Brief September 2015

Volume 42 | Number 8 | September 2015

IF LOOKS COULD THRILL.

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Contents

GO DIGITAL!

Volume 42 | Number 8 | September 2015

Take me with you.

34

13

02

President's Report

40

Lawyer on the Street

Elizabeth Needham

03

Your voice at work

41

Book Review: The Law Affecting Valuation of Land in Australia

04

Editor's Opinion

Review by Kenneth Pettit SC

Julian Sher

44

Young Lawyers Case Notes

06

High Court Dinner

46

Family Law Case Notes

08

2015 Clued up Kids Competition

47

Thomas Hurley Case Notes

10

What can solicitors do to reduce mortgage fraud?

48

Law Council Update

Matthew Bransgrove

49

Pam Sawyer

50

Professional Announcements

51

New Members

51

Classifieds

52

Events Calendar

FEATURE

13

Magna Carta Revisited

The Hon Nicholas Hasluck AM, QC

16

Magna Carta in its Medieval Context

The Hon James Spigelman AC QC

26

Society Club

28

Farewell to the Honourable Justice Heenan

Peter Quinlan SC

The Honourable Justice Heenan

32

Golden Gavel 2015

34

2015 Australian Bar Association Conference Survival of the Fittest: Challenges for Advocates in the 21st Century

The Hon T F Bathurst AC

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

EDITOR Julian Sher

ACTING PRESIDENT Elizabeth Needham

EDITORIAL COMMITTEE Ronald Bower, Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Dr Eric Heenan, Rebecca Lee, Jason MacLaurin, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Julian Sher, Moira Taylor

VICE PRESIDENT Alain Musikanth

PROOFREADERS Sonia Chee, Ann Kay, Andrew MacNiven

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

RRP $15.00 incl GST. Printed by Scott Print

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

COUNTRY MEMBER Georgia Pickering JUNIOR MEMBERS Emma Cavanagh, Ray Christensen, Rosie Hill IMMEDIATE PAST PRESIDENT Konrad de Kerloy

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

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

EXECUTIVE DIRECTOR David Price

01

report

President's Report Elizabeth Needham, Acting President, The Law Society of Western Australia I would like to begin my first President's Report by paying tribute to my predecessor, Matthew Keogh. Over more than a decade at the Society, Matthew has worked tirelessly and served with distinction in a number of senior roles on the Executive and Council, particularly with a focus on access to justice.

Matthew was also previously Convenor of the Young Lawyers Committee.

On behalf of the Executive, Council, staff and all members of the Society, I thank Matthew for his exceptional service.

I wish him the very best in his future endeavours.

YLC STRATEGIC PLAN At last month's meeting, Council approved the Young Lawyers Committee (YLC) Strategic Plan for 2015-2018.

In response to the Society's recent organisational review and the 20142018 Strategic Plan, the YLC has been undertaking a series of strategy review and planning meetings to develop a new YLC Strategic Plan.

The purpose of the new YLC Strategic Plan is to assist the YLC to represent, engage with and support young and emerging lawyers. This will be achieved through a number of strategies focused around developing as members of the profession and helping them to connect with the legal community.

NATIONAL ATTRITION AND REENGAGEMENT STUDY In May I attended the Law Council of Australia National Attrition and Reengagement Study (NARS) workshop in Sydney, along with former President Matthew Keogh and Executive Director David Price. At the start of proceedings it was agreed that there is sufficient evidence of the existence of a lack of diversity and equity in the profession and to concentrate our combined efforts to addressing it. Attendees at the workshop unanimously adopted a Diversity and Equality Charter, as a statement of principle publically acknowledging the commitment of the Australian legal profession to diversity and equality.

02 | Brief September 2015

The Law Council Directors formally adopted the Diversity and Equality Charter at their June 2015 meeting. In doing so, the Law Council encouraged the Constituent Bodies to do the same.

At last month's Council meeting, it was determined that the Society endorses and supports the Law Council Diversity and Equality Charter. A copy of the charter can be found on the Society's website.

MEMORANDUM OF UNDERSTANDING BETWEEN THE LAW SOCIETY OF WESTERN AUSTRALIA INC AND LAW ACCESS LIMITED FOR ADMINISTRATIVE SUPPORT SERVICES Council has approved a Memorandum of Understanding between the Society and Law Access Limited. By way of background, in August 2014 Council approved the Law Access 20142017 Business Plan, which included establishing Law Access as a single member company limited by guarantee wholly owned by the Society.

Previous employees of the Society in the Community Services team have now been employed from 1 July 2015 with Law Access Limited. This essentially completes the transition of human resources to Law Access Limited from the Society. The Memorandum of Understanding between the Society and Law Access Limited provides that the Society will continue to provide 'backend' administrative support for Law Access Limited.

PLANNING AND DEVELOPMENT (DEVELOPMENT ASSESSMENT PANELS) REGULATIONS 2011 – HEARING The Society made a submission, dated 24 February 2015, to the Legislative Council Standing Committee on Uniform Legislation and Statutes Review, regarding the operation and effectiveness of the Planning and Development (Development Assessment Panels) Regulations 2011.

The Society was subsequently invited to be heard at the hearing of the Committee on Monday, 29 June 2015 Denis McLeod appeared on behalf of the Society.

Members will be updated on further developments relating to this submission in due course.

LAW SOCIETY PANEL OF MEDIATORS AND ARBITRATORS Council has determined that the Society's Panel of Mediators and Arbitrators will be split into two panels: a Panel of Mediators and a Panel of Arbitrators.

By way of background, the Society has two roles in relation to mediation accreditation. First, the Society is responsible for the accreditation of mediators in its capacity as a Recognised Mediation Accreditation Body (RMAB) under the National Mediation Accreditation Scheme (NMAS).

Second, the Society appoints mediators and arbitrators to the Society's Panel of Mediators and Arbitrators.

At its meeting on 15 April 2015, the Society's Alternative Dispute Resolution Committee determined that the Panel of Mediators and Arbitrators had grown beyond its original scope, and for clarity and ease of referral it would now be more appropriate for the Panel to be divided into two: a Panel of Mediators and a separate Panel of Arbitrators.

HIGH COURT DINNER Thank you to all members who attended the High Court Dinner on Thursday, 13 August, at the Government House Ballroom. The Society and joint hosts the Western Australian Bar Association were privileged to welcome the High Court to Perth. You will find a full review in this edition of Brief.

NOTE: Please note, in this issue of Brief there are references to Matthew Keogh as President of the Law Society of Western Australia. Mr Keogh was President at the time these Society events took place.

your voice at work

Your voice at work A snapshot of recent Society initiatives BE A PART OF THE SOCIETY'S HISTORY OF ELITE LEGAL PROFESSIONALS Did you know that the Society's first president, Sir Walter James KC, was also Western Australia's fifth premier?

Nominate for Law Society Council in October and join the history ranks of judges, Chief Justices, premiers, attorneygenerals, governors and managing partners. Nominations will be emailed to all members in early October so make sure your details are up-to-date with the Society.

CPD PROGRAMME OUT NOW The September to December CPD programmme is now available online at lawsocietywa.asn.au. The programme features 40 face-to-face and 20 online seminars across the practice management, professional skills, ethics and professional responsibility, and substantive law competency areas.

THE LAW SOCIETY OF WESTERN AUSTRALIA CONGRATULATES BRUNO FIANNACA SC ON SUPREME COURT APPOINTMENT The Law Society of Western Australia congratulates Bruno Fiannaca SC on his appointment as a Judge of the Supreme Court of Western Australia.

Law Society President Matthew Keogh said, "Mr Fiannaca SC will be an excellent Judge of the Supreme Court. He has a wealth of experience in criminal trials and appeals to bring to the bench."

Mr Fiannaca SC has been a member of the Law Society since his admission to practice in 1984. He has often acted as a presenter for the Law Society's Continuing Professional Development (CPD) programme, including at the Advocacy - An Introduction to Case Theory and Preparation seminar.

Prior to his appointment, Mr Fiannaca SC held the senior role of Deputy Director of Public Prosecutions for Western Australia.

After being admitted to practice, Mr Fiannaca SC worked at the State Crown Solicitor's Office, predominantly as counsel in both criminal and civil matters, until 1992, when he transferred to the newly formed Office of the Director of

Public Prosecutions.

Mr Fiannaca SC was appointed Senior Counsel in 2005 and has been a member of the Professional Affairs Committee of the Legal Practice Board since 2006.

THE LAW SOCIETY OF WESTERN AUSTRALIA CONGRATULATES PAUL TOTTLE ON SUPREME COURT APPOINTMENT The Law Society of Western Australia congratulates Paul Tottle on his appointment as a Judge of the Supreme Court of Western Australia.

Law Society President, Matthew Keogh said, "Mr Tottle is an outstanding choice as a Judge of the Supreme Court. He is highly respected within the legal profession as a litigator with broad knowledge and experience."

"Paul Tottle's appointment to the Supreme Court from partnership in a law firm demonstrates the depth and breadth of the Western Australian legal profession, with judicial appointments coming from the solicitor and barrister ranks," Mr Keogh said.

Mr Tottle has been a member of the Law Society since his admission in Western Australia and has served with distinction as a member of the Law Society's Council and as Convenor of the Society's Education Committee. He is also a former member of the Legal Practice Board.

Mr Tottle has enjoyed a long and distinguished legal career since arriving in Western Australia in 1986. He spent nine years as a solicitor and partner of Clayton Utz (formerly known as Robinson Cox) before establishing Tottle Partners in 1995.

THE LAW SOCIETY OF WESTERN AUSTRALIA SUPPORTS THE STATE GOVERNMENT'S 'TURNING POINT' PROGRAMME The Law Society of Western Australia has given its backing to a State Government programme which will divert first time, low level criminal offenders away from the judicial system.

Police Minister Liza Harvey has announced that the 'Turning Point' programme will allow eligible offenders

to enter into a four month contract agreement, which is aimed at addressing the root causes of their offending.

The Minister has said that prosecutions will be dropped if an offender successfully completes the agreement. However, offenders will be prosecuted for the original offence if they fail to meet the terms of the contract.

Law Society President, Matthew Keogh said, "The Society supports initiatives targeted at reducing offending. Prisons can often be a learning environment for crime, if programmes such as this can keep low level offenders out of jail, they will be less likely to offend again."

"The Society is pleased to see the government trialling new initiatives as part of tackling Aboriginal over-representation in prisons. The Turning Point programme should also have the benefit of reducing the pressures on our court system," Mr Keogh said.

REMINDER THAT YOUR LIMITATION OF LIABILITY SCHEME RENEWAL IS DUE Law practices wishing to participate in the Limitation of Liability Scheme (scheme) in 2015/2016, including law practices that participated in 2014/2015, need to submit a 'Limitation of Liability Participant Information' form for 2015/2016 which is available from lawsocietywa.asn.au. The fee for each member's participation in the Scheme in 2015/2016 has been reduced to only $50, the fee that must be paid by the Society to the Professional Standards Council.

For a law practice to gain the full benefit of the Scheme, all Australian legal practitioners within the law practice, and the law practice itself if it is an Incorporated Legal Practice, must be members of the Society and of the Scheme.

A Law Society membership fee of $170 will be payable by Incorporated Legal Practice members. The $50 participation fee is also payable for ILPs. For more information about the Limitation of Liability Scheme please visit our website at lawsocietywa.asn.au or contact the Scheme Coordinator on (08) 9324 8652 or lls@lawsocietywa.asn.au

03

editor's opinion

"Her majesty’s pleasure: a new era".

Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal The speeches and other material intermittently published on the Supreme Court website are a treasure trove of interesting and almost infinite variety.

The traipse through the court's website is well worth the effort, once you work out how to get to the right screen. A recent addition to this eclectic collection, is His Honour the Chief Justice's speech on the occasion of the opening of the Bennet Brook Disability Justice Centre.

Practising exclusively in the commercial arena, I had previously been oblivious to the Centre, the work it does, or for that matter, its significance and the legislative framework governing its role in the criminal justice system – until I read the transcript of His Honour's speech.

Of course I had the earliest recollection, from my student days, that mentally impaired persons might be held at the sovereign's pleasure in certain circumstances. But I confess not having thought much about it since writing my final exams in Criminal Procedure all those years ago. One occasional exception was when some courtroom drama that I happened to be watching on television depicted someone being sentenced in that way. Incidentally, I did wonder why this practice, with such ancient provenance, had been described as being at the sovereign's 'pleasure'.

Indefinite detention sounds more like the penalty for achieving a sovereign's displeasure. But I assume the meaning of the phrase, "the His or Her Majesty's pleasure", has evolved over many centuries with the evolution of modern English usage, much like the evolution of the modern role of the sovereign itself.

In his speech, His Honour identified a category of person who "no longer poses any serious risk of harm to the community, nor suffers from a mental illness susceptible to treatment, but instead suffers from a permanent intellectual or cognitive disability". He observed that the applicable legislation recognises that for this type of person, imprisonment is "unnecessary and unjust, and placement in hospital was pointless because the patient is not 04 | Brief September 2015

susceptible to treatment. So that Act contemplated … a … place, neither a prison or a hospital ... in which such people could be managed appropriately within the community ... " His Honour praised the public policy behind this approach for its humanity and compassion and the legislators who have made the construction of the Centre possible. He described the Declared Places (Mentally Impaired Accused) Act 2015 (WA) as 'ground-breaking', reflecting "an enlightened and wellbalanced approach".

It seems that in this country at least, our society has grappled with an age old problem and ultimately graduated to a genuinely compassionate and commendable solution. Brief would welcome from practitioners engaged in this area of practice, their observations on how the system is working at the coalface.

This month's issue of Brief is again an attempt to present Brief's readers with an eclectic assemblage of relevant and important features, as well as regular columns of general and practical interest.

I express the tentative observation that your editorial board seems to be going through a slight upsurge in voluntary contributions to our journal for some reason. Whether this is attributable to the seasonal change from winter to spring – or some other reason – I simply cannot say. What I can say is that your editorial board welcomes those contributions and deeply appreciates the considerable time and effort their authors invest.

In that vein, we are privileged to feature a contribution by former Supreme Court Justice the Honourable Nick Hasluck AM QC, one of Australia's foremost literary figures. The title of his article reminds us again that this is the 800th birthday of the Great Charter – but it goes much further than that. Significantly, Mr Hasluck uses this event as a vehicle for an engaging discussion on the independence of the judiciary and the role of judges in making the law. As readers would expect from an author of this caliber, once begun,

this piece is impossible to put down until the end of course – and even then, it calls for a re-reading.

Also, in this birthday year, we are privileged to be able to publish an article by former Chief Justice of New South Wales, the Honourable James Spigelman AC, QC, on Magna Carta in its medieval context. Those interested in history – not just legal history – will find this feature of interest, particularly the observations on the various versions of the Charter and their historical context. Other significant features include a piece by His Honour the Chief Justice of New South Wales on challenges for advocates for the 21st century, entitled Survival of the Fittest, presented at the recent IBA conference in Boston, Massachusetts.

We mark the recent retirement from the Supreme Court bench of the Honourable E.M. Heenan QC, by the publication of his speech on the occasion of his farewell ceremony, in recognition of his considerable contributions as a leader of our profession and as a senior Justice of the Court.

This month our regular columns include a book review by Ken Pettit SC on Hyam's redoubtable textbook on The Law Affecting Valuation of Land in Australia; an article on what lawyers can do to reduce mortgage fraud by Matthew Bransgrove; a report on the Golden Gavel preliminary round by Michael O'Shea.

Happy reading – and happy writing, if you are planning to a contribution to some future issue of Brief.

Brief welcomes your thoughts and feedback.

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

Latest Opportunities - September 2015 With a new season upon us, now is the perfect time to reassess your career goals, or strategic business needs!

To find out how we can assist you with your next career move or legal staffing requirements, please contact us for a confidential discussion on our services and full range of available opportunities.

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

Senior Associate

Banking & Finance Lawyer

Commercial Property

2-4 years

This progressive and highly successful national firm has a strategic requirement for a Senior Associate, to support the growth and development of its specialist Real Estate practice.

With a premium client list and focus on cross border project finance work in the Asia Pacific region, this top tier Banking practice has an immediate requirement for a quality junior.

You will provide specialist advice directly to local and national developers, financiers and other corporate organisations on property sales & acquisitions, developments, financings, retail and commercial leasing matters. There will be regular collaboration with expert partners, access to a premium client base and regular flow of quality work.

Joining an established team of experienced partners and senior lawyers, this exciting role will see you engaged on major Australian and international project finance, corporate finance and general banking matters. Acting for banks, financiers and multinational corporations, you will support senior lawyers on all stages of transactions, preparing advices, lending and security documents.

To be considered, you will be a talented Senior Associate with local networks and a proven track record in property law.

Offering a fantastic working culture, lifestyle balance and competitive remuneration, if you are looking to join a leading firm that genuinely cares about the development of its people and to play a key role in the expansion of this practice, this position simply must be explored!

At least 2 years PAE and a general banking background will be key to your success. Candidates with broader corporate commercial experience, a passion for finance work and genuine desire to specialise, will also be considered. Benefit from close mentoring, career progression, involvement in high quality, international work and a superb working environment.

Senior Associate

Workplace Relations Lawyer

Corporate M&A

2-3 years

With a leading reputation in the local and wider Australian market, this premier Corporate practice seeks to appoint an exceptional junior SA or experienced Associate, to support the continued growth of this thriving team.

As one of Perth’s most sought after practices, due to its unique and forward thinking culture and quality of work, this prominent firm is looking to appoint a junior Workplace Relations specialist.

Acting for a highly desirable client base of major national companies and global corporations, including a number of listed companies in the energy & resources sector, you will gain top transactional experience working on leading M&A deals, capital raisings, private equity, general corporate advisory and compliance matters, project and joint venture work.

Acting for an established base of market leading employers within resources, construction and other key industry sectors, you will advise on a range of employment, IR & safety matters, will prepare commercial agreements and assist with the management of disputes and litigation.

At least 5 years PAE with a top-tier or quality boutique Corporate practice, regulated M&A experience and a strong working knowledge of the ASX Listings Rules and Corporations Act, will ensure your success. Offering mentoring from awarded partners, a busy workflow and regular client contact, you will be given every opportunity to foster key client relationships and over time, position yourself into a more senior position within the firm.

You’ll require 2-3 years PAE in workplace relations, with a leading local practice, a strong litigation background and proven safety experience. If you are currently in a larger team structure with limited opportunities to progress upwards, there are prime opportunities for progression within this smaller, cohesive team.

Strong mentoring from talented and down to earth partners, an abundance of resources, busy workflow, strong lifestyle balance and regular involvement in client education and training completes the picture.

Stacey Back Director p

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www.

.au

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Jointly hosted by

On Thursday, 13 August, at the Government House Ballroom, the Society and the Western Australian Bar Association jointly hosted the High Court Dinner, an event traditionally held on the occasion of the High Court's visit to Perth. This is always a cause for celebration, even more so given that it has been two years since the High Court's last visit to Western Australia.

The formalities began with an insightful Welcome to Country from Barry McGuire.

Society President Matthew Keogh then took the time to acknowledge the numerous distinguished guests in attendance, including the full bench of the High Court: Chief Justice Robert French AC, Justice Susan Kiefel AC, Justice Virginia Bell AC, Justice Stephen Gageler, Justice Patrick Keane, Justice Geoffrey Nettle and Justice Michelle Gordon. Mr Keogh also acknowledged the importance of the High Court in the Australian legal landscape, being a symbol of the rights of all Australians to expect just and equitable treatment before the law.

Martin Cuerden SC, Barrister, Francis Burt Chambers, made a toast to the High Court on behalf of the Western Australian legal profession. Justice Nettle provided a witty response on behalf of the High Court reflecting on his family roots as 'sandgroper' and his father's fondness for the state prior to their defection to the east.

1.

Anne Wood, Kott Gunning and Christopher MacCarthy, University of Notre Dame.

2.

Jenny Kiss and Duncan Blond, Cullen Macleod.

Guests enjoyed a three course dinner, accompanied by a selection of Western Australia's premium wines and beers, whilst being entertained by the WA based swing group Belleville Gypsy Swing. The members of the band – all luminaries of the local jazz scene – expertly transported attendees to the chic cafés and nightclubs of 1920s and 1930s Paris with their vibrant rhythms.

3.

Catherine Fletcher, Office of the Director of Public Prosecutions; Elizabeth Heenan, Culshaw Miller; and Tina McAulay, Women Lawyers of WA.

4.

The Hon Daryl Williams AM QC and Mark Pendlebury, Francis Burt Chambers.

5.

John Butler, Butlers; Commissioner John McKechnie QC, Corruption and Crime Commission; and John Ley, Francis Burt Chambers.

A special thanks to our sponsors The College of Law, Edith Cowan University, Murdoch University, The University of Notre Dame Australia and The University of Western Australia, for their ongoing support of the High Court Dinner.

6.

The Hon Robert French AC, Chief Justice of the High Court of Australia; The Hon Justice Susan Kiefel AC, Justice of the High Court of Australia; and Matthew Keogh, President of the Law Society of Western Australia.

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06 | Brief September 2015

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2015 Clued up Kids Competition Participants in the 2015 Law Week Clued up Kids WA Competition increased over 300% from 2014, with 41 schools (51 teams) registered and 34 final submissions received. A total of 324 students registered for the competition across the state.

Catherine Piper, Deputy Registrar at Belmont Local Court in NSW, founded the Clued up Kids competition and has been running the competition in NSW for the last six years. Catherine develops the scenario, creates the brief for the competition and provides the answers to the students' questions. She has kindly worked with the Francis Burt Law Education Programme (FBLEP) staff to enable the competition to be run in WA for the last two years providing an interstate element to the competition.

This year the students were given a scenario about a high speed car chase of a stolen car. There were three suspects and the students had to identify the correct suspect.

Students had the opportunity to ask the FBLEP Education Officers up to six questions. With each question they were then given more clues to solve the crime.

The winning team not only had to find the correct answer but also had to present their findings in a creative way.

The finalists for the competition were: •

Esperance Primary School;

•

Georgiana Molloy Anglican School;

•

Geraldton Grammar School (Interrigo);

•

Holy Spirit Catholic School;

•

Homeschool (Mad Ice);

•

Homeschool (The Scooby Gang);

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Maylands Peninsula Primary School;

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Our Lady's Assumption School;

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Perth College 1;

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Perth College 2;

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Saint Brigid's School (Cow Productions); and

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Scotch College.

The judging panel who had the difficult task of choosing the best presentations were the President of the Children's Court, Judge Reynolds, Deputy Chief Magistrate of Western Australia, Libby Woods, Associate Professor Michelle Evans from Curtin University, Claire Rossi from Legal Aid WA and Sergeant Garry Corker from the WA Police. The judging was based on three main criteria: correct identification of suspect; supporting evidence and creativity.

08 | Brief September 2015

The judges were very impressed with all the entries which were extremely creative. The winner was Homeschool – The Scooby Gang from Mandurah.

The presentation was outstanding.

It included a very creative The winning teams for Clued up Kids with the Hon Judge Reynolds, Chief animation that Magistrate Steven Heath, Professor Paul Fairall, Sergeant Garry Corker, Matthew Keogh and Claire Rossi. not only analysed the facts but also included some key information about the Children's Court and the principle of rehabilitation.

The runner up team was GMAS Gadgets at Georgiana Molloy Anglican School. They submitted a creative and entertaining dramatisation featuring Inspector Gadget, Miss Marple, Sherlock Holmes and Monsieur Poirot. The costuming and acting added to the depth of a very thorough analysis of the evidence.

The Ambassador School award, determined by the manner in which teams conducted themselves throughout the competition, was won by Geraldton Grammar School.

