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The official journal of the Law Society of Western Australia
Volume 37 / Number 1 february 2010
In this issue:
Inside the Coroner’s Court
and
Australia’s First Litigants
Also:
New President’s First Report
Society Councillor Wins Human Rights Award
Legal Help for Toodyay Fire Victims
Get y
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Julianna Shearn B.Juris, LL.B0401 001 [email protected]
Jennifer Halling BA, M.Ed0412 880 [email protected]
Corporate lawyer – mid to Senior level This is a fabulous opportunity for a mid to senior level corporate lawyer to join a leading boutique law firm. Our client offers the scope to work within a highly regarded team and play a pivotal role in the expansion of the firm. With a strong and stable client base, you will have plenty of high quality work, keeping motivation up to its highest level.
resources lawyer - Senior associate to Partnership levelWe have a very attractive role for an experienced energy & resources solicitor. This is a golden opportunity to join a highly regarded law firm. Our client has extensive industry and transactional experience, nationally and internationally and is now looking to expand its team of experts. Working on matters of the highest calibre, you will be advising on large transactions in the energy & resources and mining industry, drafting and negotiating joint venture and farmin agreements, drafting and advising on contracts, supply agreements, advising on major projects and upstream oil & gas projects. Our client is looking for a highly astute solicitor around senior associate to partnership level, with experience gained from a leading national law firm, highly regarded boutique law firm or in-house role. You will have a stellar background in energy & resources and ideally, you will have a client base to bring.
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Commercial litigation and Insolvency lawyersJunior to mid level – We have several opportunities with award winning, top tier firms. Join the best of the best and enjoy high calibre and exciting instructions. As well as superior work, you will also benefit from top of the range remuneration and a dynamic and vibrant environment.
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February 2010 1
SUBMISSION OF ARTICLES Contributions to Brief are always welcome. Please note that the publication deadline for each edition is the 1st of the previous month. For further details, please contact Rob Kerr, [email protected]
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.), the Brief Editorial Committee or Cambridge Media. No responsibility whatsoever is accepted by the Society, the Editorial Committee or Cambridge Media for any opinion, information or advertisement contained in or conveyed by Brief.
Volume 37 Number 1 february 2010
Cover storyInside the Coroner’s Court .........................................................................................................8
featuresLegal Help for Toodyay Fire Victims ..........................................................................................15
Appointment of Senior Counsel ...............................................................................................15
Society Councillor Wins Human Rights Award ..........................................................................16
Australia’s First Litigants ...........................................................................................................18
Post-Bench Life Keeping Steytler Busy.......................................................................................23
Person of Interest: Paul O’Brien ................................................................................................24
Kott Gunning’s 90th Anniversary ..............................................................................................27
Meetings of the Minds .............................................................................................................28
CLAS for the Sandwich Class ....................................................................................................30
International Arbitration: A Parisian Perspective ........................................................................32
Review: 22nd LAWASIA Conference .........................................................................................34
Risk Management ....................................................................................................................35
The Fool for a Client ................................................................................................................36
Kirby Calls for Human Rights Law .............................................................................................38
Website Terms and Conditions .................................................................................................39
regularsPresident’s Report ......................................................................................................................2
Editorial .....................................................................................................................................5
Executive Director’s Report .........................................................................................................6
Off the Press ............................................................................................................................17
Pam Sawyer .............................................................................................................................22
From the Vine ..........................................................................................................................41
Film Review ..............................................................................................................................42
Book Reviews ...........................................................................................................................43
Law Bulletin .............................................................................................................................44
Law Council of Australia Update ..............................................................................................45
Thomas Hurley Case Notes .......................................................................................................46
Classifieds ................................................................................................................................48
Professional Announcements ....................................................................................................48
Brief is printed on recycled paper
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editor Ronald Bower
editorial Committee Amanda Bishop,
Gregory Boyle, Catherine Elphick, Alison Gaines,
Richard Graham, Matthew Keogh, Rebecca Lee,
Alain Musikanth, Kate Norman, Pat Saraceni,
Fiona Walsh, Simon Watters, Joel Yeldon
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ISSN 0312 5831
President Hylton Quail
Senior Vice President Simon Watters
Vice President Dr Christopher Kendall
Treasurer TBA
ordinary members Konrad De Kerloy,
Judith Fordham, Graham Goerke, Pamela Hass,
Belinda Lonsdale, Greg McIntyre SC,
Denis McLeod, Steven Penglis, John Prior,
Shane Sirrett, Craig Slater, John Staude
Country member Carmel McKenzie
Junior members Dr Eric Heenan,
Matthew Keogh, Elaine Wambeck
Immediate Past President Dudley Stow
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2 February 2010
Hylton Quail
President’s Report
a Government of men and Not laws
Speaking to a journalist during the mandatory sentencing debate, I was asked why I characterised the Criminal Code Amendment Bill 2008 as undermining the foundations of our democracy. I answered that the proposal eroded the separation of powers and in taking sentencing power to itself, parliament had usurped a function properly that of courts.
I didn’t at the time go on to say that the proposal would seriously undermine the rule of law in this state. As it turns out though, this is what has occurred.
Within weeks of mandatory sentencing for serious assaults on police becoming law, prosecutors were faced with a hard case. A young woman suffering from a mental illness assaulted a paramedic and caused him bodily harm. She had no defence and was facing a mandatory minimum sentence of six months’ imprisonment under the new law. In the face of a media outcry at the manifest injustice of such a result, police prosecutors made the difficult decision to downgrade the charge to remove the allegation of bodily harm and the trigger for a mandatory sentence. Brent Meertens, a highly regarded lawyer and also the DPP consultant at police prosecutions said at the time that, “Whilst the injury may fall within the definition of bodily harm, it was, after assessment, minor and justified the removal of bodily harm from the charge.”
Was it the right decision? To produce a just outcome, yes. To produce an outcome according to law, no. Although Mr Meertens, to his credit, publicly stated his reasons for downgrading the charge, there was no requirement for him to do so. Ordinarily such decisions would be made in the back rooms of police stations or prosecuting offices with no public accountability or recourse of appeal.
How then will this law be applied in the future? Are we in fact all equal before the law or are we reliant on executive discretion to preserve our liberty? I wonder how that discretion will be exercised in the next hard case that comes along. Perhaps when a 17-year-old Aboriginal child, affected by alcohol but never in trouble with police before, pushes a police officer who falls and bruises his knee while in the process of arresting and handcuffing her older brother for disorderly conduct. What then?
Friedrich Hayek said: “Stripped of all technicalities (the rule of law) means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.” In Western
Australia, by putting policing and prosecuting authorities in the invidious position of deciding when and when not to enforce a manifestly bad law, the government has not only undermined the separation of powers but also abolished foreseeability of certainty in the application of those laws.
Until the repeal of mandatory sentencing for serious assaults on police and the abolition of prosecutorial discretion to ignore the law, we will continue to be governed, not as John Adams would have us by law, but by men.
One of those men, the Minister for Police, Rob Johnson MLA, has just announced that he will amend anti-hoon laws which require police to impound a vehicle involved in an alleged hoon offence, even where the owner would be deprived of the vehicle for at least 28 days and has done nothing wrong himself. This public backdown came after the Minister had earlier said he would not change the law and that the completely innocent owner of a Lamborghini should hire a replacement car or catch taxis whilst the car was impounded after having been allegedly driven recklessly by his mechanic. Putting aside for a moment the Minister’s staggering disregard for the rights of the blameless vehicle owner, what forced the government backdown was not only public outcry about a bad law but proper refusal by police to exercise their very limited discretion to release the car.
During my term as President I expect even more draconian laws to go before our state parliament. We have already seen completely unjustified stop and search powers introduced in Bill form as well as a new system of prohibited behaviour orders. In the wings are further sentencing amendments, anti-association laws and the potential abolition of the right to silence.
My sense is that the tide is turning and increasingly the public and mainstream media are questioning the continual legislative erosion of our rights as citizens. If these ‘law and order’ proposals are to be defeated, it will require a concerted education and publicity campaign and public outcry on the back of hard cases. I urge all members, where they are able to do so consistently with their professional obligations, to keep the Society apprised of cases illustrating the manifestly unjust consequences of bad laws.
Brief in full Colour
On a positive note it is with great delight that my first column as President of the Society should coincide with the launch of our first ever full-colour edition of Brief. Brief has been the official journal of the Society for more than 35 years and continues to provide topical articles and analysis for the WA legal profession.
Your career Your pathYour choice
Specialist Recruitment hays.com.au
Hays Legal is committed to ensuring your career reaches the height it deserves. These are the feature jobs for February:
Banking & Finance Lawyer- 2-4 years PAEThis established and innovative firm boasts an extensive client base and has an excellent reputation in the Perth market. A unique opportunity exists for a talented junior-mid level lawyer to join their expanding Banking & Finance division. You will provide complex compliance and regulatory advice on all aspects of property and project related finance, acting for major financial institutions, banks & leading property developers. A leader in your chosen field, you will have experience working on major transactions. You will benefit from close mentoring and supervision from respected partners, have a defined career path and will play an active part in the team’s continued success. (Ref:052944)
Workplace Relations This prominent and award winning national firm is recognised across Australia and internationally for providing a high level of service to their clients, who are major players in their individual fields. Due to recent expansion and ongoing growth, the firm currently requires a high-calibre senior lawyer to join their leading employment practice. Working alongside respected Partners, you will be engaged on range of quality employment law, industrial relations and OHS matters. Work closely with your own clients and establish yourself as one of Perth’s leading lawyers. (Ref: 052040)
Construction LawyerThis leading national firm has one of the most recognised construction practices in the country. Capitalising on recent growth, a newly created position exists for a talented Senior Associate. You will be involved in the full spectrum of construction matters including both front-end and back-end work. Servicing a varied and continually growing client base, you will provide advice; assist in the preparation of contracts, agreements and policies; negotiate and assist with any dispute resolution. The team has unique industry knowledge and expertise ensuring you will expand your skills and develop professionally. (Ref: 052038)
Energy & Resources LawyerThis successful local firm has established a reputation for producing high quality work and has attracted an enviable client base. Due to internal restructuring and recent growth, a rare opportunity now exists for a dynamic and talented junior lawyer. Acting for major players in the energy & resources sector, you will provide complex legal and commercial advice and will work alongside lawyers of considerable skill and reputation. You will have a minimum of 1-2 years working within a national energy & resources practice, sound academics and local experience. This is your chance to make your mark as one of Perth’s leading Corporate Lawyers and progress your career. (Ref: 050443)
Commercial Litigator This top-tier firm is known for representing clients on Australia’s largest and most complex litigation and dispute resolution matters. Due to a recent growth phase, they currently require a mid-senior level Commercial Litigator to join their successful practice. You will work alongside a nationally recognised Partner and will be actively involved in litigation strategy, court proceedings, negotiation processes and the overall building of client relationships. Take advantage of competitive remuneration and a superb range of benefits. (Ref: 052044)
Commercial Property LawyerThis progressive and successful firm holds a substantial and expanding share across the areas of property, banking and finance. With a high volume of upcoming work, the firm has identified the need for a capable junior-mid level Commercial lawyer to join their busy practice. The firm adopts a relaxed approach and flexible working practices, ensuring you maintain a work life/ balance, without sacrificing on quality of work. Your expert knowledge of general commercial and property law matters, strong drafting skills and ability to develop key relationships with your clients will see you actively contribute to the company’s success. (Ref: 050743)
For a confidential discussion about these or other opportunities, please contact:Stacey BackT 08 9254 4598E [email protected]
4 February 2010
In addition to the refreshed design, we will also bring you regular new columns focusing on such topics as ethics and risk management.
Members can also now find archived editions of Brief from 2008 and earlier on the Society’s website.
I trust you will enjoy reading Brief in 2010 and I encourage all members to take the opportunity to contribute articles for this essential publication. I very much enjoyed the excellent recent articles by Peter Quinlan and Robin Chapple MLC on euthanasia. I hope to see similar topical and provocative debate in the future.
australia Day Honours
Congratulations to the four Society members who were honoured in this year’s Australia Day Honours. Those honoured are The Hon Justice Robert French, Chief Justice of the High Court of Australia and Society life member; Gavin Fielding, Clayton Utz; Dr Karin Margolius, Murdoch University student; and Dr Ivan Vodanovich, Department of the Attorney General. I thank each of these members for their ongoing contribution to the Society, the legal profession and the community at large.
Society member Named New DPP
Joseph McGrath, a Society member for nearly 20 years, has been named the new State Director of Public Prosecutions. During his involvement with the Society, Mr McGrath has served on the Ethics Committee, Brief Editorial Committee and as Deputy Convenor of the Society’s Continuing Professional Development (CPD) General and Commercial Litigation Working
Group. Mr McGrath is a very experienced and highly regarded
practitioner who has the skills and independence required
for the role. His time at the Bar, coupled with the experience
garnered in his previous role at the Commonwealth Director of
Public Prosecutions’ office, has him well-placed to take on the
challenges of the WA Office of the DPP.
Human rights award for Council member
I would like to congratulate Society Council Member Greg
McIntyre SC on winning the annual Human Rights Law Award,
presented as part of the Australian Human Rights Commission
Awards in December. Mr McIntyre was recognised for advancing
human rights through the practice of the law since his first job as
a solicitor with the Aboriginal Legal Service of Western Australia.
It is a very well deserved award, recognising his career-long
commitment to human rights and assisting the disadvantaged.
Wigs Commemorative Photo
Thank you to all members who have registered their interest in
being part of the commemorative photo to mark the passing
of lawyers’ wigs in WA courts. By the time this column arrives
in your mailbox, the time, date and venue of the photo shoot
should have been finalised and communicated to members via
Friday Facts and other channels. I urge all practitioners to dust
off their wigs for one last hurrah and posterity. Practitioners will
also have the opportunity to purchase a copy of the photo. I
look forward to seeing you all on the day.
National legal Profession reform
The National Legal Profession Reform (NLPR) project continues
apace. The consultation phase, for what it has been worth,
will be over by the time you read this column. We may even
have a draft Bill. I will give members a full update in the next
issue of Brief when I expect the ‘mud’ will be a bit clearer. I
would particularly like to thank Dudley Stow for the hundreds
of voluntary hours and numerous interstate trips he has made
in effectively representing Western Australian practitioners on
the NLPR consultative group. If the consultation phase ultimately
turns out to have been lip service (as I suspect), it won’t have
been for want of bona fide commitment and considered and
detailed contributions to the debate by the Society and Dudley.
Thank you
I would like to thank the outgoing Council for their good
work and support of the Society in 2009 and congratulate
the incoming Council on their election. I particularly want to
thank our Executive Director David Price and Immediate Past
President Dudley Stow (again) for their support, guidance and
wise counsel during my three and a half years as Vice President.
Finally, I would like to thank all of you who have supported
my election and wished me well in office. It is a great honour
to serve as President of the Law Society of Western Australia.
I invite all members to telephone me on 9220 0444 or email
[email protected] if you wish to discuss any
concerns you have or raise any issues for the Society with me.
Acumen Timmy wants OUTLINES ad_2629.indd 1 14/10/09 3:14:47 PM
February 2010 5
ronald bower
Editorial
a New look for a New year
This, the first Brief published by the Law Society in 2010, reaches
its readers by virtue of the same generosities upon which all
previous editions have done so – the voluntary willingness of
the authors of the items printed and the work of the editorial
committee in maintaining a watchful eye on legal developments,
reviewing material submitted for consideration for publication,
being bold in asking potential authors to write articles about
selected topics and always bearing in mind the monthly
publisher’s deadline. The magazine and its editorial committee
also receive valuable ideas, input and support from the Society’s
in-house Media and Communications Officer, Rob Kerr.
Vegetation is not only a noun. It is also a verb; a ‘doing nothing’
word. As the sayings go, to change and to improve are two
different things and if you want to stand out, don’t be different;
be outstanding.
For 2010 Brief has a new look, to make the publication more
interesting, attractive and up-to-date in its format and in its
important role as the official journal of the Law Society of
Western Australia.
As foreshadowed in Brief in the latter part of 2009, the
magazine will pursue a deliberate policy of including more
material of direct relevance and interest to young lawyers
in 2010. At intervals during the year, with the assistance of
editorial committee member and young lawyer Matthew Keogh,
Brief will contain sections specifically directed to Mr Keogh’s
young professional colleagues.
On behalf of the Brief editorial committee I wish to express
gratitude to everyone who contributed editorial material during
2009 and to acknowledge with thanks at this early point in
2010 that the continuing productivity of our authors will enable
the magazine to appear each month from March to December,
carrying articles and information of relevance and interest to the
WA legal profession.
Law Society members, this is your Society’s publication. Your
suggestions, ideas, criticism and letters to the editor are always
welcome. As always, Brief also welcomes the opportunity
to consider for publication your articles about issues of legal
relevance that are on your mind.
Note: In the December 2009 Brief article titled Graduate
Recruitment: The Past and Future, DLA Phillips Fox was not
referenced as a member of the Corporate Law Firms Association
of Perth (CLAP). DLA Phillips Fox is a member of CLAP.
Today’s gift –Tomorrow’s future
for our clients❦
When discussing donations, wills and bequests with your
clients, please remember
The Rocky Bay cRippled childRen’s FoundaTion
Leaders in the management and care of Muscular Dystrophy, Spina Bifida,
neuro-muscular disorders and traumatic injuries in children and young adults.
DONATIONS ARE TAX-DEDUCTIBLE
Enquiries to:The SecretaryRocky Bay Crippled Children’s Foundationc/- Mr DF CrawleyBentleysPO Box 44WEST PERTH WA 6005Tel: (08) 9227 1189 Fax: (08) 9228 9489
6 February 2010
David Price
Executive Director’s Report
New year, New opportunities
With a new year comes new opportunities and I am very excited by what is in store for the Society in 2010. Our member services continue to grow and, following the results of the recent membership survey, we know what we need to focus on to satisfy member needs and expectations. The full results of the membership survey have now been collated and I am happy to say that overall satisfaction of members has increased in the two years since the last survey and member commitment to the Society has also strengthened. Results are available for members to view on our website at www.lawsocietywa.asn.au
The 2010 Council, led by new President Hylton Quail, has a lot of enthusiasm and are committed to driving the Society forward into a new decade. I look forward to working with them this year and ensuring you, our members, enjoy being part of the benefits of a leading professional association.
New executive manager Position
I am pleased to announce that Kelly Hick will be moving from the role of Executive Manager, Membership and Professional Development to the newly-created position of Executive Manager, Member Relations and Business Development. Kelly’s new role will focus on strengthening ties with our members and firms, gaining a better understanding of what products and services our members expect, as well as special projects within the organisation. Sonia Webster, who was previously the Manager, Membership and Professional Development has been elevated to the position of Executive Manager, Membership and Professional Development and her old position abolished. I congratulate both Kelly and Sonia on their new roles and I am excited about the opportunities that these two new appointments bring to the Society.
