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LAW INSTITUTE JOURNAL APRIL 2021 ABORIGINALWHY THE LAW LAWYERS SHOULD ALLOWMAKING FOR INROADS COMPULSORY TESTING IN A PANDEMIC www.liv.asn.au/LIJ PP100007900 ISSN 0023-9267 95.4 Successful law firms are agile

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leap.com.au/agile-law-firms Contents April 2021

ABORIGINAL LAWYERS MAKING INROADS Role models boost participation.

By Karin Derkley

page 11

LIV’s new wellbeing manager is here to help By Karin Derkley

page 16

LIV Legal Awards Paul Baker award history.

By Eu-Jin Teo

page 19

Opinion: Mandatory reporting of sexual harassment By Lander & Rogers chief executive partner Genevieve Collins

page 20

PC renewal guide page 18

Member engagement program page 73 PHOTOGRAPH: DAVID JOHNS Cover from left: Deakin Law student Rita Tomlins, VLA graduate lawyer Hayden Walker, Victorian government graduate lawyer Kassie McAlear, ABL lawyer Karri Walker. Photograph: David Johns APRIL 2021 LAW INSTITUTE JOURNAL 1 welcomes the following new readers undertaking Contents thewelcomes March 2021the following Readers’ newCourse: readers undertaking April 2021 the March 2021 Readers’ Course:

Sophie Molyneux Dr. Nicholas Petrie Ahmed Terzic Sophie Molyneux Dr. Nicholas Petrie Ahmed Terzic

FEATURES NEWS EVERY ISSUE Sophie practises in public and commercial law. Her Nick practises in commercial and public law. Before Ahmed practises in commercial law, corporate law and public law. 4 Contributors Sophieexperience practises encompasses in public andadministrative commercial law, law. coercive Her Nickcoming practises to the Bar,in commercial he worked and at Minter public Ellison law. Before and Herbert Ahmed practises in commercial law, corporate law and PUBLIC INTEREST DISCLOSURES ACT DIVERSITY inquiries and general commercial disputes. Smith Freehills in Melbourne and London, the North 6 From the president experience encompasses administrative law, coercive coming to the Bar, he worked at Minter Ellison and Herbert Beforepublic law. joining the Bar, Ahmed practised at Arnold inquiries and general commercial disputes. SmithAustralian Freehills Aboriginal in Melbourne Justice Agency,and London, as an the associate North 22 Impropriety and serious 11 Aboriginal lawyers making inroads 8 Unsolicited Before coming to the Bar, Sophie was a senior lawyer at the BeforeBloch Leibler joining in the Melbourne Bar, Ahmed and practised Freshfields at Arnold Bruckhaus Australian(judicial assistant) Aboriginal to LordJustice Dyson Agency, MR in as appeals an associate before the professional misconduct There are growing numbers of BeforeIndependent coming Broad-based to the Bar, Sophie Anti-corruption was a senior Commission lawyer at of the BlochDeringer Leibler in London. in Melbourne He was and an associateFreshfields to theBruckhaus (judicialUK Supreme assistant) Court to and Lord Court Dyson of Appeal,MR in appeals and in beforethe public the COURTS & PARLIAMENT IndependentVictoria, a commercial Broad-based litigator Anti-corruption at Gilbert + TobinCommission and was of an DeringerHonourable in London. Joseph HeSantamaria was an associateof the Victorian to the Court Amendments made to the concept of improper Aboriginal lawyers working across UKlaw Supremeteam of the Court UK andGovernment Court of Appeal,Legal Department. and in the public Victoria,associate a tocommercial the Honourable litigator Chief at Gilbert Justice + TobinMarilyn and Warren was an Honourableof Appeal and Joseph a legal Santamaria researcher of at the the Victorian Supreme Court Court conduct in the Public Interest Disclosures Act Victoria but support is still needed to 44 High Court judgments law team of the UK Government Legal Department. associateAC of the Supremeto the Honourable Court of Victoria. Chief Justice Marilyn Warren Nick has a PhD from Cambridge, an LLM (Distinction) from of AppealVictoria. and a legal researcher at the Supreme Court draw on the Act’s purpose to encourage overcome barriers. By Karin Derkley 46 Federal Court judgments SophieAC of the has Supreme a Master Court of Laws of Victoria. from Columbia University Nickthe London has a PhD School from of Cambridge, Economics anand LLM a BA/LLB (Distinction) (Hons) from Ahmedof Victoria. holds a Bachelor of Commerce and a Bachelor 48 Family law judgments from the University of Melbourne. and facilitate disclosure of impropriety. Sophieand a Juris has Doctor,a Master a Bachelorof Laws from of Arts Columbia and a Bachelor University of the London School of Economics and a BA/LLB (Hons) Ahmedof Laws holdswith first a Bachelor class honours of Commerce from Monash and a BachelorUniversity, HEALTH 50 By Malcolm Harding Supreme Court judgments andCommerce a Juris Doctor,from the a UniversityBachelor ofof ArtsMelbourne. and a Bachelor of from the University of Melbourne. ofand Laws a Master with first of Laws class from honours the University from Monash of Chicago University, 16 Renewed focus on 52 Legislation update Commerce from the University of Melbourne. andLaw aSchool. Master of Laws from the University of Chicago INSOLVENCY lawyers’ mental health 53 Practice notes Law School. Shawn Rajanayagam Julia Nikolic Jacqui Fumberger 26 Reaching its peak: New LIV wellbeing manager Megan REVIEWS Shawn Rajanayagam Julia Nikolic Jacqui Fumberger unfair preference claims Fulford will boost the LIV’s efforts 55 Online Three trials in the Federal Court provide clarity to support members in challenging 56 Books on key issues in unfair preference claims. times. By Karin Derkley 58 LIV Library By Jason Geisker and Georgina Overend PC RENEWAL PRACTICE PROPERTY LAW 18 Time to renew your PC 60 Ethics 30 Co-ownership disputes: update All current practising certificates will 61 Victorian law reform Shawn practises primarily in public law as well as Julia practises in commercial and public law. Jacqui practises primarily in commercial law. Before Disputes between co-owners continue to expire on 30 June 2021. 62 LPLC commercial law. coming to the Bar, Jacqui was a senior lawyer in the Shawn practises primarily in public law as well as BeforeJulia practises coming into commercial the Bar, Julia and was public an associate law. to Jacqui practises primarily in commercial law. Before engage the Supreme Court. Most prolific in 63 Property commercial law. comingCivil Regulation to the Bar, team Jacqui at the was Australian a senior Government lawyer in the LIV AWARDS Before coming to the Bar, Shawn was Counsel Assisting Beforethe Honourable coming to Justice the Bar, Elliott Julia of was the anSupreme associate Court to of a non-statutory context concern whether a CivilSolicitor, Regulation an associate team atto thethe AustralianHonourable Government Justice 64 Technophile Beforethe Solicitor-General coming to the forBar, Victoria, Shawn Kristenwas Counsel Walker Assisting QC, an theVictoria, Honourable and a solicitor Justice at Elliott King of & theWood Supreme Mallesons. Court of 19 Champion of the downtrodden Solicitor,Gordon AC an ofassociate the High to Court the Honourable of Australia Justiceand a joint tenancy has been severed to create a 65 Pro bono theassociate Solicitor-General to the Honourable for Victoria, Justice Kristen Keane Walker AC of QC, the an High Victoria, and a solicitor at King & Wood Mallesons. Julia graduated from the University of Melbourne with the Gordonsolicitor ACat Arnold of the BlochHigh Court Leibler. of Australia and a tenant in common. The arcane topic of adverse Twenty-three years on from its associateCourt of Australia to the Honourable and to the HonourableJustice Keane Justice AC of McLeish the High 66 Superannuation JuliaSupreme graduated Court Prizefrom theand University several other of Melbourne prizes. She with holds the solicitor at Arnold Bloch Leibler. inception, the Paul Baker Award Courtof the ofVictorian Australia Court and ofto Appeal,the Honourable and a solicitor Justice at McLeish Minter While at AGS, Jacqui assisted in the Royal Commission possession between co-owners is the subject of 67 According to merit?/Diversity Supremea Bachelor Court of Business Prize and with several first classother honoursprizes. fromShe holdsthe ofEllison. the Victorian Court of Appeal, and a solicitor at Minter Whileinto Misconduct at AGS, Jacqui in the assisted Banking, in Superannuationthe Royal Commission and remains a fitting embodiment of aUniversity Bachelor of of New Business South with Wales. first class honours from the another decision. And disputes over partition 68 Young Lawyers Ellison. intoFinancial Misconduct Services in Industry,the Banking, and Superannuationadvised regulatory and Shawn has published several articles and book chapters in University of New South Wales. and sale on appeal from VCAT continue. the legacy of a man who continues Previously, Julia served as an Intelligence Officer in the Financialclients on Services investigations Industry, and and litigation advised concerning regulatory Shawnpublic law, has andpublished also taught several at thearticles Melbourne and book and chapters Monash in to be sadly missed in all his areas CAREER Previously,Australian Regular Julia served Army, as completing an Intelligence two operational Officer in the clientsfinancial on servicesinvestigations laws, competitionand litigation law concerning and consumer By Philip Barton publicLaw Schools. law, and also taught at the Melbourne and Monash Australiandeployments Regular to Afghanistan. Army, completing She continues two operational to serve as a financialprotection. services At ABL, laws, Jacqui competition represented law clients and consumer in a of endeavour. 71 Admissions Law Schools. Shawn holds a Juris Doctor from Melbourne Law School deploymentsmember of the to Army Afghanistan. Reserve. She continues to serve as a protection.variety of complex At ABL, commercialJacqui represented disputes. clients in a VICTORIA PLANNING PROVISIONS By Eu-Jin Teo and a Master of Laws from Harvard Law School. LIV Shawn holds a Juris Doctor from Melbourne Law School member of the Army Reserve. variety of complex commercial disputes. 34 Adopting a regulatory design protocol and a Master of Laws from Harvard Law School. OPINION The VPP were a pioneer in regulation by 73 Member update Nicholas Baum design and the model offers a path to make 20 Eradicating the culture of silence 74 Council Organisations need to adopt serious Nicholas Baum a wider range of regulation simpler and more CLASSIFIEDS accessible by adopting a Victorian Regulatory measures to prevent sexual 82 Crossword Design Protocol. harassment at work. By Andrew Natoli By Genevieve Collins

COMMERCIAL LAW 40 Untangling a legal knotweed Nicholas practises in all areas of commercial law, public law A recent UK decision and the compelling Nicholasand wills andpractises estates. in all areas of commercial law, public law reasons of the minority call for Australian and wills and estates. Before coming to the Bar, Nicholas practised in public and courts to revisit the rule against reflective loss. Beforeconstitutional coming law to atthe the Bar, Victorian Nicholas Government practised in Solicitor’s public and By Anton Trichardt constitutionalOffice, where law he at advised the Victorian the Victorian Government Government Solicitor’s and LIVING LAW Office,acted in proceedings where he advised in the theHigh Victorian Court of GovernmentAustralia. He and also worked at King & Wood Mallesons in Melbourne and

PHOTOGRAPH: DAVID JOHNS DAVID PHOTOGRAPH: acted in proceedings in the High Court of Australia. He 83 Inside stories alsoLondon worked on a atrange King of & complexWood Mallesons commercial in Melbourne disputes and and 85 Food/Wine/Coffee Londonregulatory on matters. a range of complex commercial disputes and regulatory matters. 86 With all due respect Nicholas is a former associate to the Honourable Justice 87 Health and wellbeing NicholasMcMillan isof athe former Supreme associate Court to of the Victoria. Honourable Justice 88 Beyond the law McMillan of the Supreme Court of Victoria.

List A Barristers | ph: (61 3) 9225 8444 | [email protected] | www.barristers.com.au List A Barristers | ph: (61 3) 9225 8444 | [email protected] | www.barristers.com.au 2 LAW INSTITUTE JOURNAL APRIL 2021 List A’s staff welcome all enquiries from the profession about List members’ expertise, availability and rates List A’s staff welcome all enquiries from the profession about List members’ expertise, availability and rates welcomeswelcomes the the following following new new readers readers undertaking undertaking thewelcomesthe March March 2021the 2021 following Readers’ Readers’ newCourse: Course: readers undertaking thewelcomes March 2021 the Readers’following Course:new readers undertaking the March 2021 Readers’ Course:

SophieSophie Molyneux Molyneux Dr. NicholasDr. Nicholas Petrie Petrie AhmedAhmed Terzic Terzic Sophie Molyneux Dr. Nicholas Petrie Ahmed Terzic Sophie Molyneux Dr. Nicholas Petrie Ahmed Terzic

SophieSophie practises practises in public in publicand commercial and commercial law. Her law. Her Nick practisesNick practises in commercial in commercial and public and publiclaw. Before law. Before AhmedAhmed practises practises in commercial in commercial law, corporate law, corporate law and law and public publiclaw. law. Sophieexperienceexperience practises encompasses in encompasses public andadministrative commercial administrative law, law. coercive Herlaw, coercive Nickcoming practisescoming to the Bar,toin commercialthe he Bar, worked he worked and at Minter public at MinterEllison law. Before Ellisonand Herbert and Herbert Ahmed practises in commercial law, corporate law and inquiriesinquiries and general and general commercial commercial disputes. disputes. Smith FreehillsSmith Freehills in Melbourne in Melbourne and London, and London, the North the North experienceSophie encompasses practises in administrative public and commercial law, coercive law. Her comingNick to practises the Bar, hein commercial worked at Minterand public Ellison law. and Before Herbert BeforepublicAhmed Beforelaw. joining practises joining the in Bar, commercial the Ahmed Bar, Ahmed practised law, corporate practised at Arnold law at andArnold experience encompasses administrative law, coercive AustralianAustralian Aboriginal Aboriginal Justice Justice Agency, Agency, as an associate as an associate public law. BeforeinquiriesBefore coming and generalcoming to the commercialBar,to the Sophie Bar, Sophie wasdisputes. a seniorwas a seniorlawyer lawyerat the at theSmith coming Freehills to thein Melbourne Bar, he worked and atLondon, Minter Ellison the North and Herbert Bloch LeiblerBloch Leibler in Melbourne in Melbourne and Freshfields and Freshfields Bruckhaus Bruckhaus inquiries and general commercial disputes. (judicialSmith(judicial assistant) Freehills assistant) to in Lord Melbourne to Dyson Lord DysonandMR inLondon, appealsMR in theappeals before North before the the Before joining the Bar, Ahmed practised at Arnold IndependentIndependent Broad-based Broad-based Anti-corruption Anti-corruption Commission Commission of of Australian Aboriginal Justice Agency, as an associate DeringerBeforeDeringer joining in London. the in London.Bar, He Ahmed was He an practisedwas associate an associate at Arnoldto the to the Before coming to the Bar, Sophie was a senior lawyer at the UK SupremeAustralianUK Supreme Court Aboriginal andCourt Court Justice and ofCourt Agency,Appeal, of Appeal, asand an in associate andthe publicin the public Bloch Leibler in Melbourne and Freshfields Bruckhaus Victoria,Victoria, aBefore commercial acoming commercial litigator to the litigatorBar, at GilbertSophie at Gilbert +was Tobin a senior+ andTobin waslawyer and an was at the an (judicial assistant) to Lord Dyson MR in appeals before the HonourableBlochHonourable Leibler Joseph in Melbourne Joseph Santamaria Santamariaand Freshfields of the Victorianof the Bruckhaus Victorian Court Court Independent Broad-based Anti-corruption Commission of (judicial assistant) to Lord Dyson MR in appeals before the Deringer in London. He was an associate to the Independent Broad-based Anti-corruption Commission of UKlaw Supremeteamlaw of team the Court UKof the andGovernment UK Court Government of Appeal,Legal Department.Legal and inDepartment. the public Deringer in London. He was an associate to the Victoria,associateassociate a tocommercial the Honourableto the litigatorHonourable Chief at Gilbert Justice Chief + Justice TobinMarilyn and Marilyn Warren was Warrenan UK Supreme Court and Court of Appeal, and in the public Honourableof Appealof Appeal and Joseph a legaland Santamaria a researcher legal researcher of at the the Victorian Supremeat the Supreme Court Court Court Victoria, a commercial litigator at Gilbert + Tobin and was an law team of the UK Government Legal Department. Honourable Joseph Santamaria of the Victorian Court AC of theAC Supremeof the Supreme Court ofCourt Victoria. of Victoria. law team of the UK Government Legal Department. of Victoria.of Victoria. associateassociate to the Honourable to the Honourable Chief Justice Chief Justice Marilyn Marilyn Warren Warren Nick hasNick a PhD has afrom PhD Cambridge, from Cambridge, an LLM an (Distinction) LLM (Distinction) from from ofof Appeal Appeal and and aa legallegal researcher at at the the Supreme Supreme Court Court SophieAC of theSophie has Supreme a Master has a CourtMaster of Laws of of Victoria. from Laws Columbia from Columbia University University the Londonthe London School School of Economics of Economics and a BA/LLBand a BA/LLB (Hons) (Hons) Ahmedof Victoria.Ahmed holds aholds Bachelor a Bachelor of Commerce of Commerce and a Bachelorand a Bachelor AC of the Supreme Court of Victoria. Nick hasNick a has PhD a PhDfrom from Cambridge, Cambridge, an LLMan LLM (Distinction) (Distinction) from from of Victoria. and a Jurisand aDoctor, Juris Doctor, a Bachelor a Bachelor of Arts ofand Arts a Bachelorand a Bachelor of of from thefrom University the University of Melbourne. of Melbourne. of Lawsof with Laws first with class first honoursclass honours from Monashfrom Monash University, University, Sophie has a Master of Laws from Columbia University the Londonthe London School School of Economics of Economics and and a BA/LLB a BA/LLB (Hons) (Hons) Ahmed holds a Bachelor of Commerce and a Bachelor CommerceCommerceSophie from has the from aUniversity Master the University of ofLaws Melbourne. from of Melbourne. Columbia University andAhmed a Masterand holds a Master of a BachelorLaws of from Laws of theCommerce from University the University and of a ChicagoBachelor of Chicago and a Jurisand Doctor, a Juris aDoctor, Bachelor a Bachelor of Arts andof Arts a Bachelorand a Bachelor of of from fromthe University the University of Melbourne. of Melbourne. ofof Laws Laws with with firstfirst class honours fromfrom MonashMonash University,University, Law School.Law School. CommerceCommerce from the from University the University of Melbourne. of Melbourne. andand a a Master Master ofof LawsLaws from thethe UniversityUniversity of of Chicago Chicago LawLaw School. School. ShawnShawn Rajanayagam Rajanayagam Julia NikolicJulia Nikolic JacquiJacqui Fumberger Fumberger ShawnShawn Rajanayagam Rajanayagam JuliaJulia Nikolic Nikolic JacquiJacqui Fumberger Fumberger

ShawnShawn practises practises primarily primarily in public in publiclaw as lawwell as as well as Julia practisesJulia practises in commercial in commercial and public and publiclaw. law. Jacqui Jacquipractises practises primarily primarily in commercial in commercial law. Before law. Before commercialcommercialShawn law. practises law. primarily in public law as well as Julia practises in commercial and public law. comingJacquicoming practisesto the Bar,to primarilythe Jacqui Bar, Jacquiinwas commercial a seniorwas a seniorlawyerlaw. Before lawyerin the in the Shawn practisescommercial primarily law. in public law as well as BeforeJulia practisesBefore coming coming into commercial the Bar,to the Julia Bar, and was Julia public an was associate law. an associate to to Jacquicoming practises to the Bar, primarily Jacqui wasin commercial a senior lawyer law. Beforein the Before coming to the Bar, Julia was an associate to Civil RegulationCivil Regulation team at team the Australianat the Australian Government Government BeforecommercialBefore coming law. coming to the Bar,to the Shawn Bar, Shawn was Counsel was Counsel Assisting Assisting the Honourablethe Honourable Justice Justice Elliott ofElliott the Supremeof the Supreme Court ofCourt of comingCivil Regulation to the Bar, team Jacqui at the was Australian a senior Government lawyer in the Before coming to the Bar, Shawn was Counsel Assisting Beforethe coming Honourable to the Justice Bar, Julia Elliott was of thean associateSupreme Courtto of Solicitor,Solicitor, an associate an associate to the Honourableto the Honourable Justice Justice the Solicitor-Generalthe Solicitor-General for Victoria, for Victoria, Kristen Kristen Walker Walker QC, an QC, an Victoria,Victoria, and a solicitorand a solicitor at King at & KingWood & Mallesons.Wood Mallesons. CivilSolicitor, Regulation an associate team atto thethe AustralianHonourable Government Justice Before comingthe Solicitor-General to the Bar, Shawn for Victoria, was Counsel Kristen AssistingWalker QC, an the HonourableVictoria, and Justice a solicitor Elliott at King of the & WoodSupreme Mallesons. Court of GordonGordon AC of theAC Highof the Court High ofCourt Australia of Australia and a and a associateassociate to the Honourableto the Honourable Justice Justice Keane KeaneAC of theAC Highof the High Solicitor,Gordon anAC associateof the High to Court the Honourable of Australia and Justice a the Solicitor-Generalassociate to thefor Victoria,Honourable Kristen Justice Walker Keane QC, AC an of the High JuliaVictoria, graduatedJulia and graduated a solicitor from the fromat University King the & University Wood of Melbourne Mallesons. of Melbourne with the with the solicitorsolicitor at Arnold at Arnold Bloch Leibler.Bloch Leibler. Julia graduated from the University of Melbourne with the Gordonsolicitor AC at Arnoldof the HighBloch Court Leibler. of Australia and a associateCourt ofCourt AustraliaCourt to theof ofAustralia Honourable Australia and to andthe and HonourabletoJustice to the the Honourable Honourable Keane Justice AC ofJustice McLeish the High McLeishMcLeish JuliaSupreme SupremegraduatedSupreme Court Court PrizefromCourt Prize theand Prize University andseveral and several several other of other Melbourne prizes. other prizes. prizes. She withShe holds Sheholdsthe holds solicitor at Arnold Bloch Leibler. Courtof the ofVictorianof Australiaofthe the Victorian Victorian Court and oftoCourt Court Appeal,the ofHonourable of Appeal, Appeal, and a solicitor andand Justice a solicitor at McLeish Minter atat Minter Minter WhileWhile at Whileat AGS, AGS, at JacquiJacqui AGS, Jacquiassisted assisted inin the the Royal Royalin the Commission CommissionRoyal Commission Supremea Bachelora aBachelor Bachelor Court of Business ofPrize ofBusiness Business and with several with first with first classother first class honoursprizes.class honours honours fromShe from holdsthe fromthe the ofEllison. the VictorianEllison.Ellison. Court of Appeal, and a solicitor at Minter Whileintointo Misconduct Misconduct atinto AGS, Misconduct Jacqui inin thethe assisted Banking,in the Banking, in Superannuation Superannuationthe Royal Superannuation Commission and and and aUniversity BachelorUniversityUniversity of of New Business of ofNew South New South with Wales.South firstWales. Wales. class honours from the Ellison. intoFinancialFinancial MisconductFinancial Services Services Servicesin Industry,the Banking, Industry, andand advisedSuperannuationadvised and advised regulatory regulatory regulatory and ShawnShawn hasShawn published has has published published several several severalarticles articles articlesand book and chapters book chapterschapters in in in University of New South Wales. Previously,Previously,Previously, Julia Julia served Julia served served as an as Intelligenceanas Intelligencean Intelligence Officer Officer Officer in inthe the in the Financialclientsclients clientson on Services investigations investigations on investigations Industry, and and litigationlitigation and advised litigation concerning concerning regulatory concerning Shawnpublic publiclaw, haspublic andpublished law, law,also and and taught severalalso also taughtat taught thearticles Melbourneat at the the and MelbourneMelbourne book and chapters Monash andand MonashMonash in Previously,AustralianAustralianAustralian Regular Julia Regular served Regular Army, Army, as completingArmy, an completing Intelligence completing two two operational Officer twooperational operational in the clientsfinancialfinancial financialon servicesinvestigationsservices services laws, competition andlaws, litigation competition law law concerning andand law consumer consumer and consumer publicLaw Schools. Lawlaw,Law andSchools. Schools. also taught at the Melbourne and Monash Australiandeploymentsdeploymentsdeployments Regular to Afghanistan. to Army, toAfghanistan. Afghanistan. completing She She continues She twocontinues continues operational to toserve serve to asserve as a a as a financialprotection.protection.protection. services At At ABL,ABL, Atlaws, Jacqui ABL, competition Jacquirepresented represented law clients clients and inconsumer clientsin a a in a Law Schools. ShawnShawn holdsShawn aholds Juris holds aDoctor aJuris Juris Doctor fromDoctor Melbourne from from MelbourneMelbourne Law School LawLaw SchoolSchool deploymentsmembermembermember of the ofto Army oftheAfghanistan. the Army Reserve. Army Reserve. Reserve. She continues to serve as a protection.varietyvarietyvariety of of complex complex At ofABL, complex commercialJacqui commercial represented disputes.disputes. disputes. clients in a and a Master of Laws from Harvard Law School. Shawnand a Masterand holds a Master aof Juris Laws ofDoctor from Laws Harvard fromfrom MelbourneHarvard Law School. Law Law School. School member of the Army Reserve. variety of complex commercial disputes. and a Master of Laws from Harvard Law School. NicholasNicholasNicholas Baum Baum Nicholas Baum

Nicholas practises in all areas of commercial law, public law NicholasNicholas andpractises wills practises and in allestates. areas in all ofareas commercial of commercial law, public law, publiclaw law Nicholasand willsand andpractises wills estates. and in estates. all areas of commercial law, public law Before coming to the Bar, Nicholas practised in public and and wills and estates. BeforeBefore comingconstitutional coming to the Bar,tolaw the atNicholas theBar, Victorian Nicholas practised Government practised in public in Solicitor’s publicand and Office, where he advised the Victorian Government and Beforeconstitutionalconstitutional coming law to atthe thelaw Bar, Victorianat Nicholas the Victorian Government practised Government in Solicitor’s public Solicitor’s and Office,Office, actedwhere in hewhereproceedings advised he advisedthe in Victorianthe the High Victorian Court Government of GovernmentAustralia. and He and constitutionalalso workedlaw at the at King Victorian & Wood Government Mallesons inSolicitor’s Melbourne and Office,acted inacted proceedings where in proceedings he advised in the the Highin the Victorian Court High ofCourt GovernmentAustralia. of Australia. He and He also workedalsoLondon worked at King on ata & range KingWood &of MallesonsWood complex Mallesons commercial in Melbourne in Melbourne disputes and and and acted in proceedingsregulatory matters. in the High Court of Australia. He alsoLondon workedLondon on a atrange onKing a of range& complexWood of complexMallesons commercial commercial in Melbourne disputes disputes and and and Londonregulatoryregulatory onNicholas matters. a range matters.is aof former complex associate commercial to the disputesHonourable and Justice regulatoryMcMillan matters. of the Supreme Court of Victoria. NicholasNicholas is a former is a formerassociate associate to the Honourableto the Honourable Justice Justice NicholasMcMillanMcMillan isof athe former Supremeof the associate Supreme Court to ofCourt the Victoria. Honourable of Victoria. Justice McMillan of the Supreme Court of Victoria. List A Barristers | ph: (61 3) 9225 8444 | [email protected] | www.barristers.com.au List AList BarristersList A A’sBarristers staff | ph: welcome |(61 ph: 3) (619225 all 3) enquiries9225 8444 8444 | [email protected] | [email protected] profession about List | www.barristers.com.au members’ | www.barristers.com.au expertise, availability and rates List AA’sList Barristers staff A’s staff welcome | ph:welcome (61 all 3) enquiries9225 all enquiries 8444 from | [email protected] fromthe professionthe profession about about List | members’Listwww.barristers.com.au members’ expertise, expertise, availability availability and ratesand rates List A’s staff welcome all enquiries from the profession about List members’ expertise, availability and rates Contributors LAW INSTITUTE JOURNAL

