Brief July 2015

Volume 42 | Number 6 | July 2015

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Contents

GO DIGITAL!

Volume 42 | Number 6 | July 2015

Take me with you.

16

26 02

President's Report

34

Lawyer on the Street

Matthew Keogh

03

Members keep the Society on track

35

Pam Sawyer

04

Editor's Opinion

36

John Toohey AC QC – Reminiscences from the Bar

Julian Sher

06 06

Chris Zelestis QC

Mock Trial Competition – Where are they now?

38

Where’s Benjamin? The mysterious case of a missing beneficiary

Practice Management Regulation

Clare Thompson

08

Your voice at work

42

Book Review of Ong on Subrogation

10

Meet the Committee: Commercial Law Committee

12

Myanmar's Melting Pot: Law, Human Rights and Democracy on the Borderline

Kylie Kerin

14

An Interview with Chief Judge Sleight

Hylton Quail

16

FEATURE Speech to Law Week Breakfast

Deidre Willmott

20

The Law of Equity, the Information Age and Revenge Porn

Geoffrey Hancy

26

Surrounding Circumstances Evidence: Construing Contracts and Submissions about Proper Construction: The Return of the Jedi (sic) JUDII

WA Bar Association Autumn Festival of CPD

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 Manager Marketing & Communications Moira McKechnie Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

Review by Robert French

43

Book Review of Presumed Guilty

Review by the Hon Peter Dowding SC

44

Family Law Case Notes

45

Thomas Hurley Case Notes

45

Young Lawyers Case Notes

46

Professional Announcements

47

New Members

47

Classifieds

48

Law Council Update

49

Events Calendar

EDITOR Julian Sher

PRESIDENT Matthew Keogh

EDITORIAL COMMITTEE Erin Blight, Ronald Bower, Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Dr Eric Heenan, 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, Andrew MacNiven 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 ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome.

For further details, please contact communicationsofficer@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 JUNIOR MEMBERS Emma Cavanagh, Ray Christensen, Rosie Hill IMMEDIATE PAST PRESIDENT Konrad de Kerloy EXECUTIVE DIRECTOR David Price

01

report

President's Report Matthew Keogh, President, The Law Society of Western Australia I often think that knowledge of the law is a bit of a handicap to a barrister.

Horace Rumpole FILLING THE POOL REPORT Last month the Committee for Perth launched its report Filling the Pool: achieving gender equality is everyone's responsibility. The research outlined in the report refers to a 'perfect storm' in Western Australia of complex business, personal and cultural factors that exacerbate the largest gender pay gap in the country and the least number of women in executive and board roles. Many of the findings in the report are relatable to the legal profession. Indeed, many of these themes were echoed in Deidre Willmott's speech at our Law Week Breakfast Launch in May and her speech is printed in this edition of Brief.

Critically, the Filling the Pool report provides 31 interrelated recommendations - four for government, 18 for organisations and their leaders and nine for women. Some of the organisational recommendations align well with the work that the Society is already doing in Western Australia and as part of the Law Council of Australia in retaining women in and increasing their proportion as the leaders of the legal profession. The report provides both a sobering reminder that we have a long way to go but also confirms that our approaches reflect those being taken by the wider business community.

QUEEN'S BIRTHDAY HONOURS I would like to pass on the Society's congratulations and to publicly acknowledge the achievements of former Supreme Court Principal Registrar Chapman and Mr Laurie James of Kott Gunning in their recently announced appointments as Members of the Order of Australia (AM).

Mr Chapman's appointment was for significant service to people with a disability, at the state and national level, to the judiciary, and to the community of Western Australia. Mr James' appointment was for significant service to the law, particularly alternative dispute resolution, as a practitioner, and to professional organisations.

02 | Brief July 2015

A 'NATIONAL' PROFESSION By the time this report hits your desks a new era of legal profession regulation will have been ushered in with the commencement of the 'National' Legal Profession Scheme (the Uniform Law) in NSW and Victoria (of course, if it hasn't a lot of people will have quite a bit of egg on their faces). The Society and State Government will be watching our eastern coast brethren closely to see the impacts, good or bad, of this new venture and we will keep you abreast of such developments.

In the first instance however, if you conduct any inter-jurisdictional work, please make yourself aware of the changes for lawyers with practising certificates from Western Australian or elsewhere outside the new Uniform Law jurisdictions. More information is available through the Law Council of Australia, here: www.lawcouncil.asn.au/ lawcouncil/images/Interstate_practitioners_ Uniform_Law_fact_sheet.pdf.

LOCAL PROFESSIONAL REGULATION Members will likely recall in April I noted that the Society had sought to engage with the Legal Practice Board (LPB) to look at different ways to reduce the costs of its regulatory functions while providing the same or even enhanced service to the profession. This was raised in the context of the recent increase in the costs of a practising certificate and the work being undertaken in reducing the ongoing costs to the profession of funding the practitioners' library at the Supreme Court.

I noted at that time that the Society's approaches had not been successful. This comment was as a result of discussion between my predecessor and the LPB Chair, together with the Society's and the LPB's Executive Directors in January 2014, during which the LPB Chairperson expressed his personal view that he did not believe the LPB would contemplate the possible delegation of certain LPB functions to the Society (which may have been a way to effect such cost savings) but advised that if the Society so wished he would raise the matter with the Board for consideration. The Society, therefore, did not press the matter at that time.

The Chairperson of the LPB has written to the Society following my April report

and reiterated that he is willing to present to the Board a case from the Society as to how it can "look at different ways to reduce the cost of its regulatory functions".

As a consequence of this invitation the Society has written to the LPB inviting them to join the Society in an independent study to identify if there are alternative models of legal regulation which may result in better standards, lower costs and reduced levels of bureaucracy for the legal profession in Western Australia. If the LPB accepts the invitation, we look forward to working constructively as the voice of the legal profession in Western Australia, with the LPB as our local regulator. Of course, in doing this, the Society considers it paramount that the legal profession maintains its position as a self-regulating and self-disciplining profession that continues in the best traditions of high standards of professional service to the community.

FINAL THOUGHTS In a variation on my usual conclusion, I thought it was apt at a time when our State Government wishes to abolish legal rights and compulsorily acquire property without compensation (see our letter to the Treasurer on page 9) and when our Federal Government wishes to strip citizenship at a whim, to remember the words of the patron saint of lawyers, Sir Thomas More, as imagined by Robert Bolt from his play A Man for All Seasons: Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Members keep the Society on track In April, members were invited to evaluate the Society's performance against a series of key performance indicators (KPIs) in the Strategic Plan. 309 members participated.

We're pleased to report that the Society is on track.

Overall membership continues to climb. We've come a long way over the past eight years, from 58% satisfaction in 2007 to 83% satisfaction in 2015.

This year, the Society introduced a new measure to evaluate member advocacy. The Net Promoter Score (NPS©) is used by many leading organisations globally. When members were asked how likely they are to recommend the Society to others, 53% provided a score of 6, 7, or 8 out of 10 and 29% provided a score of 9 or 10 out of 10. In the NPS© model the members who scored 9 or 10 out of 10 are called 'promoters'. We hope to improve on our promoter score over the months ahead by demonstrating increasing value for our members. We want to earn a reputation for being the essential membership for the legal profession.

Organisational Excellence

2015 Score

Trend Target 



Member satisfaction – % satisfied

83%

Member Advocacy – % promoters

29%



Employee Advocacy – % promoters

30%



Having a strong and representative voice is important to members. In the latest survey, a majority agreed that the Society has a good understanding of members' needs, keeps members well informed about changes in legislation and key issues affecting the profession, effectively promotes access to justice and is the voice of the legal profession in Western Australia.

The Society is making noticeable improvements in providing strong advocacy. Effectively promoting access to justice improved from 67% to 80% in the past two years, and demonstrating a good understanding of members' needs steadily increased from 58% in 2007 to 78% this year.

Strong Advocacy – % agree

2015 Score

Trend Target

Has a good understanding of members' needs

78%

Keeps members well informed about changes in legislation and key issues affecting the profession

89%



Is the voice of the legal profession in Western Australia

88%



Effectively promotes access to justice

80%







The Society is dedicated to delivering high value services. Since launching the new Strategic Plan, we are meeting or bettering 8 of our 15 targets, and 12 out of the 15 measures have improved since 2013. Service areas on target include Brief Journal, enewsletters, regular email information alerts, continuing professional development, free networking and social events, community services, Senior Advisors' Panel, and advocacy training.

There is continued room to improve the Society's website, committees and working groups, Find a Lawyer, LawCare (WA), mentoring programmes and Grad-Match. These areas will be a key focus for the Society moving forward.

High Value Services – % satisfied

2015 Score

Trend Target

The Society's website

66%



Brief journal

87%



E-newsletters

87%



Regular email information alerts

82%



Continuing Professional Development

82%





Committees and Working Groups

68%





Free networking and social events

67%





Find a Lawyer

51%



Member Privileges

52%



Community Services

78%



LawCare (WA)

50%





Senior Advisors' Panel

70%





Advocacy Training

67%

Mentoring programmes

56%

Grad-Match

43%  Target achieved

 

 

 Making progress

If you have ideas about how the Society could improve, or to discuss these results further, please contact the Society’s Executive Director on (08) 9324 8605.

 03

editor's opinion

Society Club. All inclusive.

Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal In April I had the pleasure of attending the Society Club event to speak about Brief. It was my first ever attendance at the Society Club, so I was interested to see what it would be like. It was a delightful stylish affair, with a number of younger practitioners in attendance, boding well for the future. The catering and ambience were perfect, the company congenial. Unlike some clubs, the only restriction is membership of the Society. I had a good time. I urge those who have never attended to do themselves a big favour, break the habit of a lifetime and attend the next Society Club event (on 22 July), guaranteed to be both enjoyable and inclusive. Having now finally broken the ice, I will certainly be back for future fun filled evenings.

Congratulations to the Society team whose efforts make the Society Club the success it clearly is.

Recently I was struck by some remarks of His Honour Justice Hayne at one of his farewell ceremonies. They have given me some food for thought, especially coming from so eminent a source. His words are both simple and profound.

They relate to the administration of justice and the judiciary as its custodian in our society: Ceremonial – Farewell to Hayne J – Melbourne [2015] HCATrans 115 (15 May 2015): ‌ (the High) Court as an institution is very much more important than any of us who sit here. We who sit here are no more than temporary custodians of the heritage left to us by those who have gone before. We come; we go; the court continues. It is the court and the work that it does that is important.

The transience of position and power is trite, but His Honour's words make a fundamental point about the sort of society we are or aspire to be and by extension, the sorts of practitioners we are and aspire to be. Notions of stewardship and respect for our institutions of justice go hand in hand for all involved in the practice of law. Stewardship suggests unselfish

04 | Brief July 2015

service for the continuing greater good.

Respect for the integrity of institutions administering justice should not be taken for granted, but carefully nurtured.

To those who express impatience with imperfections of our system, I suggest the alternatives are much worse. Some societies do not have our good fortune and their inhabitants pay a very high price indeed.

His Honour's remarks contain a powerful message of responsibility for all who participate and practise within our system of justice. At its core, our work is not only about ourselves personally, or our myriad of personal achievements. It is about the way in which we discharge our roles as officers of the courts, in our various interactions. This applies whether we are litigators or not and regardless of our levels of seniority in the legal firmament.

If any readers are in doubt about what this means at the coal face, I commend the Ethical and Practice Guidelines displayed in the members section of the Society's website. The members of the Society's Ethics committee (and associated subcommittees) are to be commended for their hard work in producing this prodigious document designed to address and suggest solutions for the typical ethical issues arising daily in practice. Recently new sections have been written on the use of the cloud and social media, as the profession seeks answers to the challenges posed by the evolution of new technologies.

On a slightly more mundane level, the Ethical Guidelines contain a useful and practical commentary on the meaning of professional courtesy and its impact on communications. Like many practitioners, over the years I have received inappropriate communications from various sources, containing threats, harangues, or other aggressive content.

For the uninitiated, professional courtesy doesn't mean being 'nice', but it does mean politeness and professionalism.

Personal likes or dislikes are irrelevant

and are a huge distraction. Professional courtesy implies restraint, respect for the profession and a level of objectivity signifying that a practitioner is not entering the arena personally.

This month's issue contains the usual columns, as well as a variety of interesting features, including a new series called Meet the Committee. This month the focus of this new column is the Society's Commercial Law committee. It is an attempt to give our readership an insight into the valuable work being done by each of the Society's committees.

Feature articles include: Chris Zelestis QC's recollections from the bar of the Honourable the late Justice John Toohey AC QC; Deirdre Willmott's Law Week Speech on diversity in leadership roles; Justice Kenneth Martin's highly informative and successful attempt to eliminate the confusion surrounding circumstances evidence, in the context of contract law; Geoff Hancy's racily entitled paper on The law of equity, the Information Age and Revenge Porn; an interview with the newly appointed Chief Judge of the District Court, Judge Sleight; and Kylie Kerin's fascinating insight into her experiences in Myanmar as lawyer. We continue our Lawyer on the Street series displaying the talent and diversity of our younger generation of lawyers. There are also the book reviews

by Peter Dowding SC (who seems to have become, by popular acclaim, one of our regular reviewers) and Rob French.

I continue to be encouraged by the feedback we receive from our readers.

I again invite readers to contribute to Brief, whether in the form of substantive articles or emails/letters to the editor.

Brief welcomes your thoughts and feedback.

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

Market Update – July 2015 Activity in Commercial Litigation and Workplace Relations remains strong, with demand continuing in the areas of Commercial Property, Corporate M&A and Projects. Lawyers from 2 years PAE, to junior SA level are required to support growing teams, with interest from multiple firms for Partners or experienced Senior Associates to fill senior strategic requirements.

For assistance with your next career move, please contact us for a confidential discussion regarding our full range of available opportunities. Please find below a selection of our latest job opportunities for July.

Insolvency Lawyer – 3-5 years

Workplace Relations – 2-5 years

As one of Perth’s most highly regarded Insolvency practices, this thriving team acts for insolvency practitioners, financial institutions and medium to large corporate organisations, advising on and managing all commercial negotiations, recovery actions and litigation matters.

This award winning firm has a strong position in the local and wider Australian market. A high calibre Workplace Relations Lawyer is required, to support the growth of their specialist practice.

You will provide support on complex negotiations or larger litigation matters, with responsibility for document preparation and negotiation, legal research, client advice and liaison. There will be autonomy to run lower level recovery matters, including all appearance work.

Regularly collaborating with talented senior colleagues, you will provide strategic legal and commercial advice to your clients on a range of employment, health & safety and industrial relations matters, will prepare and negotiate all commercial agreements and successfully resolve any disputes.

Working under the direction of talented senior lawyers, you will have access to superb mentoring and training and a consistent flow of work to keep you busy and challenged.

As a key part of this smaller local team, you will enjoy direct contact with senior level employers, developing long term relationships through client education, training and active involvement in business development activities.

You’ll require 3 years PAE in insolvency, solid academics and training with quality firm. General commercial litigators with some exposure to insolvency work and a genuine desire to specialise will also be considered. Top career progression role, with short term promotion to Senior Associate level on offer to the right candidate.

Exceptional academics and 2-3 years PAE with a top tier team or leading specialist firm will ensure your success. On offer is a fantastic working culture, achievable targets, genuine flexibility and lifestyle balance. Rare opportunity for a quality junior to progress their career with this growing team.

Environment & Planning – 3 years +

Energy & Resources – 3-5 years +

This national brand leader boasts a leading Environment & Planning practice, with a strong presence in the local Perth market. A fantastic growth opportunity exists for a talented practitioner with a passion for E&P law, who is looking to take the next step in their career.

This prestigious firm has made its mark as one Australia’s leading practices. Following a successful new partner appointment, multiple opportunities exist for Project Lawyers with demonstrated exposure to major oil & gas or mining projects.

As a key point of contact for the Perth team, your role will focus on due diligence work, assistance with commercial negotiations and comprehensive advice to resources companies, developers and government clients on planning, land access, heritage, environmental approvals and regulatory issues affecting major resources projects and commercial developments in Western Australia.

With an established corporate client base of Australian and international clients, you will gain unrivalled experience working on key projects throughout Australia, Africa and Asia. Working alongside a premier local team, as well as your international colleagues, you will advise on project exploration, construction and development matters. Your superior drafting and negotiation skills will also see you develop, manage and negotiate any commercial contracting arrangements for your clients.

Solid experience and quality training with a leading E&P team and outstanding academics will ensure your success. You will regularly collaborate with a respected senior lawyer, will be given every opportunity to develop your technical experience and progress within this smaller team structure.

You will require substantial experience working on international projects with a top tier or leading boutique E&R team. Brilliant option for experienced Associates or SA’s seeking top of the market remuneration, an investment in professional development and training and access to a consistent flow of high quality work.

Stacey Back Director p

m

e

www.

.au 05

Mock Trial Competition – Where are they now?

We interviewed a former Mock Trial Competitor, Paige Stephens, to see what she is up to now. Paige was also the winner of the 2014 Murdoch Scholarship for the Most Outstanding Mock Trial Student.

How long did you compete in the Mock Trial Competition?

I started the Competition when I was in year 11 (2013) through to the end of year 12 when I graduated from Lake Joondalup Baptist College.

What inspired you to participate in the Competition?

My politics and law teacher, Mrs Keen inspired me to participate in the Competition. She told us stories about previous teams that competed. I also watched the team from the year above me compete one time and they amazed me that they were only a year older.

What was your most memorable mock trial experience?

Other than eating pizza at training and singing really loud on the train to the court, the best part was talking about the trial after, laughing about how sassy the witnesses were, or telling my teammates how well they did. Even when we lost, we all stuck together and laughed. Even during the scholarship presentation, we all stuck together. That was the best part.

You are now studying Law at Murdoch University. What impact did the Mock Trial Competition have on your decision to study law?

If it weren't for the Mock Trial Competition, I probably wouldn't be studying law at all. The Competition is what made me interested in law. I found it so interesting reading through the case material and discussing it with the rest of the team (even during maths). Mock trials made me realise what I was good at.

What made you volunteer to assist in the Competition this year?

Although I had participated in the Junior Trial Advocacy Competition at Murdoch, I really missed the feeling of working in a team and actually being in the Supreme Court. When I heard that they needed help I was excited to participate.

Would you recommend the Mock Trial Competition to other high school students (and if so, why)?

Yes! I would definitely recommend Mock Trials to any high school students. I had no idea what I wanted to do until doing Mock Trials. If you are considering law, or have no idea what you want to do definitely give it a go, the competitions are great fun. I built amazing relationships with my teacher and coach, and some of the people in my team are now my best friends.

The Mock Trial Competition The Competition is an interactive role-play programme for high school students in Years 10-12 in Western Australia. It is aimed at demystifying the practice of law whilst educating students on the trial process, court room procedure and court room etiquette. Students develop advocacy skills through scripted mock trials for the identification of evidence and the examination and cross-examination of witnesses.

The Competition is a very successful community programme now in it’s 29th year. To find out how you can be involved as a volunteer practitioner, please contact the Mock Trial Coordinator, Paige Standen-Burrows pstandenburrows@lawsocietywa.asn.au

Practice Management Regulation Update from the Legal Practice Board and Call for Expressions of Interest from Providers for a Practice Management Course In the May issue of Brief, Joshua Thomson SC, in his capacity as Convenor of the Professional Development Committee of the Legal Practice Board, advised that the Board was proceeding with the development and implementation of a mandatory Practice Management Course that will need to be successfully completed before unrestricted legal practitioners can become principals of a law firm.

The introduction of the Practice Management Course will require amendments to the Legal Profession Rules 2009. The Board is currently preparing drafting instructions for the consideration of parliamentary counsel 06 | Brief July 2015

in regard to the Rule that will govern the introduction and regulation of the requirement to undertake the Practice Management Course. Following the introduction of the amended rules, newly admitted practitioners and practitioners who do not currently act in the capacity of a principal of a legal practice will have a condition imposed on their practising certificate that will be removed upon application following the successful completion of the prescribed Practice Management Course.