CPD Planner Insert
You should have received a copy of the special edition CPD Planner insert with this edition of Brief. This comprehensive planner highlights all of the Society’s CPD events for February and March. With the end of the CPD year nigh, this planner allows you to review the list of topical CPD events the Society has developed for you to earn your 10 points and lets you register for multiple events at one time. Some of the upcoming events include:
The Costs School Workshop Series commences on Tuesday, 9 February and will run every Tuesday for six weeks. It provides practitioners with a comprehensive introduction and explanation of the law of costs, plus is worth seven (7) CPD points in total. How to Improve your Trial Preparation: Get the best out of your expert is on Thursday, 18 February and is designed to improve practitioners’ skills in utilising expert witnesses when preparing for trial.
On Thursday, 4 March there will be an ethics Hypothetical as part of the YLC Basics Series. Join a panel of senior members of the profession for an interactive and lively discussion on a variety of hypothetical ethical scenarios. business Plan on a Page, to be held on Tuesday, 9 March, will teach participants how to take time out to work on their business, as opposed to simply in it.
There are many more CPD events scheduled for February and March. To view the full list and to register your place, visit www.lawsocietywa.asn.au
law Summer School
The Society’s biggest annual CPD event, Law Summer School, is on again this month and is once more set to be the most talked about professional development event of the year. Interest within the profession has been high, with the conference selling out more than two months in advance. Those members who managed to secure their places can expect a day of informative presentations, challenging discussions, debate and networking opportunities.
2010 Graduate recruitment monitoring Scheme
Following a tumultuous 2009, the Articled Clerk Recruitment Monitoring Scheme (ACRMS) has now become the Graduate Recruitment Monitoring Scheme (GRMS). Following extensive consultation with stakeholders, new dates and guidelines have been finalised for 2010. This scheme covers the dates for the recruitment of vacation clerkships and graduate positions by law firms in 2010. The 2010 dates and guidelines can be found in this edition of Brief, as well as on the Society’s website.
Human rights award for Council member
I would like to congratulate Society Council Member Greg McIntyre SC on winning the annual Human Rights Law Award, presented as part of the Australian Human Rights Commission Awards in December. Mr McIntyre was recognised for advancing human rights through the practice of the law since his first job as a solicitor with the Aboriginal Legal Service of Western Australia. It is a very well deserved award, recognising his career-long commitment to human rights and assisting the disadvantaged.
Heritage Day
On Sunday, 15 November the Old Court House participated in Heritage Day, a new initiative by Heritage Perth. In the main courtroom of the Old Court House a short film, Weewar, screened throughout the day. This six-minute film was produced in 2006 and the courtroom scenes were filmed in the Old Court House. More than 350 visitors wandered through the Old Court House, most of them for the first time in this successful inaugural event. Other Heritage Day events throughout the city included a screening of The Sentimental Bloke at the Piccadilly Theatre, the very popular guided tour through the Old Treasury Building and lunch and a look at historic rooms in the Melbourne Hotel.
8 February 2010
Feature
Introduction
As readers of Brief may be aware, the Coroner’s Court has been
experiencing serious resourcing problems over a number of years
to such an extent that in the Annual Report for 2006-07 I was
obliged to advise that:
“…as a result of inadequate resources being provided to the
Coroner’s Court by the Department of the Attorney-General,
it is possible that I will not be able to adequately perform the
functions of the State Coroner set out in s8 of the Coroners
Act 1996 and I may not be able to ensure that an adequate
counselling service is available as required by s16 of that
Act”.
The additional resources were not provided and that prediction
proved to be accurate. In the following year I was unable to
adequately perform those statutory functions.
While some interim funding was provided to a very limited
extent, it was not until 14 August 2009 that this issue was
addressed. On that date the Attorney-General announced that
an additional $822,000 in funding would be provided to the
Court and of that sum approximately $622,000 was to go to
salaries. While that sum will provide the first significant increase
in staff levels for over a decade, at this stage the funding has not
Inside the Coroner’s Court
been made recurrent and in respect of all additional staff who
have been employed, the basis for their employment has been
limited and is subject to ongoing review.
The Law Reform Commission of Western Australia is conducting
a review of the Coroners Act 1996 and the provision of the
additional funding has been made subject to the outcomes
of that review. This means that in respect of all new positions,
these have had to be created, advertised and the normal public
service process gone through, but all positions are subject to
review and if any or all are subsequently created as permanent
positions, it will be necessary to go through the advertising and
appointment process again.
The functions of the Coroner’s Court
In order to appreciate issues relating to the resourcing of the
Coroner’s Court it is necessary to have an appreciation of the
functions which the Court performs. While most, if not all,
legal practitioners would be aware of the nature of inquest
proceedings, at least in general terms, most would not be aware
of the practicalities involved in the running of a coronial system.
The Coroner’s Court is in many respects different from all other
courts in Western Australia.
alastair Hope
State Coroner
Feature
February 2010 9
Feature
Essentially the primary function of the Coroner’s Court is
to investigate all sudden deaths. These are referred to as
“reportable deaths” and the term “reportable deaths” is
defined in s3 of the Coroners Act 1996. These include deaths
which result from motor vehicle accidents, deaths by suicide,
industrial deaths, deaths resulting from accidents at home,
deaths resulting from adverse events in hospitals and natural
cause deaths when there is no clear history of a medical
condition which would in the opinion of a medical practitioner
account for the death and enable certification under s44 of the
Births, Deaths and Marriages Registration Act 1998. In addition,
suspected deaths are investigated where it appears that a person
has died and the death was a reportable death.
If a reportable death occurs and the body is in Western Australia,
the body is under the control of the coroner investigating the
death until a coroner issues a certificate releasing the body
and permitting burial, cremation or other disposal of the body
or parts of the body. This function of coroners is of particular
significance as it involves the Coroner’s Court in a range of
practical actions immediately following a sudden death. Bodies
must be removed from places of death all over the state and
taken to the state mortuary for examination and the Coroner’s
Court manages 126 body removal contracts to achieve this.
cases a death certificate was ultimately accepted and the death
was not treated as a “reportable death”. In 176 of those cases,
however, the body was transported to the mortuary prior to
the determination being made that a death certificate could be
accepted. In these cases it was necessary for staff to negotiate
with medical practitioners, family and police and costs were
incurred in respect of the body removal contracts. This left 1,770
reportable deaths. In respect of each of these deaths findings
have been or must be made by a coroner as to the identity of
the deceased, how the death occurred, the cause of death and
the particulars needed to register the death (s25 of the Coroners
Act 1996). During 2008–09 while 1,808 cases were completed
with coroner’s findings, only 53 were resolved by way of a public
hearing or inquest, slightly under 3%.
In respect of inquest hearings these are either held because the
death has been the death of a person held in care in which case
it is mandatory to hold an inquest, or it is considered “desirable”
to hold an inquest (s22).
The Current Structure of the Coroner’s Court
In Western Australia there are only two full-time coroners, the
State Coroner, Alastair Hope, and the Deputy State Coroner,
Magistrate Evelyn Vicker. In the metropolitan area the office of
the State Coroner is situated at level 10 Central Law Courts and
comprises a total of 12 staff employed on a recurrent basis. In
the country regions magistrates act as ex officio coroners and
local courts perform coronial functions. The State Coroner is
required to ensure that the state coronial system is administered
and operates efficiently.
Considering the amount of publicity which the media directs to
the Coroner’s Court, readers of Brief may be surprised by the
small size of the court section of the office. In addition to the
two coroners, there are only three permanent staff currently
allocated to the court. These comprise one counsel assisting and
two administrative officers. The counsel assisting is responsible
for preparing all briefs, supervising all deaths in custody
investigations and appearing as counsel in complex inquest
matters. Counsel assisting is also secretary to the Coronial Ethics
Committee, which reviews applications for access to coronial
information and data and reports to the State Coroner.
The two administrative officers act as judicial support officers,
secretaries, prepare inquest listings, prepare and organise
briefs, issue summonses to witnesses, liaise with lawyers,
police, witnesses, families and so on and arrange travel and
accommodation for staff and witnesses. As a result of the
inquisitorial nature of the Coroner’s Court, parties do not
organise witness accommodation or preparation of relevant
documentation and so the entire process of preparation for
the hearings falls to these two administrative officers. These
officers are assisted by two police officers (sergeants) who, as
well as being the interface between the court and police, obtain
warrants, serve urgent subpoenas, obtain evidence in respect of
objections to post-mortems, locate witnesses for the service of
If a reportable death occurs and the body is in Western Australia, the body is under the control of the coroner investigating the death until a coroner issues a certificate releasing the body and permitting burial, cremation or other disposal of the body or parts of the body.
A registrar or coroner’s delegate is on 24-hour call-out to
deal with issues such as providing advice to hospitals as to
whether or not a death is reportable and making any necessary
arrangements in respect of organ donations and so on. Staff
must also be involved in liaising with PathWest in respect of
post-mortem examinations, the Chemistry Centre in respect of
toxicology analysis and police in respect of ongoing investigations
to ensure that adequate investigations are conducted prior to
the release of bodies. As many families wish to hold funerals
soon after a death, staff are under considerable pressure to
resolve these issues quickly.
In the financial year 2008–09 a total of 2,442 deaths were
referred to the Coroner’s Court. In respect of these, in 672
10 February 2010
Feature
summonses and appear to assist in some relatively short inquest
hearings.
Inquest Hearings
Provisional of temporary funding was provided for a second
counsel assisting from 2007, but as that funding was only
provided on a year by year basis, it has not been possible to
appoint a permanent officer to that position. As a result of
provision of inadequate resources, as anticipated in the Annual
Report of 2006–07, it is has not been possible to ensure that
inquests were held when it was desirable to do so.
Following the decision to provide additional funding in August
2009, immediate steps were taken to create two additional
positions of counsel assisting, advertise those positions, interview
applicants and appoint two suitable applicants. That process was
completed and the two new counsel assisting were able to
commence working at the office by late December 2009.
Immediate steps have been taken to review all outstanding files
identified as appropriate cases for inquest hearing and these
have been distributed to counsel assisting and the police officers
for preparation. There are currently 75 of these files outstanding.
Unfortunately, because of the delays which have resulted
from the resourcing issues, some of the outstanding files
relate to deaths that have occurred several years ago and it
is now unlikely that the original purposes for which it was
considered appropriate that a public inquest should be held
can be achieved. In some cases a decision will be made that
there will not be an inquest and these files will be completed by
administrative findings.
access to a Courtroom
Until recently there has always been a dedicated courtroom
available to the Coroner’s Court, but with the relocation to the
Central Law Courts and the ongoing problems with completion
of the courtrooms, the Coroner’s Court has been without access
to a dedicated courtroom for over 12 months. It now appears
that a dedicated courtroom will be available in early 2010,
which will enable the listing of a considerable number of inquest
hearings through 2010 when these have been prepared for
hearing by counsel assisting.
Over the period when a dedicated courtroom has not been
available, a number of inquest cases were delayed pending
access to a suitable court, but thanks to the cooperation of
other courts a significant number of prepared hearings were
able to proceed. In respect of the inquest hearing function of
the Coroner’s Court, therefore, subject to the current increased
funding being continued and a dedicated courtroom being
made available, plans can be put in place to ensure that there is
a continuous listing of inquest hearings which will significantly
reduce the current excessive backlog and hopefully avoid a
situation occurring in the future where cases which should have
gone to inquest hearing have ultimately been completed by
administrative findings.
Coronial Counselling
The Coroner’s Court operates a counselling service and pursuant
to s16 of the Act, as State Coroner, I am to ensure that a
counselling service is attached to the court. s16(2) provides that:
“Any person coming into contact with the coronial system
may seek the assistance of the counselling service of the
court and, as far as practicable, that service is to be made
available to them”.
This provision of the Act has not been complied with for a
number of years as a result of inadequate resourcing. This has
been a matter highlighted by me on a number of occasions
and is referred to in the Annual Report 2007–08. In 2008–09
the Coronial Counselling Service, which comprises two persons,
provided a total of 8,242 contacts either by telephone, office
visit, home visit, letter or other means. In 2007–08, while
the counselling service continued to operate, it did so in a
diminished capacity as in that year there were three changes in
one position within the counselling service and the remaining
counsellor was working alone for more than three months over
the year.
On that year, as a consequence, severe cut-backs were
instigated and the service was only provided to immediate family
members of the deceased. Counselling was primarily provided
on the telephone with minimal capacity for office and home
counselling. Other relatives and friends of the deceased were
assessed by telephone and referred to community agencies. All
file viewings in the presence of a counsellor were ceased as were
all community education and training commitments including
the Disaster Victim Identification Team training seminars. These
service cut-backs resulted in limited coronial information being
provided to families, potentially exacerbating their grief and
trauma reactions and impacting upon their recovery process and
putting greater pressure on community agencies.
There has never been an ability to provide face-to-face
counselling in country regions and the two counsellors are
only able to provide a service of that type in the metropolitan
area. In country regions family members are referred to a
1800 telephone number and involvement with the coronial
counsellors is by telephone or letter. Clearly this has been an
unsatisfactory situation.
It now appears that a dedicated courtroom will be available in early 2010 which will enable the listing of a considerable number of inquest hearings ...
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Litigation Lawyer – Medium Sized FirmAn opportunity to join this team of very Senior Practitioners in one of the fastest growing litigation teams in WA. This firm boasts exceptional lawyers at all levels, and the well regarded Partnership team attracts a loyal and highly sought after client base. The firm will provide ongoing mentoring, whilst putting trust in your ability to manage your own clients. 3 + years’ PAE
Commercial Litigation – Multiple Senior Positions
Senior Family Lawyer – Work In Fremantle! Join this commercial firm and continue to build an already thriving practice alongside one other Senior Family Lawyer. Broad range of property and children’s matters with a large volume of work waiting. Relaxed culture, with the Partners believing in the importance of work / life balance. 5 + years’ PAE
Senior Associate – One Of WA’s Best PracticesThis exceptional team of specialist Family Lawyers looks forward to meeting a like-minded Senior Associate to assist with the firm’s increasing work load. You will be seeking an open and relaxed environment, and be driven to achieve commercially sound results for your clients. 7 + years’ PAE
Family Lawyers – All Levels – 1.5 + Years’ PAE
Senior Commercial LawyerBecome an integral part of the Leadership Team, coordinating a growing team of Senior Lawyers in the south-west of WA. Working across a broad spectrum of quality commercial matters, you will have a strong grounding in general commercial and property law, and a solid understanding of asset and entity structuring. This is a close knit team that seeks driven professionals who enjoy life both in and out of work. 6+ years’ PAE
Two newly created opportunities to join this boutique ER/IR team and manage a large number of complex matters; including anti-discrimination laws, the FWA, IR advice, equal opportunity matters, occupational health & safety, strategic IR advice, and related litigious matters. Great reputation, with extensive variety in your day-to-day work. 3 + years’ PAE
Work In The Beautiful South-West…
Junior Corporate LawyerOne of WA’s leading corporate / commercial practices seeks a proactive junior solicitor to join their specialist team. Specialising in IPOs, takeovers, due diligence, M&A work, and general compliance advice, you will become an integral part of this friendly and commercially minded team. 1.5 + years’ PAE
Mid Level / Senior Corporate Lawyer This commercial / corporate advisory team seeks a confident solicitor with a strong interest in both commercial and corporate law. Working alongside the Senior Partner and managing your own client base, you will gain exposure to Australia’s highest profile clients. Great team culture. 3 + years’ PAE
Corporate Lawyers – 1.5 + Years’ PAE
Commercial Property Lawyer – 5 + Years’ PAEAre you a Commercial Property lawyer looking to join a progressive firm that offers genuine career prospects, mentoring and work / life balance? Offering its lawyers great support, this firm attracts some of WA's most sought after property work. You will advise on all aspects of commercial property transactions, with exposure to interesting and complex property matters across commercial / retail leasing, acquisitions and sales, disposals, finance and joint ventures. 5 + years’ PAE2 x Senior Commercial Lawyers – 5 + Years’ PAEThis firm seeks two Senior Lawyers to complete high level estate planning, corporate structuring and property transactional matters, and the related commercial work. Advising banks, financial institutions, accountants, financial planners, real estate agents and property developers, you will enjoy developing close relationships with your clients and colleagues. 5 + years’ PAE
Commercial / Commercial Property Lawyers
www.interpeople.com.au
For further information on any of the above roles, or to discuss the briefs we currently have available, please contact Chris Bates at [email protected] or Kristy Campbell at [email protected] or alternatively on (08) 9389 2800. We are always happy to spend time assisting people with career mapping and general advice, so please feel free to call us at any time to arrange a meeting.
Interpeople – People Growing Business, Business Growing People
Interpeople consists of practitioners from within our specialist practice areas including lawyers, accountants, engineers and HR Business Partners. We are a proactive and energetic team and have forged a reputation for providing a level of service that is second to none.
Four highly regarded insurance practices seek outstanding insurance lawyers to join their teams. With each offering a unique practice and culture, we look forward to assisting you to make the right career move in 2010. 1.5 + years’ PAE
Join this well regarded building and construction team and work on some exciting WA and national projects. Completing both front and back end work, you will have exceptional drafting skills, strong knowledge of building and construction law and a genuine passion for the law. An excellent career development opportunity with outstanding training provided by the Partners. 2 + years’ PAE
Insurance Lawyers – All Levels – 1.5 + Years’ PAE
Construction Lawyers – 2 + Years’ PAEWorkplace Relations Solicitors – 3 + Years’ PAE
12 February 2010
Feature
The recent proposed funding increase has provided temporary
funding for a senior coronial counsellor who, in addition to
improving the interface between families and the coronial
system, can assist with the provision of a 365-days a year,
statewide service.
Even with three counsellors it is obvious that counselling services
will be limited, but it is hoped that the additional counsellor
will be able to assist with the provision of improved counselling
services to country regions. It is anticipated that a counsellor will
visit regional areas with a view to identifying local resources so
that suitably qualified persons in local regions can provide some
direct counselling. The provision of three counsellors will enable
much better coverage to occur when a counsellor is either ill or
on leave as the present system effectively prevents any out of
office contact with family members during these periods.
administrative Support
As indicated above, the provision of three counsel assisting
will assist with the preparation of cases for inquest hearing
and thereby reduce the backlog. Importantly, the provision of
additional funding will also enable the temporary appointment
of a third administrative officer to the court section of the office
who can assist with judicial support and enable one of the other
administrative officers to ensure that inquest listings, issuing of
summonses and so on is being conducted in an efficient and
timely manner. In addition, the provision of this additional officer
will enable the practicalities of brief preparation to take place in
a more efficient and timely manner so that photocopies of the
brief for counsel and so on can be prepared more quickly.
