of no surprise to anyone that we speak and write in an educated register, sometimes to a fault. And if such a foundation weren’t enough, we’ve all met one of the many who treat the range of their vocabulary as an offensive weapon, aiming constantly to out-elucidate or to out-obfuscate (it’s frequently unclear which, and that is comment enough.)

Where a comma-less ‘which’ can be grammatically changed to a ‘that’, it is almost invariably correct to do so.

Otherwise, a comma should be added.

To decide which word should be used, assess the meaning of the sentence with implied commas inserted. Take the example:

In a profession that produces a substantial amount of literature, much of which is for public consumption, it is easy to respond to layman complaints of impenetrable language by suggesting that it is the law that can be difficult to understand, and that our language is a mere reflection of that fact. Though it is true that we are all very clever, I sometimes wonder if it’s not our language that complicates the law.

But whether you think we should strive to use more inclusive language or you believe that it is necessary to use all the complexities of language to describe the complexities of law, I believe there is one thing that we can all agree on; whatever forms our usage takes we should strive, and most of us do, to make sure it is correct. To that end, allow me to complain: We have substituted, with uncharacteristic disregard, the correct usage of ‘that’ in restrictive clauses with an incorrect usage of ‘which’.2 I will be brief in outlining the ignored distinction, which holds true in the vast majority of cases: •

‘Which’ should either follow a preposition (i.e., about which, on which, of which, in which) or follow a comma. In the latter case, it forms a non-restrictive clause and provides supplementary information about the subject.

Absent a preposition, ‘that’ should be used to construct a restrictive clause, as we will see below.

‘Legal writing which employs the correct usage is rare.’

What the author of such a sentence probably intended to do was to identify a class of objects (legal writing), to restrict that class by some criterion (those examples employing correct usage), and then to make a statement about the restricted class (examples of legal writing employing the correct usage are rare). To evaluate what the author has actually said, insert the phantom commas: ‘Legal writing [,] which employs the correct usage [,] is rare.’

We discover that what the author has actually done by using ‘which’ instead of ‘that’ is identified a class of objects (legal writing) and made an absurd statement about it (legal writing is rare). The part between the commas is parenthetical (oh, and by the way, all legal writing employs correct usage).

Obviously, the ‘which’ should be a ‘that’:

beneficial because the use of ‘which’ can alert the reader to a parenthetical remark.

If you are still unconvinced, then say the following phrases out loud: ‘I’ve had a lot of coffee which tastes bad.’

‘I want technology which just works.’

‘Please, for the love of all which is good.’

I suspect they may have sounded to you instinctively as being incorrect. In each case a ‘that’ is far more appropriate.

I won’t delve into examples from Western Australian legal literature for two reasons; because I want to avoid the wrath of the authors and because examples are exceedingly easy to come by.

The rule does serve a purpose; it enhances clarity and comprehension, and that is reason enough to follow it. I challenge you to keep the rule in mind, and I guarantee that you will steadily progress from feeling indifferent to feeling trapped in a hell-scape of semantic miscues. As ever, we can either do something to improve, or we can follow the strangely subversive instruction found in a guideline to ethical legal practice, which compels us to ‘Do nothing [,] which will bring into question the trust and confidence of clients, the courts, colleagues or the public.’

NOTES

‘Legal writing that employs the correct usage is rare.’

1.

J. Thurber, “Ladies’ and Gentleman’s Guide to Modern English Usage”, The Ways of Language: A Reader 142,143 (Raymond J. Pflug ed., 1976).

Parenthetical remarks can generally be removed from a sentence without compromising its main purpose. The sentences ‘Reading, which I enjoy, can be informative’ and ‘Reading can be informative’ convey the same central idea about reading. If we try with a restrictive clause it doesn’t work so well; ‘A clerk that naps is no good’ and ‘A clerk is no good’ are very different statements. When we do want a nonrestrictive clause, holding to the rule is

2.

It would be dishonest of me not to mention here that there are many (if not most!) who do not think the usage criticised in this article is wrong at all, and would characterise me as a pedantic prescriptivist (which are hard words for me to read, especially side by side). I firmly believe, however, that if you give the rule a chance you’ll be inclined to agree with me.

33

Sir Lawrence Walter Jackson The Hon Nicholas Hasluck AM, QC The Hon Nicholas Hasluck AM, QC retired from the Supreme Court of WA some years ago and is well-known also as the author of 11 novels. His latest work Rooms in the City (Australian Scholarly Publishing) takes a fresh look at the Gallipoli campaign.

Lawrence Walter Jackson (1913-1993), Chief Justice of the Supreme Court of Western Australia and university chancellor, was born in Dulwich, South Australia, on 27 September 1913, son of Lawrence Stanley Jackson, and his wife Hazel Winifred, née Powell.1 Upon the family moving to Sydney Jackson attended the famous Fort Street High School where he was awarded a general exhibition in 1930.2 Jackson graduated from the University of Sydney BA (1934), LLB (1937).3 He was admitted as a solicitor of the Supreme Court of New South Wales in 1937.4 Without any immediate prospects in Sydney Jackson accepted an offer from his uncle, Horace Jackson, who had established a law firm in Perth.5 Jackson was admitted as a barrister and solicitor of the Supreme Court of Western Australia on 16 December 1937.6 Two weeks later, upon his return to Sydney, he married Mary Donaldson at the Congregational Church in Mosman on 30 December 1937.7 The young couple left for Perth by sea on the following day.8 Having been admitted to the partnership on 1 January 1938, Jackson resumed work at the firm upon arrival.9 The firm soon became Jackson, McDonald & Co. In the pre-war period Jackson finished up practising mainly in the field of industrial arbitration and motor vehicle insurance.10 He enlisted in the Australian army at Fremantle on 25 July 1942 and had risen to the rank of Lieutenant in the Royal Australian Artillery by the date of his discharge on 1 August 1944.11 His war service included a period in charge of a battery of guns overlooking the approaches to Fremantle Harbour.12 Jackson quickly established himself in the top line of the junior barristers.13 By this time he had found a comfortable home for his family in Peppermint Grove.14 He was also a visiting lecturer 34 | Brief February 2015

in the Law Faculty at the University of Western Australia.15 It wasn’t long before the Jacksons family consisted of a son, Alton, born in 1941, and two daughters, Helen and Diana, born a few years later.16 In 1949 Jackson received an offer from the government that came on somewhat unusual terms. He was to be appointed as a member of the Supreme Court, but upon the basis that he would serve initially as President of the Arbitration Court.17 He accepted,18 and in fact served as President only until the end of 1954 when he became a full time member of the Supreme Court Bench.19 Determined to play a useful role in the life of the community at large, Jackson served as President of the Western Australian Cricket Association from 1951 to 1963,20 and as Chairman of the National Trust (WA) from 1957 to 1964.21 He became a member of the Senate of the University of Western Australia in 1958.22 In the criminal jurisdiction Jackson was soon regarded as a firm but fair trial judge.23 In civil cases he exercised the care expected of a trial judge in finding the facts and applying the law in accordance with accepted principles, subject to the right of appeal. This appears from his involvement in the landmark case of Goldman v Hargrave which established, after 4 years of litigation (including two hearings before Jackson as trial judge), that an occupier is obliged to contain a fire on his land, even if he is in no way responsible for it being there.24 In August 1966 the state government appointed Jackson to chair a committee to examine the future needs of tertiary education in Western Australia.25 It recommended that the Western Australian Institute of Technology be established by statute; that tertiary institutions should operate autonomously; that they would have to maintain a balance between the

demands of scholarship and the marketplace; that the control of teacher education be vested in autonomous colleges; that a Tertiary Education Commission be established.26 This led eventually to the creation of the new Murdoch University campus.27 Jackson became Chancellor of the University of Western Australia in 1968.

He was appointed Chief Justice of the Supreme Court on 2 May 1969 upon Sir Albert Wolff’s retirement. By then a Knight Bachelor, Jackson was created a Knight Commander of St Michael and St George for his services to law and the community in the following year.28 Jackson changed the climate of the court from a combative mood between the Bench and the Bar to one of mutual respect.29 He introduced a new set of Supreme Court Rules in 1971.30 This was a period of significant change which included the setting up of the District Court and the Family Court and litigation driven by a burgeoning economy. When Jackson was called upon to review proceedings arising out of a collision between two ferries competing for custom, he created a valuable precedent as to the workings of the Court of Marine Inquiry.31 When Parliament amended the Mining Act 1904 (WA) with a view to extinguishing certain rights, this was said to be invalid as an interference with the role of the courts. Jackson held that the provision lay within the plenary power of a sovereign parliament.32 Jackson retired at 63 years of age.33 A formal sitting of the Supreme Court was held on 23 December 1976 to mark his retirement.34 Throughout his 28 years on the Bench he approached his judicial work with an open mind. His judgments were easy to read and never proceeded beyond the question to be decided.35 He was courteous without ceasing to be firm. He made it plain that an exact application of the law is important, but his wit, which

25.

Tertiary Education in Western Australia, University of Western Australia Press for the Government of Western Australia, 1967.

26.

Lake and Neale, Post-Secondary Education (UWAP, 1979): 277.

Advice letter from Jackson, Leake, Stawell & Co to its clients 31 December 1937.

27.

Geoffrey Bolton, It Had Better Be A Good One (Murdoch University, 1985): 10-12.

John Virtue, Ilex, The Journal of The Institute of Legal Executives Vol 10/1, (1977): 12.

28.

Burt, Brief, Vol 20 No 6, July 1993: 11.

