Brief December 2017 by The Law Society of Western Australia

VOLUME 44 | NUMBER 11 | DECEMBER 2017

Leadership Insights Interview with 2017 President Alain Musikanth and 2018 President Hayley Cormann

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Volume 44 | Number 11 | December 2017

CONTENTS

COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The 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 authorâ&#x20AC;&#x2122;s name is not provided, or if readers are not able to locate an authorâ&#x20AC;&#x2122;s contact details, readers should contact the Law Society of Western Australia (Inc.).

ARTICLES 07

2018 Council

2016/17 Annual Report

The Role and Future of the Federal Court within the Australian Judicial System

Profile: Greg McIntyre SC

Leadership Insights: Interview with Alain Musikanth and Hayley Cormann

Farewell to Chief Justice Diana Bryant AO

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.

27 28

36 39

Varying Funding Agreements and Freedom of Contract: Some Observations Ex Juris: Travel tales from the legal profession The Toohey Legacy: rights and freedoms, compassion and honour Personal reflections on cultural diversity in the legal profession Welcome ceremony for Judge Belinda Lonsdale

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 Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Charles McDonald RRP $16.00 incl GST. Printed by Scott Print Cover Photo: The Scene Team

Editor: Jason MacLaurin Deputy Editor: Moira Taylor Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, Robert French, Melissa Koo, The Hon John McKechnie QC, Alain Musikanth, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831

REGULARS

Submission of articles: Contributions to Brief are always welcome. For details, contact communicationsofficer@lawsocietywa.asn.au

02 President's Report

49 Cryptic Crossword

04 Editor's Opinion

50 Professional Announcements

06 Ethics Column

50 New Members

45 Family Law Case Notes

51 Pam Sawyer

46 Drover's Dog

52 Events Calendar

48 Law Council Update

53 Law Summer School 2018

President: Alain Musikanth Senior Vice President: Hayley Cormann Vice President: Greg McIntyre SC Treasurer: Jocelyne Boujos Immediate Past President: Elizabeth Needham Ordinary Members: Jocelyne Boujos, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Elisabeth Edwards, Catherine Fletcher, Rebecca Lee, Marshall McKenna, Denis McLeod, Stefan Sudweeks, Nicholas van Hattem, Paula Wilkinson Junior Members: Deblina Mittra, Jodie Moffat, Noella Silby Country Member: Brooke Sojan Chief Executive Officer: David Price

PRESIDENT'S REPORT Alain Musikanth President, the Law Society of Western Australia

Welcome to the final edition of Brief for 2017. In February, I outlined some of the matters on which the Law Society planned to focus this year. In this my final column, I provide an overview of how those matters have progressed so far. In doing so, I will once again refer to the core objects of the Society adopted in 1927, and still reflected in its Constitution today, namely: •

Advancing the interests of the legal profession;

•

Promoting good practice and curbing malpractice;

•

Advancing legal education;

•

Promoting the administration of justice and the development and improvement of the law; and

•

Encouraging collegiality.

Interests of the legal profession Future of the legal profession In my first report, I suggested that artificial intelligence was a challenge of a kind barely conceivable in the minds of lawyers practising nearly a century ago. I also foreshadowed that a particular manifestation of that challenge, namely the potential impact of the technology on practical opportunities for skills development in emerging and future lawyers, would be the subject of discussion with managing partners of law firms. The discussion occurred as part of a forum on artificial intelligence hosted by the Society during Law Week1. The forum followed the adoption by Council, in late February, of a new strategic directions plan. Under the plan, the strategic objectives of the Society were re-set to include the provision of both leadership on the future of the profession as well as resources and information on related issues for the benefit of members. Consistent with those objectives, a Futures Reference Group, comprising both internal and external members, was established to guide the Society’s work in this area. A framework for the delivery of futurethemed offerings was developed, and the generation of an increasing number of 02 | BRIEF DECEMBER 2017

presentations, papers and Brief articles on such topics ensued. A highlight was the keynote address delivered at the Law Week Breakfast by Katie Miller, 2015 President of the Law Institute of Victoria, on Legal traditions in an age of disruption: How do lawyers decide what to keep and what to relinquish? In addition, delivery of seminars on futurefocused subjects is now a regular part of the Society’s CPD programme. Guidelines on the unbundling of legal services have been published, while the November edition of Brief was devoted largely to subjects directly relevant to the future of the profession. An extensive paper on The Future of the Legal Profession is currently in the throes of finalisation, and it is hoped that the paper will be posted on the Society’s website before the end of 2017. I have every confidence that the Society will continue providing both leadership and guidance to our members on important matters associated with the future of the profession in 2018. Performance of legal work by nonpractitioners In February, the spectre of nonpractitioners performing legal work was raised and a comprehensive study into the topic was foreshadowed. The study was duly conducted, and a position paper entitled People Unlawfully Engaging in Legal Work: Protecting the Community was published in August. As noted in my November electronic Update, the Attorney General, the Honourable John Quigley MLA, recently wrote to the Society to thank us for providing a copy of the position paper. It is understood that consideration is being given to the Society’s proposals for legislative reform contained within the paper. Governance This year also saw a comprehensive review of the Society’s Constitution, with a view to ensuring conformity with the requirements of the Associations Incorporation Act 2015 (WA). As part of the review, scope for further refinements to the Constitution consistent with contemporary notions of good corporate

governance was also identified. In August, feedback was sought from members regarding a series of possible constitutional amendments developed as part of the review. Following completion of that process, the Society’s Council approved a final set of proposed amendments in October. The amendments were unanimously approved by members of the Society at its annual general meeting on 9 November 2017.

Good practice In the February edition of Brief, I mentioned the Legal Profession Uniform Law. National harmonisation of key aspects relating to regulation of the legal profession has remained high on the Society’s agenda this year. In 2014, Society had resolved to recommend to the then Attorney General, subject to qualifications, the adoption of the Legal Profession Uniform Law 2014, which subsequently came into force in New South Wales and Victoria on 1 July 2015. Following the election of a new State Government in March 2017, the Society commenced steps to progress its recommendation. As noted previously, the Society has been actively engaged with both State Government and other stakeholders in an effort to achieve an outcome consistent with the Society’s position. The Society is aware that the State Government is in discussions with the Legal Services Commission and has had contact with the governments of New South Wales and Victoria. The Society is encouraged by the work which has been undertaken so far, and it is optimistic that further progress will be made in 2018.

Legal education The Society was again pleased to provide support to the legal profession of Western Australia through its comprehensive Continuing Professional Development

programme. In February I indicated that the Society would continue to explore even greater flexibility in, and accessibility to, its CPD programme for the benefit of its members. This year, the Society included webinars as part of a multichannel approach to legal education. These are offered in addition to seminar style presentations at the Society, workshops, and recorded seminars accessible through our eLearning portal. In addition, during the second half of 2017, a comprehensive external review of the Society’s CPD programme was undertaken. The results of that review, and the recommendations arising from it, will be considered by Council later this month at its final meeting for 2017. Law Summer School was, of course, a highlight of 2017. Our flagship legal education conference will return on Friday, 23 February 2018, with an array of eminent local, national and international speakers scheduled to present. Please visit lawsocietywa.asn.au/event/lawsummer-school-2018 to book your place.

Administration of justice and law reform Throughout the year, the Society has continued to promote both the administration of justice and law reform. Through its extensive committee structure, the Society dealt with references for comment from outside organisations, made submissions and initiated comment on various legal and practice issues including proposals for improvement of the law. Much of the Society’s work in these respects has been chronicled elsewhere2.

More than 300 members and other special guests attended Perth Town Hall to participate in the festivities. A number of story boards showing a selection of significant historical milestones, and screens depicting a series of photos relevant to the Society’s 90 year history, were on display at the event. None of the achievements presented would have been possible without the support of the Society’s members, the dedication of its councillors, committee members and staff.

90th Anniversary publication In February it was announced that the Society would produce a commemorative publication, authored by professional historian Dr Catherine May, to mark the Society’s 90th anniversary. I am delighted to confirm that this work has now been completed after many months of dedicated research by Dr May. The Society is grateful both to Dr May and to the many contributors who assisted her with interviews, information and material. I also express my special thanks to the Society’s Andrew MacNiven for the considerable amount of time which he devoted to assisting with research and in bringing the publication to finality.

and will available for download from the Society’s website shortly thereafter.

Thank you Finally, it remains for me to express some brief words of gratitude. It has been an honour and a privilege to serve as President in what has been a both a busy and interesting year. I thank members of the Society, my Executive, members of Council, and the convenors and members of the Society’s many committees, for their collegiality and commitment, and the Society’s general managers and members of staff for their dedication. I express my thanks, in particular, to Hayley Cormann, David Price and Sue Langmair for their sage advice and unqualified support throughout the year (and to Gerda Musikanth for her tolerance and endurance). I wish everyone an enjoyable and restful holiday season, and every success in 2018. NOTES: 1

A report on the forum appears in the July edition of Brief.

See for example page 15 of, and the committee reports contained within, the Society’s annual report for 2016/2017: https://www.lawsocietywa.asn.au/ wp-content/uploads/2015/10/Law-Society-AnnualReport-2016-17_financials.pdf.

It is intended that the publication will be launched officially at the Society’s End of Year Celebration on 7 December 2017,

Left to Right: Alain Musikanth with Old Court House Law Museum Curator Julianne Mackay and the Hon Chief Justice Wayne Martin AC

As always, the Society has during 2017 also continued to engage with the media on legal and justice-related topics of interest or concern where appropriate. On several occasions this year members of the Society’s Executive have also met, both formally and informally, with senior members of the judiciary and representatives of the courts, Commonwealth and State ministers, senior government officers and other stakeholders to discuss matters of significance to the administration of justice.

Collegiality The Society’s premier social event for 2017 was its 90th Anniversary cocktail party held on Thursday, 15 June, 90 years to the day after the Society was founded by a small group of practitioners at a meeting in the old Supreme Court library.

The Supreme Court of Western Australia donated a wig and wig tin belonging the late Sir Ronald Wilson, former Justice of the High Court of Australia, to the Society's Old Court House Law Museum. The items were recently donated to the Court by Justice Walter Sofronoff, President of the Queensland Court of Appeal. Justice Sofronoff purchased the wig from Sir Ronald Wilson in 1988 when the judges of the High Court discontinued the practice of wearing wigs. The addition of the wig and wig tin to the Museum collection is significant due to Sir Ronald’s place in the history of the legal profession in WA and him being the first WA appointee to the High Court of Australia.

EDITOR'S OPINION Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This last edition of Brief in the Society’s 90th anniversary year features an interview with outgoing and incoming Presidents Alain Musikanth and Hayley Cormann. Alain’s farewell President’s Report sets out an excellent summary of the matters the Society has been focused upon – having regard to its role as the voice of the profession, charged with advancing the interests of both the profession and the community. Brief is proud to be the official journal of the Society in advancing these objectives, while at the same time hopefully providing some entertaining diversions of interest to the local profession. Brief congratulates and thanks Alain for his hard work and fine stewardship of the Society. It also congratulates Hayley, and wishes her all the best for the new year as President. Congratulations are also extended to all new members of the Society’s Council for 2018 (who appear at page 7). The Q & A also deals with work-life balance considerations, given that officeholders have their law practices to attend to. Some Presidents of course, when performing official duties while having private business and professional interests to be taken care of, have people named “Ivanka,” “Jared”, “Don Jnr” and “Eric” to assist.1 It is also a relief, given recent events approximately 8,600 kilometres to the west of Perth, to have joint statements about a Presidency made without the incumbent suddenly improvising and self-editing the statement to say, in effect, that they’re not going. Brief does not publish a January edition. This is not due to a lack of work ethic, but more a function of it being too expensive to mail out all those copies of Brief to Northern Hemisphere skiing venues. The last thing Brief wants is having copies gathering dust through January like Harvey Weinstein and Kevin Spacey’s after-party invites for the 8 January 2018 Golden Globes awards. As the next Brief will be a February edition, it will unfortunately miss addressing occasions such Australia Day.Then again, the way things are going, depending on your post code and what Shire or City you live in, maybe it won’t be too late to address Australia Day celebrations in February. Readers will note that this Brief attempts to kickstart some new (and newish) items. We have our introductory travel item, which,

04 | BRIEF DECEMBER 2017

noting that lawyers are great travellers, will hopefully encourage more submissions to Brief along these lines. And, there is the surprise return of the Drover’s Dog which, again, seeks to encourage submissions from the profession to feed the Dog, so to speak. A defining characteristic of the Dog in the past was anonymity – both as to sources and indeed the identity of the Dog. This will be strictly adhered to. In addition, not only is the Dog’s actual identity anonymous, but in fact may alter and mutate.2 This new Dog finds itself (the Dog being gender neutral of course!) in Spain, with the Dog seemingly in or near Andalusia at times. The Editor was accordingly tempted to entitle this instalment of the Dog “Un Chien Andalou”. However, that might involve payment of royalties to the estates of Luis Buñuel and Salvador Dali3 and also be considered an unduly narrow call-out to fans of Spanish Surrealism.4 In addition, given all of the torments the Editor has inflicted upon those responsible for the graphics for Brief this year, having them come up with a razorblade-slicing-an-eyeball motif would be a bridge too far. Taking a final look at 1927, a Sunday Times editorial back then suggests an anxious if not angry attitude in WA. It contained phrases such as: “this is the despised West, the Cinderella sister, who is still expected to do the menial work for the protected and favoured daughters of the Commonwealth!”.5 It went on to lament that “the people of WA have adequately diagnosed the Eastern design to so emasculate the states as to make unification imperative”. Nowadays, those statements would justify a whole gender studies course, if not the trigger alert of all trigger alerts. It involves fat and appearance shaming, the Cinderella syndrome writ large, and some form of Alpha-male worship/fear of emasculation. The 1927 newspapers also contained an advertisement for the miraculous “Sargol” tablets, under the title ‘How Thin People Can Get Fat’. The ad says that every excessively thin man or woman declares: “I’d certainly give most anything to be able to fat up a few pounds and stay that way.” It claims Sargol is a “scientific combination of six of the best strength-giving, fat-producing elements known to the medical profession.” This seems more apt to describe what is served up and consumed on Boxing Day. In any

event, severe doubts were expressed about Sargol, which is essentially ‘Iranian Saffron’, and whether, like many products advertised in the 1920s, it actually possessed the touted benefits.6 Nevertheless, it does make for a very good New Year’s Resolution: “Yep, I’m laying off the Iranian Saffron in 2018.” The Editor extends sincere thanks and appreciation to members of the Brief Editorial Committee for all diligent work, suggestions, and support all of which makes Brief possible. Also, great and sincere thanks and appreciation to all at the Society involved in the production of Brief, who of course, are responsible for the production of Brief in the ultimate sense. Amongst those are the veteran team member and key position player Andrew MacNiven, and newly drafted and key position player Madeleine McErlain. It is also important to note the great contributions of the (only recently left) key staff Moira McKechnie and Brett Syme. This edition contains, in addition to some of the new items described above, items by Chief Justice Allsop AO, Greg McIntyre SC, Professor Gino Dal Pont, Julian Sher and the continuing case study segment, this time with Greg McIntyre SC. Brief wishes all a very happy Christmas and New Year (and hopefully beyond) holiday season. Please forward any and all items that you might think may be of interest for the February edition, and in the meantime – good luck staying off the Iranian Saffron. NOTES:

Names like “Manafort”, “Flynn” and “Sessions” – not so much.

Any aficionado of 1980s horror films may put in mind the dogs in John Carpenter’s “The Thing” (best recommended though not on a full stomach).

Or even the iconic The Pixies, on account of their great song ‘Debaser’.

Hopefully there are fans of both Buñuel and Dali films, and also John Carpenter films, outside the Editor and his immediate family.

The form, length, nature and exclaimation mark at the end of this passage marks it as yet another exquisite example of a historical pre-twitter twitter.

The Editor’s researches about Sargol and skepticism about its effectiveness led to a blog site entitled ‘The Museum of Bad Ideas’. Which somewhat gallingly also contained the last 12 months of Brief Editorials.

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

SALARIED/EQUITY PARTNER OPPORTUNITIES PARTNER – COMMERCIAL/PROPERTY LAW – Take over a $1M-$1.5M+ practice from Retiring Partner. This a rare opportunity for a Commercial/Property Lawyer at the Partner or SA/SC level to join a long established firm and take over the practice of a retiring Equity Partner. The firm is highly regarded and consists of Partners from top-tier backgrounds, with a loyal client base and proud reputation in the Perth market. This Partner, one of the firm’s founders, is now planning to transition their clients to a Senior Lawyer over the next 12-36 months. The incoming lawyer will need a strong background in Commercial/Property Law from a leading firm (either mid-tier or boutique), with a significant level of drive to lead and further build the practice over the next 10+ years. PARTNER – CORPORATE/ECM – Growing international firm. KBE Human Capital is working exclusively with a key client to secure a Corporate Partner to inherit/lead an established practice, with a strong focus on IPO’s and Equity Capital Markets. This international firm has experienced rapid and sustained growth with arguably the strongest leadership team in Western Australia. The successful candidate will work closely with the firm’s Senior Partners to further build the Corporate/ECM practice through leveraging their combined client networks. This opportunity would suit a lateral hire Partner or motivated SA/SC looking for their next career move in taking over a $300k to $400k practice from an existing Partner. The incoming Senior Lawyer will have strong client facing skills and the ability to mentor junior and mid-level lawyers. PARTNERS – FAMILY LAW – Market leading teams. We are currently seeking two Senior Family Lawyers to take on Partnership/leadership roles as part of our client firms’ growth and succession plans. You will enjoy mentoring junior lawyers and oversee file strategy for HNW clients across complex property and children’s matters. $250k transportable fee bases or established referral networks required. PARTNERS – INSOLVENCY/LITIGATION – National and boutique firms. Several opportunities have arisen for experienced Insolvency and/or Litigation Partners to join national and boutique firms as either a Partner or Head of Practice in further building capabilities across both front end Insolvency and related litigation matters. Transportable fee bases of $250k+ required. PARTNER/LEGAL PRACTICE DIRECTOR – LITIGATION – National firm. Opportunity for a Partner, SA/SC or in-house counsel with Litigation experience to replace a retiring Partner within a leading national firm. The firm has long running and highly complex litigation on foot and the incoming Senior Lawyer will join as the Head of Litigation. This role will suit a practitioner with 10-20+ years’ PAE who is capable of managing a team of 10+ lawyers, and comfortable working closely with the firm’s Managing Partner and Leadership team on a daily basis. $250,000 package. No fee base required. PARTNER – PROPERTY – Inherit a $500k+ fee base. KBE Human Capital has been briefed exclusively

to secure an experienced and driven Property Law Partner or suitably qualified SA/SC for a midtier firm. Our client is a large and well regarded WA firm with a strong and robust reputation across Commercial Law, Property, Litigation and Insolvency. You will have a $250k+ transportable fee base to add to the circa $500k in existing fees that will be transferred to you. The culture of this firm is collegiate, transparent and meritocratic, with equity available depending on the size of your transportable practice. PARTNER – WORKPLACE RELATIONS – National firm. Following recent growth in complimentary practice areas, a leading national firm is seeking a Workplace Relations Partner to build and lead a new practice in WA. The incoming Senior Lawyer will benefit from an extensive internal referral network, and work alongside a group of top-tier Partners. You will have previous exposure to a range of complex matters and be driven to build and lead a practice across both advisory and litigious matters. We are interested in speaking to lawyers with 8+ years’ PAE, with the ability to manage junior lawyers, provide commercially minded legal advice and bring across a transportable fee base of $300K+.

2 YEARS’ PAE TO SA/SC LEVEL OPPORTUNITIES CORPORATE/E&R LAWYER for newly established boutique firm. KBE Human Capital has been briefed to secure an Associate for a newly established and progressive firm. You will advise clients in relation to share/asset acquisitions and divestments, executing and defending takeover bids, cross border transactions, private equity structuring and advice, corporate governance, ASX/ASIC compliance and related Corps Act advice. The ideal candidate will have 3-6 Years’ PAE in Corporate and/or E&R from a national/international or leading boutique firm, who is looking to take on extensive responsibility in running files with client contact from day one. CORPORATE LAWYERS for national/international and boutique firms. 2-4 years’ PAE and 4 9 years’ PAE to join a number of Perth’s leading Corporate/ M&A teams. These client facing roles will provide the successful candidates with high levels of responsibility and extensive client contact. You will be comfortable advising senior stakeholders and dealing with boards, company secretaries, in house counsel, regulatory bodies and managing a significant deal flow. ENERGY & RESOURCES LAWYERS for international top-tier firm. This firm has an internationally renowned E&R team, acting for a diverse range of listed and private clients across energy, O&G, mining and major projects. Given the firm’s current market positioning and in line with its growth plans for 2018, the Partners are now seeking an Associate with 2-6 years’ PAE and SA with 5-9 years’ PAE to join their team. You will enjoy exceptional mentoring from market leading Partners, and be remunerated at above market rates. IN-HOUSE COUNSEL for indigenous corporation. KBE Human Capital has been briefed by an indigenous corporation to secure an In-House Legal Counsel for their growing team. This is a rare and interesting opportunity for a lawyer with a passion

for doing meaningful work, in assisting Traditional Owner groups in the north of Western Australia. You will work closely with the CEO and negotiate with mining companies, developers and other businesses to establish new business partnership opportunities and assess investment opportunities across a range of asset classes. Our client is seeking a well-rounded, driven and outgoing lawyer, with strong commercial acumen and a genuine interest in business. You will brief top-tier law firms in relation to specialist matters, and complete more general work in-house with guidance from the CEO and commercial team. Lawyers with 3-10+ years’ from both private practice or in house are encouraged to apply. This role is based in the north of WA, with a salary package of $140,000 to $150,000 on offer. INSURANCE LAWYERS for multiple firms across all tiers. We are currently working with several key clients across multiple tiers to secure Insurance Lawyers from 2 years’ PAE through Partner level. These positions involve working with a range of insurers and high profile self-insureds across a variety of insurance matters. We are interested in speaking with suitably qualified Lawyers with 2+ years’ experience in some or all of: General Liability, Product Liability, Professional Indemnity, Property Liability, Public Liability, Medical Negligence, MVA/CTP claims, and Workers’ Comp. The successful candidates will possess strong legal and communication skills gained in a top/midtier or leading boutique firms. Both plaintiff and defendant side applicants are encouraged to apply. INSURANCE LAWYER with workers’ compensation focus. One of Australia’s best regarded specialist national insurance teams is seeking a junior to mid-level lawyer to join the Perth practice. The successful lawyer will have 2-6 years’ PAE and work primarily across Workers’ Compensation matters, with the opportunity to gain exposure to professional indemnity, product liability and public liability. This role would suit a client facing lawyer who enjoys business development and extensive client contact. PROPERTY LAWYERS for international firm. 2-4 years’ PAE and 5-8+ years’ PAE. Join one of the few international firms that continues to grow in the current market. This leading Property practice consists of two high calibre Property Partners who work with private and government clients throughout the real estate lifecycle, including environmental and planning issues, development projects, disposals developments and related leasing work. WORKPLACE RELATIONS LAWYER to join a high profile mid-tier practice. Opportunity for an Associate or SA/SC to step into a leadership role and manage a team of junior lawyers whilst overseeing the strategic direction of key matters. Joining a highly functional and supportive senior management team, you will represent listed and large private clients across the full spectrum of workplace relations matters. Please contact us for a confidential discussion regarding the above positions, for information about salary levels in the current legal market, or comprehensive career planning advice.

KBE HUMAN CAPITAL WOULD LIKE TO WISH ALL OF OUR CLIENTS, FRIENDS AND COLLEAGUES A VERY MERRY CHRISTMAS AND ALL THE BEST FOR A SAFE AND HAPPY NEW YEAR.

Chris Bates

Managing Director M: 0411 645 984 E: chris@kbehc.com.au

Maryann McKenna

Siemone Neutgens

Principal Consultant

M: 0423 867 110 E: maryann@kbehc.com.au

M: 0403 383 326 E: siemone@kbehc.com.au

KBE Human Capital P: 08 6467 7889 A: 1322 Hay Street, West Perth 6005 W: kbehumancapital.com.au

Prospects of success Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

•

In a rational and ideal world, only finely balanced cases would likely proceed to adjudication.

•

Lawyers perform a critical role in assessing the strength of client cases, and in informing clients thereof.

•

A failure to properly perform this role, beyond disadvantaging clients and abusing court process, can sound in professional discipline.