The Board has prepared criteria and guidelines for the approval of legal education providers to undertake the provision of a Practice Management

Course for Western Australian legal practitioners. Criteria and guidelines for approval of the curriculum for the Practice Management Course are also available to potential course providers.

The Board invites expressions of interest from Legal Education Providers who may be interested in undertaking the provision of a Practice Management Course for Western Australian Legal Practitioners.

Further information regarding this may be obtained by contacting the Board’s Legal Education Coordinator, Ms Julie Bain, either by: Telephone: (08) 6211 3600 or email: General@lpbwa.com

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your voice at work

Your voice at work A snapshot of recent Society initiatives EXECUTIVE MEETINGS Each month the Society Executive hosts lunches with various Ministers, groups and associations as a way of keeping in touch and discussing various issues. In June, the Executive met with the Government and In House Lawyers Committee and the Deans of Law Schools.

The Executive also recently requested that the Society's Criminal Law Committee consider whether the Victorian Jury Directions Act 2015 gave rise to any matters for consideration in Western Australia. The committee reported they did not see the change as beneficial and recommended no further action be taken. The Executive has agreed with this position.

2015 SELECTION PROCESS FOR COMMITTEE MEMBERS Later this year, the Society will call for expressions of interest from members seeking appointment to Society Standing Committees. The Committee Standing Orders which can be accessed on the Society's website provide that every two years the Society will invite expressions of interest from all interested Society members including current committee members whose term expires in December of the same year and members on committee wait lists.

Committee members seeking reappointment and Society members seeking appointment for the first time will all be required to complete an Expression of Interest form and to provide a brief statement of their professional background and their reason for the appointment sought. The term of current members appointed from 1 January 2012 and all members appointed since 1 January 2014 will expire on 31 December 2015. Prior to the call for expressions of interest, Committee Secretaries will advise committee members when their current appointment expires. Committee members should have relevant knowledge and experience pertinent to the role of the committee to which they seek to be appointed and should be prepared to contribute to the committee's work. Details of the role of each Standing Committee can be found in the Society's Annual Reports.

A selection panel appointed by the Council will take into account, as far as is possible,

08 | Brief July 2015

a balance of relevant knowledge and experience, gender, and the introduction of new and young members. Committee members who have served a four year term are eligible for re-appointment if reappointment is not at the expense of other suitable applicants and if the member's contribution aids the effectiveness of the committee. There is no limit on the number of terms of re-appointment.

The selection panel's recommendations will be submitted to Council for consideration.

Approved appointments will be for a term of four years from 1 January 2016. Following approval by the Council, all persons who have expressed an interest will be advised the outcome. Society members who express interest but who are not appointed to a committee are placed on the wait list for the relevant committee(s).

THE SOCIETY CONCERNED BY CUTS TO COMMUNITY LEGAL CENTRES The Law Society is concerned by funding cuts for Community Legal Centres in Western Australia by both the State and Commonwealth Governments, resulting in: •

the complete defunding of the Environmental Defender's Office by the State Government;

•

an additional 3.5% across the board cut from the State Government; and

•

a cut of 4.5% from the Commonwealth Government.

Society President Matthew Keogh said, "Cutting funding to Community Legal Centres is the wrong approach and contrary to the recommendation of the Productivity Commission for increases in funding. As the economy cools the demands on CLCs by those that cannot afford legal support will be increasing."

"To put these cuts in context, the State Government is cutting $264,000 from community legal centres when it has a budget deficit of $2.7 billion. The amount being cut is less than a rounding error in the deficit calculations", said Mr Keogh.

In particular, the defunding of the Environmental Defender's Office (EDO) after the defunding by the Commonwealth Government in 2013 leaves the office with no government funding.

Mr Keogh said, "The loss of funding for the EDO is a terrible situation as it is the only body that can independently assist in environmental matters. The EDO has done great work for the community which it will now struggle to do."

The Society acknowledges and welcomes the one year of new funding offered for the Employment Law Centre but is disappointed that the funding amount is less than a third of their prior funding. Other Community Legal Centres are yet to find out what their precise funding allocations will be for 2015-16, and it is clear that the combination of Federal and State funding cuts will have significant consequences for the provision of front line legal assistance services.

There are 30 Community Legal Centres in Western Australia providing free or low-cost legal assistance services to disadvantaged sections of the community through generalist and specialist support.

As community-based not-for-profit organisations, the services provided by Community Legal Centres are highly leveraged and not only make the most of every funding dollar but also utilise volunteers to expand the reach of their services.

A PwC report in 2009 found that the range of benefits for funding of legal assistance programmes in Australia was between $1.60 to $2.25 for every dollar spent by governments. A further 2012 report shows that for every dollar invested in CLCs, there is an $18 benefit to the community.

LAW LIBRARY INTEGRATION The Library Integration Project involves the relocation and integration of the Legal Practice Board Law Library and the Department of the Attorney General Library.

The integrated library will be located at Level 2 of the Old Treasury Building in the new Cathedral and Treasury Precinct and is scheduled to commence operation on 1 July 2016.

SUBMISSIONS 26/05/2015 Office of Sate Revenue – Delay with processing of Assessments (C260515C4) Letter to the Office of State Revenue (State)

3 June 2015 Hon Dr Mike Nahan MLA Treasurer 13th Floor, Dumas House 2 Havelock Street WEST PERTH WA 6005 Dear Treasurer BELL GROUP OF COMPANIES (FINALISATION OF MATTERS AND DISTRIBUTION PROCEEDS) BILL 2015 I write regarding the Government's recently announced Bell Group Companies (Finalisation Of Matters And Distribution Proceeds) Bill 2015 (Bell Legislation).

The Law Society wishes to record its concern with some of the key aspects of the Bell Legislation for the following reasons.

1.

The rights of the remaining Bell Group creditors exist under an established legal regime, which is capable of resolving the disputes between them. The Bell Group creditors have also organised their affairs in accordance with that regime. It would be contrary to the Rule of Law for legislation such as the proposed Bell Legislation to trammel those existing rights.

2.

While the Government considers the circumstances of the Bell Group litigation justify the approach it has adopted with the Bell Legislation, the Society opposes any law that removes or compulsorily acquires a person's property or commercial rights without just compensation. Government action and legislation that has this result is unjust.

3.

The legislation provides that the Authority that it establishes may seek advice from the State Solicitor. The State Solicitor is also the advisor to the Insurance Commission of Western Australia as creditor and the State Government in seeking to implement the Bell Legislation. The Society considers this approach places the State Solicitor in a position of an actual conflict of interest. These arrangements should be re-assessed.

4.

The Society has always opposed and in the case of the Bell Legislation continues to oppose the creation of criminal offences with retrospective operation. In this regard, the Bell Legislation is contrary to the Rule of Law and the requirement that a person be able to ascertain the law that applies to them at any given time and not be punished for conduct that they could not have known was criminal at the time of undertaking such conduct. I draw your attention to the Law Council of Australia's Rule of Law Principles policy statement1 and note the Commonwealth's prohibition on the creation of retrospective offences.2 While the retrospectivity may only apply from the time at which the Bell Legislation was introduced into Parliament, this does not provide sufficient notice to those it may affect. Nor is it consistent with the above propositions to rely upon a mere introduction of the Bell Legislation into Parliament, where such legislation may never be enacted or at least not enacted in the form as it was introduced.

5.

The Society does not, in any event, consider there is sufficient justification for legislation of this type to provide criminal sanction for conduct that is contrary to the Bell Legislation. The use of criminal sanction for such commercial issues between creditors is particularly punitive, especially where the matters involved have arisen over the decades prior to the proposed introduction of such criminalisation. This is particularly so where the State Government is, in effect, one of those creditors.

Ultimately, the Society considers the Bell Legislation is objectionable and has the potential to seriously damage the reputation of the state as a jurisdiction which is free of sovereign risk. The Society urges the State Government to withdraw it and allow the division of the proceeds of the Bell litigation to be undertaken according to existing and established law.

Finally, the Law Society is concerned by your characterisation in the press of the litigation around the Bell Group as a "feeding frenzy for lawyers", sentiments that you repeated during a radio interview. Such comments imply that in some way, the legal practitioners involved have not only unnecessarily prolonged such litigation but also that they have done so for their own benefit rather than in the interests of their clients.

Legal practitioners will and should always work to protect the legitimate rights of their clients. The Society has no reason to believe that the lawyers involved in the Bell Group litigation have done anything other than appropriately work to protect their client's interests, while always having proper regard for their obligations to the court.

As such, the Society is concerned that your comments serve to undermine the public's confidence in the legal profession and as such the administration of justice in this state. For these reasons, your comments are regrettable.

Yours sincerely Matthew Keogh President cc:

The Hon Michael Mischin MLC Attorney General 10th Floor, Dumas House 2 Havelock Street WEST PERTH WA 6005

Ben Wyatt MLA Shadow Treasurer PO Box 4373 VICTORIA PARK WA 6979

John Quigley MLA Shadow Attorney General PO Box 2024 CLARKSON WA 6030

NOTES 1.

See http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/PolicyStatementRuleofLaw.pdf. The Law Society of Western Australia is a constituent member and I am a director of the Law Council of Australia.

2.

See http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Prohibitiononretrospectivecriminallaws.aspx

meet the committee

The Commercial Law Committee The Commercial Law Committee (Committee) is a Committee of the Law Society of Western Australia that monitors and discusses regulatory and other developments in commercial and corporate law, both locally and federally.

The Committee is comprised of a diverse range of members with a considerable breadth of experience in commercial law. Longstanding members include Rob McKenzie and Rachel Webber (both from Jackson McDonald), Bruno Camarri AM (Hebert Smith Freehills), Bruce Meredith (General Counsel, Insurance Commission of Western Australia), John Lightowlers (Public Sector Commission) and Grahame Young (Barrister, Francis Burt Chambers). More recent appointments include Paul Evans (State Solicitor of Western Australia) and Matthew Keogh (Herbert Smith Freehills).

Many of the Committee's members sit on various other Committees or groups including the Law Council of Australia Business Law Section Corporations Committee, ASIC Regional Liaison Group and the State Revenue Liaison Group.

Thus Committee meetings provide its members with a useful vantage point to observe and discuss developments across a broad corporate regulatory landscape.

Unisearch Expert Opinion Services

In recent times members of the Committee have been concerned with the Federal Government's proposed abolition of CAMAC. For those unfamiliar with it, CAMAC is a body corporate created by statute to provide a source of independent research-based expert advice to the federal government about corporations and financial markets legislation. Its predecessors were the Companies and Securities Law Review Committee (1978), followed by the Corporations and Securities Advisory Committee (1989). It then became CAMAC in 2002 following the referral of corporations powers from the states.

CAMAC has since produced independent reports on various topics including continuous disclosure, company restructuring to avoid liquidation, executive remuneration, crowd source equity funding and director liabilities.

However, the Federal Government announced in the 2014/2015 Budget that CAMAC will be abolished and its works performed by the Department of Treasury and/or the Australian Securities & Investment Commission. Concerns have been raised in the senate about the ability or appropriateness of these

bodies to continue CAMAC's work and numerous corporations law experts have opposed its abolition1.

Committee members Rachel Webber, Rob McKenzie and Matthew Keogh have met with state government representatives to discuss proposals that might ensure CAMAC's survival.

At the time of writing, the Australian Securities & Investments Commission Amendment (Corporations and Markets Advisory Committee Abolition) Bill 2014 was still before the senate. With Labor and independent senators foreshadowing their opposition to the bill, Committee members will await the outcome with some interest.

NOTES

1.

www.aph.gov.au/Parliamentary_Business/ Committees/Senate/Economics/CAMAC_ Abolition_Bill_2014/Report/d01

The Committee featured in this article is one of more than 40 active Committees of the Society whose work covers a range of substantive law and generic areas of interest. For further information regarding the Society's Committees please visit lawsocietywa. asn.au/current-committees.

Australia’s largest provider of expert opinion services We provide expertise in over 2,000 discrete areas including engineering and construction, commercial litigation, mining, resources and rural, personal injury and medico legal, to name a few.

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www.unisearch.com.au Perth (08) 6488 4713 | Sydney (02) 9385 5555 | Melbourne (03) 9214 5863 Unisearch is a business group of UNSW Global Pty Limited

10 | Brief July 2015

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Myanmar's Melting Pot: Law, Human Rights and Democracy on the Borderline Kylie Kerin Legal Aid Western Australia

Each year, near the north-western Thai city of Mae Sot, the Burma Lawyers Council (BLC) has operated a school for young Burmese men and women, eager to learn about the foundations of civil, democratic society and international standards about law, human rights and justice. Hosted by the BLC's Peace Law Academy (PLA) for two weeks in Mae Sot, I learned and taught as a volunteer, with two other Perth lawyers, a class of 25 Burmese lawyers, university graduates and university students.

These students live and study at the PLA in Mae Sot for up to two years before eventually returning home to Myanmar (known more widely until recently as Burma), hopefully ready to share what they have learned. It was our great pleasure to engage with these courageous, insightful students about criminal and common law concepts, and life in Myanmar.

Mae Sot supports an economy and industries driven in part by the two refugee camps to the North and South of the town, home to nearly 50,000 Burmese refugees and displaced persons1.

My task at the PLA was to teach a criminal law course. This aimed to cover what a criminal law system is and its main features, with particular focus on concepts relevant to Burma. The course, over five half-day sessions, covered basic concepts of criminal liability, elements of a crime and basic doctrines and defences. Each concept was taught through initial lectures followed by case examples, and finished with an introduction to ethical issues, concepts of, and responses to, domestic violence (both societal and regulatory).

The common law course was taught by my colleagues, also Perth-based lawyers. The course, over five half-day sessions, examined how common law works generally and also common law rights and concepts relevant within Myanmar.

A moot court, at the end of these courses, reinforced the basic criminal law concepts, with the students needing to research and present their arguments 12 | Brief July 2015

about a fictional case before two judges.

The preparation was facilitated by two Australian lawyers (one for each side) and translators, and the oral argument before the judges was in Burmese, to enable full engagement and explanation of the concepts, unhindered by differing levels of English proficiency.

Before classes started, we had prepared course outlines, some basic PowerPoint slides and a plan for introductions and icebreakers. What we weren't prepared for was teaching highly educated students before they had acquired the skills needed to engage with legal concepts in English. As a teaching group, we relied heavily on the assistance of two of the PLA's former students to translate parts of the lessons, and many class discussions took place in Burmese. I felt as much a student in these classes as I did a teacher. I was glad for the reminder to practise patience and collectively find the best ways to communicate and progress through learning objectives so that both teachers and students were heard and understood.

I suspect some of our students were experiencing the same nervous excitement I was, as they came to meet us on the first day of class for 2014 at the PLA. Without fail, we were greeted with gratitude and smiles from students brimming with lessons memorised the night before. Some days I arrived as the morning English class finished, to sounds of raucous laughter as students played a fast-paced "English only" card game or found the humour together in their attempts at the day's grammar tasks. By midday we were sweating it out in the single classroom, deep in discussions about the relevance of common law or rules of evidence, explanatory pictures covering the walls, and confused looks on the faces of students struggling to decipher our unfamiliar Australian accents.

There were many simple delights in this Thai-Burmese experience. We ate lunch and dinner each day at school with the students, treated to overwhelming generosity of service from the students

and impossibly large servings of traditional Burmese food, prepared with gratitude and care. Our students reminded me that determination, humility and courage are very powerful virtues to possess and practise. It can be awkward and embarrassing to be misunderstood, particularly by your peers, colleagues and mentors. Every day, our students participated in English grammar classes, and then a full day of law classes taught in English. They studied in the evenings, and overcame wounded pride and acute shyness to practise basic conversation with us between classes.

For lawyers and academic students, language is currency. Our professional reputations hinge on being effective and persuasive communicators. For Burmese lawyers who want to effect change in their legal system, speaking English brings great power, because it connects them to democratic society and the world's wealthiest and most politically powerful states. I was challenged by the students' deep well of motivation as they began each day with such positivity, knowing the brain-drain and courage required to get through the classes, then to hear them talk about where they had come from, and how quickly their liberty could be taken from them, even as students at this progressive school. I can see that their motivation to learn while they have the opportunity comes from a deep passion and love for their home and its people, a sense of obligation to value and to make the most of this opportunity. They know they can and must be a catalyst for change in their country, and that hard work will get them there.

Funding for this not-for-profit school, and for many of the NGOs operating just outside Myanmar's borders, has been difficult to retain, with funding bodies shifting their focus inside Myanmar before funding will be continued.

Historically, funders have recognised that the ruling political parties and system of governance in Myanmar are oppressive, corrupt and dogmatic. They have recognised that for organisations aiming to educate Myanmar people and raise awareness about human rights and

governmental accountability, it has been unsafe and fiscally impossible to sustain operations within Myanmar. Things are slowly improving inside Myanmar but it is not always clear which of those two descriptions ('slowly' or 'improving') prevails at any time.

The facilities at the PLA are rudimentary, but they are clean and adequate for what is needed for classes to run. Student accommodation at the same site sleeps women up to six in a room, and the men two or three to a room. Hot water is scarce, so most bathing and washing is done quickly and without fuss.

Living and studying together in such close quarters is a new challenge in itself. Most of the year's class have never lived outside of Myanmar, have never spoken with a native English speaker, and many have no way of contacting family back in Myanmar if their home is remote and not connected to electricity and modern communication facilities.

They must put aside or work through their learned beliefs about the 'other' in Myanmar and get to know each other as more than just the ethnic group or religious group they belong to.

Overwhelmingly, even after two weeks and despite the complexity of their new lives, these students have managed to create a home together, where they play caneball and badminton, watch Thai karaoke and English Premier League football, and share one computer for study and personal use.

Many evenings, a vibrant chorus of voices singing hymns can be heard coming from the living quarters. There are a mix of religions at the PLA, as in Burma: Buddhist, Christian and Muslim, and as always tolerance, acceptance and progress towards true friendship are alive and well in this school, and it is planned to be that way, so that the education received at the PLA encourages its students to lead their

country in the future from their souls, placing importance on human rights and celebrating 'difference' in a society.

Some of Myanmar's ethnic groups have been displaced for more than 30 years.

UNHCR considers that for the mostly Kayin and Kayah refugees, theirs is one of the most protracted refugee situations in the world, some having been displaced since 1984.2 Organisations like the Palaung Women's Organisation (PWO) assist Palaung people, initiating women's craft groups and other events as a shield for disseminating information about family violence, women's rights and how to access assistance. The PWO is particularly active in raising awareness about human rights, women's rights, democracy, impacts for Palaung women in Burma of spiraling opium addiction, government control of opium cultivation, gender discrimination and violence, human trafficking of women and children to China and the burden of war and displacement. The combination of these elements of life for this particular ethnic group is devastating for individuals and communities and not dissimilar to the trauma the many women around the world face in their daily lives. These students are determined to strengthen and educate Myanmar's next generation of leaders about human rights and democracy.

I spent a few hours one evening in Mae Sot speaking to a former PLA student, who now works for the PWO and develops training programmes for young Palaung women motivated and able to make a contribution in their community. She understood and articulated the importance of raising awareness about family violence and systemic oppression of women, and the dysfunction they ultimately create for communities and economies. We spoke about the cultural and religious influences on gender identity for many ethnic groups in Myanmar, and she

"Things are slowly improving inside Myanmar but it is not always clear which of those two descriptions ('slowly' or 'improving') prevails at any time." helped me to understand the most culturally appropriate way to facilitate a class at the PLA about family and domestic violence. This young woman is energetic, intelligent and strong, and a worthy ambassador for the PLA. She is the essence of why teachers from around the world volunteer their energy and knowledge to join the PLA for whatever time they have available.

It is a community service that pales in comparison to the service its students will continue to give to their countries for the rest of their lives.