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Visit www.liv.asn.au/PrintLIJ From the president LEGAL DISPUTE RESOLUTION SERVICES DL DELIVERING PRACTICAL SOLUTIONS D E V E R’S L I S T WE WELCOME THESE BARRISTERS PATRICK REBECCA COLERIDGE MCCARTHY • Appellate • General Commercial • Public Law & • Bankruptcy & Insolvency Call to action Administrative Law • Corporations/ • Criminal Law Company Law Cultural change in our profession would produce • Constitutional Law • Directors’ Duties better outcomes for clients and community. • Competition & • Equity and Trusts Consumer Law • Property The COVID-19 pandemic has compelled us to pause, take stock, – we can explore and develop ways to reduce anti-therapeutic • Inquests, Inquiries, • Immigration/ Migration challenge old assumptions and practices and innovate. We might consequences and enhance therapeutic consequences. Tribunals & Commissions • Building and Construction now tackle a range of issues within the legal profession with the TJ is the philosophical framework underpinning our specialist • Common Law same approach and confidence. courts – ie, the Drug Court and the Assessment and Referral In recent years, open and honest conversations about mental Court – which came about in response to the harm caused to • Class actions health and wellbeing have helped effect change and reduce vulnerable individuals in the justice system, coupled with the stigma. There is greater appreciation of the pressures imposed system’s inability to achieve intended outcomes. TJ is behind HARRY AMEL by the billable-hour model of legal practice and by the challenges restorative justice, which tries to provide a response to crime (for of a stressful, competitive and adversarial work environment. offender and victim) that moves beyond punishment to healing. HILL-SMITH MASINOVIC Nonetheless, there is more to do. A TJ approach can be transformative, facilitating a more • General Commercial • Public Law & Numerous recent studies and surveys report that anxiety, compassionate process and outcome. • Bankruptcy & Insolvency Administrative Law depression, addiction and psychological distress is relatively Another area of change is education for trauma informed • Corporations • Commercial Law high in the legal profession. Lawyers are three to four times practice, which acknowledges trauma in the community, • Contract • Regulatory Tribunals more likely to be depressed than other professionals. Lawyers recognises its effects on individuals and commits to responding consistently rate high for mental health problems, suicide and sensitively and without causing further harm. Training often • Banking & Finance • Environment & drug and alcohol abuse. starts with honest self-reflection and the way influences in • Common Law Planning Law Attrition and retention levels are similarly concerning. Lawyers our own lives – absences, loss, traumatic events – impact on us, • Public Law & • Mining Law report high rates of fatigue and burnout after five to 10 years our development and perspectives and how that in turn affects Administrative Law • Alternative Dispute in practice. We score poorly, too, among women returning to how we show up in our lives, our narratives and triggers in • Alternative Dispute Resolution (ADR) practice after childbirth and in the low number of women certain situations. Imagine if all participants in our legal system reaching senior positions. undertook training in trauma informed practice. So enhanced, Resolution (ADR) • Competition Law Young lawyers aren’t doing much better. Asked if their lives as imagine how differently we might approach clients and each lawyers matched their expectations as students, more than a third other. Such an approach would likely reduce perpetuating harm of respondents to a professional publication poll replied no and and transform law, justice issues and procedures, but also add PAUL ROSE expressed a desire to change professions. Only 11 per cent of the immeasurably to the value and satisfaction we derive from work. JEFFREYS SINGLETON 444 surveyed said their law career had fulfilled their expectations. As might equipping law students and graduates with the tools In a 2019 legal firm of choice survey, 38.9 per cent of lawyers they need to live better, happier and healthier lives. • Commercial Law • Common Law with less than a year in the profession expressed career I’m impressed by The Happiness Lab podcast by Yale University • Appellate • Inquests, Inquiries, dissatisfaction and flagged an intention to leave their employer. psychologist Dr Laurie Santos. It asks, “are you ready to feel • Taxation Tribunals & Commissions It’s time that we stopped metaphorically eating our young – better?” If that’s a yes, I encourage you to join the hundreds of • Corporations • Public Law & and not so young. I have a few ideas about where we might start. thousands of us who listen in for insights and tips on wellbeing. • Bankruptcy & Administrative Law We need to hasten the push for structural, systemic and The LIV has a continuing role to play. As well as the cultural change that will bring about transformation of our employee assistance program, it provides networks to facilitate Insolvency • Criminal Law profession and produce better outcomes for clients and professional and social connections through LIV sections. • Equity, Trusts & Probate • Appellate community. Drawing from disciplines other than the law, we Associations are important too, as are peer and professional • Public Law & • Alternative Dispute need positive examples, guidance and inspiration, to propel support and mentoring programs. It’s exciting and timely that Administrative Law Resolution (ADR) improvements in work practices, structures and lives. the LIV’s new wellbeing manager, psychologist Megan Fulford, • Inquests, Inquiries, Therapeutic jurisprudence (TJ) attempts to do just that. is developing and driving our wellbeing strategy (See News p16). TJ studies law as a social force or agent that gives rise to We need to ensure the sustainability of our profession and Tribunals & Commissions either beneficial (therapeutic) or harmful (anti-therapeutic) provide the right foundations to support each other and our future consequences, which flow from rules or procedures, or contributions in the service of our clients and the community. Dever’s List the behaviour of legal actors (such as lawyers and judges). I look forward to working with you. ■ Barristers’ Clerk In understanding this effect – particularly on the wellbeing Telephone: (03) 9225 7999 of people impacted by and working within the system Tania Wolff liv president [email protected] @LIVPresident 24 hour contact: 0416 087 999 | Email: [email protected] deverslist.com.au

6 LAW INSTITUTE JOURNAL APRIL 2021 LEGAL DISPUTE RESOLUTION SERVICES DL DELIVERING PRACTICAL SOLUTIONS D E V E R’S L I S T WE WELCOME THESE BARRISTERS PATRICK REBECCA COLERIDGE MCCARTHY • Appellate • General Commercial • Public Law & • Bankruptcy & Insolvency Administrative Law • Corporations/ • Criminal Law Company Law • Constitutional Law • Directors’ Duties • Competition & • Equity and Trusts Consumer Law • Property • Inquests, Inquiries, • Immigration/ Migration Tribunals & Commissions • Building and Construction • Common Law • Class actions HARRY AMEL HILL-SMITH MASINOVIC • General Commercial • Public Law & • Bankruptcy & Insolvency Administrative Law • Corporations • Commercial Law • Contract • Regulatory Tribunals • Banking & Finance • Environment & • Common Law Planning Law • Public Law & • Mining Law Administrative Law • Alternative Dispute • Alternative Dispute Resolution (ADR) Resolution (ADR) • Competition Law

PAUL ROSE JEFFREYS SINGLETON • Commercial Law • Common Law • Appellate • Inquests, Inquiries, • Taxation Tribunals & Commissions • Corporations • Public Law & • Bankruptcy & Administrative Law Insolvency • Criminal Law • Equity, Trusts & Probate • Appellate • Public Law & • Alternative Dispute Administrative Law Resolution (ADR) • Inquests, Inquiries, Tribunals & Commissions Dever’s List Barristers’ Clerk Telephone: (03) 9225 7999 24 hour contact: 0416 087 999 | Email: [email protected] deverslist.com.au Letters

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LinkedIn On “Cautious return to office” by Karin Derkley, March LIJ. Comments in response to “The lure of regional LETTERS As always, it was a total pleasure to talk to TO THE EDITOR practice” by Rebecca Alexander, Jan/Feb LIJ. Karin Derkley about supporting a safe return to Great article! We have a regional law firm and the office for our people, while embedding systems Email: [email protected] some of those points resonate. Every experience and processes that enable agility and adaptability Mail: Law Institute Journal will have its advantages and challenges but I agree in the face of change. ■ managing editor that law needs to be much more accessible to all Carolyn Ford, GPO Box 263, Victorians regardless of physical location! Tessa van Duyn, CEO and practice leader at Moores Melbourne 3001; or DX 350 Melbourne. Sharyn Baré, business manager at Baré Legal We reserve the right to Law is a demanding profession wherever you edit letters and to practise it. Rebecca is right you should not go into it republish them in their original or edited form on with rose tinted glasses thinking that a move to the the internet or in other country will lead to that elusive work/life balance. media. Letters must I have tried all three – city, suburban and country include a phone number – and they all have their challenges and rewards. and address for authentication. Country practice is about getting involved in the community but I can relate to that dread of seeing the client in the street that you had a difficult time with or haven’t got to their work. Andrew Wilson, principal at Wilson & Co Commercial & Personal Lawyers

Good article. I am a legal assistant, not a lawyer. Sadly I left (very) regional Victoria in the 70s when employment was non-existent and arrived in Melbourne (via Bendigo for a year) in 1978. I have remained here since (with a short bout in Canberra, which is a fabulous place). I know many lawyers who went off to the country and yes, they are now enjoying retirement. Your article does confirm what I had been wondering – that firms built up in the country might phase out for lack of young lawyers coming in. Maggi Aitken, legal assistant at Accord Family Law

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Deakin Law student Rita Tomlins, VLA graduate lawyer Hayden Walker, ABL lawyer Karri Walker, Victorian government graduate lawyer Kassie McAlear ABORIGINAL LAWYERS MAKING INROADS

THERE ARE GROWING NUMBERS OF ABORIGINAL LAWYERS WORKING ACROSS VICTORIA, BUT SUPPORT IS STILL NEEDED TO OVERCOME BARRIERS. BY KARIN DERKLEY

Aboriginal lawyers are making going through the state’s law schools. Braybrook and barrister Tim Goodwin. inroads into the legal profession in Tarwirri, the association for Trailblazing law practice owners Victoria, driven by personal effort and Indigenous law students and lawyers include Bevan Mailman (a former determination, community support in Victoria, says it has around 150 Tarwirri president) who established and targeted programs designed to members. The organisation provides Mailman & Associates in 2012 and overcome historical and ongoing support to its members through now heads up Jaramer Legal with barriers to their participation in the law. mentoring, access to professional co-director Brian Bero in a joint venture Nearly 15 years ago the LIJ ran a story development and work opportunities. with Norton Rose Fulbright, providing about Aboriginal lawyers that reported “We currently have an amazing corporate and commercial legal services there were only a handful of lawyers of cohort of Indigenous legal professionals with a focus on Aboriginal enterprises. Aboriginal ancestry working in Victoria, including those pursing further Organisations like VALS (Victorian just one Aboriginal barrister and no education at institutions such as Aboriginal Legal Service), VLA and other Indigenous magistrates or judges. Harvard and Cambridge, some working community legal services such as Djirra While Aboriginal lawyers still make within community at VALS and Djirra (formerly the Aboriginal Family Violence up less than 1 per cent of the profession and those who have recently established Prevention & Legal Service) are now also in Victoria, there are now dozens their own commercial legal practice,” large employers of Aboriginal lawyers. working across the profession, in says Tarwirri co-chair Mason Peter. Each of these organisations and commercial law firms, in government, Important role models for Aboriginal agencies, as well as the Victorian Bar, as barristers and as magistrates, as lawyers in Victoria include Magistrate have Indigenous employment programs well as in community legal services Abigail Burchill, Magistrate Rose Falla, that are helping to boost the number and Victoria Legal Aid (VLA). A growing Victorian Aboriginal Legal Services CEO of Aboriginal lawyers coming into number of Aboriginal students are also Nerita Waight, Djirra CEO Antoinette those areas of law. PHOTOGRAPH: DAVID JOHNS

APRIL 2021 LAW INSTITUTE JOURNAL 11 news Diversity

VLA started taking on Indigenous ▼ Indigenous students to each other and to articled clerks in 2001, in its Indigenous alumni already making progress in their seasonal and articled clerkships BARRIERS legal careers. “The whole point is to create program. Today it runs the Aboriginal Among barriers faced by Indigenous a community of Indigenous professionals and Torres Strait Islander clerkship lawyers are: who are able to lean on one another and program for law students, and the • cultural isolation while studying have a network as they're coming up Aboriginal and Torres Strait Islander and working through their degrees,” Ms Bulger says. graduate program for law graduates who • employers and organisations Successful Indigenous internship or are eligible to enrol in practical legal questioning identity and clerkship programs are those where the training (PLT). Graduates are employed cultural background firms have done the “deep thinking about full-time. It also has nine Aboriginal • being pigeonholed and pressured to why they are building an internship and Torres Strait Islander practising only work on “Indigenous” matters program or a career pathway for lawyers on staff, many of whom • culturally unsafe work practices indigenous students,” she says. “They secured their role after participating leading to people hiding understand why they want to have it and in pathways programs. their identity what skills they need to have the impact But top tier commercial law firms • lack of consistency in education they want. They’ve worked out that are one area where Aboriginal lawyers and employment pathways. diversity is good for their business, rather are still relatively few. According to than doing it because others are doing it.” Source: Tarwirri Arnold Bloch Leibler (ABL) lawyer and Herbert Smith Freehills (HSF) has Tarwirri co-chair Karri Walker that’s tapped into the CareerTrackers internship partly because there is an expectation opportunities into graduate and further program to support Indigenous law that Indigenous lawyers will work for employment. Firms need to also provide students to provide a pipeline of community in Indigenous-facing roles. a culturally safe employment space candidates for its clerkship program, It’s also because commercial law is to allow people to excel and thrive. It’s a number of whom have gone on to seen as unattainable by many Aboriginal no good to just have someone come in work as solicitors at the firm. students because of the lack of diversity for a three-week placement and then HSF’s head of pro bono Brooke in firms, she says. “When you walk into leave either because there is no further Massender says the firm started talking to some of these environments you are very opportunity or they feel unwelcome.” CareerTrackers about 10 years ago about aware you’re the only person of colour. Ms Walker says firms need to recognise the barriers to Aboriginal students getting And a lot of non-Indigenous people these targeted programs are just the first into law firms. “One of those [barriers] was don’t understand how this creates an step to attracting Indigenous lawyers the perception of lack of talent, which unnerving feeling.” into the profession, she says. “Step two was obviously nonsense. The other was ABL does not have a formal Indigenous is thinking about who are we putting this the perception that students recruited internship or clerkship program. Partner person to work with, do they have the through specific Indigenous programs had Peter Seidel says the firm has been able understanding they should have, and how been recruited at a different standard and to attract Aboriginal lawyers like Ms are we making this a place where they hadn’t been set up for success in the firm. Walker to the firm because it has had can not just survive but thrive?” "So we were very clear that the a long relationship with the Aboriginal Too many lawyers are ignorant of internships (we supported) would work community through its public interest Aboriginal history and culture, she says. through university, so students would be work promoting Indigenous rights. “It’s “People need to be better educated around ready to compete on merit for clerkships. understood by Aboriginal law students both Indigenous law and how they can It’s not a separate program but a talent and prospective lawyers that ABL is a safe work with Indigenous people to achieve pipeline that enables people to access place where people are respected and are equality and self-determination.” the firm with the right set of skills given opportunities to thrive and progress One of the first barriers to Aboriginal and grades.” in the firm.” people entering the profession, she says, Among them are solicitor Kylie Arlidge, Other law firms are aiming to boost is the lack of support during law school. a Butchulla, Gooreng Gooreng and the number of Aboriginal lawyers by Many are the first in their family to attend Wakka Wakka woman from Queensland, providing Indigenous internship, clerkship university and don’t have the experience and digital law group paralegal Cooper or graduate programs. Among them are of other lawyers in their community Corbett, a Yorta Yorta man who grew firms such as Allens, Russell Kennedy, to draw on. up on the Mornington Peninsula. Clayton Utz, Gilbert + Tobin and Norton Director of engagement at Indigenous Ms Arlidge says she was initially Rose Fulbright. internship program CareerTrackers apprehensive when she received an Tarwirri’s Mason Peter says the Jessica Bulger says a challenge for many internship at HSF. “I always imagined I’d increase in clerkship and internship Indigenous students is being able to see be doing family law or criminal law. But opportunities in recent years is a positive themselves in a legal career. “If you don’t then I realised that the work we do here development, but much more needs to have that industry experience as an has such an impact on people’s lives and be done. “Pathways need to be embedded undergrad it’s hard to stay motivated.” on this country, and that you could focus to support not just entry level roles but The CareerTrackers program connects on structural change in a way you can’t

12 LAW INSTITUTE JOURNAL APRIL 2021 news Diversity

with other roles.” Ms Arlidge now works in when it comes to questions and issues renewal form, including whether they commercial litigation at HSF. that affect Aboriginal and Torres Strait are of Aboriginal or Torres Strait Islander The numbers of Aboriginal clerks Islander people. origin. This initiative was driven by 2020 and lawyers HSF has recruited across In 2020, solicitors and barristers were LIV president Sam Pandya to improve the country in this way is now so high asked by the Victorian Legal Services diversity in the profession. ■ the firm has a First Nations Collective Board + Commissioner for the first time which provides networking and support to nominate their ethnic and cultural for the lawyers, and which is consulted background on their practising certificate

Matthew pass a law/commerce degree with high marks. It was when he tried to get a law firm job in Adelaide that he hit a wall. “At Karakoulakis uni I had already sensed that other students went to the same – founder and schools and their parents all knew each other, and I could see principal lawyer that was how you got opportunities in the legal profession as well.” at AMK Law Mr Karakoulakis eventually found a job with ASIC through its graduate program, rotating through its litigation, corporate Raised on Kaurna land on the and policy areas and relocating with the agency to Melbourne. Adelaide plains, with family After working at Clayton Utz and two other firms, he set heritage through his mother up his own firm AMK Law with the aim of working with to the Narungga people of Yorke Aboriginal businesses. Peninsula, and a Greek migrant father, “Supporting Aboriginal businesses is my way of helping Matthew Karakoulakis says he knew he close the gap. A successful Aboriginal business flows through wanted to be a lawyer from age 10. “I had a feeling that being into community.” Recently he was excited to see that the 2020 a lawyer I could make a difference in people’s lives – and Dreamtime Awards for Aboriginal businesses included many that’s what inspired me to set up my own firm as well.” businesses his firm had helped along the way. “It’s been great Despite knowing no one who was a lawyer and being the to have been part of that community.” only one from his friendship group to go on to university, he Things have improved significantly for Aboriginal lawyers managed to hold on to that vision. “My mum was especially since he graduated in 2004, he says. “Law firms are much more encouraging about me wanting to be a lawyer,” he says. “She diverse in their thinking and there's a lot more opportunity for was an inspiration and a mentor to me.” young Aboriginal lawyers. I would love to see more Aboriginal At Flinders University a program that provided Indigenous lawyers practise in commercial law.” students with a tutor gave him the confidence and skills to

Moricia Vrymoet spanning VLA, YouthLaw, private practice and then six years at Victoria Police where she worked on royal commissions, – VALS Director civil and coronial inquiries and major organised crime in of Legal Services the Office of the Chief Examiner, as well as a prosecutor in the Specialist Children’s Court Prosecution Unit. During that time she also completed her Masters in Law majoring in VALS Director of Legal criminal prosecutions. Services Moricia Vrymoet At VALS her portfolio oversees four practices across the says she never expected to state: criminal law, civil law and human rights, Aboriginal go into the law as a child. families, as well as the newly created specialist legal and “I always had an interest in litigation practice Wirraway, which Ms Vrymoet established law, but I thought it was for to ensure greater accountability in police misconduct and smart people.” But as a Gunditjmara corrections services and address deaths in custody. woman from southwest Victoria, For Ms Vrymoet, going into the law has been both she was encouraged by the NIKERI Institute program at an intellectual challenge and the chance to contribute to the Deakin University to enrol into the law school there. She needs of the Aboriginal community. “It’s been an incredible was so intimidated in her first exam she nearly gave up. But journey. I want to make my mark in the service of the a lecturer encouraged her to re-sit the exam. “He stood by me community to achieve better justice outcomes for our people.” all the way – and that’s what got me through the degree.” Ms Vrymoet has gone on to have a rich career in the law,

APRIL 2021 LAW INSTITUTE JOURNAL 13 news Diversity

Hayden Walker Terri Pollard Rita Tomlins – VLA graduate lawyer – lawyer at Djirra – Deakin Law School Ballarat-based law graduate Hayden Djirra lawyer Terri Pollard, a Wiradjurri Arrernte/Warlpiri woman Rita Tomlins Walker’s Wiradjuri father had to hide and Mununjali woman, says it has says that as a teenager growing up in a cupboard as a child to avoid being not been unusual for a court registry in Alice Springs (Mparntwe) she was taken away from his grandmother. to mistake her for the client. “People sometimes on the wrong side of the law. Today Mr Walker is with VLA in its assume you can’t be a lawyer because “I remember being so disconnected. But Aboriginal and Torres Strait Islander you’re Aboriginal.” I could see that it was a very complex Graduate Law Program. Ms Pollard was motivated to go into system and I thought I'd love to study The VLA program gives Indigenous the law as a mature age student to the law and understand it better.” law graduates the opportunity to help family and community members. The deciding point was realising that learn practical on-the-job skills and “I was acutely aware of the treatment bush lore in community back home on also supports through their practical of Aboriginal people in the justice country isn't recognised in Australian legal training at Leo Cussens, he says. space and I knew that I was more than law “even though it's still so strong in “My goal is to help forge links with the capable of becoming a lawyer. I wanted culture,” she says. “So I wanted to study Indigenous community so Indigenous to follow the path of other amazing that and learn why it wasn't recognised people can feel safe reaching out to Aboriginal women and men that went and how different they are. I have the services and feel their case will be into law.” vision that one day both laws will be treated fairly.” She is happy to be working for Djirra, recognised in Australia.” Mr Walker says he wants to be a the Aboriginal community-controlled Moving to Ballarat last year with her role model to Indigenous law students organisation headed up by Kuku child and partner, she enrolled in law and hopes to see an increase in Yalanji woman Antoinette Braybrook. at Deakin University where the NIKERI the one per cent representation of “I am surrounded by many incredible Institute has been a lifeline supporting Indigenous lawyers in the profession. Aboriginal women throughout the her with her studies away from her own “I want them to know they can become organisation who have supported me country and most of her family, during lawyers, because we need Indigenous in becoming a practising lawyer.” a time of lockdown. “I got through my representation. There is a perception as an Aboriginal first year and passed everything and, “There is still a perception that lawyer “that we had to either jump if I’m being really honest, being locked Indigenous people are not clever,” says through all these hurdles and hoops down was perfect study conditions.” Mr Walker, who himself graduated with in our life to get where we are, or She says at this stage she is honours from Deakin University. “No alternatively we are given a free ride. particularly interested in environmental matter how successful we become there “While many of us have had life law “because if we are talking about still are those who think that everything experiences that have led to where closing the gap initiatives, it’s in law is given to us and that we have special we are, I want to be seen as a lawyer reform around protecting country and treatment which not only is blatant in my own right. I want to see a day Aboriginal culture and putting people racism, but also not true. where it’s a normal occurrence to see before profits. But I know that as I go “We want to be treated as part of the a lawyer in court that also happens along in my degree other things are team, but at the same time for people to be Aboriginal.” going to jump out at me, so I’m open to understand the cultural issues and to other directions as well.” historical trauma that Aboriginal people are facing through past and current racial ignorance.”

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Contact us [email protected] 03 9607 9470 news Mental health

LIV wellbeing manager Megan Fulford RENEWED FOCUS ON LAWYERS’ MENTAL HEALTH NEW WELLBEING MANAGER MEGAN FULFORD WILL BOOST THE LIV’S EFFORTS TO SUPPORT MEMBERS IN CHALLENGING TIMES. BY KARIN DERKLEY

Even before COVID-19 upended everything in 2020, In response to this, and joining law firms taking this mental health and wellbeing was an issue in the step, the LIV has engaged a wellbeing manager. Megan legal profession. Fulford is a clinically trained psychologist and has The VLSB+C’s 2019 Lawyer Wellbeing Project reported worked in private and public organisations including that lawyers are more likely than other professionals the AFL. She has extensive experience in emergency to suffer “moderate to severe symptoms of depression”, services including Victoria Police, the Metropolitan and some studies have found rates of self-reported Fire Brigade and Ambulance Victoria. depression to be as high as around one in two among Ms Fulford says she is looking forward to building law students, solicitors and barristers. on the wellbeing work already being done at the LIV, In 2020, first the disastrous bushfires and then which has long had a focus on addressing mental COVID-19 amplified anxiety, with many practitioners health in the profession. In 2014 the LIV published experiencing financial and business stress on top a mental health and wellbeing reports, the first of existing professional challenges related to long comprehensive exploration of the issue in the Victorian hours, competitive workplaces, behavioural issues and legal profession. Since then the LIV has set up various vicarious trauma. programs aimed at helping members. PHOTOGRAPH: DAVID JOHNS DAVID PHOTOGRAPH: LIV president Tania Wolff says adding a pandemic That same year the LIV set up the Wellbeing and to the disproportionately high rates of anxiety and the Law foundation (WATL) in conjunction with the depression experienced by lawyers has created “a very Victorian Bar. In 2016 the LIV partnered with Converge potent and damaging cocktail. You’d be hard placed to International to provide members with an employee find anyone in the profession who hasn’t suffered and assistance program (EAP) available 24/7 for up to three been extremely challenged over the past year”. hours per issue per year.