29.

Bolton and Byrne, May It Please Your Honour: 223.

11.

Australian Army Basic Service Record.

30.

John Virtue, Ilex: 13.

12.

Alton Jackson interview 31 July 2013.

31.

13.

Burt, Brief Vol 20 No 6, July 1993: 10.

The Queen v R.J.Syme SM; ex parte George Alfred Page (1970) WAR 153.

14.

Robert Pascoe, Peppermint Grove (Melbourne: Oxford University Press, 1983): 100.

32.

Nicholas v State of Western Australia (1972) WAR 168.

15.

Fred Alexander, Campus at Crawley (Melbourne: F.W.Cheshire for the University of Western Australia Press, 1963): 733.

33.

Bolton and Byrne, May It Please Your Honour: 242; Alton Jackson interview.

34.

The West Australian 24 December 1976.

16.

Alton Jackson interview; Davies interview.

35.

Burt, Brief Vol 20 No 6, July 1993.

17.

Geoffrey Bolton and Geraldine Byrne, May It Please Your Honour (Perth: Supreme Court of Western Australia, 2005): 194.

36.

A report of the special sitting in Brief, March 1977.

was always topical, was a reminder that other things are important too.36 His term as Chief Justice, according to the Australian Law Journal, was characterised by inspired leadership which attracted the loyalty of his judicial colleagues and the legal profession.37

6.

Supreme Court of Western Australia Admission Certificate 16 December 1937.

7.

New South Wales Marriage Certificate Reg. No. 1938/003183.

8.

Diana Davies interview 2 December 2013.

9.

10.

Jackson served as Chancellor of the University of Western Australia until 22 May1981.38 He died on 5 June 1993 at the age of 79, survived by his wife and three children. His career was honoured at a special sitting of the Supreme Court.39 The Dancer, cast in bronze, stands in a classical ballet position to one side of Lawrence Jackson Court on the University campus. The serene figure commemorates Jackson’s contribution to the ideal of university life.40 In the words of his daughter Diana: ‘He was warm and kind, and constant.’41

South Australian District Birth Certificate Transcript 1913; Lawrence Walter Jackson typed but undated memoir verified by his daughter Diana Davies per interview 2 December 2013.

2.

Francis Burt, Law Society of Western Australia journal, Brief, Vol 20 No 6, July 1993: 10.

3.

University of Sydney Archives, Alumni sidiensis 1934,1937.

4.

Australian Law Journal, Vol 51, March 1977: 162.

5.

Jackson memoir: 3.

Australian Law Journal, Vol 51, March 1977: 162.

38.

D.H.Aitken, University News, June 1981.

18.

Burt, Brief, Vol 20 No 6, 1993:11.

19.

Bolton and Byrne, May It Please Your Honour: 195.

39.

Supreme Court Transcript of Proceedings Monday 21 June 1993; Brief, Volume 20 No 6 July 1993: 10.

20.

The West Australian 30 April 1963.

40.

21.

Andrea Witcomb and Kate Gregory, From the Barracks to the Burrup (University of New South Wales Press Ltd, 2010): 105.

George Seddon and Gillian Lilleyman, A Landscape for Learning (University of Western Australia Press, 2006): 129.

41.

Davies interview.

22.

Bolton and Byrne, May It Please Your Honour: 225.

23.

Antonio Buti, A Matter of Conscience (University of Western Australia Press, 2007): 47.

24.

Hargrave v Goldman (1963) WAR 102; Hargrave v Goldman (1963) 110 CLR 40; Hargrave v Goldman (1964) WAR 93; Goldman v Hargrave (1966) 115 CLR 458. See also Fleming, Law of Torts, 9th Ed (Sydney: LBC Information Services, 1998): 394; Pam Stewart and Anita Stuhmcke, Australian Principles of Tort Law 3rd Ed (Sydney: The Federation press, 2012): 553,554).

NOTES

1.

37.

35

36 | Brief February 2015

Caveats An Essential Guide to Caveats The Law Society of Western Australia CPD Seminar Paper Delivered On 15 October 2010

Doug Solomon Partner, Solomon Brothers This paper deals with caveats lodged under Part V of the Transfer of Land Act 1893 (‘TLA’). It does not also deal with caveats which may be lodged under other provisions of the TLA, namely: •

under s30 against bringing land under the TLA;

•

under s176 against rectifying boundaries;

•

under s223A against adverse possession; or

•

under s188(iii) lodged by the Registrar of Titles (‘the Registrar’).

person wishing to preserve an unregistered estate or interest must register the interest (if it is registrable) before a subsequent dealing or protect it by caveat (or in some other way such as by obtaining an injunction).1 1.2.

The purpose of a caveat is, by operation of s139 of the TLA, to operate as an injunction to the Registrar to prevent registration of dealings forbidden by the caveat until notice is given to the caveator, so that the caveator has an opportunity to oppose that registration.2

1.3.

Although registration of a caveat is commonly spoken of, a caveat is not registered: it is lodged with the Registrar under s137 of the TLA and the Registrar enters a memorandum of the caveat pursuant to s141 on the Certificate of Title.

Although the memorandum is entered in the encumbrances section of a title, a caveat is not an encumbrance as defined in s4 of the TLA, nor is a caveat a proprietary interest.3

The structure of the paper is: Section 1: the nature and effect of a caveat Section 2: entitlement to lodge a caveat Section 3:

types of caveats and permissible use of each type

Section 4:

lawyers’ duties in preparing and lodging caveats

Section 5:

form and content of caveats

Section 6:

withdrawing caveats

Section 7:

removing and extending caveats – s138B notices

Section 8:

other methods for removal and extension of caveats

Section 9: damages under s140 for lodging a caveat without reasonable cause Section 10: conclusion 1.

NATURE AND EFFECT OF A CAVEAT

1.1

Apart from the limited exceptions provided for in s68 of the TLA, registration of a dealing extinguishes all unregistered estates or interests which would have conflicted with or encumbered the title acquired by that registration. A

1.4

Merely because a caveat is accepted by the Registrar does not mean that the caveat is valid or that the interest sought to be protected by the caveat is a caveatable interest. This is because it is not the Registrar’s role under the TLA to adjudicate these matters. The Registrar may, under s137 of the TLA, require the caveator to provide a statutory declaration “stating the nature of the estate or interest claimed and the title thereto”. If that declaration is provided when required and the caveat is otherwise in proper form, it is accepted by the Registrar – and issues of validity left for determination by the Supreme Court.

2.

ENTITLEMENT TO LODGE A CAVEAT

2.1.

To be entitled to lodge a caveat under Part V of the TLA, a person must have a caveatable interest.4

2.2.

Despite some earlier authority in states other than Western Australia to the contrary5, it now appears clear that entitlement to lodge a caveat is not limited to equitable interests which are registrable or capable of founding a claim to compel a registered proprietor to deliver a registrable instrument.6

2.3.

In light of the form of s137 of the TLA, those contrary authorities were never applied in Western Australia: what is required in WA is a proprietary interest in the land, which need not be capable of being registered. The interest of a beneficiary under a trust document or of a partner in partnership property is sufficient.7

2.4.

However, it must be a present interest and not merely the possibility of obtaining an interest under a court order, such as under s79 of the Family Law Act 1975.8

2.5.

The principle that there must be a present interest in the land also applies to constructive trusts: where a constructive trust is imposed only as a remedy, there is no caveatable interest unless and until an order imposing the trust is made; however, where the constructive trust is institutional rather than remedial, a constructive trust arises at the time of the conduct giving rise to its imposition.9

2.6.

It appears to follow that a claim for an order for specific performance based on part 37

2.7.

performance of an unwritten 2.8.

It follows, to state the obvious, over land, but does not charge agreement granting an interest that having an unsecured claim or otherwise create an interest in land would be considered for a debt or damages against in the land, does not confer a as a caveatable interest a person (‘the debtor’) does caveatable interest.15 It is only if because it is institutional rather not confer a caveatable interest the agreement is construed as than remedial. Preparation on the claimant in the debtor’s impliedly or inferentially granting of such a caveat and its land, nor does expenditure a charge or other interest in supporting statutory declaration of work or materials under a the land that there would be a requires close attention to construction contract which caveatable interest16 - and in the requirements to establish does not also grant a charge.14 that event the caveat would such a claim10 because have to specify that it is the caveator’s “What is usually important is construing the the charge or other interest equitable interest is claimed, and how it is particular agreement in light of events which claimed to arise. commensurate with the availability of specific have occurred to determine whether or not performance.11 Similar 3. TYPES OF CAVEATS an interest in land was initially granted by reasoning applies to AND PERMISSIBLE USE the agreement or has since arisen.” equitable liens arising by OF EACH TYPE operation of law, such 3.1. Section 137 of the as a purchaser’s lien to TLA provides that a caveat recover the price paid under a An unsecured creditor or other may forbid “registration of contract which has terminated unsecured claimant wishing to any person as transferee or or an unpaid vendor’s lien to be prevent disposition of a debtor’s proprietor of and any instrument paid the purchase price after property has no right to lodge affecting the claimed estate or conveyance12. a caveat against any of the interest: debtor’s property (and if they do Applying the same principle, so will be liable to be ordered to (a) absolutely; or a right of pre-emption (to pay damages under s140 of the purchase, lease or otherwise (b) until after notice of the TLA for lodging a caveat without acquire an interest) does not intended registration or reasonable cause, which create an interest in land (and dealing be given to the damages may be substantial). therefore does not confer a caveator; or Such a creditor or claimant may caveatable interest) prior to the have other possible remedies, (c) unless such instrument be events triggering entitlement such as a freezing order under expressed to be subject to under the pre-emptive right Order 52A of the Rules of the the claim of the caveator.” occurring, but it is different Supreme Court 1971 (a topic where the right is an option.