You can read more about the work of the Burma Lawyers Council, the Palaung Women's Organisation and other Burmese rights advocacy groups online, or by talking to those people who have experience working with, or being helped by, those organisations.

Support for these organisations by way of direct funding and donations in kind is always greatly appreciated by the men and women who dedicate their heart and expertise to Myanmar's progress. I am happy to be contacted through the Law Society of Western Australia to assist individuals and groups to connect with these organisations or discuss current funding proposals and projects.

NOTES

1.

TBC's camp population figures 2014, accessed 14 April 2014 <http://theborderconsortium.org/camps/ populations.htm>.

2.

UNHCR â&#x20AC;&#x201C; Thailand, accessed 8 April 2014, <http:// www.unhcr.org/pages/49e489646.html>.

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An Interview with Chief Judge Sleight Law Society past president Hylton Quail recently interviewed Chief Judge Sleight following his appointment to head the District Court.

Chief Judge, thank you very much for speaking to Brief. Congratulations again on your appointment. You have inherited a court in very good shape and one regarded as one of the most efficient trial courts in the country. Where do you go from here and what are your plans?

Initially I will simply assess everything we do, but the main vision I have is to maintain the reputation that is already established.

What are your main challenges?

The main challenges are budgetary. Next year there will be significant financial cuts.

That will place enormous pressure on our administrative staff to find where they can make the cuts. In addition, we have an increasing problem with courtroom facilities in terms of the number of courtrooms available.

This is a relatively new building which was meant to accommodate 90 years of future growth, so that is somewhat of a surprise?

Well, it is, but there has been an increase in the demand on the building through the increase in the number of trials that are conducted by the Supreme Court in the District Court building. This is due to the increase in the number of murder trials conducted by the Supreme Court.

Also, in the District Court there has been a 20% increase in lodgements in the last 12 months. I believe that very soon there will be an insufficient number of courts in the District Court building to accommodate both the Supreme Court and the District Court. Plans are already in place to use the jury court rooms in the Central Law Courts building.

Having to meet significant financial cuts will take people in the profession by surprise, given that most practitioners would say that this court is already at the limit in terms of resourcing and the pressure on judges and administrative staff. How can you make those sorts of savings? I know it is an acrossgovernment demand, but I can't see where the fat is in the system.

This is the considerable task for our very competent administrators within the court.

One area where it is hoped significant savings will be made is in business services that are provided to the court. By business services I mean the management of the financial, human and physical resources of the court. This includes keeping and providing analyses of the performance

14 | Brief July 2015

of the court. Each court in the state has its own business service division. It is intended that some of the functions will be centralized, creating efficiencies which will lead to expenditure savings.

I guess it follows from what you've just told me, but the profession sees a need for one or two extra judges, given the increase in the work of the court and the pressure on the judges at the moment. I take it that is out of the question, is it?

You will have to ask the Attorney General.

Certainly in criminal, what we are seeing is judges who on occasion appear tired, they sentence before trial each day and few of the trials, from a judge's perspective, seem to fall through because there is so much double-listing.

Assuming that listing regime continues, are you concerned about burnout of judges?

Yes I am. I think this is now being recognised as an issue throughout Australia.

In Victoria they have just introduced in the County Court a pilot programme, which they describe as the 'Resilience Programme'. The pilot programme is going to explore the extent to which judges need counselling to enable them to cope with the pressures of running a busy court.

Do you have the resources for a 'resilience programme'?

No but one of the things that I will be exploring is to what extent we can introduce educational programmes to assist judges in coping with the pressures of the position.

Under the last Chief Judge we saw increasing use of Registrars in crime, given the drop in the civil business of the court. From the profession's perspective, that has worked very well â&#x20AC;&#x201C; Registrars managing sentencing lists. Is there scope to increase their involvement, perhaps in trial listing and other procedural hearings, to relieve some of the pressure on judges?

At this stage I am not sure, but it is something that I will be investigating. I will be reviewing all of the functions of the court, including the roles of different personnel in the court, and including my role as Chief Judge. I hope there may be scope for easing the burden on me in relation to listing hearings. Hopefully this will free me up to do some trials and circuits.

I was going to ask you about that.

The last three Chief Judges have

predominantly managed the trial lists and also done a lot of sentencing, at the expense of trial work. Will your approach be different?

Initially I will be reviewing many things. I will sit in the position of Chief Judge for a time to assess the needs before I decide what changes I might implement.

In managing trial listings are we likely to see any effect on counsel of choice, which has been eroded because of the listing pressure the court has been under?

I don't think so. I think the more pressing issue is going to be the number of unrepresented people we will have before the court with the decrease in Legal Aid funding. There are going to be more and more situations arising where people are going to appear before us unrepresented.

That is going to create significant issues when listing trials, including the length of the trials. There may also be a more robust view taken about when counsel can withdraw from a matter.

Legal Aid funding is one of the real crises facing the profession at the moment. One aspect of the problem for practitioners is having to do more work for less money as a result of what I call the 'civilization' of crime. Increasingly judges of this court require written submissions in advance of directions hearings and even on fairly simple pleas in mitigation. Whilst that perhaps makes it easier for a judge to prepare in advance, it erodes the importance of oral advocacy and places an enormous demand on the profession, particularly on Legal Aid matters, where there is no funding allowance for preparation of written submissions. Do you have a view on that, and are you likely to ask practitioners to prepare written submissions on fairly routine matters?

I think the calling for written submissions is a by-product of the work load of judges.

Because of the amount of work judges have to perform, they are seeking assistance in the form of written submissions in advance of hearings. I do not have a particular philosophy about calling for written submissions. However, I do believe that the written submissions we receive are sometimes unnecessarily long. They frequently restate basic principles rather than identifying what are the issues before the court and putting a submission in support of the client's position.

interview I think the Court of Appeal might have the same view. Chief Judge, coming back to the regions, you are now the second Chief Judge to come from the auspicious firm of Mayberry Hammond.

What was it like practising in the bush and what would you say to young lawyers who are perhaps thinking, in this era when it's very difficult to get a job in town, of going to the bush?

Being a practitioner in a country town produces enormous professional challenges. There is a limited marketplace which demands very high standards. So in terms of training a young practitioner and gaining experience, it is a very good environment. There are many other benefits. A most appealing benefit to me over the years was that I lived 10 minutes away from the office. I could go home at lunch time and play with my young children when they were toddlers. Also the primary school was at the back of our office and I could go to school functions when they were older.

When I interviewed Chief Judge Martino he said that regional circuits and backlogs were the biggest challenge that he faced. Has that been fixed or are circuits still a problem for the court?

It has been largely fixed by the previous Chief Judge. There are occasional spikes in various regional centres and we try to deal with that by allocating additional circuits to those centres.

As a country practitioner you were very heavily involved in the life in the town, you were president of the footy club and I recall you also ran a number of very successful Aboriginal youth programmes in Northam. Looking at that, the Chief Justice has said a number of times that the over-representation of Aboriginal people in the criminal justice system is our biggest challenge. Do you have any thoughts on how we might change that?

It is a matter that I am giving considerable thought to but I regrettably and sadly conclude that there is probably little that the court can do about the over-representation of Aboriginal people before the court. It really is a social issue and there need to be massive social changes before there will be any significant reduction in the number of Aboriginal people who appear in this court.

On her retirement, Chief Judge Kennedy said the same thing â&#x20AC;&#x201C; that courts are at the end of the line and have limited ability to change behaviours. Nevertheless, is the court at its limit in terms of creativity in terms of sentencing options? Is there anything more that can be done?

It is something that I am looking at.

However, in the current climate of budgetary restraints it is difficult to initiate any sort of diversionary programme that might possibly have an impact.

You have been a judge now since January 2005 and also sat as a Commissioner in the Supreme Court

for two years or thereabouts and have the advantage of familiarity with the operations of both. Are there any particular Supreme Court procedures or practices which might now be implemented in the District Court?

Peter Martino took that the Chief Justice's role is quite different to the Chief Judge of this court. I may make ex-curial statements about various issues to legal bodies but I will not be making a habit of making statements to the press.

It is unlikely. I think this court is running as efficiently as it can. There may be some changes I will make to our internal governance but from the practitioner's perspective there is unlikely to be any major changes.

Moving away from that, what is your experience of counsel, particularly in the criminal jurisdiction of this court, and do you have any views on the concerns of some in the profession and the Supreme Court about juniorisation?

Having had the benefit of sitting on both courts, do you have a view on divisionalisation, which is the way some jurisdictions have gone with increasing population and increasing workloads?

Particularly in relation to crime, the original jurisdiction of the Supreme Court is now quite small, albeit they have a lot of murder trials; do you see benefits in there being one criminal trial court?

Well, I think overall there has been an improvement in the quality of counsel for two reasons â&#x20AC;&#x201C; firstly, there are more practitioners at the Independent Bar specialising in crime. I believe this is a positive thing. Secondly, there are more practitioners who have received the benefit of training and experience at the DPP, going into private practice.

There are pluses and minuses. I am not quite sure at this stage what my position is on this question. However, I think there is something to be said for murder trials being conducted by the Supreme Court.

Are there any particular issues or challenges facing the civil jurisdiction of the court?

The Supreme Court will be conducting a major review of its civil rules and representatives from the District Court will participate in this project. I believe it will also require us to conduct a major review of the District Court rules.

Now, just a few questions for you about education and public engagement - the Society has for some time supported the court, firstly publishing a Bench Book as some other courts do, and secondly publishing sentencing remarks, as the Supreme Court does. Are those ambitions of yours and if they are, are there likely to be resources available to do either or both of those things?

Firstly, on the issue of the internal Bench Book, I hesitate to make that available. I do not believe the authors of the Bench Book ought to be placed under that sort of pressure where the Bench Book becomes a public statement of the law. On the second issue, concerning publishing sentencing remarks, that is something I am considering. However, publishing sentencing remarks requires a considerable expenditure of time and resources. In the Supreme Court, where sentencing remarks are published, judges have to spend time editing the transcript before publication.

We do so much sentencing in the District Court that publishing of sentencing remarks may place an unacceptable demand on the judges and the resources of the court.

What are your views on the role of the Chief Judge and media engagement, and do you intend to be as accessible as the Chief Justice for example?

No. I take the same view that Chief Judge

Why did you study law, Chief Judge?

I wanted to be a town planner. It was recommended to me to do an arts degree and then after obtaining an arts degree to study overseas. In the first year of arts I did two units of law and I was attracted to the law and made a career change.

Was anyone else in your family a lawyer prior to that?

No. Are there any particular jurists that you admire?

All of the judges that I have ever worked with and in particular I would like to mention the late Paul Healy who was a great mentor to me in my early days on the bench and inspired me with his love and enthusiasm for the law. Outside of the judges I have worked with, I do not single out any particular jurist that I admire, but there are certain writings I admire. Shall I share one with you?

Yes, please!

This is what Murray Gleeson had to say at his welcome ceremony when he was appointed Chief Justice of the High Court.

"While it is a function of the democratically elected government to represent, and if necessary, impose the will of the majority, it is a characteristic function of the courts to uphold and enforce the rights of the minorities. Governments necessarily respond to public opinion.

Courts sometimes have to protect people against it. The law exists to protect not only the weak against the strong but also the unpopular, the person accused of serious crime, the person who insists on resisting what he regards as a bureaucratic invasion of his privacy or intrusion into his personal or financial affairs, the individual whose conduct is impatiently branded as anti-social, the person against whom every man's hand is turned".

I think that's an excellent way to end.

Chief Judge, thank you for taking the time to speak to Brief.

15

Speech to

Law Week Breakfast Deidre Willmott Chief Executive Officer, CCIWA

The legal profession can learn from the corporate world to increase female participation in senior leadership roles, says Deidre Willmott.

16 | Brief July 2015

In 1985, the year I completed my law degree at the University of Western Australia, there were no women on the High Court of Australia or the Supreme Court of Western Australia and no women Queen's Counsel in this state. But I don't remember being too concerned. Like the previous graduating classes, my year had more women than men. We were confident that with those numbers the opportunities would open up.

I did my articles in 1986 at Parker & Parker. Harry Dixon SC was my principal and His Honour Justice Tony Siopis was my mentor. At the end of that year I went to London with my husband and worked there for two years. By the time we returned we had our first daughter.

I went to Parker & Parker to ask if I could work part-time. The response was immediately positive; with so many women coming into the profession

feature the firm was very keen to develop a successful model for part-time work. I worked every morning and went home in the afternoon where I had installed the latest technology, a thermal fax machine, so I could dictate documents in the office and check them at home. Soon Annette Schoombee joined me working part-time.

Partner Oscar Shub realised the potential and asked if we knew other experienced lawyers who might want to work parttime. As a result Parkers laterally hired outstanding women lawyers to work parttime.

My clients all seemed happy with the arrangement and at a directions hearing in the Federal Court the discussion turned to setting the date for the next hearing.

A Friday afternoon was suggested, but Justice French (as he then was) sat up in his seat, looked my way and said, "Ms Willmott works part-time, when would be a suitable time for you for the hearing?"

So we set a date and time that suited my working hours.

Despite Chief Justice French and his progressive attitudes towards women, progress in the legal profession has been very slow. The legal profession can start by taking lessons from the corporate world on how to increase female participation in senior leadership roles.

Women law graduates have outnumbered men for nearly 40 years, yet frustratingly the gender imbalance on the bench remains. While we can celebrate the recent appointment to the High Court of UWA Law School graduate Justice Michelle Gordon, researcher Conrad Liveris informs us that women make up just 14 percent of the Supreme Court, 21 percent of the District Court and 38 percent of the Magistrates Court. Only the Family Court closely reflects broader society, with women making up 55 percent of the bench.

Just 8.8 percent of silks appointed in Western Australia are women, behind the national average of 9.5 percent. WA leads the country in the appointment of female law firm partners, 23 of 98 partners in top commercial firms here are women — that is still just 23.4 percent compared with the national average of 20 percent.

The legal profession is not alone in having a problem with women. The first step in solving any problem is to see there is a problem and the second step is to decide that it needs to be solved. Without those two things nothing will happen.

In terms of recognition of the problem, in recent years there has been a growing focus on the under-representation of women in the workforce and particularly in senior leadership roles. The business world has recognised it has a problem

with women.

Women's contribution to the workforce has been steadily increasing. In Western Australia, female participation has risen five percent in the last 20 years from 54 percent in 1995 to 59 percent today. Male participation has been steady at around 70 percent over the same period.

In that time there has been an increase in the number of women in senior executive roles and on boards, but there is a long way to go. In 2012, 12.3 percent of directors on the boards of ASX 200 companies were women and in WA just four percent of directors were women.

Following a concerted effort, the national percentage of women on ASX200 boards has increased to 20 percent, with women comprising 30 percent of new appointments to boards last year.

In WA, women now make up 13 percent of directors, but with a number of companies dropping out of the index, the

research has consistently shown a strong correlation between greater gender diversity at board level and the improved financial performance of companies.

The Australian Institute of Company Directors launched the Chairmen's Mentoring Programme in 2010. This initiative involves chairmen and senior directors of listed companies mentoring qualified women for a 12-month period.

They also introduced scholarships, training programmes and networking events and actively promoted the importance of diversity to boards and those involved in board recruitment.

They secured the support of high profile corporates such as Westpac, Woolworths and Price Waterhouse Coopers.

Make no mistake, the business world is still a long way off parity, but it is moving in the right direction and there has been a huge improvement in the numbers of women being appointed to boards.

"Make no mistake, the business world is still a long way off parity, but it is moving in the right direction and there has been a huge improvement in the numbers of women being appointed to boards." total number of female directors in WA has actually decreased.

Just 10 percent of senior corporate leaders in Australia are women and in WA this figure is 5 percent. In other words, in Western Australia, men are nearly 20 times more likely to be senior corporate leaders than women. In Australia, the chair or CEO of an ASX200 listed company is more likely to be called Peter or Michael than to be a woman — there are 26 Peters, 23 Michaels and 23 women in the top two corporate positions in this country.

The national gender pay gap has increased over the last 20 years from 16.5 percent to 18.2 percent. In Western Australia the pay gap is 25 percent. In the Australian legal profession, the gap is 36 percent.

This should be unacceptable to all fairminded members of the legal profession.

Young women cannot be allowed to emerge from school and university into this reality. Change is required but women cannot change this situation on their own.

This is what underpins the UN Women's "HeforShe" Commitment, which asks men to personally pledge to end disparity.

Once the corporate world recognised its problem with women, the reason to change was easy: it was good for business. International and Australian

There is motivation to appoint women to boards but there is a scarcity of talent because of a lack of women in senior leadership roles in companies and the pipeline is filling too slowly. Even in companies and industries where women are recruited as graduates, they are not staying long enough to rise to senior leadership positions in strong numbers.

It is increasingly clear that the only way to increase the number of women in senior leadership roles is through cultural change led from the very top of a company or organisation.

In 2010 then Sex Discrimination Commissioner Elizabeth Broderick formed a group of about 20 men called the Male Champions of Change made up of influential CEOs and chairs of different organisations. This included ASX200 companies, accounting firms, management consultants and investment banks – but, interestingly, no law firms.

The Male Champions of Change positioned themselves to actively advance gender equality across their own businesses and also to act as public advocates.

They formed an action plan that included: •

stepping up as leaders and demonstrating commitment to increasing the representation of 17

women in leadership; •

integrating the objective of gender equality across business processes with clear targets and accountability;

•

disrupting the status quo by not accepting that obstacles to women's advancement are inevitable or insurmountable; and

•

recognising that traditionally the most common route to senior leadership positions has not included career breaks and visible caring responsibilities and redesigning roles, career paths, policies and processes to give consideration to people managing a 'double burden'.

Last year the Male Champions of Change joined with national women's organisation, Chief Executive Women (CEW), to release a management model to drive gender equity called The Leadership Shadow.

The model starts with the view that leaders must understand their own impact – the shadow they cast.

thought it would be unfair to them.

Gail Kelly countered this with strong statements about the importance of meritocracy. It was pointed out that if the target was 40 percent for women, then it was a 60 percent target for men.

Some of the initiatives that Gail Kelly implemented were: •

the appointment of a Head of Diversity;

•

the establishment of a Westpac Group Diversity Council chaired

by Gail Kelly and including the full Executive Team;

•

•

the preparation of action plans for the retention of all senior women;

•

the introduction of a three month mentoring programme for junior women;

•

the introduction of a gender diversity KPI for the CEO, which cascaded down through all management levels; and

It continues: The path to lasting performance improvement on any priority – like gender balance – starts at the top.

What we say; how we act; what we prioritise; and how we measure together determine what gets done (and what doesn't).

Leaders are urged to look at how they act and what they say to demonstrate that gender balance is really a priority for them. The point is they should look internally and externally, and this can include even looking at suppliers.

One thing the Male Champions of Change have agreed is that they won't speak as part of a panel that doesn't include women.

This might not seem like a big advance but it makes a statement and drives behavioural change on the part of others.

CEW has conducted a number of case studies analysing the performance of companies and organisations through the prism of the model set out in The Leadership Shadow.

One case study involves Westpac, which was an early leader in promoting gender diversity from the early 1990s. However, by the time Gail Kelly was appointed CEO in 2008 there was a perception that a number of senior women had left and momentum had slowed. So in 2010 Gail Kelly announced a target for women of 40 percent of management.

When the target was set there was scepticism, especially from men who 18 | Brief July 2015

the commencement of Westpac team or "People Days" focussed on key talent and retention risks;

•

Cransberg of Alcoa and Rob de Luca of Bankwest. I am a member, as is Jenni Hill, who chairs the Flexible Workplaces Focus Group.

Until recently Jenni was a partner at Norton Rose Fulbright and at the launch of CEOs for Gender Equity last year she spoke about initiatives introduced at the firm, including making partners Flexibility Champions and providing training on the business case for well-designed flexible workplace arrangements.

In the Perth office of Norton Rose Fulbright, 36 percent of partners are women and 28 percent of staff are working flexibly.

Yet it seems there is a way to go.