16 LAW INSTITUTE JOURNAL APRIL 2021 news Mental health

While the VLSB+C report found that rates of "It is important to understand the specific psychological distress were high in the profession, drivers of high rates of mental health issues." a more positive finding was that wellbeing and mental health are no longer unmentionable issues. While in the past admission of a mental health problem In 2019, the LIV in conjunction with the Victorian Bar may have been regarded as a personal weakness, that and supported by WATL held nine wellbeing seminars has gradually shifted to a focus on factors within the delivered by external experts, which included vicarious profession that drive those stresses, the report found. trauma training, a six-part emotional wellbeing The VSLB+C says it wants to highlight those systemic workshop and a mental health first aid training session. drivers of poor wellbeing and identify what changes In 2020 the LIV held four wellbeing webinars tailored might be needed to improve wellbeing outcomes. to the issues that the legal profession was experiencing MindsCount, formerly the Tristan Jepson Memorial during COVID-19, delivered by external experts. Foundation, has also shifted focus from the individual Ms Fulford’s work will build on these initiatives. to point to factors in the legal workplace that can cause She says her initial focus will be on understanding psychological distress and illness among employees. the needs of LIV members through meeting with and These include the way work is carried out (deadlines, canvassing the views of the LIV staff and members, workload, work methods) as well as the context in and reviewing relevant research on the issues which work occurs (relationships and interactions with impacting legal practitioners. managers, supervisors, colleagues and clients). “It is important to understand the specific drivers MindsCount has issued guidelines that aim to of high rates of mental health issues within the legal promote cultural change in legal workplaces to improve profession and develop strategies that are aimed at wellbeing. Signatories to the guidelines commit to addressing the underlying factors that may contribute working towards creating a psychologically safe to this,” she says. workplace for staff, on the basis that well employees On the basis of that Ms Fulford will be developing are more productive and have significantly lower a strategic wellbeing plan that is “member-driven absenteeism and disability rates. and evidence-based and which provides a framework The imperative for a psychologically healthy for best practice in wellbeing initiatives for the LIV. workplace is borne out by the increasing number “I also have a strong focus on preventative of law firms that promote wellbeing and mental health interventions and the principles of positive psychology, programs to future recruits. and will be seeking to look at ways to make these Allens, Ashurst, Clayton Utz and Herbert principles and practices a focus in our wellbeing Smith Freehills have hired wellbeing managers or interventions." psychologists, while King & Wood Mallesons has LIV CEO Adam Awty says that even before developed resilience@law to raise awareness around the bushfires and the pandemic hit, the LIV was mental health, address stigma around mental health considering ways to provide members with additional conditions and provide education, self-care strategies, wellbeing support. support and resources. “There’s always been a recognition that the mental Part of the rationale for addressing these issues could health and wellbeing of our members is a priority. be that employers are exposing themselves to liability It’s really important for the LIV to have an ongoing if they neglect employee mental health. Employment conversation with members about the importance lawyer Paul Horvath says that while a certain amount of maintaining and supporting the mental health of stress is acceptable in the workplace, there is a fine and wellbeing of those in the profession. The additional line between being driven and inspired by stressors, investment we’re making on behalf of the membership and finding oneself dragged down by a high pressure and broader profession will be critical to expanding our environment including, he says “long hours, the support and reach.” pressure to meet billables and generate business for The LIV has an important role to play in assisting the firm, tight (and often unexpected) deadlines, an members both at a practical level and emotionally, unbalanced workload, the pressure to deliver the best Tania Wolff says. “I am proud the LIV has responded outcome to our clients no matter the circumstances by creating this new role and look forward to Megan and rapidly changing technologies (made evident Fulford working with us to develop a comprehensive by the pandemic)”. wellbeing strategy to best support our members Employers and managers must be the drivers of during these especially difficult, uncertain and cultural change within their workplace, Mr Horvath changeable times.” says. “Those that ignore this issue face significant The new hire comes as attitudes towards risks of breaching legislation, duty of care and mental health issues in the legal profession are company policies, and a demotivated workforce ■ steadily changing. in the long term.”

APRIL 2021 LAW INSTITUTE JOURNAL 17 news PC renewal TIME TO RENEW YOUR PC ALL CURRENT PRACTISING CERTIFICATES WILL EXPIRE ON 30 JUNE 2021. IF YOU INTEND TO PRACTISE BEYOND THIS DATE, YOU MUST APPLY TO RENEW YOUR CERTIFICATE.

How to apply through private study of relevant t Apply online at www.lsbc.vic.gov.au. You will need your audio/visual material. You can tick practitioner number, which was included in the renewal email YES to this question even if you sent to you on 29 March. Your practitioner number can also be have done more than five hours of PRACTISING found on last year’s certificate. private study and you won’t need to CERTIFICATE complete a rectification plan. Renew early to avoid a surcharge RENEWAL FOR Surcharges apply to applications received after 30 June. Renew Fidelity fund deferral and discount 2021-2022 early to ensure you’re not charged the 200 per cent surcharge. from 2020 Last year lawyers were able to Complete your application RENEW BY defer fidelity fund contributions Before your application can be processed you will need to: 30 JUNE or could be eligible for a 5 per cent 1. Pay your application fee to VLSB+C discount this year if they made 2. Pay your professional indemnity insurance (if required) payment. These changes have been 3. Pay any relevant contribution to the fidelity fund. automatically applied via LSB Online. You can read more at the Remember, you must complete and submit the form in LSB “Renewing my practising certificate” page on the VLSB+C website. Online yourself. You should not ask someone else to do this for you. Disclosures Pending applications Each year you are asked to disclose any matters that will allow It can take anywhere from a few days to a few months to issue the VLSB+C to be satisfied that you are a fit and proper person to a new certificate. Reasons your certificate might be pending hold a practising certificate. You should disclose any matter that include your professional indemnity insurance payment is relates to serious dishonesty, such as criminal charges, pending outstanding, you have not complied with CPD requirements, the criminal proceedings, misconduct, contempt of court etc. You trust account audit process is not complete, or the VLSB+C is are not required to disclose things like parking fines or speeding assessing disclosures made in the application process. tickets, unless the circumstances or frequency of the offending If there were no changes to your PC type, and you have paid indicate a disregard for the law (for example, multiple fines over your fees and insurance by 30 June 2021 you can continue to the course of a few months). Further information can be found in practise on your current certificate until a new one is issued. the VLSB+C “Fit and proper person” policy on the VLSB+C website. Continuing Professional Development (CPD) requirements Information on the public register of lawyers For the 2020/21 practising year the cap on private study of five In the “You/Your practice” section of the application form, hours has been removed due to COVID-19. Ten units of CPD is VLSB+C is collecting voluntary information about diversity and still required to be completed by 31 March 2021, but can be done areas of practice. You can have this information included on the register of lawyers by clicking yes in the consent questions.

Removing the ‘My employer will pay’ option A key change this year is to remove the option to select “My employer will pay” and have your employer make payment for your practising certificate. You will need to instead pay by credit card, or select BPAY and arrange payment from your employer. This change addresses the significant problems faced by employers where LSB Online is not able to allocate payment directly to an individual, causing administration and reconciliation problems for many users.

Not renewing? If you don’t intend to renew your practising certificate, please complete the “Not renewing my practising certificate” form in LSB Online.

Further information and assistance STOCK ADOBE Visit www.lsbc.vic.gov.au to find out more or to renew online. ■

18 LAW INSTITUTE JOURNAL APRIL 2021 news LIV awards CHAMPION OF THE DOWNTRODDEN TWENTY-THREE YEARS ON FROM ITS INCEPTION, THE PAUL BAKER AWARD REMAINS A FITTING EMBODIMENT OF THE LEGACY OF A MAN WHO CONTINUES TO BE SADLY MISSED IN ALL HIS AREAS OF ENDEAVOUR.

Born in 1956 and a student from 1974 to 1979 at the University property law. Further, he was not reticent in making known to of Melbourne, Paul Damien Blake Baker graduated with a Bachelor parliamentary inquiries and to the media his views on various of Arts (majoring in history) with honours and a Bachelor of Laws, matters in relation to which he was passionate and eminently going on to complete a Master of Laws in 1991. He established qualified to proffer comment. his own practice in the Melbourne CBD in 1994 under the name Legacy of Baker & Armstrong. Previously he had been a consultant at Juliano Ford and Minter Ellison, and an associate at Phillips Fox. Paul’s deep commitment to, and dedicated involvement in, the When Paul Baker was hired by the partners at Phillips Fox in profession was nothing short of salutary. So it was that, when, the mid-1980s (now part of the firm that is DLA Piper), they were on 17 October 1997, he unfortunately succumbed in his battle looking for a bright young person to help guide the firm’s public with a long illness, our profession was left much the poorer. interest practice. He came across as cheerful, keen and articulate, In order to honour Paul Baker’s immense contribution, the LIV a brave and passionate lawyer who worked in the specialised Council in 1998 instituted an annual award in his memory, which fields of refugee, trade, customs and immigration, and gender bears his name. Specifically, the Paul Baker Award is bestowed equality law (before some of these practice areas were in vogue). for “the significant achievement or outstanding contribution Driven by a deep conviction that government intervention in of a person in the field of administrative or human rights law”. the lives of ordinary folk had to be scrupulously regulated and Counted among the esteemed recipients of the Paul Baker monitored, he successfully litigated myriad ferocious test cases Award to date are: in the immigration law arena, and in September 1992 he was • Emilios Kyrou (the inaugural awardee, before his appointment recognised as an LIV accredited specialist in immigration law. to the Supreme Court of Victoria, and subsequently to the Dedicated to raising the profile of administrative law, he was also Supreme Court of Victoria, Court of Appeal) determined to ensure that those who were unable to articulate • Eric Vadarlis (of Ruddock v Vadarlis (2001) 110 FCR 491 their rights for some reason or other had someone to stand up ("Tampa Case") fame) for them. He often did precisely that, regularly speaking out in • Robert Stary (criminal lawyer extraordinaire, who has relation to refugee and other immigration issues. represented numerous politically unpopular defendants) • David Manne (who, reportedly, is yet to lose an asylum Committees seeker case in the High Court) Paul was unstinting in the giving of his time for professional • Carina Ford (who succeeded in effecting an in-air plane activities beyond his practice, serving on various committees at “turnback” of a would-be deportation flight) the LIV, the Law Council of Australia (LCA), the International Bar • Tim McCormack (expert consultant on the law of war to the Association and the South Pacific Bar Association. For instance, defence team in the trial of David Hicks before a United States from 1989 to 1991, he was a member of the LIV Specialisation Military Commission at Guantánamo Bay) Board. He also served terms as chair of the LCA Customs • Debbie Mortimer SC (before her appointment to the Federal Committee, and as chair of the LIV Administrative Law Section Court of Australia). Executive Committee and Migration, Customs, and Nationality The award continues to be a fitting embodiment of the legacy and Residence Committees. of a man who continues to be sadly missed in all his areas of The establishment in 1990 of the Victorian Immigration Advice endeavour. and Rights Centre also owes much to the efforts of Paul Baker, Nominations for the LIV Legal Awards are open 1-30 April. ■ and he remained on its committee for a number of years. Eu-Jin Teo, senior academic at the University of Melbourne, is Principal Examiner of the LIV’s Other contributions Administrative Law Specialist Accreditation Scheme and a member of the committee that recommends to the LIV Council the candidates for the Paul Baker Award. This tribute has drawn An outstanding representative of, and contributor to, the on personal recollections provided by Erskine Rodan and John Bolitho (see, eg, “Vale: Kenneth profession, Paul also found time (in addition to his practice and John Clements and Paul Damien Blake Baker” (1997) 71(12) LIJ 29, 30), practitioners who were committee work) to teach at the Leo Cussen Institute from 1984 contemporaries of Paul Baker. The author thanks the LIV’s Legal Policy and Library staff for to 1990, as well as organise seminars for immigration lawyers research assistance and facilitating access to relevant archival material. and deliver papers at such seminars. He also penned numerous articles for the LIJ, chiefly on administrative law but also on subjects as diverse as taxation, industrial and intellectual

APRIL 2021 LAW INSTITUTE JOURNAL 19 news Opinion ERADICATING THE CULTURE OF SILENCE ORGANISATIONS NEED TO ADOPT SERIOUS MEASURES TO PREVENT SEXUAL HARASSMENT AT WORK.

Towards the end of 2020, Lander & Rogers announced we had overhauled our firm’s policy relating to sexual harassment and redefined our guidelines around consensual relationships in the workplace. We hope this move will set a benchmark for other law firms and organisations more broadly. GENEVIEVE COLLINS We made a simple but powerful change to our sexual harassment policy, introducing mandatory reporting for anyone who experiences, witnesses or becomes aware of sexual Sexual harassment is pervasive in Australian workplaces – in law, harassment within our firm. We shifted the language in our policy in parliament, across the corporate sector and in entertainment from “should” report to “must” report incidents. This change and media – with an estimated one in three Australians is designed to empower not only the impacted person, but also experiencing workplace sexual harassment in the five years bystanders and witnesses of inappropriate and/or illegal conduct. 1 to 2018. This prevalence is mirrored in the legal profession We know that mandatory reporting is not a complete in Victoria, with a staggering 36 per cent of legal professionals answer to the problem. We recognise the importance of personally experiencing sexual harassment at work, according culture, education and confidence in an organisation’s ability to a 2019 study undertaken by the Victorian Legal Services Board to manage reported behaviour in an appropriate manner. 2 and Commissioner (VLSB+C). But what is perhaps most shocking However, we are also aware that sexual harassment is is the culture of silence that allows such destructive behaviour often part of a pattern of behaviour and not just a one-off by in the workplace to go unchecked. a perpetrator. This is reinforced by many high-profile recent We know that sexual harassment is underreported by those examples. We consider that mandatory reporting is a significant directly impacted. According to a study of 10,000 Australians step in addressing the systemic silence that allows sexual commissioned by the Australian Human Rights Commission, harassment to go unchecked. only 17 per cent of those who experienced sexual harassment In conjunction with mandatory reporting of sexual at work made a formal complaint. There is a similar ratio in harassment, we have also introduced a new policy that provides Victoria’s legal profession, with four out of five (81 per cent) guidelines around consensual personal relationships in the incidents of personally experienced sexual harassment workplace. Just to be clear, we are not seeking to ban or manage 3 going unreported. personal workplace relationships. It is only those relationships It is important to recognise and appreciate the common that involve an actual, perceived or potential conflict of interest barriers to reporting. For Victorian legal professionals, these that must be reported. This can occur, for example, where there reasons include having their complaint ignored (41 per cent), is a power imbalance or where one party is in a position to being treated less favourably (38 per cent) or believing there influence decisions affecting the other party’s promotion or pay. 4 are no consequences for the harasser (46 per cent). When reporting occurs, it is handled confidentially, and conflicts We also know from the VLSB+C study of 2324 participants that of interest are addressed. while 53 per cent of respondents admitted to being “bystanders” These initiatives are vital steps towards making workplaces to sexual harassment, that is they witnessed or heard about the free from sexual harassment and harm caused by relationships conduct firsthand, as few as one in 10 (10 per cent) respondents where conflicts of interest exist. We have a duty as a profession 5 came forward to report this. and community to continue to take action together against some Community standards around sexual harassment are rightly of the most harmful behaviours that can occur in a workplace. ■ changing. This is evidenced by increasing social dialogue about Genevieve Collins is chief executive partner at Lander & Rogers. major local and international incidents including the #MeToo movement and recent court, media and political scandals. 1. https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones- This shift in expectations is applying welcome pressure business-fourth-national-survey-sexual?_ga=2.9908989.991641658.1593049084- to provide safe and healthy work environments. 1162012318.1592960136. 2. https://lsbc.vic.gov.au/resources/report-sexual-harassment-study. Organisations that are serious about eradicating harassment 3. Note 2 above, pp viii. and relationship conflicts at work need to adopt serious 4. Note 2 above, pp ix. measures to short-circuit the potential for antisocial behaviours. 5. Note 2 above, pp ix.

20 LAW INSTITUTE JOURNAL APRIL 2021 LIV PRACTICE MANAGEMENT COURSE (PMC) TRANSITION TO PRACTICE PRINCIPAL OR PARTNER

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LIDAIO features Public Interest Disclosures Act Impropriety and serious professional misconduct

AMENDMENTS MADE TO THE CONCEPT OF IMPROPER CONDUCT IN THE PUBLIC INTEREST DISCLOSURES ACT DRAW ON THE ACT’S PURPOSE TO ENCOURAGE AND FACILITATE DISCLOSURE OF IMPROPRIETY. BY MALCOLM HARDING

The Public Interest Disclosures Act 2012 (Vic) (Disclosures Act) sets out a regime for the disclosure of improper conduct by public SNAPSHOT officers and public bodies, and for the protection of those who make such disclosures. Important amendments came into effect • The Public Interest Disclosures Act 2012 (Vic) was amended in on 1 January 2020. This article focuses on the amendments made 2019, including important changes to the statutory concept of to the concept of “improper conduct”, doing so from a perspective “improper conduct”. that draws on the Act’s purpose to encourage and facilitate • The amendments broaden the range of public misfeasance that engage the protections conferred by the Act on those who make disclosure of impropriety. It concludes by discussing a new form public interest disclosures. of improper conduct termed “serious professional misconduct”. • A new form of “improper conduct” is “serious professional The impropriety concept is, and always has been, central to misconduct”. The article discusses the interpretative the legislative scheme. Until it was amended, the Disclosures Act difficulties of this idea. conceived of improper conduct as “corrupt conduct”, as defined by s4 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act), and other enumerated forms of wrongdoing falling short of corruption but “if proved, constitute a criminal offence or afford reasonable grounds for dismissing, dispensing with or otherwise terminating the services of the STOCK ADOBE officer” who had engaged, or was engaging, in it. Obviously, the statutory intention behind the second category was to

22 LAW INSTITUTE JOURNAL APRIL 2021 features Public Interest Disclosures Act

encourage disclosure of a broader range of public misfeasance need only engage one form of impropriety. The overall effect while maintaining a focus on serious departures from proper is to broaden the scope of the disclosures that engage the standards of public administration. This perhaps proved elusive. Disclosures Act. A prospective whistleblower could be forgiven for some To engage the Act, the alleged wrongdoing must “constitute” consternation. The two conceptions of improper conduct one of the enumerated forms of impropriety. At first blush, this overlapped. For instance, a knowing or reckless breach of public raises the bar for a whistleblower; their information may be trust could be corrupt conduct but could also fall within the incomplete and, without more, may be insufficient to satisfy second category provided it, somehow, was not corrupt conduct every element of a defined form of impropriety. This seems but nevertheless constituted a criminal offence or justified most likely to arise with those forms of impropriety with dismissal. The conceptual difficulty is palpable. So it must have subjective elements that pertain to the alleged wrongdoer’s seemed to a person with information about a public official or state of mind. Two examples from the direct category illustrate body that they suspected may be untoward. To disclose it and this: an intentional or reckless breach of public trust and an be protected, he or she had to decide if the information showed intentional or reckless misuse of information acquired in the or tended to show improper conduct or was information that course of the performance of the public functions of a public he or she believed on reasonable grounds had these qualities. officer or body. Both forms are built on the actor’s wrongful The statute's complicated conception of impropriety may be motivation or recklessness. thought to have impaired rather than encouraged prospective The IBAC Act avoids problems of this kind by permitting the whistleblowers. Independent Broad-based Anti-corruption Commission (IBAC) So did the 2019 amendments clarify things? For the most part, to assume, for the purposes of its Act, that a required state they have – with the notable exception of a new category of of mind can be proven. The Disclosures Act adopts a different impropriety termed “serious professional misconduct”, discussed approach. It lowers the bar for, and at the point of, disclosure later in this article. by authorising the disclosure of information that shows or tends to show engagement in improper conduct by a public officer or The re-imagined idea of improper public body or information the person disclosing it reasonably conduct believes shows or tends to show impropriety of these kinds. If the disclosure criteria are met, powerful protections and immunities The re-imagined idea of improper conduct retains the conception are conferred on the whistleblower. Those protections and of “corrupt conduct” derived from the IBAC Act, but instead of the immunities extend to protection from detrimental action, second category with its complicated threshold, it now provides defamation and other civil or criminal liability. The term for two other categories that separate wrongdoing by a public “detrimental action” is defined broadly and inclusively. It is officer or body from impropriety committed by others through an offence to take detrimental action against another person the agency of a public officer or body. in reprisal for a public interest disclosure. A person who does The first of these two new categories (which I will label the so is liable in damages for any loss, injury or damage caused direct category) applies if a public officer or public body engages to the whistleblower, and the courts are otherwise armed with in one of eight forms of misconduct in those capacities. The wide powers to remedy the effects of detrimental action. While second (which I will label the indirect category) applies if the a whistleblower is not immunised from detrimental action in conduct of any person brings about dishonest or intentionally the form of disciplinary action at the hands of their employer ineffective performance of public functions by a public officer or just because he or she has made a disclosure under the Act, the body, or results in that person obtaining a benefit, appointment proviso is that none of the reasons for taking that action includes or financial gain from a public officer or public body that the fact that the whistleblower made a disclosure.1 he or she would not otherwise have obtained. There is still To engage these protections, a disclosure must be made to overlap with corrupt conduct. However, this is perhaps of less prescribed oversight bodies, such as the IBAC, the Ombudsman, significance than it once was – a whistleblower’s information

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APRIL 2021 LAW INSTITUTE JOURNAL 23 features Public Interest Disclosures Act

the Victorian Inspectorate or, in certain circumstances, a embraces corruption, criminal behaviour, dishonesty and abuses government department or other public sector body. The IBAC is of public power. This context tends to suggest that the Disclosures obliged to assess disclosures and in doing so applies criteria that Act form of serious professional misconduct is concerned with substantially replicates the criteria that authorises a disclosure conduct that suggests the person or body is an unsuitable in the first place, save that for the “reasonable belief” form of repository of public functions and powers. disclosure the IBAC must determine if there were reasonable One potential touchstone is to ask whether the conduct grounds for that belief. If the assessment criteria are met, the seriously violates the public sector values enshrined in s7 disclosure is treated by the Disclosures Act as a public interest of the Public Administration Act 2004 (Vic). This is perhaps just complaint. If the finding is the other way, the whistleblower still another way of asking if the conduct is incompatible with the retains the protections and immunities conferred by the Act, performance of public functions. It tends to align the concept but the disclosure and the identity of the person who made it with the common law of employment, which views serious ceases to be confidential. This is still powerful encouragement. misconduct as synonymous with behaviour that is repugnant If, for instance, the IBAC finds that a whistleblower’s belief to the employment relationship. However, this idea cannot be lacked reasonable grounds, the disclosure is still a public determinative for this statutory setting. interest disclosure and the person who made it is still subject The phrase “public officer” takes its meaning from s6 of the to the Act’s protections. To lose protection, the whistleblower IBAC Act. The definition is extensive. It embraces any person must have disclosed the information knowing it to be false employed in any capacity within the Victorian public sector, as or misleading with the intention that it be acted on as a public well as persons who hold high office as statutory office holders interest disclosure. (for instance the Ombudsman), appointed office (for instance, Quite plainly, the statute encourages and facilitates complaints the Governor and departmental heads), judicial office and and disclosures by whistleblowers by conferring protection elected office. based on a reasonably low disclosure threshold. This is so despite The standard of professional conduct for a clerk employed the potential repercussions for those who are the subject of in a government department cannot be the same as the a disclosure. The quid pro quo for this level of protection is standard required of a judge. Moreover, misconduct for a judge that disclosures are made according to a procedure that funnels will likely hinge on considerations associated with the proper them to particular institutions for assessment. In these ways, administration of justice. Those who hold appointed office (such the Disclosures Act, as amended, maintains a balance between as the Governor) or elected office (such as Ministers or local contending interests in favour of exposing impropriety. In this government councillors) will also be subject to considerations light, it is appropriate to consider the new “serious professional relevant to their office. A “public officer” also includes teachers, misconduct” form of impropriety. police officers and crown prosecutors, all of whom are subject to specific statutory regimes governing their professions. Those The concept of serious professional statutory regimes usually provide for misconduct and, in doing misconduct so, may distinguish between conduct that will justify dismissal and conduct that affects the right to practise the profession. The “serious professional misconduct” form of impropriety had At common law, professional misconduct does not necessarily no direct counterpart in previous iterations of the legislation. require a finding that the miscreant is unfit, but will support When regard is had to its statutory neighbours, which include such a finding.5 The surrounding statutory context and the corruption, criminal conduct, dishonesty and abuse of public need for the Disclosures Act form of professional misconduct power, “serious professional misconduct” seems to substantially to be “serious” strongly suggests the need for the misconduct lower the impropriety bar. Notably, the phrase is not defined. to warrant epithets such as disgraceful, dishonourable, How then does one discern professional misconduct, let alone reprehensible and not a fit and proper person.6 Of course, these serious professional misconduct, if there is no measuring conceptions have evolved in a context concerned with individual stick for either? How does one discern it at all in the case impropriety by professionals in fiduciary type relationships. of a public body? The Disclosures Act conception is not so confined. On that score, Professional misconduct often appears in laws that it is notable that the Act also contemplates the disclosure of govern professional persons. In a context that concerned the serious professional misconduct by a public body. This context misconduct of a lawyer, the High Court has said that the use is markedly different from misconduct by a public officer. The of the adjective “professional” does not confine the concept to notion of an entity engaging in professional misconduct, distinct professional persons.2 At common law, “serious misconduct” in from the individuals whose conduct is attributed to the body, is employment has been said to cover a multitude of sins. There is conceptually difficult, more so when it is realised that a public no fixed rule that governs what amounts to misconduct that is body can be unincorporated. serious.3 Necessarily, the concept must take its colour from its The interpretative difficulties are compounded by s4(2) of factual and, here, statutory context. the Disclosures Act. This section provides that conduct that is Ordinary principles of statutory interpretation emphasise trivial does not constitute improper conduct for the purposes contextual meaning. Context is to be considered at the outset of this Act. It is difficult to conceive of a situation in which and at the same time as the text of a statutory provision.4

serious professional misconduct (or for that matter any of the STOCK ADOBE The immediate statutory context of “serious professional other forms of wrongdoing captured by the improper conduct misconduct” are forms of impropriety that constitute very definition) could also be trivial; in which case, what work does significant misbehaviour. In the same breath, the Disclosures Act

24 LAW INSTITUTE JOURNAL APRIL 2021 features Public Interest Disclosures Act

that section do? It may be that seriousness is to be judged by the “serious professional misconduct” form of impropriety will consequences of the professional misconduct and that a trivial be overtaken by the more specific forms of impropriety, if only consequence denies it that status. There is little in the statute because they offer a clearer pathway, it also has the potential that explains this. The explanatory memorandum is silent to become something of a catch-all category of last resort for on the subject. the person who wishes to avail themselves of the Act. This The range of circumstances to which the statutory concept latter consequence does not seem a desirable development. of “serious professional misconduct” must be applied and that It is, I think, a question for now of “watch this space”. ■ bear on its scope is wide indeed. This will likely stand in the way Malcolm Harding SC is a barrister at the Victorian Bar. He has been at the of there being one standard for judging what it covers or for Bar since 2003 and was appointed Senior Counsel in 2019. seriousness. Two concerns arise from this. 1. Unlike the general protections provisions of the Commonwealth Fair Work Act, which First, the very imprecision of the concept may tend to prohibits the taking of adverse action in certain specified circumstances for prohibited discourage disclosure if only because the protections conferred reasons, the Disclosures Act does not require the employer’s decision maker to prove that by the Disclosures Act hinge on some appreciation of its scope. its reasons exclude the prohibited motivation. As has been mentioned, the prospective whistleblower is 2. A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at [20]. protected if their information shows or tends to show the 3. Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at [239-240] (Gillard J). relevant impropriety or he or she reasonably believes that it 4. SZAL v Minister for Immigration and Border Protection [2017] 262 CLR 362 at [14] does. There will doubtless be obvious cases, but not always. (Kiefel CJ, Nettle and Gordon JJ). 5. Note 2 above, at [20]. The prospective whistleblower is left to speculate about what 6. This reflects the common law:Pham v Legal Services Commissioner [2015] VSC 671 their information shows or tends to show. Second, the same at [9]-[11] (Bell J); NSW Bar Association v Cummins [2001] 52 NSWLR 279 at [50] imprecision carries the potential to undermine the balance (Spigelman CJ, with whom Mason P and Handley JA agreed). the Disclosures Act strikes between the encouragement it gives to the disclosure of wrongdoing and the interests of those who are the subject of a disclosure. It seems likely that judicial clarification will be required to work out the boundaries. While it is conceivable that the

