The official journal of the Law Society of Western Australia

Volume 37 / Number 3 April 2010

In this issue:

Pride in Performance: An Interview with Hon Justice Carmel McLure

and

Portia’s Successors: Women at the Bar

Also:

Meet the President: Hylton Quail

2010 Salary Survey

Law Summer School Review

SHER5846_Brief_FPadsX2.qxd 5/9/05 12:58 PM Page 1

Julianna Shearn B.Juris, LL.B0401 001 888julianna@shearnhrlegal.com.au

Jennifer Halling BA, M.Ed0412 880 011jennifer@shearnhrlegal.com.au

Commercial PropertyMid to Senior Level – This is a fantastic opportunity to advance your career with a firm that offers top tier work in a boutique firm environment. Working alongside a highly regarded and inspiring partner, you will enjoy first rate commercial property matters. You will have a stellar background in commercial property law and a genuine passion to continue to build on your excellent experience to date.

Junior to Mid Level – Our client, a top tier law firm, is looking for a passionate and commercially savvy lawyer to join its property team. In this unlimited role, you will work alongside a highly regarded partner and liaise with leading Australian property owners and overseas investors. To be successful in this position, you will have at least two years’ post admission experience with a sound background in commercial property law gained from a highly regarded law firm. Our client offers a very attractive remuneration package and a dynamic and inspiring milieu.

Commercial Mid to Senior Level – Our client, a fast growing, top tier law firm, has a newly created position for an astute and dynamic commercial or franchising lawyer. In this diverse and exciting role, you will be working with a pre-eminent partner and enjoy instructions in the area of franchising, intellectual property, trade practices compliance, licensing and distribution networks, leases and competition law, as well as strategic development of state, national and international franchise schemes. To be successful in this role, you will have at least three years’ post admission experience, with a strong background in commercial law. Experience in licensing law and franchising is advantageous.

Mid to Senior Level – Do you have a strong background in general commercial law, including wills, estates and succession planning? If so, we have several very rewarding opportunities with leading boutique law firms. There are partnership prospects if you have a client base to bring.

Corporate Mid to Senior Level – Enjoy a challenging and stimulating mix of corporate work with a superb boutique law firm. Our client offers the scope to work within an outstanding team and play a pivotal role in the expansion of the firm. With a strong and very impressive client base, you will have plenty of high quality work, which will refine and enhance your skills and keep you motivated – and well rewarded.

Junior to Senior Level – Do you want to join an exciting, top tier law firm and enjoy working on matters with a national and international span? Our client is now looking for a talented junior level lawyer and an astute senior associate for its busy and expanding practice. At the senior level, there is a real prospect of partnership opportunity in the near future.

ResourcesJunior to Senior Level – WA is booming again and we have several roles with leading national firms, excellent boutique law firms and a new in-house role with a progressive company. Let us help you find the role that will keep you motivated and well rewarded!

Environment & PlanningMid to Senior Level – Are you a highly skilled environment & planning solicitor looking to take the next step in your career? With this top, tier law firm, you will enjoy stimulating and challenging work that will see you excel and become a leader in this area of law. In this sought after role, you will be advising clients on climate change, planning and environment. As there will be some litigation instructions, you will have an interest and ability to work in this area of law. To be successful in this role, you will be at or around the senior associate level and have a strong background in environmental law or planning. On offer, is a competitive remuneration package and for a highly skilled environmental solicitor there is a real opportunity for partnership in the near future.

Commercial Litigation Mid to Senior Level – Our client, a fast expanding national firm is looking for a talented commercial litigator to join its busy team. In this role, you will enjoy stimulating, first rate work and a supportive environment where you will have the opportunity to make your mark and contribute to the firm’s success, as well as a healthy remuneration package. To be successful in this role, you will ideally have at least three years’ post admission experience, having acquired excellent, commercial litigation skills with a well regarded law firm.

Junior to Mid Level – We have several opportunities with mid tier and top tier firms. Work on national and international instructions, with the guidance of partners who rank among the best of the best. Ideally, you will have at least two years’ post admission experience, a strong academic background and a commitment to excellence.

Other Perth VacanciesThe roles above are just a few of our current vacancies. If you are considering a move, call Julianna for a confidential discussion about your career prospects.

Suite 8, 5 Colin Street, West Perth WA 6005T (08) 9322 3300 F (08) 9322 3355www.shearnhrlegal.com.au

Candidates that Shine – Shearn is committed to providing the very best service to our clients and candidates. Moving into our 12th Year of excellence in 2010, our knowledge of the market is unrivalled. Please consider the following opportunities currently available and visit our website www.shearnhrlegal.com.au or call Julianna or Jennifer for further information.

April 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, communicationsofficer@lawsocietywa.asn.au

DISCLAIMER The views and opinions expressed in Brief and the claims made in advertisements publishedwithin 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 3 April 2010

Cover storyPride in Performance ................................................................................................................10

FeaturesMeet the President: Hylton Quail ................................................................................................8

Law Summer School 2010 Review ............................................................................................14

Portia’s Successors: Women at the Bar .....................................................................................16

Ethics: Getting Up Close and Personal ......................................................................................22

Fees and Risk Management ......................................................................................................23

YLC Mixed Volleyball Competition Review ................................................................................24

Lawyers Schooled on Costs ......................................................................................................26

WA Solicitor Wins National Award ...........................................................................................26

Law Careers Fair 2010..............................................................................................................27

A Light on the Hill for Directors ................................................................................................28

New District Court Chief Judge Announced ..............................................................................31

2010 Salary Survey ...................................................................................................................32

Dealing With Complaints About Service Issues ..........................................................................34

WA College of Law’s First Diploma Graduates Honoured ..........................................................35

The First Appearance of Wigs and Gowns in Western Australia ................................................36

Lawfield Gains QPS Accreditation .............................................................................................43

regularsPresident’s Report ......................................................................................................................2

Editorial .....................................................................................................................................4

Executive Director’s Report .........................................................................................................6

Pam Sawyer .............................................................................................................................20

From the Vine ..........................................................................................................................45

Law Council of Australia Update ..............................................................................................37

State Administrative Tribunal ....................................................................................................38

Thomas Hurley Case Notes .......................................................................................................40

Family Court Case Notes ..........................................................................................................42

Off the Press ............................................................................................................................44

Film Review ..............................................................................................................................46

What’s On ...............................................................................................................................48

Professional Announcements ....................................................................................................47

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 Craig Slater

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

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Matthew Keogh, Elaine Wambeck

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2 April 2010

Hylton Quail

President’s Report

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety”Benjamin Franklin

by the time you read this, the Standing Committee on Legislation (Legislative Council) will have delivered its report to Parliament on proposed increased stop and search powers. Last month I wrote about the Society’s concerns about the Bill, which if passed,

will give police power to stop and search people and vehicles in prescribed or declared areas without either consent or reasonable suspicion. Despite growing community disapproval and widespread criticism of the breadth and lack of justification for increased powers, I am fearful that the issue has become one of political face saving. Rather than acknowledge that a mistake has been made and abandon the Bill, I expect the government will try and amend it. When the Bill came on for debate in Parliament in February the Premier said:

“An upper house committee is looking at this issue. I understand the civil libertarian arguments. We are not averse to hearing suggestions and if there are extra constraints, checks or balances, we will consider them on their merit.” 1

During the same debate the Minister for Police explained again how he got the bright idea to introduce the Bill in the first place. He said:

“Back in 2008, the Commissioner said to me in a normal discussion about problems in Northbridge, which the previous government did nothing about, ‘Look, what we really need are some enhanced powers, because under the existing legislation we have to prove reasonable suspicion and some of our officers don’t go down there because sometimes it’s just too hard to try to get through to some of the defence lawyers’ – those slick little defence lawyers. He said, ‘Under those laws, if people refuse to be searched, all we can do is turn them away and send them out of the area.’ That is all the police could do under the previous government’s laws. Therefore, I decided to enhance those laws.” 2

Putting aside the gratuitous slur on defence lawyers (heard by some in the House as “slippery”, not “slick”), the premise upon which the Minister claims to have proceeded was completely false. The facts are these:

• Under the existing legislation implemented in 2006, searches in declared or prescribed areas under s69 of the Criminal Investigation Act do not require reasonable suspicion, although they do require consent. The abolition of reasonable suspicion was a significant extension of police power and a substantial erosion of civil liberties.

• Pre-existing police powers authorising non-consensual stop and search where reasonable suspicion exists also remain in s68 of the Act. If a police officer reasonably suspects a person is carrying a weapon or drugs, they do not have to turn them away from the area but can search and prosecute on the basis of any evidence found.

• If police officers are refusing to go to Northbridge because it is too hard to get “through to some of the defence lawyers”, that is a reflection on the standard of policing, not the law. The solution is not to increase police powers but to properly train police so they understand their extensive existing powers and how to use them.

• The perception that lawyers or courts are frustrating police searches is inaccurate. No one has been able to identify a single case of a prosecution having failed in Western Australia because evidence has been excluded for want of reasonable suspicion on the part of a police officer. The Attorney-General, generally better informed than the Minister for Police, has said in Parliament that the only instance of a magistrate excluding evidence for lack of reasonable suspicion was overturned on appeal by the Supreme Court. The last instance I can find of a defence lawyer running a reasonable suspicion point in the Supreme Court (unsuccessfully) was more than 10 years ago in Wineberg v Stafford (Unreported, WASC, Library No 970357, 22 July 1997).

There is no justification for the Criminal Investigation Amendment Bill 2009. Amendments to introduce checks and balances can’t change what is fundamentally repugnant. Although the government might not care much for the views of the Society, it should sit up and take notice when retired police officers, academics, respected lawyers, concerned citizens and even the Federal Liberal Shadow Treasurer all say the search powers “go too far” in impinging on civil liberties.

For the government though, the priority is security, not liberty. While he understands the libertarian argument, in the end the Premier believes:

“The substantive issue is the safety of young people in this state. The opposition can keep on with these little debates; it will probably go on and on about some international covenant or the Convention on the Rights of the Child, but I do not give a toss about that. I give a toss about the safety of our kids in hotels, clubs and restaurants in this state.” 3

Benjamin Franklin would turn in his grave.

National legal profession reform Draft bill

The Council and committees of the Society are working very hard on our submission on the draft National Reform Bill, which will have been released publicly just before you read this. I urge all members to read the Bill on our website together with the various background taskforce papers and Law Council

April 2010 3

responses. Please contact the Society on 9322 7877 or email president@lawsocietywa.asn.au with any input or concerns you may have.

Court Attire Survey

Following the abolition of wigs in Western Australian courts, the Society conducted an online survey in February to gauge members’ views on whether they would like to see the remaining court attire (robe, jabot and bar jacket) retained or abolished. More than 220 members completed the anonymous survey. The results showed 71% in favour of retaining the robe and bar jacket and 68% for retaining the jabot. I have written to the Chief Justice of Western Australia and provided him with a copy of the results. I wish to thank all members who participated in the survey for providing their input.

Start the CpD Year Now

The 2009–2010 CPD year is now behind us and I hope all members were able to get their 10 CPD points. While the Society goes to great lengths to coordinate a larger number of events in the months leading up to the end of the CPD year, please make an early start to your ongoing learning this year to avoid another last-minute rush in February and March. The Society has planned a number of events in the coming months; you can view these at www.lawsocietywa.asn.au

law Week 2010

Law Week returns sooner than expected next month (17 to 21 May) to align with the national Law Week activities taking place across Australia. This year’s theme is Law and justice in

your community. Law Week provides a high-profile avenue to promote the good work and vital contribution the legal profession makes to the community. Law Week is a time that some of the misconceptions about lawyers can be addressed and the countless hours of pro bono work, community legal advice and other positive deeds by the profession can be celebrated. Log on to www.lawsocietywa.asn.au to see what’s planned for Law Week 2010.

Commemorative Wig photo

I was very impressed at the turnout by the legal profession in support of the Society’s commemorative wig photo in early March. More than 200 lawyers and members of the judiciary took part in the historic photo that records the end of an era in Western Australian courts. The photo looks fantastic and captures the spirit of the occasion. For those who wish to purchase a copy, which is available in a number of sizes and either framed or unframed, there is still time to place your order. Visit www.lawsocietywa.asn.au for an order form. Orders close on Friday, 16 April, so make you sure you get yours in by then. There is also an interesting article in this edition of Brief regarding the first time wigs and gowns were worn in a WA Court. Turn to page 36 to read it.

Should you have any queries or comments for me, you can email president@lawsocietywa.asn.au

Notes1. Hansard, 25 February 2010, p.274.

2. ibid., p.271.

3. ibid., p.274.

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4 April 2010

ronald bower

Editorial

“Never be satisfied with anything but the best you can do for the party that you represent.”

The Honourable Justice McLure, President of the WA Court of Appeal, is one of this state’s most accomplished and admired judicial officers. Her Honour provided the advice quoted above to Brief’s readership in the course of an interview which she generously undertook with barrister and long-serving Brief editorial committee member, Rebecca Lee. The interview is published in this edition of Brief.

The value of Her Honour’s advice is in the usefulness of the reminder, notwithstanding that most Australian lawyers consciously endeavour to adhere to it because they are pursuing a vocation, the purpose of which is to provide disinterested expert advice and service to others. 1

Related reasons why lawyers endeavour to do the best they can for their clients include that they want to help people; that the

rule of law and the quality of the Australian legal system make it attractive to apply professional principles in pursuit of the aim of achieving the best possible result for the client; that the lawyer knows, better than their client does, the risks to their client’s case if it is not attended to with high-quality legal work; and the lawyer’s proper desire to know that a job has been well done.

Another value in Her Honour’s advice is that it comes from the President of the Court of Appeal, the highest jurisdiction in the Western Australian court system. All legal work is important. Whether lawyers are handling a minor matter for an individual or dealing with transactions for corporate and governmental parties, which will directly and immediately influence the national economy and the course of history, WA lawyers should never be satisfied with anything but the best they can do for the party that they represent.

Notes

1 New Statesman, 21 April 1917

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Legal Counsel. influence business direction.

This leading and rapidly growing entity forms part of an established organisation with a strong presence in the local market. Due to the development of their new corporate services team, an in-house lawyer with 2-4 years PQE is immediately required to assist in building their team.

You’ll provide legal advice to all areas of the business on a broad range of areas and will draft, review and negotiate a range of contracts and agreements. A background in commercial law, with property and construction law experience is essential. Strong communication skills, proven negotiation skills and a commercial approach will ensure your success. Ref: 0053849. senior associate Corporate-resources focus. Drive business growth.

This thriving boutique practice specialises in all aspects of corporate law and offers a high quality alternative to the big firms. Due to substantial growth in the past 12 months, they have an immediate requirement for a talented lawyer to join their successful practice. The firm has attracted an enviable client base including a number of ASX listed companies, with a strong focus on the mining and resources sector.

Your work will encompass all aspects of corporate law and will see you involved on high level transactions. You’ll require a minimum of 5 years PQE, strong commercial acumen and outstanding client skills. You’ll work in a friendly, flexible working environment with less emphasis on timesheets. Ref: 0052463 Commercial Litigator - Mid to senior level. negotiate effective outcomes.

This national firm is acknowledged across Australia as a leader in the legal market. Due to a high volume of upcoming work, a position exists for an outstanding lawyer within the firm’s expert dispute resolution team. This rare position will see you involved on a range of general commercial litigation matters.

You’ll work alongside leading Partners and will benefit from close mentoring and a superb working environment. Your broad experience in commercial litigation and strong academics, combined with a passion for your chosen field and a drive and determination to progress will ensure your success. Insolvency experience would also be highly regarded. This is a fantastic move for a litigator looking to develop their career with one of Australia’s top firms. Ref: 0053983

Contact stacey Back at stacey.back@hays.com.au or 08 9254 4598.

environmental Lawyer. provide strategic advice.

As one of Australia’s most prominent and successful firms, this practice is clearly a leader in the market. Due to business growth, they have an opening for a junior-mid level lawyer within their rapidly expanding environmental law division.

You’ll work alongside recognised industry leaders on a range of issues including land access, native title, heritage and environmental law issues and will receive close mentoring from respected senior lawyers. Working with a mixed client base, you will be involved in the provision of legal and strategic advice on mining and other developments and will negotiate effective outcomes for your clients.

You’ll be an enthusiastic and client focused individual, with strong academics, outstanding presentation and 2-3 years solid experience in environmental law. Ref: 0053565

Junior Corporate/M&a. advise on high level transactions.

This nationally recognised top-tier firm has a reputation for excellence and regularly tops the lists as one of Australia’s leading firms. Due to extensive and unprecedented growth, a rare opportunity exists for an exceptional Junior Corporate Lawyer to join the team.

In this highly sought after position, you’ll work with leading corporate organisations both in the local and international market on both public and private mergers and acquisitions, disposals, joint ventures, takeovers, private equity, schemes of arrangement and cross-border acquisitions and disposals.

You’ll require a minimum of 2-3 years experience with a leading mid-tier or top tier firm in corporate law, with substantial M&A exposure. Working for one of the strongest groups in Australia you’ll receive the highest level of training and start your career with the best. Ref: 0053553

6 April 2010

David price

Executive Director’s Report

Chief Justice to open law Week

The Chief Justice of Western Australia, the Hon Wayne Martin, will officially launch Law Week this year at a Press Club breakfast on Monday 17 May at Frasers Restaurant, Kings Park. The Chief Justice has been very supportive of Law Week in past years and I thank him for his involvement once more to promote the ongoing contributions of the legal profession to the community.

law Week luncheon – book Now

Tickets are selling fast for this year’s Law Week Luncheon, to be held on Friday 21 May at the Parmelia Hilton. Law Council of Australia President Glenn Ferguson will present the keynote address, focusing on the latest developments in the National Legal Profession Reform Project. The Hon Christian Porter MLA, State Attorney-General, will also address the topic from a WA government perspective. The Attorney-General’s Community Service Law Award will be presented at the luncheon.