The Law Council's National Attrition and Re-Engagement Study (NARS) Report has highlighted issues that are impacting female engagement in the legal profession, such as: •

the pressure of time billing and excessively long working hours;

•

the lack of access to mentors;

•

the competitive nature of the workplace, making people reluctant to raise concerns about workload pressures;

•

the cultural barrier present as a result of the number of males in senior roles; and

•

a lack of women in leadership roles contributing to a male dominated culture.

a special effort to mainstream flexibility.

With these initiatives being driven from the top, Westpac reached its target of 40 percent two years early. They have now set a target of 50 percent by 2017, which is being driven by new CEO Brian Hartzer.

Another CEW case study was Woolworths.

In 2004 Woolworths realised that while 60 percent of their employees were women only 16 percent of their top 500 leaders were women. They set out to understand the problem and found that women between 25 and 35 were leaving even before going on maternity leave. Their reasons were leadership, culture and a lack of career opportunities.

One of the sacred cows that Woolworths tackled was the leave embargo over the Christmas and New Year period. This company wide policy created huge issues for women juggling work and family but was seen as critical to running a retail operation. Michael Luscombe managed this by giving the business unit leaders greater autonomy, and appointing women to some key roles.

The company has since seen a significant increase in the number of women in leadership roles and has set targets for continued improvement.

In Western Australia, a group has been established called CEOs for Gender Equity. This group of 18 CEOs includes Richard Goyder of Wesfarmers, Alan

Many of these issues are not unique to the law. As CEO at the Chamber of Commerce, I look at these issues across the economy and as an employer. The CCI represents more than 9,000 members across all industries and regions of the state. It also delivers a wide range of services to members and has more than 250 staff.

At CCI, we believe the stronger our members are, the stronger our economy is. Last year we published a 20 year vision for Western Australia called The State of the Future.

Our vision is that by 2034 our economy can double in size to $570 billion, we can see an additional 740,000 jobs, our population can increase by a million and more than half a million additional people can have a tertiary qualification.

A key goal of this vision is that workforce participation rates of all groups in our community be equal to the overall participation rate. This includes those groups currently under-represented: women, people with a disability, Aboriginal Australians and older workers.

feature Government and business have an important role to play, through training, flexible work practices, access to childcare and reforms to the tax system.

In addition to advocacy, the CCI and its members contribute to the community through training and apprenticeship programmes. Through our Vocational Training and Employment Centre, we are working with the Australian Government, GenerationOne and our members to provide guaranteed jobs to 325 Aboriginal people. We also provide the training and support they need to succeed at those jobs.

Arguing for increased participation of women at all levels of industry is an important part of our policy agenda.

I was very fortunate that during my career as a lawyer I had the support of many people who valued the contribution that women could make to the profession.

Given my own experience, which I saw as very positive, I am disappointed that things seem to have gone backwards for women as a whole. The law needs to focus on the role of leaders in the profession, which is a common goal if you look to the corporate world.

Here are eight things from the corporate sector that the legal profession can do right now: 1. Form a group of champions, male and female leaders, who are committed to changing the culture of the profession and to showcasing and learning from policies and practices that are successfully increasing the retention of women; if you are not already doing something like this, this could be an excellent initiative for the Law Society; 2. Focus on the role of leaders in the profession, not just law firm management, but all people in senior roles in the profession, think about your shadow, what you say and what you do to encourage women, as Chief Justice French encouraged me many years ago; 3. Consider setting targets, as a profession and within firms; 4. Audit payrolls and address the gender pay gap. It is well established that this gap starts with graduate salaries. I urge you to look at your organisations; 5. Examine structures; are high rents and other non-legal overheads putting pressure on your margins and forcing you to focus unduly on utilisation as a driver of profit? Is this reducing the flexibility options that you can offer or creating tension

around those options; 6. Introduce mentoring programmes to encourage women in their career progression; 7. Consider a scholarship programme.

CEW's scholarship programme sends young women away on short courses to study leadership at critical points in their careers and provides applicants and their referees an important opportunity to reflect on career successes to date; 8. Look out for the Committee for Perth report Filling the Pool to be released in June. This research involved interviewing a very wide range of WA women in business and will contain a number of recommendations.

To young women, and for those of who mentor or advise young women: 1. Stay positive and be confident.

Make sure you let others know what you want. If you are offered an opportunity to lead on a matter or take a leadership role, don't say you are not ready or worry about how you will juggle all your commitments.

Someone else thinks you are ready, so just do it ... or your male colleagues will.

2. Speak up, or, in the words of Sheryl Sandberg, "Lean In". Sit at the centre of the table in meetings, don't let others talk over you, your views are important and you are letting the team down if you don't make yourself heard; 3. Your best mentor is actually your boss. This is the person who is best placed to advise you on your progress and next steps. If you are at the Bar or your boss is not going to mentor you, find another person you can talk to about your career; 4. Take time to get to know your peers in the profession and especially your firm or organisation. This applies at all times but especially if you have children and are busy juggling family and work. It can be easy to focus on outputs or billable work and not notice that your male colleagues are building important connections that will take them to the next stages of their careers.

Sixty-five percent of graduate lawyers are women, but more women than men leave law within five years of entering the profession, and between the ages of 35 and 55 the number of women practising law declines by 75 percent.

Turning this around is important for our community. Every year many of the brightest young women in our state study

Deidre Willmott, Chief Executive Officer, CCIWA

"65 percent of graduate lawyers are women, but more women than men leave law within five years of entering the profession ... Turning this around is important for our community."

law and enter the profession. As their employers, colleagues, partners and parents, we should want them to have the best opportunity to realise their dreams and contribute to society.

As professionals we should all want the best and brightest to remain in the profession and find their way to the top.

Yet that is not happening.

The lesson from the corporate world is that leadership is required. Recognising the problem puts you on the road to solving it.

19

The Law of Equity, the Information Age and Revenge Porn Geoffrey Hancy Barrister

INTRODUCTION Revenge porn is a modern problem that is presenting challenges for legal systems worldwide. Facilitated by modern information technology it is a new way of causing harm, usually by a man against a woman. In a recent Western Australian case, the Supreme Court met the challenge by finding remedies in the law of equity.

20 | Brief July 2015

THE INFORMATION AGE AND REVENGE PORN Advances in communications and information technology over the past 20 years have led to widespread changes in modes of capturing and transferring data and images, in inter-personal communication and in behaviour. The advances include the internet, World Wide Web, websites, internet based social media applications, digital and wireless data transfer, and smartphones.

These are components of what has been given the label the Information Age among other descriptors. New phenomena have emerged and words and terms have been created to describe them. 'Revenge porn' is an example.

The Information Age has witnessed the phenomenon of some individuals in a sexual relationship using readily available information technology to produce and exchange, consensually and for their intimate private viewing, sexually explicit

images of themselves. This behaviour has created a new and associated risk.

for payment of what was held to be equitable compensation.

A proportion of these relationships break down. Current information technology has provided a new way for a jilted lover to cause harm to a former sexual partner by distributing intimate images beyond the private walls of the relationship. The term 'revenge porn' has been coined to describe this pernicious, and possibly increasing, form of behaviour. The label applies to sexually explicit still or moving images of an individual that have been shown or made available for viewing on a smartphone, computer or tablet, by means of the internet or other data services, without the consent of and for the purpose of harming the pictured individual. It might be viewed as an Information Age analogue of a sexual assault.

The case is of interest to lawyers for at least four reasons. First, it exemplifies the problem of revenge porn that has emerged in the Information Age and the difficulties faced by the courts and the law in finding a remedy for harm caused to a victim. Secondly, it provides a precedent for a remedy for a new problem by applying the rules of confidence of the law of equity. Thirdly, the case spotlights the remedy of equitable compensation and its availability for mental distress falling short of psychiatric injury - an outcome that is outside the traditional boundaries of the remedy and is beyond the boundaries of the common law. Finally and unusually, although perhaps not so unusual given the nature of the subject matter and allegations against the defendant, the trial of the action proceeded in the absence of the defendant.

REVENGE PORN CASE IN THE SUPREME COURT In Wilson v Ferguson1 a victim of revenge porn obtained equitable remedies, including injunction and an order

The plaintiff and the defendant were flyin/fly-out workers at the Cloudbreak mine

site in the Pilbara. In November 2012 they commenced a romantic relationship.

The plaintiff moved in with the defendant at his home in a Perth suburb. In less than 12 months the relationship had ended in acrimony.

During the months of their relationship, by smartphones, they took and exchanged photographs of a sexual nature that depicted each other naked or partly naked. In addition, the plaintiff took videos of herself nude and, on one occasion, nude and masturbating.

Without the plaintiff's consent the defendant used the plaintiff's phone to email the videos to himself.

The relationship between the parties deteriorated. Catalysing events occurred in the space of about 7 hours on a single day, 5 August 2013. Shortly before midday the plaintiff sent the defendant a text message saying that she knew he was cheating on her and she wanted nothing to do with him. Subsequently that day the defendant uploaded to his Facebook page, with boorish comments, sixteen explicit photographs and two 21

"Current information technology has provided a new way for a jilted lover to cause harm to a former sexual partner ... beyond the private walls of the relationship." explicit videos of the plaintiff. The photographs and videos were then available for viewing by the defendant's approximately 300 'Facebook friends' many of whom worked at Cloudbreak.

The plaintiff did not have a Facebook account, but she discovered the general nature of what the defendant had done when, at about 5.20pm, she began to receive telephone calls and text messages from friends. She then exchanged text messages with the defendant and at about 7.00pm the photographs and videos were removed from Facebook.

A witness who gave evidence for the plaintiff at trial first saw the photographs at about 5.30pm when he saw two coworkers looking at, and talking about, pictures on the screen of a mobile phone. The phone was handed to the witness. The trial judge concluded that a significant number of workers at Cloudbreak accessed the images of the plaintiff and a greater number were aware of their existence.

By means of a friend's Facebook account the plaintiff saw the photographs and videos. She was horrified, disgusted and upset by what she saw. She felt humiliated, distressed and anxious because she and defendant worked at the same worksite. She could not sleep for about three nights and to the time of trial more than 12 months later (2 December 2014) she had slept badly. She felt unable to work from 6 August to 30 October 2013. At the time of trial she still felt humiliated and anxious. She was taking sleeping tablets nearly every night to help her sleep.

However (perhaps surprisingly, given her evidence) there was no evidence that she suffered from a recognised psychiatric illness.

The plaintiff did not seek damages for intentionally or negligently inflicted psychiatric injury, or for damage to her reputation from defamation. She called in aid the law of equity to provide remedies for improper disclosure of confidential information. She sought an injunction restraining further publication of the photographs and 'damages'.

The trial judge held that the essential elements of an action in equity for breach of confidence were that the information was of a confidential nature, that it was communicated or obtained in 22 | Brief July 2015

circumstances importing an obligation of confidence, and that there was an unauthorised use of the information. He held that those elements were satisfied on the facts of the case. In his view there should be an injunction prohibiting the defendant from publishing photographs or videos of the plaintiff engaging in sexual activities or in which the plaintiff appeared naked or partially naked. In addition he awarded the plaintiff $35,000 as "equitable compensation for the damage which she has sustained in the form of significant embarrassment, anxiety and distress as a result of the dissemination of intimate images of her in her work place and among her social group". In addition, he awarded "economic loss of $13,404" for lost wages for period when the plaintiff did not work in 2013.

Giller and Wilson v Ferguson raise the issue of the ambit of the remedy of equitable compensation. The notion that equitable 'damages' should be awarded for mental distress (or indeed for something other than loss of property, money, or other valuable right) is problematic for a number of reasons (and some were identified in the reasons for decision of the Judges of Appeal in Giller and by the trial judge in Wilson v Ferguson): 1

Relief by way of equitable compensation developed in the context of cases of breach of trust and breach of fiduciary duty impacting upon property or proprietary rights;5

2

There was no Australian authority that supported the decision in Giller;

3

The decision in Giller relied on a small number of English decisions that appear to have assumed the availability of the remedy;6

4

Awarding a money sum as compensation for personal harm might be seen to be more appropriately the province of the common law;7

5

With limited exceptions damages are not recoverable as a common law remedy for mental distress, stress or anxiety falling short of psychiatric injury;8

6

According to the authors of Meagher Gummow & Lehane's Equity, Doctrines and Remedies (5th Edition)9, awards of equitable compensation are concerned with property and economic interests and the remedy is not available for personal injury or trespass to the person: see also Paramasivam v Flynn. The trial judge in Wilson v Ferguson referred to [23-605] of Meagher Gummow & Lehane but only as a reference for a statement that it did not follow from his conclusion (that he agreed with the decision in Giller and that a remedy of monetary compensation was available) that "compensation for noneconomic loss will be available for breach of other equitable obligations which may be more concerned with the protection of economic interests";

7

Giller has been criticised by the authors of Meagher Gummow

GILLER V PROCOPETS The trial judge followed and applied, as he was bound to do unless convinced that it was clearly wrong, an earlier decision of the Victorian Court of Appeal in Giller v Procopets2. The High Court has directed that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation, or non-statutory law, unless they are convinced that the interpretation is plainly wrong3.

Giller v Procopets was a case about revenge porn in the era of videotapes.

The defendant, who won at trial but did not appear at the hearing of the appeal, attempted to distribute to members of the plaintiff's family copies of a videotape that recorded he and the plaintiff engaging in a variety of sexual activities in the privacy of a bedroom on ten occasions. The Court of Appeal held that the plaintiff was entitled to recover equitable 'damages' for her mental distress that fell short of psychiatric injury.

On 23 September 2009 the High Court (Heydon and Bell JJ) refused special leave to appeal.4 It is unclear from the short note of the decision whether there was a proposed ground of appeal to the effect that equitable compensation for mental distress was not available as a matter of law.

& Lehane10 who concluded "it is submitted that the reasoning in Giller v Procopets nevertheless does not convincingly sustain the conclusions there reached as regards Lord Cairns' Act or equitable compensation". The trial judge in Wilson v Ferguson did not refer to this criticism; 8

9

In Wilson v Ferguson the trial judge spoke about "determining how the equitable doctrine of breach of confidence should be developed", that the remedy "should ... accommodate contemporary circumstances and technological advances", that Giller was "an appropriate incremental adaptation of established equitable principle", and that "the equitable doctrine of breach of confidence should be developed by extending the relief available for unlawful disclosure of confidential information" (my emphasis); It might be reasonable to contend that the decision in Giller represents more than an incremental development of the law of equity based on judicial precedents, and that

a development of this kind and magnitude should only be effected by a change to statutory law or a decision of the High Court.

CONCLUSION Unless and until the decisions in Giller v Procopets and Wilson v Ferguson are overruled they stand as precedents that enable a victim of revenge porn to recover a money sum for mental distress that is not a psychiatric illness. They will become elements in the arsenal of case law available to lawyers who represent victims of breach of a duty of confidence, including cases of revenge porn. In theory the remedy will be available in other cases of breach of equitable duty.

However, it might be argued that it is not the role of the law of equity to provide a remedy of compensation in this area. It might be reasonable to anticipate that in the future the High Court will be asked to decide whether Giller v Procopets and Wilson v Ferguson correctly state the law in Australia. The prospect that the High Court will decide that compensation for mental distress is not a remedy provided by the law of equity should not be ruled out. The stage will be set if another Australian intermediate appellate court

declines to follow them. In a case of revenge porn, if the evidence permits, it would be prudent for a plaintiff's lawyer to frame the claim in tort as one for damages for psychiatric injury, in addition to or as an alternative to a claim for equitable compensation.

ABOUT THE AUTHOR GEOFFREY HANCY

The author is a barrister practising from eponymous chambers. For many years he was a member, and for a time convenor, of the Law Society's Computerisation Committee. He is the developer of Cloudbrief software for online briefing and litigation support.

NOTES

1.

[2015] WASC 15 (delivered 16 January 2015).

2.

[2008] VSCA 236; (2008) 24 VR 1.

3.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135]; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492.

4.

[2009] HCASL 187.

5.

Giller [146] per Ashley JA.

6.

Giller [412], [416] per Neaves JA.

7.

cf Paramasivam v Flynn (1998) 90 FCR 489.

8.

Baltic Shipping v Dillon [1993] HCA 4, (1993) 176 CLR 344.

9.

See [23-605].

10.

at [24-080] and [24-085].

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26 | Brief July 2015

Surrounding Circumstances Evidence Construing Contracts and Submissions about Proper Construction: The Return of the Jedi (sic) JUDII The Hon Justice Kenneth Martin, Supreme Court of Western Australia WA Bar Association Autumn Festival of CPD Tuesday, 17 March 2015, 4.30pm, BGC Building

Invoking a Star Wars unfolding saga theme, this episode's point of departure assumes a preceding familiarity with what feels like an almost timeless galactic story about contractual interpretation, ambiguity and the 1982 'true rule' stated in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352, then forcefully declared by three members of a High Court coram, on a refused special leave application, in October 2011: see Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604; (2011) 86 ALJR 1.

A 'blockbuster' first instalment was related in my 2013 article published in the Australian Bar Review entitled 'Contractual Construction: Surrounding Circumstances and the Ambiguity Gateway' (2013) 37 Australian Bar Review 118. See also Lindgren K, 'The Ambiguity of Ambiguity in the Construction of Contracts' (2014) 37 Australian Bar Review 153.

For those needing a quick refresher, by the Jireh reasons Gummow, Heydon and Bell JJ, whilst dismissing that application for special leave, admonished the Courts of Appeal of New South Wales and Victoria - for taking it upon themselves to presume that the 'true rule' of contractual construction as articulated

by Sir Anthony Mason in Codelfa at 352, had been abrogated in Australia.

By 2011 most intermediate Australian appellate courts had assumed (but not in Western Australia), by reference to a series of construction contract appeal decisions by the High Court that had not mentioned any need to satisfy the 'true rule', that it was no longer necessary to demonstrate ambiguity in the text being interpreted - to provide a basis to admit evidence of surrounding circumstances at trial, to assist the interpretation of the contractual text.

Unusually for a refused special leave application, the three Jireh coram members provided published written reasons. It will be recalled they said

[3] - [5]: Until this court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent.

The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.

The position of Codelfa, as a binding authority, was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council and it should not have been necessary to reiterate the point here.

We do not read anything said in this court in Pacific Carriers Ltd v BNP Paribas, Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd, Wilkie v Gordian Runoff Ltd and International Air Transport Association v Ansett Australia Holdings Ltd as operating inconsistently with what was said by Mason J in the passage in Codelfa to which we have referred.

At the time, those observations came as something of a surprise, particularly to the intermediate courts which had decided Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 (Allsop P, Giles and Campbell JJA) and MBF Investments Pty Ltd v Nolan [2011] VSCA 114 [195] - [204] (Neave, Redlich and Weinberg JJA).

2012: WESTERN AUSTRALIA: POST JIREH Post Jireh, McLure P comprehensively addressed the issue of the admissibility of surrounding circumstances evidence in aid of contractual construction in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 [76] - [79]. She then said: The practical limitation flowing from the Codelfa true rule is that surrounding circumstances cannot be relied on to give rise to an

ambiguity that does not otherwise emerge from a consideration of the text of the document as a whole, including whatever can be gleaned from that source as to the purpose or object of the contract.

In other words, absent a level of identifiable ambiguity first being shown in contractual text, evidence of surrounding circumstances ought not be admissible in order to show up the presence of a latent ambiguity: and see Edelman J's observations in Netglory Pty Ltd v Caratti [2013] WASC 364 [216].

At to what showing ambiguity (or more than one meaning) actually entails, the President addressed the issue in Hancock v Wright: The word 'ambiguous', when juxtaposed by Mason J with the expression 'or susceptible of more than one meaning', means any situation in which the scope of applicability of a contract is doubtful: Bowtell v Goldsborough, Mort & Co Ltd. Ambiguity is not confined to lexical, grammatical or syntactical ambiguity.