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APRIL 2021 LAW INSTITUTE JOURNAL 25 features Insolvency

Reaching its peak: unfair preference claims

THREE TRIALS IN THE FEDERAL COURT PROVIDE CLARITY ON KEY ISSUES IN UNFAIR PREFERENCE CLAIMS. BY JASON GEISKER AND GEORGINA OVEREND ADOBE STOCK ADOBE

26 LAW INSTITUTE JOURNAL APRIL 2021 features Insolvency

Three trials in the Federal Court of Australia The peak indebtedness rule arising from the Gunns Ltd liquidation have provided the first opportunity1 for an Australian SNAPSHOT At general law, where a payment forms part of a broader series of transactions, its effect as court to consider the peak indebtedness rule • Three recent judgments a preference involves a consideration of the whole following the New Zealand Court of Appeal’s by Davies J provide landmark decision in Timberworld Ltd v Levin [2015] clarity on a number transaction and whether the payment is integral 3 3 NZLR 365 (Timberworld). Fortunately for the of key issues in unfair to the continuation of a business relationship. liquidators, the Federal Court confirmed the peak preference claims. On the basis that the transaction is integral indebtedness rule remains and rejected the New • The judgments have to the continuation of a business relationship, Zealand approach. provided the first the amount of any recovery can be limited to opportunity for an the difference between the highest point of Background Australian court indebtedness during the relation back period and to consider the the level of the debt on the last day of that period. In 2015, Daniel Bryant, Ian Carson and Craig application of the This is known as the peak indebtedness rule. Crosbie (Liquidators) in their capacity as joint peak indebtedness The peak indebtedness rule can be traced back and several liquidators of Gunns Limited (in rule following the to the High Court’s decision in Rees v Bank of New liq) (Gunns) and its wholly owned subsidiary, New Zealand Court South Wales [1964] HCA 47 (Rees) in which Barwick Auspine Ltd (in liq) commenced unfair preference of Appeal’s decision in Timberland. CJ remarked: proceedings against: • Badenoch’s recent “In my opinion the liquidator can choose any • Badenoch Integrated Logging Pty Ltd (Badenoch) appeal to the Full Court point during the statutory period in his endeavour • Bluewood Industries Pty Ltd (Bluewood) will provide a further to show that from that point on there was a • Edenborn Pty Ltd (Edenborn). opportunity for the preferential payment and I see no reason why All three defendants had provided timber peak indebtedness he should not choose, as he did here, the point harvesting services to Gunns during the six-month rule to be considered, of peak indebtedness of the account during the period prior to the Liquidators’ appointment as as well as the ability six months period”. joint and several administrators of Gunns (relation to rely on set-off Following Rees, the peak indebtedness rule has back period). The Liquidators alleged that during pursuant to s553C been applied by various Australian courts when the relation back period Gunns had made a series of the Corporations considering the application of running account. of payments to each of the defendants which Act 2001 (Cth). However, following the introduction of Part 5.7B were unfair preferences as they had resulted in of the Act,4 questions have been raised as to the the defendants receiving more than they would continued application of the peak indebtedness have had they proved their unsecured debts in the rule in the context of a running account. Consequently, one of winding up of the company. the live issues to be determined by the Court was whether the In determining the claims, Davies J was asked to consider the peak indebtedness rule continued to apply in Australia following application of the peak indebtedness rule in light of the New the introduction of Part 5.7B. Zealand Court of Appeal’s decision in Timberworld, the ultimate In all three cases the defendants argued that s588FA(3) did effect doctrine and the availability of set-off, under s553C of the not codify the peak indebtedness rule. They submitted that it Corporations Act 2001 (Cth) (Act), to unfair preference claims. was reasonable to infer the wording of s588FA(3) was intended On 27 May 2020, Davies J delivered three separate judgments2 to alter the law as it related to the peak indebtedness rule. This all in favour of the Liquidators, finding that the payments were argument relied on the New Zealand Court of Appeal’s decision unfair preferences pursuant to s588FA of the Act. in Timberworld, which had held that the peak indebtedness rule

APRIL 2021 LAW INSTITUTE JOURNAL 27 features Insolvency

did not apply to s292(4B) of the Companies Act 1993 (NZ) (NZ Act), In contrast, Edenborn asserted that the cases preceding the as that had been introduced in materially the same terms introduction of s588FA(3) remained relevant to its interpretation as s588FA(3) of the Act. and that the Liquidators were required to allege and prove that In Timberworld, the Court relevantly held that s292(4B) did the transaction resulted in an overall reduction in the net assets not give the liquidator any right to disregard transactions which available to other creditors. formed part of the continuing business relationship but, rather, Notwithstanding the uncertainty surrounding the the plain wording of s292(4B) required all transactions forming continued application of the ultimate effect doctrine, Davies J part of the relationship to be treated as amounting to a single acknowledged that it was not necessary to form any conclusive transaction, with the only limitation being that only transactions view on the matter as the Liquidators had established, as a occurring in the relation back period could be considered. matter of fact, that the payments were preferential. However, With this in mind, it had been suggested that arriving at some her Honour did observe that: “artificial point during the course of the relevant transaction “If it were necessary to form a view in this case . . . I would and to select the date of peak indebtedness would be to ignore be disposed to hold that the doctrine still applied”.9 the express wording used by Parliament”.5 Davies J’s conclusion relied on the fact that s588FA(3) However, having considered the Court’s reasons in Timberworld, undoubtedly codified the running account principles and that Davies J was not persuaded the peak indebtedness rule no as a matter of construction s588FA(1)(b), read with s588FA(3), longer applied in Australia. Davies J noted that the explanatory codified the ultimate effect doctrine in s588FA(1)(b). memorandum to the Corporate Law Reform Bill 1992 (Cth) Davies J also rejected Edenborn’s argument that the clearly states that the proposed sub-s588FA(2) (which became Liquidators’ claim must fail because the Liquidators did not sub-s(3)) “is aimed at embodying in legislation the principles allege and prove that the ultimate effect of the single transaction reflected in the case of Queensland Bacon Pty Ltd v Rees (1967) was a reduction in the net assets available to creditors. In 115 CLR 266 and Petagna Nominees Pty Ltd v AE Ledger 1 ACSR 547” her Honour’s view, this argument was based on the incorrect (Petagna).6 To this end, Petagna cited various cases with approval proposition that s588FA(1) incorporated a requirement that concerning the application of the peak indebtedness rule, noting a single transaction must result in a decrease in the net that “the liquidator can choose any point during the statutory value of other assets available to creditors.10 period in his endeavour to show that from that point on there was a preferential payment”.7 Availability of set-off under s553C Davies J also concluded there was no reason to depart from the of the Act clear weight of authority, supporting that the current provisions Bluewood and Badenoch also sought to set-off, under s553C of the Act were not intended to substantively change the law of the Act, any amounts said to be still owing by Gunns to with respect to unfair preferences. them against any amounts that the Court found Bluewood and Ultimate effect Badenoch liable to pay as an unfair preference and therefore voidable transaction. The ultimate effect doctrine emanates from a number of While a number of cases commencing with the UK decision cases in the 1960s where it was stated that the doctrine was in Re A Debtor [1927] 1 Ch 410 have held that set-off under designed to “ensure that the effect of a payment that induces s553C and other equivalent provisions is not available in unfair the further supply of goods and services is evaluated by the preference claims, in recent years there have been other cases ultimate effect that it has on the financial relationship of the which have held or suggested that set-off for a claim for recovery parties . . . [if] the payment was made to induce the further by a liquidator should be extended to s588FF. supplies, the creditor is entitled to have the ultimate effect Ultimately, Davies J considered that it was unnecessary to 8 of the transaction examined”. decide the set-off issue because both Bluewood and Badenoch In this regard, payments made to induce further supplies had notice at the relevant times that Gunns was insolvent and were not preferences unless the “ultimate effect” was that therefore were caught by s553C(2) of the Act. Accordingly, debate the value of the payments exceeded the value of the goods as to the availability of set-off under s553C of the Act in unfair or services provided. preference claims remains. In the Edenborn decision, it was common ground between the parties that the doctrine of ultimate effect continued Takeaway points to apply in determining whether a creditor had received an The trio of Gunns judgments confirms that the peak indebtedness unfair preference in a running account scenario following the rule continues to apply following the introduction of Part 5.7B. introduction of Part 5.7B. However, despite the parties’ agreement Although Davies J’s decision did not determine the availability that the doctrine applied, the parties differed as to why that was of s553C of the Act to unfair preference claims, an appeal lodged so. Neither party was able to point to any binding authority on by Badenoch, and heard on 10 February 2021, asked the Full the Court on the question of ultimate effect. Federal Court to consider this issue. The Liquidators contended that s588FA(3) codified the The Full Court’s decision on this issue, as well as Davies J’s ultimate effect doctrine such that there was no work for the acceptance of the application of the peak indebtedness rule, will earlier authorities to do. The effect of this was that the doctrine STOCK ADOBE have a significant impact on liquidators and creditors alike. If the simply involved a comparison of the face value of the services Full Federal Court overturns Davies J’s decision and follows the provided against the value of the payments made. New Zealand Court of Appeal in Timberworld, the repercussions

28 LAW INSTITUTE JOURNAL APRIL 2021 features Insolvency

will be enormous. Likewise, any appeal finding that the peak Jason Geisker is a principal at Maurice Blackburn Lawyers, legal advisers to Claims indebtedness rule should no longer apply to running account, or Funding Australia. that s553C of the Act should allow for set-off in unfair preference Georgina Overend is an associate at Maurice Blackburn Lawyers, legal advisers claims, could vastly reduce the value of preference claims to Claims Funding Australia. brought by liquidators in the future. Such an outcome might well 1. Bryant, in the matter of Gunns Limited (in liq) (receivers and managers appointed) also have broader ramifications on a liquidator’s ability to fund v Badenoch Integrated Logging Pty Ltd [2020] FCA 713 (Badenoch decision) at [105]. investigations and bring other potential claims, absent access 2. Badenoch decision, Bryant, in the matter of Gunns Limited (in liq) (receivers and to creditor or third-party litigation funding support. ■ managers appointed) v Bluewood Industries Pty Ltd [2020] FCA 714 and Bryant, in the matter of Gunns Limited (in liq) (receivers and managers appointed) v Edenborn Pty Ltd [2020] FCA 715 (Edenborn decision). 3. Richardson v Commercial Banking Co of Sydney Ltd (1952) 85 CLR 110 at 129; Re Employ (No 96) Pty Ltd (in liq) (2013) 93 ACSR 48 at [37]. 4. Section 588FA was part of a raft of new legislative provisions for recovery of property for the benefit of creditors comprised in a new part 5.7B of the Corporations Law introduced by the amending Corporate Law Reform Act 1992 (Cth), The relevant provisions of part 5.7B were adopted into the Act in 2001. 5. Timberworld at [386]. 6. Explanatory Memorandum to the Corporate Law Reform Bill 1992 (Cth) at [1042]. 7. Petagna at 564. 8. Airservices Australia v Ferrier [1966] HCA 54 at [509]. 9. Edenborn decision at [165]. 10. Note 9 above, at [167].

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APRIL 2021 LAW INSTITUTE JOURNAL 29 features Property law

Co-ownership disputes: update

DISPUTES BETWEEN CO-OWNERS CONTINUE TO ENGAGE THE SUPREME COURT. MOST PROLIFIC IN A NON-STATUTORY CONTEXT CONCERN WHETHER A JOINT TENANCY HAS BEEN SEVERED TO CREATE A TENANT IN COMMON. THE ARCANE TOPIC OF ADVERSE POSSESSION BETWEEN CO-OWNERS IS THE SUBJECT OF ANOTHER DECISION. AND DISPUTES OVER PARTITION AND SALE ON APPEAL FROM VCAT CONTINUE. BY PHILIP BARTON

An article by the author in the 2018 LIJ covers the right of a • an act of a co-owner operating on that person’s own share co-owner to sale or partition under Part IV of the Property Law • mutual agreement to sever Act 1958.1 This article covers recent Supreme Court cases on • any course of dealing sufficient to intimate that the interests co-ownership disputes falling outside Part IV. of all were mutually treated as constituting a tenancy in common, but if the severance depended on an inference of this Severance of joint tenancy kind without any express act of severance it was insufficient Foundational principles to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. On the death of one joint tenant the interest of any surviving There have been three Supreme Court decisions in recent years joint tenant is correspondingly enlarged. Accordingly, a joint on severance: Hycenko v Hrycenko (Hycenko),3 Re Wilson4 and Versaci tenant may desire to thwart this by severing the joint tenancy to v Rechichi.5 As a necessary background the discussion below

create a tenancy in common. The classic foundational statement STOCK ADOBE commences with a survey based on that of Sifris J in Hycenko is of Page Wood VC in 1861 in Williams v Hensman,2 the substance of previous cases illustrating the three methods. of which was that the three methods of severing a joint tenancy are:

30 LAW INSTITUTE JOURNAL APRIL 2021 features Property law

Previous cases: An act of a co-owner between them in particular proportions operating on that person’s own share notwithstanding subsequent withdrawal by A transfer by a joint tenant of his or her interest SNAPSHOT one spouse of consent to a Family Court order to a stranger suffices.6 But a unilateral declaration • Disputes between sanctioning the agreement – the underlying of intention by one joint tenant, eg execution of co-owners continue intention was revealed16 documents transferring that tenant’s interest to to engage the Supreme • an agreement between husband and wife, a third party, uncommunicated to the other joint Court, particularly over approved by the Family Court, to settle their whether a joint tenancy tenant, does not.7 property claims, in which each acknowledged has been severed. that the other was legally and equitably Previous cases: Agreement to sever The recent cases of entitled to a half interest in each property and An agreement to sever need not be specifically Hycenko v Hrycenko, that these should be sold on the happening enforceable, nor a binding contract, and its Re Wilson and Versaci v Rechichi consider this. of specified events, and the proceeds should severing operation stands notwithstanding 17 • Another recent be divided equally. Whether the particular its subsequent repudiation.8 Therefore, a decision, Fourniotis v event, on the happening of which the parties consent order agreed after matrimonial Vallianatos, concerns were agreed that a sale and division of the property negotiations sufficiently evidenced the arcane topic of proceeds be made, occurred is irrelevant18 the agreement of husband and wife to sever, adverse possession • an expression by the parties that their whether or not the agreement was binding.9 between co-owners interests be several interests of a kind involving s14(4) Previous cases: Course of dealing consistent only with a tenancy in common, of the Limitation • Conduct of the joint tenants not evidencing eg, that “each” was entitled to a ”one of Actions Act. half interest” in certain properties.19 in an agreement to sever but only showing • Appeals from VCAT an unequivocal common intention to sever concerning disputes • But not sufficing as a course of dealing are: 10 suffices. However, the course of conduct over partition and sale • negotiations coming to nothing for the must be inconsistent with a joint tenancy continue In Stewart purchase of one co-owner’s interest, or for from which one would objectively infer v Owen the Court its partition, or for sale to a third party and an intention to hold property as tenants in particularly considers the division of proceeds, let alone mere common,11 eg, an intention to sell and divide the limits on VCAT’s correspondence (falling short of negotiations) the proceeds of sale or an agreement to sell.12 jurisdiction to make between the co-owners proposing separation orders under Part IV 20 • The mutual intention to sever may be an of interests of the Property Law Act. expressed intention (underlying intention • mere entry by joint tenants into a contract revealed by agreement) or may be inferred of sale.21 from the conduct and dealings of the parties.13 Hycenko v Hrycenko – no severance • Sufficing as a course of dealing are: • an agreement to divide a deposit paid to vendors George and Ludmilla Hrycenko had three sons, John now “equally between them”14 deceased, Nicholas and Victor. Nicholas alleged that: • entry by a husband and wife into an agreement on the • in late 2000 or 2001 George, in the presence of Ludmilla, dissolution of their marriage including a provision that the Nicholas, his wife, and Victor (“the family”), said at a family wife should have sole use and occupation of the former dinner in effect: “I've sorted everything out with John’s family. matrimonial home, on cessation of which the home was The remainder of the family properties will go to you and to be sold and the proceeds distributed between them15 Victor”. Ludmilla did not dissent. • an agreement between former spouses that the proceeds of • shortly afterwards at another family dinner George said that a bank account in their joint names should be divided he and Ludmilla wanted to sell their residence and find one

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APRIL 2021 LAW INSTITUTE JOURNAL 31 features Property law

smaller. Nicholas then located a residence which the parents became sole registered proprietor by survivorship. McMillan purchased, the parents paying the entire purchase price J held that the joint tenancy was severed by the declaration and becoming joint registered proprietors of trust28 and, if not so severed, was severed by the intention • soon after this at another family meeting Nicholas told his manifested by the deed for the property to be held on trust for parents that he and Victor had agreed to renovate the property; sale forthwith with the proceeds being divided equally between generally described the renovations; and said that funds the settlors and the donees.29 were limited and the work would be extensive. And George Commentary replied in effect: “Well, the house will be yours and Victor’s”. These cases show the distinction between precise formal Ludmilla did not dissent; evidence and imprecise evidence. On the one hand Leonard • consequently Nicholas renovated and regularly Wilson and the Versacis executed formal documents which maintained the house. although simple were effective and were assisted by equity Nicholas asserted that the joint tenancy was severed in equity requiring little by the way of evidence to show the necessary when these representations were made. Sifris J granted summary intention. On the other hand, the alleged statement of George judgment to the defendants. The high point of Nicholas’ case, Hrycenko to the effect that “the house will be yours and Victor’s” namely the statement to the effect that “the house will be yours was too imprecise. and Victor’s” was insufficient, being entirely consistent with retention of the joint estate – the use of “will” did not suggest Adverse possession between co-owners that the unity of estate would cease with immediate effect. In Fourniotis v Vallianatos30 Croft J considered the uncommon topic Re Wilson - severance of one co-owner losing his or her interest to another by adverse Leonard and Austral Wilson were joint registered proprietors of possession. In 1970 Andreas Vallianatos purchased a property interests in various pieces of land. In 1998 Austral, who expected on which he constructed flats. He transferred shares in the to die before Leonard, executed an enduring power of attorney in land to himself (two sixths) and his wife and three daughters his favour. In 2000 she was diagnosed with dementia, and so lost (one sixth each), registered in 1971. One daughter, then aged legal capacity. In 2008 Leonard executed instruments of transfer 13, was the subsequent plaintiff. Her brother the defendant of each property in which: gradually acquired the other shares by transfer. Neither lived • the transferor was expressed as “Leonard Charles Wilson there. Over the years the rent was collected and treated as his and Austral Jean Wilson” own first by Andreas until his death and then (save for partially • the transferee was expressed as “Leonard Charles Wilson and applying some for his mother’s benefit) by the defendant, with Austral Jean Wilson . . . as Tenants in Common in equal shares” no intervention by the plaintiff. • the consideration was expressed as “Love and Affection” Section 14(4) of the Limitation of Actions Act 1958 provides • the document was expressed to be executed by Leonard in his in substance that if one or more of several persons entitled personal capacity, and as attorney for Austral pursuant to the to land or rent as a co-owner has been in possession or receipt power of attorney. of the entirety, or more than that person or those persons’ share The State Revenue Office stamped each transfer exempt or shares of such land or its profits or rent, such possession from duty. Leonard died in 2011. Austral died in 2016. Had the or receipt shall be deemed adverse possession of the land. joint tenancies been severed? Croft J held that there had been adverse possession since Derham AsJ held: the 1970s: the plaintiff’s right of recovery expired at the earliest • the execution of the transfers demonstrated a mutual in 1986, being 15 years after she took an interest in the land intention to sever the joint tenancies in equity.22 Equity (this being the limitation period provided by s8 for the right to favoured tenancies in common as a form of co-ownership and recover land).31 Section 14(4) did not require continuous letting “requires little by way of evidence to show an intention that of all parts of the subject property: the manner in which the joint tenants are to hold as tenants in common”.23 Equity gave rent flowed was irrelevant as long as it was within the control immediate effect to a mutual intention to sever.24 Any question of the “excluding” co-owner(s).32 This is an interesting decision, of consideration was irrelevant25 both because time ran against the plaintiff while she was a • Leonard and now his administrator could register the minor and so under a disability (s23 of the Limitation of Actions transfers, thus severing the joint tenancies at law26 Act, which deals with extension due to disability, did not cover • Leonard acted lawfully and within the scope of his this situation), but more particularly because it is thought that authority as attorney.27 there must be many people letting others collect rent who do not realise that they may be on the way to losing an interest in land. Versaci v Rechichi - severance Maria and Antonio Versaci were the joint registered proprietors of Property Law Act, Part IV – Supreme a residential property. In 1992 a deed of settlement was executed Court update by them as settlors and by them and their living children as 33 donees. The deed provided that Maria and Antonio held the The most important Supreme Court case on Part IV of the 34 property on trust for the donees as tenants in common and on its Property Law Act in the past two years has been Stewart v Owen 35 sale the net proceeds of sale were to be divided equally between in which Forbes J allowed an appeal from VCAT. Mr Stewart STOCK ADOBE the donees. The property did not sell at auction, remained in the and Ms Owen were registered proprietors of land in shares of joint names of Maria and Antonio, and on his death in 2010 Maria one third and two thirds respectively. He applied for an order

32 LAW INSTITUTE JOURNAL APRIL 2021 features Property law

for sale and division of proceeds in accordance with such 15. Re Pozzi [1982] Qd. R. 499. shares with an adjustment in his favour for his expenditure 16. Calabrese v Miuccio (No. 2) [1985] 1 Qd. R. 17. and occupation rent. She counterclaimed seeking a declaration 17. Public Trustee v Pfeiffle [1991] 1 VR 19. 18. Note 17 above, at 24-5 per Kaye J. that he held his registered interest on trust for her and for an 19. Note 17 above, at 35 per Ormiston J. order that he execute a transfer accordingly. VCAT held that 20. Note 11 above, at [48]. Mr Stewart held his interest on a joint endeavour constructive 21. Allingham v Allingham [1932] VLR 469. trust for Ms Owen and that it had power to adjust interests 22. Note 4 above, at [47]-[48], [59], [66], [74]. in the land under the Property Law Act: 23. Note 4 above, at [47] quoting Mischel Holdings [2013] VSCA 375 at [66]. • s233(1)(c) – limited to where there were “amounts payable by 24. Note 4 above, at [45], [46], [61]. 25. Note 4 above, at [63], though in fact there was valuable consideration in the co-owners to each other during the period of the co-ownership” mutual relinquishment of the joint interest and the right of survivorship [56]. • s228(1) which empowered VCAT to make any order it thinks 26. Note 4 above, at [60]. fit “to ensure that a just and fair sale or division of land”, 27. Note 4 above, at [67]-[73]. eg, where an order for physical division would be ineffective 28. Note 5 above, at [109]-[110]. without a further order that one co-owner transfer one part 29. Note 5 above, at [112]. of the land to the other. 30. [2018] VSC 369; 56 VR 85. 31. Note 30 above, at [101]-[102]. VCAT declared that the parties held their respective registered 32. Note 30 above, at [109]. interests in trust for Ms Owen and ordered Mr Stewart to execute 33. Other cases are: Trani v Trani [2019] VSC 2, [2019] VSC 294 -VCAT’s jurisdiction does not a transfer of his interest to her on her repayment of his financial cover claims arising from a fraudulent transfer; Miller v Martin [2018] VSC 444, [2020] contributions to the joint endeavour, secured by a charge VSCA 4 – the fact that the source of the purchase monies of the land in question was over the land. a partnership between the parties did not deprive VCAT of jurisdiction. Forbes J held that VCAT had erroneously held that the trust 34. [2020] VSC 175. existed but, of more general application, that VCAT’s second 35. [2019] VCAT 140. 36. Note 34 above, at [20]. proposition concerning its power to adjust interests was 37. Note 34 above, at [42]. unsound. Her Honour held (subject to what is stated in the next 38. Note 34 above, at [47]. paragraph) that: if there was no application contemplated by 39. Note 34 above, at [44]. Part IV on foot VCAT lacked jurisdiction to make a declaration 40. Note 34 above, at [48]. as to the interest of a co-owner;36 any order transferring title 41. Grech v Richardson [2019] VCAT 363. as between co-owners must derive from the statutory power to order sale, physical division, a combination of both, or by a determination that the adjustment of interest in an application between co-owners requires the transfer;37 and there was no power to impose the charge.38 However, her Honour dampened the impact of her holding as to adjustment of interests by noting that in exercising its adjustment power one co-owner’s interest may be adjusted to nil or 100 per cent of the value, so terminating the co-ownership.39 This produces a similar result to a transfer. Further, as to her first holding, her Honour also stated that it was unnecessary to determine whether there was jurisdiction to grant a remedy by way of declaration of the equitable interest of a co-owner pursuant to s124 of the Victorian Civil and Administrative Tribunal Act (which confers a general power on VCAT to make a declaration).40 However, there is recent VCAT authority for making such a declaration.41 ■ Philip H Barton practises at the Victorian Bar in commercial, property, and probate law. He is the author of the caveatsvictoria.blog.

1. August 2018 LIJ p26. 2. 70 ER 862 at 867. 3. [2016] VSC 247; 50 VR 726. 4. [2019] VSC 211. 5. [2019] VSC 727. 6. Wright v Gibbons (1949) 78 CLR 313 at 323. 7. Corin v Patton (1990) 169 CLR 540. 8. Abela v Public Trustee [1983] 1 NSWLR 308 at 315. 9. Abela v Public Trustee [1983] 1 NSWLR 308. 10. Note 8 above. 11. Saleeba v Wilke [2007] QSC 298 at [38]. 12. Note 11 above, at [25]. 13. Public Trustee v Pfeiffle [1991] 1 VR 19 at 29 – 30 per McGarvie J. 14. Kingsford v Ball (1852) 66 ER 294.

