THE JOURNAL OF THE NSW BAR ASSOCIATION | WINTER 2019 | WINTER ASSOCIATION BAR NSW THE OF JOURNAL THE barTHE JOURNAL OFnews THE NSW BAR ASSOCIATION | WINTER 2019 THE JOURNAL OF NSW BAR ASSOCIATION | WINTER 201 9 bar news

A special edition on PRACTICE & PROCEDURE

PLUS The future of the independent Bar in Australia

Assessing early appropriate guilty pleas one year on CONTENTS

THE JOURNAL OF THE NSW BAR ASSOCIATION | WINTER 2019 02 EDITOR’S NOTE barnews 04 PRESIDENT’S COLUMN 06 OPINION The psychological impact of judicial work The incredible shrinking Bar EDITORIAL COMMITTEE ‘Us Too?’ – findings on bullying and harassment in the legal profession Ingmar Taylor SC (Chair) Gail Furness SC 12 RECENT DEVELOPMENTS Anthony Cheshire SC Insolvency of corporate trustees Farid Assaf SC THE JOURNAL OF NSW BAR ASSOCIATION | WINTER 2019 Dominic Villa SC Liability of air carriers in negligence for psychiatric harm Penny Thew Determining a place of burial Daniel Klineberg bar news Catherine Gleeson Protesting and the implied freedom of communication Lyndelle Barnett Moubarak by his tutor Coorey v Holt: The Court of Appeal permanently Victoria Brigden stays proceedings seeking damages for alleged historical child abuse Juliet Curtin Kevin Tang A fresh federal fight about political donations Belinda Baker The Bowraville Murders – Statutory exception to the double jeopardy principle Stephen Ryan Joe Edwards 25 PRACTICE & PROCEDURE Bar Association staff member: The Australian Bar – Change and Future Relevance Michelle Nisbet The role of the commercial bar in the mid–21st century ISSN 0817-0002 The future of the independent Bar in Australia Views expressed by contributors Tax – Where Laws Intersect to Bar News are not necessarily those of the New South Wales One year of early appropriate guilty pleas? Bar Association. A Clerk's View Contributions are welcome and Workers Compensation Commission – Past Presidents honoured should be addressed to the editor: Ingmar Taylor SC Amending a ‘surprising and unwelcome result’ Greenway Chambers Proceedings in the expedition list L10 99 Elizabeth Street Sydney 2000 Managing civil litigation – Federal Court style DX 165 Sydney The Role of Commissioners in the NSW Land and Environment Court Contributions may be subject to Obtaining leave to appear – NSW Civil and Administrative Tribunal editing prior to publication, at the discretion of the editor. Keeping Your Ex in the Dark – Applications without notice in Family Law Cover: Fairfax Media Work Health and Safety Dealing with cost and delay Child abuse – Liability of organisations 80 INTERVIEW Bar News is published under a Advocate for Change – Andrew Pickles SC Creative Commons ‘free advertising’ license. You are free to share, copy Diversity – Interview with the Hon Justice Kelly Rees and redistribute the material in any 82 NEWS medium or format. You must give appropriate credit, provide a link to 83 BAR SPORTS the license and indicate if changes 94 APPOINTMENTS were made. You may do so in any reasonable manner, but not in any 96 OBITUARIES & IN MEMORIUM way that suggests the licensor 102 REVIEWS endorses you or your use. You may not use the material for commercial 106 ARCHON'S VIEW purposes. If you remix, transform or 107 ADVOCATUS build upon the material, you may not distribute the modified material. 108 FURIES

The Journal of the NSW Bar Association [2019] (Winter) Bar News 1 EDITOR’S NOTE

Practice and Procedure A special edition

While this might come as a surprise to our skin a rarity, and men were, well, only one way large and regular readership, the editor of inclined. Bar News is not normally inundated with Let me turn from the last edition to this one. correspondence. It is comparatively rare for an As our loyal readers can attest, I appreciate a edition to generate more than a single letter or special edition. Following in the mould of the note. As a result, those I do receive I cherish. excellent (and for many now well-thumbed) For example I remember fondly a letter special edition on Expert Evidence, the com- I received in response to Autumn 2018, a mittee decided to publish an edition focusing special edition on First Nations on the Bar, on Practice and Procedure. which the author described as bearing an This gave us a wide canvass to work with, overall theme of victimhood, containing and we have married together some wonder- descriptions of our world-enviable democracy ful pieces written by our leading jurists on as a ‘tyranny of the majority’, proselytising practice at the Bar today and tomorrow, with Marxist Gender Theory, and actually deriding more practical pieces ruminating on practice serving politicians. and procedure in specific jurisdictions which So you can perhaps understand why I was we hope will be of assistance to those who are pleasantly surprised by the reaction to our seeking to practise in those areas. last edition (Autumn 2019, We are the Bar, a Leading the charge are three wonderful special edition on Diversity). Instead of one pieces by Chief Justice Kiefel (The Australian or two well-meant missives, I received dozens Bar – Change and Future Relevance), Chief Jus- of notes, emails and phone calls commenting Bathurst CJ foreshadows tice Allsop (The Future of the Independent Bar on the edition. Beyond pointing out that the in Australia) and Chief Justice Bathurst (The fold-out Vanity Fair cover featured models the impact of technology ... Role of the commercial bar in the mid-21st cen- that in a couple of cases fell short of being presaging a time when ‘physical tury). The latter envisages the Bar of the future, entirely convincing as barristers, the response made up of counsel who are more empathetic was entirely positive. Amongst them I counted appearances in Court might and better listeners enabling them to obtain more than six personal notes from Supreme a greater familiarity with clients’ business Court Judges congratulating the committee. start to become a rarity’. environments and an understanding of what One Queensland Judge was so impressed he it is like to work in the particular industry. had an electronic copy forwarded to the entire omission came about as a result of the untime- Bathurst CJ foreshadows the impact of tech- Queensland judiciary. And the President of the ly if richly deserved appointment of Richard nology, going beyond online Courts to online Court of Appeal, Justice Andrew Bell (past Bar Weinstein to the Bench just as we reached our ADR and virtual appearances, presaging a News editor and a fine judge of a good cover) copy deadline. But I digress. time when ‘physical appearances in Court might invited the whole committee to drinks so that In Andrew Pickles’s interview he speaks of start to become a rarity’. the members of the Court of Appeal could his role as an Advocate for Change, being a On the practical side there is a fascinating thank them in person. prominent advocate for the LGTBI commu- examination of one the most significant pro- I have to say it was a good edition, for which nity. It reminded me of something I was told cedural changes in criminal law in NSW in substantial thanks must go to the Association’s by a Judge who came to the Bar in the early recent decades, the Early Appropriate Guilty Diversity and Equal Opportunity committee 90’s. He said that when he successfully applied Plea reforms. I am very grateful to Belinda who helped identify and curate many of the for readership at one of the Bar’s leading floors Baker who obtained views, one year on, from articles. What made it so good was that it (they would say The leading floor) he had been those best positioned to consider the impact revealed the stories behind members of the Bar careful not to reveal he was gay. He is certain of the reforms, including Chief Judge Justice – demonstrating what the Bar is like now and that if he had told them he would not have Price, DPP Lloyd Babb, Richard Wilson what it is becoming. It is a more inclusive place. been offered a readership. Deputy Senior Public Defender, and three I was pondering this while reading one of That anecdote is both outrageous and tell- defence counsel. articles for this edition, the interview with ing. Outrageous because that was barely 25 Further, there are a number of wonderfully Andrew Pickles. The interview addresses a years ago; telling because in today’s Bar such instructive pieces, such as Judge Scotting’s con- glaring omission from the last edition, namely attitudes are seen as prehistoric – a glimpse cise note as to how to approach a sentencing a substantial piece on LGTBI barristers. That into another era when women were novel, dark hearing in WHS matters, Penny Thew’s guide

2 [2019] (Winter) Bar News EDITOR’S NOTE

to obtaining leave to appear before NCAT and Justice Sackar’s note on proceedings in the Equity Division’s expedition list. This edition also carries a number of other important articles, including a thoughtful piece titled The Psychological Impact of Judicial Work by Kylie Nomchong and Peter McGrath, which starts by identifying the shockingly high incidence of judicial bullying and goes on to examine what might be thought as the causes of such behaviour, leaving the reader all but convinced that Judges are human too. Another important article is Penny Thew’s piece summarising the International Bar Asso- cation’s findings on bullying and harassment in the legal profession. There are also a number of entertaining pieces, including a wonderful interview with Justice Kelly Rees, who is widely admired The August 2019 We are the Bar edition as a lawyer and a person. Her response to the opening question is worth the cost interesting collection of recent cases, going delle Barnett, for their contribution over recent of this edition alone. beyond just the most important High Court years to the committee. I finish by thanking the committee for their decisions. I look forward to receiving your views on sterling work in pulling together another edi- Every year there must necessarily be some the current edition. And for those inclined to tion, including Farid Assaf for collating much turnover of the committee. It is always difficult write for the benefit of a wider audience, I also of the practice and procedure pieces, Kevin when committee members leave, however nec- welcome by 1 November draft articles for the Tang for his beautifully written appointments essary given the many applicants. I would like next (Summer) edition. and obituaries, and Victoria Brigden and to thank the two outgoing and highly valued Daniel Klineberg for obtaining notes on an committee members, Juliet Curtin and Lyn- Ingmar Taylor SC

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The Journal of the NSW Bar Association [2019] (Winter) Bar News 3 PRESIDENT’S COLUMN

Challenges for practice at the NSW Bar

By Tim Game SC

In this column I would like to concentrate Senior Criminal Law Solicitor in the Grants on two major issues currently facing practice Division of Legal Aid NSW had ‘provided at the Bar, namely the parlous state of legal a straightforward economic explanation’ for aid funding and the effect of the Govern- the inability to secure counsel. This included ment’s restrictive compulsory third party that while barristers ‘take on larger and longer regime on the rights of injured people, and legally-aided matters because of their com- also mention major initiatives in the area of mitment to justice’, they ‘cannot base their advocacy training. practice exclusively on legally-aided briefs Legal Aid otherwise they will not generate sufficient income to meet their overheads, chambers In June I made a statement to the Bar in fees and generate sufficient income for their which I said that members should not feel personal commitments…’. His Honour that they have any obligation to take on summarised the evidence of the solicitor legal aid briefs when they will not receive that ‘counsel’s fees payable by Legal Aid are anything approaching adequate payment insufficient to secure representation for ac- for work done. This involves not just wholly cused persons by professionals of the required inadequate rates, but an entrenched failure standing and ability’. His Honour accepted to make proper allowance for work actually that this ‘systemic explanation’ corroborated done, particularly in relation to preparation. the evidence of the solicitors in the trial that These two features of the current system the lack of representation was beyond the have a compounding negative effect. control of the accused. The circumstances that led to that state- This is not the only serious trial date that has ment are well known to those who have had to be vacated because of the difficulty in This is not the only serious trial regularly undertaken legal aid work. There securing counsel or securing a sufficient grant has been no increase in the amount paid to date that has had to be vacated of legal aid. The Association is very concerned private practitioners by Legal Aid since 2007 that these circumstances have become more – there has not even been indexation for CPI because of the difficulty in frequent and will continue to have long term increases over those twelve years, and in fact implications for the delivery of justice in this in 2012 (the last time there was a formal con- securing counsel or securing a State. Without an urgent and substantive in- sultation regarding fees) there was actually a crease in legal aid rates for counsel, important modest reduction in rates due to a reclassifi- sufficient grant of legal aid. criminal trials may proceed with either no cation of fee levels undertaken by Legal Aid representation or inadequate representation. NSW. Barristers undertaking legal aid work Alternatively, they may be delayed with neg- have seen at least a 20 per cent reduction in ative effects for parties and victims of crime. the judgment of Fagan J in R v Mun- fees in real terms over the twelve year period More recently I have written to the Gov- shizada; R v Danishyar; R v Baines (No 2) from 2007. Accordingly, it is simply finan- ernment and Legal Aid NSW urging them cially unsustainable for many barristers to [2019] NSWSC 834, which was handed to approve an immediate increase in legal aid spend the time and do all that is necessary down on 3 July. rates in order to address the current crisis in to undertake legal aid work and properly In that matter his Honour vacated the our criminal justice system. prepare their clients’ cases and satisfy their date for a four month murder trial as a direct I have also initiated a formal consultation professional obligations in this regard. result of the inability of the accused to obtain process with Legal Aid NSW pursuant to sec- The Association’s position has received defence counsel in a trial where Legal Aid tion 39 of the Legal Aid Commission Act 1979. ongoing coverage in the media, and I have fee scales would apply. In the course of the Under the Act, Legal Aid NSW is required to been gratified to receive many messages of judgment his Honour said that the ‘inability consult with and take account of the views support from members, which indicates to secure the services of trial counsel at legal of the Bar Association in respect of fees to be the degree of concern about, and the aid rates on reasonable notice for a long trial paid to barristers. seriousness of, this issue. is a problem that requires urgent attention to Briefly put, our position is that Legal Aid The impact of the issue on the admin- enable this Court to do its work’. NSW is obliged to pay fair and equitable rates istration of justice was exemplified by His Honour noted that the Legal Aid for work actually done, not, as is currently the

4 [2019] (Winter) Bar News PRESIDENT’S COLUMN

case, to maintain unsustainably low rates although the dearth of information (sought based on false assumptions about some kind from government but not forthcoming) has of de minimis engagement by counsel in the meant that we have had to undertake our case at hand. own work as to the underlying picture and The Association will continue to advocate future projections. On the basis of what we strongly for a fair and equitable system have seen, compared with earlier projections of legal aid rates and I will keep members about uptake an excessive number of claims informed of developments regarding this cru- have been disposed of as minor injuries at cial issue. I would urge members who have an early stage (close to 60%). This means been involved in matters adversely affected by that far fewer cases will progress as damages inadequate legal aid rates to bring them to the claims even though injured motorists may Association’s attention. have suffered what, in ordinary parlance, Advocacy Training might be described as quite serious injuries. Depending on how one looks at it, this either The Bar Association is strongly committed leads to wildly inadequate benefits for injured to providing specialised ongoing training to motorists or excessive profits for insurers. The support and hone the skills necessary for a last comment is not an idle one given that in- successful practice at the bar. As part of this formation available to us going back to 2000 commitment, the Association has subsidised shows insurer profits running year after year two new training programs aimed at promot- in excess of 20%. ing excellence in advocacy. The Association Although it is early days in the life of the is the first independent state bar to offer its 2017 CTP scheme, it appears to us that the members the Vulnerable Witness Advocacy lack of provision for proper legal advice at Program, which provides practical training an early stage is one reason why claims are in the sensitivities involved in dealing with not being made, and determinations are not vulnerable witnesses in Court. being challenged, after insurers have assessed The second program, the Advocacy Skills particular injuries as minor. for Trial Advocates Workshop, is specifically A related issue involves the Government’s aimed at barristers with 3-5 years’ experience. proposal to establish a merged personal injury This workshop will provide participants with jurisdiction, which would involve a single the opportunity to hone their in-Court (crim- tribunal to deal with matters currently heard inal trial) advocacy skills. by the Workers Compensation Commission The new programs will be held in October and the Claims Assessment and Resolution and November respectively. Service. The Association is concerned to ensure that the proposal does not limit the CTP current level of access of parties to the Courts. Next I would like to say something about We are not aware of any particular problems the Government’s 2017 compulsory third regarding the number of matters involving party scheme. For some time, the Association work related accidents and motor accident has been advocating the need for change to schemes that proceed to Court, or of any dis- the 2017 CTP scheme. Regulations made proportionate impact on the Courts in this under the Motor Accident Injuries Act 2017 regard. Nor are we aware of any significant operate on the basis of an excessively broad delays in the District Court where most of definition of ‘minor injury’, which means these matters are heard. In those circum- that people who are permanently injured stances, we do not believe that it is necessary in motor accidents can be denied access to to place any part of the current jurisdiction common law rights and receive only a lim- of the Courts under the schemes within the ited amount of statutory benefits. That may proposed tribunal. occur even in circumstances where their Together with senior members of the injuries mean that they are unable to resume Common Law Committee, I have met with their chosen occupation. the Minister for Customer Service to pursue Data provided to the Association regarding the Association’s concerns regarding the 2017 the scheme indicates that claim levels are far CTP scheme and the merger proposal, and I lower than originally estimated and could will keep members informed regarding pro- justify a reduction in CTP premiums. To gress on these crucial issues affecting practice date, however, the Government does not at the NSW Bar. appear to be prepared to consider an increase in benefits for the injured despite the low level of claims. Contrary to earlier suggestions by the Minister that if the scheme targets were exceeded the response would be an improve- ment in benefits, it appears that this is no longer the preferred option. The Common Law Committee has been monitoring the situation as closely as it can,

The Journal of the NSW Bar Association [2019] (Winter) Bar News 5 OPINION

The psychological impact of judicial work Australia’s first empirical research measuring judicial stress and wellbeing: an overview of a recent study

By Peter McGrath SC and Kylie Nomchong SC (Wellbeing Committee)

Over the last 18 months, the work of the other things, the causes of bullying were ex- Wellbeing Committee of the NSW Bar plored. This included the recognition of the Association has included research into work pressures under which judicial officers judicial conduct and in particular bullying are required to perform. behaviour. This evolved out of the Quality The article said ‘…..there needs to be a of Working Life Survey undertaken by the more comprehensive understanding of the NSW Bar Association in which 66% of pressures facing judges. While there has respondents indicated that they had been been a reluctance to acknowledge the prob- subjected to judicial bullying. Qualitatively, lem of judicial bullying, equally problematic that conduct ranged from inappropriate is the reluctance to discuss the stresses of comments to abusive behaviour. The key fea- One of the responses by the Wellbeing judicial life arising from (among other fac- ture of it was that the effect on the barrister Committee was to publish an article in the tors), the loneliness of the role, the strain of was demeaning and humiliating. Judicial Officers Bulletin1 in which, among constant non-delegable decision-making,

6 [2019] (Winter) Bar News OPINION

the potential exposure to criticism from the health among judicial officers differed from their experiences of burnout symptoms media and the increasing demand on finite that of the Australian legal profession gener- are likely to be characterised by feelings of judicial resources often resulting in mount- ally. By comparison with barristers, judicial emotional depletion and loss of meaning ing caseloads. officers reported higher rates of non-specific rather than feelings or manifestations of Despite the emergence of counselling psychological distress in the ‘moderate to incompetence or ineffectiveness. services and wellbeing programs, the su- high’ range. However, the rate of distress in The study places emphasis on findings icide of Melbourne magistrate Stephen the ‘very high’ range was considerably lower in respect of Secondary Traumatic Stress Myall earlier this year demonstrates that for judicial officers than all levels of the legal (STS), which is also referred to as ‘vicarious crippling caseloads is still an issue of critical profession. trauma’. The mean scores of participating importance. Similarly, the mental health Rather, judicial officers reported symp- judicial officers suggested that STS is a issues consequent upon dealing with a long toms of depression and anxiety at rates common feature of the occupational stress running hearing into child sexual abuse similar to those suggested for the general experienced by Australian judicial officers. was made clear by Magistrate Heilpern population, which is dramatically lower An overwhelming majority of judicial officers in his address at the 2017 Tristan Jepsom than those of the Australian legal profession. met at least one symptom of STS at the time Memorial Foundation Lecture. In the ‘moderate to extremely severe’ of assessment. More significantly, 30.4% While judicial stress does not justify bully- range, the rates of depression, anxiety, and of participating judicial officers fell within ing behaviour, it is a contributing factor and stress symptoms for barristers and solicitors the ‘moderate to severe’ range for STS. It one which must be addressed in a thought- were more than three times that of judicial is suggested that, in conformity with some ful way. Our judicial system relies on both officers. relevant research on the topic, ‘moderate to judges and advocates in order to operate effi- Although there is not evidence of a wide- severe’ levels of STS are likely to satisfy the ciently and fairly. Judges are equally entitled spread mental health problem among the diagnostic criteria for Post-Traumatic Stress to a workplace free from the overwhelming Australian judiciary, there is a stress prob- Disorder psychopathology. pressure caused by unmanageable caseloads lem. According to the report, i.e., a finding Finally, the study concluded that rates of and inadequate resources. consistent with statistical data collected in alcohol use among Australian judicial of- Recently, a study was published called the United States of America. ficers was comparable with that of the Aus- ‘The Psychological Impact of Judicial Work: The authors propose three hypotheses as tralian legal profession generally. However, Australia’s First Empirical Research’,2 by an explanations for the differences in psy- those rates are considerably higher than the C Schrever, C Hulbert, T Sourdin. In that chological symptomology between Austral- documented level of alcohol use within the article, the authors described the outcome ian judicial officers and the Australian legal general Australian population. Over 30% of studies conducted between July 2016 and profession generally: of judicial officers participating in the study April 2017 for the purposes of ascertaining scored in the ‘medium to high’ risk levels 1. Given judicial officers are invariably indicating problematic alcohol use (as com- the sources, nature, prevalence and severity picked from the pool of legal practition- of judicial stress in Australia. pared to 18.8% of the general population). ers; the workload of a judicial officer is The Wellbeing Committee is continuing The sample pool comprised judicial of- less demanding than that of a practising ficers with appointments to five Australian to pursue initiatives to come to a shared solicitor/barrister, such that the key driver understanding of what constitutes judicial Courts (of the 38 currently in operation). of mental health issues within the legal The identities of the participating Courts is bullying, why it occurs, and an agreement profession is less applicable to judges. from the Courts to address it. not revealed. However, it was confirmed that 2. Practitioners appointed to the bench the Courts range from summary to appellate A protocol or set of guidelines would also are more well-equipped for legal work, serve as a useful educational tool in orien- of varying territorial jurisdictions. implying that the judicial appointment The average age of the participants was tation and legal development programs for process is effective. newly appointed judges and also for barris- 57.8 years and the average length of service 3. Given judges tend to serve their appoint- as a judicial officer (at the time of the study) ters. Such a protocol would help reshape ex- ment at the mid-point of their lives, it may pectations of what is considered appropriate was 9.5 years. be a reflection on the well-documented Courtroom behaviour. In time, there may be The testing was carried out by way of a observation that middle life tends to be a an appetite by the judicial system to adopt tiered approach, comprising the following period of relative mental stability. a Code of Conduct. In the meantime, the three distinct components: However, symptoms of ‘burnout’ and development of a transparent set of guide- 1. A self-administered survey focussed on secondary trauma are features of the occu- lines is being considered in many of the stress symptoms and experiences which pational stress experienced by many judicial Courts. Further, the Wellbeing Committee also involved the collection of some limit- officers. In that regard, 4% of judicial -of is considering a number of other initiatives, ed demographic information. ficers in the study scored within the ‘highest including Courtroom observation by ob- 2. A self-administered survey focussed on risk’ profile (i.e., high levels of exhaustion, jective observers, further data collection to mental health literacy, burnout, second- cynicism, and low professional efficacy) for provide concrete examples of the types of ary trauma, and alcohol use. occupational stress. Only 24.8% of partici- conduct which are and are not acceptable 3. A semi-structured interview relating to pants fell within the ‘lowest risk’ profile. This and seeking ways in which complaints of the participants’ particular experiences means that just under three quarters of the judicial bullying can be made so as to main- of work-related stress, major sources of participating judicial officers had symptoms tain confidentiality of the complainants. judicial stress and ideas for programs and consistent with a degree of burnout risk. ENDNOTES initiatives to reduce stress. The average score with respect to profes- 152 judicial officers participated in the sional efficacy was in the ‘high range’ and 1 K. Nomchong SC ‘Judicial Bullying: the view from the Bar’ Judicial Officers Bulletin November 2018, vol 30 No 10. first tier of testing. That number declined exceeded that of other ‘at-risk’ professions 2 This article is available via Westlaw AU: Schrever et al, considerably in the subsequent tiers to (i.e., psychiatric workers, civil servants, and ‘The psychological impact of judicial work: Australia’s first empirical 125 and 60 respectively. military). It is opined that, although judicial research measuring judicial stress and wellbeing’ 28 JJA 141. The pattern of stress and psychological ill- officers are more vulnerable to burnout,

The Journal of the NSW Bar Association [2019] (Winter) Bar News 7 OPINION

The incredible shrinking Bar By Anthony Cheshire SC

Each stage of my career at the bar seems to which seem to have passed without com- have been marked by arriving just after the ment: online Courts: and solicitors doing bar’s golden age, whether it was the fun of their own appearance work. civil jury trials, the pre-mediation era of cases The advantages I have discussed above were settling on the steps of the Court (followed largely from the point of view of the bar and by a long lunch), the pre-Civil Liability Act in particular the individual junior barristers, personal injury rural circuit bonanza or the but there were also advantages to the client. Friday long-lunch that apparently everyone Many cases seem to start on a false basis, used to do in the olden days. in an unnecessary and unproductive ad- I do, however, miss the old level 7 of the versarial manner or in a rather haphazard Supreme Court building. The registrars all way without much regard to the real issues sat on that level at 9am, which meant that one (whether legal or commercial) or the real could have several briefs in different lists and merits. Where that has occurred, a conver- flit between the Courts. Apart from the fun sation between counsel pointing out a weak- of juggling several matters at once and the ness in an opponent’s case, identifying the obvious monetary reward of doing so, there real legal commercial issue for one’s client were many other advantages that flowed. or suggesting early settlement negotiations It was a good place to start a career and will often advance the client’s interests far learn Court craft, not only from the person- better than an adversarial discussion about al advocacy experience (and mistakes) but timetabling. This is particularly so if it takes from watching others (and their mistakes). place at an early stage in litigation before Even those who had made those appearances costs have got out of control and become an as a solicitor were able to learn the difference impediment to settlement. in appearing as counsel. Online Courts remove Online Courts remove the opportunity to It was also a good place to learn that the opportunity to have have that informal constructive discussion cooperation and compromise on directions at an early stage; and mean that the settle- were unlikely to harm the client’s interests, that informal constructive ment discussions often only take place after but in an appropriate case might well ad- significant costs have been incurred and vance them. Apart from the client’s interests, discussion at an early stage; often unnecessarily so, making a settlement agreeing a timetable would allow a matter to more difficult to achieve and more likely to be dealt with by consent at the top of the and mean that the settlement leave the clients (justifiably) dissatisfied that list and avoid the lengthy wait to achieve the only winners from the litigation appear what was usually a similar result an hour or discussions often only take to be the lawyers. so later. There was also cooperation between place after significant costs Allied to this has been solicitors keeping members of the profession in holding a their appearance work in-house, often to matter in the list or mentioning it by consent have been incurred and often give young solicitors the opportunity to when the opponent was appearing in one of practise their advocacy as part of transition- the other Courts. unnecessarily so, making a ing to the Bar. Then there were the professional links Solicitors then carry out the online direc- that were forged: with the senior person on settlement more difficult to tions hearings and appear in person where the floor who was too busy or important to required, so that barristers are being briefed appear in person; reporting back to a new achieve and more likely to less and briefed later. That is often not in the solicitor on a job well done; establishing a leave the clients (justifiably) best interests of the client, but it is definitely reputation with opponents; and demonstrat- not in the best interests of the junior bar. ing competence to the Court. dissatisfied that the only However, rather than embarking on a Such appearances also often led to new marketing drive, stressing the advantages contacts and an unexpected, but enjoyable winners from the litigation of the junior bar, including objectivity, a and fruitful, new area of practice. second opinion, cost and advocacy exper- The Court renovations made it more appear to be the lawyers. tise, and seeking to expand into the lower difficult to flit between lists, but there are Courts, the junior bar rushes to increase its two other developments that have dam- rates and compete with established practi- aged this lifeblood of the junior bar and tioners for the slim pickings of final hearings

8 [2019] (Winter) Bar News OPINION

in the higher Courts. This in turn makes it and the feeling that a recession is on the less likely that solicitors will engage junior way, and things are not looking particularly barristers for directions hearings, with all the rosy for the bar and especially for the junior disadvantages discussed above. bar. It may not be time to panic yet, but it is There is only a finite amount of trial work time for a major rethink as to how the bar in the higher Courts and thus the effect of presents itself and its unique advantages. this is to increase the level of competition A good starting point would be an honest between barristers and reduce the amount and frank conversation about levels of work of work for many. This is especially so for and earnings; and a discussion about wheth- the junior bar, who are being squeezed for er the bar wishes to be seen as providing spe- work between solicitors and more estab- cialist advocacy services for all appearances lished barristers. It’s little wonder that there or whether it is content to limit its area of is an increasing number of grumblings work to trials and contested motions. from the junior bar about insufficient work and low earnings. Add to this that Court filings are down

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The Journal of the NSW Bar Association [2019] (Winter) Bar News 9 OPINION

‘Us Too?’ – findings on bullying and harassment in the legal profession1 By Penny Thew

Described as the largest ever global survey ‘these are not ‘women’s issues’’, given bullying of legal professionals, the results of the 2018 and harassment impacts all genders both di- survey conducted by the International Bar As- rectly and indirectly, the latter as a result of the sociation were released in May 2019 in a report adverse workplace impact (p17-8). entitled ‘Us Too?’ Bullying and Harassment in In its report, the IBA makes 10 recommen- the Legal Profession (the IBA report). dations, which importantly include imple- The opening words to the executive summa- menting policies and standards and exploring ry of the IBA report are ‘[t]he legal profession flexible reporting models (p10). According to has a problem’, words that do appear to be the IBA report, effective reporting systems that supported by the stark data revealed in the empower targets of bullying and sexual harass- report. Almost 7,000 individuals from legal ment to report their experiences are ‘among the workplaces across 135 countries responded most critical elements’ of a strategy to address to the survey, including barristers, solicitors, such conduct (p106). in-house counsel, the judiciary and legal pro- At the NSW Bar, reporting mechanisms fessionals employed within government. are available for individual chambers to im- The results of the survey disclosed that 50% plement, for instance in the form of the Bar of women respondents and one in three men Association’s Model Grievance Handling Best who responded had been bullied in the work- Practice Guideline (the Grievance Handling place, while one in three women respondents BPG). While the BPGs have had a successful and one in 14 men had been sexually harassed rate of adoption across the NSW Bar, with in connection with work (p8). These figures The results of a survey conducted with more than 52% of chambers at the NSW Bar were significantly higher when only Australian practising certificate renewals in 2014 by the adopting one or more of the BPGs, and while data was considered, which disclosed that 73% New South Wales Bar Association showed the BPGs are successfully used, as with all of women responding and 50% of men had that 42% of women barristers who responded workplaces there will be occasions where those been bullied and 47% of women respondents to the survey said that they had experienced within chambers do not feel able to make a 2 and 13% of men had been sexually harassed harassment and 64% reported being bullied. complaint internally within the workplace. (p87). Of those globally who reported having The consistently high percentage of legal pro- A reluctance to report is an issue facing been bullied, 65% had left or were considering fessionals, and barristers in particular, report- workplaces universally and is not unique to leaving the workplace as a result (p9), with ing being bullied and/or harassed is of concern. the legal profession or the NSW Bar. The most 57% of bullying cases and 75% of sexual On 26 June 2019, an LSJ Speaker Series commonly cited reason for individuals not harassment cases said to have gone unreported panel discussion entitled ‘Bullying in the legal reporting, according to the IBA report, was (p8). Australia had the highest response rate to profession’ was conducted based on the find- fear of repercussion and a lack of confidence the survey by country with the IBA concluding ings of the IBA survey, with a central message in reporting procedures (p106). For the NSW that ‘bullying and sexual harassment are rife in being that significant reputational damage Bar, added to this is that, while over half of all Australian legal workplaces’ (p87). occurs to the profession generally as well as to chambers in NSW have adopted the BPGs, This data is not new and surveys conducted individuals and organisations when a culture almost half have not, meaning that there is no within the legal profession in Australia have of bullying is left unaddressed. This message internal complaint mechanism within those in the past demonstrated similar rates of those was echoed in both the IBA report (p16) and chambers. The observation made generally in surveyed reporting having been bullied and/or the NARS report (p87), with the latter inverse- the IBA report was that ‘[t]he profession should harassed. In 2014 the Law Council of Australia ly referring to the positive reputational impact therefore urgently consider revising existing National Attrition and Re-engagement Study on business and the profession of addressing reporting models… [including] in external Report (the NARS report), which surveyed harassment and bullying and identifying this organisations that receive reports (a function approximately 4,000 legal professionals across as a driver for change. Linked to this, the IBA often held by professional regulators or law Australia, disclosed that 50% of women report in addition cited research demonstrat- societies and bar associations)’ (p106). respondents, and over 33% of men, reported ing the negative impact of bullying and harass- A model held up by the IBA in its report as having been bullied in their current workplace. ment on productivity and profitability, as well one to be considered is that adopted by the Vic- When the results of only women barristers as the estimated financial loss resulting from torian Bar Association whereby an anonymous were considered, the NARS report indicated bullying and harassment (p15-17). complaint or reporting portal is available via a that 55% of all practising women barristers Significantly, the IBA report emphasised link on the Victorian Bar Association’s web- surveyed across the country had experienced that, while women in the legal profession are page,3 with complaints thereafter investigated, sexual harassment, and 80% had experienced disproportionately affected by both bullying conciliated and/or (where appropriate) referred bullying or intimidation. and sexual harassment, the data disclosed that to the professional regulator (p107).

10 [2019] (Winter) Bar News OPINION

As is acknowledged within the IBA report, The results of the survey disclosed apply to those subject to the conduct or those improving flexible reporting models will who have witnessed it or have knowledge of it not be a cure-all. Other strategies, which that 50% of women respondents and states that those who practise from barris- could be implemented in tandem with an ters’ chambers ‘have an obligation to prevent a anonymous reporting mechanism, include and one in three men who culture of harassment and bullying.’ incorporating ‘bystander provisions’ within responded had been bullied in Australian Women Lawyers has in addition the existing framework, including for called for the reinstatement of mandatory con- instance within the BPGs. the workplace, while one in three tinuing professional development seminars, as Bystander provisions would require those well as practising certificate declarations, in witnessing bullying, harassing or discrimi- women respondents and one in respect of sexual harassment and bullying in natory conduct to report, rather than leaving the wake of the IBA report. that responsibility solely with the target. Such 14 men had been sexually harassed Overall, the findings in the IBA report a strategy is recognised in the IBA report as demonstrate the ongoing work needed to ad- one ‘showing significant promise’, with by- in connection with work (p8). dress what is recognised as a significant issue stander intervention training recommended within the profession, with the reader urged (p102-3) and is a strategy in line with the portal adopted by the Victorian Bar Associ- in the Foreword to the report to absorb the current framework of the BPGs and a position ation and held up as a model by the IBA, or findings and ‘then make a difference.’ advocated generally in continuing professional a variation thereof, is one that could provide development seminars given by the NSW Bar bystanders and victims at the NSW Bar with ENDNOTES Association in relation to the BPGs. Many or- somewhere to report. ganisations already impose not dissimilar ob- Commensurate with the IBA recommenda- 1 This article, drafted on 14 July 2019 under the title ‘Us Too’: the ligations on senior members of the workplace tions, in June 2019 the New South Wales Office International Bar Association’s survey findings on bullying and harassment to assist in minimising the risk of vicarious of the Legal Services Commissioner called for in the legal profession, was used as a briefing paper for speakers in a Continuing Professional Development seminar hosted by the Bar liability under statute. ‘disclosures of’ sexual harassment and bullying Association’s Diversity and Equality Committee on 21 August 2019. and launched its guide to reporting bullying, Significantly, however, obligations on by- 2 NSW Bar Association 2014 Member Profile Report (Urbis Pty Ltd, standers to report will be of no utility in the sexual harassment or discrimination under March 2015). absence of somewhere (for both bystanders rule 42 of the Legal Profession Uniform Law 3 https://www.vicbar.com.au/public/about/governance/internal-conduct- and victims alike) to make the reports or com- Australian Solicitors’ Conduct Rules 2015 or rule policies-and-reports. plaints of bullying, sexual harassment and/or 123 of the Legal Profession Uniform Conduct 4 http://www.olsc.nsw.gov.au/Documents/Information%20sheet%20 discrimination. The anonymous complaint (Barristers) Rules 2015.4 The guide is said to Inappropriate%20Personal%20Conduct%202019.pdf.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 11 RECENT DEVELOPMENTS

Insolvency of corporate trustees Amelia Smith reports on Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia [2019] HCA 20

The High Court has resolved a longstanding • first, in Re Enhill Pty Ltd [1983] 1 VR uncertainty as to the distribution of trust 561, the Full Court of the Supreme Court assets in the liquidation of an insolvent cor- of Victoria decided that the statutory porate trustee. priority regimes did apply, and the trust The High Court determined that: assets were to be divided between trust • ‘property of the company’ for the purposes and non-trust creditors according to those of the statutory priority rules in ss 433 and statutory priorities; 556 of the Corporations Act 2001 (Cth) • secondly, in Re Suco Gold Pty Ltd (in liq) (Act) includes the company’s proprietary (1983) 33 SASR 99, the Full Court of the rights to trust assets arising by operation Supreme Court of South Australia decid- of the trustee’s right of exoneration; and ed that the statutory regime did apply, • such property must be applied in accord- but the trust assets were to be distributed ance with the statutory priorities, but only according to those priorities only to trust in satisfaction of ‘trust creditors’. creditors; and • thirdly, in Re Independent Contractor Ser- Background vices (Aust) Pty Ltd (in liq) (No 2) [2016] NSWSC 106, Brereton J decided that the Amerind Pty Ltd (Amerind) carried on statutory regime did not apply, because business solely as a trustee of a trading trust. trust property was not ‘beneficially owned’ It had a series of debt facilities, variously by the trustee company. The property of secured. After failing to meet its obligations the trust was therefore to be distributed to to its lender, receivers were appointed. The trust creditors pari passu. receivers realised most of Amerind’s assets The High Court has resolved a In Amerind, the Victorian Court of and discharged all of the lender’s debt, leav- Appeal held that ss 433, 555 and 556 of the ing a receivership surplus of approximately longstanding uncertainty as to Act did apply to the distribution of property $1.6 million. They were in a position to the distribution of trust assets constituted by a corporate trustee’s right of retire, save that they were confronted with exoneration against trust assets: Common- competing claims in respect of the surplus. wealth v Byrnes (in their capacity as joint and Relevantly, there were two competing several receivers and managers of Amerind Pty claimants to the surplus. The first was the Ltd (receivers and managers appointed) (in entitled to priority treatment. Commonwealth, which had paid $3.8 mil- liq)) (2018) 354 ALR 789. Since the only Carter Holt advanced two principal ar- lion in employee entitlements under a statu- creditors of Amerind were trust creditors, the guments. First, it argued that the trustee’s tory scheme known as the Fair Entitlements approaches in Re Suco Gold and Re Enhill did interest in the trust assets arising from its Guarantee Scheme, and which sought, not produce different results, and it was un- right of exoneration was not ‘property of the pursuant to s 560 of the Act, reimbursement necessary to decide between them. However, at the same priority as the employees would company’, with the effect that the priority the Court of Appeal indicated that Re Enhill have enjoyed under s 433 of the Act. Section regime in s 433(3) did not apply. Secondly, should continue to be followed in Victoria 433 relevantly provides that a receiver either it argued that although the right of exoner- unless and until it was overturned: at [286]. (a) appointed by a holder of debentures ation itself could be described as property of Shortly after the Court of Appeal’s deci- secured by a circulating security interest, the company, that right (as opposed to any sion, the Full Federal Court’s delivered its or (b) who has taken possession of property consequential rights in the trust assets) was decision in Jones (Liquidator) v Matrix Part- subject to a circulating security interest, not subject to the circulating security inter- ners Pty Ltd, in the matter of Killarnee Civil must pay out of the ‘property of the com- est, with the result that the pre-conditions to & Concrete Contractors Pty Ltd (in liq) (2018) pany’ certain amounts identified in s 433(3) the operation of s 433(3) were not met. 260 FCR 310 (Killarnee). In that case, the (including amounts owed to employees) in The litigation focussed predominantly on Full Court held by majority that Re Enhill priority to any claim for principal or interest the first argument. Three approaches had was wrong and that Re Suco Gold represent- under the debentures. emerged in the case law on the question ed the correct approach. The second claimant was Carter Holt of whether a trustee’s right of exonera- The High Court decision Harvey Woodproducts Australia Pty Ltd tion comprised property of a corporate (Carter Holt), a creditor of Amerind, which trustee to which the statutory priority In three sets of reasons, the High Court submitted that the Commonwealth was not regimes would apply: unanimously dismissed the appeal, but in

12 [2019] (Winter) Bar News RECENT DEVELOPMENTS

doing so, affirmed the approach in Re Suco them was trading as trustee. Moreover, the ing that the core function of a liquidator is to Gold and Killarnee, and said that the ap- statutory priority schemes in ss 433 and 556 get in the property and distribute it among proach in Re Enhill was wrong: at [44] (Kiefel had been enacted in 2001 at a time when Re the creditors: Killarnee at [89]; ss 474(1), CJ, Keane and Edelman JJ), [92] (Bell, Suco Gold had stood for 17 years and was 477(2)(c), 555 of the Act. In Killarnee, the Gageler and Nettle JJ), [154] (Gordon J). well-regarded: at [58] (Kiefel CJ, Keane and Full Court decided that in circumstances As to the first of Carter Holt’s two prin- Edelman JJ citing Allsop CJ in Killarnee at where property rights were insufficient to cipal arguments, Kiefel CJ, Keane and [106]-[108]) and at [96] (Bell, Gageler and support a sale of the underlying assets, the Edelman JJ noted that the exclusion of prop- Nettle JJ); see also at [144] (Gordon J). statutory powers of sale in s 477 could not be erty held on trust from the property of an As to Carter Holt’s second argument, used to improve the liquidator’s position: at individual trustee in bankruptcy had long the High Court found that the trustee’s [89]. This decision was contrary to previous applied by undisputed analogy in the case right of exoneration was not a circulating authority. Instead the Full Court suggested of corporations, but said that that general asset, but that it was enough that Amerind’s that a liquidator could obtain orders for sale principle did not apply to the extent that the property rights to the trust assets (to the of the kind that would ordinarily be granted trustee derived any personal benefit from the extent that it had power to use them for its to the holder of an equitable lien over prop- rights held on trust: at [26]-[28]. One means own benefit) were themselves circulating erty, or apply for a parallel appointment as a by which a trustee can benefit personally assets and were therefore ‘property of the receiver: Killarnee at [91], [98]. from the trust assets is through the trustee’s company’ for the purposes of s 433: at [49], Another issue concerns how the unfair power to use those assets to indemnify itself [50] (Kiefel CJ, Keane and Edelman JJ), preference provisions in Part 5.7B of the from liabilities. The existence of that ‘right [86]-[87] (Bell, Gageler and Nettle JJ) and Act will be applied to transactions involving of indemnity’ means that, to the extent of at [108] (Gordon J). trust assets. In Amerind, the Victorian Court of Appeal held, consistently with prior au- the power, the trust rights are ‘no longer Remaining questions property held solely in the interests of the thority, that recoveries of unfair preferences beneficiaries of the trust’: at [28]. There are a number of issues which remain initially made out of trust assets were repay- The Court held that where trust assets to be decided. In particular, there remains able to the company and to be distributed need to be sold to exonerate the trustee, the between all creditors: at [69]-[77]. However, trustee holds a proprietary right to those the normative rationale for the provisions, assets (as opposed to a mere personal power which is to augment the estate for the benefit in respect of them) that ranks ahead of the of creditors is brought into sharp focus when beneficiaries’ beneficial interest: at [32] It would be perverse if the Act the transaction in question has diminished (Kiefel CJ, Keane and Edelman JJ), [81]- the assets of the trust as opposed to the [82] and [95] (Bell, Gageler and Nettle JJ), operated to deny employee general pool. It may sit uncomfortably in [133] and [142] (Gordon J). Gordon J noted a ‘dual fund’ situation. that having regard to the breadth of the defi- creditors a particular Accordingly, notwithstanding the High nition of ‘property’ in s 9 of the Act, there priority over the holders of a Court’s decision, there remain several op- could be no question that such proprietary portunities for further litigation in this area. rights fall within that definition: at [141]. circulating security interest Kiefel CJ, Keane and Edelman JJ stated further that a trustee’s proprietary rights solely for the reason that the to trust assets are commensurate with the trustee’s power to use those assets to dis- company which employed charge the trustee’s personal liability for liabilities properly incurred as trustee: at them was trading as trustee. [35]. It followed from this that the use of trust funds by a trustee was confined to the discharge of trust debts: at [44] (Kiefel CJ, Keane and Edelman JJ) and [156] (Gordon J). Nothing changes upon liquidation. uncertainty about the correct order for the Kiefel CJ, Keane and Edelman JJ approved payment of trust creditors after the payment the reasoning of Allsop CJ in Killarnee to of priority creditors and about the marshal- the effect that the ‘nature and character’ ling of claims where a creditor has access to of the power of exoneration, namely that it more than one fund. Complications might is exercisable only to pay trust creditors, is also be expected where a corporate trustee not altered in the hands of the liquidator or has carried on business as trustee for more trustee in bankruptcy: at [35]. than one trust, or as trustee of a trust and The conclusion that the trustee’s rights in on its own account. Bell, Gageler and Nettle the trust assets comprised property in the JJ and Gordon J suggested that a possible company that was subject to the statutory solution to this may be to construe s 556 as priority regime, but available only to satisfy if the liquidator held separate funds, each for trust creditors, was found to be consistent different groups of creditors: at [97], [160]. with the underlying purpose of the relevant Another unresolved issue concerns the provisions. The Court said that it would be fact that, due to the ‘shape’ of the liquidator’s perverse if the Act operated to deny employee interests in the trust assets, the liquidator is creditors a particular priority over the holders necessarily limited in how he or she can deal of a circulating security interest solely for the with those assets. The liquidator has no gen- reason that the company which employed eral power to sell trust assets, notwithstand-

The Journal of the NSW Bar Association [2019] (Winter) Bar News 13 RECENT DEVELOPMENTS

Liability of air carriers in negligence for psychiatric harm Amy Campbell reports on Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14

The High Court has unanimously held that joint judgment, considered that ‘[a]s a matter non-passengers’ claims for psychiatric harm of the ordinary and natural meaning of s 35(2) arising from the death of a passenger in the of the CACL Act, the Stephensons’ claims asserted course of air travel are exclusively governed the civil liability of the respondent in respect of by the Civil Aviation (Carriers’ Liability) Act the death of the passenger’: at [32]. Their Hon- 1959 (Cth) (CACL Act) and the general ours observed that there was an ‘immediate law of tort does not apply. and direct relationship’ between the asserted liability and the death of the passenger: at CACL Act [32]. The effect of s 35(2) was that the Ste- phensons’ entitlement to claim damages was The CACL Act is a legislative response to, and exclusive of their rights in negligence under gives effect to, the Convention for the Unifica- the law of tort: at [33]. tion of Certain Rules Relating to International As to the three matters referred to by Leem- Carriage by Air (1929) (Warsaw Convention). ing JA, their Honours considered that the lia- Section 28 of the CACL Act provides that, bility contemplated by s 28 of the CACL Act where Pt IV of the CACL Act applies to was event-based and not tied to a contractual the carriage of a passenger, ‘the carrier is relationship between carrier and passenger: at liable for damage sustained by reason of the [34]. The dicta inMagnus should not be fol- death of the passenger… which took place on lowed; the use of ‘in respect of ’ in the context of board the aircraft…’. s 35(2) was ‘distinctly inappropriate’ to confine Section 35(2) of the CACL Act relevantly Stephensons’ claims did not fall within s 35(2) the operation of the CACL Act: at [35]. Their provides that ‘…the liability under this Part of the CACL Act. His Honour considered Honours also noted that the purpose of the is in substitution for any civil liability of the himself bound by the decision of the Full CACL Act, in giving effect to the Warsaw carrier under any other law in respect of the Court of the Federal Court of Australia in Convention, was to achieve uniformity in the death of the passenger…’. South Pacific Air Motive v Magnus (1998) 87 law relating to the liability of air carriers and a A temporal limit on claims under s 28 is FCR 301 (Magnus), in which the Court held construction consistent with that purpose was imposed by s 34 of the CACL Act, which that claims by non-passengers for psychiatric to be preferred: at [36]. extinguishes the right of a person to damages harm were outside the scope of Pt IV of the Gordon J similarly considered the Stephen- if an action is not brought within two years. CACL Act. sons’ claims to be within the scope of s 35(2). Background South West’s appeal was successful in the After analysing the Warsaw Convention, Court of Appeal (Basten and Payne JJA; her Honour concluded that the absence of The Aappellant, Parkes Shire Council Leeming JA dissenting). Basten JA (Payne JA a contractual relationship did not preclude (Council), engaged the respondent, South agreeing) considered the decision in Magnus the application of the CACL Act and, to the West Helicopters Pty Ltd (South West) to to be, at best, of limited and indirect relevance. extent Magnus held to the contrary, it should assist it to carry out by helicopter a low-level His Honour considered the claims to be ex- not be followed: at [104]-[114]. Her Honour aerial noxious weed survey. In February cluded by s 35(2), as it was not possible as a considered that the history and scheme of the 2006, a helicopter piloted by an employee matter of the ordinary use of language to char- Warsaw Convention did not support a distinc- of South West carrying two of the Council’s acterise the claims as other than assertions of tion being drawn between the liability of carri- officers including Mr Ian Stephenson crashed, liability ‘in respect of ’ Mr Stephenson’s death. ers for passengers and non-passengers: at [115]. killing all three occupants. Therefore, the claims were excluded by s 35(2). Her Honour also rejected the Council’s Among other claims, Mr Stephenson’s Leeming JA held that s 35(2) did not preclude contention that claims by non-passengers widow, daughter and son (Stephensons) a non-passenger’s claim, having regard to were ‘derivative’ and were to be treated claimed damages for negligently inflicted psy- the regime reflecting a compromise between separately. Her Honour observed that such chiatric harm against the Council and South contracting parties, Magnus and the totality of a distinction was ‘distracting’ and did not West. Those claims were commenced in 2009, legislation in the area with respect to the rights address the question posed by the CACL Act, outside the two year time period imposed of non-passengers. which was concerned with the occurrence of an event: at [115]-[122]. by s 34 of the CACL Act. The High Court’s decision At first instance before Bellew J, each of the Stephensons was successful against the The Court unanimously held the Stephen- Council, and the Council in turn obtained sons’ claims were excluded by s 35(2) of judgment against South West as co-tortfeasor the CACL Act. under the CACL Act. Bellew J held that the Kiefel CJ, Bell, Keane and Edelman JJ, in a

14 [2019] (Winter) Bar News RECENT DEVELOPMENTS

Determining a place of burial Benjamin Goodyear reports on White v Williams [2019] NSWSC 437

A person dies. The deceased’s surviving loved the Plaintiff, extended family, friends and expert ones cannot agree on where the deceased should evidence from a Court-appointed anthropology be buried. How does the Court assess where expert, who gave evidence on Aboriginal burial burial should occur? To what extent are Aborig- customs in Redfern and Cherbourg: at [75]- inal cultural and spiritual beliefs of the deceased [80], [104]-[106]. and of the survivors accommodated in determin- His Honour accepted that the Plaintiff had ing the place of burial? These are the challenging issues that arose for consideration by Sackar J in been in a de facto relationship with the De- White v Williams [2019] NSWSC 437. ceased at the time of his death: at [97], [100]. In respect of religious, cultural, and spiritual The issue matters, his Honour noted evidence of the Deceased’s blood ties to Cherbourg, and of the The Deceased was an Aboriginal man with traditional significance of burial on country for strong ties to the Redfern and Waterloo area. Aboriginal people. His Honour found, howev- He died suddenly, on 7 February 2018, without er, that notwithstanding the Deceased’s visits having left a will or instructions as to his wishes to Cherbourg and his respect for his ancestors concerning burial. His partner, with whom he had two children, wished for him to be buried from that area, the Deceased had ‘a much in Sydney at the La Perouse/Botany Cemetery. more intense and passionate attachment to the His mother opposed that course. She wished Redfern/Waterloo area’ in light not only of his for him to be buried on country in Cherbourg, City Council (1997) 41 NSWLR 680 at 691. ‘urban lifestyle’ but also due to the fact that his Queensland, where she and the Deceased’s children, the Plaintiff, the Defendant, and other • If, however, a deceased made no will, then father (a Wakka Wakka man) had once lived. family members lived there: at [106]. The ability ‘usually the person with the best claim to the The Court proceedings letters of administration [has] the right to of family members to visit and tend to the grave determine the place and manner of burial’ at (which would be enhanced if the Deceased In the days following the Deceased’s death, were buried locally) was ‘extremely important his partner (Plaintiff) became aware that the [18], quoting Doyle CJ in In the Estate of Jones and awarded considerable weight’: at [108]. The coroner had released the Deceased’s body to his (deceased); Dodd v Jones (1999) 205 LSJS 105 mother (Defendant) for burial in Queensland. at [30]. needs of the children in that regard were ‘of the utmost importance’: at [113]. The Plaintiff brought an urgent application • But there is no hard and fast rule. Further- Ultimately, his Honour accepted that the against the mother before the Equity Duty more, there may be no likelihood of an Judge. The Plaintiff sought orders that she be application for a grant of administration in Plaintiff and her two children were best able to appointed administrator of the Deceased’s estate intestacy. The deceased may have no assets deal with the Deceased’s remains in a manner and that she be entitled to take possession of the to administer. In those circumstances, ‘an consistent with his background, some of his Deceased’s body and to bury him in the Sydney approach based on extent of interest, or en- wishes, and the importance of his Aboriginal cemetery. titlement to apply for a grant, takes on an air culture: at [114]. As an interim measure, Rein J ordered that of unreality’: at [19] quoting Perry J in Jones v The Plaintiff’s application, therefore, was suc- the body of the Deceased be released to the Dodd (1999) 73 SASR 328 at [50]. cessful and the Deceased remained undisturbed Plaintiff for burial in the Sydney cemetery, but in his resting place in the Sydney cemetery. His his Honour made it clear that this was not a final • Ultimately, the proper approach requires a decision. Accordingly, a three day hearing took balancing act. On the one hand, the common Honour, therefore, did not need to determine place shortly thereafter, in the Expedition List law is inclined to grant burial rights towards the further difficult question as to whether, had before Sackar J, to determine the Deceased’s the person with the best claim to the letters of his Honour found against the Plaintiff as to who permanent resting place. administration. On the other hand, a Court was best able to deal with the remains of the De- The law on burial rights will have regard to ‘practical considerations’ ceased, exhumation should be ordered: at [115]. and any ‘cultural, spiritual and/or religious Justice Sackar canvassed the authori- factors that are of importance’: at [22] citing Postscript ties concerning burial rights, noting the Campbell J in Darcy v Duckett [2016] following in particular: NSWSC 1756 at [27]. It may be noted that his Honour made no order as to costs. The legal practitioners appeared pro • In the ordinary course, if a deceased has left a Evidence and findings will, a named executor has the right to arrange bono with the Court recording its ‘gratitude for the burial: at [16] citing Smith v Tamworth His Honour received a range of evidence from their generosity and professionalism’: at [7].