In 2015, the Clued up Kids presentation took place at the Children's Court, Perth.

Presenters were His Honour Judge Reynolds, Chief Magistrate Steven Heath, Magistrate Andrée Horrigan, President of the Law Society of Western Australia, Matthew Keogh, Professor Paul Fairall from Curtin University Law School, Claire Rossi from Legal Aid and Sergeant Garry Corker from WA Police. The two winning teams attended the presentation in Perth and Geraldton Grammar School took part via video link up from Geraldton. Sergeant Garry Corker spoke to the students about the types of offences that were related to their investigation and students were given the opportunity to ask questions of all the presenters. Afterwards, the teams had the opportunity to meet and talk with the presenters. It was a wonderful experience for all involved and an opportunity for the legal profession and the education profession to interact.

Ambassador School Award Recipients outside the Geraldton Courthouse.

Some of the feedback from the students and teachers included: "As well as the obvious things they all learned the students learned many unexpected things, such as 'What is the correct formula to write an email?' They also improved their video editing, script writing, and leadership skills."

"This was a fantastic competition.

The students learned a great deal and thoroughly enjoyed participating. We can't wait until next year!"

"I think that this experience will influence the future of some people in our team who would have considered this as a contender for their career."

The Society thanks Curtin University for its sponsorship of the competition and the Children's Court of Western Australia for hosting the presentation of prizes. The Society also thanks Deputy Registrar Catherine Piper for her ongoing partnership with the FBLEP team.

New Roles for September 2015 PARKES LEGAL Corporate and Resources Lawyer 1-2 Years, Leading Boutique Practice This outstanding firm is unique in the local market and has a loyal and growing high-end client base.

You will be inspired by their solutions driven approach and encouraged to play a key role on your matters.

The firm’s culture sets it apart from competing practices.

Their lawyers and support staff are recognized for being extremely easy to deal with active lives outside of the office. You will enjoy working collaboratively upon larger matters with 3 senior lawyers who have top tier experience on local and international transactions.

This is a strong alternative to top tier practice and would be very well suited to a lawyer who has completed rotations at a large firm and is looking for something different.

Ref: RW3336

Contact Ross Wheatley on 9221 4932 Banking and Finance Lawyer 2-4 Years, Elite Perth Team in an International Firm The Perth team produce work of the highest quality for an elite national and international client base.

They work closely with clients in a range of industry sectors, including resources, transport, power, gas, water, defence, real property and telecommunications.

The two Partners are recognised as great mentors and encourage lawyers to work with considerable autonomy under supervision. In your role you will be involved with a broad range of financing transactions, including project financing, resources financing, property financing and general corporate financing.

The firm is looking for a talented lawyer with previous finance experience but will also consider applicants with corporate or real estate experience with an interest in the area.

Real Estate Lawyer 2-5 Years, International Firm, Gun Partner This impressive team is continuing to attract high-end instructions across areas. Now is the ideal time to join this premier team lead by a Partner acknowledged as a leader in the field.

You will be working alongside a dynamic Partner with a proven ability to attract the best instructions from significant corporate clients. Your team also includes two talented Senior Associates and 2nd year lawyer.

The team works together extremely effectively and you will be encouraged to work with a high level of autonomy with guidance from the Partner and SA’s.

You will work closely with significant public and private clients including major banks, investment trust groups, corporations and developers. You will a minimum of 2 years of experience and have a passion for the area.

Ref: RW3331

Ref: RW3120

Family and Wills and Estate Planning Lawyer

Employment & Commercial Litigation Lawyer

Senior Associate or Special Counsel

4 Years +

5 Years +, Attractive Boutique

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The firm are now looking for a lawyer with a minimum of 5 years of experience to practice across employment law and commercial litigation. They are equally interested in lawyers with this background who are very senior. Your matters will include employment and workplace law, health and safety and general commercial litigation.

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What can solicitors do to reduce mortgage fraud?

Matthew Bransgrove Senior Partner, Bransgroves Lawyers

Since the GFC, despite the heightened awareness of lenders, solicitors and mortgage intermediaries, the level of mortgage fraud currently being perpetrated has, judging by the reported cases, if anything, increased.

The wider dissemination of knowledge of lending practices to an ever growing pool of potential fraudsters through the practice of copying people on email messages to 'keep them in the loop' has led to a vast increase in the number of real estate agents, lawyers, paralegals, accountants, clerks and borrowers learning all about the steps involved in writing a loan, and being given perfect copies of the documents involved.

The abundance of sophisticated, but easy to use, technology has made the fraudster's dissemblance harder than ever to detect. Electronic bank statements, spreadsheets, graphics programmes, high-resolution printers, disposable mobile phones, cloud technology, free Wi-Fi hotspots, cheap domain hosting and email, lax practices for identification of domain registrations, websites, open source content management systems and social networking, have each enhanced the ability of fraudsters to steal identities, create identities, accurately falsify bank statements, tax returns and employment records, and even to fabricate fictitious employers, accountants, valuers and solicitors.

There are many actions which lenders are best placed to take to prevent fraud, but there is also much that is incumbent on solicitors.

THE FRAUDSTERS Likely contenders include persons who have worked for finance brokers, property developers, solicitors, licensed conveyors, real-estate agents and registration agents. A key element in spotting fraud is to understand that fraudsters can mimic and emulate normal conveyancing behavior. A practitioner should not draw comfort from the apparent normality of a transaction. A 10 | Brief September 2015

chat on the telephone with a paralegal who uses all the correct terminology and knows all the correct procedures is no guarantee a transaction is bona fide.

went undetected. Solicitors need to be alive to the possibility of being made pawns in these types of mortgage frauds against their genuine clients.

Solicitors need to be aware that mortgage fraudsters are not just anonymous strangers. An area where fraud is often least expected but most frequent is within families. Typically this will involves spouses defrauding each other, for example the high profile case of Commonwealth Bank of Australia v Perrin [2011] QSC 274, children defrauding their parents, and carers defrauding the vulnerable. Those close to the property owner have inside knowledge of where key documents are kept, when they are indisposed and importantly the ability to intercept their mail. These frauds often blur the line with undue influence, and unjustness type scenarios. In Bendigo and Adelaide Bank v Stamatis [2014] NSWSC 1233 the son procured his elderly parents' genuine signatures on some documents by telling them he was arranging a cheaper refinance, and forged their signatures on others.

Fraudsters often bypass the need to create false identities by making themselves the directors of the property owning company. This 'corporate hijack' fraud is similar to trust account fraud ('I was going to put it back') as the perpetrator is readily identifiable from a search and typically plans to encumber a property, use the money to turn a profit and then repay the loan. Family companies are vulnerable to this sort of fraud because family members can claim it was agreed among the family that the fraudster could take these steps. Family members are also more likely to have access to copies of documents which have the corporate key on it.

Nor is it just imposters impersonating mortgagors that solicitors need to be on guard against. The facts set down in Werden v The Queen [2015] VSCA 72 provide a detailed look into the persistence, audacity and ingenuity of a professional mortgage fraudster. The fraudster, a former lawyer, advertised as a mortgage broker, and so lured victims genuinely seeking finance. This allowed the fraudster to send the real property owners off to be identified on behalf of the real lender before interposing himself to abscond with the bulk of the funds. A variant of this occurred in Britroc Investments v PT [2015] NSWSC 524. There the fraudster advertised custodial services for self-managed superannuation funds wanting to buy property. To completely eliminate any suspicion by the victims, the fraudster put the property into the name of Perpetual Trustee. The transfer and mortgage purported to be signed by two actual officers of Perpetual Trustee but in fact the document was a forgery which

2. Solicitor searches

YOUR MOST POWERFUL TOOLS IN DETECTING FRAUD Five of the most powerful tools in detecting fraud are: 1. Title and company searches 3. Driver's licences and passports 4. Internet searches 5. Calm reflection Title and company searches - read and think A title search can tell you many things.

An unencumbered title is particularly inviting to fraudsters as they only need to dupe the incoming mortgagee - not the outgoing mortgagee as well. An unencumbered property is rare, this is because the bulk of mortgages are refinances or purchases, so it prompts a closer look. If you have suspicions then run historical searches, these will give you even more background.

Where a company is involved look at the dates the director was appointed, note the dates shareholdings were acquired, look at who were the past directors, look at the dates and places of birth, send letters to shareholders and

past shareholders at their residential addresses if you have any doubt.

Question the scenario you are being given then verify it by independently contacting those concerned or formerly concerned.

If your client is interacting with a broker, or other party question whether there is a need to perform due diligence on these parties and ask yourself, if they were perpetrating a fraud, how would they go about it and what actions by you would thwart it.

Solicitor searches – verify who you are dealing with You can trust other solicitors but the question is, are you dealing with another solicitor? These days, with solicitors disseminating electronic copies of their letterhead to all and sundry, it is breathtakingly simple for fraudsters to create false letters that will pass any scrutiny. The matter is easily put to rest by independently searching the solicitor's details and contacting them by telephone.

Driver's licences and passports

person being identified.

The new PEXA electronic conveyancing regime has brought with it, through its model participation rules, a Verification of Identity (VOI) standard that requires

Whether you are certifying the mortgagor's identity for the lender or not solicitors acting for mortgagors should insist on sighting their original driver's

"The abundance of sophisticated, but easy to use, technology has made the fraudster's dissemblance harder than ever to detect." a face-to-face interview with the mortgagor and rigid requirements for what identification documents can be relied upon. Some lenders have adopted the practice of nominating the solicitor for the mortgagor to certify the mortgagor's identification. The standard, if followed offers a safe harbor, for lenders and indirectly for those certifying.

However the buck stops with the person identifying and in particular with the proper scrutiny of the identification document proffered and the face of the

licence and passport. These documents are hard to forge and both have a photo.

Credit cards and Medicare cards are of limited use, all they prove is that a fraudster has access to the registered proprietor's wallet. If your client claims not to have a passport or driver's licence you need to be on heightened alert and conduct meaningful enquiries to ensure you are not dealing with an imposter.

If real identification is used by an imposter and you do not detect it you should expect to be found negligent.

11

The case of Perpetual Trustee Company Ltd v CTC Group [2012] NSWCA 252 (special leave to appeal dismissed, [2013] HCASL 16) is demonstrative.

In that case the lender alleged that originator did not take reasonable care to identify the mortgagor. The trial judge was sympathetic to the duped originator, finding that even though CTC obtained a photocopy of the mortgagor's passport, the possibility remained that a family member with a resemblance to the mortgagor impersonated him. Thus, the trial judge was not satisfied that there was any breach of duty. However this was overturned by the NSW Court of Appeal. Macfarlan JA (with whom Meagher and Barrett JJA agreed) essentially applied res ipsa loquitur ([2012] NSWCA 252, at [26] commenting: The primary judge's unchallenged findings were that [the mortgagor] did not sign the application ‌ . If [the officer of CTC] did not make the requisite comparison between the signatory of the application and the original passport photograph, he failed to act with reasonable care ‌ . The fact that the application was submitted despite [the mortgagor] not having signed it, strongly suggests that he did not.

Internet searches

Calm reflection

It is good practice to run an Internet search for the names of all individuals and companies involved in a mortgage transaction. If the transaction is not run of the mill, for example involves private mortgage finance, this should be

Beware of urgency. Most frauds are carried out in a rush to increase the chances of success. If a settlement is urgent ask why it is urgent. Then follow up and verify what you have been told. If there is a notice to complete on another property ask to see the notice.

Call the solicitor who issued it. The fraudster might be pushing for a quick settlement because she is worried your correspondence will be received by the real registered proprietor. Increase the chances of this by sending letters to the security address by express post. The most important thing is that you consider the transaction holistically asking yourself whether everything makes sense and whether there could be some sort of fraud being practised.

"Solicitors need to be aware that mortgage fraudsters are not just anonymous strangers." supplemented with a search of AustLII. These searches are free and quick to perform and can save you many hours being grilled in the witness box. One of the biggest mortgage frauds in Australian history, described in R v Jenkins [2000] VSC 503; R v Jenkins [2002] VSCA 224; Jenkins v R [2004] HCA 57; Director of Public Prosecutions v Bulfin [1998] VSC 261, would not have occurred if some basic searches had been done on the borrower who had a history of questionable property dealings.

ABOUT THE AUTHOR Matthew Bransgrove is senior partner at Bransgroves Lawyers, a firm which specialises in serving the mortgage industry. He is a co-author of the 2008 LexisNexis textbook, The Essential Guide to Mortgage Law in New South Wales, and its 2014 successor, The Essential Guide to Mortgage Law in Australia. His latest book, Avoiding Mortgage Fraud in Australia published by LexisNexis, went on sale in June 2015.

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feature

Magna Carta Revisited An edited version of an address at the Constitutional Centre 3 June 2015

The Hon Nicholas Hasluck AM, QC

A Memorial erected by the American Bar Association stands in the field of Runnymede near Windsor Castle. It commemorates Magna Carta, the sealing of which took place here on 15 June 1215 – eight hundred years ago. The encircling inscription reminds visitors that Magna Carta's principles became engrained in the common law as an assertion of individual freedom, an acknowledgment of sovereignty and a guarantee of the continuance of the law of England.

The Memorial is a reminder also that when the early colonists crossed the seas from England and settled in Virginia, they took with them the principles set out in the Great Charter. These were eventually reflected in the Declaration of Independence and the Constitution of the United States – documents inspiring a quest for change, but lighting the way to the rule of law. I will look principally at the extent to which the rule of law in recent times has been affected by judicial activism.

The essence of the Great Charter's achievement with respect to the administration of justice can be glimpsed in a paraphrasing of its most famous clauses.

No free man shall be imprisoned or ruined except by the lawful judgment of his peers, or by the law of the land.

To no one will we sell, to no one will we deny or delay right or justice.

Moreover, all these aforesaid customs and liberties shall be observed by all of our kingdom.

A rule of law, binding even the King, is suggested by these clauses. The concept is reinforced by other principles derived from the Great Charter which are thought to be characteristic of western democracies, including parliamentary supremacy. But what do we mean by the phrase 'rule of law'?

In contemporary times the rule of law is generally understood to mean that individuals and agencies within the state are bound by laws made publicly and administered by an independent judiciary.

In addition, laws made by parliament and

rulings of the courts must be intelligible, within the capacity of most people to obey, and for the most part they must not be retrospective.

It is generally understood also that procedures governing the resolution of disputes by the courts should be fair, with questions of right and wrong being determined by the application of known law and not by the exercise of discretion.

An independent judiciary is thought to be one of the best guarantees against the exercise of arbitrary or unlawful power by the government of the day, and for that reason judges have tenure and are expected to renounce political causes or allegiances.

The principles concerning judicial independence are so long-established, and so deeply engrained in the common law, that it doesn't seem surprising to see them reflected in a list of resolutions composed by Sir Mathew Hale, Chief Justice of the King's Bench from 1671 to 1676, to guide his own conduct. His list indicates that judges should be impartial, objective, incorruptible, and not only decisive but accustomed to applying known law to established facts. The conventional view is that rulings made in this way will give a welcome degree of certainty to the law, for citizens and corporate bodies must know what the law is before they can be expected to obey it. Rulings should not be affected by the personal beliefs of the presiding judge or by the vagaries of public opinion.

Curiously, the conventional view of a judge's role was called into question recently by some other extra-judicial writings of Sir Mathew Hale. It happened in this way. A man was found guilty of rape on two occasions in South Australia, notwithstanding that at the time of the alleged offences in 1963 he was married to and cohabiting with the alleged victim.

Upon appeal to the High Court, the man relied upon a proposition set out in Sir Mathew Hales' The History of the Pleas of the Crown to the effect that a husband cannot be guilty of rape in such a case because consent is presumed. Hale's proposition was apparently viewed as

good law in the 1960s by the prosecuting authorities because no charges were laid at that time. It was accepted that the elements of the offence of rape identified in s48 of the Criminal Law Consolidation Act 1935 (SA) were supplied by the common law.

The man's appeal was dismissed by a majority of the court: PGA (2012) HCA 21. Five of the seven judges held that if the marital immunity described by Hale was ever part of the common law of Australia it had ceased to be so by 1935.

The majority said that it was unnecessary to rely in general terms upon judicial perceptions today of changes in social circumstances and attitudes which had occurred in this country by 1935, even if it were an appropriate exercise of legal technique to do so. Their conclusion followed from the changes made by statute law, as then interpreted by the courts, before the enactment of the Criminal Law Consolidation Act. Nonetheless, the majority ruling could be viewed as a disguised form of judicial activism. This may have contributed to the writing of powerful dissenting judgments by the minority – Justice Heydon and Justice Bell.

According to Justice Heydon, the effect of the majority view was this: conduct that no one saw as attracting criminal liability in 1963 did in fact attract that liability because, on a historical review of the law 47 years later, it was thought that changes in legal and social conditions had caused the conduct to become criminal.

The step taken by the court conducting the review was said to be doing nothing more than removing an anachronistic fiction, but this was specious. The rule of law is based on the idea that the citizen should be ruled by laws and not by the whims of men. This means that only breaches of existing criminal law should be punishable – the citizen should be able to know beforehand what conduct is permitted and what forbidden, for only in that way can he order his affairs with certainty. When parliament creates a new crime, it almost invariably legislates for the future only. If a court manufactures 13

a new crime it thereby determines after the event that the defendant's conduct is a criminal offence. To countenance this type of retrospective criminal legislation means that certainty and consequently freedom are at an end.

Justice Virginia Bell's dissenting judgment was equally forthright. The fact that reformative legislation had been enacted throughout Australia on the understanding that the marital immunity propounded by Hale was indeed a rule of law provided some evidence that it was. Her Honour said: "It is abhorrent to impose criminal liability on a person for an act or omission which, at the time it was done or omitted to be done, did not subject the person to a criminal punishment ... the law should be known and accessible."

These remarks bring us back to the question of judicial creativity. Sir Owen Dixon, Chief Justice of the High Court from 1952 to 1964, was of the view that great forensic conflicts could only be properly resolved by 'strict and complete legalism.' Close adherence to legal reasoning was principally for the sake of attaining uniformity, consistency and certainty. The mere fact that a case was new did not justify judges deciding it on their own view of what was just or expedient. The superior courts are bound by a strict doctrine of precedent for that very reason.

It is clear that Dixon was opposed to what is now loosely described as 'judicial activism'; that is, to use a definition provided by The Oxford Companion to the High Court, "a process of reasoning that openly takes account of contemporary but enduring community values when formulating legal rules or doctrines."

A leading Australian jurist whose name is often associated with judicial activism is the former High Court judge, Michael Kirby. In his book The Judges he described strict legalism as 'a fairy tale'.

He said that there are few observers in the judiciary who would deny that judges make law. If they have a function in making law, they have a function in its reform. In his view, the debate today is rather about the principles by which these unelected lawmakers will perform their creative duties.

The PGA case could be used to underpin a critique of legalism. The male appellant set up a defence of marital immunity, but the precedents he relied upon dated back to a time when the nature of marriage was entirely different. It might seem to an activist that to follow the precedents would simply conceal the fact that the conduct complained of was no longer acceptable.

In various cases Justice Kirby's 14 | Brief September 2015

reasoning reflected the activist credo. In the Hindmarsh Island case, for example, in construing the race power vested in the federal parliament, he said: "My reasons are in part textual and contextual, in part affected by the manifest abuse test; in part influenced by the history of the power which I have outlined and in part affected by the common assumptions against the background of which the Australian constitution must be read today."

In a recent biography – Michael Kirby: Paradoxes / Principles by Professor A.J. Brown – the author mentions Justice Kirby's speech to the 34,000 people from across the world who had filled the Aussie Stadium for the opening of the 2002 Sydney Gay Games. The 'active judge' spoke of "a future world where everyone can find their place and where their human rights and dignity will be upheld."

In the meantime, a number of equally eminent jurists continued to see merit in the more conventional judicial method outlined by Sir Owen Dixon – 'legalism' – and were still troubled by what were seen to be significant defects in the activist cause.

Only a few days before the dramatic scene at the Aussie Stadium described

by Justice Kirby's biographer, another widely-respected judge, Justice Dyson Heydon, delivered an address in a quieter vein called Judicial Activism and the Death of the Rule of Law. He endorsed Dixon's approach to judicial method and noted that the rule of law operates as a bar to untrammelled discretionary power. In deciding cases a judge drew upon existing or readily discoverable legal sources. He was bound to identify what the crucial issue was and reach a decision on that and no other. The legalistic approach was underpinned by

the doctrine of precedent, an approach which subordinated individual judicial whim to the collective experience of generations of earlier judges out of which could be extracted principles hammered out in numerous struggles. This served to explain the common law approach of gradual development.

Justice Heydon acknowledged that modern Australian judges were generally incorruptible, but there were two types of questionable pressure pushing a judge away from probity, and evidencing judicial activism. The first was the desire to utter judicial opinions on every subject which may have arisen however marginal. The second was the desire by ambitious judges to state the applicable law in a manner entirely unconstrained by the way in which it has been stated before because of a perception that it ought to be different.

The duty of a court, Heydon contended, as evidenced by the judicial oath, was not to make law but to do justice according to law. When judges detect the presence of particular community values as supporting their reasoning they may become confused between the values they think the community actually holds and the values which they think the community should hold.

Radical legal change was best effected by parliamentarians who have a long experience of assessing the popular will and have all the resources of the executive and the legislature to assist them.

In a later address given in retirement Heydon pointed out that each elector has the right to be treated as an autonomous moral being whose opinion on moral issues is taken into account.

Each member of parliament is directly

feature opposition to criteria of that kind.

The Cattanach case could be taken to suggest that, in practice, when a need for judicial creativity arises due to the novelty of the circumstances, it may often be difficult to distinguish the judicial methods known respectively as legalism and activism. Nonetheless, the reality is that within legal circles the debate runs on.

Justice Heydon is not alone in voicing misgivings about a perceived tendency on the part of activist judges in a modern (or perhaps a post-modern) world to give effect to their personal views, albeit presented as simply disposing of anachronistic fictions, or giving effect to current community values, or as a means of vindicating human rights.

Magna Carta Memorial Runnymede England, United Kingdom.

accountable to each individual elector in his or her constituency. Judges are not, because of their independence. There is more legitimacy in accountable legislators deciding social or moral issues than nonaccountable judges.

The nature of the contest between the legalistic approach of Justice Heydon and the activist view to the contrary put

by Justice Kirby is reflected in another decision of the High Court: Cattanach v Melchior (2003) HCA 38. In that case the appellant doctor was found to be guilty of negligence when the respondent mother became pregnant and gave birth to a healthy child after a sterilisation operation.

Justice Heydon observed (in a dissenting judgment) that there was no superior court authority favouring the damages sought by the respondent parents, namely, the reasonable costs of raising and maintaining the child until the age of 18 years. It was therefore up to the claimant parents to establish that the principles concerning recovery of damages could be extended. This could not be done persuasively because limiting attention to outgoings incurred during childhood would ignore some significant consequences of parenthood, such as the emotional and spiritual rewards it may bring. He said: 'It is wrong to attempt to place a value on human life or on the expense of human life because human life is invaluable – incapable of effective or useful valuation.'

On the other hand, a majority of the High Court was prepared to approve the award of damages. Justice Kirby held that the claim was justified by the application of ordinary legal principles. He criticised Justice Heydon for denying relief on the grounds of emotive considerations and public policy, contrary to his usual

The decision of the High Court in the well-known Mabo case was described by some commentators as the high point of judicial activism. The judgments of the majority effected a profound reversal in common law doctrine relating to the proprietary claims of indigenous persons to their traditional lands. The majority expressly sought to bring Australian law into line with jurisdictions overseas, and with some of the judicial opinions acknowledging the relevance of human rights standards and community values.