APRIL 2021 LAW INSTITUTE JOURNAL 33 features LIQUOR Victoria Planning Provisions LICENSE Adopting a FOOD regulatory REGULATIONS

MUNICIPAL LOCAL design LAW protocol

THE VPP MUNICIPAL LOCAL WERE A PIONEER LAW IN REGULATION BY DESIGN AND THE MODEL OFFERS A PATH TO MAKE A WIDER RANGE OF REGULATION SNAPSHOT SIMPLER AND MORE ACCESSIBLE BY • “Design thinking” ADOPTING A VICTORIAN REGULATORY DESIGN offers the ability to achieve consistency PROTOCOL. BY ANDREW NATOLI across all public interface regulations and to finally realise The recession of the early 1990s hit the Victorian Design thinking the benefits of economy more deeply than other states and machine readable triggered wide-ranging reforms to facilitate Design thinking is not new, but it is now being regulations through investment and create jobs, including one of deployed by a new breed of agencies and a central digital the most innovative and significant reforms “product designers” to improve how citizens platform. the Victorian planning system had seen, the interact with public services and technology. • The VPP are an early introduction of the Victoria Planning Provisions Design is more than just appearance, it is and enduring example of “regulation (VPP). The VPP created a standard template for about how things work, informed by applying by design” that all planning schemes and made many common processes and methods to examine the 1 implemented a provisions consistent across the state. interaction between people and technology. At the centre of design thinking is the idea that consistent planning Twenty-five years later, the VPP remain scheme structure any service or system is best thought of as a an enduring early example of “regulation by and format across product whose sole purpose is to help the end design”, created at a time when “design thinking” all planning schemes was only applied to tactile products and user solve real world problems. Human centred and facilitated the Collingwood’s factories were occupied by blue design (HCD) approaches focus on researching, state’s economic collar workers and not “product” designers. developing and testing interventions to optimise recovery from the Victoria’s economic recovery from the how an end user experiences using the product 1990s recession. • Adopting a Victorian COVID-19 crisis will once again require an and how the benefit sought is delivered. Regulatory extraordinary response from its regulatory Progressive public law makers are exploring Design Protocol, systems. The experience of the VPP reforms and the application of HCD principles to policy development, the crafting of regulation and the based on the VPP its legislative architecture give Victoria a unique experience, could design of the delivery platforms to translate and ability to deliver groundbreaking reform that place Victoria at a parse regulations to machine readable code.2 will facilitate investment and actually deliver unique competitive

the promise and benefits of “digital ready” advantage in its STOCK ADOBE regulations. recovery from the COVID-19 crisis.

34 LAW INSTITUTE JOURNAL APRIL 2021 features Victoria Planning Provisions

The goal of regulation by design A new business operator must deal with the vagaries of each regime, different definitions, regulatory constructs and The common vision driving these programs is for citizens to instruments. The oddities of each regime are exacerbated by one day access the rules of government through a single digital their different authors and sometimes by local aspirations platform that can integrate multiple agencies and regulations to to just be different. identify all the legal obligations and entitlements relevant to the In an era where private enterprise has successfully “designed circumstances and location of that citizen or their business. out” complexity elsewhere in our daily lives,4 Victorians are The demands the current pandemic has placed on surely entitled to expect that regulating authorities will governments could not make the potential benefits of this vision also use any opportunity to do the same, particularly where any more obvious. Just imagine if public health officials had clear, consistent and accessible rules can only deliver greater access to a single statewide platform that: compliance, cheaper administration and better outcomes. • set out standard classes of residential and business activity so that activities with the highest potential for human physical The obstacles interaction could be quickly identified across a range of Government efforts so far have generally applied design thinking regulatory settings as a simple technology layer, a series of HTML blankets spread • provided a state standard template and protocol for drafting over a bed of complex and inconsistently structured regulations. digital ready health directions that: This “inconsistency” obstacle was highlighted as a key • clearly and unambiguously express the classes of activities challenge by New Zealand’s Service Innovation Lab when it that are permitted, regulated and prohibited examined opportunities for creating machine consumable rules, • if a class of activity requires approval, details what concluding that the task was difficult if the policy and legislation decision guidelines, standards and assessment pathway has not been developed with this output in mind.5 settings apply It seems that deep re-design of public regulations is “off-limits” • can be stored in a database and readily plugged into and current efforts are instead focused on bespoke solutions a central portal and parsed according to end user queries to translate existing regulations into “codable” or machine • is already easily accessed and understood by the public consumable rules. Design thinking instead seeks to integrate and officials different disciplines and dissolve hard traditional boundaries, • can be simply used to construct packages of entitlements not reinforce them. that assist those classes of business activities and employees hardest hit by the public health directions • provided a single statewide online interface (perhaps an app) that could be quickly updated to Current complexity of café permissions consistently advise residents and business operators of their legal obligations across a range of regulatory settings – a single source of truth.

R R The benefits F R R RFR 94 The benefits of simplifying legislation were succinctly 97 00 99 put by the Victorian Law Reform Commission (VLRC) in 1987 and remain apt: “Plain English in legislation is important because it helps members of the public to comply with their legal obligations and to obtain benefits to which they R F are entitled. R RS RFR “Plain English in legislation is also important S 0 RS because it saves money. Poorly drafted laws impose costs on those who administer them and on those whose conduct they are intended to control. Time is wasted in trying to understand them”.3 Despite progress, this aspiration has yet to be fully realised. For example, a person wanting to open a small café in an existing shop can be required to obtain Suf cient parking? Tables on footpath? Food business? Licensed Premesis? four separate permissions under separate legislation. Sell and consume liquor? Restaurant/cafe license? To be aware of their legal obligations, the operator must navigate to four separate websites, discover PLANNING LOCAL LAW LIQUOR REGISTRATION and understand how to characterise their business PERMIT PERMIT LICENSE correctly for the purposes of each piece of regulation and then apply to different authorities, using different online forms or hard copy systems.

APRIL 2021 LAW INSTITUTE JOURNAL 35 features Victoria Planning Provisions

From plain English to plain methods While public interface regulations each have their tradition VPP PLANNING SCHEME and legal origins, they all essentially perform the same types of functions – to permit, regulate or prohibit an activity. Despite this

DELETE ZONES fundamental commonality, little consistency has been achieved S S AND OVERLAYS in the way different agencies execute these basic functions NOT INCLUDED in regulations. Consistency is the most powerful usability principle, “. . . when things always behave the same, users don’t have to worry SR SR about what will happen. Instead, they know what will happen based on earlier experience”.6 Similarly, for legal drafting, “never change your language unless you wish to change your meaning SF SF . . .”7 In terms of technology, it is a principle that is innate to computer programming and the paradigm of object-oriented programming (OOP), which seeks to organise code into re-usable F SS objects, reducing errors and the burden of maintaining code and DEVELOP LOCAL VISION AND minimising the need for users to understand hidden complexity. POLICIES Just as the plain English movement of the 1980s sought to S burst the mystique of legal language in public laws, “a plain methods” movement is now needed to address inconsistent S S regulatory structures and methods and unlock the potential RS RS of law as a technology. When methods of regulating people and their activities are standardised across multiple regulations, DEVELOP LOCAL it will become possible for the law to behave like and be accessed PROVISIONS RS RS like any database, allowing users to zero in on and understand RS RS their legal obligations and comply with the law, ideally through a central platform.

RR RR VPP – the Macintosh of regulation RSS RSS The inertial forces that hinder deeper regulatory design today are the same that faced the Victorian Planning System in the early 1990s and which were overcome through the development R R RSS RSS of the pioneering VPP – a regulatory product like no other and the likes of which have not been seen since. The concept of the VPP emerged in response to a state economy struggling to deal with the impacts of recession. FS FS To start the overhaul of the planning system, the Kennett government appointed an advisory committee of industry professionals (the Perrott Committee) to advise on ways to RR RR improve the system. The committee found that the complexity S S of both planning schemes and their administration meant the system had lost sight of the outcomes it was intended 8 to achieve. S F S F MAINTAIN S S LOCAL Before the internet even existed, the Perrott Committee LIST recognised the important role that electronic access would play in the usability of the planning system and that “logical and consistent formats are easier to deal with and easier to access”.9 When introduced in 1997, the VPP established a standardised having to wade through pages of complexity. End users would statewide template from which councils were required to source often not even need to access the head provision because they and construct their local planning scheme. were standard across all planning schemes, and all a user needed A key usability feature, for both administrators and end users, to do was see if a schedule implemented any local variation. was the modularity in construction and production. Amending In terms of regulation design, the modular structure of the a state standard provision only required one change to the VPP, VPP is uniquely modern and aligns with programming models which then flowed through to all planning schemes, increasing like OOP. OOP also uses modularity in the design of code to shield the efficiency of their maintenance and reducing the potential users from complexity and re-use standard code to reduce errors. STOCK ADOBE for drafting errors. For end users, this also meant that planning To think of the VPP as just a set of statutorily enforced MS schemes could be accessed on a clause by clause basis, without

36 LAW INSTITUTE JOURNAL APRIL 2021 features Victoria Planning Provisions

Word templates would be a mistake. In the same way that reforms to modernise the VPP structure, driven by new principles famous design icons like the Apple Mac were developed, at every of “digital first” and “proportionality”. These reforms have laid the level of the VPP’s interventions – from its supporting legislative foundations for the next phase of a finer grain standardisation architecture, simplified suite of zones and subject-based overlays, or micro-modularisation of planning policies and controls, which the VPP Manual and training, all the way to the use of specific will be critical to achieving digital ready schemes and charting fonts, tables and colour-coded dividers in the hard copy version a path for other regulation to follow. – there was a clear intent to improve the way people, in a holistic way, experienced the preparation, administration and use of local Aiming high – a Victorian regulatory planning schemes in Victoria. design protocol Indeed, it is perhaps not surprising to learn that the officer Looking to the immediate future, there is now a unique leading the VPP design was a self-confessed Apple fanboy who opportunity to build and pilot a Victorian Regulatory Design saw the VPP as the “operating system” for planning schemes Protocol (VRDP) for broader application to other suitable types of and was influenced by the design principles underpinning the subordinate legislation. Like the original VPP project, this exercise Mac operating system and the principles of the Apple Human should be design-led and develop legal solutions that aim for Interface Guidelines, the rules for the design of the MacOS. a contemporary end user digital experience. Many other jurisdictions were envious when Victoria entered Broader implementation of the protocol could be based on the VPP era. Importantly, as foreseen by the Perrott Committee, a similar architecture to the VPP under either the Subordinate the consistent structure of the new schemes enabled electronic Legislation Act 1994 or new legislation requiring nominated public access to all planning schemes through a centrally administered interface regulations to transition over time. The protocol should: portal almost from its inception. Not only were all planning schemes up to date and in one location, their modular structure Establish a standard set of activity classes meant that users could easily access the relevant provisions As we have seen with recent COVID-19 health directions, without needing to wade through one enormous document. targeting specific classes of activities can be critical to achieving Today, this is a function that many planners and lawyers in policy outcomes. Any integrated digital gateway must be designed Victoria undoubtedly take for granted, but it is still not possible in to be as simple as possible for users to enter and identify their many other jurisdictions. Victoria was also the first to implement activity without having to re-characterise their business across an app that gave instant smart phone access to the zoning different regulatory regimes. provisions of any lot in Victoria. The value of the VPP’s modularity was demonstrated by the Establish consistent structures and protocols for Victorian government’s recent planning response to the COVID-19 drafting approval triggers and prohibitions pandemic when Amendment VC193 implemented a single Strict drafting protocols and standard structures (such as the use provision to amend all local planning schemes to temporarily of tables) for defining the line between permitted and regulated exempt food businesses from various planning requirements. activities and prohibited activities will be critical. These will For local laws, however, there is no ability to implement a quick enable regulations to be “digital ready” and plugged straight into a standard response. central user interface, produce clearer regulations and reduce the Since its implementation, the VPP has been subject to potential for ambiguity and drafting errors.11 Making it easier for numerous wide-ranging reviews in the name of cutting red tape, users to identify their legal obligations through consistent digital strengthening local policy or simply becoming smarter.10 All these platforms will also reduce costs for administrators, particularly reviews have reaffirmed the value of the VPP concept and its councils, which devote considerable public resources to telephone legislative architecture. inquiries and staffing the public counter. Amendment VC148 recently implemented wide-ranging

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APRIL 2021 LAW INSTITUTE JOURNAL 37 features Victoria Planning Provisions

Facilitate the consolidation of multiple applications to improve A possible path to simpler, more ef cient regulation through a VRDP efficiency A common statewide digital platform would enable users to make a single SR R R application for multiple permissions. F S R RFR 94 As the cafe example illustrates, property S S 00 99 related applications require the same base level of information which could easily be submitted through one form to multiple authorities. Explore the potential to integrate R F R R multiple permissions to reduce RS RR RFR S 0 duplication S R RS A common statewide digital platform would unlock the potential to better integrate permissions relating to a single STATE STANDARD PROVISIONS business or property. There is already AND TEMPLATES significant overlap between regimes, and this can be problematic for operations like a quarry, which can be subject to I am a Café business different conditions under different Sell and consume liquor? - PLANNING PERMING permissions that regulate the same - LOCAL LAW PERMIT issue such as noise. An integrated digital Suf cient parking? - REGISTRATION Tables on footpath? - LIQUOR LICENSE platform could establish an electronic Food business? APPLY NOW? wallet that contains all the live approvals for a single property, creating greater transparency for authorities and the public, reducing the potential for overlap Andrew Natoli is a director of Equipe Lawyers and an LIV accredited specialist in environment and planning law. The author wishes to acknowledge input from Peter Allen and greatly improving administrative efficiency. and Emrys Nekvapil in the preparation of this article. Initiate a pilot for a real-world test 1. Norman D, The Design of Everyday Things (revised and expanded edition), Basic Books, 2013, at 5. Ideal candidates are state and local laws and regulations that 2. Eg, NSW Government’s Policy Lab, the New Zealand Government’ Service Innovation affect small businesses that are exposed to disproportionately Lab, and CSIRO’s Data61 all have ongoing initiatives to develop the potential for machine 12 high regulatory burdens and costs. These types of regulations readable government rules and regulations. also tend to overlap and often regulate identical matters from 3. VLRC, Report No. 9, Plain English and the law (1987), page xii. one municipality to the next. 4. Eg, platforms like Uber Eats integrate the products and services of numerous You will likely never see the VPP alongside the Apple Mac businesses to dramatically simplify the user experience of selecting and purchasing. 5. See https://www.digital.govt.nz/blog/ in the pages of a coffee table book of 20th century design icons, labplus-better-rules-for-government-discovery-report/ however, Victorians would do well to reflect on and appreciate 6. J Nielsen, “The top ten mistakes in web design” (1 January 2011) posted its legacy and the competitive advantage it has given Victorian at https://www.nngroup.com/articles/top-10-mistakes-web-design/. planning today. 7. Piesse, Elements of Drafting (10th edn, 2004) p19, cited in Butt P, Modern Legal Drafting While other states continue with (3rd edn, 2013), at 3.21. multiple one-off websites for 8. Planning Panels Victoria, Final Report New Format Planning Schemes (April 1999), p5. 9. Minister for Planning’s Projects Steering Committee, Committee Recommendation individual regulations, Victoria and Project Team Reports (August 1993), Department of Planning and Community has the experience and the Development, p28. opportunity to springboard 10. For a summary of these reviews, see Reforming the Victoria Planning Provisions, from the success of the VPP A discussion paper (October, 2017), Appendix 3. model to a next generation, 11. Numerous tribunal and court decisions highlight how very minor nuances in drafting can fully integrated digital lead to lengthy and expensive disputes that could easily have been avoided if lessons had been learned and clear drafting rules were in place, eg, see Mrocki v Bayside CC [2015] regulatory platform. ■ VCAT 1731 and Shadda Abercrombie v Salter Architects & Anor [2018] VSCA 74, which both concerned ambiguously drafted “maximum” height controls. 12. Department of Economic Development, Jobs and Resources, Small Business Regulation Review Action Statement (2018), p15. ADOBE STOCK ADOBE

38 LAW INSTITUTE JOURNAL APRIL 2021 Government Lawyers Conference 2021

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Untangling a legal knotweed

A RECENT UK DECISION AND THE COMPELLING REASONS OF THE MINORITY CALL FOR AUSTRALIAN COURTS TO REVISIT THE RULE AGAINST REFLECTIVE LOSS. BY ANTON TRICHARDT ADOBE STOCK ADOBE

40 LAW INSTITUTE JOURNAL APRIL 2021 features Commercial law

Recently, in Sevilleja v Marex Financial Ltd • not just the original scenario in respect (Marex)1 the UK Supreme Court (UKSC) of diminution in the value of shares or SNAPSHOT significantly cut back the scope of the rule that dividends, but all transactions or putative “reflective loss” cannot be recovered. In the UK, • Reflective loss is loss suffered transactions between the company and the rule against reflective loss, the so-called “no by a company, which is its shareholders11 reflective loss” principle, has now been limited inseparable from the loss • claims by individuals with an equitable suffered by shareholders, 12 to claims by shareholders whose value of their (rather than legal) interest in shares but for which only the shares or of the distributions they receive as • claims by employees or unsecured creditors company can bring a claim. shareholders, has been diminished by reason who were not shareholders.13 • The UKSC undertook some of actionable loss suffered by the company. heavy pruning to the reflective An exception to the application of the rule was Marex deals with what has been described loss rule and came close to formulated in Giles v Rhind (Giles) where it was as one of the most important and difficult uprooting it altogether. held that reflective claims could be brought in questions of law to come before the UKSC for • The rule continues to apply situations where “the wrongdoer, by the breach some time. In Johnson v Gore Wood & Co (No 1) to shareholders but, given the of duty owed to the shareholder, has actually (Johnson)2 the rule was described as being a “will nuanced reasons of some of disabled the company from pursuing such a o’ the wisp” in need of clarification. Not long ago, the judges, the rule is likely cause of action as the company had”.14 Courts a commentator likened the rule to “some ghastly to be revisited and tested. in general were reluctant to recognise further legal Japanese knotweed”, the tentacles of exceptions to the rule, and some judges have been which have spread alarmingly, which threatens keen to keep the principle under tight control.15 to distort large areas of the ordinary law of obligations.3 The UKSC has endeavoured to untangle this legal knotweed. The Marex facts Marex is an important decision not only for lawyers in the UK, Marex obtained judgments against two British Virgin Island but for all commercial and trust litigators in other common law companies owned and controlled by Mr Sevilleja. Mr Sevilleja jurisdictions, including Australia, and needs to be understood. allegedly proceeded to strip the companies of their assets, The implications for current and future damages claims in causing their insolvency. Marex issued proceedings against contract, tort, breach of trust or fiduciary duty are extensive. Mr Savilleja for economic torts, including a claim for intentionally causing it to suffer harm by unlawful means, arising from The rule and its origin Mr Sevilleja’s conduct following the handing down of an earlier Under common law, the rule has its roots in Prudential Assurance decision pursuant to which the companies were ordered to pay Co Ltd v Newman Industries Ltd (No 2) (Prudential)4 and, following Marex a significant sum due under contracts, plus interest. On an Johnson, flourished throughout common law jurisdictions.5 The application for leave to serve out of the jurisdiction, it was held exact basis of the rule and the circumstances of its application that the claims were arguable. The Court of Appeal reversed that have been controversial. However, the effect of the rule, as a decision, stating that the rule barred Marex’s claims as a creditor matter of policy, has been clear – that is, to prevent plaintiffs of the companies for loss which was reflective of the loss caused from recovering a loss they had suffered in circumstances where to the companies by Mr Sevilleja.16 The English Court of Appeal, it was considered to be merely the reflection of a loss suffered however, questioned the coherence of the law on reflective loss concurrently by another party. and invited the UKSC to put it right. The rule originated from the principle in Foss v Harbottle6 which states that, where a company has suffered a loss as the The UKSC decision result of an actionable wrong, it is prima facie the company (or The seven member UKSC allowed the appeal, albeit for different its legally appointed representative) which must sue to recover reasons. All were of the view that the rule against reflective loss that loss. Where an individual also suffers a loss simultaneously, had been expanded excessively and that the rule would cause the courts will consider whether that individual’s loss would be injustice if applied to Marex’s situation. made good if the company’s assets were replenished through a claim instituted by the company.7 If so, then the individual The majority has only suffered a reflective loss. As long as the company has The majority, (Lord Reed with whom Lady Black and Lord Lloyd- its own cause of action to recover that loss, the proper plaintiff Jones agreed)17 and Lord Hodge18 agreeing with Lord Reed is the company and the “reflective” claim by the individual is not separately, regarded the rule as laid down in Prudential as a rule permitted, even if the company ultimately decides not to bring of law deeming a shareholder’s loss by diminution in value of a proceeding to recover the loss.8 their shares or dividends to be irrecoverable where the company So, the rule was initially confined to shareholders’ claims when has a parallel claim. The majority held that Prudential laid down a diminution in value of their shares or dividends reflected a loss a “bright line” rule of company law (which is a modest extension suffered by the company concerned. Such loss was regarded of the principles set out in Salomon v A Salomon & Co Ltd [1897] as merely a reflection of the “loss” suffered by the company.9 AC 22 and Foss v Harbottle)19 and that its ambit should be confined It did not take long for the rule to be marred by uncertainties to what was decided in that decision. That is, a diminution in the and difficulties, for its scope to be extended “wider and wider”10 value of shareholding or in distributions to shareholders which is and to embrangle many other types of claims. For example, merely a result of a loss suffered by the company in consequence it was extended to cover: of a wrong done to the company is not, according to the law,

APRIL 2021 LAW INSTITUTE JOURNAL 41 features Commercial law

damage which is separate and distinct from the damage has, for example, been applied in Singapore (Townsing v Jenton suffered by the company and is therefore not recoverable. Overseas Investment Pte Ltd),23 Jersey (Freeman v Ansbacher So, after Marex, plaintiffs may institute claims against all Trustees (Jersey) Ltd),24 the Cayman Islands (Zhikun),25 Hong Kong parties who have caused them loss, unless that claim is for (Waddington Ltd v Thomas),26 Ireland (Alico Life International Ltd v loss as a shareholder and the company has its own concurrent Thema International Fund plc),27 New Zealand (Christensen v Scott),28 claim. Companies and their external administrators may still and Australia (Chen v Karandonis29 and Hodges v Waters (No 7)).30 bring claims based on the same wrongful conduct, whether Although not referred to in Marex, the rule was considered in against former officers or otherwise, but they may have to do Ontario (Locking v McCowan)31 and also enjoyed the attention of so in competition with others. The rule against reflective loss has courts in South Africa, a hybrid legal system, in Itzikowitz v Absa no further application concerning employees or creditors of the Bank32 and Hlumisa Investment Holdings (RF) Ltd v Kirkinis.33 In the company claiming for loss as such. It also has no application USA, the rule against reflective loss is similar to the “plaintiff in claims relating to loss suffered by an individual as opposed standing” rule applied by the courts when dealing with so-called to companies. Moreover, the rule does not apply to a claim “generalized claims”. 34 by a discretionary beneficiary against a trustee for breach of Marex is not an easy judgment to unravel and, although it was trust. The impact on potential shareholder class actions is yet unanimous in allowing the appeal, there are subtle differences of to be considered. However, the majority held that Giles had interpretation between the various judgments. Both the majority been incorrectly decided. Where the rule against reflective loss and the minority decisions make for interesting reading and will continues to apply there is no exception to it in cases where the no doubt elicit further debate. What is clear after Marex, however, defendant’s own wrongful conduct prevented the company from is that even though the rule against reflective loss exists in the pursuing a claim. UK, it is to be interpreted strictly.35 But, it is doubtful whether Marex has eradicated the legal Japanese knotweed that is the “no The minority reflective loss” principle in the UK. As expected there has already The minority (Lord Sales with whom Lady Hale and Lord been further litigation in this area in the UK. Recently, Marex 20 Kitchin agreed) questioned the justification for the rule has been applied in Naibu v Stewart36 and Broadcasting Investment against reflective loss and whether it should still be recognised. Group v Smith.37 The issue in the latter case, in respect of which Effectively, the minority held that there was no rule against an appeal is pending, is that since Marex made it clear that the reflective loss as a principle of the law of damages or a rule rule only applied to shareholders, it did not bar the claim of an of company law. The minority rejected the “legal fiction” that individual who was connected to the loss-suffering company a shareholder’s loss is equal to a company’s loss, because by a chain of shareholdings but who was not, in fact or in law, the shareholder’s loss may be different. A share is a piece of a shareholder. 21 property, the market value of which depends on the estimation It remains to be seen whether the pruned legal knotweed of the future business prospects of the company and not just following Marex will find fecund ground in the other common its net asset position. A recovery by the company may not law jurisdictions, or whether the rule’s eradication has already necessarily eliminate a shareholder’s loss. Instead of having begun. The narrow split between the majority and the minority a rule against reflective loss, the minority was of the view that in Marex, and the compelling reasoning of the minority, call claims should be approached on a case by case basis, using out for Australian courts to revisit the rule against reflective expert evidence on share valuation and using procedural loss. The majority decision in Marex should not necessarily devices to manage the risk of concurrent claims, and double be followed in Australia. Indeed, the observations made some recovery, by a shareholder and the company. This view of the time ago by a prominent UK silk could be equally applicable minority is to be welcomed as it appears that when faced with in Australia: “The law took a seriously wrong turn when in a shareholder claim the rule has sometimes been applied as Prudential the Court elevated what was a relatively simple a Pavlovian reaction. A shareholder ought not to be prevented everyday problem concerned with assessment of damages into from pursuing a valid personal cause of action. Imposition of a principle of causation . . . the application of the principle has the Prudential “bright line” could produce simplicity at the cost of been controversial, and has caused and is liable to cause serious working serious injustice in relation to a shareholder who, apart injustice. As was said appropriately enough in Alice Through the from the rule against reflective loss, has a good cause of action Looking Glass ‘when she thought it over afterwards it occurred and has suffered loss which is real and is different from any to her that she ought to have wondered at this, but at the time loss suffered by the company. it all seemed quite natural’ . . . it is about time our highest Lord Sales’ judgment is a strong riposte to the continued judges should also now think it over and wonder why it was existence of the rule, even in its diminished form. The minority’s ever thought to be necessary or just to have this rule at all”.38 ■ approach necessitates consideration of available procedural Anton Trichardt is a barrister at the Victorian Bar and an adjunct associate professor mechanisms, subrogation and restitution to avoid double recovery. at the University of New South Wales. Conclusion 1. [2020] UKSC 31. The UKSC unanimously allowed the appeal. 2. [2002] 2 AC 1. In the 40 years since the Prudential decision was handed down, 3. See Andrew Tettenborn, “Creditors and Reflective Loss – A Bar Too Far?” the rule against reflective loss has been applied throughout (2019) 135 Law Quarterly Review 182 at 183. STOCK ADOBE much of the common law world to a greater or lesser extent, 4. [1982] Ch 204. albeit sometimes on the basis of different reasoning.22 The rule 5. The rule also appears in a similar form in civil law jurisdictions. Eg, in The Netherlands, the rule pertains to “afgeleide schade” and dates back to the decision of the Hooge Raad

42 LAW INSTITUTE JOURNAL APRIL 2021 features Commercial law

in Poot/ABP 1995 NJ 288. See also BF Assink, “Vraagtekens rond afgeleide schade” 22. Note 1 above, at [78]. in PJ van der Korst, R Abma, and GTMJ Raaijmakers (eds), Handboek Onderneming 23. [2007] SGCA 13. en Aandeelhouder – Serie Onderneming en Recht deel 69 (Kluwer, 2012) 305; WJ 24. [2009] JLR 1. Oostwouder, “Actualiteiten ‘afgeleide schade’” (2018) 26 Onderneming en Financiering 5. 25. Note 10 above, Zhikun. In Belgium, a similar principle was recognised in the Hof van Cassatie 23 February 2012 26. [2008] HKCU 1381. (2012 TRV 3190) and by the Hof van beroep te Gent 23 October 2013 (2014 TRV 292). 27. [2016] IEHC 363. 6. (1843) 2 Hare 461. 28. [1996] 1 NZLR 273. 7. Note 2 above, at 35G. 29. [2002] NSWCA 412. 8. Note 7 above. 30. (2015) 232 FCR 97. 9. Note 4 above, at 223A. 31. 2015 ONSC 4435. 10. Zhikun v Xio GP Ltd (unreported Cayman Islands Court of Appeal, 14 November 2018) (Zhikun) 32. [2016] ZASCA 43. at [95] and [96]. See David Foxton, “Reflections on Reflective Loss” 2019LMCLQ 170. 33. [2020] ZASCA 83. Followed in De Bruyn v Steinhoff International Holdings NV [2020] 11. Note 2 above, at 66H. ZAGPJHC 145. 12. See Shaker v Al-Bedrawi [2005] Ch 350. 34. See, eg, RS Investments Limited v RSM US LLP 125 NE 3d 1206 (2019); 13. See Gardner v Parker [2004] EWCA Civ 781; International Leisure Ltd In re Manley Toys Limited (case no 16-15372, US Bankruptcy Court, DNJ). v First National Trustee Co UK Ltd [2012] EWHC 1971. 35. See David Milman, “Revisiting shareholder litigation in private companies” 14. [2002] EWCA Civ 1428 at [34]. (2020) 421 Companies News Letter 1 at 4. 15. See, eg, UCP Plc v Nectrus [2019] EWHC 3274 (Comm). 36. [2020] EWHC 2719 (Ch). 16. For the decision at first instance, see [2017] 4 WLR 105, and for the 37. [2020] EWHC 2501 (Ch). Court of Appeal decision, see [2018] EWCA Civ 1468. 38. See Alan Steinfeld QC, “In the looking glass: holding companies and reflective loss” 17. Note 1 above, at [1]-[94]. The ratio of Lord Reed’s judgment is at [79]-[89]. (2016) 22 Trusts & Trustees 277 at 285. 18. Note 1 above, at [95]-[109]. 19. Which deal respectively with the separate legal identity of a company principle and the principle that the company is the only one that can sue on a claim vested in it. 20. Note 1 above, at [110]-[213]. 21. The majority held that a share was not part of the company’s assets, as it only conferred a right of participation in the company in accordance with the company’s articles of association.