The Journal of the NSW Bar Association [2019] (Winter) Bar News 15 RECENT DEVELOPMENTS

Protesting and the implied freedom of communication Sarah Danne reports on Clubb v Edwards; Preston v Avery [2019] HCA 11

The High Court unanimously upheld The provisions of the two Acts that were the constitutional validity of two statutes challenged by the appellants, s 185D of the prohibiting particular conduct within 150 Public Health and Wellbeing Act 2008 (Vic) metres of pregnancy termination clinics. The and s 9(2) of the Reproductive Health (Access statutes in question were found to burden the to Terminations) Act 2013 (Tas), contained implied freedom of communication about substantial similarities to one another. governmental or political matters, but not However, the Tasmanian legislation pro- impermissibly so. This decision reinforces hibited ‘a protest’ about terminations whereas that the implied freedom is not personal in the Victorian legislation prohibited more gen- nature and that it is permissible to burden erally ‘communicating by any means’ about that freedom where to do so is compatible terminations. with the maintenance of the constitution- Other notable differences included that ally prescribed system of representative and the Victorian legislation set out its own responsible government and is otherwise in objects and the relevant prohibition was accordance with the relevant invalidity test. limited by a requirement that the communi- Background cation be reasonably likely to cause distress or anxiety. Both these elements were absent The decision resulted from two separate in the Tasmanian Act. proceedings against individuals in different Ultimately, these distinctions did not result States. Mrs Clubb and Mr Preston were each in different outcomes in the appeals. of communication was unsuccessful. It was found guilty at first instance in the Magis- Decision trates Court of Victoria and Tasmania, respec- accepted in both matters that the behaviour tively. The charges in both cases concerned of each individual was prohibited by the Despite the unanimous dismissals, five judg- their engagement in prohibited behaviour, relevant Act on its face. Both individuals ap- ments were handed down with complex and including certain communications about the pealed their respective first instance decisions, varied reasoning. termination of pregnancy conducted within most relevantly on the basis of the abovemen- All judges considered the issue of ne- 150 metres of termination clinics. tioned defence, and each Supreme Court cessity as a precondition to constitutional In response to both charges, the defence removed certain aspects of those appeals adjudication. In separate judgments, Gordon, that the relevant statutory provisions im- to the High Court where the two matters Edelman and Gageler JJ all determined that permissibly burdened the implied freedom were heard together. the facts did not necessitate determination of

16 [2019] (Winter) Bar News RECENT DEVELOPMENTS

the constitutional question of validity of the dom granted by the Constitution. Rather, it reaching the conclusion that the appeal could Victorian Act in relation to the Clubb appeal is a limitation on the ability of government to be disposed of nonetheless (at [434] to [443]). and declined to proceed further on that regulate communication relating to matters Test for invalidity point. The four judges who did consider the of government and politics. Various judg- constitutional question in relation to Clubb ments confirmed these points as a prelude to The High Court reinforced the test for inva- did so in two separate judgments. The joint consideration, which was given by each judge, lidity which it previously adopted in Lange v judgment of Kiefel CJ with Bell and Keane JJ regarding whether the constitutional question Australian Broadcasting Corporation (1997) and the separate judgment of Nettle J found needed to be addressed. 189 CLR 520 and subsequently explained that the communication prohibition which The Court reflected on the established and applied in McCloy v New South Wales was breached by Mrs Clubb burdened the practice to decline to answer a constitution- (2015) 257 CLR 178 and Brown v Tasmania implied freedom insofar as the first step of the al question unless it were clear that it was (2017) 261 CLR 328. It is summarised as invalidity test was to be applied. The entire necessary to do so in order to determine a follows (Kiefel CJ, Bell J, Keane J at [5]): bench found that the prohibition breached by right of liability in issue. It was observed Mr Preston burdened the implied freedom. that it is sometimes considered inappropri- 1. Does the law effectively burden the In line with previous High Court deci- ate for a Court to determine a hypothetical implied freedom in its terms, operation sions concerning the invalidity test, there question for reasons including imprudence, or effect? remained a diversity of views on the bench over-eagerness and also that justice does not as to use of the structured proportionality require the question to be resolved (Kiefel 2. If ‘yes’, is the purpose of the law analysis on the question of whether the law CJ, Bell and Keane JJ at [30]-[36], Nettle J at legitimate in that it is compatible with was reasonably appropriate and adapted to [217], Gordon J at [336]). the maintenance of the constitutionally advance its legitimate object. It was unanimous that the constitutional prescribed system of representative and Certain submissions were made to the question must be addressed in Mr Preston’s responsible government? Court to the effect that any burden imposed appeal because, among other factors, Mr 3. If ‘yes’, is the law reasonably appropriate by the relevant Act, particularly in the case of Preston had clearly engaged in communica- and adapted to advance that legitimate the Victorian Act, was ‘of small magnitude’ or tion relating to political matters. object in a manner i.e., compatible with ‘insubstantial’ and that the Court should not However, this was distinguished from the be persuaded that it need examine the matter Victorian matter, in which Mrs Clubb did not the maintenance of the constitutionally further. However, the Court emphasised that accept that she had engaged in communica- prescribed system of representative it is not the magnitude of the burden which tion relating to political matters. On this basis, and responsible government? determines the question and that determi- the Attorney-General of the Commonwealth Four members of the Court supported the nation as to whether the challenged law is submitted that as a result, the High Court use of a proportionality analysis to assist with reasonably appropriate and adapted for its should not find it necessary to determine the the third step (Kiefel CJ, Bell J, Keane J at purpose must proceed regardless, if a burden validity or otherwise of the Victorian provi- [6] and Nettle J at [215]). Namely, if it can be is identified (Kiefel CJ, Bell and Keane JJ at sions because, even in the case of invalidity, found that the relevant law is both (i) ‘suit- [65] and Nettle J at [260]-[261]). their application to political communication able’, in that it has a rational connection to the The judgments consistently emphasised could be severed therefore leaving the provi- purpose of the law, and (ii) ‘necessary’, in that that the geographical limitations imposed sion available for present purposes. there is no obvious and compelling alterna- by the Acts were significant in reducing the Even those judges who found it neces- tive, reasonably practical, means of achieving burden placed on the implied freedom. How- sary to answer the constitutional question the same purpose which has a less burden- ever, Gageler J found that 150 metres must accepted that there was force in the Attor- some effect on the implied freedom, then the be ‘close to the maximum reach that could ney-General’s submission. However, the joint final question to be answered is whether the judgment pointed to the established practice be justified as appropriate and adapted’ to relevant law is ‘adequate in its balance’. achieve the legitimate purpose of the prohibit- as not being a ‘rigid rule’ and proceeded on The appropriateness of the proportional- ed conduct law under the Tasmanian law and the basis that it was ‘expedient in the inter- ity analysis for constitutional matters was that any greater distance would have likely est of justice’ (Kiefel CJ, Bell and Keane JJ challenged by three members of the Court. imposed an undue burden (at [213]). at [36] and [40]). Nettle J proceeded on the Gordon and Edelman JJ did not abandon Most of the Court addressed the premise basis that there was sufficient support for the the validity of the analysis as a tool but cau- that the object of the statutes of protection proposition of disposing of an attack on the of human rights was an important consid- constitutional validity of a law to conclude tioned its unqualified use (Gordon J at [390] eration, and central to the maintenance of that, ‘assuming without deciding that the and Edelman J at [408]). Gordon J referred the constitutionally prescribed system of impugned law would otherwise be invalid, it (at [403]) to its civil law origins and cited representative and responsible government. could be read down or severed operation in Gageler J in McCloy at [142] who noted that Several members of the Court cited the relation to the plaintiff and so be considered the difficulty with adopting ‘standardised protection of dignity as contributing to as valid to that extent’ (Nettle J at [230]). criteria’ to apply uniformly across many the importance of the underlying statutes In their separate judgments, Gageler, kinds of laws, and the incongruity of this (Kiefel CJ, Bell and Keane JJ at [49]-[51] and Gordon and Edelman JJ decided that the approach with the common law method. Edelman J at [497] – [499]). constitutional question was not necessary Gageler J maintained reservations about the tool but declined to repeat his reasoning (at Necessity as a precondition to to address. They each addressed severance [160]). The High Court’s decision in this constitutional adjudication first to determine necessity, and two found severance to be available in relation to the matter did not settle conclusively the use of The implied freedom of communication legislation and therefore determined that proportionality analysis for future decisions about government and political matters is no further analysis was required. Edelman J but did effectively provide confirmation that found as a necessary implication of sections differed, finding that severance could not be it is currently accepted as a valid tool for use, 7, 24, 64 and 128 and related sections of the applied but instead that the legislation could although not without qualification or the Constitution. It is not a personal right or free- be partially disapplied if necessary, therefore possibility for further evaluation.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 17 RECENT DEVELOPMENTS

Moubarak by his tutor Coorey v Holt: The Court of Appeal permanently stays proceedings seeking damages for alleged historical child abuse

Nicholas Bentley reports on Moubarak by his tutor Coorey v Holt [2019] NSWCA 102

The introduction of s 6A to the Limitation s 67 of the Civil Procedure Act 2005 (NSW) Act 1969 (NSW) on 17 March 2016 re- (CPA), or dismissal pursuant to UCPR r moved any limitation period that applied to 13.4(1)(c). It was common ground that de- personal injury actions for damages result- fendant was not competent to give evidence ing from an act or omission that constituted or instructions. However, Wilson DCJ dis- child abuse. missed the defendant’s motion, concluding This reform, combined with an inade- that the doctrine of fitness to stand trial was quate National Redress Scheme, has seen the not relevant to determining a permanent filing of a dramatically increased number of stay application and that there was no evi- historic child abuse claims in NSW Courts dence that the other occupants of the house, – with over 200 claims having been filed in where some of the alleged offending took the Common Law Division of the Supreme place, were not available. By his tutor, the Court since 2017. However, s 6A still pre- defendant sought leave to appeal. serves a Court’s power to stay or dismiss The Court of Appeal decision proceedings. Moubarak v Holt is the Court of Appeal’s first decision considering an President Bell delivered the leading judg- application for a permanent stay of a claim ment, with Leeming JA and Emmett AJA that would have otherwise been time barred agreeing. Leave to appeal was granted on the if not for s 6A. basis that the application raised questions of Importantly, the decision identifies par- significant public importance. ticular circumstances where the ordering of Although the plaintiff reported the as- Specifically, Bell P referred to the nu- a permanent stay will be granted, potentially saults to police in May 2015, the defendant merous historic child abuse claims being paving the way for further stay applications was never made aware of the allegations. commenced decades after the alleged abuse in similar historic abuse cases. Statements were provided to the police by as a consequence of the introduction of s the plaintiff, Ms Evans, and Mr Coorey. No The facts and rulings of the trial judge 6A (at [12]-[13]), while Emmett AJA noted statement was obtained from the defendant that the principles and criteria for granting By her statement of claim, the plaintiff, Ms who, as of October 2015, had a RUDAS permanent stays in light of s 6A were by no Holt, alleged that in the early 1970s Mr score of 0. Expert evidence indicated that he means settled (at [204]). Moubarak, her uncle, sexually assaulted her was severely demented, unable to walk inde- The principles governing the discretion to on four occasions when she was 12 years pendently and no longer able to comprehend order a permanent stay were summarised by old. The Statement of Claim did not suggest English. Police subsequently informed the Bell P (at [68]-[71]) as follows: that the assaults were witnessed by anyone. plaintiff that they were unable to proceed as The plaintiff told her friend, Ms Evans, of the defendant’s physical and mental condi- (i) the onus of proving that the stay should the assaults in 1987 and her second husband tion rendered him unfit for trial. be granted lies on the defendant; In December 2016, the plaintiff com- and sisters in 1991. In February 2013, the (ii) the stay should only be ordered in menced her civil claim in the District plaintiff told her general practitioner and exceptional circumstances; then several psychologists about the assaults. Court seeking damages against the de- In February 2014, the defendant (aged 85) fendant. While over 40 years had elapsed (iii) the stay should be granted when the moved into a nursing home, having scored since the assaults, the claim was not interests of the administration of justice 13/30 on the Rowland Universal Demen- barred as a consequence of s 6A to the so demand; tia Assessment Scale (RUDAS) (30 being Limitation Act 1969 (NSW). the normal score). In the same month, Mr By way of his tutor, Mr Coorey, the de- (iv) the categories of cases in which a George Coorey was appointed the defend- fendant filed a defence and a subsequent permanent stay may be ordered are not ant’s legal guardian and financial manager. notice of motion seeking a stay pursuant to closed; and

18 [2019] (Winter) Bar News RECENT DEVELOPMENTS

(v) the stay may be ordered where the was 12 at the time of the alleged conduct), fact that the defendant was never confronted continuation of the proceedings would the lack of evidence and the inadequate ex- with the allegations (in contrast to Judd and be vexatious, oppressive, manifestly planation given by the plaintiff for the delay. Anderson), no statement responding to the unfair to a party or would otherwise In contrast, Garling J was satisfied in Judd allegations was obtained by the defendant, bring the administration of justice into that, though the defendant was deceased, a the defendant had advanced dementia from disrepute. trial against the estate would not be an unfair the outset of the proceeding, there were one. His Honour cited the available evidence, no eyewitnesses to the alleged assaults, the Citing Lord Sumption in Abdulla v Bir- the limited enquiries made by the estate, the defendant was unable to give instructions or mingham City Council [2013] 1 All ER 649, fact that the deceased defendant had largely evidence, any potentially relevant witnesses Bell P acknowledged that two forms of un- admitted the alleged conduct, the public were now dead or unavailable, and there was fairness can result from delayed proceedings: interest in permitting claims for damages for no credible suggestion that any documenta- (1) prolonged uncertainty (which is not to child sexual abuse, and the fact that there was ry evidence was in existence that would bear be considered where there is no limitation no suggestion that the plaintiff’s delay was the upon the likelihood that the alleged assaults period) and (2) the impoverishment of the consequence of any intentional conduct. Sim- occurred. Special leave to appeal this deci- evidence available to determine the claim, ilarly, in Anderson, four of the assaults were sion was not sought. particularly where a trial is exclusively or admitted, and the real issue was whether the Although the circumstances of Moubar- heavily dependent on oral evidence and thus Council of Trinity Grammar School was vi- ak are somewhat unique, Bell P’s decision the quality of witnesses’ memory and recol- cariously liable for the conduct of the accused provides practical guidance on the principles lection (at [72]–[77]). to be applied and circumstances that will President Bell held that the primary judge warrant the granting of a permanent stay had erred when considering this second form of proceedings concerning historic child of unfairness by incorrectly finding that abuse. The pending appeals to the Court of there was no evidence of the unavailability Appeal in Judd and Anderson will indicate of any pertinent witnesses (at [61]-[67]). Of whether these applicable circumstances will the five potential witnesses (excluding the be expanded upon. Different considerations plaintiff and the defendant), the plaintiff’s Bell P’s decision provides might also apply where the claim is against sister was the only witness still alive and she an institution, especially where the liability had not seen the alleged assaults. practical guidance on the is direct and not vicarious, and where there President Bell also considered that the is evidence that the perpetrator was a known primary judge had erred in disregarding the principles to be applied offender. For the time being, however, de- R v Presser principles established in [1958] and circumstances that will fendants seeking a permanent stay in similar VR 45. In that case, Smith J (at [48]) consid- circumstances to Moubarak will need to ered whether the accused, because of a mental warrant the granting of a prove (likely through exhaustive searches defect, could be tried ‘without unfairness or and inquiries) that the perpetrator and any injustice to him’. In Smith J’s view, the ac- permanent stay of proceedings pertinent witnesses are, and have been, cused had to be able to answer to and defend unable to give evidence or otherwise respond the charge, understand generally the nature concerning historic child abuse. to the allegations, and that no documentary of the proceeding and give instructions to material bearing upon liability exists that counsel when represented. This test was would outweigh the prejudice or unfairness identified in R v Rivkin (2004) NSWLR 251 arising from the deterioration or absence of (at [248]) as the ‘test directed to the mini- witness testimony. mum requirement for a fair trial’. Although Presser was a criminal matter, Bell P said that coherence is a quality that the common law teacher at school camps. Rothman J refused values, and it would offend commonsense to the stay, accounting for the available docu- maintain that a defendant could not obtain ments provided from the school concerning a fair trial in criminal proceedings but could the camps, the fact that the accused and other secure a fair civil trial with identical factual teachers were available and the Council’s allegations (at [107]-[109]). failure to take reasonable steps to obtain other President Bell and Leeming JA empha- available evidence. sised that granting a permanent stay will President Bell concluded that none of the heavily turn upon the facts of the particular possible avenues for the defendant to obtain case (at [111] and [193]). Usefully, Bell P evidence could remedy the fact that the de- highlighted this point by referring to the fendant was at all relevant times unaware of three most recent decisions considering stay the allegations made against him and unable applications in which allegations of historical to give instructions in relation to them (at sexual abuse were made (at [113]-[148]), two [158]). His Honour determined at [159] of which (Judd v McKnight (No 4) [2018] that since the trial would take place in the NSWSC 1489 and Anderson v Council of defendant’s involuntary absence, it would Trinity Grammar School [2018] NSWSC produce manifest unfairness to the defendant 1633) are presently being appealed. and bring the administration of justice into In the first decision,Connellan v Murphy disrepute. [2017] VSCA 116, the Court of Appeal of Overall, his Honour listed nine salient fea- Victoria granted a permanent stay, citing the tures that warranted a permanent stay of the disadvantaged position of the defendant (who proceedings (at [162]-[171]), including the

The Journal of the NSW Bar Association [2019] (Winter) Bar News 19 RECENT DEVELOPMENTS

A fresh federal fight about political donations Alison Hammond reports on Spence v Queensland [2019] HCA 15

The High Court once again handed down property developers, were upheld aSpence v judgment in a dispute concerning Common- Queensland contains a veritable smorgasbord wealth and State government regulation of of constitutional issues to be considered: the political donations. scope of Commonwealth legislative power, This time, the Court grappled with the the implied freedom of political communi- validity of, and interaction between, Queens- cation, s 109 inconsistency, exclusive powers, land’s ban on political donations from prop- inter-governmental immunities and even erty developers, and the Commonwealth’s echoes of the long-abandoned doctrine of express authorisation of certain political gifts. State reserve powers. The High Court held that s 302CA of Background the Commonwealth Electoral Act 1918 (Cth), which purported to override certain State Many political parties promote the election prohibitions on political funding, was wholly of their chosen candidates to both Common- invalid because the legislation was beyond wealth and State parliaments. Political parties the power of the federal legislature. Accord- are typically unincorporated associations or- ingly, the relevant provisions of the Electoral ganised by State. In Queensland, five political Act 1992 (Qld) and the Local Government parties hold seats in both the Legislative As- Electoral Act 2011 (Qld), which purported sembly of Queensland and either the Federal to prohibit specified political donations of House of Representatives or Senate.

20 [2019] (Winter) Bar News RECENT DEVELOPMENTS

When a political donation is made to one 3. donations that a gift recipient kept federal elections by virtue of ss 10 and 31 of of these parties, a giver may specify that the separately to be used only for State the Constitution. gift be used for a particular purpose – cam- electoral purposes (s 302CA(b)(ii)). The vice found with s 302CA was that it paigning for a Federal election, campaigning purported to apply to donations that merely In each of those circumstances, State elec- for a State election, or a non-campaign pur- ‘may be’, but were not required to be, used toral laws would apply to the gifts. pose. Alternatively, a giver may not direct the for federal electoral purposes. As a result, use of their gift at all, making the gift part of If valid, s 302CA would render Queens- s 302CA conferred a broad immunity what Edelman J described as the ‘unallocated land’s ban on property developer donations from the operation of State electoral laws, middle’. Gifts will then ultimately be direct- inoperative (by virtue of the inconsistency including laws limiting the availability of ed towards one or more of these uses at the provision in s 109 of the Constitution) except funds for activities with no connection to choice of the party. to the extent donations were earmarked for federal elections. The significance of this The question raised in Spence is – to what use in Queensland state or local elections. impact, compared to the impact on federal extent can the Commonwealth, or Queens- Importantly, Queensland’s ban would not elections, was said to ‘point strongly to a land, regulate gifts in each category? apply to any donation in the ‘unallocated purpose that cannot be said to be incidental’ middle’ – a donation that ‘may be’ used for The Queensland Law to the Commonwealth’s power over federal federal election campaigning, but equally elections (at [81]). In 2018, Queensland’s government intro- ‘may be’ used for State elections. The majority held that the invalid duced amendments to the Electoral Act operation of s 302CA was incapable of and the Local Government Electoral Act. severance, such that the section was wholly Those amendments banned property devel- invalid (at [91]). opers from making donations to political Spence v Queensland is an Given the invalidity of s 302CA, the ma- parties that promoted the election of can- jority held that Queensland’s ban on proper- didates to the Legislative Assembly or local important decision about the ty developer donations was not inconsistent councils in Queensland (even if they also with the Commonwealth Electoral Act. promoted the election of candidates to the operation of federalism in In the minority, Nettle, Gordon and Edel- Federal Parliament). man JJ, each writing separately, concluded Queensland’s ban applies to any donation, 21st century Australia. It is that s 302CA was within the scope of Com- regardless of whether or not the donation is a relatively rare example of a monwealth legislative power. Their Honours earmarked or used for State or local govern- would have held that the Queensland ban ment campaigning. ‘win’ for the States in an area was inconsistent, and therefore inoperative, Queensland’s laws are modelled closely with s 302CA to the extent the laws pur- on the pre-existing New South Wales ban of overlapping regulation. ported to apply to donations not specifically on donations by property developers. Those earmarked for state or local government laws were themselves the subject of a High electoral purposes (at [151], [275], and [375]). Court challenge in 2015. In McCloy v NSW (2015) 257 CLR 178, the High Court held The High Court’s Decision Implied freedom of political communication that the New South Wales laws did not Mr Spence also submitted that Queensland’s impermissibly burden the implied constitu- The case was brought in the High Court’s ban on property developer donations in tional freedom of political communication original jurisdiction by former LNP State elections impermissibly burdened the (as reported in the Summer 2015 issue Queensland president Gary Spence. Mr implied constitutional freedom of political of Bar News). Spence’s role in the property development communication. The Commonwealth Law industry led him to quit his role in the The Queensland law, he submitted, was party following Queensland’s introduction distinguishable from the law upheld in In 2018, the Commonwealth government of the ban (which also prohibited property McCloy because Queensland did not have the also amended the Commonwealth Electoral developers from encouraging others to make same history of corrupt developer influence Act to introduce s 302CA. political donations). in State politics. Interestingly, Mr Spence did Section 302CA(1) permitted donations Mr Spence’s challenge to Queensland’s not attempt to distinguish McCloy as regards to federally registered political parties, laws was supported by the Attorney-General Queensland local government elections. At ‘despite any’ State electoral law, if, first, the of the Commonwealth, while the Attor- the local level, there was a significant recent Commonwealth Electoral Act did not oth- neys-General for each other State and the history of corrupt influence. erwise prohibit the donation, and, second, ACT intervened in support of Queensland, Each member of the High Court rejected the gift ‘is required to be, or may be, used making for a very full bar table. the argument that McCloy could be distin- for the purposes’ of influencing voting guished. Even if there was less evidence of Validity of s 302CA / s 109 Inconsistency in a federal election. corruption, the State parliament was entitled Section 302CA(3) provided three explicit In a joint judgment, Kiefel CJ and Bell, to act prophylactically in enacting the ban exceptions to s 302CA(1). The permission in Gageler and Keane JJ held that s 302CA was (at [95]-[97], [113], [264], and [322]-[326]). s 302CA(1) did not apply to: beyond the scope of the Commonwealth’s legislative power. The Commonwealth had Exclusive power, intergovernmental immuni- 1. donations given on terms requiring ties and Melbourne Corporation the gift to be used only for State electoral identified s 51(xxxvi) of the Constitution, purposes (s 302CA(a)); which confers power over ‘matters in respect The parties made several interconnected of which [the] Constitution makes provision arguments related to the interaction of 2. donations that were required by until the Parliament otherwise provides’, as State and Federal power. First, Mr Spence a State law to be kept separately in the relevant source of legislative power, ob- argued that federal elections are an area order to be used only for State electoral serving that the ‘matters in respect of which of exclusive Commonwealth legislative purposes (s 302CA(b)(i)); or the Constitution makes provision’ include power. This would render the Queensland

The Journal of the NSW Bar Association [2019] (Winter) Bar News 21 RECENT DEVELOPMENTS

ban invalid regardless of the constitutional originally has no mandated purpose, and is validity of s 302CA. later used for a State electoral purpose, the The majority, joined on this point by ‘giving, receipt, retention and use’ of that Edelman J, rejected the argument that the gift must comply with the State electoral law. Commonwealth’s power with respect to As a result, s 302CA(1) may initially federal elections is exclusive (at [46], and apply to a gift, but if it is later earmarked [305]). Federal elections are not among for a State electoral purpose, the opera- the exclusive powers set out in s 52 of the tion of s 302CA(b)(ii) means s 302CA(1) Constitution, and no exclusivity could be will no longer apply. implied. In doing so, the Court effectively Queensland suggested that this constitut- overruled a 1912 decision which contained ed retrospective removal of a s 109 inconsist- statements to the contrary, Smith v Oldham ency in the manner deemed impermissible (1912) 15 CLR 355. by Metwally. Second, Queensland argued that s 302CA Given the invalidity of s 302CA, the infringed the doctrine of intergovernmental majority found it unnecessary to decide the immunities. Third, Mr Spence argued that question (at [34]). The minority justices, the Queensland ban did likewise. however, would have upheld s 302CA(b)(ii), As many readers will recall, since The Engi- holding it imposed a condition precedent on neers’ Case (1920) 28 CLR 129, constitution- the operation of State electoral laws, instead al grants of power to the Commonwealth of entailing any retrospective operation (at have been construed expansively – they are [147], [237], and [374]). ‘plenary’. One significant qualification to Significance this is the intergovernmental immunities doctrine expounded in the Melbourne Cor- Spence v Queensland is an important deci- poration Case (1947) 74 CLR 31. Melbourne sion about the operation of federalism in Corporation held that, because the Constitu- 21st century Australia. It is a relatively rare tion assumes the existence of both State and example of a ‘win’ for the States in an area of Commonwealth governments, ‘neither fed- overlapping regulation. eral nor State governments may destroy the The decision is also directly relevant to sev- other nor curtail in any substantial manner eral ongoing disputes about electoral law. For the exercise of its powers’. example, at the time of writing, the Queens- In light of s 302CA’s invalidity, the ma- land Court of Appeal is reserved in the case jority found it unnecessary to decide the of Awabdy v Electoral Commission (Qld) (CA Melbourne Corporation point in relation to s 3505/18), which concerns the overlapping 302CA (at [84]). In relation to the Queens- Commonwealth and Queensland regimes land ban, the majority affirmed that the for the disclosure of political donations. doctrine of intergovernmental immunities The High Court began 2019 with its could operate to invalidate a State law, but decision in Unions NSW v New South that in this case, the Queensland ban did Wales [2019] HCA 1, which concerned not attract its operation. The ban was not restrictions on election spending. In the directed to the Commonwealth and im- circumstances, Spence is very unlikely to be posed no special disability or burden on the the High Court’s last word on the subject of Commonwealth (at [109]). electoral regulation. Principle in Metwally Spence raised one final point of interest to constitutional enthusiasts. In University of Wollongong v Metwally (1984) 158 CLR 447, the High Court held that the Commonwealth cannot retrospec- tively legislate to ensure that a State law is not rendered invalid by s 109. While the Commonwealth can amend federal laws to prospectively remove a s 109 inconsistency, to do so retrospectively was held to under- mine the operation of the Constitution. Section 302CA contained a note on the operation of s 302CA(b)(ii). As explained above, that section preserved the operation of State electoral laws in relation to dona- tions earmarked by a recipient specifically for a State electoral purpose. The note provided that a recipient may identify the intended purpose of a gift at any time prior to using that gift. It then gives an example – if a gift

22 [2019] (Winter) Bar News RECENT DEVELOPMENTS

The Bowraville Murders Statutory exception to the double jeopardy principle Jillian Caldwell reports on Attorney General for New South Wales v XX [2018] NSWCCA 198 and Attorney General for New South Wales v XX [2019] HCATrans 052

Between September 1990 and February 1991, punishable by imprisonment for life. Section three children – Colleen Walker, Clinton 102(2) provides that evidence is ‘fresh’ if (a) it Speedy and Evelyn Greenup – disappeared was not adduced in the proceedings in which from the northern NSW town of Bowraville. the person was acquitted and (b) it could not The respondent was tried and acquitted of have been adduced in those proceedings with the murders of Clinton Speedy and Evelyn the exercise of reasonable diligence. Section Greenup. On 16 December 2016, the Attor- 102(3) provides that evidence is ‘compelling’ ney General for New South Wales made an if it is reliable, substantial and in the context application to the Court of Criminal Appeal of the issues in dispute in the proceedings (‘CCA’) under s 100(1) of the Crimes (Appeal in which the person was acquitted, highly and Review) Act 2001 (CARA) for an order probative of the case against the acquitted that the respondent be retried for the murders person. Section 105(7) of CARA provides of Clinton Speedy and Evelyn Greenup. The that the CCA may consider more than one application was the first to be made under s application for a retrial at the one hearing, but 100(1) of CARA. If the application was suc- only if the offences concerned ‘should be tried cessful, it was proposed that the respondent on the same indictment’. would be retried for those offences and for The Court of Criminal Appeal the murder of Colleen Walker at a single trial on the same indictment. The applicant submitted that the evidence re- The CCA (Bathurst CJ, Hoeben CJ at CL lating to the disappearance of Colleen Walker and McCallum J) dismissed the application. ders of Evelyn Greenup and Clinton Speedy. (‘the Walker evidence’) was fresh evidence, as In doing so, the Court undertook a detailed Prior to the commencement of the trials, the it was not adduced in the trials for the murder analysis of the scope of the provisions inserted trial judge ordered that the counts be tried of Clinton Speedy or Evelyn Greenup. The into CARA in 2006 which provide an excep- separately and concluded that the ‘similar applicant argued that, once that evidence tion to the principle of double jeopardy for fact’ evidence which the Crown relied on as was considered, the probative value of the ev- a person convicted of a life sentence offence connecting the two murders was not admissi- idence relating to the Speedy and Greenup of- where there is fresh and compelling evidence ble in either trial. That order was made prior fences significantly increased. He contended against the acquitted person in relation to to the introduction of the Evidence Act 1995. that the Walker evidence would establish that the offence and it is in the interests of justice The respondent was acquitted by a jury of the coincidence reasoning was permissible be- for the person to be retried. The High Court murder of Clinton Speedy, following which tween the three murders and that each of the refused an application for special leave to the Crown determined not to proceed with children was murdered by the same person, appeal. the charge of murdering Evelyn Greenup. the respondent. The applicant identified other Background A coronial inquest into the death of Evelyn categories of evidence which were said to be Greenup and the disappearance of Colleen ‘fresh’, but accepted that they would not be On 13 September 1990, Colleen Walker Walker was held in 2004. The respondent sufficient to justify setting aside the acquittals (aged 16) disappeared after attending a party was subsequently charged with the murder of if the Walker evidence was not found to be at which the respondent was present. Her re- Evelyn Greenup and was acquitted by a jury fresh. mains were never discovered, but items of her of that offence in 2006. There were two principal issues arising out clothing were found in a river. On 3 October Statutory provisions of the application, namely, whether s 105(7) 1990, Evelyn Greenup (aged 4) disappeared of CARA required the Court to consider after she attended a party with her mother Section 100(1) of CARA provides that the whether the Walker evidence was fresh and and siblings, which was also attended by the CCA may order an acquitted person to be compelling in relation to the murders of respondent. On 1 February 1991, Clinton retried for a life sentence offence if satisfied Clinton Speedy and Evelyn Greenup together Speedy (aged 16) went missing after he and that there is ‘fresh and compelling evidence or separately and whether the Walker evi- his girlfriend fell asleep in the respondent’s against the acquitted person in relation to dence was ‘fresh’ in relation to the murder of caravan after a party. The remains of Evelyn the offence’ and ‘in all the circumstances it Evelyn Greenup for the purposes of s 102(2). Greenup and Clinton Speedy were found in is in the interests of justice for the order to The CCA declined to consider whether the bushland near Bowraville in April 1991. be made’. ‘Life sentence offence’ is defined in Walker evidence was fresh in relation to the The respondent was charged with the mur- s 98(1) to mean murder or any other offence murder of Clinton Speedy as the application

The Journal of the NSW Bar Association [2019] (Winter) Bar News 23 RECENT DEVELOPMENTS

was made on the basis that the respondent be fresh evidence on the other (at [167]-[172]). The Court rejected the applicant’s construc- would be tried for the three murders together. The Court stated that this approach did tion, accepting the respondent’s argument Construction of s 105(7) of CARA not mean that s 105(7) had no work to do. that the word ‘adduced’ meant ‘tendered’ or If the Court determined that there was evi- ‘brought forward’. Therefore, evidence satis- The applicant argued that the question of dence which was ‘fresh’ in relation to one fied s 102(2)(a) only if it was not tendered in whether the evidence was ‘fresh’ in relation or more acquittals and that those offences the proceedings in which the person was ac- to each acquittal could be considered jointly. ‘should be tried on the same indictment’ for quitted and evidence satisfied s 102(2)(b) only He submitted that if the Court found that the purposes of s 105(7), then the question if it could not have been tendered or brought the offences ‘should be tried on the same of whether the evidence was ‘compelling’ forward in those proceedings with the exer- indictment’ for the purposes of s 105(7) of would be considered in the context of a future cise of reasonable diligence, irrespective of the CARA, then the evidence in respect of each joint trial of those offences. The Court noted, admissibility of the evidence at the previous offence would be ‘fresh’ in relation to each however, that it must be the evidence which trial. Accordingly, evidence that was available other, given that there had been separate trials has been found to be ‘fresh’ which must but not tendered due to a view that it was in- for the Speedy and Greenup offences and no also be ‘compelling’. It was not enough that trial for the Walker offence. In contrast, the admissible at the time would not be evidence the fresh evidence added to the body of the which falls within s 102(2)(b) (at [225]-[248]). respondent submitted that the application to evidence against the person acquitted; the quash each acquittal should be considered The Court concluded that, as the Walker fresh evidence must be compelling of itself (at evidence was available prior to the Greenup separately and on the basis that the other [173]-[176]). acquittal still stood. When the evidence in re- trial, and part of it was sought to be tendered spect of each offence was viewed separately, it ‘Fresh evidence’ at that trial, the evidence was not ‘fresh’ could not be said that the evidence was ‘fresh’. The question of whether the Walker evidence within the meaning of s 102(2) (at [256]). The CCA rejected the respondent’s con- was ‘fresh evidence’ against the respondent The Court rejected the applicant’s other struction on the ground that it gave s 105(7) turned on the proper construction of the arguments and dismissed the application. no work to do. However, the Court found word ‘adduced’ in s 102(2) of CARA. The The High Court that it did not follow that the question of applicant submitted that the term ‘adduced’ whether the evidence was ‘fresh’ in relation meant ‘admitted’, so that fresh evidence The Attorney General applied for special leave to each acquittal could be considered jointly. would extend to evidence which had not to appeal to the High Court on the basis that The applicant’s submission failed to take been admitted in the earlier proceedings and the CCA had erred in its construction of s into account that the concepts of ‘fresh’ and could not have been admitted with reasonable 102(2) of CARA. Kiefel CJ, Bell and Gageler ‘compelling’ were dealt with separately in diligence. The applicant accepted that this ap- JJ refused the application. In the Court’s oral s 102 of CARA and comprised separate ele- proach would have the effect that changes to reasons, Kiefel CJ noted that ‘when a party ments. Section 102(2) looked at the evidence the rules of evidence – such as the enactment wishes the evidence of witnesses to be taken itself and whether it was fresh in relation to of the coincidence provisions in the Evidence into account in a trial it puts that evidence particular proceedings, rather than whether Act – could result in evidence that was previ- before the Court and if the Court considers there could be a change in the use to be made ously available but inadmissible falling within it qualifies as legally admissible evidence, it of the evidence in those proceedings. Further, the meaning of ‘fresh evidence’ in s 102(2). receives or admits that evidence. There are, in s 105(7) did not go so far as to provide that He argued that, on that construction, the effect, two stages’. Her Honour observed that where it could be established that any new Walker evidence was ‘fresh’ in the Speedy the CCA had held that the word ‘adduced’ trial for the relevant offences ‘should be tried and Greenup proceedings and that the evi- in s 102(2) refers to the first stage. The Court on the same indictment’, what is found to be dence in each of those proceedings was ‘fresh’ could find no reason to doubt the correctness fresh evidence in relation to one acquittal will in relation to the other. of the decision of the CCA.

24 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

A PAPER PRESENTED AT THE ABA/NSWBA rise2018 NATIONAL CONFERENCE 15 & 16 NOVEMBER, SYDNEY The Australian Bar – Change and Future Relevance The Hon Susan Kiefel AC Chief Justice of Australia

This Conference will examine ways in which to assist the poor and oppressed and to give the legal profession can remain ‘relevant’, ‘re- counsel to those who sought it. They were silient’ and ‘respected’ in a changing society. to be truthful at all times in the conduct It will discuss the legal profession’s ability to of their profession and do nothing to the adapt to change which, of course, is a test wrong of good conscience. It was their duty of its resilience. It will discuss how to foster to ‘deal with business expeditiously and not respect for the profession and the judiciary prolong it for gain’. which is essential to the maintenance of the And they were subject to a duty, which rule of law. Whether or how the profession remains just as important today, to dissuade is able to garner that respect and the support clients from pursuing unjust causes and to of the community may answer the question advise them to abandon causes if it appeared of its continuing relevance. that they were in the wrong6. There is always the concern that a profes- The history of the Serjeants teaches us sion as old as the Bar might one day lose its many lessons. Chief among them is the relevance to society. And it may be thought respect which may be gained by a profession that future technology, including some which has an evident sense of public duty forms of artificial intelligence, may render and which demands of its members high many of the services of the Bar redundant. standards of conduct and ethics. Their his- Similar concerns have been expressed about tory also teaches us that one cannot assume the future of Courts. that things will continue as they are. In 2016 Professor Richard Susskind pre- It has been said7 that it was the destiny of dicted that the legal profession will experi- the Serjeants to decline with the Court to ence more change ‘in less than two decades’ which they belonged, the aforesaid Court of than it has ‘over the last two centuries’ and There is always the concern Common Pleas. The competition from the that traditional legal businesses will fail that a profession as old as lower ranks of barristers was also a factor. unless they are able to adapt1. A claim of The demise of the Serjeants coincided with change of this magnitude may warrant re- the Bar might one day lose the ascendancy of barristers and the new flection. There have been periods in the past office of King’s Counsel. when the Bar has been faced with challenges, its relevance to society. The end of the era of the Serjeants com- different in nature but nevertheless serious menced with another change – a change in their potential impact. in pleading practice. Cases were no longer It is as well to recall that the opening for a to be orally pleaded, which was their forté. class of laymen to practise as advocates was to have first become organised with the They were now reduced to writing. At the itself created by change. That opening was establishment of the Order of Serjeants in same time, the Serjeants lost their elite status brought about as a result of the prohibition or around the time of Edward I4. The Ser- and exclusive character, not the least, by the placed by the church in England upon clerks jeants were a small, elite society of specialist excessive number of Serjeants who came in holy orders appearing as advocates in advocates, appointed by royal warrant, who to be appointed8 (a factor which might be secular Courts2. These new advocates were appeared principally in the main common borne in mind by those responsible for the known as pleaders, along with some other law Court of that time, the Court of appointment of Silk today). titles, and were trained in law by their Inns. Common Pleas, where they had an exclusive The Inns of Court themselves fell into It was necessary for the Inns to provide legal right of appearance. something of a decline so far as concerns training to their apprentices because the de- The office of Serjeant was a public one their role in legal education. By the early grees offered by universities at Oxford and and they took an oath of office accordingly. 19th century the public teaching of English Cambridge at this time were useful only if There is evidence of the standard of profes- law had essentially come to a halt9. The uni- one intended to practise in the ecclesiastical sional conduct required of Serjeants from the versities were regarded as faculties of Roman Courts. The burgeoning profession effective- exhortations of Chief Justices to the order law, with English law only being taught as an ly trained itself. in the reign of Henry VIII5. The standard optional subject10. By the 1820s however the The legal profession, in the sense of of conduct expected of them reflected their number of lawyers in England was growing an ‘occupation professed’3 is considered public office. It was high. They were obliged rapidly no doubt in response to the Industri-

The Journal of the NSW Bar Association [2019] (Winter) Bar News 25 FEATURESPRACTICE & PROCEDURE

al Revolution and population growth which ian jurisdictions, but admissions boards It was to be expected that there would be fuelled an increasing amount of litigation11. and Courts ruled that women could not differences of views within the profession This period was to mark a critical turning be admitted to the profession on the basis about proposals for change. Some members point in the history of the legal profession. It that they were not ‘persons’ for the purpose of the profession expressed concern that was faced with a decline in the reputation of of legal practitioners’ legislation. This year increasing government regulation would lawyers amid criticism of high fees and a lack marks the centenary of the legislation intro- undermine lawyers’ independence27; while of professional competence and integrity on duced in New South Wales to remedy that others argued that it was imperative that the the part of some lawyers12. position (for which there will be appropriate profession embrace change or argue its case The profession responded by forming the celebration). Between 1903 and 1923 similar where it considers change inappropriate28. Law Society which was to advocate for im- legislation was introduced in all States. The reports and inquiries ultimately led to a provements in legal education and the stand- Another example was the problem of de- range of legislative reforms in the late 1980s ards of the legal profession13. As one author faulting solicitors. As the Great Depression to early 2000s which marked a shift away observes14, lawyers became ‘concerned took hold, a ‘spate of misappropriations of from self-regulation and towards co-regula- about the behaviour of other attorneys trust funds and other financial improprieties’ tion. Multidisciplinary practices and incor- and solicitors, believing that it inevitably porated legal practices were now permitted. reflected upon their own status and reputa- The growth of national law firms and in tion’. Reform was necessary in order for the some cases the internationalisation of large profession to remain relevant and respected. law firms together with multidisciplinary In the decades which followed, the Law practices were expected to reduce the work of Society began to provide lectures for articled The early decades of the 20th the Bar. The reality is perhaps more complex. clerks15, introduced examinations for solici- And the development of a global market tors and attorneys16 and published materials Century brought new challenges for legal services, facilitated by increasing on ethics17. It played a significant role in trade and developments in technology, has drafting the Solicitors Act of 1843, which for the Australian legal enabled some Australian lawyers to practice consolidated laws relating to solicitors and internationally29, particularly in the South established the Law Society as the regulatory profession. It did not always East Asian and European markets30. body for solicitors18. The production of reports about the legal Barristers in England also took steps meet them and reform was profession has continued unabated in recent towards reform. The Council of Legal Ed- often left to the legislature. years. They have sought to identify the ucation was formed in 1852 to regulate the drivers of change and ways in which the pro- education of barristers and mandatory bar fession might adapt to such change31. One examinations were introduced in 187219. In of the key drivers is said to be the globalisa- 1894 the Bar Council was established to reg- tion of the legal services markets. Another, ulate professional conduct and etiquette20. unsurprisingly, is technological advances. These developments influenced the legal by solicitors in the 1920s and 1930s prompt- Professor Susskind suggests that advances in profession which was developing in the ed calls for greater accountability within the areas such as artificial intelligence and ma- Australian colonies. Beginning in the 1840s, profession24. Legislation was introduced in chine learning will fundamentally change law societies were formed to promote pro- most States which required solicitors to keep the way that lawyers work32. fessional standards and public confidence in clients’ money in separate trust accounts and It may be accepted that the way in which the profession21. granted law societies disciplinary power over lawyers and the Courts work will be changed, Legislation established admission boards their members. Fidelity guarantee funds perhaps even fundamentally, by advances in to regulate the admission of lawyers. English were established. these areas. It has already started in some law was first taught at the University of Mel- The latter half of the 20th century brought legal procedures such as discovery where bourne in 1857 and later at the University calls for reform of the legal profession. They questions as to whether ‘predictive coding’ of Sydney22. Towards the end of the 19th may be seen to reflect a certain degree of should be used in cases involving large century, bar associations were established in disillusionment with the profession in an numbers of documents have been raised33. Victoria and New South Wales and by the age which was concerned with consumers (A simpler question might be whether the turn of the century the bar associations and and access to justice. In 1976 the Attorney process has real utility). law societies of the States had begun to bring General of New South Wales referred the Justice Nettle has suggested that there are disciplinary proceedings against ‘rogue’ law- New South Wales Law Reform Commission at least two aspects of legal work that are yers in the Courts23. to examine ‘the law and practice relating likely to survive the effects of computational The early decades of the 20th century to the legal profession’ and to consider law. The first is litigation involving disputed brought new challenges for the Australian whether reforms were desirable25. Over facts. He suggests that the intellectual pro- legal profession. It did not always meet them the next two decades, various reports were cesses involved in the evaluation of evidence and reform was often left to the legislature. published by law reform commissions ‘are so complex and so much informed One example was the admission of and government committees26. Common by human intuition and experience as to women to the profession. By the end of the themes were the need for reforms in relation defy synthesisation by any presently avail- first decade of the 20th Century women to complaint handling, legal education able artificial intelligence system’34. Even if had gained the right to vote in all Austral- and restrictive practices. future advances in technology make such

26 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

synthesis possible, Justice Nettle considers ENDNOTES Reform Commission of Victoria, Access to the Law: Restrictions on Legal Practice, Report No 47 (1992); Trade Practices that it is questionable whether society would 1 Richard Susskind, Tomorrow’s Lawyers: An Introduction accept the use of computers to assess oral Commission, Study of the Professions: Legal: Final Report (1994). to Your Future (2nd ed, 2017) xvii, 3. 27 See e.g., Graham Molloy, ‘The Future of the Profession: A evidence. The other aspect his Honour iden- 2 W J V Windeyer, Lectures on Legal History (2nd ed, 1957) 139. Pessimistic View’ (1985) 23 Law Society Journal 142. tified is litigation involving ‘the application 3 C T Onions et al (eds), Oxford Dictionary 28 R D Nicholson, ‘Inquiries into Legal Services in New of open-textured laws’. of English Etymology (1976) 713. South Wales and in the United Kingdom’ (1977) There is a difference, he observes, between 4 Windeyer, Lectures on Legal History (2nd ed, 1957) 139. 51 Australian Law Journal 764 at 765. the scientific reasoning employed by comput- 5 Sir John Baker, The Oxford History of the Laws of 29 S Stuart Clark, Robert Leeder and Nicholas McBride, ‘Change ers and legal reasoning: scientific reasoning England: Vol VI 1483-1558 (2003) 430. drivers and their likely effects: Shifting sands beneath Australian 6 Sir John Baker, The Oxford History of the Laws of assumes there can only ever be one proper solicitors’ (2016) 90 Australian Law Journal 413 at 417. England: Vol VI 1483-1558 (2003) 430-431. 30 Law Council of Australia, Fourth Legal and Related outcome, whereas where a law is open-tex- 7 Sir John Baker, The Oxford History of the Laws of Services Export Survey (15 December 2014) 3. tured, ‘logic and reason (as applied under England: Vol VI 1483-1558 (2003) 424. 31 See e.g. Law Society of England and Wales, The Future of the rubric of legal reasoning) will often yield 8 Baker, The Order of Serjeants at Law (1984) 111. Legal Services (2016); Canadian Bar Association, Futures: more than one possible outcome’35. 9 William Holdsworth, A History of English Transforming the Delivery of Legal Services in Canada (2014); Law, vol VI (2nd ed, 1937) 493. Law Society of New South Wales, The Future of Law and 10 Sir John Baker, Collected Papers on English Innovation in the Profession (2017); Law Society of Western Legal History, vol 1 (2013) 291. Australia, The Future of the Legal Profession (2017); American 11 Christopher Brooks and Michael Lobban, Lawyers, Litigation Bar Association, Report on the Future of Legal Services (2016). and English Society since 1450 (1998) 101-103, 184. 32 Richard Susskind, Tomorrow’s Lawyers: An Introduction In order to survive, the legal 12 Christopher Brooks and Michael Lobban, Lawyers, Litigation to Your Future (2nd ed, 2017) 10-15. and English Society since 1450 (1998) 103-104. 33 See e.g. McConnell Dowell Constructors (Aust) Pty Ltd v Santam profession, and the Bar in 13 Christopher Brooks and Michael Lobban, Lawyers, Ltd & Ors (No 1) [2016] VSC 734; Pyrrho Investments Limited Litigation and English Society since 1450 (1998) 141. v MWB Property Limited [2016] EWHC 256 (Ch). particular, may need to readjust 14 David Sugarman, ‘Bourgeois Collectivism, Professional 34 Justice Nettle, ‘Technology and the Law’ (Speech presented at Bar Power and the Boundaries of the State – The Private and Association of Queensland Annual Conference, 27 February 2016) 9. its focus to skills such as critical Public Life of the Law Society, 1825 to 1914’ (1996) 3 35 Justice Nettle, ‘Technology and the Law’ (Speech International Journal of the Legal Profession 81 at 88. presented at Bar Association of Queensland Annual thinking and persuasion that 15 Sir John Baker, Collected Papers on English Conference, 27 February 2016) 16. Legal History, vol 1 (2013) 301. cannot easily be replaced by 16 Richard Abel, The Making of the English Legal Profession 1800-1988 (1998) 156. technological innovation. 17 David Sugarman, ‘Bourgeois Collectivism, Professional Power and the Boundaries of the State – The Private and Public Life of the Law Society, 1825 to 1914’ (1996) 3 International Journal of the Legal Profession 81 at 94. 18 David Sugarman, ‘Bourgeois Collectivism, Professional In order to survive, the legal profession, Power and the Boundaries of the State – The Private and and the Bar in particular, may need to read- Public Life of the Law Society, 1825 to 1914’ (1996) 3 just its focus to skills such as critical think- International Journal of the Legal Profession 81 at 96; Edmund ing and persuasion that cannot easily be Christian, A Short History of Solicitors (1983) 217. 19 Richard Abel, The Making of the English Legal replaced by technological innovation. These Profession 1800-1988 (1998) 50. are not new skills. They are those which were 20 ’Our History’, Bar Council, available at: https://www.barcouncil. practised and honed by the early advocates. org.uk/about- us/what-is-the-bar-council/our-history/. Having skills which are marketable may 21 See e.g. ‘History of the Law Society’, Law Society of New not be enough to ensure the continuing rel- South Wales, available at: https://www.lawsociety.com. evance of the Bar. Its relevance will depend au/about-us/organisation-and- structure/history. largely upon society’s perception of it and 22 David Barker, A History of Australian Legal Education (2017) 34. what it stands for. This has always been the 23 Francesca Bartlett and Linda Haller, ‘Australia: Legal Services Regulation in Australia – Innovative Co-regulation’ in case. It is those special characteristics of a bar- Andrew Boon (ed), International Perspectives on the Regulation rister which sets the Bar apart as a profession of Lawyers and Legal Services (2017) 161 at 166. which may command the respect of society. 24 Rob McQueen, ‘Together We Fall, Divided We Stand: The Integrity, independence, and intellectual Victorian Legal Profession in Crisis 1890-1940’ in W Wesley rigour, obedience to their duty to the Courts Pue and David Sugarman (eds), Lawyers and Vampires: Cultural and a strong sense of public duty, which the Histories of Legal Professions (2003) 293 at 312-314. Serjeants understood so well; these are the 25 New South Wales Law Reform Commission, First Report on the Legal characteristics which must be maintained if Profession: General Regulation and Structure, Report No 31 (1982) 4. 26 See e.g. Clarkson Committee, Inquiry into the Future Organisation the Bar is to remain relevant. It should not of the Legal Profession in Western Australia (1983); Government be overlooked that the rule of law, which is of South Australia, White Paper: The Legal Profession (1992); essential to our society, depends in large part Law Reform Commission of Victoria, Access to the Law: on the existence of a strong Bar. Accountability of the Legal Profession, Report No 48 (1992); Law