It is logical to assume that a matter will go to trial where each of the contesting parties believes that he or she has good (or at least reasonable) prospects of succeeding. The logic is fortified by the application of the costs indemnity rule. Few rational litigants, it could be surmised, would press a matter to adjudication in the face of a strong prospect of not only proving unsuccessful (with whatever financial and other consequences may stem from this), but also liability for (most of) the opponent’s legal costs. Rational litigants, moreover, would take the advice of their legal representatives, who in an ideal world would, to the extent possible, accurately advise as to the chances of success (or failure). In this logical and rational world, the only cases to reach the adjudicative stage would be those wherein the law and/or the facts would be sufficiently finely balanced as to foster advice by each legal representative that their clients’ (competing) cases have reasonable prospects of success. This is presumably what spawned, for instance, statutory provisions in the Australian Capital Territory and New South Wales that proscribe a law practice from acting in a matter except where the claim or defence has “reasonable prospects of success”.1 Yet that a matter lacks “reasonable prospects of success” if it is “so lacking in merit or substance as to be not fairly arguable”2 means that the statute sets “a high threshold” for its contravention.3 The latter stems from a belief, no doubt, that while lawyers should legitimately have a “chilling effect”4 on litigation involving claims or defences that are “not fairly arguable”, they should not necessarily be an impediment to those that fall outside of this descriptor.

06 | BRIEF DECEMBER 2017

Of course, not all clients behave rationally. It was once thought that lawyers could legitimately pursue hopeless cases or defences on a client’s behalf provided that the client was fully informed as to the (very) likely adverse consequences.5 The assumption was that lawyers are client agents, and so act on (informed) client instructions. Nowadays, even outside of statutory prescription such as the above, courts acknowledge that for a lawyer to pursue a hopeless case or defence represents a breach of the lawyer’s duty to the court, amounting to an abuse of court processes. This may in turn sound in a personal costs order6 and/or professional discipline. There is nonetheless a distinction between a genuinely hopeless case and one that is weak. The law accepts that a client may seek to sustain a weak case or defence if he or she is fully informed as to its weakness, and the likely adverse consequences. Most clients, as a matter of self-interest, presumably will not. Lawyers accordingly perform a critical role in case “screening”, a role that is critical not just for their clients, but for the courts and indeed their own financial and other welfare. In a recent disciplinary determination, a lawyer discouraged his vulnerable clients from seeking a negotiated solution with their bank in the face of the bank’s prospective foreclosure against them.7 Advising the clients “don’t settle”, arranging for them not to attend mediation, and concurrently making wideranging (but unsupported) allegations of fraud and corruption against the bank, no fostered in the clients the (incorrect) impression that their case had merit. No advice was supplied as to the considerable financial risk to which the clients were being subjected in the litigation. On this basis, the lawyer was found guilty of professional misconduct. So while it may be tempting to give a client the advice he or she wishes to hear as to the strength of a claim or defence, for multiple reasons it behooves lawyers to exercise independent judgment in providing clients a “reality check”. NOTES: 1.

Civil Law (Wrongs) Act 2002 (ACT) s 188(1), 188(2); Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2, cll 2(1), 4(1).

Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 at [28] per Barrett J.

Treadwell v Hickey [2010] NSWSC 1119 at [25] per Barrett J.

Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [126] per McColl JA.

Re Cooke (1889) 5 TLR 407.

See, for example, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134.

Victorian Legal Services Commissioner v Beling [2017] VCAT 1022.

2018 Council The Society's Council for 2018 is below following the election which closed on 21 November 2017. Thank you to all members who voted and to everyone who nominated for a position on the Council. Council Executive Members

Hayley Cormann President

Greg McIntyre SC Senior Vice President

Jocelyne Boujos Junior Vice President & Treasurer

Alain Musikanth Immediate Past President

Senior Associate, Clayton Utz Council Term Expires: 12/2018

Barrister, John Toohey Chambers Council Term Expires: 12/2018

Principal, Sceales & Company Council Term Expires: 12/2018

Barrister, Francis Burt Chambers Council Term Expires: 12/2018

Council Ordinary, Junior and Country Members

Brahma Dharmananda SC Ordinary Member

Elisabeth Edwards Ordinary Member

Catherine Fletcher Ordinary Member

Emma Griffiths Ordinary Member

Barrister, Quayside Chambers Council Term Expires: 12/2018

Regional Legal Counsel (WA), Multiplex Constructions Council Term Expires: 12/2018

State Prosecutor, Office of the Director of Public Prosecutions Council Term Expires: 12/2018

Principal, Asociatii Commercial Lawyers Council Term Expires: 12/2019

Karina Hafford Ordinary Member

Eric Heenan Ordinary Member

Fiona Low Ordinary Member

Marshall McKenna Ordinary Member

Medical Law Claims, Practice Group Leader, Slater and Gordon Council Term Expires: 12/2019

Barrister, Francis Burt Chambers Council Term Expires: 12/2019

Barrister and Solicitor Council Term Expires: 12/2019

Partner, Gilbert + Tobin Council Term Expires: 12/2018

Denis McLeod Ordinary Member

Jodie Moffat Ordinary Member

Nicholas van Hattem Ordinary Member

Paula Wilkinson Ordinary Member

Managing Partner, McLeods Council Term Expires: 12/2019

Solicitor, Peel Community Legal Services Inc. Council Term Expires: 12/2019

Solicitor, State Solicitor's Office Council Term Expires: 12/2018

Founding Director, Kim Wilson & Co Council Term Expires: 12/2018

Zoe Bush Junior Member

Sarah O'Brien-Smith Junior Member

Brooke Sojan Junior Member

Kerstin Stringer Country Member

Articled Clerk, State Solicitor's Office of Western Australia Council Term Expires: 12/2018

Associate, HopgoodGanim Lawyers Council Term Expires: 12/2018

Solicitor, Legal Aid WA Pilbara Regional Office Council Term Expires: 12/2018

Principal Solicitor, Mandurah Legal Council Term Expires: 12/2019

2016/17 Annual Report The following is a summary of the key points made in the 2016/17 Annual Report which was approved at the Annual General Meeting held on November 2017. A full version of the Annual Report is available on the Law Society's website.

Membership In 2016/17 the Society achieved another record total of 3,870 members (up from 3,785 members the previous financial year). There was a stable membership base, with 92 percent member retention. The Society also obtained a market share of 3 percent (members with practicing certificates and ‘section 36’), with 3,028 ordinary members in 2016/17 compared to 2,942 in 2015/16, in line with the Society’s strategic target of 2 percent to 5 percent growth per annum. The Society met its targets for member satisfaction (83 percent) and member advocacy (80 percent). 86 percent of members agreed that the Society keeps members well informed about changes in legislation and key issues affecting the profession. 84 percent agreed that the Society is the voice of the legal profession in Western Australia.

Education and events The Society continues to be a market leader in Continuing Professional Development (CPD), with a 10 percent growth in attendance at the Society’s seminars. The Society’s CPD Active membership experienced strong loyalty and 13 percent growth. There was also increased uptake of the 08 | BRIEF DECEMBER 2017

Society’s online seminars, with a 16 percent growth in the Society’s eLearning platform. Similarly, there was a 16 percent increase in members of the profession attending the Society’s social events. In 2016/17 the Law Society delivered 27 social, sporting, networking and informational events including regular Sole Practitioner and Small Firm Forums, Society Clubs, and the Young Lawyer Inter Profession Networking events. The 2016 Gala Dinner for the Profession, the 90th Anniversary Cocktail Party and the 180th Anniversary Celebration of the Old Court House were particular highlights.

Advocacy The Society launched a new initiative to publish policy briefing papers outlining the positions of the Society in key public policy areas. 21 policy briefing papers were published in 2016/17. In early 2017 the papers were provided to the Attorney General and Opposition leader with their responses published in the March issue of Brief before the State Election. In 2016/17, the Society assisted the Law Council of Australia with promoting the national Legal Aid Matters campaign and launched the WA legal assistance funding campaign leading up to and continuing after the State Election. The campaign was successful in lobbying for

the partial reversal of funding cuts to the legal aid assistance of Federal and State Governments. Major reviews undertaken in 2016/17 included: •

the review of the Joint Form of General Conditions for the Sale of Land; and

•

amendments to the Constitution of the Law Society to ensure compliance with the Associations Incorporation Act 2015 (WA).

Following an extensive review process and consultation with members, amendments to the Society’s Constitution were approved by members at the Annual General Meeting on 9 November 2017.

Financial The 2016/17 financial year result was a surplus of $315,803 due to growth in membership. The Society ended the year with accumulated net assets of $3,235,281 and cash reserves of $2,919,934. A breakdown of the Society’s income and expenditure is shown at the end of the Annual Report, which can be found at lawsocietywa.asn.au/annual-reports.

2017 Mock Trial Competition Grand Final

On Thursday, 12 October, Court 1 of the Supreme Court in Stirling Gardens was packed to the rafters for the Grand Final of the 2017 Mock Trial Competition. The Grand Final case was a criminal matter in which the accused was charged with stealing examination papers prior to the 2016 WACE exams. The defence case rested on mistaken identity. The season’s top two teams were the Abogados from PLC Perth and How to get away with Objections from Chisholm Catholic College. The teams were very evenly matched, but Chisholm Catholic College edged ahead to win the trophy. Alain Musikanth, President of the Law Society, along with the Director General of the Department of Justice, Dr Adam Tomison, welcomed guests and presented all team members with awards following the trial. Professor Dr Jurgen Brohmer, Dean of Law at the Murdoch University School of Law, presented the 2017 Murdoch University Scholarship for the Most Outstanding Mock Trial Student to Nicholas Troy of Wesley College. A special thank you to the Honourable Wayne Martin AC, Chief Justice of Western Australia for once again judging the Grand Final, and to Supreme Court of Western Australia, the Department of Justice, the Department of Education, Murdoch University and the Public Purposes Trust for their ongoing support of this programme.

The Law Society would also like to extend its gratitude to the many members of the legal profession including associates, practitioners and law students who acted as coaches and judges in the 2017 Competition. We also thank the members of the Grand Final Case Working Group who devised the case material for the Grand Final. 1194 school students participated this year, and 200 trials were held. 740 students achieved accreditation towards their high school graduation through their participation. In all, 127 teams from 55 schools took part in the Competition. 77 volunteer lawyers acted as judges throughout the year, and 65 legal practitioners and law students acted as coaches for participating schools. You can register to volunteer as a judge or a coach in the 2018 Competition. Previous participation is not required and registered practitioners can claim CPD points for their efforts. We will be running an information session in February 2018 to explain the Competition in detail. Please contact us on mocktrial@ lawsocietywa.asn.au or on (08) 9324 8604 to register your interest, or register via the Volunteer Lawyer Registration form, found on the Law Society’s website.

Proudly supported by Department of Justice Department of Education

We extend our thanks to the following members of the profession who volunteered as coaches and/or judges in the 2017 Competition. The Competition would not be possible without your support. COACHES Aimee Ford Alex Mossop Amelia Ikin Anne Durack Anthony Bochrinis Aoning Li Ashley Roberts Ben Bullock Brenton Panzich Carolyn Moss Catinca Hozoc Chaz Carrington-Wilson Chris Harrison Claire Rossi Cory Fogliani Craig Hershowitz Craig Macintosh Daisy Farley Danae Aldous Danika La David Ireland Elisha Noack Erica Thuijs Grant Benskin Grant Donaldson Hannah Peters Hugh O’Sullivan Ilya Isakov Jacqui Brown James Marzec Jessica Berry Jessica Henderson Johanna Moore John Park John Rando John Williams Josh Kain Kate Offer Kerstin Stringer Khie Calver Lyndsay O’Brien Marc Saupin Margaret Breen Maryse Aranda Michael Gething Michelle Linehan Nicola Thomas-Evans Paola Lovi Rebecca Kale Rein Squires Rhianna Brims Roman Kan Tom Ryan Sam Coten Samantha Bettenay Sarah Jones Sean Ayres Sean Gomes Shannon Walker Simon Davis Simon Steenhof Stuart Shepherd Tanika Matic Tanja Katchun Zoe Kalimeris

JUDGES Adam Ebell Alex McVey Alexander Noonan Amy Ryan Angie Gimisis Asanka Gunasekera Briee Rogers Bronte Foale Caitlin Searle Caris Tysoe Carly Price Carmen Grobbelaar Chad Silver Cheyne Beetham Chris Townsend Christopher Burch Daniel Harrop Daniel Jenkins Daniel Morris David Cox Deon de Klerk Elliott Cook Elmi Carlean Emily Zylstra Emma Luck Fiona Walsh Frith Gibbons Gray Porter Greg Mohen Jarrad Goold Jay Tampi Jeanette Rose Jelena Durmic Jonathan Papalia Jonathon Horne Joy Horwood Jun Khew Wong Kate Banasik Kate Wilson Kathryn Roach Katrina Welch Keely Liddle Lachlan Geddes Lorraine Finlay Marilyn Bromberg Marlene Rudland Marshall McKenna Michael Cornes Miranda Robertson Natalie Wigg Natasha Stewart Nicola Thomas-Evans Ntuthuko Mcingolwane Olivia Loxley Oralee Logan Paige Stevens Patrick Mackenzie Penelope Reid Philip Hardless Rachael King Rhiarne Bruce Rosanna Maugeri Rubin Trehan Sam Hemachandra Sam Pack Sameena Samnakay Sasha Dawson Seamus Rafferty Stephanie Smith Thomas Camp Timothy Lethbridge Tun Yeo

The Role and Future of the Federal Court within the Australian Judicial System 40th Anniversary of the Federal Court of Australia Conference Sydney, 8 September 2017

By Chief Justice Allsop AO Federal Court of Australia

I acknowledge the traditional custodians of the land on which we meet, the Gadigal people of the Eora Nation and pay my respects to their elders, past and present.

Introduction Before I begin, I would like to extend my warmest congratulations to the ANU Centre for Commercial Law and the ANU Centre for International and Public Law for their efforts in organising this conference to mark the Court’s 40th anniversary. There is an excellent program set down for the next two days which will provide a wide-ranging survey into the Court’s contribution to the development of Australian law. My task today is to address in broad terms the role and future of the Federal Court. It is important to look back to the origins and development of the Court for a number of reasons. First, it is important to understand why some fine lawyers and great Australians thought the creation of a national superior Court to be important. Secondly, an examination of the past helps to identify the trajectory of the Court into the future. Thirdly, from reflection upon the experiences of the Court, one may see the place of the Court in the life of the nation.

The early history of the Federal Court In the 1960s, there was momentum within the profession for the establishment of a new federal court. While some have put this down to purely pragmatic considerations, others, including Justice Susan Kenny of this Court, have drawn parallels between the impetus for a federal court and what historian Geoffrey Serle has described as a ‘surge of national consciousness’ from the period of the 1960s to 1980s.1 This focus upon nationhood can be

10 | BRIEF DECEMBER 2017

detected in comments from Mr M.H. Byers QC and Mr P.B. Toose QC, who described the creation of federal courts as a national endeavour befitting a ‘fully independent nation’ where identification with nation rather than State had been cemented through the experience of the Worlds Wars and the Great Depression, and the less violent experience of the uniform tax legislation.2 Initial imaginings on the role of the Federal Court, at least by Byers and Toose and like minds, entertained the idea that any superior federal court would be a court of the nation in the fullest sense of that term, including width of jurisdiction. The paper of Justice John Griffiths and Professor James Stellios to be delivered at this conference charts the political progress of the formation of the Court and the views, sometimes changing, of senior judges and politicians that saw the Court created as it was. I do not propose to trespass in detail over that subject matter. Important to many at the time was the proper living institutional framework for the Australian court system and the Australian judiciary. Put in terms that are more likely to evoke the debate – the standing and central importance of the State Supreme Courts and the importance of not undermining their status were factors that were openly articulated as reasons to limit the conferral of jurisdiction on the new court to particular and special subjects. The status and importance of State Supreme Courts remain fundamental considerations in the relationships between judicial institutions and in policy formulation in the future. That this is likely to be so, and is unlikely ever to change, is dictated by the nature of the federal compact and the place of the Supreme Courts within it. This is reflected in the important role they play in the doctrines and conceptions concerning our constitutional and institutional freedoms. The cases of Kable3 (and related

doctrines) and Kirk4, together with other cases, including the Communist Party Case5, the Boilermakers’ Case6, Coco v The Queen7, Mabo (No 2)8, Lange9, and S15710 form the foundations, and shape the architecture, of our freedoms in this country. For illustration of this, see this week’s decisions in Graham and Te Puia.11 The proposal for the new court got underway in December 1962, when the then Attorney General, Sir Garfield Barwick, was authorised to draft legislation for Cabinet approval providing for an Australian superior federal court.12 The government’s intention was aired publically by the Commonwealth Solicitor-General, Sir Kenneth Bailey, on behalf of the Attorney General, at the Thirteenth Australian Legal Convention of the Law Council of Australia in early 1963. At the Convention, the vision of Byers and Toose of the new national superior court taking over significant work of the State Supreme courts was exposed to discussion and a degree of criticism. For Byers and Toose, the investiture of State courts with federal jurisdiction so that they may hear federal matters was only half of the bargain. The other half was that the legislature should

establish federal courts other than the High Court to deal with increased federal litigation.13 For Byers and Toose, the constitutional drafters had envisaged the eventual creation of a federal court system and it would be the role of any new federal court to materialise that vision. Barwick and others took a different view. This was evidenced from an article that Barwick prepared whilst Attorney General and published in the Federal Law Review in 1964, by which time he had been appointed as Chief Justice of the High Court.14 His focus was squarely on the fact that an increased workload at the High Court level had meant that the ultimate appellate Court of Australia was being distracted from its raison d’être, namely constitutional interpretation and the determination of appeals from other superior courts on matters of legal principle.15 Barwick’s proposal was for the jurisdiction of a superior federal court to encompass so-called ‘special’ classes of case that, on account of the ‘distinctive and separate character’ of specific areas of the law, would be better adjudicated by a federal as opposed to a State

court.16 Among this special class of case Barwick included bankruptcy and industrial law cases, obviously with an eye to the fact that any federal superior court would assume the Australian Industrial Court and the Federal Court of Bankruptcy. However, he also noted that cases may be ‘special’ on account of the party concerned (e.g. the Commonwealth as a party) as well as by virtue of subject-matter.17 This notion of the distinctive and separate character of specific areas remains an important consideration.

Robert Ellicott was attuned to concerns about the way in which a federal court might diminish the standing of the State and Territory Supreme Courts.19 When the Federal Court was created by the Federal Court of Australia Act 1976 and began to exercise its jurisdiction on 1 February 1977 as a superior court of record and a court of law and equity, it had a limited jurisdiction conferred by around ten statutes. It took time for emotion around the creation of the Federal Court to subside. It is not necessary or appropriate to dwell on the manifestations of that emotion. What is necessary, and appropriate, to say is how well now the courts work harmoniously and cooperatively together. I say that having been a member of both a State judiciary and the Commonwealth judiciary and having participated in the Council of Australasian Chief Justices. I will say a little more of this co-operation later.

The proposal for a Commonwealth superior court attracted strong opposition from other quarters. And its passage through the political system was not a smooth one. The debate was still going on in the early 1970s with Prime Minister Gough Whitlam being a strong advocate for the Court on the basis that it would contribute to the development and certainty of federal law. The Bill under Whitlam’s prime ministership was defeated in the Senate both before and after the double dissolution election of May 1974. 18

The jurisdictional and jurisdprudental roles of the Court

After the change of government in 1975, the Bill introduced by Attorney-General

In its early days, the Court exercised the jurisdiction that previously had been

vested in the Australian Industrial Court and the Court of Bankruptcy as well the new jurisdiction under the Trade Practices Act and some ‘statutory jurisdictions formerly exercised by the High Court’.20 As former Chief Justice Black pointed out, however, it was the content of the jurisdiction conferred on the Court (as opposed to the number of statutes) that shaped its early role.21 He and former Chief Justice French have drawn attention in particular to the jurisdiction vested in the Court by the Trade Practices Act, which opened up for the Court work in the areas of competition law by virtue of the antitrust provisions in Part IV as well as work arising from the provisions in Part V and, in particular, s 52, a section that proved so fundamentally important for commercial litigation.22 The 1980s and 1990s saw tectonic shifts in the jurisdictional architecture of the Court. Judicial review through the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth) and s 39B of the Judiciary Act 1903 (Cth) saw the establishment of the Court as a significant place of public law jurisdiction, heightened in texture and volume by the increasing waves of migration cases from the 1990s. Taxation and intellectual property cases began in the 1980s increasingly to come to the Court drawn by its efficiency, modern procedure and the intellectual calibre of the judges. But the world changed with the cross-vesting legislation of the Commonwealth and all States and Territories. That legislation, in its working for little over a decade until Re Wakim23, saw the growth in vitality and confidence of the Court as jurisdictional debates that had marked the early 1980s evaporated. The Court came to assume a place in company law, commercial law, taxation, admiralty and maritime and intellectual property that in significant part, was driven by its capacity for innovation, efficiency and skill. In 1997, in a timely (given the impending demolition of one half of the crossvesting legislation to come in 1999) group of amendments to the Court’s jurisdiction by the addition of subs (1A) to s 39B of the Judiciary Act (tucked away in the Law and Justice Legislation Amendment Act 1997 (Cth)), the Court was given important responsibilities. The enactment of s 39B(1A)(c) of the Judiciary Act transformed the Court from one of limited jurisdiction to one of general federal civil jurisdiction with the authority to hear cases in all noncriminal matters arising under any

12 | BRIEF DECEMBER 2017

Commonwealth law. One other limb of the 1997 amendments, the conferral of jurisdiction in matters arising under the Constitution or involving its interpretation was equally important is laying the groundwork of the Federal Court as a Constitutional court acting in a ‘supporting role’ to the High Court.24 After Re Wakim in 1999, corporations law returned to the Court in 2001 with the referral of the corporations power by the States to the Commonwealth. Meanwhile, in 1993, one of the most historically momentous additions to the Court’s jurisdiction was conferred by the Native Title Act 1993 (Cth). That very important jurisdiction arose from the recognition in the common law of the rights and interests of Aboriginal peoples and Torres Strait Islanders under the traditional laws and customs to their lands and waters. The Federal Court is the Commonwealth forum for indigenous groups to gain recognition of their longexisting land rights. This jurisdiction is of paramount importance for the nation as a whole. The years following Re Wakim with the foundational provision of s 39B(1A) (c) have seen the Court grow in depth of jurisprudence and entrenchment of broad areas of jurisdiction. The Court has recently sought to organise its work in a more subject specific and nationally focused way. It has done so by organising itself by reference to its major jurisdictional areas: administrative, and constitutional law and human rights; admiralty and maritime; commercial and corporations (including corporate and personal insolvency); federal crime and related proceedings; employment & industrial relations; intellectual property; native title; taxation; and other federal jurisdiction. Each of these national practice areas has one or more judges in charge of running the practice areas in consultation with me and with the new national operations registry. The aim is to see the operation of the Court focus on development of the deep skill of its judges and registrars in what are in some, but not all, respects very specialised areas of practice. In one sense, the movement away from the State-based registry organisation of the Court to a national focus is the natural outcome of a number of forces at work: first, the growth of deep expertise in the Court in areas of its exclusive jurisdiction and in the areas of its special skill and the need to deploy that expertise and skill across a continent; secondly, the growth in volume of difficult, complex litigation; thirdly, the

modern, digital environment allowing for the creation of national organisational structures; and fourthly, the working through of the consequences of Re Wakim in a national setting. The object is to have operating within one national court a number of what might be said to be virtual courts of skill and international reputation: a commercial court, a tax court, an intellectual property court, a labour court, a maritime court etc. The work of the Court is a balance between broad areas of concurrent jurisdiction and important areas of exclusive or quasi-exclusive jurisdiction. In significant areas of the work the Court shares the litigation load of the country with the State courts, in particular corporations and many areas of commercial law. In other areas such as intellectual property and admiralty and maritime, while jurisdiction is concurrent, the Court has, over time, come to undertake most of the work. In other important areas: bankruptcy, Commonwealth taxation, economic regulation, anti-trust and Commonwealth administrative law the jurisdiction is exclusive or effectively exclusive. This has led to a stable and coherent body of jurisprudence in the Court in those areas. Each of the exclusive areas is centrally important to the work and responsibility of the Court in a way which is emblematic of its role – the control of power, public and private, in our society. This balance of jurisdiction has been notable in recent years for the absence of tension between the exercise of State and Federal courts that marked the early 1980s. This is a mark of the sophistication of the profession and the judiciary of Australia. Problems of jurisdiction will always exist in a federation; but we should be keen to put arrangements in place to minimise those problems, especially if we are to see a vision for ourselves in the wider world. It should always be recalled that litigants, especially foreign litigants, resent deeply paying good money to be advised about or to litigate issues of jurisdiction. Before looking briefly to the future, it is important to say something of procedure. Together with other Courts in Australia since the 1980s, in particular the Commercial List of the Supreme Court of NSW, the Court has played its part in developing modern procedures for the management and conduct of litigation. Case management and the docket system have quietly revolutionised litigation in Australia. There remain problems, but we have

at least recognised in Australia that bureaucratized, cookie-cutting procedure manuals do not work. Rather, human experience, and practical efficiency are the hallmarks of handling cases well. This Court has been deeply influential since the 1980s in that realisation and in its practical application of the docket system.