Justices Deane and Gaudron went so far as to declare in a quasi-political tone that redress of the indigenous claimants' position was required because until this was done 'the nation as a whole must remain diminished.'

In his recently-published book Democracy in Decline, Professor James Allan contends that the exercise of judicial power by activist judges lacks legitimacy and can be regarded as an interference with democratic decision-making by parliamentarians. He refers to a possible lack of diversity among those appointed as judges, especially if it comes to pass, as in the United Kingdom, that appointments to the Bench are made pursuant to the recommendations of judicial commissions.

The fear is, Allan contends, that we will end up with an insulated, self-selecting 'lawyerly caste' whose views on samesex marriage, abortion, euthanasia, how to balance criminal procedures and public safety and other contentious issues are noticeably at odds with those of the voting public.

This reference to a 'lawyerly caste' points to a potential erosion of the rule of law of a slightly different kind to the case against judicial activism put by Justice Heydon.

Are we now entering an entirely new phase of judicial activism? Will it happen in years to come that supposedly up-todate judges, as members of a 'lawyerly caste', set about their self-appointed

task of reforming the law not pursuant to accessible reasons, but rather, in an age of increasing conformity, by acting on a number of assumptions that are never questioned; that is, all those assumptions about community values which are thought to be patently benign and generally shared by well-educated people?

There was a time when law students were encouraged to study legal history – to revisit Magna Carta – as a first step towards understanding the vagaries of legal systems and embarking upon the process of reform. That time seems to have passed. The young lawyer of goodwill who wishes to move beyond 'bread and butter' issues, and look at the workings of the legal system with an inquiring gaze, now seems to be drawn immediately into the field of human rights and the removal of discrimination.

This is where the action is thought to be. Unfortunately, however, the rhetoric of human rights can lead not only to an undue emphasis upon the predicament of complainants, a push for justice in particular cases, but also to a lack of interest in the coherence of the legal system as a whole.

These days, lawyers who like to think they are moving with the times are inclined to revere the activist judge who eschews the old ways in order to achieve a 'just result'. This brings with it a risk that the various ingredients of the rule of law, most of which are deeply rooted in legal history, will become blurred and possibly subsumed within a general but somewhat hazy notion that the rule of law stands for the righting of wrongs.

Hazy notions of this kind will lead to injustice, for just results depend ultimately upon the application of known rules by an independent judiciary pursuant to the workings of a stable and generally efficacious legal system. It will be difficult to eliminate discriminatory practices where rules are uncertain or not applied consistently. It will be impossible to remedy such practices where the legal system is chaotic or captivated by fashionable trends.

A clear understanding of what the rule of law stands for will foster objectivity, and arguably enhance the prospect of doing justice by treating like cases alike.

It will serve also as a useful reminder to the legal fraternity that the law can't be expected to solve all problems. It is generally not the function of law to intrude upon the intimate moments or private lives of citizens, or to seek to impose particular patterns of behaviour, save for where it is necessary to preserve public order or to protect people from what is oppressive or injurious.

15

"The Magna Carta was a development of a long established practice of royal promises of good governance, traditionally given in the form of a Coronation Oath. ... Never in more detail than in the Magna Carta."

16 | Brief September 2015

Magna Carta in its Medieval Context The Hon James Spigelman AC QC Paper presented in the Banco Court, Supreme Court of New South Wales, Wednesday 22 April 2015 For about a century after 1215, and about a century before 1689, the Magna Carta played a critical role in the constitutional development of England. Between those centuries, although sometimes invoked in statements of grievance or referred to as a touchstone of good governance, it played an ever-reducing role in political discourse. Shakespeare could write a play about King John without mentioning it. Victorian theatre proprietors often added a Runnymede scene, as something which Shakespeare had inadvertently overlooked.

In an address to a symposium commemorating the 800th anniversary, at Parliament House, Canberra later this year, I will consider the significance of Magna Carta in the century or so before 1689. That period remains the source of its relevance today. In this address I will focus on the medieval context of the Charter.

When looking back so far, it is always necessary to beware of that imperialism of the present by which contemporary values and perspectives are imposed upon the past. My favourite example of the importance of being aware of cultural differences in historical analysis is that given by Macaulay in his essay in defence of Machiavelli. He suggests that an audience in Florence during that era would have reacted to Shakespeare's play Othello by rejecting the title character as a love-struck buffoon, but they would have been moved to tears by the fate of the true tragic hero of the play, Iago1.

I will endeavour to avoid any such cultural misconception. My central theme, however, is one that Machiavelli himself would have accepted to be perpetual: the abuse of power.

THE EVOLUTION OF THE TEXT As is usually the case for any lecture on English legal history, it is best to commence with a quotation from Frederick Maitland. "It is never enough," he said, "to refer to Magna Carta without saying which edition you mean"2.

There are four original versions of the Magna Carta: 1215, 1216, 1217 and 1225. Thereafter it was "confirmed"

by Kings on about fifty occasions. The text of lasting significance is that of 1225, itself substantially based on that of 1217. The changes from the 1215 Magna Carta, whose 800th anniversary we commemorate this year, were substantial. The 61 clauses, into which the continuous Latin text of 1215 was conveniently structured for purposes of comprehension by Blackstone, were reduced to 37 by 1225. It was that version which, as "confirmed" by Edward I in 1297, entered the statute book.

The Magna Carta was a development of a long established practice of royal promises of good governance, traditionally given in the form of a Coronation Oath. When the King on his succession was strong, the promise of good governance was short. When the King was weak, grievances of the day were addressed in detail. Never in more detail than in the Magna Carta.

William I, known as the Conqueror, to whom the French continue to refer by his parentage as Guillaume Le B창tard, simply promised on his coronation to restore the laws of his legitimate predecessor, Edward the Confessor, pointedly delegitimising the rule of his own predecessor, Harold. Similarly, Henry II in his Coronation Oath, affirmed the "concessions and grants and liberties and free customs" which his grandfather, Henry I, had conceded, thus de-legitimising the reign of his own predecessor, Steven. The Coronation Charter of 1100 by Henry I, however, had been different.

HENRY I'S CHARTER OF LIBERTIES Henry I was the youngest son of William I. His claim to the throne was tenuous and the Coronation Charter was a manifestation of weakness on his part.

William Rufus, his older brother and immediate predecessor, was mortally wounded by an arrow whilst hunting in the New Forest in a small party, which included Henry. No historian has ever

been able to identify the sequence of events, nor establish any involvement by Henry in his brother's sudden demise.

Suffice it to say that Henry rushed to be crowned. His eldest brother, Robert, whom the Conqueror had made Duke of Normandy, thus dividing his inheritance between his two oldest sons, would soon return from a Crusade. Robert's claim to the crown of England was, if anything, superior to that of Henry, the youngest brother. That, amongst other problems, was the source of Henry's anxiety on accession.

His weakness is shown in the opening words of his Charter. They state that he has been crowned "by the mercy of God and by the common counsel of the barons". The first phrase is reminiscent of what we would come to call "divine right". The second reference, to consultation with the barons, suggests an entirely different basis for royal authority.

The tension between these two principles of political legitimacy would take many centuries to resolve.

Henry I promised to reform some of his father's and brother's practices. Both the Charter of 1100 and the Magna Carta of 1215 were, to a substantial extent, concerned to remedy such abuses. Rejecting the "bad customs" of his immediate predecessor, Henry promised to restore the law of Edward the Confessor, except as it had been properly amended by William I, with the advice of the Council of the barons.

Henry I ignored the promises he had given in his Charter. Henry II would also ignore his grandfather's promises, which he had sworn to keep. Political promises are like that. However, when royal authority was weak, as it was at the time that King John accepted the Magna Carta, much more could be demanded and much more would be granted. That did not make it any more likely that the promises would be honoured.

In the years between the death of Henry I and the Magna Carta, under Stephen, Henry II, Richard I and the early years of John, there are no recorded politically 17

"It is notable that the promise not to impose sanctions "except by the lawful judgment of his peers or by the law of the land" is granted to all free men. Similarly, the second promise, not to "refuse or delay right or justice", is granted to everyone." significant references to the Coronation Charter of Henry I. The fact that Henry I did not keep these promises did not detract from the creation of a myth of a golden past.

The list of promises that Henry I gave on his accession to the throne was the precedent expressly invoked by the rebel barons of 1215. They referred to this document as Henry's Charter of Liberties. Framing the political debate is always an important first step.

"Liberties", then, were what we would now call "privileges", rather than "rights".

Nevertheless, they constituted a sphere of autonomous conduct, free from constraint from above and, in that sense, constituted "freedoms" in contemporary usage.

A comparison of the two Charters explains why the rebel barons, in 1215, commenced negotiations with a claim for the confirmation of this Charter of Liberties. The themes of the two documents are similar, albeit the scope, range and detail is considerably expanded in the Magna Carta.

THE 1215 CHARTER In 1215 King John was faced with rebellion, which he had not been able to suppress. In the previous year he, together with his European allies, had been decisively defeated by King Phillip 18 | Brief September 2015

of France at the battle of Bouvines.

John's loss of Normandy two years before, now became permanent. His foreign campaigns had necessitated the exploitation of every revenue-raising power to the maximum. The rebellion of the barons, particularly in the North, escalated. The city of London joined the rebellion. By mid 1215, the rival military forces entered a period of stalemate which led to negotiations. The Charter of 1215 was a peace treaty to end a civil war.

There is extant a document which constitutes the first list of demands that led to the Magna Carta. After its discovery in the French Archives, it has been widely referenced since the 1890's, but is still called the Unknown Charter. It repeated the Charter of Liberties of Henry I and added twelve clauses.

There is a further document, that came to be called the Articles of the Barons, which consists of some 49 clauses, many of which found their way into the Magna Carta. This was a further development of the Unknown Charter and appear to constitute the penultimate step in the lengthy negotiations between the King and the barons. The negotiations were sufficiently advanced by then for the King to affix his seal to this draft.

One provision of the 1215 Magna Carta was so irreconcilable with any conception

of the authority of a monarch. John had reasons to break most of the promises contained in the document, but Clause 61 – which came to be called the security clause – was completely intolerable.

Clause 61 had first appeared in the original list of demands set out in the Articles of the Barons. It established a committee of 25 barons, to enforce the promises given by the King in the Charter. It was the longest clause in the Charter.

The number 25 was of great significance in medieval numerology. As St Augustine had pointed out, the laws of Moses was contained in five books and therefore 25, represented five squared. It had other mystical connotations3. Indeed, in 1258 a Council of 25 was appointed to implement reforms imposed upon John's son, Henry III. In the 14th century, King Edward III created the Order of the Garter. It was limited to 25 knights in addition to the sovereign, and remains at that number to this day.

Clause 61 set out a detailed procedure by which this committee could remedy any breach of promise by the King. It authorised the committee to seize the King's castles, lands and possessions and made a variety of provisions to prevent evasion. This could only be described as pre-authorised rebellion.

The committee of 25 had been given further extraordinary powers. It would settle any dispute about John's promise to restore any "lands, castles, liberties or rights", of which John had deprived anyone, "without lawful judgment of his peers", (Clause 52). Similarly, the committee would resolve any disputes about John's promise to repay fines

imposed "unjustly and contrary to the law of the land" and amercements – payments for the exercise of "mercy" - usually pardons for alleged offences, (Clause 55). Detailed provision was made for this committee's procedure.

John agreed to the terms of the negotiated peace on 15 June 1215 and affixed his seal to the Magna Carta on 19 June. A transparently hostile monk would later record King John's response to having to agree to the Charter as: " ... gnashing his teeth, scowling with his eyes and seizing sticks from the trees and .... gnawing them to break them"4.

Whatever the truth of that, everyone would have known that John did not like what he was forced to concede.

The degree to which Clause 61 undermined royal authority was such that England could no longer have been regarded as a unified monarchy. They could not survive the restoration of John's political and military position.

Within a month, John wrote to the Pope asking him to annul the Charter.

After years of disputation, John had formed a close alliance with Pope Innocent III. As one of many examples of a conflict between the Pope and lay rulers about the investiture of senior ecclesiastics, John had refused to accept Stephen Langton as the Archbishop of Canterbury. After a five-year interdict over the kingdom, John surrendered, but he went further. He paid homage to the Pope, acknowledging him as his feudal overlord, with all that that implied. In February 1215, as the rebellion against him intensified, John took the vow as a crusader to further extend papal protection.

On 24 August 1215 Pope Innocent, a particularly ambitious Pope and the first to describe himself as the "Vicar of Christ", strengthened John's political position. He declared the Charter void as "shameful, demeaning, injust and obtained under duress". It had lasted barely nine weeks.

After the King repudiated the Charter the civil war re-ignited. The barons offered the throne of England to Prince Louis, heir to the French throne, and later King Louis VIII, who was crowned in Westminster Abbey.

THE 1216 CHARTER Immediately after John's death in October 1216, his nine year old son Henry was hastily crowned at Gloucester Abbey. The rightful place for a coronation - Westminster Abbey - was controlled by the rebels and the French. Three weeks later, the Magna Carta was re-issued in amended form at Bristol, a stronghold of

the royal forces in the west. It was sealed on the King's behalf by the Regent, William Marshall, Earl of Pembroke, one of the most admirable figures in English history, and by the new papal legate, (Innocent III had also died). The papal annulment of 1215 was superceded.

In the 1216 re-issue, the Charter was reduced from 63 to 40 clauses. Amongst the deleted clauses were those which significantly interfered with the authority of the monarch. Important aspects of royal taxation, which had been expressly covered in the 1215 version, were reserved for further deliberation by the King, with the advice of his Council. Perhaps most significantly, the enforcement mechanisms, did not survive. Clause 61 was deleted in 1216 and never reappeared.

Two other clauses of the 1215 Charter were also regarded as incompatible with royal authority. Clause 12 of 1215 stated that no scutage or aid, with traditional exceptions, was to be levied except with the "counsel of the realm". Scutage was a payment in commutation of the obligation of a tenant to provide armed knights to his Lord. Aid was a group of miscellaneous payments. Most significantly, Clause 14 of the 1215 Charter had set out in some detail how it was that the "common counsel of the realm" would be given.

It specified a process under which a summons would be issued to all tenants in chief, on at least 40 days notice and further procedural detail. Clauses 12 and 14 were omitted in 1216 and in all subsequent Charters.

THE 1217 CHARTER In 1217 the barons and Prince Louis' French army were defeated, and the French fleet bringing re-inforcements was sunk, by royalist forces. What a difference there would have been in world history if this long forgotten French invasion had not failed and the English and French crowns had been united in the first quarter of the 13th century!

After the victory, the Magna Carta was re-issued in November 1217, with some amendments, but basically in the terms of the 1216 version. Significantly, as I will discuss, four clauses of the 1215 Charter, referring to the Royal Forests, were replaced by an entirely new Charter, known as the Forest Charter, which regulated in detail the extent of, and the conduct of activity in, such forests. Because the Forest Charter would operate in parallel with the original Charter, the word "Great" was added to the original, which henceforth became known as the Magna Carta.

Magna Carta put it: "The Charter of 1215 was the work of King John's enemies. The re-issues of 1216 and 1217 were the work of his friends and supporters".5 The loyalists clearly believed that many of the provisions of 1215 set out long-standing customs, including limits on the exercise of royal power. This belief extended to most of the original provisions restraining the abuse of feudal powers. Other provisions, no doubt inserted at the insistence of the more radical barons, were deleted.

The re-issue of 1217 was not a concession given by a weak monarch.

It constituted a statement of good governance by that part of the political nation that was loyal to the king and was promulgated on his behalf. Admittedly, the monarch himself was underage.

However, William Marshall had displayed spectacular loyalty to the Crown throughout his career. He led a group of advisors who, in a Great Council, had advised the re-issue of the Magna Carta and the issue of the Forest Charter.

THE 1225 CHARTER AND CONFIRMATIONS In 1225 the Magna Carta and the Forest Charter were re-issued for the final time.

Although still not of full age, Henry III had assumed Regal powers by then. Unlike the 1216 and 1217 re-issues, the 1225 Charters were authenticated by the seal of Henry III himself, rather than by that of his Regent.

There were few changes to the 1217 version in 1225 although, by amalgamation and omission, the number of clauses was reduced from 40 to 37.

Certain provisions in the 1225 Charter did not exist in the 1215 version. They reflected common interests of the King and the magnates. Clause 32 prohibited any freeman disposing of his land insofar as it would restrict his ability to give full service to his Lord. Clause 36 prohibited any person purporting to dedicate his land for religious purposes, on the condition that it was given back to him as a tenant. Any attempt to do so was punished by forfeiture of the land.

This was a model for many schemes of tax avoidance in the future. And for the regulation of such avoidance.

About one third of the 1215 text had gone. Subsequently the two Charters were "confirmed", as distinct from reissued, by a number of kings. However, the Charters had now reached their final form.

Between 1225 and his death in 1277, after a reign of 56 years, Henry promised

As one of the foremost historians of the 19

to uphold the Charters about a dozen times. He did this when he needed additional revenue and, on several occasions, after periods of significant unrest against his reign.

In 1237, Henry again confirmed the Charters and, having attained his majority some years before, did so in a way that would bind his successors.

It was during the early years of Henry's personal rule that the great English legal text, attributed to Bracton, was compiled.

Its central constitutional proposition was that the King was subject to the law. As Maitland characterised the import of the Magna Carta: "In brief it means this, that the King is and shall be below the law"6.

Notably, in 1234, Henry III had had to acknowledge that on a number of occasions he had unlawfully expropriated land in contravention of Clause 29 (Clause 39 of 1215) – the promise not to deprive anyone of property without "lawful judgment of his peers or by the law of the land"7. Nevertheless, throughout his reign, Henry's failure to observe the Charters remained a focal point of political discourse and of periodic rebellion.

THE CONFIRMATIONS OF 1297 AND 1300 Perhaps the most significant confirmations of the Charters were those of Edward I in 1297 and 1300. The 1297 version is the copy of the Magna Carta in Parliament House, Canberra.

In July 1297 disaffected barons had drawn up a list of the grievances in a document entitled Remonstrances. This list set out the complaints about the failure to enforce both the Magna Carta and the Forest Charter. In addition, complaints were made about forms of taxation that did not exist at the time of the 1225 Charters. The skill of royal advisors in concocting new revenue devices would be a recurring trigger for constitutional development.

1297 was a time of national tension, in the immediate wake of the English military disaster in Scotland at the hands of William Wallace. There was a threat of further rebellion by English barons.

Furthermore, Edward needed additional funds to conduct his military campaign in Flanders, directed at France.

The Charters that were confirmed by Edward in 1297 were the two Charters of 1225, issued by, and in the name of, his father, Henry. However, the covering document of 1297 - called the Confirmation of the Charters - made a number of promises in addition to those 20 | Brief September 2015

contained in the 1225 documents.

The 1297 text of the Magna Carta became the definitive version in England and was entered as the first item in the official Chancery "Statute Roll", even though it contained a mistake due to a transcription error8. However, the Charter remained a series of political promises.

The problem was enforcement.

Within a year, complaints about Edward's failure to uphold the Charters re-emerged. The principal focus of complaint was about his failure to enforce the Forest Charter. Hostility became intense when Edward purported to reissue that Charter with deletions and subject to a new qualification.

The 1297 Charters had been sealed on the king's behalf - he was on campaign in Flanders. However, he had conveyed his agreement under seal. In 1300, Edward was forced to re-issue the Charters, this time authenticated under his own great seal. The political nation extracted a further series of commitments with a view to future enforcement of these political promises. The commitments were contained in a covering document, referred to as the Articles upon the Charters. These Articles imposed a range of restrictions on royal administration, from revenue-raising measures to interference with judicial processes and, in considerable detail, created a mechanism to enforce the Charters, particularly the Forest Charter.

Eventually, Edward obtained absolution from a compliant pope of his promises in the Confirmation and Articles.

However, some of the specific provisions had already been replicated in other legislation. The 1225 Magna Carta remained part of political discourse, albeit of diminishing salience.

THE POLITICAL NATION The Magna Carta is not the only formal grant of liberties by a European medieval monarch. It is, however, the most detailed and the most long-lasting of all such documents. As finalised in 1225, the Magna Carta and Forest Charter are not simply a list of grievances to be remedied. By reason of their scope and detail they constitute the first comprehensive statement in written form, formally promulgated to the whole English population, of the requirements of good governance and of the limits upon the exercise of political power.

One of the most distinctive characteristics of the Magna Carta, and of the Forest Charter, in contrast with equivalent Charters conferring liberties on barons or cities elsewhere in Europe, was that the sole purpose of the English

Charters was not to confer autonomy, indeed a high level of independence, on these separate fiefdoms. To some degree they did so. A central purpose of those who put their faith in the political promises contained in the English Charters was, as one scholar has put it, to affirm: "a share in an already wellestablished, centralised and monarchical system of government"9.

That was why the loyalist magnates deleted provisions, such as those giving powers to the Committee of 25 in the 1215 version, from the re-issues of the Charter.

The import of the two Charters is constitutional, to use contemporary terminology. It is not a "Constitution" in the sense of setting out a structure of government and a statement of powers and principles for the future exercise of authority. Such a document is only required for an age of political, social and economic change. The 13th century was not such an age. The Charters were restorative and demonstrative, not constitutive.

Several themes, each derived from custom and tradition and each recognisably of constitutional significance, underlie the Charters.

First, the acts of the King are not simply personal acts. The King's acts have an official character and, accordingly, are to be exercised in accordance with certain processes.

Secondly, the Charters affirm, by their very nature and circumstances of their issue and confirmation, the obligation of the King to consult the political nation on important issues.

Thirdly, the Charters restrict the exercise of the King's feudal powers – subsequently transmogrified into prerogative powers – in accordance with traditional limits and conceptions of propriety.

Fourthly, the King cannot act on the basis of mere whim. The King is subject to the law and also subject to custom which was, during that very period, in the process of being hardened into law.

Fifthly, underlying both Charters, is the proposition that the King had in fact acted contrary to established custom and, to some degree, contrary to the law.

Sixthly, the King must provide a judicial system for the administration of justice and all free men were entitled to due process of law.

The treatment of the two Charters over the course of their first century, reinforced these themes, without stating them explicitly. There was no need to

do so. The only thing that was required was to identify the matters necessary to restore compliance with proper conduct in a polity with a well understood and broadly accepted structure.

At the heart of English constitutional evolution - particularly in the six centuries between the Norman invasion of 1066 and the aftermath of the Dutch invasion of 1688 – was the tension between alternative bases for the legitimacy of the institutions of governance. On the one hand, was a top down model of legitimacy from a sovereign. On the other, was organic legitimacy from the emergence of institutions over the course of centuries.

The Magna Carta and the Forest Charter, stand in, and propagate, the tradition or organic legitimacy. They draw on, and purport to reassert, the customs of the past.

The Magna Carta of 1215 is expressed as a "grant" issued on the advice (in older translations by the "counsel") of eleven named ecclesiastics, sixteen named lay barons and an unknown number of unnamed "faithful subjects". The last inclusion is of some significance. This was a document for the entire political nation, not just for the secular and clerical magnates. Both the language of "grant" and the identification of the political nation are pregnant with future constitutional development.

The first clause of the 1215 Charter states expressly, that it was a document for the entire political nation. After promising the freedom of the Church, the second sentence of Clause 1 states that the promises in the subsequent 62 clauses are "liberties" granted to "all of the free men of our realm", for the benefit of themselves and their heirs, binding King John and his heirs "forever".

It is sometimes overlooked that the Magna Carta did not simply provide

benefits to the great secular and clerical magnates of the realm. A number of provisions make express reference to benefits conferred on all free men10.