An absolute caveat “would beyond the scope of this paper); 3.2.

What is usually important commonly be lodged by but entitlement to apply for a is construing the particular someone who claimed to freezing order does not give rise agreement in light of events be entitled to be registered to a caveatable interest – the which have occurred to as the proprietor of the land reasoning in paras 2.4 and 2.5 determine whether or not an free of encumbrances”.17 above applies. interest in land was initially However, an absolute caveat granted by the agreement or 2.9.

It also follows that an agreement may be appropriate in other has since arisen.13 This is often which merely gives authority circumstances, such as under a complex issue. or consent to lodge a caveat a deed granting a restrictive

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covenant against subdivision of neighbouring land.18 3.3.

3.4.

3.5.

A ‘notice’ caveat is appropriate where a beneficiary under a will or settlement wishes to be able to check whether a dealing by the trustee is in accordance with the will or settlement. Section 142 of the TLA also applies to a notice caveat and allows a dealing to be registered without the caveat being withdrawn if the Commissioner of Titles (‘the Commissioner’) is satisfied the dealing is authorised by the will or settlement and the beneficiary has consented or not lodged a written protest to the dealing within 14 days of service of notice.19 Para 4.1.8.2 of the Land Titles Registration Practice Manual (‘the Landgate Practice Manual’) sets out the requirements for the giving of notice to the caveator at least 14 days before a dealing is lodged and proof of compliance with those requirements by statutory declaration.

A ‘subject to claim’ caveat may be lodged by a party claiming an interest other than entitlement to be owner in fee simple, such as a leasehold or equitable mortgage or charge interest. It will not prevent registration of an instrument showing the caveat as an encumbrance, and the claim of the caveator is preserved20.

As referred to in paras 1.2 and 1.3 above, a registered dealing listing a subject to claim caveat as an encumbrance does not thereby admit the validity of the caveator’s claim – it merely preserves the claim so that the caveator may seek to enforce the claim notwithstanding registration of the dealing.

There is now a long line of authority in WA that a caveator “may not lodge a caveat which goes beyond the legitimate claim necessary to protect the caveator’s rights”.21 Failing to comply with this requirement may render a caveat defective and liable to be removed for that reason22 and may also give rise to a claim against the caveator for damages under s140 of the TLA for lodging a caveat without reasonable cause. Indeed, Brogue was an appeal from a summary judgment given against a caveator for damages under

s140 based on the caveator, a beneficiary under a trust, having lodged an absolute caveat when only entitled to lodge a notice caveat. As this principle has been established since Corwest was decided by the Full Court in 1978, it is surprising how many absolute caveats have been inappropriately lodged since then.

3.6.

Related to the issue of the permissible type of caveat which may be lodged is the issue whether a registered proprietor can lodge a caveat against their own title – e.g. a proprietor seeking to prevent registration of a transfer by a mortgagee exercising its power of sale or where the proprietor has lost the duplicate Certificate of Title or a registrable instrument. There are conflicting lines of authority in NSW and VIC on the issue and it is not yet settled in WA.23 Lodgement of such a caveat, until the issue is settled, involves risk of possible liability for damages under s140 of the TLA. Para 4.1.6 of the Landgate Practice Manual states a caveat by a registered proprietor will be accepted if lodged.

4.

LAWYERS’ DUTIES IN PREPARING AND LODGING CAVEATS

4.1.

A request for advice as to whether there are grounds to lodge a caveat and instructions to lodge a caveat give rise to

a duty on a lawyer to advise the client as to the form and type of caveat, whether or not advice as to the form and type of caveat was specifically requested.24 4.2.

The issues referred to in sections 2 and 3 above (including in particular whether an absolute caveat should be lodged) require careful analysis of the relevant documents, facts and circumstances to ascertain, firstly, whether there is a caveatable interest (see section 2 above) and, if so, what type of caveat should be lodged (see section 3 above).25 Given the potential complexity of issues referred to in sections 2 and 3 above, coupled with the pressure for urgent protection of a correctly drafted caveat which often accompanies instructions to provide advice and prepare and lodge a caveat, the preparation and lodgement of caveats in complex and nonroutine matters often requires specialist skills and involves material risk for a practitioner (either for liability for losses through the caveat being defective and removed by the court or through the client becoming liable for damages under s140 of the TLA or possibly liable to the registered proprietor – see section 9 below). Assistance of specialist counsel should therefore be sought where appropriate.

39

5.

FORM AND CONTENT OF CAVEATS

5.1.

Like many other provisions in the TLA, s137 requires a caveat to be in an approved form (defined in s4 as approved by the Registrar). The approved form (Form C1) is in an Appendix to the Landgate Practice Manual. The caveat must, inter alia, specify the estate or interest claimed and specify the grounds on which the estate or interest is claimed.

5.2.

5.3.

5.4.

5.5.

Registrar to extend the 7 day period).

5.6.

If the land over which the caveat is lodged is not the whole of the land in a title, the caveat should (and must in the case of an absolute caveat) so specify and refer to and attach an initialled plan showing the dimensions of the affected area: Landgate Practice Manual para 4.2.6.

5.7.

Special care must be taken in drafting caveats protecting leasehold interests. This is because s68 of the TLA makes an express exception to indefeasibility for options of renewal or purchase in leases or agreements for lease for a term not exceeding 5 years: a lease or agreement for lease to a tenant in actual possession for a term not exceeding 5 years is an exception to indefeasibility; but an option for renewal or purchase therein is not protected unless the lease is registered or protected by caveat.30 For an option to be protected by a caveat, the option must be specifically specified in the caveat as being claimed by the caveator31.

Furthermore, if the term exceeds 5 years or the term is less than 5 years but the tenant is not in actual possession, the term must be specifically claimed in the caveat as well as any option of renewal or purchase. Because of the risks in relying on a caveat, since Leros lawyers acting for tenants often seek registration of leases (if registrable – i.e. for a term exceeding 3 years: s91 of the TLA).

The estate or interest claimed must be a caveatable interest (see section 2 above) and must be specified, such as ‘purchaser of an estate in fee simple’.26 The caveat must specify the interest claimed so as to be sufficiently clear to a person searching the caveat and so as to enable the Registrar to determine whether a dealing lodged is inconsistent with the caveat: the High Court has held that the requirement to ‘specify’ the estate and interest and grounds means “mention definitely or explicitly”.27 The ‘by virtue of’, or grounds of the claim, section of the caveat should refer to, and accurately describe, any agreement from which the claim is derived (and a copy of the agreement (duty endorsed, if required)28 must be lodged with the caveat): see para 4.2.4 of the Landgate Practice Manual.

There are conflicting authorities as to whether regard may be had to a supporting statutory declaration in determining whether a caveat specifies the estate or interest claimed29. Until the issue is settled, practitioners should ensure that the estate and interest and grounds for the claim are both adequately specified in the caveat itself.

Under s137, the Registrar may require the person lodging the caveat to “support the same by statutory declaration stating the nature of the estate and interest claimed and title thereto”.

Section 137 goes on to provide that if such statutory declaration is not lodged “within 7 days from the date of such requisition the caveat shall be absolutely null and void”. Para 4.2.5 of the Landgate Practice Manual shows this provision is strictly applied (as it should be because it confers no discretion on the

40 | Brief February 2015

5.8.

5.9.

As elaborated in section 7 below, because the time to prepare an adequate affidavit to support an application to the Supreme Court to extend a caveat (which will be required to prevent the caveat lapsing if it is challenged) may be very limited, the statutory declaration supporting a nonroutine or complex claim in a caveat should be as detailed as possible: if an urgent court application is required, an affidavit annexing a copy of a detailed statutory declaration and verifying its facts may be sufficient to obtain an order extending the caveat.

If a lawyer allows their

address (or fax number) to be the address for service in a caveat, they should include a sufficient reference to be able to quickly locate the file if a notice is received, and should change the address for service if they change address or fax number. The receipt of a notice for a caveator always requires immediate attention.

Because of the urgency and possibly serious consequences which may result after a notice concerning a caveat is served, practitioners should review the risk of having their office or fax as the caveator’s address for service before including it in a caveat.

5.10.

If the land being caveated is Crown land, s20 of the Land Administration Act 1997 applies, and the circumstances in which a caveat can be lodged are more limited because of s20(2) – see para 4.2.2 of the Landgate Practice Manual.

5.11.

Because of the form of s137 referred to in para 2.1 above, a caveat may be lodged against a registered lease, mortgage or charge if the caveator’s claim is against that rather than the fee simple estate.

5.12.

There are details in the approved form of caveat other than those dealt with above which are self-explanatory and do not require comment.

6.

WITHDRAWING CAVEATS

The caveator may withdraw a caveat by completing the approved form and lodging it.

7.

REMOVING AND EXTENDING CAVEATS – S138B NOTICES

7.1.

Unless any of the exceptions in paras (a) – (g) of s138A applies (the exceptions are listed in para 3.11.1 of the Landgate Practice Manual), the simplest procedure is the making of an application under s138B(1) for the issue by the Registrar of a notice to the caveator that, unless an order extending the caveat is made by the Supreme Court and lodged with the Registrar within 21 days after service of the notice, the caveat will lapse.

7.2.