Moreover, the extent to which admissible evidence of surrounding circumstances can influence the interpretation of a contract depends, in the final analysis, on how far the language of the contract is legitimately capable of stretching.

Generally the language can never be construed as having a meaning it cannot reasonably bear. There are exceptions (absurdity or a special meaning as the result of trade, custom or usage) that are of no relevance in this context.

Further, on my reading of Codelfa, pre-contractual surrounding circumstances are admissible for the purpose of determining whether a term is implied in fact. That may be because the stringent test for the implication of a term in fact excludes any possibility of an implied term 27

contradicting the express terms.

Applying that interpretive approach to the presenting issues in Hancock v Wright, McLure P at [82] then assessed the (1984) agreement under interpretation this way: The intention and purpose of the 1984 Agreement is unambiguously clear. If evidence of surrounding circumstances is admissible, it confirms what is evident from the text.

The President returned to the topic in 2013, in Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 at [107].

Concerning the 'true rule' and a need to surmount an ambiguity threshold, she said at [108]: All of the issues of contractual construction that figure prominently in this case stem from ambiguity in the contractual text for Codelfa purposes, if ambiguity means any situation in which the scope or applicability of a contract is, for whatever reason, doubtful.

See also the careful observations of the Victorian Court of Appeal (Warren CJ, Harper JA and Robson AJA) in Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria Street Doncaster Pty Ltd [2012] VSCA 134; (2012) 37 VR 486, 512 - 518, [84] - [96].

A LOW THRESHOLD ANYWAY In a pragmatic sense imposing a threshold of some level of ambiguity (or more than one meaning) as a 'gateway' to admit surrounding circumstance evidence in the interpretation process, could hardly be described as setting a onerously high bar to the reception of such evidence – particularly where the evidence might assist in the construction process.

Even so, the intellectual challenge of grappling with a need for a 'true rule' is curially alluring to most.

MARCH 2014: EGC V WOODSIDE: RETURN OF THE JUDII What has proven to be a new phase in the Codelfa saga arrived with little fanfare in early 2014, as five judges of the High Court (French CJ, Hayne, Crennan and Kiefel JJ, Gageler J dissenting) delivered reasons on an appeal from the West Australian Court of Appeal, Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 ('EGC'). (Western Australia has been a significant litigation platform in respect of this debate!).

28 | Brief July 2015

In EGC four of the five justices reversed the WA Court of Appeal's unanimous interpretation of a supply clause in a take or pay gas contract.

The proper interpretation of cl 3.3(a) in that contract was at issue in EGC. It had provided that those sellers of gas 'must use reasonable endeavours' to make available additional quantities of gas.

The appeal is fascinating for the divergence in interpretive approaches as between the plurality, in contrast to that of Gageler J (and the WA Court of Appeal) over the question of the meaning of 'reasonable endeavours' used in a commercial context. The dispute arose out of the notorious (in this state) Varanus Island gas plant explosion of 3 June 2008, that led to widespread gas constraints in the state for some months after - followed, coincidentally, of course, by the October 2008 Global Financial Crisis.

But as regards the 'true rule' of construction, any significance in the plurality's observations in EGC arises out of phrases and footnotes, found largely in one or two sentences (perhaps unrecognised at the time) - all within paragraph [35] of the EGC reasons, under the heading: 'The Construction Issue'.

More precisely, two key phrases used by the plurality within the fourth line of par [35] in EGC look to have reignited a post Jireh debate over the 'true rule' and led eventually to a divide - as between Australian courts, over whether paragraph [35] of the EGC decision has delivered the result of actually ending the applicability of the true rule of construction in Australia or not?

In particular, the phrases 'as reaffirmed' and 'will require consideration', as used in [35] seem to have led to a strong divergence of views - with Western Australia, Victoria and Queensland supporting the status quo, but New South Wales and the Full Federal Court, seemingly aligned against that position.

It is necessary to set out paragraph [35] from EGC, noting but omitting footnotes 58 - 63, which appear at pages 656 - 657 of the (authorised) CLR report.

Paragraph [35] in EGC under the heading 'The Construction Issue' [35] said: Both Verve and the Sellers recognised that this court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have

understood those terms to mean58.

That approach is not unfamiliar59.

As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract60.

Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating"61.

As Arden LJ observed in Re Golden Key Ltd62, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties ... intended to produce a commercial result".

A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'63.

There appears to have been no debate at all, either before the Court of Appeal of Western Australia or, for that matter, to the High Court at the EGC v Woodside appeal, over the applicability of Sir Anthony Mason's formulation of the 'true rule' in Codelfa, or even about the published remarks in Western Export Services v Jireh made by the three members of the court (two of whom had since retired and Bell J not sitting on the EGC appeal). Some surrounding circumstances evidence appears to have been used, uncontroversially, in the overall interpretation exercise: see EGC par [48].

Bearing all that in mind, paragraph [35] of EGC (and its footnote 60) appears, given 'the force' of what was said in Jireh, to be a rather odd place to find what would be the resolution to a long‑standing Australian controversy.

But having said that, the underlying implied term or frustration of contract factual context that presented in Codelfa back in 1982 might also be thought as being a somewhat unorthodox place to find a 'true rule' of contractual construction articulated. It is necessary to look closely at para [35] of EGC in the quest for enlightenment as to the fate of the 'true rule'.

EGC par [35]: First sentence I humbly submit that there is nothing much new or controversial about common law courts applying an objective approach to the process of the generic interpretation of contracts generally. The parties in the EGC appeal had certainly proceeded uncontroversially from that base.

What is slightly interesting about the first sentence, however, is the first use in [35] of the word 'reaffirmed'. What might otherwise pass unnoticed is that the word 'reaffirmed' is then used again in this key paragraph subsequently, at towards the beginning of the fourth sentence in [35]. 'Reaffirmed' therefore presents as the chosen word of that day.

I also note that the word 'reaffirmed' was used by the plurality at para [40] of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.

EGC par [35]: Second sentence I now entering the narrower terrain of the approach to ascertaining the meaning as regards 'commercial contracts'.

I suggest that there again presents nothing controversial about what is to be seen under the second sentence by reference to applying the template of the understanding of a 'reasonable businessperson'. That gender neutral hypothecation is the very manifestation of using an objective, rather than a subjective approach to contractual interpretation.

It is slightly interesting, however, as regards the Australian decisions collected at footnote 58, that High Court decisions, Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451and IATA v Ansett Australia Holdings [2008] HCA 35; (2008) 233 CLR 279, had been identified in Jireh as two of the four High Court decisions which it had been said by the Jireh coram to have displayed nothing inconsistent 'read' in them, standing against Sir Anthony Mason's articulation of the true rule in Codelfa.

But, of course, it is not what had been written in those pre Jireh High Court appeals, about ambiguity, which was significant at the time. Rather, it was their complete omission to say anything at all about a 'true rule', the need to show any level of ambiguity in the text, or to satisfy a pre-requisite requirement to admit surrounding circumstances evidence.

The silence about these matters in a series of High Court appeals over more than a decade had, pre Jireh, been negatively influential.

EGC footnote 58's reference to an undoubtedly expansionary line of UK authority as promoted by Lord Hoffman provides more fertile ground for a rebellion: see Investors Compensation Scheme Ltd v West Bromwich Building Society [No 1] [1998] 1 WLR 896, at 912. That footnote reference, may be explicable, however, on the basis that the very passage referred to had earlier been approved pre Jireh by Gleeson CJ, Gummow and Hayne JJ in Maggbury Pty

Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181, 188 [11] in referring to the first of Lord Hoffmann's five principles. The first principle does not mention any need to lay a foundation of ambiguity in the text. But it is Lord Hoffmann's second principle, referring to the admission of 'absolutely anything' affecting the understanding of the language used by the parties which has generated most controversy.

Footnote 58's reference to Lord Bingham of Cornhill's observations in Homburgh Houtimport BV v Agrosin Pte Ltd (The Starsin) [2004] 1 AC 715, 737 [10] is, upon examination, a confined reference to one paragraph ([10]) from that decision, explaining that "a business sense will be given to business documents" (recalled as classically articulated by Lord Halsbury LC in Glynn v Margetson & Co [1893] AC 351 at 359).

Hence, it may be seen then that the first two sentences of par [35] in EGC could be assessed as relatively orthodox in their content, to that point.

EGC par [35]: Third sentence This short sentence reads: That approach is not unfamiliar. and then ending with footnote 59.

The 'approach' identified at this line is directed back in support of the well settled objective approach to the interpretation of commercial contracts - by reference to the position of a reasonable businessperson understanding the terms used.

Slightly curious, only perhaps to a grammatical pedant, is the plurality's use of a double negative 'not unfamiliar', rather than stating that the approach was 'familiar'.

Footnote 59 then proceeds to mention a 1895 UK Court of Appeal case authority, advocating a 'businesslike way' and a 'sensible' interpretation approach, Hydarnes Steamship Co v Indemnity Mutual Marine Assurance Co [1895] 1 QB 500, 504 (Lord Esher MR). Also noted is a 1920 decision of the High Court Bergl (Australia) Ltd v Moxon Lighterage Co Ltd (1920) 28 CLR 194, 199 (per Knox CJ, Isaacs and Gavan Duffy JJ).

These footnoted cases again present on analysis as entirely orthodox in their invocation.

On the other hand, footnote 59 displays a further and more general reference to Lord Bingham's 2008 article published in the Edinburgh Law Review (2008, vol 12, 374). The article presents as a very articulate rationalisation and defence of the expansionary contractual materials interpretation approach of Lord

Hoffmann from Investors Corporation Scheme Ltd v West Bromwich Building Society, and his so-called 'fundamental change' to interpretation explained there.

EGC par [35]: Fourth sentence The fourth sentence and its supposedly mandatory command has emerged as the most critical in the overall analysis since applied to [35]. It must be read, of course, with its concluding addition of footnote 60.

Here I note at the outset a second use (in par [35]) of the word 'reaffirmed'.

Presumably, this is in context of the intended affirmation of the earlier decisions of the High Court, now to be mentioned in footnote 60. Footnote 60 displays references again to Pacific Carriers v BNP Paribas at [22], Toll v Alphapharm per the plurality at [40], IATA v Ansett, per Gleeson CJ at [8] and the other members of the court at [53] and to Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 per Heydon and Crennan at [98].

Bearing in mind the antecedent history of the 2011 Jireh observations, it seems to be that beyond what is actually said, it is what this fourth sentence of EGC does not say that has since been viewed as potentially significant to the Codelfa 'true rule' issue - namely, it was not said here to be necessary, in order to have recourse to surrounding circumstances evidence known (then) to the parties, to first demonstrate some doubtfulness in the text, to thereby satisfy a Codelfa 'true rule' of contractual construction.

Elsewhere within this fourth sentence in para [35] it can be observed there is nothing much that is controversial about requiring a consideration of the language, i.e., the contractual text used by the parties. Indeed, it would be bizarre were the language of a written agreement not to be at the forefront of the whole exercise.

Nor is there anything novel or controversial about considering the 'commercial purpose' or 'objects' secured by the contract, being considered - after they have been objectively identified.

Hence, beyond the omission to mention the 'true rule', it is only really the two phrases in this sentence before mentioning the surrounding circumstances known to them, in the context of the preceding words 'it will require' and by reference to this principle being 'reaffirmed', that provides the express flashpoints for what has arisen later.

But on closer examination, two English authorities mentioned under footnote 29

60, namely Charter Reinsurance Co Ltd v Fagan [1997] AC 313, per Mance J at 326 and 350 (citing Sir Thomas Bingham MR, Steyn LJ and Hoffmann LJ as they were then, from an unreported 1993 Court of Appeal decision, Arbuthnott v Fagan (30 July 1993) and Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 [14]; (2012) 1 All ER 1137 at 1444, would present as difficult, particularly Fagan, to reconcile with a continued application in Australia of the 'true rule'.

EGC par [35]: Fifth sentence This sentence makes only an entirely orthodox reference to a need for an appreciation of the commercial purpose or objects - in entirely unremarkable fashion.

Likewise, following references to taking account of the genesis of the transaction, background, context and the market in which the parties are operating, are hardly novel. They actually echo the language and approved analysis of Sir Anthony Mason in Codelfa, following remarks of Lord Wilberforce in UK or Privy Council decisions. Interestingly, footnote 61 at the end of this sentence expressly refers to Codelfa Construction Pty Ltd v State Rail Authority of New South Wales, but only to the reasons of Sir Anthony at page 350, not the 'true rule' passages at page 352, which invoke Lord Wilberforce's observations from Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, 995 - 996. So Codelfa was certainly not overlooked in the overall para [35] EGC remarks.

EGC par [35]: Sixth sentence The sixth sentence concludes with a quote taken from Lady Justice Arden's observations in Re Golden Key Ltd [2009] EWCA 636 at [28]. She observed the task of a court interpreting a commercial contract on the basis of a businesslike interpretation was appropriate, unless a contrary intention was indicated. This was because of an assumption that 'the parties … intended to produce a commercial result'. None of that is novel.

EGC par [35]: Seventh sentence The concluding sentence to paragraph [35] ends by its reference in footnote 63 with an observation that 'a commercial contract is to be construed so as to avoid "making commercial nonsense or working commercial inconvenience".

Footnote 63 nominates in support of that proposition the High Court's earlier decisions in Zhu v Treasurer of New South Wales (2004) 218 CLR 530 at [82] and to an earlier decision of the High Court in 1983, Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1983] HCA 38; (1983) 30 | Brief July 2015

153 CLR 455, 464.

and the commercial purpose or objects.

Although the High Court in Woodside did not expressly identify a divergence of approach, Jireh was notoriously controversial in precisely this respect. In Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd (2013) 298 ALR 666; [2013] WASCA 66 at [107] McLure P referred to the 'heated controversy' created by Jireh; see further Kevin Lindgren's analysis in "The ambiguity of 'ambiguity' in the construction of contracts" (2014) 38 Aust Bar Rev 153, pp 161–7. It cannot be that the mandatory words 'will require consideration' used by four Justices of the High Court were chosen lightly, or should be "understood as being some incautious or inaccurate use of language": compare Fejo v Northern Territory (1998) 195 CLR 96; 156 ALR 721; [1998] HCA 58 at [45]. (my emphasis in bold)

Again, those footnoted references, upon review, present as entirely orthodox.

Conclusion: EGC par [35]: Overall perspective So it is that a line by line examination of para [35] of EGC, in a context where the High Court was assessing the proper meaning of words used in a commercial context, but where there was no dispute as between the protagonists at any curial level over the applicability of the 'true rule', that four judges of the High Court are said to have settled, effectively, a longstanding 'true rule' of construction controversy for Australia.

6 JUNE 2014: MAINTECK V STEIN HEUTEY SA: NSW COURT OF APPEAL: D-DAY FOR THE TRUE RULE? It is next necessary to examine the ground breaking 2014 observations in the New South Wales Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 310 ALR 113.

Leeming JA delivered the lead reasons of the New South Wales Court of Appeal, with Ward JA concurring and Emmett JA providing some brief additional reasons in support.

In Caratti Holdings Co Pty Ltd v Coventry Group Ltd [2014] WASC 403 (delivered 31 October 2014) I noted at para [54] the following key observations by Leeming JA in Mainteck, particularly paragraphs [71] and [86]. I said in Caratti: 54 There was no disagreement at the trial between the parties over the applicable principles of contractual construction. I was referred by counsel for Caratti, Mr Ryan SC, to Leeming JA's recent observations in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 310 ALR 113. I note the remarks especially at [71] and [86] by his Honour: [71] To the extent that what was said in Jireh supports a proposition that 'ambiguity' can be evaluated without regard to surrounding circumstances and commercial purpose or objects, it is clear that it is inconsistent with what was said in Woodside at [35].

The judgment confirms that not only will the language used 'require consideration' but so too will the surrounding circumstances

…

[86] Accordingly, I agree with Mainteck's submission that Woodside endorses and requires a contextual approach to the construction of commercial contracts. However, that falls far short from yielding success for Mainteck.

First, it is quite plain that whatever view be taken of 'ambiguity' and 'susceptible of more than one meaning', Art II.1 of the second consortial agreement answered that description. Both parties were agreed that 'technical specification' did not mean the technical specification in the main contract. On any view of the matter, a contextual approach is required. Although the primary judge referred to Jireh, it is quite plain that his Honour applied a contextual approach.

Indeed, his Honour expressly identified "the error on the part of the referee in my opinion is that he did not pay sufficient or indeed any regard to

the purpose and object of the transaction against the background of the knowledge of the parties": at [119]. That approach is unexceptionable, as is his Honour's criticism at [120] of the referee's "overly literal construction of Art II.1". Finally, nothing in Woodside or any other decision entitles Mainteck to success based on the scope meetings; this is addressed in more detail in section (h) below, after dealing with other aspects of the construction of the second consortial agreement.

As observed, the New South Wales Court of Appeal's reasons for decision in Mainteck were delivered on 6 June 2014.

Curial 'chatter' over the fate of the 'true rule' intensified dramatically from that date.

2 SEPTEMBER 2014: STRATTON FINANCE V WEBB At [55] of the reasons for decision I delivered in Caratti v Coventry, I mention a Full Federal Court of Australia decision, Stratton Finance Pty Ltd v Webb [2014] FCAFC 110 at [40]. Three members of the Federal Court took the opportunity in that appeal concerning an industrial agreement's meaning to expressly agree with what had been said by Leeming JA in Mainteck.

Allsop CJ, Siopis and Flick JJ said in Stratton:

Recently, in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 183, the New South Wales Court of Appeal (Leeming JA, with whom Ward JA and Emmett JA agreed) expressed the view (at [71]) that [35] of Woodside was inconsistent with Jireh. We agree with that conclusion, and with the reasons in elaboration at [72] - [86], and in particular with the comments concerning Codelfa at [78] - [80].

3 SEPTEMBER 2014: WESTERN AUSTRALIAN COURT OF APPEAL: TECHNOMIN V XSTRATA One day after the Stratton reasons were published, the Western Australian Court of Appeal (McLure P, Newnes and Murphy JJA) delivered its reasons in Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164, unanimously dismissing that appeal.

In Technomin, some surrounding circumstances evidence had been admitted by the primary judge, to advance an understanding of the disputed meaning of the undoubtedly ambiguous word 'tenements', used in a royalty agreement. The appeal was dismissed.

Concerning the 'true rule' issue, McLure P's reasons are found at between [35] and [44]. She said: However, in dismissing the special leave application in Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604, three members of the High Court (Gummow, Heydon & Bell JJ) said

that conclusion was inconsistent with binding authority. After referring to what was said by Mason J in Codelfa to be the 'true rule' as to the admission of evidence of surrounding circumstances, Gummow, Heydon and Bell JJ said: The position of Codelfa, as a binding authority, was made clear in the joint reasons of five justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council and it should not have been necessary to reiterate the point here [4].

The passage in Codelfa to which reference is made in Western Export Services is as follows: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning (352).

This court has taken the view that the guidance in Western Export Services should be followed until further direction from the High Court: McCourt v Cranston [2012] WASCA 60; MacKinlay v Derry Dew Pty Ltd [2014] WASCA 24; Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29.

The controversy has raised its head again. The appellant contends that 31

is manifest. Until the High Court expressly states its position on the subject, I propose to continue to apply the true rule as I explained in Hancock Prospecting at [9] and [74] - [81]. In that case the court concluded that the true rule permits regard to be had to some surrounding circumstances for construction purposes without having to satisfy the gateway requirement.

For clarity sake, what the President had earlier written at [81] in Hancock Prospecting was:

the 'true rule' in Codelfa is the law and, as the meaning of the language of the GPR Deed is unambiguously clear, evidence of surrounding circumstances is (subject to limited exceptions) inadmissible for construction purposes.

The respondents contend that the recent High Court decision in Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7 (EGC), has vindicated the pre-Western Export Services position adopted by those intermediate appellate courts that had abandoned the gateway requirement that the language of a contract had to be ambiguous or susceptible of more than one meaning before regard could be had to evidence of surrounding circumstances to assist in the construction of a contract. The construction issue was not raised by the EGC parties in this court.