Furthermore, all the provisions of the Charter were expressly extended,

by Clause 60 of the 1215 version, as repeated in the concluding passage of the 1225 version, to every level of the feudal hierarchy. The promise was that "the customs and liberties which we have granted to be observed ... towards our men, all of our kingdom ... shall observe as far as it pertains to them toward their men". The beneficiaries of the Charters were all the free men of the realm. Henry III and Edward I often called on the barons to observe the Magna Carta11.

Much future constitutional conflict is implicit in the language of "grant" in the 1215 Charter. Indeed, the tension emerged quickly. In 1225, the permanent form of the Magna Carta, referred to the liberties, not merely as having been "granted", but as "given and granted".

The additional word "given" re-inforces the suggestion of irrevocability.

Nevertheless, conundrums remained.

Was this list of political promises an act of benevolence on the part of the King, or was it an acknowledgement by the King of restraints on sovereignty arising from custom and law? Similarly, who is entitled to offer counsel to the King: the clerical and secular magnates alone, or a wider range of free men? These issues would not be resolved for centuries.

RESTRAINT ON EXACTIONS A fundamental aspect of the Magna Carta was to impose, perhaps to affirm, restrictions on the exercise of rights that were a product of the complex of mutual rights and obligations attached to the possession of land – which was "held" from a superior, rather than owned.

These feudal incidents existed and, therefore, were open to abuse at all levels

of the feudal hierarchy, not just between the King and his tenants in chief.

On the limited evidence that exists, the abuse of these exactions by the King, at the pinnacle, were not generally replicated lower in the hierarchy of feudal land ownership12. This was so not least because sub-tenants had access to the Royal Courts which the tenants-in-chief did not. To the degree that they were replicated, however, the restrictions in the Magna Carta applied throughout the hierarchy.

The largest number of clauses of the Magna Carta, in all versions, were those directed to preventing the King's abuse of incidents of feudal tenure and social structure to raise revenue13. There was a wide range of such powers which were open to exploitation by the King. Abuse was inherent in a system that permitted when and how much could be imposed, to be decided in the discretion of the person entitled to the payment or benefit.

These feudal incidents included: •

Whenever a tenant in chief died, his land reverted to the King. There was no formal limit on how long the King could exploit the land before allowing a successor to inherit, or how much he could charge to permit him to do so.

•

The obligation of a tenant to provide armed knights could be commuted for payment of a fee – scutage – the amount and frequency of which, was in the discretion of the King.

•

The amounts payable to wed a widow or heiress or a ward and the amount payable by a widow in order not to be forced to marry, were also at large.

•

Numerous payments, called reliefs, could be imposed on various events in the feudal calendar.

•

Other payments called aids

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"We can recognise this as our direct legacy. In this respect, ... the Magna Carta, together with the elimination of abuse under forest law by the Forest Charter, are particularly worthy of commemoration." were imposed, not only for long established purposes – to marry a daughter, to knight a son or to pay for the ransom of the lord – but for purposes limited only be the imagination of the lord.

•

Payments for the King's mercy, fines for an offence, and even payments to appease the King's anger were imposed whenever and in whatever amount the King demanded. There are payments recorded for matters like "the King's benevolence" or his "peace" or his "favour" or that the King's anger may be "allayed" or "abated" or be "put aside".

•

The profits of justice were also considerable.

•

roperty was forfeited on conviction, P or even allegations, of treason and other offences.

•

Payments were made for writs and court fees.

•

Payments were made to accelerate

22 | Brief September 2015

or delay legal proceedings.

•

Payments were made to permit plaintiffs to demand trial by assize, rather than by ordeal.

Few of these payments were subject to any rules, let alone controls, as to how much could be charged, or when, or for how long. Hence, they were open to abuse.

The provisions of the Charters restricting the king's revenue generating powers were designed to impose controls, usually in general terms, but sometimes in detail - with amounts stipulated, circumstances of imposition excluded or a standard of reasonableness, or of custom, expressed. For example, by Clause 37 of 1225, scutage could only be levied as it had been at the time of Henry I. Not all these promises were honoured, but there is little doubt that, cumulatively, they represented a significant constraint on the revenues of the King.

THE FOREST CHARTER There were four clauses about the Royal Forests in the 1215 Charter. This minimalist provision was completely transformed in the detailed, separate Forest Charter of 1217, as settled in 1225. These provisions, the product of the royalist political nation, tend to be overlooked in the recognition of the Magna Carta as the foundation of the English Constitution. They should not be. Royal conduct in the forests was an important sphere in which the prerogative had been exercised to the detriment of every level of society. These abuses constituted a major source of royal revenue.

The Royal Forests were created by William I. The Normans were hunters and William reserved significant parts of the country for that purpose. He did so irrespective of prior rights in the land. When he created the New Forest in Hampshire, numerous villages were uprooted and the inhabitants expelled.

As one 12th century chronicler put it: the forests were "the safe dwelling place of wild "beasts" and "the sanctuaries of kings"14.

In his Charter of Liberties, Henry I stated that he would keep the forests as they were held by his father. However, it

was William I who began the significant extension of the area enclosed by the Royal Forest and introduced the draconian forest laws which were, even by 1100, regarded as oppressive. Henry only promised to remedy any extension that had occurred under William Rufus.

After the considerable extension of the size of the forest under Henry II, it is estimated that somewhere between one quarter and two thirds of England was incorporated in the Royal Forest. This included most of Essex, large parts of Berkshire, Hampshire, Wiltshire, as well as other counties15.

The Royal Forests were a place where the King's will operated without restraint.

Forest law overrode the common law.

By 1215, complaints about the severity of the forest law and the abuse of power

by Royal officials in the forest had been escalating for over a century. As a chronicler of the time of Henry II put it: The worst abuse in the Kingdom of England under which the country groaned, was the tyranny of the foresters. For them violence took the place of war, extortion was praiseworthy, justice was an abomination and innocence a crime.

No rank or profession, indeed, in short, no one but the King himself, was secure from their barbarity or free from the interference of their tyrannical authority16.

These forests were not merely woodland or wilderness. They encompassed arable land, including cultivated areas, as well as homesteads, villages and even townships. Major parts of the Royal Forest were land held by others, including by barons, abbeys, bishops, knights and free men. Such land could not be used for productive purposes without the licence of the king.

The woods, until appropriated by the King, had often been a commons, available to all. As such, they were an important part of the moral economy. It is difficult to understate the contemporary economic significance of wood. It was not only a fuel, but the transport, building and furniture material of all but the very wealthy. The extent of, and regulation in, the forest was of interest to everyone, not just free men. This is the context of the legend of Robin Hood – still the only fictional character in the Dictionary of National Biography.

The scope of the restrictions on what could be done in these forests was wide- ranging. No one was allowed to hunt for beasts of the chase, including deer and wild boar. They could be taken only by the King. The forests were a royal larder. Other prey, like rabbits, foxes,

wolves and badgers, could only be taken with royal licence. Similarly, licences were required to cut down trees, clear land, graze pigs or keep hunting birds.

Dogs could only be brought in if they were physically disabled. Licences were required to create hedges or dig ditches.

These are only a few of a long list of prohibitions that could be lifted for a fee.

Further, breach of the detailed regulation of conduct in the forest was punishable by fines, the size of which was in the absolute discretion of the King and his officials. The regime constituted the operation of the royal prerogative in its most absolutist form. Charges for the grant of licences and fines for breach of forest law constituted a significant source of royal revenue. In substance, this was an arbitrary form of taxation, administered in a tyrannical way. It was a burden on all sections of English society.

There were two kinds of grievances with respect to the Royal Forest. First, the extent of the forest had been increased by each Norman and Angevin King without consent. Secondly, the abuse of power involved in the administration of forest law was intolerable.

In the 1215 Charter, John had promised to de-forest any land which had been added to the Royal Forest during his reign (Clause 47). He resisted the demand in the Unknown Charter to deforest all additions since the accession of Henry II. He simply promised that, after he returned from Crusade, he would "do full justice" to those who had complaints about the additions to the forest that had occurred in the time of Henry II and Richard I, (Clause 57). John also promised that 12 knights of each county would conduct an investigation into the "evil customs" of foresters, and other royal servants, and to abolish such "customs" within 40 days (Clause 48).

In the 1216 re-issue of the Magna Carta, the forest issues were among a number of matters which were reserved for further determination by a royal Council.

That consideration led to the detailed, separate Forest Charter of 1217, which was re-issued with minor amendments in 1225.

With respect to the extent of the Royal Forest, the 1225 Forest Charter promised to return all land that had been included in the Royal Forest since the coronation of Henry II, (Clauses 1, 2, 3, 4, 5). As to the abuses of forest law, the procedures of forest justice were regulated in detail, (Clauses 2, 5, 6, 7, 8, 16). The death penalty for taking deer was abolished, (Clause 10). The price of certain licences was also regulated (Clause 14). New provisions expanded what people could do in the forest, particularly upon their

own land, e.g., cutting down trees, hunting, clearing land and deploying hunting birds or dogs (Clauses 9, 10, 11, 12, 13).

Henry III did not keep all these promises, especially with respect to de-forestation.

The results of the investigations – called perambulations – to be conducted by local knights and free tenants to determine the improper extensions of the forest, proved unacceptable to the King. They would have required a major reduction in the size of the forest. His rejection of most of the findings was unacceptable to the communities17.

Some areas were deforested but disputes were frequent18.

The Remonstrance served on Edward I in 1297, focused on his father's, and his own, failure to observe the promises of the Forest Charter. When Edward confirmed both Charters in November 1297, he re-iterated the promise made by his father to remove all land that had become forest since Henry II's coronation, and to conduct further perambulations to identify that land.

Within a year complaints re-emerged that Edward had not honoured his promises.

Indeed, in 1299, Edward had re-issued the Forest Charter but omitted the first five clauses of the 1225 version. This caused outrage. By June he had to promise a further perambulation of the forest to reduce its extent19.

When the Charters were again confirmed in 1300, the accompanying Articles upon the Charters set out in some detail the procedure for determining what land had been improperly declared to be Royal Forest since the coronation of Henry II. The Articles created a new enforcement system, appointing local representatives in each county to investigate and determine the facts.

In 1301, Edward, who was usually at war, needed money again. Parliament reconvened for the purpose of a further grant. That Parliament also received the results of the perambulations. After a century of delay, the results were almost universally against the Crown. About half of the Royal Forest was declared to have been unjustifiably added to that which existed under Henry I. Thousands of acres were returned to their communities20.

Edward was justifiably sceptical about the whole process. Local juries determined the extent of the Royal Forest, as it had existed one and a half centuries before. Needless to say, local folklore did not underestimate the rights of local landholders and communities. It is not surprising that they found in favour of local interests, at the expense of the 23

Crown. Edward said that he would never forget how "the stress of great necessity" had led him to "the surrender of his hereditary right"21. He was right to be sceptical.

The restraints on the Crown carried into affect by the Forest Charter, when it was finally enforced, probably represented the most significant single restraint on the exercise of the royal prerogative in the medieval era. It would not be surpassed in that respect until the demise of the Stuart Kings. The Forest Charter deserves to be as well remembered as the Magna Carta.

CONSULTATIVE PROCESS The evolution of the Parliamentary system was derived to a significant degree from the need of Kings to obtain consent to additional taxation. Such consent would not have been necessary, or at least not necessary as often, if the Magna Carta had not restricted the abuse of the King's feudal rights to generate revenue and the Forest Charter had not restricted the ability to raise revenue, or save costs, from the vast tracks of England categorised as Royal Forest.

In my opinion, this effect was probably the major constitutional contribution of the 13th century Charters. Nevertheless, several centuries of dispute about the use and abuse of prerogative powers lay ahead.

The calling of an assembly for purposes of consultation between the King and the political nation finds its origin in the Anglo-Saxon tradition of a Witanagemot.

The Normans adopted this practice in the form of a Magnum Consilium (Great Council).

One could not describe the process of consultation, either in the Anglo-Saxon or Norman-Angevin tradition, as constituting a request for approval. What was sought was assent, rather than consent.

Nevertheless, the necessity to obtain assent to taxation, leading eventually to Parliamentary control of the executive, can be traced to the Anglo-Saxon practice of consultative assemblies.

Parliament's role on taxation would remain at the centre of constitutional controversy for centuries. The gradual development of the principle of parliamentary assent, during the 13th and 14th centuries, was closely related to the affirmation of the Charters.

Between 1216 and 1225 during Henry III's minority, some 25 Great Councils were held. The 1217 and 1225 Charters were expressly re-issued in exchange for a tax, in the latter case 1/15 of all movables, as assented to by the Great Council of that year. The tax was needed 24 | Brief September 2015

for Henry to defend Gascony from the French, in the event, successfully, so that the province remained in English hands until 1453. The further confirmation in 1237 was also issued in exchange for a grant of taxation.

The tradition of requiring consultation before additional forms of taxation were introduced, was affirmed in the express statements, in the 1217 and 1225 reissues of the Charters, as repeated in subsequent confirmations, that the liberties granted or continued were by way of exchange for such taxation from the political nation. The deletion, in 1216 and thereafter, of Clause 14 of the 1215 version – which made detailed provision for the "consent of the realm" – meant that the obligation to obtain consent was not an express promise. It was what we would now call a constitutional convention. Perhaps, the first, and most important, convention.

The Council of 1225 was clearly a feudal assembly. Over the course of the reign of Henry III, the Councils were supplemented by the calling of a "parliament" – a place where people came to talk, from the French "parler".

In 1297 when Edward I requested an additional tax on moveable property, the relevant assembly giving assent was a parliament, rather than a feudal body representing only the barons.

His parliaments included knights and burgesses. However, the "parliament" was still an event. The Parliament did not emerge as an institution until later in the 14th century.

Edward I's Confirmation of 1297 did not describe the Charters as having been "granted" by Henry III. More consistent with the evolution of consultative mechanisms, the Confirmation states: "The Great Charter of Liberties and the Charter of the Forest, which were made by common consent of all the realm, in the time of King Henry our father, shall be kept in every point without breach".

(Emphasis added) Of future significance was Clause 6 of this Confirmation, which expressly stated that certain forms of taxation, including "aids", would not be imposed unless there was "common consent of all the realm and for the common profit thereof".

This last phrase was a strikingly novel entry of the concept of public benefit into the quasi legislative process of re-issue and confirmation of the Charters.

The obligation to consult was now express. It was no longer a constitutional convention.

GOOD GOVERNANCE Underlying many provisions of the Magna

Carta are principles of good governance.

Some examples are the provisions which promoted trade. These clauses were clearly of interest to merchants, particularly those of London, a centre of the rebel opposition. Executive powers could be exercised to impose exactions on trade. The restriction of the royal prerogative in such respects would remain contentious in the future.

In addition to a provision guaranteeing the liberties hitherto granted to the city of London and other cities, notably the Cinque Ports (Clause 9), there were clauses for clearing fish weirs – which inhibited freedom of movement on the rivers (Clause 23); for establishing a national system of weights and measures (confirming regulations originally introduced by Richard I) (Clause 25); for guaranteeing freedom of movement to merchants within England and offering protection to foreign merchants on the basis of reciprocity (Clause 30). Such provisions, enacted in the public interest, go well beyond simply restricting the exercise of executive power.

The close relationship between provisions designed to remedy abuse of power and provisions promoting good governance is particularly strong in the complex of provisions relating to the provision of justice. Unlike most of the clauses, these are not, in general, designed to lessen the activity of the King, but to increase it. Establishing the King's peace was a primary duty of a feudal monarch.

The best-known, and most enduring, provision is Clause 29 of 1225, which is an amalgamation of Clauses 39 and 40 in the 1215 Charter. It is notable that the promise not to impose sanctions "except by the lawful judgment of his peers or by the law of the land" is granted to all free men. Similarly, the second promise, not to "refuse or delay right or justice", is granted to everyone.

The better, albeit not unanimous view, is that the reference to judgment of "peers" was a reference to social equals, not just to barons. Furthermore, notwithstanding many statements to the contrary, Clauses 39 and 40 were not the basis for the development of the jury system. The event of 1215 that caused the investigating jury – or Grand Jury in modern parlance – to develop into the "petty", later the trial, jury, was the decision of the Lateran Council in Rome that very year to prohibit any priest being involved in trial by ordeal.

The Magna Carta contains numerous other promises directed to preventing abuses and improving the institutions of the rule of law. The scope, of itself, manifests an intention to benefit the

whole community: •

common pleas would not follow the ambulatory royal court, but be fixed in a particular place, eventually Westminster (Clause 11);

•

disputes relating to the ownership of land would be heard in the counties in which the land was located and determined by visiting justices, sitting with local knights (Clause 12);

•

royal justices would visit annually to hear the most common causes of action for recovery of land and inheritance (Clause 12), (reduced from quarterly visits in the 1215 version - Clause 18);

•

•

•

•

•

•

•

fines for offences, called amercements, would be extracted only for serious offences, would vary with the gravity of the offence and would be imposed only on the oath of law-abiding locals (Clause 14); pleas of the crown, i.e. serious criminal charges, would not be heard by sheriffs, constables or coroners, but only by justices (Clause 17); constables and bailiffs would not take private property without full payment in cash (Clause 19); sheriffs and bailiffs or, for that matter, any other person, would not take horses or carts, save on payment of a prescribed amount, nor any timber, except by consent (Clause 21); the writ of praecipe would no longer issue to remove to the Royal Court a cause of action, which was properly before the court of a Lord (Clause 24); no bailiff would put anyone on trial upon his own word, without reliable witnesses (Clause 28); and the frequency of shire courts was regulated, as was the amount sheriffs could exact in the hundred courts from the system known as frankpledge (Clause 35).

Finally, for a sexist age, Clause 34 expressly provided that no one should be arrested or imprisoned upon the complaint of a woman for the death of anyone except her husband when, apparently, she might be believed.

Notably, Clause 45 of 1215, by which John promised not to appoint justices constables, sheriffs or bailiffs who did not know the law or who did not intend to observe it, was dropped in 1225. There was an element of impracticality in this promise. However, in 1218 salaries were introduced for senior justices for the first time, no doubt as an anticorruption

measure, but also as some guarantee of quality. This was the beginning of a salaried professional judiciary.

These numerous provisions, constituted a guarantee of the rule of law appropriate for that era. They went well beyond the general statement of principle in Clause 29 which we remember day.

Collectively, they built on the foundation for the institutions of justice that already existed and established the basis for their future development. We can recognise this as our direct legacy. In this respect, perhaps more than any other, the Magna Carta, together with the elimination of abuse under forest law by the Forest Charter, are particularly worthy of commemoration.

THE AUSTRALIAN CHARTER In this 800th anniversary year, pride of place in Australia's commemoration must go to the copy of the Magna Carta on display in the Commonwealth Parliament. There are only 24 original Magna Cartas issued between 1215 and 1300 in existence, one of which was only discovered last year in the records of the Sandwich City Council.

Australia's copy is one of only four copies of the 1297 version. It was sold by the Kings School Bruton, located in the West Country. This small private school had no record of how it had acquired this single sheet of writing on sheep skin when, in 1951, the headmistress brought it to the British Library for identification.

On the advice of Sothebys, the King's School valued the Charter for the then princely sum of £10,000. The British Library, which did not have a copy of the 1297 Charter, was only prepared to pay £2000. After a process of interdepartmental disputation, and some astute publicity on the part of the Menzies Government, the Magna Carta was allowed to be sold to Australia at the valuation.

With Captain Cook's Endeavour Diaries and Blue Poles, this is one of the best investments the Commonwealth has ever made. In 2007 the only 1297 Charter in private hands sold at auction for US$21.3 million.

In the Sotheby's catalogue for the 2007 sale, Professor Nicholas Vincent, one of the foremost contemporary scholars of the Magna Carta, set out the provenance of the Australian Magna Carta. He had inspected unsorted deeds in the British Library, most of which had never been catalogued. He discovered an original 1297 copy of the Forest Charter issued to the County of Surrey. This was the companion of the Australian Charter, which had also been sent to that county.

His investigation revealed that the British Library's Forest Charter was a gift to the Library in 1905. That gift had been delivered by a firm of London solicitors.

They were also the solicitors for the King's School in Bruton.

Professor Vincent concludes that this Charter was only available for sale because of a clerical error made in the firm of solicitors. They had put the Magna Carta in the wrong envelope and sent it to the school, rather than include it, as he inferred the previous owner intended, in the 1905 bequest of both Charters to the British Library22.

If the British ever return the Elgin Marbles, we can expect a claim for the Australian Magna Carta.

NOTES This article was first published by Thomson Reuters in the Australian Law Journal and should be cited as Australian Law Journal (James Spigelman, “Magna Carta in it Medieval Context” (2015) 89 ALJ 383). For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at www.thomsonreuters.com.au/ catalogue.

The official PDF version of this article can also be purchased separately from Thomson Reuters.

1.

Lord Macaulay Critical and Historical Essays Contributed to the Edinburgh Review London, Longman's Green, 1877 page 37.

2.

F. W. Maitland the Constitutional History of England Cambridge Uni Press, Cambridge 1908 page 15.

3.

Nicholas Vincent Magna Carta A Very Short Introduction Oxford Uni. Press, Oxford, 2012 pages 67-68.

4.

Matthew Paris quoted in Anthony Arlidge and Igor Judge Magna Carta Uncovered Hart Publishing, Oxford, 2014 page 81.

5.

J. C. Holt, Magna Carta (Second Edition) Cambridge Uni Press, Cambridge 1992 page 378.

6.

F. Pollock and F. W. Maitland, The History of English Law (Second Edition) 1911, London, pages i,173.

7.

D.A. Carpenter The Reign of Henry III Hambledon Press, London, 1996, pages 38-39.

8.

Nicholas Vincent Magna Carta: The Foundation of Freedom 1215-2015 Third Millenium Publishing, London, 2015, page 84.

9.

Martin Loughlin The British Constitution Oxford Uni Press, Oxford, 2012 page 45.

10.

See Clauses 15, 20, 27, 30, 39 and 40 of 1215.

11.

See e.g. D. A. Carpenter The Reign of Henry III op cit pages 86-87.

12.

See Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted Oxford Uni Press, Oxford, 1994 pages 361-368.

13.

Of the 37 clauses of the 1225 version, which I use hereafter, unless otherwise stated, because of its permanence, 20 were concerned with such abuses: Clauses 2, 3, 4, 5, 6, 7, 8, 10, 15, 16, 18, 19, 20, 21, 22, 24, 27, 31, 33 and 37.

14.

Quoted in Arlidge and Judge op cit page 89.

15.

See map in W.L.Warren, Henry II, Eyre Methuen, London 1973 page 390.

16.

Quoted in Warren, ibid page 392.

17.

See e.g. D.A. Carpenter The Minority of Henry III, Methuen, London 1990 pages 168-9, 180-182, 276278, 384-5.

18.

ibid., pages 391-393.

19.

See Marc Morris A Great and Terrible King Windmill, London 2008 pages 317-8.

20.

See Morris ibid., pages 328-330.

21.

Morris ibid., page 330.

22.

See "How Magna Carta Comes to Australia 1952-3" in The Magna Carta, Sotheby's, New York, 2007 pages 93 ff; also Nicholas Vincent "Magna Carta: What more is there to say? "National Archives, Audio Podcast Series 13 July 2012. See www.media. nationalarchives.gov.uk/index.php/magna-carta-hatmore-is-there-to- say/

25

1.

2.

3.

4.

5.

6.

Society Club is our quarterly social and networking function, with each event hosted by a different Society committee. In July, the In-house/ Government Lawyers Committee were the hosts.

Society Club. Pamela Hass, Convenor of the In-house/Government Lawyers Committee, gave an update on the Committee's current work and future focus whilst acknowledging the efforts of the other Committee members.