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APRIL 2021 LAW INSTITUTE JOURNAL 43 courts & parliament Judgments

HIGH COURT JUDGMENTS

divorce” dissolving the marriage (Dubai been unreasonable not to have raised it in Ruling). The Dubai Ruling went on to order that resolved proceeding at the time. The Ms Clayton to refund the advanced dowry High Court determined that the Dubai Ruling and pay Mr Bant’s legal costs. In respect did not give rise to res judicata because of the alimony and deferred dowry, the the Dubai Ruling did not, and could not, DR MICHELLE SHARPE Dubai Court considered that “this subject determine Ms Clayton’s rights under the is untimely”. Family Law Act. As for estoppel (rules 2, 3 Mr Bant subsequently sought a permanent and 4) the High Court observed at [30] that Res Judicata stay of the Family Court proceedings. At Mr Bant bore the onus of proving it. The High first instance, Mr Bant’s application was Court considered that Mr Bant failed to prove Foreign divorce dismissed. Mr Bant successfully appealed (or at [31] “did not deign to prove”) that it In Clayton v Bant [2020] HCA 44 (2 that decision and the Full Court ordered a was unreasonable for Ms Clayton to raise her December 2020) the High Court was permanent stay. Ms Clayton then appealed Family Court claims in the Dubai Court (in asked to determine whether Ms Clayton’s and the High Court unanimously overturned order to establish an Anshun estoppel). But, proceedings in the Family Court of Australia the Full Court’s decision. Keifel CJ and more fundamentally, Mr Bant failed to prove (Family Court) were precluded by a ruling Bell and Gageler JJ gave reasons for their substantial correspondence between Ms made by the Personal Status Court of Dubai decision in a joint judgment. Gordon and Clayton’s Family Court claims and any right (Dubai Court) in divorce proceedings brought Edelman JJ each delivered separate that might have been asserted by her and by Mr Bant. judgments. Edelman J observed at [65] was finally determined in the Dubai Court. Ms Clayton and Mr Bant (not their real four separate rules of finality relevantly The High Court noted at [40] and [56] that names) were married for about five years applied here. First, res judicata (Latin the only rights that Ms Clayton could have and had a child. Ms Clayton is an Australian for “a thing decided”) or the doctrine of legally put into issue in the Dubai Court was citizen and Mr Bant is a citizen of the United merger. The High Court noted at [66] that her entitlement to the deferred dowry and Arab Emirates (UAE). They were married the doctrine is not just about the finality of to her share in any real property in Dubai in a Sharia court. Marriage under Personal litigation. It describes the extinguishment (the Dubai Court having no power to alter Status Law of the UAE is a formal contract in of an independent prior right. That is, when their interests in property outside the UAE). which provision can be made for a husband the court order “replicates” the prior right As Edelman J observed at [64], the proper to pay dowry to a wife. The written contract with consequences, such as enforcement characterisation of the Dubai Ruling was that here provided for Mr Bant to pay Ms Clayton mechanisms, the prior right no longer has the only claim it resolved was the dissolution an “advanced” dowry of AED 100,000 and an independent existence, instead it has of the marriage. a “deferred” dowry of the same amount in merged with the order. Second, cause of the event of death or divorce. Mr Bant owns action or claim estoppel. If a judgment has Trespass real and personal property in the UAE and finally resolved a conflict about a cause of Admissibility of evidence many other parts of the world. Ms Clayton action then the parties will be precluded owns personal property in UAE. Both own from relitigating that cause of action. Third, In Roy v O’Neill [2020] HCA 45 (9 December real property in Australia. Ms Clayton left Mr issue estoppel. If it is necessary for the 2020) the High Court was required to Bant and returned to live in Australia with final resolution of a dispute to determine an consider whether a police officer was their child. When Ms Clayton commenced ultimate issue of fact or law then the parties trespassing on private property when he proceedings in the Family Court seeking will be precluded from denying a state of administered a breath test, the results of parenting and, later, orders for property fact or law inconsistent with that resolution. which were used in evidence against the settlement pursuant to ss74 and 79 of the Finally, Anshun estoppel (or the extended appellant (Ms Roy). Family Law Act 1975 (Cth) (Family Law Act). principle in Henderson v Henderson (1843) A Domestic Violence Order (DVO) Mr Bant commenced proceedings in the 3 Hare 100). This rule was recognised in was issued against Ms Roy out of the Dubai Court seeking a divorce. Mr Bant also Henderson and Port of Melbourne Authority Local Court of the Northern Territory of sought orders for the extinguishment of all v Anshun Pty Ltd (1981) 147 CLR 589. It is Australia. The purpose of the DVO was of Ms Clayton’s marital rights associated an extension of the second and third rules to protect Ms Roy’s partner, Mr Johnson. with the divorce in terms of alimony and the outlined above. The rule precludes a party The DVO restrained Ms Roy from being in deferred dowry. Ms Clayton was notified of from raising a cause of action or an issue the company of Mr Johnson, or at a place the Dubai proceedings but did not appear. in a new proceeding if it was so relevant where he lived, when she was consuming The Dubai Court made a ruling in which Mr to the subject matter of the previous, alcohol. Sometime after the DVO had Bant was granted an “irrevocable fault-based resolved, proceeding that it would have been issued, Constable Elliott visited Mr

44 LAW INSTITUTE JOURNAL APRIL 2021 courts & parliament Judgments

Johnson’s home. At the time, the police not authorise a police officer to enter private check. Keifel CJ at [19] also considered that in the Northern Territory were engaged in property. Section 126(2A) of the Police when Constable Elliott saw Ms Roy in an a “proactive policing” operation targeting Administration Act (NT) (Act) though does intoxicated state, he had the requisite belief domestic violence. Constable Elliott later authorise entry if the officer believes, on for the purposes of s126(2A) of the Act to gave evidence that he was concerned reasonable grounds, that a contravention has remain on the property and require Ms Roy about Mr Johnson’s welfare. Mr Johnson occurred. The trial judge found that neither to provide a breath sample under reg 6 of lived in a unit in a public housing complex. the Regulations nor the Act gave Constable the Regulations. But Keane and Edelman Constable Elliott entered the complex from Elliott power to attend Mr Johnson’s home JJ at [93] thought it unnecessary to decide the footpath and walked along one of the to check Ms Roy’s compliance with the DVO. whether the Act or Regulations applied pathways, shared by the units, to the door The decision was overturned by the Court because it was an undisputed fact that Ms of Mr Johnson’s unit. Constable Elliott of Appeal of the Northern Territory. And the Roy had voluntarily provided a sample of knocked on the flyscreen door and, looking High Court, in a 3:2 split, upheld the Appeal her breath. Bell and Gageler JJ, in dissent, in, saw Mr Johnson seated on the couch Court’s decision. in a joint judgment redolent of the film “The and Ms Roy lying on the floor. Constable Keifel CJ and Keane and Edelman JJ Castle” opined, at [31] that “In the Australian Elliott called Ms Roy to the door. As Ms (the latter two justices in a joint judgment) way of thinking, a home is a sanctuary”. Roy approached the door, she displayed considered that Constable Elliott was not a Their Honours recognised at [34] that the signs of intoxication. Constable Elliott trespasser at the time that he administered implied licence can be invoked by a police required Ms Roy to provide a breath test the breath test. Their Honours noted at officer. But their Honours considered at [40] and Ms Roy complied. The machine gave a [11] and [66] that to lawfully enter private that a police officer exceeds the limits of positive reading for alcohol and the results property permission to enter must first be that licence if the officer has any conditional were subsequently used against Ms Roy in given by the occupier. And that permission, or unconditional intention of ordering the proceedings against her for breaching the their Honours observed, can be implied. occupier to do anything. Their Honours terms of the DVO. Citing Halliday v Nevill (1984) 155 CLR 1, concluded that Constable Elliott was a At trial, evidence of the breath test result their Honours explained at [14] and [68] that trespasser because they considered that he was objected to. Constable Elliott asserted a (revocable) licence to enter will be implied intended to take a sample of Ms Roy’s breath that when he took the breath sample, he to walk on a path or driveway for the purpose when he entered onto the property and, was exercising power under reg 6 of the of lawful communication, or delivery, to as such, he had exceeded the limits of the Domestic and Family Violence Regulations any person on the property if access is implied licence. ■ (NT) (Regulations). Regulation 6 requires unobstructed and there is no notice, or Dr Michelle Sharpe is a Victorian barrister practising a defendant to comply with a reasonable other indication, that entry is prohibited. in general commercial, disciplinary and regulatory law, direction by a police officer to submit Their Honours considered that Constable ph 9225 8722, email [email protected]. The full version to a breath test. For the direction to be Elliott lawfully entered onto the private of these judgments can be found at www.austlii.edu.au. reasonable, it is not necessary for the officer premises because he used an unobstructed to suspect that the defendant has consumed pathway to access the property for the alcohol. But, importantly, the regulation does lawful purpose of carrying out a welfare

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APRIL 2021 LAW INSTITUTE JOURNAL 45 courts & parliament Judgments

FEDERAL COURT JUDGMENTS

characteristics of a standard form contract Ms Leach claimed that her former employer and happens also to satisfy the requirements discriminated against her on the ground of sex for a small business contract, would that be and engaged in sexually harassing conduct in an unfair term within the meaning of s24 of contravention of ss5, 14, 26, 28A, 28G(2) and the ACL (at [16]; see also [40]). 28L of the Sex Discrimination Act 1984 (Cth). DAN STAR QC Stewart J considered that an obstacle to She also claimed that the Commonwealth FX in advancing its argument was that courts was vicariously liable for the actions of the had on previous occasions ordered similar former Senator in accordance with s106 Consumer law and practice relief to that which was sought in this case, of the Act. Following an unfair dismissal and procedure referring to ACCC v JJ Richards & Sons Pty claim by Ms Leach, there was a Fair Work Ltd [2017] FCA 1224 and ASIC v Bendigo Commission conciliation that ultimately Unfair contract terms – summary dismissal and Adelaide Bank Ltd [2020] FCA 716 (at led to Ms Leach signing a Deed of Release application – whether finding that terms are unfair [41]-[56]). The application for summary made on 16 January 2019 (Deed), by which is possible without identifying particular contracts dismissal was dismissed. The Court held Ms Leach released the Commonwealth between identified parties it is possible under the statutory scheme from any “Claims” arising out of, or any way In Australian Competition and Consumer that the impugned terms were unfair related to her former employment settling and Commission v Fuji Xerox Australia Pty Ltd notwithstanding that no actual contracts bringing to an end the unfair dismissal claim. [2021] FCA 153 (3 March 2021) the Court between identified parties were proved (at The question arose as to whether the dismissed the interlocutory application [57]). The relief sought was not too uncertain release in the Deed barred Ms Leach’s for summary dismissal of the proceeding (at [59]-[64]). Further, the relief sought by subsequent claims against the brought by the respondent (FX). the ACCC would decide a real controversy, Commonwealth for vicarious liability for the The applicant (ACCC) sought declarations being the controversy between the ACCC discrimination and sexual harassment alleged and injunctions concerning the use by FX of (as “regulator” referred to in s250(2)(b) of against the former Senator for whom she nine different template forms of contract with the ACL) and FX with regard to whether the was previously employed. More specifically, its customers which were said by the ACCC impugned terms in the identified template the Court determined a separate question to be “small business contracts” within the contracts were unfair (at [65]). The criticisms directed to whether or not Ms Leach was meaning of s23(4) of the Australian Consumer of the relief that FX made were not being entitled to declaratory relief against the Law (ACL) (Sch 2 to the Competition and finally dealt with at this stage. Rather, Commonwealth in relation to the Deed. Consumer Act 2010) and “standard form Stewart J was not satisfied at this stage It was common ground that if Ms Leach was contracts” within the meaning of s27 of the that there is no reasonable prospect that the entitled to the declaration, then she would ACL. The ACCC’s case was that a number of relief that is sought will ultimately be granted be entitled to pursue her other substantive the terms of the template form contracts were (at [66]). claims against the Commonwealth; if she “unfair terms” within the meaning of s24 of was not entitled to the declaration (meaning the ACL. The ACCC also relied on analogous Equity and human rights the Deed was able to be enforced according to its terms), she would be prevented from provisions of the Australian Securities and Discrimination and sexual harassment allegations maintaining her claims in relation to sexual Investments Commission Act 2001 (Cth). – claim of vicarious liability of the Commonwealth harassment against the Commonwealth and FX submitted that the ACCC’s case was – whether the Commonwealth restrained from her proceeding against the Commonwealth fundamentally flawed because (other than in unconscientious reliance on legal rights based must necessarily be dismissed. an amendment to the relief in an amended on general words in Deed of Release originating application) it did not identify Ms Leach, as the moving party, bore the In Leach v Commonwealth of Australia any particular contract between FX and onus of establishing that the reliance by [2021] FCA 158 (2 March 2021) the Court any particular customer (at [16]). It argued the Commonwealth on the legal terms of considered the equitable principle in Grant that it was impossible to apply the relevant the Deed would, in all the circumstances, v John Grant & Sons Pty Ltd (1954) 91 CLR provisions to any given “contract” unless be contrary to conscience such that equity 112 by which equity will restrain a party the contract in question had been identified would intervene (at [19]; see also [23]). Lee from unconscientious reliance on legal rights (at [13]-[14]). FX submitted the Court was J found that Ms Leach did genuinely (but based on general words in a release. impermissibly being invited to give an mistakenly) believe that in signing the Deed, The applicant (Ms Leach) was employed advisory opinion on wholly abstract questions, this step would not prevent her maintaining by the second respondent, a former Senator namely whether if a term of the kind which the claims that she wished to pursue (at [41]). of the Commonwealth on behalf of the appears in FX’s template document features However Lee J explained (at [42]): “To state first respondent (the Commonwealth). in a contract which happens to have the the obvious, however, this is a necessary but

46 LAW INSTITUTE JOURNAL APRIL 2021 courts & parliament Judgments

not sufficient basis upon which Ms Leach evidence in chief by affidavit, which affidavits and correct, and as evidence in chief, seeks relief. The objective theory of contract referred to and annexed copies of earlier of that witness (at [35]-[36]). stands in command of the field: Taylor v statements. The respondents objected • There being no live issues of credit in Johnson (1983) 151 CLR 422 (at 429 per to evidence of this nature as being prior the case in respect of the applicant’s Mason ACJ, Murphy and Deane JJ). Although statements made to the applicant (category witnesses, it was difficult to see any I am prepared to accept Ms Leach was 1 evidence) and prior statements written, inherent unfairness in ruling the evidence operating under a genuine misapprehension, or purportedly written, by the deponent after admissible (at [37]-[38]). her mistake was entirely unilateral and her the relevant events (category 2 evidence). • The impugned evidence was not subjective misapprehensions as to the The objections of the respondent included inadmissible as credibility evidence within nature of the bargain she struck with the that these statements were an attempt the meaning of s101A of the Evidence Act Commonwealth, without more, are neither to bolster the credibility of the relevant 1995 (at [43]-[44]). here nor there. The inquiry relates to the state witnesses and were thereby inadmissible. • The impugned evidence was not hearsay. of knowledge of both parties concerning the The applicant submitted (inter alia) that the Collier J explained (at [45]): “To paraphrase existence, character and extent of the liability statements were not included in the affidavits Bromwich J in Australian Competition in question (as well as the actual intention of as an attempt to bolster the credibility of and Consumer Commission v Australian Ms Leach): Grant (at 129–30 per Dixon CJ, the respective witness. The witness was, in Institute of Professional Education Pty Ltd Fullagar, Kitto and Taylor JJ). Hence, the real essence, adopting the veracity of statements (No 2), the adopted written statements question for me in the present circumstances he had earlier made, as evidence in chief. and file notes were no more hearsay than is whether the misapprehensions: The Court considered various authorities they would be if the text of that adopted (a) were known to be held by Ms Leach by as to the relevance of and admissibility of material was instead simply copied into representatives of the Commonwealth; and/ prior written statements (at [11]-[31]). Having the adoption affidavit, but with the loss or (b) came about by reason of some action done so, the Court held the evidence to of the greater contemporaneity of the or conduct of the Commonwealth which which objection was taken admissible for prior written account”. ■ renders the Deed being enforced according reasons including the following: Dan Star QC is a Senior Counsel at the Victorian Bar, to its terms by the Commonwealth as being • The category 1 evidence and the category ph (03) 9225 8757 or email [email protected]. contrary to conscience”. 2 evidence was relevant under s55 of the The full version of these judgments can be found The Court found that Ms Leach fell well Evidence Act 1995 (Cth) (at [33]). at www.austlii.edu.au. Numbers in square brackets short of proving, in accordance with s140(1) • The evidence was deposed by way of refer to a paragraph number in the judgment. of the Evidence Act 1995, the factual evidence in chief of the relevant witnesses. premises on which her claim for declaratory It was not evidence subsequently relief was based (at [43]-[44]). Consequently, sought to be adduced by the applicant the Deed could be enforced in accordance as credit evidence to counter allegations of with its terms and the proceeding against invention or reconstruction, and therefore the Commonwealth was dismissed (at [47]). was distinguishable from cases such as The Nominal Defendant v Clements Evidence (1960) 104 CLR 476 and Humphries v The Queen (1987) 17 FCR 182 (at [34]). Admissibility of prior written statements • Authorities establish that s37(3) of the In Australian Building and Construction Evidence Act 1995 anticipates that a Commissioner v Albert [2021] FCA 168 previous statement of a witness (such (3 March 2021) the Court ruled on certain as those statements in categories 1 and objections to evidence in the proceeding. 2) can be adopted by the witness as true Some of the applicant’s witnesses gave

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APRIL 2021 LAW INSTITUTE JOURNAL 47 courts & parliament Judgments

FAMILY LAW JUDGMENTS

“. . . [A]side from stating that she would “It was the . . . judge’s obligation to be very distressed by such orders, no consider the relevant law and . . . take into evidence was placed before the primary account only those considerations relevant judge to assist his Honour in making an to its proper exercise. It is not relevant . . . CRAIG NICOL & assessment of the level of that distress . . . whether the . . . judge considered the parties KELEIGH ROBINSON [H]is Honour found that the mother would should reach settlement at . . . mediation seek appropriate therapy if necessary ...... at [63]). [T]hose findings were . . . open . . . on the “. . . [T]he wife sought to engage the Children . . . evidence . . .” (at [111]). jurisdiction of the court to grant injunctive relief to preserve capital . . . The court was Parental capacity not always impacted where Property obliged to apply the applicable principles to concerns held as to a child’s safety in the other that application . . . The . . . judge made a . Interim order compelling parties to pay mortgage parent’s care . . mandatory injunction which order could outgoings set aside – proximity of the parties’ In Keane & Keane [2021] FamCAFC 1 only be founded upon the power . . . under mediation irrelevant (18 January 2021) the Full Court (Alstergren s114 . . . [T]he authorities do not support any CJ, McClelland DCJ & Benjamin J) dismissed In Fei & Woong [2021] FamCAFC 2 proposition . . . that it is legitimate to impose an appeal from orders made for the care of (22 January 2021) Kent J (sitting in the an injunction for the . . . purpose of exerting a four-year-old, where McEvoy J found that appellate jurisdiction of the Family Court of . . . pressure . . . to compromise the party’s the father had committed acts of domestic Australia) allowed an appeal from an interim . . . claim” (at [66]). violence towards the mother. order made after counsel for the wife made McEvoy J ordered that the father spend an application for the husband to meet all Property supervised time with the child, which was to mortgage payments. Wife appointed co-director of corporate trustees then increase to unsupervised time. The wife relied on the husband’s income to neutralise debate as to disclosure The mother appealed, arguing that the of $12,396 per week as against the wife’s Court had misapplied “the Re Andrews income of $200 per week. Counsel for the In Hui & Bai [2021] FamCA 6 (20 January principle” (that the mother’s caregiving husband contended each party had capital. 2021) Hartnett J allowed a wife’s interim capacity would be discernibly impaired The court ordered each party to be equally application to be made co-director of by an order that the child have time with responsible for all mortgage payments, entities, of which the husband was sole the father). noting that would entail only “two to three director, which owned commercial buildings The Full Court said: mortgage payments” before mediation. in its capacity as trustee. One building was “. . . [A]uthorities applying ‘the Re The wife appealed. Kent J said (from [58]): worth $45 million, encumbered by a $17 Andrews principle’ . . . [have] been expressed “. . . [T]he . . . judge’s reasons . . . support million mortgage; the wife also being party in a variety of ways . . . (at [75]). the wife’s argument that his Honour was to a $46.5 million personal guarantee to the “Subsequent authorities . . . confirm that guided by irrelevant considerations . . . ANZ bank. it is an error to assume that, in . . . every case [H]is Honour . . . highlight[ed] each party’s The husband had been sole director where a parent is concerned about the safety financial situations in six paragraphs . . . of the companies for 13 years. The wife of a child in the other parent’s care, the court [T]hereafter . . . is the only reference sought to be made a co-director as she will infer that there is an unacceptable risk that in his Honour’s reasons which could alleged the husband had not made full and the concerned parent’s parenting capacity will be . . . a consideration of the balance frank disclosure and she contended the be adversely impacted . . . (at [80]). of convenience . . . (at [58]). husband had entered into dealings without “. . .[T]he Full Court in Marra [ed. full “. . . [H]is Honour was focused more on prior notice, which impacted on her claim. citation: Marra & Marra (Unreported, Full . . . settlement than the consideration of The Court said at [44]-[45]: Court of the Family Court, Fogarty, Baker the application on its merits. That view is “ . . . [T]he respondent would be afforded & Butler JJ, 8 September 1993)] held that fortified by his Honour’s reference to there necessary transparency if she were to be not only is it necessary for the court to only being an approximate two to three appointed as a co-director of the entities . . . determine whether a parent has a genuine mortgage payments before the mediation, the respondent will be able to have input into concern about the welfare of the child which . . . when coupled with the . . . commercial decisions made by the applicant in the care of the other parent but it is implication of his Honour’s reasons that solely, or in conjunction with (the property also necessary to determine whether the the parties ought reach settlement at . . manager) . . . that may directly impact the concerned parent’s parenting capacity . mediation, highlights his Honour’s error value to be attributed to the entities. The will be ‘discernibly impaired’ . . . (at [81]). (at [60]). Court notes that the evidence before it . . .

48 LAW INSTITUTE JOURNAL APRIL 2021 courts & parliament Judgments

is that the appointment of the respondent The mother filed an affidavit from the “. . . [T]he father has identified nine as a co-director will have no adverse impact father’s ex-wife (“Ms B”) who lived in witnesses who he would need to call, in on the credit and guarantee structure of the US. Ms B’s affidavit was 24 pages addition to this own evidence . . . [H]e has the existing facilities . . . The Respondent’s long and described a history of family foreshadowed that he may need to produce exposure as a guarantor to a significant sum violence perpetrated by the father “in quite documentary evidence from Country F . . . also makes the need for transparency meticulous detail” (at [14]). The father sought of up to 1000 pages . . . [T]he mother’s to be more pressing . . . that the affidavit be struck out and removed representative . . . had to accept that the “Full and frank disclosure is an ongoing from the court record pursuant to s135 of the mother could not constrain the father’s case obligation for each of the parties . . . Evidence Act 1995 (Cth). in response to Ms B’s affidavit . . . (at [19]). Significant disclosure has already been The Court said: “. . . [T]he admission of Ms B’s evidence provided by the applicant to the respondent “. . . [I]t was . . . submitted that Ms B’s is therefore not permitted on the basis that . . . Now that the respondent’s position is affidavit goes to the longitudinal nature of the it lacks probative value and its admission enhanced by an order which shall see her father’s propensity for family violence and would cause or result in undue waste appointed as a co-director of those of the that his violent behaviours were not confined of time” (at [31]). ■ parties’ entities . . . the debate as to what to the . . . short relationship between the Craig Nicol is an accredited family law specialist and constitutes proper disclosure, and claim that parties . .. (at [15]). editor of The Family Law Book, a looseleaf and online it has been inadequate, should no longer be “The father’s opposition to the . . . affidavit service: see www.thefamilylawbook.com.au. He is assisted an issue. In those instances where matters focused on its lack of relevance, its unfair by accredited family law specialist Keleigh Robinson. remain outstanding as between the parties, prejudice to him, as well as the inevitable References to sections of an Act in the text refer they are required to act in accordance with consequences of having to extend fairness to the Family Law Act 1975 (Cth) unless otherwise specified. The full text of these judgments can be found their ongoing obligations.” to him by presenting evidence in reply to the at www.austlii.edu.au. The numbers in square brackets evidence of Ms B . . . (at [16]). in the text refer to the paragraph numbers in the judgment. Children “. . . [T]he mother seeks to use Ms B’s affidavit to establish the father’s tendency Mother’s evidence of violence between father and towards family violence in intimate his ex-wife lacked probative value and admission relationships . . . (at [19]). would waste time “The predictive value of evidence of In England & Harrisson [2020] FamCA 1083 behaviour in . . . similar situations such as (18 December 2020) Altobelli J heard a intimate relationships allegedly characterised parenting case where the mother sought to by violence can only be useful if it is relocate from Sydney to New Zealand with incontrovertibly true that past behaviour the parties’ two-year-old child (“X”) on an is predictive of future behaviour. But that interim and final basis. is not incontrovertibly true . . . The Court’s Each parent alleged that the other had impression of Ms B’s evidence is, therefore, perpetrated controlling violence during the that its probative value is low . . . (at [20]). relationship in the presence of X.