Although s138B(1) specifies the proprietor of the land in respect of which the caveat was lodged or a judgement

“ ... an agreement which merely gives authority or consent to lodge a caveat over land, but does not charge or otherwise create an interest in the land, does not confer a caveatable interest.”

7.4.3. may make ancillary orders in relation to the application.

7.5.

The onus of satisfying the court that the caveator’s claim has or may have substance lies on the caveator33.

7.6.

The statutory test ‘has or may have substance’ is consistent with the long-established practice that a summons to extend a caveat is not the occasion to determine disputed issues of fact34. Hence, where the claim the subject of the caveat is subject to disputed facts, the court may extend the caveat but condition the orders extending the caveat on the caveator commencing and diligently prosecuting proceedings to enforce the caveator’s claim35.

7.7.

What was required to satisfy the statutory test was, until recently, said to be similar to the serious question to be tried to test for grant of an interlocutory injunction, based on the Full Court’s decision concerning the s138 test (a decision made before s138B and s138C were introduced in 1996)36. The principle enunciated was that it would be unusual to remove a caveat where an arguable case as to the existence of the claimed interest is established by the caveator, so as to prevent destruction of the caveator’s interest by removal of the caveat37. However, notwithstanding the language in s138C has not changed, the Court of Appeal by majority38 recently held39 that the more rigorous test for interlocutory injunctions enunciated by the High Court in 200640 should henceforth apply to cases under s138C(2), namely “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”. Because there was a gap in the caveator’s evidence, an appeal was allowed from an order extending the caveat and the caveat was removed, even though it was recognized that there is very limited time to prepare the evidence for an application under s139C(1)41.

As they are bound to do, single judges are now applying this stricter test42. The approach

creditor named in a registered property (seizure and sale) order as the class of persons entitled to apply for issue of a notice, the term ‘proprietor’ has been held to include a registered mortgagee32.

7.3.

7.4.

For a caveator receiving a notice under s138B(1), the requirements of s138B(2) that an order extending the caveat be obtained and lodged with the Registrar within 21 days of service of the notice must be complied with to prevent lapse of the caveat. The court facilitates this process by having the Judge or Master making the order sign it, and the Registrar accepts fax and email lodgement of orders to the Manager, Complex Dealings: this is dealt with in Landgate Customer Service Bulletin 180 dated 30 August 2007 (which varies paras 1.17.1 and 3.11.1 of the Landgate Practice Manual in this regard).

The nonextendable 21 day period can result in great urgency where instructions are first received from a caveator to apply under s138C close to expiry of the 21 day period.

Section 138C(2) provides that, on the hearing of an application for an order extending the operation of a caveat, the Supreme Court: 7.4.1. if satisfied that the caveator’s claim has or may have substance, may extend the operation of the caveat for a specified period (which may be short where an urgent ex parte application, permitted by s138C(3), is made) or until further order or such other orders as appropriate; 7.4.2. if not so satisfied, must dismiss the application;

taken in Perron, with respect, involves an inappropriate “judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase [involving] judicial glossing of the relevant statutory expression”43: in my respectful view, the words “has or may have substance”, construed in light of the time limit in s138B(2) and the purpose of an order extending a caveat being to continue the protection of the caveat until final determination of the caveator’s claim, should not require the quality of evidence required by the test established by Perron.

Nevertheless, Perron states the law of the State unless and until overruled or qualified. I consider it likely that an effect of the decision in Perron will often be that practitioners preparing applications under s138C will find themselves under great pressure. It was with regard to that pressure that the comments in para 5.8 above are made: the supporting statutory declaration should be prepared with a view to it also being sufficient to satisfy the test enunciated in Perron if the caveat is challenged.

and

7.8.

On an application under s138C, the court may amend a defect in the form of the caveat.

However, this does not extend to altering the interest claimed in the caveat.44

7.9.

Although a caveat may be defective in a way which is not able to be amended, the court may grant an injunction to protect the caveator’s claim even though the caveat is not extended45.

7.10.

The court may not extend a caveat if there is a balance of convenience against it being extended, eg. if the interest claimed is a security interest or an interest in competition with another claimant against the registered proprietor46.

7.11.

The court will almost invariably require the caveator to give an undertaking to pay any damages caused to any person by the extension of the caveat.

This is a standard condition for the grant of an interlocutory injunction (because it might ultimately be established after 41

“Although a caveat may be defective in a way which is not able to be amended, the court may grant an injunction to protect the caveator’s claim ...”

a final hearing that the orders should not have been made), and has long been applied to orders extending caveats. The damages which may result from an order extending a caveat may be substantial. The High Court recently said that an undertaking as to damages should not lightly be given47.

Caveators should always be advised of the risk in giving an undertaking.

7.12.

should not be removed. The requirement to commence proceedings rather than just apply to the Registrar under s138B(1) to issue a notice to the caveator is why the s138B procedure was introduced and is now generally preferred where available. However, s138(2) must be used in situations where s138B does not apply, namely:

The effect of s138D should be noted: the caveator cannot lodge any further caveat without consent of the proprietor or leave of the court if:

7.12.2. the caveat has lapsed under s138B(2); or 7.12.3. an order of the court under s139C results in the caveat no longer having effect.

These requirements are noted in para 3.11.1 of the Landgate Practice Manual.

8.

OTHER METHODS FOR REMOVAL AND EXTENSION OF CAVEATS

8.1.

The pre-1996 methods for removing caveats still also continue.

8.2.

Under s138(2), an application may be made to the Supreme Court for the caveator to show cause why the caveat

42 | Brief February 2015

the caveat is of a type within one of the exceptions in s138A – see para 7.1 above;

or

8.2.2. the person who wishes to challenge it is not a proprietor of any registered interest and merely claims under an unregistered transfer or other instrument (and is therefore within the class of applicants referred to in s138(2) but not the class of applicants referred to in s138B(1)).

7.12.1. the caveat has been withdrawn after the s138B(1) notice has been served;

8.2.1.

8.3.

A transfer or other instrument may be lodged and, subject to certain stated exceptions, a 14 day notice issued by the Registrar under s138(3) causing the caveat to lapse and, pursuant to s138(4), not be capable of being renewed except subject to the register after registration of the dealing which triggered the 14 day notice, unless an order extending the caveat is made by the Supreme Court within those

14 days.

8.4.

Similar principles are applied by the court on applications under s138 as under s138C.

8.5.

An application can also be made to the Commissioner of Titles under s141A to issue a 14 day notice to the caveator on the ground that the estate or interest claimed by the caveator has ceased to exist. The Commissioner’s requirements are in para 3.12.1 of the Landgate Practice Manual, including the requirement that, since the commencement of the s138B procedure, the Commissioner will require the s138B procedure to be used if it is available.

9.

DAMAGES UNDER S140 FOR LODGING A CAVEAT WITHOUT REASONABLE CAUSE

9.1.

The person claiming compensation under s140 bears the onus of proof of all elements in s140 – i.e. that the caveat was lodged, that it was lodged without reasonable cause – i.e. that the caveator acted without reasonable cause at the time the caveat was lodged – and that the claimant suffered damage as a result of the lodgement of the caveat48.

9.2.

The notion of reasonable cause involves both subjective and objective elements. The subjective element is an honest belief that the caveator has a caveatable interest supporting the type of caveat lodged.

The objective element is the existence of reasonable grounds for the honest belief.

The caveator’s purpose in lodging the caveat may be relevant. Hence, the foundation for reasonable cause is not just whether or not the caveator had a caveatable interest justifying the type of caveat lodged, but whether the caveator had an honest belief, based on reasonable grounds, that they had such an interest49. However, if a caveator lodges a caveat for an ulterior or improper purpose, there are authorities, including the WA Full Court in Kuper, holding that it may be lodged without reasonable cause even if the caveator had such an honest belief based on reasonable grounds. The issue was not necessary to finally decide in Brogue.50 9.3.

It was held by the WA Full Court51 that legal advice obtained by a caveator may be of critical significance in deciding whether a caveator held an honest belief, on reasonable grounds, as to

the existence of a caveatable interest52. That reasoning was expressly approved by one judge in Brogue53. The other majority judge expressly reserved her opinion on the issue54. The third judge, who dissented in the outcome, interpreted Bolton differently55, as did a single judge in a 1999 case56. At this point, therefore, the extent to which a caveator might avoid liability under s140 by waiving privilege in their lawyer’s advice and relying on it to establish an honest belief in a caveatable interest, based on reasonable grounds, is not settled. However, if the approach enunciated in Bolton, as explained by Buss JA in Brogue, is adopted by the court, a caveator may well avoid liability under s140 based on having reasonably relied on negligent advice of their lawyer that they had good grounds to lodge a caveat of the type lodged.

9.4.

If reliance on negligent advice does indeed result in a caveator avoiding liability under s140, it

seems to me arguable that such a negligent lawyer may be at risk of liability to the proprietor over whose land the caveat is lodged either: 9.4.1. in tort – it being settled that a lawyer may be liable to a non-client for negligence57;

or

9.4.2. under s52 of the Trade Practices Act 1974 or s10 of the Fair Trading Act 1987 – for loss resulting to the proprietor for the caveator having lodged a caveat in reliance on misleading advice58.

Accordingly, if a caveator defends a claim by a proprietor of land for damages under s140 by waiving privilege and relying on their lawyer’s advice to establish an honest belief based on reasonable grounds, the proprietor of the land affected by the caveat could join the caveator’s lawyer as a defendant in the proceedings to seek to recover their loss from

43

the lawyer if the caveator is held not liable.