The occasion was held at the Rydges Perth, on the hotel's CBD Terrace event space. The Terrace was an ideal setting, with the lengthy balcony space providing the supreme vantage point for the attendees as the sun set over the city.

Thank you to Profile Legal Recruitment and LEAP Legal Software for their valued support of the Society and its events. Profile Legal Recruitment was represented on the night by Stacey Back, while David Greenhough and Waseem El Faouri from LEAP Legal Software were also in attendance.

Close to 100 guests enjoyed a wide array of delectable canapĂŠs, including spiced lamb kofta, yakitori chicken sticks and caramelised onion and fetta tartlets. Attendees were also able to take advantage of the complimentary drink as they networked with valuable new business contacts, or caught up with old colleagues.

Alain Musikanth, Vice President of the Society, welcomed attendees before providing some background to

Proudly sponsored by

26 | Brief September 2015

Alain Musikanth and Pamela Hass assisted the sponsor's representatives with a fantastic prize draw.

Congratulations to the winners, who each received a bottle of wine.

Thank you to all who attended; we look forward to seeing you all at the next Society Club in October.

7.

CAUGHT ON THE NIGHT:

1.

Gemma Mitchell and Curtis Ward, Consumer Credit Legal Service (WA) Inc.

2.

Sarah Ozanne; Andre Carles; Archana Luktuke, Butcher Paull & Calder; and Gregory McIntyre SC, Councillor, The Law Society of Western Australia.

3.

Alain Musikanth, Vice President of the Law Society of Western Australia.

4.

Waseem El Faouri, LEAP; MĂźge Ozcan, Vitalis Legal Pty Ltd; and James Irving, Irving Law.

5.

Courtney Furner, Supreme Court of Western Australia and Rosie Hill, State Solicitor's Office.

6.

Laura Christian and David Davidson, Office of the Director of Public Prosecutions; and Edward Greaves, Francis Burt Chambers.

7.

John Woodhouse, City of Rockingham and Katrina Wild, Bankwest.

Farewell to the Honourable Justice Heenan At Perth on Tuesday, 23 June 2015

Transcript of speech by Peter Quinlan SC Barrister, Francis Burt Chambers

May it please the court.

It is with great pleasure that I appear on behalf of the Western Australian Bar Association on this occasion of your Honour's retirement, to acknowledge your Honour's significant contribution to this court and the community of Western Australia as a judge of the court for over 13 years. We also acknowledge and thank your Honour, too, for the enormous contribution your Honour made to the legal profession of this state in over 30 years of legal practice, most of which were as a member of the Bar Association.

We acknowledge and congratulate, too, your Honour's family, your wife Elizabeth and Doctors Eric and Jessica, who I am sure join in the celebration of your Honour's career and look forward to your Honour's retirement. Your Honour's grandchildren, Alice and Ivy, who are strategically absent from the courtroom, no doubt are particularly looking forward to spending more time with you.

As has already been mentioned, your Honour's contribution to the law and the legal profession forms part of what may be best described as an extended family business. Your Honour's father, Eric Michael Heenan Senior, was admitted as a practitioner of this court almost exactly 40 years before your Honour, and was both your Honour's principal and partner.

And of course, as has been said, your mother Joan Mary Heenan is widely acknowledged as one of the pioneers for women in the legal profession in this state.

The citation for the Heenan-Payne Prize, which is annually awarded by the Women Lawyers of Western Australia, rightly describes Joan Heenan as 'trailblazing'.

That trailblazing baton was of course passed on to your wife Elizabeth, who, in 2012, was the inaugural recipient of the National Australian Women Lawyers Award for her role as a model and mentor for a generation of Australian women lawyers.

28 | Brief September 2015

It comes as no surprise, then, that your Honour has also been a great supporter of the advancement and opportunity for women in the legal profession. In that regard, knowing that I was speaking today, of the members of the Bar that approached me with stories of assistance and guidance your Honour gave to their careers, the majority were women.

To refer to only a couple of those contributions, your Honour is one of the few leaders of the Bar who regularly employed new graduates to provide them with the opportunity to commence their articled clerkships at the Bar, and so be exposed to work as an advocate at the earliest stages of their career.

Two of those students, Belinda Lonsdale and Rebecca Lee, have gone on to successful and distinguished careers at the Bar where they continue that tradition of mentoring and support for younger practitioners. Ms Lee remarked that your Honour was a fine example of the adage, "Lift while you climb".

Ms Lonsdale also recounts with great admiration an occasion where, to encourage her interest in practice at the Bar, your Honour arranged and paid for a long lunch at the famous Coco's Restaurant to introduce her to the leading women of both Bench and Bar. It was a large gathering – you were the only man in attendance – which included their Honours Judges Kennedy and French, and visiting from England, Patricia Scotland QC, in 1991 the first black woman to be appointed Queen's Counsel and now Baroness Scotland of Asthal. Such practical assistance to the careers of others was always a characteristic of your Honour's career.

And of course, as has been said, the legal dynasty now moves into its third generation, with Dr Eric Heenan's election to the Bar Association in 2012.

The admission of 'Young Eric', as he is affectionately known, now means that there has been an Eric Michael Heenan continuously on the role of legal

practitioners of this court since 1929. Dr Heenan's success at the Bar bodes well for the centenary of that position in 14 years time.

Characteristically, in your Honour's case, however, the arc of your Honour's legal career goes back much further than 1929. The year 1656, to be precise.

That was of course the year in which the Dutch vessel the Gilt Dragon became wrecked off the coast of Western Australia where it lay until discovered by Ellis Alfred Robinson in 1963.

In 1964 the Parliament of Western Australia enacted legislation seeking to acquire property rights in wrecks to the Gilt Dragon and others, and to defeat Mr Robinson's salvage rights. As my learned friend Mr Keogh has said, it was of course to your Honour that Mr Robinson turned for legal assistance in his battle against the state.

Your Honour has been, figuratively and literally, such a towering figure in the WA legal profession for so long, that it is easy to forget that you could once have been described as precocious. But precocious is the only way to describe what appears in volume 138 of the Commonwealth Law Reports.

Your Honour appeared in Robinson v Western Australia, as Rumpole would say, "alone and without a leader".

The other parties were represented by Maurice Byers QC juniored by Murray Tobias, Ronald Wilson QC juniored by Kevin Parker, and William Deane QC juniored by David Hodgson. Of that company, three became knights, two became High Court judges, and the balance judges of various Supreme Courts. It was, as they say, no easy crowd.

Notwithstanding this illustrious company, not only did your Honour go on to win the case but did so at only 30 years of age.

That kind of precociousness simply isn't around any more.

It may be observed that those who

profess to practise in constitutional law belong to a notoriously closed shop, consisting largely of Solicitors-General, usually a couple of Sydney silks, and a small clique of Oxford graduates.

In 1993 and 1994, when I stumbled into and out of that group for a short time, I can attest to the fact that 17 years after Robinson v Western Australia, your Honour's advocacy in that case continued to be talked about and held up as an exemplar of great constitutional advocacy.

Your Honour's career of course went from strength to strength, including taking silk in 1985 and serving as President of the Association from 1990 to 1992. As the Chief Justice has noted, in an ever-increasing specialisation in the legal profession, your Honour managed to maintain a practice at the Bar that was wide and diverse, from crime, civil and commercial, administrative and constitutional, and of course, personal injuries.

In the personal injuries field in particular, that most important but often regrettably overlooked area of the law, your Honour was the acknowledged leader of the Bar, particularly on the plaintiff's side of the bar table. One of my leaders, who will remain nameless to preserve the dignity of the court, once remarked to me, as a direct result of an experience of appearing against your Honour in the Full Court, "I don't do quantum".

Your Honour's experience over such a wide range of practice areas has, as the Chief Justice has also remarked, served the court and the people of Western Australia well over the last 13 years as a judge of this court. The coherence of the law as a whole is greatly assisted by the cross-pollination of seemingly disparate fields of practice and modes of thought.

Your Honour's lengthy and practical experience in so many of the court's jurisdictions has therefore been greatly valued and will be greatly missed.

Of course, it is not only the legal profession that has been able to recognise your Honour's particular talents and qualities. As has been mentioned, your Honour has been held in the highest of esteem by the medical profession. Indeed, following your appointment to this court, you were the subject of special honour by the Australian Medical Association who awarded your Honour the 2002 President's Medal in recognition of your Honour's significant contribution to the medical profession. That is no small feat for a legal practitioner. For a "plaintiff's counsel" it is practically unheard of.

Of course, your Honour's contribution to the medical profession too is intergenerational, your daughter Jessica now being both a Fellow of the Royal Australasian College of Physicians and the Royal College of Pathologists of Australasia.

To illustrate the regard in which your Honour is held in both the legal and medical professions, may I remind the court of one incident that occurred in one of those many cases referred to by the Chief Justice in which you both appeared concerning an alleged breach of duty of care by a medical practitioner.

It was a case in which I was fortunate to appear as junior counsel for the first defendant.

The other defendant was represent by Ross Gillies QC

"This brings me to acknowledge some of the deep satisfaction of being a Judge of this court ... To be trusted to share in the performance of this function and to do so for as long as I have done is a reward in itself and one for which no thanks are really due."

from the Melbourne Bar leading a slightly younger Theo Lampropoulos. In the course of the defendant's case, your Honour was cross-examining one of our expert witnesses, a world-renowned professor of obstetrics from King Edward Memorial Hospital.

The trial was being conducted in what was then the May Holman Centre, where the back of the court was entirely made up of windows through which, at various times of the day, the sun would beat down mercilessly. Your Honour's crossexamination had been going for some time when the witness, who was facing both your Honour and the windows at the back of the court, asked the judge through squinted eyes, "Your Honour, could I ask that someone please close the curtains at the back of the court.

Mr Heenan's head is shrouded in bright light". Gillies QC immediately rose to his feet and remarked, "Closing the curtains is not going to solve that".

in the Bell Group proceedings and say that we trust that your Honour is able now to say in the words of Ovid, with an embellishment from the old Latin Mass: Iamque opus exegi, Deo gratias – "and now I have finished the work, thanks be to God". On behalf of the Bar Association can I extend our gratitude to your Honour for your contribution to the Bar, this court and the community of Western Australia.

We trust that your Honour now looks forward to an enjoyable retirement with family and friends and we wish you all the best in your future endeavours.

May it please the court.

It may be apocryphal but Lampropoulos swears to this day it was the only time that he observed your Honour to blush.

Given your Honour's love of Latin, may I close with a quote borrowed from paragraph 9762 of Owen J's judgment 29

Transcript of speech by the Honourable Justice Heenan

Chief Justice, your Honours, Mr Evans, State Solicitor; Mr Keogh, President of the Law Society; Mr Quinlan, President of the Bar Association; may I say how deeply I appreciate the extravagant compliments which you have paid to me today. I am vain enough to be flattered by your remarks but, I hope, not vain enough to realise that this is an occasion for compliments rather than sober evaluation. This is just as well for me.

I also am greatly honoured by the presence of so many Judges, from this and other courts, and retired Judges, many of whom are close colleagues, and magistrates, senior law officers of the State and Commonwealth, members of the legal profession, family and friends.

I am especially pleased that Professor Con Michael and Professor Bryant Stokes, senior members of the medical profession with whom I shared many years of office while on the State Medical Board from 1988 to 2002, are present, as they were at my welcome as a Judge in April 2002. I greatly value my association with that other noble profession and I have learned much about service to humanity and eternal human values from that connection.

Mr Evans, I am grateful for the kind observations you have made on behalf of the Government and the State. Please convey to the Attorney General my thanks for them, and for the trust reposed in me when I was appointed to this office.

At the Bar I had many large cases acting for the State of Western Australia or the Commonwealth, their instrumentalities and Ministers. These afforded me considerable insight into the roles of the law officers of the State and the Crown and of their vital role in government. May I add that I have always received the greatest of assistance from counsel for the State or Crown in cases before me whether in the civil or criminal jurisdiction.

This represents a long tradition of excellent service by your officers which deserves to be more widely recognised.

Mr Keogh, I greatly appreciate the remarks you have made on behalf of the Law Society which, of course, represents the majority of lawyers practising in this state. I have always valued my membership of the Society and relished the times when I served on its Council and Committees. The Society does a great service to the community 30 | Brief September 2015

in its many activities including legal education, law reform and professional development. More appreciation of its great work is needed.

Mr Quinlan, I deeply appreciate the observations you have made on behalf of the Bar Association - that collection of independent individuals who specialise in advocacy and forensic advice. The New South Wales Bar Association has as its motto 'Servants of all but of none' and this is an apt epitome of all the Bars, including your own. I feel that I never have enjoyed greater privilege or trust than when I, too, was President of the WABA in 1990 - 1992. It is a role whose memory I have always treasured.

Your members continue to deliver great service to the public, for many clients, often during their darkest hours.

It is now a long time since I began my journey in the law. Enrolment in 1963 at UWA at a time when I was torn by the temptations of a rival career in science an interest I have never really abandoned; membership of the last cohort of law students to be lectured by the late Professor Beasley and the last year to have been entirely taught at the old Law School buildings, the weatherboard structure in Irwin Street on the west side of the Crawley campus - watched by batteries of scornful first year medical students doing laboratory classes in the Department of Botany overlooking our courtyard.

The figures tell much of the subsequent changes in the legal profession. When I was admitted in 1969 my roll number was 901. My father was admitted in 1929, his number was 397. Now, at latest count, there have been 12,223 practitioners or lawyers admitted in this state.

My career has fortunately fallen into three main parts. The first 16 years in general practice at EM Heenan & Co, founded by my late father, to whom I was articled. I am delighted to see several former members of that firm here today, including Justice M L Barker, Justice John Gilmour and retired Judge Ms Kate O'Brien. It is a matter of no small pride that from that small firm and from the lawyers with whom I then practised there have, to date, emerged eight Judges, four of this court, two of the Federal Court, and three of the District Court. Justice Barker accounts for the odd arithmetic as he has been a member of both this court

and the Federal Court.

Then I had over 18 years at the Bar from 1983 to 2002 - of which I was a Queens Counsel for some 17 years, a role of immense satisfaction and interest, and one very hard to relinquish.

Now I have been a Judge of this court for over 13 years and have enjoyed sitting in all of its civil, criminal and appellate jurisdictions.

To recount these experiences is to reveal how fortunate I have been.

I can look back at the great benefit I have derived from seeing great Judges discharge their functions with grace and a keen eye for the justice of the individual case. Two past Chief Justices come immediately to mind and I will mention only them because of the effects their example had on me as a young lawyer.

First is Sir Lawrence Jackson, Chief Justice from 1969 to 1977. He was an urbane and charming man whose gentle tact did nothing to diminish his role as a fine lawyer and efficient Judge. It was he who quickly banished the culture of aggressive rudeness by some Judges which had prevailed during earlier years and which caused great harm to the profession and cast a shadow over the dignity of the court. Chief Justice Jackson showed how effective was his method of patient courtesy and how much this contributed to the dissection of the problems in a case and in identifying the solution. Ever gracious, he was adept at the 'soft answer which turns away wrath'. His was an immense influence and it would be very retrograde if these former corrosive habits ever again took hold. As President J F Kennedy said in his first inaugural address in 1961: Civility is not a sign of weakness.

The second figure is Sir Francis Burt, Chief Justice from 1977 to 1988 and one of the greatest judges of our times.

His knowledge, penetrating insight and honed intelligence were formidable and he had a detached wisdom which never overlooked the human elements or the crucial interests of the parties before him. I must confess that in my time on this court when sometimes confronted with an unusually difficult or wrenching decision I would often ask myself the question, 'What would Red Burt have done here?' So great is his legacy and so lasting his ethos that the answer was

never long in coming and would usually lead to a solution.

One of the pleasures of attaining some seniority in this court has been that over past years I have occasionally presided over admission ceremonies. This is a very revitalising experience because one sees the conspicuous abilities and idealism of fresh young lawyers devoted to years of future public service and

worked so closely with me in the work of the court and whose vital roles have ensured the smooth running of cases and the seemingly endless task of delivering judgments. Recently, we had our annual lunch together and I was impressed at the progress all had made. All 10 are now admitted lawyers and are working all over the world - in Perth, country areas, Sydney, Canberra, Melbourne, London

encouragement of close colleagues has been a boon.

Above all, I thank the members of my family for unremitting love and support over so many years when their husband and father was missing from home or family activities, late on special occasions, and often preoccupied with his own concerns. My wife, Elizabeth, has accomplished her own very successful Credit © Jose Photography - Dreamstime.com

"As the Chief Justice has noted, in an ever-increasing specialisation in the legal profession, your Honour managed to maintain a practice at the Bar that was wide and diverse ... "

ambitious for the higher gifts. This gives one confidence and reassurance that the future of the law will be in good and competent hands and that even greater improvement in the principles of the law and its role in society are their goals.

I usually tell these new admittees what great store a society rightly places on its laws and traditions and how long it is that this respect has lasted. As long ago as the 6th Century AD (529 - 534 CE) the Emperor of Rome in the East - Justinian - when commissioning the Institutes which ever afterwards were to bear his name, wrote "What medicine is to disease, so laws are to public affairs"1.

This therapeutic function for the public welfare is part of the role of all lawyers and Judges - and requires constant vigilance, constructive criticism and a spirit of reform to discharge.

This brings me to acknowledge some of the deep satisfaction of being a Judge of this court. All of us naturally long for a system of impartial justice delivered according to democratic laws in public, subject to appellate review and open discussion. This is one of the greatest virtues of any society. From the courts of ancient Athens to those of Imperial Rome, then in the royal courts of Westminster Hall in London and now in all the capitals of our nation, courts continue daily and pragmatically to perform this task. To be trusted to share in the performance of this function and to do so for as long as I have done is a reward in itself and one for which no thanks are really due.

I have many more to thank for my time on the court and the assistance which I have received.

I thank all 10 of the associates who have

and Chicago. I mention two for special acclaim, Mrs Michelle Davies, who was my resourceful secretary at the Bar for 17 years and then first associate for two years. I am delighted that after all that she enrolled in law as a mature student, graduated, was admitted, and is now in practice. Mrs Maria Farrar, my present associate over the last 18 months, has like the others been of unfailing support and assistance and has coped with the relentless pressures of my busy Chambers. To her and to all my former associates I am much indebted and very grateful. Some have travelled from interstate to be here today. I wish them all every success in their careers.

To my personal staff, my orderlies Lawrence Chalson and earlier Richard Weston, I am especially grateful for loyal, thoughtful, efficient service. From my secretaries present and past, Ms Robyn Buurman, Mrs Kerry Cross, and Ms Christina Curtis, I have received unstinting help often under tight pressure but always efficiently and cheerfully and this is much appreciated.

To the staff of the court, especially the Registrars, the Executive Manager, Mr Rob Christie, and all registry staff, I extend thanks for friendship, efficiency and guidance. Especially I thank Mr Trevor Ormesher and his staff in the Probate Registry for their important work and efficiency which renders this Court's Probate jurisdiction one of the best performing offices in this country.

I wish also to thank my judicial colleagues both past and present for their good natured tolerance, occasional tactful advice and support. There are moments when one wonders whether the burdens are endurable and whether one should persist but, for me, the example and

career in the law and has always tolerated and encouraged me in my professional role and words cannot express my appreciation for this. Our children, Eric and Jessica, have flourished in spite of their father's preoccupations and have mapped out impressive careers of their own. Elizabeth's love and support has been unfailing, often in demanding times.

As I said at my welcome in 2002, this is despite the fact that since we met at university in 1963 she has always been the more brilliant scholar.

So the time has come to go and I look forward to a new and different phase of life. I plan to follow and indulge many interests which have necessarily been deferred or constrained in the past. Might things have been different? Could I have done better? Could some mistakes have been avoided? Possibly! But there is no point now in trying to be wise after the events. Life is not a rehearsal. We all must deal with the crises and dilemmas of the moment at the time as best we can and I feel able to say that this is what I have tried to do. I feel consoled by the words of Browning: "Ah! But a man's reach should exceed his grasp, or what's a heaven for?"2 Your remarks, Chief Justice, Mr Evans, Mr Keogh and Mr Quinlan, are far more than I deserve but still very reassuring for me and greatly appreciated. The presence of so many distinguished colleagues and friends is a wonderful compliment and honour. For this and much more besides, I thank you all.

NOTES 1.

The 'Novellae Constitutions'.

2.

Andrea del Sarto by Robert Browning.

31

1.

3.

4.

2.

5.

Golden Gavel 2015

Thursday, 18 June 2015 Pan Pacific Hotel

Michael O'Shea, Norton Rose Fulbright & YLC Member In 1484, twelve men and women were brought before the tribunal of the Spanish Inquisition in Barcelona, charged with heresy (otherwise known as "asking tricky questions" or "voicing novel ideas to one's superiors in a private practice environment"). The calificador (or 'judge', in Middle Spanish) was an especially nasty little fellow who enjoyed inflicting physical and psychological abuse slightly more than was usual for a man of his position. Feeling rather bored on that particular day, el calificador decreed that he would spare the person who could best make him laugh.

This was, of course, a trick. As a trained lawyer, the calficador's sense of humour had long since left the building, and there would be no laughter of any kind. Our illiterate Spanish peasants looked at each other with a hopelessness usually seen on the face of a graduate 24 hours before the end of Financial Year, and then proceeded, one by one, to deliver the greatest examples of oratory in recorded history (those records having been subsequently destroyed in the Great Gavellage of 1623, as our readers will well know).

What followed is common knowledge among the esteemed members of our profession. Suffice it to say that a gavel of solid gold was given to the winner, the other contestants were summarily executed, and the high inquisitor grandly proclaimed that, from that day forth, any person who could make a jaded old lawyer like him laugh would be absolved of their sins and given a ticket to Melbourne to

1.

2.

3.

4.

5.

compete in a national final, a tradition which survives to this very day. The 2015 WA Golden Gavel saw us relive all the elements of the original story. To an audience of 220-odd lawyers and hangerson, there was bravery and defeat, ridicule and redemption, and at least one person was deluded into thinking he/she would go home. No surprise then that they all went back to work. The eight contestants were probably funnier than their Spanish forebears, albeit with a certain desperation, knowing that their (professional) lives hung in the balance and constrained as they were by the 5-minute time limit and the sleepy disposition of their audience, who still hadn't had their second coffee. Former Golden Gavel winner and MC Jessica Melville was in fine form, with her usual 'fiery' brand of humour, leaving no doubt in the contestants' minds as to just how out of their depth she thought they were.

The judges, being the Honourable Chief Justice Wayne Martin AC (an acronym this author is reasonably certain stands for 'Ave Caesar'), Gail Archer SC (another acronym, meaning 'Senior' something or other), and El Presidente Matthew Keogh a far fairer and better lot than anyone in the Spanish Inquisition, probably, chuckled demurely and the Golden Gavel was awarded to Jeremy Rich of Allens, who provided some amusing insights into the threat posed to work-life balance by remote access, like whether our 'LexisNexis' time will eat into our 'Alexis Texas' time. Jeremy will travel to Melbourne to compete in the 500-year-old

Golden Gavel attendees.

Members of the profession in attendance.

Chris Bates, KBE Human Capital; Golden Gavel winner Jeremy Rich, Allens; and the Hon Wayne Martin AC, Chief Justice of the Supreme Court of Western Australia.

Spectators watching the action unfold.

Attendees.

32 | Brief September 2015

tradition of the national final, and show the rest of Australia how hilarious we are over here.

In a close second place (the author noting that he has no inside knowledge of the individual scores, but that it might have been close), was Nick Scott of Herbert Smith Freehills, only slightly less outrageous than Jeremy Clarkson, with his musings on Top Gear and the possible meanings of a 'tune-up' in the workplace.