Register as an individual or purchase a table of eight. You can download the registration form from www.lawsocietywa.asn.au. For more information email lawweek@lawsocietywa.asn.au

law Week photographic exhibition

The Francis Burt Law Education Centre and Museum will be hosting a digital exhibition during Law Week, featuring photographs by Alfred Hawes Stone, one of the Swan River Colony’s first judicial officers.

Alfred Hawes Stone was one of the first people to arrive in the Swan River Colony (now Perth) with legal qualifications. Stone adapted to his new life in the colony easily and quickly prospered. Within weeks, Governor Stirling appointed Stone a justice of the peace. By the end of 1830 he was clerk to the Magistrates Court and held other offices including Registrar-Clerk of the Civil Court, Master of the Supreme Court and the colony’s first Crown Solicitor.

His photographs provide a fascinating insight into life in the early days of the Swan River Colony.

The exhibition is open on Tuesday, 18 and Wednesday, 19 May from 12pm to 4pm and Thursday, 20 May from 9.30am to 2.30pm. Entry is free and no bookings are required. The Francis Burt Law Education Centre and Museum is located next to the Supreme Court.

law mutual insurance renewals update

The Law Mutual insurance arrangements for the year 1 July 2010 to 30 June 2011 have been finalised. After lengthy

negotiations with underwriters the contribution rates payable for each practitioner for 2010/0211 have been reduced by 11% over the previous year’s rates. This reduces the amount payable for each partner or director from $5,474 in 2009/2010 to $4,842 in 2010/2011. The administration fee payable per practitioner for 2010/2011 is unchanged from the previous year and remains at $790. The underwriters from the 2009/2010 insurance arrangements have been reappointed for 2010/2011. The Australian underwriters are QBE and VERO and the UK-based underwriters are Amlin and Newline.

Renewal application forms to all practices who wished to obtain professional indemnity insurance through the Law Mutual insurance arrangements have now been sent out and, this month, practices who have applied can expect to receive tax invoices. Note: Please remember, all insurance renewal tax invoices must be paid by 15 May 2010. A mandatory 10% late payment fee will apply to all invoices paid after that date; therefore I recommend that you arrange payment at your earliest convenience to avoid any additional charge.

risk management regional Seminars

Having completed the Perth-based risk management seminars for this financial year, Law Mutual will be taking to the road for the regional seminars in May and June. The regional seminars are:

• Wednesday, 19 May 2010 – Geraldton

• Friday, 11 June 2010 – Broome

• Friday, 18 June 2010 – Busselton

• Saturday, 19 June 2010 – Bunbury

• Friday, 25 June 2010 – Kalgoorlie

Log on to www.lawsocietywa.asn.au/riskmanagement.htm for details on how to register online.

CpD Sponsorship

The Society has renewed its sponsorship agreement with legalsuper for the 2010–2011 CPD year. legalsuper has supported the Society’s CPD program in 2009.

Annual Salary Survey

Earlier this year, the Law Office Management Committee conducted their annual salary survey. This survey records detailed salary and related information for all levels of employment in legal practices in Western Australia. Results of the survey have been collated and a summary of trends can be found in this edition of Brief. Those firms who participated in the survey will receive a copy of the full results for free; while those who

April 2010 7

did not take part can purchase a copy of the full results by contacting Kerrin Simmonds at the Society on 9322 7877 or ksimmonds@lawsocietywa.asn.au

law office expo

The Society’s fourth biennial Law Office Expo, coordinated by the Law Office Management Committee, will be held on Tuesday 26 October 2010 at the Parmelia Hilton. The expo provides a full day of information, education and networking for the profession, whilst giving law office managers, sole practitioners and managing partners the opportunity to source information on all their office management needs and resources at once. For more information or to be part of the expo, contact Kerrin Simmonds at the Society on 9322 7877 or ksimmonds@lawsocietywa.asn.au

Society’s 2010 Diary and Directory 20% off

Members can now purchase a copy of the Society’s 2010 Diary and Directory at a discount of 20%. There is only a small quantity remaining, so visit www.lawsocietywa.asn.au today to download an order form. The comprehensive directory features information on metropolitan and country legal practices, courts, tribunals and other related organisations and agencies. With pocket, week-at-a-glance or day-to-a-page options available, the diary also includes a handy facility to record your CPD learning information.

YlC Advocacy Workshop Series

The Society’s Advocacy Workshop Series will be held over four Saturdays in May (8, 15, 22 and 29) with the content based on the popular book Advocacy: An Introduction by Jeremy Curthoys and Dr Christopher Kendall. This year’s series will be presented by senior barristers and members of the judiciary and is specifically designed for junior practitioners. These workshops assist attendees to advance their advocacy skills and equip them with a strong theoretical grounding which can be put into practice in the courtroom. Visit www.lawsocietywa.asn.au for more information.

YlC Welcome to the profession breakfast

The Society’s Young Lawyers Committee (YLC) will be holding a Welcome to the Profession breakfast event on Thursday, 22 April to formally welcome those newly admitted to the profession, as well as provide an early opportunity for them to network with peers and senior practitioners. The breakfast, to be held at Attitude on Food at The New Esplanade Hotel, will feature a keynote presentation by the Hon Justice Carmel McLure, President of the Court of Appeal.

It is an invitation-only event to those admitted to practice between April 2009 and April 2010, plus managing partners will be invited to attend alongside their new Restricted Practitioners. Those who have been invited are reminded to confirm your attendance to Kerrin Simmonds by Monday, 12 April on 9322 7877 or ksimmonds@lawsocietywa.asn.au

10-Year QpS milestone for Firm

The Society would like to congratulate the firm of Bowen Buchbinder Vilensky who recently celebrated their Quality

Practice Standard (QPS) 10th anniversary. QPS is an important Society initiative, which recognises firms that have developed and adhered to documented internal systems and processes. These systems are designed to improve client satisfaction. For more information about QPS, visit the Society’s website or contact Francesca Giglia on 9324 8606.

leADr mediation Workshop Series

LEADR is conducting a five-day mediation workshop from 18 to 22 May, focusing on interactive and experiential activities. This high-quality program will be presented by experienced mediation trainers and meets the education requirements for the National Mediator Accreditation System. The workshop will be repeated in October (26-30). For more information, contact LEADR on 1800 651 650 or email leadr@leadr.com.au

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8 April 2010

New Law Society of Western Australia President Hylton Quail took over the presidency in January 2010, following several years on the Society’s Council. Hylton answers questions about the challenges faced in his first three months as

President.

1. What have been your main challenges in the first three months as President?

Meet the President

Hylton QuailTrying to prevent the legislative erosion of civil liberties and the rule of law; and preparing Society submissions on criminal law reform proposals.

2. What aspect of the presidency have you enjoyed the most?

Meeting lawyers that, as a criminal barrister, I otherwise wouldn’t.

3. What are your main focuses for the Society for the rest of 2010?

Much of the rest of the year will be focused on securing the best possible outcome for Western Australian lawyers in the national legal profession reform process. Finding time for my own agenda items will be a real challenge.

4. What are you most looking forward to in 2010? (for example, events, meetings)

If we are successful in preventing enactment of increased police stop and search powers and naming and shaming of children I will be overjoyed.

5. Why did you join the Society initially?

I was fortunate to do articles in a firm (Godfrey Virtue) that valued the contribution of the Society’s work. Ever since I have found that the more I put into the Society, the more I get out of it.

6. Why did you decide to run for Council and, ultimately, President?

I ran for Council because I believed the Society should be more active in law reform and more proactive in defence of the rule of law and promotion of human rights. As for President, once you are on the train you can’t get off.

7. How did you prepare yourself to take on the role of President?

I was Vice-President or Senior Vice-President for almost four years so I had a pretty good idea what I was letting myself in for.

8. How has being President affected your practice?

What practice? Without the support of a firm it would be extremely difficult to do more than a year. I take my hat off to (past presidents) Dudley and Maria and the partners who supported them through double terms.

9. What advice would you give a member who wishes to run for Society President in the future?

Ask me again at the end of the year.

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april 2010 BRIEF - Full Page .indd 1 19/3/10 3:24:56 PM

10 April 2010

Feature

Congratulations on your appointment in November 2009 as President of the Court of Appeal. How do you define your role as President?

The President’s role is largely confined to the operations of the Court of Appeal. The best way to define the role is by reference to the primary functions. My judicial duties will continue almost unabated, I suspect. I now have administrative responsibilities as well as a leadership role. In a group the size of the Court of Appeal, it is leadership by consultation. We’re a small group and we make decisions as a group but there’s room for leadership.

Outside the Court of Appeal, the President has a role to play in legal and judicial education and professional development. I presented quite a number of papers before my appointment as President and I’m interested for that to continue. I will probably carry a bigger load than previously, that’s all. This role can be useful for a judge because it provides an opportunity to focus on a particular area and to broaden your knowledge. It also enables you to engage with the profession and other judges and get feedback which you might not otherwise get. I think that’s positive.

You became a member of the Court of Appeal upon its inception in 2005. What is your view of the success of the Court of Appeal?

I think it has been successful. There are some objective measures of that.

The backlog of civil and criminal appeals reduced significantly between January 2005 and the present. There have also been improvements in the number of civil and criminal appeals finalised within the time standards. At the commencement of the Court of Appeal in February 2005 there was a gap of around 12 months between the filing of appeal books and the hearing date in non-urgent civil appeals. Generally, that period is now around three months. This reduction also has to be seen in the context of the priority we give to criminal appeals, because of the importance of the liberty of the individual. We list most criminal appeals even before the appeal books are filed. That is quite a significant change to the old practice.

The new Court of Appeal procedures have been a success in reducing the number of appeals. That is because the review of the merits is done at the front end, so by the time the appellant’s case is due there’s been an assessment of the merits and counsel can make a determination as to whether it is appropriate to

Pride in PerformanceAn Interview with the Hon Justice Carmel McLure, President of the Court of Appeal

press on or not. Now that, of course, is in the best interests of the litigants – it saves costs and it saves the emotional turmoil of being involved in the uncertainty of continuing litigation. In my view it is essential in crime and in civil appeals for counsel to prepare the appeal notice and the appellant’s case.

When I was in practice, it was not uncommon for practitioners to file a notice of appeal without any serious consideration of the merits until the matter had been listed for hearing. That had a number of effects: significant costs were incurred over the very lengthy period before the appeal was listed for hearing and the court’s inventory of appeal cases contained many matters that inflated the real case load. Nobody knew which appeals would go to a hearing. Now all of that’s gone: you have front end

rebecca lee

Brief Editorial Committee Member

Justice McLure in her chambers.

April 2010 11

Feature

preparation; you then proceed to incur the expense of an appeal book and then, if you’re in civil, we generally give you a hearing within around three months from the filing of the appeal books and before you have filed your appeal books in crime.

The Court of Appeal was established in order to achieve greater consistency in decision-making [by the appointment of permanent appeal judges]. The court also took other measures to increase consistency. A good example was in the Workers’ Compensation area, which in February 2005 was the third highest source of appeal work, behind the District and Supreme Courts. What the previous President did was establish single subject matter appeal weeks. All appeals on the same subject matter would be listed in a single week and heard by the same quorum. That resulted in consistency in interpretation; coherence in the legal framework; greater certainty for people who advised on the likely prospects; and, of course, greater assistance to the courts and tribunals that have to follow our decisions. We did that with workers’ compensation appeals and that was a significant factor in reducing the number of appeals to a trickle. There were of course other contributing factors, such as legislative changes.

What particular experience on the Court of Appeal, if any, has surprised (or amused) you most?

The serious nature of the work we do and our highly regulated procedures mean we on the bench don’t often see anything amusing or surprising and nothing springs to mind. Very sad isn’t it?! I’ve thought about it, but there’s really been no occasion that springs to mind. And when the interests of litigants are

being determined it’s not really an appropriate forum, or it doesn’t really give rise to an occasion for mirth or comic relief.

As President, do you intend to consider or make any changes to the practice and procedure of the Court? If so, please briefly describe the areas under consideration or proposed changes.

We are presently considering a proposal to bring the procedure for criminal leave to appeal into line with the civil procedure. The proposal is that an application for leave in crime – both against conviction and sentence – will come before a single judge and be dealt with on the papers.

If the single judge comes to the conclusion that there is at least one ground of appeal that gets over the threshold test of merit then it will go on appeal in the ordinary way. The single judge will deal on the papers with all the grounds without hearing from the parties. If leave on a particular ground is referred off to the hearing it won’t add significantly to the time and cost because it was going to an appeal hearing in any event and there can be a review of any ground that’s refused if that’s what the party wants. But if the single judge comes to the preliminary view on the papers that the test of leave hasn’t been satisfied on any ground, the proposal is that the application be referred to a hearing by two judges (for an appeal against sentence) or three judges (for an appeal against conviction). If leave is refused, the appeal will be dismissed. If leave is granted on any ground (before or at a hearing), the appeal will proceed in the usual way.

The proposal is to address concerns about the application for leave being referred to the hearing of the appeal which, of

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12 April 2010

Feature

course, increases the expense. Appeal books have to be filed and the respondent has to participate, so the costs increase. I’m in the process of consulting with interested parties on the proposal.

We are also having a look at the situation where counsel becomes unavailable between the time of nominating their available dates and the time of the listing advice. The court intends to have a standard turnaround time and I think it will probably be in the order of 10 days. We will still seek counsel’s available dates [to allow counsel who prepared the case and answer to appear at the hearing] and we’ll take into account counsel’s available dates, but it will only be in exceptional circumstances that we take an appeal out of the list once it has been listed. What we’re going to do is ask that the Court of Appeal registry be advised as soon as counsel becomes aware that a nominated available date is no longer available. We will take that into account if the list has not been finalised.

In your view, have the standards of practice and advocacy in the state changed between your appointment to the bench in April 2001 and now? If so, how?

It’s a really difficult question because the standards of advocacy depend on and vary widely according to the preparation and the experience and expertise of individual counsel. You can get a general feeling about how things are overall and I think there has been some improvement since 2001 when I joined the bench. I put that down to continuing legal education on advocacy in this state. It seems to me the Law Society of WA and the Western Australian Bar Association really do put a great deal of effort into it and I think that effort reflects in performance.

But there’s room for improvement and if I was to identify the causes of performances that are not up to scratch, I’d say it’s practitioners who accept briefs outside their area of expertise or their level of skill and experience. And if it is not that, then it’s usually shortcuts in preparation. And I think both of those things are linked with commercial considerations. So, room for improvement. I’m sure things will continue to improve. I hope they do!

What advice would you give practitioners appearing before the Court of Appeal in 2010?

It’s quite simple, but it’s this: never be satisfied with anything but the best you can do for the party you represent. Even if it means, as it almost inevitably will, that you can’t charge for all the necessary preparation time. And the preparation time is the time it takes to really come to grips with the reasons below: the framework of legal principles that apply; the legal and factual issues that arise for determination; how the law should apply to the facts and all the evidence relevant to disputed facts. And I add to that: time to contemplate, time to think. If you do all that and you do the best that you can for your client, you’ll be a success in your advocacy in the Court of Appeal.

I know there are all sorts of pressures on counsel and really the message is: you’re acting for someone else, you have to do the best you can for them. There are no short cuts. You may not be able to charge but that’s your obligation. Pride in performance, apart from anything else, can make some client demands or professional obligations on counsel very difficult. The two can be in conflict. But if you follow the path of doing the best you can, the amount of time that will be required in preparation over the long haul of your career will change. It’s in your best interests to accumulate a broad knowledge and skill base.

What are your thoughts (if any) on the results of the Law Council of Australia’s 2009 Court Appearance Survey, particularly as they might apply to the Court of Appeal?

Her Honour referred to the WA Snapshot and the:

“... overall findings (both senior and junior counsel categories) for WA indicated that there was no significant [statistical] difference between survey appearance rates and the actual Bar populations of both male and female barristers.”

The snapshot also concludes that:

“... the difference in appearance time in WA was statistically significant, with average male appearance time being 28 per cent longer than that of females.”

My impression was that the lack of statistical difference in appearance rates was not true in the Court of Appeal. I would have thought that the rate at which women appear before the Court of Appeal would be less than the proportion at the Bar. And if that’s wrong, it just means there are very low numbers at the Bar!

A separate concern is the apparent drop-out rate of women from the legal profession. That is unexplained or not addressed by this survey. I don’t know that there’s any current evidence as to why this happens not only in WA but I think around Australia. With the numbers of female graduates from law schools, you don’t see them proportionally represented as partners in law firms. The alternative track is the Bar and you don’t see them there in the numbers that you would expect.

How do you think the West Coast Eagles will fare this year (2010)?

I should tell you that I participate in a football tipping competition in which at the beginning of the home and away season we have to pick the order in which the AFL teams will finish at the end of the season. I’ve been conspicuously unsuccessful in that task! So, against that background I think the Eagles will finish towards the top of the bottom 8, that is 9th or 10th. I hope I’m wrong.

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The Law Society of Western Australia and the University of Western Australia co-hosted Law Summer School 2010, which was held at the University Club, UWA on Friday 26 February. More than 250 delegates attended to hear presentations by some of the top legal minds in Australia.