10.

CONCLUSION

I hope this paper demonstrates why more than 30 years of practice has taught me that one of the four introductory comments by a potential client which should trigger caution by a practitioner is “I want to take out a caveat”59.

17.

18.

2.

Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 (‘Leros’) at 418.

Leros at 419, applying J and H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552 and Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd (1992) 128 CLR 529 at 537.

3.

Leros at 421 and 422.

4.

Section 137 of the TLA permits lodgement by “any beneficiary or other person claiming any estate or interest in any land under the operation of this Act or in any lease mortgage or charge under any unregistered document or writing or under any equitable mortgage or charge by deposit without writing or by devolution in law or otherwise”.

5.

6.

7.

8.

9.

Particularly Classic Heights Pty Ltd v Black Hole Enterprises Pty Ltd (1994) V Conv R 54-506.

Schmidt v 28 Myola Street Pty Ltd [2006] VSC 343; 14 VR 447.

Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352 at 373-4; Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14 (‘Binningup’) at [23]. The difference in the WA legislation was referred to, and applied, in Floriston Nominees Pty Ltd v Kingsley Brown Finance Pty Ltd [2005] VSC 467 at [16] – [18] in distinguishing Binningup.

Ioppolo v Ioppolo (Unreported WA Full Court 13 November 1978); Lightfoot v Lightfoot (Unreported WA Supreme Court 27 February 1991); Hayes v O’Sullivan [2000] WASC 55; 24 WAR 40 at 45 [20]; Boni v Kingsoak Pty Ltd [2007] WASC 174 at [75] – [77].

Benson v Benson [2008] WASC 13 at [37] – [38]; in de Braekt v Powell [2007] WASCA 55; 33 WAR 389 at 407 [26]; Willis v Western Australia (No.3) [2010] WASCA 56 at [52] – [53]; Lydon v Ryding [2002] WASC 308 at [19] – [20].

10.

See Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23; 35 WAR 520.

11.

Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; 217 CLR 315 at 332-3 [53].

12.

See generally Hewett v Court (1983) 149 CLR 639.

13.

Witham v Witham [2000] WASC 236 at [97] – [101] and earlier cases there referred to; Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [2008] WASCA 107; 36 WAR 561 at 566-9 [13] – [27].

Perron at [42] and [44].

40.

Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179; 35 WAR 27 (‘Brogue’) at 41 [43] per Pullin JA.

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at 82.

41.

Perron at [48] – [51].

Midland Brick Co Pty Ltd V Welsh [2006] WASC 122; 32 WAR 207 (‘Midland Brick’) at 354-5 [362] – [367] and the earlier decision in that matter [2002] WASC 248, explained in Binningup at [37].

42.

National Australia Bank Ltd v McCourt [2010] WASC 237 at [39].

43.

Spencer v The Commonwealth [2010] HCA 28; 269 ALR 233 at 250 at [58]. Interestingly, earlier in 2009, the 2 majority judges in Perron had criticized a trial judge for inflexibly applying Custom Credit v Ravi: Navarac Pty Ltd v Moondancer Holdings Pty Ltd [2009] WASCA 95 (‘Navarac’) at [29].

44.

Midland at [401]; Devere Holdings Pty Ltd v Verge [2006] WASC 297 at [15] – [23]; Bashford v Bashford [2008] WASC 138 at [51].

19.

Brogue at [44]; Binningup at [39].

20.

Brogue at [45]; Leros 174 CLR at 420-1.

21.

Midland Brick at [342] referring to earlier authority including Vandyke v Vandyke (1976) 12 ALR 621 at 644 (which is incorrectly cited in Midland Brick) and Binningup at [35] (which has the same citation error of Vandyke); Brogue at [78]; Gangemi v Gangemi [2009] WASC 195 at [44]; Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 (‘Corwest’) at 134 and 136 referred to in Brogue at [62].

45.

Midland at [382] and earlier cases there cited; Lydon v Ryding [2002] WASC 308 at [22]; Powell v In de Braekt [2006] WASC 264 at [10].

46.

Navarac at [22].

22.

Lydon v Ryding [2002] WASC 308 at [21].

47.

23.

In McCourt v National Australia Bank Ltd [2010] WASC 121 at [8] – [11], the leading authorities are reviewed. It was unnecessary to reach a final view on the issue in that case. The decision of the Victorian Court of Appeal holding that a registered proprietor does not have a caveatable interest – Swanston Mortgage Pty Ltd v Trepan (1994) IVR 672 – has been criticized but not overruled: Vasiliou v Westpac [2007] VSCA 113; 19 VR 229 at [113] – [121].

European Bank Ltd v Evans [2010] HCA 6; 240 CLR 432 at [14].

48.

Brogue at [76].

49.

Brogue at [80] – [81].

50.

Brogue at [82] – [84].

51.

Bolton v Excell (Unreported 22 February 1993) (‘Bolton’).

52.

Brogue at [86] – [92].

53.

Brogue at [93] per Buss JA.

54.

Brogue at [1] per Wheeler JA.

55.

Brogue at [53] – [56] per Pullin JA.

56.

McKellar v Singh [1999] WASC 145 referred to in Brogue at [56] and [94] – [97].

NOTES

1.

39.

Homan [2010] NSWSC 260 at [111] – [118] and cases there referred to.

24.

Brogue at [116] per Buss JA, Wheeler JA agreeing, referring to Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 at 332-3.

25.

Brogue at [114].

26.

Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 (‘Kuper’) at 428-9; Betlehem v Keytown Constructions Pty Ltd [2007] WASC 38 at [16] – [17].

27.

Leros 174 CLR at 422-3.

28.

See s278 Duties Act 2008 (post 1 July 2008) or s28 Stamp Act 1921 for earlier instruments.

29.

Bashford v Bashford [2008] WASC 138 at [54] and earlier cases there referred to.

30.

There is an exception for the statutory option for a retail shop lease: s13(10) of the Commercial Tenancy (Retail Shops) Agreements Act 1985.

31.

Leros at 174 CLR 423-4.

32.

His Grace Metropolitan Petar v Macedonian United Society of Western Australia Inc [2003] WASC 15 at [32]; McCourt v National Australia Bank [2010] WASC 151 at [13] – [20].

33.

Hamdan v Widodo [2004] WASC 123 at [19]; Multan Pty Ltd v Ippoliti [2006] WASC 130 at [15]; Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 (‘Perron’) at [41] (a case in which I represented the unsuccessful caveator).

34.

Corwest at [1978 WAR 140-1 reviewed the long line of cases prior to that time, and Corwest has since been frequently applied: eg Halse v Embling (Unreported Full Court 22 December 1997); Cardinal Constructions Pty Ltd v Ghersinich [2009] WASC 239 at [42].

35.

For example, see Cobbold v Barrett [2006] WASC 252 at [62].

Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 at [56] and earlier cases there cited.

36.

Custom Credit Corp Ltd v Ravi (1992) 8 WAR 42.

37.

Radford v Bellevue Apartments Pty Ltd [2008] WASC 291 at [38] – [39].

15.

Graham v Chappell (1993) 9 WAR 157 at 160.

38.

16.

Bondi Beach Astra Retirement Village Pty Ltd v

Newnes JA, Pullin JA agreeing; McLure JA dissenting.

14.

44 | Brief February 2015

57.

Hill v Van Erp (1997) 188 CLR 159.

58.

There are cases holding that a misleading statement need not be made directly to the person suffering loss: e.g. Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 at 529-530.

59.

The other three are: (i)

I want to take out an injunction;

(ii)

This is a point of principle and I don’t care how much it costs me; and

(iii)

Both the two previous firms who have represented me on this matter have made a mess of it.

DISCLAIMER

This document (in printed, electronic or any other medium) cannot be regarded as legal advice. Although all care has been taken in preparing these papers, readers must not alter their position or refrain from doing so in reliance on these papers. Where necessary, advice must be sought from competent legal practitioners. Neither the authors nor the Law Society of Western Australia accept or undertake any duty of care relating to any part of the papers including their contents, index, tables, legislation or case index.

COPYRIGHT

The papers included in this document are copyright protected. Apart from any fair dealing for the purpose of private study, research, criticism, or review, as permitted under the Copyright Act 1968 (Cth), the papers included in this document may not be reproduced by any process without written permission from the authors.

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case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – Treatment of redundancy payment of $459,199 as worth $300,000 due to ‘taxation implications’ was in error In Diggelen [2014] FamCAFC 160 (1 September 2014) the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) considered Johnston J’s decision to treat a $459,199 payment the husband had received from his employer for “accrued annual leave, long service leave, severance payment and ETP” (para 25) as having a value of $300,000, his Honour saying (para 27): … it was submitted [for] the wife that there should be added back … the $469,199 (sic) which [the husband] received as his redundancy payment. … To do so would ignore taxation implications. It must be the case that some of this payment was on account of leave. There was no suggestion that the money paid was tax free. This is a most unsatisfactory aspect of the case. Doing the best I can in difficult circumstances I propose to allow $300,000 of this payment to be added back to the pool of property.

In remitting the case for re-hearing, the Full Court said (para 34): … there was no evidentiary basis on which his Honour could have found … that some part of the redundancy payment … was subject to tax … and ought to be brought into account at a lesser amount than that received.

We also observe that his Honour’s conclusion is at odds with … ss12-85 of Schedule 1 Taxation Administration Act 1953 (Cth) by reason of which the husband’s employer was obliged to retain PAYG payments on the redundancy/termination of employment payment.