Third place went to Thomas Wilson from Jackson McDonald, who painted a vivid picture (as vividly as one can paint in that twilight zone between dawn and sunrise, when you have difficulty comprehending whether you are still in bed, or about to buy your first coffee of the day) of how our profession is simply a macrocosm of The Bachelor and how graduates should do anything and everything they can to get a rose (job).

The People's Choice Award, which seemingly refers to zero criteria but has historically favoured the person who would be the best value at the pub, went to your humble author (the people have spoken), of Norton Rose Fulbright, with some excessive throat-clearing and a rambling sermon about the cat-like attributes of Perth's legal top dogs.

And so ends another chapter in the illustrious history of the Golden Gavel, proudly sponsored by KBE Human Capital.

May next year's competitors be of at least comparable hilarity.

Proudly sponsored by

" ... the future of barristers and the legal profession in general is not endangered from competitive poaching. It is more environmental changes, such as those caused by technological developments ... "

34 | Brief September 2015

2015 Australian Bar Association Conference Survival of the Fittest: Challenges for Advocates in the 21st Century iAdvocate vs Rumpole: Who will survive?

An analysis of advocates' ongoing relevance in the age of technology The Hon T F Bathurst AC, Chief Justice of New South Wales Speech delivered in Boston, 9 July 2015

Good morning everyone. I wish to start today by posing a riddle. What do the Quagga, Caribbean Monk Seal and Tecopa Pupfish all have in common? Without keeping you in suspense for too long, the answer is that they have all, within the last one hundred years or so, become extinct.1 In short, they seem to have responded to changing times like Rumpole. He stated, "[i]f I don't like the way the times are moving, I shall refuse to accompany them".2 As admirable as many of Rumpole's traits are, I think this one, of stoic stubbornness to change, needs to be avoided if advocates are to survive the 21st century.

In the thirty minutes or so I have been allocated to fill the gap between now and the morning tea, I plan on speaking about the consequences that the age of technology is having on the profession's existence. This is clearly topical. Entire books are being dedicated to the subject. Take for instance Richard Susskind's The End of Lawyers and his sequel ironically entitled, Tomorrow's Lawyers.3 There is also Mitchell Kowalski's Avoiding Extinction: Reimagining Legal Services for the 21st Century.4 Like these books, today, I will first consider what is the nature of the threat which technology poses to advocates' survival? I will then explain how, contrary to Chicken Littles round about, the sky is not falling in. I will also explain why it is impossible for human barristers,

like Rumpole, to ever be completely replaced by some sort of legal app that presumably would be called iAdvocate. I will conclude by discussing how barristers must nonetheless mutate to avoid, not extinction, but irrelevancy to the society they serve, now in the age of technology.

THE THREAT OF TECHNOLOGY – ADAPTABLE OR DAMNING? To turn first to the threat posed by the age of technology. In many ways, it is hard to fear extinction when the number of barristers is increasing exponentially.5 I think this fact aligns us, as a sub-species of the legal profession, with the fate of the Tecopa Pupfish that I mentioned earlier. This fish became extinct, not because of predatory hunting and dwindling numbers. It was more due to habitat alterations which increased the water temperature above what the poor Pupfish were adapted to tolerate. I think that similarly, the future of barristers and the legal profession in general is not endangered from competitive poaching. It is more environmental changes, such as those caused by technological developments, that are heating things up for the profession.6 There are, it seems, two schools of thought on the nature of the changes that technology is wrecking on the legal landscape.

The first is the unremarkable proposition that technology is changing the access to and delivery

of legal services.7 The second, more controversial perspective, is the idea that technology already is, and will increasingly be able to, actually replace the role of barristers and lawyers themselves. This is the idea that iAdvocate apps will replace us Rumpoles. If true, this second perspective on the nature of the technology threat, would mean the legal profession in general, is already doomed to extinction.

So which perspective is correct? Is the technology threat adaptable or damning to barristers' existence?

Although uncontroversial, I will briefly detail the first proposition, before turning to the reality or fiction, of the second perspective.

As I said, the idea that technology has changed the manner of accessing and delivering legal services is really common sense, and acknowledged throughout the legal profession.8 Take the respective Australian and English examples of Lawyerselect9 and Stobart Barristers.10 These websites, designed to facilitate direct referrals and contact with clients, show how barristers can use technology to excel in the new legal landscape, rather than flounder like a Pupfish.

Examples also abound more generally for lawyers both here and back home in Australia. Just Google: Plexus, Rocket Lawyers, LegalZoom, Co-operative Legal Services, EmploySure, LawPath and LegalVision, to see what I'm talking about. Or, take a look at

35

the legal forums11 and legal-focused search engines, which are popping up in response to the "growing demand for instantaneous results that web consumers have become accustomed to due to services like Google".12 The reality is, if barristers do not keep track of these new ways of connecting with clients, they will quite simply miss out on an ever increasing amount of work that is there for the taking.

Before I discuss the ramifications of these structural and cultural changes on barristers' future, I will now deal with the more radical proposition, that the nature of the technology threat endangers the very existence of barristers and the broader legal profession. This is where I enter the realms of artificial intelligence and the automation of legal analysis.

Perhaps like me, your instinctive response is that this second perspective is off with the pixies. Regrettably, one estimate posits that we are " ... at least 10 years away, probably more, from machines that can completely replace lawyers. But we're already in the era when machines can displace lawyers".13 One of the current areas of growth is in computational law. This is "the concept that by formally representing laws in logic, computers could be used to process, apply, and analyse" the law, rather than just ease the delivery and access to it.14 With computational law, computers thus become "capable of conducting legal analysis entirely on their own ... without the intervention of human experts".15 Sounds crazy? Yet already in this country software exists which allows a builder, drafting construction plans, to receive automated feedback and corrections according to the relevant regulations.16 This bypasses the need for legal and local council review. In Australia too, legal firm Plexus has also used the concept in 2014 to create Plexus Wizard. This software has coded all the different laws and regulations between the states and territories, relating to trade promotion deals, and automatically generates tailored terms and conditions and necessary permits.17 This is said to be four hundred times faster and twenty to thirty per cent cheaper than, what was described as, the 'traditional' method, of using humans.18 It does seem therefore that technology really can, "work it harder, make it better, do it faster".19 Undoubtedly, computational law is ideally suited to regulatory based areas.

However, before you sigh with relief thinking barristers' traditional advocacy work is safe, consider the following 36 | Brief September 2015

research projects. First, a group has already converted the British Nationality Act into computer code.20 This allows the application and interpretation of the act to real life situations to be determined automatically, once the software is provided with certain facts. Given that this was actually achieved in 1986, the possibilities for such coding to occur in other and far more complicated statutes is startling. So too, are the broader ramifications such technology could have on barristers' bread and butter statutory interpretation work.21 Take another more recent project. In 2001, the Idaho courts started using a computer system called Protection Order Advisor. This 'advisor' is solely for people applying for Protection Orders (or as we call them AVOs). The advisor informs prospective applicants about protection orders, assesses their input to certain fields to determine whether they have a prima facie case and uses the inputs to auto generate the necessary court documents to apply for the order.22 This sounds an awful lot like a computer drafting pleadings and determining prima facie case motions.

Moreover, there appears to be no reason why this could not be expanded into a barrister's appellate work. Applications for leave to appeal or no case to answer submissions could then be determined electronically.

Perhaps the most incredible project is in 2013, artificial intelligence was used to model the use of argument from analogy as a rhetorical device of persuasion.23 The US group used a closing argument in Silkwood and Kerr-McGee Corporation,24 which has been described "as fine a closing argument as has ever been delivered in an American courtroom".25 If the art of persuasion is capable of being modelled by technology, barristers, as a species, will clearly be no more immune from the technology threat, than anyone else of the legal profession genus.26 SALVATION IN SEMANTICS It is at this point that you may expect me to declare that the sky is falling in and you may as well pack up your bags, or sacks, and hang up the wigs, for the computers to handle it all. However, like a classic barrister, I plan on responding to this difficult problem by having resort to the safety of abstract philosophical arguments.

First of all, there is the policy issue of increasingly involving technology in proceedings when it has no soul to damn, although in some sense there is a body you can kick.27 This problem was ironically noted in the High Court

matter of Tomlinson and Ramsey Food Processing Pty Ltd in April just this year.

As the transcript attests, the proceedings were rudely interrupted because of what the Chief Justice described as "a rogue iPad" requiring technical assistance.28 Counsel opined, "[i]t is probably guilty of contempt, your Honour".29 There are also, of course, the general philosophical problems which can be raised with all technological and human interaction. For instance, if humans are irrational, systems which require definite inputs will inevitably fail to predict or answer human problems accurately.

Closely related to this is the "frame problem", or, how to teach a computer common sense so that, like our mind, it makes a decision only on the basis of what is relevant, without having to explicitly consider all that is not relevant.

However, often it is countered that these sorts of problems are only temporary setbacks that the advent of faster and better technology will surpass, perhaps even while us sceptics are saying it cannot be done.30 There is, fortunately therefore, another philosophical argument which does present more than a temporary problem to the technology threat. The problem goes to the evolutionary origins of technology. That is, the fact that technology is digital. This means its operations are specified purely formally, with abstract symbols (zeros and ones) that themselves have no content. John Searle described this as the "syntactical structure" inherent in all technology.

He pointed out that, in contrast, human mental states not only have a formal structure, but content and meaning as well. When you think, "Gosh this speaker has been talking for a long time" your thought has actual content.

It is not just a series of dots and dashes emitted from your grey matter. Searle was of the opinion that this meant "the mind has more than a syntax, it has a semantics".31 Searle famously illustrated the point with the parable of the Chinese room.32 The parable goes as follows. Imagine you know nothing about the Chinese language and you are locked in a room with several baskets full of Chinese symbols. Now imagine you are given a rule book in English for manipulating these Chinese symbols. The rule book specifies how to manipulate the symbols, purely formally, in terms of their syntax. For example, one rule might be, put this sign from the first basket next to that sign from the second basket. Now imagine Chinese symbols are passed into the room and you are given further rules for passing Chinese

symbols back out of the room. Then the people outside the room start to call the symbols they pass into the room as 'questions', and the symbols you pass out as 'answers'.

You begin to get faster and faster with arranging the symbols. Your arrangements get more and more complicated. From the point of view of an outside observer, you are now behaving exactly as if you understand Chinese.33 But the point is, you still don't understand a word of Chinese.34 Why? Because, like computers, your formal program for manipulating symbols only has syntax. The symbols themselves have no meaning to you and so the program lacks semantics. It lacks the human element of our thought processes.35 So as much as current and future technologies may be able to simulate human thinking, they will forever be unable to duplicate thinking.36 Now if that distinction is correct (and no one has yet come up with a reason why it is not), then it readily becomes apparent why computers will never be able to think as humans do and why the Rumpoles of this world will never be replaced by an iAdvocate app. Fortunately for barristers, technology's DNA will prevent its evolution to the point of your extinction.

If you don't believe me or find any of what I have described confusing, I suggest you just ask Siri. I thought out of courtesy I should check if she could truly understand what I was saying. I'm happy to report that she skillfully avoided my questioning for quite some time before eventually admitting she couldn't answer the question but would check on it. I'm yet to hear back from her.

EMBRACING MUTATION All of this leads me to the conclusion that barristers' survival is not technically endangered. However, as I said earlier, the changes to the delivery and accessibility of legal services are real and should not be under-estimated. Responding to these issues, will require some form of mutation or adaptation. As one barrister in the Canadian Bar Association's Future Initiative stated, "the only question that matters is how quickly and gracefully shall we adapt. Will we be on the wrong side of history, resisting the demands of clients and the market, insisting we know better?".37 Of course, even if we all

acknowledge change has to occur and that such change will not necessarily be easy or come naturally, the question still remains: how should barristers change? In what areas is adaptation needed?

First, in my opinion, barristers will have to adapt to the amount and type of work they do. The reality is that technology, either directly or indirectly, will cut into many areas of barristers' work. For instance, the readers and junior barristers who currently supplement their work with document reviews or compiling chronologies will find these tasks increasingly drying up as technology takes over these roles. Many of them, no doubt, will not be sorry about this.

" ... barristers must nonetheless mutate to avoid, not extinction, but irrelevancy to the society they serve, now in the age of technology."

Court work will be affected as well.

As the projects I described earlier indicate, the future may not simply be paperless courts, but peopleless courts too.38 More immediately, I think there is a real chance the increased use of electronic court systems will mean directions hearings and interlocutory matters will be attempted to be handled from the safety of law firms. There, the physical absence of barristers and the presence of multiple partners and lawyers to confer with each other, may, at least for a time, embolden lawyers to handle these court (or computer) appearances, solo. There should be no misunderstanding therefore, that adaptation needs to occur sooner rather than later.

You will note, however, that I have expressed this possibility cautiously.

This is because there have been rumours of law firms taking over advocate work before. In the 1980s, some law firms geared themselves up to have, what they described as advocate departments. These all failed because, of the people engaging in those departments, fifty percent did not want to do advocate work and the other fifty percent were inevitably called to the bar. Further, barristers are cheaper and by the very nature of the way they practice, have the flexibility and the absence of a bureaucratic structure, both of which are essential prerequisites in a technological age.

While some work will be outsourced or disappear, I think the type of work that will remain untouched by technology's clutches for the longest, will be things like the preparation and assessment of evidence, ensuring the case as pleaded can be established and, of course, its actual presentation.

The Massachusetts State House, Boston, USA

37

You might think trial work, with its superficially greater reliance on oral advocacy, would be more likely to weather the storm better than appellate work. However, I do not think that this will be the case. In the ever increasing maze of technological development the advocate who can succinctly identify and explain key material will be even more relevant. It is, in fact, a good example of Searle's distinction between syntax and semantics.

"[t]he importance of electronic evidence is only set to increase".46 Barristers will need to "keep abreast of … the way we communicate", including tweets and texts, and "the way in which we are able to store, access and authenticate those communications".47 Perusing the subpoenaed emails is no longer sufficient. In other words, just because you go way back, doesn't mean you don't need to know about the Wayback machine.

Of course, the reality of any reduction in the type of work that is available to the profession is a possible over supply of barristers, with all the attendant consequences on profitability.39 There is a real question whether, given the probable future, there is a need for professional bodies, such as the ABA, to respond, educate and future proof its members from these problems.

The expanding digital universe also means barristers will need to become much more efficient in sorting the wheat from the chaff. In 2006, combined data from computer hard drives in the world was approximately 165 exabytes.48 I don't really know how much that is, but I do know it means barristers will increasingly have to be selective and efficient at processing and analysing material. Those inclined to obsess over every detail, risk being consumed by an avalanche of information. Those with Rumpole's opinion that " … knowledge of the law is a bit of a handicap to a barrister", will also increasingly struggle.49 In an internet landscape, there is nowhere to hide legal ignorance.

A second way in which I think adaptation may need to occur is in regards to our ethical and professional obligations.

These will need to reflect the fact that the new major source of information for evidence and litigation is technology.

Already, in 2012 the American Bar Association amended their Model Rules of Professional Conduct. Now, maintaining competence includes maintaining the requisite knowledge and skill of the "benefits and risks associated with relevant technology".40 There has been ongoing debate over whether similar rules should be added to our professional codes of conduct.41 In that context, I think it should be remembered that, as has become clear in America, simply introducing a model rule acknowledging technology is not necessarily a panacea. Many "… questions remain about how the Model Rules apply … and new ones seemingly come up with every additional advance in technology".42 In any event, while it is still unclear in Australia how technology may have increased ethical obligations, it certainly has expanded the possible ways of breaching them.43 Whether through blundering branding online, or being ignorant of important tweeted updates, barristers will need to accustom themselves to the new dangers.44 After all, it was not so long ago that it was held to not be part of a barrister's duty of care to see if any relevant authorities were subject to special leave applications.45 Yet, I am not sure if the same result would be arrived at today.

Related to this point is a third aspect of adaptation. The fundamental approach to proving a case will obviously have to change to reflect technological developments. This is particularly given, 38 | Brief September 2015

The final point I wish to make is that, in addition to mutating to respond to these changes, I also think barristers, as a group within the legal profession, should lead the way in embracing, rather than resisting technology. The reality is that "the tools to enable counsel to prepare evidence and present it electronically have all been available for years.

However, the preference for traditional, paper-based systems remains".50 In saying that, I am acutely aware that today I myself have eschewed any form of technology, in preference to the traditional method of a paper talk. I do hope though, that a culture of embracing the needed mutation, will become more systemic within the profession.

Technology should be used at all stages of a matter, including in and with the courts. I have previously spoken about the obligations on lawyers and barristers to not inundate the courts with useless material.51 Technology can and should be used to assist barristers to ensure this does not happen.

CONCLUSION I do hope these suggestions of the need for, and ways of, possible change within the profession are, if not helpful, at least thought provoking. You may, of course, reject some or all of what I have said, with the opinion that I am now an ignorant outsider looking on. I just hope no-one shares Rumpole's harsh opinion that they only make you a judge, when you are no good at the bar.52 Although

Rumpole now has some support for that proposition. A 2013 Oxford University research report predicted that there was around a 40% likelihood of judges being replaced by robots, whilst the likelihood of lawyers being replaced was as low as 3.5%.53 Perhaps we can both avoid dwelling on any underlying truths behind Rumpole's maxim and those statistics, now and in the future.

NOTES I express my thanks to my researcher, Miss Madeline Hall, for her assistance in the preparation of this address.

1.

The last known Quagga is said to have died at the Amsterdam Zoo in 1883; The Caribbean Monk Seal was declared extinct in 2008 by the National Oceanic and Atmospheric Administration's National Marine Fisheries Services; and the Tecopa Pupfish is said to have become extinct by 1970 or soon after (Gerken, '11 Animals That Are Now Extinct … And It's Our Fault' Huffington Post (online), 22 October 2013 http://www.huffingtonpost.com/2013/10/22/11extinct-animals_n_4078988.html).

2.

Mortimer The Anti-Social Behaviour of Horace Rumpole (Penguin Books Ltd, 2008).

3.

Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2010); Susskind, 'Tomorrow's Lawyers An Introduction to Your Future' (Oxford University Press, 2013).

4.

Kowalski, Avoiding Extinction: Reimagining Legal Services for the 21st Century (American Bar Association, 2012).

5.

Within New South Wales alone, from 2011 to 2014, the increase in the number of barristers represented a 44% increase compared to the preceding three year period (Compare the NSW Bar Association, 'New South Wales Bar Association Annual Report 201314', 12-13; NSW Bar Association, 'New South Wales Bar Association Annual Report 2010-11', 13; NSW Bar Association, 'New South Wales Bar Association Annual Report 2007-08', 12).

6.

See comments that: "If one force alone were seen to be driving changes in the legal market, that force would be the rapid- and accelerating- developments in the field loosely known as information technology …already information technology, at its present stage of sophistication, is being marked as the disruptive force in the legal market" (Fodden, 'CBA Legal Futures Initiative Contributing Perspective Voices of Change Canadian Social Media and Other Writings on the Future of Legal Practice' (The Canadian Bar Association 2013) (CBA's Voices of Change), 13.

7.

See for instance, the Forward by Tim Long in Zylpha, 'The Legal Landscape Trends for 2015' http://www. zylpha.com/wp-content/uploads/2015/01/ZylphaLegal-Landscape.pdf (Zylpha study).

8.

The Zylpha study found 78% of legal professional respondents strongly agreed that innovation in providing legal services will be paramount in the next five years. New technology was considered a key component to the legal profession's survival (Zylpha study, 6). Similarly, the American Bar Association's 2014 Legal Technology Report found 39% of attorneys in private practice had obtained clients from blogging sites and 78% maintained one or more social networks for professional purposes (Bennett, How are Lawyers Using Social Media? (20 February 2015) Social Times Infographcis Social Media, http:// www.adweek.com/socialtimes/lawyers-socialmedia/615605).

9.

Gorman, 'Barrister launches lawyer selection site' Lawyers Weekly (online) 7 August 2013 http://www. lawyersweekly.com.au/wig-chamber/news/14518barrister-launches-lawyer-selection-site.

10.

This UK company used a website to refer clients directly to a barrister with the relevant expertise, out of the many that were affiliated with the company.

This bypassed the need for lawyers, who were essentially replaced by a sister company, comprised of a team of paralegals that could be deployed to help the barristers with the direct referrals on a needs basis. The streamlined arrangement allegedly achieved savings to the client of up to 50% in any one matter. The business has since been limited to internal Stobart group legal matters as the legal director of the enterprise has left to start up a similarly alternatively structured law firm, called OneLegal ('Stobart Group drives into legal services market' (17 May 2012) Legal IT Insider http://www. legaltechnology.com/latest-news/stobart-groupdrives-into- legal-services-market/). No structure like Stobart Barristers exists in Australia yet. Although the underlying demand seems to similarly exist.

For instance, a 2015 Australian Corporate Lawyers

Association survey showed 43.7% of in-house respondents directly briefed a barrister in the past 12 months (Woodhill, 'Direct briefing popular with inhouse teams: survey' (27 February 2015) Australasian Lawyer http://www.australasianlawyer.com.au/ news/direct-briefing-popular-with-inhouse- teamssurvey-197471.aspx).

11.

A free Australian based legal forum is LawAnswers. com.au, which comes with inbuilt search engine capabilities, legal document templates and an affiliated online lawyer referral program.

12.

Lao and Jagadeesh, 'Creating a Legal-Focused Search Engine' (3 December 2014) CodeX The Stanford Centre for Legal Informatics Student Papers http://codex.stanford.edu/creating-a-legal- focusedsearch-engine-2/ (Lao and Jagadeesh). See also 'CBA Legal Futures Initiative Contributing Perspective The Client's Perspective' (The Canadian Bar Association 2013) (CBA's The Client's Perspective), 9.

13.

Furlong's estimation extracted in CBA's Voices of Change, 14 (emphasis added).

14.

Love and Genesereth, 'Computational Law' International Conference on Artificial Intelligence and Law (6-11 June 2005) http://logic.stanford.edu/ people/genesereth/papers/computationallaw.pdf, 205.

15.

Genesereth, 'Computational Law The Cop in the Backseat' (2015) CodeX The Stanford Centre for Legal Informatics Papers http://logic.stanford.edu/ complaw/complaw.html (The Cop in the Backseat).

16.

The Cop in the Backseat.

17.

Merritt, 'Artificial Intelligence and the law' The Australian (online), 20 June 2014 http://www.plxs. com.au/artificial-intelligence-and-the-law (Merritt).

18.

Merritt.

19.

Daft Punk Lyrics to 'Harder, Better, Faster, Stronger'.

20.

Sergot, Sadri, Kowalski, Kriwaczek, Hammond and Cory, 'The British Nationality Act as a Logic Program' (1986) 29(5) Communications of the ACM 370.

21.

Some would argue that due to the logical nature of computational law code, most uncertainties that give rise to the need for statutory interpretation by the courts could be prevented if parliaments wrote legislation directly in electronic form.

22.

See Branting, 'Advisory Systems for Pro Se Litigants' (Paper presented at International Conference on Artificial Intelligence and Law, New York, 1 May 2001). For other examples see 'Using web based legal decision support systems to improve access to justice' (2002) 11(2) Information & Communications Technology Law 15.

23.

Walton, 'Argument from analogy in legal rhetoric' (2013) 21(3) Artificial Intelligence and Law 279 (Walton).

24.

Silkwood v Kerr-McGee Corporation (1984) 464 US 238.

25.

Lief, Caldwell and Bryce, Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law (Scribner, 1998), quoted in Walton.

26.