The first plenary session, titled Harmonisation of the Profession, was very popular due to the topical nature of the discussion. The Hon Christian Porter MLA, state Attorney-General, chaired the session, which included presentations by the Hon Robert McClelland, MP, federal Attorney-General, Professor the Hon Michael Lavarch and Tim Bugg, chairman of the International Legal Services Advisory Council (ILSAC).

The second plenary session followed and was chaired by the Hon Justice Michael Buss of the Supreme Court of Western Australia.

Law Summer School 2010Review

Speaking at this session was Belinda Gibson, Commissioner of the Australian Securities and Investments Commission, Graeme Samuel, Chairman of the Australian Competition and Consumer Commission and Tim Bugg of ILSAC.

The third plenary session was chaired by the Hon Justice Neville Owen of the Supreme Court of Western Australia, with presentations by the Hon Christopher Steytler QC and the Hon Keith Mason AC QC.

Four smaller seminars on topics of industrial relations, common law/crime, uniformed conditions/contract law and law of evidence followed. The day concluded with a presentation on work–life balance, followed by the chance to network and catch up with colleagues over drinks.

The registration area

Hon Robert McClelland MP, Federal Attorney General, and Tim Bugg, ILSAC Chairman, at the breakfast

All delegates received a conference satchel

Society President Hylton Quail addresses the breakfast audience

Plenary 2 audience in the theatre

Society Executive Director David Price and President Hylton Quail

Hon Christian Porter MLA, State Attorney General at the breakfast

Belinda Gibson, Commissioner of ASIC, addresses the audience

Breakfast function

April 2010 15

Hon Justice Ken Martin, Piet Jarman, Martin Jan, Malcolm McCusker QC

Gregory Boyle, Hon Justice Stephen Hall Kevin Prince, Dudley Stow

Louis Proksch, Jessie Thomas, Bryan Gardinar

Lana White, Dr Eric Heenan, Kate Pedersen

Hank Kremer, Blair Doncon

Malcolm McCusker QC addresses the audience

Madeleine King, Gregory Boyle David Shaw, Spencer Lieberfreund, Stefan Alteruthemeyer, Matt Morgan

Linda Savage, Ian Morison, Kylie Kemp, Professor Louis Landau, Susan Pass

Ashley Macknay, John Fiocco, Anna Liscia Dudley Stow, Ian Viner AO QC, Lionel King

Professor Bill Ford, Anna Liscia Antony Fortina, Ian Clairs Kim Valenti, Hon Chris Ellison

16 April 2010

Feature

in early December 2009, the Law Council of Australia released the results of the 2009 Court Appearance Survey (the survey). This survey was funded by the Law Council of Australia to obtain robust, reliable and replicable data on the segment of the legal community that appears before

Australian superior courts. The concept for the research was developed in association with the Australian Women Lawyers. 1

While the results of the survey triggered the writing of this article, my purpose in writing this article is not to analyse the results of the survey – much analysis has been done and continues to be done, ranging from mostly positive to very negative. 2 However, it is useful to start this article with a summary of the key findings from the survey. According to the survey, the following results are of relevance to Western Australia:

• Of the 197 barristers 3 (senior and junior) practising in Western Australia in mid-2009, 31 were female (16%).Nationally, of the 5,487 practising barristers, 1,058 were female (19%).

Portia’s Successors: Women at the Bar

Australia’s senior counsel. Nationally, female senior counsel appeared in 9% of matters, despite comprising only 6% of Australia’s senior counsel.

• Overall, female barristers appeared in 20% of the matters that came before Western Australian superior courts during the survey period, despite being only 16% of the Bar population. Nationally, male and female barristers appeared in exactly the same proportions as they existed in the Bar population.

• Private law firms briefed female barristers in 18% of their briefed matters that came before Western Australia’s superior courts during the survey period and other entities (for example, government departments and community legal advisers) briefed female barristers in 27% of their briefed matters that came before Western Australia’s superior courts during the survey period. Nationally, private law firms briefed female barristers in 14% and other entities briefed female barristers in 30% of matters.

• On average, Western Australia’s male barristers appeared for 28% more time than Western Australia’s female barristers (3.7 hours, as against 2.9 hours nationally; the average appearance time for male barristers was 3.8 hours and 2.8 hours for female barristers).

While the survey does not analyse the reasons why male barristers appear for longer than female barristers, the inference is that male barristers are being briefed in more complex matters, effectively receiving the work required to gain seniority and reputation. 4 This inference is supported by anecdotal evidence and observation. To give one recent local example, of

Of the 197 barristers (senior and junior) practising in Western Australia in mid-2009, 31 were female (16%) ...

• Of the 37 senior counsel (SC or QC) practising in Western Australia three were female (8%). Nationally, of the 827 senior counsel practising in Australia, 53 were female (6%).

• Female junior counsel appeared in 24% of the matters that came before Western Australian superior courts during the survey period, despite comprising only 18% of Western Australia’s junior counsel. Nationally, female junior counsel appeared in 9% of matters, despite comprising only 6% of Australia’s senior counsel.

• Female senior counsel appeared in 12% of the matters that came before Western Australian superior courts during the survey period, despite comprising only 8% of Western

... on average, Western Australia’s male barristers appeared for 28% more time than Western Australia’s female barristers ...

elspeth Hensler

Barrister, Francis Burt Chambers

April 2010 17

Feature

the 18 people who appeared as counsel in The Bell Group Ltd (in

liquidation) v Westpac Banking Corporation [No.9] [2008] WASC

239, only one was female.

While the difference between the appearance times for male

and female barristers is significant, it is not as stark as the

differences in the fees earned by male and female barristers. It

is not easy to find information about barristers’ earnings but,

for its Submission in Response to the Inquiry into the Causes

of Potential Disadvantage in Relation to Women’s Participation

in the Workforce, the Victorian Bar collated the following

information from the years 2006 and 2007: 5

• A woman briefed by a government department will receive

on average 44% of the fee paid to a male barrister.

• A woman briefed in a litigation matter by a government

department is likely to receive only 38% of the fee paid to a

male barrister.

• A woman briefed by a statutory authority on a litigation or

other matter will receive on average 58% of the fee paid to

a male barrister.

• A woman briefed in a litigation matter by a panel firm is

likely to receive only 76% of the fee paid to a male barrister.

• Of the female barristers surveyed by the Victorian Bar

in August 2007, 19% earned under $100,000 annually,

compared with 14% of surveyed male barristers.

• Of the female barristers surveyed by the Victorian Bar in

August 2007, 50% earned less than $200,000 annually,

compared with 31% of surveyed male barristers.

• Of the female barristers surveyed by the Victorian Bar in

August 2007, 77% earned less than $350,000 annually,

compared with 45% of surveyed male barristers.

It might be argued that the difference in the brief fees earned

by female barristers is due to female barristers undercharging

and there is some anecdotal evidence to support this argument.

But it would be surprising if that alone explained the whole of

the difference.

It is easy to find information about how unfair and how hard

life is as a female barrister. 6 But, there is good news too. For

a start, although the results of the survey are not all positive

for female barristers, they do show that we appear in a higher

percentage of cases, and receive a higher percentage of briefs

to appear from both private firms and other entities, than our

percentage membership of the Bar. Another positive is the

increasing number of women at the Bar. The Western Australian

Bar Association was established in 1963. There were no female

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18 April 2010

Feature

members of the Association for 12 years until, in 1975, Valerie French (now retired from the District Court of Western Australia) became the first woman to elect to practise as a barrister in Western Australia, followed very quickly by Antoinette Kennedy (recently retired from the position of Chief Judge of the District Court of Western Australia). It then took another 19 years for a woman to be appointed Queen’s Counsel in Western Australia: in 1994, Christine Wheeler (recently retired from the Court of Appeal) was the first woman in Western Australia to be appointed to this position.

While female participation at the Western Australian Bar got off to a slow start, our numbers are increasing. According to the Legal Practice Board of Western Australia’s Annual Reports for the years ended 30 June 2004 and 30 June 2009 7, during the five years between 30 June 2004 and 30 June 2009, the number of resident female barristers in Western Australia increased by 13 from 20 to 33. During the same period, the number of resident male barristers in Western Australia only increased by 9, from 150 to 159. At the time of writing, the number of resident female senior counsel practising from the Western Australian Bar has risen to three.8

Even so, the small number of female barristers does not compare well with the profession as a whole. According to the Legal Practice Board of Western Australia’s Annual Report for the year ended 30 June 2009 at p.15, there were 1929 resident females practising law in Western Australia and 2500 resident males. That is, about 44% of those practising law in Western Australia on 30 June 2009 were female, but only 16% of those practising as barristers in Western Australia were female.

Clearly, there is a major discrepancy between the percentage of women practising in the amalgam and the percentage of women practising at the Bar. The Western Australian Bar Association has stated that it is “committed to supporting and promoting women barristers” 9 but, with so few women being members of the Bar, the Association is deprived of a significant pool of female legal talent to support. While different female barristers have different experiences, I have felt strongly supported by my male, as well as my female, colleagues at the Bar. However, greater overt support for female barristers from their colleagues would benefit the Bar, as well as female barristers, by giving female lawyers greater confidence that becoming a barrister is a rewarding and viable career option and, in this way, attracting more competent female lawyers to the Bar.

The Association has also stated that it recognises that without

the advancement of women at the Bar the opportunities for

women lawyers to be promoted to senior roles in the legal

profession and, in particular, to the judiciary, are limited. 10

To that end, the Association has adopted a Model Briefing

Policy 11 that requires that barristers should be selected for

their competency independently of their gender. Despite this,

a number of competent female barristers have had briefs

withdrawn after it is discovered that the barrister is female.

Clearly, there is a long way to go to address the imbalances in

the numbers of women at the Bar, brief types and brief fees

and, if those imbalances can be addressed, the Bar would be a

lot more attractive to female lawyers. But, despite the negative

publicity, from my experience and from my discussions with my

learned sisters, there is a lot in favour of life as a female barrister.

Notes

1. Eliquent Business Consulting, 2009 Court Appearance Survey – beyond

the statistical gap: a project of the Law Council of Australia’s Equalising

Opportunities in the Law Committee in Association with Australian

Women Lawyers, October 2009, p.1. This is the latest of a number of

formal court appearance surveys, including Hunter R & McKelvie H,

Equality of Opportunity for Women at the Victorian Bar, commissioned

by the Victorian Bar Council in 1998, Australian Women Lawyers’ 2004

Court Appearance Survey and the Equality Before the Law Committee of

the Victorian Bar’s 2005 survey of the Victorian State Courts.

2. The 2009 Court Appearance Survey, together with the Law Council of

Australia’s media releases about the survey, are available from the Law

Council of Australia’s website, www.lawcouncil.asn.au. For other analysis

of the survey, see, by way of example, the Australian Women Lawyers’

press release dated 4 December 2009, “Women miss out on big bucks”

The Australian, 4 December 2009, “Women barristers match men in

court” The New Lawyer, 4 December 2009 and “NSW women riled over

briefing gap” The New Lawyer, 7 December 2009.

3. Not all of these barristers are resident in Western Australia.

4. Australian Women Lawyers’ press release, dated 4 December 2009;

“Women barristers match men in court” The New Lawyer, 4 December

2009.

5. At [17]-[24] of the Submission.

6. For example, as well as Australian Women Lawyers’ press release, dated

4 December 2009, “Women miss out on big bucks” The Australian, 4

December 2009 and “NSW women riled over briefing gap” The New

Lawyer, 7 December 2009 referred to above, see the Submission of

the Victorian Bar in response to the Inquiry into the Causes of Potential

Disadvantage in relation to Women’s Participation in the Workforce,

“Female barristers push for equal pay” The Sunday Age, 22 March

2009 at 5, “The Bar is still a lonely place for women” The Australian, 4

December 2009.

7. See the Legal Practice Board of Western Australia’s Annual Reports for

the year ended 30 June 2004 p.19 and for the year ended 30 June 2009

p.15.

8. There are four female senior counsel practising from the Western

Australian Bar if you include interstate female senior counsel.

9. Commentary on “Women Barristers” www.wabar.asn.au

10. Commentary on the “Model Briefing Policy” www.wabar.asn.au

11. Available from the Western Australian Bar Association’s website at

www.wabar.asn.au under the heading “Finding a barrister” or at

http://www.wabar.asn.au/images/Model_Briefing_Policy__July_2008_.pdf

The Western Australian Bar Association was established in 1963. There were no female members of the Association for 12 years... until 1975

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20 April 2010

UNWF00034 LAW FP The Brief APRIL 2010_Final.indd 1 24/3/10 2:15:20 PM

22 April 2010

Feature

As far back as 1847 it had been judicially remarked that “[a]ny communications which the solicitor of one party has with a party opposed to him in the cause is extremely unprofessional”. 1 So well before translation of an equivalent sentiment

into the professional rules, 2 it was an accepted principle of proper professional conduct that a lawyer should not, generally speaking, communicate directly with the client of another lawyer in respect of a matter in which the lawyers were engaged.

The chief justification for the so-called “no contact” rule is to prevent a lawyer from circumventing the protection that legal representation provides to an opposing party. Direct access to the opposing party could, it is feared, allow the lawyer to inappropriately secure damaging admissions from that party, access privileged communications, or undermine that party’s trust in his or her lawyer. If so, the value of legal representation for the opponent is arguably significantly reduced.

Although the no contact rule has traditionally been viewed as creating only a professional prohibition, as opposed to one the breach of which affords a private cause of action against the infringing lawyer, its breach can generate legal consequences. A court faced with a breach may, for instance, rule inadmissible evidence gathered as a result, 3 order the return of documents and notes, 4 or even order the disqualification of the lawyer in the proceedings. 5 Of course, contravening the rule is likely to generate a professional disciplinary response, although it is unlikely by itself to attract suspension or striking off. 6

The no contact rule provides a useful reminder of the importance of viewing ethics “rules” not as statutory pronouncements but as statements of principle. To attempt to structure communications to fall outside the literal terms of the rule, while at the same time

Getting Up Close and PersonalUpholding the Letter and Spirit of the “No Contact” Rule

infringing its substance, shows little regard for the applicable ethical norm. Adopting an ethically “holistic” approach to the no contact rule reveals itself in a variety of ways.

For instance, the proscription should be seen to extend to agents of the lawyer in question. A lawyer who, instead of making direct contact with an opposing client, instructs an agent to do so, arguably breaches the spirit of the rule. Also, although the no contact rule does not prevent a client directly making contact with an opponent, for lawyers to “word up” a client to make that contact in a manner inconsistent with the spirit of the no contact rule makes it difficult to distinguish between a lawyer instructing an agent to make the communication and the like instruction of the client. The issue then arises as to whether a lawyer, who is either a client in a matter, or self-represented, breaches the rule by approaching an opponent directly. In a 1995 ruling, the New South Wales Law Society’s Ethics Committee said that: 7

“… a solicitor who is a party to a matter is not necessarily precluded from contacting a party on the other side who has a solicitor acting – as long as the contacting solicitor does so in a personal capacity and does not seek, as a solicitor, to influence the other party.”

Yet as a matter of good practice, a prudent lawyer-litigant will eschew direct contact with the client of another lawyer. For an opponent, the distinction between a personal and professional capacity may prove illusory and there consequently may remain the prospect that the lawyer could influence the opponent illegitimately. Some American case law, to this end, supports the view that lawyers cannot divorce their professional from their private selves and so should be deprived the right of laypersons to speak directly with the opposing client. 8 And more recently the New South Wales Administrative Decisions Tribunal ruled that a lawyer-litigant who contacted the opposing party by impersonating the lawyer acting for that party – in an attempt to secure information about discoverable documents from the opposing party – had breached the “rationale and spirit” of the no contact rule and was guilty of professional misconduct as a result. 9

Even the absence of direct contact with an opposing client does not necessarily circumvent the no contact rule. Attempts to undermine an opponent’s trust in his or her own lawyer by indirect means are unprofessional. Where, in a 2008 New South Wales case, 10 the defendant’s lawyer prepared and disseminated

Gino Dal pont

Professor, Faculty of Law, University of Tasmania

The “no contact” rule provides a useful reminder of the importance of viewing ethics “rules” not as statutory pronouncements but as statements of principle.

April 2010 23

Feature

a discussion paper intending that its contents should come

to the plaintiff’s attention, McDougall J saw this as aimed at

persuading the plaintiff without proper advice to abandon its

proceedings, which his Honour characterised as “underhanded

and wrong”. 11

It is important to realise, to this end, that the public perception

of the profession stems not only from clients’ dealings with their

own lawyers, but in perceptions of opposing lawyers’ ethics.

Notes

1. Jones v Jones [1847] 5 Notes of Cases in the Ecclesiastical and Maritime

Courts 134 at 140.

2. See Professional Conduct and Practice Rules 1995 (NSW) r31; Professional

Conduct and Practice Rules 2005 (Vic) r25.

3. See, for example, Faison v Thornton [1993] 863 F Supp 1204.

4. See, for example, State ex rel Pitts v Roberts [1993] 857 SW 2d 200.

5. See Nauru Phosphate Royalties Trust (recs and mgrs apptd) v Business Australia Capital Mortgage Pty Ltd (in liq) [2008] NSWSC 833 at [36]-[38]

per McDougall J.

6. See, for example, Re Pursley [1995] 4 LPDR 5 (significant fines imposed

on two solicitors); Legal Services Commissioner v Bradshaw [2008]

LPT 9 [affd Legal Services Commissioner v Bradshaw [2009] QCA 126]

(lawyer reprimanded and ordered to undertake continuing professional

development in ethics and practice management).