Conclusion
Over a number of years little or no resources have been provided
to the office of the State Coroner to enable that office to keep
up with increasing demands. With the increased population
over the last decade there have been increasing numbers of
reportable deaths and, more importantly in the context of
resourcing, there are increasing expectations on the part of the
community as to the quality of the services which the Coroner’s
Court can provide.
For the first time in over a decade additional significant funding
has been provided for the court itself and not merely to cover
additional costs of body removal, forensic pathology and
toxicology. Unfortunately that funding has been provided on
a short-term basis, which has limited the ability of the court to
take full advantage of the additional resources and the normal
bureaucratic procedures involved in creating positions and filling
those positions have resulted in some delays.
The provision of three counsellors will enable much better coverage ...
As 97% of reportable cases are completed following an inquiry
based on the papers without a public hearing, it is important
to ensure that files are completed in a timely manner and are
available to coroners so that findings can be completed within
a reasonable time frame. In this regard additional funding will
provide for additional support in file preparation and completion.
Additional provision of funding for registry staff will assist
generally with the timeliness of the response of the Coroner’s
Court particularly in respect with dealing with objections to
post-mortem examinations and release of bodies for funerals,
which must be dealt with quickly.
For the first time in over a decade additional significant funding has been provided for the court itself and not merely to cover additional costs of body removal, forensic pathology and toxicology.
If the increased funding is made recurrent that will enable
the Coroner’s Court to provide a basic service for the next 12
months. It is hoped that following the review currently being
conducted by the Law Reform Commission there will be a
significant review of the funding of the court to enable me to
comply with my obligations under the Coroners Act 1996 and to
provide a high level of service to grieving families.
In making the above observations as to the inadequate provision
of resources to the Coroner’s Court, it would be remiss of me to
fail to recognise the considerable efforts of staff. It has been the
approach of all staff to treat each case as though the deceased
person was a family member or friend. Staff have been prepared
to work outside office hours, forego leave and do what has been
necessary to provide urgent responses, particularly when action
must be taken to enable funerals to go ahead as planned. Over
the last ten years the office has worked as a cohesive unit, each
staff member supportive of the others. Without that support
and cohesion, the office could not have done what it has done.
Graduate Recruitment Monitoring Scheme 2010Recruitment Dates and Guidelines
Winter Vacation Clerkships 2010
2010/2011 Summer and 2011 Winter Clerkships
Applications Open Monday, 15 February 2010
Monday, 9 August 2010
Applications Close Friday, 26 March 2010 Friday, 20 August 2010Review/Interview Monday, 29 March 2010
to Friday, 23 April 2010
Monday, 23 August 2010 to Friday, 24 September 2010
Offers (from 9am) Wednesday, 28 April 2010 (must be held open for TWO HOURS)
Wednesday, 29 September 2010 (must be held open for TWO HOURS)
Winter Vacation Clerkships 2010
2010/2011 Summer and 2011 Winter Clerkships
Applications Open Monday, 15 February 2010
Monday, 9 August 2010
Applications Close Friday, 26 March 2010 Friday, 20 August 2010Review/Interview Monday, 29 March 2010
to Friday, 23 April 2010
Monday, 23 August 2010 to Friday, 24 September 2010
Offers (from 9am) Wednesday, 28 April 2010 (must be held open for TWO HOURS)
Wednesday, 29 September 2010 (must be held open for TWO HOURS)
Graduate Recruitment 2011 Priority Offer System
Priority Offers Made Friday, 23 July 2010 at 9am
Priority Offers Held Open To Tuesday, 27 July 2010 at 5pm
Graduate Recruitment 2011 Standard Offer System
Applications Open Monday, 5 July 2010Applications Close Friday, 6 August 2010Review/Interview Monday, 9 August 2010 to
Friday, 3 September 2010Offers Wednesday, 8 September 2010 at
9amOffers Held Open To Thursday, 9 September 2010 at 5pm
The Society’s Graduate Recruitment Monitoring Scheme (GRMS) Committee* - comprising law students, representatives from large firms, medium/small firms, government organisations, an articled clerk/law graduate and the Deans of all WA law schools - undertook extensive consultation through its representative base on a proposed Society Scheme model.
The Society’s Council approved the Scheme model at its December 2009 meeting.
Following approval, the dates (as set out below) and guidelines for the 2010 Graduate Recruitment Monitoring Scheme* have been widely distributed to stakeholders and can also be downloaded at
www.lawsocietywa.asn.au
It is important to note that 2010 is a transitional year for the Scheme model and the Scheme will be reviewed in line with stakeholder feedback for 2011.
Should you have any queries regarding the Scheme, please contact the Society on 9322 7877 or email [email protected]
* The Articled Clerk Recruitment Monitoring Scheme and Committee was renamed the Graduate Recruitment Monitoring Scheme and Committee to reflect amendments to law graduate pathways to admission pursuant to the Legal Profession Act 2008.
To download a full copy of the 2010 Vacation Clerk and Graduate Recruitment Guidelines, visit
www.lawsocietywa.asn.au/grms.htm
14 February 2010
Feature
flattered as I am to have been the focus of Robin
Chapple MLC’s article (receiving no less that 20
references by name in under three pages), I had
rather hoped that the “alternative” to my article
on euthanasia would address the arguments in that
article rather than address me.
As it is, the central thesis of my article – that by specifying
“objective” criteria as conditions precedent to the “right” to
euthanasia the Voluntary Euthanasia Bill 2009 necessarily and
unavoidably enshrines a policy of “ranking” the value of human
lives – remains wholly unanswered. The amendments to the
Bill referred to in Mr Chapple’s article (which are, after all, just
haggling over price) in no way affect that central thesis 1.
Indeed, on close inspection, Mr Chapple’s response reveals the
very policy my argument had sought to bring to light – that the
Bill says to some members of the community: “It is right and
Haggling Over PriceA Very Brief Right of Reply
proper and reasonable, to regard non-existence as preferable
to your human life” and refuses to make the same judgement
about other people in the community. Consider this proposition
offered in support of the Bill:
“Provided the wish to die is properly informed and made for
the right reasons, the death of a suffering person hurts no
one.”
“Right reasons”? I would ask anyone reading to pause and feel
the sheer weight of that sentence.
It presumes that there are, objectively, “right” reasons for
requesting a lethal injection from your general practitioner
and, necessarily, that there are also “wrong” reasons. And who
gets to decide what is a “right” reason and what is a “wrong”
reason? The authors and proponents of the Bill, that’s who. And
what do the proponents of the Bill regard as a “right reason”
for requesting a lethal injection? Fortunately (for me) we can be
fairly certain that they don’t regard “being a barrister” as such
a reason. That is a value judgement that falls upon the lives of
others.
It is the presumption involved in asserting that there are “right”
reasons for other people to request a lethal injection from their
doctor that threatens both our jurisprudence and our common
humanity. As David B Hart so eloquently put it, in a passage
equally applicable to the “ideology behind euthanasia”:
“Decisions regarding who should or should not live can,
by definition, be made only by those who believe such
decisions should be made; and therein lies the horror that
nothing can ever exorcise from the ideology behind human
bioengineering.” 2
Notes
1. Although I could not resist the quaint notion that the Bill is now improved
by requiring that an applicant for euthanasia not simply experience “pain
and suffering” but considerable “pain and suffering”.
2. Hart, In the Aftermath – Provocations and Laments, Wm B Eermans
Publishing Co, 2009, p143.
Peter Quinlan
Barrister, Francis Burt Chambers
Level 3, 45 St Georges TerracePerth WA 6000Tel +61 8 9221 [email protected] rgl.com
RGL’s forensic accounting and valuation experts work with legal professionals to evaluate economic damages and determine financial value wherever it is needed and whatever is being claimed.
Others get too wrapped up in the figures.We discover and define financial value.
February 2010 15
News
Appointment of Senior Counsel
The Law Society of Western Australia responded to the devastating bushfires which hit Toodyay on Tuesday, 29 December 2009 by facilitating a link between the Shire of Toodyay and Legal Aid WA, resulting in the provision of free legal advice and
information to those affected by the fires.
Legal Aid WA Civil Branch Solicitors, Greg Boland and Dominic McKenna, along with paralegal Rosie Bradford, travelled to Toodyay and set up in the Toodyay Memorial Hall, the centre of the relief effort, alongside other service providers such as Centrelink, the Department for Child Protection and the Red Cross.
Legal Aid WA prepared information sheets on legal issues which could arise from the bushfires in relation to insurance, property transactions, renting and debt. These were prepared at short notice with the assistance of Victoria Legal Aid, who were heavily involved in the relief effort following the 2009 Black Saturday Victorian bushfires.
Legal Aid WA will continue to provide assistance to those affected via an information line (ph: 1300 650579) and the Midland Regional Office (ph: 9274 3327).
Legal Help for Toodyay Fire Victims
Image and information courtesy of Greg Boland, Solicitor, Civil Branch, Legal Aid WA.
Westralian Technical Consultantswww.westraliantech.com.au
Postal : P O Box 495 Willetton WA 6955(204 High Road, Riverton, WA 6148)
Tel: 08 94572139 Fax: 08 93543394
Steven Chew (PhD), Chartered Professional Engineer & Certified Professional Ergonomist, with over 26 years consulting experience, is available to provide litigation support services, including expert evidence, on cases which involve:
♦ Ergonomics:manualhandling,machineryguarding,lighting,worksystemsafety&design
♦ Slip,trip&fallaccidents:AustralianStandardsslipresistancetestingsoffloors
♦ Occupationalaccidents♦ Motorvehicleaccidents♦ Mechanicalfailureanalysis♦ Firecauseanalysis
Rosie Bradford and Greg Boland of Legal Aid WA in Toodyay
The Chief Justice of Western Australia, the Hon
Wayne Martin, announced in November the
appointment of four barristers as Senior Counsel
after 22 applications were received. The
appointments are Patricia Cahill, Matthew Howard,
Anthony Derrick and Stephen Davies. Appointment as Senior
Counsel is based on eminence in the practice of law, especially
in advocacy, unquestioned integrity, availability and
independence.
A committee advises the Chief Justice on applications for
appointment. The committee, chaired by Chief Justice Martin,
comprises the President of the Court of Appeal, the Senior Judge
of the Supreme Court, the President of the State Administrative
Tribunal, the Senior Judge of the Federal Court resident in Perth,
the Chief Judge of the Family Court and the Chief Judge of the
District Court.
16 February 2010
News
a Law Society of Western Australia Council
Member has won the annual Law Award,
presented as part of December’s Australian
Human Rights Commission Human Rights
Awards. Greg McIntyre SC was recognised for
advancing human rights through the practice of law since
his first job as a solicitor with the Aboriginal Legal Service of
Western Australia.
Mr McIntyre has been involved in a number of leading and
high-profile human rights cases, including Koowarta v Bjelke
Petersen, concerning the Racial Discrimination Act, as well as
Bropho v WA and Tickner v Bropho, concerning the protection
of Aboriginal heritage.
Society Councillor Wins Human Rights Award
He ultimately appeared as Counsel for Eddie Mabo in the case in
which the High Court ruled that the Meriam people had native
title. He has also recently provided advice to the Cape York
Land Council, the Wik people and others on Cape York affected
by the Archer River basin and other areas in Cape York being
declared as wild river areas.
The Law Award is sponsored by the Law Council and President
John Corcoran presented the award to Mr McIntryre.
The event’s major award, the Human Rights Medal, was awarded
to Queensland barrister Stephen Keim SC, who represented
Indian doctor Mohamed Haneef.
Expressions of interest in appointment to these positions are invited from persons who have had at least 5 years’ legal experience, as defined in Clause 2 Schedule 1 of the Magistrates Court Act 2004.
Duties: To preside over Magistrates Courts in any part of the State as directed by the Chief Magistrate from time to time and to perform such other duties and functions as may be assigned to them by the Chief Magistrate.
Location: After undergoing a period of induction at the Central Law Courts one of the successful applicants will initially be posted to the metropolitan area, while the other two are likely to be posted to a regional location, yet to be determined. Applicants are asked to indicate whether they are prepared to be posted to a regional location. Subsidised housing is available in some regional locations. Magistrates posted to regional locations should not expect to remain in that location indefinitely, but will be expected to serve there for 3 to 5 years, before being considered for transfer to the metropolitan area, subject to a suitable vacancy being available at that time.
Commencement: April/July 2010.
Criteria for appointment: Applicants should possess the qualifications, experience and qualities required for appointment as a Magistrate, and should address the following criteria in their application: Relevant knowledge and experience of the law, practice and procedure; Demonstrated competence, skill, impartiality and temperament; Integrity and good character; Case management skills and ability to manage a
large list of cases each day; Demonstrated experience in management and administration; Capacity to introduce and manage change; and Ability to take an effective leadership and educational role in the community.
Further information: Particulars of entitlements such as leave, superannuation and other conditions of service are available on inquiry to Michael Johnson, Director Magistrates Court and Tribunals, Court and Tribunal Services, Department of the Attorney General, on (08) 9425 2770 or [email protected].
Applications: In addition to addressing the selection criteria in their applications, applicants should include a CV setting out their personal particulars, qualifications, legal experience, employment history and contact details (including email address) and provide proof of their date of birth and contact details for two referees. Applicants should provide the original and 3 copies of their applications. Short-listed applicants will be required to complete a Personal Information Declaration.
Persons who do not respond to this advertisement may be considered for this appointment.
Closing date: Applications must be received by 5.00 pm Tuesday 2 March 2010.
Applications marked “Appointments – in – Confidence” should be sent to:
Attorney General for Western Australia 29th Floor, Allendale Square, 77 St George’s Terrace, Perth WA 6000
MAGISTRATES
THREE POSITIONS
Salary: $261,023 pa plus a fully maintained motor vehicle
DEPARTMENT OF THE ATTORNEY GENERAL
February 2010 17
News
Decision to remove wigs in Wa courts
Hylton Quail, Senior Vice-President, law Society of Western australia, says he is surprised there has been such a fuss about the whole thing, because wigs have been on the way out for a long time. He adds the High Court got rid of wigs in 1988. He acknowledges there are good arguments for keeping wigs as well. Mr Quail concedes wigs do add to the solemnity of the occasion and they help create a sense of anonymity.
Nightline, Radio 6PR, 10/11/09
“Grave assault” on people’s freedom
Proposed new stop and search laws are a grave assault on people’s freedom amid fears the laws would target Aboriginals, the Law Society of Western Australia claims. The proposed law would give police greater powers to stop and search people in troubled precincts such as Northbridge. Society President Dudley Stow said he thought the proposed laws were extremely worrying. “This is a gross erosion of our civil liberties, where people can be stopped and searched (when they are) simply going about their business,” Mr Stow said. “This is yet another example of the government’s law and order agenda moving us closer to a police state, undermining some of our basic democratic rights and freedoms as citizens.”
watoday.com.au, 13/11/09
Police chief defends powers to stop, search
Western Australian Police Commissioner Karl O’Callaghan has promised that extraordinary new stop and search powers – the first of their kind in the country – will not mean his officers have carte blanche to “throw everyone against a wall” to check for concealed weapons or drugs…”. The effect of the laws will be to discriminate against those people, particularly Aboriginal youths, who the government has said they are clearly targeted at, in terms of their reference to Northbridge,” law Society Senior Vice-President Hylton Quail said.
The Australian, 17/11/09
lawyers push for new solution for aboriginal juvenile offenders
The detention rate for juvenile offenders, particular those of Aboriginal descent, is too high and has the potential to create longer term issues for the state if not addressed immediately, said the Law Society of Western Australia. “Approximately 140 juveniles are in custody each day in Western Australia and the vast majority, around 75 per cent, are Aboriginal,” says law Society of Western australia President Dudley Stow. “This
Off the PressLaw Society of Western Australia in the media
is a highly alarming statistic, one that must be addressed by implementing social programs for juvenile offenders to prevent repeat offending, rather than building new juvenile detention facilities and locking up our state’s youth.”
The New Lawyer, 17/11/09
Deserted child offenders a Wa disgrace: lawyers
About 14 children are held in Western Australian detention centres each day, despite being granted bail by the courts, often because they have nobody to care for them or nowhere to live. The Department of Corrective Services figures have prompted the Law Society of Western Australia to call the treatment of juvenile offenders a disgrace and call for an urgent expansion of hostels and bail support services to stop children being kept in custody needlessly. “This is a disgrace which the government and all Western Australians should be ashamed of,” Society Senior Vice-President Hylton Quail said.
The West Australian, 23/11/09
“Police state” fears hang over proposed anti-bikie laws
WA’s proposed “anti-bikie” legislation is being mirrored on laws in New South Wales that the state’s top prosecutor has labelled “another giant step backward for human rights” which could set up a “police state”…The Law Society of Western Australia also voiced its concerns about the WA anti-association legislation being drafted. Society Senior Vice-President Hylton Quail agreed that the proposed laws were backward and draconian. “We’re very worried about the erosion of civil liberties for all of us that it might entail.”
watoday.com.au, 23/11/09
Crime watch clash
Security footage from every government building in WA will be easily available to police under a new statewide surveillance plan. In an internal memo, Premier Colin Barnett has directed all public sector agencies to register their CCTV cameras with the Blue Iris system, operated by WA Police and the Office for Crime Prevention. law Society of Western australia Senior Vice-President Hylton Quail said it was “highly inappropriate” for the Premier to tell departments “how they should treat potentially sensitive information. This issue raises serious privacy concerns.”
The Sunday Times, 29/11/09
Members can view 2010 media articles featuring comment by the Society at www.lawsocietywa.asn.au/inthemedia.htm
18 February 2010
Feature
Henry and Susannah
Henry Cabell was convicted of burglary on 1 February 1783, when he was 19 or 20 years old. He and two others, his father (also Henry Cabell) and Abraham Carman, had broken into a shop and stolen a haunch of pork, a leg of lamb, a brass saucepan, a feather mattress, blankets, sugar, soap and sundry other items. All three were sentenced to death and the two older men were hanged. Henry’s sentence was commuted to transportation to the American colonies for 14 years.
Susannah Holmes had earlier been convicted on a charge of theft, from the home of Jabez Taylor, where she worked as a servant. She was sentenced to death, but the judge recommended a reprieve, which was granted. Her sentence was also commuted to transportation to America for 14 years.
Henry and Susannah probably met for the first time in Norwich Gaol. Meet they certainly did, as Susannah was delivered of a child on 17 February 1786; he was christened Henry and the older Henry was always acknowledged as his father.