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APRIL 2021 LAW INSTITUTE JOURNAL 49 courts & parliament Judgments

SUPREME COURT JUDGMENTS

“please transfer me money I will return u • Ms Kamal’s tumultuous marriage, the phone, or maybe I just sell it” (at [10]). and that while in Australia in an attempt In the early hours of 24 April 2019, the to improve their family’s financial Windross’ daughter passed away (at [11]). circumstances Ms Kamal (and her Ms Kamal sent her next message shortly husband) were separated from their DR MICHAEL TAYLOR after, restating her intention to sell the two young children (at [24]) telephone as well as the possibility that she • expert evidence from a neuropsychologist would erase its contents (at [12]). Ms Kamal regarding Ms Kamal’s “high loading” of Criminal law – appeal requested an update some hours later, to chaotic personality traits (being elevated – sentence – blackmail which Mr Windross replied, informing her impulsivity, mood changes, temper and that his daughter had died and pleaded suspicion) but absence of any intellectual Kamal v The Queen [2021] VSCA 27 with Ms Kamal not to erase anything disability, neurological injury or mental (25 February 2021) No S EAPCR 2020 0122 on the telephone (at [13]). illness (at [26]) This case concerns an application for leave Messages continued to be exchanged that • Ms Kamal’s guilty plea, which spared to appeal against sentence by Ms Siti Kamal, day, with Ms Kamal indicating she would the use of public resources as well as the who pleaded guilty to a single charge of return the telephone after Mr Windross need for the Windross’ testimony (at [27]) blackmail and was sentenced to three years’ deposited the amount demanded into • Ms Kamal’s deportation on completion imprisonment with a non-parole period of her bank account (at [14]). Mr Windross of her sentence, where that was not two years (at [1], [2] and [4]). sent a message promising to pay, but also considered a significant factor given her Ms Kamal, a Malaysian national resident requesting confirmation that the telephone short time in Australia and the fact that in Australia since late 2018 (at [5]), was was indeed in her possession (at [15]). her children lived in Malaysia (at [30]) arrested and charged with blackmail Ms Kamal continued to send messages • other sentencing decisions for blackmail, following the well-publicised incident demanding payment; in total, 160 messages where the circumstances of Ms Kamal’s involving the Windross family. On 20 were exchanged between the two in a offence were considered unique and April 2019, Ms Windross lost her mobile 24-hour period, 92 of which were sent should be dealt with on its own facts telephone in a bathroom at Chadstone by Ms Kamal (at [15]-[16]). Ms Kamal (at [31]). Shopping Centre (at [6]). Ms Windross’ was arrested two days later (at [17]). In the sentencing remarks, Ms Kamal’s telephone contained the only copies of Separate victim impact statements from moral culpability was considered to be of many hundreds of photographs of her Mr and Mrs Windross were considered the highest order, where her exploitation of 11-month-old daughter, who was gravely during Ms Kamal’s sentencing in the the Windross’ suffering and persistence in 1 ill from a serious neurological condition (at County Court of Victoria (at [18]-[19]). Both making demands even after being informed [7]). A public appeal was made for the return statements emphasised that Ms Kamal had that the Windross’ daughter had died was of the telephone, including by way of social “. . . knowingly, and ultimately pointlessly, “so reprehensible as to be amoral” (at [32]). media, which conveyed the importance made demands of their time and emotional Further remarks were directed towards the of recovering the photographs and included resources during the very last moments of “repellent nature” of the offending, as well Mr Windross’ personal contact details [their daughter’s] life” (at [19]). The Windross’ as the “cruelty” and “immorality” of her (at [8]). This appeal for assistance included statements also highlighted the emotional conduct (at [33]-[34]). mention of reward, the amount of which distress caused by the false claims (about On appeal, Ms Kamal relied on two was not specified (at [8]). the telephone) and false hope (that it would grounds: (i) that the sentencing judge erred Ms Kamal began messaging Mr Windross be returned), as well as that resulting from in finding that the offending, and Ms Kamal, on 23 April 2019, demanding $1000 for their distress over the threats to erase the were amoral; and (ii) that the head sentence return of the telephone (at [10]). Ms Kamal contents of the phone (at [20]-[21]). and non-parole period imposed were was never in possession of the telephone, In sentencing Ms Kamal, the sentencing manifestly excessive (at [3] and [40]). and on that day the Windross’ daughter judge had regard to: During oral argument, it was evident that was in a very serious condition (at [9]-[10]). • how the offending added to the Windross’ the two grounds were intertwined, where Mr Windross replied to the demand for anguish over their daughter (at [22]) the sentencing judge’s moral characterisation money, stating that “[m]y baby is in her last • Ms Kamal’s personal circumstances, of the offending was said to be an error that minutes . . . Can we discuss this tomorrow? including youth, lack of previous criminal overwhelmed the sentencing discretion She’s about to leave us,” with Ms Kamal’s history and her difficult adolescence, and produced a manifestly excessive subsequent messages culminating in which included an incident of being sentence (at [41]-[42]). The Court considered sexually abused at age 14 years (at [23])

50 LAW INSTITUTE JOURNAL APRIL 2021 courts & parliament Judgments

it convenient to address the two grounds messaging by Ms Kamal despite awareness As to sentencing statistics for the offence together (at [43]). that the Windross’ daughter had died (at of blackmail, the Court noted the limitations On behalf of Ms Kamal, it was submitted [55]). It was argued that the gravity of on their use, particularly for the offence of that the sentencing judge was preoccupied offending and Ms Kamal’s culpability was blackmail that may be committed in a wide with the moral character of the offending high, where the pre-existing desperation range of circumstances (at [69]). While the and had “improperly substituted a narrow and vulnerability were factors that Ms Kamal sentence was “stern” it was not outside moral enquiry for the broader enquiry was willing to exploit (at [56]-[57]). the range of sentencing options available prescribed by the s5(2)(d) of the Sentencing In the Court’s view (Ferguson CJ and given the specific features of Ms Kamal’s Act 1991 (Vic)” in which culpability is one McLeigh JA), Ms Kamal’s offending “was offending (at [69]-[70]). consideration among many (at [44]-[46]). of an unusual and striking character,” that Overall, Ms Kamal’s appeal did not have It was also submitted that primacy had “demanded denunciation as part of the sufficient prospects to warrant granting leave been given to the impact on the victims, sentencing synthesis,” and it was hardly to appeal (at [74]). ■ where the desperation and vulnerability surprising that a sentencing judge would Dr Michael Taylor is a barrister at the Victorian Bar they were experiencing was both an consider it to have objective gravity of the (email: [email protected]). The numbers in unsurprising feature of the offence of highest order (at [61]). In the absence of square brackets in the text refer to the paragraph numbers blackmail and pre-existed Ms Kamal’s any Verdins argument putting the extent of in the judgment. The full version of this judgment can be offending (at [47]-[48]). Exploitation Ms Kamal’s moral culpability at issue, she found at www.austlii.edu.au. of pre-existing vulnerability should be was to be considered fully responsible for 1. DPP v Kamal [2020] VCC 254. viewed as involving lesser (or equal) moral her conduct (at [62]). Given her responsibility, culpability to an “orthodox” blackmail case high objective gravity of the offending in which vulnerability results from the act of meant high culpability and it was therefore blackmail itself (at [48]). Further submissions understandable that the sentencing judge were directed to how the focus on moral referred to moral culpability for the offending character overwhelmed the sentencing in the same terms as the objective gravity exercise causing mitigating factors (remorse, of the offending (at [62]). contrition) to be dismissed, and that the Use of the term “amoral” by the three-year imprisonment was at the higher sentencing judge did not give rise to error; end of sentencing for the offence of in the Court’s view, “the judge was plainly blackmail (at [49]-[54]). stating that the offending was reprehensible In reply, it was submitted that the and known by [Ms Kamal] to be so” (at [63]). sentencing judge’s use of the adjective Further, the fact that the Windross’ were “amoral” was not inapt; even if were, already in a state of distress and vulnerability “use of an inapt descriptor is not an did not in any way reduce the seriousness of appealable error” (at [55]). The description offending, and Ms Kamal’s threats to sell the was consistent with the judge’s findings, telephone (or erase its contents) gave rise to particularly those concerning the persistent new vulnerability (at [65]).

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APRIL 2021 LAW INSTITUTE JOURNAL 51 courts & parliament Legislation

LEGISLATION UPDATE

New Victorian 2021 Assents New Commonwealth 2021 Regulations

As at 17/02/2021 As at 17/02/2021 2021 No. 1 Consumer and Other Acts Miscellaneous Amendments Act 2021 ASIC Supervisory Cost Recovery Levy Amendment 2021 No. 2 Public Health and Wellbeing Amendment Act 2021 (Corporate Insolvency Reforms) Regulations 2021 Australian Security Intelligence Organisation Amendment New Victorian 2021 Regulations (Permitted Disclosure) Regulations 2021 As at 17/02/2021 New Commonwealth 2021 Bills 2021 No. 1 Public Health and Wellbeing Amendment (Infringement Offences) Regulations 2021 As at 17/02/2021 2021 No. 2 Worker Screening Regulations 2021 Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2021 2021 No. 3 Residential Tenancies Regulations 2021 Education Legislation Amendment (2021 Measures No. 1) Bill 2021 2021 No. 4 Owner Drivers and Forestry Contractors Amendment Regulations 2021 Environment Protection and Biodiversity Conservation Amendment (Save the Koala) Bill 2021 2021 No. 5 Professional Engineers Registration (General, Exemption Migration Amendment (Common Sense for All Visas) Bill 2021 and Assessment Scheme Fees) Regulations 2021 Narcotic Drugs Amendment (Medicinal Cannabis) Bill 2021 2021 No. 6 Conservation, Forests and Lands (Infringement Notice) Amendment National Greenhouse and Energy Reporting Amendment (Alpine Resorts (Management) and Crown Land (Reserves)) Regulations 2021 (Transparency in Carbon Emissions Accounting) Bill 2021 Social Services and Other Legislation Amendment New Victorian 2021 Bills (Student Assistance and Other Measures) Bill 2021 ■ This summary is prepared by the LIV Library to help practitioners keep informed of recent As at 17/02/2021 changes in legislation. Planning and Environment Amendment Bill 2021 Public Health and Wellbeing Amendment (State of Emergency Extension) Bill 2021

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52 LAW INSTITUTE JOURNAL APRIL 2021 courts & parliament Practice Notes

PRACTICE NOTES

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APRIL 2021 LAW INSTITUTE JOURNAL 55 reviews Books

IN_PRINT This month’s books cover competition law in the digital economy, construction law, the experiences of witnesses and Irish crime fiction.

Competition Law for the Digital Economy Construction Claims

Björn Lundqvist and Michal S Gal (eds), Edward Elgar, 2019, hb Philip Davenport (4th edn), The Federation Press, 2020, pb $99 There is no doubt that the growth of the digital economy presents This book is a concise guide to the “back end” of construction law. many challenges for competition law including understanding how The writing style is accessible, yet the text is laden with explanations digital markets behave, how traditional competition policy tools of construction law principles and discussion of caselaw. should apply to the digital economy, the interface with data protection The text covers claims typically arising between participants in and intellectual property law and the most effective remedies for construction projects, such as for variations, time-related entitlements, restrictions on digital markets. defective works and claims surrounding termination of contract, Most chapters of this book are primarily concerned with European together with a useful section on defences to construction claims. Union competition law and none refer to Australian competition law. The author frames the text with two chapters categorising claims However, one chapter is written from a United States perspective, and remedies. While pointing out important distinctions, these and another chapter describes the Japanese government’s approach chapters compress a great deal of legal theory as well as dealing to the digital economy. with the construction context in which these theories manifest. In analysing digital markets, a key question examined by this book In that respect, a straight read through of these chapters may is how to regulate platforms. This has various dimensions, including not assist the dilettante. competition between platforms, competition within a platform The author draws on many years practising law, writing and and competition with data. engaging within the construction industry (notably as adjudicator A second theme of the book concerns how competition law should of security of payment claims) in NSW, and this is evident in the approach privacy. While protecting the right to privacy as such may be preponderance of references to the NSW security of payment beyond the scope of competition law, it is arguably another parameter legislation. To a Victorian reader, the author’s prominent placement of competition, in addition to price. This raises the problem of how of adjudication as a preferred general dispute resolution technique to measure privacy-related impacts on consumer welfare. will seem overdone, especially given the Victorian legislation’s A third topic of interest is competition at the dawn of artificial strict curtailment for the past 15 years of amenable claims. intelligence. A key question here is who should own intellectual Readers gain a vision of a possible future, with the author’s property in the inventions of computers. Arguably, under the current reasoned and emphatic views about several necessary reforms, system nobody should be granted a patent for an invention by AI, such as rolling back the operation of the prevention principle. but a new patent system with a shorter protection period may As well as being a useful “how to” guide to preparing construction be needed to incentivise invention. claims (or defences), the fourth edition of this text provides a valuable Perhaps the most useful aspects of this book for Australian discussion of current construction law issues. lawyers are the discussions of how competition law has understood Catherine Bell, KHQ Commercial Lawyers the structure of the digital economy and many of the key global competition law decisions in this field to date.

Andrew Westcott, Ashurst

56 LAW INSTITUTE JOURNAL APRIL 2021 reviews

From Moree to Mabo: The Mary Gaudron Story Pamela Burton Member: $45 Non-member: $50 A passionate advocate of human rights, Witness Mary’s working-class Snow background and the Louise Milligan, Hachette, 2020, pb $35 John Banville, Allen & Unwin, 2020, pb $30 racism she observed Milligan’s first book Cardinal: The Rise and as a child growing up You will love this book, it’s Midsummer in a country town were indelible influences Fall of George Pell won her the Walkley book Murders without blinking. Banville has on her career. award in 2017. Clearly, her investigative craft famously said of his own books, “I hate www.liv.asn.au/MaryGaudron is unimpeachable, particularly given her them all”. pedigree as a journalist, principally with the We are out in the Irish countryside, A Funny Course for a Woman ABC. And it is that craft which is on show presumably it is gloomy, and a priest is in Witness. The sheer volume of material Rosemary Balmford brutally murdered in a protestant stately which she draws together in the book Member: $27 home and everyone knew him. is exceptional. Non-member: $30 There is more to this sectarian plot Witness is said to be “a book about the Rosemary Balmford, than it looks isn’t there? Was it the doctor? experience of witnesses”. But it’s so much the first female judge The husband? The first wife, “you’ll know on the Supreme Court more than simply that. Milligan challenges the first one died in similar circumstances of Victoria, has been the systemic myths and hegemonies which to Father Tom?” . . . “I fear that staircase a solicitor, tribunal allow for and facilitate the re-traumatisation must be jinxed”. member, law teacher of victims in sexual offence matters. She and administrator, as well as a wife and We are slowly introduced to the shifty guy has a keen eye for the hypocrisy, failings mother. Her memoir tells the story of her who owns the pub down the road and the and patriarchal structures at the heart of life in Melbourne and how it became other shifty guy who used to work for him. possible for a woman to advance in the the institutions that are meant to protect At the heart of the story is young copper legal profession. the vulnerable. Her acerbic commentary Strafford, who regrets not becoming a www.liv.asn.au/BalmfordMemoir strafes across the legal profession, courts, barrister “drinking port of an evening in the various commissions of inquiry, the church; warmth of a Dublin pub all mahogany and but it also makes for a book which seems to A Judge’s Journey brass and black and white”. I didn’t have lack direction. Her moral anger never quite John Dyson the heart to tell him . . . achieves a clear target. Member: $24.30 Strafford does his best even though Milligan tends to bludgeon the reader Non-member: $27.01 there are people at the top telling him with the failures of the criminal justice In this compelling to back away. He slowly investigates system at every level, much as “table- memoir, John Dyson everyone and sure enough the snow on thumper” advocates assail witnesses. describes his life and the ground makes the game easier to track, career with disarming But, unfortunately, there isn’t the hint metaphorically speaking. candour, providing of a solution. Perhaps consequently, it is I recommend reading this on your next real insights into vital that this book finds a wide audience, ocean cruise, surrounded by wind and sky. n the challenges of judging. He also gives particularly within the institutions that she a fascinating account of his immigrant critiques. Change must come from within. Tasman Ash Fleming, barrister and mediator background. The experiences of the individuals in this www.liv.asn.au/JudgesJourney book must inform that change.

Adam V Chernok, barrister

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APRIL 2021 LAW INSTITUTE JOURNAL 57 reviews LIV Library

Employment law – pandemics – workplace risk – wills IN_REFERENCE – commercial contracts – business succession planning Clemente, Robert, Harding, Malcolm, Brett, Tom, et al, Sound Education in Victorian LIV members may borrow library material for 14 days, with a one week Law, Audio CD, Television Education Network, 2020 (ACD KB 105 C 26) renewal available unless reserved by a member. Items can be posted CD 1: 1. Spring street report 2. Law case watch 3. Casual employment post WorkPac CD 2: 1. Casual employment post WorkPac (cont.) 2. COVID-19: managing the or sent via DX free of charge. Material including the location REF is unable workplace risks in your business 3. Preparing wills and EPAs in a pandemic: is to be borrowed. Please check the library homepage at www.liv.asn.au/library close enough good enough? CD 3: 1. COVID-19: can you still enforce your commercial for library service updates during the COVID period contracts 2. Business succession planning and control issues in the wake of COVID-19 Family law – binding financial agreements Books, multimedia and seminar papers Clark, Justine, Binding the financial agreement, seminar paper, Television Education Network, 2020 (F KN 170 C 13) Advocacy Glissan, JL, QC, Advocacy in Practice (7th edn), LexisNexis Butterworths, Family law – child support – estate planning 2020 (391.3 G 1 7) Clemente, Robert, Walker-Roberts, Brett, Mansfield, Julia, et al, Sound Education in Family Law, Audio CD, Television Education Network, 2020 (ACD KN 170 C 22) Alternative dispute resolution CD 1: 1. Introduction 2. Family law report 3. Drafting and enforcing child support Adelstein, Geoffrey, Alternative dispute resolution – starting with end in mind, agreements – CD 2: 1. Estate planning for family lawyers: meeting at the crossroads seminar paper, Television Education Network, 2020 (F KN 398 A 4) Family law – family arrangements – relocation Building and construction – claims Nicholes, Sally, Relocation disputes: home is where the heart is, seminar paper, Davenport, Philip, Construction Claims (4th edn), Federation Press, 2020 (KN 83.8 D 3 4) Television Education Network, 2021 (F KN 173.8 N 1) Business – ethics Family law – parent and child – recordings McLeay, Fiona, Dolan, Michael, Business essentials – risk and the regulation: causes and Ridgway, Phillip, Secret recordings in parenting matters: when can you press play?, effects, seminar papers, Law Institute of Victoria, LIV Education, 2020 (F KN 250 M 1) seminar paper, Television Education Network, 2021 (F KN 170 R 6) Charities – not for profit organisations Family law – property settlements – contributions Sifris, Michael, Batrouney, Jennifer, Longley, Anna, Expert insights on not-for-profit Greer, Damien, After it’s all over – counting the cost of contributions in property law, seminar papers, Law Institute of Victoria, LIV Education, 2020 (F KN 215 S 1) matters, seminar paper, Television Education Network, 2020 (F KN 170 G 7) Commercial leases Family law – property settlements – financial agreements Duncan, WD, Christensen, Sharon, Commercial Leases in Australia (8th edn), Clemente, Robert, Greer, Damien, Cossalter, Amy et al, Sound Education Thomson Reuters (Professional) Australia, 2020 (KN 92.6 D 1 9) in Family Law, Audio CD, Television Education Network, 2020 (ACD KN 170 C 24) Constitutional law – executive and judicial power CD 1: 1. Family law report 2. After it’s all over – counting the cost of contributions Pyke, John, Government Powers under a Federal Constitution: Constitutional law in property matters 3. Family law case watch CD 2: 1. Binding the financial agreement in Australia (2nd edn), Thomson Reuters (Professional) Australia, 2020 (KM 31 P 1) Family law – property settlements – pandemics Corporate governance Clemente, Robert, Gittoes-Caesar, Malcolm, Kotzapavlidis, Briana, et al, Sound Education Grantham, Ross, The Law and Practice of Corporate Governance, in Family Law, Audio CD, Television Education Network, 2020 (ACD KN 170 C 23) LexisNexis Butterworths, 2020 (KN 255 G 1) CD 1: 1. Family law report 2. Adding back to the asset pool with add backs 3. Family law case watch – CD 2: 1. When three’s a crowd: the role of third parties in property Costs – ethics matters 2. Advising family law clients during a COVID-19 pandemic Dealehr, Cate, Cooper, Donna, Dolan, Michael, Costs in 2020: cases, obligations and conservations, seminar papers, Law Institute of Victoria, LIV Education, 2019 (F KN 397 D 3) Family law – property settlements – risk assessment Clemente, Robert, Feeney, Kay, Tulloch, Bronia, et al, Sound Education Deceased estates in Family Law, Audio CD, Television Education Network, 2020 (ACD KN 170 C 21) Grant, Steven, The wisdom of Solomon – how to ensure equalisation in estates, CD 1: 1. Introduction 2. Family law report 3. Carving up the asset pool in property seminar paper, Television Education Network, 2020 (F KN 125 G 1) settlement matters CD 2: 1. Family law case watch 2. Ex parte applications and Easements injunctive relief – practical precautions to protect at risk property Townsend, Matthew, Easements – key imperatives and latest developments (Victoria), International law seminar paper, Television Education Network, 2020 (F KN 65.1 T 1) Tully, Stephen R, Lawbrief: International Law, Thomson Reuters (Professional) Elder law Australia, 2019 (KN 80 T 3) Holland-Batt, Sarah, Freckelton, Ian, Beasant, Pau, et al, Recent developments Legal drafting – owners corporation – pleadings in elder law [2020], seminar papers, Law Institute of Victoria Continuing Television Education Network, Clemente, Robert, Stanfeld, Allison et al, Professional Development, 2020 (F KN 151.6 H 1) Sound Education in Victorian Law, Audio CD, 2020 (ACD KB 105 C 25) Electronic conveyancing – risk management CD 1: 1. Introduction 2. Spring Street report 3. When the music stops: drafting Bush, Melissa, Risk management essentials for electronic conveyancing (Vic), and relying upon effective termination clauses 4. Law case watch CD 2: 1. Update seminar paper, Television Education Network, 2021 (F KN 74 B 2) on changes to strata laws and owners corporations (Vic) 2. Drafting pleadings and particulars to avoid unnecessary interlocutory applications Employment law Belot, Veronica, Employment law fundamentals [2020], seminar papers, Legal drafting – warranties – indemnities – limitation of liability clauses Law Institute of Victoria, LIV Education, 2020 (F KN 192 B 2) Simpson, Nicholas, Getting the balance right: drafting warranties, indemnities and limitation of liability clauses in supply agreements, seminar paper, Employment law – casual Television Education Network, 2021 (F KN 254 S 1) Brett, Tom, Casual employment post WorkPac, seminar paper, Television Education Network, 2020 (F KN 192 B 3) Legal profession – pandemics – working practices – law office Phemister, Simon, Chin, Eric, Grovum, Graeme et al, Regional and suburban conference, seminar papers, Law Institute of Victoria Continuing Professional Development, 2020 (F KB 105 P 1)

58 LAW INSTITUTE JOURNAL APRIL 2021 reviews LIV Library

Mediation Corporate restructuring – insolvency – law reform Boulle, Laurence, Alexander, Nadja, Mediation: Skills and Brand, Seamus, Shueard, Travis, “A tale of two system - chapter techniques (3rd edn), LexisNexis Butterworths, 2020 (KN 398 B 2 3) 11 and the insolvency reforms” in Bulletin, Law Society of South LIBRARY CONTACT Australia, vol 42 no 11, December 2020, pp14-16 (ID 87130) Mutual wills DETAILS Verspaandonk, Andrew, Till death us do part: how effective are Cyber security – law firms – risk management Ph: 9607 9360/1 mutual wills?, seminar paper, Television Education Network, 2021 – insurance Fax: 9607 9359 (F KN 125 V 3) Wise, EJ, “Insurance for law firms: necessity or nicety? Email: Is this cyber thing really necessary?” in Law Letter, Pandemics – legal drafting – wills [email protected] no 140, Spring/Summer 2020, pp20-22 (ID 86855) Web: Grant, Steven, Preparing wills and EPAs in a pandemic: is close http://library.liv.asn.au enough good enough?, seminar paper, Television Education Domestic violence Network, 2020 (F KN 125 G 2) Taylor, Janet, Marshall, Julianna, “Criminalisation of coercive control” in Balance, edition 4, 2020, pp29-35 (ID 87105) Pandemics – working practices Rose, Skye, COVID-19: navigating the return to work issues, seminar Domestic violence – employee entitlements paper, Television Education Network, 2020 (F KN 198 R 6) Wilson, John, Pender, Kieran, Richardson, Rebecca, LIV LIBRARY – “Domestic violence and employer responsibilities” Wills – testamentary trusts – legal drafting in Ethos, iss 257, Spring 2020, pp20-25 (ID 87133) NEW MATERIAL Swan, Allan, Will & testamentary trust drafting masterclass, To browse recent seminar papers, Law Institute of Victoria Continuing Professional In-house counsel – exclusive dealings additions to the LIV Development, 2020 (F KN 125 S 9) Thompson, Doug, Barber, Dylan, “An introductory guide for Library, go to in-house lawyers to exclusive dealing” in Inhouse Counsel, www.liv.asn.au/ Articles vol 24 no 9-10, Jan 2021, pp119-123 (ID 87078) Learning-and- Insurance contracts and claims – damages Networking/Library/ New-Material Articles may be requested online and will be emailed Giblett, Ray, Chan, Timothy, “Hailstorm exposes cracks in policy to members. wording: Rawson Homes Pty Ltd v Allianz Australia” in Australian Insurance Law Bulletin, vol 36 no 9, January 2021, pp150-152 Annual general meetings (ID 87074) Tang, Sidney, Moradian, Daniel, “AGM season 2020: Process Mortgagees and procedure for the modern AGM” in Inhouse Counsel, EBOOKS AT THE vol 24 no 7-8, January 2021, pp107-109 (ID 87077) Godwin, Andrew, “Mortgagee’s duty to account – [cases] Rowe and Non De Plume” in Australian Law Journal, vol 95, LIV LIBRARY Artificial intelligence no 2, 2021, pp95-97 (ID 87091) The LIV library now Santow, Edward, “Accountability in the age of artificial intelligence: has remote access a right to reasons” in Australian Law Journal, vol 94, no 11, 2020, Police powers – trespass to selected eBooks. pp829-834 (ID 86842) Murphy, Julian R, “Before the High Court: police doorknocking Loans are available in comparative and constitutional perspective: Roy v O’Neill” to LIV members Artificial intelligence – copyright in Balance, edition 3, 2020, pp20-25 (ID 87108) (excluding student O’Flynn, Kellie, “Copyright protection for works generated by AI Privacy – law reporting members) for two – can the real creator please stand up?” in Internet Law Bulletin, days. For more vol 23 no 6, November 2020, pp104-106 (ID 86848) Kirby, Michael, “Privacy and law reporting” in Privacy Law Bulletin, information and a list vol 17 no 8, March 2020, pp142-143 (ID 87080) Artificial intelligence – dispute resolution of titles visit the LIV website www.liv.asn. Canny, Gabrielle “Can AI help resolve family law disputes? Sports law – athletes – transsexuality Johnston, Laura, “Transgender and intersex athletes in single-sex au/Learning-and- Computer says yes” in Bulletin, Law Society of South Australia, Networking/Library/ sports” in Journal of Law and Medicine, vol 28 no 1, 2020, vol 43 no 1, February 2021, pp18-20 (ID 87109) Research-Services or pp197-213 (ID 86850) ■ Class actions – insurance documents contact the library on Dour, Nicolas, “Pursuing and resisting inspection of insurance 9607 9360. documents in class actions: Ingram Super Fund v Ardent Leisure” in Australian Insurance Law Bulletin, vol 36 no 7-8, January 2021, pp114-118 (ID 86837) Climate change – lawyers Preston, Brian J, “Climate conscious lawyering” in Australian Law Journal, vol 95, no 1, 2021, pp51-66 (ID 86846) Competition law Tsimilas, Penelope, “A review of the recommendations of the digital platforms inquiry – Australian competition law” in Inhouse Counsel, vol 24 no 6, November 2020, pp87-90 (ID 86847) Consumer law – privilege Coorey, Adrian, “Section 155 of the Competition and Consumer Act 2010 (Cth) and the right to privilege against self-incrimination or exposure to a civil penalty” in Competition & Consumer Law News, vol 36 no 8-9, February 2021, pp81-82 (ID 87075) Copyright – sport – broadcasting Gepp, Lachlan, “Protecting the golden egg: Can Australian copyright law respond to the growing problem of live sports broadcast piracy?” in Australian Intellectual Property Journal, vol 31 no 3, 2021, pp189-215 (ID 87087)

APRIL 2021 LAW INSTITUTE JOURNAL 59 practice Ethics

THINK BEFORE YOU TWEET Lawyers who exercise their freedom of speech via tweeting secure no immunity from the professional consequences of offensive comments.