The Journal of the NSW Bar Association [2019] (Winter) Bar News 27 FEATURESPRACTICE & PROCEDURE

A PAPER PRESENTED AT THE ABA/NSWBA rise2018 NATIONAL CONFERENCE 15 & 16 NOVEMBER, SYDNEY The role of the commercial bar in the mid-21st century The Hon T F Bathurst, Chief justice of New South Wales

The bar of the late twentieth century would Law Council of Australia.7 Over the course look very odd to a reader in 2018. Briefs of 1500 pages, it provides a review of the delivered in folders were unheard of, trolleys national state of access to justice, with some were only for shopping and phones were an 59 recommendations. It adds to the large enormous contraption attached to a desk. existing body of literature evidencing that a The next ten years saw the emergence of the significant proportion of Australians simply trolley, and a somewhat more remarkable do not enjoy equal justice. invention called the facsimile machine. In the author’s opinion, there are there- This was soon followed by email, smart- fore two catalysts for change: continued phones and the availability and acceptance pressure from clients to contain costs and of the essentiality of online research. The pressure on governments to make the civil manner in which a barrister conducted justice system more accessible. One response his or her practice changed significantly might be that these two pressures have over the course of this time. always existed. What has changed is the In another 50 years, it is doubtful the bar capacity of technology. It is not a panacea will bear much resemblance to its present for all problems, but if experience from other appearance. Advocates tend to be the most professions is any guide, it would be unwise adamant of all lawyers that their practices to dismiss it entirely. are insulated from the forces of technolog- It is in this context that this paper con- ical and societal change. There are a few siders the role of the commercial bar in the reasons to believe this is not the case. The In terms of economics, while many in the fast approaching mid-21st century. This first is simply that because some practition- profession have assumed that things would analysis is undertaken in full awareness of ers do not foresee dramatic change does not return to the business as usual of the early the folly of prediction; in retrospect correct mean it will not happen. The technological 2000s, the nature of the legal market is ar- predictions look predictable and incorrect 4 revolutions that have swept other indus- guably different: it is a buyers’ market. The ones are laughable. Or, as Niels Bohr said: tries were probably unforeseeable to those expectation that external firms and counsel ‘prediction is very difficult, especially about on the brink of it. will ‘do more for less’ is not waning, and the future’.8 On the other hand, as Wayne In any event, the bar is not just comprised there is little to no commercial appetite for Gretzky, the ice hockey player famously 5 of people who will only be around for the old-school inefficiencies. advised, you ‘skate where the puck’s going, foreseeable future. Of the 2409 barristers in While there has been a clear cyclical not where it’s been’.9 downturn in the legal market associated New South Wales, 600 or around 25% are Building relationships and reputations within five years of call and nearly 500, or with economic conditions, a structural around 20% are in their thirties or younger.1 downturn associated with technology has What does it mean for a barrister to be op- Assuming this generation works until their also been at play. Much like many other erating in a buyers’ market? In a tightening sixties, at least, is it really conceivable that in white-collar industries, basic tasks have been legal market, relationships will be important. 30 years’ time – say in 2050 – practice at the replaced by computation, automation and In addition, the bar will come to be relied on bar is going to involve wigs, wood-panelled soft artificial intelligence.6 It is inconceivable more to recommend solutions to problems Courtrooms, trolleys stacked to precarious that technology will transform every other rather than legal opinions on discrete issues. heights, and arcane legal jargon?.2 The exist- profession but somehow the legal system and This will firstly require barristers to have ing Court system is, on one view, an antiqui- the Courts will carry on as normal. a greater commercial understanding of cli- ty, ever-evolving but not really radically dif- The final contributing factor is the per- ent’s needs than before. This provides both ferent from its existence in the 19th century.3 nicious problem of access to justice. It is challenges but also a real opportunity. In While high-value and very complex work simply the case that too many people do the disrupted legal world, counsel will have will likely continue in the conventional not have adequate advice or representation. more direct interaction with the client, more manner for some time, not all barristers are The problem is chronic and regularly dis- direct contact with corporate counsel and engaged all the time in this type of work. sected in the continuous stream of reports more pressure to provide a holistic solution. Outside this niche are foreseeable and im- and inquiries into unmet legal need. The Indeed, it is not unimaginable that in the minent changes, catalysed by both economic most recent iteration is the ‘Justice Project’ case of commercial work, the traditional and structural factors. report, which was released in August by the divide between barristers and solicitors will

28 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

be blurred, both as to the work they do and prerequisites in a technological age.15 overlords anytime soon.20 Work that is rou- their relationship with clients. The structural changes wrought by tine and repetitive is far more susceptible to It will also require a wider range of softer technology on the solicitor’s branch of the the forces of automation and systemisation skills than was previously necessary.10 A fine profession have been well documented, and than that which is bespoke or unique. It is of legal mind may not suffice to the extent it include things like document automation, some comfort that Professor Richard Suss- has in the past.11 Barristers will need a great- online legal guidance relying on systems kind, who has been predicting the demise er familiarity with clients’ business environ- rather than humans, open-sourcing of of lawyers for some time now,21 states that ments and a clear understanding of what it is legal information and document analy- ‘it is not at all obvious how the efforts and like to work in the particular industry. This sis systems that are able to outperform expertise of the Courtroom lawyer might be in turn requires the skill of empathy, and the humans in document review.16 standardized or computerized’.22 capacity for listening.12 The fact is, however, that Courtroom Clients have long been sceptical of de- lawyering will change when the Courtroom tailed learned advices, they want counsel’s itself changes. This is already happening in views. No-one likes an eleven-page advice, areas such as case management. The tradi- five pages learnedly saying why a particular tional in-person arrangements are time and proposition is correct, five pages saying No-one likes an eleven-page administration intensive. In an average week why it is not, with the eleventh page blank. in the NSW Supreme Court, the relevant However, the future will involve more than advice, five pages learnedly saying registrar will oversee 107 directions hearings simply providing views on particular legal in the Equity List, 39 in the Corporations topics. Barristers will be expected to formu- why a particular proposition is List, 169 in the Common Law Lists, 26 in late views as to what is feasibly to be achieved the Court of Appeal List, and 117 in the by litigation or another form of dispute correct, five pages saying why it is Court of Criminal Appeal and bails lists. For resolution, and in doing so, provide holistic each of these hearings, physical attendance is solutions that meet the needs of the client. not, with the eleventh page blank. ordinarily required of practitioners for each The bar may also see the emergence of represented party, as well as self-represented more advanced online reputation systems. litigants, creating a substantial inconven- It is trite that a barrister’s practice depends ience and cost for matters which are typical- largely on reputation. Plenty of these sys- ly uncontroversial. tems of course already exist, such as Doyle’s In 2018 the Court trialled an online Court Guide, Chambers & Partners and the AFR system in the Corporations Registrar’s List, guide. However, with due respect to their Emerging technology includes legal which has proved quite successful. In the respective publishers, they are probably an ‘question answering’ systems, a widely month of March, the Registrar recorded early incarnation of what is possible, which cited example being that based on IBM’s 104 directions in the online Court. The might include clients sharing views on per- Watson, which was built to compete on relevant parties were relieved of the need formance, outcomes and pricing.13 These the quiz show Jeopardy. In 2011 it beat the to appear physically in the registrar’s Court might be connected in with technology two best ever human competitors. On the for the determination of orders by consent similar to the recently launched ‘Barristers cusp of facing defeat, Jennings, the 74-time or non-complex timetabling orders, or to Select’ website, which may again be an early consecutive Jeopardy champion wrote on his obtain a referral to the Corporations List incarnation of the future of briefing. video screen: ‘I, for one, welcome our new judge as the matter was ready for case man- 17 The impact of technology computer overlords’. agement or hearing. Powered by the Watson technology is None of these 104 directions required These changes are inextricably linked to ‘Ross’, which performs legal research in a the use of a physical Courtroom, needed the broader impact of technology. It has manner approximating the experience of to occur at a particular time, or required obviously already infiltrated every aspect of working with a human lawyer – i.e., it can parties to spend significant time waiting litigious work. E-filing, ediscovery, real time respond to questions in natural language.18 for their matter to be called from the list. A transcription services, electronic Court- Importantly, and despite all the hype, its substantial amount of time was likely saved rooms, the use of video links for witnesses developers don’t claim it can replace the without compromising the quality of the and the use of devices on the bench and at human, just make them more efficient and communication between the parties and the the bar table are now a matter of course. more accurate. The common objection is registrar, or the case management process. Nevertheless, the fundamental work styles that for all the talk about artificial intelli- Further efficiencies will soon be created by and orientations of the bar have not yet un- gence replacing lawyers, the threat is yet to transitioning most matters into the online dergone radical transformation. materialise. Amara’s law, however, comes to Court system and expanding the types of The bar and the Courts are regularly sub- mind: that we tend to overestimate the effect orders that can be made. jected to pejorative descriptions like old-fash- of technology in the short run and underes- This will impact on junior barristers’ ioned, elitist or anachronistic.14 However, timate its effect in the long run.19 work. There is no doubt that barristers will the bar is better placed to adapt than the For the most part, however, the work of be less likely to be briefed to do matters such general profession, by the very nature of its the oral advocate is not easily replaceable by as consent adjournments and the like, par- practice. It has flexibility, and the absence of technological innovation, and barristers will ticularly when working with solicitors previ- a bureaucratic structure, which are essential probably not be welcoming their ‘i-Advocate’ ously disadvantaged by physical proximity,

The Journal of the NSW Bar Association [2019] (Winter) Bar News 29 FEATURESPRACTICE & PROCEDURE

such as country or suburban solicitors. On going at the time of writing, involves over very difficult if not impossible for individu- the other hand, it will not necessarily elimi- 50 separate projects. The crime program is als and small businesses to presently obtain nate counsel’s involvement in more complex developing a common platform for securely advice or representation. If it be the case, online matters, particularly if the barrister sharing information on a single system and however, that resolution in an online Court concerned actually has the best appreciation summary ‘nonimprisonable’ offences will be keeps costs down without sacrificing proper of the case and the client’s needs. taken out of the Courtroom and heard on consideration of the relevant facts and law, Beyond case-management, however, lie the basis of a file. In serious cases plea indi- why wouldn’t corporate clients push for proposals for proceedings conducted entire- cations will be done online and judges and the resolution of their matters without the ly online. It is instructive to consider some magistrates will be able to conduct remand expense of a traditional hearing? of the reforms undertaken in the United Physical appearances in Court might start Kingdom as a guide to potential future to become a rarity, with perhaps more vir- directions in this country. tual appearances. This will require new and In September 2016 the Lord Chancellor, different types of advocacy skills to those Lord Chief Justice, and Senior President of It may be that there are traditionally held. The other major oppor- Tribunals released a ‘joint vision statement’ tunity of technology is the ability to move announcing a £1 billion transformation of disadvantages that arise from to a much more iterative process, where the justice system23 to make it ‘digital by de- appellant, respondent and judge can iterate fault’. 24 The announcement came in the wake moving away from traditional and comment on the progress of a case as it of Lord Justice Briggs’ report in 2016 on the oral hearings in a physical develops rather than waiting until everyone structure of the Civil Courts,25 which found, is in one room to discover that some criti- in his words, that while ‘the Civil Courts of place, but these have to be cal procedural step or piece of evidence is England and Wales are among the most missing. This will impose a greater burden highly regarded in the world’, their ‘single, weighed against the realities of on the judge and shift the system more most pervasive and indeed shocking weak- generally towards an inquisitorial rather ness’ is that they ‘fail to provide reasonable the current civil justice system, than adversarial style.32 access to justice for the ordinary individuals In terms of appellate advocacy, unlike the or small businesses with small or moderate not an idealised version of it. US Supreme Court, it is unlikely at least in value claims.’26 This is certainly a problem the near future, that stringent time limits will which exists in Courts of this country. be imposed in appeals, such as ten minutes To address this ‘missing middle’, it rec- for oral argument. However, there will be far ommended a three-tiered online Court, greater emphasis on written material and an initially for claims up to £25, 000. It would hearings remotely. In the civil, family and increasing expectation that counsel confine involve an automated ‘triage’ stage including tribunal program, the plan is to unite all the themselves to propositions based on that advice to help claimants articulate their administrative and judicial procedural steps material with the bulk of the oral argument cases, exchanges between claimants and on one digital platform with a single access involving dealing with questions arising out defendant and the preparation of the claim portal, with automated triage and more fre- of the Court’s reading of that material. form and particulars of claim. The second quent use of ADR. That probably throws up two challenges: stage would be an ADR stage, involving There will be less use of physical build- first, and fundamentally, it must be recog- telephone, online or face-to-face mediation ings, with sales generating income required nised that written advocacy will be as vital or early neutral evaluation, and finally, for for investment elsewhere, as video hearings and indeed in some cases more important those cases still not settled, a determination reduce Courtroom needs. A digital tool will than the oral presentation. Second, even stage which could comprise a conventional automate aspects of scheduling and listing greater flexibility than now will be required hearing, or a telephone or video hearing. It and Courts and tribunal ‘service centres’ will in oral advocacy. A hearing which is designed could also be legal determination without be created as centralised locations for con- to elucidate particular problems judges see in a hearing. The essential concept was a new, tact and case administration.30 Funding was submissions will not be very comfortable for more investigative Court, designed for navi- allocated to these reforms on the expectation the ‘plodding barrister’, i.e., a barrister who gation without lawyers.27 that the Courts would make long-term confines him or herself to carefully reading In a very real sense it represents a departure spending reductions, from fewer physical some prepared script without any apprecia- from the adversarial litigation system which hearings and fewer physical buildings to tion of where that script might have flaws. has always been a feature of the common maintain. Court staff numbers are also to be In considering the response of the bar law. Briggs’ proposal also incorporated as- reduced from 16, 500 to around 10, 000.31 to these changes, it is important to keep in pects of the Canadian Civil Resolution Tri- Returning however to this country, the mind the drawbacks of the present system, bunal,28 which was launched in 2016 as that question arises as to what a ‘digital by de- which too often excludes litigants with cred- country’s first entirely online tribunal. The fault’ reform agenda look like for the com- ible claims. It may be that there are disad- CRT resolves small claims disputes and is a mercial bar? On the one hand it might be vantages that arise from moving away from graduated process of fully integrated ADR said that this won’t affect barristers’ practices traditional oral hearings in a physical place, going from negotiation, to facilitation, to an at their core all that much. The real justice but these have to be weighed against the re- online determinative process.29 gap that these reforms aim to plug relate to alities of the current civil justice system, not The resulting reform plan, which is on- low value civil claims, for which it is plainly an idealised version of it.33

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In that context it is also important to whole or part of matters, is worth the cost. It recommend solutions appropriate to the par- keep in mind what clients actually want. goes without saying that it will not be worth- ticular dispute and client, whether that be In 2010, Ebay commissioned a study to while where the costs exceed the amount traditional mediation, arbitration or ODR. evaluate its online dispute resolutions sys- of the claim, particularly where these new Regulatory Practice tems, which handle 60 million disputes per models make no provision for costs orders in year. It randomly assigned several hundred favour of the successful parties. Finally, it is important to consider the thousand users to two groups and compared Traditional ADR will also continue to be changing substantive nature of commercial their buying and selling behaviour for three affected by ‘ODR’, or online dispute resolu- practice. It is likely to involve an increasing months before and after their experience tion, with tools such as AI-based diagnostic amount of regulatory proceedings, given with the dispute resolution system. The the views expressed in the Final Report hypothesis was that those who ‘won’ the dis- of the Banking Royal Commission.40 In pute would engage in greater activity while his chapter on regulation and regulators, those who ‘lost’ would engage in less. This Commissioner Hayne notes that tradition- did occur, but more significantly, it found Traditional ADR will also ally ASIC’s starting point has been: how can that the only buyers who decreased their this be resolved by agreement? His view is activity post-dispute were those for whom continue to be affected by ‘ODR’, that this ‘cannot be the starting point for a the process took a long time: more than six conduct regulator’ and rather, the regulator weeks. Buyers preferred to lose their case or online dispute resolution, with should first ask whether it can make a case quickly than have the resolution process go tools such as AI-based diagnostic for breach and if it can, ‘why it would not be on for an extended period of time.34 It serves in the public interest to bring proceedings to as a reminder of the importance of evaluat- programs that can make forecasts penalise the breach’.41 ing what is vital about the civil justice system In the Final Report, the Commissioner from the perspective of the public, whose about likely outcomes or suggest noted that ASIC had submitted a response interests it exists to serve. to these views, which had previously been optimised settlement options Alternative Dispute Resolution expressed in the earlier Interim Report. The response stated that ASIC would do three If reforms like the United Kingdom ones based on party preferences. things.42 First, accelerate its enforcement are adopted, there will be greater emphasis activities and its capacity to pursue actions on mandatory ADR as part of an iterative for serious misconduct through greater use online Court process. The UK reforms take of external expertise and resources. Second, the linking of ADR with judicial adjudica- move more quickly to, and accordingly, con- tion one step further than Court-annexation programs that can make forecasts about likely duct more, civil and criminal Court actions or Court-referral has done in the past. It in- outcomes or suggest optimised settlement against larger financial institutions. Third, it stead blurs the boundaries between the two options based on party preferences.37 Evi- accepts that the proper starting point is for processes, merging them into one convenient dently this will require the bar to be familiar it to ask the question ‘why not litigate’, and online package. The Master of the Rolls, Sir with emerging technology, have the capacity turn its mind to whether enforcement tools Terrence Etherton has stated there is a ‘fun- to know its limits, and to handle the disputes should be deployed in response to each and damental’ difference in the new online pro- that will inevitably arise out of its use. There every contravention of the law.43 cess, as while the old approach ‘encourages’ will be opportunities here for practitioners to This has consequences for commercial ADR processes the online Court ‘embeds use these systems to the advantage of their practice. First, ASIC’s evinced intention to them into the pre-trial process for the first clients by developing the skills and methods pursue Court action more often will obvi- time, and requires the Court actively to fa- necessary to participate as an advocate, per- ously generate more work, both on behalf of cilitate them’.35 Lord Justice Briggs described haps in e-mediation or e-negotiations. regulators and for corporations. Secondly, it as ‘designed to take the A out of ADR’.36 It is also helpful to remember that online it may be that the nature of regulatory It must be recognised that whether future ADR is not simply the offline versions practice alters in some ways. In the Report, reforms adopt the model advocated by Lord moved online.38 A process using technology commenting on whether the law should be Justice Briggs, the Canadian model, or some may be different in nature to its original changed, Commissioner Hayne noted that alternative, there will be pressure to reduce form. That this is true is evident in the ‘basic norms of behaviour’ must inform the costs in respect of smaller claims by eliminat- simple fact that many of the ‘values’ of ADR conduct of financial services entities, being: ing or minimising the role of lawyers in the touted as significant in the 1970s and 1980s ‘obey the law; do not mislead or deceive; act dispute resolution process. That means it is like face-to face resolution, individualised fairly; provide services that are fit for pur- increasingly important in this area and other processes and confidentiality of data are not pose; deliver services with reasonable care areas of ADR for barristers to show that they present in their online counterparts, which and skill; and when acting for another, act can really add value to the process. If these are conducted remotely, use standardised in the best interests of that other’.44 In his processes make non-lawyer dispute resolu- systems and collect data.39 earlier Interim Report, he had commented tion a real alternative to resolving disputes In the short term the pressure of ‘more- that ‘these ideas are very simple’ and in his with or through lawyers, then it will be up for-less’ will mean ADR and ODR continue view their simplicity pointed ‘firmly towards to lawyers, including barristers, to show that to grow in importance. It will be important a need to simplify the existing law rather the expense of retaining them either for the for the bar to develop the skills necessary to than add some new layer of regulation’.45

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It seems to be his view that the more com- involved very little quantitative evaluation. Soft Law plicated the laws, the more they are seen as ‘a The scope of a lawyer’s ability to answer series of hurdles to be jumped or compliance these questions is currently limited by lived The other area that will become increasingly boxes to be ticked’,46 and that in doing so experience and their capacity to research important to commercial practice is for it becomes easier to in fact develop cultures past events. Quantitative legal prediction barristers to have a firm grasp of the relevant that are unfavourable to compliance.47 What can draw from trends of thousands to mil- corporate soft law, and the ability to advise may therefore emerge is a move towards lions of prior events, which combined with on what it means for corporate practice. This open-ended unifying principles in this area human reasoning will offer more accurate is particularly so in relation to corporations of regulation, such as unconscionability and predictions than either operating alone.56 Of and particularly directors’ duties. unfairness. For example, in the Royal Commission In- This raises the question of the proper terim Report, the Commissioner had made balance between rules-based and prin- mention of the Banking Code of Conduct. ciples-based regulation, and between He commented that ‘significant instances of certainty and flexibility. On the one hand, It seems increasingly likely that conduct identified and criticised’ were not compliant with the banking industry code prescriptive rules provide greater clarity, either what have traditionally rendering it easier for a regulated entity to of practice as it stood at the relevant time. However, given that a contravention of the determine what rules it must comply with. been soft law principles will Julia Black, a key proponent of principles Banking Code, although a breach of con- based regulation, conversely states that be translated into hard legal tract, is not a breach of the law, it is enforce- they are prone to gaps and rigidity, and able only at the behest of aggrieved custom- therefore, ‘creative compliance’.48 obligations under a principles- ers, at a point at which they will generally Principles-based regulation is demanding not have the means or the will to ‘take on the 57 when it comes to the judicial task of inter- based approach, or that existing battle’. In the Final Report, Commissioner Hayne recommended that industry codes of preting quite general or ‘rubbery’ standards. soft law obligations, which still The risk is that the question of whether conduct such as the Banking Code include ‘enforceable code provisions’, which are pro- certain conduct is unconscionable or unfair serve important regulatory becomes an idiosyncratic determination of visions in respect of which a contravention 58 justice in a particular case: unconscionabil- functions, will expand in scope. will constitute a breach of the law,. ity or unfairness in the eye of the beholder.49 Another significant source of soft law is On the other hand, as Lord Wilberforce the ASX Corporate Governance Principles recognised in Photo Productions Ltd v Securi- and Recommendations, which state, e.g., cor Ltd, consumer protection legislation can that listed entities should act ‘ethically and reduce the amount of bad law emerging from course, incorporating these tools into legal responsibly’.59 In May 2018, the Council hard cases in which judges strain contractual practice assumes that there are lawyers out released the consultation draft for the fourth language to avoid harsh consequences.50 there who can actually do mathematics. It edition of the principles and recommenda- A major drawback of principles based might be the greatest challenge yet. tions, which it described as ‘anticipating regulation has generally been the perceived Relatedly, another emerging trend will be and responding to’ some of the recent absence of precision, certainty and predict- the need for commercial practitioners to have governance issues.60 The key change was a ability. The possibilities of technology may a greater understanding of the methods and substantial redraft of Principle 3 to address start to ameliorate these pitfalls. The ability principles of public law. This paper does not corporate culture and the inclusion of this of technology using Big Data to detect pat- propose to delve into the normative debates concept of a ‘social licence to operate’ by terns and correlations has proven more capa- on the public/private divide. However, it requiring a listed entity to act ‘in a socially ble than predictions of lawyers engaged in goes without saying that one of the increas- responsible manner’. It stated that preserving traditional legal research.51 Professor Daniel ing opportunities for commercial lawyers this social licence required that the board Katz, in the United States context, has de- will be to advise their clients on the navi- ‘must have regard to the views and interests veloped an algorithm which was able to cor- gation of complex regulatory requirements of a broader range of stakeholders than rectly predict results in 70.2% of the 28,000 and in appropriate cases the means by which just the entity’s security holders’, including decisions US Supreme Court decisions, as they can be challenged. There remains a sug- employees, customers, suppliers, regulators compared to 66% human expert accuracy.52 gested dichotomy between what is generally and the local community. Much of legal work traditionally has in- described as the commercial bar and the ad- The submissions in response on the whole volved only qualitative predictive methods.53 ministrative, or public law, bar. To the extent were to the effect that the proposed change It is probably one of the ‘remaining outposts the dichotomy exists, it is not the interests was undesirable. The Business Law Section of the corporate world’ whose operations are of commercial lawyers to abandon the field, of the Law Council, e.g., has said that the ‘dictated mainly by human experience’.54 nor is it in the interests of their clients. The concept of the social licence to operate was Prediction is a core component of the experience gained in the commercial arena ‘too vague and uncertain to serve as the guidance that lawyers offer – think of ques- will provide commercial lawyers with an touchstone for an important piece of regu- tions as simple as ‘do I have a case’, ‘what understanding of the challenges to corpora- latory policy’. 61 It was also decried as incon- is our likely exposure and ‘how much is tions arising from regulation and how best sistent with the fundamental principle that this going to cost’.55 but until recently has to deal with them. directors owe their duties to the company

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and not to any other persons.62 9 Quoted in Susskind, above n 2, xxi. 43 Ibid 6-7. The final version of the fourth edition was 10 Ibid 75. 44 Financial Services Royal Commission, Final Report, above n 40, 376. released in February 2019, with a response in- 11 Ibid 75. 45 Financial Services Royal Commission, Interim Report 290. 13 Ibid 47. 46 Ibid 162. the consultation draft. It noted the strong 14 Ibid 12. 47 Ibid 291. objections to the inclusion of a reference to a 15 See TF Bathurst, ‘iAdvocate v Rumpole: Who will survive? An analysis 48 Julia Black, Principles Based Regulation: Risks, Challenges and Opportunities listed entity acting ‘in a socially responsible of advocates ongoing relevance in the age of technology’ (2015) 40 (2007) London School of Economics and Political Science, 7. 63 manner’, and this phrase was removed from Australian Bar Review 185, 192. 49 See Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15, the final version.64 However, it is telling that 16 See generally Susskind above n 2, 43-55 [196] changes of this nature were even proposed 17 Quoted in Katz above n 6, 926. 50 [1980] UKHL 2; [1980] AC 827 cited in A M Gleeson, ‘Advocate, in the first place. It seems increasingly likely 18 See IBM, ‘Ross and Watson tackle the law’ . Bar News 37, 43. law principles will be translated into hard 19 Coined by Roy Amara, former head of the Institute for the Future at 51 Susskind, above n 2, 53-4. 52 Daniel Martin Katz, Michael J Bommarito II and Josh Blackman, ‘A legal obligations under a principles-based Stanford University. 20 See Bathurst, above n 15. general approach for predicting the behaviour of the Supreme Court of approach, or that existing soft law obliga- 21 See Susskind, above n 2; Susskind above n 4. the United States’ (2017) 12 Plos One . functions, will expand in scope. 23 Lord Chancellor, the Lord Chief Justice and the Senior President of 53 Susskind, above n 2,53-4. Either way, there will be opportunities for Tribunals, ‘Transforming Our Justice System’ (Joint Vision Statement, 54 Katz, above n 6 quoting Farhad Manjoo, ‘Will Robots Steal Your commercial advocates. There will always be September 2016) . html> tions. In addition, there will be increasing 24 See Dame Hazel Genn, ‘Online Courts and the Future of Justice’ 55 Katz, above n 6, 912. (Birkenhead Lecture 2017, delivered at Gray’s Inn, 16 October 2017) 3. 56 Ibid 929. opportunities to cast an independent view 57 Financial Services Royal Commission, Interim Report, above n 45, 291-2. over a corporation’s activities to see whether 25 Michael Briggs, ‘Civil Courts Structure: Interim Report’ (December 2015) and Michael Briggs, ‘Civil Courts 59 ASX Corporate Governance Council, Corporate Governance Principles Conclusion Structure Review: Final Report’ (January 2016) . edn.pdf>. tainties. The first is challenging, the second 26 Briggs, ‘Final Report’, above n 25, 28. 60 ASX Corporate Governance Council, Proposed Fourth Edition of the comforting. First, the bar will have to be 27 Ibid 36. Corporate Governance Principles and Recommendations (2 May 2018) ready to adapt to a changed technological 28 Ibid 44. . and commercial environment for their prac- 61 Law Council of Australia Business Law Section, ‘Submission on tices to thrive. Second, just as you can’t have civilresolutionbc.ca/how-the-crt-works/>. 30 See generally Joshua Rozenberg, ‘The Reform Projects’ . documents/regulation/law-council-of-australia-business-law-section.pdf>. 31 Ibid ‘HMCTS Reform’. 62 See, e.g., King & Wood Mallesons, ‘Submission on the proposed fourth I express my thanks to Ms Naomi Wootton for 32 See generally Genn, above n 24. edition of the Corporate Governance Principles and Recommendations’ (27 July 2018) . 34 See Ethan Katsh and Colin Rule, ‘What we know and need to know 63 ASX Corporate Governance Council, Fourth Edition of the Corporate Governance Principles and Recommendations: Consultation Response (27 ENDNOTES about Online Dispute Resolution’ (2016) 67 South Carolina Law Review 329, 334-5. February 2019) 9. the-bar-association/statistics>. Memorial Lecture, 14 June 2017), 9-10. 64 ASX Corporate Governance Council, Corporate Governance Principles 2 See Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future 36 Michael Briggs, ‘The Online Solutions Court: affordable and Recommendations (4th ed, 2019) 16. practice?’ (2016) 41 Australian Bar Review 246. wp-content/uploads/2016/10/Lord-Justice-Briggs-JUSTICE-lecture- 4 Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Oct-2016.pdf> 10. Services (Oxford University Press, 2010) 270. 37 See Susskind, above n 2, 116. 5 Susskind, above n 2, 88. 38 See Katsh and Rule, above n 34, 330. 6 Daniel Martin Katz, ‘Quantitative Legal Prediction – Or – How I 39 Ibid. See also Robert J Condlin, ‘Online Dispute Resolution: Stinky, learned to stop worrying and start preparing for the data-driven future of Repugnant or Drab’ (2017) 18 Cardozo Journal of Conflict Resolution the legal services industry’ (2013) 62 Emory Law Journal 909, 910. 717, 751-3. 7 Law Council of Australia, The Justice Project: Final Report (Report, August 40 Financial Services Royal Commission, Final Report . financialservices.royalcommission.gov.au/Pages/reports.aspx>. 8 See generally TF Bathurst, ‘The Folly of Prediction’ (Speech delivered at 41 Ibid, Vol 1, 424. the Opening of Law Term Dinner, Sydney, 30 January 2013) Documents/interim-report-submissions/POL.9100.0001.1060.pdf>; see 1-2. also Financial Services Royal Commission, above n 40, 425–6.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 33 FEATURESPRACTICE & PROCEDURE

A PAPER PRESENTED AT THE ABA/NSWBA rise2018 NATIONAL CONFERENCE 15 & 16 NOVEMBER, SYDNEY The future of the independent Bar in Australia By Chief Justice James Allsop AO

I propose to discuss aspects of the Bar at importance as the democratic process.3 Jus- the present time as a basis for discussing tice Gaudron expressed the importance of the future. The future, with all its possible the judicial process to the nature of judicial changes, should still be seen as rooted in power and the resolution of controversies some immutable considerations. fairly, in the maintenance of an open, free This speech will commence by reflecting and just society. The judicial process and upon the place of the independent profession, its features can be seen as explained in nu- and in particular the Bar. The independence merous cases, especially by Gaudron J.4 One of the judiciary and the judicature is prem- clear expression of the matter by her Honour ised on an independent profession, and, in is in Nicholas v The Queen:5 particular, the Bar, in the administration of justice. This requires some comments …the right of a party to meet the on the Rule of Law. case made against him or her, the The independence of both Bench and independent determination of the profession (and so, Bar) is an underpinning matter in controversy by application foundation of the Rule of Law. That is, in of the law to facts determined in part, because the Rule of Law is a state of accordance with rules and procedures affairs involving a spirit of liberty and free- which truly permit the facts to be dom that lives within a framework that has ascertained and, in the case of criminal a constituent element of the subservience of proceedings, the determination of guilt all power to the law of the polity. The Rule of or innocence by means of a fair trial Law in this conception sees law not merely according to law. It means, moreover, that a Court cannot be required or as the rules to be set by the powerful. It is The Rule of Law is the a conception of legitimate representative authorised to proceed in any manner and organised power, reflecting democratic irreducible character of which involves an abuse of process, which would render its proceedings and social values that make subjection to judicial power that cannot the Rule of Law an aspect of civil society’s inefficacious, or which brings or tends protection of the individual, not an aspect of be exercised, or required to bring the administration of justice domination by the powerful. into disrepute. At the core of this conception of the to be exercised, other than One sees in this articulation a strong Rule of Law is the irreducible character of fairly, equally and justly.1 structure of rule and principle, but weaving judicial power that cannot be exercised, or in values and their indefinable texture, to required to be exercised, other than fairly, create the strength of a whole conception 1 rooted in fairness, dignity and equal treat- equally and justly. early resolution with only issues genuinely in In an adversarial system, the protection ment before and by the law, in its practical dispute being ventilated. of the citizen against the exercise of public and real life application. Without independ- The place of the profession, and especially or private power depends on the skilled and ent representation informed by the fiduciary the Bar, as officers of the Court, and the faithful propounding of the rights of the principle and the duty to the Court the client, in a framework of an ultimate and relational duty and respect created by that protective judicial power is stunted. So, overarching duty to the Court as the instru- position, can be seen at admission ceremo- the profession, and so the independent Bar, ment and embodiment of judicial power and nies. You should attend one every now and forms an integral part of the judicial process justice. One sees this in the very acts of day- again. The ceremony will remind you of the and so judicial power. to-day practice – in the reliance of the Bench living nature of that relationship of Bench What is the independence of which I upon the Bar for skilled and scholarly advo- and profession. speak? I cannot be exhaustive. I wish to cacy; for the advocacy to be the product of The importance of the Bar comes from its explore the notion. There are some obvious the application of the duty not to propound place in the judicial process. In Re Nolan,2 considerations. For both Bar and Bench, it meritless points; and for behaviour of the Gaudron J referred to the judicial process involves the financial independence not to highest standards in bringing disputes to an as partaking of the same fundamental be beholden to a master who will control or

34 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

influence independent judgment. For both, of money alone. Money is the most uphold the fundamentals of independence, it also involves skill, expertise and scholar- immediate form, and is a proper object skill, scholarship, fiduciary service, and the ship, which permit and foster the confident of desire. ‘The fortune,’ said Rachel, ‘is duty to the Court. This is strengthened if independence of mind necessary for the dif- the measure of the intelligence.’ That is there is a strong notion of the collegiality ficult tasks involved. For any institution of a good text to wake people out of a fool’s of chambers, not as commercial enterprises, skill, integrity and independence, one of the paradise. But, as Hegel says, ‘It is in the but as mutually supportive individuals. greatest challenges to its independence is the end not the appetite, but the opinion, There are fundamental values underlying entry into, or appointment to, its ranks of which has to be satisfied.’ To an the notion of the independence of the Bar. less than qualified and less than competent imagination of any scope the most far- Independence of mind is one of those values. people. Independence can be undermined Yet independence of mind does not mean by incompetence as much as by venality. being dogmatic. It involves the mind in its The notion of the independence of the widest sense. It involves being human and Bar requires a constant appreciation that it recognising the human elements at play in is a profession not a business. The difference a dispute. It involves recognition and ap- is impossible to define; but the distinction To an imagination of any preciation of the whole. It involves bringing arises in everyday activity. There is, how- wisdom to resolution of the dispute. It in- ever, a difference, not hard to recognise scope the most far-reaching volves wisdom in presentation of the case. It upon granular examination. At the risk of involves integrity, respect and civility. These over-simplification, the profession of law form of power is not money, involve and comprise decent human behav- is marked by scholarship, a service to the iour. They involve insight into one’s self. public, and the daily recognition that the it is the command of ideas. The dispute is not about you. The case is not professional is bound, in everything he or about you. Independence (and the degree of she does, to or for his or her client by the abstraction within it) involves the recogni- fiduciary duty so compellingly encapsulated tion of the significance of the dispute to the by Cardozo CJ ninety years ago:6 lives of the humans involved. Every advocate (and every judge) should be conscious that A trustee is held to something stricter reaching form of power is not money, what might seem a routine or banal case than the morals of the market place. it is the command of ideas. … Read may represent the most significant and po- Not honesty alone, but the punctilio of the works of the great German jurists tentially catastrophic event in the lives of the an honor the most sensitive, is then the and see how much more the world people involved. The judicial process ought standard of behaviour. As to this there is governed to-day by Kant than by impress this upon one on a daily basis. has developed a tradition i.e., unbending Bonaparte. We cannot all be Descartes The next reflection on the present concerns and inveterate. Uncompromising or Kant, but we all want happiness. Australia’s significant diversity, brought by rigidity has been the attitude of Courts And happiness, I am sure from having reason of the realities of a Continental fed- of equity when petitioned to undermine known many successful men, cannot be eration, and particular State and Territory the rule of undivided loyalty by the won simply by being counsel for great histories. The reality of State and major cap- ‘disintegrating erosion’ of particular corporations and having an income of ital city practice is to be recognised. There exceptions. Only thus has the level fifty thousand dollars. An intellect great are differences and features of culture and of conduct for fiduciaries been kept enough to win the prize needs other approach that are impossible to define, but at a level higher than that trodden by food besides success. easy to sense and appreciate, at least for an the crowd. It will not consciously be The practice of barristers as the practice of Australian. This is not a matter for regret lowered by any judgment of this Court. a profession cannot be reduced to any state- or for agonising. It should be embraced as (Citations omitted.) ment of propositions or a checklist or a list of enhancing the richness of our legal culture, as long as a national perspective is not lost. Cardozo had a gift with words and ideas. boxes that might be ticked. The practice of a This is not a call to provincialism. Any such So did Holmes. In 1898, Holmes (then a profession is much more complex than that. tendency should be objected to and firmly judge on the Massachusetts Supreme Judicial Properly practising in the profession of being rejected. Rather, it is to recognise that it is Court) gave a speech to Boston law students. a barrister is very much an attitude of mind, important that there be a sound relationship He spoke of professionalism and money in a state of being, a way of behaving towards between local Bench and local profession a characteristically pointed and illuminating the problems and people presented i.e., re- especially the Bar, in the administration of way. The speech is a classic of jurisprudence, flective of a greater set of values rather than justice. But, we have a national judicature legal philosophy and advice to the young. It purely the conduct of a business. A business is different. framed in the Constitution. There is an is an insight into life, the law, and the Bar. It That professional character of the Bar is underpinning assumption in Ch III of the survives in his collected works, as ‘The Path well-illustrated by the important consider- Constitution of an integrated national ju- of the Law.’ In the speech he was prescient. ation of collegiality as binding the Bar to- dicature. That informs the Constitutional He began with a lament, and proceeded to gether as a college which binds its members responsibility of the Courts to cooperate and the truly human:7 through mutual support and recognition of deal with each other in a way that supports The object of ambition, power, generally a mutual responsibility to each other, and that national judicature, not undermines it.8 presents itself nowadays in the form a corporate responsibility of the group to This aspect of the federal structure of the

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judicature is historical, framed in our Colo- relevant to reflect upon because Australia ABA in this, not to the exclusion of the State nial past. But it is, if one thinks about it, an is placed in one of the fastest developing Bars, but with them to create a self-identi- aspect of diversity of this country. While the regions in the world, a region of great fying Australian Bar that reflects and un- differences between the characteristics and human diversity in social, economic and derpins the integrated national judicature. social milieus of the State and Territory Bars legal systems, of many different stages of This is to be achieved as much by reflecting may seem imperceptible to the outsider, they development. It is no exaggeration to say on the proper attitude of mind to a national are real and meaningful to Australians. Yet that the Asia-Pacific Region is an area with a profession as by anything else. It should not Australia’s historical diversity, of a Colonial developing justice system. I use the singular be seen as giving up local sovereignty, but character, should be set alongside at least because the volume of trade and intercon- developing a related and intertwined nation- three other importance perspectives of di- al sovereignty of the Bar, as an independent versity: that of Indigenous Australia; that of part of the profession, particularly related the international and multicultural society by its advocacy to the effective functioning that we have become; and that of necessary If the Bar is to flourish in the of the Court system. The interrelationship gender diversity and equality. All of these of Bench and Bar is with Commonwealth defining characteristics of Australia are vital future, as I am sure it will, it Courts, not just State and Territory Courts, for the administration of justice (including, a feature and realisation often overlooked, if by that phrase, the Bar) to understand, needs to recognise the dangers I may respectfully comment. There is often (except among practitioners who practise reflect upon, and incorporate in their respec- to its proper functioning and tive visions for the future, which are, in one exclusively in federal Courts) a sense that the sense, their respective senses of corporate self mark itself out by an unwavering federal Courts are an outsider or foreign to, – of Bench and Bar. the relationship between (State) Bench and Why are these perspectives of our society and consistent devotion to skill, (State) Bar. This is not said critically, but important for the Bar? The answer lies in observationally. If fault lies, it perhaps lies as why they are important for the Bench. Law scholarship, fiduciary trust, much with the Bench as with the Bar. and society must be intertwined and view But it is important, I think, in a federation each as part of the other, if both are to be and the duty to the Court. not only for the Courts to work cooperative- healthy. If law, the legal system and justice ly, but for the Bar to engage with the Courts are seen as abstracted from the values, soci- (State, Territory, and Commonwealth) to etal expectations and deep notions of justice enhance a nationally focussed relationship. that inform human society, they will lose nected social interactions is creating both the This relationship and its enhancement can or have weakened their ultimate power and need for and the reality of an international be achieved by the Commonwealth Courts force – acceptance and consent. Law and commercial justice system. This is comprised being drawn into the life of the Bar in the the Rule of Law gain societal acceptance of national and international commercial same way and with the same sense of ‘owner- and consent by their reflecting underlying Courts, arbitration institutions, arbitrators, ship’ as underpins the relationship between values of society and by how the law and the related dispute resolution professional such the Bars and respective State Courts. administration of justice serve society. To as mediators, and the profession which en- The vibrancy, health and independence of quote Holmes again in the same oration to gages in these tasks. The growth of this man- the Bar must come from its social, legal and those Boston students:9 ifestation of the Rule of Law in the region economic relevance. The Bar’s relationship in this respect, and its importance, cannot with the balance of the legal profession is The law has the final title to respect that be exaggerated. It is an international social crucial in this regard. This topic engages it exists, that it is not a Hegelian dream, and economic development of the highest important considerations as to modes but part of the lives of men. importance. I doubt whether it is fully ap- of practice and the relationship between The Bench and the profession, including preciated by government, the public or the professionalism and commercialism in the especially the Bar, are entrusted with the profession generally. Today is not the time practice (or in the eyes of some, business) task of maintaining the consent and trust to dwell on the detail of this interconnected of the law. My comments now should not of their community in the fair, equal and network of judicial and arbitral dispute res- be seen as anti-solicitor or pro-barrister. My just exercise of judicial power. It is a heavy olution centres: Hon Kong, Singapore, the comments may also be open to the criticism and daily responsibility which should never Middle East, Malaysia, Korea, Japan, and as made from the other side of the glass be undermined by a sense of entitlement or Australia. I wish at this stage only to place it window that separates us metaphorically. inappropriate self-interest. Those considera- as an aspect of the present to reflect upon if Also, my comments should not be seen as tions should be carefully attended to if the one is lifting one’s eyes to the future. an atavistic pining for better days when the profession or the Bar seeks to engage in what Let me look to the future then with these cheques were made out to me. There have can be reasonably seen as partisan political things in mind. I will commence with the always been issues of the kind upon which I debate, or the promotion of self-interest, core considerations to which I have referred. wish to remark. My point is only that if the beyond what is appropriate. (The same, in The maintenance and enhancement of the Bar is to flourish in the future, as I am sure somewhat modified language, can be said independent Bar’s place in the administra- it will, it needs to recognise the dangers to its about the Bench.) tion of justice require a focus on building the proper functioning and mark itself out by an Turning from the Australian community natural and necessary features of a national unwavering and consistent devotion to skill, to Australia’s place in the world. This is independent Bar. I see the central role of the scholarship, fiduciary trust, and the duty

36 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

to the Court. While these are motherhood mistake. I am not intending to enter a debate modalities and structures of running liti- statements, they are always under threat by as to whether someone whose only practice gation. What do I mean? I mean that most the daily exigencies of practice. is mediation is an advocate. My point is that litigation can be run on the model of a stick The maintenance of the skill and scholar- the modern advocate should have the skills skeleton; but more often than not one sees ship of the Bar is a constant challenge. The to participate fully in this broad range of litigation run on the model of a phalanx. sheer volume of law graduates and the pro- dispute resolution processes. I do not propose to elaborate on the meta- liferation of law schools presents a challenge Ceding work to other parts of the profes- phors of the stick skeleton and phalanx. The for legal education and legal practice. It is a sion leads me back to Cardozo’s punctilio meaning is, I hope, sufficiently clear. More challenge not restricted to the Bar; but it is a of an honour the most sensitive, back to a thought, and more public debate, should challenge that extends to the Bar. The Bar’s be given to how litigation is run, and that courses for entry and practice must be of the question not being disguised by budgets. highest standard, not as a barrier to entry for Instead of cost per person, the discussion the sake of keeping numbers low, but as a Too often, case management should be about how many, who, and who driver of expected skill and scholarship. In is doing what. If a budget is to be prepared this the Courts have a role, which I think becomes process-driven in its for litigation, it should be accompanied by has not been fully recognised in the past. It an organisational chart, with necessary jus- should be. The Bench should be viewed as character, feeding the monster tifications. The Bar should be at the forefront a partner with the Bar in the education not of that discussion. It should be a central only of readers but of the Bar more general- of phalanx preparation. consideration of the Law Council. The cost ly, and vice versa. Judges often assist, but I Case management should be of justice is not analysed just by looking at do not perceive (perhaps I am wrong) that charge out rates; more fundamentally it is this is viewed as a standing partnership of the guidance of intelligent analysed by looking at what is being done, responsibility. It should be. Judges cannot by whom, in what organisational structure complain about perceived shortcomings problem-solving between the and at what cost. The prudential controls in in the profession’s practice if they are not running litigation are often absent. Advices prepared to engage with the Bar to help ad- Bench and the profession. on liability and on evidence by counsel re- vocates deliver what judges want to see. sponsible for the conduct of litigation should The notion of fiduciary trust and its inter- not be seen as relics of the past. They were, twining with the duty to the Court are at and are, important methods of prudential the heart of the efficient functioning of the world in which the relationship between the control of issues and cost. administration of justice. They are therefore professional and the client is the ‘undivided The Courts have a role to play here. Too at the heart of the Rule of Law. These are loyalty [that] is relentless and supreme’.10 often, case management becomes pro- not theoretical or abstract considerations. Let me take an example away from the law. cess-driven in its character, feeding the mon- They lie at the heart of daily practice, es- How could a trustee justify painting a house ster of phalanx preparation. Case manage- pecially with how litigation and dispute for $100 when he could have had the house ment should be the guidance of intelligent resolution is viewed, organised, approached painted (to equal standard) for $50 by a problem-solving between the Bench and the and executed. We all know the over-arching sub-contractor? The answer: only by fully profession. If the Bar is to be the most skilled principles ‘just, quick and cheap’. (Care with and openly disclosing to the beneficiary, group of dispute resolution problem-solvers punctuation required.) with no false distinctions or embellishments, and not just trial mechanics, it will lead to Most disputes do not go to trial; i.e., the relevant circumstances. The sub-con- this process of problem-solving, which I because most should not, and do not, need tractor knows what is going on. Perhaps the might add can only be done by people inti- to. The growth over the last few decades of sub-contractor or its trade association might mately familiar with the dispute. Problems so-called alternative dispute resolution (per- educate the market about how houses can be are not solved by phalanxes of troops. haps better called ‘usual dispute resolution’) painted and for what price. This aspect of the Thus, the Bar’s future should be not only has been very healthy. The structured skills fiduciary duty can be seen in a pointed but in developing the practical skill and schol- of mediation, conciliation, facilitation, and valid paragraphs in the judgment of White J arship that gives it a lean cost structure for arbitration have become essential aspects of in the New South Wales Supreme Court.11 advice, mediation, conciliation, facilitation, someone who, in years gone by, would have It is essential to the Bar’s future that its arbitration and trial practice, but also it been called a litigation or trial lawyer. There cost structure for the value it gives makes must exercise its corporate influence in the are real skills in this spectrum of processes. it necessary for others with a higher cost community, including but not limited to the They are often very different skills from structure for the same work to brief the Bar commercial community, to bring about a those of Court craft that marked out the in order to conform with the rigours of fidu- better appreciation of viewing dispute reso- great advocate of the past. The Bar should ciary service. This is vital, especially for the lution as problem-solving, not process-driv- embrace and recognise these skills as part of junior Bar. en warfare, and an appreciation in the practice and, very importantly, not just to be It is also vital for the future of the inde- community as to how litigation can be, and done by those who lack the desire or aptitude pendent Bar, and indeed for the proper ad- should be, organised and run, maximising for the trial process. It is an impression, and ministration of justice and the Rule of Law, skilled application of intellectual talent and no more than that, that the Bar has ceded that the Bar exercises its constructive skill minimising unnecessary leveraged costs. these skills to others, which, if so, I think is a in developing leaner and more cost-effective Let me put it this way. Dispute resolution