The three of them remained in custody, while the authorities decided what to do in consequence of the loss of the American colonies. By early 1787, a decision had been made to set up a new colony at Botany Bay and Sir Arthur Phillip RN received instructions from the King on 23 April 1797 and his commission
Australia’s First Litigants
as Governor four days later. At that time there were four women being held at Norwich Gaol awaiting transportation and as the new settlement needed females, it was decided that three of them, including Susannah, should be sent. The fourth was too old and left behind. So was Henry: male prisoners were in plentiful supply and he was not chosen.
Plymouth to australia
When the time was approaching for the Botany Bay fleet to depart, the three women and little Henry were taken to board the Charlotte, accompanied by a turnkey named John Simpson. As he had no papers for the child, the ship would not receive the boy and Simpson had to bring him back to shore, leaving Susannah on the ship. These distressing circumstances caused him to travel by coach from Plymouth to London to wait upon the Home Secretary, Lord Sydney. Perhaps surprisingly, Simpson managed to gain an audience and returned to Plymouth with written directions from Sydney’s private secretary that both mother and child were to go to Australia, on the Friendship (a hospital ship) and that Henry Cabell (the older) was also to go to that place on that ship.
Certain newspapers became aware of and wrote up this romantic tale. Lady Cadogan took up a public subscription and £20 was raised and spent on items which the family could use in Australia. They were entrusted to Rev Richard Johnson who in
Ian Temby ao QC
Barrister, 3 St James Hall Chambers
Feature
February 2010 19
Feature
turn gave them to the master of the Alexander, a man named Sinclair.
The voyage took 36 weeks and for the greater part of it Henry, Susannah and child Cabell were on the same vessel. However, because certain of the women convicts on the Friendship behaved in a manner which outraged morality, even at sea and for the time, all of them were taken off the Friendship, replaced by livestock and taken to other ships. Susannah and her child arrived in Sydney Cove on the Charlotte. Some time later it was discovered the parcel of goods which was supposed to be the Cabells’ was missing – perhaps stolen, perhaps lost, or perhaps thrown overboard by somebody who thought felons should not be encouraged to rise above their station.
It is interesting to note that each of Henry and Susannah signed the petition by subscribing a mark, that is to say a cross. It is also interesting and may be significant, that after formalities the petition commenced in this way:
“Whereas Henry Cable and his wife, new settlers of this place, had before they left England a certain parcel …”
Commentators on the case have opined that the words were struck out because of their misleading nature and nothing inserted in their stead because an honest word to use in lieu would have been “convicts” which would have brought the law of attainder into operation: the attainder doctrine was that those sentenced to death for a felony ceased to exist in law so they could neither sue nor hold property until pardoned. Probably this was known to Collins, although he was a military man not a lawyer. It may be that judgement was given in knowledge that the attaint operating upon each of the plaintiffs existed but ought be ignored as more than half of those belonging to the new colony were convicts.
According to Blackstone’s Commentaries on the Laws of England, I, 107:
“… if an uninhabited country was discovered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediately then in force. But this must be understood with very many and very great restrictions. Such colonies carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; … What shall be admitted and what rejected, at what times and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in counsel …”
It is known that Collins had Blackstone with him in Sydney.
...because certain of the women convicts on the Friendship behaved in a manner which outraged morality, even at sea and for the time, all of them were taken off the Friendship, replaced by livestock, and taken to other ships.
The first Civil Case
There were early criminal cases. To give but one example, in the words of the Judge-Advocate, David Collins:
“The month of May opened with the trial, conviction and execution of James Bennett, a youth of 17 years of age, for breaking open a tent belonging to the Charlotte transport and stealing thereout property above the value of five shillings. He confessed that he had often merited death before he committed the crime for which he was then about to suffer and that a love of idleness and bad connexions had been his ruin. He was executed immediately on receiving his sentence, in the hope of making a greater impression on the convicts than if it had been delayed for a day or two.”
The first civil case was commenced by Henry Cable and Susannah Cable on 1 July 1788. (They generally called themselves Kable after he was pardoned some years later and the spelling was sometimes Keable, but in the proceedings, Cable appears). They petitioned the Judge-Advocate to have Sinclair, master of the Alexander, appear to show cause why their goods:
“which were collected and bought at the expence of many charitable disposed persons for the use of the said Henry Cable, his wife and child” and shipped on the Alexander were not – “duly and truly delivered in that ample and beneficial a manner as is customary in the delivering of goods. And also humbly prays you will on default of the parcel not being forthcoming take and use such lawfull and legal means for the recover or value thereof, as your honour shall think most expedient”.
“… if an uninhabited country was discovered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediately then in force.“
The Court comprised Collins as Judge-Advocate, the Rev Richard
Johnson and John White, the Surgeon-General. On 1 July, the
Court issued a warrant under the hand and seal of the Judge-
Advocate, directed to the Provost-Marshall, commanding him to
bring Sinclair before the Court the following day. On 2 July, the
matter was stood over until 5 July, when the Provost-Marshall
did as the warrant instructed. According to the records, Sinclair
“joined issue on the business”, evidence was given by the first
mate of the Alexander, a steward of that ship and John Hunter,
the captain of the Sirius, after which the Court “found a verdict
20 February 2010
Feature
for the plaintiff, to the value stated by him in the complaint”, that is to say £15. Kercher, “Debt, Seduction and Other Disasters”, at xix, was surely right in saying:
“This was a great victory for the two illiterate convicts, who managed to overcome the restrictions of English law, the military tone of the colony and the court and the vast legal and social gulf between them and Sinclair. In its first case, the civil court had implicitly declared that New South Wales was to be subject to the rule of law, rather than being administered in an arbitrary or military way. The decision showed that the law was represented in the penal colony not only by punishment through exile, the lash and the gallows, but also by enforceable rights which were available even to those at the bottom of the social heap. It was a local version of law; however, one which was not recognised officially in England. There was not a town or a courthouse at Sydney Cove in July 1788, not even a bridge across the Tank Stream, but there was already a functioning legal system to resolve civil legal disputes.”
Who put the Cabells up to it? Who wrote out the petition? To what extent was the Governor an acquiescing party? The answers to these questions cannot be provided with confidence, but it seems likely Rev Johnson played an important role. He had placed the parcel of goods with Sinclair and, not being a military or naval man, may well have been offended by the attitude displayed by Sinclair to loss of the goods. But if this surmise is right, the fact Johnson sat as a member of the court must give
rise to disquiet. It seems obvious the plaintiffs had one or more friends in high places: it often helps.
Prosperity, Decline
Henry Cabell and Susannah Holmes were married, at Sydney Cove, on 10 February 1788, in a group wedding. This was the first wedding ceremony in the new colony. They had 11 children, only one of whom died in infancy. The second child, Dianna, commonly called Dinah, was the second white person born in Australia. The fourth child, James, was born on 19 August 1793 and murdered by Malay pirates in the Malacca Straits in 1809 or 1810. According to the online edition of the Australian Dictionary of Biography, Henry Jnr and James were mariners, commanding vessels owned wholly or in part by their father. This seems improbable in the case of James, as at the time of his death he was only 16 or 17: would a youth of that age have been entrusted with command of even a small trading vessel?
Henry Cabell and Susannah Holmes were married, at Sydney Cove, on 10 February 1788, in a group wedding. This was the first wedding ceremony in the new colony.
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February 2010 21
Feature
Ian Temby ao QC
• Commissioner, Royal Commission into the Finance
Broking Industry 2001–2002.
• Foundation Commissioner of ICAC (NSW)
1989–1994.
• Commissioner, WA Legal Aid Commission
1978–1981.
• Appointed Officer in the Order of Australia in
2004 (AO).
Ian Temby QC was admitted to legal practice on
23 December 1966 and joined Perth law firm Northmore
Hale Davey and Leake.
In 1972, Mr Temby co-founded the Legal Advice Bureau.
He went to the Bar in Perth in 1978 and was appointed
a Queen’s Counsel on 16 July 1980.
Mr Temby is a past President of the Law Society of
Western Australia and of the Law Council of Australia.
He was appointed the first Commonwealth Director of
Public Prosecutions in 1984.
In 1989 he was appointed the first Commissioner
of NSW Independent Commission Against Corruption
(ICAC) and held the position until 1994.
He resumed private practice in Sydney later that year.
Henry Kable, as he was known from the mid-1790s to the end
of his long life, was appointed by the Governor as an overseer,
then a constable and nightwatchman and later chief constable,
being dismissed on 25 May 1802 for misbehaviour after being
convicted for breaching port regulations and illegally buying
and importing pigs from a visiting ship. He became a publican
– his first hotel, The Ramping Horse, was opened in 1798 – a
merchant and shipowner. Kable went into partnership, first
with the boat builder James Underwood and later with him and
Simeon Lord, a trader. Lord, Kable & Underwood were involved
in whaling, sealing, sandalwood and other trading, both
wholesale and retail. Lord withdrew in 1808 and Underwood
split from Kable in the following year. Shortly beforehand Kable
had divested himself of much of his property to his oldest son,
Henry. In February 1810, he announced that such son had
taken over the entire management of his Sydney affairs and in
the following year he moved to Windsor, where he operated a
store and brewery. The divestiture seems to have been a good
move, as a judgement of more than £12,000 – a fabulous sum
– was awarded to Lord against Kable in 1811. Kable Snr did
remarkably well for a man who was functionally illiterate, but he
did know how to add up a column of figures.
Kable was granted farms at Petersham Hill in 1794 and 1794
and bought out several others in the vicinity shortly after land
was granted to them. By 1809, he also held five farming lots
in the Hawkesbury region and 300 acres at the Cowpastures,
together with real estate in Sydney. At one time the family were
housed in northern George Street, on the site on which the
Regent Hotel was later built: (the hotel restaurant, Kable’s, is
named after him).
Susannah Kable died on 8 November 1825, at the age of 63. He
lived on until 16 March 1846 and was buried at Windsor. It may
not be a matter of dishonour that Governor Bligh imprisoned
him and others for a month and fined each £100, for sending
Bligh a letter “couched in improper terms”. But the records
show that Kable was a highly litigious man and he seems to
have been not very nice.
a Personal Note
When I was young, living in Perth, our family was regaled from
time to time about an ancestor who was on the First Fleet as a
convict, having been a highwayman, sentenced to death, but
instead sent to Sydney in chains. We were told that the chaplain
of the fleet hired a horse to ride to London, where he spoke
with the secretary of state for the colonies, who said he did not
care where they went, but all three were to go together. Also
that the former highwayman – we had the name, Henry Kable –
prospered so mightily he must have been a remittance man. The
fact he managed to impregnate a fellow convict was a matter of
some pride, but more so the fact that he carried Governor Phillip
ashore at Farm Cove. That was and is the family legend.
Much of this is, while not nonsense, exaggerated to the point of
error. But there may be something in the last contention. Dinah
Teale (née Kable) died in 1855 and her death was marked in the
local Hawkesbury newspaper by a story which began:
“DEATH OF THE OLDEST WHITE AUSTRALIAN
On Friday last, Mrs Dinah Teale, widow of the late John
Teale, Miller, of Windsor, died at her residence in Macquarie
Street. Mrs Teale was the second white person born in
Australia and the first to live to maturity. Mrs Teale’s father,
the late Henry Kable, was the first man of Governor Phillip’s
party to set foot ashore at Sydney in the name of the British
Government.”
As others have pointed out, there must have been people still
living in 1855, including First Fleeters, who might have had
cause to dispute the claim, but nobody seems to have done so.
Finally in what is effectively a personal postscript, I live with my
family in a house in Kensington Road, Summer Hill, which we
discovered, after we had moved in, is on land that was granted
to a couple of soldiers in 1795 and within days transferred to
Kable. He also owned the land on which the Summer Hill railway
station is situated and from which I catch the train to work.
22 February 2010
February 2010 23
News
Christopher Steytler QC, Parliamentary Inspector
of the Corruption and Crime Commission of
Western Australia, was appointed as a Winthrop
Professor of Law at the University of Western
Australia in late 2009.
Mr Steytler, a former President of the Western Australian Court
of Appeal, will hold a fractional appointment at the University.
Mr Steytler said:
“I was approached by Professor Bill Ford, the Dean of the
Law School at UWA, and invited to take up the role. He
was content that I should do so on a fractional basis so as
to accommodate my role as Parliamentary Inspector of the
CCC.”
In addition to teaching aspects of the University’s LLB program
he will undertake a research role, focusing primarily on
corruption issues, although he acknowledges he has already
been sidetracked by some interesting issues on other topics
which he has been asked to present papers upon.
Mr Steytler retired from the WA Supreme Court in January 2009
after more than 14 years’ distinguished service, including four as
President of the Court of Appeal. Mr Steytler said:
“I have enjoyed the change after 14 years on the bench. My
role as Parliamentary Inspector of the Corruption and Crime
Commission has proved to be challenging and I am glad to
have taken it on. Academic life also presents challenges, but
I am enjoying them and hope to do so even more once I
Post-Bench Life Keeping Steytler Busy
have fully settled in. I have found, though, that the two jobs
amount to more than the sum of their parts!”
Mr Steytler also plans to spend more time with his family
following his retirement from the judiciary, even though his
current roles keep him busy. He explained:
“I do hope to be in a position to spend more time with my
wife Georgina, who helps me with research at the university
and my grandson Sam. I also hope to continue to do some
travelling, albeit on a more limited basis than I had originally
anticipated.”
24 February 2010
Feature
In October 2009 Paul O’Brien, retiring from the criminal Bar at 524 Hay Street Perth, was the guest speaker at the packed Criminal Lawyers’ Association Annual Dinner. Paul, a great raconteur and favourite of the Bar and courts, gave a memorable speech (the crowd responded with a
standing ovation) and agreed to this interview with Brief. Some years ago, too many to remember, Paul was an occasional cartoonist for Brief and for this interview provided some new cartoons.
Question (Q). Paul, you were a young man from Adelaide. What inspired you to study law at UWA in the 70s?
Reply (R): It was practicality rather than inspiration that led me to study in Perth. I travelled from Adelaide in 1969 to work in the North West, intending to return to SA. At the Mount Newman Mine site I happened to meet the Dean of the Law School Professor Douglas Payne and Mrs Vivien Payne: they were on holidays. Douglas Payne wisely suggested first year law at UWA, the Adelaide University Law Faculty already having the ‘year in another faculty’ rule. I could avoid the extra year and gain a few units at the same time. At the end of the year I applied to the new Dean, Eric Edwards who let me in. Thereafter, year by year, I acclimatised and remained in WA.
Q. Briefly outline your career in the Western Australian legal profession
R: My career should only be briefly stated. The completion of articles of clerkship at Muir Williams Nicholson & Co (with the redoubtable DK Malcolm Esq QC) saw the end of 1975. I was admitted in March 1976 the same day as Richard Bayly and other stragglers who had taken the overseas holiday gap. Pip Thompson, later Assessor of Criminal Injuries Compensation, found me a job at the ALS. There I could implement my interest in criminal trial work. John Huelin was the Principal Legal Officer. There was a bath behind his office chair in the old house at 119 Aberdeen Street, now a car park. A good number of eminent counsel drifted in and out and I enjoyed the tuition, the work and the camaraderie.
In 1978 I took a three-year contract with the Department of Corrections. One task was to prepare the Prisons Act. It may have been the only Act to require amendment between proclamation and operation dates.
Person of Interest: Paul O’Brien
In 1981 Richard Bayly and I started our partnership in Howard Street Perth. We continued our practice until November 2005 when Richard joined the magistracy. I finished up in June 2009.
Q. Why did you stop acting as a proctor and other reasons you retired from practice?
R: Without much interest in ‘wills, wives and wrecks’, it was a matter of retiring from barristering and solicitoring. At age 60, 33 years after admission I reckoned on having about 10 years of my limited alertness left. The courts were tiring of my fly-blown metaphors and didn’t permit paintbrushes or cigars.
Q. You had a very happy legal partnership as Bayly and O’Brien for many years. Tell us was it as much fun as it looked like to outsiders? And who was the quiet one in the partnership? Explain!
R: Practice with Bayly was as good as it looked and as good as it sounded. Forever entertaining and enjoyable I can say without ramification or rebuke that Bayly was the hyperglycaemic dynamo and I was the quiet and retiring partner. While I was mostly content with the jury trial work, Bayly darted everywhere. He took the firm’s only successful appeal to the High Court (Bull v Marotta).
alison Gaines
Brief Editorial Committee
Paul O'Brien, Philip Urquhart, John Prior & Judge Rob Mazza
February 2010 25
Feature
Q. You’ve practised in the criminal jurisdiction almost exclusively. You have worked among the giants of the criminal Bar. Tell us about some of the most effective advocacy you have witnessed.
R: At 5 foot 8 inches I regularly worked amongst giants. I’ll
refrain from comment on the current crop but Leo Wood was
the most effective criminal trial advocate I ever saw. In the
Ramsell wilful murder case (which as an articled clerk I witnessed
as jury foreman) Leo covered every defence available. Identity,
provocation, self-defence, non-insane automatism and accident
were covered along with causation and intent, seamlessly and
successfully. Leo exhibited two of his traits or tricks at that trial,
removing his false teeth during the prosecutor’s closing address
and announcing when the Clerk of Arraigns couldn’t find the
confession statement: “I’ve found it Your Honour. Here it is …
for what it’s worth”. He’d been sitting on it and, as he spoke he
dropped it, unpinned, so that it fluttered to the floor just as the
usher arrived at the Bar table.
Geoffrey Miller QC, in full flight, as he often was, was
a formidable controller of evidence-in-chief and in cross-
examination.
Ron Cannon working at a pace concomitant with that of the
jury would gradually assume control or command of a case. He
could almost imperceptibly change ground to accommodate,
or create, the unexpected. He kept trials short and his was the
strength from mastery over fact and vast knowledge of the law.
Brian Singleton QC could always accommodate the Bench:
“Correct me if I am wrong Mr Singleton, I may be entirely wrong
…” “Your Honour is never entirely wrong …” etc.
As prosecutor I’ve seen Jim Mazza quietly dispose of a body of
evidence (mine) by relentless but courteous cross-examination.
Of prosecutors Ron Davies QC (or as one client of mine knew
him, Don Rabies) had presence and impact on counsel. Mike
Muller was one of the most effective prosecutors simply by
remaining at his end of the Bar table i.e. by being fair. As Leo
Wood might have said “he never tried to get into the witness
box or in with the jury panel”.