7. See V Shirvington, “Communications: a Perennial Problem (Part 1)”, May

1995, 33 LSJ 20.

8. See, for example, Sandstrom v Sandstrom [1994] 880 p.2d 103;

Runsvold v Idaho State Bar [1996] 925 p.2d 1118.

9. Legal Services Commissioner v Hurley [2009] NSWADT 125.

10. Nauru Phosphate Royalties Trust (recs and mgrs apptd) v Business Australia Capital Mortgage Pty Ltd (in liq) [2008] NSWSC 833.

11. ibid., at [35].

over the years I have constantly reminded practitioners that the best way to get sued is to sue for your fees. Many a time a firm has issued proceedings against a former client to recover a relatively modest amount for fees only to

be confronted with a counterclaim for negligence, which has some merit. The practitioner then faces not only being unable to recover the outstanding fees, but also may have to pay an excess in settlement of the claim and, in some cases, to refund some of the fees the client has already paid. I have not even included in this assessment the time lost and energy incurred by the practitioner in defending the counterclaim.

Over the last 12 months there has been an increasing amount of claims notified to Law Mutual (WA) which began with the firm issuing proceedings to recover outstanding fees.

Counterclaims for negligence arising from proceedings to recover fees are difficult and costly to manage. Liability to recover or repay fees and disbursements is excluded under the Certificate of Insurance. Whilst a counterclaim for negligence does come within the policy, there is an inherent conflict between the firm and the insurer when conducting the litigation. Therefore, it is only in exceptional circumstances the insurer will take over the conduct of the litigation and the firm usually has to brief counsel or an independent solicitor to run both aspects of the claim. The costs relating to the counterclaim may be recovered under the policy but the costs relating to the recovery of fees will not.

Therefore, if you have outstanding accounts, think carefully before issuing proceedings. Unpaid fees often reflect client dissatisfaction. What steps can you take?

Fees and Risk ManagementAnne Durack

Executive Manager, Claims & Risk, Law Mutual (WA)

• Talk to your client and try and understand why the account is unpaid. Listen so you can understand the source of the problem.

• Be prepared to compromise or attend a mediation, especially if there may be some merit in the client dissatisfaction, even if in law it would not be grounds for a claim for damages.

• Explain all the work that has been done to try and justify your account. Sometimes it is not obvious to the client.

• Respond quickly to any questions and concerns by your client.

• Has the client the funds to pay the account? Many a time a practitioner notifies of a counterclaim for negligence and admits the client did not have funds, or the only asset is a home owned jointly with a spouse and enforcement of the debt will be difficult.

Managing fees is an important step in minimising the risk of a claim. Practitioners should adopt a preventative approach to billing by discussing fees with client at the outset and be alert to situations when the anticipated fees are being exceeded. It is preferable to bill on a regular basis in amounts that are manageable to the client. Be aware of delays in payment of accounts as it may be a sign of client dissatisfaction, which could be resolved if dealt with quickly.

In future articles I will discuss other aspects of fee recovery that can be the cause of claims against practitioners – for example, liens and terminating a retainer for non-payment of fees.

24 April 2010

News

on 26 March 2010, young lawyers kicked off their shoes and hit the sand for the inaugural YLC Mixed Beach Volleyball Competition. This new YLC initiative was held at Sand Volley Australia in Nedlands.

Volleyballs flew across the courts as those present tested out their spiking, serving and setting skills. The competition saw a range of skills and a competitive streak emerge among many players.

YLC Mixed Volleyball CompetitionReview

However, there can only be one winner. Congratulations to Mony de Kerloy, the YLC Mixed Volleyball champions for 2010, who beat Aboriginal Legal Services Fusion team.

Special mention must also go to Blake Dawson and Clayton Utz who narrowly missed out on being in the grand final.

After the competition, the teams exchanged volleyball stories while enjoying a sausage sizzle and a few well-earned drinks.

The YLC congratulates all of the competitors involved in the event. We hope to see all of these rising volleyball stars at the competition next year.

Young lawyers are requested to keep up those ball skills with the next sporting event, the YLC Mixed Touch Rugby Competition, coming up in July. Keep a look out for Friday Facts, the YLC eNews and the Society’s website for further information and registration details.

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Runners up – ALS Fusion

April 2010 25

News

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The Clayton Utz team

Rachel Scogna and Alexandra Matich enjoy the BBQ

Twilight volleyball action

Downings enjoy a drink between games

Iva Bacvic and Rupert M Baker commentate the Grand Final

Alexandra Matich serves

Neil Kingsbury, Sakhawat Kabir and Ben Martin

The Blake Dawson team

Clinton Russell cooking for the teams

Grand Final ALS Fusion vs Mony de Kerloy

26 April 2010

News

This year’s Costs School proved a great success, with the highest number of participants in attendance (30) compared to previous years. The event ran for four weeks between February and March.

The program is an opportunity for practitioners to earn seven CPD points as well as gain a comprehensive overview of cost information. This innovative workshop series saw the seminars taught electronically, with each participant receiving a USB with the Costs Guide loaded onto it.

The workshop program included the Supreme Court and Magistrates Court scale, essential costs orders and taxing costs.

Lawyers Schooled on Costs

Costs School guru David Garnsworthy

WA solicitor Nicholas Egan of the State Solicitor’s Office was recently named the Australian Government Lawyer of the Year in recognition of his talents and skills within the legal profession, both domestically and

internationally. Mr Egan works as a Senior Assistant State Solicitor and focuses mainly on construction litigation.

The award was handed out at a ceremony hosted by the Australian Corporate Lawyers Association (ACLA) in Melbourne late last year. The winners were judged by the ACLA directors and outside advisor, Andrew Rogers, former New South Wales Supreme Court Judge.

Other winners of the night included Michael Anderson, who won for Australian Corporate Lawyer of the Year and Karen Perret, who won for Australian In-house Lawyer Young Achiever of the Year. The ABC legal team was recognised for their skills when they took the Australian In-house Legal Team of the Year Award and for the second year the Corporate Express legal team took the award for Excellence in Sustainability.

WA Solicitor Wins National Award

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April 2010 27

News

The Law Careers Fair 2010 was held on Friday,

5 March at the QV1 lobby on St Georges Terrace.

This annual event is a joint collaboration by law

students societies and this year marked the eighth

year it has been running.

The Law Society of Western Australia was in attendance along

with 23 other organisations, each there to provide final year

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meet with law firms and people in the profession.

Law Careers Fair 2010

The Blake Dawson display The Norton Rose team

The Freehills team

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28 April 2010

Feature

Within the 3,000-plus pages of judgement of his Honour Justice Austin is a seminal analysis of the duty of care and diligence imposed upon directors and officers of corporations at law, including under s180(1)

of the Corporations Act (CA) and the application and reach of the business judgement rule (BJR) under s180(2) & (3) of the CA. Please refer especially to Chapter 23 of the judgement: http://www.lawlink.nsw.gov.au/ – Under “related sites” – NSW caselaw; Supreme Court – all decisions; 2009; Decision number 1229.

This paper highlights a number of the more material clarifications and pronouncements made by Austin J, whose experience, credentials and standing in this area of jurisprudence are widely acknowledged. References in this paper to paragraph numbers, are references to paragraph numbers in Austin J’s judgement.

1. Duty of Care and Diligence (s180(1) of CA)

1.1. The section provides: “A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they:

(a) were a director or officer of a corporation in the corporation’s circumstances; and

(b) occupied the office held by, and had the same responsibilities within the corporation as, the director or officer.”

1.2. Austin J addresses the evolution of this duty through the 19th century equity courts, in the context of fiduciary duties, through the common law action in tort and ultimately through its legislative enactment.

1.3. The following propositions and statements arise:

(a) The statutory duty under s180(1) is essentially the same as the duty of care and diligence of a director at general law (refer paragraph 7249).

(b) Although it is not necessary to prove damage to the corporation in order to establish a breach of s180(1), it is

A Light on the Hill for Directors[ASIC v Rich (2009) NSWSC 1229]

a necessary element of the statutory standard of care and diligence that it was reasonably foreseeable that harm to the interests of the corporation might be caused by the director’s or officer’s relevant act or omission (refer paragraph 7191).

(c) Furthermore, when considering whether a breach has occurred, regard must be had as to whether the risk of harm from the director’s or officer’s conduct is foreseeable and whether countervailing benefits might potentially accrue from the conduct so as to justify the risk arising from the conduct. Regard must be had not only to whether the director or officer had a subjective appreciation of the danger or risks, but also whether they should have known of the danger or risks. In particular, a “look forward” approach should be taken and hindsight should not supplant the temporal and commercial context in which the decision was taken by the director or officer (refer paragraphs 7226–7233).

(d) A mere breach of s180(1) will not necessarily lead to:

• Pecuniary penalty orders under s1317G of CA, unless the breach has the requisite elements of material prejudice or seriousness as prescribed in that section.

• Disqualification or banning orders from managing a corporation under s206C of CA, unless the Court is satisfied that the disqualification “is justified”, implying a higher standard of seriousness (refer paragraph 7195).

(e) Consideration of the “corporation’s circumstances” in s180(1)(a) requires consideration be given to the type of company involved, the size and nature of the business(es), its constitution, its board composition, the actual distribution of work between the board and the company’s officers, whether the company is listed or unlisted and, in the case of a parent company, the size and nature of the businesses of the various subsidiaries in the group (refer paragraph 7196(a)).

(f) Consideration of “the same responsibilities within the corporation” in s180(1)(b) refers to the tasks delegated to the relevant director by the constitution, by board resolution,

Steven Cole

Law Society Member

April 2010 29

Feature

or otherwise, as part of the distribution of functions of the corporation. This refers to the factual arrangements actually operating within the corporation (formal or informal), including “arrangements flowing from the experience and skills that he or she may bring to bear to the office ...” and expectations arising from those arrangements. [NOTE: Non-executive directors of small- to mid-cap corporations, where their special experience is often applied in a more “hands-on” manner in support of the corporation’s relatively lean executive team, should take special note of this] (refer paragraph 7197).

(g) Embraced within minimum standards of diligence for directors (executive or non-executive) include affirmative duties:

• to become familiar with the fundamentals of the business

• to keep informed of the company’s activities

• to monitor generally the company’s affairs

• to maintain familiarity with the financial status of the company, including reviewing financial statements and board papers and making further enquiry where appropriate

• to have a reasonably informed opinion of the company’s financial capacity (especially in the context of the duty to prevent insolvent trading under s588G of CA) (refer paragraph 7198).

(h) Subject to paragraph (i) following, the legal duty encompasses the following concepts:

• a duty of competence, measured objectively

• a standard referenced against what a reasonable person of ordinary prudence would do

• especially for executive directors, if the appointment is based on special skill (e.g. CEO or CFO), an objective standard of skill referable to the circumstance

• a standard of competence in reading and understanding financial material, irrespective of the director’s subjective inexperience or lack of skill

• irrespective of the director’s particular skills and experience (or lack thereof), the director or officer is accountable to “a core irreducible requirement of skill, measured objectively” (refer paragraphs 7200 and 7201).

(i) Generally non-executive directors are not subject to the same (higher) standards of care and diligence as are executive directors (refer paragraph 7191). In particular for non-executive directors, the objective duty of skill and competence may not extend much beyond financial matters. However, for executive directors, the standard reflects what is objectively expected of persons appointed to the designated office (for which expert evidence may be taken as to generally accepted industry expectations and standards) and also any additional responsibilities taken on, which may arise from the express terms of the executive contract of employment or from implied representations of competence and skill (refer paragraphs 7201,7206 and 7208).

(j) Although a fully informed general meeting of shareholders can prospectively or retrospectively ratify actions of directors that might otherwise be in breach of their duty of care and diligence, “great caution needs to be exercised in ... cases where there is not a precise coincidence between shareholders and directors” (refer paragraphs 7204 and 7205).

(k) The duty of care and diligence recognises the distinction between negligence and mere mistakes, or errors of judgement, particularly in circumstances dealing with future uncertain events and processes where there is room for judgement errors and differences of opinion. It requires the director’s or officer’s conduct to be assessed with regard to:

• the circumstances existing at the relevant time

• without the benefit of hindsight

• with the distinction between negligence and mistakes, or errors of judgement firmly in mind (refer paragraphs 7234-7237).

(l) Importantly, if the impugned conduct is found to be a mere error of judgement, then there is no breach of s180(1) at all and therefore it is not even necessary to consider whether BJR under s180(2) may have application (refer paragraph 7237).

2. bJr (s180 (2) and (3) of CA)

2.1 The sections provide:

“(2) A director or other officer of a corporation who makes a business judgement is taken to meet the requirements of subsection (1) and their equivalent duties at common law and in equity, in respect of the judgement if they:

(a) make the judgement in good faith and for a proper purpose

(b) do not have a material personal interest in the subject matter of the judgement

(c) inform themselves about the subject matter of the judgement to the extent they reasonably believe to be appropriate

(d) rationally believe that the judgement is in the best interests of the corporation.

A director’s or officer’s belief that a judgement is in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in their position would hold. (3) In this section “business judgement” means any decision to take or not take action in respect of a matter relevant to the business operations of the corporation.”

2.2 As with the evolution of the duty of care and diligence, Austin J analyses the principles behind the common law BJR and its statutory manifestation in s180(2) and (3) of CA.

2.3 The following propositions and statements arise:

(a) The BJR in s180(2) and (3) of CA:

• applies not only to cases of breach of duty of care and diligence under s180(1), but also to equivalent duties arising under common law and equity (refer paragraph 7245)

30 April 2010

Feature

• has real application to protect directors and officers notwithstanding recent commentary arguing that the BJR offers nothing but “window dressing” (in reference to comments by Neil Young QC in his ASIC Summer School Paper 2008) – refer paragraph 7288

• is a specific statutory rule having defined components and a defined outcome, in addition to the business judgement considerations referred to in s1.3(k) of this paper (refer paragraph 7249).

(b) The director or officer bears the onus of proof of establishing all the elements of the BJR in order to access its relief (refer paragraph 7264).

(c) With respect to the following critical elements of the BJR:

• there must be a “business judgement” made by the director or officer i.e. an actual decision to take or not take action. The director or officer must have turned his/her mind to the matter and made a decision. Simply neglecting to deal with a matter or not having turned one’s mind to a judgement does not satisfy this requirement of the BJR (refer paragraph 7272).

• a business judgement must be “in respect of a matter relevant to the business operations of the company” (refer s180(3))

• “in respect of a matter relevant to” are well-recognised words of great breadth (refer paragraph 7271)

• a matter may be “relevant to the business operations of a company” though not of itself a business operation matter. Decisions taken with respect to planning, budgeting and forecasting are within this context. However, the discharge by directors of their “oversight” duties (including monitoring the company’s affairs and policies and maintaining familiarity with the company’s financial position) are not protected by the BJR because they do not involve a “business judgement” as defined (refer paragraphs 7273 and 7275)

• the judgement must be made in good faith and for a proper purpose and the director or officer must not have a material personal interest in the subject matter of the judgement

• the director or officer must inform him/herself about the subject matter of the judgement to the extent to which they reasonably believe appropriate. The reasonableness of that belief must be assessed by reference to:

(i) the importance of the judgement

(ii) the time available for, and the costs of, obtaining the information

(iii) the director’s or officer’s confidence in those responsible for exploring the matter

(iv) the state of the company’s business at the relevant time and the nature of competing demands on the board’s attention

(v) whether or not material information is reasonably available to the director or officer (refer paragraph 7278)

• protection may therefore be available even if the director

or officer was not aware of available information material

to the decision, so long as he/she reasonably believed he/

she had taken appropriate steps on the decision making

occasion to inform him/herself about the subject matter

i.e. a subjective consideration rather than an objective

consideration that might have included information

which the director or officer “should have known” (refer

paragraph 7279)

• the belief that the judgement is in the best interests of

the corporation need only be “rational”, not necessarily

“reasonable”. Reasonableness is an objective standard

based on the beliefs of a reasonable person. However,

a belief would be a rational one if it was based

on a reasoning process and was not so absurd or

extravagant such that no reasonable person acting in

that position would hold it (whether or not the belief

was “reasonable” in an objective sense). To be “rational”

the belief needs to be supported by a reasoning process

sufficient to warrant describing it as a rational belief,

whether or not the reasoning process could be described

as convincing one (refer paragraphs 7284 and 7285).

3. Conclusion

The strength and clarity of the statements in the judgement

concerning the duty of care and diligence and the BJR by a

person of Austin J’s acknowledged standing and respect are

both enlightening and compelling. In particular of note are the

following aspects:

(a) the difference in the extent of the duty of non-executive

directors compared with executives

(b) the acceptance of the distinction between negligence

and mere mistakes or errors of judgement in considering

whether the threshold duty of s180(1) has been offended

(even before the need to fall back on the BJR defence)

(c) the onus of establishing the BJR being on the relevant

director or officer

(d) the fact that a belief may be rationally held (so that

protection of the BJR may be available) even though the

judgement might not be a reasonable one.

Chapter 23 of the case is recommended reading for every

practising director or executive officer of a corporation.

DISCLAIMER: The above information is based on the author’s

interpretation of the judgement of Austin J in the above case. It must

not be taken to be legal advice able to be relied upon by any reader

and no duty of care shall be taken to arise. In particular any reader must

take and rely upon their own legal advice, having regard to their own

circumstances and the application of the law to those circumstances.