Another area foreseeably in danger of being replaced

by technology is criminal sentencing. Already "relevant sentencing guidelines for an offence can be automatically presented to the judge or magistrate" (Thomson Reuters Insight Team, The Future of the Courts (Whitepaper) (17 March 2015) Thomson Reuters Insight Technology in Law, http:// insight.thomsonreuters.com.au/resources/resource/ the-future-of-the-courts-whitepaper/ (Thomson Reuters' Future of the Courts)). There seems little to stop this from being combined with a suite of other relevant factors, to allow for the automation of sentencing calculations. This in turn could be coupled with a cross-checking system which compares the suggested sentence with historical sentences, to check for anomalies or outliers; similar to the JIRS database in NSW. 27.

For a defence as to why technology should be allowed, in the interests of justice, to replace judges see Fulda, 'Implications of a logical paradox for computer-dispensed justice reconsidered: some key differences between minds and machines' (2012) 20(3) Artificial Intelligence and Law 321 (Fulda).

28.

iPads can also of course be incredibly useful in proceedings. For an example of the successful use of iPads in court see Newhook, 'Electronic Information and Services in the Environment Court of New Zealand- Access Advantages and Risk Factors for self-represented litigants' (Paper presented at AIJA Conference Justice Without Barriers: technology for greater access to justice, Brisbane, 21-22 May 2015).

29.

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCATrans 77 (10 April 2015).

30.

See also Fulda for other things, like the recognition of sentic modulation (e.g. a raised eyebrow from a witness), previously considered impossible and now viewed plausible if not already possible.

presented at AIJA Conference Justice Without Barriers: technology for greater access to justice, Brisbane, 21-22 May 2015). See also, Kutty, 'Beyond e-filing moving to an electronic court record' (2009) 47(6) Law Society Journal 74).

39.

This is also being foreshadowed in the market for lawyers. See, Pennington, 'Lawyers next for techdriven outsourcing' The Age (online) 10 September 2013 http://www.theage.com.au/it-pro/business- it/ lawyers-next-for-techdriven-outsourcing-20130909hv1qa.html.

40.

American Bar Association, Model Rules of Professional Conduct, Rule 1.1, Comment [8].

41.

See for instance Walker, Should Australia introduce technology standards for law firms? (10 April 2015) Thomson Reuters Insight Technology in Law http:// insight.thomsonreuters.com.au/should- australiaintroduce-technology-standards-for-law-firms/ and Mezrani, 'Opting out of technology no longer an option' Lawyers Weekly (online), 10 March 2015 http://www.lawyersweekly.com.au/news/16247opting-out-of-technology-no-longer-an-option.

42.

Podgers, Lawyers struggle to reconcile new technology with traditional ethics rules (1 November 2014) ABA Journal Ethics http://www.abajournal. com/mobile/mag_article/the_fundamentals_lawyers_ struggle_to_reconcile_new_technology_with_traditio/.

43.

Ethics Committee and Ethics Department of the Law Society of NSW, 'Ethical dilemmas: Some FAQs' (2015) 2(2) Law Society Journal 80.

44.

Teicher, 'Desperately seeking information' (2015) 2(2) Law Society Journal 36, 37.

45.

Heydon v NRMA Ltd; Bateman v NRMA Ltd; Morgan v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1, 134 and 242.

31.

Searle, 'Can Computers Think?' in Chalmers (ed), Philosophy of mind classical and contemporary readings (Oxford University Press, 2002) 669 (Searle), 671.

46.

Soars and Lee, 'Tweets, texts, forged emails and changing webpages: emerging issues and practical examples' (2015) 2(2) Law Society Journal 74 (Soars and Lee), 75.

32.

ibid.

47.

Soars and Lee, 75.

33.

ibid.

48.

34.

ibid.

Wikipedia, Zettabyte (Accessed 16 June 2015) Wikipedia https://en.wikipedia.org/wiki/Zettabyte.

35.

For a more recent defence of the view that the mind is not computational, see Fodor The Mind Doesn't Work That Way (MIT Press, 2001).

49.

Mortimer, Rumpole of the Bailey: Rumpole a la Carte (Penguin Group, 1991).

50.

36.

Searle, 673.

Stanfield, 'Online Courts: The way of the future?'

(2015) 2(2) Law Society Journal 50.

37.

MacEwen, 'CBA Legal Futures Initiative Contributing Perspective You Can't Argue With 100 Years of Success: Navigation Beyond the Inflection Point" (The Canadian Bar Association 2013), 13.

51.

Bathurst, 'After the Civil Procedure Act' (Speech delivered at the 10th anniversary of the Civil Procedure Act, Banco Court, 18 February 2015) at [24].

38.

Thomson Reuters' Future of the Courts, 5. Examples mentioned therein include the Money Claim Online and Possession Claim On Line systems in England and Wales. See for instance: https://www.gov.uk/ possession-claim-online-recover-property and https://www.gov.uk/make-money- claim-online.

That is not to downplay the benefits of paperless environments. The amount saved by courts on storage costs of paper documents alone is in excess of millions and can similarly benefit barristers' businesses (see Johnson, 'Moving to digital recordshow do we future proof access to this data?' (Paper

52.

Mortimer, Rumpole of the Bailey: Rumpole and the Quacks (1991).

53.

Frey and Osborne, 'The Future of Employment: How susceptible are jobs to computerisation?' (17 September 2013), University of Oxford http://www. oxfordmartin.ox.ac.uk/downloads/academic/The_ Future_of_Employment.pdf, 59 and 62.

39

lawyer on the street

Lawyer on the Street Karen La I am a lawyer at the Department of Commerce, Consumer Protection division.

I started out in the Graduate Programme working in non-legal areas before I made the leap into the Legal Services team at Consumer Protection. My experience in the Graduate Programme has helped me in my legal career because it gave me a better understanding of how Consumer Protection works as a whole and the goals of Consumer Protection in ensuring fair trading.

Working in-house for a government department has its own unique challenges.

Consumer Protection administers over 50 pieces of legislation, which means I have had the opportunity to advise and work on a variety of different matters from the Australian Consumer Law, to more obscure pieces of legislation like the Petroleum Products Pricing Act 1983. Consumer Protection also regulates occupations including real estate agents, settlement agents, motor vehicle dealers and employment agents.

Aside from advice work, I have also had the opportunity to develop my advocacy skills by having the conduct of matters in court and the State Administrative Tribunal. Recently, I conducted my first hearing in the SAT involving the review of a decision to grant a real estate sales representative registration.

We won! Before any court action is taken, we consider whether it will be in the public interest. It is a privilege to be working for an organisation that looks at the interests of the community as a whole, and to be able to make a contribution to improving trade in the community.

While working with people can be a challenge, it is also very rewarding. I am very lucky to be working with a great team of lawyers who are willing to provide me with mentoring and are also passionate about their jobs. Working with great people has helped me to stay motivated in my career.

One of the most important things I have learnt about being a lawyer is that making time for your interests outside of the law doesn't make you any less of lawyer, it makes you a better one. Maintaining a balanced life means that I can work in the legal profession in the long term, maintain my mental health and keep things in perspective. I am fortunate to be working in a flexible work environment which has meant that I can have a social life and pursue interests such as swimming and learning Korean.

40 | Brief September 2015

Matthew Woodall I am a solicitor in the corporate commercial team at Jackson McDonald, where I have been employed since obtaining a graduate position in March 2012. Before settling in this area, I had the opportunity to gain experience in a number of different disciplines, including insurance, wills and estates and energy.

My interest in corporate law stems from my desire to see the Australian economy grow, so that we become a stronger nation with lower unemployment and a higher standard of living. Companies are the engine room of the economy, and when companies do well, so too do shareholders and employees. I am passionate about reducing the excessive red tape faced by Australian companies so that hard working Australians

can enjoy higher wages and live better, more prosperous lives.

Outside of work I pursue my other interests through organisations such as Rotary and the Young Lawyers Committee (YLC).

Given the pressures faced by young lawyers, I believe it is important to ensure that sufficient time is put aside for 'destressing'. For this reason I am a member of the YLC Social and Sport Working Group, which organises a range of events for young lawyers to let their hair down. I strongly encourage anyone interested in networking or sports to consider joining this working group – we are always on the lookout for enthusiastic new members!

Courtney Furner Since January 2015, I have been Associate to the Honorable Justice Mazza at the Supreme Court of Western Australia, Court of Appeal. I started my legal career three years ago and have practised in the dispute resolution team at Norton Rose Fulbright, tutored in Civil Procedure at the UWA Law School, interned at the United Nations International Criminal Tribunal for the former Yugoslavia and studied law in Germany, Austria and The Netherlands.

I always knew that I wanted to be a litigator.

For me, the most exciting and rewarding aspects of contentious legal practice are the advocacy, the need to become an expert overnight in different areas of law and matter-specific knowledge, the indepth legal analysis and the meticulous legal writing.

The fact that receiving an education is a privilege and not a right has been a key motivating factor in my career. As the first lawyer and second university graduate in my family, I am grateful for every opportunity to develop, and to use my legal training to give back to the community wherever and whenever I can.

In my spare time, I am a Deputy Convenor of the Young Lawyers Committee. The Committee comprises a group of young lawyers who work with the Law Society of Western Australia to represent, engage and support young and emerging lawyers in developing as professionals and connecting with the legal community.

I also judge mooting competitions from time to time and have been involved with the Australian Red Cross Friends of International Humanitarian Law Committee.

I am fortunate to mentor two law students, and to be mentored by senior members of the profession.

Outside of the law, I am an Australian Red Cross Voluntary Humanitarian Observer. This role requires me to independently observe and monitor the general conditions, access to services, and treatment of people detained in Australian immigration detention facilities. I also learn French, travel somewhere new each year and enjoy pre-work coffees and post-work dinners with friends and family.

A wise colleague once told me that life is never in balance; rather, certain aspects require more attention than others at different points in time. I also believe this to be true. Embracing imbalance helps me to knuckle down at work as I know there is a time and place to completely unwind and focus on other important facets of my life.

After all, we are lawyers, but that is not all we are.

I would encourage all junior lawyers to get involved in the wider legal community in some capacity. It is a great way to meet people with similar interests and creates opportunities to apply one's legal training to areas outside of one's day job.

book review

Book Review The Law Affecting Valuation of Land in Australia by Alan A Hyam Review by Kenneth Pettit SC, Barrister, Francis Burt Chambers

INTRODUCTION Alan Hyam's The Law Affecting Valuation of Land in Australia is now in its 5th edition. The first edition was in 1983, so the text has impressive longevity, which one assumes reflects its utility to the professions of law and valuation.

The book covers areas of law that occupy a substantial area of practice in this state, in the State Administrative Tribunal, the Supreme Court and in arbitration.

In overview, the book is quite good as a resource of judicial pronouncements on concepts, principles and cases, but lacks useful analysis and synthesis of those concepts, principles and cases.

RESOURCE Nearly every proposition contained in Mr Hyam's text is explained, not by the author, but by one or more quotes from case law. The author's contribution is in identifying and ordering the headings and in collating the judicial quotes into a readable narrative for each heading.

The index is detailed and accessible.

Every concept and principle of note in the areas of valuation and compensation for compulsory acquisition will be located easily.

However, I found that the relentless use of judicial quotes, without the author summarising and synthesising them, made heavy weather of my test inquiries into contemporary issues.

ANALYSIS AND SYNTHESIS In his preface, Mr Hyam observes that he is increasingly surprised by the lack of knowledge and understanding of some longstanding valuation principles.

To address this in the 5th edition, Mr Hyam, he tells us, has added more subheadings and a comprehensive index, to make it easier for readers to find the principles and cases of interest to them.

In my opinion, that does not address

the main problem - the book lacks the analysis and synthesis that might have assisted to remedy such surprising lack of understanding. Examples are as follows.

Mere 'step' The Pointe Gourde1 principle is to the effect that the compensation due to a dispossessed land owner does not include any part of its present value that is due to the public work for which the land was acquired, and conversely the owner will not be deprived of compensation on account of the present value of the land having been reduced by the public work. The principle is express in all relevant Western Australian legislation. Section 241(2) of the Land Administration Act requires the court to disregard any increase or decrease in value attributable to the public work and section 188 Planning and Development Act requires value to be determined without regard to any increase or decrease attributable wholly or in part to the planning scheme.

There is a refinement of the Pointe Gourde principle expressed in San Sebastian2, namely the distinction between a 'step' in the process of acquisition (which step is to be disregarded in the valuation for compensation), and an event that was not a 'step', and hence not disregarded.

In my respectful view, the court's reasons in Mt Lawley3 at [29] explained this refinement with near algebraic brevity and precision: "A step must be attributable to the Scheme, not the Scheme to a step."

Mr Hyam deals with the point at p 510, or at least he has the relevant heading "A Step in the Process". He quotes Mahoney4 as it quoted Mt Lawley and two other cases. The thing that is missing from this one page exegesis is any explanation of a 'step'.

San Sebastian is mentioned, but not explained or quoted, Mt Lawley is quoted

but not as to its explanation of a 'step' and the other two case quotes are unhelpful. Even the brief discussion of Mahoney fails to identify the 'scheme' for which a step was being alleged, so Mr Hyam's identification of the step alleged in the case does not illuminate the point.

Severance and injurious affection5 The starting point for this discussion must be historical. The historic definitions of the two concepts are that 'severance damage' is the reduction in value of land retained by an owner after other land has been acquired, which reduction is due to the division of the owner's land holding. Typically, this arises from loss of access to a road or from one land parcel to another, or the uneconomic size or shape of a retained land holding. A major aspect of severance damage, from a conceptual perspective, is that it is wholly independent of any reduction in value attributable to the public work for which land was taken. The above examples of severance damage will result in the same loss of value regardless of whether the taken land is used for a road, a school, a park or a wastewater plant, or indeed if the taken land is never used for anything.

At p 449, Mr Hyam quotes an impeccable judicial explanation of 'severance'.

Injurious affection, by contrast, is the loss in value attributable to the nature of the public work. The most common of these in practice is the effect of road noise on residential values, arising from the construction of a public road.

Another example is the loss of 'amenity' value caused by electricity and telephone towers and poles. At p 461, Mr Hyam quotes impeccable judicial explanations of 'injurious affection'.

It is the subsequent analysis and synthesis of these concepts that are lacking, indeed confusing, in the text.

At page 462-463, Mr Hyam has a 41

heading referring to the relationship between severance and injurious affection. He tells us that they are closely linked; both are linked to resumption; and that severance may be seen as a "specialised form of injurious affection". He cites and quotes only Lenz Nominees v Commissioner of Main Roads [2012] WASC 6 at [273]-[275], which quotes contain observations of Edelman J that, with all respect, do not address the distinction in any illuminating way. On the contrary, the point being made by Edelman J is that, in Western Australia's Land Administration Act, injurious affection is confined to loss in value of adjoining land, but severance is not so confined6.

The Judge's point does not assist an understanding of the concepts or their relationship, it merely identifies one difference in WA, and Mr Hyam's reliance on this passage serves to obscure the relationship.

Mr Hyam makes no comment about this. I venture this opinion, that a novice reader would probably take from these passages that the two concepts are imprecise and blurry, which impression would be wrong.

'Value to owner' The notion of 'value to owner' arose historically because, in an era of less detailed legislation, cases arose in which the value of land in the market (its 'market value') was less than its economic value to the owner. Typically, this arose when a business operated efficiently on two lots, but one lot is taken, leaving the owner with a less efficient business being run on the retained lot. In other words, the value of the taken lot to the owner includes a value-adding element of the taken land that no other purchaser in the market would find attractive.

There are two points to bear in mind when dealing with 'value to owner'.

First, the concept is rooted in the notion that, if 'value' is confined to what the market would pay, an assessment for compensation will be deficient. That is to say, the whole idea was to assess a value for compensation that was greater than what the market would pay. Second, by way of caution, certain other concepts, often expressly included in more modern statutes, deal with the same general idea. Section 241 of the Land Administration Act (WA), for example, provides separate heads for 'removal expenses' and business 'disruption', which in bygone days might have been reflected within 'value' under this principle of value to owner, so care must be taken not to double count.

42 | Brief September 2015

Mr Hyam has an entire Chapter7 on this topic, and he quotes cases in which the concept is satisfactorily explained, particularly the seminal case of Pastoral Finance Association Ltd v Minister [1914] AC 1083. However, the concept is not treated in a manner that assists in its application.

For example, at p 381, under the heading Application of Principle, Mr Hyam quotes Minister of Works v Robinson8 as authority for the proposition that, " ... value to owner cannot be more ... than the market value of a comparable property ... with ... any allowance ... for the cost of removal, severance, disturbance, inconvenience, loss of amenity, or the like". To my mind, this is confusing. The point to be properly illustrated by this passage in Robinson is the point about double counting. Certainly, the case should not be quoted for the point that "value to owner cannot be more than market value", which, so expressed, is selfcontradictory.

Special Value Mr Hyam deals separately with 'value to owner' and 'special value' (albeit both in Chapter 13). To my mind, the point that should be sharply brought to the reader's attention is that the concepts are almost identical in application. But Mr Hyam has included one sentence about this. At page 384, the author says "[t]he interchangeability of the terms ... was referred to by Gobbo J in Mario Piraino Pty Ltd v Roads Corp No 2 (1990) 76 LGRA 263 ... at 273."

But the then quoted passage does not explain the interchangeability, the distinction between the concepts or the practical effect of any distinction. Nor does Mr Hyam.

Mr Hyam then quotes Bignold J9 for the proposition that the concept of special value is an element of the concept of 'value to owner', which seems to contradict the idea that they are interchangeable.

Highest and best use vs potentiality Two of the concepts most confused in my experience are the highest and best use of land and the potentiality of land.

The concept of highest and best use is a thoroughly unremarkable idea, which has disproportionately excited some practitioners and valuers. It refers simply to the need to assume thorough knowledge of the possible, but legal, uses of the land and any market for each possible use. For example, land might be zoned residential, but used non-commercially as a tennis court. The

land when taken will not necessarily be valued as a tennis court. If sale for a residential block is worth more than its retention as a tennis court, then its 'highest and best' use is residential, and it will be so valued. However, if the tennis court brings $2000 per week, then the highest and best use may indeed be as a tennis court.

A separate idea is the 'potentiality' of the land. This includes a use, other than the current use, that is not presently lawful, but may become lawful if amendment can be secured to the zoning or other planning or environmental restrictions.

Most commonly, land currently zoned rural is said to have potential for rezoning to urban. A purchaser of such land will pay something for this potentiality, but not the full value of the land as if it had already achieved its 'potential'. I had a valuer once who called this the 'punter premium'.

Mr Hyam deals with the potentiality of land at pp 147ff. He deals with 'highest and best use' at pp 175-183. Potentiality is treated as a general principle of valuation, within Chapter 3 (General Principles of Valuation), as it should be.

However, 'highest and best use' is within Chapter 4, Methods of Valuation, where it ranks with the 'before and after' method, the 'capitalisation of profits' method, the 'hypothetical development' method and the 'comparable sales' method. Indeed, it appears to be listed as an incident of the Capitalisation of Profits method. I cannot discern any reason for this. I think it is confusing. Its location is made more confusing by the author citing authority that 'highest and best use' is a "fundamental principle of valuation"10, which of course it is – it is not a method of valuation, much less a mere incident of a particular method.

At p 177 of Mr Hyam's book, Simmonds J in Kelly v WAPC [2006] WASC 208 at [36] is quoted for this: 36 This approach to valuation should be taken to be by reference to the highest and best use of the land, which may not necessarily be its present use, and which allows for a consideration of the potential of the land, whether or not presently realisable, as where the use would require a permission from a public agency which has not been obtained and might be refused: see Mount Lawley (supra), at [162] to [167]; and see Alan Hyam, "The Law Affecting Valuation of Land in Australia", 3rd Ed, Sydney, Federation

book review Press, 2004, at 122 - 124.

With respect to his Honour, this passage confuses potentiality and highest and best use. Mr Hyam quotes it, apparently proffering it as orthodoxy.

This is not a matter of pedantry. A recurring issue before the courts is the extent to which 'potentiality' should be treated within the concept of highest and best use. In my view, it is an error, or is at least dangerous, to include potentiality within the discussion of highest and best use. The reason for insisting on the distinction is that the cases correctly say that one must value on the highest and best use and, on the other hand, correctly say that one must not value a potential as if it were realised. Mixing 'potential' into discussion of 'highest and best use' invites the latter error. Mr Hyam does not mention this difficulty.

Rather, to my mind, he compounds the difficulty.

In my respectful view, an author should explain these concepts, and attempt to explain, and endorse or criticise, cases, not merely cite cases which themselves may give rise to confusion.

Proper and orderly planning In Western Australia, Trandos11 stands for the proposition that, in assessing potentiality, it is to be assumed that the planning authorities would rezone etc. if and only if proper and orderly planning so dictates. That is to say, a party will not be permitted to lead evidence that a particular Minister, then in office, would approve or disapprove a rezoning application for the Minister's own or political reasons. The reach of that proposition is another matter, but its underlying importance is considerable.

Mr Hyam deals with Trandos at p 177, by way of comment on highest and best use, where the Trandos point is

inapplicable. He does not similarly comment on Trandos in his section on 'potentiality' (pp 147ff), where its true worth is felt.

Before and After The book refers to the 'before and after' method of valuation (p 164ff).

But this is not a method of valuation at all – it is the technique of valuing the same land twice, under different assumptions, in order to assess the difference that the assumptions make. It is a method of assessing compensation, not really a method of valuation.

However, the undertaking has resulted in a book that purports to be a textbook, yet lacks explanation, synthesis of concepts, and academic criticism of case law.

I record my gratitude to Henry Jackson, Francis Burt Chambers, for his learned review of a draft of this paper. Its remaining errors are entirely mine.

NOTES 1.

Pointe Gourde Quarrying and Transport Co Limited v Sub-Intendent of Crown Lands [1947] Ac 565.

2.

San Sebastion Pty Ltd v Housing Commission of NSW (1977) 37 LGRA 191.

3.

Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226.

At p 164, Mr Hyam quotes Wells J12 for the proposition that the before and after method values land before and after acquisition to ascertain the difference, but this does not support the idea that it is a method of valuation.

4.

Mahoney v Chief Executive, Department of Transport and Main Roads [2013] QLC 11 at [14]-[15].

5.

Chapter 16.

6.

Further, the quoted definition of 'severance damage' at p 449 refers to severance damage being a reduction in the value of 'retained' land. That is inconsistent with the quote from Edelman J, but the inconsistency is not pointed out, or analysed, by Mr Hyam.

7.

Chapter 13.

RESERVATION OF LAND

8.

(1965) 13 LGRA 390 at 394.

9.

Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30 at 38.

10.

At p 182, citing Challenger Property Asset Management Pty Lty v Stonnington City Council [2011] VSC 184 at [43].

11.

Trandos v WAPC (2001) 117 LGERA 257 at 277.

12.

In De Ieso v Commissioner of Highways (1981) 27 SASR 248 at 249.

13.

The Planning and Development Act 2005 is not in the index, and I could not find any mention of it in the Act. The predecessor legislation, the Town Planning and Development Act 1928 is mentioned but only to the extent required to explain Mt Lawley v WAPC [2007] WASCA 226.

14.

The book has a heading "Compensation under town planning legislation", but the text deals only with transitional provisions.

15.

(2004) 221 CLR 30. Temwood is cited in Mr Hyam's text, but only on an unrelated point. See now Leith v WAPC [2014] WASC 499.

The book's utility in Western Australia is diminished by its failure to deal with (or even mention13) valuations of land required for the regime of reserving land. There is a significant jurisdiction in Western Australia that flows from the reservation of land under the Planning and Development Act.14 There is no mention of the High Court rulings in Temwood v WAPC15 concerning the regime for deferral of compensation on account of the reservation of land.