Q. Summarise for our readers the less effective styles of advocacy in the criminal jurisdiction.
R: There are no doubt styles of advocacy but to be economical
I’ll try to be embracive. If advocacy is the espousal of one
person’s cause by another, defence counsel does that by legal
argument, addressing and questioning. Defence counsel doesn’t
have to prove anything. Understanding the roles should guide
argument and addresses and eradicate capricious questioning,
repetitive questions and questions seeking to have a belligerent
witness agree with the accused’s position i.e. questions that
don’t produce results.
Good advocacy emerges as much from the elimination of
bad practices as it does from retaining or developing positive
attributes (good memory, precision, modesty, knowing the rules
of evidence etc.).
The less effective styles of advocacy often result from lack of
preparation or from other omissions:
• Unfamiliarity with all the evidence, not just one’s own.
• Inability to listen to the answer.
• Failing to assess a witness and adjust one’s style to suit.
• Not recognising the potential for common traits of human
nature to influence a witness.
• Failing to be courteous.
• Failing to open.
• Failing to read the trial transcript before closing.
Parts of this incomplete list apply to cross-examination which,
with the closing address, may be critical in the trial process.
Those are the areas for the advocate to concentrate upon.
It’s a big question and I feel some inadequacy in the answer. I’ve
not mentioned good/bad advocacy in mitigation. There the task
is to preserve liberty and proceed on the basis that you can help
a judge make a decision or change his or her mind.
Q. Please tell the readers about your favourite and most disliked parts of the practice of criminal law (and other ‘Rumpole of the Bailey’-type moments).
R: In the practice of the criminal law the dealings one has with
other practitioners is the best part. Not just the social interaction
and shared reminiscences but the trust and reliance that underlie
professional intercourse make ours a special calling. A client
once told me that he knew the legal professions was the second
oldest profession, he also told me he knew why, but he wouldn’t
elaborate.
While the phrase ‘learned friend’ means what it says that’s not
always understood by the client. I’ve heard complaints that an
One of Paul’s cartoons
26 February 2010
Feature
accused was “white-anted by my last lawyer who was best mates with the prosecutor and let that fact slip during my last trial …”
Conversely it’s breaches of ethical requirements that most outrage court lawyers. Such instances are rare but when they occur must be attended and resolved. (The rare, odd partisan attitude by the rare odd judge is not usually appreciated by either counsel).
Compliments are favoured by criminal lawyers, probably because they are sparse. I received a back-handed one once. An old client who visited when he heard of my impending retirement mused, “if you retire I suppose I’ll have to retire too”.
Q. What have been some of the most effective judicial practices you have seen in court?
R: I was always impressed by judges who:
• kept an eye on the clock and regulated proceedings according to time-honoured tradition
• took seriously the requirement to explain charges and the trial process pre-evidence
• charged and directed a jury with reference to the facts of the case
• in an appropriate case in sentencing offered some salutary encouragement to the offender.
Q. What have been the highs and lows of law reform affecting the criminal jurisdiction?
R: The post-Duke advent of the video record of interview may be described as a high. Historically courts hadn’t always been strict enough in the voir dire challenging the admissibility of confession material. This gave rise to some emboldened investigators and disheartened some counsel who would not bother with the procedure. The recorded interview has resolved most of the difficulties for all concerned.
There’s no room for exposition here but some amendments to the Evidence Act have increased the risk of wrongful or dubious convictions in cases of sexual assault. The abolition of the
preliminary hearings has been counter-productive and resulted in, or is linked to, a failure in the early marshalling and disclosure of available evidence and unnecessary trials. I am also concerned about what I describe as the opposite to reform: the trend to piecemeal populist amendments of criminal law, created to protect classes of citizens and limiting or abolishing judicial discretion, is most unhealthy and eventually results in unfairness. All law reform should be based on principle.
Q. What have been the highs and lows of reform to criminal procedure?
R: May I answer the question in this way, Alison. The highs and lows of reform to criminal procedure are set out in the Criminal Procedure Act and related legislation. The inherent danger of procedure is its rivalry with its intellectual superior, principle.
Q. There is a baby boomer generation of criminal lawyers who are taking judicial appointment or retiring. In what shape is the criminal Bar and are we as a profession properly nurturing new generations of practitioners?
R: We have been fortunate in Western Australia, as a profession and as a community, to have our judiciary. In the 40 years or so I have been involved in the law I have never heard or used the word ‘embracer’ (except then).
In recent years there has been a considerable influx of young practitioners into the criminal courts. That will no doubt continue. Whilst ‘all is well’, care is needed to maintain the integrity of the criminal Bar. The days of doing the first trial with another senior practitioner are gone and counsel rely on the bonhomie of colleagues in preparation and conduct of trials. That may need to be formalised and with increasing workloads, may be a matter of interest within the ranks of the DPP. In general terms I have been impressed with new generations of practitioners.
Paul O’Brien used to contribute cartoons to Brief
Another Paul O’Brien original
February 2010 27
News
It’s been 90 years since Kott Gunning first opened its
doors to provide Western Australia with legal services.
I am the latest in a long line of other articled clerks who
have walked green through these doors during the last
90 years. Many of Kott Gunning’s past articled clerks
have gone on to become judges, politicians and leading figures
in the Western Australian community. They include Malcolm
McCusker QC, John Quigley MLA and Billy Sneddon (leader of
the opposition during the Whitlam years), to name only three.
It’s reassuring to articled clerks everywhere to think that some of
our most prominent public figures were once probably trotting
around the Kott Gunning office selling tickets to the Social Club
Easter Raffle or arranging the Melbourne Cup sweep.
On my first day at Kott Gunning I met Laurie James for the
first time; he’s been a Partner at the firm for over 40 years and
it is difficult to imagine the place without him. Because of his
encyclopaedic knowledge, the phrase “just ask Mr James” is
regularly bandied about the Kott Gunning offices for the most
obscure and complex of legal problems. I have spent days
lisa Wolyniec
Articled Clerk, Kott Gunning
Kott Gunning’s 90th Anniversary
researching matters which Mr James will answer in a couple of
minutes. But I digress.
In this initial chat, Mr James regaled me with tales from when he
first started his articles at the firm in 1964, when it was called
Kott Wallace & Gunning. He dictated over the shoulders of
secretaries who wrote in shorthand and typed for the rest of the
afternoon. There were no female lawyers and people smoked in
their office! He showed me stationery he was issued that first
day – a glass ink pot holder with two ink wells: black for writing,
red for corrections. It is incredible how far not only technology,
but social standards and the law have developed in the 90 years
since Kott Gunning was founded.
Kott Gunning has necessarily evolved over the course of its
90-year life. In 1919 the firm consisted of a sole practitioner,
Max Kott, practising primarily in mining law and insolvency.
We are now a busy commercial law firm of over 60 people,
practising mainly in commercial, commercial litigation, building
and construction, insurance, family, property and personal injury
law.
The firm celebrated its 90th birthday in style on 19 November
2009 with an elegant soirée at Government House which
brought together the Kott Gunning community of employees,
former partners, judges and clients.Laurie James and Malcolm McCusker QC
The Government House Ballroom
28 February 2010
News
v The Society meets with the Deans of law Schools
The Deans of Law Schools – Associate Professor Jane Power, University of Notre Dame Australia; Professor Bill Ford, University of Western Australia; Professor Mark Stoney, Edith Cowan University; and Dr Augusto Zimmermann, Lecturer in Law of Murdoch University (in place of Professor Gabriël Moens, Dean of Law at Murdoch University) met with the Executive of the Society in October 2009.
From left: 2009 Society Senior Vice-President Hylton Quail, Associate Professor Jane Power; Professor Bill Ford; Professor Mark Stoney; and Dr Augusto Zimmermann
********
v The Society meets with the Directors of Public Prosecutions State and Commonwealth
Bruno Fiannaca SC, Acting Director of Public Prosecutions (State) and Ros Fogliani, Deputy Director of Public Prosecutions (Commonwealth) met with the Executive of the Society in October 2009.
From Left: Ros Fogliani, Deputy Director DPP (Commonwealth); 2009 Society President Dudley Stow; and Bruno Fiannaca SC, Acting Director of DPP (State)
Meetings of the Minds
v The Society meets with the office of the State Coroner
Mr Alastair Hope, State Coroner, met with the Executive of the Society in November 2009.
From Left: 2009 Society President Dudley Stow and Alastair Hope, State Coroner
********
v The Society meets with the Commissioner for Children and young People
Ms Michelle Scott, Commissioner for Children and Young People, met with the Executive of the Society in November 2009.
From Left: 2009 Society President Dudley Stow and Michelle Scott, Commissioner for Children and Young People
February 2010 29
News
v The Society meets with the leader of the opposition and Shadow attorney-General
Hon. Eric Ripper MLA BA, DipED – Leader of the Opposition and John Quigley MLA LLB – Shadow Attorney-General met with the Executive of the Society on 9 December 2009.
From left: Hon. Eric Ripper MLA; 2009 Society President Dudley Stow; John Quigley MLA
The library is offering family law practitioners a free two-week trial of the Family Court of Western Australia Decisions database. This web-enabled database gives access to the decisions of the Family Court from 2007 onwards. Family law practitioners
are advised to contact the library for a password.
The library will again be offering six one-hour CPD training sessions starting in March 2010 covering case law research, legislation research, LexisNexis and Thomson Legal Online.· Participants will qualify for one (1) CPD point for Legal Skills and Practice (Competency Area 1).
Induction tours for articled clerks will be held on Mondays and Wednesdays throughout February and March, lasting about an hour. Participants will be shown around the library by staff members and details of library procedure and leaflets will be provided to enable library users to make the most of the Law Library.
Further enquiries may be made by contacting the library at [email protected] or visit www.scwalawlibrary.com.au/library for further information about the library.
What’s Happening in the Supreme Court Law Library
v The Society meets with the Inspector of Custodial Services and Director, Crime research Centre, uWa
Professor Neil Morgan – Inspector of Custodial Services and Associate Professor Frank Morgan – Director, Crime Research Centre, UWA met with the Executive of the Society on 10 December 2009.
From left: Professor Neil Morgan; 2009 Society President Dudley Stow; Associate Professor Frank Morgan
For Further InFormatIon:Contact Simon MorrisonPhone: (08) 9319 5800 www.shine.com.auLoCaL oFFICeS natIonaL FIrm
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30 February 2010
Feature
“Access to justice” is a hot topic. 1 Private litigation funders
have also attracted attention in recent times. 2 In some way,
the establishment of the Civil Litigation Assistance Scheme
(CLAS) under Legal Aid WA is a combination of the two – a
civil litigation funder that provides access to justice by assisting
plaintiffs who are unable to pay the cost of civil proceedings and
who would not otherwise be eligible for a grant of legal aid.
The distinguishing feature being that CLAS is a self-sustaining,
non-profit-making fund administered by a public body, Legal
Aid WA.
The rationale behind a civil litigation assistance scheme is that
it will improve access to justice for the “sandwich class”. That
is, to assist plaintiffs who do not ordinarily qualify for legal aid
but are not able to fund civil proceedings through a private
lawyer. It is not the purpose of the scheme to promote lengthy,
costly litigation. Rather, to provide those people otherwise
unable to access the justice system a method of resolving
disputes.
Support for litigation assistance Schemes
Litigation assistance schemes have been operating worldwide
since the 1980s. In Australia, the Law Society of South Australia
has been successfully operating its Litigation Assistance Fund
since 1992.
In February 2009 the UK Bar Council released a Discussion
Paper that supports the establishment of a “Contingent” or
“Charitable” Legal Aid Fund. It is described, in the simplest
form, as a “pooled fund which is financed by sums derived from
the fruits of successful civil litigation” 3 and is not profit-making.
This is similar to what is proposed under CLAS.
At the recent Colloquium of the Judicial Conference of Australia,
Justice Patrick Keane, of the Queensland Court of Appeal, made
reference to the UK Bar Council’s Discussion Paper and noted
that “funding arrangements might be the responsibility of a
public agency.” His Honour distinguishes a Contingent Legal Aid
Fund from private litigation funders and states that:
CLAS for the Sandwich ClassThe Civil Litigation Assistance Scheme at Legal Aid WA
This model recognises the fundamental need to ensure that legal
remedies are available to those who have been wronged, that
harm done is recompensed and that obligations are honoured.
At the same time it recognises that “Satisfaction that a wrong
has been righted” is simply not a marketable commodity and
that litigation funding arrangements operate by extracting a
profit from the administration of justice which – apart from
being unattractive in itself – is apt to inflate legal costs. The
establishment of a contingent Legal Aid Fund recycles resources
deployed in the public interest rather than allowing them to be
appropriated by entrepreneurs. 4
Legal aid services are not free. Similarly, litigation assistance
schemes are self-financing from contributions of successful
litigants. Contrary to concerns about drawn-out litigation, the
incentive in this scheme is to conduct litigation sensibly as claims
that are not successful will deplete the available funds without
replenishing the pool. As the UK Bar Council pointed out, there
is “no reason to abuse or distort the litigation process” 5, as
the scheme is essentially non-profit-making, any fees go back
into the fund as a pooled resource to fund litigation to improve
access to justice.
ClaS and legal aid Wa
CLAS is not a new scheme. The Litigation Assistance Trust Fund
was established in 1991 by the Law Society of Western Australia
to assist plaintiffs who were unable to pay the cost of civil
proceedings. The Fund ceased to make grants of assistance in
the early- to mid-1990s. A proposal was made by the WA Legal
Aid Commission that the Litigation Assistance Trust Fund be
wound up and the funds transferred to Legal Aid WA so it could
establish a litigation assistance fund.
The proposal was endorsed and the Law Society Council
resolved to transfer the funds to Legal Aid WA on 29 June
2008 on the understanding that none of the funds be directed
towards family law or criminal law matters. Legal Aid WA
established the CLAS in accordance with the Legal Aid
Caroline Wright
Legal Aid WA
February 2010 31
Feature
Commission Act 1976 (WA) in November 2009. Assistance under
CLAS will cover both professional legal costs and disbursements.
All applications must be submitted by a private practitioner on
behalf of the plaintiff. All applications will be subject to a means
test with a higher threshold than current grants of legal aid
and a stringent merits test, which favours claims with a likely
prospect of success.
Applications will be processed by the administrator of CLAS who
will seek recommendations from members of the CLAS Advisory
Panel as to whether funding assistance should be provided. This
panel will be made up of private practitioners with significant
civil litigation experience.
In order to ensure the fund is self-sustaining, successful
litigants will be required to pay a conditional fee of up to 20%
of any recovered judgement in addition to recovered costs. The
risk of the litigation proceedings will therefore be borne by the
scheme.
Conclusion
CLAS is not in any way a replacement of current grants of legal
aid, rather an additional means to help provide access to justice
in the civil law area. CLAS currently has funds of just over $1
million and is accepting applications for consideration. CLAS
was officially launched by the Hon Wayne Martin, Chief Justice
of Western Australia, on 30 November 2009. Documentation
for CLAS is available on the Legal Aid WA website –
www.legalaid.wa.gov.au. If you require any further information,
contact [email protected].
Notes
1. See Report of the Access to Justice Taskforce – A Strategic Framework for
Access to Justice in the Federal Civil Justice System released by Federal
Attorney-General Robert McClelland on 23 September 2009 for public
consultation.
2. See recent media articles “Judge’s call for rein on litigation funders”,
The Australian 16 October 2009 and “Wives litigation for greater split”
The Australian 26 October 2009. See also Lord Justice Jackson, Review
of Civil Litigation Costs: Preliminary Report (May 2009) which considers
litigation assistance funds and conditional fee arrangements in detail.
3. UK Bar Council. The Merits of a Contingent Legal Aid Fund: Discussion
Paper (2009) p2
4. “Access to Justice and Other Shibboleths”, Justice Keane, Court of
Appeal, Supreme Court, Queensland, presented at the JCA Colloquium,
Melbourne, 10 October 2009 (referenced at p14).
5. UK Bar Council. The Merits of a Contingent Legal Aid Fund: Discussion
Paper (2009) p16.
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32 February 2010
Feature
Paris lies at the heart of international arbitration in
continental Europe. It is home to the Secretariat
of the International Chamber of Commerce
International Court of Arbitration (ICC), one of
the world’s largest arbitral institutes and many
well-renowned arbitration firms and practitioners. In 2007 my
family and I moved to Paris for two years. I went, amongst
other things, to advance my French and skills in international
arbitration. Here, I provide some insights into the practice of
large-scale international arbitration gained while I was working
for Freshfields’ International Arbitration Group, headed by Jan
Paulsson, Lucy Reed, Nigel Blackaby and Constantine Partasides.
overview
The ability to conduct effective international arbitrations
will become increasingly important for Western Australian
practitioners in the coming years. There are at least two reasons
for this. Firstly, Western Australian-based businesses will find
themselves contracting more often with foreign parties as a
result of increasing foreign investment and involvement in
mining and oil and gas projects in the state and a general trend
towards globalisation of trade and commerce. Secondly, foreign
parties generally prefer arbitration to domestic litigation as a
means of eliminating anxiety about the neutrality of the tribunal
and venue. An additional reason for taking a closer look at
international arbitration is because the federal government has
placed it on the policy agenda. 1 One of the federal government’s
stated objectives is to ensure the International Arbitration Act
1974 (Cth) best supports international arbitration in Australia,2
thereby making Australia an attractive place for international
arbitration and increasing opportunities for Australian lawyers to
act as arbitrators and counsel.
When initially engaged in international arbitration, its similarity
with the common law adversarial system may lead one to
think that such arbitrations should be conducted in much the
same way as a domestic court case. As with many things, first
appearances can be deceiving. There are a number of differences
between domestic litigation and international arbitration that
lead to a change of approach and, perhaps, style in international
arbitration. I have set out below six areas where I had to increase
my knowledge or adapt my skills to become more effective
in international arbitration. These are: (1) drafting arbitration
clauses; (2) selection of arbitrators; (3) written pleadings; (4)
discovery; (5) oral pleadings; and (6) legal argument.
International Arbitration:A Parisian Perspective
arbitration Clauses
It is self-evident that the arbitration clause, the terms upon which parties agree to arbitrate, is one of the more important contractual provisions for parties contemplating arbitration as a means of resolving any disputes. It may then be surprising to learn that problems of construction, inconvenience or disadvantage often arise when the arbitration clause is subjected to the scrutiny of a dispute. Many of these problems can be avoided or diminished by appropriately drafted agreements to arbitrate. 3 In short, arbitration clauses should not be treated as boilerplate or added as afterthoughts; they require careful drafting and consideration of the legal and practical implications for the parties concerned.