April 2010 31

News

Mr Quail also wishes to acknowledge outgoing Chief Judge Antoinette Kennedy for her enormous contribution to the law during her 25 years on the bench, including the last six years as Chief Judge.

michael Corboy SC Appointed to Supreme Court bench

The Society also wishes to congratulate Michael Corboy SC on his appointment to the Supreme Court of Western Australia. Society President Hylton Quail said:

“Michael Corboy has been a long-time member of the Society and he is highly regarded in the legal profession. Mr Corboy has, for a long time, been one of WA’s leading silks. He is renowned for his intellectual rigour and will strengthen what is already an excellent Supreme Court bench.”

Mr Corboy will replace the Hon Justice Christine Wheeler, who retired in March.

The Law Society of Western Australia extends its congratulations to the new Chief

Judge of the District Court of Western Australia, His Honour Judge Peter Martino. Society President Hylton Quail said:

“His Honour is a highly respected member of the judiciary and is more than qualified to take over the administration of this court. His Honour is renowned for his tireless work ethic, sound

judgements and dedication to serving the community.”

Judge Martino is a long-term member of the Law Society of Western Australia, having served as Treasurer in 1992 and Vice-President in 1993. He has also contributed to various Society committees and professional development events. Mr Quail said:

“His Honour is a great supporter of the Society and we hope to continue the strong working relationship enjoyed with his predecessor.”

New District Court Chief Judge Announced

His Honour Judge Peter Martino Chief Judge Antoinette

Kennedy

St.George Bank and BankSA now operate as divisions of Westpac Banking Corporation. However, please continue to refer requests for discharges of mortgage to St.George Bank and BankSA in the same way as you currently do. Please do not forward all requests to Westpac. Please note:(a) all mortgages registered before 1 March 2010 by St.George Bank Limited or BankSA will continue to show the original

mortgagee’s name on the title (except ACT);(b) all ACT mortgages registered before 1 March 2010 will show Westpac as the mortgagee on the title;(c) all mortgages registered on and from 1 March 2010 will show Westpac as mortgagee on the title but the lodging party details will

show St.George Bank or BankSA if applicable. Please check the lodging party details or confirm with your client if the loan is a St.George Bank/BankSA/Westpac loan and refer the request to the processing area for that brand to ensure the request is processed efficiently.

St.George Bank and BankSA are divisions of Westpac Banking Corporation ABN 33 007 457 141 AFSL 233714. 9624_12081F K03/10

Important Notice for Conveyancers when discharging St.George Bank or BankSA mortgages.

9624_12081F.indd 1 15/03/10 9:40 AM

32 April 2010

News

2010 Salary Survey

The Law Society of Western Australia’s Law Office

Management Committee has been organising

an Annual Salary Survey of the legal profession

since 1998. The 2010 survey was sent out earlier

this year for responses and results are now

available. This survey aims to record detailed salary and related

information for all levels of employment in legal practices in

Western Australia.

Results of the survey reflect the current market rates and are

made available on a confidential basis to managing partners and

human resources managers for use as a guideline in budgeting

for salary reviews.

In 2010, 132 firms participated in the survey over categories of

small (1 – 10 fee earners), medium (11 – 20 fee earners) or large

(21+ fee earners) firms. The results of the survey reflected some

interesting market trends, which need to be taken in context of

the recent international financial events.

For the areas of fee earning staff,

there was little shift in the overall

salary amounts since 2009.

The salaries for articled clerk/law

graduates continued their pattern

from 2009 with a further average

increase of 9.3%. The salary rates

in this area decreased an average of

7.6% in 2008 and since then have

increased 22.9% in the past two

years.

Small law firms were the only firm

category that showed an increase

in salaries for the year, with both

medium and large firms indicating

a small decrease in salaries. Law

firms that fall into the category of a

medium firm indicated an averaged

increase of 7.5% for the fee earner

positions.

The salary survey also looks at

benefits and culture, indicating

trends and assisting firms in their approach to setting non-

financial incentives and addressing balance and work satisfaction

aspects in the profession. In particular this aspect of the survey

looks at differing benefits offered to staff, including payment of

Law Society membership, Continuing Professional Development

(CPD), laptops and personal days.

The 2010 salary survey results were provided to the managing

partner or human resources manager of all participating firms

free of charge. Non-participating firms are welcome to access

these results for a small fee. Individuals, whilst unable to

access the full results, are welcome to contact the Society to

determine the median figure for their current role and firm size.

To access these results, please contact our membership team at

membership@lawsocietywa.asn.au.

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%SalariedPartners

Senior FeeEarners

Junior FeeEarners

Employee Level

Law Society Membership Covered

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Senior Mgmt Support Staff

Over All Law Society Membership

Firm Size 1 – 10 Law Society Membership

Firm Size 11 – 20 Law Society Membership

Firm Size 21+ Law Society Membership

CBD Firms Law Society Membership

Metro Firms Law Society Membership

Country Firms Law Society Membership

120%

100%

80%

60%

40%

20%

0%SalariedPartners

Senior FeeEarners

Junior FeeEarners

Employee Level

Paid Continuing Education

Per

cen

tag

e o

f R

esp

on

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Senior Mgmt Support Staff

Over All

Firm Size 1 – 10

Firm Size 11 – 20

Firm Size 21+

CBD Firms

Metro Firms

Country Firms

The InterpeopleAnuaCHARITYB

Hosted by: Mike Goldman (Channel 10)Special Guest Performance by: Daryl Braithwaite

7pm – 12:30am, Saturday 22 MayAstral Ballroom – Burswood Entertainment Complex

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Make-A-Wish Australia grants the Wishes of children with life-threatening medical conditions to enrich the human experience with hope, strength and joy. Since 1985, Make-A-Wish Australia has granted over 5700 Wishes to Australian children, and continues to do great things throughout the country.

Having founded the BHaving founded the Breast Cancer Foundation of WA in 2000, Ros Worthington (OAM) now focuses her energies on The Love Angel Foundation. The Love Angel Foundation is about kids helping kids, aiming to encourage Australian children to reach out and help children in third world countries, through mentoring and teaching them the essential core values of humanity, compassion and kindness. In 1986, Ros also became the first volunteer for the Make-A-Wish Foundation in WA. Chris Bates of Interpeople sits on the Board and would be more than happy to discuss the Foundation at any time.

34 April 2010

Feature

Dealing With Complaints About Service Issues

many complaints received by the Committee

raise service issues that are unlikely to

result in an adverse finding against the

practitioner. The sorts of matters which will

generally constitute service complaints will

be complaints concerning charges (but not gross overcharging),

lack of communication and lack of courtesy. What can you do

about service complaints?

establishment of a Complaint Handling procedure

Many firms do not have a properly formulated complaint

handling procedure. Complaints are often handled on an ad hoc

basis. A good complaint handling procedure within a firm will

reduce the number of complaints made to the Committee.

Do you have a designated complaints handler? Does the

client know who to complain to and do staff know when to

refer a complaint to someone senior and who that person is?

Often complaints will be made to a junior member of staff,

sometimes the finance person who is chasing payment of a

bill, or a secretary when a client is experiencing difficulties

contacting a practitioner or a junior practitioner who is handling

the client’s matter on a day-to-day basis. Without coordination

of such complaints, they are often not dealt with and lead to

client dissatisfaction and perhaps ultimately a complaint to the

Committee. The establishment of a good complaint handling

procedure will stop many complaints at that stage.

Cooperation with the Committee

The Committee receives many enquiries each day from clients.

All such enquiries are dealt with by legal officers of the

Committee. When these enquiries raise service issues only, the

legal officers seek to deal with them in the first instance by

either getting in touch with the practitioner directly and seeking

to resolve the issues or by suggesting that the client get in

touch with the practitioner and explain that they have spoken to

someone at the Committee who suggested they try to resolve

the matter directly with the practitioner.

This is your opportunity to try to sort the matter out without a

formal complaint being made. If it is possible to do so at this

stage, it will save you time and costs later in responding to a

complaint. It is worthwhile to think of this process as positive

rather than negative. The fact that the client has resorted to

contacting the Committee may mean that you do not have

Diane Howell

Law Complaints Officer, Legal Profession Complaints Committee

a complaint handling system that the client could use or was

aware existed. Even if that is not the case, it does not mean

there has been a breakdown in the solicitor–client relationship,

rather it may be that the client just needed to speak to someone

about their complaint to get a better understanding of whether

they had a valid complaint. If the Committee has suggested that

the client try to deal with this directly with you, it is because the

legal officers considered that it could be sorted out by you, if

you are willing to do so.

informal resolution or mediation of Complaints

The Committee actively seeks to resolve service complaints

which do not raise conduct issues. When written complaints

are received, if it appears that they could be easily resolved,

the legal officer handling the matter may simply telephone

the practitioner and explain that a written complaint has been

received, what it’s about and find out what steps the practitioner

may be willing to take to resolve the matter. Such resolution may

involve you getting in touch with the client and sorting it out

directly. If that can be done, the client may well withdraw the

complaint without you having to spend the time and expense

providing a formal response to the complaint.

If the service complaint is more complex but still something

that may be capable of resolution, the legal officer may suggest

mediation. If you and the client both agree to mediation, a

qualified mediator within the Committee’s office will conduct

the mediation. Although this will involve some time, in the

Committee’s experience it will, in the long run, save you

considerably more time than would be involved in providing a

formal written response to a complaint.

If the practitioner who is the subject of the service complaint is a

junior practitioner, these procedures will require the partners or

principal of the firm to assist in permitting the junior practitioner

to have authority to enter into a negotiated settlement with the

client.

If you take a positive approach to handling client’s service

complaints, both within your firm and when contacted by the

Committee’s officers, it will help you to reduce your time and

costs in dealing with those complaints through the Committee’s

more formal processes.

April 2010 35

News

late last year the Hon Wayne Martin, Chief Justice

of Western Australia, welcomed the first recipients

of the Western Australian Graduate Diploma of

Legal Practice from the College of Law (WA). The

49 graduates, many of whom have since been

admitted to the Supreme Court of Western Australia, were the

first group of Western Australians undertaking a WA practical

legal training (PLT) course to seek admission as an alternative to

articles of clerkship.

The new Legal Profession Act and its PLT Regulations created

the opportunity for a new style of learning, manifested in the

Graduate Diploma as a PLT course, leading to admission. This

transforms the admission process that had its roots in the 1893

Legal Practitioners Act.

Until 2009, The College of Law provided pre-admission courses

to Western Australians using its New South Wales curriculum.

The new Act allowed the College to invest in WA law-based

curriculum and develop WA-based practice papers.

WA College of Law’s First Diploma Graduates Honoured

Formal learning with practical, supervised placement forms

the basis of the graduate diploma. The course is structured

as three compulsory units in legal practice (commercial and

corporate, property and civil litigation); three compulsory units

in professional areas (ethics, trust accounting and professional

skills) and two electives from seven practice areas (administrative,

criminal, family, consumer, employment and industrial relations,

planning and environment and wills and estates law).

Students are required to complete 75 days’ placement in a legal

practice supervised by a practitioner.

By early 2010 the College had enrolled more than 180 students

in the WA PLT program, demonstrating that the profession has

embraced different modes of admission.

Alison Gaines

Brief Editorial Committee Member

College of Law graduates and special guests

For Further InFormatIon:Contact Simon MorrisonPhone: (08) 9319 5800 www.shine.com.auLoCaL oFFICeS natIonaL FIrm

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36 April 2010

richard Nash Arrives with Wig and Gown

The wig and gown were first worn in Western Australia by

Dublin-born Richard Nash in 1840. Described by barrister

Edward Landor as “the most active-minded and public-spirited

man in the colony”, 1 Nash was a lively and controversial figure

in the young Swan River Colony.

Admitted to the Irish Bar in 1832, Nash arrived in the colony in

1839 and soon after was persuaded by Reverend Wittenoom to

represent Jane Green, a young woman charged with murder.

The paper of the day reported: “This gentleman reluctantly took

the brief for the defence of the girl and, much to his credit,

exerted himself most ably and strenuously without the slightest

fee or reward”. 2

Nash made such an impression in legal regalia during his first

appearance in a WA court that the newspaper of the day

reported:

“The appearance of the gown and wig in our court for the

first time was a novelty we were well pleased to see.”

The Trial of Jane Green

Jane Green was a 17-year-old orphan brought out to the colony

by the Children’s Friend Society in 1839 to work as a servant.

She was apprenticed to the Resident Magistrate of Toodyay,

Captain Francis Whitfield. A year or so later, after concealing her

pregnancy, Jane silently gave birth to a baby boy in the Whitfield

home. Mrs Charlotte Whitfield discovered the dead infant at the

foot of Jane’s bed covered with rags. It appeared his throat had

been cut. Jane was charged with wilful murder.

Jane stood trial in the Old Court House before Chairman William

Henry Mackie and the case was of great interest to the people

of the colony. Whitfield, along with Reverend Wittenoom, was

one of 28 commissioners appointed to look after the interests

of orphans sent to the colony. He was identified as the father

of the child and the ensuing scandal caused Whitfield to resign

from his position as magistrate. There appears to have been

The First Appearance of Wigs and Gowns in Western Australia

strong community support for Jane Green and the prospect

of a guilty verdict and death sentence was abhorrent to the

community. Efforts were made to obtain the best legal advice

in the colony.

Nash argued that it was not known whether the child was

born alive or dead and that the cuts may have been caused by

attempting to remove the umbilical cord from around the baby’s

neck. He called the colonial surgeon, Joseph Harris, as a witness.

Harris explained that temporary delirium was commonly induced

by child labour.

The question of Jane’s life rested upon the jury’s decision.

Chairman Mackie drew the jury’s attention to several particular

points. Firstly, they had to be satisfied that the child was born

alive; secondly, that the fatal injuries were inflicted by the

prisoner; and thirdly, that she inflicted them in a sound state of

mind.

manslaughter

The jury found Jane Green not guilty of the murder of her baby,

but guilty of trying to conceal the birth of a child. She was

sentenced to two years’ imprisonment with labour suited to her

age and sex.

On 7 October 1840, Whitfield advertised his decision to leave

the colony by the first conveyance. Wittenoom noted in

1841 that “…Captain Whitfield has been degraded from the

Magistracy, deserted by his wife and numerous grown-up family

and entirely excluded from reputable society.” 3

Notes

1. Landor EW. The Bushman, or, Life in a new country, London: R Bentley,

1847, p.38.

2. Perth Gazette, Editorial and Trial Reports, 3 October 1840.

3. Blackburn G. The Children’s Friend Society, WA: Access Press, p.147

(from Wittenoom’s Report of the Children 1841).

Sarah Toohey

Museum Officer, Law Society of Western Australia

April 2010 37

law Council’s Country lawyer Concerns raised with Government

The Law Council has made its submission to Commonwealth Attorney-General Robert McClelland on the issue of the recruitment and retention of lawyers in country Australia. The submission was made in the wake of a meeting between Mr McClelland and Law Council representatives, which focused on access to legal services for people living in rural, regional and remote (RRR) areas.

The Law Council is concerned that ongoing problems in recruiting and retaining legal practitioners in country Australia are negatively impacting on the legal sector’s ability to service the legal needs of RRR communities. A survey conducted by the Law Council earlier this year found that:

• Forty-three per cent of RRR practices did not have enough lawyers to meet demand.

• Forty-two per cent of RRR lawyers do not intend to practise law in five years’ time.

• Seventy-one per cent of principal lawyers cited succession planning as their biggest concern, followed by attracting additional lawyers (58%) and attracting replacement lawyers (51%).

• Sixty-four per cent of RRR firms undertake pro bono work and 51% undertake legal aid work.

The Law Council has called on the Government to take a number of initiatives to respond to the shortage of lawyers. The Attorney-General requested that the Law Council make a formal submission outlining its concerns. The submission was made on 25 September. It urges the Government to work with the profession on this critical issue by facilitating the implementation of the Government initiatives identified in the submission. The prioritised Government initiatives advocated in the submission include:

• Waiving fringe benefits tax (FBT) liabilities on RRR employer payments of employee benefits, which could attract both new legal practitioners and experienced practitioners looking for a career change.

• Monetary allowances and bonuses for relocation or remaining in a RRR area.

• Repaying completely or partially HECS-HELP or FEE-HELP liabilities for legal practitioners who practise in RRR areas for a certain number of years following the completion of their degrees.

• Increasing opportunities for clinical placements in RRR areas

for law students and graduates.

The Law Council will also refer to its Working Group the

initiative raised by the Attorney-General that the Law Council

should enlist the support of universities in RRR areas to lower

the entrance scores for students from those areas to encourage

them to study law and remain there.

Alex Ward, Law Council Treasurer and co-chair of the Recruitment

and Retention of Lawyers Working Group and Téa Paris, Policy

Lawyer, attended the Australian Law Students Association

(ALSA) Council meeting held in Canberra. Mr Ward presented

on the current initiatives of the Working Group and its focus on

the issues affecting lawyers in RRR areas.

Law firms and other legal organisations in RRR areas have in

the past experienced difficulties attracting young practitioners,

particularly those who do not have any ties to those areas.

The law students provided valuable insight into ways to attract

recent graduates to country Australia, such as promoting the

variety of practice experience and by enabling students to

complete seasonal clerkships with RRR law firms.

The Law Council will continue to collaborate with ALSA to

ensure that law students are provided with information and

encouragement to practice in RRR areas.

Views on Jury Directions put to SCAG

The Law Council in February voiced its views on jury directions to

the Standing Committee of Attorneys-General (SCAG).