The future role of the Federal Court I begin this section by recalling a Greek expression: If you wish to make the gods laugh, tell them your plans. Looking to the future of the Court is not intended as a presumption on the roles of Parliament and the Executive. As a creature of statute, the Court’s shape and place is ultimately a matter for Parliament. There remain policy issues that echo those discussed in the 1960s and 1970s where a choice may be made, ultimately by Parliament, in relation to the shape and role of the Court. The place of the Court in criminal law beyond cartel crime is one example. These issues may raise the same considerations as were abroad in the 1960s and 1970s.

The attempt in the 1980s by every Parliament in the Commonwealth to create a simple unified judicature through the cross-vesting legislation was rejected by the High Court in 1999 as unconstitutional. To a degree, the recognition of the status and place of the State Supreme Courts in the constitutional structure may perhaps be seen to be an unspoken premise of the majority judgments. Since then, with no apparent political appetite for resuscitation of the policy that gave rise to that legislation, the Court’s character has been moulded as a national superior Court grounded in Commonwealth legislation. The potential place of the Court in the future can be seen, or hinted at, from its essential contemporary elements. The importance of the Court to the contemporary life of the nation in dealing with national legislation is significant. The Court’s jurisdiction (being a mixture of exclusive and concurrent jurisdiction) is central to the economic well-being of the nation. Corporations, finance, banking, insurance, insolvency (corporate and personal bankruptcy), trade practices, anti-trust, consumer protection,

economic regulation, national labour law, maritime law, taxation, intellectual property, public and constitutional and native title law all underpin the success and health of the Australian economy and of broader society. The future of the Court’s role in part depends upon the choices to be made in the structure of the federal judicature. The transformation of the Federal Magistrates’ Court into the Federal Circuit Court and its important jurisdictional responsibilities under both the Family Court and the Federal Court throw up the need for the consideration of structural reform of the federal courts. Since arrangements made at the beginning of 2016, the Federal Court (in its emanation as an entity under the Courts Administration Legislation Amendment Act 2016 (Cth) and the Public Governance, Performance and Accountability Act 2013 (Cth)) has been responsible for delivering all corporate services for the three federal courts. Though the three courts remain operationally separate in their exercise of judicial power, there has been a merger of the courts for financial administration purposes. Thus, to a degree there is

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an asymmetry of financial and judicial organisational structures which requires consideration.

possible among Australian courts. This is a venture worthy of national consideration.

One other aspect of the organisation of the Court warrants mention. The Court’s appellate work is conducted under a Full Court system, without a dedicated Court of Appeal. This gives judges of all registries the opportunity to undertake work at appellate level and regularly interstate. This fosters the collegiality and national character of the Court. Further, it better meets the demands of the Court’s diverse but specialised jurisdictional base, whose only common feature is that it was the view of the framers of the Constitution that certain subjects, as are set out in s 51 of the Constitution, were appropriate for national legislation. A Full Court system allows the Court to list on the same day appeals in a range of specialised areas, all over the country in a way that would not be possible if there were a standing court of appeal, unless the appeal court regularly borrowed first instance judges.

The sophistication of the Court’s digital file base and the specialised skill of its judges and registrars in areas of international jurisprudence and litigation such as shipping and maritime, intellectual property, commercial law and commercial arbitration may make possible the utilisation of infrastructure to provide platforms for Australian participation in regional dispute resolution. This may take a number of forms such as participation in joint arbitral or judicial tribunals, or the provision of digital court or tribunal platforms.

The Court has for many years had an international focus to its work. It has been an active participant in judicial assistance and exchange in the region with memoranda of understanding with Courts in Indonesia, Papua New Guinea, Vanuatu, Vietnam and Myanmar, and it has been and is (in consultation with New Zealand judges) responsible for the administration of Pacific Judicial training in important programs funded by the New Zealand government. The work of the Court itself is highly international. Many corporations and taxation, most intellectual property and virtually all shipping and international commercial arbitration matters involve international parties. These matters suggest a place for a national court in this region’s justice system. I use that expression “justice system” of this region because that is precisely what is developing – through the growth of skilled courts and arbitral institutions in the region. International and transnational courts are being established. A number have been begun in the Gulf Region, and Singapore has established its own international commercial court. I venture to suggest that had Re Wakim not struck down one half of the cross-vesting system, we would have an Australian international commercial court operating today. I leave it to others to exercise energy and ingenuity in devising constitutionally valid frameworks to achieve this. A cooperative arrangement may be

14 | BRIEF DECEMBER 2017

To a degree, the future must remain unknown. Artificial intelligence and its effect on Courts, the profession and the law will change the landscape of life in ways we cannot predict. The Court and the Supreme Court of New South Wales are conducting an important symposium later this year on this topic. The digital future awaits. I wish to conclude on the work of the Court in native title and to reflect upon the significance of that body of law and on the place of the Court in its history. The judgments of the majority in Mabo (No 2) were an event in the history of this country that marked the recognition of an historical truth that laid a foundation for the commencement of the process of reconciliation and for the formation of a sense of nationhood with its beginnings tens of thousands of years ago, and not merely 200 years ago in its modern manifestation. The emergence of that truth to the wider Australian society and its place in the experience of all Australians is not to be feared, nor is it to be seen as a diminishment of anyone’s history. It is, or should be, part of our lived experience. The Court’s exercise of its jurisdiction in native title has been transformative. The procedural innovations introduced to deal with large, complex and often subtle cases, usually on country, have been remarkable. The history of these cases and of this work should be written, because these cases contain the history of indigenous peoples all over the country. But there is much yet to be done. The Court has devoted and continues to devote, significant energy and resources to the resolution of claims. Sometimes, however, the approach of State parties has left something to be desired. Native title cases cannot be run

as if State governments are gatekeepers to a public interest to which the interests of native title claimants are inimical.25 This is generally now understood, but perhaps not universally. One fears that underlying that attitude may be a view that any declaration of native title, whether exclusive or non-exclusive, somehow removes lands from the people of the State. It is unfortunate that recently a judge of the Court felt it necessary to point out the illegitimacy of such an approach.26 Every judge who has ever involved her or himself in this work has seen the prose of words such as spiritual connection with country, given deep experiential meaning. NOTES: 1.

Susan Kenny, ‘Federal Courts and Australian National Identity’ (2015) 38 Melbourne University Law Review 996, 999 quoting Geoffrey Serle, From Deserts the Prophets Come: The Creative Spirit in Australia 17881972 (Heinemann, 1973), 176; and 998 citing James Curran and Stuart Ward, The Unknown Nation: Australia after Empire (Melbourne University Press, 2010).

Maurice Byers and Paul Toose ‘The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)’ (1963) 36 Australian Law Journal 308, 313.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

Australian Communist Party v Commonwealth (1951) 83 CLR 1.

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

Coco v The Queen (1994) 179 CLR 427.

Mabo v Queensland (No 2) (1992) 175 CLR 1.

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

10.

Plaintiff 157/2002 v The Commonwealth (2003) 211 CLR 476.

11.

Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33.

12.

Gerald Brennan, ‘Creation of the Federal Court: A Reflection’ 91 Australian Law Journal 461, 461.

13.

Byers and Toose, above n 2, 309.

14.

Garfield Barwick, ‘The Australian Judicial System: The Proposed New Federal Superior Court’ (1964) 1 Federal Law Review 1.

15.

Ibid., 3

16.

Ibid., 3

17.

Ibid., 3.

18.

Brennan, above n 12, 462.

19.

See Michael Black, ‘The Federal Court of Australia: The first 30 Years’ (2008) 31 Melbourne University Law Review 1017, 1021.

20.

See Brian Beaumont, ‘Federal Court of Australia’ in Tony Blackshield, Michael Coper & George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001), 272.

21.

Black, above n 19, 1029.

22.

Ibid. See also Robert French, ‘Federal Courts Created by Parliament’ in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 123; See also Black, above n 19, 1030.

23.

Re Wakim; Ex parte McNally (1999) 198 CLR 511.

24.

Black, above n 19, 1032.

25.

Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [47] (per Jagot J).

26.

Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992, see esp. at [7], [47], [63] and [67] (per Jagot J);Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 at [16] (per Jagot J).

PROFILE

Greg McIntyre SC Admitted: February 1976 Area of law: General Practice, with an emphasis on Administrative Law fields Current position: Senior Counsel, John Toohey Chambers Hobbies/interests: Hat and costume collections (ethnic and fancy dress), poetry penned for family special occasions, group fitness training, travel and social media browsing and posting.

... maintain a fascination with the law and the people with whom it brings one into contact. The first six years of my practice were with the Aboriginal Legal Services in Kalgoorlie, Perth and Cairns, predominantly in criminal defence work. I worked for one year in 1979 as a Community Development Adviser at Warburton Community in the Western Desert. Between 1978 and 1980 I completed research on ‘Aboriginal Land Rights at Common Law’ which resulted in being instructed to lodge the writ in Mabo v Queensland. In 1981-2 I instructed in Koowarta v Bjelke Petersen. Those cases fashioned a good deal of my career in

native title and race relations and other human rights cases. I ran a sole practice in Cairns between 1983 and 1988, comprising about 40% criminal law and 40% family law cases (mostly referred from Women’s Shelters) and some conveyancing. In 1988-90 I was Principal Legal Officer of the ALS of WA and ran several Aboriginal Heritage Act cases, including Bropho v WA in the High Court. I have also acted in Environmental Protection related cases. In recent years I have been Counsel in personal injuries

cases and represented legal practitioners in Professional Conduct matters, as well as some commercial litigation and I ran a fiduciary duty argument in the Stolen Generations case: Collard v Western Australia. How do you balance family/partner/ personal life with your career? My wife would say I have balanced family life with my career very badly over the forty years I have been in practice. The balance has improved in the last decade or so. The general rule at present is that I do not work in the evenings or weekends

and spend that time with family. I have historically achieved a good deal of productive work between 5am and 8am, 7 days a week. What are the biggest challenges you face in your career and do you think these change as your career evolves? My challenge has been a tendency to respond to client demands to a level which exceeds my capacity to maintain a balance in my life. The challenges do change over time. For example, my current challenge is to balance a growing demand for pro bono work with sufficient income-earning work. Practice at the Bar allows a deal of personal autonomy. As my career has evolved it has given me more control of my time, allowing the possibility of developing a greater degree of balance between career and personal life. What do you think the legal profession can do to address these challenges? Legal Practices, of whatever size, need to

recognise (and some clients need to be educated to recognise) the appropriate limits of the demands placed upon practitioners and appreciate the benefits of allowing flexible work practices (both as to time and location) in retaining skilled practitioners with a balanced mental attitude to work, taking into account family responsibilities, and the greater social good of doing so. What is your advice to lawyers? A career is a long haul and has the potential to evolve through a range of areas of practice, with new challenges and the capacity to maintain a fascination with the law and the people with whom it brings one into contact. One thing people may not know about me is?

were customarily unpaid in that era. He obtained a special dispensation from the Barrister’s Board to be paid, because he had a family to keep. James was the third practitioner to be struck off the roll in WA. The written record suggests to me that the decision may have been challengeable on jurisdictional error grounds. Paddy’s daughter, my great aunt, Bernie O’Dea, after completing five years articles with her father, was one of the few women who practiced law in WA in that generation. My mother’s brother, Hon E.M. (“Terry”) Franklyn QC started out in the practice of his grandfather Paddy O’Dea, at O’Dea & O’Dea, and, after serving on the Supreme Court from 1984 to 1998, completed his contribution to the law as a DeputyPresident of the National Native Title Tribunal, an area of the law which evolved out of the Mabo Case. He passed on his Silk’s robes to me when I took silk in 2002.

Two of my great-grandfathers, James McIntyre and Paddy O’Dea, established legal practices in Kalgoorlie (where I first practiced). James is said to have provided articles of clerkship to Paddy, which

Kalgoorlie Town Hall, Western Australia.

16 | BRIEF DECEMBER 2017

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Leadership Insights Interview with Alain Musikanth and Hayley Cormann Alain Musikanth is approaching the end of his term as President of the Law Society, while Hayley Cormann has been elected as President for 2018. Brief caught up with Alain and Hayley to learn more about their backgrounds in the law, personal experiences with the Law Society and in the legal profession, finding work-life balance and more. When did you first realise you wanted to study law and what attracted you to working in the legal profession? Alain Musikanth: Towards the end of high school when it dawned on me that it might be wise to pick a career. I enjoyed research and debating, so law appealed to me. Hayley Cormann: I have wanted to be a lawyer since I was 13 years old, and have always been attracted to the concept of the thinking, analysis and training behind the effective resolution of disputes, and to the legal process generally. I also thought that if I could have the opportunity to get a university education, then a legal education in particular represented a huge investment to bringing about change and development in society in the future.

Please tell us a little about your background in the law. AM: My legal career began in early 1994, a few months after graduating from the University of Cape Town, South Africa, when I commenced pupillage at the independent bar under the supervision of a senior barrister. After passing the national bar exam, I commenced practice at the Cape Bar where I worked in both civil and criminal matters. In 2001, my wife and I moved to Perth and I joined Corrs Chambers Westgarthâ&#x20AC;&#x2122;s commercial litigation division. I left Corrs in early 2007 to join Francis Burt Chambers. I practice in commercial litigation with a focus on professional liability and regulation, insurance and contentious tax matters. HC: I graduated in 2005 from Notre

Dame Australia (Fremantle campus), with a Bachelor of Laws and Bachelor of Commerce. Since that time, I have been employed at Clayton Utz, in the Perth commercial litigation team, specialising primarily in medical defence and health law. Clayton Utz has been a supportive and innovative professional environment, which has given me the freedom and flexibility to work and fulfil other obligations including more recently in particular to my young children, as well as my commitments on Council and to the Society and our membership. What made you decide to stand for election to the Law Societyâ&#x20AC;&#x2122;s Council and subsequently the Executive? AM: I first stood for Council in late 2012. At the time, I had been a member of various Society committees for several years. I was interested in the Societyâ&#x20AC;&#x2122;s work and wished to make a greater contribution. One thing then led to another. HC: I was a member of the Notre Dame

Law Students’ Society, and then, from an early time at Clayton Utz, had the benefit of being involved with the WA Young Lawyers Committee (YLC). Being involved with the YLC in particular gave me the opportunity to meet and network with lawyers from other firms, from government and from other sectors of our profession that I may not otherwise be exposed to. I felt we had enormous capacity to unite to improve our profession, and in that way, increase the impact we as individuals from the various sectors could have in the law and / or for the benefit of the community. The same goes for my commitment to the Law Society and its membership, through Council and Executive, and it remains my firm view that it is the diverse range of opinions from the cross-section of our profession that have the greatest capacity to create positive change and development for our profession and community into the future. Alain, what have been the most rewarding aspects of being Law Society President? AM: Experiencing, first-hand, the Society’s real capacity to contribute to law reform and to influence decisions affecting the administration of justice in Western Australia. Also, meeting some interesting people, and working with several genuinely committed ones. What has been the greatest challenge? AM: Juggling the competing demands of what is largely a full-time role with those of a full-time practice as a sole practitioner while, at the same time, trying to maintain the semblance of a normal family life. How do you balance work and family life? AM: With considerable difficulty. The work many of us do as lawyers is exacting, demanding and, at times, all-consuming of both time and mental energy. That is particularly so when trials and certain other types of hearings are involved. Regrettably, for barristers delegation is often not an option. But having good instructing solicitors can certainly ease the load. One strategy I have often fantasized about is planning, well in advance, to block off respectable chunks of time after anticipated “intensive” periods of activity to re-charge the batteries (ideally, out of town with “out of office” protocols firmly in place).

18 | BRIEF DECEMBER 2017

Unfortunately, intensive periods of activity are often unpredictable while school terms are cast in stone. As a result, we try to get away as a family during school holidays whenever we reasonably can. HC: There is no real answer to this, apart from being quite organised, delegating many, many things both professionally and personally (and not apologising for that), and being disciplined about what you reasonably agree to take on at any given time. And my personal dictation device is a tool that I cannot function without, as many a secretary at Clayton Utz has had to endure! What do you enjoy doing in your leisure time? AM: Spending time with my family (preferably, with no electronic devices in sight). Enjoying good music, good company and a decent single malt (in no particular order). HC: Spending time with the family is always an obvious one. Our girls are young and every day they learn and experience so many new things so it is good to see them develop. I have always had a commitment to the great sport of Netball, although in the last 4 years, I have been able to play much less than I would

like. Cooking is another passion which we do a lot of at home. This edition of Brief includes the first in a series of travel articles – tell us about a recent holiday you have enjoyed or your favourite destination to visit. AM: With a reasonably young family, we have sadly yet to reach the stage in our lives where frequent trips to exotic locations are on the radar. We do, however, enjoy breaks either interstate or to various locations Down South a few times each year. For obvious reasons, our visits over the years to South Africa have been regular too. Singapore is a convenient overseas destination which we particularly like, and we have been there a number of times. Evidently, we are not alone. HC: My spouse and I always aim to spend a week or two each year, usually in January, in Singapore. Prior to having small children, the destination already suited us well for a variety of reasons, but more so now with little ones. Singapore is a fabulous holiday option, close to Perth, no change in time zone, and is easy to spend time in, with plenty of options for adventures with children, but also great night life for adults. In the future, perhaps

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we will investigate more adventurous destinations, in particular when sleep is not such a scarce resource in the household! Alain, do you have any suggestions for Hayley as the incoming President? AM: Yes. There are eight. Hayley has the confidential list.

achieving true national uniformity in the market, underpinned by a uniform regulatory system. Any other comments you may wish to add?

an interesting and fulfilling one. I am very grateful to the members of the Society for affording me the honour of serving in this role, and hope to be able to continue to make whatever further contribution I can in the future. I wish Hayley the best of luck for an enjoyable and exciting year.

AM: While it has been a demanding and, at times, exhausting year, it has also been

Hayley, what goals do you have for your Presidency? HC: One of the major challenges for me, and many others in our profession, is to understand how we can genuinely improve the diversity of our profession, for all, and in particular for young parents, and women. It is my goal to reach out to others in this profession, not only those experiencing the difficulties one faces remaining engaged within this profession and adding value to it, but also to reach the decision-makers, the stakeholders, and the leaders, about those challenges and how they can be overcome. I am also committed to the Societyâ&#x20AC;&#x2122;s other strategic campaigns which include understanding and responding to the changing nature of legal practice, and the future of the legal profession. I look forward also, to working with the State Government to ultimately

Farewell to Chief Justice Diana Bryant AO

On 6 October 2017, a week before her retirement, the Family Court held a ceremonial sitting for Chief Justice Diana Bryant AO. Among the judges sitting with Bryant CJ was Chief Judge Thackray of the Family Court of Western Australia. The Chief Justice has long ties with Western Australia, having been a partner of Phillips Fox in Perth from 1977 to 1990. She returned to the Victorian Bar, took silk in 1997 and was appointed the inaugural Chief Federal Magistrate of Australia in 2000. After four years, she became Chief Justice of the Family Court of Australia on 5 July 2004. She has served as a Chief Judicial Officer for 18 years. In an address to the Court, Fiona McLeod SC pointed to the Chief Justice’s heavy workload. On top of her administrative duties, she delivered 724 judgments covering family law and general federal law at first instance and on appeal. Ms McLeod noted that the court’s international engagement particularly within Indonesia has been another highlight of the Chief Justice’s tenure. She helped establish the International Hague Network of Judges and Association of Family Judges. Ms McLeod pointed to the Chief Justice’s commitment to the welfare of children: All your professional life you have lived by the creed of the Family Law Act; that the “welfare of the child is paramount”. In recent times this has meant taking a lead role on two of the most important social issues in Australia - surrogacy and family violence. You have taken up almost every opportunity to be part of the debate. Sometimes this fearlessness has 20 | BRIEF DECEMBER 2017

alarmed your colleagues. A rally last year on family violence had the Family Court firmly in its sights. You had no objection to it being staged outside the court, which convinced the organisers that Your Honour might agree to MC the event when it was moved to a nearby park. You declined, but did agree to speak at the event and outline the concerted efforts made by the court to assist victims of family violence. It was better, you said, to have the voice of the court heard. In February 2009, Bryant CJ was appointed Patron of Australian Women Lawyers following the founding Patron Mary Gaudron QC. Ms McLeod said: At a dinner to celebrate the 20th anniversary of AWL last month, you reflected upon the inspirational role models who led you to leadership roles in the law. You grew up in an all-female household where women did, and could do everything. Your mother was a lawyer and the breadwinner. She went to work each day and was for a time the President of the Legal Women’s Association. The activities of the Association were reported in the papers in her day by reference to the cut and colour of the attendees outfits. Organza, poplin and portrait necklines featured in those reports with perhaps more attention that might be accorded to such things nowadays. But the objects of support and advancement of women are still relevant – objects you have pursued with great passion your whole career. It was almost inevitable you would follow in the footsteps of your role

models, Elizabeth Evatt and Mary Gaudron, to judicial office and service to the community. Like them, you have offered extraordinary support and encouragement to young women lawyers. At the AWL dinner you pointed out that 10 per cent of your graduating class was female. Now more than 60 per cent of all new entrants to the profession are women. You also noted that of 12 chief justices in Australia and New Zealand, five were female. As you said on the night of the Australian Women Lawyers celebrations, “we’ve come a long way Baby”. Chief Justice, this country owes you a great debt. In response to the speeches from the Attorney General, Mr George Brandis QC and others, the Chief Justice reflected on her work as Chief Federal Magistrate: I had a unique opportunity when I was appointed Chief Federal Magistrate to establish a new lower level commonwealth court; the first lower level court to be established since Federation. The group who constituted the first appointees, “the originals” as we called ourselves I think formed a unique bond. I like to think that we were successful. The growth of the Court over the past 17 years would seem to suggest that we were. There are very few people who have the opportunity to start up a new court. The Honourable Elizabeth Evatt is in the unique position to understand what that is like, and I am grateful to the Government for giving me that opportunity. Her Honour described herself as: I am of course quintessentially a family lawyer. Forged in 1976 and

had tattoos been as fashionable then as Dusty Martin has made them now, I would probably have had family law tattooed on my neck. I have been involved with the Family Law Section from the early 80s and seen it grow from strength to strength. It is a fine organisation which is dedicated to the improvement, advancement of an education of those who practice in this jurisdiction as well as contributing soundly over the years to legal policy. I have no doubt that your organisation will make a valuable contribution to the Law Reform Commission review. On a personal note I have made many friends over the years through the Family Law Section and I know that those friendships will be maintained post my retirement. She acknowledged the support she has received: Anyone who has been a judge, particularly those who have been head of jurisdiction, is aware of the support that you require from others. Over the 17 years in both courts and particularly over my 13 years in

the family court most of which time the court was responsible for the administration for both courts, I have received enormous support. The staff of the family courts are a truly amazing groupâ&#x20AC;Ś Our Registrars have also faced many changes in their roles and they continue to play a vital important part in our ability to do our work. They too are committed to the jurisdiction. The Family Consultants are possibly the most important part of our court in my view. When the court started in 1976 they were unique in being attached to the court then as counsellors and that uniqueness continues today, albeit the nomenclature has changed. Their work too has changed. We donâ&#x20AC;&#x2122;t have the luxury of mediations and counselling anymore and most of their work is the preparation of forensic reports, but they continue to provide a committed, professional experienced group, who because of their unique part of this court remain in overseas jurisdiction a considerable source of envy. I want to thank all of them for their

commitment. In her concluding remarks, Bryant CJ said: One other thing I feel I should say after the nice comments you have made â&#x20AC;&#x201C; we all go home to our families at night and they do know our shortcomings and so whilst these occasions are never one where mistakes are pointed out I feel that I should at least acknowledge that I have made mistakes, we all make mistakes. I have always tried to do two things, one is not to repeat them. And the other is to take responsibility for them and move on. I hope that I have succeeded in that and I can assure that I am happy to say that all of my mistakes are my own entirely. I hope not to leave the area of family law, I want to continue to make a contribution and I hope to do so around the area of the Abduction Convention. Brief wishes Diana Bryant AO SC, to a long and happy retirement.

Master your career. Real-world programs to master your career. The College of Law offers postgraduate programs developed by practitioners for practitioners, so you can better master your chosen area of specialisation or accelerate your learning in a whole new area of practice. Enrol today at collaw.edu.au/ALP or call 1300 506 402 Next intake commences 19 February 2018.