Selection of arbitrators
Typically an arbitration clause, or the applicable rules of an arbitral institution, or a combination of the two, will allow for the appointment of three arbitrators. One appointed by each party and a third, the President of the tribunal, agreed upon by the two-party-appointed arbitrators or nominated by the arbitral institution. 4
While arbitrators must be impartial, one of the perceived advantages of arbitration is the parties’ ability to influence the nature of the tribunal that will determine their dispute. Indeed, the selection of the party-appointed arbitrator may be critical to the outcome of the dispute. Matters such as the arbitrator’s cultural, legal and political background, knowledge of the industry of the dispute, professional relationship with counsel for the parties and ability to command the respect of the other arbitrators during the tribunal’s deliberations should all be weighed up and taken into consideration as these factors may naturally make him or her more predisposed to the merits of one or other of the parties’ cases. Accordingly, the selection of the party-appointed arbitrator is an important decision involving significant tactical judgement.
The Written Pleadings
The written phase of an international arbitration follows a similar form to common law court proceedings. However, the contents of the written pleadings in international arbitration differ greatly from the notice pleadings of common law courts. They contain a narrative description of the party’s case together with legal argument and are submitted with all the witness statements, expert reports, documentary evidence and legal
michael feutrill
Barrister Francis Burt Chambers
February 2010 33
Feature
authority upon which the party relies in support of the case presented in the pleading. In substance, they are akin to the opening submissions of common law court trials.
Due to the length and complexity of pleadings of this nature, drafting them in a form that is persuasive, comprehensive and maintains the interest of the reader is a major challenge and requires considerable skill. A well-drafted pleading of this kind, although never bedtime reading, can be made pleasant prose and may be critical to a party’s success.
Discovery
Discovery is not a right in international arbitration. Nonetheless, tribunals normally order a narrow form of documentary discovery. The common form of the order permits the parties to request each other to provide specifically named documents or documents in a specific class that are not already in the possession, custody or power of the requesting party. 5 Discovery in the form of interrogatories or depositions (as is common in the US and Canada), if requested, could be ordered, but an order of this nature would be highly unusual unless made with the consent of both parties.
Disputes between parties relating to discovery and other interlocutory matters, tend to be less common in international arbitration than in domestic litigation because tribunals generally have low tolerance for such disputes. Tribunals have an expectation that the parties’ counsel will sort these matters out amongst themselves and tend to resolve any interlocutory disputes that are brought before them in a pragmatic and non-legalistic manner. The technical arguments and tone of submissions that are often seen in common law courts are not normally effective before an international tribunal. A different style of advocacy is usually required.
The oral Pleadings
After the written phase has been completed there is usually an oral hearing. These are typically much shorter than the equivalent in a common law court because most of the evidence and argument has been submitted with the written pleadings. As a result, even in the largest and most complex arbitrations, the parties’ opening oral submissions are relatively short (for example, one to two hours) and the balance of the time is devoted to cross-examination and re-examination of the parties’ witnesses. Examination in chief is not usually permitted beyond an introduction to the tribunal.
The time for the oral hearing is normally allocated equally between the parties. Accordingly, witnesses for cross-examination require careful selection and cross-examinations cannot always be developed as methodically and deliberately as is the case in common law courts. After re-examination, it is usual for members of the tribunal to also ask questions of the witnesses. This practice can be unsettling for the cross-examiner more used to the polite silence of most common law judges. I have had several tense moments during hearings when a member of the tribunal asked the witness the question that I did not dare ask myself. The more inquisitorial role of tribunals in international
arbitrations adds another dimension to the complexity and skill
with which witness examinations need to be performed. 6
Language is another facet of international arbitration that
complicates and adds to the difficulty of hearings. For instance,
it may be necessary to adapt the way in which questions are
asked or submissions are put when dealing with arbitrators
for whom English is a second language. Likewise, it takes a
good degree of skill and patience to conduct an effective cross-
examination through an interpreter. I found this to be one of the
more challenging, yet ultimately satisfying, aspects of practising
in international arbitration.
legal argument
In international arbitration the law governing the dispute can
be a law with which neither counsel for the parties, nor the
members of the tribunal, are familiar. The formulation and
presentation of legal arguments in an unfamiliar law is often the
most difficult task facing an advocate in international arbitration.
It takes considerable diligence to craft uncomplicated, concise
and persuasive arguments where the legal concepts are new
and complex, appear counterintuitive to a common law lawyer,
or are obscured through translation. Nonetheless, foreign law
elements can add to the interest and professional reward of
practising in international arbitration.
Conclusion
The skills acquired during practice and training in Australian
domestic litigation provide an excellent platform for local
firms to provide world-class services to clients engaged in
international arbitration. With additional specific experience,
subtle adaptations of approach and technique and assistance
from foreign law experts and others, Western Australian lawyers
will be well-placed to match the most effective international
legal teams before international tribunals.
Notes
1. Review of the International Arbitration Act 1974, November 2008,
Commonwealth Attorney-General’s Department.
2. ibid., para[4].
3. The arbitration clause effects such matters as the language of the
arbitration, the cost of the arbitration, the constitution of the tribunal,
the jurisdiction of the tribunal and admissibility of claims before it, the
remedies available to the parties, the parties’ ability to obtain timely
awards or orders for interim measures, the place of the arbitration,
the rules governing the arbitration, the finality of the award, the
enforceability of the award and the ability to ensure little or no scope for
interference in the proceedings by national courts.
4. See, for example, ACICA Arbitration Rules, Rules 8-10, SIAC Arbitration
Rules, Rules 5-7 and ICC Arbitration Rules, Art.8.
5. On questions of discovery, tribunals also often adopt or use as a guide
the International Bar Association Rules on the Taking of Evidence in
International Commercial Arbitration, 1 June 1999, Art.3.
6. Reflecting the global character of international arbitrations, the procedure
adopted by tribunals draws on aspects of both the civil law and common
law traditions.
34 February 2010
Feature
Since its inception in 1966, the Law Association for Asia and the Pacific (LAWASIA) has built an enviable reputation among lawyers, business people and governments, both within and outside the region, as a committed, productive and genuinely representative
professional association of representatives of bar councils, law associations, individual lawyers, law firms and corporations principally from the Asia-Pacific region.
It has achieved this through its establishment of a strong and effective professional network of lawyers who come together to exchange ideas and information on regional issues and to establish a network of working relationships in the important region of the Asia-Pacific.
The 22nd Conference of LAWASIA was recently held in Ho Chi Minh City, Vietnam on 9-12 November 2009. The Conference was held in conjunction with the 13th Conference of Chief Justices of Asia and the Pacific. The Ho Chi Minh Bar hosted the Conference at the famous Rex Hotel. The hotel’s rooftop bar was a well-known hangout spot for military officials and war correspondents during the Vietnam War.
A highlight of the conference was the opening keynote address given by former High Court Justice Michael Kirby on the subject of judicial independence. He demonstrated yet again what a tremendous ambassador he is for the Australian profession overseas and his ability as a great communicator. The Chief Justice of Australia The Honourable Robert French followed with a paper on ‘judicial activism’. The GL Sanghi Memorial Lecture was given this year by the former Chief Justice of India the Honourable Justice JS Verma.
The number of delegates attending was in the vicinity of more than 600 from diverse member nations and affiliates including the United States, China, Germany, Fiji Islands, India, Indonesia, Malaysia, Japan, Kyrgyzstan, Hong Kong, China, the Russian Federation, Pakistan, Philippines, Sri Lanka, Sudan, Taiwan, Thailand and the United Kingdom.
The Australian delegation included from Western Australia Mark Trowell QC (Albert Wolff Chambers), John Staude and Kanaga Dharmananda (Francis Burt Chambers) and Tony Aristei (Howard Chambers).
The retiring President of LAWASIA, Mr Glenn Ferguson (Australia), welcomed delegates saying:
“The theme of this conference is competition and cooperation. The challenging times presented by the global
Review:
22nd LAWASIA Conference
financial crisis have created a need for legal professionals to remain informed of developments in the immediate region.”
LAWASIA, in response to that challenge, prepared many instructive sessions to focus on the latest developments in the areas of business law, labour law, family law, criminal law, human rights law and more with many distinguished speakers drawn from the region.
There was also plenty of entertainment at the conference including Vietnamese cultural performances, evening drinks at the historic Majestic Hotel and the closing ceremony and dinner at Binh Quoi Park on the banks of the steamy Saigon River.
The Conference was a great opportunity for delegates to exchange views, share experiences and to network with delegates throughout the Asia-Pacific region and beyond. It was truly a rewarding experience and the next conference should not be missed.
Readers would be interested to know that two Western Australians in the last few years have held positions on LAWASIA standing committees. Andrew Davies was until recently Joint Chair of the Family Law & Family Rights Section. Mark Trowell QC was a few weeks ago appointed as Joint Chair of the Criminal Law Standing Committee. Prospective delegates should note that LAWASIA conferences are accredited for CPD points with the Legal Practice Board. The new President of LAWASIA is Mr Lester Huang from Hong Kong who is hoping there will be many more delegates from Australia next year. The next LAWASIA Conference is to be held at New Delhi, India on 11-14 November 2010.
mark Trowell QC
Barrister, Albert Wolff Chambers
John Staude, Mark Trowell QC and Akio Harada (former Prosecutor General of Japan)
February 2010 35
Feature
This article is to be the first of a regular feature in Brief. The purpose is to remind practitioners of their obligations under the professional indemnity insurance arrangements in Western Australia and to alert practitioners to the various aspects of risk
management and how it may have an impact on their practice.
All practitioners insured under the Western Australian professional indemnity insurance arrangements attend a two-hour risk management session each year. Law Mutual (WA) has conducted these seminars since 1995, focusing on the following areas:
• The underlying causes of claims.
• Engagement management.
• Communication issues.
• Technology issues.
• Stress and its effect on practice management.
• Retainer management.
• How to handle mistakes and complaints.
• Deadline management.
• How to brief counsel.
• Reliance on counsel.
• Supervision and delegation.
• Thinking issues.
As Law Mutual (WA) manage all claims against Western Australian practitioners, staff are well aware of the causes of claims and it is the claims experience of Western Australia that is the focus of the various risk management seminars each year.
A question that we are often asked is how effective is risk management in the prevention of claims? It is always difficult to benchmark the effectiveness of a risk management program, but in Western Australia we have seen a marked decline in the number of claims since 1998. In 1995 there were 108 claims against practitioners and in 2008 only 62. Since 2003 we have had a steady decline. At the same time, despite the exodus of the national firms from the scheme, there has been a 10% increase in the number of principals.
Whilst the rate of notifications on an annual basis is static, fewer notifications are becoming claims. Part of a good risk
Risk Management
management strategy is to identify ‘issues’ early so the position
can be rectified. Most mistakes made in legal practice can be
rectified for minimal cost but if a delay in recognising that a
mistake has been made and then a further delay in dealing with
the mistake can create not a claim against a practitioner but also
a complaint to the Legal Complaints Committee.
As a solicitor managing claims, I have noticed a significant
improvement since 1995 in the file management of practitioners;
obtaining instructions in writing and the screening of clients. All
these factors either reduce the number of claims or help the
insurers to be in a better position to defend a claim if one is
made.
Where Do The Claims Come from?
The largest areas of claims in Western Australia are the
commercial lending area and personal injuries. This is not
surprising as both these areas of practice relate to technical
issues and a small mistake will have big consequences.
What are Some of The biggest risks?
The biggest risks relate to missed deadlines, failing to fully
track changes through documents and inadequately scoped
engagements. Client communication and deadline management
are also high on the list. Whilst knowing the substantive law is
important, you get more for your risk management if you focus
on improving client satisfaction and getting things done on time.
What are The Challenges for The future?
A survey of United Kingdom firms done by Marsh Insurance
Brokers in 2008 asked firms what their challenges were for
the future. The major challenges identified were recruitment
and retention of high-calibre lawyers, understanding the new
regulatory framework for practitioners, the continued downward
pressure on fees and a heightened demand for ‘instant advice’,
coupled with an increasingly litigious environment. It would
appear these are all issues relevant to practitioners in Western
Australia, combined with an economic downturn, which
traditionally results in an increase in claims. Many mistakes that
may have been made in the past that were able to be rectified
for no loss, unfortunately, grow into claims.
anne Durack
Executive Manager – Claims and Risk Management,
Law Mutual (WA)
36 February 2010
Feature
In the field of medicine, the idiom, “physician, health
thyself”, sourced from the Bible, 1 is sometimes mentioned.
It alludes to physicians’ assumed ability to heal sickness in
others while sometimes being unable or unwilling to
heal themselves. Yet it is professionally inappropriate for
doctors to self-medicate by prescribing themselves drugs. In the
legal profession, conversely, no professional restriction prevents
a lawyer’s “self-medication”; that is, representing himself or
herself, whether in a transaction or in litigation to which he or
she is a party.
Of course, in law there is the well-known phrase that persons
who represent themselves have “a fool for a client”. Many
lawyers, when faced with being a party personally to a matter
that requires legal advice or assistance, pay heed to what
underscores this phrase and engage another lawyer for this
purpose. There is good reason for this practice. It may be that
the transaction or litigation involves an area of law outside
the lawyer’s field of expertise; the issue here is chiefly one of
competence. It may be that pursuing the matter personally
would amount to an uneconomic use of work time; the
issue in this instance is one of efficiency. But perhaps most
importantly, especially where a litigious matter is foreshadowed,
the engagement of separate legal representation serves to
safeguard independence.
After all, where a client is not legally trained, aside from issues
of competence and efficiency in the curial process, engaging a
legal representative to pursue litigation serves the client’s interest
in bringing to the fore an independent and informed judgement
to the claim or defence. This assumes that the lawyer is indeed
independent of the client and the client’s cause. It explains
why representing a client with whom a lawyer has a personal
or business relationship is not advisable. 2 Various disciplinary
decisions highlight the dangers professionally of lawyers acting
for clients with whom they have a personal relationship. 3 These
decisions reveal that even experienced lawyers can have their
The Fool for a ClientShould Lawyers be Inclined to Represent Themselves?
independence (and even common sense) compromised by
personal interests.
Although, as remarked in a different context, “[w]hether a
lawyer acts with the independence expected by the profession
depends on that lawyer’s actions and willingness to avoid
or disregard influences which might undermine his or her
disinterestedness”,4 the law has traditionally sought to minimise
the potential for lawyers to be swayed by considerations
irrelevant to the proper and effective representation of their
clients. The prophylactic function served by the strictness of the
fiduciary proscriptions illustrates the point.
Gino Dal Pont
Professor, Faculty of Law, University of Tasmania
Many lawyers, when faced with being a party personally to a matter that requires legal advice or assistance, pay heed to what underscores this phrase, and engage another lawyer for this purpose.
Yet lawyers may find compelling reasons to represent themselves
in, say, litigation. Cost may be one of them. The use of their
own (firm’s) resources and the attendant efficiency benefits, may
prove another. Maintaining direct control over a matter in which
they have a vested interest may be a third, and most persuasive,
reason to become a “fool for a client”. Consistent with the
foregoing, though, the prospect of sacrificing independence
should cause the lawyer to carefully assess how compelling
those reasons necessarily are.
February 2010 37
Feature
To the extent that a lack of independence negatively influences
the lawyer’s professional judgement and to this end translates
into a negative outcome on the merits, the loss falls mainly
on the lawyer. The potentially greater concern is a correlation
between a lack of independence and a loosening in professional
standards. A case is point is Legal Practitioners Complaints
Committee v Segler, 5 where the respondent lawyer represented
himself in proceedings to recover judgement in his (and his
wife’s) favour. The respondent, on his firm letterhead, threatened
the debtor with enforcement proceedings inconsistent with the
court’s order and compounded this by threatening without
foundation to refer an associated matter to the Director of
Public Prosecutions. The State Administrative Tribunal of Western
Australia found this behaviour to amount to unprofessional
conduct.
Even if the lawyer-litigant retains legal representation, the danger
of unprofessional conduct remains in the event that the lawyer-
litigant, for whatever reason, performs legal work in the matter
rather than leaving it entirely to the independent judgement of
the lawyer retained. An added complication here is undermining
the lawyer-client relationship itself. It may also raise challenges
in identifying the capacity, in dealing with others, in which the
lawyer-litigant is acting. For instance, the extent to which the
“no contact” rule applies may prove unclear in this context. 6
Just as physicians are not encouraged to heal themselves,
there is good reason ultimately for lawyers to avoid equivalent
attempts to do so within their own professional sphere. That the
practice of self-representation may be foolish is consequently
hardly to be restricted to the lay client.
Notes
1. Luke 4:23. King James Version.
2. See Dal Pont GE. Riley Solicitors Manual. LexisNexis Butterworths, para
[21,015].
3. See, for example, Guss v Law Institute of Victoria [2006] VSCA 88; Legal
Services Commissioner v Bradshaw [2008] LPT 9 [affd [2009] QCA 126];
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39.
4. Tamberlin B & Bastin L. “In-house Counsel, Legal Professional Privilege
and ‘Independence’”. ALJ, 2009; vol 83, issue 3, pp193-198.
5. [2009] WASAT 91.
6. See, for example, Legal Services Commissioner v Hurley [2009] NSWADT
125.
How much of your profit is slipping through the billable hour cracks?
A lot of you are talking to clients on your mobile when you’re on the
move. Invariably this time doesn’t make it into the time sheets because up until now it has been virtually impossible to track, accurately record and allocate to the client because the technology simply wasn’t there.
Well now it is.
In a world first, Australian software innovator Stratatel has developed mobile phone technology that cap-tures and records billable time that is fully integrated with your firm’s back end billing and client processes when you talk to clients on mobile phones.
“Firms currently using softlog.mobile™ have
on average reported that a staggering 30 per cent of all calls are being
allocated as chargeable. That’s almost $24,000 per person a year that’s
slipping through the cracks.” Matt Parry
CEO Stratatel Softlog
So start 2010 how you would like to finish it focussed on making it a profitable year with softlog.mobile™.
And if you’re starting the year with a real blitz on cost, in addition to softlog.mobile™ Stratatel Softlog has over 20 years experience with cost recovery in legal firms of every size around Australia.
For more information contact us on 1800 773 391 or [email protected] or visit www.stratatel.com.au.
38 February 2010
News
The Honourable Michael Kirby says it is shameful that Australia is the only western democracy without a national human rights law. Speaking at the inaugural Michael D Kirby Annual Human Rights Forum at Murdoch University in late 2009, he said the recently
published National Human Rights Consultation report presented Australia with an important opportunity and challenge. The Hon. Kirby said:
“Only last week, the federal government announced its acceptance of a recent major report by the Australian Law Reform Commission on privacy protection. Overwhelmingly, the recommendations of the Commission were adopted and will form the basis of proposed laws for introduction next year into the federal parliament.”