The Law Council’s policy statement on jury directions, which

was brought to SCAG’s attention in February, was prepared

by the Council’s National Criminal Law Liaison Committee and

approved by its Executive in November last year.

The NSW, Victorian and Queensland Law Reform Commissions

are all currently and separately engaged in reviewing the

directions and warnings given to juries in criminal trials and

considering options for reform.

The Law Council is of the view that, while every attempt should

be made to ensure that legal principles are communicated to

juries in a consistent and comprehensible manner, the trial judge

must be provided with the flexibility necessary to tailor the

particular directions to the specific circumstances of the case.

Ultimately, according to the Law Council, it is the responsibility

of the trial judge to ensure that the accused receives a fair trial.

The fact that the defence counsel at trial has not objected to

a direction given by the judge to the jury (or a failure to give

a direction) is relevant to the question of whether or not an

appeal should be allowed, but it should never be determinative,

the Law Council said. The Law Council suggested a number of

alternative ways that the efficacy of the criminal trial process

could be improved, including: improved judicial education;

improved training of prosecutors; and higher levels of legal aid

funding to ensure the quality of defence representation.

38 April 2010

State Administrative TribunalCommiSSioNer For CoNSumer proTeCTioN and CHeQueCASH pTY lTD [2009] WASAT 244

Stream: Commercial and Civil Act: Consumer Credit (Western Australia) Act 1996Coram: Mr T Carey (Member) Delivered: 11 December 2009 Result: Application upheld

Catchwords: Consumer credit – Misstatements of total interest charges payable – Civil penalty – Factors prescribed by s102(4) of Consumer Credit (Western Australia) Code – Costs.

Summary of Tribunal’s Decision

1. The applicant sought a civil penalty against the respondent in relation to admitted contraventions of a “key requirement” of the consumer credit legislation that credit contracts specify the total amount of interest charges payable under them. Its principal complaint was that the respondent had in its credit contracts specified an inflated amount for the interest charges payable, which was explained by a failure of the respondent’s computer program to recognise reductions in interest in cases where repayments were to be made over the life of the loan. Some 989 cases of overcharging were identified.

2. The parties were in disagreement as to the appropriate amount of the penalty. The applicant relied upon the respondent’s systemic failures, which allowed the contraventions to occur and continue without detection for some seven years, the losses which were incurred in the first instance which, although not great in absolute terms, were of significance to the borrowers concerned and the need for deterrence for both the respondent and other credit providers. The respondent pointed to the swift action taken upon being notified of the contraventions to reimburse the borrowers and rectify its computer system to prevent recurrence, the inadvertent nature of its breaches and its complete cooperation with the applicant in relation to its requirements.

3. The Tribunal set out its considerations against the framework of a set of relevant factors which the legislation prescribed. It made reference to some decided cases which the parties sought to rely upon or distinguish, whilst noting that the benefit to be derived from other cases was limited. Taking all matters considered into account, it determined that a civil penalty of $10,000 was appropriate.

4. The Tribunal also upheld the applicant’s application for costs, against the respondent’s opposition, on the basis that the application was sufficiently analogous to disciplinary

proceedings of professional regulatory bodies, where an exception to the general presumption in the Tribunal against costs orders operates.

mcleoD and WeSTerN AuSTrAliAN plANNiNG CommiSSioN [2010] WASAT 25

Stream: Development & Resources Act: Planning and Development Act 2005 (WA)Coram: Ms M Connor (Member) Delivered: 16 February 2010 Result: Application for review upheld in part. Conditions of approval varied.

Catchwords: Town planning – Subdivision of lot into four lots – Condition imposed requiring public open space contribution – Second Newbury test – Public open space in excess of generally accepted 10% requirement – Deficiency in public open space providing the range of activities associated with a local park – Demand generated by three additional dwellings not sufficient to warrant imposition of condition – Potential for similar proposals eventuating in the locality – Cumulative effect – Diminution of “high amenity value”.

Summary of Tribunal’s Decision

1. The matter concerned two conditions of subdivision approval for No 10 (Lot 100) Grey Street, Albany. Agreement was reached between the parties in respect to one of the two conditions. Consequently, the matter proceeded to final hearing, with the only issue in dispute being condition 9, which required cash in lieu of public open space in accordance with s153 of the Planning and Development Act 2005 (WA) and cl4.3.2 of the City of Albany’s Public Open Space Contribution Policy.

2. The principal issues that arose for determination in this matter were whether the condition requiring the ceding of land for the purposes of public open space fairly and reasonably related to the subdivision and, if so, whether the condition was fair and reasonable in the circumstances of this case, taking into consideration the planning framework; the public open space existing in the locality; whether the proposed subdivision generates a need for additional public open space within the locality; and whether similar proposals of subdivision are likely to eventuate in the locality.

3. The Tribunal found that the condition had a planning purpose and was satisfied that there was a nexus between the condition and the proposed subdivision. As to whether the condition was fair and reasonable in the circumstances of the case, the Tribunal found that the demand generated by the subdivision was not of itself sufficient reason to

April 2010 39

impose a condition requiring the ceding of land for public open space. However, the Tribunal was satisfied that there was potential for similar proposals to eventuate in the locality and was concerned that the cumulative effect would diminish the existing “high amenity value” and character of the locality.

4. The application for review was upheld in part, in that the reworded condition as agreed to by the parties was substituted. The intent of condition 9 was affirmed by the Tribunal, although the wording of the condition related to an area of land rather than a cash in lieu contribution.

ClouGH and THe oWNerS oF beNGArA FlATS STrATA plAN 5500 [2010] WASAT 15

Stream: Commercial & Civil Act: Strata Titles Act 1985 (WA)Coram: Mr C Raymond (Senior Member) Delivered: 9 February 2010 Result: Application dismissed

Catchwords: Application to vary contributions pursuant to s99 of the Strata Titles Act 1985 (WA) – Order sought to restrict expenditure for particular repairs – Order sought for council to refund expenditure incurred – Application also for orders under s89 of the Strata Titles Act 1985 (WA) to vary interest payable and for order under s90 of the Strata Titles Act 1985 (WA) for inspection of documents – Whether application should be dismissed as an unjustified proceeding under s47 of the State Administrative Tribunal Act 2004 (WA).

Summary of Tribunal’s Decision

1. The applicant applied for a range of orders under the Strata Titles Act 1985 (WA) aimed at redressing criticisms levelled at the budget passed by the respondent for the 2008–2009 financial year, to recover alleged unauthorised expenditure, to vary interest chargeable by the respondent and for access to documents.

2. There was a long history of disputation between the parties and the respondent, which opposed all of the relief claimed, sought that the proceedings be dismissed as unjustified proceedings on the basis that they constituted an abuse of process, were frivolous and vexatious and lacking in substance.

3. The Tribunal rejected the criticisms which were raised against the budget and found that there was no basis for intervention by the Tribunal. Similarly, the Tribunal found that there was no basis to grant any relief aimed at preventing the respondent from engaging a contractor to carry out certain repairs caused by concrete cancer. The Tribunal found that the members of the strata company had arrived at an appropriate decision based on the information that was before them and that no evidence was before the Tribunal to support a finding that it would be inappropriate for the respondent to engage a particular contractor.

4. The Tribunal found that the respondent had undertaken unauthorised expenditure in instructing solicitors to take recovery action for alleged arrear levy contributions owed by

the applicant. However, ongoing expenditure was authorised

at a subsequent extraordinary general meeting of the strata

company and all owners (except the applicant) supported

the action taken. Consequently, it was obvious from the

outset that it would be an exercise in futility to require the

members of the strata council to refund the expenditure

incurred.

5. A claim to vary the interest rate chargeable by the respondent

was also rejected. The Tribunal declined to follow the

rationale of an earlier decision of the Tribunal in Clough

and The Owners of Bengara Flats Strata Plan 5500 (matter

No CC:95/2007), which suggested that a change in market

overdraft rates would support a variation of interest. That

was because it was clear that s89 of the Strata Titles Act

1985 (WA) did not give a general right to vary the prescribed

interest rate: a right of review was only given when the

strata company consciously made a decision to apply a

different interest rate and that had not occurred.

6. The Tribunal also declined to make any order granting the

applicant access to documents as sought. The Tribunal was

not satisfied that the respondent had wrongfully withheld

documents, when there was no evidence that the applicant

had applied for access to the documents in question. Many

of the documents were subject to legal professional privilege

and concerned related proceedings between the parties in

the Magistrates Court, or were to be discovered pursuant

to an order for discovery made in those proceedings and

the remaining documents, although they would have been

relevant to these proceedings, were no longer relevant, as

the proceedings have now been finally determined. The

applicant had not identified any of these documents until

shortly prior to the hearing.

7. The Tribunal found that, in a general sense, the proceedings

were unjustified and an abuse of process because the

applicant had deliberately not attended general meetings

of the strata company and was using the Tribunal as a

mechanism to attempt to enforce his management views

on the respondent if decisions were made with which he

disagreed. The Tribunal rejected the respondent’s contentions

that the proceedings were vexatious.

8. The Tribunal concluded that it would be of little practical

benefit to make an order dismissing the matter as an

unjustified proceeding under s47 of the State Administrative

Tribunal Act 2004 (WA) as it was unlikely that any further

proceedings would relate to the same matters now

determined, although they may be of the same kind. At the

same time, the Tribunal cautioned the applicant that, if he

did not attend general meetings and participate sensibly in

the business conducted at those meetings, he ran the risk

that the Tribunal dealing with a future dispute and, having

regard to the findings in this matter, might dismiss the future

proceedings as an abuse of process.

40 April 2010

Case Notes

High Court

Negligence – duty of care – duty of licensee of licensed premises to have security to prevent shooting of patron

In Adeels Palace Pty ltd v Moubarak [2009] HCA 48; 10 November 2009 the High Court in a joint judgement concluded that the operator of licensed premises was not liable in negligence after the commencement of the Civil Liability Act 2002 (NSW) for failing to have security that might have prevented a patron being shot by another patron: French CJ, Gummow, Hayne, Heydon, Crennan JJ jointly. Consideration of the causation provisions in s5D(1) of the Civil Liability Act. Appeal allowed.

Personal injuries – damages – receipt of benefits from third parties – whether benefit reduces damages payable by wrongdoer – nature of benefit – bounty – payments raised by church congregation for injured lay preacher

In Zhenag v Cai [2009] HCA 52; 9 December 2009 Z was a volunteer and lay preacher in a small church when injured in a motor vehicle accident in 2000. The primary judge found that she was not employed by the church and amounts paid to her by the congregation did not affect her loss for the calculation of damages payable by the negligent driver. This conclusion was reversed by the NSW Court of Appeal. Her application for special leave and her appeal were upheld by the the High Court in a joint judgement (French CJ, Gummow, Crennan, Kiefel, Bell JJ). The High Court concluded the benefits were in the nature of benevolent bounty and not intended to reduce any claim for damages: The National Insurance Co of New Zealand Ltd v Espagne [1961] 105 CLR 569 per Windeyer J. Appeal allowed.

Insurance – double insurance – insured referred to as a beneficiary or insured under second insurance policy – clause in second policy asserting it was excess cover only – whether s45(1) of the Insurance Contracts Act avoided clause in whole or part

In Zurich Australian Insurance Pty Ltd v Metals & Minerals Insurance Pty Ltd [2009] HCA 50; 2 December 2009 H Pty Ltd entered into an agreement for railway works with S Pty Ltd under a contract that required S to indemnify H against all claims for personal injury. S entered a contract of insurance with the appellant (“Zurich”) to obtain this cover. H was named as an insured although not a party to the contract. H took out its own contract with the respondent (“MMI”). This contained an “other insurance” clause under which the MMI policy stated it was excess insurance over the maximum of any other insurance. Actions by two injured workers against H succeeded. Z and S were ordered to indemnify H. Z sought contribution from MMI who contended it was not liable as the claim did not exceed the cover provided by Z. Z countered by contending s45(1) of the Insurance Contracts Act 1984 (Cth) rendered the relevant clause in the MMI policy

inoperative. This was accepted by the trial judge who held s45(1) rendered the entire clause in the MMI policy inoperative. This was rejected by the Court of Appeal (WA). Z’s appeal to the High Court was dismissed: French CJ with Gummow, Crennan JJ; sim Hayne with Heydon JJ. The Court concluded s45(1) of the Act operated to render void that part of the clause as related to double insurance taken out by a party and not insurance taken out by others(s) where the party was referred to. History and purpose of s45(1) reviewed. Appeal dismissed.

Compulsory acquisition (WA) – when land reserved for one purpose can be acquired for another purpose – severance

In Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 3; 3 February 2010 the High Court generally concluded that a power under Western Australian legislation to compulsorily acquire land reserved for one purpose (a road) could not be used to acquire the land for another (a railway). The Court also concluded that acquisition of land to avoid making level crossings for a train line was not acquisition for the purpose of building the railway line or incidental. It considered whether the common law doctrine of severance permitted adjustment where part of the land was acquired for permissible reasons but not all. Appeal from the Court of Appeal of Supreme Court WA allowed. (French CJ, Gummow, Crennan, Bell JJ jointly; Hayne J sim.) Appeal allowed

Federal Court

Migration – MRT – power of the MRT to remit – whether direction required – failure to enquire

In MIC v Dhanoa [2009] FCAFC 153; 30 October 2009 a Full Court by majority considered what directions the MRT may make when remitting a matter and when the MRT unreasonably fails to make enquiries. Appeal against the decision of a federal magistrate who found jurisdictional error in MRT for remitting with directions allowed by majority: Jagot and Foster JJ; contra Moore J. The Court noted the decision of the FMC on the need to make enquiries relied on earlier decisions overturned by the High Court in MIC v SZAI [2009] HCA 39.

GST – supply of services – lease of apartments – sale of business of leasing apartments

In South Steyne Hotel Pty Ltd v C of T [2009] FCAFC 155; 20 November 2009 a Full Court considered when grant of leases in apartments in a hotel was an input taxed supply for A New Tax System (Goods and Services Tax ) Act 1999 (Cth), whether the apartments were residential premises or commercial residential premises. The Court also considered whether the supply of the apartments to the public by an exclusive agent meant the apartments were provided by an entity that “owns

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 AustIii website www.austlii.edu.au/databases.html

April 2010 41

or controlled” them. The Court further considered whether the sale of an apartment was an “ongoing concern” within s38-325(1)(c) of the Act for GST purposes.

GST – supply of services – consideration – payments between government entities

TT-Line Company Pty ltd v C of T [2009] FCAFC 178; 18 December 2009 a Full Court concluded that a sum paid from the Commonwealth to the operator of the Bass Straight ferry to Tasmania to subsidise that transport was not exempt from payment of GST as a payment from one government entity to another that was “specifically covered by an appropriation under Australian law” within ss9-15(3)(c) of A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Industrial law – penalty – course of conduct – whether separate offences or single course of conduct

In CFMEU V Williams [2009] FCAFC 171; 7 December 2009 a Full Court reviewed authority as to when a person who commits several technically identifiable offences should be penalised as engaged in the one criminal exercise. The Full Court concluded the sentencing judge had not properly taken into account that the words spoken by a union organiser at a building site contemplating industrial action of a safety officer was not appointed were properly seen as a single course of conduct. Appeal allowed and sentences varied.

Costs – whether paralegal can claim loss of earnings under an order for costs

In von Reisner v C of A (No 2) [2009] FCAFC 172 (No 2); 8 December 2009 a Full Court concluded a paralegal who succeeded in litigation was not entitled to claim for time spent or earnings lost in conducting the litigation under the order for costs as an exception to the decision in London Scottish Benefit Society v Chorley, Crawford and Chester [1884] 13 QBD 872 as to entitlement of solicitors to claim this under a costs order.

Superannuation – amendment of trust deed

In Australian Super Pty Ltd v Woodward [2009] FCAFC 168; 1 December 2009 a Full Court held the relevant version of the superannuation trust deed was the one in force at the date of the claim. The Court referred to authority as to when use of the power to amend a trust deed to purport to exclude vested rights would be avoided at equity as an abuse of the power.

Trade Practices – “market” –“competition”

In Seven Network Pty Ltd v News Corporation Ltd [2009] FCAFC 166; 2 December 2009 a Full Court in an extensive judgement reviewed authority as to what is a “market’, when activity is “competition” for ss45 and 46 of the Trade Practices Act 1974 (Cth). Appeal by the Seven Network against alleged anti-competitive conduct concerning the acquisition of pay television rights for the AFL competition in 2002–2006 dismissed for reasons different form those of the trial judge (Sackville J). Appeal dismissed.

Patents – appeal – appeal from primary decision in review of opposition proceedings – basis on which leave to appeal granted

In Memcor Australia Pty Ltd v G E Betzearborn Canada Company [2009] FCAFC 163; 20 November 2009 a Full Court reviewed

authority as to the different basis on which leave to appeal is given under s158(2) of the Patents Act against a decision of a primary judge refusing relief in pre-grant opposition proceedings depending on whether the application is made by the applicant for the patent or an opponent.

Migration – when application for a visa “finally determined” – application for judicial review dismissed on discretionary grounds

SZUKO v MIC [2009] FCAFC 167; 3 December 2009 an application in 2000 for a protection visa was refused by the RRT in 2000 in the absence of the applicant. The FMC held that while this decision involved jurisdictional error, relief would be refused on discretionary grounds (delay). A Full Court held the application for the visa had been “finally determined” for s198(6)(c)(i) of the Migration Act 1958 (Cth) and the Minister was authorised to remove the applicant.