Varying Funding Agreements and Freedom of Contract: Some Observations IMF Bentham Class Actions Research Initiative with UNSW Law: Resolving Class Actions Effectively and Fairly

By The Hon Justice M B J Lee Federal Court of Australia

Court intervention in funding agreements is a matter of current controversy in class actions circles – in one sense it could be described as a “hot topic”, at least to those who have a real interest in class action developments – no doubt there are many lawyers who would consider the topic to be somewhat arcane. In making these observations I will (I hope) be scrupulous in not expressing definitive personal views; even less so should what follows be interpreted as me making observations which, in any way, reflect thinking within the Court. I speak as someone who is a new judge but as someone who has acted in very many class actions of all types, including most of the large securities class actions over the last decade. I am also someone who has had an involvement in many of the cases that have developed both the procedural and substantive law in relation to class actions, and my purpose today is both simple and modest: to identify the issue and to raise some thoughts that may cause some reflection by persons interested. Over 11 years ago I received a brief to draw the documents necessary to commence proceedings against Multiplex Limited. The proceedings arose out of substantial costs overruns in delays in the construction of Wembley Stadium by a subsidiary of Multiplex. As was to become familiar in securities class actions, the substance of the cause of action was that Multiplex had breached its duty of continuous disclosure under section 674 of the Corporations Act 2001 (Cth) and engaged in contravening conduct contrary to a number of other statutory norms. What I found immediately curious upon being briefed, was that instead of being asked to draft an application and statement of claim in the Federal Court to commence a representative

22 | BRIEF DECEMBER 2017

proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (Act), I was asked to prepare a summons and commercial list statement in the Supreme Court of New South Wales. What was doubly surprising to me was that the intention was to commence a proceeding under the old Chancery representative proceeding rules in the Supreme Court, rather than making use of Part IVA. This was, of course, long before the enactment, in 2011, of Part 10 of the Civil Procedure Act 2005 (NSW). Upon enquiry, I was informed that the proposed commencement in the Supreme Court was as a consequence of the decision of Stone J in Dorajay Pty Limited v Aristocrat Leisure Limited (2005) 147 FCR 394. That decision had been followed shortly thereafter by decisions in the Supreme Court of Victoria (see, e.g. Rod Investments (Vic) Pty Limited v Clark [2005] VSC 449) and a further decision of Young CJ in Eq in New South Wales (Jameson v Professional Investment Services Pty Limited (2007) 215 FLR 377; [2007] NSWSC 1437). In short, the substance of those decisions was that a criterion of group membership which sought to restrict the group to a particular firm of solicitors or a certain litigation funder was said to be inconsistent with the policy of Part IVA and, in particular, the deliberate legislative choice by the Commonwealth Parliament to adopt an “opt out” rather than a “opt in” model for representative proceedings. One of the benefits of ignorance (or at least, coming to an area of legal discourse without preconceived notions) is looking at problems from first principles. The more I thought about it, the less I considered the rationale for commencing the proposed proceedings in the Supreme Court had merit. It seemed to me clear from the text of section 33C(1) of the Act that a

proceeding was able to be commenced by an applicant “representing some or all” of the persons who had a claim which was in respect of, or arose out of, the same, similar or related circumstances; and where the claims of all those persons give rise to a substantial common issue of law or fact. What was (and is) often lost when considering group composition is the simplicity of the scheme created by the “gateway” provisions to commencement of class actions. They are deliberately non-demanding: the “control” mechanism is section 33N which allows a representative proceeding, which passes through these “gateway” provisions, to be declassed if certain circumstances exist and it is in the interests of justice to do so. Properly analysed, it is important to remember that a group definition is nothing more than a list of persons (often described by reference to characteristics) who share similar or related claims against a proposed respondent and on whose behalf a proceeding is commenced. Subject to there being a group definition that is somehow against public policy (for example, if it was formulated expressly by reference to racialist or other discriminatory grounds), any definition which describes the group, seemed to me to be acceptable. It followed that the cases I looked at which declassed a proceeding on the basis that there was a funding criterion were, I thought, paying insufficient attention to the text of the statute and using section 33N (the declassing provision) as a quasi legislative rule excluding representative proceedings defined by reference to either solicitors or litigation funders. As a consequence, I boldly recommended that the Multiplex proceeding be commenced in the Federal Court and that the three

decisions, which suggested a funding criterion was heterodox, were plainly wrong. Mercifully for my future career, my solicitors had already independently reached the same view, and a funder was willing to take on the fight notwithstanding the inevitability of group definition being challenged. The consequence was Multiplex Funds Management Limited v P Dawson Nominees Pty Limited (2007) 164 FCR 275 where Justices French, Lindgren and Jacobson opened the way for representative proceedings to be commenced with group definitions which included a funding criterion. The rest, as they say, is history. What this development allowed was express sanction to a form of representative proceeding that was friendly to a funder and seemed to solve, together with some parallel developments which I do not have time to detail, the perceived problem of “free riders” – persons who take the benefit a class action without defraying the risk of adverse costs or contributing to the enormous cost of most large-scale representative proceedings. Relevantly for present purposes, this led to the growth of large-scale class actions with group members defined, in part, by execution of a funding agreement, which creates a series of bilateral obligations and benefits between the funder and individual group members. In a case where I had confidently predicted the opposite result, the Full Court in Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (2009) 180 FCR 11, by majority, found these bilateral (or, with the solicitors, trilateral) arrangements pursuant to which a funded representative action was conducted was a managed investment scheme that should have been registered for the purposes of the Corporations Act 2001 (Cth). The Full Court explained that the class action (or, more particularly, the scheme constituted by the agreements which allowed the class action to be funded and maintained) had the following characteristics: •

The promises given by the class action members and the funder were ‘money’s worth’ contributed for the purposes of the litigation funding arrangement made in return for their acquiring rights to share in any judgment sum, and the benefit of the funder’s promises to meet legal costs.

•

The opportunity to prosecute a claim, with virtually no exposure to any costs or outgoings in the event of failure, was a benefit accruing to class members produced as a result of all parties carrying out their obligations under the scheme. A successful prosecution of those claims would yield financial benefits to members, the funder and, indirectly, the solicitors.

•

The pooling of contributions was effected by the class action members making their individual promises available for the purposes of the scheme and the benefit of scheme members and, ultimately, for the funder’s benefit.

•

The litigation funding arrangement was a common enterprise. The Court considered that there was a shared purpose of pursuing class action members’ claims successfully that would then benefit the class action members, the funder and the solicitors.

•

Further, the Court held that the scheme was clearly an enterprise. It was economic in nature and, indeed, could be considered to be commercial from, at least, the viewpoint of the funder and the solicitors.

As we all know, arrangements exempting representative proceedings and proof of debt arrangements from the definition of managed investment scheme (as long as there are appropriate arrangements in place to manage conflicts of interest) were made, but an appropriate point of departure, when considering the Court’s power to interfere with funding arrangements, is what current authority says about the way those arrangements are to be properly characterised – that is, a common enterprise which, subject to exemption, has the characteristics of a managed investment scheme. Against this background, I come to the focus of my remarks: the three recent judgments (by judges highly experienced in class actions) which have considered the Court’s power to interfere with the amounts that would be payable to group members pursuant to funding agreements. They are, in chronological order, the decisions of: Murphy J in Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433; Beach J in Blairgowrie Trading Ltd v Allco Finance Group Ltd (Receivers & Managers Appointed) (in liq) (No 3) [2017] FCA 330; and by Middleton J in Mitic v OZ Minerals Limited (No 2) [2017] FCA 409.

Having been in all three cases (at some stage) I can say something about four common threads in the cases and an important difference. First, they were all securities nondisclosure cases. Secondly, they were all highly complex and hard fought, and each case was settled very late – one shortly before the hearing, one the day before, and one at 10:10 am on day one of the hearing. I imagine you can feel sympathy for the frustration felt by someone who has prepared intently to open a case and cross-examine, only for a case to settle moments before it starts. There is, however, a compensation for such frustration – which leads to the next similarity. Thirdly, each case was funded and the funder had paid out huge amounts to get the case to the stage when it was settled and was at risk for even vaster sums by way of adverse costs. Fourthly, at the time of settlement each had groups which comprised members who had (and some who had not) signed funding agreements. I now come to the important difference: two were traditional “closed class” proceedings which were opened for a short period prior to a mediation and thereafter closed; the other was an open class which initially had been the subject of the first (and unsuccessful) attempt to seek that the Court impose a “common fund” arrangement shortly after commencement. As most of you would know, this involves the Court addressing the “free rider” problem not by making “funding equalisation orders” (which redistribute the additional amounts received “in hand” by unfunded class members pro rata across the class as a whole), but rather provides a solution whereby the funder is recompensed from the common fund of proceeds obtained by the class as a whole in any settlement or judgment. Upon the failure of that application – and over the vigorous opposition of the respondents – the Allco case remained an “open class” until it was settled. The settlement of each case called for an approval application to be made pursuant to section 33V of the Act. For reasons I will come to, the principles that inform the exercise of the section 33V discretion repay close attention. Of course, the fundamental question that arises on an application under section 33V of the Act is whether the settlement is “a fair and reasonable compromise of the claims made on behalf of the Group 23

Members”. This formulation derives from the judgment of Finkelstein J in Lopez v Star World Enterprises (1999) ATPR 41-678; [1999] FCA 104 at [15] and what has recently been described by Beach J (in Foley v Gay [2016] FCA 273 at [7]) as the “foundational analysis” of Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459. In giving content to this broad evaluative task, there have been a number of observations made where the protective role of the Court pursuant to section 33V has been emphasised. For example: a. In Tasfast Air Freight Pty Ltd v Mobil Oil Australia Ltd [2002] VSC 457 at [4], Bongiorno J explained: The principles upon which section 33V is based might be said to be those of the protective jurisdiction of the Court, not unlike the principles which lead the Court to require compromises on behalf of infants or persons under a disability to be approved. In a group proceeding, ex hypothesi, there may be persons, in the community who can be affected by such settlement but know nothing of it ... b. In Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [8], the Full Court (Jacobson, Middleton and Gordon JJ) said: The role of the court is important and onerous … It is protective. It assumes a role akin to that of a guardian, not unlike the role a court assumes when approving infant compromises. c. In Hodges v Waters (No 7) (2015) 232 FCR 97 at [70], Perram J said: Insofar as s 33V is concerned, the authorities are clear. Approval will be granted to a settlement where it is just to do so and that will be so where the settlement is fair and reasonable having regard to the claims made by the group members who are bound by it. In carrying out the assessment called for by s 33V the court’s function is protective, recognising, as it must, that the interests of the parties before it and those of the class members as a whole may not wholly coincide: see Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [7]–[8]. As Richards itself demonstrates, some care must be taken to ensure that the settlement is not only fair as between the parties but also as between individual class members. 24 | BRIEF DECEMBER 2017

Importantly, in my view, while bearing in mind this special role, the task of the Court is not to speculate as to the content or the terms of alternative settlements, which may also be regarded as “fair” and “reasonable”, but to reach a view on the proposed settlement that has been struck. Applying these principles, the Court came to a consideration of the settlements proposed in Earglow, Allco and Oz Minerals and, in particular, whether, as part of its protective and supervisory role, it would possess the power to consider and appropriately vary the funding commission payable pursuant to the bargain struck in the funding agreement. In Earglow at [148] and following, the following was said: 148. Earglow did not argue that if the Court considered the legal costs charged to be excessive the Court only had power to refuse to approve the settlement, and it accepted that the Court has power to approve the proposed settlement but reduce the legal costs to be deducted. Earglow’s acceptance of the Court’s power in that regard is discordant with its contention that the Court has no power to approve settlement but reduce the funding commission to be deducted. 149. If a proposed settlement is fair and reasonable except that the Court considers the claimed legal costs to be excessive, it is difficult to see why it would be appropriate (or fair and reasonable in the interest of class members) for the Court to make orders refusing settlement approval … *** 150. The same can be said where a proposed settlement is fair and reasonable in the interests of class members except that the Court considers the funding commission to be excessive. In such circumstances it is quicker, cheaper and more efficient (and just and appropriate in the interests of class members) to approve the settlement and reduce the funding commission. There are, of course, specific legislative provisions which empower Court supervision of the reasonableness of legal costs (e.g. the Legal Profession Uniform Law) but there is no reason in

principle for treating litigation funding costs incurred to achieve a settlement differently from legal costs incurred to achieve the settlement”: Money Max (at [71]). 151. I can see little merit in Earglow’s contention that the scope of the Court’s power under ss 33ZF(1) and 33Z is confined to making orders in respect of the matters in issue between the parties to the proceeding … *** 155. Earglow’s contention that, even if the Court considered that a funding agreement is misleading or unlawful, that that would be a controversy falling outside the scope of ensuring that justice is done “in the proceeding”, is impossible to accept. If class members were misled as to the requirement to pay a funding commission I would have no difficulty in concluding that a settlement that proposed the deduction of that commission from class members’ settlement amounts was not fair or reasonable in their interests. 156. I do not accept Earglow’s submissions as to the “element of necessity” required for an order under s 33ZF. The requirement that an order to disallow or to reduce the funding commission can only be made if the Court thinks it “appropriate or necessary to ensure that justice is done in the proceeding” does not mean that the Court must consider that justice is certain (in the sense of “ensured”) if the proposed order is made or that injustice is certain if the order is not made. It requires only that the proposed order be reasonably adapted to the purpose of seeking or obtaining justice in the proceeding: Money Max at [165]. 157. I conclude that, if in a settlement approval application the Court considers the proposed settlement is fair and reasonable except that the funding commission is excessive or exorbitant, the Court has power to approve the settlement and reduce the funding commission to be deducted pursuant to the terms of the settlement. Having regard to ss 33V, 33ZF(1), 33Z(1) (g) and 23 I do not accept that the Court’s powers are limited to a binary choice between approving

or rejecting the proposed settlement. In such circumstances it may be “just”, “appropriate”, or “appropriate or necessary to ensure that justice is done in the proceeding” that the Court make orders approving the settlement but reducing the funding commission to be deducted under the settlement.

In Blairgowrie at [101], Beach J noted [101]): … I consider that as part of any approval order under s 33V, I have power in effect to modify any contractual bargain dealing with the funding commission payable out of any settlement proceeds. It may not be a power to expressly vary a funding agreement as such. Rather, it is an exercise of power under s 33V(2); for present purposes it is not necessary to invoke s 33ZF. I am empowered to make “such orders as are just with respect to the distribution of any money paid under a settlement”. If I make an order that out of monies paid by a respondent, a lesser percentage than that set out in a funding agreement is to be paid to a funder, that is an exercise of statutory power which overrides the otherwise contractual entitlement. That is not an unusual scenario in many and varying contexts. It might also be said that the funding agreement itself contains an implied term reflecting this override in any event; the parties would be contracting in the known setting that the funder’s percentage commission entitlement would

only operate on a settlement sum if the necessary condition of Court approval had first been given. Finally, Middleton J agreeing with Beach J’s observation said in Oz Minerals at [27]: 27.

However, I make one observation as to the power of the Court to effectively vary the commission paid to a litigation funder.

28.

Sections 33Z and 33ZF(1) of the Act, whilst expressed in broad terms, as is s 23, are not specifically directed to settlement approvals, but relate generally to the power of the Court in representative proceedings and proceedings generally. Once the Court is dealing with a settlement approval application, the focus is upon s 33V. A power to effectively vary the contractual rights of a litigation funder in the course of a settlement approval is to be found in s 33V, specifically subs (2). I would not readily adopt the view that the very general broad powers found in ss 23, 33Z(1)(g) and 33ZF(1), which are not specifically directed to settlement approvals, would provide the power to vary or effectively vary the funding agreement, or otherwise interfere with the contractual rights and obligations of a litigation funder and class members.

29.

Nevertheless, by having recourse to the power of the Court under s 33V(2) of the Act, the Court may still take into account the fee or commission of a litigation funder and make orders accordingly. Oversight by the Court of litigation

funding fees or commissions so as to protect class members’ interests is required. Of course, s 33V(2) refers to orders that are “just” – this includes taking into account the fact that litigation funders assume the substantial costs and risks of a representative proceeding and should be allowed a commercially realistic return. In the wake of these three cases, the position remains unresolved as to the source of any power to vary funding agreements and (assuming power exists) the principles that should guide the exercise of discretion. No doubt the issue as to the existence, source, and exercise of such a power will be further debated. My purpose is to raise a few interconnected issues which might form part of that debate. First, as I have pointed out, the starting point is that, according to the Full Court in Brookfield Multiplex, the promises given by funded group members were part of a pooling of contributions and the provision of their individual promises for the purposes of an integrated scheme and the benefit of scheme members and, ultimately, for funder’s benefit. If the litigation funding arrangement is seen as a common enterprise with a shared economic purpose, any interference or tinkering with funding arrangements can arguably be characterised as a readjustment of the scheme to the benefit of one scheme participant and to the detriment of another. It might be argued that any analogy with the power of the Court to supervise costs may not be a perfect analogue in this respect. Secondly, no doubt regard must be had to the foundational and elementary matter well expressed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219

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CLR 165 at 182-3, where Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said: … where a man signs a document knowing that it is a legal document relating to an interest in property, he is in general bound by the act of signature. Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief. In most common law jurisdictions, and throughout Australia, legislation has been enacted in recent years to confer on courts a capacity to ameliorate in individual cases hardship caused by the strict application of legal principle to contractual relations. As a result, there is no reason to depart from principle, and every reason to adhere to it, in cases where such legislation does not apply, or is not invoked. Thirdly, connected to the last point, the amelioration in individual cases of hardship is, obviously enough, generally regarded as a quintessentially individual assessment by reference to a statutory or equitable requirement to have regard to all the circumstances of the case and is not usually regarded as a principled basis to rewrite bargains with a broad brush. Fourthly, the decisions in Allco and Oz Minerals indicate a preference to basing any exercise of power by recourse to section 33V(2) of the Act, by making orders which are “just” to protect class members’ interests; needless to say, this involves the Court forming an assessment of what was described in Oz Minerals as a “commercially realistic return”. This in itself raises interesting questions: is this to be assessed on a micro level (the proceeding itself) or on a macro level, that is, across the whole of the funder’s business? What are the appropriate economic comparators? These are large questions. Fifthly, unlike the US Constitution, there is no Contract Clause in our

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Constitution. As an interesting historical sidelight, the Contract Clause prohibits states (but not the federal government or the courts) from enacting any law that retrospectively impairs contract rights – this was done by the US Founding Fathers in response to the fear that states would continue a practice of granting relief to specified persons from their obligation to pay their debts. What we do have is Chapter III. Chapter III arguments (to the effect that “common fund orders” did not involve an exercise of judicial power or were not incidental to the exercise of judicial power) were decisively rejected in Money Max (Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191). It seems to me quite plain that a Court can make orders creating or modifying rights or liabilities in the exercise of discretionary power, provided the power is exercised according to legal principle and by reference to an objective standard. Having said this, the possibility that novel arguments may be made by one scheme participant (a funder) when its property rights have been the subject of acquisition to the benefit of another (funded group members) cannot be dismissed as fanciful. Sixthly, where do the boundaries lie? When I was a young solicitor, there was an attempt by one retail bank in Sydney to get into the business of an embryonic form of litigation funding. Although primarily directed to family law difficulties and the inter partes commercial disputes of established customers, there were cases of which I am aware, where, if Part IVA had existed, the bank may have been prepared to provide an overdraft in order to fund the litigation on the basis that there was third party security and a charge was taken over the proceeds of any judgment or settlement. In return, the bank, from recollection, was charging customers a rate, which by today’s standards may seem extraordinary (around 22%) but by reference to then prevailing interest rates, represented an incremental margin of only 5% or 6% over prevailing overdraft rates. If a Part IVA case were conducted pursuant to such a facility, would the Court step in and upset these commercial arrangements, in the context of a section 33V application, if it considered them subjectively to be commercially “unjust”? If not, what is the discrimen used to sort out those types of arrangements and schemes, which are subject to interference and those (if any), which are not? This might be of significance in a potential growth

area for funding – complex family law disputes. If the Federal Court regularly uses broad statutory powers in Part IVA cases to amend funding arrangements, does this mean that it would be regarded as sound, from a policy perspective, for the Family Court of Australia, which has a protective role in relation to children of a marriage, to take a similarly interventionist role in relation to funding arrangements entered into between a parent with primary care of the children and an external funder in a property dispute, in order to maximise an amount that might be ultimately be paid to, or preserved for, the children’s education? I offer only matters to consider and I do not offer any solutions or definitive views. The topic is complex, raises interesting policy issues and will no doubt be thought through carefully and worked out in the cases. There is, of course, nothing stopping a Court, if it is dissatisfied with an amount paid to group members, refusing approval and hence forcing the parties to make commercial choices which might include a readjustment of their rights inter se. I have seen this happen in a different way, when lawyers have refused to put up an application for approval unless there was a readjustment of rights which allowed for a greater amount to be paid to group members. But here, instead of refusing approval, the notion is that approval be given but with a readjustment of rights imposed by the Court. In considering this prospect I will leave you with this thought: those of us in the room who are lawyers can probably remember that very early on in our studies we had cause to be introduced to the famous observations of Henry James Sumner Maine in his book Ancient Law where he explained that the movement to progressive modern societies has been uniform in one respect – and it has been a movement from status to contract. The right of a person of legal capacity to contract with whomever they choose and the right to hold another party to their bargain are bedrock to a modern society governed by the rule of law. Anything which can be seen as a departure from the free exercise of those rights, in the absence of some form of catching bargain or other vitiating conduct, in the broad, and by reference to a highly subjective evaluative standard, raises interesting questions and issues that merit reflection.

Sicily, Italy

Ex Juris Travel tales from the legal profession Brief presents the first in a monthly column documenting the meanderings of Western Australian lawyers and judges. It is commonplace to enquire of the whereabouts of a Senior Partner or rising Barrister only to be told that they are presently in their apartment in Paris, in a bird park in Colombia, swimming with turtles off the Galapagos Islands or swimming with sharks off Cape Agulhas, South Africa. Second only to the pleasure of actually being there, is the pleasure of telling someone else about your adventures. To this end, we encourage readers to contribute short recommendations of places to go, places to avoid and anecdotes of travel. This might include a particular reason or theme of travel. One Lawyer retraced the journeys of Edward Lear (The Owl and the Pussycat) through Italy in 1842. Numbers of lawyers have ridden the route of the Tour de France before or after the event.

Some regularly attend the Salzburg festival. Other lawyers attend courses in clothing design in Paris, art in Italy. Travelling is often more fun if you have a theme or purpose. See the Big 5 in Africa, learn Spanish in Barcelona, visit court houses in Italy, sail the Croatian coast, explore UN heritage sites, take an art course at the Rijksmuseum in Amsterdam. So, feel free to send in your contributions and let others know of your favourite (or not so favourite) destination and why you travel where you do. And donâ&#x20AC;&#x2122;t forget Australia! â&#x20AC;Ś Sicily is much more than the beautiful mountain town of Taormina. Mount Etna, Agrigento in the West has some of

the best preserved Greek temples in the world, while Ragusa together with seven other cities is a UNESCO world heritage site. The mafia presence in Sicily is muted although it can be annoying to drive along a narrow pothole filled road near an overhead expressway built so corruptly that there are no on-ramps and so is deserted. The government named the airport at Palermo after two prominent, murdered, anti-mafia lawyers Falcone and Borsellino. At the centre of the Mediterranean, Sicily has been conquered by just about everyone over the years and so is a fine island to explore history. For those on a fictional detective tour, it is fun to visit the real life places made famous in the Montalbano series on SBS and the books of Andrea Camilleri. Begin at Porto Empedocle, near Agrigento, the home of Camilleri. A tour will take in his beach house and other scenes.

The Toohey Legacy: rights and freedoms, compassion and honour

By Greg McIntyre SC Barrister, John Toohey Chambers

Introduction The focus of this address is upon the ideas discussed by the Honourable John Leslie Toohey AC QC, expressed in his judgments and occasional lectures. A fundamental theme of John Toohey’s approach to life and the law, which shines through, is that he remained keenly aware of the fact that there are groups and individuals within our society who are vulnerable to the exercise of power and that the law has a role in ensuring that they are not disadvantaged by its exercise. A group who clearly fit within that category, and upon whom a lot of John’s work focussed, were Aboriginal and Torres Strait Islander peoples. In 1987, in a speech to the Student Law Reform Society of Western Australia Toohey said: “Complex though it may be, the relation between Aborigines and the law is an important issue and one that will remain with us;”1 and in Western Australia v Commonwealth (Native Title Act Case)2 he reaffirmed what was said in the Tasmanian Dam Case,3 that “[t]he relationship between the Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life”.

University of Western Australia John Toohey had a long-standing relationship with the University of Western Australia, having graduated in 1950 in Law and in 1956 in Arts and winning the F E Parsons (outstanding graduate) and HCF Keall (best fourth year student)

28 | BRIEF DECEMBER 2017

prizes. He was a Senior Lecturer at the Law School from 1957 to 1958, and a Visiting Lecturer from 1958 to 1965. After a short period of practice at Lavan and Walsh, he founded Ilbery & Toohey. He commenced practise at the Independent Bar in 1965, and was appointed Queens Counsel in 1968, at the age of 38. He was a leader in the Western Australian legal profession, having been President of the WA Bar Association in 1970 and President of the Law Society of Western Australia in 1972-73.