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should be organised in a professional model broader than that. It is a word (in its adjec- barriers to entry as just an economic reality by the minimum, but adequate, application tival form) which describes the nature and about which nothing can be done. of the most appropriately skilled people to character of our society. It is the feature that In a diverse polity such as Australia, the the task, driven by (and only by) a recogni- gives this society energy, richness and depth law and the administration of justice face the tion of the fiduciary duty to the client. The of human character. Australia was built on, challenge of acceptance and adherence out discussion in any particular case should be and its modern character is to be explained of loyalty by all in the community. In any about the professional fiduciary model or by, its relationship first with Indigenous worthwhile society, there must be a sense that modality of running the litigation and solv- Australia. That must be honestly confronted. the law and the system of justice are owned ing the problem, not the business model of A useful starting point for contemplation is by all in the community. That is a challenge running the litigation. The Bar’s future lies for Bench and Bar. It is a challenge for the in vindicating these issues. development of legal principle in which the Within these notions there lies a necessary Bar plays a crucial role. I am not talking of recognition of the appropriate culture of political correctness. Development in legal dispute resolution. An adversarial system principle that reflects and meets the deep ex- requires, ultimately, a process of advocacy Let me turn to diversity. pectations of a diverse society is a challenge. by parties putting their own cases. Modern Law as simple rule, of command, as the case management has not ended that reality, It is a topic often used as a mechanical application of assertion without but it has modified it. Problem-solving and the underlying bonds of deep societal values adherence to the over-arching principles synonym for gender diversity. of fairness and justice, will be an inadequate embedded in modern Court statutes require mechanism to bind diverse groups, by loyal- a culture of appropriate cooperation. I have It is broader than that. ty, to a legal system and to an administration elsewhere used the expression ‘good faith of justice i.e., so fundamental to our society. litigation’ to stimulate discussion. By the The Bar has a crucial responsibility in the phrase I do not mean the sacrifice of the cli- growth, development and articulation of ent’s interests. I mean the running of cases, legal principle reflecting these qualities. and especially the identification of issues, One area in which the Bar assists in that i.e., honest, reasonable and proportionate to a regular reading and re-reading of the judg- process is the willingness always shown for the nature of the dispute. Such an approach ments of the High Court of 1991 and 1992 pro bono work, especially when requested facilitates the client’s interests in a spirit of in Mabo (No 2).12 The importance of that by the Court for assistance. May I take this problem-solving in the most cost-effective judgment is epitomised in the literary power opportunity publicly to acknowledge the way. It also requires, as far as possible, the of the reasons of Justices Deane and Gaud- Australian Bar for its work in this regard. It end of aggressive confrontational style ron, especially the section on dispossession is at the foundation of the service of the Bar presentation of self and of the client’s case. at p 104-109 of volume 175 of the Common- to the community. The Courtroom is no longer, if it ever was, wealth Law Reports. The words there used What of the place of the Australian Bar the place for aggression, rudeness, bombast should not be relegated to a discourse on in the Asia-Pacific region? This is not just and bullying. It is the place for the civil the past, but should provide an honest foun- (though it includes) the participation in the presentation, economically and efficiently, dation for a just, modern society. One can burgeoning commercial arbitration life of of the true issues in dispute. Judges should then begin to see and foster the gifts of the the region. The strength and depth of the recognise their responsibility in this as common law, representative democracy, and Singaporean and Hong Kong Courts and well. But the day of the Bar table being the the social and cultural heritage we now have professions in dealing with vast bodies of preserve of the Alpha male should be seen from all parts of the world, in the construc- commercial work in the region has not been as over, if it ever existed. For many, often tion of a unique community and nation. The appreciated by many Australian barristers. women, it very much seems that it did or administration of justice, and so Bench and The reality may perhaps become that if does exist from time to time. Bar, take their place in that national task. you wish to be a commercial litigator, to Further, there is the challenge of AI. This May I once again suggest that you go to paraphrase Paul Keating, ‘In the future, is a topic in itself. But once again there is an admission ceremony and see the young if you are not engaged in international ar- considerable room for cooperation between men and women – many of whose parents bitration, you will be camping out’; even if Courts and the profession in using artifi- and forbears come from all over the world that ‘camping out’ seems, at the moment, to cial intelligence and technology generally – solemnly and meaningfully enter a noble involve reaping lucrative fees in a local lake. to enhance dispute resolution outcomes, profession. Their faces reflect an appreci- That lake will, however, over time, become and not to be an engine of increasing ation (perhaps not fully formed) of and shallower. The place of the Australian Bar cost and complexity. pride in their place in their community’s in Asia in the future does not just lie in this Perhaps there should be considered a judi- legal system. commercial work. The region is one whose cial chapter or section of the ABA as there is The Bar must harness this. That harness- polities do not all reflect the dedication to in the American Bar Association. That sec- ing begins with five words: low cost barriers freedom and justice that this country has, tion has been the driver of significant reform to entry. It is vital that all Bars ensure that or should have. The Australian Bar should in the United States. they can ensure this feature of practice. It take a leadership role in the region. From Let me turn to diversity. It is a topic often is a greater challenge for some than others. a practical point of view, this may require used as a synonym for gender diversity. It is But it would be a great mistake to view cost the marshalling of capital to spend on entry

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into, and development of, that professional law is a calling of thinkers. Your business cost. That general statement is, of course, subject to the ability of the market. I am not sure how this can be done as thinkers at the Bar is to make plainer the individual legal practitioners involved. But very often one sees work in the sole practitioner model. It may require way from some thing to the whole of things; done by a solicitor in a firm which could be done equally well or better some thinking and imagination on profes- to show the rational connection between at a fraction of the cost by junior counsel with considerably more experience as a litigation solicitor and with more expertise.’ sional structure for off-shore practice. It may your fact and the frame of the universe. 12 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1. carry with it the seeds of tension between The Bar’s skill and scholarship and service 13 Holmes, Collected Legal Papers at 29. professionalism and commercialism; but can be seen in the faces of the graduates at 14 Holmes, Collected Legal Papers at 201-202. there is no reason to think that any such admission and readers signing the rolls. tension cannot be managed. The Bar must They may not have read any Holmes, but most can feel an unarticulated truth that he expressed so well in ‘The Path of the Law’.14 Your calling is practical and human and real, but it is through thinking about the Low cost barriers to entry. ... It is law in its most general aspects of theory and the relationship of those general aspects of a greater challenge for some than theory with the daily tasks of life that give the law its universal interest. From that ap- others. But it would be a great preciation of the human and the thoughtful, you become a master of your calling. You mistake to view cost barriers to connect your subject to the universe and glimpse its worth and enduring importance, entry as just an economic reality and human value. about which nothing can be done. That is why the future of the independent Bar is its skill, scholarship, and unremitting recognition of fiduciary service to the client and duty to the Court, as part of the exercise of the protective judicial power. These are not aspirations. They are features of survival. compete and take its place in an internation- al legal environment dominated by global ENDNOTES law firms with their models of practice. May I conclude by paraphrasing Holmes 1 Kable v The Director of Public Prosecutions for New South Wales [1996] yet again? Since the most far-reaching form HCA 24; 189 CLR 51; Nicholas v The Queen [1998] HCA 9; 193 Chu Kheng Lim v Minister for Immigration, Local of power is the command of ideas, the Bar, if CLR 173. See also Government & Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 27; it is to be the pre-eminent leader of the pro- Polyukhovich v Commonwealth [1991] HCA 32; 172 CLR 501 at 607 fession, should be the home of ideas about and 703-704; Lowe v The Queen [1984] HCA 46; 154 CLR 606 at law, about legal principle, and especially 610-611, 613 and 623-624; Postiglione v The Queen [1997] HCA 26; about the remoter and more general aspects 189 CLR 295 at 301-302; R v Green [2010] NSWCCA 315; 207 A of the law which give it its universal interest. Crim R 148 at [3]; Green v The Queen [2011] HCA 49; 244 CLR 463 The joy of being at the Bar does not come at 472-473 [28]; and Kioa v West [1985] HCA 81; 159 CLR 550 at from the comfort of material success, which, 584-586, 601 and 612-615. of its own, if a single goal, can only drain the 2 [1991] HCA 29; 172 CLR 460. soul. In the end, it is not the appetite, but 3 Ibid at 496-497. the opinion, which has to be satisfied. This is 4 Re Nolan 172 CLR 460 at 496; Polyukhovich 172 CLR 501 at 703- 704; Leeth 174 CLR 455 at 502; Hindmarsh Island Case 189 CLR 1 at not done through fortune, but through the 22; Kable 189 CLR 51 at 103-104; Nicholas 193 CLR 173. command of ideas, and through that, the 5 193 CLR 173 at 208-209 [74]. shaping of the world around you. 6 Meinhard v Salmon 249 NY 458 (1928) at 464. The Bar has the privilege to serve the law. 7 O W Holmes, ‘The Path of the Law’ in Collected Legal Papers In a speech to Harvard undergraduates in (Constable & Co London 1920) at 201-202. 1886, Holmes asked the question:13 How 8 Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143. can the laborious study of a dry and techni- 9 Holmes, Collected Legal Papers at 194. cal system, the greedy watch for clients and 10 Meinhard v Salmon 249 NY 458 (1928) at 468. practice of shopkeepers’ arts, the mannerless 11 April Fine Paper Macao Commercial Offshore Ltd v Moore Business conflict over often sordid interest, make out Systems Australia Ltd [2009] NSWSC 867; 75 NSWLR 619 at 625 [26] where his Honour said: ‘In a usual case of commercial litigation, a life? He answered eloquently over a page. If counsel, at least junior counsel, should be briefed early. Where there I may seek to capture his answer by a short is work that can be done either by the solicitor or by junior counsel, paraphrase from that page: If you have the and, as often happens, junior counsel is more experienced than the soul and insight of ideas and ideals, you will solicitor and charges at a significantly lower rate, then the solicitor’s see ideas and ideals in your daily life. The duty to his or her client is to ensure that the work is done at the lower

The Journal of the NSW Bar Association [2019] (Winter) Bar News 39 FEATURESPRACTICE & PROCEDURE

A PAPER PRESENTED AT THE ABA/NSWBA rise2018 NATIONAL CONFERENCE 15 & 16 NOVEMBER, SYDNEY Tax – Where Laws Intersect The Hon Robert French AC, 16 November 2018, Sydney

This paper broadly concerns the intersection constantly evolving. Because tax law is between tax law and the general law, par- hard, it needs, and attracts, fine minds ticularly in the context of judicial review. and precise ways of thinking.5 It directs attention to the question – are tax Exceptionalism is not unique to tax law. laws special to the extent that they should There are many areas of the law which are attract particular approaches to their in- regarded by one constituency or another, terpretation and their interaction with the including specialist legal practitioners, as general law? That question and the general exceptional by virtue of their perceived com- issue of judicial oversight of the administra- plexity or the need for them to be adminis- tion of taxation laws is posed in the context tered in a way is sympathetic to some societal of their effects on the lives and wellbeing goal. In Australia there have been a number of millions of Australians. Tax laws are not of examples of stakeholder constituencies as- just about raising revenue. They are used to serting the need, in particular subject areas, influence economic priorities and societal for specialist or accredited practitioners, behaviours through incentives for some specialist judges, and specialist Courts and activities and disincentives for others. For tribunals.6 Those areas have included, from the success of their objectives they require time to time, workplace relations law, family public trust founded on the belief that the law, human rights, native title, intellectual executive authorities administering them property, competition law, drug crime, envi- are accountable for the ways in which they ronmental law, town planning law, veterans’ discharge their duties and that they do so affairs7 and the sentencing of Indigenous within the law. offenders.8 Tax exceptionalism Tax laws are not just about Justice Tony Pagone raised the idea of a specialist tax Court in a paper which he The primary question – are tax laws special – raising revenue. They are used delivered in 20109 and which was quoted has been agitated in more than one jurisdic- to influence economic priorities by Justice Kirby in his paper. Such Courts tion, but particularly in the United States. It offer obvious efficiencies. However, they has centred on the term ‘tax exceptionalism’. and societal behaviours ... also attract the obvious risks of becoming That term describes the belief that ‘tax law jurisprudential silos, accessible only to a is somehow deeply different from other law narrow band of narrowly focussed cogno- with the result that many of the rules that objectionable and insulting thing’ he could scenti. A further difficulty common to all apply … across the rest of the legal landscape say to the audience. He found it in his dis- specialist Courts in Australia is that the do not, or should not, apply to tax.’1 Profes- senting judgment in Federal Commissioner of final appeal on important questions about sor Kristin Hickman, in a paper published Taxation v Ryan3 in which he had written: the laws they administer lies to a generalist in 2006, spoke critically of it: Court, the High Court of Australia which, It is hubris on the part of special[ists] from the perspective of the specialist, gets The view that tax is different or special … to consider that ‘their Act’ is special things wrong on occasion. An institutional creates, among other problems, a and distinct from general movements compromise which avoids the establishment cloistering effect that too often leads in statutory construction which have of special Courts is the creation of special practitioners, scholars, and Courts been such a marked feature of our legal lists, streams, or national practice areas considering tax issues to misconstrue system in recent decades.4 within generalist Courts. It can allow for the or disregard otherwise interesting and He softened the blow by conceding the deployment of appropriate expertise within a relevant developments in non-tax areas, high intelligence of his audience, acknowl- generalist Court and with appropriate rota- even when the questions involved are tions can help protect against the growth of 2 edging that: not particularly unique to tax. subject matter exceptionalism. Former Justice Michael Kirby, speaking to Tax is hard because it is detailed, On a comparative note, tax exception- the Institute of Chartered Accountants on complicated and imports precise alism has had a considerable history in the this theme in 2011 began his address with notions of commercial and property United States including different approaches what he described as ‘the most upsetting, law, in part ancient and, in part, to the same taxation laws being taken by

40 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

the specialist Article I Tax Court and the [e]very man is entitled if he can to order the circumstances which will attract Article III Federal District Circuit Courts. his affairs so as that the tax attaching an obligation on the part of the It suffered a reverse with the decision of the under the appropriate Acts is less than it citizen to pay tax.24 15 Supreme Court in 2010 in Mayo Foundation otherwise would be. The tide was beginning to ebb. Mason J for Medical Education and Research v United Literalism yielded only to the need to did not echo the Chief Justice’s sentiments 10 States although not for the benefit of tax- avoid the absurdities that its application but adopted a purposive approach by refer- payers. The Court rejected an argument sometimes produced.16 ence to the legislative history of the relevant that a less deferential standard of review Exceptionalist literalism along similar provisions. Murphy J dissented having should be applied to Treasury Department lines informed the Australian approach to regard to the character of the relevant trans- tax regulations than that applied to the the interpretation of tax laws for many years. action as ‘a major tax avoidance scheme’25 rules of other agencies under the principle The late Justice Graham Hill once observed: and observed presciently: enunciated in Chevron USA, Inc v Natural Resources Defense Council, Inc.11 In Chevron, In the good old days, some think, judges It is an error to think that the only the Supreme Court had held that where interpreted the law having regard to the acceptable method of interpretation there is ambiguity in a statute, Courts, in language used by Parliament and gave is strict literalism. On the contrary, reviewing regulations made under it, should the benefit of the doubt to the taxpayer. legal history suggests that strict literal apply the interpretation adopted by the If Parliament wanted to tax, it was up to interpretation is an extreme, which has regulatory agency if it were reasonably open. Parliament to make its intentions clear; generally been rejected as unworkable The Court said: if Parliament wanted to hit the target, it and a less than ideal performance of the had to do so cleanly.17 judicial function.26 In the absence of … justification, we are not inclined to carve out an Literalism was adopted early in the life of He lamented that in tax cases the pre- approach to administrative review the High Court as an appropriate approach vailing trend in Australia had become so good for tax law only. To the contrary, to statutory interpretation generally and that absolutely literalistic that it had become a we have expressly ‘[r]ecogniz[ed] of taxation statutes in particular. Barton J in disquieting phenomenon. He said, in words the importance of maintaining a 1917 quoted Viscount Haldane LC for the informed by a consciousness of the impor- uniform approach to judicial review of proposition that: tance of our tax laws, albeit against an ex- 12 ceptionalist approach to their interpretation: administrative action’. The duty of judges in construing In the United Kingdom there do not Statutes is to adhere to the literal If strict literalism continues to prevail, appear to be any special principles of public construction unless the context renders the legislature may have no practical law that apply to the administration of the it plain that such a construction cannot alternative but to vest tax officials taxation laws. In a paper published in the be put on the words. This rule is with more and more discretion. This Journal of Tax Administration in 2017, Ste- especially important in cases of Statutes may well lead to tax laws capable, if phen Daly of Kings College, London cited which impose taxation.18 unchecked, of great oppression.27 Lord Woolf’s statement in 2001 in R v North Australia followed the Westminster line in A purposive approach applicable to stat- & East Devon Health Authority, Ex parte Anderson v Commissioner of Taxes (Vic).19 The utory interpretation generally overtook UK Coughlan that ‘[i]t cannot be suggested that Court held that accrual by survivorship of tax jurisprudence as evidenced in such cases special principles of public law apply to the a beneficial interest in land held jointly was as Ramsay v Internal Revenue Commission- Inland Revenue or to taxpayers.’13 That said, not chargeable with probate duty under a er28 and Internal Revenue Commissioners v the application of general principles of public Victorian statute.20 Latham CJ quoted Lord McGuckian.29 The High Court’s move away law in a particular area of the law may gener- Cairns from Partington.21 Rich and Dixon JJ from literalism was evidenced in Cooper ate a class of outcomes which have distinctive found in the English cases something like Brookes (Wollongong) Pty Ltd v Federal characteristics simply because of the subject an interpretive principle of legality against Commissioner of Taxation.30 Mason CJ and matter upon which the general law operates. the imposition of tax absent clear language. Wilson J said in their joint judgment ‘[t]he As Daly pointed out, an historical inclina- They quoted Lord Buckmaster in Ormond fact that the Act is a taxing statute does not tion to literal interpretation of taxation laws Investment Co Ltd v Betts where he referred make it immune to the general principle in the United Kingdom was for a long time to ‘a cardinal principle … well known to governing the interpretation of statutes.’31 a kind of tax exceptionalism. That literalism the common law [which] has not been and The approach to interpretation of taxing coupled with a degree of hostility to the ought not to be weakened – namely, that the statutes began to be assimilated with the revenue, was encapsulated in Lord Cairns’ imposition of tax must be in plain terms.’22 interpretation of statutes generally. Moreo- observation in Partington v Attorney-General Literalism continued into the 1980s. ver, exceptionalist or not, the tax laws of the in 1869 that if the Crown ‘cannot bring the Chief Justice Sir Garfield Barwick was char- Commonwealth, like all Commonwealth subject within the letter of the law, the subject acterised as its judicial flag bearer. In Com- statutes, were always subject to the rules set is free, however apparently within the spirit missioner of Taxation v Westraders Property out in the Acts Interpretation Act 1901 (Cth). of the law the case might otherwise appear Pty Ltd,23 decided in 1981, he said: One of those related to purpose, i.e., s 15AA to be.’14 The spirit of literalism endured well which required that: into the 20th century. Lord Tomlin said It is for the Parliament to specify, and to in 1936 in Inland Revenue Commissioners v do so, in my opinion, as far as language In interpreting a provision of an Act, Duke of Westminster that: will permit, with unambiguous clarity, the interpretation that would best

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achieve the purpose or object of the Act the legislation invites error.35 give rise more often than not result from (whether or not that purpose or object That observation is readily applicable to their interaction with the law relating to is expressly stated in the Act), is to be taxation laws. contracts, torts, property, equity and trusts, preferred to each other interpretation. The contemporary approach to statutory corporations and partnerships, and the law as set out in the array of Acts and Regula- A relevant purpose or object may be dis- interpretation directs attention to text, 36 tions, Commonwealth, State and Territory, cerned by reference to extrinsic material as context and purpose. Legislative intention which create, regulate, modify and destroy authorised by s 15AB. which can be distinguished from purpose rights, powers, privileges and obligations The discernment of purpose is not nec- is imputed to the preferred construction of including those which arise at common law. essarily congruent with the discovery of the statutory text rather than determined the elusive phantom known as legislative as an anterior fact which informs construc- intention. A joint judgment of six Justices of tion. So much appears from the oft quoted the High Court in Lacey v Attorney-General passage in Project Blue Sky Inc v Australian (Qld) in 201132 observed, in relation to the Broadcasting Authority: The contemporary general principles governing statutory inter- The duty of a Court is to give the words approach to statutory pretation, that: of a statutory provision the meaning The application of the rules will properly that the legislature is taken to have 37 interpretation directs involve the identification of a statutory intended them to have. purpose, which may appear from The application of the general rules of in- attention to text, an express statement in the relevant terpretation to taxing statutes was restated in statute, by inference from its terms and Alcan (NT) Alumina Pty Ltd v Commissioner context and purpose. by appropriate reference to extrinsic of Territory Revenue.38 Four Justices of the materials. The purpose of a statute is High Court in a joint judgment made two not something which exists outside important points: the statute. It resides in its text and structure, albeit it may be identified by 1. Tax statutes do not form a class of There are many examples of such inter- reference to common law and statutory their own to which different rules of actions. I will mention two from my time rules of construction.33 construction apply. on the High Court. In 2010 in Aid/Watch 2. The fact that a statute is a taxing Act or Inc v Federal Commissioner of Taxation41 That said, ascertainment of purpose can contains penal provisions is part of the the Court was concerned with the question be a challenge. This is particularly so in context and is therefore relevant to the whether the provisions of income tax, fringe statutory provisions which are reflective of task of construing the Act in accordance benefits tax and goods and services tax underlying political compromises. In some with those settled principles.39 legislation exempting charitable institutions cases purpose can only be identified at a level from taxation extended to Aid/Watch which of generality which is not of any assistance Pearce and Geddes in the 8th edition of promoted the more efficient use of Australi- Statutory Interpretation in Aus- in making the constructional choices which their work an and multi-national foreign aid directed to tralia are in contest and which are open on the text commented on general statements that the relief of poverty. The answer depended of the provision. As McHugh J observed in appear to minimise the distinction between upon the understanding of that term in the Stevens v Kabushiki Kaisha Sony Computer taxation and other laws and said nevertheless law of trusts and, in particular, the classifi- Entertainment34 much modern legislation ‘it seems likely that the Courts will maintain cation of charitable trusts derived from Lord regulating industry reflects compromises the view that ‘it is for the Crown to show Macnaghten’s speech in Commissioners for reached between or forced upon competing that a taxing statute imposes a charge on the Special Purposes of the Income Tax v Pemsel,42 groups whose interests may be enhanced or person sought to be taxed’.’40 If that obser- classifying charitable trusts into their four impaired by legislation. He said: vation suggests a tax specific approach to principal divisions. The exempting provi- interpretation it should be treated with some In such cases, what emerges from the sions each picked up as a criterion for its op- caution. It may be, however, that it does no legislative process … reflects wholly or eration the general law relating to equitable more than reflect a particular case of a more partly a compromise i.e., the product of principles with respect to charitable trusts. general proposition about statutes imposing intensive lobbying, directly or indirectly, The Court observed that in the absence of a duties or creating liabilities. of Ministers and parliamentarians contrary indication in the statute, the statute by groups in the industry seeking A generalist’s legal landscape speaks continuously to the present and picks to achieve the maximum protection up the case law as it stands from time to or advancement of their respective The application of the general rules of inter- time. Importantly, the development of the interests. The only purpose of the pretation to tax laws requires legal skills but general law doctrine through case law was legislation or its particular provisions it is questionable whether it requires skills not to be directed or controlled ‘by a curial is to give effect to the compromise. To particular to those laws. Indeed generalist perception of the scope and purpose of any attempt to construe the meaning of skills are often called for. Taxation law does particular statute which has adopted the particular provisions of such legislation not occupy an island entire unto itself. It general law as a criterion of liability in the not solely by reference to its text but by embraces much of the general law. The lia- field of operation of that statute.’43 That is to reference to some supposed purpose of bilities, duties and powers to which tax laws say, the development of the general law was

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not to be informed by the statutory context sibility of resolving disputes about the preme Court of the United Kingdom, said: in which it was applied. Thus the term ‘char- limits of official power. The Courts will treat with particular itable institution’ in s 50–5, Item 1.1 of the Section 75(v) of the Commonwealth Con- suspicion (and might even reject) any Income Tax Assessment Act 1997 (Cth) and stitution, described by Gleeson CJ as ‘a basic attempt to subvert the rule of law by the corresponding provisions of the Fringe guarantee of the rule of law’ confers jurisdic- removing governmental action affecting Benefits Tax Assessment Act 1986 (Cth) and tion on the High Court: the rights of the individual from all the A New Tax System (Goods and Services judicial scrutiny … In general, however, Tax) Act 1999 (Cth) was to be understood In all matters: the constraints upon what Parliament by reference to its force in the general law as (v) in which a writ of Mandamus or can do are political and diplomatic developed in Australia from time to time.44 prohibition or an injunction is rather than constitutional.51 The second case was Federal Commissioner 45 sought against an officer of the of Taxation v Bamford. The relevant section Commonwealth. Observations to like effect were made of the Income Tax Assessment Act 1936 (Cth) by Lord Steyn52 and by Lord Hope.53 Lord (ITAA) provided for a beneficiary of a trust The provision confers authority on the Hope revisited the general proposition in estate presently entitled to a share of its Court to judicially review decisions of 2012 in Axa General Insurance Ltd v HM Ad- income to be taxed on its share. The Court Commonwealth Ministers and officers for vocate54 when speaking of legislation to abol- held that a capital gain, treated by a trustee jurisdictional error which, broadly speaking, ish judicial review or to diminish the role of as income available for distribution, was covers conduct in excess of power. The ju- the Courts in protecting the interests of the assessable. The concept of the ‘income of a risdiction cannot be removed by anything individual. He said ‘[t]he rule of law requires trust estate’ in the Act was to be understood other than a constitutional amendment. It is that the judges must retain the power to according to the general law of trusts. Those thus proof against attempts to place Com- insist that legislation of that extreme kind is cases are fairly straightforward examples of monwealth executive action beyond legal not law which the Courts will recognise.’55 the way in which taxation law ranges across scrutiny and challenge where jurisdictional Resort to the elusive principles of common the landscape of the general law, both judge- error is asserted. A statutory equivalent of law constitutionalism is not necessary in the made and statutory. that jurisdiction is conferred on the Fed- Australian federal context because, as Glee- An intersection of particular importance eral Court by s 39B(1) of the Judiciary Act son CJ said in Plaintiff S157: to taxation law is with the general principles 1903 (Cth). 46 In a federal nation, whose basic law underpinning what can be described as ‘the In Plaintiff S157/2002 v Commonwealth, is a Constitution that embodies a rule of law’ in Australia. Here the legislative decided in 2003, Gleeson CJ observed in separation of legislative, executive, and scheme providing for challenges to taxation relation to s 75(v) that: judicial powers, … It is beyond the assessments coupled with the statutory The Parliament cannot abrogate or capacity of the Parliament to confer validity accorded to assessments outside curtail the Court’s constitutional upon an administrative tribunal the review under Part IVC of the Taxation function of protecting the subject against power to make an authoritative and Administration Act might seem to place tax any violation of the Constitution, or of conclusive decision as to the limits of laws in a special light. If it does so however, 47 any law made under the Constitution. its own jurisdiction, because that would it is, in a formal sense, a consequence of the involve an exercise of judicial power.56 substantive law being interpreted according Importantly for present purposes how- to general rules. ever, the Chief Justice pointed out that the Plaintiff S157 concerned the validity and legislative powers given to the Parliament by Taxation law and the rule of law application of s 474 of the Migration Act 1958 the Commonwealth Constitution enable Par- (Cth) which provided ‘that a privative clause Decisions made under taxing statutes are liament to determine the content of the law decision’ was final and conclusive and that made in a constitutional and legislative to be enforced by the Court.48 It is in that it must not be challenged, appealed against, framework which gives content to the rule of area that particular provisions of the ITAA reviewed, quashed or called in question in law. In Australia, that concept includes some confining challenges to assessments, for the any Court and that it was not subject to pro- specific propositions relevant to the exercise most part to processes under Pt IVC of the hibition, mandamus, injunction, declaration of official powers: Taxation Administration Act, operate. or certiorari in any Court on any account. The importance of judicial review to the The term ‘privative clause decision’ referred 1. All official power derives from rules of rule of law was emphasised in a statement by to a decision of an administrative character law found in the Commonwealth and Denning LJ dating back to 1957 and quoted made, proposed to be made, or required to be State Constitutions or in laws made by Gleeson CJ in Plaintiff S157 that ‘[i]f tri- made under the Migration Act, save for cer- under those Constitutions. bunals were to be at liberty to exceed their ju- tain exclusions. The Court in Plaintiff S157 2. There is no such thing as unlimited risdiction without any check by the Courts, held that s 474 properly construed did not official power, be it legislative, executive the rule of law would be at an end.’49 Similar prevent the judicial review of decisions that or judicial. concerns have no doubt informed occasional involve jurisdictional error because they were observations in the United Kingdom about not decisions made ‘under’ the Act. Taxation 3. The powers conferred by law must be the possibility of common law limitations law had its moment on the stage in that case. exercised lawfully, rationally, consist- on the legislative powers of the Parliament. The Chief Justice referred to Deputy Commis- ently, fairly and in good faith. In 2006, in R (Jackson) v Attorney General50 sioner of Taxation v Richard Walter Pty Ltd,57 4. The Courts have the ultimate respon- Baroness Hale, now the President of the Su- which concerned the interaction of s 39B(1)

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of the Judiciary Act with ss 175 and 177 of the sessment and a declaration of its invalidity. to be confining and perhaps indicate that tax ITAA. Section 175 provides: The Full Court of the Federal Court found law is given special treatment. On the other in favour of Futuris that the second amended hand, it might be thought simply to reflect The validity of any assessment shall not assessment was not a bona fide exercise of the the width of the legal powers conferred on be affected by reason that any of the Commissioner’s power of assessment. the Commissioner by the operation of the provisions of this Act have not been A majority of the High Court allowed noinvalidity provision, s 175. If non-com- complied with. the Commissioner’s appeal and set aside pliance or misconstruction of a taxation law Section 177(1) provides: the Full Court’s orders. The central issue in making an assessment would vitiate that The production of a notice of assessment, was whether the Commissioner had made a assessment absent s 175, then the addition or of a document under the hand of the jurisdictional error in relation to the second of s 175 may be seen simply as going to the Commissioner, a Second Commissioner, amended assessment. The majority held that legal effect of the Commissioner’s assessment or a Deputy Commissioner, purporting the Commissioner had double-counted but notwithstanding error. That is a legal effect to be a copy of a notice of assessment, that the double-counting did not amount to which is mitigated by Part IVC albeit not in shall be conclusive evidence of the due jurisdictional error: relation to jurisdictional error. making of the assessment and, except The majority in Futuris also held that s 177 In the process of the making of the 63 in proceedings under Part IVC of second amended assessment errors by is not a privative clause. In their joint judg- the Taxation Administration Act 1953 the Commissioner of this nature … fell ment, Gummow, Hayne, Heydon and Cren- on a review or appeal relating to the within the scope of s 175 as explained nan JJ, held that s 177(1) gave evidentiary assessment, that the amount and all the earlier in these reasons. They could not effect to s 175 and that there was no conflict particulars of the assessment are correct. found a complaint of jurisdictional error requiring any reconciliation between them and the requirements of the Act governing The provisions have a considerable attracting the exercise of jurisdiction assessments. Significantly, towards the end ancestry in earlier Commonwealth tax to issue constitutional writs … If there of their judgment they spoke of the observa- legislation and precursor legislation in the were errors they occurred within, not tion in Richard Walter that s 177(1) did not States and colonies. beyond, the exercise of the powers limit the jurisdiction conferred by s 39B of Four of the Justices in Richard Walter held of assessment given by the [ITA Act the Judiciary Act. That view had not been that s 177 did not purport to deprive the 1936] to the Commissioner and would challenged in Futuris. However reference had Federal Court of the jurisdiction conferred be for consideration in the Pt IVC 59 been made in some of the judgments in Rich- by s 39B(1) of the Judiciary Act. Deane and proceedings. ard Walter to the distinction, extant in 1995, Gaudron JJ were of the opinion that s 39B(1) The majority identified two situations between mandatory and directory provisions overrode or amended s 177(1) to the extent where a purported assessment would not and to what ‘seems to have been some doctri- that it would apply to certificates produced be an assessment protected by s 175. First, nal status then afforded to R v Hickman; Ex in proceedings in the Federal Court under s tentative or provisional assessments were parte Fox.’64 Their Honours said: 39B(1) where the applicant’s case was that an not assessments for the purposes of s 175. assessment was invalid on the ground that it Second, conscious maladministration in the As to the first matter, Project Blue Sky was not bona fide. assessment process would deprive its product has changed the landscape and as to the In Plaintiff S157 Gleeson CJ referred to an of the character of an assessment for the pur- second, Plaintiff S157/2002 has placed observation by Mason CJ in Richard Walter poses of s 175. These have been described as ‘the Hickman principle’ in perspective65. that privative provisions were effective to pro- historically ‘the only two recognised grounds Futuris was to be decided on the basis of the tect an award or order from challenge on the for jurisdictional error in respect of the path set out in the joint reasons and not by ground of a mere defect or irregularity which 60 Commissioner’s assessment’. The majority any course assumed to be mandated by what did not deprive the tribunal of the power to in their reasoning drew on s 13 of the Public was said in any one or more of the several sets make the award or order. That qualification Service Act 1999 (Cth) which requires public of reasons in Richard Walter. Although in re- protected review on the basis of jurisdiction- servants to ‘behave with honesty and integ- covery proceedings s 177 operated to change al error. But it begged the question – what rity’ and to ‘act with care and diligence’ in what otherwise would be the operation of would amount to jurisdictional error in re- 61 connection with their employment. They the relevant laws of evidence, the presence lation to assessments made and issued by the held that this provision ‘points decisively’ of Part IVC meant that it did not operate to Commissioner of Taxation? against construing s 175 as protecting de- impose an incontestable tax or otherwise in- That question was considered in 2008 cision-makers who deliberately fail to act volve usurpation of the federal judicial power in Commissioner of Taxation (Cth) v Futuris 62 within the limits of their powers. by the deeming of an ultimate fact. Corporation Ltd.58 The case that came to the On the facts, the second amended assess- The implications of no-invalidity claus- High Court concerned a Judiciary Act action ment was not tentative or provisional. The es such as s 175 for judicial review, were in which Futuris argued that the assessment Commissioner had not engaged in conscious described by Leighton McDonald and processes to which it had been subjected maladministration in making it. The majori- Peter Cane in their book on Principles of were flawed because, in the second of two ty attached weight to the Commissioner’s in- Administrative Law published in 2013.66 amended assessments, the Commissioner tention to correct double-counting through The authors said: had deliberately double-counted a significant the exercise of his discretion under s 177F(3). amount of its taxable income. Futuris sought This approach to judicial review of taxa- to the extent that, in general, judicial an order quashing the second amended as- tion assessment decisions might be thought remedies are issued only on the basis

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of jurisdictional errors, no-invalidity what has been done or omitted.68 gest that they considered them as a ‘fall back clauses may be read as converting errors Burton Crawford offers a loosely analog- accountability’ mechanism. They suggest that would otherwise be jurisdictional ical argument by reference to observations that Courts may limit the effect of no-in- in nature into errors which are made in recent judgments, which some might use validity clauses in other cases where there within the decision maker’s power to support the proposition that Parliament is no alternative accountability mechanism and will not justify a remedy. In this cannot statutorily declare that what is black by pointing to the ‘internal contradiction’ way, no-invalidity clauses expand in a statute is actually white. One example between such clauses and the limits on the the decision maker’s powers to make offered is the observation by Kiefel J in CPCF decision-maker’s powers. legally valid decisions. v Minister for Immigration and Border Protec- In reflecting upon these observations I am drawn back to a joint judgment I wrote in There are questions about the consequence tion, that statutory statements of parliamen- 1991 with Justice Trevor Morling in a case of wide no-invalidity clauses coupled with tary intention only have effect if the intention called David Jones Finance and Investments privative clauses when it comes to the main- is one which the substantive provisions of the 69 Pty Ltd v Commissioner of Taxation,71 which tenance of the rule of law. Act are capable of supporting. And in Com- concerned the interaction between s 39B(1) Post-Futuris it seems that in a formal sense, munications, Electrical, Electronic, Energy, of the Judiciary Act, s 175 and s 177. In that the rule of law in connection with the admin- Information, Postal, Plumbing and Allied Ser- 70 judgment we held that s 177 operated upon istration of the taxation laws, so far as they vices Union of Australia v Queensland Rail a statutory assertion that an authority given jurisdiction but did not displace the jurisdic- relate to assessments, is intact. There is no tion subsequently conferred on the Federal scope for unreviewable official action beyond a separate legal personality was ‘not a body corporate’ did not conclude the question Court by s 39B of the Judiciary Act. The statutory power, even though statutory purpose of s 39B was to confer on the Federal power is widened by s 175. Judicial review is whether the authority was nevertheless ‘a corporation’ within the meaning of s 51(xx) Court the full amplitude of the like jurisdic- available for jurisdictional error which might tion conferred on the High Court by s 75(v) deprive a purported assessment of the charac- of the Commonwealth Constitution. Burton Crawford also refers to the princi- of the Constitution, albeit not a constitution- ter of an assessment because of its tentative or ally entrenched jurisdiction. Section 177 did provisional nature or because of corruption ple of legality as applicable to the construc- tion of no-invalidity clauses to protect rights not protect the Commissioner from inquiry or deliberate maladministration. of judicial review on grounds such as breach into the bona fides of the exercise of his Lisa Burton Crawford of the University of procedural fairness and rules against fraud statutory powers. The decision, however, was of New South Wales in a paper published and bad faith. She argues that the Courts will disapproved by the majority judgment in the last year67 raises a question about the inter- not conclude that Parliament has authorised High Court in Richard Walter and is now lost action between no-invalidity clauses and the the executive action contrary to those princi- in the mists of history. implied separation of the judicial power. She ples unless it does so by express and unam- This paper has focussed upon judicial argues that such clauses should not be treated biguous words. review of taxation decisions particularly in as conclusively determining the validity of Whether or not one agrees with those ob- the area of operation of the no-invalidity executive action and that it is wrong to say servations, they provide food for thought and provision in connection with assessments, that such a clause puts the issue ‘beyond indicate that more remains to be said about which is central to the enforcement of the argument’. A no-invalidity clause having the operation of no-invalidity clauses and law. There are of course other aspects of tax- such an effect might amount to a legislative the extent to which they may be allowed to ation administration outside the assessment usurpation of the judicial power of the Com- thin out the effective protection derived from powers which attract general judicial review monwealth. In this connection Kirby J in his the rule of law and the extent to which they jurisdictions including those created by Futuris judgment in said: legislatively undermine the judicial power. s 39B(1) of the Judiciary Act and by the provi- it is questionable whether the Federal There is a kind of ‘tax is special’ argument sions of the Administrative Decisions (Judicial Parliament could lawfully provide that about the implications of Futuris advanced Review) Act 1977 (Cth). A number of these the ‘validity of any assessment shall not by Professors McDonald and Cane in their were usefully set out in the 2016 Review by be affected by reason that any of the book Principles of Administrative Law. They the Inspector General of Taxation into the provisions of this Act have not been consider that Futuris is unlikely to have the Taxpayers Charter and Taxpayer Protections. complied with.’ consequence that all no-invalidity clauses Non-judicial accountability will be read according to their terms. They The validity of an assessment (like any consider that it may be confined to the tax It would be a mistake to leave this topic with- other legislative, executive or judicial act context because Pt IVC of the Tax Adminis- out referring to the administrative mecha- of a Commonwealth officer) can only be tration Act is an alternative to judicial review nisms in place which provide for scrutiny finally determined by a Court, not by which can satisfy an entrenched minimum and accountability in relation to the admin- parliamentary fiat nor by administrative requirement of legal accountability. On that istration of taxation laws in ways which are action. Moreover, the effect of non- basis, it is suggested, Courts might be more indicative of their national significance. compliance with a provision of the Act willing in the tax context than in other con- There are the generic mechanisms of par- must surely depend upon the particular texts to hold that judicial review is limited. liamentary scrutiny particularly through the terms of that provision; the nature, extent They argue that although the joint judgment work of parliamentary committees. However, and purpose of any non-compliance; in Futuris did not make this explicit, the given the complexity of the law the ability of and whether in law the non-compliance Justices referenced Part IVC procedures a such committees to give finely detailed con- affects (or does not affect) the validity of number of times in ways which might sug- sideration to its administration may be lim-

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ited. The Australian Taxation Office (ATO) ENDNOTES and Bell JJ). is also subject to scrutiny by the Australian 34 (2005) 224 CLR 193. 1 Laurence Zelenak, ‘Maybe Just a Little Bit Special, After All?’ (2014) 35 Ibid 231 [126]. National Audit Office in the same way as 63 Duke Law Journal 1897, 1901. See also James M Pucket, ‘Structural other government agencies. Indeed, the 36 A recent restatement of that proposition in relation to taxation appears Tax Exceptionalism’ (2015) Georgia Law Review 1067, 1069. in the judgment of the High Court delivered on 14 November 2018 in Australian National Audit Office undertook 2 Kristin E Hickman, ‘The Need for Mead: Rejecting Tax Exceptionalism SAS Trustee Corporation v Miles [2018] HCA 55; 92 ALJR 1064; 361 performance audits of the Taxpayers Charter in Judicial Deference’ (2006) 90 Minnesota Law Review 1537, 1541. ALR 194. in 2004-05, 2005-06 and 2007. 3 (2001) 201 CLR 109. 37 (1998) 194 CLR 355, 384 [78]. A tax specific mechanism for complaints 4 The Hon M Kirby, ‘Down With Hubris! A Message on Tax Reform 38 (2009) 239 CLR 27. about the administration of the ATO was for Australian Tax Specialists’, Speech delivered to The Institute of 39 Ibid 49 [57] (Hayne, Heydon, Crennan and Kiefel JJ). created in 1995 with the establishment of a Chartered Accountants in Australia, National Tax Conference 2011, 40 Pearce and Geddes, Statutory Interpretation in Australia (LexisNexis, Tax Ombudsman. This was a recommen- Melbourne, 7 April 2011, 1 citing Federal Commissioner of Taxation v 8th ed, 2014) [9.36] quoting C & J Clark Ltd v Inland Revenue Ryan (2001) 201 CLR 109, 146 [84]. dation of the Joint Committee of Public Commissioners [1975] 1 WLR 413, 419 (Scarman LJ). 5 Ibid 2. 41 (2010) 241 CLR 539. Accounts, which had also recommended the 6 For a general discussion of the issues raised by the creation of specialist 42 [1891] AC 531, 583. establishment of the Taxpayers Charter. An Courts with an emphasis on workplace relations see Justice Michael 43 (2010) 241 CLR 539, 549 [23] (French CJ, Gummow, Hayne, important development was the subsequent Moore, ‘The Role of Specialist Courts – An Australian Perspective’ Crennan and Bell JJ). establishment of the Office of the Inspector (2000–2001) Law Asia Journal 139–54; (2001) FedJSchol 11. See also 44 Ibid 550 [24] (French CJ, Gummow, Hayne, Crennan and Bell JJ). General of Taxation. The Inspector General The Hon TF Bathurst, ‘Specialist Courts/Court Tracks – The Way to 45 (2010) 240 CLR 481. of Taxation (IGT) is an independent statu- Go?’, Paper delivered at the Pacific Judicial Conference, Papua New 46 (2003) 211 CLR 476. tory officer whose function is to review sys- Guinea, 14 September 2016. 47 Ibid 483 [6]. temic tax administration issues and to report 7 See e.g., Melissa Davey, ‘Australia should consider specialist war 48 Ibid. to Government with recommendations for veterans’ Courts, says law researcher’, The Guardian (online), 24 April 49 Ibid 483 [8] citing R v Medical Tribunal; Ex parte Gilmore [1957] 1 QB 2015

46 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

One year of early appropriate guilty pleas? Perspectives on the early appropriate guilty pleas amendments By Belinda Baker

In 2014, the New South Wales Law Reform ‘From the evidence we believe that imum of 5% in other circumstances); and Commission observed that while most • The abolition of a Local Court magistrate’s criminal matters in the District Court were it is not an overstatement to say that resolved by a guilty plea (83% in 2013), the power to discharge an accused person upon vast majority of those (66% in 2012/ 2013) indictable proceedings have major assessment of the evidence, with the power to direct witnesses to give evidence retained. occurred on the day of trial. The Commis- systemic issues and are presently in, sion noted that such late pleas caused con- The reforms, which apply to all strictly siderable inefficiency and delay. or approaching, a state of crisis’, indictable charges and those charges which The Early Appropriate Guilty Plea (EAGP) the prosecution has elected to deal with on reforms were enacted as a response to these con- indictment, commenced on 30 April 2018. cerns. The legislation – the Justice Legislation New South Wales Law Reform Commission, Encouraging Early Guilty Pleas, Report 141 (2014). The reforms have resulted in significant Amendment (Committals and Guilty Pleas) Act changes to the New South Wales criminal 2017 and the Criminal Procedure Amendment justice system. It is essential that all counsel (Committals and Guilty Pleas) Regulation 2018 tification, and with the intent that that pros- practising in criminal law in New South – amend the Criminal Procedure Act 1986, the Wales are aware of the reforms, and the practi- Children (Criminal Proceedings) Act 1987, the ecutor remain in the matter to finalisation; cal operation of the regime. Crimes (Sentencing Procedure) Act 1999 and • Mandatory case conferencing in the Local In this article, Chief Judge Price provides an other Acts. The legislative reforms are supple- Court, to enable the prosecutor and the de- overview of the EAGP reforms from the per- mented by the relevant Practice Notes of the fence lawyer to discuss the case at a formal spective of the District Court. The Director of Local Court and Children’s Court. meeting to enable early dispute resolution; Public Prosecutions, a Deputy Senior Public The reforms include: • Fixed sentence discounts for the utilitarian Defender and experienced counsel in private • Early disclosure of a ‘simplified’ brief of value of guilty pleas (25% discount where practice provide their perspectives on the prosecution evidence; the plea is entered in the Local Court; 10% practical operation of the scheme, as well as • prosecutors with delegation being briefed at discount for a plea entered up to four days providing advice to practitioners in conduct- an early stage for the purpose of charge cer- before the first day of the trial; and a max- ing criminal cases under the new regime.

An overview of early guilty pleas from persons, particularly those in custody, and the perspective of the District Court creates additional public and private costs in trial preparation and the assembly of The early involvement of Crown prosecutors jury panels. Delayed plea negotiations dis- in serious criminal offences by the introduc- advantage accused persons as the discount tion of the Early Appropriate Guilty Plea for the utilitarian value of the plea has been Reform package (‘EAGP’) is a significant determined largely by the timing of the plea: improvement in the criminal justice system see R v Borkowski (2009) 195 A Crim R 152; for State offences. There have been too many [2009] NSWCCA 102. occasions in the past when neither a Crown The EAGP scheme places an obligation prosecutor nor counsel for an accused has on the Director of Public Prosecutions been briefed until shortly before the com- (which will usually be exercised by senior mencement of a trial. The consequences prosecutors) to specify the offences that are of late briefing include last minute plea to be the subject of proceedings against the Justice D Price AM negotiations, amendments to indictments, accused. The charge certification process in non-compliance with notice requirements the Local Court undertaken under Ch 3, Chief Judge of the District Court under the Evidence Act 1995 (NSW), service Part 2, Division 4 of the Criminal Procedure of New South Wales of additional evidence and lack of agreement Act 1986 (NSW) (‘the CPA’) will do much President of the Dust Disease as to issues in dispute at trial. to ensure that accused persons are appro- Tribunal of New South Wales Delay in finalising criminal charges adds priately charged and ‘not overcharged’ by to the distress of victims, witnesses, accused NSW Police. It will also give case ownership

The Journal of the NSW Bar Association [2019] (Winter) Bar News 47 FEATURESPRACTICE & PROCEDURE

and responsibility to a senior prosecutor and guilty pleas and summary finalisations in (c) present the identified issues in solicitors from the Office of the Director of the Local Court. However, it is too early dispute clearly and succinctly, Public Prosecutions (‘ODPP’). to draw any definite conclusions about the (d) limit evidence, including cross- The Director’s intent to give a senior success of the principal objective of the case examination, to that which is prosecutor ownership of a serious criminal conference, which is to determine whether reasonably necessary to advance case from ‘cradle to grave’ is laudable, but I there are any offences to which the accused and protect the client’s interests apprehend it will be difficult to achieve given is willing to plead guilty. which are at stake in the case, and the large criminal caseload. A case conference has other objectives. In Charge certification, the mandatory utili- particular, s 70(3)(b) provides: (e) occupy as short a time in Court as tarian discount of 25% for a guilty plea en- (3) A case conference may also be used is reasonably necessary to advance tered in the Local Court and the maximum to achieve the following objectives: and protect the client’s interests cap of 10% in the District Court should which are at stake in the case. focus the parties on fully understanding (b) to facilitate the resolution of other Counsel for an accused should be mindful and identifying the issues in proceedings. issues relating to the proceedings that the identification of key issues in the With that understanding, the accused’s legal against the accused person, representative is expected to fulfil the man- trial and agreement as to facts might be of including identifying key issues datory obligation under s 72 of the CPA to assistance on sentence should the outcome for the trial of the accused person obtain instructions concerning the matters of the trial be adverse to an accused. Lesser and any agreed or disputed facts. to be dealt with in the case conference held penalties may be imposed for facilitating under Ch 3, Part 2, Division 5 of the CPA. It is evident from the enquiries made the administration of justice pursuant to Fundamental to the success of the case during readiness hearings in the District s 22A of the Crimes (Sentencing Proce- conference are the adequacy and timeliness Court that the opportunity to resolve issues dure) Act 1999 (NSW). of the briefs of evidence. The requirements in the proceedings during the case confer- As to difficulties being experienced by the for prosecution disclosure are found in ence is often overlooked. hours available for an accused in custody to Ch 3, Part 2, Division 3 of the CPA. I un- The identification of issues in dispute is attend a case conference by audio visual link derstand that the ODPP is working closely consistent with a barrister’s obligation under (‘AVL’), Corrective Services have been asked with NSW Police to ensure compliance r 58 of the Legal Profession Uniform Conduct to extend their hours so that AVL may be with the disclosure requirements and in (Barristers) Rules 2015 (NSW) to: available from 8am (and possibly earlier). The EAGP scheme may provide a ‘spring- particular towards the production of short (a) confine the case to identified issues board’ for further reform of the criminal form expert certificates in areas where which are genuinely in dispute, delays are being experienced. justice system. There is both a public and Initial results from case conferences are (b) have the case ready to be heard private interest in reducing delays in the promising. They disclose an increase in as soon as practicable, finalisation of serious criminal offences.