Constitutional law – inconsistent legislation – state and Commonwealth long service leave legislation

In Jemena Asset Management Pty Ltd v Coinvest Ltd [2009] FCAFC 176; 18 December 2009 a Full Court concluded the provisions of the Construction Industry Long Service Leave Act 1997 (Vic) that provided for a portable long service scheme were not inconsistent with the long service provisions of the the Workplace Relations Act 1966 (Cth).

Practice – slip rule – when orders reflect reasons of the court

In Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179; 22 December 2009 a Full Court considered when an application to amend orders under the slip rule in FCR Ord 35 r 7 would be refused because the order said to be in error reflected the reasons of the court.

Practice – leave to reopen application to inspect subpoenaed documents – leave to appeal against orders

In ASIC v P Dawson Nominees Pty ltd [2009] FCAFC 183; 22 December 2009 a Full Court considered whether to suppress the identity of informers in the public interest where the identity of one informer was known. It also considered whether it was possible to separate innocuous from nocuous parts of the examination of persons under the ASIC Act.

Industrial law – workplace agreement – income protection for employees

In Australian Maritime Officers Union v Sydney Ferries Corp [2009] FCAFC 145; 15 October 2009 a Full Court allowed an appeal on finding that a clause in a workplace agreement that required the employer insure the employees for loss of income was a matter that did pertain to the employment relationship as defined by regulations under s356(1)(f) of the Workplace Relations Act 1966 (Cth).

Income tax – foreign entities

In C of T v Tasman Group Services Pty Ltd [2009] FCAFC 148; 22 October 2009 a Full Court considered whether a Japanese corporation had the “necessary connection to Australia” for the purposes of the GST legislation.

42 April 2010

Family Court

Child support – SSAT appeal – power to vary departure

order

Child support may be administratively reviewed subsequent to

a court’s departure order unless that order fixed the annual

rate of child support payable or the CSA or SSAT deviate from

the child support income amount or other component set by

the court: M and M [2009] FCWAM 54; 19 November 2009

(Monaghan M).

Spousal maintenance

In F and F [2009] FCWA 131 at paras 82-121; 9 October

2009 Thackray CJ awarded a part-time working wife property

settlement and maintenance of $275 per week for three years.

Children – overseas relocation

A mother’s relocation with a child to the UK was allowed in U

and H [2009] FCWA 128; 2 October 2009 (Crisford J).

De facto relationship

In A and G [2009] FCWA 110; 25 August 2009 at paras 1-57

Thackray CJ found a de facto relationship to have ended

when one of the parties left the property and not earlier as a

separation under the one roof.

Children – less adversarial trials

For a review of LAT principles, see Leib (No. 2) [2009] FamCA

1135; 17 November 2009 at paras 19-27.

Evidence – second expert in Family Court

Where an agreed single expert had filed accountancy evidence

in a complex case, Rose J allowed a party to file evidence from

another accountant under FLR 15.49(2)(a): Pitt (No. 4) [2009]

FamCA 1173; 20 November 2009. See also Hackshaw [2009]

FamCA 1327; 17 December 2009 at paras 6-8.

Children – parent with a disability – leave to apply

In Patricks & Simpkin (No.2) [2009] FamCA 1205; 8 December

2009 Murphy J granted leave to a father, the subject of a

previous case guardianship order due to chronic schizophrenia,

to apply for parenting orders given new psychiatric evidence as

Case Notes

to the mildness of the father’s symptoms, his ability to continue

with TAFE studies and in a relationship with his new partner.

Property – unlodged tax returns – Court’s duty to protect

revenue

In Kruger & Zaio [2009] FamCA 1218; 3 December 2009 a

property trial was adjourned due to the parties’ failure to lodge

tax returns; discrepancies between documents produced and

sworn; and the prospect of “a significant tax liability”. Referring

to the court’s duty to protect the revenue, Mushin J referred the

matter to the ATO for any action against the parties for non-

compliance with tax law.

Financial agreement unenforceable – ambiguous wording

In Kostres [2009] FamCAFC 222; 15 December 2009 at paras

132-133 the Full Court upheld an appeal where both parties

argued over the FMC’s interpretation as to which business and

trust property was covered by clauses as to future “assets …

acquired … from joint funds” and “from their own moneys”,

holding those clauses to be ineffective and unenforceable due

to ambiguity.

Children – interim hearings

In Zabini [2010] FamCAFC 10; 2 February 2010 at paras 44-54

a father won his appeal from an interim order by the FMC

limiting his time with children to three nights per fortnight.

Warnick J said that “the magistrate, in prefer[ring] the proposal

that sees the children continuing in as stable an environment

as possible … seems to have applied … ‘the Cilento Principle’.

That ‘principle’ is no longer applicable.” Warnick J held that the

“legislative pathway” to be followed at interim hearings was set

out in Goode (2006) FLC 93-286 (FC).

Jurisdiction – conflict of laws

In Ashforth [2010] FamCA 37; 29 January 2010 at paras 23-40

a couple had cohabited and been married in England for 17

months before separating in Australia where their child was

born, the UK-resident husband applying here for parenting and

property orders and the wife [then an Australian resident] later

issuing proceedings in England for maintenance and property

orders. In applying the High Court’s test in Voth v Manildra Flour

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

April 2010 43

Mills Pty Ltd [1990] 171 CLR 538 at 564-565, Rose J held that

the Family Court of Australia was not “a clearly inappropriate

forum” and that the wife be restrained from continuing her

proceedings.

Property – interim settlement

In Sudono [2010] FamCA 54; 20 January 2010 at para 27

Rose J granted an unemployed wife for whom independent

accommodation was unaffordable an order that as an interim

property settlement she be paid $500,000 to buy real estate,

applying the Full Court’s ruling in Strahan [2009] FamCAFC 166.

Parenting order – variation – dispute over school choice

In Hamill [2009] FamCA 1324; 25 November 2009 at para 19

a father sought to vary a prior order for equal shared parental

responsibility because the parties could not agree on which

school the children should attend. Instead of resolving that issue,

Faulks DCJ granted sole responsibility to the mother to decide.

Children – child abuse allegation

In Wade & Sutcliffe [2009] FMCAfam 1385; 27 November 2009

at paras 55-67, after reviewing cases on the meaning of “an

unacceptable risk” of child abuse and applying N and S and the

Separate Representative [1996] FLC 92-655 (Fogarty J) at pp 82,

711-82, 714, Altobelli FM found that the mother’s allegation

of child abuse by the father was made in the context of her

being upset at his not informing her about their (four-year-old)

child’s (injury-free) fall and her misinterpretation of ambiguous

statements by the child (mostly in response to leading questions

by the mother), His Honour saying that “ambiguous events

often have an innocent explanation, but ambiguity fuelled by

anxiety leads to sinister hypotheses”.

Child support – SSAT appeal – “Financial resources”

In Ladd & Child Support Registrar (SSAT Appeal) [2010]

FMCAfam 23; 18 January 2010 at paras 28-36 Sexton FM set

aside the SSAT’s reassessment of child support, held to have

wrongly calculated the payer’s “financial resources” as being

his taxable income + his drawings from his private company’s

loan account + depreciation expense not used to buy new

equipment, without analysing the whole financial situation such

as the company’s other expenses (which had produced two

consecutive annual net losses) and the personal benefits that

actually flowed to the payer from the company.

The Society wishes to congratulate Hickslaw Pty

Ltd (trading as Lawfield Legal Practice) which

was recently presented with an Approved Quality

Practice certificate. They are the 195th legal

practice to have registered for certification to the

Quality Practice Standard (QPS).

The QPS is a successful Society initiative aimed at assisting legal

practices to improve their relationships with clients and ensure

that a consistently high level of service is provided. The QPS also

serves to enhance the status of the profession and provides legal

practices with an opportunity to qualify for a 5% discount for

the first year on professional indemnity insurance premiums and

2.5% discount thereafter.

For further information on the QPS, contact Francesca

Giglia, QPS Coordinator (08) 9324 8606 or email

fgiglia@lawsocietywa.asn.au. Alternatively, you can log on to

www.lawsocietywa.asn.au/qps.htm

Lawfield Gains QPS Accreditation

Stephen Hicks and Mandi Watson from Lawfield with Society President Hylton Quail and QPS Coordinator Francesca Giglia

44 April 2010

Sentencing review for Young Criminals

Young criminals aged 18 to 24 could be given special treatment by the courts under a proposal flagged in a sweeping review of Western Australia’s sentencing laws. law Society of Western Australia president Hylton Quail said yesterday it was not necessary to set up a separate sentencing regime for young adult offenders because existing principles took into account youth as a mitigating factor. However, Mr Quail said the Society did support plans to introduce weekend or periodic detention and increased community release orders.

The West Australian, 12/02/2010

Call for Short, Sharp Jail Terms

Lawyers are pushing to reinstate the courts’ power to send offenders to jail for short, sharp periods by introducing partially suspended jail terms as part of a review of Western Australia’s sentencing laws. law Society of Western Australia president Hylton Quail said the extra sentencing option would continue to act as a deterrent to offenders, but would overcome concerns that some cases had resulted in harsher sentences since the mandatory minimum jail term was increased from three to six months in 2003. “While the intended aim of introducing minimum terms was to reduce the rate of imprisonment, the Society is concerned that this is not what has happened in reality,” Mr Quail said. “We are particularly concerned at the effect of six-month terms on Aboriginal offenders. Where previously offenders would have been ‘dried out’ and returned to their communities after serving a couple of weeks in prison, many now face sentences many times lengthier than they would have previously received.”

The West Australian, 15/02/2010

legal black Hole for Gm Cases

A black hole awaits any legal action over genetically modified canola brought before the courts in Australia. State and Commonwealth legislation does not provide for remedies for affected farmers and land owners. Hylton Quail from the law Society of Western Australia says common law actions in trespass, nuisance and negligence are available but will be difficult to prove for alleged GM crop damage. He discussed Canadian precedents and the High Court decision in Perre v Apand. “Damages is in fact a really contentious issue; you might suffer damages in a case where you can show that your crop is clearly unsaleable and that’s an economic loss and you can point to that. The other areas of potential damages are things that are not even recognised by the law yet and I’m talking there about things like damage by loss of species or loss of species diversity.”

ABC Radio, Country Hour, 11/02/2010

Off the PressLaw Society of Western Australia in the media

butcher Trial Judge Gets Supreme Court post

Judge Robert Mazza – who has been a District Court judge for six years – will become a Supreme Court justice on 8 March when he replaces the recently retired Justice Geoffrey Miller. law Society of Western Australia president Hylton Quail was full of praise for Judge Mazza and said he was held in the highest regard throughout the WA legal fraternity. “Judge Mazza has served the community with distinction while on the District Court and his elevation to the Supreme Court is welcomed,” he said. “He was a very experienced criminal lawyer when appointed to the District Court (and) he has since shown that his expertise and judgement extends to all areas of the law.” John Staude has been appointed as Judge Mazza’s replacement. Mr Staude was a Law Society council member and Mr Quail said his presence would be sorely missed. “Mr Staude is a man who is not only respected for his legal knowledge and forensic skills, but well liked in the profession for his personable approach to the law and those he works with,” Mr Quail said. He will begin his role as a District Court judge next month.

WA Today, 16/02/2010

Crime rate Falls as Jail population increases

Reported crimes in Western Australia fell by almost 18 000 as the prison population soared last year, prompting the state government to claim that keeping criminals off the street is reducing reoffending. The Opposition accused the government of manipulating the statistics in a desperate attempt to counter growing opposition to its tough law and order policies. The law Society of Western Australia also questioned the value of the statistics but said any decrease in reported crimes would mean the government could not justify plans for an even tougher approach to law and order.

The West Australian, 17/02/2010

Assault by officer Stokes Search row

Proposed laws, which would give police unprecedented stop and search powers, should be abandoned in the wake of an officer being caught assaulting a man outside a city hotel, the Opposition and lawyers said yesterday. law Society of Western Australia president Hylton Quail said he was particularly concerned by reports that Const. McLeod, whose career hangs in the balance pending an internal investigation, believed his actions were justified under a “zero tolerance” approach to policing in Northbridge. “It illustrates yet again why police officers ought not to be given increased stop and search powers,” Mr Quail said.

The West Australian, 19/02/2010

members can view 2010 media articles featuring comment by the Society at www.lawsocietywa.asn.au/inthemedia.htm

April 2010 45

From the Vine

As football codes now dominate the airwaves and the hit-and-giggle of Twenty-20 cricket packs grounds on the other side of the world, members could be forgiven if they find themselves caught between winter and summer themes.

Perhaps the bottle of red on the kitchen bench and the half-full bottle of white in the fridge door stand as testament to that sporting dilemma. Such a dichotomy can also be found in the wine growing regions of New South Wales.

Unlike here in Western Australia, where our wines primarily come from either the Swan Valley or Margaret River regions (apologies to the Great Southern), in NSW the regions are many and are spread far and wide.

From the Riverina district in the south-west, to the Hunter Valley north of Sydney and down to Tumbarumba on the Victorian border, the wine growing regions in the self-titled Premier Wine State are many and varied.

In my view, the Hunter Valley is often forgotten amongst the chatter about trendy Australian wine growing areas like Coonawarra, Barossa and the Mornington peninsula.

Whilst the Hunter may be a difficult place to make wine, it is a sensational place to sell the stuff. The region has been a wine tourism hub for over 30 years – decades in fact before ‘wine tourism’ became a buzz phrase. The proximity of the Hunter to the Olympic City of Sydney has, in the last few years, turned that buzz into a frenzy.

Wine tourism, though, was the last thing on the minds of pioneers like James Busby and George Wyndham when they planted the region’s first vines in the 1830s.

Tourism would have also been a foreign concept to Maurice O’Shea, the legendary winemaker who worked at the then remote Mount Pleasant vineyard in the middle of the last century. In fact, it was probably only a flicker in the mind of the ebullient Max Lake when he established Lake’s Folly in the 1960s, becoming the model and inspiration for a whole emerging generation of ‘boutique’ winemakers across the country.

Which I guess is where the terroir bit comes in (terroir is a French term encompassing all the physical influences on a vineyard – the soil, the aspect, the wind and the way the wines are grown). What attracted all these people – and continues to fascinate winemakers and wine drinkers alike – is the fact that from carefully selected vineyard sites, in the good (less wet) years and with some careful handling in the winery, Hunter Valley grapes

can produce some stunning wines. At their best, Hunter semillon and shiraz can be amongst this country’s most distinctive wines, reflecting a strong and immediately recognisable sense of place.

So it’s not all wine tourism hype in the Hunter. There is a serious winemaking renaissance going on because, for a while there in the early 1990s, the Hunter Valley was in danger of losing the gloss from its established reputation.

Upstart cool-climate wine regions such as the Adelaide Hills and the Yarra Valley had captured public attention. Trendy grape varieties such as pinot noir and sauvignon blanc, neither of which make great wine in the Hunter’s warm, humid climate, were all the rage in the restaurants of Sydney and Melbourne and the region’s earthy shiraz and unique semillon were, with some exceptions, failing to capture much critical acclaim.

Now that regionalism is hip again, all that has changed. People have acknowledged that the Hunter is the godfather of regionalism in this country and are paying their respects.

The old, traditional companies like Tyrrell’s and McWilliam’s are finally receiving credit for keeping their strongest assets, namely some wonderful old vineyards and wine styles that are unique in the world of wine. That other big old company, Lindemans, has been given a new lease of life by its owners, Southcorp, with its wine quality improving dramatically over the last couple of years.

A growing band of small producers is also trying to establish a fresh tradition. In many cases these new producers are winemakers who have left large companies and set out on their own: David Lowe (ex-Rothbury winemaker), making some lovely wines under the Lowe family label; Neil McGuigan (ex-Wyndham Estate and McGuigan Brothers), making brilliantly traditional wine at Briar Ridge; and Andrew Margan (ex-Tyrrell’s), causing a stir with his Margan Family range of thoroughly Hunter-style wines.

There are brand new names to look out for too. Small, low-profile, high-quality producers like Glenguin in the Broke-Fordwich sub-region to the east of the Hunter and more glamorous, high-profile developments like Tower Estate right on the tourist strip in the heart of the Valley that combines the entrepreneurial talents of Len Evans and Brian McGuigan with the skills of up-and-coming winemaker Dan Dineen.

So at this time of year, as members now switch between channels, maybe even codes and, I’m sure, wines, I trust their choice is closer in form to that of the Wildcats than the Force when it comes to performance and satisfaction.

Simon Watters

Albert Wolff Chambers

Review

46 April 2010

Film ReviewThe Informant!

Director Steven Soderbergh Cast Matt Damon, Melanie Lynskey, Patton Oswalt, Joel McHale and Scott Bakula DVD release 7 April 2010 Rated M Reviewer David Edwards

Much has been written about the dichotomy in Steven Soderbergh’s work between his (usually) serious independent films like Solaris and his (usually) crowd-pleasing studio films, exemplified by Ocean’s Eleven and its sequels. The promotional material for his latest film The Informant!, now available on DVD, rather gives the impression it falls into the latter category; but I think that might be misplaced.

While The Informant! certainly bears some of the hallmarks of broad entertainment (it’s a comedy, for starters), the story by Scott Z Burns from Kurt Eichenwald’s book The Informant: A True Story takes things rather deeper than the jaunty soundtrack and 70s-style titles would suggest.