Aboriginal Legal Service In 1973 he moved with Loma and his young family to Port Hedland, to take up the position as the inaugural Solicitor for the Aboriginal Legal Service of Western Australia, covering the whole of the Pilbara and Kimberley single handed. He appeared as Counsel in the Laverton (‘Skull Creek’) Royal Commission, with Graham McDonald, representing the 30 Aboriginal people from Warburton and Docker River who, on 4 January 1975, were arrested while on their way to a rain-making ceremony at Wiluna, as the Royal Commission found, ‘without cause’, assaulted by police and held in an overcrowded Police lock-up at Laverton.4

Felton & others murder charge – committal, bail & trial My only direct professional dealing with John, while he was still a Barrister, was in the latter half of 1976, when I instructed him in a committal hearing for 9 Aboriginal men (who all reported that

they were 26 years of age) charged with two murders. A collection of bones had been found down mine shafts on the outskirts of Kalgoorlie. They were taken to the Kalgoorlie Regional Hospital and had life certified extinct and then were taken to the pathology laboratory in Perth where they were identified as human bones and one dog femur. The only other evidence comprised nine confessions by the accused, all telling different versions of the events which had led to the deaths. That evidence was enough for the Magistrate, Nobby Clarke to commit them all for trial.

Aboriginal Land Commissioner 1977-82 John Toohey broke new ground as Aboriginal Land Commissioner responsible for the first Aboriginal land rights legislation in the country. On 7 April 1977, was appointed, upon the recommendation of the then Minister for Aboriginal Affairs, Ian Viner, as the inaugural Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), He described the object of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) as ‘to give standing, within the Anglo-Australian legal system, of traditional ownership that has so far failed to gain recognition by the courts’5. He heard 15 claims extending the length and breadth of the Northern Territory. The claims were strongly contested by the Territory government and the subject of a number of appeals which went directly to the Full Court of the High Court.6 In R v Toohey; Ex parte Attorney-

migration agents and giving of migration advice, in reaffirming the implied freedom of communication and the requirement for incursions upon that freedom to be ‘reasonably proportional’ or ‘reasonably and appropriately adapted’ to achieve the end of the constitutional power being exercised. In Goryl v Greyhound Australia Pty Ltd18 he joined with Justice Dawson in concluding that the section 117 Constitutional prohibition against subjecting in any other State a resident of any State to a disability or discrimination which would not be applicable to a resident in the other State applied to a non-resident of Queensland only being entitled to a lesser rate of damages than a Queensland resident under a State statutory insurance scheme.

General (NT)7 Justices Stephen, Mason, Murphy and Aikin, in a joint judgment, with Justice Wilson agreeing and Chief Justice Barwick dissenting, held that Justice Toohey’s finding that the Utopia Station pastoral lease, purchased by the Aboriginal Land Fund Commission for the purpose of granting it to an Aboriginal corporation or land trust, was held “on behalf of” persons who are members of the Aboriginal race of Australia, within the terms of section 50(1)(a) of the Aboriginal Land Rights Act, and was within the jurisdiction of the Aboriginal Land Commissioner “involved no straining of language”. Two of the cases involved the vexed issue of the extension of the boundary of the townsite of Darwin, which the High Court found in R v Toohey; Ex parte Northern Land Council was for the improper purpose of excluding the land from the jurisdiction of the Commissioner. Robert French notes8 that – There were no less than 14 reported decisions of the High Court touching matters connected with the administration of the Act [4 of them during Commissioner Toohey’s time] before the Court’s decision in Mabo v Queensland (No 2)9… [I] t was a statute in which the concept of traditional land ownership was firmly embedded. … It would be drawing a long bow to propose a direct causative relationship between the High Court’s recognition of native title at common law in 1992 and its exposure to a decade of land rights litigation out of the Northern Territory. But the values underpinning the Act could not be lost upon the Court. There was a strong normative

element in the Mabo (No 2) judgment. It is not unreasonable to suppose that some of it may have been informed by the experience of the contentious land rights statute. At the end of Justice Toohey’s term as Commissioner, Ian Barker QC described him, during the Alligator Rivers claim, as “leading us like Moses who led the 12 tribes of Israel through the wilderness with a cheerful fortitude which did not ever leave him for the whole fortnight.”10 Ross Howie, who appeared regularly before for the Northern and Central Land Councils, wrote, at the same time, of his “sensitivity to historical injustice”, his “genuine interest” and “great patience” and that “it was hard not to be impressed by the Judge negotiating cheerfully with an old man to share the trunk of the only tree as a back rest.”11

High Court On 6 February 1987 Toohey was sworn in as a Justice of the High Court. A golden thread which ran through the cases he decided in the High Court was a concern for justice, morality and equality. His judgments12 supported a fair trial in Dietrich v The Queen13, the constitutional guarantee of a jury trial, in Cheatle v The Queen14, the exclusion of evidence for ‘unfairness’, in R v Swaffield15 and the right to an exculpatory document prevailing over legal professional privilege, dissenting, in Carter v Managing Partner Northmore Hale Davy & Leake16. He joined with other members of the Court in Cunliffe v Commonwealth17 when considering provisions in the Migration Act 1958 (Cth) for the registration of

Constitutional freedom of political communication In Lange v Australian Broadcasting Corporation19 Justice Toohey, with Chief Justice Brennan and Justices Dawson, Gaudron, McHugh, Gummow and Kirby, said “Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be “directly chosen by the people” of the Commonwealth and the States, respectively ….. “…[T]he freedom … cannot be confined to the election period. Most of the matters necessary to enable “the people” to make an informed choice will occur during the period between the holding of one, and the calling of the next, election…. Justice Toohey wrote a joint judgment with Justice Gummow in the Levy v Victoria (“Duck Shooting Case”).20 It was a case concerning the validity of regulations prohibiting entry into a ‘permitted hunting area’ during the open season for duck hunting without a game licence, where a protestor against the law was prosecuted for entering the area without a game licence. They said: “It may be conceded that television coverage of actual events occurring within the permitted hunting areas during the periods specified in reg 5(1) would attract public attention to those protesting the duck shooting issues, even if it would portray or stimulate appeals to emotion rather

than to reason. The appeal to reason cannot be said to be, or ever to have been, an essential ingredient of political communication or discussion. It must also be accepted that the constitutional freedom is not confined to verbal activity. We recognise that it may extend to conduct where that conduct is a means of communicating a message within the scope of the freedom.”

Freedom and equality In the case of Kruger v Commonwealth (the Stolen Generations Case)21, a decision delivered on 31 July 1997, not long before his retirement from the High Court in February 1998, Justice Toohey, in the context of a submission that the ‘stolen generations’ might raise issues of an implied constitutional right to freedom of movement and association, freedom of religion and right of equality, articulated a broad-ranging view as to the place of freedoms and equality in the law. He noted that to give content to the words “intercourse” and “absolutely free” in s 92 of the Constitution, there must be a guarantee of personal freedom “to pass to and fro among the States without burden, hindrance or restriction”.22 He referred to Justice Murphy J in Buck v Bavone,23 speaking of the right of persons to move freely across or within State borders as “a fundamental right arising from the union of the people in an indissoluble Commonwealth”, as a ‘matter requiring further consideration’. Citing what had been said in the series of implied freedom of speech cases of the High Court, in which he had participated, he referred to the doctrine of representative government, representatives being responsible to the people and deriving their power from the governed24 prescribed in the Constitution,25 giving rise to freedom of communication and discussion of political matters26 between all persons, groups and other bodies in the community27 on the whole range of issues which an intelligent citizen should think about28 and the right of access to the institutions, and of due participation in the activities of the nation,29 carrying with it the implication of freedom of movement and association.

Legal equality He noted that, implicit in the free agreement of the people to “unite in one indissoluble Federal Commonwealth”,30 is “the notion of the inherent equality of the people as the parties to the compact.”31

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In the context which he was considering in Kruger, of Aboriginal people in the Northern Territory, he made the point that the freedom to participate in the activities of the nation “does not ebb and flow” with eligibility to cast a vote.32 He did, however, acknowledge a “tension between the implied freedom of political communication and the express grant of power” to the government,33 saying “the relevant provisions of the Ordinance must not be disproportionate to what was reasonably necessary for the protection and preservation of the Aboriginal people of the Northern Territory”, and “ it is relevant to consider the standards and perceptions prevailing at the time of the Ordinance. That is not to say that those standards and perceptions necessarily conclude the matter; the infringement of a relevant freedom may be so fundamental that justification cannot be found in the views of the time”. 34 In Leeth v Commonwealth35, joining in a judgment with Justice Deane, he said: “ The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalize or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those whom they punish or penalize or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences. Again, laws which distinguish between the different needs or responsibilities of different people or different localities may necessarily be directed to some, but not all, of the people of the Commonwealth.” In Kruger, he cited with approval Justice Gaudron in Leeth, who spoke in terms of judicial power, saying36: “ It is an essential feature of judicial power that it should be exercised in accordance with the judicial process ... All are equal before the law. And the concept of equal justice - a concept which requires the like treatment of like persons in like circumstances, but also requires that genuine differences

be treated as such - is fundamental to the judicial process.” He added that: There is nothing that excludes Aboriginals from the principle of equality save the qualification that the principle is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. Indeed, in Leeth37 Deane J and I spoke of the fact that “a legislative power to make special laws with respect to a particular class of persons, such as aliens (Constitution, s 51(xix)) or persons of a particular race (s 51(xxvi)), necessarily authorizes discriminatory treatment of members of that class to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership”. ….It may be noted … that the “discriminatory treatment” referred to in Leeth does not stand in necessary contradistinction to laws which are beneficial to a particular class of persons; it may include such laws.

Natural Justice An often-repeated theme in judgments of Justice Toohey was the entitlement of citizens to natural justice or procedural fairness. In Aboriginal Sacred Sites Protection Authority v Maurice38 he described the role of an Aboriginal Land Commissioner, as balancing natural justice with cultural sensitivity. In 1995, in Minister for Immigration and Ethnic Affairs v Teoh39, Justice Toohey40, with Chief Justice Mason and Justice Deane41, found that ratification of a treaty amounted to acceptance of international obligations which those affected by administrative decisions could reasonably legitimately expect would be adhered to, giving content to the procedural fairness which the decision-maker was obliged to provide42. The Commonwealth proposed various Bills in 1995, 1997 and 199943 to reverse the effect of Teoh in relation to international treaties and issued statements negating legitimate expectations arising from treaties44. Concerns were raised about the efficacy of the concept of ‘legitimate expectation’. In 2003, in Re Minister for Immigration; Ex parte Lam45, Justices McHugh and Gummow suggested that it had served a

useful role in the evolution and expansion of the of the duty to observe the requirements of natural justice but now had “limited utility”.46 Ultimately, in 2015, Justices Kiefel, Bell and Keane said in Minister for Immigration v WZARH47: , [I]n Plaintiff S10/2011 v Minister for Immigration and Citizenship Gummow, Hayne, Crennan and Bell JJ referred to the discussion of the concept by four members of the Court in Lam, and said that: “the phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded.” What appeared to have been a good idea in 1995 seems now to be ‘dead, buried and cremated’48.

Public interest activities His Honour on more than one occasion heard cases in which it was appropriate to express a view on the role of those engaged in public interest activities and their relationship to democracy. In Swan Television and Radio Broadcasters v Australian Broadcasting Tribunal49, commenting on the public interest nature of private television broadcasting, Justice Toohey, with Justices Sweeney and Wilcox, said: “The fact that commercial broadcasting and television are intended to be conducted in

the interests of the public does not mean that there is no room properly to maintain a claim for the confidentiality of commercial information. Unregulated disclosure of such information may result in serious consequences to a licensee and, therefore possibly, to the public interest.... The public interest element in relation to television regulation may require a greater degree of disclosure of commercial information than would otherwise be appropriate.” In Australian Broadcasting Tribunal v Bond50 Justice Toohey J, with Justice Gaudron, stated: “Commercial broadcasting plays a significant role in the dissemination of information and ideas. That dissemination is vital to a free and democratic society… A commercial broadcasting licence thus carries with it an obligation to the community. It also carries with it the potential for powerful influence. The community is entitled to confidently expect that a licensee will discharge its obligation and, in particular, that the potential for influence will not be abused.”

Aboriginal people and the land Native title rights / Arbitrary deprivation or extinguishment of property In Mabo v Queensland (No 1)51 Justice Toohey, with Justices Brennan and Gaudron held that section 10 of the Racial Discrimination Act 1975 (Cth) operates

to enhance the enjoyment of the human right to own property and not be arbitrarily deprived of it, if it is the subject of inequality in enjoyment by discrimination in municipal law or its administration. That proposition was reaffirmed by Justice Toohey, in a joint judgment with Chief Justice Mason CJ and Justices Brennan, Gaudron and McHugh in Western Australia v Commonwealth (Native Title Act Case)52.

Possessory title An area which the Toohey judgment alone addressed in Mabo (No 2) was possession as the root of title. Possessory title was one of the alternative bases upon which the Plaintiffs had posited their claim, relying upon the work of Professor Kent McNeil of Osgoode Hall Law School, York University, Toronto53 and Perry v Clissold54 in which the Privy Council had held that a person in possession of land as its owner and exercising peaceably the ordinary rights of ownership (an adverse possessor) has a perfectly good title against all the world but the rightful owner. The significance of his consideration of possessory title is that a possessory title is presumptively equivalent to a fee simple interest.55 That is a conceptual starting point for the understanding of native title which provides a stronger bulwark against the extinguishment of native title than the ‘bundle of rights’ characterisation of native title, which became the popular description in later cases in Australian Courts56 and which lends itself to native 31

title being described as ‘fragile’57, and so readily susceptible to extinguishment or the only rights capable of recognition being those rights identified by specific historical use. In Wik Peoples v Queensland58 Justice Toohey referred to the possibility that native title may “approach the rights flowing from full ownership at common law”. As Justice Kirby said in Ward59 The object of the NTA is the recognition of “native title”, rather than the provision of a list of activities permitted on, or in relation to, areas of land or waters. That is more generally consistent with the approach of the Courts in Canada.60 There has been a recent trend in the Australian case law to revert to something approaching the Canadian position. Firstly, there has been a recognition, confirmed in the Torres Strait Sea Case,61 that native title may include an unrestricted right to take resources, including the right to trade in those resources, regardless of a lack of exclusivity of the title and any cultural restraints which may exist. Secondly, the High Court in 2014, in Western Australia v Brown62 rejected the proposition that extinguishment of native title may be effected by the exercise of

rights,63 thereby rejecting the idea that a doctrine of ‘operational inconsistency’ applies in Australia, and concluding that, where there is a competition between the exercise of two rights, it must be resolved in favour of the rights granted by statute. But when the statutory rights cease to be exercised or come to an end the native title rights and interests remain unaffected.64 This was taken a step further in 2015, in Queensland v Congoo65. In that case a 1939 National Security Regulation authorised the Executive to take exclusive possession of land. By the combination of a majority decision of the Full Federal Court66 and a 3:3 split decision of the High Court67 the conclusion was that because the exclusive possession of the Commonwealth “was for a limited purpose, for a limited time and on the premise, apparent from the legislative scheme, that all underlying rights and interests should continue”,68 it did not extinguish native title. An approach to legislative construction which has regard to the objective legislative purpose, ascertained by reference to statutory context and framework which the provision in question appears, is unremarkable and in accordance with settled authority.69 And it is inconsistent with the ethos of equality before the law articulated in the judgments of Justice Toohey.

Fiduciary duty: ‘honour of the Crown’ In Mabo (No 2) Justice Toohey was the only justice who considered the argument put on behalf of the Plaintiffs that the Crown in right of Queensland “is under a fiduciary duty, or alternatively bound as a trustee, to the Meriam people …, to recognise and protect their rights and interests in the Murray Islands”70. Justice Toohey held that, precisely because the Crown has such absolute power over the holders of native title, it is under a fiduciary duty in respect of that power. He concluded that the “fiduciary obligation on the Crown does not limit the legislative power of the Queensland Parliament, but legislation will be in breach of that obligation if its effect is adverse to the interests of the titleholders, or if the process it establishes does not take account of those interests”71. The notion of a fiduciary duty of the Crown towards Indigenous peoples had its genesis in the 1831 United States Supreme Court case of Cherokee Nation v Georgia72 in which Chief Justice Marshall referred to ‘those tribes which reside within the acknowledged boundaries of the United States’ as ‘denominated domestic dependent nations’ and as being ‘in a state of pupillage. Their relationship to the United States resembles that of a ward to his guardian’. The United States Supreme Court has held that the power of the Government to dispose of Aboriginal lands without compensation, as if they were public lands, was restrained by its guardianship responsibility from engaging in an ‘act of confiscation’ of that kind.73 In the 1983 United States Supreme Court case of United States v Mitchell74 it was confirmed that the government has a fiduciary relationship in relation to the lands of its indigenous peoples where it controls the property belonging to them, and the power to manage the resources and land which comprises that indigenous property. Justice Toohey relied upon the leading Canadian case on the government’s fiduciary obligations to Indigenous peoples, Guerin v The Queen,75 in which the Canadian Supreme Court, in 1984, found that the Crown’s fiduciary obligation in relation to Indigenous interests in land arose out of the fact that the interests were inalienable, except to the Crown. He said76: Underlying such a relationship is the scope for one party to exercise a discretion which is capable of affecting the legal position of the other. One party has a special

32 | BRIEF DECEMBER 2017

opportunity to abuse the interest of the other. The discretion will be an incident of the first party’s office or position77. The undertaking to act on behalf of, and the power detrimentally to affect, another may arise by way of an agreement between the parties, for example in the form of a contract, or from an outside source, for example a statute or a trust instrument. The powers and duties may be gratuitous and ‘may be officiously assumed without request’78. In relation to the case before him he said79: …if the Crown in right of Queensland has the power to alienate land the subject of the Meriam people’s traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam people’s power to deal with their title is restricted in so far as it is inalienable, except to the Crown, then this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown. The power to destroy or impair a people’s interests in this way is extraordinary and is sufficient to attract regulation by Equity to ensure that the position is not abused. The fiduciary relationship arises, therefore, out of the power of the Crown to extinguish traditional title by alienating the land or otherwise; it does not depend on an exercise of that power. Moreover if, contrary to the view I have expressed, the relationship between the Crown and the Meriam people with respect to traditional title alone were insufficient to give rise to a fiduciary obligation, both the course of dealings by the Queensland Government with respect to the Islands since annexation - for example the creation of reserves in 1882 and 1912 and the appointment of trustees in 1939 - and the exercise of control over or regulation of the Islanders themselves by welfare legislation - such as the Native Labourers’ Protection Act 1884 (Q.), the Torres Strait Islanders Act 1939 (Q.) under which an Island Court was established and a form of “local government” instituted, and the Community Services (Aborigines) Act 1984 (Q.) - would certainly create such an obligation. Justice Brennan in Wik80 said that he was “unable to accept a fiduciary duty can be owed by the Crown to the holders of

native title in the exercise of the statutory power to alienate land whereby their native title in or over the land is liable to be extinguished without their consent and contrary to their interests,” and that “it is impossible to suppose that a repository of the power shall so act that the beneficiary might expect that the power will be exercised in his or her interests”. His view was that the imposition of the duty would preclude the exercise of the power.

regulated, but that the ‘honour of the Crown’ required that there be a valid objective of such legislation beyond the extinguishment of Indigenous interests and it was necessary to address “whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and whether the aboriginal group in question had been consulted.85

There is no necessary inconsistency between the existence of a power, particularly a discretionary power, and a duty arising from another source which limits the way in which the power might be exercised. As Justice Merkel suggested in Nulyarimma v Thompson81, the Crown and its agencies, when exercising public power affecting Aboriginal rights may be obliged to act fairly as between indigenous and nonindigenous communities. Justice Merkel referred to the work of then Professor Paul Finn82 as drawing an analogy between the exercise of public power affecting classes of the community possessing different rights and a fiduciary obliged to act fairly between different classes of beneficiary.

In Delgamuukw v British Columbia86 Chief Justice Lamer confirmed that the infringement of Aboriginal rights must satisfy the ‘test of justification’. The infringement must be in furtherance of a legislative objective that is ‘compelling and substantial’87. He said there was a fiduciary relationship between the Crown and Aboriginal peoples which reflected the prior Aboriginal interest and included the duty of consultation in ‘good faith’88 with the intention of substantially addressing the concerns of aboriginal peoples, ensuring that any loss of interest is fairly compensated89.

The Canadian Supreme Court, in 1990, elaborated on the finding in Guerin in R v Sparrow,83 saying – The sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown, constituted the source of the fiduciary obligation …the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginals is trust-like, rather than adversarial, and contemporary aboriginal rights must be defined in light of this historical relationship… The honour of the Crown is at stake in dealing with aboriginal peoples… The special trust relationship and responsibility of the government vis-a-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified. The Court said that – [the Crown’s] power must be reconciled with the Crown’s duty, and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.84 The Court held in Sparrow that the exercise of indigenous rights could be

Justice Cooke, President of the Court of Appeal of New Zealand in Te Runanga o Wharekauri v A-G90 said that the continuance of unextinguished aboriginal title gives rise to a fiduciary duty and constructive trust on the part of the Crown, citing Sparrow and Toohey J in Mabo (No 2). In Te Runanganui o Te Ika Whenua Inc v A-G91 the President said that ‘extinguishment by less than fair terms, would be likely to be a breach of the fiduciary duty widely and increasingly recognised as falling on the colonising power’. In the 2015 Supreme Court of New Zealand case of Paki v A-G (NZ)92 Elias CJ remarked that the Crown’s obligations to Maori may have a basis in common law aside from its undertakings in the Treaty of Waitangi and may be broader than the understandings of fiduciary duty in private law. There is no reason why Australian Courts could not adopt the form of sui generis fiduciary duty identified by Justice Toohey in Mabo (No 2) which has been articulated in Canada and New Zealand and which balances the power of the Crown with the competing duties to be taken into account when exercising powers which impact upon indigenous rights. In Western Australia v Ward (MirriuwungGajerrong Case)93, Gleeson CJ, Gaudron, Gummow and Hayne JJ said “[T]he statement in Mabo (No 2) that native title ‘may be protected by such legal and equitable remedies as may be appropriate to the particular rights and interests established by the evidence’94 is yet to be developed by decisions

indicating what is involved in the notion of ‘appropriate’ remedies”. Kirby J in Thorpe v Commonwealth [No 3]95 said that whether the Crown owes a fiduciary duty to Indigenous peoples “remains an open question”. Grover suggests that much of the need for a fully developed fiduciary conception of the Crown-Maori relationship has been obviated in New Zealand by the commencement of the Treaty of Waitangi settlements process. 96

With the renewed call for treaty negotiations, overseen by a Makarrata97 Commission, coming out of the Uluru Statement, made by the Indigenous people gathered at the 2017 National Constitutional Convention, the need to pursue in Australia the development of the legal concept of the Government’s fiduciary relationship with First Nations peoples may also evaporate. However, like the pursuit of the Mabo case, in the absence of any political interest of the national government to promote national indigenous land rights legislation, if there is a continuing disinterest of Australian governments in negotiating treaties at national or other levels, then the pursuit of a suitable test case to determine the issue of the Crown’s fiduciary duty to Indigenous people may be called for in Australia. The notion of the ‘honour of the Crown’ becoming a recognised feature of the relationship between the Crown and Australia’s indigenous peoples, as it is in Canada, would sit well with the ethos of John Toohey, reflected in what he had to say in Mabo (No 2).

Democracy, the Rule of Law and the role of Judges In Sykes and Cleary98 Justice Toohey pointed out the importance to democracy of maintaining the distinction between the independence of a public servant and free and independent judgement of a Parliamentarian. He pointed out in a speech in Darwin on 4-6 October 199299 that the High Court, as a court ‘established as a guardian of a written constitution within the context of a liberal-democratic society’ might need to act vigorously ‘to protect core liberaldemocratic values’ and the rule of law, in an age when ‘parliaments are increasingly seen to be the defacto agents or facilitators of executive power, rather than bulwarks against it’. In the same speech he also spoke of ‘a revival of natural law jurisprudence – that for law to be law it must conform with fundamental principles of justice’.

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When asked in 1989 if judges reflect the social values of the class they come from his Honour, then newly appointed to the High Court, responded that he was not sure what class he could be described as coming from and that “you’ve got to accept the fact that Judges can’t be entirely representative of the community. You can at least hope that they’re sufficiently open minded to be able to appreciate views other than their own”.100 He said: “[T]he biggest challenge facing us is the need to communicate with people, to explain just what we are doing, why laws are made, why they are administered in the way that they are and the way the courts apply them in the way that they do. I think it is incumbent on all arms of the law, including the courts, to make clearer to the community just what they are doing.”101 When confronted, shortly before his retirement, with the suggestion that he was an ‘activist’, he stated that judges must ‘create law’ and that law is created every time a judge changes or develops the law. He said ‘references to activism use the word “change”… as a pejorative term’. His view was that a decision not to change or not to develop the law is just as activist as a decision to change the law and can have consequences just as dramatic.102 As a condition of membership of the chambers each member undertakes to observe a standard of conduct worthy of the Honourable John Toohey.