Property – Husband loses appeal where wife won $6 million after separation – Parties ‘leading separate lives’ In Eufrosin [2014] FamCAFC 191 (2 October 2014) the Full Court (Thackray, Murphy & Aldridge JJ) heard the husband’s appeal against a property order made where after a 20 year marriage the wife won $6 million six months after separation. Stevenson J had adopted a two pools approach, found the husband had made no contribution to the lottery pool, divided the $2 million non-lottery pool equally and made a s75(2) adjustment in favour of the husband of $500,000. Stevenson J said that the wife had four sources of funds available when she

46 | Brief February 2015

bought the winning ticket and that “it would be ‘pure sophistry’ to credit the husband with any contribution to the funds used to purchase the ticket” (para 12). The Full Court said (paras 7-8): The husband contends that the wife used funds from a business that had been run primarily by him … during … the marital relationship to purchase the … ticket. Even if that is accepted, the argument which proceeds from it ignores the reality of the parties’ post-separation lives. The parties had put in place a system whereby regular withdrawals of funds were made by each of them from what was formerly a joint asset, and those funds were applied by each of the parties individually to purposes wholly unconnected with the former marital relationship.

At the time the wife purchased the ticket … the parties had commenced the process of leading ‘separate lives’, including separate financial lives. That crucial matter, the importance of which is reinforced by the High Court in Stanford [(2012) 247 CLR 10], renders reference to the sources of the funds or nomenclature such as ‘joint funds’ or ‘matrimonial property’ unhelpful in assessing what is just and equitable.

In dismissing the appeal the Full Court said (para 11): ( … ) What is relevant … is the nature of the parties’ relationship at the time the lottery ticket was purchased.

In our view, the authorities … [and] what was said by the High Court in Stanford regarding the ‘common use’ of property [are] sufficient to dispose of the husband’s contention that her Honour erred in failing to find that he contributed to the wife’s lottery win. At the time the wife purchased the ticket, regardless of the source of the funds, the ‘joint endeavour’ that had been the parties’ marriage had dissolved; there was no longer a ‘common use’ of property. Rather, the parties were applying funds for their respective individual purposes.

Children – Choice of supervisor of father – Court prefers commercial agency to father’s fiancée In Joelson [2014] FamCA 788 (19 September 2014) the father had a history of being prescribed anti-depressant medication,

had threatened suicide and was the subject of a police report expressing “genuine fears that [he] will snap and hurt himself and anyone he holds responsible for the demise of his relationship.” A single expert psychiatrist (‘Dr R’) reported being “dissatisfied with the progress made by the father in appreciating his underlying illness and the steps he needed to undertake … to manage his illness” (para 97). Dr R had recommended that the father’s time occur while his fiancée (‘Ms Z’) was at home but later recanted after Ms Z misled Dr R as to her experience of abuse. While accepting Dr R’s recommendation for a review before any progression from supervised time, Loughnan J decided that it was ‘safer’ (para 200) to make a final order for indefinite supervision (paras 198-199) in which it was noted that any application (after 12 months) for removal of the supervision was to be supported by a mental health assessment by the father’s treating psychiatrist.

Children – Unilateral relocation – Morgan & Miles distinguished – Recovery application dismissed In Geddes & Toomey [2014] FCCA 1814 (13 August 2014) Judge Harland dismissed the father’s recovery application where the mother had ‘again moved’ unilaterally from Darwin to Queensland with the children (10 and 9) (para 4). The father, a Darwin resident, had the children during school holidays under a parenting order and informally about once a month. The Court (para 18) distinguished Morgan & Miles [2007] FamCA1230 (relied on by the husband), saying that “at the time of the unilateral relocation in Morgan & Miles the father was seeing the children on a week about basis. In the current case … the father was seeing the children once a month”. Upon considering s 60CC factors Judge Harland (para 20) said that it was “clear that the children have a meaningful relationship with both their parents and that this will continue regardless of whether the children are in Darwin or Queensland”. The Court also gave weight (para 26) to evidence that “the father pays no child support currently and that the orders … for [his] time during school holidays will not be affected by the move”.

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

Native title

Bankruptcy

Costs

Bankruptcy notice – whether copy of final judgment ‘attached’ – curing of defects

In Oil Basins Ltd v Watson [2014] FCAFC 154 (17 November 2014) a Full Court concluded there was no error in the award of costs against the appellant by the primary judge under s85A of the Native Title Act 1993 (Cth) in proceedings where the appellant resiled from disputing the ‘connection’ to the land as an issue. Consideration of costs in Native Title proceedings.

Court of the Federal Court had correctly concluded the reasons the employer gave for dismissing an employee (who was a union official) did not amount to a dismissal contrary to s347 of the Fair Work Act 2009 (Cth) because of that membership or participation in industrial activity. Decision of the Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No1] [2012] HCA 32 applied: French CJ with Kiefel J; Gageler J sim; contra Hayne J and Crennan J. Appeal dismissed.

Patents

Migration

Validity – whether creation of a computer program involves ‘manufacture’

Refugees – internal relocation

In Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144 (30 October 2014) a Full Court found the requirement of s41 of the Bankruptcy Act 1966 (Cth) that the final judgment be ‘attached’ to the bankruptcy notice when it was issued was satisfied where the application for the notice was sent, and the notice was issued, by email.

Industrial law Awards – classification In Transport Workers’ Union of Australia v Coles Supermarket’s Australia Pty Ltd [2014] FCAFC 148 (3 November 2014) a Full Court concluded the Federal Circuit Court had not erred in finding that ‘customer service agents’ employed to deliver online shopping services were not covered by the Road Transport and Distribution Award but by retail industry awards. Consideration of the interpretation of awards.

Migration Migration decision – judicial review of conduct prior to migration decision In SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143 (29 October 2014) a Full Court concluded that various decisions of the Department when preparing to made a decision under s198(6) of the Migration Act 1958 (Cth) to remove SZSSJ constituted conduct preparatory to making a decision that the Federal Circuit Court should have accepted it had jurisdiction to review under s474(3)(h) of that Act. Migration Advice to person in detention In SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140 (28 October 2014) a Full Court considered whether the applicant applying for an extension of time had had sufficient access to legal advice.

In Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 (10 November 2014) a Full Court found the creation of a computer program to create a securities index and assist investing in the stock exchange did not constitute or produce a form of ‘manufacture’ that could be patented under s18 of the Patents Act 1990 (Cth).

HIGH COURT Corporations Managed investment schemes – role of responsible entity – distribution of scheme property ‘in specie’ In Wellington Capital Limited v Australian Securities and Investments Commission [2014] HCA 43 (5 November 2014) the High Court concluded that while a responsible entity for a managed investment scheme under Part 5C.1 of the Corporations Act 2001 (Cth) has all the powers of a natural person, the Federal Court had correctly concluded this did not include a power to distribute the scheme property (shares) to unit holders ‘in specie’: French CJ, Crennan, Kiefel, Bell JJ jointly; sim Gageler J. Appeal dismissed.

Industrial law Union membership – prohibition on adverse action against union member for industrial action – adverse action for multiple reasons In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (16 October 2014) the High Court by majority concluded the Full

In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 (12 November 2014) the Refugee Review Tribunal found that SZSCA was not a refugee as he could live and work as a truck driver in Kabul without fear of persecution. This decision was quashed by the Federal Circuit Court.

The Minister’s appeals against this were dismissed by the Federal Court. The High Court dismissed the Minister’s appeal to it: French CJ, Hayne, Kiefel, Keane JJ jointly; contra Gageler J. The High Court majority concluded the RRT had erred by not considering the impact on SZSCA of being required to stay in Kabul and not take his work as a truck driver out of it. Appeal dismissed.

Patents Extension of time to extend patent In Alphapharm Pty Ltd v H Lundbeck A-S [2014] HCA 42 (5 November 2014) the High Court by majority decided that the Full Court of the Federal Court had correctly concluded the commissioner had power under s223(2) of the Patents Act 1992 (Cth) to extend the time in which an application under s70 for an extension of the term of a patent could be made calculated by reference to s71(2) (a), (b) and (c): Crennan, Bell and Gageler JJ; contra Kiefel and Keane JJ. 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 47

law council update

LAW COUNCIL REAFFIRMS OPPOSITION TO DEATH PENALTY The following statement can be attributed to Mr Duncan McConnel, President, Law Council of Australia: •

The Law Council of Australia has reaffirmed its opposition to the death penalty in the wake of the recent execution of foreign citizens in Indonesia and confirmation that death sentences will be imposed on Australian citizens, Mr Andrew Chan and Mr Myuran Sukumaran.

•

While the Law Council of Australia respects the Indonesian laws and its sovereignty, the Law Council has a long-standing policy opposing the imposition or execution of the death penalty.

•

It is the position of the Law Council that no person should be subjected to the death penalty irrespective of their nationality, the nature of the crime they are alleged to have committed or the time and place of its alleged commission.

•

•

From an Australian perspective, where young Australian lives are lost by the imposition of the death penalty it brings home the futility of the death penalty as a form of criminal punishment.

Drug importation and trafficking are serious crimes but they are prevalent throughout the world.

Overwhelmingly, nation states recognise that a sentence of imprisonment is a proportionate response to such crimes.

•

The Law Council applauds the Australian lawyers who are working to support Mr Chan and Mr Sukumaran and the work of the Australian Government at a diplomatic level.

•

While the Law Council respects the Indonesian courts’ ruling, we hope mercy will prevail.

•

A copy of the Law Council’s Death Penalty Policy Statement is available online.