Gummow and Heydon JJ had retired before the hearing of EGC and Bell J did not sit. Western Export Services and the response of intermediate appellate courts thereto were not directly addressed by the High Court in EGC. However, the respondent points to the approach taken in the majority judgment.

There can be no doubt that the majority in EGC took into account surrounding circumstances known to both parties in the construction of the gas supply agreement: [35], [48]. However, there is no express consideration by the 32 | Brief July 2015

majority of whether, or finding that, the language of the gas supply agreement was ambiguous or susceptible of more than one meaning.

The respondent also drew this court's attention to the reliance by the majority in EGC on [14] of the English decision in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, 2906 - 2907. That paragraph cites with approval Lord Hoffman's first principle in Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 which is in terms that: Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract (912).

Lord Hoffman's first principle is not consistent with the gateway requirement in Mason J's 'true rule' in Codelfa.

However, the appellant contends that the High Court would not impliedly repudiate the express repudiation in Western Export Services of the abandonment of the gateway requirement by some intermediate appellate courts.

At [45], the President concluded: The aridity of this debate at the intermediate appellate court level

However, in construing the 1984 agreement it is essential, even in the absence of ambiguity, to have regard to the provisions of the prior agreements expressly or impliedly referred to in the 1984 agreement.

That includes the 1983 agreement and the Rhodes Ridge Joint Venture and State Agreements forming part of the partnership property listed in the Schedules. The 1984 agreement is part of an inter-connected series of agreements which must be construed as a whole. They cannot, in my view, fall within Mason J's 'true rule' in Codelfa. That is consistent with the approach to contractual construction taken by the High Court in Gardiner … referring to Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 [32] - [36] and [38]. I have already mentioned earlier her Honour's observations in Hancock v Wright as to practical limitations flowing from applying the Codelfa true rule.

Her Honour also said in the Technomin appeal at [48]: Moreover, the gateway requirement can have no application to background facts forming part of the factual matrix that enlivens the issue of contractual construction for determination. I would put the history and location of the Xstrata tenements in that category.

In Technomin, Newnes JA agreed with McLure P [143].

Murphy JA reached the same construction conclusions in the appeal.

But given extensive arguments made over the true rule in Technomin (see [170]) his Honour delivered reasons that comprehensively analysed prior Australian and English case authority in the overall arena of contractual construction, including most of the cases mentioned in the EGC par [35] footnotes.

His Honour's reasons in Technomin present as a scholarly and

comprehensive analysis of contractual construction principles, not just upon this surrounding circumstances evidence topic, but as to the history of the parol evidence rule, bearing upon contractual construction principles generally.

In my reasons in Caratti, I referred to parts of Murphy JA's observations in Technomin v Xstrata concerning his Honour's obiter analysis of what had been said by Leeming JA in Mainteck v Stein Heurtey. I then wrote at [58]: I also note the observations by Murphy JA, commencing at [171] in Technomin, concerning the parol evidence rule and Codelfa, ultimately culminating in his Honour's observations at [215] - [216]. At [215] his Honour said: Also, the following observations might be made about the law post-Codelfa. First, the passage in Codelfa (352) does not appear to have been subject of express consideration in the High Court since Royal Botanic [39]. Secondly, it might be thought that the authorities up to the time of Electricity Generation are not necessarily inconsistent with a requirement of ambiguity. Thirdly, a case as significant as Codelfa in the operation of the commercial law in Australia for over 30 years is unlikely to have been impliedly overruled. Fourthly, in Electricity Generation, French CJ, Hayne, Crennan and Kiefel JJ 'reaffirmed' the High Court's earlier decisions. Electricity Generation does not appear to provide a departure from them.

Fifthly, the question of whether evidence of surrounding circumstances is inadmissible in the absence of ambiguity does not appear to have been canvassed in argument in Electricity Generation, nor isolated for determination.

There was an application for special leave in Technomin v Xstrata argued on Friday, 13 March 2015, that was refused.

11 SEPTEMBER 2014: MAINTECH REAFFIRMED: NEWEY V WESTPAC BANKING CORPORATION [2014] NSWCA 319 By this decision, a differently constituted (to the court in Mainteck) New South Wales Court of Appeal by Gleeson JA (Basten and Meagher JJA agreeing) said at [89]: As subsequently observed by Leeming JA (Ward and Emmett JA

agreeing) in Mainteck Services Pty Ltd v Heutey SA (Mainteck) [2014] NSWCA 184 at [71], Woodside endorses and requires a contextual approach to the construction of commercial contracts and 'ambiguity' is to be evaluated having regard to surrounding circumstances and commercial purposes or objects. To the extent that what was said in the reasons of three members of the High Court when refusing special leave in Western Export services Inc v Jireh International Pty Ltd (Jireh) [2011] HCA 45; 86 ALJR 1 supports the contrary proposition, Jireh should be regarded as inconsistent with what was said in Woodside at [35], for the reasons explained in Mainteck at [72] - [86]. See also Stratton Finance Pty Ltd v Webb Stratton Finance) [2014] FCAFC 110 at [41] where the Full Court of the Federal Court of Australia (Allsop FFJ, Siopis and Flick JJ) agreed with the conclusion in Mainteck and with the reasons given there in elaboration at [72] - [86].

Given those observations, a perceived cessation of the 'true rule' for New South Wales could hardly have been more clearly stated.

19 DECEMBER 2014: GLADSTONE AREA WATER BOARD & GLADSTONE REGIONAL COUNCIL V AJ LUCAS OPERATIONS PTY LTD Jackson J in the Queensland Supreme Court in Gladstone Area Water Board & Gladstone Regional Council v AJ Lucas Operations Pty Ltd [2014] QSC 311, delivered his reasons in this action on 19 December 2014.

Commencing at about para [153], Jackson J entered the Codelfa/Jireh debate, now referring to Mainteck, Stratton Finance and Technomin v Xstrata.

At [155] Jackson J mentions the observations in Mainteck concerning the significance of EGC v Woodside. I refer in particular to his remarks addressing Leeming JA's reasons from Mainteck commencing at [158] and following.

See also from the Queensland Court of Appeal Denham Bros Ltd v W Freestone Leasing Pty Ltd [2004] 1 Qd R 500 and Bass v Hamilton Island Enterprises Ltd [2010] 2 Qd R 115 [64].

In Gladstone Area Water Board Jackson J wrote at [163]:

doubt that Royal Botanic Gardens affirms that Codelfa must be followed until the High Court departs from or overrules it …

He concluded upon this issue at [168]: Accordingly, for present purposes, I proceed on the basis that I am bound by Mason J's statement of principle in Codelfa and not to follow Mainteck or cases which follow Mainteck to the extent of any inconsistency.

SUNDRIES There have been approving references to Mainteck Services Pty Ltd v Stein Heurtey SA in the New South Wales Court of Appeal's reasons on 16 September 2014 in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2014] NSWCA 323 at [38],

by Macfarlan JA (Meagher & Barrett JJA agreeing), in Wright v Lendlease Building Pty Ltd [2014] NSWCA 463 [41], delivered 23 December 2014, then in 2015 a brief consideration by Black J in Re Waterfront Investments Group Pty Ltd (in liquidation) [2015] NSWSC 18 [34], delivered 5 February 2015. See also the decision of Sackar J in Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWSC 155, delivered 6 March 2015, at [22] - [26].

Locally, on 25 February 2015, Le Miere J delivered his reasons in Terravision Pty Ltd v Black Box Control Pty Ltd [No 2] [2015] WASC 66. He referred to EGC v Woodside at [17] and to the 'true rule' from Codelfa at [18]. He said, after mentioning Codelfa at [18]: However, notwithstanding that the language of the contract is ambiguous or susceptible of more than one meaning there remain limits on the use of evidence of background or surrounding circumstances. The background cannot be used to introduce by a side wind evidence of the subjective intention of the parties, since that is contrary to the objective theory of the interpretation of contracts.

Le Miere J also referred neutrally to the observations of Leeming JA in Mainteck Services v Stein Heurtey at [25].

CODELFA AND THE TRUE RULE: 'THE WESTERN FORCE AWAKENS' The surrounding circumstances admissible evidence saga remains to be completed in Australia …

In my view, Codelfa has not been affected by Woodside on the question of the admissibility of extrinsic evidence. There can be no 33

lawyer on the street

Lawyer on the Street Adam Sharpe

Danielle de Roberto

Ahshiba Sultana

Since January 2013, I have been a barrister at Francis Burt Chambers. I started my legal career ten years earlier and have practised at the State Solicitor's Office, worked as a research officer and a judge's associate at the High Court of Australia, and completed a Master of Laws at Yale University.

I was admitted to practice in April 2012 and completed articles at a commercial law firm in the city, where I gained knowledge and experience in various commercial matters and received great supervision and mentoring. I furthered that knowledge and experience when I joined a boutique firm in Joondalup.

I am a lawyer at Ashurst and a member of the Human Rights and Social Justice Working Group (HRSJWG), which raises awareness of national and international human rights concerns.

I have always enjoyed advocacy and so the Bar is a logical place for me to practise law. Outside the courtroom, drafting opinions and written submissions make up a significant portion of a barrister's work.

These tasks demand rigorous legal analysis, which I find absorbing.

Francis Burt Chambers operates a pupillage scheme for junior practitioners. I was a pupil in my first year at chambers, which assisted me enormously with my transition to the Bar. Pupils are assigned a cell of senior barristers who mentor pupils and help them to develop their practice. Significant financial concessions are also given to pupils.

Practising as a barrister means giving up the benefits of salaried employment and for me meant leaving behind the camaraderie of the State Solicitor's Office. While practising as a barrister is more solitary, being solely responsible for your own practice gives you more autonomy, including greater control over your time, and although barristers practise independently, the Bar is highly collegiate.

Practice at the Bar can involve long hours and as it is a sedentary job, it is important to be physically active to maintain good health.

At the moment my principal exercise is running but the key is to choose an activity that you enjoy so that you will do it regularly.

In my experience, the work of a barrister is interesting and varied, and being a barrister is a satisfying and rewarding way to practise law. I would encourage junior practitioners to speak with barristers about this type of legal practice.

34 | Brief July 2015

In late November 2014 I opened my sole-practice, De Roberto Legal. I did so because I appreciate a challenge and am passionate about providing clients with a high level of service. I find that on my own, I am able to put that vision into practice. I believe it is important to do what you believe in.

For me, that is being able to make a positive difference in someone's life.

Setting up my own practice is one of the best choices I have made in my career. It is a huge step to take on my own, but I am fortunate to have had the love and support of my mother, my sisters and my husband. They made the transition into sole practice much easier. Building up a business from scratch is challenging. I had to make some temporary sacrifices (such as less shoe shopping!) in order to focus on the business; but it has paid off.

I have found growth in my career, learn new things and tackle new challenges every day. I am lucky to have close colleagues and friends who I can turn to for assistance.

I believe in balancing work and life.

This allows me to remain focused on my business and my passion for the profession. Outside of work, I am a singer and entertainer. I have been singing since I was about 12 years old and record original and cover songs.

I also perform around Perth with local band DAKOTA.

There is an impression that once a lawyer has decided to go down the corporate path, opportunities to become involved in work related to human rights are almost nil. My experience has taught me that this is not necessarily the case and that one can be interested in both corporate law and human rights/social justice issues. It's all about recognising your interests and also realising that it is possible to have a life outside of work.

As a lawyer at Ashurst, I have the opportunities to assist in pro bono matters and participate in pro bono secondments. This assistance goes towards helping disadvantaged and marginalised people within the community.

Since joining the HRSJWG in 2014, I have also assisted in the drafting of law reform submissions pertaining to various human rights issues in our society. This was an invaluable opportunity and has definitely enhanced my legal career by making me more aware of the issues we face and the areas we need to work in as a society.

Being involved in a working group such as the HRSJWG is also a great way of meeting other young lawyers. It is something that I would recommend to young lawyers.

pam sawyer

35

John Toohey AC QC â&#x20AC;&#x201C; Reminiscences from the Bar Chris Zelestis QC Barrister, Francis Burt Chambers

John Leslie Toohey joined the fledgling Bar in Perth, as only its tenth member, in December 1966. Other members of the day included the founders, Francis Burt QC and John Wickham QC. Toohey came to the Bar with considerable experience as an advocate. He had already appeared before the High Court of Australia, on his own, in Commissioner of Taxation v Finn (1961) 106 CLR 60 and also as junior to Ainslie QC, (interestingly, against Burt QC as well as GA Kennedy) in 2 related cases: Haque v Haque (1962) 108 CLR 230 and Haque v Haque (No 2) (1965) 114 CLR 98.

Toohey's practice at the Bar grew rapidly. He was appointed Queen's Counsel in 1968 at the age of 38 years.

After the departure of Burt QC and Wickham QC to the Supreme Court in 1969, Toohey QC quickly became the recognised leader of the Bar in Perth. He was President of the WA Bar Association from 1969 to 1972.

Toohey QC appeared in several appeals to the High Court, including in Bell Bros Pty Ltd v Shire of SerpentineJarrahdale (1969) 121 CLR 137, Godecke v Kirwan (1973) 129 CLR 629, Yager v The Queen (1977) 139 CLR 28 (with one RS French as one of his juniors) and in a succession of tax cases: Henderson v Federal Commissioner of Taxation (1971) 119 CLR 612, Robbins v Federal Commissioner of Taxation (1974) 129 CLR 332 and Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640. His appearances in the Supreme Court were too numerous to survey in this brief note.

Toohey QC was a formidable advocate, who had exceptional analytical skills which were complemented by precision of expression and a 'no nonsense' attitude. He always focused upon the real issues and he was always decisive in his views. His written work

36 | Brief July 2015

reflected these skills in a very distinctive way - his opinions were short and to the point, beginning with a statement of the issues, followed by a lucid and compelling analysis, propositional in style, reaching a definite conclusion. He had the rare skill of being able to reduce the most complex problem to its essential elements in very few steps and very few words.

He was encouraging of junior members of the Bar, albeit in his typically probing way. He would rarely provide a direct response to a junior's question, but would instead pose questions which were designed to expose the inevitable fallacies in the junior's reasoning and lead the junior to a sound analysis of the problem in question. Toohey was personable, generally quietly spoken and enjoyed the company of his colleagues in the legal profession.

In the early days of the Bar, the performance and conduct of all of its members were subjected to daily scrutiny in the common room, usually at lunch times. During the 1970s, this process was largely presided over by Toohey QC, who dispensed unassailable pronouncements in a quiet, unsparing, but witty, manner.

He had an acute ability to detect and expose errors, weaknesses, purposes and motivations, reducing everything to a simple, unanswerable proposition.

Junior members quickly learned that it was better to be present and face up to such appraisals, rather than risk being seen as lacking in courage.

One memorable occasion concerned a personal injuries silk, who had conducted a trial for a plaintiff, whose injuries required him to use a walking stick. The silk, who took considerable pride in his attention to detail, had

conferred with and called evidence from a purported expert, not only as to the cost of purchase and likely life of a walking stick, but also of the expected rate of wear of the rubber tips and of the number and cost of the tips likely to be required during the plaintiff's remaining life.

When news of this perspicasity reached the common room, Toohey QC delivered a typically softly stated, but withering rebuke of the silk, pointing out that the total cost of the rubber tips was measured in cents, not dollars, and that the honourable course for the silk to have taken would have been to have waived $1 of his fee, so as to more than cover the cost of rubber tips for the hapless plaintiff, instead of increasing the fee, quite disproportionately, in an endeavour to recover a tiny sum.

This was not the first time this silk had listened to Toohey QC in the common

room. He had learned that attempting to debate Toohey was rarely successful.

He simply continued looking down at his plate, slicing and eating his apple, albeit with a hint of a chastened smile on his face.

In fulfilling this role, Toohey was continuing one of the important traditions of the Bar, which is to encourage frank exchanges between its members about standards and dampen egos.

In 1973, Toohey QC took the unprecedented step of leaving his highly successful practice at the Bar, for the time being, to establish an office of the Aboriginal Legal Service in Port Hedland.

Toohey QC later returned to the Bar, where he remained until April 1977, when he was appointed the inaugural

Aboriginal Land Commissioner and a judge of the Federal Court of Australia.

In 1987, he was appointed to the High Court of Australia.

motive - was the offeror insinuating that Toohey was incapable of getting himself and his wife to and from the dinner?

Toohey QC's probing attitude remained evident long after his retirement from the law. It was exemplified in an encounter 3 years ago. A member of the Bar happened upon Toohey (who was by then using a walking stick, himself), his wife Loma, and his close friend Barry Rowland QC (formerly Rowland J of the WA Supreme Court) at a function. Knowing that all three had accepted invitations to attend the then forthcoming 50th anniversary dinner of Francis Burt Chambers, the member enquired whether they would like to have a chauffeur-driven car supplied to convey them to and from the dinner.

The offer of transport was eventually accepted, but only after Rowland intervened with a more objective observation â&#x20AC;&#x201C; regardless of the offeror's motive, the offer was too good to refuse.

John Toohey was one of the Bar's finest members and will be remembered, not only as an outstanding barrister and jurist, but also as someone who selflessly devoted enormous time and effort to assisting disadvantaged members of our society.

Toohey's immediate response to this offer was to question the offeror's

37

Whereâ&#x20AC;&#x2122;s Benjamin?

The mysterious case of a missing beneficiary Clare Thompson Barrister, Francis Burt Chambers

The executor of an estate has a difficult job, requiring her to call in the assets of the deceased, distribute them in accordance with the will and wind up the estate.

Frequently, issues arise as to the meaning of particular clauses in a will which may require the Supreme Court to provide directions to executors or to pronounce upon the meaning of a clause. Less commonly, an executor is confronted with a situation where a beneficiary is unable to be located. In 38 | Brief July 2015

that situation the Supreme Court may give directions to the executor as to how to distribute the estate in the absence of a beneficiary, effectively removing the liability of the executor if the missing beneficiary is to later emerge.

Anecdotally, it appears that when a beneficiary is known to have been missing for seven years, executors will seek orders declaring that the person is deceased; that jurisdiction, however, doesn't suit all purposes and may require the other beneficiaries to wait

a considerable period of time before the estate can be finally distributed.

Consequently it is not a suitable basis for orders when there is either no certainty of death or when death is merely one of a number of equally open possibilities.

One suspects that with increased travel across international boarders and changes in family relationships that have been the hallmark of late 20th and early 21st Century social change, beneficiaries who are missing but not able to be presumed dead will become a more common challenge faced by an executor.

Re Benjamin; Neville v Benjamin [1902] 1 CH 723, in which Justice Joyce made the following declaration: In the absence of any evidence that the said PD Benjamin survived the testator, let the trustees of the testator's will be at liberty to divide the share of the testator's estate devised and bequeathed in favour of the said PD Benjamin, his wife and children, upon the footing that PD Benjamin was unmarried and did not survive the testator.

In Western Australia, the Supreme Court has both equitable and statutory jurisdiction to make orders enabling an executor to distribute an estate despite a known beneficiary being missing.

Somewhat surprisingly, however, the power appears to have been rarely used, with only five written decisions available which are founded on the statutory power in over 50 years of operation, and only two cases seemingly dependent on the equitable jurisdiction in the 113 years since the jurisdiction was formally recognised. Each of these decisions, like many aspects of the law, tells us a great deal about the historical context of the times in which the cases emerged, and each serves as a reminder, if one is needed, of the impact of the legal system on the lives of everyday people.