Conclusion Justice James Edelman has described John Toohey as “a humble and gentle man for whom, and about whom, I never heard an ill word spoken. He was a gentleman in every sense. He talked with crowds and kept his virtue. He walked with kings but never lost his common touch…. John had an extraordinary intellect. He was a wonderful teacher. And most of all, he had a human touch, without match. In court that manifested itself in a deep respect for his colleagues, for counsel and for his staff…..Apart from John’s deep knowledge of the law and beyond, he had a glowing humanity. His empathy, and his compassion, meant that he saw goodness in others even when they could not see it in themselves”.103

slog and is not always recognised. Human rights is and will always be an ongoing process and its value is not always appreciated.’ We all honour and respect the empathetic, steadfast and unassuming way in which the Honourable John Toohey, throughout his life, pursued the cause of respect for human rights, particularly for indigenous peoples, and we seek to continue the legacy he has left us.

NOTES: 1.

Quoted in James Edelman, ‘A Short Biography of John Leslie Toohey AC’ (1998) 8 Journal of Judicial Administration 109.

(1995) 183 CLR 373, at 459, in a joint judgment with Mason CJ, Brennan, Deane, Gaudron and McHugh JJ.

(1983) 158 CLR 1 at 274-5.

F Skyring, Justice A history of the Aboriginal Legal Service of Western Australia: UWA Publishing 2011, pp 115-135.

Report on Yingawunarri (old Top Springs) Mudbura Land Claim, Report No. 5 (Canberra, Australian Government Printing Service, 1980) [70].

R v Toohey; Ex parte A-G (NT) [1980] HCA 2; (1980) 145 CLR 374; R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; R v Toohey; Ex parte Stanton (1982) 44 ALR 94; R v Toohey; Ex parte Meneling Station (1982) 158 CLR 327;

[1980] HCA 2; (1980) 145 CLR 374.

Hon Robert French, Legal Change – The Role of Advocates, Sir Maurice Byers Lecture, Brief, Vol. 44, No 7, August 2017: The Law Society of Western Australia, p 28, and see Robert French, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30 Western Australian Law Review 129, at p 138.

(1992) 175 CLR 1. For a list of the cases see Robert French, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30 Western Australian Law Review 129, at p 136.

10.

Transcript of hearings, Land Claim 2 April 1982, 25; quoted in James Edelman and Natalie Gray, ‘A Short Biography of John Leslie Toohey AC’ (1998) 8 Journal of Judicial Administration 109.

11.

R Howie, “Mr Justice Toohey Ends Term as Aboriginal Land Commissioner” (1982) 4 Aboriginal Law Bulletin 14; quoted in James Edelman and Natalie Gray, ‘A Short Biography of John Leslie Toohey AC’ (1998) 8 Journal of Judicial Administration 109.

12.

Noted by James Edelman and Natalie Gray, “Toohey, John Leslie”, The Oxford Companion to the High Court, ed M Coper, T Blackshield and G Williams: Oxford University Press 2001.

13.

Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 .

14.

Cheatle v R [1993] HCA 44; (1993) 177 CLR 541.

15.

R v Swaffield [1998] HCA 1; 192 CLR 159; 151 ALR 98; 72 ALJR 339 (20 January 1998).

16.

Carter v Managing Partner Northmore Hale Davy & Leake [1995] HCA 33; (1995) 129 ALR 593; (1995) 69 ALJR 572; (1995) 17 ACSR 1; (1995) 183 CLR 121 (14 June 1995).

17.

[1994] HCA 44; (1994) 182 CLR 272; (1994) 124 ALR 120.

18.

(1994) 179 CLR 463 (delivered on 31 July 1997).

19.

(1997) 189 CLR 520, at 559, 561 and 571.

20.

(1997) 189 CLR 579 at 613.

21.

(1997) 190 CLR 1.

22.

Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 393. A quotation from Gratwick v Johnson [1945] HCA 7; (1945) 70 CLR 1 at 17.

23.

[1976] HCA 24; (1976) 135 CLR 110 at 137.

24.

Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 69-70.

25.

McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 198; Brennan J in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 48.

26.

Nationwide News Pty Ltd v Wills[1992] HCA 46; (1992) 177 CLR 1, Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994)

In 2010 John wrote to me that – ‘human rights, especially among indigenous people…can be a hard

27.

28.

182 CLR 211 and Lange v Australian Broadcasting Corporation[1997] HCA 25; (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818.

52.

(1993) 183 CLR 373, at 437.

53.

McNeil, Common Law Aboriginal Title, (1989), pp 196204.

Mason CJ commented in Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 139, see also 168-9, 174 per Deane and Toohey JJ, 212 per Gaudron J, and Re Public Service Employee Relations Act [1987] 1 SCR 313 at 391.

54.

(1907) AC 73.

55.

See Toohey J at 178, 206,209-10, 211; see Simon Young, The Trouble with Tradition Native Title and cultural change: The Federation Press 2008, at p 251.

Mason CJ, Toohey and Gaudron JJ in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 124, adopting the observation of Barendt Freedom of Speech, (1985) at 152.

29.

R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 109-110, per Barton J and Miller J in Crandall v State of Nevada [1867] USSC 15; 73 US 35 .

30.

See Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 at 274 per Brennan, Deane and Toohey JJ.

31.

Deane and Toohey JJ in Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 485-490; and Toohey J in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 554.

Fiduciary Obligations of the Crown to ABORIGINES; Lessons from the United States and Canada’ (1993) 16(1) UNSWLJ 70 AT 78-79.. 74.

103 S Ct 2961 (1983); see Bartlett op cit at 312, Johnston op cit at 328, Hughes op cit at 82-83 and D Tan ‘The Fiduciary as an Accordian Term: Can the Crown Play a Different Tune?’ (1995) 69 ALJ 440 at 443.

Fejo v Northern Territory (1998) 195 CLR 96, per Kirby J at 151; Western Australia v Ward (2002) 213 CLR 1 at [76], [95], [615], [638] and [715].

75.

(1984) 13 DLR (4TH) 321.

76.

At p 200.

Fejo v Northern Territory (1998) 195 CLR 96, per Kirby at 152; Yanner v Eaton (1999) per Callinan J at 408; Commonwealth v Yarmirr (2001) per Kirby J at 183-4; Western Australia v Ward (2002) 213 CLR 1 at [91], [665], [969]; Yorta Yorta v Victoria (2002)214 CLR 422 at [185].

77.

Wenrib, ‘The fiduciary Obligation’ (1975) 25 U Toronto LJ, 1 at 4-8; Guerin [1984] 2 SCR at 384.

78.

(Finn, P., Fiduciary Obligations (1977) edn, at 201; Guerin, [1984] 2 SCR at 384.

79.

At p 203.

80.

Wik Peoples v Queensland (1996) 187 CLR 1 at 95-6.

81.

[1999] FCA 1192 at [225] and [227], referring to Te Runanganui o Te Ika Wheuna Inc Socy v AG [1994] 2 NZLR 20.

82.

P.D.Finn ‘A Sovereign People, A Public Trust’ in P.D.Finn Essays on Law and Government (volume 1, 1995) at 18-9; and P.D. Finn ‘The Forgotten “Trust”: The People and the State’ in M. Cope Equity Issues and Trends (Federation Press, Sydney, 1995) at 138.

(1996) 187 CLR 1 at 126-7; see also Gummow J at 169 and in Yanner v Eaton (1999) 201 CLR 351 at 382-4.

Western Australia v Ward (2002) 213 CLR 1 at [569][575].

Hamlet of Baker lake v Minister for Indian Affairs and Northern Development (1979) 107 DLR (3D) 513 and Delgamuukw v British Columbia (1997) 153 DLR (4th) 193.

32.

Citing McTiernan and Jacobs JJ in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 35.

33.

See Leask v Commonwealth [1996] HCA 29; (1996) 70 ALJR 995 at 1011-1013; [1996] HCA 29; 140 ALR 1 at 24-26.

83. 61

Akiba v Commonwealth [2013] HCA 33; see also Rrumburriya Claim Group v Northern Territory [2016] FCA 776; Western Australia v Pilki People [2015] FCAFC 186.

(1990) 70 DLR (4TH) 395 at 408 and 413 see commentary by G Nettheim ‘Sparrow v The Queen’ (1991) 2 Aboriginal Law Bulletin 12; Hughes op cit at 91-92.

84.

(1990) 70 DLR (4TH) 395 at 408.

34.

He referenced for that proposition Cheatle v The Queen[202] and Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[203]

62.

[2014] HCA 8.

85.

R v Sparrow (1990) 70 DLR (4TH) 395 at 416-17.

63.

A proposition which had gained some currency from dicta of Gummow J in Wik (1996) 187 CLR 1 at 202-3, Western Australia v Ward (2002) 213 CLR 1 at [296] and De Rose v State of South Australia (2005 145 FCR 290.

86.

(1997) 153 DLR (4th) 193.

87.

At [161].

88.

At [168].

At [169].

90.

[1993] 2 NZLR 301 at 306.

91.

[1994] 2 NZLR 20 at 24.

92.

[2015] 1 NZLR 67

93.

(2002) 213 CLR 1, at [67].

94.

(1992) 175 CLR 1 at 61.

95.

[1997] HCA 21; (1997) 144 ALR 677; (1997) 71 ALJR 767. It was also noted in Northern Land Council v The Commonwealth (No 2) (1987) 75 ALR 210, 215, (1987) 61 ALJR 616 at 620 that it was not argued in that case.

96.

K Grover, ‘The Honour of the Crowns: StateIndigenous Fiduciary Relationships and Australian Exceptionalism’ (2016) 38 Sydney Law Review 339, at359.

97.

A Yolngu term meaning ‘coming together after a struggle’.

98.

(1992) 176 CLR 77, in a joint judgment with Mason CJ and McHugh J, at 96.

99.

published in 1993.

35.

[1992] HCA 29; (1992) 174 CLR 455 at 488-489.

36.

[1992] HCA 29; (1992) 174 CLR 455 at 502.

37.

[1992] HCA 29; (1992) 174 CLR 455 at 489.

64.

Western Australia v Brown [2014] HCA 8 at [59].

38.

(1986) 10 FCR 104 at 119.

65.

[2015] HCA 17.

39.

(1995) 183 CLR 273.

66.

North and Jagot JJ (Logan J dissenting).

40.

At 301, 302-3.

67.

41.

At 291-2; McHugh J dissenting, at 314.

42.

Aronson Groves, Judicial Review of Administrative Action, 5th ed: Lawboook Company 2013, p 420.

French CJ, with Keane J, and Gageler J found that native title was not extinguished and Hayne, Keifel and Bell JJ found that it had been extinguished.

French CJ and Keane J in Queensland v Congoo at [27], summarising what North and Jagot JJ said in the Full Court of the Federal Court.

43.

Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth).

44.

Joint Statement by the Minister of Foreign Affairs and the Attorney-General, 10 May 1995 and 25 February 1997; I Katz, “A Teoh FAQ” (1998) 16 AIAL Forum 1 at 6.

69.

French CJ and Keane J at [36], citing, among other cases, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355; 153 ALR 490; 72 ALJR 841.

45.

(2003) 214 CLR 1.

70.

At p199.

At 16.

71.

At p 205.

47.

(2015) 256 CLR 326, at [29] citations to cases referred to omitted.

72.

48.

To use a phrase used by Tony Abbott in 2010 to refer to the fate of Work Choices: http://www.news.com.au/ national/breaking-news/abbott-pm-bid-dead-buriedcremated/news-story/c62b03505c15063688f592146 74299b5 and in 2015 to refer to the GP co-payment http://www.abc.net.au/news/2015-03-03/tonyabbott-declares-gp-co-payment-dead,-buried-andcremated/6275912

30 US (5 Pet) 1 (1831) at 16-17, see DM Johnston “A Theory of Crown Trust Towards Aboriginal Peoples” (1986) 18 Ottawa Law Review 307 at 320.

73.

United States v Creek Nation US 103 9135) at 109110. See also Lane v Pueblo of Santa Rosa 249 IS 110 (1981); Cramer v United States 261 US 219 (1923) and the discussion by R.P. Chambers ‘Judicial Enforcement of the Federal Trust Responsibility to Indians’ 91975) 27 Stanford Law School Review 1213 at 1246; D.M. Johnston ‘A Theory of Crown Trust Toward Aboriginal Peoples’ (1986) 18 Ottawa Law Review 307; R.H. Bartlett ‘Th Fiduciary Obligation of the Crown to the Indians’ (1989) 53 Saskatchewan Law Review 301 at 309-310 note 52; C. Hughes ‘The

46.

49.

(1985) 8 FCR 291 at 320.

50.

(1990) 170 CLR 321 at 382.

51.

(1988) 166 CLR 186 at 217.

100. Brief, Vol 14, April 1987, p 21. 101. Interview for Brief quoted by Kirby J in the 2002 John Toohey Oration at UWA. 102. James Edelman and Natalie Gray, “Toohey, John Leslie”, The Oxford Companion to the High Court, ed M Coper, T Blackshield and G Williams: Oxford University Press 2001. 103. “A Short Obituary of John Toohey by Justice James Edelman” Opinions on High blogs.unimelb.edu.au.

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Personal reflections on cultural diversity in the legal profession This is an edited transcript of a speech to the Asian Australian Lawyers Association, held at Corrs Chamber Westgarth, Perth, on 17 August 2017. By Julian Sher Director of Professional Programs, Curtin Law School The brief I have been given by the Association focusses on my personal experiences as an immigrant lawyer to Australia, changing attitudes towards diversity in the legal profession, some strategies for achieving cultural diversity in the legal profession and the approaches to the expansion of cultural diversity of the universities and the legal profession. What I have to say about these topics are from my own personal perspective and personal experience. I will conclude with my interaction with one of our students at Curtin Law School, who is actually an Australian Asian law student, an Asian lawyer and is a refugee - who is about to graduate with an LLB.

Race and racial discrimination To start off with, we have to talk about race and racial discrimination. I saw the evils of racial discrimination first hand, from my earliest years. I grew up in a society that was the paradigm for racial discrimination throughout the world in the post-war era, Nazi Germany having been destroyed and South Africa at that stage, being the successor to that awful regime. The purveyors of racism operate by unashamedly dehumanising and defaming other people. I was struck a number of years ago by a novel by the great Russian writer and journalist, Vasily Grossman. It is the greatest Russian novel of the 20th century, in my opinion, called “Life and Fate”. He wrote succinctly about the tendency of racists to blame the victim for all of the evils in the world. The book left an indelible impression on me. We see this phenomenon constantly around the globe, where the unfortunate victims of racism and discrimination are themselves blamed for causing all of the problems of the world. I can’t let this occasion go without remarking briefly on what is going on in America at the moment – after the recent events in Charlottesville. It is an appalling spectacle and it is an absolute disgrace. We thought this phenomenon would be over after the

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Second World War, but it is back and the genie is out of the bottle. It is global and Australia is not immune from this so we need to vigilant. This week John Denton, the CEO and managing partner of Corrs Chambers Westgarth, wrote an article called, “Harnessing Cultural Diversity” in the Australian Financial Review. He said: “The opportunity provided by a vibrant multi-culture is the genius of the Australian experience.” However, what I am going to talk about today is what the Honourable Michael Kirby said at the launch of the AALA in Perth on 5 July 2017: “Law is not an ordinary profession, Law is about values that inform what we do for outcomes”. So, what I am going to talk about is what is right, not what is in our commercial best interests. We understand that we are close to Asia and we trade with China, so it may seem to be important for us as a legal profession to talk about cultural diversity, but the fact of the matter is that as lawyers we must uphold the principles and values of diversity because that is the right thing to do. We are all officers of the court and our primary duty is to the administration of justice. So our duty as lawyers is to uphold the law for all. It is not merely a question of business pragmatism. This is what we stand for and swore an oath to do when we entered this profession. The legal profession is a reflection of the whole community. Communities are diverse and we as lawyers are a diverse group and lead diverse lives. It is regrettable that Asian Australian lawyers do not appear much in the senior ranks of the legal profession, as senior partners in firms, in the judiciary, or elsewhere, in numbers proportionate to their presence in the profession overall. This must be addressed.

Experiences as an immigrant lawyer The first thing I would say is that immigration is not easy. Anyone who has immigrated will tell you this. No matter whether English is your first language or not, immigration is a tough proposition. Australia chose me. The country was looking for experienced lawyers. From the second I arrived - and even before I arrived - I was fixated on becoming a partner in one of the best firms in Australia. I knew partnership was the key to the financial and general security of my family and to my becoming integrated into the legal system in WA. That was my driving force for my first three years in this country. I became admitted, became a senior associate, I found my firm (later to become a leading national firm) and became a partner. One just became a partner in those days and from then on one had to learn from experience, but, fortunately, I did more things right than wrong. I got through the experience and I am very grateful for the opportunity my firm gave me. That was twenty very good years of my life and I enjoyed every single minute. I made some good friends, ran some interesting cases and was able to travel. Since then, my career has followed a truly serendipitous path. By a series of happy coincidences, things have just fallen into my lap.

Opportunity and luck While these happy coincidences are part of the good of fortune I was mentioning a moment ago, my belief is that you create your own good fortune or luck and create your own opportunities. I have been lucky but it has taken a lot of hard work to be so lucky. You have to get out and about proactively as a professional, into the legal and general communities and be your own best advocate. Like lightning, the same opportunities never strike twice. Opportunities always happen along the

way, but the same ones never recur. The thing to do is to identify an opportunity when it arises and seriously consider whether you will take or reject it, but it won’t happen again. Another opportunity may come, but it will be a different one. The experience of immigration and the course of one’s professional career are unpredictable matters. I certainly didn’t foresee that I’d eventually end up as the Director of Professional Programs at Curtin Law School. Life involves risk. Crossing St. Georges Terrace is a risk. A bus could run a red light at any time. Risk is part of life. The question is, are the opportunities that come to each of us the result of conscious or unconscious bias? Do I get opportunities that you don’t get because you come from Asia? That is a matter of fact to be questioned. It undoubtedly happens and needs to be addressed.

The state of the legal profession

educated than they were 30 years ago. •

•

There is the rise of in house legal departments as competitors to private practice and as controllers and influencers of work.

•

Huge technological changes are changing the face of the legal profession forever. It is happening so quickly that we don’t even realise how quickly it is happening. There are significant ethical and professional conduct issues that we do need to grapple with.

•

Today there are higher standards expected of us as lawyers than ever before.

•

There are much higher levels today of external and internal scrutiny. You are scrutinised within your firm or within your organisation and you are scrutinised externally by the courts and the media.

•

Clients are far more informed and

Bullying and bias still exist, but at least in the legal professional and society generally, they are being addressed openly much more than they ever were before.

•

There has been progress in respect to gender diversity undoubtedly, but the bamboo ceiling still remains fixed in place.

•

There is a plethora of committees, associations, councils and organisations that lawyers can join.

My observations about the state of the legal profession are these. •

The prospects of partnership in leading firms are much less than ever before.

Changing attitudes in the legal profession Attitudes inside the legal profession have changed, but not enough. The Hon. Michael Kirby has said that

“Australian Asian lawyers do not occupy senior positions within the Australian legal profession in sufficient numbers and we have to work hard at that”. Katrina Rathie, a partner at King & Wood Mallesons, was reported as having said in May 2017: “Law is the least diverse profession in Australia”.

Strategies for expanding cultural diversity, what is to be done about it? In proposing strategies, I take a leaf out of the book of the Hon. Michael Kirby who said at the AALA’s Perth launch on 5 July 2017: “It is time for Australian Asians to fight for their dignity and rights. “Nothing happens in our world unless people stand up for themselves”. I agree with that. This does not mean that Australian Asian lawyers lack support from the rest of us. They have our support. We will do everything we can. But at the end of the day they need to take ownership of their own campaign for greater participation. Australian Asian lawyers need to be at the barricades themselves. As the Hon. Michael Kirby said: “The AALA has an important role of placing the issue on the agenda of the legal profession as a whole.” There are personal things that individuals can do themselves and they are not

unique to Asian or Australian lawyers. They are common sense.

learning experience of our law students at undergraduate and at postgraduate levels.

1. Have a plan and follow it.

The three pillars of our clinical programs are the establishment of a student advice clinic for small business, known as the John Curtin Law Clinic, a practical legal training course and uniquely, a set of barristers’ chambers located within the CLS precincts, where our students will interact with practising barristers.

2. Be opportunistic. If opportunity knocks on your door, grab it if it is “grabbable”. 3. Guard your reputation like a precious jewel. Your professional reputation is your most important asset. 4. Actively use your networks, by finding your way onto committees and into voluntary associations. 5. Present papers and give talks to clients and colleagues. 6. Improve your public speaking skills. 7. Do the best possible job you can. 8. Find a sponsor. Not a mentor, but someone who will be your advocate within your organisation. 9. Display passion and enthusiasm. 10. Be yourself and be proud of who you are.

Approaches to cultural diversity in the legal profession and the universities The legal profession is showing progress, especially in the area of gender diversity. It is much more tolerant and accepting than it was 30 years ago. The universities are, as they should be, progressive on these matters. Curtin Law School (CLS) is the university that I am most familiar with. CLS is the fifth law school in Perth. Our vision was to open our law school in the Perth CBD. Our philosophy is to integrate a full clinical legal education program into the

Closing the circle I want to conclude and close the circle of my immigration experience by mentioning a student who recently completed our clinic course. He was a practising lawyer before he came to Australia. He tried to uphold the values of integrity and fairness we espouse as lawyers, but he came up against terrible prejudice and bias. He was persecuted and forced to leave his country and become a refugee. He found himself eventually in Perth, studying to requalify as a lawyer. He has written about his experiences, which certainly inspired me. What a credit he is to our profession and society in general. So here you have the emigrant lawyer from South Africa all those decades ago and the newly arrived refugee lawyer and law student. What I have learnt from these shared experiences is that, on the whole, people who come to this country want to live its values. They value democracy and they value the inclusiveness that Australia is supposed to stand for. We are all the same in that respect. This is where we saw the opportunity - for us and our families - to be part of a society where we can contribute, rather than being treated as outsiders.

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BWA-AD239290916 29/09/2016 2:34 pm

Welcome ceremony for Judge Belinda Lonsdale The following is an excerpt from the transcript of the ceremonial sitting to welcome to the District Court of Western Australia Her Honour Judge Belinda Lonsdale, held on Monday, 9 October 2017.

Alain Musikanth, President of the Law Society: May it please the Court.

of the Liquor Licensing Commission for a period of some five years.

It is both my privilege and pleasure to appear on behalf of the Law Society of Western Australia to welcome your Honour Judge Belinda Lonsdale to the Bench of this Honourable Court.

Worthy of special mention, and which cannot be emphasised enough, is, of course, your Honour’s longstanding association with and contribution to the work of the Law Society. Among other things, your Honour served as a member of the Society’s Council for two spells over several years.

As has already been outlined, your Honour has enjoyed the most distinguished career in the law to date. We have heard about your graduation for the. Bachelor of Law degree from the University of Western Australia, followed by your articles with Eric Heenan QC as he then was, and completion of those articles at Quigley & Co. We’ve also heard of your continued work by the renamed firm Quigley Coulson Chenu, and that you later joined McAuliffe & Associates before becoming a senior associate at Dwyer Durack where you remained until 2003. During that period you also graduated with a degree of Master of Business Administration also from the University of Western Australia. We have heard that 10 years following your admission your Honour joined Tom Percy QC and Mark Trowell QC at the newly established Albert Wolff Chambers. It is from those Chambers that your Honour established your reputation as a leading criminal barrister, primarily acting for defendants but also regularly appearing for the prosecution. Your Honour’s focus on building a successful practice at the Bar did not, however, as we have heard, deter you from giving, and indeed from giving generously, of your time both to the profession and to the wider community. We have heard of your Honour’s service both as Vice President and subsequently as President of the Criminal Lawyers’ Association, and also as a member of the Council of the WA Bar Association. Your Honour also served as a member

Indeed, in joining the Court this morning, your Honour follows in the footsteps of the more than 20 former members of the Law Society’s Council who have served on the Bench of this Court since its inception nearly half a century ago. They include, of course, all four inaugural members of this Court and five of its current members. As will immediately be apparent from the brief description of some of your Honour’s activities that I’ve given, it is fair to say that you have contributed to most facets of the organised legal profession for a substantial and lengthy period of time. But perhaps most important of all your Honour’s contribution, and indeed one of the hallmarks of your Honour’s career has been your ongoing commitment to the representation of disadvantaged members of our community. In this context, your Honour has over many years taken on a substantial number of matters on a pro bono basis and through Legal Aid. Indeed, you have done so, as we have heard, right up until the time of your Honour’s appointment. Your commitments to the rights of the underprivileged has not been limited to acting at a reduced fee or for no fee at all. It is also reflected in other aspects of your Honour’s work including your work as a Member of the Law Society’s Access to Justice Committee and of course, your service for more than a decade as a Commissioner of Legal Aid.