These include: 1. the service and screening of a simplified brief of evidence; 2. charge certification by a senior prosecutor; and Under EAGP, the committal 3. attendance at a mandatory case conference. process begins with an assessment In the higher Courts, the EAGP reform introduces a statutory sentence discount of whether the originating charges scheme. The changes also aim to achieve as laid by police are correct. greater continuity of representation through- out the life of a prosecution. Given my Office’s position at the corner- stone of each of these elements, the impact of Lloyd Babb SC the EAGP suite of reforms on the operations Director of Public Prosecutions (NSW) of my Office has been substantial. Most nota- bly, the abolition of the committal decision by The prosecution perspective period of unprecedented transformation both a magistrate has required the Crown to take in terms of internal processes and organisa- on the important role of gatekeeper in deter- Background tional structure. mining what charges are to be committed. When the Early Appropriate Guilty Plea The EAGP reform, which aims to encour- Benefits of the early involvement of a senior reform package came into effect on 30 April age the entering of guilty pleas in committal prosecutor at charge certification, case conference 2018, it introduced the most significant matters at an earlier stage, features several key and beyond. changes to the criminal justice system in New activities which are to be undertaken while As part of the EAGP changes, Crown pros- South Wales since the creation of the Office of the matter is still in the Local Court. Each ecutors from all over the State have been the Director of Public Prosecutions (ODPP) of these activities requires the significant taking ownership of serious criminal cases at in 1987. Since that time, and in preparation involvement of Crown prosecutors and solici- the Local Court stage. When the EAGP brief for those changes, my Office has undergone a tors within my Office. arrives at the ODPP, a solicitor and senior

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prosecutor (which may include a Crown pros- accessible throughout. held between the hours of 9am and 3pm. This ecutor) are assigned to the case and from that Early ownership of serious criminal cases presents a challenge to all trial lawyers. Unless time forward, the senior prosecutor remains by a senior prosecutor who will run the trial the senior prosecutor is excused from Court briefed to run the trial (should the matter not holds many benefits for the criminal justice to attend the conference while their trial resolve by way of a guilty plea). The prosecu- system. For defence counsel, it means the is running, or unless the conference can be tion team will then maintain ownership of prosecutor will be briefed to consider the rescheduled, then the solicitor allocated to the that case until completion. In order to achieve matter in Local Court and the charges to matter may be required to attend the confer- continuity, the cooperation and support of the be proceeded on will be settled in advance. ence in his or her absence. This is particularly judiciary in taking into account the Crown’s Further, the attendance of both the senior problematic for the Crown in matters that availability (where appropriate) in the higher prosecutor and defence counsel at a formal involve multiple defendants who are in cus- Courts will be required. face to face case conference provides greater tody. In the majority of such cases, a separate Under EAGP, the committal process opportunities for more meaningful discus- conference will need to take place for each begins with an assessment of whether the sions about the future direction of a matter. individual defendant, all of which will require originating charges as laid by police are cor- Early involvement of a senior prosecutor the attendance of same senior prosecutor. rect. The senior prosecutor will consider what also removes the risk of a perception by a Positive early signs the most appropriate charges are and inform defendant that closer to trial another pros- the police, the defence and the Court of their ecutor will bring a different or more prag- I have long advocated in favour of a criminal decision through the filing of a charge certif- matic approach to the running of the case. justice system that facilitates early charge icate in the Local Court. Charge certification For victims of crime, it provides them with certainty, ongoing case management and life- is not the end of the consideration about continuity of the same prosecutor team who long continuity. I am therefore pleased to note what charge (or charges) adequately reflects is responsible for handling of the case from that the preliminary results for EAGP matters the criminality of the alleged offending, it is beginning to end. provided thus far demonstrate an increase in merely the start of that process. The feedback I have received from prose- Local Court resolution and committals for Once a charge certificate has been filed, the cutors involved in case conferences is that the sentence, and a decrease in matters being senior prosecutor will then engage with de- discussions that are occurring are very similar committed for trial. While the reform is still fence counsel at a mandatory case conference to the discussions that have often occurred in in its infancy, this indicates the expected to explore options for resolving the matter by the weeks leading up to the listed trial date. impact of the changes is moving in the right way of an early appropriate guilty plea or, if Participants on both sides are coming to the direction. the matter is to be contested, to narrow the case conference with a real understanding I am buoyed by these early positive signs issues for trial. The difference between an of the strengths and weaknesses of the case and remain confident that the changes EAGP mandatory case conference and its and are trying to resolve the matter (if it brought about as a result of EAGP will con- previous iteration, commonly referred to as is appropriate to do so). tinue to reap benefits for all participants and the Criminal Case Conferencing Pilot, is The only issue that has been experienced stakeholders in the criminal justice system in that defence counsel must ensure their client with case conferences to date (and which may the months and years to come. is available to give instructions if necessary have some impact on its success) is the limi- during the period in which the meeting tation in the hours available to conduct con- takes place. While the defendant does not ferences where the defendant is in custody. In attend the conference itself, they must be those cases, the case conference can only be

Sharyn Hall, Rose Khalilizadeh and Phillip Boulten

The EAGP experience for defence practitioners at the private bar Some of the positive aspects of the scheme include the earlier service of the brief; early conversations between parties; a Crown prosecutor being briefed early; and the prosecution being able to discuss fair and members of the private Bar book confer- on the accused to propose options, not appropriate pleas, encouraging early pleas. ences on days when they are not in a trial, being willing to discuss the prosecution’s Unfortunately, the transition to the scheme prosecutors should be permitted to apply views during the conference and asking has not been seamless. Some common the same level of flexibility in scheduling; the accused to reduce their plea offers to issues are emerging: • The prosecution not seeking the views writing for later consideration; • Lack of flexibility in timing of case con- of victims, stakeholders or Director’s • The prosecution not being briefed with ferences, where, e.g., a barrister blocks chambers prior to case conference (even out time for a case conference, but where flexible options as to plea arrangements preliminary views); the prosecutors can only conduct the case so as to encourage the entering of a plea conference outside of Court hours and • The prosecution not considering appropri- deal, but rather forcing the accused into hence outside of AVL hours. As many ate disposition of the matter and relying inflexible or unnecessarily harsh plea

The Journal of the NSW Bar Association [2019] (Winter) Bar News 49 FEATURESPRACTICE & PROCEDURE

arrangements, which are not in the representations afterwards. In some cases, You need to be in a position to state what spirit of negotiation; charges are seemingly certified simply on the you want in order to protect your client’s ulti- basis that they were charged by the police in mate position. Some Crowns have been very • Corrective Services not facilitating AVL willing to consider all options and it has been or phone link-ups outside of a narrow the first place and without giving due con- possible to keep some matters in the Local window of hours, limiting the scope of sideration to the evidence in the brief. Court even if the client has not accepted the availability for the parties to participate in charge disposition offered by the Crown. a case conference i.e., compliant with the Defence lawyers do, though, find inflexi- regulations; and bility in the Court timetable frustrating. For • The discount scheme (and s 72 obligations The first thing to note is that it is example, when issues of fitness or a possible upon practitioners) being difficult to still possible to do things the old- defence of mental illness are raised, magis- explain to an accused who is cognitively trates ought to allow time for these issues to impaired or otherwise mentally affected. fashioned way. be resolved in the Local Court in order to Like most things, much depends on who protect the client’s options – and important- is appearing for the Crown. Defence lawyers Early representations can still be ly, their discount should the client decide to have run the whole gamut of very positive plead guilty. to less than impressive experiences. The first made before the case conference ... Consistency is the key to the scheme’s thing to note is that it is still possible to do effectiveness; in the approach taken by the things the old-fashioned way. Early rep- prosecution, in the practice of serving of the resentations can still be made before the case brief, and in case management. conference, so each party knows the other’s Encouraging efficiency in a complex ‘final’ position by that time. Even where the client is determined to justice system is no easy task. Inevitably, Some Crowns have been very proactive in plead not guilty, it is still important to use there will be teething problems and the conferencing the complainant and getting the process to establish the matters in dispute need for revision. instructions from the police before the case and to liaise with the Crown about further Addressing these concerns would not conference. Sometimes this still needs to be material to be served and any notices that only result in greater effectiveness of the finalised after the case conference, but the might be relied on; tendency, for example. scheme, but also reduce the costs to the groundwork has been laid. It is important to go to each case confer- criminal accused (whether privately funded But, some case conferences occur with- ence with instructions and if those instruc- or funded by Legal Aid or the Aboriginal out prosecutors thinking about the likely tions are to negotiate the charges, to be clear Legal Service). disposition of charges, requiring written about what those charges are.

The Early Appropriate Guilty Scheme, or prosecution to do so. EAGP, commenced on 30 April last year. It The scheme is not designed to increase the is a complex and multi-faceted scheme which overall number of pleas of guilty nor, therefore, includes the abolition of contested committal to reduce the number of trials which actually hearings. It is assumed that the reader has a run. It is designed to minimise the number of basic knowledge of its workings. Links to matters which are listed for trial, and which relevant articles and information are available occupy a position in the trial diaries of the on the public defenders’ website (see breakout District and Supreme Court, but which result within this article). in a late plea or no bill. The goal of the scheme, as is apparent from The public defenders, from the outset, were the name, is to encourage early pleas of guilty concerned about some practical aspects of the in appropriate cases. Broadly speaking (and scheme. The main concerns were about the there are important exceptions), the scheme adequacy of briefs served at the committal is designed to encourage accused persons to stage, the timeliness and continuity of the Richard Wilson plead guilty early by providing: briefing of Crown prosecutors and about the standard timetable in the Local Court. Deputy Senior Public Defender a ‘carrot’: a guaranteed 25% discount for a plea entered before committal; Adequacy of briefs and Overall there appear to have been somewhat The EAGP scheme – the public mixed results, especially in matters which defenders’ perspective a ‘stick’: a cap of a 10% discount are for committal to the District Court. thereafter, further reducing to 5% after We are aware of significant numbers of The public defenders appear for legally aided four days out from the first day of trial. cases where police briefs are served which accused persons in serious criminal matters It is also intended to encourage the prose- are inadequate for providing proper advice in the higher Courts across the State. This in- cution, before committal, to make any appro- about the strength of the Crown case and cludes clients of the Aboriginal Legal Service priate decisions to discontinue proceedings the appropriate charges. In many such cases, and community legal centres. public defend- and to accept pleas to appropriate charges (not the DPP have been making requisitions (very ers provide telephone advice to defence barris- just the most serious possible charges which often of their own motion) to obtain what is ters and solicitors in relation to legally aided fit the alleged facts at their highest). There needed. However in others, including at least criminal matters and have exposure, directly is, however, nothing in the scheme which one murder, the provision of further material or indirectly, to a wide range of criminal cases. provides any particular incentive for the has been resisted. This appears to be a false

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economy on behalf of police, who will need to that it will be quite difficult to achieve. Things give the required advice. The feedback which prepare a full brief in any event if the matter seem to be a little more hopeful in the regions we are receiving is that magistrates are usually cannot be resolved by a plea. where continuity has historically been much granting necessary adjournments but are not As any criminal lawyer knows, every ac- better than in Sydney. uncommonly threatening to refuse to do so. cused person – from those who are stridently However, one issue is concerning. We are In some cases, the prosecution is resistant to asserting their innocence to those who are aware of a number of cases in which charg- adjournments sought by the defence for the admitting their guilt – requires a mean- es have been certified where the evidence purposes of obtaining evidence. ingful answer to all three of the following contained in the brief does not support a Overall observations obvious questions (distilled to their crudest prima facie case in relation to at least some and most basic form): charges. Under the old committal scheme, In general, we understand that the practical this would have resulted in discharge at a aspects of the scheme appear to be working 1. ‘What are my chances?’ tolerably well in a reasonable proportion of ‘paper committal’. cases – with some significant exceptions. Not 2. ‘What will I get if I lose?’ In at least one of these cases, it appears that surprisingly, the more serious the offence, charges may have been certified when neither 3. ‘What will I get if I plead guilty?’ the more likely that an adequate brief will be the Crown prosecutor nor the ODPP solicitor There are some other questions - slightly less prepared and that a Crown prosecutor will be had read the brief. A fundamental aspect of the obvious but equally important – which often briefed early and appropriately. scheme is the requirement for a prosecutor to need to be answered even if not directly asked: When considering the various issues which certify that ‘the evidence available to the pros- arise about the adequacy of police briefs, the 4. ‘Based on my account of what happened, ecutor is capable of establishing each element proper briefing of Crown prosecutors and the do I have a defence? Does it mean I’m of the offences that are to be the subject of granting of adjournments, it needs to be kept guilty of something else?’ the proceedings against the accused person’ (s firmly in mind that, if a matter is prematurely Criminal Procedure Act 1986 5. ‘What are my chances of being found 66(2)(a) of the ). committed for trial, it is the accused alone guilty of something else (other than the It may be that, given their case load, some who suffers the penalty of having any discount most serious offence charged)?’ prosecution lawyers have insufficient time to capped at a maximum of 10%. read and analyse the brief in the timeframe In the long term there are some important 6. ‘What will I get if I’m found guilty of set by the Court under the scheme. Whatever something else?’ questions which need to be answered in order the cause, any such failures to comply with the to measure the true value of the scheme. 7. ‘What will I get if I plead guilty to some- requirements of the scheme are both unfair Hopefully BOCSAR will be able to answer thing else?’ to defendants and detrimental to the success them when their analysis of the EAGP case of the scheme itself. data is complete: Usually, no useful answer can be given to all Despite these troubling cases, the general of these questions without an adequate police impression overall is that there has been a 1. Has the scheme resulted in a significant brief. These questions are of great significance noticeable change in the availability of Crown increase in the proportion of accused to the EAGP scheme, where there are both prosecutors and DPP trial advocates before persons who plead guilty before, rather than after, a trial date has been fixed in ethical and legal obligations to provide advice committal and that fruitful discussions are the District and Supreme Courts? (see s 72 of the Criminal Procedure Act 1986). being had in a large number of cases where The briefing of Crown prosecutors that would not have been possible prior to the 2. Has the scheme increased the propor- introduction of the scheme. tion of accused persons who actually go One of the features of the scheme (although to trial because capped discounts have in no way enshrined in the legislation) is that The standard timetable in the Local Court and necessary adjournments encouraged those who have missed out the Crown prosecutor (or trial advocate) who on the ‘carrot’, and who might otherwise certifies the charge is meant to be the same The ‘one size fits all’ timetable of the EAGP have considered a late plea, to take their person who ultimately appears for the Crown scheme in relation to service of briefs, charge chances at trial? at trial, thus taking ‘ownership’ of decisions. certification and case conferencing appears We understand that Crown prosecutors and to be too long for some simple matters and 3. Has it had any effect upon the backlog of trial advocates are not always briefed, or ade- too short for long and complex matters. This trials – in particular in the District Court? quately briefed, in time to allow meaningful is particularly the case in matters such as The public defenders, along with all of the negotiations at case conferences. murders where, commonly, the defence will other ‘stakeholders’ in the criminal justice It is too early to make any definitive com- need to obtain expert reports or conduct other system in this State, await the answer to those ment on continuity of briefing, but we suspect investigations prior to being in a position to questions with great interest.

EAGP: resources for practitioners on both sides of criminal matters

The public defenders have prepared • ‘Early Guilty Pleas, A New Ballgame’ hundreds of statutory and common a number of resources to assist - A comprehensive explanation law offences including maximum practitioners to comply with of the scheme by former Senior penalties, standard non-parole their legal and ethical obligations Public Defender Ierace J periods, indictable/summary options, under the scheme in the best time limits and whether they are interests of their clients. • Model explanations to clients possible, index offences for child designed to comply with s 72 of protection registration or future These may be found on the the Criminal Procedure Act 1986 applications under the Crimes public defenders website (High Risk Offenders) Act 2006 https://www.publicdefenders. • A Table of Common Charge nsw.gov.au/ and include: options – a ‘ready reckoner’ of • Links to other important information

The Journal of the NSW Bar Association [2019] (Winter) Bar News 51 FEATURESPRACTICE & PROCEDURE

MEETING THE CHALLENGES OF THE MODERN BAR A Clerk's View

Anthony Cheshire SC and Penny Thew, interviewing Jeh Coutinho (clerk at Banco Chambers), Tobias O’Hehir (of O’Hehir Consulting and former clerk at Greenway Chambers) and Kristine Massih (clerk at Alinea Chambers).

At the request of the Bar Association, two The paperless practice has to file documents when I first started and clerks and one former clerk were asked to de- is now the ordinary way to file. These -ad scribe what they perceived to be current and become an accepted option of vances have, for me, improved efficiency in future challenges facing the modern Bar, chambers and as a clerk. Barristers are also some implications of those challenges and the modern barrister, and it is now more able to work remotely and do not the steps that can be taken by those charged need to spend as much time in chambers. with the invaluable role of supporting the commonplace to use file-sharing Finally, barristers’ awareness of the need for Bar to assist in managing those challenges. self-care and the Bar’s schemes in support The views expressed herein are those solely of services to brief barristers. of barristers’ wellbeing are issues that have the interviewees and are not considered ap- become more prominent at the Bar in the plicable to, nor as a standardised benchmark past few years. for, all chambers. Barristers’ chambers have risters and two of them were women. Recent differing priorities, resources and require- readership intakes have more evenly propor- ments and the responses below were given in tioned gender splits so at the junior Bar there 3. In your experience, has the recognition of that. is an increased level of diversity. My experi- nature of the work performed ence is that more women than men leave the by barristers changed over time? Bar in the first 10 years. While ethnic and Have the opportunities for new 1. When did you commence cultural diversity is on the rise, it is happen- barristers changed over time? your career as a clerk? ing at a slower rate than gender diversity. It’s an issue that gets less attention as well. Jeh: Court filing statistics show that there is Jeh: I started as a junior to Nick Tiffen at 7 less litigation than previously.1 Barristers are Selborne. It was a good education in cham- Tobias: The Bar is still not reflective of the increasingly being briefed to provide stra- bers life and I’ve been working for barristers wider community, however, there has been tegic or commercial advice to complement for 12 years now. a small increase of members from different backgrounds. their legal advice. I think this trend will Tobias: I commenced my career at continue as the regulatory climate evolves. the Bar in 2010. Kristine: In the 3 years I have been a clerk Barristers should be ready for this and look the Bar has not changed much. There have to build upon their existing skill sets (e.g., Kristine: I became a clerk three years ago been a number of changes over the time I by enrolling in a company director’s course). but my experience in chambers goes back have been in chambers across the last decade However, complex legal problems will con- over 10 years. though. The percentage of women practis- tinue to arise and the solutions will continue ing at the Bar has risen slightly, although I to be found at the Bar. have noticed women at the Bar are gaining The opportunities for new barristers are 2. How has the Bar changed since prominence. The ‘gay bar’ is something that you started your career as a clerk? changing. Solicitors retain more work for now exists in a more open way than it did themselves and online Court systems will For instance, have you observed 10 years ago. continue to take away traditional avenues a greater number of women, Technology has played a huge part in the for building advocacy skills. It is harder for people from a wider variety changes that have occurred over the last barristers to get into Court and that could be 10 years. The Supreme Court had by then of racial, ethnic or cultural problematic for developing the next genera- commenced publishing Court lists online tion of advocates. Every junior wants to be in backgrounds and/or people from but it was not extensively used by barristers. Court more and senior barristers should give a wider variety of backgrounds Before that I was cutting the lists from the careful consideration to finding advocacy Sydney Morning Herald and pinning them generally coming to the Bar? opportunities for juniors within their cases. to the noticeboard in chambers. E-filing Jeh: In 2006 I started on a floor with 25 bar- was emerging as an innovative new way Tobias: The opportunities open to new bar-

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Barristers are increasingly being briefed to provide strategic or commercial advice to complement their legal advice.

Kristine Massih and Jeh Coutinho risters can depend on their initial decisions; tiveness. This has meant less Court-based communicators in project managing a piece e.g., a new barrister’s choice of chambers, as work for barristers, especially juniors. of legal work. We are in a competitive service well as the barrister’s tutor and clerk, can all However, in my experience there will always industry and having a pleasant experience is have a significant impact on the develop- be a need for litigation of high-level, com- as important as the quality of the legal work. plex matters. ment of that barrister, as can the barrister’s Tobias: The main changes are solicitors pre-existing professional networks. briefing later in the litigation process and not Photography by: Michele Mossop It is well known that lower numbers of as many cold calls from solicitors to the clerk. matters are proceeding to hearing, which 4. Have you observed that the needs or briefing patterns of solicitors Solicitors rely heavily on their professional means less time for barristers in Court on networks for barrister recommendations their feet, making it difficult to gain a pro- have changed over time? as well as whether a barrister is known as file. This lack of exposure can limit the op- having expertise and a profile in a particular portunities for new barristers. It also means Jeh: I have not perceived briefing patterns to have shifted dramatically, but some needs area of law. The research for, and selection barristers need to work harder at marketing of, a barrister occurs many steps before a and business development strategies to have changed. There is a preference to brief electronically where possible, and having a solicitor contacts either the chambers or the ensure they are creating pathways and rela- clerk. Solicitors also make decisions based tionships to improve their practice. chambers Dropbox account certainly helps, as does having tech savvy barristers. Banco on whether they can work successfully and harmoniously with counsel which can influ- Kristine: It depends on the barrister, recently started conducting an annual in- ence their briefing decisions. These factors their practice and the stage of their career house CPD on the latest technology trends combined mean barristers ought to commu- progression. Speaking generally, I have ob- for managing documents electronically to nicate clearly their specialities, expertise and served that clients are moving increasingly make sure we’re across what’s available and practice areas. to try to keep matters out of Courts where how to make use of it. possible, and alternative dispute resolution Solicitors still require barristers to be Kristine: I have observed that there has is often an attractive option to clients due reliable and meet deadlines, respond to often been a push to curb or control liti- to its efficiency, flexibility and cost effec- emails, manage expectations, and be clear gation costs. Solicitors are becoming in-

The Journal of the NSW Bar Association [2019] (Winter) Bar News 53 FEATURESPRACTICE & PROCEDURE

creasingly cautious about briefing counsel. ... barristers can be informal and it has required the barrister to Direct briefing by in-house counsel has been ask for assistance. The Banco policy offers increasing as a result of corporate clients expected to engage with clear certainty and commitment about what looking for a time efficient and cost-effective is going to happen, allowing barristers to alternative. Consequently, this indicates an social media, speak on plan and meaning they don’t have to ask a increased awareness that barristers are avail- their expertise, and chambers board for help. It has a value i.e., able to provide advice and not solely called of comparable weight to that of an employee upon for litigation work. network and build who has the certainty of statutory benefits. The paperless practice has become an ac- In addition barristers whose practices are cepted option of the modern barrister, and it strategic relationships. winding down before they are ready to leave is commonplace to use file-sharing services the Bar can require support. Often it is only to brief barristers. Some of these applications The clerk can provide the clerk who knows how busy a barrister is. have real-time alerts to let the barrister know Bullying and sexual harassment is another valuable insight in to how when a file has been uploaded or updated. significant issue. The hierarchy and dynam- this can be achieved ... ics of chambers make it difficult for victims 5. Do you see it as part of the role to come forward. There is an obvious need for more research in this area so that there is of a clerk to provide particular data to base a proper response upon. assistance to support the varying speak on their expertise, and network and needs of barristers? For instance, build strategic relationships. The clerk can Tobias: Chambers is a shared services company, a model which is growing at an do you give more support in provide valuable insight in to how this can be achieved while balancing the func- astronomical rate in the wider commercial developing the skills and practice tions of a busy practice. landscape, which enables small businesses to of newer barristers or those obtain the benefits that shared workspaces Kristine: returning from parental leave? In my experience, I find that a provide. The shared structure of chambers clerk will strive to be sensitive to the needs serves the unique requirements of barristers of her or his barristers, but a clerk’s role in Jeh: Yes. Barristers will have different needs well; however, there are downsides. Barris- chambers is directed by the needs of the set, across the trajectory of their careers. For ters suffer more from social and commercial and no two sets are alike. The structure of new barristers, I try to have them work with isolation than other professions. chambers, resources they have available and as many different barristers and solicitors While barristers operate as solo busi- the mechanisms they have in place to sup- as possible to help build up their network. nesses, in truth they are part of a broader, port new or returning barristers, varies a lot Feedback is rare at the Bar, so I try and facil- collegiate profession. This broader inclusion between chambers, so it is the responsibility itate that to assist new barristers in improv- is often overlooked. It is important that of the chambers and the clerk to provide ing. For new barristers, running their own chambers encourage events to enhance the such support and development. Much of the business, managing commitments, being culture and collaboration among members. reliable and working out the value of their support that new and returning barristers receive is also provided by the broader legal The clerk and the administrative staff are work are common issues. I try to ensure that an active hub of chambers and should be junior barristers feel comfortable discussing community and the connections they main- included in organising and suggesting events issues with me so that we can work out these tain with their colleagues and clients. throughout the year. early challenges together. There are in addition some legislative For more senior barristers it’s about 6. Barristers are self-employed obligations (such as under anti-discrimi- giving strategic advice to position them for nation, anti-bullying and work health and increased amounts of unled or specialised and therefore generally do not safety legislation) that may apply to some work to prepare them for a silk application enjoy the statutory protections in chambers, and there are obligations on in future years. Having a plan for a future or benefits that employees barristers under the Bar Rules not to bully, silk application is critical and it needs to be receive. Does this pose particular put in place years before the application is harass or discriminate. Chambers and the challenges for barristers, and made. For barristers returning from parental clerk should make reporting of incidents leave a clerk can play an important role in some more than others? straightforward and easy to access. Adoption of the Bar Association’s Model Best Practice the return to work phase. The barrister can Jeh: Income is variable but overheads are be working from home or part-time and may Guidelines can assist with this. constant. Without the protections or bene- not be as visible, and this can make it hard to fits that employees have, barristers can find Kristine: As sole traders, barristers do not re-establish a practice. Having a clerk as an themselves in precarious situations. Women receive benefits like sick pay, but the nature advocate in chambers to make sure you stay are affected more than men because they of barristers’ work is that they can benefit front of mind in briefing and other cham- are more likely to take career breaks and to from flexible working hours/working from bers decisions can make a difference. thereafter bear the greater burden of paren- home to suit their own circumstances. This Tobias: I see the primary function of a tal responsibilities. For barristers returning may also mean that, because it is not a 9 to 5 clerk as providing frameworks and support from parental leave I’m proud to be part of a job, some barristers find it difficult to ‘clock for barristers to operate their businesses floor like Banco that has implemented a pa- off’. Barristers do not get paid overtime if successfully. Effective support means un- rental leave policy which we think is among they work longer than the standard working derstanding that each level of practitioner the most comprehensive. day but can charge an hourly rate. has different requirements, especially any I’ve worked at a number of chambers The other obvious challenge barristers face practice in a transitionary phase. The legal and my experience of each is that they have is inconsistent and unpredictable payment industry is changing rapidly, and barristers been supportive of barristers taking paren- for the work they do. This can put barristers can be expected to engage with social media, tal leave, but the structure of it has been under more pressure at various times.

54 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

tors provide additional hurdles for women, especially when a career at the Bar presents numerous other challenges for both women and men without adding additional barriers to success. Women at the Bar are empowered

to charge and recover fees just as men do. Photography by: Michele Mossop Kristine: The main difference that can be observed between men and women barris- ters is that women have conventionally taken time away from the Bar to have children. Women generally undertake the greater share of family responsibilities, which im- pacts upon their careers. However, differences also depend on the chambers and a barrister’s core practice areas. For example, a five year male barrister with a commercial practice may not be as busy in a public law chambers as a five year female barrister with a commercial practice in a commercial chambers. At Alinea Chambers, which is a commercial chambers, I have not noticed any particular difference between the amount of work of the men and women barristers of about the same seniority.

8. Firms and barristers are increasingly signing up to the Law Council of Australia’s Equitable Briefing Policy. How can clerks contribute to its Tobias O’Hehir successful implementation? 7. Have you observed that women recommend an ‘aggressive’ barrister to Jeh: Clerks are called upon to make sugges- barristers face different hurdles appear in a difficult case that involves a tions or recommendations of suitable coun- and challenges from those robust cross examination or a hard submis- sel for matters. They have an opportunity to sion. My observation in these situations is influence briefing decisions and should take faced by men barristers? that the expected response is to recommend into account gender outcomes in making Jeh: Yes. First, my observation is that some a male barrister. This is because there may their recommendations. A number of Silks women charge less for their work than men be a perception that female barristers are not have adopted the policy and we should en- at the same level, which is not appropriate. ordinarily associated with those characteris- courage more to do so. Clerks can be aware I have adopted mechanisms to attempt tics. However, my experience is that female of who in their chambers is a signatory (and to combat this. For instance, I encourage barristers are as capable as male barristers in who their preferred women juniors are) and female barristers to keep a spreadsheet of those types of cases. advise prospective solicitors of that fact in the hours they discount when doing their Fourth, women are more likely to take advance to set expectations about who will billing. It’s a good way of putting the issue career breaks than men. That may slow complete the counsel team. down their career trajectory, inhibit their in perspective for them and knowing and Tobias: From my experience clerks are capacity to buy chambers, or place them asserting your value is an important point of getting fewer cold calls from solicitors, further back in the pecking order for principle to learn. Barristers are likely to at- which means less opportunity to put any membership. Having robust parental leave tract more work by reason of appearing more particular barrister (including women) policies will help. successful if they are able to resist pressure to forward. Solicitors develop relationships reduce their rates. Tobias: Women at the Bar often charge less with individual counsel and unsurprisingly Second, as a generality government work than men at the same level, both in rate and use similar barristers each time, unless they makes up a larger percentage of the work of by reducing actual time spent on a matter. have asked their professional network for a women than of men, which further exacer- Women should be conscious of market rates recommendation for a new brief or matter. bates the gender pay gap since government and not charge less. In my experience higher Therefore, the clerk’s role is advocacy for work tends to pay less. In planning discus- rates do not lead to less work – if anything individual barristers and of the equitable sions we discuss whether better rates can be the opposite. I have also observed that briefing policy, while promoting the benefits negotiated or whether it is appropriate to women are asked by solicitors for discounts of briefing counsel. reduce the number of government briefs the for work done. When I have been told of this, Clerks can develop and implement strate- barrister holds at a particular time to reduce I have stepped in and prevented it because gies to facilitate networking and professional the impact on income. it is unacceptable. My advice to barristers events for solicitors and barristers to raise the Third, from time to time I am asked to is to generally not agree to this. These fac- profile of individuals. Both individual clerks

The Journal of the NSW Bar Association [2019] (Winter) Bar News 55 FEATURESPRACTICE & PROCEDURE

... a clerk will strive to efforts to understand the changing demands and requirements of legal services, whether be sensitive to the needs this is with alternative business structures or adopting technology and innovative practice of her or his barristers, solutions. By engaging with change, barris- but a clerk’s role in ters will remain relevant. Kristine: The traditional model of chambers chambers is directed by is evolving. Bricks and mortar establish- ments can never be replaced, but technology the needs of the set, and is allowing barristers to work outside of no two sets are alike. chambers more readily. This might be seen as facilitating work-life balance but can also be seen as making work inescapable. Some can cause untold levels of stress and anxiety. chambers have set up a hot desk or ‘virtual Some find that the unique demands of the chambers’ for a fee, so that associate mem- Bar are unsuited to them. bers or interstate barristers have a Sydney number, the use of staff to receive calls and Tobias: Barristers leave the profession for a temporary place to put down their robes if all manner of reasons and a contributing they have the need for it. and the NSW Barristers’ Clerks’ Association factor could be the unexpected nature of The future of the bar, as with most other can advocate for chambers to adopt the a solo practice and the lack of support and professional services, will be facilitated in- policy as a whole, thereby sending a clear structure that comes with running a small creasingly with the use of technology to aid message to firms and corporates that barris- business. Women tend to leave around the the efficiency of how and how long matters ters and chambers support the policy. I think seven-year mark, which is said to coincide progress. Some Courts have been integrating more work needs to be done with advocacy with having children, but women without some processes, e.g., as paperless, and virtual of the policy on the client side. children leave the Bar too. Some barristers, hearings are being used where possible, and after practising for a few years, do not matters are trackable online. These are steps Kristine: The number of men at the Bar achieve their commercial objectives and that can potentially make legal access more is significantly greater than the number of think being a salaried employee would be affordable and available in the future to women. The Equitable Briefing Policy aims better. Others leave because the Bar is at people who have limited access. for a briefing percentage of at least 30% of times an inhospitable environment. Achieving true gender and cultural diver- all briefs to go to women barristers by 2020, sity is an ever present issue and I believe that and that women barristers receive at least Kristine: Without elaborating too much, the few reasons I have observed over my we will see the gender and gender pay gaps 30% of the value of all brief fees. While the close. I think it is certain that the Bar will policy aims to inspire change, from a prac- 10 years in chambers are burnout from overwork; inertia (or lack of motivation i.e., eventually, over a longer time span, become a tical perspective, most chambers, and the more inclusive and multicultural profession. Bar as a whole, do not have enough women needed to succeed when you are self-em- barristers to meet these targets. ployed); opportunities arising elsewhere; In my observation and experience, the personal issues exacerbated by a barrister’s 11. What in your experience are some experience at the bar. clerk will always prioritise the interest of of the greatest challenges that the client to find suitable counsel with the the Bar is currently facing and skills, experience and relevant practice areas 10. What do you see as being will face going into the future? to brief, rather than aim to meet any target. the future of the Bar? The most important thing that a clerk can do Jeh: Diversity is a current challenge. The in an effort to support equitable briefing is to Jeh: The Bar has always been a source of Bar strives to attract the best lawyers and in always ensure that women barristers who are specialised advocacy and legal advice and I order to do so it needs to attract them from suitable for a brief are put forward for it. think it will continue to be that way in the all backgrounds. I think this will change future. We will need to respond to changing organically over time but we should still 9. In your experience, why do demands on the profession, including by be making every effort to demonstrate to embracing technology and innovation in prospective barristers that coming to the Bar barristers leave the Bar (other than the legal sector to maintain a high level of is a viable and attractive option for them. to retire or when appointed)? service, and to be a source of commercial Robust parental leave policies are an impor- and related strategic advice. tant part of that effort. Jeh: There are three primary reasons. The Getting enough work for all barristers will first is not having enough work for it to be Tobias: The future of the Bar is a continu- continue to be a challenge going forward. financially viable. Second, although on the ation of barristers being perceived as expert Barristers will need to think strategically face of it working for yourself seems like it advocates and ‘trusted strategic advisors’, about how they offer their services in order would be flexible, often it’s not, especially assisting businesses, organisations, and in- to remain competitive. If the number of op- when you’re in Court. Some barristers dividuals to navigate dispute resolution. To portunities to engage in advocacy decreases learn that the ebbs and flows of the job are stay relevant in the changing legal sector, we will need to consider how that craft can incompatible with the work/life balance barristers (and therefore the face of the Bar be honed and developed in future barristers they want to have. generally), need to be more diverse and repre- to maintain that specialised skill at the Bar. Last, being a barrister is emotionally sentative of the broader community. The Bar demanding. The burden of responsibility should adapt, change and be flexible where Tobias: The greatest challenge will be staying is significant, particularly in Court, and it required. The profession may need to make relevant and maintaining visibility within

56 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

from those around us. Having a structured Annual Review 2009, p14 and 2017 Annual Review, p23). In the Local framework of education would help estab- Court civil actions have generally trended down from 144,881 civil lish a pathway to clerking and help raise the actions commenced in 2005 down to 68,103 in 2009 and then back skills and professional standards of clerks up somewhat to 76,468 in 2017 (Local Court of NSW Annual Review 2005, p12; Annual Review 2009, p22; and Annual Review 2017, p14). as a profession. This would undoubtedly By contrast, the Federal Court actions commenced in the original enhance the work i.e., done in chambers. and appellate jurisdiction have trended up from 3,642 in 2009 to The role of a clerk is highly variable so I 5,921 in 2017 (Federal Court of Australia Annual Review 2009, p15; don’t know what form such a training course and Annual Review 2017/18, appendix 5). Similarly to the Federal could take, but something that provides an Court, actions commenced in the Federal Circuit Court have trended introduction to book-keeping, corporate up from 85,984 in 2008-9 to 95,716 in 2017-8 (both family and governance, legal foundations, and market- general federal law) (Federal Magistrates Court of Australia Annual ing would be a good building block. Report 2008-9, p16; Federal Circuit Court of Australia Annual Report 2017-18, Part 3). Tobias: I would highly recommend the NSW Bar provide training and education similar to the practice management course provided by the College of Law. A short syl- labus relevant to chambers would be benefi- cial and could include components relating to HR; IT systems; business, accounting, a rapidly changing legal landscape, coupled book-keeping and financial reporting; busi- with the ability to adapt to new technology ness development and marketing; organisa- and different practices; especially when con- tional change, system design and delivery; and, leadership and management. sumers demand change. One mechanism for making use of existing technology is for Kristine: Although such education and barristers to better develop a defined digital training could be provided, in my view presence that clearly sets out practice areas the best training I have received is through with specific reference to the work that they hands-on experience. Any more formalised have done and continue to do. training would preferably be tailored to the common needs of chambers, as different sets Kristine: The nature of the barrister being have different needs. self-employed/a sole trader necessitates that I think that the NSW Bar Association the structure of the Bar is not centralised, may like to consider inviting clerks to future so shifts in behaviour, gender equality and focussed CPD training that they provide advances in technology have been slower for barristers, such as the recent seminar than in many other professions. As a result, on ‘Blockchain and Cryptocurrency for the Bar can be resistant to change. How the Barristers’. It would assist clerks to have a Bar responds to innovation now can set the better understanding of the challenges that stage of the future Bar. The need for innova- lie ahead for barristers in staying relevant in tion and change is necessary to solve many the ever-changing modern world. of the challenges the Bar is currently facing. ‘Business as usual’ may not be an option. The NSW Barrister’s Clerks annual Universities will continue to produce law conference will be held on Friday 18 Oc- graduates, and competition at the Bar will tober 2019, with an opening dinner on continue. Social media is not just a trend and 17 October 2019 at which Chief Justice barristers face the challenge of optimising Bathurst is the guest speaker. platforms such as LinkedIn to get an edge Clerks are encouraged to bring at least three over their colleagues. barristers from their floor to the opening dinner which will be held at the Manly 12. If chambers were provided with Greenhouse in Manly. short, free or inexpensive education Barristers interested in attending should speak to their clerk. and training for clerks tailored to the specific needs of the Bar ENDNOTES

and barristers, for instance by the 1 Filings in the Equity Division (all lists) of the Supreme Court of NSW NSW Bar Association in tandem have trended down from 6,254 in 2005 to 5,526 in 2009 and then with the NSW Barristers’ Clerks' to 4,147 in 2017 (Supreme Court of New South Wales 2009 Annual Review p58 for 2005 to 2009; and 2017 Annual Review p51). Filings Association, would that assist in the Common Law Division – Civil (all lists) of the Supreme Court of clerks in supporting barristers New South Wales have trended down from 6,674 in 2005 to 6,313 in to prepare for the future? 2009 and then to 3,163 in 2017 (Supreme Court of New South Wales Annual Review, p57 for 2005 to 2009; and 2017 Annual Review, p48). Jeh: My own experience and that of my Registrations of civil matters in the District Court have also trended mentors and contemporaries is that we wer- down from 6,129 in 2005 to 5,297 in 2009 and then to 4,875 in en’t trained but learned as much as we could 2017 (District Court of New South Wales Annual Review 2005, p14,

The Journal of the NSW Bar Association [2019] (Winter) Bar News 57 FEATURESPRACTICE & PROCEDURE

Workers Compensation Commission of New South Wales Past Presidents honoured By Rodney Parsons, Registrar, Workers Compensation Commission

The Hon Paul Keating, Simon Feildhouse (artist) and Judge Greg Keating, the past President of the Workers Compensation Commission

Judge Greg Keating and family

The Workers Compensation Commission of New South Wales first operation on 1 January 2002, introduced alternative dispute resolu- sat as a specialist tribunal to resolve workers compensation disputes tion strategies to resolve disputes. The new Commission processes on 3 August 1926. Its members have, for almost 100 years since, were a marked departure from the strict pleadings and legalism of the dispensed justice to injured workers, their families and employers in system it replaced. The informal dispute resolution model continues to disputed compensation claims. successfully operate today. Workers compensation dispute resolution underwent a major A main feature of the Commission’s dispute resolution model is early overhaul in 2001. A newly formed Commission, which commenced access to conciliation conferences at which Commission-appointed

58 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

The Hon. Mark Speakman SC MP, Justice Terry Sheahan AO, Judge Gerard Phillips, President of the Workers Compensation Commission arbitrators assist the parties to narrow the issues in dispute and explore in resolving disputes, with the majority of disputes resolved within settlement options. Indeed, arbitrators have a legislative mandate to three months of lodgment. use their best endeavours to bring the parties to a resolution accept- Under new President, Judge Gerard Phillips, the Commission is able to them. Getting the parties together early is complemented by embarking on the next stage of its service delivery program, by incor- the requirement for upfront lodgment and exchange of evidence and porating greater use of digital technology. The centrepiece of the Com- restrictions on the introduction of new evidence, new claims and new mission’s digital service delivery platform is an online portal, which defences. Setting the parameters in this way enables the parties to was launched in May 2019. The new platform will provide significant focus attention on resolving, rather than enlarging, the dispute. benefits, including: Disputes are initially listed before arbitrators for a telephone con- ciliation conference, which is held 28 days from the date the dispute • 24/7 access to lodge and view applications from any device; is lodged. Disputes that are not resolved at the telephone conference are fast-tracked to a concurrent listing comprising of a face-to-face • Access to, and exchange of, information online; conciliation conference and, if necessary, an arbitration hearing. The • Electronic access to documents produced by third parties; conciliation conference/arbitration hearing is usually held three weeks after the telephone conference. • Real time access to the progress of matters, including future alloca- An expedited assessment process is also available to resolve disputes tions such as medical appointments and hearings; for closed periods of weekly compensation (up to 12 weeks) and medical expenses compensation (up to $9,389). Expedited assessment • Opportunities to further reduce timeframes to resolve disputes; conferences are held 1four days from lodgment of the dispute. The Commission may also refer a medical dispute to an independent med- • SMS technology for notification of listings and medical assessments; ical specialist for assessment, which usually takes place 35 days from lodgment of the dispute. • Ability to brief Counsel electronically. Proceedings in the Commission are conducted with as little for- The Commission is committed to full implementation of the online mality and technicality as the proper consideration of each matter portal by year’s end. Support services for practitioners transitioning to permits. If a dispute cannot be resolved by agreement, an arbitrator the new portal are available from the Commission. will determine liability for the claim. Less than ten per cent of disputes The Commission honoured retiring judges and past Presidents, Jus- are determined. An internal appeals process against decisions of arbi- tice Sheahan and Judge Keating, at a portrait unveiling of the former trators lies to a Presidential member for error of fact, law or discretion. Presidents, hosted by Judge Phillips on 23 May 2019. The portraits An appeal from a Presidential member is to the Court of Appeal in point of law. were unveiled by the Attorney General, the Hon Mark Speakman SC The Commission is widely acknowledged for its progressive MP before a well-attended gathering of family, friends and colleagues. approach to dispute resolution. The 2001 reforms were led by then The portraits of the former Presidents continue the tradition of Commission President, Justice Terry Sheahan AO. His vision of early honouring past heads of the jurisdiction. Like those before them, the intervention, document exchange and informal conferencing were portraits join the historical record of judicial officers in New South significant shifts in longstanding practice and procedure. It challenged Wales and are a fitting acknowledgement of their Honours’ service to legal professionals practising in the jurisdiction at that time. the State of New South Wales and their stewardship of a jurisdiction The early foundations laid by Justice Sheahan were built on by tasked with the important function of dispensing justice to injured Judge Greg Keating, who was President of the Commission from workers, their families and employers. 2007 to 2018. By the conclusion of Judge Keating’s appointment, the The portraits are on public display at the Commission’s premises at Commission had established a reputation for efficiency and durability 1 Oxford Street, Darlinghurst.

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60 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

The Journal of the NSW Bar Association [2019] (Winter) Bar News 61 FEATURESPRACTICE & PROCEDURE

Amending a ‘surprising and unwelcome result’ Natasha Laing reports on how the Justice Legislation Amendment Act (no. 3) 2018 restored the long assumed commercial jurisdiction of the District Court

District Court jurisdiction in the latter case, Ward JA (Beazley P and prior to 28 November 2018 Davies J agreeing) said as follows (at [71]): ‘Mr Quinn’s focus is on the source of Prior to the entry into force, on 28 November the debt claimed – whether one arising 2018, of the Justice Legislation Amendment under statute as a consequence of a Act (no. 3) 2018 (NSW), s 44 of the District Court Act 1973 (NSW) provided, relevantly, decision of a public body (the s 57(5) Housing Act as follows: claim) or one imposed by the Tribunal’ (1) Subject to this Act, the Court has jurisdiction to hear and dispose of the (which he described, incorrectly, as a ‘statu- following actions: tory fee’ under the Residential Tenancies Act – T 14.9). That is not warranted by the terms (a) any action of a kind: of the Supreme Court Act or rules. Housing (i) which, if brought in the Supreme NSW’s ‘action’, for the purposes of s 44, is Court, would be assigned to the an action to recover monetary sums. That is Common Law Division of that the kind of action i.e., typically, and was at Court, and the relevant time, assigned to the Common Law Division. There is no reason to think (ii) in which the amount (if any) that the underlying source of the debt should claimed does not exceed the Court’s make any difference to that result. jurisdictional limit, whether on Division by the foregoing provisions of a balance of account or after an this section. District Court’s commercial jurisdiction questioned admitted set-off or otherwise, Further in relation to s 53(3E), Part 14 of In Forsyth v Deputy Commissioner of Tax- the then Supreme Court Rules 1970 (NSW) In late 2017 the District Court’s commercial ation (2007) 231 CLR 531, the High Court relevantly provided that: jurisdiction was called into question. In The NTF Group Pty Ltd v PA Putney Finance held that, for the purposes of s 44(1)(a)(i), 2.(1) …there shall be assigned to the Com- Australia Pty Ltd [2017] NSWSC 1194 (NTF jurisdiction of the District Court depended mercial Division proceedings in the Group), Parker J observed (at [42]), as noted upon whether the action would have been Court: assigned to the Common Law Division of above, by reference to Forsyth v Deputy Com- the Supreme Court according to the assign- (a) arising out of commercial missioner of Taxation (2007) 231 CLR 531, ment rules as at 2 February 1998. transactions; or that for the purposes of s 44(1)(a)(i) of the District Court Act 1973 (NSW), jurisdiction At that time, in addition to the Court of (b) in which there is an issue that has depended upon whether the action would Appeal, the Supreme Court had seven divi- importance in trade or commerce. sions comprising, the Admiralty Division, have been assigned to the Common Law Di- the Family Law Division, the Administra- Thus, as at 1998, the legislation and rules vision according to the assignment rules as at tive Law Division, the Criminal Division, provided for the residual allocation of mat- 2 February 1998. Although his Honour ac- the Commercial Division, the Equity Divi- ters to the Common Law Division which cepted (at [45]) that the claim in NTF Group sion and the Common Law Division. As at were not assigned elsewhere. Relevantly, the was a ‘simple contractual claim in debt’, 1998, s 53 (Assignment of business) of the Commercial Division was allocated matters Parker J found that it would not have been Supreme Court Act 1970 (NSW) relevantly which arose ‘out of commercial transactions’ assigned to the Common Law Division in provided that: or where there was an issue with ‘importance 1998. This was because the principal claim in trade or commerce’. in the proceeding ‘was between two corpo- (3E) Subject to the rules, there shall be as- For decades, it was widely assumed that rate entities’ and the goods in question ‘were signed to the Commercial Division all commercial matters may fall within the leased for business purposes’. Accordingly, proceedings of a commercial nature District Court’s jurisdiction if quantum was ‘the proceedings fall within the description which are required by or under any Act, within relevant limits. This was supported of proceedings ‘arising out of commercial or by or in accordance with the rules … by decisions such as Mega-top Cargo Pty Ltd transactions’ ... and would have been as- to be commenced, heard or determined v Moneytech Services Pty Ltd [2015] NSWCA signed to the Commercial Division’ and the in that Division … 402 (Mega-top) and New South Wales Land District Court would not have had jurisdic- (4) Subject to the rules, there shall be as- and Housing Corporation v Quinn [2016] tion (at [45]-[46]). Justice Parker termed this signed to the Common Law Division NSWCA 338 (Quinn), which had taken a a ‘surprising and unwelcome result’ (at [46]). all proceedings not assigned to another broad view of the Court’s jurisdiction. Thus, This ‘surprising and unwelcome result’

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was followed in a number of subsequent ga-top were determinative. Those decisions, (no. 3) 2018. The effect of that Act was to cases in which the District Court’s jurisdic- his Honour reasoned, were to the effect that introduce into s 44(1) of the District Court tion was found to be absent or sufficiently the District Court had jurisdiction to deal Act 1973 (NSW) subs (c1). That section pro- doubtful that transfer to the Supreme Court vides, relevantly, that the District Court has was warranted. Such cases included Sapphire jurisdiction in respect of: Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] …any action arising out of a commercial NSWDC 160; Parramatta Operations TC ‘any action determined by the transaction in which the amount (if Pty Ltd trading as APX Parramatta v Con- any) claimed does not exceed the sulting Professional Engineers Pty Ltd trading Court on or after 2 February Court’s jurisdictional limit, whether as Consulting Professional Engineers Pty Ltd on a balance of account or after an [2018] NSWDC 202 (Parramatta Opera- 1998 that would have been admitted set-off or otherwise, tions); Nova 96.9 Pty Ltd v Natvia Pty Ltd [2018] NSWSC 1288; Sapphire Suite Pty within the Court’s jurisdiction The legislation is retrospective. Part 10 of Ltd v Bellini Lounge Pty Ltd [2018] NSWSC Schedule 3 of the District Court Act 1973 1366 (Sapphire Suite); Commonwealth Bank to determine had s 44(1)(c1) (NSW), which also was introduced by the Justice Legislation Amendment Act (no. 3) of Australia v QBE Insurance (Australia) Ltd been in force at the time is [2018] NSWSC 1440; Tzovaras v Williams 2018 (NSW), provides that it ‘is taken to [2018] NSWDC 275; Australian Wholesale taken to have been within the have applied on and after 2 February 1998 in Meats (Sydney) v S&R Cool Logistics Pty respect of the jurisdiction of the Court’ and Ltd [2018] NSWSC 1541; Bendigo and jurisdiction of the Court’. that, accordingly, ‘any action determined by Adelaide Bank v Gannon [2018] NSWSC the Court on or after 2 February 1998 that 1520. Presumably, a number of other cases would have been within the Court’s juris- were dealt with in a similar fashion by diction to determine had s 44(1)(c1) been in consent orders, or in the absence of written with claims in contract, quasi-contract and force at the time is taken to have been within reasons for judgment. other actions to recover monetary sums in the jurisdiction of the Court’. The issue was often identified late in debt: [76]-[83]. Thus, the long assumed commercial proceedings. In Parramatta Operations, e.g., Another case of interest is Bendigo and Ad- jurisdiction of the District Court has been the parties agreed that the Court lacked ju- elaide Bank v Jaeger [2018] NSWDC 244. In restored. risdiction after becoming aware of the issue that case, Mr Jaeger sought that judgment be on the first day of hearing. In many cases, set aside on the basis that it was ‘irregularly it took the Court by surprise. In Sapphire entered’ by reason of the jurisdictional issue. Suite, Harrison J commented at [13]: ‘As Mr Jaeger’s application was dismissed. The Parker J said in [NTF Group], so in this case, Court (Taylor SC DCJ) considered that ju- a conclusion that the District Court does not risdiction was ‘a question that must be found have jurisdiction is both ‘a surprising and at the outset’. As the Court of Appeal had unwelcome result’. Regrettably, however, already dismissed an appeal by Mr Jaeger, it seems to me to follow as a simple matter Taylor SC DCJ considered that the Court of statutory construction, uninfluenced by of Appeal had ‘implicitly found jurisdiction’. what the primary judge perhaps somewhat His Honour also considered (a) the principle wistfully described as ‘judicial memory.’ I of stare decisis meant that the application would have come to a different view if my ought to be dismissed; and (b) the Court experience of appearing in claims against would have dismissed the application as a guarantors were thought to be a permissible matter of discretion: [12]-[29]. indicator of the outcome.’ Restoration of commercial jurisdiction One case in which a different conclusion was reached was Jefferis v Gells Pty Ltd trad- In any event, at the prospect of the decima- ing as Gells Lawyers [2018] NSWDC 288. In tion of the District Court’s civil jurisdiction, that case, Dicker SC DCJ declined to follow re-litigation of earlier matters and much the various decisions following NTF Group longer lines at the Supreme Court, calls were after the issue was raised on the third day of swiftly made for legislative amendment. a final hearing. Instead, his Honour consid- Those calls were heard by parliament, result- ered that the judgments in Quinn and Me- ing in the Justice Legislation Amendment Act

The Journal of the NSW Bar Association [2019] (Winter) Bar News 63 FEATURESPRACTICE & PROCEDURE

Proceedings in the Expedition List By The Hon Justice J R Sackar

Practice Note SC 8 deals with urgent mat- 3. Have the parties proceeded up to the ters in the Equity Division. The original date of the hearing of the motion for Practice note governing the Expedition List expedition with due speed? in the Equity Division (Practice Note 42) 4. Are the parties willing if expedition is dates from 1987. Theoretically however all granted to do all in their power to abridge lists in the Division have some capacity to the hearing time including joining expedite matters where necessary and do so in an agreed bundle of documents, from time to time. preparing statements of witnesses, filing The Equity Division deals with urgent lists of objections to affidavits, making matters in two quite distinct ways. The admissions of matters not really in Duty Judge is theoretically available at all dispute and restraining wide-ranging times, all year as the first port of call. That cross-examination. Of course there judge however will usually only deal with will always be cases where one party’s short matters ranging from applications interests are to delay resolution of the for short service of proposed proceedings dispute as much as possible. Such cases which may take minutes, to contested ap- can usually be recognised and special plications for interlocutory relief which may procedures adopted. take several hours. The Duty Judge rarely if ever will hear Then there are two factors dealing with matters on a final basis. The more common the exigencies of the list, viz: course is that after the interlocutory process factors will be: 5. Any application for expedition must is concluded and only if necessary the matter (a) the loss of witnesses if the case is not be judged in the light of the number of will be referred to the Expedition List for al- fixed at an early date; other cases of equal or higher priority location of a date or dates for a final hearing. (b) matters of public importance; that also seek an expedited hearing. However matters can, on application be (c) that the subject matter of the 6. Any ‘right’ to expedition is a right to brought directly into the Expedition List litigation will be lost if it is not heard have the case fixed on one occasion. If, which is generally held each Friday. If appli- after a date has been fixed, it has to be quickly; cation is made direct to the List, SC 8.8 sets vacated, it is difficult indeed to justify out the required procedure. (d) that the litigation to date has been again expediting the proceedings: Ron In 2005 Campbell J (as he then was) in delayed through no fault of the Hodgson Cabramatta Pty Ltd v Wewoka Vaughan v Dawson [2005] NSWSC 33, dis- applicant; Pty Ltd t/as B P Cabramatta Motors cussed the List and reviewed the authorities. (e) that the applicant is suffering (Waddell CJ in Equity, 30 March He adopted what Young J (as he then was) hardship not caused through his 1989, unreported). had earlier said in Greetings Oxford Hotel own fault; The question here is whether there is a Pty Ltd v Oxford Square Investments Pty Ltd (f) that there is self-induced hardship seventh guideline, namely, that one should (1989) 18 NSWLR 33 at 42–43 as follows: (including those cases where not expedite a case where the chances of the [8] …when considering whether to corporate bodies fix a meeting date applicant for expedition securing what it expedite proceedings in this Division in the near future and then expect wants in the proceedings are not high. This there are at least six factors which are the Court to displace all other point arises because the defendant submits taken into account. matters to hear their dispute before that because of the matters I have already canvassed, the chances of the plaintiff ob- These are: that date); taining equitable relief must, according to (g) the nature of the case (e.g., ejectment, 1. Is this the appropriate Court for the the defendant, be slim. child custody); and litigation, in particular: I do not think that the Court ought, in an (a)  does the litigation fall into the (h) that there are large sums of money application for expedition, to make an assess- work normally done by this Court; involved. ment of the applicant’s chances of success. There may, of course, be other matters and However, I do agree that there is a seventh which can count as special factors, but the guideline, namely, that the Court should not (b) is there a sufficient nexus with New list that I have given is what occurs in the expedite a case if it considers that in all the South Wales. usual case. The health or age of parties or circumstances the chances of the applicant 2. Is there a special factor involved which witnesses may, of course, come under (a), (c) obtaining what it seeks in the litigation warrants expedition. Usually these or (e) or all of those headings. cannot be put as higher than speculative.