Since at least 1902, the English Court of Chancery has regarded itself as having jurisdiction to provide directions to executors in the distribution of estates in circumstances where a beneficiary is missing. The leading case in the area is

The circumstances were that PD Benjamin, having run into trouble with his employer by reason of defaults in his employer's accounts, disappeared in the early 1890s at the age of 24, whilst unmarried. His disappearance had immediately followed him receiving a message from his employer, recalling him to London from the Continent where he had apparently absconded to, so there is a degree of mystery surrounding the disappearance. Not long after, his father changed his will to provide a specific bequest of ÂŁ30,000 to his son. Upon the father's death in 1893, his executor was unable to locate the son, despite extensive advertising throughout the world. The executor sought instructions on how to distribute the estate in circumstances where the son was unable to be located. The court initially directed an enquiry be conducted by the Master as to whether PD Benjamin remained alive. The Master, having conducted the enquiry, stated that he was unable to certify whether PD Benjamin was living or dead, nor if dead when he died. However, he could certify that PD Benjamin was not married and that no person claiming to be his wife or child had appeared.

This led the executor to seek orders for distribution of the estate on the footing that PD Benjamin had predeceased his father.

This appears to be the first occasion on which a court was asked for orders of this type. The various authorities referred to in the reported decision deal with the issue of whether or not the presumption of death could arise and there is no authority citied in the decision which is directly on the question of whether the court in its equitable jurisdiction had made a similar order previously. Justice Joyce was prepared in the circumstances to make the declaration sought by the executor in the absence of proof of death. The decision left open the possibility that the son might reappear and make a claim, however it made clear that the executor was free from liability.

Importantly, the declaration did not remove the ability of the lost beneficiary to trace the proceeds of the bequest into the hands of the other beneficiaries.

So, a Benjamin order will inoculate the executor, but not the residual beneficiaries.

In 1962 the principle in Re Benjamin was embodied in section 66 Trustees Act, which section has remained unchanged since its original enactment over 50 years ago, but, despite the provision's longevity, has produced very little by way of case law.

HISTORY OF THE TRUSTEES ACT The history of the introduction of the landmark Trustees Act 1962, bears consideration both for its impact on the law of trusts in this state and also because of the extraordinary circumstances which led to its enactment.

The Trustees Act was part of a package of eight bills introduced into State Parliament in 1962 designed to make extensive reform to the law of trusts in Western Australia1. It came about following a report of the Law Reform Committee of the Law Society2 published in 1961, during the presidency of the later Chief Justice and Governor, Sir Francis Burt3. The bills formed an integrated package representing a substantial law reform proposal, which was adopted by Parliament in a bipartisan manner.

That Committee's report recommended wide-ranging changes to the legislation governing trusts and provided draft bills for Parliament to consider, including a clause by clause analysis of the proposed provisions, much like a present day explanatory memorandum.

The report didn't pull its punches, saying4: In particular, we consider that the Trustees Act 1900 is a defective instrument ... It was based largely on the English Trustee Act of 1893 which was itself unhappily drafted and, as shown by the English Trustee Act of 1925, ill-suited to 20th Century conditions. Legislation which is based on notions of property current in late 19th Century England is barely suitable as a reasonable and practical system for Australia in the second half of the 20th Century. Furthermore, a study of the trustee legislation of other jurisdictions leads to the conclusion that there are very many gaps in the Western Australian Act. The objectives of the proposed reforms are familiar: â&#x20AC;˘

bringing together the legislation governing trustees into the one Act;

â&#x20AC;˘

holding a reasonable balance between the sometimes competing 39

interests of the settlor or testator, the trustee and the beneficiary; •

ensuring that the legitimate intentions of testators are not frustrated by technicalities in the law;

•

bringing the law up to date;

•

simplifying the drafting of wills by including certain provisions of general application in the trustees legislation; and

•

reducing the expense of administration of trusts by permitting trustees to exercise their powers, as far as practicable, without the need to refer to the courts at a preliminary stage.

Section 66, in Part VI of the Trustees Act was drafted against the background of some specific objectives of the Committee5: to return to a doctrine of strict liability of trustees6 subject to various powers in the court to protect trustees in certain transactions and where necessary to relieve them of liability which they would otherwise have incurred7.

The report explained the practice of making Benjamin orders in the following terms: It has traditionally been the rule of the Chancery Court and therefore of other courts exercising equity jurisdiction to protect a trustee who acted reasonably and honestly, and in particular to assist him to make as early a distribution of the estate as possible by permitting him, after suitable notice, to distribute all the assets in his hands and protecting him against claims of which he had no notice at the time of distribution.

This protection enables the trustee to administer the estate without reserving any fund to meet possible future claims. However, at the same time the court has preserved the right of the future claimants to follow the assets of the estate into the hands of those among whom they were distributed. Protection for the trustee does not necessarily destroy the rights of the claimants8.

The report described its proposed "new procedure" based on the New Zealand legislation9. Furthermore, it said that the basis of the provision was the court's practice in making a Benjamin order, but the enactment was designed to "clarify and to extend this procedure by conferring a new statutory jurisdiction upon the court, although without abolishing the Benjamin procedure."

Interestingly, there appears to be no 40 | Brief July 2015

reported or unreported decision in WA which refers to or relies on Re Benjamin in the period prior to the enactment of the Trustees Act 1962. Presumably that is to do with the more limited production of written reasons in the pre-word processing era, rather than any lack of utilisation of the jurisdiction by the Supreme Court. Certainly the tone of the Committee's Report suggests that lawyers were familiar with Re Benjamin and with the difficulties facing executors in the event of a missing beneficiary.

THE MODERN PRACTICE A survey of the cases in the area provides a window on the history of the 20th Century as, with all cases concerning personal matters, we learn something of the lives of the individuals in the litigation.

The leading case following from Re Benjamin is a good example.

Re Green's Will Trusts [1985] 3 All ER 445, concerns the devastating effects of the disappearance of a 21 year old son in January 1943, when he had embarked upon a bombing mission to Berlin but, along with six contemporaries on the plane, was never heard of again.

Despite what must be regarded as overwhelming inferences, his mother continued to believe until her death that her son had survived and consequently her will provided that her estate was to be held on trust until 2020, at which time he would have been 98 years of age, so that he could come home and claim his inheritance; failing which the funds were to be used to establish a charitable trust for animals. In a very sensitive judgment, Justice Nourse described the position as follows: I consider it virtually certain that Barry Green died on the night of 17-18 January 1943, the conclusive factor being that nothing has ever been seen or heard of any of the seven members of the crew. The inference that the Halifax crashed or was shot down and that all its crew perished is irresistible. Had it not been for the marvellous and enduring faith of Mrs Green, nobody could ever have doubted it. I do not think it would be right to incur the expense or additional delay of a formal enquiry of the court. I can only arrive at the conclusion that Barry Green must be presumed to have died on the night of 17-18 January 1943. ... I now turn to the submission ... that Mrs Green deliberately kept open the possibility of her son's coming to light before 2020 and that she did not intend the charity could take before then merely on a presumption of his death. It will be

clear from the views which I have already expressed that I accept that submission is truly representative of Mrs Green's intention. I do not, however, accept it as being a determinative of what the court ought to do. I can see that there is emotional force in the submission, but I do not think it withstands the test of rational analysis.

An important difference between Re Green's Will Trusts and Re Benjamin was the court's preparedness to make the declaration sought without ordering an enquiry, which it regarded as expensive and unnecessarily time consuming in the circumstances. There was a contradictor in Re Green's Will Trusts, who proposed the enquiry, which appears to have been the usual practice at that time. The local practice is for the legal advisors to conduct enquiries prior to making the application, but with the discretion remaining in the court to order further enquires be made.

In Re Green's Will Trusts the court made a declaration that the executor be at liberty to administer the estate on the footing that the son had predeceased his mother as a bachelor so the trust that was to be created upon her son not reappearing by 2020 was created in 1985, rather than waiting a further 35 years until 2020.

Most significantly, Re Green's Will Trusts is authority for the proposition that the jurisdiction to make a Benjamin order is not founded on proof that the beneficiary has died, but rather on the basis of the "practical probabilities of the facts as known to the court at the time of making the order". This recognises that there can be more than one circumstance in which a beneficiary is missing and cannot be located; death is merely one of them.

Moreover, it should be remembered that the order is not a positive declaration of rights and it may be made in the court's discretion regardless of the fact that there is some uncertainty, relevant to the distribution, about the existence of one of the beneficiaries: Re Application of NSW Trustee & Guardian [2014] NSWSC 1857.

Therefore, whilst it may sometimes be necessary for a declaration of death, e.g.

Lashko v Lashko [2011] WASC 214, that may not be possible or appropriate in all cases, particularly if there is insufficient information to point to death as the most likely possibility: Bickford v Benson [2015] WASC 161.

In Nolan v Nolan [2011] WASC 224, the Supreme Court was asked to make an order under section 66 Trustees Act in relation to the estate of a woman who migrated to Perth as part of the great

waves of migrants in the 1960s, but left behind in England an adult daughter.

Over the years, mother and daughter lost touch and by the time the mother died in 2008, no contact had been had with the English daughter for many years. Mrs Nolan died intestate so that her estate was administered under the Administration Act, which made it necessary to identify and locate all those within the class of beneficiaries in section 14 of that Act. The administrator of the estate, Mrs Nolan's Australianborn daughter, had attempted but failed to locate her half-sister, whom she had never met, in 1998. Further enquiries were made during the administration, some on the order of the court, but the English daughter could not be located and ultimately leave was granted to distribute the estate as if the eldest daughter had predeceased her mother and left no children. Importantly, this was not a declaration of death, but a grant of leave, so that the administrator, (the Australian sister) had the benefit of section 66, albeit there remains a risk to the beneficiaries who inherited proportionally the eldest sister's share of the estate.

The written reasons in Nolan are particularly helpful in setting out the genesis and history of the equitable jurisdiction and in giving clear guidance to executors as to what they are required to do in order to have the court exercise its discretion to make the declaration. As Nolan makes clear, the court's discretion will extend not only to the making of the orders, but to their precise form and the need for and content of any directions to be given in relation to the inquiries that a trustee must undertake prior to final orders being made, the types of advertisements that ought to be used and other similarly practical matters.

As is seen from Nolan, Benjamin orders and section 66 Trustees Act can be of assistance to administrators in cases of intestacy, even if the members of the class of beneficiaries is not fully known.

In that situation the administrator may be seeking to prove a negative proposition; that the deceased died with no or no other beneficiary: Re Application of NSW Trustee & Guardian [2014] NSWSC 1857.

The most recent case, Bickford v Benson [2015] WASC 161 is different from most others in that the beneficiary was missing and she was largely unknown and could not be properly or precisely identified. By contrast, the cases typically involve a beneficiary who is a relative of the deceased, so there is generally a reasonable amount known about them, including their age, lifestyle, occupation, marital status and perhaps something

of the circumstances in which they disappeared: see for example the cases mentioned above and Ex parte Jenkins (2008) 1 ASTLR 406; [2008] WASC 49.

In Bickford the only information the executor had regarding the missing beneficiary, a Caroline Jones, was that she was thought to have worked at St John Ambulance in Albany at some point, probably prior to the execution of the will in 2003. Ms Jones could not be found despite several advertisements made, both in the section 63 format and which specifically named her as someone with a claim on the estate. Searches were made at Landgate, the electoral roll, the

which provides a six year limitation period for most causes of action accruing after 15 November 2005, or possibly longer if the bequest was for land: section 19.

What is the accrual date of the cause of action for any particular situation is very fact-dependent, but having the court publish reasons upon its disposition of the application under section 66 may serve to assist a defendant in defeating a claim that is brought more than six years after the distribution actually took place. Whether that proposition proves correct will have to be seen in the future, although given the dearth of decisions regarding missing beneficiaries, it may be a long wait.

"When a Benjamin order is made, the executor is empowered to distribute the estate in a way that ignores the missing beneficiary... The order operates to protect the executor, but it does not protect the beneficiaries from an action in equity seeking to trace the bequest." register of deaths and the White Pages were examined and information was sought from St John Ambulance and the remaining beneficiaries. The solicitor who drafted the will had died and the practice which had taken over his practice had no file which might have had a file note with some information about her. There were, therefore, a number of possibilities: death, moving away, temporary or permanent absence from WA, lack of capacity, name change, incorrect name in the will and so on. In this case the "practical probabilities of the facts as known to the court at the time of making the order" did not favour one or other of these probabilities, but that did not prevent making an order under section 6610.

NOTES

1.

The others were: Married Women's Property Act Amendment Bill, Administration Act Amendment Bill, Testator's Family Maintenance Act Amendment Bill, Charitable Trusts Bill, Law Reform (Property Perpetuities and Succession) Bill, Adoption of Children Act Amendment Bill and Simultaneous Deaths Act Amendment Bill. These were all consequential on the Trustees Bill.

2.

The committee was established by the Society in 1960, and comprised leading men in the profession in this state at that time: JM Lavan, PR Adams, DE Allan, TAS Davey, IG Medcalf, JL Toohey and GD Wright, along with co-opted members DG Sander and JH Wheatley. My enquiries have led me to only two copies of the report, one at the UWA Law School library and the other at the AttorneyGeneral's library. Significantly, the report was apparently not tabled in Parliament: see Hansard 1962 p. 1557, and is not held in the Supreme Court Library. A flood in the early 1990s destroyed some of the Law Society's records and no copy of the report is held there. The copy of the report I was able to access did not have the text of the draft bills annexed.

3.

'Red' Burt is the name by which he was widely known prior to being knighted and is why the room at the Society's premises bearing his name is called the Red Burt room.

4.

Par 10.

5.

This part of the Act did not attract any debate or comment in the Parliament with the sections being passed en block.

6.

Which had been removed by section 12 of the 1900 Act and which the Committee believed was out of step with all other jurisdictions.

7.

Page 60.

8.

Pages 60 - 61.

9.

The report at pages 68-71 discusses the proposed section 66 in detail and draws on the paper

by GP Barton, "The Ascertainment of Missing Beneficiaries: The New Zealand Experience" 5 UWA Annual Law Review 257.

10.

It should be noted that the size of the bequest was very small in comparison to the estate, a factor which the Judge took into consideration in exercising her discretion.

LIMITATION ISSUES When a Benjamin order is made, the executor is empowered to distribute the estate in a way that ignores the missing beneficiary, so that the missing beneficiary's share is generally distributed as part of the residue. The order operates to protect the executor, but it does not protect the beneficiaries from an action in equity seeking to trace the bequest.

Prior to November 2005, an action seeking to trace the proceeds would have had no limitation period, meaning the recipients of the estate were at risk of a tracing action for the rest of their lives. That position has changed with the introduction of the Limitation Act 2005,

41

book review

Book Review Ong on Subrogation by Professor Denis SK Ong Review by Robert French Subrogation is an important equitable doctrine originally derived by English Courts from Roman law1. In certain circumstances it enables a third party, who has extinguished the obligation of another (obligor), to be substituted to the rights remedies and securities of the obligor.

Chapter 3 examines, in depth, the situations in which an insurer's right of subrogation arises and will be relevant to students and practitioners in insurance law. An up to date coverage and analysis of the principal cases in England and Australia from the 17th Century to the present day is included.

The doctrine of subrogation is still highly relevant today in the fields of insurance law, estate administration, trust law, and in disputes involving the payment out of prior securities to sureties.

Scenarios where the right of subrogation vests in a person who discharges a third party's debt to a secured creditor is considered in Chapter 4. Professor Ong analyses the key authorities and clarifies the "conceptually recondite reasoning" in Banque Financiere de la Cite v Parc (Battersea) Ltd5. He identifies Lord Hoffman's "radical declaration" that the equitable doctrine of subrogation forms "part of the law of restitution" and contrasts it with the approach of the High Court of Australia in Bofinger v Kingsway Group Ltd6 ("Bofinger").

The topic of subrogation is typically included as a chapter in insurance law or equity texts. There are few standalone texts on the subject2. Published by Federation Press in late 2014, Ong on Subrogation, is the first Australian text concerned solely with subrogation.

As stated in the opening chapter, the "situations founding subrogation are not amenable to exhaustive categorisation"3.

However the text examines the "familiar nominate categories of subrogation"4.

Chapter 1 explains what subrogation is and distinguishes it from assignment. The right of subrogation to the trustee's right of indemnity, is considered in Chapter 2.

The basic principles recounted in these opening chapters will be relevant to all practitioners and students.

Professor Ong's concise recitation of the facts and clear analysis of the reasoning in Bofinger will be a useful aid to Australian practitioners re-familiarising (or familiarising) themselves with this important case.

Chapter 5 examines the subrogation rights of purported lenders in the context of ultra vires borrowings used to discharge intra vires debts. Finally scenarios where a third party cannot

be subrogated to the right of the payee against the debtor are dealt with in Chapter 6.

Throughout the text, the author's calculated but frequent use of italicisation to emphasise key principles expedites the reader's grasp of these principles.

This stylistic choice no doubt reflects the author's experience as a teacher and academic.

Professor Ong, in the preface to his new text, identifies subrogation as a "tumultuous doctrine"7. His new text Ong on Subrogation, comprehensively, yet succinctly, elucidates the key principles within the tumult. As such it will be a useful tool and reference, for academics, students and practitioners alike.

NOTES

1.

John Edwards & Co v Motor Union Insurance Co Ltd [1922] 2 KB 249 at 252 as cited in Meagher, Gummow & Lehane, Equity Doctrine & Remedies (5th Ed), at [9-005].

2.

Although Rory Derham's, Subrogation in Insurance Law was published by the Law Book Company Limited in 1985 and is still used by insurance practitioners today. Subrogation Law and Practice

by Charles Mitchell and Stephen Watterson , published by Oxford University press in 2007, is a comprehensive English text that considers the application of subrogation to a variety of fields.

3.

Denis Sk Ong, Ong on Subrogation, Federation Press, 2014, p 9.

4.

ibid.

5.

[1999] 1 AC 221.

6.

(2009) 239 CLR 269.

7.

Denis Sk Ong, Ong on Subrogation, Federation Press, 2014, p 9.

ONLINE LEARNING FOR THE LEGAL PROFESSION elearning.lawsocietywa.asn.au

42 | Brief July 2015

book review

Book Review Presumed Guilty by Bret Christian Review by the Hon Peter Dowding SC Concerns about the integrity of the legal system and the performance of the police are never far from the mind of criminal lawyers (and judges).

Recent publicity will have disturbed every reader about a woman in America who served 25 years in prison for the murder of her four year old son, until her conviction was shown to have been obtained unsafely, based on the sole evidence of an alleged confession to a detective who had a history of falsely giving evidence.

We have abolished the death penaltyrecently (only New South Wales post dated our repeal). In 1984 the legislation was vigorously pushed by the new Labor Government and narrowly passed by 24 votes to 20, with the conservative parties opposing it. At the same time the law which provided for the public execution of Aboriginal capital offenders(!), was also finally repealed.

Not many people were agitating for abolition at the time of Eric Edgar Cooke's hanging in 1964. They were voices in a wilderness and derided by the majority relieved that such a wicked and callous killer was to be executed.

In a recently published book, journalist and media owner Bret Christian argues that Cooke's execution actually caused a massive injustice to two other men wrongly charged and convicted of murders in Perth that neither had committed.

In his book Presumed Guilty Bret Christian has patiently unravelled the lies and corruption that pervaded the investigation of murders of two women whose lives were actually ended by Cooke but which led to the charging and conviction of each of John Button and Darryl Beamish.

Whilst each man avoided paying the ultimate penalty they served years of imprisonment. 40 years later each was exonerated by the same judicial process that had convicted them.

The unravelling of a truly appalling tale of police and judicial incompetence is handled deftly by the author whose own role in funding some of the forensic experts reveal that his own commitment to truth and justice was not restricted to writing about it but he had put his "money where his mouth was".

The book is a gripping account of the 'baddies' as well as the 'goodies', and the latter include the lawyers who gave their time free (pro bono) to assist Beamish and Button to achieve their acquittals.

If anyone had any residual belief in the appropriateness of the death penalty this highly readable account of over 20 years of shameful legal process will dispel it.

Christian focuses not only on the (appalling) attitude of judges at the time when dealing with the cases, but introduces some very interesting and

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thoughtful material about the way in which false confessions may be obtained or given, and the way in which witnesses perceptions of what they believe they saw, may be coloured by other factors.