Over 35,000 Australian citizens expressed their views as part of the Consultation. The Hon. Kirby said:
“Over 85 per cent of those who made submissions called for the adoption of human rights legislation to strengthen and protect human rights in this country.”
He added that in some respects Australia has had a poor record in the protection of fundamental rights and that some of the opposition to human rights laws came from suspect sources including politicians and media outlets.
“Australia needs to face the fact that the international treaties we have adopted and ratified impose on Australia
Kirby Calls for Human Rights Law
an obligation to provide legal protections for human rights
in this country. We must enshrine our basic civic freedoms
not only to keep faith with the international community
and to restore Australia’s name as a leading member of
that community but as a good example to the world. More
fundamentally, we must do this for the fulfilment of our
international obligations to our own people.”
The Hon. Kirby said Australia’s history had been repeatedly
marked with unfortunate illustrations of injustice to groups
of people including Aborigines, women, Asian immigrants,
homosexuals, prisoners and refugees. He said a human rights
law could stimulate the parliament to correct injustice and
inequality.
In closing, the Hon. Kirby said that if Australia did not adopt
the recommendations of the Consultation then the adoption of
human rights laws would probably not be incorporated in our
lifetime.
“I hope the outcome of the Consultation will be the
adoption of a federal charter or statue of rights, actionable
in the national’s independent courts.
“We can trust Australia’s courts to get such decisions right,
to learn from the judges of other countries and to use
their role to strengthen our parliamentary democracy by
making it truly attentive to equal justice under the law of all
Australians.”
The Hon. Kirby was awarded an Honorary Doctorate of Laws by
Murdoch University in March 2009 for leaving a remarkable and
lasting legacy to the legal profession in his career spanning more
than 40 years.
The PracTiTioner’s cerTificaTe in
MediaTionThe Institute of Arbitrators & Mediators Australia (IAMA) invites registrations for its national mediation course.
The Practitioner’s Certificate in Mediation is presented by nationally accredited instructors and is conducted Australia-wide. The course offers a practice-oriented qualification in mediation and participants who successfully complete the assessment module may apply for accreditation under the National Mediator Accreditation Scheme through IAMA.
Earn 7 CPD Points: The course has been approved by the Legal Practice Board of Western Australia as a CPD Activity which will earn participants 7 CPD points; 4 points in Competency Area 1 (Legal Skills and Practice) and 3 points in Competency Area 2 (Ethics and Professional Responsibility).
Course Date in Perth: 17 - 20 & 26 - 27 March 2010 Contact IAMA (08) 6278 2022 email: [email protected]
web: www.iama.org.au
February 2010 39
Feature
many CIOs do not pay much attention to the
terms and conditions on their company’s
website. However, a recent case in the
United Kingdom should serve as a wake-up
call to all businesses to carefully consider the
terms under which people use their websites and reduce the risk
of costly litigation.
Patchett v Swimming Pool and Allied Trades Association (SPATA)
involved an industry body making representations on its website
regarding the financial stability of its members. Unfortunately
one of its members, Crown Pools, became insolvent during
construction for the Patchetts and they decided to bring an
action against SPATA in negligence, alleging that SPATA had
breached its duty of care due towards them in relation to the
information it provided on its website. The Patchetts argued
SPATA was liable for the loss suffered by the Patchetts due to
reliance on that information.
Fortunately for SPATA the website also included a suggestion
that users of the website should consider the contents of an
additional information pack. The court held that this operated
as a disclaimer against the liability that would otherwise have
arisen. Given the increasing number of websites that are relied
upon by users, this case is a serious cause for concern. Any CIOs
responsible for a website that provides information that may be
relied upon should check that it contains an appropriate and
up-to-date disclaimer in relation to that information.
Website Terms and ConditionsCase Study
The risk in Australia is arguably even greater than that in the UK due to the operation of s52 of the Trade Practices Act 1974 (Cth) which prohibits conduct in trade or commerce which is misleading or deceptive conduct or likely to mislead or deceive. While it is not possible to disclaim liability in relation to a breach of this requirement, a statement urging independent verification of information and cautioning against reliance may reduce the risk of loss suffered by a user being recoverable.
Although website terms and conditions can be helpful from a liability perspective, there are other issues that should also be addressed, including:
(a) scope of licence to the user – CIOs should consider the extent to which they are comfortable with users using the content from the website e.g. whether or not users can use the data on the website for commercial purposes
(b) restrictions on use of the website – the permission to use the website should be subject to the user not performing undesirable acts in connection with the website e.g. uploading viruses to the website or overloading the website with requests as a denial of service attack
(c) use of user content – users that upload content should be required to grant an express licence permitting the copying and modification of their content and give express warranties and indemnities in relation to use of that content not infringing third party’s intellectual property rights
(e) privacy policy – for businesses to which the Privacy Act 1988 (Cth) applies it is important to notify individuals giving personal information over the website the way in which that personal information will be handled and may be used (and where applicable link to your privacy policy)
(f) terms of sale – terms and conditions of use of a website can be a way of binding the user to particular terms of supply of goods and services available through the website.
As far as legal expenses go, website terms and conditions are one of the less expensive legal documents a CIO is likely to encounter. While always desirable, well-drafted terms and conditions are particularly useful if you can imagine any situation in which a user of your website could rely on the information available on it and suffer loss.
Any CIOs responsible for a website that provides information that may be relied upon should check that it contains an appropriate and up-to-date disclaimer in relation to that information.
David Downie
Partner, McCullough Robertson Lawyers
40 February 2010
News
making the Withdrawal of a Complaint a Term of Settlement
In some cases where a complaint is made, the complaint will be
related to proceedings the complainant has taken against the
practitioner or vice versa. In those circumstances, the Committee
reminds practitioners that making the withdrawal of a complaint
a term of a settlement is not appropriate and may be seen as
unsatisfactory professional conduct or professional misconduct
on the part of the practitioner involved.
Professional Courtesy
The Court of Appeal has recently noted an increase in appeals
against conviction based upon the assertion that the trial
miscarried because of the incompetence of trial counsel. The
Committee reminds practitioners who deal with such matters
to be aware of the need to treat professional colleagues with
the utmost courtesy and fairness at all times, particularly when
considering issues such as notifying the relevant practitioner of
the appeal grounds.
use of letterhead
In the recent matter of LPCC v Segler [2009] WASAT 91,
the State Administrative Tribunal examined whether a letter
written by a legal practitioner could amount to unprofessional
Legal Profession Complaints Committee
Current Issues
conduct by reason of it containing threats and inappropriate
and intimidating demands. The Tribunal found that the letter
in question did amount to unprofessional conduct. During the
decision the Tribunal stated:
“It is important that legal practitioners avoid circumstances
which might be seen as overbearing members of the
community by the use of the lawyer’s status to gain personal
advantage or to intimidate.”
The Committee reminds practitioners to take care when using
professional letterhead when writing about a personal matter.
The Committee also reminds practitioners to take care to
avoid circumstances in which the use of a practitioner’s status
as a lawyer might be seen as being used to gain a personal
advantage or intimidate a member of the community.
legal aid
Many practitioners deal with matters involving a grant of Legal
Aid, particularly practitioners who practise in criminal or family
law. The Committee reminds practitioners of the importance of
providing full costs disclosure to all clients, including those who
are in receipt of a grant of Legal Aid. This includes clarifying the
limits of Legal Aid assistance to such clients.
Diane Howell
Law Complaints Officer, Legal Profession Complaints Committee
Pursuant to s536 of the Legal Profession Act 2008,
notice is hereby given that the annual election of six
members to the legal practice board will be held on
Tuesday, 6 April 2010.
Written notice of intention to seek election,
countersigned by at least one practitioner entitled to vote,
Election of Members to the Legal Practice Board
must be lodged with the secretary no less than 28 days before
the date of the election (9 March 2010). If you wish, you may
provide a brief resume (maximum of 75 words) with your
nomination. A candidate must be a local legal practitioner of at
least three years’ standing and practice. For further information,
call the LPB on (08) 6211 3600 or email [email protected]
February 2010 41
From the Vine
When was the last time you sat down and had a few glasses of wine with a childhood hero?
I recently went to a party and spent the night chatting to someone who played in
four WAFL premierships (1982, 1983, 1984 and 1990), two State of Origin games and was an inaugural member of the West Coast Eagles. He hails from Esperance, boarded at Scotch College and then lived at St Thomas More College whilst completing a pharmacy degree at Curtin.
In his days at ‘Tommy More’ he regularly made the long journey out to Bassendean where, alongside Stan Nowotny (No 14) and Jon Fogarty (No 27), he completed one of the best half-back lines in WAFL history. Any ideas?
That’s right, one of the autographs I chased as a boy every second Saturday out at Bassendean Oval belonged to the famous No 11, Don Langsford.
As Don and I sat and talked about good old days, a time when Subiaco Oval held over 50,000 for a WAFL grand final or State of Origin game, I pondered the glass of Charles Cimicky 2007 Trumps Shiraz we shared.
Charles and Jennie Cimicky established Charles Cimicky premium wines in 1972 near Lyndoch, at the Southern end of the Barossa Valley.
The 2007 Cimicky Trumps Shiraz follows strongly in the pedigree of the multi-trophy winning 2006 Trumps. Cimicky’s motto is that “good wine begins from the earth, we don’t want to produce overripe, over-extracted, overworked wines. It is the variety, region and vineyard that are most important to us”.
The Cimicky fruit is sourced from estate vineyards in Lyndoch and Seppeltsfield, where the soils are red clay, promoting low vigour and low yields. With minimal intervention, wine-making and gentle handling, the result is an exceptional, value-for-money shiraz. Fermentation was finished in a mixture of French and American hogsheads and the wine was matured for 16 months before bottling.
The 2007 Shiraz has an aroma of subtle blackberries, liquorice notes and rich soil undertones that resonate the estate-grown Barossa fruit. The palate has ripe berry fruits and plums with subtle, well integrated vanilla oak. The fruit intensity and balance on the mid-palate leads to a soft, rich finish displaying great length and texture.
The Cimicky is distributed by Angove, a family-owned distributor
involved with the wine industry since 1886.
From the Trumps Shiraz, a slide down the colour spectrum brings
us to the 2008 Mount Riley pinot noir. This wine has mid-red
intensity with purple/violet hues. The ripe strawberry and cherry
flavours are complemented by light violet aromas and a hint of
pepper.
These aromas carry through to the palate with rich berry and
plum characters, revealing a fresh approachable wine with fine
balance and structure. A warm and supple, medium-bodied
wine, it is drinking well now and will do so up until 2011.
Down at the clearer end of the spectrum, the 2009 Mount
Riley Sauvignon Blanc reflects a blend from several vineyards
throughout Marlborough, with over 90% from the Wairau
Valley. The grapes were crushed and destemmed prior to
pressing and fermentation was induced by the introduction of
carefully selected yeast strains. The fermentation took place at
cool temperatures in stainless steel tanks to preserve the lifted
aromatics of the wine.
Marlborough’s weather at the time of both bud burst and
fruit set was ideal for the 2009 growing year, resulting in large
potential crops. Mount Riley has done a great deal of work
in their vineyard to reduce crop levels and ensure quality over
quantity.
Summer was slightly cooler than usual and this, together with
Marlborough’s typical warm days and cool nights, helped build
excellent aromatics, while retaining great natural acidity. From
March right through to the end of the harvest, at Mount Riley
mother nature was kind and, with virtually no rain, they were
able to pick at a time when both flavour and aromas were at
their peak.
For lawyers who dabble in the world of crime remember, like
the mullet, wigs are now a thing of the past. So if your hairstyle
is closer to that of Kojak than Patti Chong, maybe the Dougie
Bollinger rug is for you!
As members now ease themselves back into 2010, I trust their
days are softened by one or more of the above drops from the
Angove stable, a company founded nearly 150 years ago by Dr
William Thomas Angove at Tea Tree Gully in South Australia,
around the time the VFL first started.
Simon Watters
Albert Wolff Chambers
Review
42 February 2010
Film ReviewLooking for Eric
Director Ken Loach Cast Steve Evets, Eric Cantona, Stephanie Bishop, Gerard Kearns, Stefan Gumbs and John Henshaw DVD release 3 February 2010 Rated MA 15+ Reviewer David Edwards
When I noted that Looking for Eric was the latest film from veteran red-ragger Ken Loach, I thought ‘here we go again’. The director of films like Land and Freedom, My Name is Joe and The Wind that Shakes the Barley has made his name with those ever-so-serious dramas about little people put upon by ‘the Man’ in various guises. You know the kind of thing – everyone is depressed and angry, looking for hope in hopeless situations and generally making the audience feel miserable.
I was expecting more of the same and, for the first 20 minutes or so, I thought I might be right. But then Loach did something completely unexpected – he introduced elements of whimsy, comedy, even fantasy and proceeded to make a thoroughly enjoyable film that will actually have you smiling as you press the ‘stop’ button on this DVD.
You see the ‘Eric’ of the title involves two major characters in the film: the fictional Eric Bishop played by actor Steve Evets and real-life footballer-turned-actor Eric Cantona. For the uninitiated, Cantona was one of the most prodigiously talented footballers of the 1990s and the Frenchman became (and still is) a legend among the faithful fans of Manchester United, having won several major trophies with (and for) the team. But Cantona was the archetypal sporting enigma; with his talent on the field matched only by the foolishness of his antics off it. His heat-of-the-moment ‘karate kick’ on a rival fan typified both his volatile nature and his sometimes appalling lack of judgement.
Early on in the film, we learn that Eric Bishop, a postman whose life is unravelling before him, is a fan not only of Manchester United but of Cantona in particular. When things become particularly stressful, Cantona magically appears in his room and they begin to speak about a wide range of things – football, of course, but also life, love and lessons learned. So we then have the rather bizarre situation of a fictional character playing off a real person who is, in the world of the film, basically a figment of his imagination. So if you’ve got your head around that, you’re ready to see this film.
Admittedly, Loach doesn’t stray too far from his bread-and-butter topics of earlier films – the effects of divorce, changing societal mores, the lack of social services for the most disadvantaged and the resulting attraction of crime for those people. What has changed here is his approach. Instead of the preachiness of his earlier films (which was frankly unbearable at times), Loach opts for a quirky take on the script from his long-time collaborator Paul Laverty. The stodgy homilies are replaced by a joie de vivre rarely seen in his work. The climactic scene, for example, is both
hilarious and totally satisfying. Note, however, that there are still some pretty strong themes and language in the film, hence its MA 15+ rating.
The whole thing is cleverly edited, with match footage of Cantona in full flight inter-cut into the main action. The contrast between the downtrodden working class environs inhabited by Eric Bishop and the slightly surreal world of top-flight football is well handled; as are two crucial scenes that have a definite shock value.
Steve Evets brings a real humanity and morality to Eric, a guy who’s basically just trying to do the right thing in difficult circumstances. That makes his Eric a brilliant counterpoint to the flamboyant and philosophical Cantona. Although he’s playing himself, Cantona brings a deal of self-deprecation to the part. His comical rendering of the Marseillaise on the trumpet and his consciously self-important pronouncement “I am not a man – I am Cantona!”, emphasise the fact that he’s having fun with the material. Solid support comes from the young Gerard Kearns and Stefan Gumbs as Eric’s stepsons; Stephanie Bishop as his ex-wife Lily and John Henshaw, who’s priceless as his workmate Meatballs.
While I can see some Loach devotees being rather dismayed by Looking for Eric, for the average film watcher, this is like a breath of fresh air from the director. Perhaps it’s not as ‘important’ as some of his other works; but it’s great to see that he can have a bit of fun. Quite apart from that, Looking for Eric is also a well-made, very funny and ultimately rewarding experience.
For more DVD reviews, as well as reviews of movies, theatre, books, television, music and visual arts, please visit The Blurb at www.theblurb.com.au
Review
February 2010 43
Book ReviewsNudge: Improving Decisions About Health, Wealth and Happiness (2008)
Authors Cass R Sunstein and Richard H Thaler Publisher Penguin Books Reviewer Varun N Ghosh, Mallesons Stephen Jaques
Law lost its immunity from economic analysis decades ago. (See, Richard A Posner, Economic Analysis of Law, 1972.) Therefore, it is unsurprising to find one of America’s most prominent lawyers and thinkers, Cass R Sunstein, venturing into the field of economics. Sunstein, Obama Administration ‘Regulatory Czar’ and Chicago-turned-Harvard Law Professor, has teamed up with groundbreaking behavioural economist Richard H Thaler to produce Nudge: Improving Decisions About Health, Wealth and Happiness.
Nudge is part psychology, part behavioural economics and part regulatory theory. Sunstein and Thaler advocate the (seemingly oxymoronic) philosophy of “libertarian paternalism … a relatively weak, soft and non-intrusive type of paternalism because choices are not blocked, fenced off, or significantly burdened.” Rather, governments, employers, teachers and other “choice architects” endeavour to “organise the context in which people make decisions” to favour certain choices without coercion.
The power of choice architecture is demonstrated through an entertaining exploration of the foundations of behavioural economics – that is, the phenomena of individuals acting irrationally by failing to make choices that maximise their subjective preferences. Frameworks and concepts that influence people’s decisions such as status quo biases, anchoring and automatic and reflective systems of decision-making are explored using effective and intriguing examples.
The book’s ideas are presented in delightful prose and the underpinning economic concepts are made refreshingly accessible. Sunstein and Thaler’s treatise will outlive the present cachet of the behavioural economics/popular psychology genre for two reasons. Firstly, it illuminates much existing scholarship on the various (often irrational) lodestars that influence the way individuals make decisions. Secondly, it transcends an abstract recitation of findings by explicitly (though not exclusively) focusing on the regulatory applications of choice architecture.
Governmental guidance of decision-making along a libertarian paternalism model does not fit within the liberal/interventionist framework that has dominated debates about the role of the state. Nudge opens up a fascinating new battleground for partisan politics and heralds the beginning of a subtler, less coercive (but possibly more insidious) form of government regulation. Its appeal to lawmakers (including Barack Obama and David Cameron) is easy to understand. Libertarian paternalism allows governments to guide the decision-making of citizens in ways that Sunstein and Thaler show to be incredibly effective, without actually depriving the individuals of freedom of choice.
Nudge is about public policy, not law. Yet, it is likely to profoundly
change the way governments seek to regulate societies.
Sale of Businesses in Australia (2nd edn)
Authors SA Christensen and WD Duncan
Publisher The Federation Press
Reviewers Pat Saraceni and Michael O’Kane,
Mallesons Stephen Jaques
This second edition of Sale of Businesses in Australia focuses on
the legal aspects of the sale of unincorporated small businesses
on standard form contracts. The text considers and annotates
some standard form terms used particularly in New South Wales,
Victoria and Queensland. It also considers legislation affecting
the sale of businesses in every Australian jurisdiction.