64 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

In the balance of his judgment, Campbell The Expedition List is run for the benefit and/or subpoenas, especially those directed J went on to discuss what he saw was needed of litigants. It is to be expected that consid- to third parties, will require a somewhat to enable the principles of granting expe- eration is given before application is made to pragmatic approach. Practice Note SC 11 dition to work in practice. To a very large the need if expedition is granted strictly to also comes into focus. Expert evidence can extent what the judge said provides the basis abide by the timetable fixed for procedural be a particular problem and thought must of the current practice note. steps. Failure to do so may lead to the matter always be given to the possibility of retaining Practitioners should keep in mind that being removed from the List. As Pembroke a single expert. as a rule of thumb matters which have an J observed in Smithson & Ors v National Ss 56–60, of the Civil Procedure Act estimate of five days or more will generally Australia Bank & Anor [2011] NSWSC 312: 2005 should be daily reminders for litigants not be heard in the Expedition List. For 1. It is important for the profession to and the clients, nevermore so than in the the List to provide a meaningful response recognise that the expedition list is run Expedition List. where urgency is required, judgment must for the benefit of all litigants in this also necessarily be expedited. Cases over five Division of the Court who can justify the days usually require more work from the requirement for urgency. The conduct of judge’s point of view which tends to slow the the list necessarily requires the Court’s adjudication process. In addition it will fre- constant re-assessment and re-balancing quently be the case that many proceedings of the competing claims for urgent which come into the List are initially com- hearings by an ever-widening group of menced by summons. Practitioners should litigants. The necessity of taking that expect that it is highly likely orders will be approach means that, depending upon made that the matter be pleaded in full. It the nature and number of competing is imperative, as always, where expedition is urgent claims, it is sometimes necessary granted that the issues are as precisely identi- to take a strict approach to defaults by fied as is practicable. parties in complying with timetables If a case is in urgent need of final hearing, set by the Court. It also means that, if (but where the practitioners are of the view through no fault of any particular party, the case might or will exceed five days) ap- time estimates prove to be inaccurate plication should nonetheless be made to the or optimistic, the parties may forfeit List. The Division obviously stands ready to the preferential dates that have been assist litigants. If a case has an estimate of allotted to them. more than five days the Chief Judge will nor- 2. In this respect, the conduct of mally be consulted to explore more general proceedings in the expedition list differs availability. Accommodation will be found from the conduct of proceedings in the for lengthier cases, if necessary. general list. The expedition judge takes At the hearing of the motion for expedi- a less generous, and more demanding, tion whatever length of hearing is estimated approach to delay or obfuscation, the Court will explore whether liability can inaccurate estimates of hearing time, be separated from quantum or whether the or incompetence in the preparation of determination of a question or questions the case for hearing. The consequence could or should be ordered. Where the only is that circumstances may all too or principal reason for expedition is the age frequently arise when expedition will be or ill health of one of the parties or their revoked, the hearing date vacated and witnesses orders can readily be made for the the parties’ priority forfeited. taking of that person’s evidence on commis- In deciding whether or not to expedite a sion usually before a person appointed under matter the Court plainly exercises a discre- UCPR, 24.3 and 31.6. This will not neces- tion. This involves a balancing process. On sarily be the trial judge as the Court may the one hand the Court must as an institu- wish to retain flexibility over who eventually tion be placed to expedite or fast track cases hears the matter. The evidence will usually requiring urgent determination. However be audio visually recorded. This procedure the litigation can only proceed if no party is will often take the urgency out of the pro- unreasonably denied an opportunity to put ceedings generally. its case forward. Issues involving disclosure,

The Journal of the NSW Bar Association [2019] (Winter) Bar News 65 FEATURESPRACTICE & PROCEDURE

Managing civil litigation – Federal Court style By The Hon Justice Jacqueline Gleeson

National Court Framework forms, rules, legislation, practice notes, latest judgments and speeches. In 2015 the Federal Court established the The judges assigned to the various National Court Framework (NCF). The key aim of the NCF is to reinvigorate the Court’s NPAs and sub-areas are identified on the approach to case management so that the Court website. Court is better placed to meet the demands The filing party nominates a relevant of litigants and can operate as a truly nation- NPA, although that nomination is not deter- al and international Court. minative. When a matter is filed, the Court promptly identifies the appropriate NPA and National Practice Areas the matter is then allocated to a judge in that The Court’s workload has been reorganised NPA. In some cases, proceedings are provi- by reference to nine National Practice Areas sionally allocated to the coordinating judge (NPA) and, where applicable, sub-areas. Each in a specific NPA for initial case manage- NPA and sub-area has dedicated webpages on ment, where issues may be clarified and the the Court’s website. matter timetabled, before being allocated to These webpages contain a summary of an individual judge’s docket for further case the NPA and any related sub-area, as well as management, if required, and substantive key NPA-specific resources, such as relevant determination.

66 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

The NPAs are: Parties and practitioners management of, and requirements relating 1. Administrative & Constitutional Law to, appeals and related applications. In the & Human Rights. are encouraged and expected interim, the Court has: 2. Admiralty & Maritime. to take a commonsense and 1. revoked the former Practice Note APP 1; 3. Commercial & Corporations. 2. partially amended and reissued Practice 4. Employment & Industrial Relations. cooperative approach to litigation Note APP 2 – Content of appeal books 5. Federal Crime & Related Proceedings. to reduce its time and cost. and preparation for hearing; and 6. Intellectual Property. 3. set out further information regarding 7. Native Title. appeals on the Court’s website, accessi- ble from the appeals homepage. 8. Other Federal Jurisdiction. have also had separate questions heard by a 9. Taxation. Full Court. Urgent (Duty) matters ‘Other Federal Jurisdiction’ includes def- National Practice Notes amation, common law claims, civil aviation The Court has adopted a nationally consist- and the Court of Disputed Returns. The Court has issued 27 national practice ent approach to dealing with urgent matters The Commercial & Corporations NPA notes that set out the Court’s case manage- by duty judges or a General Duty judge in has the following six sub-areas: ment principles and procedures. The practice the Commercial & Corporations NPA. A notes are published on the Court’s website. separate regime applies to urgent Admiralty 1. Commercial Contracts, Banking, Practitioners are expected to be familiar & Maritime NPA matters. Finance and Insurance. with the practices notes that apply to their The Court actively assists parties to bring cases. In general, practice notes are issued to: 2. Corporations & Corporate Insolvency. on applications that may require an urgent 3. General & Personal Insolvency. 1. complement particular legislative listing at the earliest appropriate time, 4. Economic Regulator, Competition & provisions or rules of Court; whether in a proceeding which has not yet Access. 2. set out procedures for particular types been commenced or in a proceeding that has 5. Regulator & Consumer Protection. of proceedings; and already been docketed to a judge. 6 International Commercial Arbitration. 3. notify parties and their lawyers of The Court’s website contains information particular matters that may require about how to apply for urgent relief. The daily Court lists identify the Commercial The Intellectual Property NPA has the fol- their attention. & Corporations duty judge and the General lowing three sub-areas: The Court’s practice notes fall into four Duty judge for each Registry. 1. Patents & Associates Statutes. categories: Electronic Court File 2. Trade Marks. 1. The Central Practice Note (CPN-1). Since 2014, all proceedings filed with the 3. Copyright & Industrial Design. 2. NPA practice notes. Currently, Court have an electronic Court file. All doc- each NPA, excluding the Other Insurance List for Short Matters uments filed in those proceedings are filed Federal Jurisdiction NPA, has an electronically only. Original documents are The Insurance List sits within the Commer- NPA practice note. retained by the instructing solicitor, or the cial Contracts, Banking, Finance and Insur- 3. General Practice Notes (GPNs). ance sub-area. The list caters for the prompt self-represented litigant as applicable. Court 4. The Appeals Practice Note. and efficient resolution of legal issues affect- orders are entered electronically. ing members of the insurance community, CPN-1 is the core practice note for Court Conclusion enabling the parties to resolve their disputes users and addresses the guiding NCF case without the need for full-blown hearings management principles applicable to all The Bar plays a key role in enabling effective where a crucial issue could be decided dis- NPAs. One of its main aims is to ensure that case management in the Federal Court, by cretely and swiftly. case management is not process-driven or understanding the Court’s case management The list is not intended to deal with all prescriptive, but flexible: parties and practi- framework and deploying it to facilitate the insurance claims, but principally short tioners are encouraged and expected to take just resolution of disputes, according to law matters, especially of policy interpretation a commonsense and cooperative approach to and as quickly, inexpensively and efficiently and concerning the operation of insurance litigation to reduce its time and cost. as possible. legislation. The list covers marine as well as The GPNs apply to all or many cases Postscript non-marine insurance. across NPAs, or otherwise address important The list has been running successfully administrative matters. They set out particu- The Bar’s attention is drawn to Australian since March 2016, and has dealt with over lar arrangements or information concerning Securities and Investments Commission v 50 matters, including 10 since April 2019. a variety of key areas, such as class actions, Australia and New Zealand Banking Group The Chief Justice has typically conducted expert evidence, survey evidence, costs, sub- Limited [2019] FCA 1284, where Allsop CJ initial case management of all matters in the poenas and technology. recently set out expectations for case man- list and has heard many of the matters that The Court is in the process of preparing agement in the context of alleged statutory have proceeded to a hearing. Two matters comprehensive practice notes outlining the unconscionability.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 67 FEATURESPRACTICE & PROCEDURE

The Role of Commissioners in the NSW Land and Environment Court By Ashley Stafford

Introduction requires to be heard on the site the subject of the appeal or application.15 In the New South Wales Land and Environ- Even where proceedings are to be heard ment Court approximately 73% of proceed- by a judge, Commissioners may sit with ings filed each year are in two of the merits the judge to give assistance and advice to decision-making jurisdictions of the Court: the Court, but not to adjudicate, in classes Class 1 (environmental planning and protec- 1, 2, 3 or 8 of the Court’s jurisdiction or tion appeals) and Class 2 (local government 1 Class 4 proceedings (civil enforcement and and miscellaneous appeals and applications). judicial review).16 In such cases, the Com- The work at first instance in these classes of missioner is prohibited from participating the Court’s jurisdiction is often undertaken in the adjudication process, beyond giving by Commissioners. Commissioners also un- assistance and advice.17 dertake work in some other classes. In allocating a specific Commissioner Accordingly, it is not unusual for Counsel to a matter, the Chief Judge is required to briefed to appear in that Court, whether at the have regard to the knowledge, experience conciliation or hearing of a merits appeal or at and qualifications of the Commissioners mediation, to come before a Commissioner. and to the nature of the matters involved Commissioners are appointed based on in the proceedings.18 However, other factors their knowledge or qualifications, and expe- such as the availability of particular Com- rience, across a number of prescribed fields missioners affect the arrangements made by 2 of expertise. These fields include law, town their expertise in a way which is analogous to the Court and it is possible for a Commis- planning, local government administration, the role of members of specialist tribunals in sioner to be allocated to a matter without environmental science, natural resource that they are expected to have qualifications prior experience in the subject area. As the management, land valuation, architecture, and experience that enables them to deter- allocation of the decision maker is usually 9 engineering, Indigenous land rights or mine merits proceedings. As for specialist only made known to parties on the business heritage. Commissioners are intended to tribunal members, Commissioners are able to day before the hearing, legal representatives be appointed across the range of expertise bring their own knowledge and experience to must therefore prepare for hearing on the required by the Land and Environment Court bear on their decision-making,10 provided that assumption that the decision-maker might Act 1979 (Court Act).3 in doing so they afford procedural fairness.11 not be familiar with the areas of expertise at Commissioners, who were called ‘Asses- Also similar to the procedure of many tri- issue in the dispute. sors’ or ‘conciliation and technical assessors’ bunals is the fact that advocates remain seated Merits appeals or applications in the until the nomenclature in the Court Act in proceedings before a Commissioner. Court of the types which Commissioners are 4 was changed in 1998, can be appointed Proceedings heard by Commissioners able to determine usually commence with a full-time or part-time, and there are a site inspection (unless the same Commis- number of acting Commissioners. A Senior There are a number of functions of the Court sioner has already viewed the site during a Commissioner is appointed, usually coming that Commissioners exercise. conciliation) and usually return to Court for from a legal background. The Chief Judge of the Land and Envi- any hearing. Expert witnesses are usually ex- While strictly speaking ‘the Court’ is com- ronment Court has discretion to direct that pected to attend site inspections. In appeals posed of the Chief Judge and other judges merits appeals or applications, in classes 1 where members of the public are entitled to of the Court,5 in proceedings that Commis- and 2 of the Court’s jurisdiction and Class make submissions, their verbal evidence is sioners are authorised to hear, they exercise 3 proceedings (land tenure, valuation, rating usually given at the site inspection. the jurisdiction of the Court,6 the decisions and compensation matters), be heard by one Alternative dispute resolution of Commissioners are deemed to be the or more Commissioners.12 A similar discre- decisions of the Court7 and Commissioners’ tion applies for proceedings arising under the In the Land and Environment Court, alterna- hearing and disposing of proceedings can Mining Act 1992 or the Petroleum (Onshore) tive dispute resolution is often expected, par- exercise the functions of the Court subject to Act 1991 (Class 8 proceedings),13 except that ticularly in merits appeals or applications.19 the Court Act and the rules of the Court.8 any Commissioners who hear those pro- A Commissioner presides over Court-di- In this sense, Commissioners are different ceedings must be Australian lawyers.14 rected conciliation conferences in Class 1, 2 from extra-curial tribunal members exercising While judges may also hear such matters, or 3 proceedings.20 Conciliations in classes administrative functions because Commis- Commissioners and not judges are required 1 or 2 usually commence with a site inspec- sioners must operate within the Court, but to preside over certain planning appeals or tion, after which the conciliation conference their role nonetheless requires them to apply tree-related applications that the registrar can be hosted on-site (if facilities are avail-

68 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

able) or more often move to a local venue fully reach agreement on the terms of a appointed by the Court as mediators in such as a council chambers or to a nearby decision in the proceedings that ‘the Court Court-directed mediations under s 26 of the Courthouse. If the conciliation is held in a could have made in the proper exercise of its Civil Procedure Act 2005. Courtroom, the Commissioner usually sits functions’, the Commissioner must dispose The Court can also refer these types of on the other side of the bar table from the of the proceedings in accordance with the proceedings to Commissioners for neutral parties, rather than on the bench. As for terms so agreed.24 In doing so, the Commis- evaluation under rule 6.2(2) of the Land and Court hearings, where residents are entitled sioner is not required to consider the merits Environment Court Rules 2007. However, 25 to make submissions, their verbal evidence is of the decision but is required to be satis- neutral evaluation has fallen out of vogue, usually taken on-site before the conciliation fied (which might include making findings given that conciliation is routine in merits conference commences. of fact and/or law) that there is jurisdiction appeal matters and it is not unusual for me- 26 If the conciliation does not resolve the to make the decision in the terms sought. diation to be contemplated where suitable in dispute, the Commissioner can proceed to The Commissioner is not required to look enforcement proceedings. hear the matter if the parties agree21 and, in behind the purported authority of the par- 27 A Commissioner can undertake an practice, if that Commissioner is allocated ties to reach the agreement. inquiry into any issued raised in, or other to hear the matter by the Chief Judge. While a Commissioner can adjourn the matter connected with, Class 3 proceed- Commissioners can also be required to conciliation if satisfied that there is good ings if directed to do so by the Court with proceed to hear a matter following a failed reason to do so,28 in practice this power is the consent of the parties. This appears to conciliation in the case of certain appeals used sparingly. The Court’s Conciliation be rarely utilised, possibly given that the involving smaller-scale residential develop- Conference Policy indicates that adjourn- consent of the parties is required to adopt ment.22 In either of these cases where the ments will usually only be granted in cir- same Commissioner ultimately hears the cumstances where the parties have reached any finding or observation in the resulting matter, the parties often consent to resident an agreement in principle and where a short report of the Commissioner – an unlikely evidence and the Commissioner’s observa- adjournment is required for documents to be prospect on any issue already in dispute tions during the site inspection being taken prepared to finalise the agreement. before the Court. as evidence at the hearing, avoiding the In civil proceedings (classes 1, 2, 3, Limitations on Commissioners need to repeat the process.23 4 and 8), Commissioners with appro- exercising Court functions Where parties to a conciliation success- priate qualifications are also sometimes

The Journal of the NSW Bar Association [2019] (Winter) Bar News 69 FEATURESPRACTICE & PROCEDURE

The functions of the Court that Commis- consistency in the application of planning 21 Court Act s 34(4)(b). sioners can exercise are limited in several principles is desirable.35 22 Court Act s 34AA(2). ways. First, they can only exercise the Court’s Principles are emerging to the effect that 23 Court Act s 34(4)(b)(ii) and 34AA(2)(b)(ii). 24 Court Act s 34(3). jurisdiction in the circumstances in which it the Court Act does not establish a hierarchy 25 Al Maha Pty Ltd v Huajun Investments Pty Ltd and Others [2018] is conferred on them by the Court Act and binding Commissioners to follow the deter- NSWCA 245; (2018) 233 LGERA 170 at [33] per Basten JA the rules of the Court, as outlined above. mination of a single judge sitting in the same (Leeming JA agreeing at [41]). Secondly, Commissioners are prevented class of proceedings, unless on a preliminary 26 [2018] NSWCA 245; (2018) 233 LGERA 170 at [16] and [29] per from exercising a number of the Court’s question in the same matter. However, the Basten JA (Leeming JA agreeing at [41]) and at [76] and [79] per functions by rule 3.10 of the Land and En- circumstances in which the Commissioner Preston CJ of LEC (Leeming JA agreeing at [41]). vironment Court Rules 2007, including the might depart from single judge decisions, 27 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at power to make discretionary costs orders, having regard to principles of comity, is yet [61]-[63] per Craig J. the power to determine any question arising to be fully settled,37 given that the Court 28 Court Act s 34(6). under the Uniform Civil Procedure Rules 29 For example, Futurespace Pty Ltd v Ku-ring-gai Council [2009] of Appeal has drawn a distinction between NSWLEC 153 at [42] per Pepper J. 2005 and the Court’s enforcement powers. principles associated with the desirability of 30 [2018] NSWCA 245; (2018) 233 LGERA 170 at [14] per Basten JA A notable exception to the prohibition consistency of decision-making in Class 1 (Leeming JA agreeing at [41]). 38 on Commissioners making costs orders appeals and those concerning comity. 31 Court Act s 56A(1). is that Commissioners are able to make Just because Commissioners hear merits 32 Noting s 48 of the Supreme Court Act 1970. orders under s 8.15(3) of the Environmental appeals or applications does not mean 33 Court Act s 57(4)(c). Planning and Assessment Act 1979, for costs that Commissioners do not, or cannot, 34 Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177 at [56] thrown away as a result of an amendment of decide questions of the law in the course per Tobias JA (Beazley JA agreeing at [1] and Basten JA agreeing at an application for development consent other of those proceedings. To the contrary, [102]). than minor amendments in certain appeals. 35 [2005] NSWCA 310; 64 NSWLR 177 at [15]-[16] and [96] per the Court frequently entertains legal Tobias JA (Beazley JA agreeing at [1] and Basten JA agreeing at [102]). 39 Those costs orders are not discretionary and questions in merits appeals. 36 Mac Services Group v Mid-Western Regional Council [2014] NSWLEC do not rely on the costs powers identified in As a consequence, Commissioner deci- 1072 at [54] per Cssr Dixon (as she was); Challenger Listed Investments rule 3.10. The mandatory nature of these sions are an important resource for barristers Limited v Valuer General (No 2) [2015] NSWLEC 60 at [30] per orders means that parties are left to argue briefed to appear in merits appeals or appli- Pepper J. whether such amendments are minor29 and cations in the Land and Environment Court. 37 See [2014] NSWLEC 1072 at [67] and [2015] NSWLEC 60 at [31] whether amendments are in fact being made per Pepper J. to the application for development consent. 38 [2005] NSWCA 310; (2005) 64 NSWLR 177 at [48] per Tobias JA ENDNOTES Thirdly, there are other statutory or gen- (Beazley JA agreeing at [1] and Basten JA agreeing at [102]). 39 See e.g., Helman v Byron Shire Council (1995) 87 LGERA 349 at [360] eral law constraints on the powers of Com- 1 Average of annual percentage of registrations (filings) from 2013 to per Handley JA at [360] (Kirby ACJ and Priestley JA agreeing) and missioners that may be relevant in particular 2017 in classes 1 and 2 excluding restored proceedings, using raw Australian International Academy of Education Inc v Hills Shire Council statistics from Department of Justice, The Land and Environment Court cases. The Court of Appeal has considered, [2013] NSWLEC 1; (2013) 196 LGERA 1 at [98]-[110] per Craig J. in respect of the Land and Environment of NSW: Annual Review 2017, State of NSW, 2018 pp 31-32. Court, that a ‘Court exercising limited ju- 2 That a candidate has the required qualifications is a matter for the risdiction will be subject to constraints which satisfaction of the Attorney General: Land and Environment Court Act may derive from differing sources’, which 1979 (Court Act) s 12(2). 3 Court Act s 12(2AB). sources in that case included the legislation 4 Courts Legislation Further Amendment Act 1998 s 3 and Schedule 6. that governed the subject matter of the 5 Court Act s 7. appeal (which might also raise mandatory 6 Court Act s 33(1) and (2A). or prohibited considerations), the Court Act 7 Court Act s 36(3). and the general law (including the require- 8 Court Act s 36(4). ment to afford procedural fairness, to act 9 Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2008] rationally and reasonably).30 NSWLEC 318 at [51] per Pain J, which statement of principle was accepted in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council Appeals and Another [2009] NSWCA 300; (2009) 170 LGERA 162 at [45], Appeals from orders or decisions of a Com- [49] and [51] per Basten JA (Macfarlan JA agreeing at [85]) albeit that missioner are made to a judge of the Court the appeal was allowed. 10 Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303 and may only be made on questions of law.31 at [43] per Lloyd J. Any further appeal is made to the Court of 11 For example, Castle Constructions Pty Ltd v North Sydney Council 32 33 Appeal but only by leave of that Court. [2008] NSWLEC 239 at [20] and [28] per Biscoe J. Nature of Commissioner decisions 12 Court Act s 36(1), noting that there is a specific provision in s 34C for proceedings to which s 34A(4) applies. Although decisions of Commissioners do 13 Court Act s 42. not constitute precedent, Commissioners 14 Court Act ss 30(2C) and 33(2A). (and even judges) may have regard to the 15 Court Act ss 34A and 34B. decisions of Commissioners when deciding 16 Court Act s 37 and 43. proceedings, given the desirability of con- 17 Carlewie Pty Ltd v Roads and Maritime Services (NSW) [2018] sistency of decision-making.34 NSWCA 181; (2018) 98 NSWLR 233 at [38] per Basten JA (Payne JA agreeing at [56] and White JA agreeing at [57]). Since 2003 Commissioners (often the 18 Court Act s 30(2). Senior Commissioner) have sometimes 19 For example, Practice Note – Class 1 Development Appeals at [32]-[33], included ‘planning principles’ in their de- Practice Note – Miscellaneous Appeals at [30]-[31], Practice Note - Class 3 cisions on matters of general application. Compensation Claims at [33] and [37], Practice Note – Class 3 Valuation Those principles are also not binding, but Objections at [12], [16]-[17]. the Court of Appeal has considered that 20 Court Act s 34(2).

70 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

Obtaining leave to appear - NSW Civil and Administrative Tribunal1 By Franco Corsaro SC and Penny Thew2

The Consumer and Commercial Divi- to be represented by, an Australian legal sion (the CCD) of the NSW Civil and practitioner; Administrative Tribunal (the Tribunal) is • another party in the proceedings is a gov- the largest of the Tribunal’s four divisions, ernment agency; receiving 53,722 of the total 65,549 claims received by the Tribunal in the 2017 to • the Tribunal is of the opinion that the 2018 financial year.3 party would be placed at a disadvantage if Having been established on 1 January not represented at the hearing; and 2014 for the purpose of consolidating • the Tribunal is of the opinion that rep- approximately 22 previously existing New resentation should be permitted due to the South Wales state tribunals (including the likelihood that complex issues of law or Consumer, Trader and Tenancy Tribunal, fact will arise in the proceedings. the Medical Tribunal and the Adminis- trative Decisions Tribunal of NSW),4 the Representation by a legal practitioner is Tribunal received 40,000 claims in the first also as of right in the CCD in certain cir- six months of operation.5 cumstances.13 Consistently receiving in excess of 50,000 Being cognisant of the complexities that claims per annum since it was established can arise as a result of the presumption makes the CCD one of the busiest civil ju- that parties are generally not entitled to be risdictions in NSW.6 represented other than by leave is impor- The CCD has wide-ranging jurisdiction tant. As was recently observed in respect conferred by 24 enabling acts. It includes of corporate entity parties, a company is claims made under Australian consum- an artificial person and cannot represent er,7 home building and strata schemes itself.14 Given the curial rules that generally legislation, as well as in respect of social require proceedings by a corporation to be housing, residential tenancy, motor vehicle conducted through a solicitor or authorised and retail lease claims.8 There is no mon- director15 do not apply in the Tribunal, the etary limit to the orders that can be made consequence of section 45 of the NCAT Act under certain legislation.9 is therefore that, in every case in which a In line with the objects of the Civil and company is a party to proceedings in the Tri- Administrative Tribunal Act 2013 (NSW) bunal, leave must be obtained for someone (the NCAT Act), which include ensuring (who may or may not be a legal practitioner) that the Tribunal is accessible and able to re- to represent it.16 solve issues ‘justly, quickly, cheaply and with A range of matters can be relevant to as little formality as possible’,10 the presump- the exercise of the Tribunal’s discretion as tion in proceedings before the Tribunal is to representation by a legal practitioner. that parties are not entitled to be represented The Tribunal may have regard to whether by any person other than by leave.11 the proposed representative has sufficient Significantly, however, notwithstanding knowledge of the issues to enable effective this presumption, the CCD’s Representation representation, has the ability to deal fairly Guideline issued in August 2017 (the CCD and honestly with the Tribunal and other Representation Guideline) sets out the cir- persons and is vested with sufficient author- cumstances under which the Tribunal ‘will ity to bind the party.17 While consideration usually permit a party to be represented, es- of these matters is not mandatory in respect pecially by an Australian legal practitioner.’12 of leave being sought for representation by 18 Importantly, these circumstanc- a legal practitioner, each may be relevant. es include if: In line in particular with the objects in sec- tion 3 of the NCAT Act and the procedural • the proceedings are in the Home Building matters under section 38, further relevant List and involve a claim or dispute for considerations include the capacity of the more than $30,000; individual seeking leave to be represented • another party in the proceedings is, or is to understand and effectively participate in

The Journal of the NSW Bar Association [2019] (Winter) Bar News 71 FEATURESPRACTICE & PROCEDURE

the proceedings in a manner which allows ENDNOTES 20 Preston v Diaspora Holdings Pty Ltd; Diaspora Holdings Pty Ltd v Owners them a reasonable opportunity to be heard; Corporation of Strata Plan 68608 [2019] NSWSC 651 at [249] per 1 This article is written with the approval of the Honourable Justice Lea Parker J, citing Aon Risk Services Australia Limited v Australian National the need to ensure that there is no material Armstrong, President of the New South Wales Civil and Administrative imbalance between the parties; the need to University (2009) 239 CLR 175 at [72]. Although cf Rodny v Stricke Tribunal, as well as the approval of the Deputy President, Consumer [2018] NSWCATAP 136 at [87]; Long v Metromix Pty Ltd [2019] ensure that the Tribunal is accessible and and Commercial Division, Mr Stuart Westgarth. The authors would NSWCATAP 8 at [15]. responsive to the needs of all of its users; and like in addition to express their gratitude to Andrew Coleman SC, part 21 Clause 9 of the CCD Representation Guideline. whether it is appropriate in all the circum- time member of the Consumer and Commercial Division of the New 22 By way of an order pursuant to section 50(2) of the NCAT Act. stances to give leave to a particular person, South Wales Civil and Administrative Tribunal, for his feedback. 23 Rule 31(1) of NCAT Rules; CCD Representation Guideline, clause 7. including a legal practitioner.19 2 The authors are appointed as part-time members of the Consumer 24 Section 45(1)(b)(ii) of the NCAT Act. Significantly, the ‘overriding objective’ and Commercial Division of the New South Wales Civil and 25 Rule 31(2) and Rule 33 of the NCAT Rules (NSW). contained in section 36(1) of the NCAT Administrative Tribunal. 26 Clause 11 of the CCD Representation Guideline. Act (to facilitate the just, quick and cheap 3 NCAT Annual Report 2017–2018, p31. resolution of the real issues in the proceed- 4 Civil and Administrative Tribunal Bill 2013 (NSW), Explanatory note, ings) has been observed to have no appli- p1-2; Robinson SC et al, NCAT Practice and Procedure, LBC, 2015, [1.10]-[1.20]. cation to questions of representation, given 5 NCAT Annual Report 2014, p5. such questions are ‘incidental procedural 6 Other than the Local Court of New South Wales, in which 76,468 questions’ rather than ‘the real [substantive] civil actions were filed in the 2017 calendar year (Local Court of New 20 issues in dispute’. South Wales Annual Review 2017, p14). By way of comparison, there Evidence of each relevant matter can be were 5,921 filings in the original and appellate jurisdiction of the Federal adduced21 and representation determined in Court of Australia in the 2017 year (Federal Court of Australia Annual the absence of the parties.22 Report 2017-2018, appendix 5); 4,147 filings in the Equity Division (all Finally, from a practical perspective, lists) and 3,163 filings in the Common Law Division – Civil (all lists) an application to be represented can be of the Supreme Court of New South Wales in the 2017 year (Supreme made orally or in writing at any stage of Court of New South Wales 2017 Annual Review, p51 and 48); and the proceedings23 and can be granted in 4,875 civil matters registered in the District Court in the 2017 year respect of any Australian legal practitioner (District Court of New South Wales Annual Review 2017, p23). 7 The Australian Consumer Law, schedule 2 of the Competition and or a particular practitioner.24 Importantly, in Consumer Act 2010 (Cth). making an order granting leave, the Tribu- 8 NCAT Act, Schedule 4, clause 3. nal may impose such conditions on the leave 9 See for instance the Retail Leases Act 1994 (NSW); Property, Stock and as it deems fit, including that the estimated Business Agents Act 2002 (NSW); Strata Schemes Management Act 2015 25 costs of the representation be disclosed. An (NSW), section 106(5); Dividing Fences Act 1991 (NSW); Residential order that can be made in conjunction with (Land Lease) Communities Act 2013 (NSW). such an order is that, where leave is granted 10 Section 3(c) and (d) of the NCAT Act. to only one party to be legally represented, 11 Section 45(1) of the NCAT Act. that party will not seek an order for costs if 12 Clause 11 of the CCD Representation Guideline. successful, costs otherwise being available in 13 In appeals from a decision of the Tribunal to the Appeal Panel where the CCD in the circumstances set out under the party had leave below (section 45(2) of the NCAT Act); in claims rule 38 of the NCAT Rules and/or section under the Retail Leases Act 1994 (NSW) and where the party has 60 of the NCAT Act. been granted legal assistance under the Fair Trading Act 1987 (NSW) (Schedule 4, clause 7, NCAT Act). Overall, it is clear that the operation of the 14 Preston v Diaspora Holdings Pty Ltd; Diaspora Holdings Pty Ltd v Owners CCD Representation Guideline, in conjunc- Corporation of Strata Plan 68608 [2019] NSWSC 651 at [234] per tion with rule 32 and the matters relevant as Parker J. a result of sections 3 and 38 of the NCAT 15 Uniform Civil Procedure Rules 2005, Rule 7.1(2) and (3). Act, provide a framework of the circum- 16 Preston v Diaspora Holdings Pty Ltd; Diaspora Holdings Pty Ltd v Owners stances in which the Tribunal ‘will usually Corporation of Strata Plan 68608 [2019] NSWSC 651 at [234] per Parker J. permit a party to be represented, especially 17 Rule 32 of the Civil and Administrative Tribunal Rules 2014 (NSW) by an Australian legal practitioner.’26 (the NCAT Rules); Clause 8 of the CCD Representation Guideline; Rodny v Stricke [2018] NSWCATAP 136 at [78]-[88]; Long v Metromix Pty Ltd [2019] NSWCATAP 8 at [15]. 18 Rodny v Stricke [2018] NSWCATAP 136 at [87]; Long v Metromix Pty Ltd [2019] NSWCATAP 8 at [15]. 19 Rodny v Stricke [2018] NSWCATAP 136 at [82], [83], [88]; Long v Metromix Pty Ltd [2019] NSWCATAP 8 at [15].

72 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

Keeping Your Ex in the Dark Applications without notice in Family Law

By Claire Cantrall, Waratah Chambers

As attractive as it may be to litigate in the procedure identified in rule 5.12, as well as absence of an opponent, applications without the procedure applicable to recovery orders notice are sparingly used in family law, as in generally, articulated in Rule 21.12. other jurisdictions. An ex parte application, In practice, the evidence required to move by nature, represents the denial of natural the Court to make an ex parte recovery order justice to the absent party and is a rare and would largely focus on urgency, family vio- extraordinary remedy to be used only when lence and the risks to the child or a parent, the circumstances require. should the respondent have notice of the The jurisprudence underpinning ex parte application. In particular, rule 5.12 (b) will applications in family law is largely borrowed be closely applied by the Court making the from the common body of case law, giving determination5. The Court is also mindful rise to settled and predictable principles. of the denial of natural justice that such an These can be broadly summarised as follows: application brings, and should not be moved By nature, ex parte orders are made in lightly when exercising this jurisdiction6. very limited circumstances, where they are Another common ex parte application in required to protect people or property, and parenting matters is an application for a family would be limited in scope and time to the law watchlist order (restraining a person from return of the matter before the Court with removing a child from Australia). both parties present1. A family law watchlist order is a type of re- The onus is on the party seeking to move straint able to be made by the Court pursuant the Court to justify the making of the order. orders, in line with the general principles. to the general restraints identified in section The applicant would have to show the making The requirement for full and frank disclosure 114 of the Family Law Act 1975. In practice, of the order is necessary, and other remedies of all the facts relevant to the application is for a successful ex parte application of this would not be preferable or appropriate2. specifically articulated at rule 5.12(b). This nature, the applicant would have to show a Of particular importance in any applica- provision requires the Court to consider risk of one party leaving the jurisdiction with tion seeking a hearing in the absence of the family violence, previous cases and orders a child or children if they became aware of other party, is the duty of the applicant to currently in force, any likely hardship to the the application. The Court would need to be provide full and frank disclosure to the Court respondent, a third party or a child if the moved by evidence of risk in the particular of all the facts, including those that may be application is made, whether the intention to circumstances, including ties to other juris- unfavourable to the applicant’s case3. make the application has been made known dictions and capacity of the other party to Ex parte applications are best made as soon to the respondent, as well as capacity to give remove the child or children. The obvious as possible after the circumstances giving rise an undertaking as to damages, urgency of the risk is that one party is able to circumvent to the need to apply for the order (or as soon application and harm that may result if the the jurisdiction of the Court by removing the as possible after the applicant learns of the order is not made. children from Australia, and for this reason circumstances). The Court should provide the Rule 5.13 identifies the need for an ex parte the Court can often be moved to make in- respondent an opportunity to be heard at the order to operate until a specific time or until terim orders without notice on this discrete earliest possible time following the making of the date when the matter can be heard. issue. the ex parte order4. A recovery order is a remedy available In summary, ex parte remedies are sparing- Should the ex parte application call for an pursuant to Section 67Q of the Family Law ly and carefully used by the Courts exercising injunction, the applicant may be required to Act 1975. In short, the head of power permits family law jurisdiction. They require careful give the usual undertaking as to damages, the Court to make an order for a child to be preparation on the part of the practitioner if the granting of the injunction may cause returned to a parent or person identified in and candid presentation by counsel, with damage to the respondent. the section, authorising federal and state law close regard to the relevant practice rules. Perhaps the most common ex parte enforcement to act to effect the order, includ- application concerning parenting matters ing by use of force. In circumstances where ENDNOTES is an application for a recovery order (for a party to proceedings identifies imminent return of a child). danger to a child whom they seek to have 1 In the Marriage of Sieling (1979) 4 Fam LR 713. 2 In the Marriage of Lee (1977) 3 Fam LR 11, 609. The procedure in relation to applications recovered to their care, it may logically follow 3 Thomas A Edison Ltd v Bullock(1912)15 CLR 679. without notice can be found within the that giving notice to the other party may 4 In the Marriage of Sieling (1979) 4 Fam LR 713. Family Law Rules 2004, in particular at rule heighten the danger. If this is so, the Court 5 See generally Dickens & Dickens [2014] FamCA 1226 and Hurley & 5.12. Notably, such applications are limited may make an order in the absence of the party Lomu [2016] FamCA 774. to applications for interim or procedural who has retained the child, with regard to the 6 Moore & Evers (Summary Appeal) [2014] FamCA 947.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 73 FEATURESPRACTICE & PROCEDURE

Work Health and Safety By His Honour Judge A Scotting

This article seeks to address some practical lutely not an issue. Second, the evidence issues arising from the conduct of prosecu- that needs to be gathered to establish a lim- tion of offences provided for by theWork ited capacity to pay will vary. Third, if there Health and Safety Act 2011 (the Act) and the is a limited capacity to pay then there may Work Health and Safety Regulations 2011. be the need to limit the costs awarded too. Pleas of Guilty Finally, limited capacity to pay may not be relevant at all if the circumstances warrant The judges are appreciative of the consid- the imposition of a substantial fine.3 erable effort that goes into the written sub- Insufficient attention has been paid to missions that we get particularly in pleas of date to the ‘Other Orders’ that the Court guilty, but we would like to suggest some can make pursuant to Division 2 of Part 13 subtle changes in focus. of the Act. A Court may make any of the First, the facts in WH&S are long and other orders in addition to any other pen- on occasions unduly so. That results in the alty imposed, if the Court finds a person Court having to summarise the facts and guilty or convicts the person of an offence.4 that involves a risk of failing to identify an This clearly includes when an order is made essential point, in aggravation or in miti- pursuant to section 10 Crimes (Sentencing gation. It would be of assistance if written Procedure) Act 1999. Inherent in the New submissions did identify the essential facts South Wales approach is that the entry of a with references to the paragraph numbers conviction is considered to be punitive, or of the Statement of Facts. It would be even may lead to legal and social consequences better if the parties could agree on a simpli- There have been a few recent that extend beyond any punishment im- fied version of the facts that could appear in posed by a Court.5 However, this is not the the judgment. As an aside, a comprehensive decisions of the CCA that shed position in other jurisdictions, particularly set of Agreed Facts should usually alleviate some light on the penalties Queensland. the need to tender investigation reports and An offender may voluntarily undertake other documentation. to be imposed for section 32 such matters to be relied on in mitigation Second, the most essential findings in of the penalty to be imposed.6 For any of a plea of guilty are the facts relevant to offences ... these decisions, the other orders to be successfully made, objective seriousness. It is surprising that the Courts require the assistance of the many sets of submissions do not focus together with other decisions of representatives of the parties as to the cost on this element. The principles relevant and availability of suggested measures and to objective seriousness are set out in a the Court of Criminal Appeal, methods to ensure compliance.7 1 number of judgments. have placed upward pressure Recent examples of other orders made by The most common aggravating factor is the District Court include adverse publicity the causation of injury or death as a result on monetary penalties imposed orders8, Work Health and Safety undertak- of the offence. A section 32 offence does ings and training orders.9 not require an injury to be sustained but for Category 2 offences. Defended Hearings only that an individual is exposed to a risk of serious injury or death. Accordingly, the The Practice Note (PN) applies to all pros- causation of serious injury or death estab- impact when the most likely outcome is the ecutions commenced after 5 November lishes the aggravating factor because the imposition of a fine. Further, an early plea 2018. It was conceived because a number harm was greater or more deleterious than is likely to reduce the costs claimed by the of defended hearings had to be adjourned may ordinarily be expected for the offence prosecution. to accommodate late evidence or changes in question.2 The long term impact on the Capacity to pay is also significant. There of position in the prosecution case.10 Not- injured worker is useful information and is always some utility in placing the defend- withstanding that the PN applies to cases could be aggravating or mitigating. ant in a class of capacity. While an appro- commenced after 5 November 2018, we The most significant mitigating factor priate penalty for the offence is $100,000 are endeavouring to apply it as closely as that can be established and has a demon- and the defendant has the capacity to pay possible to cases that were commenced strable effect in mitigation of sentence is that fine, it is useful for the Court to know before that date. This involves the prosecu- an early plea of guilty. The application generally how that capacity relates to other tion justifying that their case is settled and of a 25% discount has a real bottom line PCBUs for whom capacity to pay is abso- appropriately disclosed and the parties have

74 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

taken all reasonable steps to limit the mat- in black and white or are otherwise of poor It is relatively clear that these decisions, ters in dispute and to proceed accordingly. quality. It is of considerable assistance to together with other decisions of the Court It should be noted that the requirements witnesses and the Court to have photo- of Criminal Appeal, have placed upward imposed on a defendant by the PN are graphs, plans and maps presented in large pressure on monetary penalties imposed for voluntary, as it does not have the force of scale and in high resolution, if possible. Category 2 offences. Photograph: Fairfax Media The High Court has also recently consid- legislation requiring the defendant to im- Written Submissions after the 11 ered the scope of the operation of the Act13 pinge on the right to silence. Completion of the Evidence. The PN is consistent with counsels’ and has granted special leave in relation to duty to limit the matters in dispute and There have been a number of cases where whether prosecutions under the Act should 14 to run only the matters that are neces- the Court is being asked if the parties can be given priority to coronial proceedings. sary to properly represent the legitimate be given time at the end of the evidence ENDNOTES interests of the client. for the preparation of written submissions. When Investa was run by two experi- While this will remain to be determined by 1 See e.g., Bulga Underground Operations Pty Ltd v Nash [2016] enced Senior Counsel the matter complet- the trial judge in the circumstances of the NSWCCA 37 and the cases referred to in footnote 12. ed within eight days of its 15 day estimate. case, it raises two issues. First, the Court 2 R v Youkhana [2004] NSWCCA 412 at [26]. treats these matters as judge alone trials and 3 Jahandideh v R [2014] NSWCCA 178 at [16]. Statements were tendered by consent 4 ss 234 and 235 of the Act. without requiring deponents for cross-ex- the parties and the victims are entitled to a 5 R v Mauger [2012] NSWCCA 51 at [39] per Harrison J, quoting amination, expert reports were received and verdict as soon as possible. This means that R v Ingrassia (1997) 41 NSWLR 447 at 449. there was an extensive set of Agreed Facts. in appropriate cases we will try to allocate 6 See e.g., remedial training for a class of workers; SafeWork NSW v Each party presented one folder of ‘Critical writing time into our schedule to get judg- Wholesale Joinery Pty Ltd [2018] NSWDC 91 at [41]-[42]. Documents’ that prevented the need to go ments out. If a case runs over time or we do 7 Toni Schofield and Belinda Reeve, ‘The Role of the Judiciary in searching for documents in a large tender not know when a case will finish, these ar- Occupational Health and Safety Prosecutions: Institutional Processes bundle. rangements will be compromised, so it will and the Production of Deterrence’, (2012) 54(5) Journal of Industrial Relations 688 at 702. The default order of the Court will be necessary to set out the dates in advance if this arrangement is to be entered into. 8 SafeWork NSW v KD & JT Westbrook (No2) [2019] NSWDC 15 for be from now on that an expert’s evi- the reasons at [59]-[67] and the orders are at [75]-[79]. dence-in-chief will be given by way of the Recent Cases of Interest 9 SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd [2018] tendering of their reports. In Investa, the NSWDC 211. parties consented to calling the experts There have been a few recent decisions of 10 SafeWork NSW v Investa Asset Management Pty Ltd [2018] NSWDC simultaneously, which was also helpful in the CCA that shed some light on the penal- 173 (Investa). resolving the issues between them. While ties to be imposed for section 32 offences.12 11 Division 2A of Part 5 Criminal Procedure Act 1986. this process is encouraged, it will remain a 12 A-G (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35, A-G (NSW) These cases highlighted the simplicity of v DSF Constructions Pty Ltd [2019] NSWCCA 33, A-G (NSW) v matter for consent in appropriate cases. the steps that could be taken in avoiding Macmahon Mining Services Pty Ltd [2019] NSWCCA 8 and 18 Morris A lot of photographic evidence is pre- the risk as a very important factor in assess- McMahon & Co Pty Ltd v Safework NSW [2018] NSWCCA 36. sented in these matters and often the ing the objective seriousness and thereby 13 Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 photographs tendered are small, produced the appropriate penalty for an offence. 14 Helicopter Resources Pty Ltd v Commonwealth [2019] FCFCA 25.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 75 FEATURESPRACTICE & PROCEDURE

Dealing with cost and delay

Abridged version of a paper by Justice DJ Hammershlag 1 published in Resolving Civil Disputes (Lexis Nexis). Prepared by Kon Stelios.2

Introduction alent effective management at intermediate tunity for the Court to begin ascertaining the appellate level. Save for complex commercial issues. Requiring parties to state their position More effective case management is the modern causes, judgment should be given in weeks. early is an important time and cost saver. It practical, and perhaps only available, judicial Cases which warrant longer than three months may also be useful to require parties to provide response to counter the ever-increasing cost for judgment should be rare. a statement of the real issues for determination and delay pressures exerted by significant com- The Foundations earlier than that provided for in the usual order mercial civil litigation. for hearing. Active case management is a relatively Active case management and participation by Pleading arguments may cause delay and modern phenomenon. Commercial transac- the legal profession in the process has since expense. SC Eq 3 provides that as a general tions and the disputes to which they give rise 2005 been mandated in New South Wales.3 rule, applications to strike out, or for summary are increasingly complex. One effect is that This is reflected in Part 6 of the Civil Procedure judgment, will not be entertained.6 Pleading case management techniques to deal with such Act 2005 (NSW), which: arguments can usually be avoided by discus- disputes are continually evolving. This article, sion with the parties where the adequacy of which is an edited version of a paper first pub- • confers power on the Court to facilitate active and effective case management, in- pleading is an issue. At an early stage of pro- lished in Michael Legg’s comprehensive book ceedings, leave to amend is usually generously Resolving Civil Disputes,2 is concerned with cluding the power to tailor procedural steps to suit the particular case; and given. such techniques and identifies examples in the Directions hearings can be expensive. Good commercial jurisdiction in New South Wales • imposes obligations on parties and their case management dictates that they be kept to at trial level where case management may di- legal representatives to facilitate the just, a minimum, dealt with quickly and heard as rectly affect cost and delay. quick and cheap resolution of the real issues close as possible to the time at which they are Resolving Civil Disputes in the proceeding. listed in Court lists. A time- and cost-saving The Specialist List System measure is the provision in SC Eq 3 for consent The following are the general drivers of effec- orders to be made by the list judge in chambers tive case management: A significant feature of the case management before the lists close.7 • a judicial officer skilled in the art who puts structure in the Supreme Court of New South The Court’s response to non-compliance 4 in the necessary effort; Wales is the specialist list system. Cases with timetables is important. Leaving aside the • consistency (but with sufficient flexibility) in within the Commercial and Technology and effects of unsanctioned and unjustified delay, a approach; Construction Lists are administered by the list limp response where a strong one is needed is judge in Court each Friday. • procedural steps tailored to suit the particu- inimical to a culture of compliance. lar case; and Ascertaining the Real Issues A useful tool is the imposition of an imme- diately payable (say within seven days) lump • a culture of compliance, achieved by main- The formal pleading process – which histori- sum costs order for costs thrown away by se- taining a system for monitoring compliance cally was left unsupervised to the parties unless rious or serial non-compliance (which may be and applying appropriate sanctions for a specific problem arose – can be time-con- accompanied by a proviso that the assessment non-compliance. suming. is provisional).8 In other cases, an order that the Practice Note SC Eq 3 makes provision for Management of a trial cause can conveniently costs thrown away are the opponent’s costs in entry into the Commercial and Technology the cause may be sufficient. be divided into the following stages: and Construction Lists by commencement of • ascertaining the issues; The goal is to keep interlocutory contests to a matter by summons accompanied by a List a minimum and to deal with them decisively • controlling the evidence-gathering process; Statement. SC Eq 3 makes corresponding including by requiring written argument in ad- • conducting the final hearing; provision for the filing of List Responses and vance with limits on the length of submissions. cross-claims, which must include a response • marshalling the material to produce a satis- Evidence Gathering Process factory judgment; and to the plaintiff’s list statement. The conten- tions, responses and cross-claims should avoid Discovery • producing the judgment at the earliest rea- formality, state, admit or deny the allegations sonable time. with adequate particulars and identify the legal Discovery can be the single most costly and The final two stages are almost exclusively grounds relied upon.5 time-consuming process in a trial cause. for the judge, although the configuration the Practice Note SC Eq 9 provides for an even Traditionally, discovery takes place after evidentiary material takes and the quality of more truncated procedure for commercial close of pleadings, once the issues have suppos- the argument may affect the Court’s burden. arbitrations. edly been defined, and before parties serve any The benefits of effective case management are The directions hearing is the basic case man- evidence. lost unless there is speedy judgment and equiv- agement vehicle. This is an important oppor- A significant departure from this position