There is also a real warning for 'experts', and judges, that even in the era of highly sophisticated forensic science, the conclusions based on that evidence may be false or misleading.

The book should be mandatory reading by lawyers, judges, juries and, importantly the police responsible for investigating crimes.

The performance of some of the police involved in these investigations will send shivers down the spine of the most law abiding citizens.

It is a pity that some politicians, particularly those opining about mandatory penalties and the like, are blissfully unaware of the issues raised in this highly readable book.

And to give the book an additional relevance, Christian has examined some of the issues in the context of the Rayney investigation.

This is fascinating reading and a project for which we should be deeply appreciative to Bret Christian.

Bret Christian. Presumed Guilty: When cops get it wrong and courts seal the deal.

Published by Hardie Grant Books.

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43

case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – 'Clever' husband's financial contributions in big money case reduced from 60 to 50 percent In Fields & Smith [2015] FamCAFC 57 (17 April 2015) the Full Court (Bryant CJ, May and Ainslie-Wallace JJ) allowed the wife's appeal against Murphy J's property order (Smith & Fields [2012] FamCA 510).

The parties' 29 year marriage produced three children and assets of $32-39 million comprising the parties' shareholding in their "very successful construction business" and $10m home. Murphy J ([75]) assessed contributions as 60/40 in the husband's favour, finding that the husband had made "a greater contribution ... to the business ... by reference to ... the stewardship of the company including the plainly clever strategies and planning that have given it such success", also considering as to the wife's parenting contributions ([73]) that "the parties' children ha[d] been adults for the whole of the [four year] post-separation".

Bryant CJ and Ainslie-Wallace J delivered joint reasons while May J agreed but delivered separate reasons. Bryant CJ and Ainslie-Wallace J said ([42]-[43]) that "his Honour rejected an argument that there was a particular type of contribution that related to 'special skills' or 'special talents'" which "can fairly said to be settled [law]" (Kane [2013] FamCAFC 205, Hoffman [2014] FamCAFC 92) which also holds that "the contributions made by the parties must be evaluated in the context of the facts particular to [each] case".

The majority agreed ([73]) with the wife's counsel that Murphy J's conclusion that the husband's contributions were greater "appear[ed] in conflict with [his] earlier statement that he did 'not consider one [party's contributions] to be more or less 'valuable' than the other'", counsel ([95]) also citing Bulleen [2010] FamCA 187 where Cronin J said that "once children become adults the ongoing role" of parent "and later grandparent is no less an on-going contribution ... to the welfare of the family", a contribution the majority [97] said was "something more than a contribution [as] homemaker and/or parent". The majority added ([96]) "that the wife continued her role as a director and a shareholder of the company and continued to make a contribution, even if she was not personally able to do so in the operation of the business".

44 | Brief July 2015

The court also held ([114]-[120]) that the trial judge's apparent reliance on a table of "big money" cases where the wife's entitlement was not held to exceed 40 percent was in error. In re-exercising discretion, the Full Court ([189]) found, "as the trial judge also found, [that] the nature and form of [the parties'] partnership was that of a 'practical union of lives and property' [which] leads us to conclude that the contributions made by the parties should be treated as equal". The wife's appeal was allowed with costs.

Children – Parents had reconciled – Application by former "de facto father" summarily dismissed In Grimshaw & Thanh & Anor [2014] FCCA 2614 (14 November 2014) Judge Kemp heard an application by a former de facto partner to spend time with an 8 year old boy whose parents had reconciled. They argued that he lacked standing under s65C and that his application should be summarily dismissed. The applicant began a relationship with the mother when the child was 19 months which ended when the child was 3. The child's parents subsequently reconciled ([12]). The applicant alleged that the child called him "Uncle Mr Grimshaw" and 'dad' and had asked him to "be his dad and has asked about him and whether he [was] going to see him again" ([14]). The applicant called himself the child's "de facto father" ([76]). The court ([29]) was "satisfied that the applicant should be viewed as a ... person concerned with the care, welfare or development of the child [s65C]".

The court, however, accepted the submission of the parents' counsel ([42]) that "where the parties were in an intact marriage, it would only be in extreme circumstances where there was an obvious risk to the child that the court would intervene and order the involvement of a third party in the child's life, against the express wishes of the child's parents", citing ([47]) Church & Overton & Anor [2008] FamCA 953. The court added ([76]) that "for the applicant to continue to assert that he is the child's 'de facto father' ... suggests a lack of insight [by] the applicant in failing to understand how the child may be potentially confused and conflicted by [his] maintaining that he is a 'father' of the child, when the child lives with his biological mother and father as an intact family unit". The application was summarily dismissed.

Property – Section 79A – Trust interest ("$ not known") netted wife $1 million – Husband failed to pursue inquiries In Milford [2015] FCCA 344 (27 February 2015) Judge Jones heard the husband's application under s79A(1)(a) FLA that a 2009 consent order be set aside for a miscarriage of justice by reason of suppression of evidence by the wife as to her interest in a family trust. She had given its value as "$ not known" in an Application for Consent Orders where the parties' assets were to be divided equally. Eighteen months after the consent order was made the trust vested early by arrangement with other beneficiaries whereupon the wife received $1 million ([17]). The husband's solicitor wrote to the wife's solicitor saying "[t]he fact that our client may not be pursuing a claim on the [C] Family Trust does not in any way mean your client is relieved from her obligation to disclose her interest in that Trust. However we do not wish to engage in any protracted debate on this matter, as our client is concerned at the time it has taken to finalise settlement". ([19]). The court said ([79]) that during negotiations of the property settlement "the applicant was aware in late 2005 that [another beneficiary] Ms K had transferred her shares ... for consideration ... in the order of $200,000, $400,000 up to $500,000; ... that the Trust, if it was sold, was worth millions ... and that the [wife's] share would be 25 percent, conservatively $500,000". The court dismissed the application, saying ([83]-[84]): In these circumstances, I am not confident that the respondent's failure to fully disclose [the history of share transfers] constitutes 'suppression of evidence' within the meaning of s79A(1) (a) of the Act. Even if I did find that [she] had suppressed [that] evidence and her knowledge of the consideration that may have been paid, I am not satisfied ... that there has been a miscarriage of justice within the meaning of [the section].

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

Industrial law

Industrial law

Contract

Penalties – effect of 'agreed' penalties in the court

Past convictions

Banking – whether bank fees are penalties In Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 (8 April 2015) a Full Court considered whether bank fees were a genuine preestimate of loss to the bank on default by the customer or unjust, unconscionable and unlawful.

In Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59 (1 May 2015) a Full Court considered what use can be made of agreed submissions as to penalty after the decision in Barbero Q (2014) 305 ALR 323.

In Maritime Union of Australia v Fair Work Commission [2015] FCAFA 56 (29 April 2015) a Full Court considered how previous convictions for industrial offences are to be considered under ss513(1)(b),(d) and s515 of the Fair Work Act 2009 (Cth) in an application by a union official for an "entry permit" permitting access to worksites.

Consideration of power to impose conditions.

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

Young Lawyers Case Notes – compiled by volunteers coordinated by the Young Lawyers Committee Strzelecki Holdings Pty Ltd v Clark [2014] WADC 153 Application to set aside default judgment regularly entered This case concerned an appeal against an order setting aside a judgment in default which had been entered in favour of the appellant and giving the respondent leave to defend the appellant's claim. At [23], Scott DCJ cited with approval the relevant test of whether or not to set aside a judgment which was set out by Master Sanderson in Vautier Holdings Pty Ltd v Kagioulis Trading.1 Relevantly, this test is similar to the test applied on summary judgment: (1) The decision whether or not to set aside the judgment must have as its paramount consideration the interests of justice. It is an essential principle of civil ligation that a party should be entitled to put their case to the court.

(2) Simply because a judgment is regular does not provide grounds for refusing to set it aside. What is

important is the merits of the defence raised by the party against whom judgment is entered.

if the matter was argued on its merits, the defendant would have a real prospect of success".2

...

Arguably there is no substantive difference between the tests. A "real prospect of success", demonstrated by evidence supporting a not inherently incredible defence such that setting aside judgment is not futile, may be equated with the existence of a "serious question to be tried".

(4) The test to be applied in determining whether the judgment should be set aside is similar to the test applied on summary judgment.

The defendant must establish there is a serious question to be tried.

(5) A defendant who seeks to have a judgment set aside should 'condescend upon particulars' of the defence. In other words, on an application to set aside a default judgment a defendant ought provide the same level of detail as would be provided if the defendant was responding to an application for summary judgment by the plaintiff.

(Emphasis added.)

Those principles may be compared with the familiar inquiry in setting aside default judgment which asks if there is a "credible defence demonstrating that ...

As noted in Vautier3, a unified test offers logical consistency, there being no point in setting aside default judgment in circumstances where summary judgment is available. Whether that changes the threshold for setting aside regularly entered default judgment is not yet decided.

NOTES

1.

Vautier Holdings Pty Ltd v Kagioulis Trading Pty Ltd [2014] WASC 209.

2.

Parker v Transfield Pty Ltd [2000] WASCA 382 at para 3.

3.

Refer Note 2 at para 11.

45

announcements

Professional Announcements Career moves and changes in your profession HodgkinsonJohnston HodgkinsonJohnston, an international aviation and aerospace law firm, opened on 1 June 2015 with David Hodgkinson and Rebecca Johnston, formerly of Clayton Utz, as partners.

Murfett Legal Murfett Legal is pleased to announce that Graham Nagle has joined as Special Counsel in their Corporate & Commercial team.

David Hodgkinson and Rebecca Johnston

Contact details: 50A Ventnor Avenue West Perth WA 6005 T: +61 8 9486 8889 M: +61 402 824 832 or +61 400 663 323 reception@hodgkinsonjohnston.com www.hodgkinsonjohnston.com

Chris Hogan & Co We are pleased to announce the appointment of Didi Rosevear as a Principal in our firm. Since joining Didi Rosevear us in January 2012 as a Senior Associate, Didi has practised superannuation law exclusively.

Didi specialises in the structuring of strategies for investments, contributions and benefits, as well as estate and succession planning for super funds.

DCH Legal Group The Directors of DCH Legal Group are pleased to announce that Claire Harrison and Denby Kerr will become Senior Associates at DCH from 1 July 2015.

Claire Harrison

Denby Kerr

ADVERTORIAL

'HHG Giving Back' – a role model in charitable giving by law firms and others? The State Attorney General says 'yes'.

•

The Fathering Project (started by Professor Bruce Robinson, former Australian of the Year) www.thefatheringproject.org

Charitable work carried out by the legal profession, including pro bono legal representation, is rarely acknowledged in the community, mainly because so much of it is confidential and 'under the radar'.

•

Freshstart Recovery Program (started by Dr George O'Neil to treat drug addiction) www.freshstart.org.au

Today's reality is that lawyers are being called on to do more work for free, and to give more generally, because of unprecedented cuts to Legal Aid budgets and the tight resources of community legal centres. Last years Federal budget cut $15 million from legal aid commissions and $6 million from community legal centres.

•

Hagar Australia (a specialist aftercare agency that works with women and children who have survived extreme abuse or trafficking) www.hagar.org.au

•

Albany Community Foundation (addressing charitable work in Albany, where HHG has had a branch office since 1919) www.acfwa.com.au

That aside, charities in general are struggling to keep their doors open.

With this in mind, but inspired by the likes of Malcolm McCusker QC, one WA law firm has decided to do more to help.

Last Thursday, 7 May 2015, HHG Legal Group officially launched 'HHG Giving Back', a long term financial ($100,000 per annum) and pro bono commitment to four key charities:

46 | Brief July 2015

Officially launched by the State Attorney General, Hon Michael Mischin MLC, other notable guests included the Minister for Transport, Hon Dean Nalder, MLA, John Bond, Director of Primewest and The Fathering Project and current 6PR personality and ex Fremantle Dockers Captain, Peter Bell.

The State Attorney General said "HHG Legal Group are to be applauded for setting up 'HHG Giving Back'" and reflected that in the last year, "the legal profession across Australia, carried out over $250 million in pro bono legal work."

new members & classifieds

New Members New members joining the Society (May 2015) ASSOCIATE MEMBERSHIP

ORDINARY MEMBERSHIP

Mr Andrew Bartlett

Ms Serena Billing

SB Legal Strategist Pty Ltd

Mr Peter Davis

Miss Helen Creed

Community Legal Centres Association (WA)

Mrs Kirsten Gammer

Woodville Family Law

Mrs Marianne Kozman

Jackson McDonald

Ms Julia Jeffries Mr Matthew Johns Ms Nikita Koppe Mr Oliver Marshall

PART-TIME MEMBERSHIP

Mr John Morcos

Mr Luke Vuleta

Miss Boika Panov Miss Dilani Peiris Miss Zamaris Saxon Mr David Suttner

RESTRICTED PRACTITIONER

Clayton Utz

Miss Sarah Ozanne

Ms Jocelyn Watts

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Telephone: 9274 1977 or Email: danielle@avonlegal.com.au

MISSING WILL Would any person holding the last Will and Testament of June Margaret Nicholson, date of birth 29 June 1940, date of death 4 December 2014, late of 25 Webster Street, Mount Barker, or knowing the whereabouts of such last Will and Testament please contact Shaddicks Lawyers, PO Box 515, Busselton, 6280, telephone (08) 9752 1699.

NOW available from 1 July 2015 to members of the Society for only $50.* For full information visit lawsocietywa.asn.au/lls *Conditions apply.

47

law council update

ESCALATING COURT FEES ERODE ACCESS TO JUSTICE The Law Council of Australia is concerned the increase in filing fees in the High Court, Federal Court, Family Court and Federal Circuit Court will further undermine access to justice.

The Law Council President, Mr Duncan McConnel, said the fee increases were unwarranted and unfair.

"Just two years ago, federal court filing fees were tripled. Now, court users are having even greater taxes imposed on them while little is given back to the justice system," Mr McConnel said.

The fee changes are expected to raise $87.4 million, of which just $24 million will be reinvested in the justice system. Since 2010, court users have been subject to additional taxes worth $256 million. Of this, just $66.2 million has been provided to legal assistance services and just $60 million has been given in urgently needed funding to the courts.

Separating families will be particularly affected, with the divorce fee in the Federal Circuit Court increasing by $350, to $1,195.

The Chair of the Law Council's Family Law Section, Mr Rick O'Brien, said the fee changes impose yet another burden on separating families and particularly those fleeing domestic violence, including women and children.

"The changes to family law fees are particularly cynical when there is no option for divorcing parties other than to apply to the court, and even when they reach an agreement there is a fee imposed for consent orders. The fact that the revenue raised is not being fully invested back into the underfunded Family Courts simply makes it worse," Mr O'Brien said.

At the Access to Justice and Pro Bono Conference tomorrow, the Hon Chief Justice Tom Bathurst AC will lead an expert panel to discuss the concept of valuing justice, including why the justice system should not be seen as another agency of the Government.

unfortunate failure to acknowledge the damage to the justice system of excessive court fees, or to consult effectively with the courts and the legal profession. Many people on middle-to-low incomes may now find it simply too expensive to enforce their rights through the courts, which will undermine the rule of law and the proper administration of justice," Mr McConnel said.

"The Law Council calls for the reversal of these fee changes in the interests of access to justice," Mr McConnel concluded.

MARRIAGE EQUALITY IS FUNDAMENTAL TO A FREE AND INCLUSIVE SOCIETY The Law Council of Australia has welcomed the fresh attention being given to the same-sex marriage debate in light of the referendum results in Ireland.

The Law Council President, Mr Duncan McConnel, said the Law Council has been a longstanding supporter of amending the Marriage Act 1961 (Cth) to enable marriage equality.

"The Law Council supports same-sex marriage. It is a matter that is fundamental to our core values of respect, inclusion and freedom," Mr McConnel said.

The High Court has said that the meaning of marriage in the Constitution is the union of any two natural people and includes marriage between persons of the same sex.

The Marriage Act could, but does not yet reflect this definition.

"It is now in the hands of the Parliament to effect the necessary change," Mr McConnel said.

"Same-sex marriage now enjoys widespread strong support of the Australian community and it is vital that our elected representatives find the means to get this important reform passed through the Parliament," Mr McConnel concluded.

NATIONAL RECONCILIATION WEEK AN IDEAL TIME FOR ACTION ON IMPRISONMENT RATES, CONSTITUTIONAL RECOGNITION

In 2013, a Senate Committee delivered a report on changes to filing fees in the federal courts since 2010. None of its recommendations have been implemented, including that there be consultation prior to any further fee changes.

The Law Council of Australia has marked National Reconciliation Week by calling on governments at all levels to face squarely up the catastrophic problem of indigenous imprisonment rates, and to throw their collective weight behind the push for meaningful constitutional recognition.

"This is a heavy blow to access to justice in this country and a continuation of an

Over the last 15 years, the rate of indigenous imprisonment has increased by more than

48 | Brief July 2015

57 percent, while the rate of non-indigenous imprisonment has remained largely static.

Law Council of Australia President Mr Duncan McConnel said National Reconciliation Week provides an ideal opportunity to consider how the law was critical in addressing indigenous disadvantage.

"National Reconciliation Week's start date on 27 May marks the anniversary of the 1967 referendum when Australians voted to remove clauses in the Australian Constitution that discriminated against Aboriginal and Torres Strait Islander peoples," Mr McConnel noted.

"It ends on 3 June, which marks the historic 1992 Mabo decision when the High Court of Australia recognised Native Title.

"We cannot address indigenous disadvantage through focusing solely on housing, education, and health initiatives – vital though these efforts are.

"The Law Council considers the nation may be at a tipping point, where the indigenous disadvantage, crime and imprisonment is becoming so entrenched that positive initiatives, such as Closing the Gap, may be set back another generation unless a new approach to criminal justice is found," Mr McConnel said.

The Law Council President will chair a forum entitled Putting the brakes on incarceration at the National Access to Justice and Pro Bono Conference in Sydney this month.

The panel – which will include Dr Don Weatherburn PSM, Director, NSW Bureau of Crime Statistics & Research; Mr Rob Hulls, Director, Centre for Innovative Justice at RMIT; Mr Shane Duffy, Chair, National Aboriginal & Torres Strait Islander Legal Services; and Andrew Meehan, National Director, ANTaR – will critically examine the costs, benefits and alternatives to incarceration.

Mr McConnel said this week is also an ideal time to add momentum to the current push for indigenous constitutional recognition.

"The bipartisan summit of indigenous leaders recently announced by the Prime Minister is a welcome step," Mr McConnel said.

"Australia is ready to complete the constitution. Aboriginal and Torres Strait Islander Australians need a place of respect in our nation's founding document," Mr McConnel concluded.

events calendar

Events Calendar Date

Event

Location

Thursday, 9 July

HBF Wellness Yoga

The Law Society of Western Australia

Wednesday, 15 July

YLC Charity Quiz Night

Hyatt Hotel

Thursday, 16 July

HBF Wellness Yoga

The Law Society of Western Australia

Wednesday, 22 July

Society Club

Rydges Perth

Thursday, 23 July

HBF Wellness Yoga

The Law Society of Western Australia

Thursday, 30 July

HBF Wellness Yoga

The Law Society of Western Australia

Thursday, 6 August

HBF Wellness Yoga

The Law Society of Western Australia

Friday, 7 August – Sunday 9 August

Practical Advocacy Weekend for Junior Practitioners

Seashells Resort Mandurah

Thursday, 13 August

High Court Dinner

Government House Ballroom

Thursday, 20 August

YLC Social Justice Opportunities Evening

Central Park Theatrette

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

Caring for the Legal Profession in Western Australia •

Professional, confidential and free counselling and information services to support the mental health and wellbeing of members.

• Free access to online resources for life, family and relationship; health and wellbeing; and education, work and career.

• Members can also access up to three free counselling session a year.

24 hours phone support 1300 361 008 or lawsocietywa.asn.au/lawcarewa

LawCare(WA) is provided to members by

Services provided by Optum

49

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

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