The second edition reflects numerous and significant legislative
changes in the area that have occurred in Australia over the
last 12 years since the first edition was published in 1997. The
second edition contains revised or rewritten chapters on areas
such as income taxation, employment law and intellectual
property. Chapter 12 deals with chattel securities under the
current legislative regime. It also, albeit briefly, considers the
Federal Personal Property Securities Bill, which is expected to be
enacted and to commence by May 2010. We anticipate that the
next edition of the book is not far away and will incorporate a
revised discussion on personal securities.
The first part of the book provides an overview of the sale
transaction and considers matters preparatory to the sale
of a business, such as obligations of due diligence and pre-
contractual disclosure.
The next part of the book considers the different types of subject
matter of a contract for the sale of a business. It looks at real,
personal and both tangible and intangible property aspects of
business sales and provides a detailed analysis of the transfer of
stock in trade and the goodwill, plant and fixtures of a business.
Particular attention is also given to the transfer of intellectual
property, business names and commercial leases.
The book next considers other aspects of the sale of a business,
such as taxation aspects, restraints of trade, employment issues,
special conditions, securities, time stipulations, obligations on
completion, dispute resolution and remedies for breaches of
conditions found in contracts for the sale of businesses.
The book does not purport to be an exhaustive treatise on
the sale of businesses in Australia. However, it contains useful
precedents and commentary on case law and legislation in
the area and serves as a good starting point for practitioners
involved in advising on sales of businesses.
Review
44 February 2010
Law Bulletin2009 General Conditions – GST
Practitioners are reminded of GSTD 2006/3 dated 26 April 2006. The substance of the Ruling is recognised as General Condition 18.3(b)(1) which clearly states that if GST is payable, it is to be calculated not only on the purchase price but also on “…any other consideration payable under the contract”.
Practitioners should, in drafting contracts, give thought to whether it is necessary to make special provision for the treatment of GST on rates and taxes or any other outgoing likely to be paid as part of or contemporaneously with the purchase price stated in the contract.
Workers’ Compensation (DrD) amendment rules 2009
Published in Government Gazette No 202 dated 6 November 2009. These rules came into operation on 7 November 2009. View Gazette at www.slp.wa.gov.au/gazette/gazette.nsf
Workers’ Compensation Dispute resolution Directorate Practice Direction 2/2009
Came in to operation on 18 November 2009.
Workers’ Compensation and Injury management (Scale of fees) amendment regulations 2009
Published in Government Gazette No 196 dated 30 October 2009. These regulations came into operation on 1 November 2009. View Gazette at www.slp.wa.gov.au/gazette/gazette.nsf
Supreme Court (Corporations) (Wa) amendment rules (No 2) 2009
Insertion of a new rule 15A.5 (Official liquidator’s consent to act) was published in Government Gazette No 203 dated 6 November 2009. View Gazette at www.slp.wa.gov.au/gazette/gazette.nsf
High Court Schedule of fees
Schedule 2 of the High Court Rules 2004 specifies the amount which solicitors, who are entitled to practise in the High Court, may charge and be allowed on taxation of costs. The High Court has agreed to the recommendation of the Joint Costs Advisory Committee to increase
solicitors’ costs by 3.2%. From 1 January 2010 the amendments to Schedule 2 will take effect.
entitlement to recover Costs as a Solicitor in the federal Court
It is brought to the attention of members that if they are entitled to, but do not have, their names entered on the Register of Practitioners maintained pursuant to s55C (1) of the Judiciary Act 1903 (Cth) (the High Court Register of Practitioners) then they do not have the right to practise in Federal Courts and are not entitled to recover costs as a “solicitor” under the Federal Court Rules. For more information see University of Western Australia v Gray (No 25) 2009 FCA 1227.
Non-Contentious Probate amendment rules 2009
These Amendment Rules amend the Non-contentious Probate Rules 1967 and came into effect on 28 November 2009. In particular there is amendment to Rule 8 (Affidavit of executor or administrator with the will annexed). The Amendment Rules were published in Government Gazette No 217 dated 27 November 2009. View Gazette at www.slp.wa.gov.au/gazette/gazette.nsf
Civil Judgements enforcement amendment regulations (No 2) 2009
These Amendment Regulations amend the Civil Judgements Enforcement Regulations 2005 and came into operation on 28 November 2009. The Amendment Regulations were published in Government Gazette No. 217 dated 27 November 2009. View Gazette at www.slp.wa.gov.au/gazette/gazette.nsf
federal Court of australia – National Guide to Counsel fees
The Federal Court has updated its National Guide to Counsel Fees with effect from 4 January 2010. The purpose of the guide is to assist taxing officers of the court when making an estimate pursuant to Order 62 Rule 46 of the Federal Court Rules or upon taxation of a party and party Bill of Costs. The amounts listed in the guide are not, however, to be regarded as limiting the taxing officers’ discretion to allow higher or lower fees if it is considered appropriate.
ordinary firm Name
Alexander Freund Lawton Gillon
Amy Garuccio DLA Phillips Fox
Patrick Jebb JEBB & Associates
Kane Parker Dibbs Parker
Lucinda Plowman DLA Phillips Fox
Jamie Erceg Anchor Legal
Olivia Nyaung Soloman Brothers
Xavier Cousin Hotchkin Hanly Lawyers
Melissa Egan Earnshaw & Associates
articled Clerks firm Name
Tracey Chew Clayton Utz
Emma Cullen Clayton Utz
Armin Fazely Clayton Utz
Vincent Holland Clayton Utz
Gabrielle Holly Clayton Utz
Samereh Al Janabi Clayton Utz
Thomas Jasper Clayton Utz
Montgomery Neate Clayton Utz
Natajsa Pollemans Clayton Utz
Rebecca Shanahan Clayton Utz
Lara Wilmot Clayton Utz
Benjamin De Campo Clayton Utz
Alexander Mossop Clayton Utz
Franca Ottolini Freehills
Emma McLeod AJ Aristei
Student members university
Sanghavi Devin University of Western Australia
The law Society of Western australia
welcomes the following new members
February 2010 45
law Council Welcomes New President for 2010
National legal profession reforms,
recruitment and retention of lawyers
in regional Australia and Indigenous
Australians in the legal profession are
just three areas of focus this year for
the new President of the Law Council,
Glenn Ferguson. The Sunshine Coast-
based solicitor and former LAWASIA
and Queensland Law Society President
assumed the role on 1 January, taking
over from John Corcoran.
“2010 will be a pivotal year for legal profession reforms. The
Law Council will play a key role, as the national body, in working
with law societies, bar associations, the Government and other
stakeholders to bring this critical issue to a conclusion,” Mr
Ferguson said.
“The aim is to create a uniform system that will benefit all
Australian legal practitioners and consumers of legal services,”
he said. The recruitment and retention of lawyers in regional
Australia will also be a priority issue during Mr Ferguson’s
presidency. “As a lawyer in a regional centre, I understand the
challenges faced by practitioners who operate outside the major
metropolitan areas. This is more than just a recruitment and
retention issue; this is an access to justice issue. It is important
that every Australian has access to legal advice, regardless of
where they live in Australia.”
Another area of focus in 2010 will be encouraging more
Indigenous Australians to study and practice law. He said
the Law Council was developing a formal Policy Statement
on Indigenous Australians and the Legal Profession, which,
amongst other things, will seek to encourage more Aboriginals
to practice law.
lCa Welcomes Gleeson as Honorary member
Former High Court Chief Justice Murray Gleeson QC has
been made an Honorary Member of the Law Council for
his extraordinary contribution to the legal profession and
community. Law Council President John Corcoran bestowed
Honorary Membership on Mr Gleeson at a dinner in Canberra in
late November 2009.
Mr Gleeson has had a long and distinguished career in the
law and has made an immense contribution to the profession
and Australian society over the course of four decades. He
spent 20 years at the pinnacle of his profession as Chief Justice
of New South Wales and then of the Commonwealth of
Australia. In this time, his reputation for hard work, a superb
intellect, succinctness and compassion has been widely
recognised and greatly respected by his judicial colleagues and
lawyers who have appeared in his court. Mr Corcoran said Mr
Gleeson had been a great “friend” of the Law Council for many
years.
In April 1968, when he had been at the Bar scarcely five years,
Mr Gleeson became Honorary Assistant Secretary of the Law
Council. Following that he remained involved in Law Council
committees, including those focused on LAWASIA and Taxation.
Mr Corcoran said:
“He was actively involved in the work and development
of the Law Council towards what it is today. Honorary
membership of the Law Council is a rare honour,
bestowed on extraordinary individuals for outstanding
contributions to the law and society. Mr Gleeson richly
deserves this honour.”
rule Provides aml exemption for lawyers
The Australian Transaction Reports and Analysis Centre
(AUSTRAC) has issued a rule which means legal practitioners
are exempt from certain obligations under new anti-money
laundering and counter-terrorism financing laws.
When the Anti-Money Laundering and Counter Terrorism
Financing (AML/CTF) Act was passed in December 2006, the
Law Council expressed strong concerns that, because of the
broad terms in which it was drafted, it may inadvertently capture
some general legal services. Since that time the Law Council has
advocated for AUSTRAC to issue exemption Rules which clarify
that the provision of the legal services is not intended to attract
any obligations under the Act.
After repeated representations from the Law Council, in August
2008, AUSTRAC made an AML/CTF Rule, which effectively
exempts legal practitioners from obligations in relation to
designated remittance services provided in the ordinary course
of legal practice.
In late November 2009, after further advocacy from the Law
Council, AUSTRAC issued a second AML/CTF Rule, which
exempts legal practitioners from obligations in relation to
custodial, depository or deposit box services provided in the
ordinary course of legal practice. The most recent Rule and
explanatory statement can be found at www.comlaw.gov.au
46 February 2010
Case Notes
High Court
Migration – refugees – evidence – exclusion of evidence of conduct after arrival in Australia – when conduct in Australia can be relied on to defeat claim of refugee status – statutory interpretation – language in statute unclear and contradicts intent
In Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; 30 September 2009, the High Court concluded it would be irrational and contrary to the legislative purpose to construe the limitation in s91R(3) of the Migration Act on evidence of conduct in Australia that can be relied on to support a claim for refugee status as preventing evidence on conduct in Australia that may be relevant to credit. Appeal allowed: French CJ with Bell J; Crennan with Kiefel JJ; contra Hayne J.
Migration – jurisdictional error – when failure of migration tribunal to inquire constitutes jurisdictional error
In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 23 September 2009, the High Court considered in general terms when the failure of a migration tribunal conducting an “investigative” review will make a jurisdictional error for failing to inquire into the validity of documents said to be forged by telephoning the alleged author whose mobile telephone numbers appeared on the document. The Court concluded that in the circumstances no failure to inquire had affected the result [26]. Appeal by minister allowed: French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ jointly.
Workers’ compensation (Cth) – application of impairment guide – whether worker entitled to compensation for second injury that does not alter permanent incapacity from first injury
In Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38; 23 September 2009, F received compensation for permanent injury to her right knee in 1986. She suffered a like injury to the left knee in 1987 that did not alter her incapacity. The High Court concluded that she was entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for both injuries: Hayne, Heydon, Crennan with Bell JJ jointly; contra Kiefel J. The majority rejected the “whole person” approach to the construction of injury in s24(5) [22]. Appeal allowed.
Stamp duty (NT) – “land” – leasehold interests – whether option to renew Crown lease a part of the interest in the land
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 30 September 2009, the High Court
considered whether the reference to “land” in s55N(2)(b) of the Taxation Administration Act (NT) included a reference to an option to renew a Crown lease and concluded it did not. Appeal allowed: French CJ; Hayne, Heydon, Crennan, Kiefel JJ jointly.
Constitutional law – when state Act inconsistent with Commonwealth one
In John Holland Pty Ltd v Victorian WorkCover Authority [2009] HCA 45; 13 October 2009 and John Holland Pty Ltd v Inspector Nathan Hamilton [2009] HCA 46; 13 October 2009, the High Court in a joint judgement considered whether an employer remained liable to prosecution in Victoria and New South Wales under state occupational and industrial safety legislation after it became subject to Commonwealth legislation on the subject. The Court concluded the employer remained liable to prosecution under the state legislation where the offence was committed before the employer became licensed under the Safety, Rehabilitation and Compensation Act 1998 (Cth) but the charge was laid after that date: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ. Answers to cases stated accordingly.
Negligence – reasonable foreseeability – temporal limits
In Sydney Water Corporation v Turano [2009] HCA 42; 13 October 2009, the High Court considered Sydney Water was not liable in negligence for a tree falling on a passing vehicle after its roots were claimed to have been loosened by diversion of natural water flow following installation of a water pipe 30 years earlier. Consideration of foreseeability in the law of negligence. Appeal by Sydney Water allowed: French CJ, Gummow, Hayne, Crennan, Bell JJ.
Guarantee and indemnity – subrogation – constructive trust
In Bofinger v Kingsway Group Ltd [2009] HCA 44; 13 October 2009, the High Court in a joint judgement considered when a guarantor who had contributed to the reduction of one debt owed by the debtor and secured by a mortgage was entitled to a right of subrogation under the first mortgage in priority to subsequent mortgages. The Court also considered whether the surplus transferred by the first mortgagee to the second mortgagee was subject to a constructive trust in favour of the guarantors. Review of the principles regulating subrogation and guarantees. Appeal allowed.
Constitutional law – judicial power – state courts – Kable – whether state court compromised by wielding executive power – provisions in state criminal asset seizure legislation directing how court to proceed
Thomas Hurley, barrister
Prepared for the Law Council of Australia and its constituent bodies by Thomas Hurley, Barrister, VIC, NSW, ACT (Editor, Victorian Administrative Reports).Thomas Hurley is a member of the Victorian Bar. The full version of these judgements can be found on the AustIiiwebsite www.austlii.edu.au/databases.html
February 2010 47
In International Finance Trust Company v NSW Crime Commission [2009] HCA 49; 12 Nov 09 the High Court by majority concluded that provisions of the Criminal Asset Recovery Act 1990 (NSW) which required the Supreme Court to make restraining orders without notice to those affected were invalid as the Act impermissibly directed the Court how to exercise its jurisdiction contrary to the need for state courts to be independent to comply with Constitution Part III as explained in Kable v DPP [1996] HCA 24: French CJ; Gummow with Bell JJ; Heydon J; contra Heydon, Crennan, Kiefel JJ. Appeal allowed.
federal Court
Migration – visas – business ownership
In MIC v Hart [2009] FCAFC 112; 31 August 2009, a Full Court considered whether the reference to “ownership interest” in the migration regulations concerning business visas was limited to proprietorial interests and whether a business conducted by a corporate trustee, where the visa applicant had no more than an expectancy of benefit, was not a business in which the person had an ownership interest. Appeal by Minster contending the arrangement was not an interest dismissed.
Extradition – grounds for objection to extradition
In Snedden v Republic of Croatia [2009] FCAFC 111; 2 September 2009, a Full Court concluded there were substantial grounds for believing that S (a Serb) would not receive a fair trial in Croatia and that therefore an extradition objection was established within ss7(c) and 19(2)(d) of the Extradition Act 1988 (Cth). Appeal against extradition order allowed.
Taxation administration – departure prohibition order – humanitarian grounds
Lui v C of T [2009] FCAFC 115; 2 September 2009, a Full Court concluded the AAT did not err in the way it construed s14U(1)(b)(ii)(A) of the Taxation Administration Act 1953 (Cth) as permitting grant of permission to leave, contrary to a departure prohibition order only where the person does not have means to provide adequate security that would otherwise be required.
Migration – natural justice-whether VEAL still applicable – reference to another case
SZMKG v MIC [2009] FCAFC 99; 21 August 2009, a Full Court concluded the reasoning of the High Court in VEAL v MIMIA [2005] HCA 72 was no longer apt when considering whether the RRT had breached procedural fairness obligations as s422B of the Migration Act had altered the law from 2002. The Court concluded that, in any event, no breach of procedural fairness was made out at all or by the reference by the tribunal to another matter that was before it.
Employment – implied terms
In University of WA v Gray [2009] FCAFC 116; 3 September 2009, a Full Court concluded the contract of employment of a professor of surgery by the University of Western Australia did not impose a duty to invent, nor make the employee liable as a form of fiduciary for any invention made as an employee and that as the University had abandoned those of its regulations relating to patentable inventions they were not incorporated into the contract.
Federal Court – practice – whether orders for summary
dismissal of proceeding are interlocutory orders
In Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009]
FCAFC 117; 9 September 2009, a Full Court concluded that
an order that a proceeding be summarily dismissed was an
interlocutory order and that leave to appeal against it was
required.
Taxation – administrative penalty
In C of T v Star City Pty Ltd (No 2) [2009] FCAFC 122; 10
September 2009, a Full Court concluded that before an
administrative penalty for an erroneous tax return could be
imposed under s266L of the ITAA, the Commissioner was
required to be satisfied as an objective fact that a scheme was
carried out for the sole or dominant purpose of enabling a
person to avoid tax. The Full Court allowed an appeal where a
taxpayer had suffered an administrative penalty for erroneously
claimed prepayment of rent as a deduction from income and not
as a capital expense.
Industrial law – penalty – course of conduct leading to
multiple offences
In Draffin v CFMEU [2009] FCAFC 120; 10 September 2009, a
Full Court considered the primary judge had erred in imposing
penalties for one course of conduct that involved multiple
breaches of the Building and Construction Industry Improvement
Act 2005 (Cth).
Migration – whether tribunal proceeding involved
jurisdictional error
In Aporo v MIC [2009] FCAFC 123; 11 September 2009, a
Full Court concluded the process of the MRT did not involve
jurisdictional error arising from a failure to apprehend that A was
dyslexic and unable to fully complete forms or that the interview
was therefore unfair.
Migration – visas – cancellation of criminal justice
certificate
In MIC v Zhang [2009] FCAFC 129; 24 September 2009, a Full
Court concluded the power of the Minister for Immigration
to cancel a criminal justice certificate under s162(1) of the
Migration Act 1958 (Cth) was not subject to the rules of natural
justice and was a broad power.
Federal Court – parties – proceedings under OHS Act –
joinder of parties – related corporation in occupation of
worksite
In John Holland Pty Ltd v Comcare [2009] FCAFC 127; 22
September 2009, a Full Court concluded the primary judge did
not err in proceedings where Comcare sought a declaration that
premises were unsafe within the Occupational Health and Safety
Act 1991 (Cth) in ordering another member of a corporate
group that was a co-occupier of the premises be joined as
a respondent under FCR O.6 r8 to ensure that all matters in
dispute were decided in the proceeding.
48 February 2010
Professional Announcements
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