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was brought about by Practice Note SC Eq unless before conclusion of the proceedings the the case. However, early mediation is generally 11. It applies to all proceedings in the Equity Court rules otherwise, the material is admitted preferred, because parties’ positions frequently Division of the NSW Supreme Court, other unconditionally (or rejected). harden after they have incurred significant than those in the Commercial Arbitration List. The Hearing costs. Ultimately, each case depends on its own SC Eq 11 provides that orders for disclosure circumstances. will not be made until after evidence has been Proceedings are diarised for an appropri- served, unless there are exceptional circum- ately early pre-trial directions hearing to ENDNOTES stances.9 All applications must be supported monitor readiness. by an affidavit setting out why disclosure is In most cases, the usual order as to hearing 1 Judge in the Equity Division of the Supreme Court of New necessary and the likely costs.10 The Court may (with or without some modification) is appro- South Wales, Head of the Commercial, Technology and limit the amount of recoverable costs in respect priate.14 Effective trial management requires Construction and Commercial Arbitration Lists. of disclosure.11 2 Sixth Floor Selborne Wentworth. monitoring of compliance with these require- 3 There are equivalent provisions in other states and territories, SC Eq 11 has been the subject of extensive and the federal jurisdictions. judicial comment, particularly as to whether 4 This system is to be contrasted with the ‘docket system’ used ‘exceptional circumstances’ are present. Obvi- in some Courts. ously, each case is to be assessed on its facts. 5 SC Eq 3 at [9] and [11]. The plaintiff’s statement and a SC Eq 11 has proved to be effective in defendant’s response must still each disclose a reasonable reducing cost and delay. In most cases, dis- cause of action and defence respectively: Ucak v Avante Developments [2007] NSWSC 367. covery before evidence is not needed as parties The cost of garnering expert know enough about their position to put on 6 SC Eq 3 at [62]. their evidence. It has encouraged parties to 7 At [23]-(24]. evidence is a perennial issue. In 8 See Uniform Civil Procedure Rules 2005 (NSW) r 42.7(2). See examine the real issues early and engendered also SC Eq 3 at [57] which provides that, unless otherwise a more disciplined analysis of the need for dis- many cases, the expert evidence ordered, a party in whose favour a costs order is made may closure. Few applications for early disclosure proceed to assessment. are ruled on because parties frequently agree may be of little utility or does not 9 At [4] and [5]. and implement by consent. 10 At [6]. A useful technique is to require a party seek- meet the criteria for admissibility. 11 At [7]. ing extensive or costly discovery to pay in ad- 12 See also UCPR r 31.24. vance, with the costs incurred by it to become 13 Evidence Act s 192A. costs in the cause. Imposing such a condition 14 SC Eq 3 Annexure 3. has the effect of encouraging a party to limit 15 UCPR r 28.2. 16 Supreme Court Act 1970 (NSW) s 103. disclosure to what it considers necessary. Appropriate search terms for electronically stored material are a regular source of con- ments and taking appropriate steps in the face troversy. This problem is usually solved by of non-compliance. appointing an independent expert to report on SC Eq 3 makes provision for ‘stopwatch appropriate search procedures. hearings’. This is rarely used but may be a Expert Evidence useful management tool in some cases. There are pitfalls in being overly restrictive including The cost of garnering expert evidence is a per- that the hearing becomes too compressed and ennial issue. In many cases, the expert evidence the task of decompressing the information in a may be of little utility or does not meet the judgment is made more difficult. criteria for admissibility. The Court may make orders for the decision A useful device is to require the parties to of any question separately from any other engage a single expert before being given question.15 The most important practical ben- 12 leave to adduce further expert evidence. The efit is that determination of a single issue may process of producing an agreed brief focuses dispose of proceedings entirely. But there are attention on the issues to which the proposed potentially significant pitfalls including: evidence is said to go. • the separate questions which the parties There are some cases where it is feasible and articulate may lack utility; appropriate to give rulings as to the admissibil- 16 ity of evidence, including expert evidence, in • the risk of delay while leave to appeal is advance of the hearing.13 sought in relation to a separate question The trend is to hear expert evidence in con- which does not entirely dispose of the pro- current session. This generally works well in ceedings; encouraging experts to focus on the real issues. • the separate questions are required to be Handled correctly, this saves significant time, answered on incomplete facts; and but does require advance preparation by the • the ability of the judge who hears a separate Court. question to hear the remainder of the pro- While it is preferable for objections to be ceedings. dealt with before the evidence is admitted, this is frequently not practical. The only option Finally, most commercial causes are appro- to save cost and time may be to admit the priate for mediation at some stage. An early evidence provisionally under s 57(1) of the Ev- referral may cap costs, while a later referral idence Act 1995 (NSW) on the condition that, enables the parties to be better informed about

The Journal of the NSW Bar Association [2019] (Winter) Bar News 77 FEATURESPRACTICE & PROCEDURE

Child abuse – liability of organisations The Civil Liability Act 2002 (NSW) and the new Part 1B

By Jeremy L Harrison

Introduction and; (d) model litigant approaches. The Royal Commission recommended that a Part 1B of the Civil Liability Act 2002 non-delegable duty be imposed on certain (NSW), entitled ‘Child abuse–liability of institutions rather than legislating in respect organisations’, commenced on 26 October of vicarious liability at all. 2018 and 1 January 2019. Part 1B introduc- On 17 March 2016, s 6A of the Limitation es at least three fundamental changes which Act 1969 (NSW) was amended to adopt the concern suing an unincorporated organisa- Royal Commission’s recommendations with tion, reversing the onus of proof in respect of respect to limitation periods. Time limita- breach of duty of care in a negligence claim tion periods were abolished with retrospec- and codifying vicarious liability. tive effect in respect of personal injury cases Background to the introduction of Part 1B for child abuse. After the Royal Commission published its In September 2015 the Royal Commission recommendations, the High Court handed into Institutional Responses to Child Sexual down a unanimous decision concerning Abuse released its Redress and Civil Liti- vicarious liability in Prince Alfred College gation Report which addressed four issues: Incorporated v ADC [2016] HCA 37. This (a) limitation periods; (b) the duty of insti- decision set out ‘the relevant approach’ (at tutions; (c) identifying a proper defendant, [80] – [81]) to be adopted when determining

78 [2019] (Winter) Bar News PRACTICE & PROCEDUREFEATURES

whether vicarious liability is established in however might only be fruitful if that organ- may involve debate as to whether the perpe- cases concerning the sexual abuse of children isation, or a trust associated with it, holds trator was an office holder, officer, employee, in educational, residential or care facilities by assets to satisfy any judgment awarded. owner, volunteer, contractor, religious leader, persons who were placed in special positions The Second Reading Speech makes it clear priest, minister or authorised carer of the with respect to the children. ‘The relevant that Division 4 is intended to abolish ‘the organisation. Otherwise, the contest might approach’ is evidently intended to be reflect- Ellis defence.’ All survivors of child abuse focus on whether or not the abuse occurred ed in Division 3 of Part 1B, discussed below. might now consider suing an unincorporated in connection with the organisation’s respon- organisation or seeking to amend pleadings sibility for the child. The Main Points of Part 1B in existing proceedings to do so. Thereafter, Vicarious liability v negligence Division 2 concerns negligence claims. It sets such survivors might apply to the Court to out the scope of the duty of care owed by appoint the trustee of an associated trust It is predicted that the advent of Divi- sion 3 will make vicarious liability the pri- organisations and it reverses the onus of proof should the unincorporated organisation not mary focus of suits brought by survivors. It in respect of breach of duty of care – i.e., there appoint a proper defendant within 120 days. may be expected that survivors will strive to is a presumption of a breach of duty unless the prove that the perpetrator was an employee organisation proves otherwise. for the purposes of s 6G in order to obtain Part 1B does not impose a non-delegable the benefit of the vicarious liability provi- duty of care upon organisations in spite of sions in Division 3, rather than alleging that the Royal Commission’s recommendation the perpetrator falls within the broader cat- that one be imposed. Instead, Division 3 egory of persons defined as an individual as- concerns vicarious liability and effectively The reversal of the onus of proof sociated with an organisation for the purposes codifies ‘the relevant approach’ laid out in of s 6E which merely opens the gateway to Prince Alfred College v ADC. Employee is de- in negligence claims in respect of the lesser benefit flowing from the rebuttable fined broadly in s 6G to include an individual presumption of breach of duty in Division 2. akin to an employee. The heart of Division 3 whether the duty was breached Vicarious liability provisions are more is in s 6H(1) which renders an organisation is a radical development. beneficial than claims in negligence to a sur- vicariously liable for child abuse perpetrated vivor because the presumed breach of duty against a child by an employee of an organisa- in negligence is rebuttable whereas there is tion provided that two pre-conditions are sat- no escape from vicarious liability once the isfied – that the employment role supplied the three pre-conditions are met. Accordingly, occasion for the perpetration of the abuse and the contest between the parties might focus that the employee took advantage of that oc- on those three pre-conditions to vicarious casion to perpetrate the abuse. In this regard, liability which are: a Court must take into account whether the organisation placed the perpetrator in a posi- Establishing liability of organisations • Whether the perpetrator was an employee as defined in s 6G. tion in which the perpetrator had: authority, Part 1B will assist survivors to establish li- power or control over the child; the trust of ability against an organisation in respect of • Whether the employment role supplied the child; or, the ability to achieve intimacy abuse perpetrated after 26 October 2018 by the occasion for the abuse for the purposes with the child, as prescribed in s 6H(2). These firstly codifying the principles concerning of s 6H(1)(a). are concepts directly derived from Prince vicarious liability set out in Prince Alfred • Whether the perpetrator took advantage Alfred College v ADC. College v ADC in favour of survivors and sec- of that occasion to perpetrate the abuse The objectives of Division 4 are to enable ondly reversing the onus of proof in respect for the purposes of s 6H(1)(b). child abuse proceedings to be brought against of breach of duty in a negligence claim. unincorporated organisations and to enable No decisions have yet considered any Part 1B will likely give rise to a new era of an organisation to pay liabilities arising from provision in Part 1B. During the Second interpretation disputes especially in consid- employee child abuse proceedings from the assets of an Reading Speech on 26 September 2018 ering the meaning of , determining whether employment supplied the occasion associated trust in certain circumstances. the Attorney-General described Part 1B as for the abuse and determining whether the Finally, Schedule 1, Part 14 stipulates that ‘beneficial legislation’ enacted in favour of perpetrator took advantage of that occasion the presumption of a breach of duty of care survivors and stated that Part 1B should to perpetrate the abuse. These disputes and the provision which imposes vicarious be interpreted as such by the Courts. Part might be resolved in part through a deeper liability only apply in respect of child abuse 1B marks the beginning of a new era in appreciation of the issues and decisions dis- that was perpetrated after the commence- which new terms and phrases will alter the cussed in Prince Alfred College v ADC. ment of those sections on 26 October 2018. legal analysis in child abuse proceedings By contrast, all of the provisions in Division against organisations such as organisation, 4 concerning proceedings against unincor- organisation responsible for a child, individual porated organisations also operate retrospec- associated with an organisation, employee, tively even though they were not enacted akin to an employee, the occasion, and takes until 1 January 2019. advantage of that occasion. What might be the consequences of Part 1B? Negligence The reversal of the onus of proof in negli- Proceedings against unincorporated organ- gence claims in respect of whether the duty isations was breached is a radical development. Part 1B will assist a survivor where he or she Future contests might centre on whether or can only identify an unincorporated organ- not the perpetrator was associated with the isation as a potential defendant. This benefit organisation for the purposes of s 6E. This

The Journal of the NSW Bar Association [2019] (Winter) Bar News 79 INTERVIEW

Advocate for Change Andrew Pickles SC discusses his new role on behalf of the LGBTQI community with Stephen Ryan

role. He got appointed, just as it happens… it got announced on the same day that we were hosting ‘Gay Bar’ drinks. The Diver- sity and Equality Committee were looking for someone to replace Richard and it was suggested that I put my name forward. So I did. I don’t know what moved them to think I’m suitable, but I’ve got a history I suppose of being involved in LGBTQI issues, not so much at the Bar, though I was on the Equal Opportunity Committee in 2005-2006. Outside the Bar I was on the Gay and Lesbian Rights Lobby executive for several years, the secretary and then the co-conven- Stephen Ryan: Could you firstly tell us about or back in 2002-2003 and during that time your journey into the legal profession and then I was involved in saving Mardi Gras and on to the Bar? re-establishing the new company that could Andrew Pickles: It was fairly conventional take it forward. I’m also an avid supporter really, although I am not from a legal back- of Queer Film. I’m a True Love Sponsor of ground at all. I don’t have any lawyers in my Queer-Screen Inc. family whatsoever. I went to Sydney Univer- SR: What are some of the ideas you’ve had sity studying economics-law – a combined or issues you’d like to tackle during your degree. I was a summer clerk at Freehills and time in the role? became a paralegal for my final year at law school. And then I went travelling overseas AP: One of the things that we’ve thought as everyone does. I came back and worked at of doing is an open day for LGBTQI iden- Freehills for three years as a solicitor, firstly tifying students at the universities. And just in their environmental group and then in as the women lawyers run an open day for their litigation team. women students we could try and do some- Then I moved to Mallesons because I thing like that for LGBTQI identifying wanted to do planning and environmental students. There is already a queer officer at work. the University of Sydney Law School and Then I went to Phillips Fox. through that contact Richard [Weinstein] I think it was one of my colleagues here had established a moot. So we might build (Martin Place Chambers) who I was against on that. The moot might get opened up in a matter in the Land and Environment to a wider range of students from other Court and I was doing my own advocacy universities as well. as a solicitor and she said to me, ‘Have The second thing is that I’d like to develop you thought of coming to the Bar?’ and I some partnerships with LGBT organisations. thought ‘Well, I haven’t,’ and she said, ‘Well This has been tried in part before with Pride you should because you’re quite good’. And and Diversity with ACON [AIDS Council that planted the seed. Then about 18 months of NSW]. I think one of the problems has later I decided to make a break for it. been that because we’re an association and not an employer it’s been difficult to struc- I had the support of the partners that I thing. As well as training and development ture a program that works at an association worked for who encouraged me to go to the for the association. level rather than at an employer level. I’m Bar and the firm were very good. I gave them One possibility is to engage with another trying to work with ACON to see whether six months’ notice. They were very happy provider to provide an annual CPD seminar we can structure a program that would with that. And then they sent me work when for members of the Bar to promote under- work at an association level so that it would I got here, as did Mallesons. standing. There are two elements to it. One provide benefits to members, an ability for is to promote an understanding of LGBTQI SR: How did you obtain the Advocate members to connect with whatever Pride issues among members of the Bar and the For Change role and why do you think and Diversity offer including… tickets to other is to promote inclusiveness. I think you were selected? the annual conference and awards, member those are the two distinct strands to work on. AP: Richard Weinstein SC had been in the events throughout the year, that sort of Another organisation that we’re going to

80 [2019] (Winter) Bar News INTERVIEW Photography by: Michele Mossop

are also a sponsor of Queer Screen and a number of LGBTQI organisations. But at that time, back in the early 90s, it wasn’t easy, actually, being gay. I wasn’t out at Freehills. I suppose I came out at the end when I was leaving, but that was perhaps a mark of how difficult it was in a sense. I hate to say it, but in pockets here and there, there was open homophobia. There were things said around the office, probably not intended to be hurtful, but that really made it impossible to be out. Even though the firm was in so many ways very open, it wasn’t that easy to be out. [At Mallesons] the environment there was very different. For me it was a fresh start where I didn’t have a history. I felt there it was kind of almost easier to be out in a sense, but it was a very small and clandestine kind of LBGT community at Mallesons. There were a few of us who would go out for lunch from time to time, but it was a firm that was very much head-down-tail-up get on with your work, which in its own way was good because there wasn’t intrusion into your per- sonal life. Unlike Freehills, which was a bit more intrusive on your personal life. And so, you either had to be out or you had to keep it to yourself depending on how you felt. Whereas at Mallesons it just didn’t matter because we were just there to get on with our work and that was fine. [At Phillips Fox] I worked for a partner who was gay and it was a warm and embrac- ing environment as well because it was a very inclusive firm. I had good experiences really with the firms that I worked at, albeit perhaps a shaky start at Freehills. But I can’t say I ever felt, apart from the experience at Freehills, that I felt a harsh wind of discrimination at all. But I think being out and being myself was an important part of that though. have some discussions with soon is the Gay during your time as a solicitor and barrister My apprehension about coming to the Bar and Lesbian Business Association. They and the difficulties members of the LGBTQI was a fear of how stuffy and conservative and invited me and some other members of the community can have? straight-male dominated that it was. For me that really was a concern. I was comfortable. Diversity Committee to one of their func- AP: It’s interesting reflecting on my time at tions, Fruits in Suits and they do another I could have stayed at Phillips Fox. I could Freehills. Freehills is probably now regarded have applied for partnership. And the very event called Lemons with a Twist. We’ll as one of the most inclusionary law firms heavy nagging doubt was ‘how comfortable see if we can work up a partnership which to work at. They have an inclusion and di- will I feel at the Bar?’ would allow barristers to attend… and it’s a versity officer in their HR department who Then when I came to the Bar all of a great networking opportunity. happened to be a summer clerk at one stage sudden I was joining a very small floor where SR: Have you noticed changes in attitudes when I happened to be working there. They they’d never had a woman member let alone

The Journal of the NSW Bar Association [2019] (Winter) Bar News 81 INTERVIEW Photography by: Michele Mossop

think we leave the straight men as a minority. SR: Have you ever encountered homophobia in the Courtroom? Richard Weinstein spoke of two occasions he was verbally abused. AP: No. I was trying to think of anything, but I can’t think of anything as strident as that at all and not even less strident than that. No experience that you would say that that was clear and blatant homophobia. I haven’t experienced that in a Courtroom environment. I don’t think I’ve experienced that from a judge or a colleague. That doesn’t mean that it’s not there in whispers or in whatever form it might be. Certainly in very recent months on this floor there has been an example of a female member of this floor experiencing outrageous misogyny audibly stated in a Courtroom by a person in the gallery. And it was very pleasing to hear the response on the record from the judge. If that can happen for women I’m sure it can happen for others. And for gay women they have the dual effect of gender and sexuality. SR: What do we know about the sexuality and identity of the NSW Bar? AP: That’s another area to look at and it’s to understand or to see what we can do out of the data that has been collected by the Bar Association this year for the first time in the Practising Certificate questionnaire that asked the question. We don’t know a lot and that’s what we really want to come to grips with. And I’ll be very interested to know what the results an openly gay man. Of course, things have AP: I think Chris McEwen encouraged me are. And it may be that the question has moved on an awful lot on that floor as well. [to be out] because the partners got invited to be asked more than once because it has They’ve now got several women members to floor dinners and things and my partner, been the experience of law firms asking and, I know, another gay member. Adrian, didn’t come to the first one, but he those kinds of questions that the numbers Things then – 1999 – were still ‘stuffy’ I came to the next one I think and nobody prepared to identify has increased over time. think at the Bar. And initially I went back batted an eyelid. And it became a very warm So while in one year you might get a certain into my shell in a sense. The only people who and embracing environment in the end. result, three years’ hence you might get a knew I was gay were the clerk, well, maybe Then it was 2003 when we set up this different result and that doesn’t necessarily not even the clerk initially, and my tutor and floor which was a planning and environment reflect a massive increase in the number of maybe one other reader who was on the floor specialist floor. I came across with Chris people at the Bar or number of people who knew because we were in the Bar Course McEwen at that time and I think even when are [gay]. It’s just a number of people who are together. But otherwise, the other members we started here we had three gay members at prepared to identify. of the floor were limited to middle-aged the outset, so we were already more diverse SR: What are some of the issues that stem from and older white, straight men. So I felt very to begin with, and three women. And now that? out of sorts and I … didn’t feel comfortable we’ve got eight women and five gay members. AP: It’s actually difficult to know what the about being out. At our peak we had six gay men and to- issues are except at a much more one-to-one SR: How did things change? gether we form a majority. A clear majority. I level. We’ve only just taken the first step in

82 [2019] (Winter) Bar News INTERVIEW

asking people to identify as LGBTQI. We haven’t gone any further to find out what ramifications that has for people and their careers. And I’m not sure we’re going to be able to readily get an understanding of that. For the reasons that: I think LGBTQI identifying is something that people do at different levels of comfort. They may or may not be out at work and the level of comfort they feel with that can vary very much from individual to individual. I think it’s going to be much harder to understand the data than simplistic issues such as how many of us are there? And to what extent are they prepared to identify and than the one offered by [BarCover]. But the we’ve got a diverse floor, but I’d be interested be out? hoops [insurers] want you to go through and to know if other people have a different ex- SR: Could you share with us some of your the intrusiveness of the questions. Now I’m perience and what their experiences are. other work over the years advocating on an HIV-negative man, but I just found the It would be good to know whether things LGBTQI issues? questionnaire offensive. I thought, ‘I’m not have moved on or how it is for others and I AP: When I was on the Equal Opportunity giving you that information. You wouldn’t suspect that it wasn’t as easy for others as it Committee Kathy Sant and I put a paper to- ask for that information of anybody else.’ was for me. gether of some things we should look at. And, In terms of other issues, there was, e.g., a SR: Is it getting easier for members of the of course, the Bar Association has moved sexual harassment policy at the Bar, but it LGBTQI community to connect and enjoy very much along those lines. The name of the was clearly directed at sexual harassment success at every level at the Bar and beyond? from men to women. It had no element con- committee itself reflects that. It’s now called AP: sidering any other aspect of sexual harass- It’s only been in the past year that the Diversity and Equality committee. we’ve had, informally, Gay Bar drinks. And The diversity is the point and that’s reflec- ment and in fact funnily enough back in my Phillips Fox days I experienced some sexual that was something that was started by a tive of the change in approach. It had been couple of barristers in a private home, but focussed very much on issues relating to harassment from a male secretary. I was con- we seized the nettle and hosted it here at women, equitable briefing and other issues scious of the fact that we had to contemplate Martin Place [Chambers]. relating to the challenges for women at the that these policies needed to be re-thought We had some great luminaries [at the last Bar in juggling family commitments and all and reconsidered in a gender-neutral context. one at Sixth St James Hall] like Justice Kirby of those things. Secondly, while there were policies relating and we had some members of the Bench and One of the things that we found very to discrimination against women, there were difficult to tackle [at the time] and couldn’t no policies relating to discrimination on the the Bar and so that was terrific. I think we can carry on doing that independently of resolve was that barristers as self-employed basis of sexuality. the Bar Association. It’s got a life of its own people don’t have ready access, unless they And so of course the Bar has moved an now which is good. It’s a good networking pay for it themselves, to income protection awfully long way from that perspective and opportunity and it’s an opportunity for insurance. One of the problems with income the model policies that the Bar has adopted other members of the Bar to understand protection insurance policies at the time, and many floors have adopted essentially re- what other issues other people have. And earlier this century, was that they would flected a lot of work by other people that per- it’s a social event at which everyone can feel either refuse or they would require you to go haps started with me and Kathy back then. through significant hoops if you were a gay comfortable and they know they’re among SR: Have people reached out to you so far and man regardless of HIV status. And there are like-minded people I suppose. who would you like to hear from during your significant discriminatory issues in relation Things have changed a lot in my time at time in the role? to insurance policies for HIV positive men the Bar to say the least. I can’t think of any and women. I was experiencing and certainly AP: I would encourage people, particularly judge who went to the Bench before I went some of my other colleagues were experienc- younger members of the Bar, to reach out to the Bar who at their swearing in had been ing a great deal of difficulty in obtaining a and contact me if there are issues or indeed out and proud. And that’s changed dramat- policy. They ask the question, ‘Do you sleep just to have a chat and discuss their experi- ically. Richard [Weinstein] at his swearing with other men?’ And the answer is ‘yes’ and ences because I’d like to know what it’s like in and other judges in recent times have had then, well, this whole series of questions is for other members in other parts of the Bar. no fear or concern about identifying and then expected to be answered. I know what it’s like for me. I’ve got a com- acknowledging the support of their partners. I’ve ended up not ever bothering other fortable environment where I am because That’s a noticeable change.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 83 INTERVIEW

OK, well how do you think we are doing in terms of Diversity? Not too flash. From the bench, I see more diversity than I think I did at the bar as I am seeing a lot more solicitors. But I still think we are travelling some decades behind the popu- lation in terms of diversity in the profession. What are some of your life experiences which have marked you as perhaps unique and different? Mmmm. Well, I guess the thing which makes me feel different from my colleagues more than any other reason is where I came from, in terms of a rural upbringing, at- tending the local public school and coming from a family where tertiary education, or finishing high school, was not necessarily part of my future. I feel good about that though. It has always given me perspective about the in- tense, all-consuming world of the bar and the bench. I know there are plenty of people who have never been to Sydney or dealt with a lawyer who are living perfectly rewarding and complete lives. If this law malarkey doesn’t work out, I reckon I will be just fine. You grew up on a farm. Did that make you feel different when you started your legal studies? Well, I didn’t think there was anything dif- ferent about where I came from. But I vividly recall when I first became aware that it was a bit unusual. I was in, basically, the first class at UNSW law school and the lecturer got us all to put our hands in the air, and then told us, ‘Take down your hand if you went to private school.’ Then, ‘Take down your hand if your parents are tertiary educated’ and ‘Take down your hand if you are from the lower north shore or the eastern suburbs of Sydney’. Within three questions, there was only me and another person with our hands still in the air. The point was that there was a lack of diversity in law students having regard to Diversity socio-economic background and geography. And the debate which followed was: how The Hon. Justice Kelly Rees, can the legal profession serve a diverse com- Supreme Court of NSW Equity Division munity when we are not ourselves diverse? I guess it must have been an adjustment coming Profile Interview by Kevin Tang to Sydney to study? It was! I don’t think city people appreciate how much it is. After about three days in the city, a country person really wants to get the What does the term Diversity mean all levels of our profession accu- hell out of here. But you get used to it, after for you? rately reflecting Australian soci- a year or three. ety in 2019 in terms of differing I guess I am being asked this I do, however, have a semi-funny story. In social and economic advantage, my first week on campus – I was living in a question because I am a female whether you are from Sydney or residential college – I walked up the hill to but I don’t think that makes me come from regional or remote the law school and said hello to everyone I diverse, it just makes me half of NSW, Indigenous Australians, passed on the way. Most people ignored me, the population. multiculturalism, gender, disa- some people looked at me like I was mad, To me, ‘diversity’ means seeing bility, and the list goes on. and a few said hello back. I thought, ‘These

84 [2019] (Winter) Bar News INTERVIEW

Sydney people are so rude!!’ A few years later, I saw that Crocodile Dundee film where Paul Hogan walks down Fifth Avenue, New York and did exactly the same thing. Well, I laughed for days. The other thing that really was a big difference was the multicultural land- scape of Sydney. My rural community was almost com- pletely Anglo plus Indigenous Australians of the Gumbaynggirr Nation. The variety of faces, language, food and culture in Sydney was initially confronting but became just plain marvellous. Did your background affect getting a job or coming to the bar? It didn’t matter when getting a job in a big law firm. Those jobs seemed to go on academic achievement. The big firms didn’t seem to care where you came from. Suited me fine. But when I came to the bar, which is more than 20 years ago now, the pathways and entry points to the NSW Bar were not particularly clear. I think the NSW Bar Association has done quite a bit of work to de-mystify that with the information avail- able on its website about Coming to the Bar. But I do think people coming to the bar who come from legal families or the same socio-economic or geographic background as a ‘traditional’ barrister will navigate their way more easily. And I think there is a natu- barristers. I had a good look at the statistics How did you manage the challenges of being a ral tendency for barristers to select applicants which the NSW Bar Association pulled to- woman at the bar? for readerships who look like them or remind gether recently from a review of Austlii judg- Most of the challenges of the bar are them of themselves when they were young. ments – in fact, I got the stats from them gender-neutral: getting the work, getting and drilled down further into women in the through the work, getting paid for the What can barristers do about that? Commercial List of the Supreme Court with work, getting on with your chambers I think there is a place for chambers to be speaking roles. colleagues and so on. ambitious and adventurous in their choice Do you know that in the last six months Juggling the bar with children is a big one of readers, licensees and members having of the data, only three women silk appeared though. Men have to do that too, but I guess regard to academic qualifications and work in the Commercial List and only 6% of ap- it does tend to impact more on women. To experience but also with an eye to diversity. pearances were by women with a speaking my observation, the bar loses a lot of women Give someone a go who may not otherwise role. I’ll repeat that figure again: 6%. Now at this point in their career, 'cause it is have a ‘rail run’. Why not? the data may have heaps of limitations, but I just so hard. think there is still a real problem here. What makes us good barristers, I think, If I can just ask you about gender, though. Do is that we want to do our job really well. you think we are making progress in having Well, isn’t that just about getting solicitors to This is also how we want to be parents – we gender diversity at the bar? brief women? want to do that really well too. I would say There are people much more informed to Actually, I think solicitors are now pretty don’t whinge about it, or at least not to your talk about this, but I reckon there are two aware of these issues and are changing their colleagues, and just get on with it. In my ex- big problems. patterns. I think the real change-makers perience, your colleagues will do everything The biggest one, I think, is making the here now are our silks. Solicitors often ask they can to quietly support you. And be kind bar a good option for women lawyers when silks for recommendations as to who a silk to yourself: you’re doing the best you can, mapping their career path. Half of law would like to work with, and this creates a you’re putting in a huge amount of effort graduates and solicitors are, unsurprisingly, powerful opportunity for change. Rather and commitment; and it would be tough women. But only 23% of the bar are women. than recommend a ‘mini-me’, be outrageous if you were just trying to be a barrister or a So we’re just not attracting women to choose and support change. parent, let alone both. a career at the bar in the first place and a How about when asked for a list of names higher proportion leave the bar than men. I including women that you put the woman Any final words could talk about that for ages, so I will spare barrister at the top of the list as they are more I am confident that we will get there. De- your readers and just leave that one there. likely to call her first than if you tag her name spite the conservative, traditional reputation The second problem is women getting on the end of the list for ‘equitable briefing of the law as a profession, I think that it speaking roles in cases. I know this is a policy’ reasons. Otherwise they probably has great capacity to embrace diversity. challenge for the junior bar as a whole, but it won’t call her at all as someone above her in I can’t wait! does seem to impact more acutely on women the list will be available.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 85 NEWS

Bench & Bar

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Held on 17 May 2019 at the Grand Ballroom of the Hyatt Regency Sydney with a spectac- ular line up of speakers, the 2019 Bench and Bar dinner promised to be an unforgettable evening and it truly was. With the Honourable Justice Julie Ward, Chief Judge in Equity of the Supreme Court of New South Wales as the guest of honour, Ruth Higgins SC as Ms Senior and Julia Roy as Ms Junior, the audience was mesmerised by the effortless, intelligent humour of the speeches, as well as the musical genius that was Ms Junior’s ukulele playing. An all-woman cast of speakers made for a tremendous event.

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1. The Hon Justice James Allsop AO, Chief Justice of the Federal Court, The Hon Andrew Bell, President of the Court of Appeal 2. Her Excellency The Hon Margaret Beazley AO QC, The Hon Justice Julie Ward 3. Prof Greg Tolhurst, Ruth Higgins SC, The Hon Justice Julie Ward, Julia Roy and Tim Game SC 4. The Hon Chief Justice Bathurst AC, The Hon Justice Julie Ward

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86 [2019] (Winter) Bar News NEWS

5. Sophie Callan, Surya Palaniappan, Michelle Rabasch and Helen Roberts 6. Miss Junior, Julia Roy 7 Back row: Helen Roberts, Belinda Baker, Justice Natalie Adams, Jillian Caldwell Bottom row: Huw Baker SC, the Hon Judge Kara Sheed SC, y Lloyd Babb SC, the Hon Judge Gina O'Rourke SC, Brett Hatfield.

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The Journal of the NSW Bar Association [2019] (Winter) Bar News 87 NEWS

8. President, Tim Game SC 9. Nipa Dewan, Stuart Bell, Justin Young, Christine Melis and Candice Pedersen 10. Miss Senior, Ruth Higgins SC

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88 [2019] (Winter) Bar News NEWS

Alinea Chambers – a new line of thinking

Anthony McGrath SC, Her Excellency the Honourable Margaret Beazley AO QC and Melanie Cairns

The New Year brought with it a new floor McGrath SC said. value and is repaid any loan he or she has just off Phillip Street when Alinea Chambers ‘There are many women barristers doing made to the company.’ opened for business in 52 Martin Place. Led such work and they have been increasing ‘The establishment costs to become a by silks Michael Henry SC and Anthony in recent years. As it happens, there are member of the floor are relatively modest, McGrath SC, Alinea has a focus on com- seven women and five men comprising our comprising contribution to the lease re- mercial law and has 15 barristers including members. We also have a woman licensee, quirements and the particular fitout of the two licensees and a reader. a man licensee and a woman reader, so we chambers that are occupied.’ Although he may be one of two silks were almost able to achieve the balance we That fitout on Level 33 of 52 Martin Place on the floor, McGrath SC explained that were after and unexpectedly ended with a includes minimal storage, no library and a the new name and new structure includes gender split that defies the traditional one in strong use of technology to minimise waste. having no designated head of chambers. commercial and other chambers.’ ‘We hope it is [an environment] that those ‘The most senior member has no more say They have also adopted a different ap- who brief us will find fresh, but also familiar than the most junior member and there is no proach to membership, which McGrath to the ways in which they work in modern head of floor,’ he said. SC hopes will make the Bar more accessible office space,’ McGrath SC said. ‘We have a flat management structure to junior lawyers hoping to practice in the ‘We were especially keen to avoid the with all major decisions being put to the commercial sphere. It’s an approach not dis- common experience that if you create stor- 12 members and most often those decisions similar to Level 22 Chambers which opened age space you will simply fill it up and not are made by a simple majority.’ in 2013 and 153 Phillip which opened in late take the hard decisions to return or dispose The name of the chambers comes from the 2017, each with a ‘no key money’ structure. of materials in a timely fashion.’ Latin ‘a linea’, the mark at the end of text ‘It was very important to all of us that we ‘It has also driven the overwhelming use when a new paragraph is created. The name address the significant barrier to entry for of online research tools by each of us and demonstrates the ‘new line of thinking’ that many coming into our profession, which is electronic briefs becoming the common way permeates the floor from how it operates to the eye-wateringly large amount of money in which we receive materials from solicitors the type of service being provided to clients. that is often required to buy into chambers, and clients. There is always a place for hard ‘We had as a central aim the desire to particularly for those doing commercial copy and it cannot be completely eliminat- create diversity in all of its forms amongst work in the many longstanding locations,’ ed, but our desire is to make it the exception our membership. Being more reflective of McGrath SC continued. rather than the rule.’ the wider Australian community is an aspi- ‘This financial hurdle is often a deterrent Alinea recently held its official launch by ration we hold. In particular, during the for- to those looking to come to the Bar, particu- her Excellency, the Honourable Margaret mation of our chambers it became clear that larly if that timing also coincides with plans Beazley AO QC, Governor of New South a gender balance could be readily achieved to start a family or to buy a house.’ Wales. Her Excellency spoke about the despite the often suggested difficulty that ‘We have adopted a structure where a de- importance of addressing diversity in the there do not seem to be very many women parting barrister relinquishes his or her share profession and encouraged others to follow barristers doing commercial work at the Bar,’ to the chambers company for a nominal along that path.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 89 NEWS

Portrait of the late Katrina Dawson Painted by Dr Peter Smeeth

90 [2019] (Winter) Bar News NEWS

On Friday 28 June 2019, Katrina’s family, friends and colleagues gathered in the Bar Common Room to witness the unveiling of the portrait of the late Katrina Dawson painted by Dr Peter Smeeth and commissioned by the Bar Association in 2018. After welcoming attendees, President Tim Game SC spoke about the lasting impression that Katrina had left on him and all members of the New South Wales Bar in her brief but successful career. Her brother, Sandy Dawson SC, shared some of his memories of Katri- na’s life at the Bar – including an entertaining story about a miscom- munication with a visiting overseas judge which lead to the judge donning Katrina’s wig and robes for a photograph. The comments of both speakers and guests at the ceremony, stand as a testament to Katrina’s truly remarkable qualities and her considerable success both at the Bar and in her many other pursuits. The portrait depicts Katrina in her robes, without her wig. Her face is surrounded by a stunning teal colour - known by those closest to Katrina to be her favourite. Guests who knew Katrina personally commented that the portrait captures her likeness, joyous manner and spirit. The artist, Dr Peter Smeeth, shared with guests the humbling experience of painting the portrait of such an incredible woman and reminded us all that Katrina was truly exceptional. The portrait is a special addition to the Bar Association Common Room art collection and is now on display for all to enjoy.

Artist Dr Peter Smeeth Sandy Dawson SC

Michelle Rabasch, Claire Palmer, Ashley Cameron, Sarah Danne

The Journal of the NSW Bar Association [2019] (Winter) Bar News 91 BAR SPORTS

Bar FC narrowly defeats Factset FC

Bar FC narrowly defeats Factset FC In a The grand final team was as follows: This completes the winter competition. close contest, Bar FC narrowly defeated Sir Alex would also like to thank the Simon Philips (C) Factset FC to take the silverware in a grip- eighty six members of Bar FC who have ping 1-0 grand final of the Domain lunch Shaun Mccarthy contributed throughout the year. time Soccer competition. Richard Di Michiel Bar FC now head north to meet the QLD The first half saw the team start a little Andy Munro and VIC Bars in the Tri State Champion- tentatively however the half time talk from Jeh Coutinho ship on 20 September 2019. Sir Alex (Stanton) seemed to work its magic. Timothy Boyle The only instruction was to do things more Sebastian Hartford Davis quickly and the goal soon followed with David Larish the ball being moved rapidly from defence Anais D'Arville to attack, with Di Michiel finishing the season with the winning goal and the John Harris (Gk) Golden Boot award. Stephen Dametto Solid performances across the pitch were Jon Tsang the order of the day with Gaolkeeper Harris Hayden Doria not really threatened as a result of the defen- Anthony Canceri sive efforts of the team.

92 [2019] (Winter) Bar News APPOINTMENTS

‘There is a lovely road that runs from Ixopo into the hills. These hills are grass-covered and rolling, and they are lovely beyond any singing of it. The road climbs seven miles into them, to Carisbrooke; and from there, if there is no mist, you look down on one of the fairest valleys of Africa. About you there is grass and bracken and you may hear the forlorn crying of the titihoya, one of the birds of the veld. Below you is the valley of Umzimkulu, on its journey from the Drakensberg to the sea; and beyond and behind the river, great hill after great hill; and beyond and behind them, the mountains of Ingeli and East Griqualand.’ (Cry the Beloved Country by Alan Paton 1948.) The quote describes the countryside near where his Honour grew up and named a river in which he most loved to kayak, and the mountain range over which he often hiked and climbed. It was, his Honour said, a profoundly beautiful place to be. His Honour also captured another theme, ‘community’ and in the isiZulu phrase, ‘umuntu ngumuntu ngabantu’ – a person is a person through other people. For the Judge it meant that we live our lives among and through other people, as others live their lives with and through us and others. The notion recognised our common human- ity and the responsibility we bear to each other. In that regard, his Honour reflected that he had been born into privilege. He was born white, male, able-bodied, cis-gendered and heterosexual, to parents who had themselves been born into similar privilege. He did not suffer the discrimination, inequality, margin- alisation and disadvantage that people of colour, women, people with disabilities and LGBTQI+ people faced, and still face in this world. His Honour recognised that just as he had advantages, there were others did not have such things. That recognition informed the responsibility that he bore to others. His Honour thanked and acknowledged his wonderful, intelligent and modern parents, Iona and Greig, from whom, he had learnt so much. He paid tribute to their industry; their demonstration by example of the act of living, that through hard work and application one can make the most of one’s circumstances to literally create an interesting life. By their engagement with the world, their energy and enthusiasm, and their scientific scepticism and critical thought, they set an example of critical public service. The Judge recalled that he enjoyed life at the Bar in Durban, where he did a wide variety of commercial, maritime, international and public interest work. Perhaps the most rewarding was the public Justice Angus Morkel Stewart interest work. It is very special to live and to practise law under a justiciable bill of rights; where the exercise of public power is set Ceremonial Sitting – Federal Court of Australia within universally adopted value-boundaries, including the values of equality and human dignity, and not only the executive but also the Angus Morkel Stewart was appointed to the Federal Court of Aus- legislature has freedom only within those limits; where the tyranny tralia on 25 February 2019 and a ceremonial sitting took place on 25 of the majority is confined to history. March 2019 in Court 1 of Level 21 in Queen’s Square. The Judge made reference to the circumstances of he and his Justice Stewart practised at the Bar in Sydney from 2011 to Feb- family leaving South Africa and coming to Sydney with his wife ruary 2019 and was appointed Senior Counsel in 2014. His practice Lyndsay. His Honour’s first contact was with Dr Andrew Bell, now at the Bar included public law and private law specialising in Ad- President of the Court of Appeal, whose acquaintance he had made miralty/shipping and international trade, commercial disputes and at Oxford, and his wife, Jo Bird who had been in his BCL class. arbitrations. Justice Stewart was appointed a Fellow of the Chartered His Honour recalled that Dr Bell had thoughtfully arranged for a Institute of Arbitrators (FCIArb) in 2014. meeting with the Hon David Ipp, who sagely said once, describing Stewart J graduated from the University of Natal (BA LLB cum the experience of appearing as a recent immigrant in an Australian laude) and the University of Oxford (BCL first class) where he was Court as being ‘like a blind man floundering around in a room full a Rhodes Scholar (Natal 1992). From 1996 to 2010, he practised at of traps’. It was also to be true for his Honour. the Bar in South Africa and was appointed Senior Counsel in 2006. In one example illustrative of the array of problems and challenges His Honour acknowledged the traditional custodians of the land which plague newcomers, his Honour recounted a story of when in on which the ceremony took place and the traditional custodians Court he challenged a witness’ version of a story that a particular of the land on which he grew up, the San or Bushmen people who person could not readily have been called as a witness because he was inhabited that area for tens of thousands of years before it was then ‘in Silverwater’. After first establishing that that was no more than settled by others. an hour away, his Honour asked facetiously, ‘so you are saying that it The Judge’s key theme was ‘belonging’. To illustrate it he quoted is not possible to travel from Silverwater?’, not appreciating that the the evocative lines from a South African novel: reference was to a gaol.

The Journal of the NSW Bar Association [2019] (Winter) Bar News 93 APPOINTMENTS

About ten years before his Honour and his family came to Sydney, his father’s youngest brother, Robbie, and his family, made the move from Cape Town. That family has been an extraordinary support to his Honour and his family. The same is true of his cousin Jinty, and her family who relocated at the same time as his Honour. He expressed deep gratitude for their unwavering support. His Honour noted gratitude to the mem- bers of the 12th Floor for accommodating him in the early days and assisting him. In due course, his Honour worked with Gail Furness SC, the Senior Counsel Assist- ing the Child Sex Abuse Royal Commission; he paid tribute to her extraordinary work that contributed to making that Royal Commission the success it was. His Honour subsequently moved to New Chambers where he was a founding member. It was at that time that his Honour started to feel that he belonged in Australia. When he first arrived on these shores, he noticed the eucalyptus trees, which are a source of envi- ronmental harm in South Africa, and were eyesores. Over time, in Australia, he came to appreciate their beauty, and their majesty in the landscape. The raucous cockatoos and laughing kookaburras had been an affront at first, but he had also come to love their sounds and their musicality. This was part of his Honour’s crucial sense of belonging. His Honour paid tribute to his spouse of 30 years, the indefatigable Lyndsay Brown. He spoke of her extraordinary energy, pas- sion, tenacity, empathy, and straight-out directness which had brought them through so much to this country. The judge also referred to his children, twins, Stirling and Olivia, who continue to be the principal source of joy in his life. He expressed his pride in their courage, their en- gagement with the world, their intelligence and sense of humour. Thus it was proven, that his Honour had lived his life among and through other people. In turn others live their lives with and through him. This is now his commu- nity. This is how his Honour came to belong here.

Kevin Tang

94 [2019] (Winter) Bar News RECENT APPOINTMENTS

Recent Judicial Appointments

His Honour Judge Justin Smith SC – His Honour Judge Richard Weinstein Her Honour Judge Sharon Harris – District Court of New South Wales SC – District Court of New South Wales District Court of New South Wales Admitted in 1992, his Honour came to Having been raised in Canada and having Admitted as a solicitor in 1993, her Honour the Bar in 1997, and took Silk in 2014. His completed a Bachelor of Arts and a Masters joined the Office of the Director of Public Honour was then appointed to the bench of of Arts, his Honour also holds a Diploma Prosecutions (NSW) in 1996. She was then the Federal Circuit Court of Australia in 2015 in Acting. He pursued an acting career for called to the Bar in 2014, and was appointed a at the Parramatta registry. Appointed to the a time, which brought him to Australia. He Crown Prosecutor that year. Appointed to the District Court on 11 February 2019 honoured a promise to his mother that, if he District Court on 18 February 2019 had not made a success of acting by age 30, he His Honour Judge Ian Bourke SC – would return to university to study law. His His Honour Judge Alister Abadee – District Court of New South Wales Honour was admitted to practice in 1992 and District Court of New South Wales His Honour was a lawyer for more than three was called to the Bar in 1993. He took Silk in Admitted in 1995, his Honour came to the decades including seven years with the Com- 2011 and was a member of 8th Floor Selborne Bar in the year 2000. His Honour has also monwealth Director of Public Prosecutions, Chambers. Appointed to the District Court served as a Navy Reservist and was formerly 22 years at the NSW Bar and four years as on 11 February 2019 a member of 7 Wentworth/Selborne Cham- Senior Counsel, formerly of Frederick Jordan bers. Appointed to the District Court on Chambers. Appointed to the District Court His Honour Judge Sean Grant – 21 February 2019 4 February 2019 District Court of New South Wales Admitted in 1985, his Honour came to the Her Honour Judge Susan Cole – His Honour Judge Jonathan Priestley SC – Bar in 2011. His Honour’s practice spanned a Deputy President of NCAT District Court of New South Wales number of states including Victoria. Formerly Admitted in South Australia, her Honour First admitted as a lawyer in the Northern Ter- of Henry Parkes Chambers, he will return to worked in the Crown Solicitor’s Office for ritory, his Honour then moved to NSW where his hometown in 2020 as he has been appoint- some time. She was appointed to the bench he practised as a solicitor for a time before ed as the first permanent Judge to sit at Albury of the District Court South Australia and the coming to the Bar in 1995. His Honour was and Griffith. Appointed to the District Court Environment Resources and Development appointed Senior Counsel in 2014, formerly on 14 February 2019 (ERD) Court in 2002. Appointed to NCAT of 9 Wentworth Chambers. Appointed to the on 27 February 2019 District Court on 4 February 2019 Her Honour Judge Nanette Williams – District Court of New South Wales His Honour Judge Robert Webber SC – Admitted in 1981, her Honour commenced District Court of New South Wales with the Department of Public Prosecutors Admitted as a solicitor in 1982, his Honour where she spent over 30 years. She rose to the was admitted to the Bar in 1987 where he position of Deputy Senior Crown Prosecutor. practised for 14 years before taking Silk in Her Honour came to the Bar in 1999. Her 2001, formerly of 11 Wentworth Cham- Honour also holds the rank of Commander in bers. Appointed to the District Court on the Royal Australian Navy Reserves Appoint- 7 February 2019 ed to the District Court on 14 February Her Honour Judge Kara Shead SC – District Court of New South Wales Formerly of the Office of the Director of Public Prosecutions for some 20 years, her Honour then spent 18 months as Deputy Senior Public Defender, she then returned to the role as Deputy DPP. Her Honour was admitted in 1996 and came to the Bar in 2005 before taking silk in 2016. Appointed to the District Court on 7 February 2019 His Honour Judge Walter Graham Turnbull SC – District Court of New South Wales Admitted to practice in 1984, his Honour came to the Bar in 1994 and was admitted as a Silk in 2007. Formerly of Forbes Chambers, his Honour has been appointed to sit as a full- time judge of the District Court at Orange, Bathurst and Parkes. Appointed to the Dis-

trict Court on 11 February 2019 Photography: Michele Mossop

The Journal of the NSW Bar Association [2019] (Winter) Bar News 95 OBITUARIES

‘Mullenjaiwakka’ Grammar School, known as ‘Churchie’. He gained admission to study law at the University of Queensland. His exceptional prowess on the Lloyd Clive McDermott rugby field won him great respect and he debuted for the Wallabies (1939–2019) against the All Blacks in May of 1962. Mullenjaiwakka played only one more test for Australia before he famously refused to join the 1963 Mullenjaiwakka, the first Aboriginal man to be admitted and to prac- tour of South Africa as a ‘token white’. The incident became infamous tise at the New South Wales Bar and to represent Australia in test rugby, internationally and this principled stance against apartheid influenced has died. He was a proud Mununjali and Waka Waka man, universal- several of his white team mates in the years to come. They refused to ly respected and whose passions in life were: family, sport and the law. play against the Springboks during their subsequent tour of Australia. Lloyd Clive McDermott was born in November 1939 in Eidevold, It was a significant step taken by an Australian sportsman. Queensland. He was educated at Brisbane’s Church of England Mullenjaiwakka had a lifelong passion for rugby and was never far

96 [2019] (Winter) Bar News OBITUARIES

from it. He was patron of the Lloyd McDermott Rugby Development Team Inc. (later known as the Lloyd McDermott Foundation), which sought to give Aboriginal people a sense of belonging and identity through sporting achievements. The foundation enjoyed considerable support from the legal profession and success on the field. In 2001 it supported the first all-Aboriginal rugby union team to tour the new South Africa. Mullenjaiwakka was called to the New South Wales Bar in June 1972. He appeared in a number of cases that were dear to his heart. In one notable case he was junior counsel to Jeff Shaw QC (later a Supreme Court judge), then the attorney general of NSW, in the first determination of native title in NSW (Buck v State of New South Wales (FCA per Lockhart J, 7 April 1997, unreported)). He was, for many years, a trustee of the Bar Association’s Indigenous Barristers Trust – The Mum Shirl Fund. This gave him a particular sense of fulfilment because he knew Mum Shirl and her welfare work in and around inner Sydney for Indigenous and Aboriginal youth. Tony McAvoy SC remembers the first time that he met Mullen- jaiwakka’s mother Aunty Vi in the 1980s. She came to the law firm where he was working in Brisbane. He was a young solicitor at the time. Aunty Vi had come to support her cousin who had a legal issue. Before they got down to business she said to Tony ‘Now, do you know my son? He is a top barrister in Sydney, his name is Lloyd McDermott.’ He remembers saying ‘No Mrs McDermott, I don’t think I do.’ ‘Well, you should have heard of him’ went on Aunty Vi ‘he is very famous you know.’ ‘Yes, Mrs McDermott, I’ll have to find out about him.’ Then she added ‘and he played rugby for Australia too, you know.’ Later Tony McAvoy made Mullenjaiwakka’s acquaintance in Sydney. In 2000 Chris Ronalds (now of Senior Counsel) and Michael Slat- tery QC (now a judge of the Supreme Court) recognised that it was a disgrace on so many levels that Mullenjaiwakka and Tony McAvoy were the only practising Indigenous barristers at the NSW Bar and something had to be done. The statistics for Aboriginal and Indige- nous participation in the legal profession were scandalously low. The first initiative developed was an Indigenous Barristers Strategy which was given strong support by the President of the NSW Bar Association Ruth McColl SC (later a judge of the NSW Court of Appeal) and was adopted by the Bar Council. Second, an Indigenous Barristers Trust was established to support law students and lawyers to make their way to and then survive at the Bar. Mullenjaiwakka was an inaugural trustee of the Indigenous Barristers Trust. In 2006 Mullenjaiwakka was given the honour of opening the first National Indigenous Legal Conference, at which time he remarked on the contrast of being the only Aboriginal student at law school. Mullenjaiwakka served as the chairperson of the NSW Aboriginal Justice Advisory Committee. In 2016 Mullenjaiwakka was appointed to the Mental Health The Honourable Review Tribunal having also served as an acting District Court judge and a part-time commissioner of the Land and Environment David Anthony Hunt AO QC

Court of NSW. Photograph: Fairfax Media Mullenjaiwakka was considered an activist, a champion of Indige- (1935–2019) nous rights and identity. The struggles of his era coincided with many international changes of thought regarding First Nations People. Barrister, Queen’s Counsel, Supreme Court Judge His work has positively influenced thousands of young Indigenous Australians. Mullenjaiwakka was known as a proud, but humble man Judge of the United Nations who refused to accept Australia Day honours on several occasions International Criminal Tribunal until the rights of his people were recognised. The struggle for recognition and acknowledgement of Aboriginal David Hunt was a celebrated QC, widely regarded as one of the people defined Mullenjaiwakka’s life and he has been a pivotal figure brightest of his generation to come to the Bar. His practice fea- in the move towards social awareness of the Indigenous situation tured defamation law and it is said his knowledge of that area of throughout Australia. Mullenjaiwakka will be greatly missed by the law even as a junior barrister surpassed that of the judges. Hunt is Australian Indigenous community and sportsmen. Many Indige- fondly remembered for his inimitable style as an advocate and as a nous lives breathed easier because Mullenjaiwakka lived. Supreme Court judge. David Anthony Hunt was born in Sydney to Noel and Brenda. Kevin Tang His father died while he was a child. Life was unsettled for some