48 | Brief February 2015

AHRC CRITICISM GOES TOO FAR 2015

•

The findings of the Report included that the complainant has been held in custody since completing a sentence of imprisonment for manslaughter in 2007, and that his continued detention is arbitrary.

•

A criminal court sentenced Mr Basikbasik to a term of imprisonment that reflected the very serious nature of his crimes. The rule of law requires that the law be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds.

•

No government should support the indefinite detention of a person who has served their full term of imprisonment. All persons committed to the rule of law expect that prisoners should not remain detained after they have completed a sentence of imprisonment imposed by a court.

•

The ongoing criticism of the Basikbasik Report raises serious concerns with respect to the rule of law and the fundamental right to freedom from arbitrary detention, which Australia has recognised and agreed to protect as a party to the ICCPR.

•

The Law Council has a strong interest in promoting and upholding the rule of law and supporting the independence of office holders charged with making decisions.

The following statement can be attributed to Mr Duncan McConnel, President, Law Council of Australia: •

•

•

•

Recent criticism of the Australian Human Rights Commission’s President regarding Basikbasik v Commonwealth of Australia (DIBP) undermines the independence of the Commission and fundamental principles underpinning the rule of law.

The Australian Human Rights Commission (AHRC) is intended to be independent of Government and has no choice but to inquire and report on matters properly referred to it even if they might result in findings which are unpopular or adverse to the Government.

In undertaking this inquiry, the AHRC was acting entirely in accordance with its duties as prescribed under law – duties which require the AHRC to inquire into any act or practice that may be inconsistent with or contrary to any human right.

The criticisms of the Basikbasik Report are unprecedented in terms of identifying features of the complainant’s criminal behaviour to attack the Report and the personal judgment of the President of the AHRC.

•

Public criticism of an Independent Statutory Office should be measured, respectful and fair. The office is not engaged in the political process where more robust exchanges are commonplace.

•

The Inquiry and Report by the President were in response to a complaint to the Commission from a refugee, Mr John Basikbasik, who has been held in immigration detention since June 2007.

•

After examining the case, the AHRC found that Mr Basikbasik’s detention was arbitrary, and was therefore in breach of Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).

pam sawyer

49

announcements

Professional Announcements Career moves and changes in your profession Friedman Lurie Singh & D’Angelo

MDC Legal will be starting the New Year in new offices. From the 5th January 2015 our new contact details will be: 28 Kings Park Road West Perth, WA 6005 PO 1656 West Perth, WA 6005 Telephone: (08) 9288 4000 Facsimile: (08) 9288 4001 All other contact details will remain the same. We look forward to working with you in 2015.

Corene Baird Consultancy Services Corene Baird is pleased to announce the launch of her business as a practice management consultant Corene Baird trading as Corene Baird Consultancy Services assisting in all areas of legal practice management.

We are pleased to announce the appointment of Portia Jonasi as a Senior Portia Jonasi Associate in our family law team as of 1 January 2015. In a short time, Portia has been able to develop a good relationship with her clients who have provided fantastic testimonials. She has demonstrated commitment to her clients and the firm.

We are very proud to have her growing with us.

Kings Park Corporate Lawyers are pleased to announce that Kerrie Papamihail (formerly of the ASX) has been appointed as Special Counsel.

We are also pleased to announce and welcome Kristin Marcano to the firm as Senior Associate.

E: corene@corenebaird.com.au M: 0412 915 310

Magister Legal

Murfett Legal

We are pleased to announce and welcome Dr Janet Woollard as a solicitor with effect from 5 January 2015.

Murfett Legal is pleased to announce that Xian-Li Davies has joined as an Associate to their Commercial & Property Law teams.

Dr Woollard practises in the areas of general commercial law and private client instructions.

Kott Gunning

HHG Legal Group

Kott Gunning is pleased to announce the appointment of Greg Mohen as a partner, effective from 19 January Greg Mohen 2015. Greg has moved his substantial practice built over 30 years in commercial, Local Government and private client matters from Civic Legal and Rockwell Olivier.

Ben Majoe has started working for HHG Legal Group.

50 | Brief February 2015

Ben is a Family Law practitioner with over Ben Majoe 14 years’ of experience concentrated in Family Law. His experience includes taking instructions in complex financial issues, contentious child related issues and preparation of Financial Agreements and Child Support Agreements.

Jarman McKeena Jarman McKenna is pleased to announce the appointment of Paul Kordic as a Partner in their expanding Commercial Law division. Paul was previously a principal at Rockwell Olivier (Perth) (formerly known as Talbot Olivier). Paul is also a Notary Public and an Accredited Advisor as certified by Family Business Australia.

Paul’s practice areas include: •

Commercial negotiations and contracts

•

Liquor licensing

•

Mining, Energy and Resources

•

Property law

•

Estate planning and administration

•

Corporate (including incorporations and re-structures)

•

Family business and governance issues

Taylor Smart Taylor Smart are very pleased to announce that Evelyn Yuen has joined the firm as a Senior Associate in the Litigation team. Evelyn brings with her years of experience both in Australia and overseas.

Legal Practice Board election of members The annual election of six members to the Legal Practice Board will be held on Tuesday, 7 April 2015.

A candidate must be a local legal practitioner of at least three years’ standing and practice.

Written notice of intention to seek election, countersigned by at least one practitioner entitled to vote, must be lodged with the secretary no less than 28 days before the election, that is 10 March 2015. You may provide a brief resume, no more than 75 words, with your nomination if you wish.

P: (08) 6211 3600 E: general@lpbwa.com www.lpbwa.org.au

classifieds & new members

NOTICE

Classifieds Government of Western Australia

Government of Western Australia

Department of the Attorney General

Department of the Attorney General

FRANJO BAN (also known as FRNJO BAN) late of 6/42 Moondara Way, Joondalup Western Australia was found deceased on 22 June 2014 at Joondalup, Western Australia.

Would any person holding the last Will and Testament of FRANJO BAN (also known as FRNJO BAN) or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 19911118 EM15.

JANETTE ELEANOR COUNSEL late of Quadriplegic Centre, Selby Street, Shenton Park Western Australia died on 16 February 2014 at Shenton Park, Western Australia.

Would any person holding the last Will and Testament of JANETTE ELEANOR COUNSEL or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6702 within one (1) month of the date of publication of this advertisement quoting reference DE 30328359 EM26.

adcorp F96164

Small legal practice wanted.

Please contact 0418 928 083

ROOM AVAILABLE FOR LICENCE – 1ST FLOOR, IRWIN CHAMBERS, 16 IRWIN STREET, PERTH There is one remaining fairly priced and spacious room for licence. The Chambers already has five practitioners with diverse practices.

Inquiries are welcome and inspections can be made by prior appointment by telephoning Norma Nugent or Ian Marshall on 9325 1433.

All inquiries will be dealt with in strict confidence.

adcorp F97360

Furniture to Go! We have an office full of furniture (desks, chairs, filing cabinets, boardroom tables etc) everything needs to go. Will consider all reasonable offers.

Contact Nikki on 9426 4711 for photos or viewings.

Furniture available from end of February.

12 years’ PAE lawyer seeking work LLM (Hons); LLB (Hons).

Strives for excellence, passionate about the law, proven personal skills, and intellectually dexterous; possesses rich life and work experience.

Tax, corporate and commercial law experience mainly; some employment, criminal and family law experience.

Any opportunities will be considered.

Please email for CV: a_w_schumacher@hotmail.com

For advertising opportunities in Brief 2015 please contact:

BRIEF 2015

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

New Members New members joining the Society ASSOCIATE MEMBERSHIP Mr Graeme Carmody Ms Rebecca Dennison Mrs Jennifer Fillery Ms Runa Hikaoka Ms Meeta Kalaria Miss Petronella Turnbull Mr Charles Wehbe Miss Vicky West

Legal Aid of Western Australia – Perth Clifford Chance (Sydney) Clifford Chance (Sydney) Clifford Chance (Sydney) Clifford Chance (Sydney) Clifford Chance (Sydney)

ORDINARY MEMBERSHIP Mr Christian Rogers LLB

Swan Legal Pty Ltd

RESTRICTED PRACTITIONER Mr Alexander Biddulph

Gadens Lawyers

51

events calendar

Events Calendar Date

Event

Location

Wednesday, 11 February

At the Coalface: Reflections on practitioner conduct in industrial disputes

The Law Society of Western Australia

Thursday, 12 February

Practical Tax Update for Non Tax Lawyers

The Law Society of Western Australia

Friday, 13 February

Oppression and Just and Equitable Winding up

The Law Society of Western Australia

Friday, 13 February

Ethics on Friday – Cloud Computing Services: Professional obligations and ethics

The Law Society of Western Australia

Tuesday, 17 February

Unconscious Gender Bias: A seminar for female lawyers, to help achieve their career aspirations

The Law Society of Western Australia

Tuesday, 17 February

Estate Planning Forum

The Law Society of Western Australia

Wednesday, 18 February

Unconscious Bias: Driving workplace equality for improved business results

The Law Society of Western Australia

Wednesday, 18 February

Salary Negotiation: Achieving the best results through planning and preparation

The Law Society of Western Australia

Wednesday, 18 February

YLC – The Role of the Expert and Expert Evidence

The Law Society of Western Australia

Friday, 20 February

Law Summer School

The University Club, The University of Western Australia

Wednesday, 25 February

e-Conveyancing Forum (Perth): Getting your practice ready

Central Park Theatrette

Thursday, 26 February

Social Media: Do you know enough about the new world order?