Outside the law and in addition to your contribution to the arts, for many years you have been both a participant in and a supporter of the Hawaiian Ride for Youth, a charity bike ride raising money for the prevention of youth suicide and depression. While speaking on the topic of outside of the law, it appears that your Honour has seemingly also managed to achieve a unique feat which some of your Honour’s new colleagues and the crushing majority of many members of the profession could only hope to accomplish. Irritatingly, your Honour’s achievement is also one that has made preparation of my address this morning particularly challenging. The achievement to which I refer is of course, your Honour’s hastily foreshadowed but nevertheless completely successful obliteration of any presence on Facebook. On a more serious note, it goes without saying that the Court to which your Honour has been appointed is an institution which plays a vital role in both the proper administration and delivery of justice in our State. There is little doubt that your Honour· has, with respect, the judgment, the temperament and every other essential quality required of a member of this Court to discharge that role and to do so with distinction. As an advocate, your Honour’s method has been described as always being not only entirely pragmatic, but also a model of the so-called Ron Cannon school of cutting to the chase and of achieving agreement in respect of all those matters that might be reasonably agreed to facilitate the narrowing of the issues. Consistently, your Honour’s approach has always been characterised as having as its ultimate aim the advancement of the administration of justice while at the same time and at all times, ensuring unswerving maintenance of the duty 39

owed to your Honour’s clients. It has been said that your Honour knows exactly when to be tough and when to give someone a break. In that context, you’ve been described as being both a gifted great cross-examiner and also having a unique capacity to engage with juries. While your Honour will doubtless place the first gift swiftly into cold storage for the duration of your commission the latter will, of course, continue to stand you in particularly good stead in your new role. I’m sure all will agree with me that your Honour’s elevation to the Bench is a profound loss to the profession in general and to the Independent Bar in particular. However, that loss is very much this Court's and the wider community’s gain. On behalf of the Law Society, I congratulate your Honour and your Honour’s family on your appointment and wish you all the very best for a lengthy and successful judicial career.

or in this case the new Judge, but from this Judge’s perspective the analogy with a funeral is also relevant because today marks the end of nearly 25 years of practice in a profession which I have loved and which in some respects has defined me as a person. So whilst I am looking forward to the next chapter of my professional life, my decision to accept the honour of this appointment has not been without considerable feelings of loss and grief. Of course these ceremonies contain elements of a 21st birthday roast where the Judge is reminded of past indiscretions, hopefully in nuanced tones. Unfortunately it seems I have not been spared a recounting of some of the worst of those anecdotes, thank you, Mr Solicitor, Mr Howard and Ms Cleary in particular, but in those circumstances I subscribe to the view that silence is golden and I say no more.

Her Honour Judge Belinda Lonsdale: Thank you, Chief Judge, your Honours, Mr Quinlan, Mr Musikanth, Mr Howard and Ms Cleary. Thank you distinguished guests, colleagues and friends. Thank you to all the speakers for your very kind words.

Another relevant analogy for ceremonies such as these is that of receiving an Oscar where an award is given to the Judge for one’s past performance with the support of the Academy and then the award winner thanks the many people who have got her to where she is. The difference, of course, is that a new Judge can’t simply put the award on the shelf, sit idly back and enjoy the spoils of fame.

Welcome ceremonies such as these have, in my experience, something of the funereal about them where it is not the done thing to speak ill of the dead

There is much hard work to be done and for my part I am looking forward to that hard work and to the challenges that that will pose, but for now there are many

May it please the Court.

40 | BRIEF DECEMBER 2017

people to be acknowledged and thanks. Can I first thank my parents Keith and Judith who gave me life and have taught me the values of hard work, integrity, honesty and community? Even as I approach a half century I’m still grateful for the sacrifices that they have made to educate me and for their ongoing day-to-day love and support, including the home-cooked meals and many hospital visits for my now notorious admissions to hospital following a number of bike accidents. I would like to thank and acknowledge my brother Andrew and his wife Samantha for travelling all the way from Canberra to be here this morning and to my sister Fiona and her husband Nicholas. Fiona and Andrew and their respective spouses have produced the four wonderful children that I wish that I could have had. My nieces and nephews have provided me with much joy over the years and have taught me a great deal. They probably don’t realise it but they have been invaluable in teaching me how to cross-examine children, a skill which is sadly necessary in the District Court and, of course, in the Children’s Court. I would like to acknowledge all of my colleagues and friends who have contributed to a veritable deluge of communications, offering messages of congratulation and support and, of course, in some cases exhortations that I resist turning into one of those cranky Judges. I will, of course, do my best in

that regard. There are some people in the profession that I would like to single out for particular acknowledgement. I’m delighted that the Honourable Eric Heenan QC is present this morning. As you’ve heard, his Honour employed me as his Article Clerk in 1993 in the old Law Chambers. In those days I was as amazed and terrified by his intellect and his towering presence as I was impressed by the calmness of his demeanour and the fierceness of his ethical standards. His Honour taught me a great deal and it is no exaggeration to say that were it not for him I would not be here today. As you now all know after six months with his Honour I took up a position with John Quigley, as he then was at the firm of John R. Quigley & Co. Working with Mr Quigley after six months with working with Mr Heenan was as the Solicitor General suggested, like going from the sublime to the ridiculous. Mr Quigley’s reputation that he was as eccentric as he was brilliant well and truly lived up to the hype; there was never a dull moment. I’m so grateful that in the time that I worked for him I had the opportunity to brief the cream of the criminal Judge including Malcolm McCusker QC, Geoffrey Miller QC and Brian Singleton QC. Each of them taught me a great deal and I want to thank them for their patience with me and for all that they taught me. I’m sorry that the Attorney cannot be present this morning but I thank him in his absence for bestowing the honour of this appointment on me and for giving me the opportunity to serve the community. By 2003 I had spent seven fabulous years working with the firm of Dwyer Durack. I made many friends during my time there and I still see many of

them on a regular basis. I would like to particularly mention Donna Percy, Karen Lang, Catherine Sadleir and Sandra Brown but there are many others. Dwyer Durack had a sisterhood which was legendary and I was reluctant to leave it but in 2003 Tom Percy QC was insistent that I join him and Mark Trowell QC to start Albert Wolff Chambers. I recall saying to Percy at that time that I did not think that I was ready or suited to be at the Bar and he said to me, “You can do anything you put your mind to. You’re coming, besides your name is already on the door.” Those words have rung in my ears on many occasions when I have felt inadequate and overwhelmed. I wish to particularly thank you, Tom, for nearly 25 years of friendship and for all the professional support, encouragement and advice you have given me over the years. We have been a team on many occasions and I’m sad that there won’t be any more occasions where I get to tug on your gown. I would also like to acknowledge your contribution to the profession more generally. There is nobody at the Bar, in my view, who does more to provide opportunities to junior members of the profession and particularly women and despite you claiming political incorrectness as one of your virtues, you are, I believe, something of an accidental feminist. Criminal law can be a very dark mistress and there are some things which you hear which are deeply unpleasant and on occasions traumatising. Defending or indeed prosecuting people can be very stressful and difficult for those who are not in the profession to understand.

There is no cure to the stresses of the practice of Criminal Law like the humour and friendship of colleagues who understand you and Tom and the other members of Wolff Chambers, particularly those on the seventh, Simon Freitag and Simon Watters, have been the mainstay of my professional life for nearly a decade and a half. Thank you for all the many years of hilarity and friendship. I will miss you all. I wish to thank and acknowledge the Bar Association, the Law Society and the Criminal Lawyers’ Association for what they contribute to the profession. As you know, I’ve served on each of these organisations as a member of their Counsel. I acknowledge the great work that they do to foster the interests of the profession and the wider community. I wish to acknowledge the contribution of the Legal Aid Commission to the community. As you know, I served as a Commissioner from 2006 until my appointment. I am immensely proud of the work that Legal Aid does to provide representation to many people who would not otherwise be able to afford it and with very limited resources. The Courts would cease to be able to function without the assistance of Legal Aid and indeed the Aboriginal Legal Service. The Lawyers who work for ALS and Legal Aid or do Legal Aid work for very modest returns are in my mind the real heroes of the profession and I thank you all for your great service to the community. I look forward to you appearing before me. I’m really honoured to be appointed to the District Court Bench and overwhelmed that so many of you have turned up this morning to welcome me. I thank you all.

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BOOK REVIEW

Australian Dispute Resolution: Law and Practice By Laurence Boulle and Rachel Field (LexisNexis Butterworths, 2016, 1st Ed) Review by Michael Hollingdale Director, Hollingdale Mediation

The authors Laurence Boulle is a Professor of Law at the Thomas More Law School, ACU, Sydney; formerly Professor of Law at Bond University. He has taught and written extensively, both in Australia and internationally, on mediation, dispute resolution and globalisation. He has practised as a mediator for 22 years and served as Chair of both NADRAC and the Mediator Standards Board. Rachel Field is a Professor of Law at Bond University. She is the founder and coordinator of the Australian Wellness for Law Network. Rachael co-authored a model of family dispute resolution commissioned by the Attorney-General’s Department for use in matters where there is a history of domestic violence.

Publisher’s description Australian Dispute Resolution provides a theoretical, coherent and accessible treatment of modern conflict management and dispute resolution in Australia. It focuses on the knowledge, skills, ethics and values that are essential for effective contemporary legal practice and fundamental to the future sustainability of the legal profession.

Reviewer’s comments Laurence Boulle’s has already made a significant contribution to the education of the legal profession through his extensive academic writing on the subject of ADR1, his chairmanship of NADRAC and the Mediator Standards Board and training mediators over many decades. Boulle has been at the vanguard of ADR in Australia. This comprehensive text has three dominant themes:

42 | BRIEF DECEMBER 2017

1. The concept of ADR (whether ‘additional’ or ‘alternative’ DR) is no longer useful. DR is the preferred term as it embraces the full matrix of dispute resolution processes. 2. The dispute resolution roles of lawyers should become part of the professional identity of legal practitioners. 3. Dispute resolution knowledge, skills and attitudes have become critical to the viability of the legal profession and every lawyer requires commensurate attributes to meet the exigencies of changing practice and client demands.2 The text is set out in three Parts and is easy to follow. It contains a comprehensive table of cases. Of the 137 cases cited, only four are Western Australian.3 Practitioners may seek to bolster this number for the second edition. Addressing the outdated concept of ADR terminology, the authors describe so called’ alternative’ processes as now being widely accepted ‘primary, dominant or mainstream systems for resolving and managing conflicts and disputes.’4 A dispute resolution matrix is developed in Chapter 2 with helpful descriptions including the key focus of each process; these. One less wellknown Determinative DR process the authors describe is Dispute review boards (DRBs). They are little used in Australia despite their success in the construction industry in other jurisdictions. The blended or hybrid DR processes of Med-Arb, Arb-Med, ArbMed-Arb are briefly described (a topic I touched on in Mediation Update for Practitioners – Part 15). Part II provides

a thorough description of each of the DR systems, both as to their design and implementation. Chapter 3 Shaping Australian Dispute Resolution, offers an interesting history lesson. The authors include an outline of Indigenous DR in Australia that they contend has much wisdom and offers lessons for practitioners of contemporary of DR in Australia. The origins of the Federal requirement6 of ‘genuine steps to be taken by prospective parties to resolve the dispute before court or tribunal proceedings are commenced’ is traced to the recommendation of NADRAC in its 2009 report: The Resolve to Resolve – Embracing ADT to Improve Access to Justice in the Federal Jurisdiction. In Chapter 4 the authors tackle the complex issue of Justice as a DR value. It is often said parties who seek justice resort to the courts, as of course is their right and a basic tenet of a civilized society. Mediation on the other hand is a place ‘where deals get done’. The parties hope but have no guarantee that, their deal is a fair one. It may be far from just, rightful or deserved. The authors discuss the capacity of DR processes to deliver justice and how that may be measured. They quote Chief Justice Wayne Martin’s numerous speeches analogising the court system with a Rolls Royce, a first-class vehicle.7 The authors observe that ‘public perceptions of justice, and particularly of the nature of first-class justice offered by the courts, are typically not shaped by personal or real experience.’ Space does not permit in this review to cover the scholarly discussion on the topic of procedural and substantive justice in the context of fairness in DR; it is of central importance to our growing concern as a profession and community about access to justice.

Another topic of interest to litigation practitioners in the Supreme Court of Western Australia is judicial mediation by serving judges. The authors set out various contentions about judicial DR in a balanced manner: the constitutional considerations, compatibility arguments, performance-based questions and accountability considerations.8 Part III is entitled Dispute Resolution Praxis and Potential9. This Part is about putting DR theory into practice. The authors anticipate it will be developed in future editions and so may be seen as the start of the discussion. It will be of interest to the legal profession’s educators and institutions. Since the date of publication, and consistent with the authors’ view about DR (as more broadly defined) being a significant curriculum omission, the Priestley 11 mandatory subjects have been revised. They now include

Alternative Dispute Resolution in the context of the subject ‘Civil Dispute Resolution’ (amended from ‘Civil Procedure’10. This will in turn have content implications for the providers of Continuing Professional Development. The vexed topic of the bounds of confidentiality in mediation is briefly addressed in Chapter 12, Competence and Ethics in Dispute Resolution. Helpfully the authors include numerous footnote references to other publications on this important topic.

NOTES: 1.

For example: Boulle, Laurence (2005) “Educating lawyers in ADR,” ADR Bulletin: Vol. 8 : No. 2 , Article 2. Available at: http://epublications.bond.edu.au/adr/vol8/ iss2/2.

Preface.

Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66; Franco Librizzi v Western Power Corporation (Unreported, Magistrates Court (WA) 2006); Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014]; Ruffles v Chilman (1997) 17 WAR 1.

Para 2.11, p 38.

Brief May 2017, 24 at 30.

Civil Dispute Resolution Act 2011 (Cth).

Para 4.41, p 129 citing various speeches including: Wayne Martin, ‘Access to Justice’ speech delivered at the Notre Dame University Eminent Speakers’ series Inaugural Lecture, Fremantle, 26 February 2014 where his Honour suggested: ’It might be time to consider trading our Rolls Royce for a lighter, more contemporary and more fuel efficient vehicle which will get us where we need to go just as effectively and perhaps more quickly’.

Paras 10.70 – 10.87.

Para 11.1: ‘Praxis essentially means the practical application of theory, or the process of enacting a theory. ..It is a concept most familiar to the disciplines of philosophy, politics and education.’

10.

See the Legal Profession Uniform Admission Amendment (Academic Areas of Knowledge) Rule 2017 made on 20 April 2017 and published on the NSW Legislation website on 24 April 2017.

Conclusion This comprehensive and excellent text is essential reading for Dispute Resolution practitioners and anyone interested in the future of legal practice. It is scholarly and offers authoritative analysis of this area of practice that is of fundamental importance to society.

BOOK REVIEW

Can You See the Mountain? A Legal Journey with a Few Diversions By Peter Heerey (Hybrid Publishers, 2017) Review by Nicholas Hasluck

Unlike the situation everywhere else in Australia, in Victoria, as in Ireland, instructing solicitors sit facing counsel at the bar table with their backs to the judge. This tradition is usually viewed with surprise if not alarm by west coast counsel when first experienced or even upon hearing about it. To face the combative gaze of an irritable judge can be confronting, but then, upon glancing downwards, to meet the upward staring eyes of an instructing solicitor, bewildered or terrified by the crossfire overhead, must surely be sheer hell. According to Victorian practitioners the system works well. It enables eye contact between judge and counsel, counsel

and solicitor, and solicitor and client. It means also, I surmise, that in the heat of battle, if flak from the Bench intensifies, counsel doesn’t have to look behind him while feverishly casting about for fresh instructions or a last desperate line of retreat. The system ensures that if counsel cops a fatal bullet from the Bench it will be seen to be taken heroically in the chest. This reminder of the Victorian (or quasi Irish) court tradition comes from Peter Heerey’s recently published memoir of his life and times in the law: Can You See the Mountain? A Legal Journey with a Few Diversions. It is a reminder also that there are at least a few Victorian lawyers

who are prepared to look behind them and draw attention to various legal rites of passage: memorable or amusing as the case may be . The willingness of this widely-respected former judge to look back may be partly due to Heerey’s comparatively late arrival at the Victorian Bar. Peter Heerey was born in Hobart shortly before the outbreak of the Second World War. He went to school at St Virgil’s College, completed a period of National Service, and attended law school at the University of Tasmania in the mid to late 1950s. Three of those in the class ahead of him won renown in the local profession and went on to become Governors of 43

Tasmania – Guy Green, William Cox and Peter Underwood. His classmates included Michael Hodgman who became well-known in federal politics. Heerey notes in passing that across five years of classes at law school there were at the time of his intake about sixty students. Of these, only one was female. These statistics bear upon the nature of the era and may have a bearing also upon a controversy concerning one of Heerey’s clients. A Professor of Philosophy at the local university, Sydney Sparkes Orr, was sacked for seducing a student, Suzanne Kemp. Orr’s claim for wrongful dismissal was rejected by the Supreme Court, and eventually by the High Court. This socalled ‘assault’ upon academic freedom led to protests on the local campus and then to a nationwide black ban being placed on the University’s attempts to fill the vacant position. At the time, like many others on the campus, Heerey was an Orr supporter. As an articled clerk, he even finished up doing some advisory work for the defrocked Professor. Now, however, as often happens upon revisiting the zeal of yesteryear, the scene is not the same. Heerey concedes that ‘a supposedly conservative bunch of judges on the High Court was probably several decades in advance of feminist thought in seeing the matter through the prism of exploitation and gender-based power relationships.’ The High Court held that Professor Orr had taken advantage of his student’s feelings for him and was therefore unfitted for the position he held. After travelling overseas, and spending some years as a legal practitioner in Hobart, Heerey decided to take a risk and seek admission to the Bar in Melbourne. He was fortunate enough to secure as a Master, James Gobbo, later a Supreme Court judge, and later still Governor of the State of Victoria. The next few chapters of the book are devoted to the author’s adventures and misadventures as a barrister and his supportive family life. His staple work in the early years included appearances in Magistrates’ Courts in cases arising from motor vehicle collisions, colloquially known as ‘crash and bash’. The author also appeared in criminal jury cases, sometimes for a Brief from the Public Solicitor and sometimes as prosecutor. He recalls that in a criminal case involving fraud, when the crossexaminer unwisely sought to undermine the prosecution case by asking the female complainant whether she had heard the saying ‘Hell hath no fury like a woman scorned’, she replied with a furious glare:

44 | BRIEF DECEMBER 2017

‘I’d like to change that to “a woman whose money was stolen”.’ In the early 1980s, as his common law practice expanded, Heerey moved to Latham Chambers at 400 Bourke Street with a congenial group of colleagues. He began to handle a wide range of commercial cases. These included a mining-related case that arose out of the seizure of the Paguna Mine in Bougainville – at that time the largest copper mine in the world – and environmental concerns referable to the spread of waste in the vicinity of the mine. He admits to being on the side of the insurers who ‘in the uninspiring way of their trade’ relied on some fine print with a view to excluding loss caused by insurrection, rebellion or civil war. His trips to the wilds of Papua New Guinea during the Paguna litigation is contrasted with his trip to the Privy Council in London on behalf of Hancock and Wright who were involved in a dispute with Hamersley Iron over the royalty agreement for a mine at Mount Tom Price. He recalls a pleasant conference ‘poring over a map of London and discussing the relative merits of the Dorchester and the Savoy.’ After eighteen years at the Victorian Bar Heerey was appointed Queen’s Counsel in 1985. He says that probably the single most memorable case in all his time as an advocate concerned the question of whether barristers could be sued for negligence, a case that finished up in the High Court: Giannarelli v Wraith (1988) 165 CLR 543. The case turned on some special features of legal practice in Victoria – it was in this context that mention is made of the unusual seating system in Victorian courts – but, in the end, before a Bench of seven High Court judges, a critical vote in favour of the immunity came from Justice Brennan. Heerey notes that the immunity was approved again by the High Court a few years later although, in the meantime, the House of Lords had abandoned the special privilege. By then, however, Heerey had been appointed as a judge of the Federal Court by the Hawke government. One might think that if someone has been a barrister for several decades that person would have a pretty good idea of what it would be like to be a judge. Not so, according to the author of this book. The newly appointed judge soon discovers that the dynamics and pressures are entirely different. Fortunately, he found that judicial life suited his temperament and he liked the type of work on the Federal Court – public law and

commercial law including intellectual property. Relations between his fellow judges were excellent. When Heerey came to the Federal Court from the Bar in Melbourne it occupied the former High Court building in Little Bourke Street (the High Court having moved to its majestic new building in Canberra in the late 1980s) but it wasn’t long before Heerey was recruited to a judicial group involved in the planning for a new court building that opened for business in March 1999. It is apparent from his memoir that planning work of this kind was a welcome diversion from the general flow of hearing and deciding cases, as were trips to his old stamping ground half a dozen times a year because there was no resident judge in Tasmania. Heerey left the Bench in 2009 upon reaching the prescribed retirement age. The final chapters of his book contain some pertinent reflections on matters relevant to the judicial process such as judgment writing and the role of expert witnesses. While describing the recently created ‘Hot Tub’ technique for receiving expert evidence he feels obliged to confirm, possibly to curb any virginal sense of alarm amongst the uninitiated, that the witnesses do not literally romp around in a hot tub – constraints of modesty and court design dictate a less exciting solution. They simply sit at the same table with a view to sorting out areas of agreement and disagreement. His post-judicial reflections, which include some lively anecdotes about his attendances at various conferences and skiing resorts, are similar in tone to his earlier book of reminiscences Excursions in the Law. They are often spiced with some ingenious versifying, mostly in rhyming couplets. The perennial question, whether there is life after stepping down from the Bench, is also addressed. This leads to an account of Chairing the Australian Electoral Commission and his recent conduct of the Lawler inquiry in which he was required to advise the Federal Minister for Employment whether there was a reasonable basis for both House of Parliament to consider advising the Governor-General to remove a Vice President of the Australian Work Commission on the grounds of proved misbehaviour or incapacity. The author’s account of his legal journey provides a clear answer to the perennial question mentioned above. Peter Heerey still has much to offer, and it probably won’t be long before he produces another fascinating book about the highways and byways of the law.

FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Property – “Fly in fly out worker” was in a de facto relationship In Cuan & Kostelac [2017] FamCAFC 188 (12 September 2017) the Full Court (Strickland, Aldridge & Loughnan JJ) dismissed with costs Ms Cuan’s appeal against Judge Baumann’s declaration that she and Mr Kostelac had lived together in a de facto relationship. She argued that the parties were never de facto partners, that while she lived at the respondent’s home in “Town L” she was a fly in fly out worker who travelled to live with her children in “City N” for 2 weeks after each 6 week block of work in Town L. She said that in Town L she lived in the respondent’s flat rent-free in exchange for her looking after him, doing his housekeeping and helping him manage his money ([4]). She said that they travelled overseas together between 2010 and 2014 as friends. Judge Baumann found that the parties lived together in a de facto relationship between April 2007 and late 2010, also granting the respondent leave to issue his property proceedings pursuant to s 44(6). The Full Court said (at [7]) that Judge Baumann in the context of the matters set out in s 4AA(2) of the Family Law Act had found: •

A common (though not exclusive) residence in Town L

•

A sexual relationship (in Town L only)

•

The Full Court said (at [15]) that “if the finding of a de facto relationship is open on the evidence then no error will be identified, even if other judges may have come to a different conclusion”. Child support – Mother wins appeal against setting aside of binding agreement despite father’s inadequate disclosure In Telama & Telama (No. 2) [2017] FamCAFC 194 (15 September 2017) the Full Court (Ryan, Kent & Cleary JJ) allowed the payee mother’s appeal against Judge Henderson’s decision to set aside a binding child support agreement. The payer father successfully argued at first instance that the agreement should be set aside as his income had decreased from $710,000 per annum (when the agreement was made) to $220,000 per annum and he had no other financial resources from which to pay child support. The Full Court said (from [15]): “The central issues in this case were whether the respondent’s changed financial circumstances constituted an exceptional circumstance for the purpose of s 136(2)(d) [of the Child Support (Assessment) Act] and amounted to hardship within the meaning of the provision. ( … ) [19] The respondent conceded on appeal that he did not comply with his obligations as to disclosure … that he had been served with a Notice to Produce … but failed to provide … his tax… returns for the three most recent financial years … [which] was particularly significant as … his case for the 2013 agreement to be set aside was based on:

Significant intermingling of funds (Ms C had authority to operate Mr K’s bank accounts. $93,000 had passed from his accounts to hers and been used to reduce mortgages over two properties of hers in City N)

•

Overseas travel but not as a mutual commitment to a shared life (separate rooms or beds)

•

Others in Town L saw them as a couple (although little evidence)

•

Evidence of Ms C’s children that the relationship was not intimate

•

A material reduction in his income …

•

That he had since become liable for ‘significant and unmanageable debts’ including … to the Australian Taxation Office; and

•

That he had since become liable for a significant claim to the liquidator of a company in which he had an interest. [20] Further, it was [his] contention that he would suffer hardship because he could not meet [his] obligations … and had negligible other assets and financial resources on which to call. ( … ) [22] The trial transcript records her Honour’s disquiet at the respondent’s inadequate disclosure and her recognition that full and frank disclosure was central to the Court’s ability to determine the application ( … ) [29] However, in this case the primary judge did indeed make findings as to exceptional circumstances and hardship to the respondent, notwithstanding his inadequate disclosure. In our view, where the fact of non-disclosure was so obvious and material it was necessary for the primary judge to explain how and why the respondent’s oral evidence and unsworn explanations were sufficient to meet that deficiency and resolve the confusion created by his failure, for example, to produce necessary and requested documents. Her Honour’s reasons do not address that conundrum and in circumstances where the legal onus sat with the respondent the findings as to ‘exceptional circumstances’ and ‘hardship’ were not available.”