CONCLUSION The book is somewhere between a case book and a text book. It attempts the enormous task of setting out in textbook fashion a vast number of judicial quotations. Given the enormity of the undertaking, at such a detailed level, the text deserves admiration as a resource.

Please Suggest A Cat Haven Bequest As a charity, Cat Haven relies heavily on the kind donations and bequests of West Australians. We are WA’s premier cat welfare organisation, accepting over 6500 cats a year and rehoming as many as possible.

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By suggesting and guiding your clients how to leave a donation to Cat Haven in their Will, you will be providing much

For more information or a Bequests brochure, go to www.cathaven. com.au or call Chandra Woodley on 9442 3600.

Please Donate, Adopt Foster, Bequeath, Volunteer

43

case notes

Young Lawyers Case Notes – compiled by volunteers coordinated by the Young Lawyers Committee -

Sims v Chong [2015] FCAFC 80 Appeal - Summary dismissal by primary judge of claim against legal practitioner because of advocate's immunity - Dismissal overturned on appeal Respondent represented appellant in Supreme Court proceedings - Appellant commenced Federal Court proceedings alleging misleading and deceptive conduct by respondent - Whether alleged conduct protected by advocate's immunity.

In Sims v Chong [2015] FCAFC 80, the Full Federal Court (Mansfield, Siopis and Rares JJ) allowed an appeal from the summary dismissal of the appellant's claim against his former solicitor. The appellant essentially alleged that the respondent was negligent in acting for him in a contract claim in the Supreme Court of Western Australia, which was struck out on the pleadings [2].

The solicitor's conduct was also said to involve unconscionable conduct, breaches of statutory and fiduciary duties, and misleading and deceptive conduct [25]. The primary judge dismissed the claim on two grounds.

The first ground was that the claim was an abuse of process. On appeal, the parties agreed, and the court accepted, that the primary judge erred in dismissing the claim on this ground [38]. The appellant was not simply re-litigating the Supreme Court action, because the Federal Court claim extended further: it also pleaded an unjust enrichment claim, and alleged that the appellant retained the solicitor due to misleading and deceptive conduct [39].

The second ground was that the Federal Court proceedings were 'doomed to failure' because the solicitor enjoyed advocate's immunity [3]. The Full Court concluded that the conduct asserted on the part of the respondent “arguably falls outside the scope of the advocate’s immunity” [91]. The court endorsed the view of McHugh J in D'Orta-Ekenaike v Victoria Legal Aid (2005) 233 CLR 1: the immunity protects the interest in finality of litigation, and extends to 44 | Brief September 2015

"any work, which, if the subject of a claim of negligence, would require the … re-litigation of matters already finally determined by a court" [61]. The Supreme Court action was struck out on the pleadings — an interlocutory decision, not a final determination of the parties' rights [68]. The Federal Court action was not a collateral attack on that decision [74], even though the Supreme Court proceedings created an Anshun estoppel foreclosing the cause of action the appellant said the practitioner should have pleaded [72].

The House of Lords abolished advocate's immunity in Arthur J S Hall & Co v Simons [2002] 1 AC 615, and the High Court has observed that the immunity, as it is understood in Australia, does not exist in Canada, New Zealand or the United States: D'Orta-Ekenaike [61]. Yet the High Court has declined to follow the House of Lords. The Full Court's decision, which turns on the technical distinction between res judicata and Anshun estoppel, revives the question answered negatively by the House of Lords in 2000: is the advocate's immunity a necessary and appropriate way to promote the administration of justice and the finality of litigation in the 21st century?

Scott Young

MZACX v Minister for Immigration & Anor [2015] FCCA 681 Review - Refugee Review Tribunal eligibility for a protection visa - 'relocation test' - whether risk of persecution a relevant consideration - whether personal circumstances a relevant consideration.

In MZACX v Minister for Immigration & Anor [2015] FCCA 681 the Federal Circuit Court of Australia (the Court) considered the 'relocation' test when assessing whether an asylum seeker is eligible to be granted a Protection visa. An applicant may not be eligible for a Protection visa if it is reasonable for them to relocate to a different region in their home country where there is no real risk of persecution.

This is the 'relocation' test.

The applicant sought judicial review of a decision of the Refugee Review Tribunal (RRT) which effectively affirmed a decision of the Minister's delegate to refuse to grant him a Protection visa. The applicant argued two grounds of appeal: first, that the RRT failed to consider the risk of him suffering harm in a different region of Pakistan; and second, that the RRT failed to consider his personal circumstances when assessing whether it was reasonable or practicable for him to relocate to a different area of Pakistan.

The Court held that, when assessing whether an applicant can reasonably relocate to a different region in their home country, the decision maker must consider both the risk of persecution in any other region and the practicability of the applicant relocating to a different region. This assessment should always take into account the personal circumstances of the applicant. The decision maker may also consider independent country information.

The Court found that the RRT had correctly applied the 'relocation' test as the RRT had considered the applicant's language skills, education and work experience, in addition to country information, in deciding that he was reasonably able to relocate to a different region in Pakistan. Upon this basis, the appeal was dismissed.

Sophie Manera, Solicitor and Registered Migration Agent, Rothstein Lawyers; Communications Officer, Human Rights and Social Justice Working Group, Young Lawyers Committee

Kidd v The State of Western Australia [2015] WASCA 62 (S) Appeal - costs - protracted disputes as to costs be discouraged - case management principles - O 66 r 2(d) RSC - assessment and taxation of costs following relevant costs determinations.

In Kidd v The State of Western Australia [2014] WASC 99 (S) (Beech J), the Court made costs orders in the defendants' favour following the plaintiffs' failed attempt to restrain Burswood Nominees Ltd (the third defendant) from all

case notes further construction of a third hotel and associated facilities within the Burswood Resort precinct unless and until the project underwent the development approval process under general laws of the State and local planning schemes: Kidd v The State of Western Australia [2014] WASC 99 (Beech J). The plaintiffs appealed.

On appeal, the Court (Martin CJ, Newnes & Murphy JJA) was seized of three issues: (1) Should the successful respondents' costs be taxed as one set by analogy to O 66 r 2(d) of the Rules of the Supreme Court 1971 (WA)?

(2) Should an order be made directing that the third respondent's costs be taxed without regard to the limits imposed in the relevant costs determination?

(3) Should the first and second respondents' costs be taxed without regard to the limits imposed by some items of the relevant costs determinations?

The Court found in the affirmative on issue (1) on the basis that, "while the interests of all the respondents were aligned, they were not coincident": [6].

kind is contrary to the overarching principles specified in O 1 r 4A and 4B of the Rules which govern all proceedings in the court. Such litigation has a very real capacity to consume resources of the parties and the limited resources of the court to an extent which is entirely disproportionate to the significance of the issues involved. Protracted disputes with respect to costs should be discouraged … ([1]-[2]).

The Court also found in the affirmative on issue (2). The plurality noted that the questions which must be addressed under s 280(2) of the Legal Profession Act 2008 (WA)1 are: first, whether the proceedings as a whole - rather than in respect of each individual item in the relevant costs determination - can be characterised as difficult, complex or important; second, whether the amount allowable under the relevant determination is inadequate because of the unusual difficulty, complexity or importance of the matter. The Court held that inadequacy will be established if there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount greater than the limit imposed by the relevant determination: [10]-[11].

The decision is an important reminder of the limits of, and how case-flow management principles impact, costs recovery in the Supreme and District Courts' jurisdiction.

Author anonymous NOTES

However, the Court found in the negative on issue (3) on the facts at hand.

1.

Importantly, and before considering these three issues, the Court made clear that:

Section 280(2) of the Legal Profession Act 2008 (WA) empowers a court or judicial officer to depart from a costs determination where the amount of costs allowable under the relevant determination is inadequate because of the unusual difficulty, complexity or importance of the matter.

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45

case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Children – Mother wins appeal against coercive interim order requiring her to relocate – Court's approach to interim hearings In Eaby & Speelman [2015] FamCAFC 104 (27 May 2015) the Full Court (Thackray, Ryan & Forrest JJ) allowed the appeal by the mother who after unilaterally relocating with children to a town 765 kilometres away was ordered to return at an interim hearing

by Judge Turner who also ordered that the father spend time with the children. Ryan J (with whom Thackray & Forrest JJ agreed) said (at [13]-[15]) that "[h]er Honour did not make an order in relation to parental responsibility. Given that ... the mother sought an [interim] order [as to parental responsibility] it is ... surprising that no reasons are given for her Honour's decision not to address this issue" and that the mother "was entitled to have her application determined in accordance with the law".

Ryan J continued (at [17]-[18]): ( ... ) On the basis that the parties' evidence was in conflict and/or lacked corroboration by an independent source, that evidence was disregarded. ( ... ) It is true that in Goode [[2006] FamCA 1346] … the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained … [i]n SS & AH [2010] FamCAFC 13 at [100] … [where] the majority (Boland and Thackray JJ) said:

The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.

Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have 46 | Brief September 2015

little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

Children – No time given to father released from prison after serving a sentence for child pornography – Unacceptable risk of harm In Stack & Searle [2015] FCWA 44 (12 June 2015) Crisford J dismissed the father's application for parenting orders. He had been released from prison after serving a three year sentence for indecent dealing with a child, possession of and supplying child pornography ([2]). Further charges of indecent dealing were pending. The mother was granted sole parental responsibility and an order that the father have no time and not communicate with the children and that their surname be changed to hers. Crisford J said (at [26]) that "[t]o be meaningful [within the meaning of s60CC(2)(a) FLA] a relationship 'must be healthy, worthwhile and advantageous to the child' (Loddington & Derringford (No 2) [2008] FamCA 925)".

The father alleged that "[when] the parties were together [the] children had a very meaningful relationship with him" [(32)] while "[t]he mother paint[ed] a completely different picture of the father, [saying that] he deliberately cultivated a close relationship with Child A [the eldest child] … in order to groom her ([35])", that he had allowed Child A to see him watching a pornographic video [44] and he was alleged

by Child A to have sexually penetrated her [52]. The father had also uploaded images of three year old Child B to an international child pornography site ([42]).

The father relied on evidence from his treating psychologist that he had "completed two comprehensive sex offender programmes and individual therapy" and that she "support[ed] the father spending supervised time with the children" ([63]) but Child A's therapist, a senior clinical social worker (Dr Hay), described "the father's 'position of denial and minimisation' as a cause for concern" and that despite "his completion of various

courses and programmes" he "ha[d] never admitted to the charges of sexual abuse of [Child A]" ([68]). The Court preferred Dr Hay's opinion, concluding (at [148]) that "there is an unacceptable risk of harm to the children … [that] some factors taken alone, such as the actual proven abuse and its ongoing impact are enough to say that the risk of harm outweighs the benefit of the children seeing the father".

Property – Parties did not have a de facto relationship despite having a child – No mutual commitment to a shared life In Harbrow & Boston [2015] FCCA 1414 (28 May 2015) Judge Harland heard a threshold (jurisdictional) issue as to whether the parties were in a de facto relationship for the purpose of s90RD of the Family Law Act. The parties were born in Ethiopia, met in Australia, had a wedding ceremony in Ethiopia and had a child together. The alleged de facto husband (the respondent) agreed that he participated in the ceremony but said that the applicant had asked him to fill in to save face when her then fiancé "stood her up". They flew back to Australia on the same flight ([35]) and two weeks later she told him she was pregnant [36].

The applicant alleged a six year de facto relationship, the respondent saying that they were just friends ([99]). The respondent said that he let the applicant live at Property E in lieu of him paying child support [and that] they keep in touch because of their child" ([37]). There was evidence of the applicant receiving Centrelink benefits "as a single mother" ([44]) and the parties going to Disneyland together with the child ([53]).

The court found that the parties did not live together ([100]) or have an ongoing sexual relationship ([102]), that the respondent had financially supported the applicant ([103]) but that while the "applicant may have been committed to a shared life … the respondent was not" ([104]). The court concluded on all the evidence that the applicant had failed to discharge the onus of proving on the balance of probabilities that a de facto relationship existed ([109]).

The application was dismissed.

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 Administrative Appeals Tribunal Appeal on question of law - review of AAT decisions by judicial review Workers compensation – 'injury' In May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 (30 June 2015) and Haritos v Commissioner of Taxation [2015] FCAFC 92 (30 June 2015) a Full Court of five members concluded the right to appeal to the Federal Court from the AAT given by s44 of the AAT Act 1975 (Cth) was not to be narrowly confined and was an ample provision enabling appeals on questions of substance not form. Consideration of reviewing AAT decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Review in Haritos of what is a "question of law"; review in May as what is an 'injury'.

Administrative law "Decision under an enactment" In Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73 (28 May 2015) a Full Court concluded that the "Preliminary Assessment of a District Workforce Shortage" in the process by which overseas trained doctors were approved to work in 'bulk-billing' medical practices under the Health Insurance Act 1973 (Cth) was a precursor to a decision under an enactment for s3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and not reviewable.

Citizenship Conferral – residence requirement whether spouse must reside in Australia for entire time Minister for Immigration and Border Protection v Han [2015] FCAFC 79 (4 June 2015) a Full Court concluded the AAT did not err in holding that it was not necessary for an applicant for Australian citizenship to establish that their spouse was an Australian citizen for the entire time of the residence requirements and it was sufficient that the spouse be a citizen at the time of application.

Estoppel Jurisdiction – bankruptcy In Truthful Endeavour Pty Ltd v Condon [2015] FCAFC 70 (7 May 2015) a Full Court reviewed authority as to its exclusive

jurisdiction over matters arising under the Bankruptcy Act 1966 (Cth). The court concluded the decision in Gorkowski v Turner [2014] VSC 200 (which concluded the Victorian Supreme Court had jurisdiction to determine a dispute as to the assets of a former bankrupt held on trust by his trustee because only equitable title was in issue and no issue under the Bankruptcy Act arose) was in error.

Legal practitioners Advocate's immunity Sims v Chong [2015] FCAFC 80 (5 June 2015) a Full Court concluded the primary judge had erred in dismissing a proceeding against a lawyer for unsatisfactory advice on the ground of advocate's immunity.

Consideration of advocate's immunity.

Migration Visas – cancellation of visas on character grounds In Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (12 June 2015) a Full Court in a joint judgment doubted that the decision in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 which concluded the Minister should assess the risk to the community if the visa holder stayed in Australia was correctly decided.

HIGH COURT Administrative law Tribunals – bias – panel of municipal council considering destruction of dog – panel member involved in prosecution of dog owner In Isbester v Knox City Council [2015] HCA 20 (10 June 15) H was an officer of the respondent council and responsible for coordinating local laws. H was responsible for prosecuting the appellant (I) in the Magistrate's Court (Vic) under s29(4) of the Dog Act (Vic) for owning a dog that had attacked a person. I was convicted on a plea of guilty. The Council had adopted a procedure of creating a panel to consider the separate question under s29(12) of whether the dog should be destroyed. H was a member of the three person panel (who were all relevant delegates) and actively involved in its deliberations. The panel held a hearing and I was heard. After the hearing one panel member/delegate K decided the dog should be destroyed and H

agreed to provide a statement of reasons. I sought judicial review claiming the decision was affected by bias. She failed before the primary judge in the Supreme Court of Victoria and before the Court of Appeal (Vic).

Her appeal to the High Court was allowed by all members of the court: Kiefel, Bell, Keane, Nettle JJ jointly; sim Gageler J. The members of the joint judgment concluded that H's active interest as 'prosecutor' made her membership of the panel 'incompatible' with a fair hearing: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Appeal allowed.

Criminal law Provocation – the "ordinary man" In Lindsay v The Queen [2015] HCA 16 (6 May 2015) after a long session of drinking alcohol the deceased N made sexual advances to L (a male Aboriginal) at L's home and in front of L's family. L killed N. At trial where provocation was an issue, L was convicted of murder. On appeal the Court of Criminal Appeal SA concluded there were deficiencies in the directions as to provocation but in light of the court's firm view as to contemporary attitudes no ordinary person would have lost control as L had and the errors as to provocation had not resulted in an appealable error. L's appeal to the High Court was allowed by all members: French CJ, Kiefel, Bell, Keane JJ; sim Nettle J. The High Court reviewed the functions of the trial judge and juries in applying the "ordinary man" test. Appeal allowed; retrial ordered.

Native title Effect of wartime occupation of land In Queensland v Congoo [2015] HCA 17 (13 May 2015) the High Court concluded exclusive occupation of land in World War 2 by military officers (exercising power to do so under regulations made under the National Security Act 1939 (Cth)) to use the land for live firing exercises did not extinguish native title: French CJ with Keane J; sim Gageler J; contra Hayne; Kiefel; Bell JJ. Appeal from like conclusion of Full Court of the Federal Court dismissed.

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

47

law council update

LATEST EXAMPLE OF LEGAL AID FUNDING CRISIS SHOULD SERVE AS WAKE-UP CALL A Northern Territory man facing serious assault charges has been denied legal assistance by the local Legal Aid Commission due to "insufficient funds," in another striking example of Australia's deepening legal aid funding crisis.

The man's trial had to be adjourned to enable him to obtain legal representation.

Law Council of Australia President Mr Duncan McConnel said the case was a worrying example that the knock-on effects from the lack of legal aid funding were serious.

Law Council President Mr Duncan McConnel said the prominent commercial litigator would make an outstanding addition to the Federal Court bench.

Ms Markovic's principal areas of practice over many years are the bread and butter of the Federal Court: administrative law, corporations and insolvency, and broader commercial litigation, often involving the Commonwealth Government as a party.

"Each of the witnesses, including the complainant who says he was seriously assaulted, now has to wait until next year before the matter comes to court. These delays are obviously stressful.

"Ms Markovic's depth of experience in complex matters will undoubtedly be a great asset to her new judicial role," said Mr McConnel. "The added dimension of her experience as a solicitor-advocate managing complex litigation in a team environment is a very good alignment with the Federal Court's progressive approach to case management and specialised litigation, particularly in light of the establishment of the National Court Framework and National Practice Areas."

"This case also clearly brings into focus what a false economy it is to cut legal aid funding. The community now bears the wasted cost of preparation by the prosecutor for trial, because the matter will have to be prepared again in 2016.

Meanwhile, valuable court time is wasted because it is impossible to list another trial at such short notice."

Ms Markovic's appointment follows her success as a member of the senior leadership team, heading the litigation and dispute resolution department in one of Australia's largest firms. She has been the recipient of a number of awards for her work in litigation, public law, regulatory practice and alternative dispute resolution.

Mr McConnel said a fair and efficient justice system demanded well-funded legal aid services.

"I am confident Ms Markovic will make an excellent contribution to the long and proud history of the Federal Court," Mr McConnel concluded.

"The impact of deferring this matter is significant," said Mr McConnel.

"If you starve legal aid of funding – as has been the case in Australia since the turn of the century – then you are preventing proper access to justice, clear and simple. Furthermore, you are creating inefficiencies and waste as courts are delayed or inconvenienced by people unable to secure legal representation," concluded Mr McConnel.

LEGAL PROFESSION WELCOMES NEW FEDERAL COURT JUDGE On behalf of the Australian legal profession, the Law Council of Australia applauds the appointment of Ms Brigitte Markovic as a judge of the Federal Court of Australia.

48 | Brief September 2015

LAW COUNCIL TELLS INQUIRY PROPOSED CITIZENSHIP-STRIPPING LAWS ARE DEEPLY FLAWED Proposed legislation to allow dual nationals to be stripped of their Australian citizenship on national security grounds is flawed and should be amended or reconsidered altogether, according to the Law Council of Australia.

Law Council President Mr Duncan McConnel, who addressed the Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 in Canberra today, said the legal profession's peak national body had

serious concerns about the legislation.

"We recognise the Bill seeks to pursue the legitimate objective of addressing terrorism and providing consequences for citizens who are no longer loyal to Australia and its people. However, there are a number of problems with the proposed scheme," said Mr McConnel.

The President used the hearing to reinforce key points made in the Law Council's written submission: 1. The mechanism for revocation of citizenship is clumsy; its drafting seems driven by a need to avoid constitutional invalidity rather than a workable, simple mechanism with some protection of rights.

2. The conduct or behaviour that leads to automatic loss of citizenship is very broad and imprecise. It means it would be very hard to know if someone had done something to trigger loss of citizenship until they get the notice from the Minister.

3. There is only very limited review. A person faced with loss of citizenship should have the opportunity to explain or even defend their actions, and for a reasonable decision of the Minister to follow. The Court should supervise the loss of such a fundamental and important privilege.

4. A proper decision-making process leading to revocation of citizenship would provide a means for safeguarding children and people who would be rendered stateless by such a decision.

5. The laws should not apply to past conduct, except where it relates to a conviction obtained after commencement.

Mr McConnel noted that while it was not clear to the Law Council that the stripping of citizenship was a necessary response to the threat of terrorism, responsibility for that judgement rightly lay with Parliament.

"If it is decided that the removal of citizenship is appropriate, a change of approach should be considered," Mr McConnel concluded.

pam sawyer

49

announcements

Professional Announcements Career moves and changes in your profession Genevieve Cleary

IRDI legal

Genevieve Cleary has commenced practise at the bar. Her areas of practise are criminal law, civil and regulatory penalty law, administrative law and building and construction.

IRDI legal is pleased to announce the appointment of Kai Francis as Senior Litigation Lawyer. Previously a Senior Associate at King & Wood Mallesons, Kai brings over six years of experience in commercial litigation and dispute resolution.

Genevieve Cleary

Genevieve’s contact details are: Francis Burt Chambers 12/77 St Georges Terrace PERTH WA 6000 Telephone: (08) 9220 0483 Mobile: 0431 636 086 Email: gcleary@francisburt.com.au

IRDI legal is also pleased to announce the appointment of John Hayward as Special Counsel. With over 48 years’ experience in legal practice, 35 of them as a partner at Freehills, and specialising in taxation and revenue law and John Hayward trusts, John’s expertise will further strengthen the firm’s commercial and corporate services.

Moray and Agnew Moray and Agnew are pleased to announce that Martin Dobson and Daniel Costanza have joined the firm as Partners with Senior Associate Joshua Wilcox and Lawyers Stephanie O’Connor and Jackson Criddle also commencing with the firm.

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Martin Dobson

Hogan Lovell is pleased to announce the appointments of Rebecca Cifelli as Senior Associate and Joanne Yoon as Associate.

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51

events calendar

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YLC Ten Pin Bowling

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Recent developments in environmental law at a state and federal level

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Tuesday, 15 September

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Tuesday, 15 September

YLC: Efficiencies of a workplace with emotional intelligence

The Law Society of Western Australia

Wednesday, 16 September

Injunctions and freezing orders

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Friday, 18 September

Sourcing and managing free legal information in 2015

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Ethics on Friday: ethics for in house counsel

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Tuesday, 22 September

Effective case management in the Family Court

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Wednesday, 23 September

Current issues in costs for commercial litigators

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Ethics on Friday: balancing duties to the court and to your client

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Protecting and promoting your ‘brand’ online

The Law Society of Western Australia

Thursday, 22 October

YLC: mental health hypothetical

The Law Society of Western Australia

NOVEMBER SOCIAL EVENTS Friday, 6 November

YLC Mixed Netball

Matthews Netball Centre

NOVEMBER CPD EVENTS Tuesday, 3 November

Improve your negotiation skills today

The Law Society of Western Australia

Wednesday, 4 November

Criminal law update

The Law Society of Western Australia

Thursday, 5 November

Family Provisions Act and wills disputes

The Law Society of Western Australia

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 For all upcoming events and further information please visit lawsocietywa.asn.au 52 | Brief September 2015

ACTIVATE YOUR ESSENTIAL MEMBERSHIP OF THE LEGAL PROFESSION

PERSONAL AND PROFESSIONAL SUPPORT

lawsocietywa.asn.au

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