Matt Damon plays the titular character, Mark Whitacre (pronounced Whittaker), a rising executive at giant agribusiness conglomerate Archer Daniels Midland (ADM) in the early 1990s. The whole thing starts out with a problem producing a product called lysine. A virus keeps holding up production and a mole within the company is suspected. Whitacre says he’s been contacted by a Japanese competitor who knows who the mole is and is willing to divulge the information for the sum of $10 million.

But when ADM brings in the FBI in the form of agents Shepard (Scott Bakula) and Herndon (Joel McHale) to help flush out the mole, Whitacre seeks to go further than simply finding the saboteur. He has, he tells them, evidence that ADM is colluding with its competitors to fix global prices for its products. Ingratiating himself into the agents’ confidence, Whitacre feeds them some promising leads; but they need more. He has to tape the crooked conversations.

Although Eichenwald’s book played the Whitacre story straight down the line, Soderbergh has decided to liven things up. The film is coated in the veneer of comedy and many scenes are indeed very funny. This was actually probably an inspired decision – after all, the whistle-blower theme has already been given bravura treatment in Michael Mann’s The Insider and by Soderbergh himself in Erin Brockovich. However, as the film unspools and Whitacre’s life unravels, it becomes apparent that the comedy masks a deeper and richer tale about human fallibility and weakness.

Indeed, the closest example I can think of to this film isn’t The Insider or even say Tony Gilroy’s industrial-espionage comedy Duplicity; but rather the Coen brothers’ seminal Fargo. Damon’s Whitacre is essentially William H Macy’s Jerry Lundegaard in a

corporate office and a bad toupee. The arc of both films charts the central characters’ increasing desperation and their ultimate demise, which in both cases is brought about by their own weaknesses.

While Whitacre is a distinctly unlikeable character, you may end up feeling sorry for the guy. There’s nothing wrong with that, although I’m sure many viewers will feel that he gets exactly what he deserves by the time the credits roll. I must say I felt rather more for his long-suffering wife, played by Melanie Lynskey; and for the FBI agents whose possible ineptitude was at least coloured by their good intentions.

Matt Damon, like Russell Crowe before him, packs on the pounds to play Whitacre; and he’s excellent in the role, perhaps worryingly so. That he should take on a role as a corporate schlep and be so convincing about it is a brave choice for an actor whose best-known roles are in action movies (albeit thinking people’s action movies).

Damon literally dominates the picture, appearing in just about every scene; which makes it difficult for the supporting cast to make all that much of an impression. One who does stand out is former TV star Scott Bakula (anyone remember Quantum Leap?) as the world-weary FBI agent Shepard. By the way, Soderbergh has made an odd choice by pairing Bakula with Joel McHale, host of TV gossip show The Soup. Still, McHale is spreading his wings somewhat, so maybe it’s not so odd after all. Melanie Lynskey, who seems to be cropping up in more and more roles these days, also does a sterling job as Whitacre’s wife, Ginger.

The Informant! is one of Soderbergh’s craftiest films to date. Not everything here is as it seems, either in the plot or in the deeper themes running through the tale. That the director and his team have so skilfully subverted the exemplars of his genre to create a tragedy of almost Shakespearean proportions is no small achievement.

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

April 2010 47

Professional Announcements

Classifieds

CHANGE OF PRACTICECraig Sutherland has sold his legal practice, Sutherland Legal, to Jim Swann of Albany Legal. Craig Sutherland is no longer associated with the legal practice formerly known as Sutherland Legal. Effective from 29 January 2010. Archived files associated with the former legal practice are now available by contacting Albany Legal. Please contact 9847 4211 or email to recep@albanylegal.com.au

CAREER MOVERSblake Dawson

Carla Vinciullo has moved to Blake Dawson’s Sydney office.

marks & Sands

Marcus Easthope has been appointed as associate.

maxim litigation Consultants

Kai Francis commenced employment as a solicitor.

murfett legal

Natalie Dimmock has commenced employment.

Submit Your professional AnnouncementIf you wish to post a professional announcement about a recent career move, change of details or a new practice, email communicationsofficer@lawsocietywa.asn.au with all necessary information for inclusion in the next available Brief. Plus, you have the option to include a headshot for publication. All photographs should be high resolution, print quality and only feature the head and shoulders of the individual.

Note: Professional announcements will only be accepted through the above process. Notices sent to the Society separately to update membership database details will NOT automatically be included on this page.

o’Sullivan Davies lawyer

Alexandra Neylon commenced employment as a restricted practitioner.

Sir Clifford Grant Chambers

Jessie Yeow has commenced practice as a barrister.

Tottle partners

Jessie Earl commenced employment as a graduate trainee.

T: 1 800 676 948E: experts@eos.unsw.edu.auW: www.expertopinion.com.au

Expert Opinion ServicesProfessionalvExperiencedvReliable

5,000 experts in over 2,000 areasFor 50 years, Australia’s leading provider of

independent expert opinion and advice.

Senior Commercial Litigation Lawyer is interested in the purchase, consultancy arrangement or joint venture interest of commercial or possibly other litigation files from small or medium-sized practices.

For further contact: Litigation Lawyer, PO Box Z5342, St George’s Terrace, Perth WA 6831 or alternatively email to: sswa@iinet.net.au

SELLING YOUR PRACTICE?

Inner city practice for sale

Expressions of interest are invited for the practice of a single practitioner practice which has been current and operational since 1968 in the inner city. The practice is ideal for a single practitioner as it has very low overheads.

Contact: The advertiser, GPO Box R1245 Perth WA 6844.

MISSING WILL

Any person or firm having

knowledge of any Will made by

GRAEME STANLEY BRADURY born

1/9/1963 died 5/3/2009 late of

20 Cheviot Street, Dianella, please

contact Paul D’Angelo of D’Angelo

Legal, PO Box 1096 West Leederville

6091. Telephone: 9381 1147

Specialist insurance and litigation law firm

requires insurance lawyers 2+ years.

Apply by email to

Piet Jarman at Jarman Mckenna;

pjarman@jmck.com.au

For all advertising bookings contact

SIMON HENRIQUESon (08) 9382 3911 or

simonh@cambridgemedia.com.au

48 April 2010

What’s On22 April

Arbitration DayParis, France

Discussion on what arbitration signifies for sport disputes

Tel +33 1 4953 3042 Email events@iccwbo.org

17–20 May

piDA trainingParis, France

Learn what is essential in International business today as well as firsthand knowledge of ICC rules and practice of International Commercial Arbitration

Tel +33 1 4953 3042 Email events@iccwbo.org

23–30 May

pan Asia pacific legal ConferencePort Douglas, QLD

Tel (07) 3254 3331 Email rosana@educationcpe.com

26-28 May

2010 ClC State ConferencePerth, WA

For those involved in the community legal sector in WA.

Email CLCA_StateConference@clc.net.au

4 June

iCC Arbitration TodayParis, France

Discussion on arbitrator independence and the need for autonomy.

Tel +33 1 4953 2891 Email events@iccwbo.org

27 June – 4 July

uSA pacific legal ConferenceNew York, USA

Learn the legal traditions of the United States.

Tel (07) 3254 3331

Visit www.lawcouncil.asn.au/conferences for details on other upcoming events and conferences.

Associate Firm Name

Leanne Elizabeth Jane Milligan St John of God Hospital

Myra Quartermaine Allion Legal

Justine Whittle -

ordinary Firm Name

Karen Navaratnam Alcoa World Alumina Australia

Karen Campbell Butlers

Revathi Sandra Mohan Hunter Meredith & Associates

Allan Gebarski WA Legal Pty Ltd

Julia Gorham Clayton Utz

Troy Joshua Greig Clayton Utz

David Matthew George Cuomo Paterson & Dowding

Fiona Cohen Paynes

Scott Thillagaratnam Pillay Arvind

Kristine Mary Clarke Wrays Lawyers

Felicity Lemon Bradley Bayly Legal

Sarah Keighery State Solicitor’s Office

Elizabeth Dawson HLS Legal

Michael Scott Barrett-Lennard Barrett-Lennard

Karen Ward Legal Aid Western Australia

Jeraldine Wan Zhi Lim WA Legal

Michelle Howley Slater & Gordon

Kellie Cook Kott Gunning

Articled Clerks Firm Name

Brendan Franich Lavan Legal

Jasmine Rhodes Lavan Legal

Jonathan Bevis Lavan Legal

Maryse Jacqueline Aranda South West Community Legal Centre

Matthew Clarke Lavan Legal

Olivier Carrick Lavan Legal

Philippa Honey Lavan Legal

Rebecca Bradshaw Lavan Legal

Briony Sands Allion Legal

Alastair Lagrange Mckenzie Moncrieff

Tara Tissott Freehills

Jessica Macgowan Case For Refugees

Amanda Thackray O’Sullivan Davies

Justin Daly Talbot & Oliver

Students university

Andrew Podgorny Murdoch University

Janelle Malacari University of Notre Dame

Kivraj Singh Murdoch University

Richard Swindale University of Western Australia

Daniel Brian Harris Murdoch University

Emma Mcgee University of Notre Dame

The law Society of Western Australia welcomes the following new members

AreA 1 - LegAL SkiLLS or PrActice

AreA 2 – ethicS or ProfeSSionAL reSPonSibiLity AreA 3 - SubStAntive LAw

UPCOMING E VENTS - APRIL to JUNE 2010

KEY COMPETENCY AREAS

C P D P L A N N E R

register online at www.lawsocietywa.asn.aucPD enquiries: (08) 9322 7877 email: cpd@lawsocietywa.asn.au

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20 April5.15 - 6.45pm

A VIEW FROM THE BENCH ( YLC BASICS SERIES)what are the `Do’s and Don’ts’ of appearing before the Magistrate’s and District courts? this seminar for junior practitioners focuses on the tips and tricks you need to know,including information on common errors made by junior lawyers and what are theexpected procedures.

$155

$295

$80

$105

1.5 Points

VENUE the wA cLub, 101 St georgeS tce, Perth

27 April1.00 - 2.00pm

MODERN AWARD - FAIR WORK ACT: UNDERSTANDING THE MODERN AWARD AND HOW IT AFFECTS YOUR FIRM Modern awards commenced from 1 January 2010 and cover most businesses in the national workplace relations system. Developed with employers, senior managers and hr consultants in mind, this seminar will outline specifically the effect of the modern award system on the legal profession.

$105

$195

$50

$75

1.0 Point

VENUE LAw Socie t y of weStern AuStrALiA: LeveL 4, 89 St georgeS tce, Perth

6 May5.15 – 6.15pm

WHAT’S HAPPENING WITH HUMAN RIGHTS? ( YLC BASICS SERIES)this seminar will explore the state of human rights protection in western Australia and whether a national human rights Act or other measures recommended in the report would make a difference. receive points of view from the State government, a senior barrister and a young lawyer as they comment on the state of human rights protection in western Australia and the new legislation.

$105

$195

$50

$75

1.0 Point

VENUE LAw Socie t y of weStern AuStrALiA: LeveL 4, 89 St georgeS tce, Perth

7 May 7.30 - 9.00am

(nb: breakfast served from

7.30 to 8.00 amSeminar from

8.00 to 9.00 am)

THE ROLE OF THE LAWYER IN INHERITANCE ACT MEDIATIONS (BREAKFAST )Disputed estates are a growing area of work for estate lawyers. Most claims made under the Inheritance (Family and Dependants Provision) Act will be directed to mediation in the Supreme court. this breakfast seminar will provide attendees with the tools to act successfully for their clients in court-based mediations arising out of the inheritance Act.

$155

$295

$50

$75

1.0 Point

VENUE PArMeLiA hiLton: 14 MiLL St, Perth

8, 15 & 22 May 9.00am - 12.00pm

29 May 9.00am to 1.00pm

ADVOCACY WORKSHOP SERIES 2010 Learn the core areas of advocacy in this theory-based course. taught using the book Advocacy: An Introduction by Jeremy curthoys and Dr. christopher kendall, this course is taught by a distinguished cast of barristers and members of the judiciary.

the 2010 Advocacy Series will be presented over four Saturdays in May and is specifically designed for junior practitioners.

brought to you by the Society’s young Lawyers committee (yLc).

$695

$1430

N/A

N/A

VENUE LAw Socie t y of weStern AuStrALiA: LeveL 4, 89 St georgeS tce, Perth

2 June 4.30 - 6.00pm

COSTS IN CRIMINAL CASESunderstand what are the relevant costs scales which apply in criminal courts for both summary and indictable criminal charges and the obligations of legal practitioners under the Legal Profession Act 2008.

$155

$295

$50

$75

1.0 Point

VENUE LAw Socie t y of weStern AuStrALiA: LeveL 4, 89 St georgeS tce, Perth

3 June5.15 - 6.50pm

WILLS AND PROBATE ( YLC BASICS SERIES) A practical seminar covering aspects of wills and probate, which will get you started on drafting wills. the seminar will focus on providing information about the probate practice in western Australia which is not found in the text books.

$155

$195

$80

$105

1.5 Points

VENUE LAw Socie t y of weStern AuStrALiA: LeveL 4, 89 St georgeS tce, Perth

PLeASe note thAt the cPD event ADvertiSeD tiMeS Are the StArting tiMeS. PLeASe enSure you Arrive Prior to thiS for regiStrAtion.

3.5 Points

1.5 Points

2.0 Points

CPDC O N T I N U I N G D E V E L O P M E N TP R O F E S S I O N A L

M&A LawyersSenior AssociateInternational firm with opportunities for secondments. Work on high quality transactions for top blue chip clients across Australia and Asia. 5-10 years PAE. Ref. No. OTHR/6B/11403.

SolicitorInternationally acclaimed boutique Corporate/Resources law firm. Candidates should have Cantonese and Mandarin language skills. 1-3 years PAE. Ref. No. OTHR/6B/11270.

Senior AssociateNational firm with high profile Corporate Partners. Relaxed and mature environment. Impressive client base with focus on Resources sector. 5+ PAE. Ref. No. OTHR/6B/11383.

Corporate/Commercial PartnerHighly Regarded Boutique Commercial FirmTop Market SalaryWorking on a variety of transactions from a corporate/commercial perspective, this

newly created position will be a key role within the firm. As part of a succession

planning strategy, you will assist the Senior Partner of the firm in growing the

department, developing client relations and managing a team. You will gain an

interesting mix of work matters, a high profile client base across a range of industries,

and a pleasant and stress-free environment with low staff turnover and a collegiate

partnership. Ref. No. OTHR/BX/12914.

Property LawyersSenior AssociateLeading independent Perth firm. Work for some of WA’s most significant Property developers,

planners and financiers. Varied range of transactions. 4+ PAE. Ref. No. OTHR/6B/11148.

Senior SolicitorTop national firm. Stimulating work environment dealing with a broad range of property,

development and infrastructure transactions. 4-6 years PAE. Ref. No. OTHR/6B/09454.

Senior AssociateStrong mid-tier Perth firm. Well established public and private sector client base, varied

commercial and property matters. Great team environment. 4+ PAE. Ref. No. OTHR/BX/25988.

Planning& EnvironmentSenior AssociateInternational firm. Senior role in leading practice. Assist Planning Partner with growing the firm’s

Environmental profile. Partnership prospects. 6+ PAE. Ref. No. OTHR/BX/24174.

SolicitorTop-tier national firm with unrivalled client base. Gain fabulous experience working across three

Partners. Range of Environmental work. 2-4 years PAE. Ref. No. OTHR/6B/11076.

Associate/Senior AssociateTop-tier firm with established planning and environment practice. Looking for an exceptional mid

to senior level lawyer. Diverse role across both disciplines. 4+ PAE. Ref. No. OTHR/BX/25992.

Workplace RelationsSenior AssociateNew role in top-tier firm. Gain extensive client contact with international energy and resources companies. Small team with genuine Partnership prospects. 6+ PAE. Ref. No. OTHR/6B/08862.

Senior Associate Further your career in this top-tier national firm. Work alongside high profile partners on a varied WR/ER caseload. Busy practice. Competitive salary on offer. 4+ PAE. Ref. No. OTHR/6B/11173.

Senior SolicitorLarge independent firm. Provide strategic employment advice to a variety of industry sectors. Friendly, collegiate environment and progressive culture. 4-6 years PAE.

Ref. No. OTHR/6B/10892.

Litgation LawyersSenior AssociateNational firm. Work with highly regarded Head of Litigation Partner. Matters include corporate

litigation and insolvency work for large corporations. 5+ PAE. Ref. No. OTHR/6B/11172.

Senior AssociateHands-on role in leading boutique firm with strong litigation practice. High-end Commercial

Litigation, Trade Practices and Negligence work. 5+ PAE. Ref. No. OTHR/BX/26863.

SolicitorInternational firm with growing Perth office. New role to work with leading partners on a mixed

caseload of commercial litigation matters. 2-4 years PAE. Ref. No. OTHR/BX/26809.

ROle OF THe MONTH

These are just a few examples of the many current opportunities Hudson legal can assist you with.Hudson Legal has had a dedicated team based in the heart of Perth for over 12 years. We have helped numerous lawyers from 1 year PAE to Partner level to find their ideal roles. We work with all of the major law firms and top local boutique firms as well as international, national and local companies.

Our specialist legal consultants would be pleased to meet with you to discuss your career opportunities and develop an individual strategy that suits you.

To apply for any of our roles or for a general discussion about the legal market, please contact Coralyn Kurecki on (08) 9323 0215 or coralyn.kurecki@hudson.com

We would also like to wish Janina McMahon all the best with her relocation to Hudson legal’s Sydney office. To discuss Sydney options, please email janina.mcmahon@hudson.com

www.jobs.hudson.com Legal