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

DROVER'S DOG It has been a chilly winter for your furry friend, back from four years of wandering the globe (or parts of it) since that phenomenal win on lotto back in 2013. Alas, your Dog has discovered, like many lotto winners, that the funds ultimately run dry, especially when pseudo friends and associates put the touch on him! The only breeds which have successfully understood that money falls from the money tree if one shakes it hard enough, are politicians, councillors and sports administrators. This uncanny ability to spot the tree and to shake it enables them to enjoy the pleasures of national and international travel in seat 1A and 1B, helicopter travel, Olympic Games and the like. They also have the innate ability to avoid questions by ignoring them. These breeds have fine-tuned the art of getting a long, pointy snout into the feeding bowl. The Dog, as a rotund and likable pup, stands in awe of the sharp snouts of greyhounds, but politicians and administrators leave them standing by a country mile, both in terms of speed getting to the bowl, and in submerging the snout without having to come up for air. When one looks, for instance, at the administrative skills of the Australian Rugby Union, in destroying the Western Force and the hopes and aspirations of somewhere between 20,000 to 30,000 supporters, instead promoting teams such as the Melbourne Rebels and the Brumbies, one despairs. In the case of the Dog he reaches for a drink! Your Dog recently ventured to Spain to play the exquisite golf course of Valderrama, which is heaven on earth, thereafter visiting Sevilla, Cordoba and Granada. Valderrama is as green as a rye field in York after the winter rains, covered with a couple of thousand cork trees. Your Dog was happier than the proverbial dog in a hub cap factory, as he wandered around looking for errant golf balls. When he mishit the ball there was a soft and satisfying clunk as the ball sank into cork, unlike the harsh thud

46 | BRIEF DECEMBER 2017

of ball against eucalyptus! The Dog has a remarkably refined palate, thoroughly enjoying glasses of Pedro Ximenez dry sherry on a daily basis to ensure he was not smitten by some local disease, and excellent reds, mainly from Rioja, such as Montesa Crianza Rioja. Pricing was very reasonable, even in euros. The Spaniards pride themselves (with good cause) on acorn fed pork, Iberian lomo de ballota, their repertoire including dishes such as Iberico carpaccio, acorn fed pork fillet and then, of course, beef dishes such as rabo de toro. Apparently Spain is one of the biggest consumers of sea food. It produces something like 45% of the world’s olive oil. Roads and rail transport were superb. Your Dog spent some time cogitating how to purchase a leg of Iberian smoked pork, wrapped in a cryovac pack, to see whether those studious beagles at Perth Airport would sniff it out. He reluctantly concluded that they probably would! Since his return the Dog has spent some time hanging around the back door to the Re Store in hope a scrap or two might come his way – it is pricey stuff. The Dog’s knowledge of history of Spain is unremarkable. It was with considerable interest that he learned more about the conquest of the Andalusian regions by the Muslims. Córdoba, for example, was blessed by a benign Muslim ruler, Abd ar-Rahman I and ultimately his grandson, Abd ar-Rahman III who declared himself caliph of Al-Andalus and independent of Baghdad. Córdoba was renowned world-wide for its development of astronomy, mathematics and botany. Unfortunately, Ferdinand captured Córdoba in 1236 and its fortunes reversed. A succession of Catholic rulers followed, and under Carlos I the Catholic Church leaders in 1600 or so caused half the Mezquita to be destroyed to build a Catholic Church in the middle of it. From 1480 onwards the Catholic monarchs commenced persecution of those who did not practise Christianity – in particular Jews and Muslims who

refused to convert to Catholicism and were persecuted under Papal edict. The Dog was told that an estimated 12,000 people were murdered. 200,000 Jews left rather than convert. Jews had to convert or face death, could not hold any public office if they had or were said to have had any Jewish blood at any stage. They either left or converted, while those who converted were required to wear clothing that identified them as Jews and were called pigs. Strange how history later repeated itself. Wandering through the streets of Córdoba the Dog happened upon a museum of torture equipment, said to have been used in those days. After wandering through the place for an hour or so, the Dog was so devastated he had to leave. As it happens Mrs Dog, who is as tough as an American pit bullterrier, with sharper teeth, admitted she was a bit shaken. So we departed the museum to consume large quantities of sangria, with Iberico carpaccia. We then tried a delicious lettuce salad with garlic and anchovy, which elevated the lettuce to 5 star level. What a treat! Without wishing to upset the editor, one of the rather simple tortures was to suspend the accused, man or woman, upside down from a frame, feet and hands spreadeagled and tied to the frame. The executioner, for that is what he was, and a mate then sawed the victim with a double handed saw from the crutch to about the chest, by which time the victim usually died. On a busy day it probably took a few hours to complete, no doubt pausing to invite the victim to repent, and blessing him or her in the name of God. The Dog has often thought, as he sits in Hay Street mall watching the world go by, civilisation is practically skin deep. Many of the atrocious things they did were aimed at women, and machines of torture were so designed, from the concept of a chastity belt, and much worse. The Dog leaves that to your imagination. Some years ago, when the Dog had a

crack at studying law, he came to hear of various concepts such as the right to fair trial, presumption of innocence, right to remain silent etc. That is what apparently sets the accusatorial legal systems apart from inquisitorial systems. The Inquisition, with its Court of Star Chamber, was the antithesis of due process. The accused had no right to know the accuser, the charge, the alleged wrong doing or the right to a defence. When those in charge, whether police, soldiers, commanding officers, prime ministers or presidents condone torture or legitimise trial without the safeguards history has taught us we need, we are back in the 1400s and before. Wandering around the streets of Granada at night the Dog heard the beguiling sounds of a late night guitar busker playing Asturias by Isaac Albéniz in the city square, so the Dog settled down, curled his paws up under his chest and listened to the magic until the guitarist, Marcus Toscano, had to go. Your Dog has always revelled in

the music of Concierto de Aranjuez, composed by Joaquin Rodrigo. When one considers he was blind, his ability to compose such music was exceptional. The Dog has long directed that following his departure the Asturias and the Concierto be played to celebrate the occasion – no maudlin photos of the Dog chasing a ball, chewing a ham bone, nursing young pups or some other athletic display. The Dog is pleased to reassure the editor that the speed at which the UK Border Force process arrivals is not much different from Perth International: three officers manning 30 stations with 600 arrivals. The Dog was always hot on the arithmetic involved in the question if 1 man ploughs an acre in one day, how many acres would 30 men plough in one day? Try relating that to processing one passport every four minutes. The Dog entertained the thought of sending an SMS to the Minister of the Interior, but Mrs Dog pointed to a large sign stating the Ministry takes insults to staff very seriously, and that time stitching

mailbags is one penalty. Bearing in mind the Spanish torture equipment, the Dog decided to leave the Ministry in peace, to allow the staff to attend the cricket at Lord’s: the Dog is a wuss after all.

The Dog notes the following exchange from a Family Court matter, in which a lawyer is cross-examining a psychologist about the results of some testing: Witness: The test didn’t show any signs of ADHD. There were some indications of conduct disorder. Lawyer: Explain to me, because I’m a plebiscite, what’s conduct disorder? At least the lawyer is not claiming to be a non-binding postal survey. This line of questioning might well catch on as a method insisting on a 'Yes' or 'No' answer.

Send your submissions to the Dog via brief@lawsocietywa.asn.au

Introducing a new LawCare WA service – Employee Relations Advice Line

Free help for you when you need it on serious employment issues The Law Society is trialling a six month arrangement with the Chamber of Commerce and Industry of Western Australia whereby members can access a team of industry experts within the CCIWA Employee Relations Advice Centre, free of charge, for telephone advice on a range of human resources and employee relations issues relating to: • Wage rates • Award and agreement interpretation • Performance management and termination • Equal opportunity, bullying and harassment • Employee minimum entitlements • Unfair dismissals

Contact (08) 9365 7660 or visit lawsocietywa.asn.au/lawcarewa The telephone advisory service is available to Law Society members from 8am to 5pm, Monday to Thursday and 8am to 4pm on Friday. The phone service is closed on weekends and public holidays. Where assistance beyond the telephone advice is required, the CCIWA Employee Relations Consultancy team can offer support and representation at your cost. This service is not included as part of the Law Society’s LawCare WA programme.

LawCare WA is available to members of

Service provided by CCIWA

Law Council Update

NT Royal Commission: ‘Gamechanging’ recommendation raising age of criminal responsibility needs urgent adoption Key recommendations in the shocking NT Royal Commission report – including the Australian-first recommendation that the age of criminal responsibility be raised from 10 to 12; and that no child under 14 should be sentenced to detention, except in the most serious cases – need urgent adoption. Law Council of Australia President, Fiona McLeod SC, said today’s Royal Commission report uncovered shocking treatment of children and young people within the juvenile justice system and that an immediate NT and national response was required. “Children belong in their communities, with their families and support networks. The detention of children should be a last resort and never a first-step,” Ms McLeod said. “Raising the age of criminal responsibly is a game-changing recommendation that, if adopted, will drastically alter how the criminal justice system views the criminality of some of our youngest children. “A 10-year-old’s brain is drastically different to that of a teenager’s. The Royal Commission’s recommendation reflects this in the most decisive way. “The Law Council has previously recommended raising the age of criminal responsibility to at least 12, which is consistent with the Convention on the Rights of the Child (CROC). “Raising the age of criminal responsibility to 12 years of age would further Australia’s commitments to fostering the best interests of the child as signatories of CROC.

48 | BRIEF DECEMBER 2017

“However, raising the minimum age of criminal responsibility should not be used to justify the removal of the doctrine of doli incapax which presumes that a child under 14 does not know that his or her conduct is wrong unless proved otherwise,” Ms McLeod said.

Law Council of Australia President, Fiona McLeod SC, said the peak legal body has supported marriage equality for over a decade and was delighted with today’s result. But she said it is important to understand what today’s result does and does not mean.

Ms McLeod said today’s report further demonstrated ‘tough on crime’ approaches do not work. The NT has the highest rate of children and young people in detention in Australia, with an overwhelmingly disproportionate impact on Aboriginal and Torres Strait Islander children.

“The people of Australia were asked if they wanted same-sex couples to marry and they have delivered a resounding ‘yes’,” Ms McLeod said.

“This is clearly a backwards approach – there must be more funding for the beginning of the cycle, with an emphasis on early intervention, prevention, rehabilitation and community-led diversion programs. “As the Royal Commission has indicated, measures that focus on such outcomes are not only essential for the community, but also have the ability to result in considerable financial savings for Government. “This is a historic opportunity to address youth incarceration rate and the raft of social welfare and child protection issues being experienced nationally. This is certainly not just an NT issue,” Ms McLeod said. The Law Council will carefully consider the recommendations and work with its Constituent Bodies, including the Law Society of the NT and the NT Bar Association, on any response required.

It’s a ‘yes’ for marriage equality! Now for legislation that does not discriminate With the ‘yes’ vote now confirmed, Parliament must move swiftly to introduce legislation that legalises marriage equality while preserving important anti-discrimination protections for LGBTI Australians.

“They have not been asked if Australia’s anti-discrimination protections should be wound back. This important distinction should be front of mind for all Parliamentarians. “Australians have voted for marriage equality, they have not voted to erode anti-discrimination protections. “Freedom from discrimination is a fundamental human right. “Discrimination on arbitrary grounds, including sexual orientation is contrary to Australia’s international human rights obligations.” Ms McLeod said while freedom of religion is crucial right, there is no need for drastic change. “The changes suggested in Senator Dean Smith’s Bill offers a reasonable compromise and a fair balance of rights,” Ms McLeod said. However, she restated the Law Council’s opposition to legislation that sought to wind-back protections against discrimination. “We strongly warn against the passage of the Bill released by Senator James Paterson,” Ms McLeod said. “Senator Paterson’s Bill, or any variant of it, would encroach on Australia’s long-established antidiscrimination protections in dangerous and unprecedented ways.”

CRYPTIC CROSSWORD Solve the Cryptic Crossword

Cryptic crossword for Brief

Across

1. Ascend by adding sea leg (5)

4. Unseemly pimp, o queen (8)

10. Festive tinsel, eve carol (6, 5)

11. Ring brother back

12. I sin in queue for

14. It’s obvious that I turned back Ned this

15. Communist inqui reindeer’s property (

16. Legal provision th reportedly confers gi

19. Broken abacus los to dive (5)

21. Disputes over cou attire? (8)

25. WA town from w meets ocean (7)

26. Lease back after f wine seller (7)

27. Hold … now spill

28. Collision comes to for Spooner’s song (6

30. Misty pedanticall wrong key (8)

31. Quotient reason ( Across

Down

1. 4. 10. 11. 12. 14. 15. 16. 19. 21. 25. 26. 27. 28. 30. 31.

1. 2. 3. 5. 6. 7. 8. 9. 13. 17. 18. 20. 22. 23. 24. 29.

Ascend by adding sea leg (5) Unseemly pimp, or obscene queen (8) Festive tinsel, evening carol (6, 5) Ring brother back (3) I sin in queue for food (7) It’s obvious that I’ve turned back Ned this time (7) Communist inquired into reindeer’s property (3, 5) Legal provision that reportedly confers gifts (5) Broken abacus loses a way to dive (5) Disputes over court attire? (8) WA town from where river meets ocean (7) Lease back after five, in wine seller (7) Hold … now spill (3) Collision comes together for Spooner’s song (6, 5) Misty pedantically hit the wrong key (8) Quotient reason (5)

You put it in an ATM, notes Rake (4, 4) I will have contracted something! (3) Flexible leave in regional Victoria (7) Attractor makes mum $1,000 profit (6) Try again for the renewable energy target? Bad liar (7) Pursuing criminals who shot up coin store (11) Clever machines deceived RBS, too (6) Subsequent hearing after article appended (7) Allegations upset me – indistinct? Not I! (11) Foolishly, nigh evilly spoken (7) South-east spores destroy coffee (8) Be a July cuckoo bird (4, 3) Solicitors and barristers hide where waves break (4, 3) Improve about template (6) Head of university starts with luck (6) Allow the French time (3)

See page 50 for answers

New Members

Congratulations The Law Society of Western Australia’s Accreditation Committee warmly congratulates the six candidates who passed the biennial Family Law Accredited Specialisation assessment programme in 2017 and whose names have been entered on the register of Accredited Family Law Specialists:• Kimberley Morrison • Devin Sanghavi • Adam Somerville-Brown

• Lynette Hill • Nicola Jansen • Daniel Loreck

These newly accredited specialists bring the total number of Accredited Family Law Specialists in Western Australia to 47. The accreditation scheme was established by the Law Society of Western Australia in 1992 to provide encouragement to legal practitioners in Western Australia wishing to specialise. To date, the only group that has sought specialist accreditation in Western Australia are Family Law practitioners. Participation is voluntary. In addition to the CPD requirements that apply to all Western Australian legal practitioners, Family Law practitioners who submit to the accreditation scheme undergo a rigorous assessment process, periodic reaccreditation, and annual continuing legal education in Family Law. As Family Law accreditation is a national scheme, Accredited Specialists may also seek mutual recognition of their accreditation if they move interstate. For practitioners seeking more information on the scheme, please contact accreditation@lawsocietywa.asn.au

Professional Announcements

New members joining the Law Society (November 2017) Ordinary Membership Ms Yuen Fan Keung AH2 Legal

Restricted Practitioner Mr Jonathon Chiam DLA Piper Australia Mr Paul Constantine Costi Hayes Poli Legal Mr Zachary Friend PricewaterhouseCoopers Mrs Faiza Gabriel Patrick Legal Mr Daniel Griffin Corinne Griffin & Co Mr Oliver Mashinini PricewaterhouseCoopers Mr Michael Massarotto Slater & Gordon Limited Mr Joseph McCormack JDK Legal Services Pty Ltd Mr Andrew Seaber Murcia Pestell Hillard Mr Daniel Tassone Williams & Hughes Miss Dominique Wong Doyles Construction Lawyers

Career moves and changes in the profession Associate Membership Mr Julien Blais Corrs Chambers Westgarth

wealth of knowledge, depth and experience to the Murfett Legal team and expands our specialist practice areas to include complex Tax Law.

Mike Frampton

Murfett Legal In keeping with our commitment to provide our clients with resultsfocussed pragmatic advice and strong representation, we are extremely pleased to welcome Mike Frampton, as Principal - Tax, Commercial & Estate Planning, to head up the commercial team for the firm. Having previously worked in Australia at three top-tier national/international firms for over 25 years, with more than 13 of those years being at partner level, Mike brings a

Mike has worked with large national and international public companies, large and small private companies, partnerships, trusts and other business enterprises and high wealth individuals. He genuinely enjoys the technical challenges associated with tax and commercial law and the opportunities to assist clients by providing practical solutions to complex tax and commercial issues. He seeks to foster relationships with clients by being highly visible and approachable when engaging with people to provide client solutions. Mike can identify relevant issues and present persuasive arguments to manage client expectations and achieve effective and commercial outcomes.

50 | BRIEF DECEMBER 2017

Mr Raymond Dunne Edith Cowan University School of Business & Law Mr Rhodry Korb University of New England Mr Subodh Kumar Murdoch University - School of Law Ms Yassamin Olson Danielle Bechelet

Avon Legal Avon Legal is delighted to announce the appointment of Danielle Bechelet as an Associate of our Estates team. Danielle has experience in all areas of Estate Planning and is committed to effecting the testamentary wishes of her clients. She also has experience in complex Deceased Estates matters. We extend our congratulations on her promotion.

Mr Jason Rickersey Murdoch University - School of Law Miss Olivia Tate University of Western Australia Law Faculty

Cryptic Crossword Answers Across: 1.) Climb 4.) Improper 10.) Silentnight 11.) Orb 12.) Cuisine 14.) Evident 15.) Rednosed 16.) Claus 19.) Scuba 21.) Lawsuits 25.) Exmouth 26.) Vintner 27.) Own 28.) Jinglebells 30.) Mistyped 31.) Ratio Down: 1.) Cashcard 2.) Ill 3.) Bendigo 5.) Magnet 6.) Retrial 7.) Prosecution 8.) Robots 9.) Annexed 13.) Indictments 17.) Naively 18.) Espresso 20.) Bluejay 22.) Sandbar 23.) Reform 24.) Chance 29.) Let

Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

December 2017 Membership Event Thursday, 7 December End of Year Celebration Lamontâ&#x20AC;&#x2122;s Bishops House

February 2018 CPD Seminars Wednesday, 14 February For the love of diversity: current workplace gender diversity initiatives The Law Society of Western Australia Thursday, 15 February Employment Law Forum The Law Society of Western Australia

Friday, 16 February Ethics on Friday: Ethical duties for Family Lawyers The Law Society of Western Australia Friday, 23 February Law Summer School 2018 The University Club, Crawley

March 2018 CPD Seminars Thursday, 8 March Online legal research skills including accessing free resources Online Webinar Wednesday, 14 March Nobody Told Me Thereâ&#x20AC;&#x2122;d Be Days Like These! - Stress, Pressure, & Ethical Decision-Making in the Practice of Law The Law Society of Western Australia Wednesday, 14 March U North or True North? The Challenges of Ethical DecisionMaking for In-House Counsel The Law Society of Western Australia

Wednesday, 21 March Drafting guidelines for effective correspondence Online Webinar Thursday, 22 March Waiver of privilege in the commercial context The Law Society of Western Australia Thursday, 22 March Maximising your billable hour through managing your time and building resilience 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 8692. For all upcoming events and further information please visit lawsocietywa.asn.au

52 | BRIEF DECEMBER 2017

Friday, 23 February 2018 | The University Club | Crawley, Western Australia

CONNECTED | INFORMED | GLOBAL With thanks to our sponsors Venue sponsor

Concurrent session sponsor Session: Diversity and inclusion in legal practice

Tea break sponsor

Plenary sponsor Session: Fragmenting equities

Keynote sponsor Session: Leadership and strategy: lessons learnt from corporate Australia

PROGRAMME Time

Description and Speakers

7.30am – 8.10am

Registration and breakfast

8.10am – 8.20am

Welcome to Country by Barry McGuire

Introduced by/Chair

Opening address by Hayley Cormann, 2018 President, The Law Society of Western Australia; Senior Associate, Clayton Utz 8.20am – 9.50am

10.00am – 11.15am

1. Opening breakfast plenary: Panel discussion – What are the biggest challenges facing the legal system in the next five years, and what can we do to address these challenges Facilitator: The Honourable Robert French AC, The 15th Chancellor of The University of Western Australia Peter Quinlan SC, Solicitor General of Western Australia Helen Creed, Executive Director, Community Legal Centres Association (WA) Inc. Sarah O’Brien-Smith, Convenor of the Young Lawyers Committee and Associate, HopgoodGanim Lawyers Catriona Macleod, Director, Cullen Macleod Lawyers Nigel Hunt, Partner, King & Wood Mallesons

Hayley Cormann 2018 President, The Law Society of Western Australia; Senior Associate, Clayton Utz

2. Keynote plenary: Judicial review of the substance of Administrators’ decision-making: how far is too far? The Honourable Justice David Stratas, Federal Court of Appeal, Canada

John Fiocco Convenor, Organising Committee, Law Summer School; Barrister, Fourth Floor Chambers

11.15am – 11.45am

Morning Tea

11.45am – 1.15pm

Concurrent Sessions 3.A Domestic violence and how well we deal with it Commissioner Chris Dawson, Commissioner of Western Australia Police Force Amanda Forrester SC, Director of Public Prosecutions for Western Australia Her Honour Judge Julie Wager, District Court of Western Australia Karen Farley SC, Appeals Consultant, Legal Aid Western Australia

The Honourable Justice Joseph McGrath Supreme Court of Western Australia

3.B Diversity and inclusion in legal practice Dr Ambelin Kwaymullina, Lecturer and Indigenous Advisor, Law School, The University of Western Australia Fadzi Whande, Manager Inclusion and Diversity, The University of Western Australia Asanka Gunasekera, Barrister, Francis Burt Chambers Charlotte Wallace, Senior Member, State Administrative Tribunal

Dr Andrew Lu OAM Manager Professional Development The Law Society of Western Australia

3.C Multidisciplinary practices Professor Gino Dal Pont, Law School, University of Tasmania Philippa Rezos, Law Complaints Officer, Legal Profession Complaints Committee Chris Smailes, Partner, EY Jonathon Leek, Partner, Deloitte Australia

Alain Musikanth 2017 President, The Law Society of Western Australia; Barrister, Francis Burt Chambers

3.D Some important High Court commercial law cases Darren Jackson SC, Senior Counsel, Francis Burt Chambers Clara Wren, Barrister, Quayside Chambers Eleni Kannis, Associate to The Honourable Justice Geoffrey Nettle, High Court of Australia

Brahma Dharmananda SC Barrister, Quayside Chambers

1.15pm – 2.00pm 2.00pm – 3.15pm

Lunch 4. Plenary session: Fragmenting equities The Honourable Justice Julie Ward, Chief Judge in Equity and Judge of Appeal, Supreme Court of New South Wales

3.15pm – 3.45pm

The Honourable Justice Janine Pritchard Supreme Court of Western Australia

Afternoon Tea

3.45pm – 4.45pm

5. Closing keynote plenary: Leadership and strategy: lessons learnt from corporate Australia Diane Smith-Gander, Non-Executive Director Wesfarmers Limited

4.45pm – 4.50pm

Final summary of the day and closing comments Associate Professor Natalie Skead Dean and Head of School, Law School, The University of Western Australia

4.50pm – 6.30pm

Networking Drinks

Hayley Cormann 2018 President, The Law Society of Western Australia; Senior Associate, Clayton Utz

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