The Law Society of Western Australia

Friday, 27 February

Navigating the Maze: Challenges facing directors

The Law Society of Western Australia

Friday, 27 February

YLC Ethics on Friday: Life Outside of Practice

The Law Society of Western Australia

Tuesday, 3 March

Briefing Barristers: Getting it right

The Law Society of Western Australia

Wednesday, 4 March

Defamation: An introduction and hypotheticals approach

The Law Society of Western Australia

Wednesday, 4 March

Costs: An Intensive focus on the law of costs

The Law Society of Western Australia

Wednesday, 4 March

e-Conveyancing Forum (Fremantle): Getting your practice ready

Fremantle Sailing Club

Thursday, 5 March

Solicitors Professional Indemnity Insurance: Do you know enough about your policy and letters of waiver?

The Law Society of Western Australia

Thursday, 5 March

Mental Health Matters: Panel discussion

The Law Society of Western Australia

Friday, 6 March

Avoiding Burnout and Understanding Vicarious Trauma

The Law Society of Western Australia

Friday, 6 March

Trust and General Accounts for Lawyers and Legal Assistants (Bunbury)

Lord Forrest Hotel, Bunbury

Friday, 6 March

e-Conveyancing Forum (Bunbury): Getting your practice ready

Lord Forrest Hotel, Bunbury

Friday, 6 March

Ethics on Friday - Not Magic Words: Limits on without prejudice privilege

The Law Society of Western Australia

Friday, 6 March

Women Lawyers High Tea

Parmelia Hilton

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638 52 | Brief February 2015

Friday, 20 February 2015 The University Club, The University of Western Australia CONNECTED • INFORMED • GLOBAL Law Summer School is widely regarded as Western Australia’s pre-eminent legal conference. 2015 is an especially significant year as Law Summer School joins leading organisations around the world in recognising the rule of law on the 800th anniversary of the Magna Carta.

PROGRAMME

SPEAKER Bryan Stevenson

SPEAKER Tim Wilson

SPEAKER Duncan McConnel

SPEAKER Professor Robert Stevens

TIME

DESCRIPTION

7.10am – 7.55am

EVENT REGISTRATION AND BREAKFAST

CHAIR

7.55am – 8.00am

WELCOME Matthew Keogh, President, The Law Society of Western Australia

8.00am – 9.00am

1. BREAKFAST PLENARY – PROTECTING RIGHTS IN A LIBERAL DEMOCRACY Tim Wilson, Human Rights Commissioner, Australian Human Rights Commission

Professor Hoong Phun (HP) Lee, Sir John Latham Professor of Law, Monash University

9.15am – 10.15am

2. PLENARY – FOUNDATIONS OF ADMINISTRATIVE LAW: REMEMBERING THE PAST WHEN CONFIGURING THE FUTURE Professor Paul Craig QC FBA, Professor of English Law, Faculty of Law, University of Oxford

The Hon Justice Antony Siopis, Federal Court of Australia

10.15am – 10.45am

MORNING TEA

10.45am – 12.15pm

3. PLENARY – INDIGENOUS INCARCERATION RATES: STRATEGIES FOR MUCH NEEDED REFORM Dennis Eggington, CEO, Aboriginal Legal Service of Western Australia Duncan McConnel, President, Law Council of Australia The Hon Justice Wayne Martin AC, Chief Justice of Western Australia

Her Honour Judge Gillian Braddock SC, District Court of Western Australia

12.15pm – 1.15pm

LUNCH LAWYERS IN THE NEWS: MEDIA PERCEPTIONS OF LAWYERS AND LAWYERING Winthrop Professor Peter van Onselen, The University of Western Australia

Dr Christopher Kendall, Barrister, John Toohey Chambers

1.30pm – 3.00pm

4. CONCURRENT SESSIONS 4 A – COMMERCIAL EQUITY The Hon Justice Mark Leeming, New South Wales Court of Appeal Patricia Cahill SC, Barrister, Francis Burt Chambers

Brahma Dharmananda SC, Barrister, Francis Burt Chambers

4 B – THE RISE OF THE TRIBUNALS The Hon Justice Janine Pritchard, Supreme Court of Western Australia The Hon Justice Duncan Kerr Chev LH, President, Administrative Appeals Tribunal

The Hon Justice Jeremy Curthoys, President, State Administrative Tribunal

4 C – MEDIATION: WHAT THE COURTS EXPECT Maurice Spillane, Senior Member, State Administrative Tribunal Registrar Sandra Boyle, Supreme Court of Western Australia Acting Magistrate Colin Kaeser, Family Court of Western Australia

Charlotte Wallace, Member, State Administrative Tribunal

4 D – THE OPERATIONS AND BOUNDARIES OF THE CIVIL LIABILITY ACT The Hon Justice Graeme Murphy, Court of Appeal, Supreme Court of Western Australia Associate Professor Brenda McGivern, Deputy Dean, Law School, The University of Western Australia

Winthrop Professor Peter Handford, Law School, The University of Western Australia

3.00pm – 3.30pm

AFTERNOON TEA

3.30pm – 4.30pm

The Hon Justice James Edelman, Supreme 5. PLENARY – 'PURE' ECONOMIC LOSS IN AUSTRALIA Professor Robert Stevens, Herbert Smith Freehills Professor of English Private Law, Faculty of Law, University of Oxford Court of Western Australia

4.30pm – 5.30pm

6. CLOSING PLENARY – THE RULE OF LAW Bryan Stevenson, Founder and Executive Director, Equal Justice Initiative, Montgomery, Alabama, USA

5.30pm – 5:35pm

FINAL CLOSING Professor Erika Techera, Dean of Law, Law School, The University of Western Australia

5.40pm – 7.00pm

NETWORKING DRINKS

Professor Erika Techera, Dean of Law, Law School, The University of Western Australia

TOTAL OF 7 CPD POINTS ACROSS ALL COMPETENCIES 1.5 - 3.0 points ∕ Competency 1 ∕ Legal Skills or Practice 2.0 points ∕ Competency 2 ∕ Ethics or Professional Responsibility 2 - 3.5 points ∕ Competency 3 ∕ Substantive Law

Register online at lawsocietywa.asn.au/lawsummerschool Enquiries (08) 9324 8616 I Fax (08) 9324 8699

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

our brief is your career It’s no secret, accessing the wide variety of job opportunities enables you to accelerate your development at every stage of your legal career. And at Hudson Legal, opportunities abound. We work with diverse local and international clients to offer you the widest range of public sector, private practice and in-house roles available. As specialist legal recruiters, we work closely with you to understand your goals and advise how you can best achieve your career objectives. Backed up by more than 20 years’ experience at the forefront of Australian legal recruitment, you can be sure that we can find the ideal role for you every time.

au.hudson.com/legaljobs

DiSpuTeS — SpeCiALiST

CoRpoRATe & BAnkinG

insurance & General Litigation Lawyer

Corporate Lawyers

International firm with thriving insurance litigation practice. Litigation lawyer with 3–6 years’ PAE and professional indemnity exposure sought.

Positive and sociable culture with entrepreneurial focus. Ref: BX/43711

Prestigious firm. Leading M&A practice. Superb opportunities for lawyers with 3–8 years’ PAE to work on leading corporate, securities, M&A, ECM and private equity matters. Energy & resources experience highly regarded. Ref: BX/43199

insolvency Lawyer Insolvency lawyer with 4–6 years’ PAE sought for international Australian firm. Established insolvency practice servicing top-tier banks and financial institutions. Dynamic firm culture with fresh structure and management. Ref: BX/43608

Senior Corporate, e&R Lawyer

Construction Disputes Lawyer

Banking Lawyers

Premier, international firm seeking construction litigation lawyer with 4–7 years’ experience. Enjoy direct and open communication with the supportive personalities on this friendly and established team.

Ref: BX/43159

Banking & Finance lawyers with 2–7 years’ PAE sought for global firms.

International project finance, corporate finance and property finance transactions. Ref: BX/42399

DiSpuTeS — CommeRCiAL

pRopeRTY/enViRonmenT

Senior Lawyer

environment Lawyer

Large, independent firm seeking experienced commercial litigator with at least 5 years’ PAE. Broad general practice servicing various industries including financial services, insurance, building and construction, professional services and the public sector. Ref: BX/43704

Premier international firm. Highly respected, market leading team seeking environment and planning lawyer with 3–6 years’ PAE. Assist the firm’s projects, property and resources practices. Ref: BX/43433

Junior Lawyer Magic circle firm. Commercial litigator with 2–3 years’ PAE sought for hard working team. Top-tier training and excellent academics required.

Superb benefits package. International travel. Ref: BX/42400

Competent property lawyer with 2-3 years’ PAE sought for US firm with established Australian presence. Enjoy direct exposure to Partner and guaranteed career progression. Collegiate and friendly culture.

Ref: 6B/15225

mid-Senior Lawyer

property Lawyer

Highly regarded boutique firm seeking lawyer with 4–6 years’ commercial litigation experience. Insolvency and construction litigation experience highly regarded. High profile Federal Court matters. Ref: BX/43691

International firm with fresh structure and management. Work directly with Managing Partner on Corporate transactions with oil & gas focus. Strong Asian market client base. Ref: BX/40595

Junior property Lawyer

International firm seeking lawyer with 3–8 years’ PAE to support new, lateral-hire Partner. Broad range of project development, strata titles, acquisitions and disposals, and commercial leasing matters.

Ref: BX/43732

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.