The Journal of the NSW Bar Association [2019] (Winter) Bar News 97 OBITUARIES

time. He spent most of his childhood at boarding school where fully spoken. His conversation was fascinating. he experienced a piercing loneliness. He grew up in wartime and By early 1998 future adventures were awaiting. He retired from during his early adolescent years the haunting hum of war planes the Court. over Sydney disturbed his sleep. For a short time, Hunt QC was retained by the Judicial Com- His mother remarried in the early 1950s. David moved to be with mission of NSW on a project concerning directions made to juries her and his stepfather in Brisbane Queensland. This was the begin- in criminal trials. However, by October of 1998 Hunt QC had ning of a golden era. He gained admission to study for a combined accepted a nomination to become Judge of the United Nations In- Arts and Law degree at the University of Queensland. He would ternational Criminal Tribunal for the Former Yugoslavia. This was enjoy the beach on the Gold Coast, which was where he met his wife a United Nations initiative in the years after the Bosnian War. The Margaret during those years. Margaret was an elegant and poised Hunts moved from Sydney to The Hague where they lived for five woman who often wore her hair in a beehive. She had a joyful and years. Life was delightful. bright disposition and was the perfect complement to David’s serious- Hunt QC was a most eminently qualified individual to sit on ness. She was an air hostess on Qantas international routes. She had that Court and he brought with him the rigour of the common law a wonderful life flying to Europe and exotic locations in Asia, until jurisdiction that he had administered in NSW and its time honoured they married in 1959 and they promptly returned to live in Sydney. procedure. Hunt QC was magisterial in that atmosphere and his Their sons Fraser, Simon and Adam were born in the early 1960s. presence there recalled that of Sir Hartley Shawcross GBE PC QC, That year David was called to the Bar in Sydney. He took chambers Britain’s authoritative prosecutor at The Nuremburg Trials after on the Seventh Floor of Wentworth Chambers. He fraternised with WWII. The focus was the rule of Law and not victor’s justice. Mostly the great barristers of the day. From the earliest time his specialty his fellow appointees were academics in different legal traditions and was defamation. His other area of particular expertise was criminal often were political appointees. They had never run criminal trials. law and procedure. After some years of practice, he took a retainer The Court adopted criminal trial rules that were an amalgamation from Sir Frank Packer at Australian Consolidated Press and The of the procedures followed at The Nuremburg Trials and the NSW Sydney Morning Herald, which had been previously held by Anthony Supreme Court Criminal Trial Procedures. The rules are still in use Larkins QC who had taken an appointment to the Supreme Court. in the International Criminal Court. This was an extraordinary Hunt took silk and became one of Her Majesty’s counsel in 1975. chapter of his life. He indicted Serbian leader Slobodan Milosevic as He was appointed counsel assisting Mr Justice Nagle in the Royal a war criminal and signed his arrest warrant. He bore witness to the Commission into NSW prisons. The violent world of prison inmates opening of the mass graves in Srebrenica in fields of prairie grasses was laid bare to the public at the time. This was a pivotal Inquiry and and flowers. Hunt QC was a witness of our times. required visits and views of all NSW Prisons. The Report changed Hunt QC also sat as a judge in the Appeals Chamber of the Inter- the culture of incarceration and clarified the true purpose of the national Criminal Tribunal for Rwanda. This tribunal was created in prison system. Sentencing and punishment had not been scrutinised the aftermath of the genocide in 1994. much until then. The key principles and findings of that Royal Com- In 2000, Hunt QC was made an Officer of the Order of Australia mission helped develop this rather antiquated area into the more for his services to the Judiciary to the Law and to the Community enlightened era which followed. The Inquiry was a line in the sand particularly in the areas of criminal law, defamation and internation- and was of utmost importance for the changes which would take up al law in defence of human rights. to 25 years to find full expression and to be implemented. The Hunts returned to Sydney and resumed living in the Eastern In 1979 Hunt QC took a judicial appointment as a Judge of the suburbs. They had a happy and quiet life of family and social func- Common Law division of the Supreme Court of NSW. He would tions. He resumed his position as a part-time commissioner of the become the Defamation Judge, and he was also given to criminal Law Reform Commission for a time. For some years, he travelled law. His lucid judgments have stood the test of time and matters of with Margaret to exotic locales and experienced a wonderful time in defamation were revivified through his judgments. He was relatively retirement. One Supreme Court judge recalls having breakfast regu- young to be appointed to the Court and became a shining light. Hunt larly in London with Hunt QC and Margaret at their club. They had QC was always acutely aware of exercising judicial power – he was a full social life in the weeks and months they spent there annually. born for the role. He never lost sight of the significance of the judicial In 2013, the Hunts experienced ill health. Margaret suffered burden and the fact that a judge’s power could not be taken lightly. a stroke in 2013. Life for her never regained its full momentum Hunt J would sit for some 20 years as a Supreme Court judge, from that time. She died in 2017. Hunt QC was devastated by for seven of those years he was the Chief Judge at Common Law. Margaret’s demise. For years Hunt QC then fought a courageous During his time on the bench he heard many high-profile cases battle against Alzheimer’s disease which ruthlessly set in on him. including that of High Court Judge Justice Lionel Murphy’s case Three sons survive them. for attempting to pervert the Court of justice. As the head of the David Hunt QC has left a formidable mark and an indelible Common Law Division, he sat almost permanently on the Court of legacy in the Law, his contribution to international criminal law Criminal Appeal. Hunt J was an industrious judge and this was a jurisprudence will be felt for years to come. He was magnificent and time when the policy and practice of the Court was evolving. Hunt a sheer delight to know. The Bar has lost one of its all-time giants. J revolutionised case management between 1979 and 1991 and the fabled delays from another time ceased. Kevin Tang The most difficult case which Hunt J heard was a criminal case, that of the serial killer Ivan Milat. The trial ran over five months. It was traumatic for most involved including the Judge and the emo- tional toll was significant as he presided over the trial in the presence of some seven grieving families and surviving relatives. Hunt J had inexhaustible reserves of stamina, joviality and good humour. He was much loved by the profession and by his fellow judicial colleagues. The responsibility was heavy but he was always pleasant. He was always erudite and he had a sparkling intelligence and knowledge about many things. He was widely read and beauti-

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of his clients throughout the 1980s and 1990s. He took Silk in 2003 with Scot Wheelhouse SC, Harry Shore SC and Mark Marion SC among others in the list. His principal areas of practice were building and construction, commercial, equity and related aspects in trade practices, corporations law, professional negligence (other than med- ical) and in later years he delved into some criminal law. A little-known detail about Ross was his predilection for English Georgian furniture of the finest quality of the 18th century. He had an eye for such art and furniture of the great makers. In St James’s Hall, he kept sparse chambers except for an important secretaire bookcase of the finest quality and of the period (1st lustrum 19th century). His friend the late Martyn Cook, the iconic Sydney an- tique dealer noted its provenance and coveted it. Ross joined the Army Reserve in September 1977 and served as Ross Tyndall McKeand SC a legal officer at Headquarters 2nd Military District, Headquarters Field Force Command and Director of Army Legal Services. He was Soldier, Solicitor, Barrister and Silk appointed a Judge Advocate and a Defence Force Magistrate in 1988. (1945–2019) He retired on 1 March 1990 with the rank of Lieutenant Colonel. Ross married Diane Maxwell in 1996 and continued in practice Ross Tyndall McKeand SC was a soldier, solicitor, barrister and until 2017 when he retired to Avoca Beach, far from the pressures senior counsel. Ross was born in Sydney on 25th June 1945 to of Queen’s Square. Ross continued to indulge his abiding interest in Constance and Ernest. His older brother David was born on 16 July motorcycles. It was the wind, the speed and the freedom which those 1940. He grew up in the Ramsgate and Sans Souci area in southern machines represented that appealed to him. Sydney. He later attended Sydney Technical High School where he Ross’ sudden and unexpected demise was reported in circulars to took the leaving certificate. the Bar. He was tragically killed on 26 March 2019 in a motorcycle Ross deferred his national service in the heady 1960s and opted accident near Forster on the NSW North Coast. Apart from a re- to attend the University of Sydney graduating with a Bachelor of placement pacemaker, installed but a few days prior, Ross was in ex- Laws in 1968. He was admitted as a solicitor in November 1968. cellent health. It was a great shock to all those who knew him during Ross was employed as a solicitor with RJ Pettiford Solicitors prior to his distinguished years as a soldier and a barrister. Ross made a strong entering the Army with the first intake of 1969. Ross was allocated mark on the law and loved case strategy and the intellectual side of to the Australian Army Legal Corps and posted as a legal officer to the law. Many barristers would remember him as a polite and most Directorate of Legal Services, Army Headquarters as a temporary Courteous opponent to have encountered. He carried himself in a captain. This was followed by a short time at Headquarters Eastern most dignified way. Those who knew him will remember his charm, Common when he was posted to the number 6 Task Force in HQ Courtesy and delightful sense of humour as a friend and colleague. Southern Qld as a legal officer. Ross was always informative, entertaining and knowledgeable. On 13 May 1970, Ross was posted to HQ Australian Forces Vi- His loving wife Diane, three stepchildren Chloe, Brodie and etnam as a legal officer before being posted to HQ 1 ALSG at Vung Camilla Maxwell and his two daughters Elissa and Chloe McKeand, Tau. Ross appeared in many Court martials including an appearance all survive him. He was privately cremated on 2 April 2019. as assistant prosecutor in a double murder trial. Having extended his national service by a few months, Ross returned to Australia on Kevin Tang 12 May 1971 and shortly after was discharged. One great story he shared with some over the years was about his R&R in Vietnam. He went to the Hotel Metropole in Hanoi – one of those legendary and grand hotels east of the Suez. Ross went to the hotel deliberately to see the grand reception room where Colonel Christian de Castries (Head of French Armed Forces in Vietnam) telephoned the French President Rene Coty to notify him of the defeat of France at Dien Bien Phu on 7 May 1954, within hours of it occurring. It was a line in the sand for France in the Far East. Colonel de Castries had booked a scratchy old trunk call from the sumptuous ballroom to announce the defeat, ‘Nous avons perdu les deux […] la guerre et l’Indochine […]’. The President was speechless. The line dropped out. It was a sombre moment in French modern history. The French presence in Indochina for over a century ceased abruptly with those words. Ross was an enthusiast of all military and general history with a great recall of the events which marked his times. One might even have thought that Ross fought at Dien Bien Phu. After his national service, life back in Sydney resumed compara- tively normally. Ross continued as a solicitor and married Suzanne Roslyn Dickson in April 1972 with whom he had two daughters. He moved to London briefly and after four years working in a law firm he returned to Sydney. He was an employed solicitor with Messrs Stephen Jaques & Stephens. Ross was admitted to the Bar in 1979. It was a glorious time to be at the Bar. His experience was marked by the commercial fortunes

The Journal of the NSW Bar Association [2019] (Winter) Bar News 99 OBITUARIES

Linton Mearns Morris QC Versatility became him. He had a way of persuading a judge or jury that his view was the only reasonable view. Morris QC’s expertise (1935–2019) as a jury advocate was second to none – he knew how to capture the attention of a jury and to speak to and mesmerise them. He sought For more than 50 years Linton Morris QC was one of the legendary to beguile and persuade rather than lecture. In judge alone trials it and most distinguished barristers of the Sydney Bar – he was a cus- was often said Morris QC would have the judge eating out of his todian of the traditions of the Bar and a giant in the art of advocacy. hand in the opening. He became a master of the common law trial. Linton Mearns Morris QC was born to Paul and Violet Morris He practised from 7 Selborne from 1974 for some 25 years where on 20 January 1935. Alwyn and Ailsa were his siblings. He lived his clerk was Brian Bannon. Those were his busiest years and indeed with his family at Roseville and then Killara on the North Shore. his most famous during which he developed a fine reputation as a His father was a businessman and there was no family connec- preeminent advocate. He then moved in the late 1980s to Blackstone tion to the law. His father died when he was young and he and Chambers. His fellow chamber denizens over the years were Don his mother moved to a modest timber cottage in what was then a Grieve QC, the Honourable TEF Hughes AO QC, David Yates SC semi-rural area in St Ives. (later a Federal Court judge), Kieran Smark SC and JJ Garnsey QC. Morris QC attended Knox Grammar School at Wahroonga Morris QC was one of the famous few who attended the Broken where he became a champion debater. He came to the attention Hill assizes, the circuit Court to which he was drawn annually. For of Jack Shand QC during a national debating competition and the connection endured until life at the Bar began. years, he would travel to Broken Hill for a month or so prior to Morris QC attended the University of Sydney and took articles of the sittings to confer with every plaintiff, every witness and every clerkship at Cutler Hughes Harris and Garvan. He graduated with expert and prepare every proof of evidence and chronology prior to an LLB on 5 May 1960. trial. As a result, he could control which cases to settle and which He was then Associate to Mr Justice Ferguson. to run in the month-long rolling list. In one sitting, he reputedly Morris QC read with Harold Glass (as his Honour then was) opened and settled five cases before morning tea. During those another master of the common law trial. He would go to Glass’s circuit weeks, Morris QC would stay for two to three weeks with large room on 8 Selborne where he had a burgeoning practice to his great friends and opponents which included Dusty Ireland (later take instruction and learn from his pupil Master. The senior bar a Supreme Court judge) and many others. He also went to Griffith, in Phillip Street comprised the greats who inspired Morris QC Canberra and around the State. including: Jack Shand QC, Jack Smythe QC, Sir Garfield Bar- There was no secret to his success. Morris QC was meticulously wick, Michael Helsham QC, Sir Jack Cassidy, Sir Cyril Walsh, prepared for a case and for example how he gained a reputation as Sir Victor Windeyer and Anthony Larkins QC – the luminaries ‘the Silver Bullet’ and a most capable counsel whose instinct and of the day. Many members of the Bar were retired servicemen foresight was uncanny. He would analyse the case on the papers he who fought hard and played hard. had and prepared them with a focus on what the final submission Morris QC commenced in practice on 2 February 1961. He would be at the conclusion of the trial. What he predicted and would never leave the Bar. planned for usually unfolded. He always presented as a sober-mind- Morris QC was from another time. Phillip Street was then a ed straight talker in Court. If he failed to beguile a witness with string of charming ramshackle Victorian terraces and where Sel- simplicity and logic, he had an ineffable stare that could shake them. borne Chambers now stands was a war-time brothel. His first home Garling J remembers appearing with Linton Morris QC in was the old Denman chambers which had its staircase propped up many criminal and civil trials. He described him as the finest role with an old telephone pole. model. Garling J observed how Morris QC considered the why of Slowly but surely his star rose. He watched with horror at the a case as well as the how of a case. Morris QC was scrupulously changing face of Phillip Street as its Victorian terraces were demol- concerned to uphold the administration of justice and the inde- ished. He saw Wentworth and Selborne Chambers take shape. pendence of the Bar. Morris QC quickly established himself as a hard worker and a A newly minted Silk in November 1979, Morris QC was offered competent junior. It was the age when the common law bar com- judicial appointment by Sir Nigel Bowen who was then Chief Justice prised both criminal and personal injury and workers’ compensation of the Federal Court of Australia. It would have been a fundamental cases and he was frequently briefed to address juries and would also change in all that Morris QC had known – he was the classic trial appear in catastrophic injury cases. He also acted in defamation, advocate. He took a night to consider it. Morris QC resolved the commercial and the odd equity case, and acted in numerous Royal next morning that he would never leave the Bar. Commissions and Inquiries. He demonstrated a strong appreciation One former Supreme Court judge remembers fondly being led for the forensic skill required in Court and had that unmistakable as a junior by Morris QC in a long case in the Supreme Court of quality of turning his hand to any case, whatever the subject matter. the ACT. He recalled Morris QC’s generosity in words and actions

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and his tendency to never speak down to a junior. Many junior IN MEMORIUM barristers sought out Morris QC’s assistance and as ever, Morris QC was happy to give it. His door in chambers or at home was always open to senior and the most junior members of the Bar. He was imbued with the solemn responsibility which came with being one of her Majesty’s counsel to attend to the training of the junior ranks. We are poorer now for the loss of his watchful eye. In 2010, the President of the Bar, TF Bathurst QC (as his honour the Chief Justice then was) commemorated Morris QC’s 50 un- stinting years at the Bar. Morris QC was steeped in the traditions of the Bar and was eager for his notion of the independent Bar to live on. He weathered the commercial times with his clients, the changes in Court practice and procedure and the legislative changes over five decades. He practised at the Bar until age 75 with what seemed an inexhaustible reserve of energy and enthusiasm, after which time he practised as a mediator and spent many happy years at Jack Shand Chambers. He was always learned and unfailingly polite. Morris QC was one of the last bastions of the old Bar and every good tradition it stood for in society. A place where Morris QC recovered from the enormous pressures The Honourable of Queen’s Square was at his rural property at Isabella. There was no landline phone or electricity for years. It was a true place of Joseph Xavier Gibson QC isolation and some years before the small country shack evolved into an eclectic country retreat. On one occasion a message re- (26 October 1931–2 June 2019) garding the Murphy trial was delivered from the local telephone Admitted to the Bar on 14 March 1958, his Honour was appointed exchange on horseback. a Crown Prosecutor in 1971 and appointed one of her Majesty’s During the 1980s and 1990s, Morris QC travelled Australia Counsel on 23 November 1979. and the world in pursuit of his many interests. Skiing in Europe Gibson QC served with distinction on the District Court of NSW, or America, fly-fishing in New Zealand, Ireland, Scotland and having been sworn in on 3 February 1987. And His Honour retired England, driving his 1928 vintage Lancia car in a 1,000-mile rally 18 July 1987 after spending some 16 years on the District Court around Italy, or from England to Italy and back and thundering Bench. The Judge was very well known in Criminal Law circles and along dusty rural roads in Australia in a vintage car, usually with that was his preferred area of expertise at the Bar and later on the his fly-fishing rod in the back. He loved reading and art. He did not bench of the District Court. think much of golf. It was an extraordinary life. His Honour’s funeral took place at the Sacred Heart Church at Morris QC had several close shaves with death. He survived each Mosman on 12 June 2019. one. He came back stronger each time. But this time, he relented. His Honour is fondly remembered by his fellow judicial colleagues Morris QC is survived by his loving wife of 56 years Joanne, his of the District Court and the Prosecutors of that time. children Christopher, Jeremy (a Silk), Fiona, his extended family and his grandchildren. Sketch by Levy DCJ – Courtesy of Len Attard, Crown Prosecutor. On 21 June 2019, his obsequies took place. The Bar’s loss indi- vidually and collectively is deep. The pews in St James’s King Street were lined with High Court, Supreme Court, Federal Court and District Court judges (both sitting and retired), counsel, solicitors, businessmen, doctors, engineers, farmers, friends and family came to pay final respects to a great barrister. Among the mourners were: the Hon Cal Callaway QC, Justice Andrew Bell, the Hon Michael Kirby AC, the Hon David Kirby, the Hon WV Windeyer, the Hon JP Bryson QC, The Hon TRH Cole AO QC, Lionel Rob- berds QC, RR Stitt QC, Burleigh J, Katzmann J, GW McGrath SC, Justice Peter Garling, the Hon John Dunford QC, the Hon Dennis Cowdroy QC, the Hon Michael McHugh QC, the Hon Trevor Morling QC among many, many others. Many more sent their apologies for which the family is extremely grateful. Each one had memories of Morris QC and of other times. It was a superb memorial to a great barrister whose vigour for the law and devo- tion to the Bar were undiminished to the last. It was a privilege to have met him. As the Bard said: He was a man, take him for all in all. [We] shall not look upon his like again.

Hamlet Act 1 Scene 2

Kevin Tang

The Journal of the NSW Bar Association [2019] (Winter) Bar News 101 REVIEWS

BOOKDOCUMENTPODCASTMOVIE ARY by the Great Depression, and by major resulted in the first executions for the new demographic, social, technological and State (Aboriginal accused, extreme racism, economic changes. ‘Crimes’ are not decreed brutal murders and one of the accused to be so by heavenly fiat, but through saying ‘Will I be in heaven by dinner time?’) political decisions. Over the decades In chapter 2 we learn of how the vice studied, the question of what conduct regal prerogative of mercy was used in the should be regarded as criminal was the ‘Friedman affair’ (a case of receiving stolen subject of intense controversy, particularly goods) and how Banjo Patterson, who was in the field of industrial relations and in the editor of the Evening News at the time the policing of so called ‘victimless crimes.’ wrote a verse about the case, mocking the He also notes – procedure. We learn of the efforts towards a Criminal Code and the influences of Jeremy I remain influenced by the jurisprudence of Bentham and Sir Harry Gibbs as well as American legal realism, the thrust of which the realization for the need of a Children’s is that criminal law is better understood as Court to deal with children who commit what police and Courts actually do, rather crimes. There is of course a chapter on two than from its exposition in textbooks; and ex ministers of the NSW government who, A History of by the central message of Julius Stone’s The in the years shortly after Federation, were Criminal Law in New Providence and Function of Law that prosecuted for fraud or corruption. Chapter senior Courts do sometimes make policy 7 deals with the beginnings of Legal Aid and South Wales – Volume 2: decisions, and thus create the law, rather public defenders. than merely apply it in accordance with The author notes that at Federation in The New State, 1901–1955 logical syllogisms. Realpolitik dictates, of 1901 there were hardly any motor cars in course, that judges cannot always frankly by G D Woods QC NSW but by 1910 there were many and this expound this latter truth, at least while led to the Motor Traffic Act 1909. Regular This book is the second volume of Dr they are on the bench, but what I call the strikes started to occur and the Premier of Woods’ work in writing about the history of Stone High Court – otherwise the High the day (CG Wade) embarked on major criminal law in NSW. The first volume dealt Court under Sir Anthony Mason and amendments to the industrial arbitration with the period 1788–1900, i.e. the start of under Sir Gerard Brennan – has shown law. This led to many protests and the in- the colony and all of the convict inspired it to be so. However it is important not to evitable criminal charges including a charge criminal laws and punishment that we are be distracted by arguments about so called of riotous behaviour against the socialist all too familiar with. Volume Two deals with ‘ judicial activism’. Parliaments make orator and organiser, Tom Mann and then life after 1900, i.e. the start of a new century vastly more laws than judges do, which charges against the Newcastle Union leader and the start of Federation, and finishes at is why in this study… I have focussed on Peter Bowling and others of conspiring to 1955, which was a significant year as it was the central work of the parliaments in instigate certain persons to do an act ‘in the the year that the death penalty was effective- changing the criminal law.’ nature of a strike’. ly abolished in NSW for all offences (notable There are 38 chapters and in each chapter Chapter 12 deals with the Girls’ Protection exceptions were treason and piracy). the author gives us a summary of what legis- Act 1910 and the hard-fought battle to raise What we have in this book is a wonderful- lation was introduced, what government was the age of consent. The common law age of ly detailed summary of what seems like the in power and who were the main politicians consent was 12 years and only went up to most famous/infamous/important criminal involved, what cases were decided, the facts 14 years as late as 1883. The Act ended up law cases and legislation (both substantial of those cases, who were the lawyers involved identifying the principles which governed laws and procedural laws) that were dealt in the cases and some of the history of the consenting sexual relations between men with by the Courts in NSW during this day, either State, Federal or in the world. and young women in NSW for most of the period, and it is through these cases and laws Some of my favourites are as follows: 20th century, particularly the general age of that we learn about the life and times of the In chapter 1 we start with 1901 and the consent of 16 years. Chapter 13 deals with day, the feelings and prejudices of the times author summarises our ‘Legal inheritance’ the introduction of the Criminal Appeal Act and the political issues that were grappled although there was of course the Crimes Act 1912, as parliament acknowledged the possi- with. The research is from standard sources 1900, English judge-made law dealing with bility of wrongful convictions. Importantly, of the law, and also from the major city and the standard of proof, criminal procedure, it allowed an appeal against jury error on the regional newspapers which apparently re- criminal defences and right to trial by jury facts adverse to an accused: ‘The Court… ported parliamentary proceedings very fully, (12 men) continued to apply. The author shall allow the appeal if it is of the opinion at least between 1901 to about 1945. summarises the Courts that existed in NSW that the verdict of the jury cannot be sup- The book also shows us how the social, and it is quaint to note that one of these ported, having regard to the evidence…’ This cultural and political issues of the day shaped Courts was the beautiful sandstone Water was qualified by the proviso that an appeal the decisions of the Courts and the introduc- Police Court at Circular Quay, now a fab- would be rejected if the appellant could tion of particular pieces of legislation, and it ulous museum I love to visit (as it has very show only a minor error not amounting to is this understanding that makes a history of good historical exhibitions about criminal a substantial miscarriage of justice. There was also the issue as to who should sit on criminal laws so important and fascinating law in NSW). The other Courts were the this Court and what appeal then should be because its history is, indeed, history itself. Central Court of Petty Sessions in Liverpool St and of course the Central Criminal Court permitted to the High Court. There was also The author notes in the Preface that at Taylor Square in Darlinghurst. We are provision for an appeal against sentence, as In this half century, life and the law were told of the emergence of Commonwealth there had been numerous complaints about disrupted by the two great international Criminal Laws and a new High Court and inconsistency in sentencing in NSW Courts. wars of 1914-1918 and 1939-1945, the ‘Breelong Blacks’ murder cases which On 4 August 1914, Britain declared war

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on Germany, and Australia also was at war. prosecution of homosexuals, illicit betting, BOOKDOCUMENTPODCASTMOVIE ARY The most important effect upon the criminal the ‘thousands of new criminal offences’ law of NSW and Australia was the creation as a result of the outbreak of the Second of many new laws and regulations. Up until World War, ‘gingering’ (a trick performed this time, most of the criminal law was State by two prostitutes to remove a wallet from based, but after 4 August 1914, the Com- the customer), socialism and ‘advancing monwealth defence power-section 51(vi)- unlawful doctrines’, Australian fraudsters assumed overriding legal significance. The and the influx of American servicemen, the result was the Commonwealth Crimes Act introduction and failure of the dock brief, 1914 and the main aim was secrecy concern- ‘confessions’ to the NSW police and the ing the war effort. The Commonwealth War famous case of Frederick Mc Dermott, a new Precautions Act 1914 was enacted shortly Jury Act which included women but only if after and delegated to the Governor Gen- they submitted their names for inclusion in eral in Council a very wide power to make jury service lists, the Cold War and the laws regulations ‘for securing the public safety of sedition, ‘New Australians’ and racial and the defence of the Commonwealth’. tensions in the criminal Courts, the Liquor This dealt with the control of enemy aliens, Royal Commission between 1951-1954 and censorship of newspapers and media and finally the abolition of the death penalty. On Us the safeguarding of strategic assets such as Although the last person to be executed by Mark Scott the docks. We learn of various cases in the in NSW was John Trevor Kelly in August Courts dealing with some of these crimes eg 1939 at Long Bay Gaol, the death penalty ‘On Us’ is a short and bittersweet book. The Mr Farey’s appeal to the High Court to test was commuted in every case between 1939 ideas with which it grapples stay with the the legality of a regulation controlling the and 1955. Nevertheless, NSW could now see reader for a long time. The book deserves distribution and prices of various primary itself as a more humane and tolerant society a close reading. The book is part of a small products and staple goods. There was Arthur than it had been in the previous century – at series of books by University of Melbourne Kidman who was a business man a prose- least in some respect. Press featuring current day personalities ‘on’ cuted for defrauding the Commonwealth, The book is beautifully written, with social issues. Scott meditates on how, we a retrospective criminal law in his case. a story book feel rather than a text book, as a society embraced technology without Others were prosecuted for ‘trading with the and there is much to learn. One can only reservations. The book invites us to step enemy’, including Frank Snow who in 1914 imagine what the next period of criminal outside our own echo chamber to consider had a firm which had extensive commercial law would look like, from 1956 to now. what we might have gained or lost in this arrangements with German manufacturing Changes to the role of women affecting the process of being buffeted on a wave of interests to supply metal ores. The author Jury Act and personnel in our Courts, the technological genius. notes how the 1915 High Court judgments rise of corporate criminal law, significant Mark Scott is the secretary of the NSW in Snow were important to understanding changes to sexual assault legislation, neces- Education Department. He was for some Commonwealth criminal law and the role sary changes to sentencing, a new form of time the Chairman of the ABC and prior of the High Court in criminal appeals from immigration and the law of terrorism, are to that he was a traditional print journalist all the states. There were also cases dealing just some of the key topics we may see being for many years. He is eminently qualified with fortune tellers, publishing cartoons dissected and discussed, in such a detailed to speak about the rise of technology and its which resulted in charges of ‘prejudicing and interesting way. effects upon the world of the written word. recruiting’, conscription and the suppression Scott lulls us into the reflection by open- of dissent against government policy. Reviewed by Caroline Dobraszczyk ing with a reverie of a summer holiday and After WW1 the Courts were filled with it ends similarly. The questions posed by numerous criminal cases of ‘shell shock’ and the book are manifold and deep. Were we the shocking problem of how to deal with too hasty in embracing technology without such defendants with such ‘mental illness’ in understanding its ultimate cost? We adopted the face of serious criminal actions. ‘Clear up each new advance without censure. The so- Razorhurst’ was a headline in the Truth mag- phistication of the technology now leaves us azine on 23 September 1928, being a refer- in an invidious situation. The internet, social ence to the ‘razor gang’ period in Sydney and media, the real time interactions, is it all as the author tells us of the very famous case of good as we are told? Gordon Henry Barr and his prostitute wife Smart phones are the platform upon which ‘Diamond Dolly’. The Great Depression and most of the world bases its reality today. its effect on NSW criminal law is detailed in Smartphones are how most people conduct chapter 19 and we learn of how the extensive their daily lives and communicate with each job losses, serious industrial disputes, strike other by message and social media. Scott action and evictions led to for example, cases asserts that we did not prepare ourselves of conspiracy to instigate a strike, charges of adequately for this technology laden life. rioting and charges of obstructing police. Of We did not engage in much forethought course, we also learn of the infamous case on the subject of how technology would of Horatius de Groot at the opening of the affect us both physically and ethically in the Sydney Harbour Bridge on 19 March 1932. future. Some questions would have been so The rest of the book details much of NSW vague as to defy any meaningful answer – legal history involving the importance of i.e., accepting all technologies – how would Woolmington v the DPP [1935] AC 462, the the world of the future play out?

The Journal of the NSW Bar Association [2019] (Winter) Bar News 103 REVIEWS

Scott spares a thought for children in our curriculum is shaped and structured to help BOOKDOCUMENTPODCASTMOVIE ARY society and he considers how schools might prepare young people for all they will face: help future generations avoid this mistake. we must gauge the extent of change, the More saliently, a question in the book speed of change and its inevitable unpredict- emerges – what chance do we have of pre- ability. No one has any idea of the world of paring current day youth to live in the world the 2030s, when those who started school of tomorrow? Will children today even need this year will finish year 12. to be prepared for the relentless onslaught of There have been countless examples of technological advancement? Will the world how biases shape the programming that change more quickly and dramatically in the changes the outcomes we take for granted. years to come? Undoubtedly. For decades in schools, English classes would Progress is hardly ever predictable or linear. explore how language could be deployed to What are the technologies that the author is manipulate meaning – persuasion – prop- considering? It’s the use of mobile phones aganda. Film studies showed examples of and the thousands of digital applications propaganda and image manipulation. Now and additions which facilitate some aspect of we must help young people understand how our lives. The technologies layer upon each insidiously we can be shaped by the barrage International Taxation other, to the extent that they reinforce each of images, text, sounds, algorithms and new other. It’s that widespread cumulative effect experiences which less than a generation ago of Trust Income: which causes the trickle of fear even in the did not exist. Those images and that data in most fervent of supporters. That layering constant exposure also means something. Principles, Planning makes the technology truly remarkable. For We must help the new generation to be scep- example, the humble mobile phone – it is the tical, to be critical, to be wise and to take a and Design access point of the internet, it is the source of moment to consider. by Mark Brabazon SC most communications – text and verbal. It It is more important than ever for us to ask allows a volume of information and learning questions for the young adults of tomorrow Cambridge Tax Law Series that was hitherto unfathomable. Mobile to find the false news and to be alert to it or Cambridge University Press, 2019 technology correlates to and amplifies social to seek out the facts. This book, at its heart, distribution. Location tracking and algo- encourages independent thought. A great There’s more than one way to tax trust rithmic targeting are now the buzz words of lesson in all of this is for youth to under- income: while trusts usually serve legitimate our times, as people are considered in their stand there is something wonderful about non-tax purposes recognised by the general tribes and are objects of marketing – it is a being different. law, they can also be viewed as a vehicle for whole new paradigm. tax evasion and avoidance. This book identi- fies the principles and policies by which Aus- While we wait another dozen years for Reviewed by Kevin Tang Moore’s Law to make everything even small- tralia, New Zealand, the United Kingdom er, faster and cheaper – the ethical problems and the United States tax income derived by, which arise over personal use of social media through or from a trust in an international will have only become worse. setting where more than one country may There are few answers for the young adults have a claim to tax. The author considers of the 2030s. But Scott’s personal reflection various questions of tax design, as well as is a salutary one. We can attempt to help who should be regarded for tax purposes as a new generation find the right questions deriving the income of the trust and how to ask. Since classical times, this has been they should be taxed. the essence of a good education. It’s an old The book examines and compares the formula. One poses the right questions first. principles and policies underpinning the One challenges the assumptions. That is the various methods for the taxation of settlors, way one gets an insight and some under- beneficiaries, trustees and trust distribu- standing into an area. One ends up asking tions. Differences in taxation regimes invari- the questions why things are the way they ably reveal a conflict of approach. The author are. That all may be so – but how many of identifies a set of important common themes us did this in the last 25 years when con- for the taxation of trusts and highlights po- fronted by the vast array of new gadgets, tential cross-border mismatches which can phones and screens. present issues of unintended non-taxation or There will be no revolution in the class- double taxation that sometime comes with room. The time-honoured procedure is the presence of a trust. This book addresses adopted. Demand a hypothesis. Challenge these and many other issues and provides the assumptions, using the data and the practical insight for taxpayers and revenue evidence. Press for a greater insight and authorities. As part of that analysis, the understanding. The uncertainty of the author outlines a range of tax design solu- future workplace means the only guarantee tions as well as points for practitioners, tax is consistent and insistent change, coupled administrators, legislators and academics. with the need to learn and relearn. There is The international taxation of trusts is a certain quality of resilience that is required seldom written about due to the lack of global by taking on the new ad infinitum. We need cohesiveness on the topic. A standalone to think carefully about how the current study on the subject is welcomed, though

104 [2019] (Winter) Bar News REVIEWS

no general review is undertaken of countries BOOKDOCUMENTPODCASTMOVIE ARY and trace the long and often tortuous history to whose tax laws are not representative of the arrive at the relevant principle. White v Johnston2 four countries surveyed. Nor does the book is a good example. His Honour’s analysis of the address the taxation issues presented by authorities relating to consent and trespass in exotic entities not recognised by common their historical context, particularly having law jurisdictions which are not trusts per regard to the extant rules of pleading, led to a se but have some of the attributes of a trust. rejection of the view expressed by McHugh J This is deliberate as the work is foundation- in Marion’s Case3 that a defendant to an action al, and serves to provide a basis for similar in assault and battery bears the legal burden of analysis to be extended to other jurisdictions proving a valid consent. It is a classic illustra- (and trust-like entities) not considered by the tion of Windeyer J’s observation that:4 book. Nevertheless, this book is an essential The only reason for going back into the read for those who advise on the taxation of past is to come forward to the present, to trusts in an international setting. help us to see more clearly the shape of the At just over 400 pages in length, the law of to-day by seeing how it took shape. book is concise and comprehensive. The chapters in Part I examine the settlor/gran- The analysis of the application of Part 1A tor (chapter 2), the beneficiary (chapter 3), The Statutory Foundations of the Civil Liability Act 2002 (NSW) to the trust (chapter 4) and trust distributions questions of causation and the materialisation (chapter 5). These chapters focus on the of Negligence of inherent risks in Paul v Cooke5is a masterly principles underlying the attribution and by Mark Leeming exposé of the difficulties in reconciling the lan- taxation of trust income in the four surveyed Federation Press, 2019 guage used in that Act. It is a process that his countries, while chapter 6 considers the Honour continues in the present work, with a circumstances in which double taxation and Leeming J is well-known as a giant in equity: more expansive (albeit not exhaustive) journey double non-taxation can occur as a result of Challis Lecturer in Equity at Sydney Univer- through the common law of negligence. the interaction of countries’ domestic laws. sity for over 15 years; co-author of the latest The book has chapters devoted to Duty of Further developing the international tax- editions of Jacobs’ Law of Trusts and Meagher, Care, Breach, Causation and contributory ation discussion in chapter 6, Part II delves Gummow and Lehane’s Equity: Doctrines and negligence, Roads Authorities, Damages into the interaction of domestic laws with Remedies. A search of LexisNexis, however, re- where there are multiple defendants, Damages respect to the taxation of trusts in treaty and veals only 39 decided cases in which Leeming for pure mental harm, and particular heads non-treaty situations. Part II also includes J appeared as counsel and in which the word of damages for personal injury (lost capacity consideration of the OECD Partnership ‘negligence’ appears in the text. Of those 39, to provide domestic services, and discount Report and Actions 2, 6 and 15 of the the cases that were truly about the law of negli- rates and interest). These are not, nor are they BEPS project and how they apply to trusts gence can be counted on one hand. Most of the intended to be, comprehensive treatises on (chapters 7 and 8). The Partnership Report other cases arise out of claims in negligence, these topics. They are simply aspects of the law and BEPS project concern perceived inter- but are in fact authorities dealing with ques- of negligence that provide a vehicle by which national tax avoidance which are significant tions of jurisdiction, questions his Honour has the interaction between statute law and judge- current global taxation issues. Part II iden- addressed in works such as Authority to Decide made law may be analysed. tifies risks in relation to the issue of double and Resolving Conflicts of Laws. Why turn his This is an important book for anyone who taxation and double non-taxation and posits hand to writing a text on the law of negligence? practises in the area. The historical analysis en- a range of suggested solutions to prevent In an important respect this is not a text livens each topic area, reminding practitioners those unintended outcomes (chapter 9). about the law of negligence. It is a book about that the law was not always thus and need not The taxation of trust-related income the interaction between statute and judge-made always be. Despite the precision with which can raise difficulties and the interaction or law. In an earlier publication Leeming J wrote:1 Leeming J writes, it is engaging. It offers fresh impact of the domestic laws of more than perspectives on how statute law engages (or in one jurisdiction only further complicates Most of what is actually occurring in some cases fails to engage) with the common matters. This book presents a detailed study the legal system is the construction law. Although directed towards analysing more of international trust taxation as a topic in its and application of statutes. A great deal abstract jurisprudential issues, it nonetheless own right and is a useful addition to any tax of what is simplistically described as provides valuable insights relevant to day-to- practitioner’s library. ‘common law’ is the historical product day consideration of the impact of statutory of, or response to, statutes. And much reforms to the common law. of the contemporaneous ‘development’ Reviewed by Keni Josifoski in the day-to-day workings of Courts in ENDNOTES fact involves a process of harmonisation informed by statutory norms. 1 M Leeming, ‘Theories and Principles Underlying the Development of the Common Law: The Statutory Elephant in the Room’ (2013) The present work seeks to expose and then to 36(3) UNSWLJ 1002. analyse the foundational role of statutes, using 2 White v Johnston (2015) 87 NSWLR 779. the law of negligence as an illustration of the 3 Secretary, Department of Health and Community Services v JWB and SMB processes of interaction between the two. (Marion’s Case) (1992) 175 CLR 218 at 310–11. Since his appointment to the NSW Court 4 Attorney-General (Vict) v The Commonwealth (1962) 107 CLR 529 of Appeal Leeming J has decided a number of at 595. important cases for the law of tort in NSW. In 5 Paul v Cooke (2013) 85 NSWLR 167. spite of his Honour’s apparent lack of experi- ence with the law of tort, or perhaps because of it, those judgments are scholarly and erudite

The Journal of the NSW Bar Association [2019] (Winter) Bar News 105 ARCHON’S VIEW - An anonymous view from the bench

A View from the Bench Bridge of Starship Justice

Judge’s Log: Star date 41553.4. Destination: warn me about this at the Star Fleet Academy. their pesky problems. Unknown. We have been plumbing the outer In the meantime, the number of reserved It is early days yet with this new method reaches of the star system Tedium now for 3 judgments has shot up dramatically and a and there have been, I do not mind admit- months in search of the issues in this proceed- complaint stream has been opened on the ting, some minor teething problems such ing but with little success. The forward sen- hailing channel. It is beginning to approach as, for example, how does one describe the sors detected them briefly two weeks ago but critical levels and the bridge has begun to plaintiff-to-be but who is-not-yet? And, of just as we were about to make contact with flash red and to appear to shake violently course, there have been the usual complaints them they were sucked into a cloud of ion- from side to side as the crew throw themselves from the rule of law rent-a-crowd about the ised waffle. Our attempts to enter the waffle around rather unconvincingly. I knew that administration of justice &c &c and that cloud have been thwarted by a force field of that this was bound to happen if I spent time is not to mention the predictable grumbles highly energised but impenetrable solicitors’ writing this log. I convened a meeting about from the Sandanistas lurking in the upper correspondence. On first contact, the force this problem with my senior officers to see if reaches of the judicial firmament. But I am field overwhelmed our issue detectors and some solution could not be found before the not concerned about those cheerless types caused the electronic court file temporarily to entire propulsion system blew. This meeting who do but wile away the hours pondering crash which is entirely unprecedented. After took place in the rearward kitchenette just the big questions such as: can a judge, not an alarming period during which I was forced behind the teleporter which connects us to in a state of jurisdictional grace, receive the to steer the courtroom manually, my associ- the Chief Justice and other distant bodies, sacraments of judicial review; is the concept ate, Spok, was eventually able to reboot the heavenly or otherwise. Minutes were kept of law part of the law or separate from the law system using an adults-only version of Angry and a fine poppy seed cake served. As a or merely non-contiguous with it; must there Birds, a small piece of brioche and some result, I have determined to use the temporal be an even number of torts; and, is the law dental floss. For now, the guidance system is anomaly against this problem. By reversing of contract made from soft cheese or hard? stable although I have lingering doubts about the bipolarity of Spok, running a new patch Heady stuff, no doubt. But no use to me out Spok who has been behaving strangely since for my dictaphone which I have written here in the outer reaches of Tedium dealing we first encountered the waffle cloud. called ‘’, changing the hold with waffle cloud. The next step is not clear. Access to the music from Depeche Mode to Aerosmith and The advantages which will flow from dis- Commonwealth Courts Portal remains giving the whole system a good solid whack pensing with litigants will have associated blocked by a temporal anomaly so it will not with back copies of the Spectator, I believe I efficiencies. For example, it will free up time be possible, until the anomaly is cleared, to will be able to deliver the judgments before to spend on important judicial work such as return to normality, whatever that is. In the the cases to which they relate have even been looking out the window, complaining about meantime, a detachment of counsel have filed. the decline in the quality of the legal profes- begun to gather on the starboard bow in I confess this idea was not entirely original sion and generally just remembering the good preparation for what will no doubt be anoth- but was inspired by the Circuit Court. Its old days when unreported judgments were er sortie. They have a new and particularly insight, for which it is justly famous, was that actually unreported and counsel got in and powerful weapon, the hyper-linked written much higher warp speeds could be achieved out of the lift in order of seniority. Judge’s log submission in PDF format, which they have if one shut down the procedural fairness al- closed for now. been firing at the court intermittently with gorithms in the warp drive. My insight was some limited success. The shields have not that one could improve on this outcome still Archon’s View is a new column. It provides failed yet but our energy levels are low and it is further if one simply excluded the litigants an opportunity for a current judicial officer only a matter of time before one of them gets altogether from the court system and wrote to provide an anonymous view of the Bar. through and I have to read it. They did not the judgments without reference to them or

106 [2019] (Winter) Bar News An anonymous Barrister’s perspective - ADVOCATUS

Advocatus

So another couple of old warhorses have Smithy and Schofield went out really makes I’m a long way off that.’ pulled the plug. It always seems to happen in you think, doesn’t it?’ So that’s it. No more prying from me. little clumps. There’s never any organisation ‘Why?’ No more caring either. It’s every man and about it. No collusion. No, ‘Smithy’s going ‘Well, you know, one day they’re at their woman for themselves and if he and she to retire June 30, then Schofield September desk beavering away and the next they’re refuses to think about the future then that’s 30, then Jones on the last Friday before gone. Doctor’s orders. It’s not the sort of way their problem. Christmas’. It’s always sudden. In fact it’s you want to go is it?’ As for me, I plan on being an old gelding. usually: ‘Where’s Smithy? I haven’t seen him ‘I suppose not.’ I’m going to run until I drop out of the plac- all week?’ ‘Look at yourself, Brucey. What are you? ings and then hope that my faithful owner ‘Haven’t you heard? Done. Doctor’s 68-69?’ will retire me to a juicy paddock. I don’t orders.’ ‘Sixty-two.’ need summer at Palm Beach, nor winter in A horse trainer once told me that mares ‘Well there you go. Surely it’s time you Aspen. I haven’t the energy for walking the are a bit like that. Just when they’re about thought about going out on your terms and Camino de Santiago, nor the taste for fine to enter the twilight of their racing careers nobody else’s. You’d have plenty in super by wines or seven-course degustations. they just stop. They won’t run any more. now?’ I’m going to open an account and drop They can’t. They won’t. A stallion or a geld- ‘Super? What’s that?’ some dollars into it, hoping it will accrue ing might forge on, their times and placings Now I know you might think me heart- over time. I’ll shut up shop when the time gradually getting worse. But when a mare’s less and selfish, but we really need to discuss comes, sell my outdated editions of the books done she’s done. Old barristers are the same. these issues as a profession. And as I saw I’ve never touched and hope that that will be Usually with the postscript ‘Doctor’s orders’ somewhere recently we need to be asking enough to see me through to the grave. And attached. each other: R U OK? if I fall short, so what? A couple of my clients And so, as I walk the halls of our now So I’ve taken it upon myself to inquire are on the pension and they seem OK. depleted floor I ask the only question that upon all members of our floor about their Golf on public courses. All meals at home. matters: does this mean more work for me? preparedness for life after the Bar. And I’m In fact, why not start now? No more break- I certainly hope so. You see, the Smithys, horrified by what I’ve learnt. fasting at Silks. No more coffees at Beanbah. Schofields and Joneses of this world have ‘Retire?’ exclaimed one chap. ‘I’ve put It will be toast and porridge at home, Nes- cultivated practices like their wine cellars: three kids through boarding school, di- cafe Blend 43 in the office. And as for the rich and diverse. What if I get some of that vorced twice and survived one heart attack. monthly catch-up with the lads? Well that commercial work Smithy’s always hogged? I’ll be here till I drop.’ can be BYO sandwich and we’ll sit in the Or what if I start getting that appellate stuff Another chap cried: ‘I married young.’ park instead. Schofield always seemed to horde? I can fi- I replied: ‘You got married three years Actually, upon deeper reflection, do me a nally dream of my mortgage being knocked ago.’ favour: when the time comes take this old completely out. I could afford a Beamer or ‘Yes, but to a much younger woman. After mule up to the top paddock and shoot him. a Merc that was built this century. Oh the I get my hip done in August we’re going possibilities. clubbing in Ibiza in September - whatever But it’s been a couple of months now and clubbing is - and I’ve just bought an electric the clerk hasn’t exactly been ringing me car to reverse global warming. I won’t be able every 10 minutes. Is there anything more I to retire for some time unfortunately.’ could be doing? Should I be selling myself When I approached the most senior as the next Smith, Schofield or Jones? No. female of our floor to discuss life after the That seems a little tacky. A bit like dancing Bar she slapped me for suggesting she was on their graves. Besides, a new plan has anywhere near retirement age then kicked emerged. me in the shins. I’ve been walking the halls and popping in ‘What was the kick for?’ I whined. to some of my colleagues to conduct what I ‘If you ever read Bar News or watched any call ‘welfare checks’. of those CPD videos I sent you you’d know ‘Everything alright Brucey?’ I venture. full well I spent my 30s raising children and And when the reply is mostly positive, I my 40s re-building my practice. I’ll have to might offer in return: ‘You know, the way go to 70 until I retire and I can assure you

The Journal of the NSW Bar Association [2019] (Winter) Bar News 107 THE FURIES

The Furies (Sartorial Edition)

Is it still frowned upon to wear brown Thankfully, female advocates have never When I came to the Bar I was deeply shoes to court? If we are at a place of been spared advice on this issue, but pity ashamed of my pristine court attire. I’d acceptance in relation to brown shoes, the poor male barrister who, every day, must availed myself of a cut-price readers’ what of other more demonstrative dress in fear that an unwitting display of package that included wig, gown, bar (dare I say) splendid shoes? I once had excessive masculinity will forever diminish jacket and three jabots as white as a colleague who wore black and white his professional image. Serendipitously, a snow. I was subjected to endless jibes chequered brogues to court on each barrister’s attire (wig and gown) tends to from senior members of the floor about occasion and it did not appear to have spare the male barrister from such excesses, how unpolluted my attire was and so I any adverse impact on outcome. masking as it does, all his clothing, except embarked on a campaign of befouling for his shoes. And this brings us to your This is serious stuff! And we, the Furies, do my jabots and bar jacket in particular question: what shoes ought a male barrister not shirk the heavy responsibility of provid- in an effort to fit in. My problem is: I’ve wear? It is an unfortunate fact, and one that ing the definitive guidance sought by male1 moved. I’m now on a hip, progressive we, the Furies, are not afraid to state in these barristers on this essential issue. After a me- floor with a state of the art fit-out and overly politically correct times, that men’s ticulous search of governing legislation, we members shinier than the stainless feet are larger than average. In keeping with looked to subordinated legislation, and then steel appliances in the kitchen. Should the above ratio, we consider it would be best to rules and then to policy guides whereby I replace my coffee-stained, cigarette- for men4 to draw the least attention possible we found a 2007 edict handed down by the burnt rags to fit in? Or could they help to their large feet by wearing black shoes then Chief Justice of the Supreme Court of me form a nice point of difference which, as we all know, is both a slimming New South Wales going by the title ‘court between myself and my new colleagues? Attire Policy’. In a user-friendly tabular colour and one that merges with the black format, the policy helpfully sets out, for each of the robes to hide the largeness of all but We are trying to reconcile ‘hip and progres- type of hearing, the requirement for the the most distractingly large of these male ap- sive’ with ‘state of the art fit-out’ and ‘shiny barrister to wear first, a robe and, secondly, a pendages. The only exception to this might members’. The latter descriptors suggest your wig. We are reliably informed this policy has be where the man has much smaller than new chambers are far from the Rumpole-like strict application. However – and we cannot average feet such that black shoes might not dark wood, stained carpet affairs where the emphasise this strongly enough – the items of make sufficiently clear his maleness for the members, still using fax machines, treat with bench. For the truly abnormally small footed clothing listed in the policy are not exhaus- great suspicion anyone with straight teeth. man, we suggest a variegated colouring, tive. We feel confident in saying, in keeping But the former descriptor suggests some- 2 perhaps white spats over black shoes or, dare with the policy’s stated purpose , that bar- thing different again to the glass and chrome we suggest, your friend’s bold adventure in risters are indeed also required to wear other joint enterprises styled as direct replicas of items of clothing. But what are these other chequered brogues. But never brown. That’s just plain ugly. the top tier law firms they service exclusively items of clothing we hear you ask? and where it is rumoured new members are Our research has also taken us to judicial 1 We say ‘male’, since female barristers have the innate sense not to wear microchipped lest they be found straying to expositions on the matter. We have taken brown shoes with black robes; a discreet lick of Leboutin red on the clients who are ‘off-brand’. heed of the words of Justice Frederico of sole of a tastefully heeled stiletto, perhaps, but never brown! If your new floor is truly hip and pro- the Family Court in 1983 when refusing 2 The policy commences with these words: ‘This policy aims to gressive, it will be, like, totally woke and to take a barrister’s appearance because she ensure barristers appear before the court in attire that meets the court’s wore trousers instead of a skirt, as well as expectations’. Thankfully this excuses a purposive reading of the text that accept you as you are with your statement the extra-curial writings of Justice Young might otherwise elude a black letter, and possibly chilly, jurist. coffee-stained jabot, especially if you have who, in 2006, out of politeness, reserved his 3 His Honour politely observed: ‘ . . . it is clear that some female solicitors the barrista skills to match. But perhaps that condemnation of certain advocates’ attire have no idea of appropriate court dress. The worst offenders are usually was never truly your shtick? well-built women who expose at least the upper halves of their breasts, Australian Law Jour- Whatever is your thing, we suggest you for his column in the and as they lean forward to make a point to a judge sitting at a high level 3 find it and that you stick to it no matter where nal, entitled, ‘Politeness’ . We have reduced they present a most unwelcome display of bare flesh’, Justice PW Young, these curial and extra-curial expositions ‘Politeness’, Australian Law Journal, March 2006. you are. After all, it takes all types to repre- to a golden thread which we think is best 4 Especially, dare we say, those men who are ‘well-built’. sent all types of people and you will never pithily expressed as follows: thou shalt dress be a servant to all (and yet of none) if you according to one’s gender, but not overly so. are cravenly subject to the demands of some.

108 [2019] (Winter) Bar News