There seems little doubt that modern Australian society has, over letter to the English Faculty, where she ▼ the passage of time, in significant ways espoused greater sensitivity called for the faculty to, “decolonize its to what some may describe as “difference”. In part as a result of reading lists and incorporate postcolonial SNAPSHOT statutory enactments, we have become more attuned, many would thought alongside its existing • Society’s say, to the ills of discrimination, harassment or vilification on the basis curriculum”. Included was a suggestion espousal of of race, gender, religion and sexual orientation. for a “zero tolerance policy on the greater sensitivity The foregoing has coincided temporally with burgeoning avenues dismissal of race as a subject worthy to difference has temporally for the dissemination of a breadth of views and opinions. Prime of discussion/inquiry in essays”. coincided with among these, of course, is the internet. With little more than a tap The barrister, a strong believer in avenues to easily on a keyboard, a person can propagate his or her opinions to the the canon of Western literature and express opinions to world at large. Increasingly fractured global societies have spawned culture, was upset by the open letter. the world at large. a wide variety of opinions, not always either supported by compelling This prompted him to tweet a response • There is scope for evidence or devoid of illegitimate discrimination, harassment or in the following terms:5 “Read it. Now; tension between vilification. This democratisation to the disseminating of opinion has refuse to perform [a specified sexual these two witnessed some of its greatest impact via the medium of Twitter and act] on shrill [racist descriptor] who trajectories. its progeny. will destroy an academic reputation • Lawyers should As members of society, lawyers are hardly immune from the above it has taken aeons to build”. The Bar accordingly take trends. As to the former, it is unsurprising to find professional rules Standards Board alleged that the tweet especial care when tweeting opinions. that explicitly target the professional inappropriateness of a lawyer amounted to professional misconduct. engaging in discrimination and sexual harassment in the course The Disciplinary Panel agreed, ordering of practice.1 In line with this, the last decade or so has witnessed that the barrister be reprimanded and an increasing number of lawyers being the subject of professional fined £1000. discipline for, inter alia, behaviour involving sexual harassment2 On the barrister’s appeal, Warby J declined to interfere with the and racial slurs.3 Panel’s determination. His Lordship accepted that the barrister’s Beyond revolutionising access to legal materials and providing an language would lower the profession in the public eye in departing avenue for marketing legal services, the internet has proven a vehicle from the standards expected of the profession: the promotion for lawyers (just like other members of society) to express opinions. of equality and diversity, and the avoidance of language that is One would hope that those opinions are well grounded in the facts, “racially charged and derogatory to women”.6 The lesson for especially bearing in mind that many in society will place greater lawyers: “think before you tweet”. ■ credence in an opinion expressed by a lawyer (especially where Gino Dal Pont is Professor, Faculty of Law, University of Tasmania. it aligns with their existing views or prejudices). Nor it is surprising that lawyers should pursue the practice of 1. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) r42. 2. See, for example, [2014] VSCA 253. issuing Twitter (or the like) messages. It might be borne in mind that PLP v McGarvie 3. See, for example, Legal Profession Complaints Committee the brevity characterising Twitter posts, which satisfies a desire for v in de Braekt (2012) 80 SR (WA) 134. information in bite-size chunks, can at the same time nourish an 4. Diggins v Bar Standards Board [2020] ignorance of the bigger picture/issue. Moreover, the very ease and EWHC 467 (Admin). informality of “tweeting” can sometimes characterise its content 5. The offending language has as reactionary and not well considered or measured. (The same can been excised from this quote; be said of email communications but these do not risk immediate interested readers should # consult the case for dissemination to the world at large). the full quote. Lawyers who exercise their freedom of speech via tweeting secure 6. Note 4 above, no immunity from the professional (or legal) consequences of, say, at [89]. sexist or racist comments. This remains so even if the tweet is made in a personal capacity; after all, by reason of the status of their author, illegitimately offensive comments may cast a shadow over the profession as a whole. From a disciplinary standpoint, this recently came home to roost for an English barrister as a result of his sexist and racist response, 4 via Twitter, to another person’s tweet. The original tweet came from STOCK ADOBE a young black female student at Cambridge University as an open

60 LAW INSTITUTE JOURNAL APRIL 2021 practice Victorian law reform

CALL FOR COMMITTAL TEST TO BE ABOLISHED The VLRC’s committals report recommends improving procedures to reduce trauma for victims and witnesses.

In September 2020 the Victorian Law Reform Commission’s (VLRC) and includes court supervised ▼ report on the committals process was tabled in the Victorian case conferences. Parliament. It contains recommendations about improving committal SNAPSHOT Ensure early involvement of and other pre-trial indictable procedures to reduce trauma for victims experienced legal practitioners • The VLRC’s and witnesses, improve efficiency in the criminal justice system and committals report ensure fair trial rights. The main recommendations are outlined here. Experienced legal practitioners are calls for abolition of While the rationale for applying a committal test is sound – to usually not involved in indictable matters the committal test. provide independent scrutiny of an indictable prosecution – requiring from the outset and for the lifetime of • Data collection it in all indictable stream matters is unnecessary. As the accused is the case. Often practitioners do not should be only discharged in 1 to 2 per cent of indictable cases, applying the have authority to resolve matters at an improved about the management of test is an unnecessary burden on the court’s time. Therefore, the early stage, are not equipped to identify indictable matters. test should be abolished. To ensure the rights of the accused are and narrow the issues for trial, and do • Charging and protected in those few cases in which independent review shows the not have pre-existing familiarity with trial matters. Incentives and funding disclosure practices prosecution is unwarranted, a new procedure should be implemented require reform. allowing the defence to apply for a discharge on the basis there is no should be provided to ensure early and reasonable prospect of conviction. ongoing involvement of experienced legal practitioners. Improve data collection Reform charging practices and disclosure Reforming pre-trial indictable procedure is hindered by inadequate data. These gaps make it difficult to identify avoidable delay and its Over-charging is common in Victoria. It causes delay; impedes causes or to know how often witnesses are cross-examined before proper disposition of legitimate charges and increases the likelihood trial. Indictable matters should have a single electronic case file an accused will be refused bail; and causes distress for victims accessible by both lower and higher courts, and the lower courts when charges change or are withdrawn. Inadequate disclosure by should collect detailed data about pre-trial cross-examination. investigating agencies is another common cause of delay. It is unfair Despite the limitations in the data, it appears that delay in indictable to the accused, who is entitled to know as early as possible the matters is no worse than in other Australian states and territories, evidential basis for the charges. and Victoria compares favourably to most other jurisdictions. And late Recommendations to improve charging and disclosure include: guilty pleas are not more of a problem in Victoria than elsewhere. • the DPP having formal carriage of indictable proceedings from However, there is still room for improvement. the time of the filing hearing onwards • the DPP reviewing indictable charges earlier, and in cases Retain case management in the lower courts where there has been an ongoing investigation, providing Pre-trial case management of most indictable criminal matters binding charge instructions should remain in the lower courts. Roughly 3000 indictable cases • strengthening disclosure obligations of prosecution and informant pass through the lower courts each year. Around a third are resolved • encouraging conferencing between parties and forensic experts before reaching the higher courts, another third are committed to reduce delay in the provision of forensic reports, and providing to the County Court for sentence following a plea of guilty. This additional funding for forensic service providers demonstrates that case management in the lower courts is working. • providing charging training to Victoria Police officers It is now generally accepted that best practice case management • providing additional funding for the Office of Public Prosecutions requires the trial judge to deal with pre-trial case management. to assist it to meet the additional disclosure requirements. That has not, however, been the practice historically in Victoria for Retain cross-examination in the lower courts indictable matters. While moving all case management into the higher courts would be consistent with modern principles, doing this for The opportunity to cross-examine some victims and other witnesses County Court matters would be costly and may exacerbate delays. in the lower courts should be retained. However, reforms are necessary Matters within the exclusive jurisdiction of the Supreme Court are to reduce trauma associated with cross-examination, including: fewer – around 100 per year – and less likely to resolve in the lower • magistrates applying the test for leave to cross-examine more strictly courts. Aside from cases involving a child accused these matters and applying additional criteria in sexual or family violence cases should be filed and case managed within the Supreme Court. • encouraging more widespread use of alternative arrangements, There is scope to improve pre-trial procedure in the lower courts. such as screens or remote witness facilities, for giving evidence Other changes should be made to improve efficiency while ensuring • expanding the use of intermediaries who assist witnesses. fair trial rights and reducing trauma for victims and witnesses. The For the complete report see www.lawreform.vic.gov.au. ■ committal mention and committal hearing should be combined into This column was provided by the VLRC. For further information ph 8608 7800 a single issues hearing that can be flexibly managed by magistrates or see lawreform.vic.gov.au. ADOBE STOCK

APRIL 2021 LAW INSTITUTE JOURNAL 61 practice LPLC

MANAGING FAMILY LAW CLIENTS There are strategies for dealing with emotionally vulnerable clients.

Family law clients are invariably coping with a range of emotionally Lessons ▼ charged issues. This can sometimes lead to them being difficult There are no simple solutions to these TIPS to manage and, even if it is not so apparent, result in clients not scenarios but here are some things • Ask the client how comprehending advice they were given or not remembering the to consider. many law firms they advice later. These clients may end up blaming their lawyer for Should you take on a client when have been to before an outcome they later regret. This category of claims has been the trial date is only a few weeks away? the largest in family law in the last few years. and why they left. If faced with that question, ask the client • Consider the There are strategies for dealing with emotionally vulnerable clients, how many law firms they have been to engagement habit most important of which is to give the client both oral and written before and why they left. This may give questions: is this information and advice and allow time for the client to process the you some indication about what sort the right client, the information. Taking a matter on just before trial means you are not of client and case you may be taking right matter and the likely to have the time necessary to prepare the matter and also on. Consider the engagement habit right time for you prepare the client to accept the ultimate outcome. questions: is this the right client, the right and your firm. The last minute example matter and the right time for you and • Before you take the your firm. matter, make sure In one recent matter the client had used five law firms before the final you have resources Before you take the client and the law firm accepted the retainer just three weeks before trial. The lead available to review matter, make sure you have resources up to trial was hectic with discovery work and time spent drafting the material and do available to review the material and do trial affidavits as well as chasing the client for instructions. The client the work necessary the work necessary to understand and alleged she had made significant contributions to the purchase of the to understand and prepare the case as soon as possible. matrimonial property but did not produce any evidence to prove it. prepare the case. This will enable you to advise the client Settlement negotiations proceeded on the first day of trial after the about the prospects of success and judge indicated he was not happy with the parties’ behaviour. settlement strategies quickly, so the A proposal was reached that required the parties to sell the client has some time to readjust their expectations. matrimonial home and split the proceeds 50/50. After the barrister Confirm merits advice in writing, including analysis of risks, discussed the proposal and read through the draft consent orders the costs and cost consequences of the potential outcomes. client agreed to the proposal and the orders were made. After the Try and give the client as much time as possible to decide deal was done the client was smiling and said she was happy to have on settlement offers so their ability to think clearly and remember the matter finalised and thanked the solicitor and barrister involved. what was said is not impaired from the “fight or flight” stress The client then delayed in signing the documentation to sell the reaction. This is not always possible and if you are in a situation, property, supposedly waiting for the engrossed orders, despite such as the above example, of settlement negotiations during trial advice from the practitioner that there was no basis for the delay and consider the following strategies: that it could constitute a breach of the orders. The practitioner sent • explain to the client the offer and consequences of accepting an invoice for work done and the client asked for more details and and not accepting it, including the costs they have incurred asked the practitioner to do no more chargeable work. Shortly after or are likely to incur that the client alleged she had been coerced into signing the consent • where possible write the offer out for the client, as some people orders that she didn’t understand and that the law firm’s charges take in visual information more easily than oral information were excessive. • leave the client alone, even if only for a short time, to process Red flags the information and consider the issues This scenario has several red flags common in family law as well • ask the client to tell you what they have understood and why as general litigation claims: they have chosen their course of action • the client had been to multiple law firms • make a note of what you said to the client and what the client • there were only a few weeks before trial where significant work said to you needed to be done • if the matter settles, confirm in writing to the client the outcome • the client believed a certain fact scenario but did not have the and the client’s articulated reasons for the settlement. ■ appropriate admissible evidence to back it up resulting in the This column is provided by the Legal Practitioners’ Liability Committee. client’s expectations needing to be adjusted at the last minute For further information ph 9672 3800 or visit www.lplc.com.au. • settlement was negotiated under pressure during the trial.

62 LAW INSTITUTE JOURNAL APRIL 2021 practice Property

CHANGING OWNERS CORPORATIONS Section 173 of the Owners Corporations Act allows a range of people to apply to VCAT for the appointment of an administrator.

For an owner occupier or investor of a property affected by an owners What should an OC manager do if it can no longer effectively corporation (OC), the management of the OC is critical. A well run manage the OC due to hostile members or lack of funds to properly OC will result in common property being repaired and maintained manage the common property? Under s122 of the OC Act, a manager properly, common plant and equipment being appropriately serviced must exercise due care and diligence in performing its functions. and members getting better value for the OC fees paid. Accordingly, if a manager believes the OC is dysfunctional or possibly But what happens when OC management is not up to scratch? insolvent, it is incumbent on the manager to properly inform and advise What can members do to change the management of an OC? members of the OC of its predicament. If, for example, fees collected Conversely, what can an OC manager do if it is faced with hostile from members will not cover insurance premiums, essential safety members or finds itself in a position where the OC may be insolvent measure costs and critical repair items, the manager would need to: because members are not paying required OC fees? • properly inform members of the OC of risks members VCAT can hear and determine disputes under ss162-169 of the may be taking in using the common property Owners Corporations Act 2006 (OC Act). Accordingly, an owner • consider if it is necessary to prevent access to common or an OC manager may be able to solve a dispute by making an property. This may include closing all or parts of the building application to VCAT pursuant to these sections. in circumstances where members would not have the protection Section 173 of the OC Act allows a range of people to apply to of public liability insurance. VCAT for the appointment of an administrator. The OC itself, a lot Where there are serious problems with management of the OC, owner, a creditor of an OC or any person affected by an OC may apply. the manager may wish to consider resigning. The ability to do this will depend on its contract of appointment. If the manager can terminate Appointment of administrator by owners its agency agreement easily it would be necessary to arrange, If a member or members are disgruntled with the OC management, or at least assist, the OC with appointing a further manager or an they should first review the contract of appointment of the manager administrator to ensure it complies with its obligations to exercise and then convene a general meeting to decide if there is general due care and diligence in performance of its functions. consensus with respect to the removal of the manager. Depending An OC manager cannot apply to VCAT for the appointment on the circumstances, arrangements may then be made to terminate of an administrator. Accordingly, it appears that all a manager the appointment of the OC and appoint a new manager. can do in such circumstances is advise the members of the ability However, if this cannot be easily achieved and it is not feasible of the OC or a lot owner to apply for such an appointment. ■ to solve a dispute under ss162-169 of the OC Act, an application under s173 could be considered. Tony Greenaway is a partner at Gadens and member of the LIV Property Law Committee. Adrian Clifford is special counsel at Gadens. There is no criteria set out in the OC Act for the appointment of an administrator, however, a number of VCAT decisions have 1. Owners Corporation 1 Plan No. PS440878V & Ors v Dual Homes Victoria Pty Ltd considered what is required.1 (Owners Corporation) [2011] VCAT 211, Gleeson and Ors v Adams and Anor (Owners [2011] VCAT 2012, The Supreme Court has found that an OC must be affected Corporation) Lubransky v Owners Corporation No 1 PS519798G (Owners Corporations) [2014] VCAT 1301, Cooper v Owners Corporation PS544274B by some incapacity or be acting so dysfunctionally that services (Owners Corporations) [2018] VCAT 799 and Webb v Owners Corporation PS621796Q to lot owners are non-existent or so beset by difficulties as to render (24 February 2016 - unreported), Edwards v Owners Corporation PS628502Y (Owners the OC unable to function at a satisfactory level. A scenario where Corporations) [2018] VCAT 1232, Clark v Owners Corporation Rubicon Village PS 529035 this may occur would be where there is a deadlock between lot (Owners Corporation) [2018] VCAT 1188. owners with equal voting rights. It is a question of fact whether an owners corporation is acting so dysfunctionally or affected by incapacity to justify the appointment of an administrator. Factors that would warrant the appointment of an administrator include the extent of any building defects, essential safety measure concerns and a long and high level of mismanagement. If VCAT determines an administrator be appointed, it may set down terms and conditions of the appointment and make any other order it sees fit. The appointment of an administrator is a serious step and may result in more than the administrator merely taking over managerial responsibilities. VCAT has the power to determine that the administrator is not required to consult with lot owners with respect to how the owners corporation operates. The administrator does have an obligation, like the OC, to act honestly and in good faith

ADOBE STOCK and to exercise due care and diligence.

APRIL 2021 LAW INSTITUTE JOURNAL 63 practice Technophile

CONCORD This platform helps with drafting and managing execution of contracts and other legal documents.

and various other metadata over the entire life cycle of drafting and executing SNAPSHOT the contract. Other benefits include: What is Concord? • workflows can be created, such Concord is a contract management platform PETER MORAN as automations for contract approvals • AI reports and analytics for tracking that assists with particular types of clauses managing the full contract drafting and Which practitioners would find this technology useful? • smart fields – allows the user execution life cycle Lawyers and legal teams involved in drafting, negotiating and to compare certain fields across all contracts What type of managing execution of contracts and other legal documents. technology? • deadlines and renewal function Cloud based How does it work? – can set automated alerts. SaaS platform Existing documents are uploaded to the Concord platform or Concord has an open API to allow Vendor a document can be created within the platform or from a template. integration with other systems and Concord Worldwide, Inc The platform has a main dashboard showing recently modified already has integrations with major contracts and the number of documents at different stages, from systems such as Google Drive, Dropbox, Country of origin template, draft, review and pending to signed. There is an inbox Box, Salesforce, Docusign and more. Founded in France, where the status of every document is viewed. Documents can be Concord utilises end to end encryption headquartered in the US grouped according to matters or clients and the usability is similar meaning that only the users at either Similar tech products to Microsoft folder structures. end of the Concord link can access the Docusign for online A document is initially set for internal viewing where it can be documents, making it a far more secure execution commented on and edited. All the usual functionality of Microsoft way to transmit contracts than via email. CobbleStone for Word is available within the platform, although documents can also contract drafting Costs be uploaded directly into systems such as Word or Google Docs. Agiloft for contract drafting Every time someone edits a document it creates a new version and A free plan enables you to create, edit and Google Docs for an audit trail. Versions can be retrieved and compared. Comments securely store contracts on the platform, sharing documents can be added and Concord also has its own “chat” functionality. however to send and manage contracts Drop Box for sharing Once a draft is ready at the internal level it can be published you will need at least a Standard plan, documents to the public level. This can then allow access by clients or the with Pro providing automated approval Practice and workflows, reporting and integrations, counterparties and their advisers. Other users do not need to have Document and Enterprise level plans available with a Concord account or download software: they will simply be invited Management Systems to the platform through being added as parties. a clause library, subsidiary management for audit trail and In short, Concord provides a more sophisticated and secure version and SSO. The Standard plan starts at version control $339 per month with five users, the Pro of Drop Box or Google Drive whereby practitioners can collaborate Non-tech alternatives at $419 with five users. on drafting documents internally and across counterparty teams. Mail, handwritten When the contract has been finalised, Concord can then be used Risks mark-ups, wet ink as the electronic execution system, thereby making the use of signings of hard Cyberisk, as with any cloud offering, a separate online signing system, such as Docusign, redundant. copy documents is present as regards confidential and More information Benefits sensitive data moving beyond a firm’s www.concordnow.com Much of the audit trail and version control functionality of Concord internal systems. Australian client exists with good quality practice and document management Concord data is held in Australia in systems. However, such functionality ends as soon as the an encrypted format via AWS servers. document leaves that system (such as by being emailed to another Downsides practitioner). So, unless the system also has a remote portal that Concord potentially creates double handling if a practice management allows access to the document by non-users of the system, only half system is also being used to draft the contract. To obtain the of the drafting process takes place with the benefit of the audit trail maximum benefit of Concord, all parties to the agreement should and version control. commit to using it. ■ Concord allows all the editing of the document to take place within the one environment, thereby capturing in the one system and within Peter Moran is managing principal at Peer Legal and founder of the Steward Guide, the audit trail the entirety of all edits, comments, time of edits etc an online technology guide for lawyers (www.stewardguide.com.au).

64 LAW INSTITUTE JOURNAL APRIL 2021 practice Pro bono

DESIGNING FOR SELF-HELP Better online legal resources are aimed at the missing majority.

In 2020 Justice Connect published a comprehensive within blended legal services. The recommendations human-centred report on how people find and use legal and design principles are tailored for funders, resource LOOKING TO HELP? information online to solve common legal problems. makers and service providers in five main areas: This research – funded by the Victoria Law Foundation To find pro bono • invest in information design and user experience – was carried out remotely during the COVID-19 crisis, opportunities for • involve people with lived experience in making your firm visit www. with participants in Victoria with diverse backgrounds online resources justiceconnect.org.au/ and lived experience of trying to solve civil law • break down silos between sectors, work-with-us/, which problems without legal representation. also manages the organisations, communities and self-help The research found that for those in Australia who LIV’s pro bono Legal • establish communities of practice to support cannot afford private legal services, barriers to using Assistance Service. makers of online self-help resources online self-help resources to solve legal problems are For solicitors: talk • invest in consumer outreach, search engine more likely due to poor design than a lack of digital to your pro bono optimisation, communications and marketing. or legal capability. coordinator or the A set of design principles for online self-help resources Blended services providing well-designed in-person person responsible is also explored: and automated legal assistance are an important part of for pro bono work at • be easy to find first by those who need them, the access to justice toolkit to deliver a solution at scale your firm or visitwww. when they need them fclc.org.au/cb_pages/ for low-to-middle income earners in the missing majority. • have names that describe what they do careers_and_getting The report provides a deep understanding of the • set clear expectations _involved.php. missing majority and the types of legal problems they • be as easy to read as possible For barristers: visit face, along with insights, recommendations and design www.vicbar.com. • describe processes principles for improving online legal resources. au/public/community/ • work equally well for everyone Part One of the report introduces research participants, pro-bono-scheme. • be current and the context and approach of the research. It also sets • be quick to use out the rationale for the focus on certain priority groups • connect to other resources and services and types of legal problems. Online self-help resources are explored. • build in extra support Part Two highlights the strengths and frustrations of the • allow some people to speak to a human missing majority, and presents key insights from the research: • be designed with communities. • how people search for legal help online As more people turn to online resources and the demand for legal • what the self-help journey is like help grows, the importance of effective design of self-help tools • how different resources can help and how resources are consumed will continue to grow. • how resources could be improved The full report is available at https://justiceconnect.org.au/about/ • how help-seekers define a legal problem. digital-innovation/missing-majority-report/. ■ Part Three of the report presents recommendations and design Raquel dos Santos is manager – Service Delivery and principal lawyer at Justice Connect. principles that offer research-informed, best practice guidelines for Henry Yuan is a secondee lawyer at Justice Connect. the development and deployment of online legal self-help resources

COVID-19 Hub The one-stop source of information for the legal profession

www.liv.asn.au/COVID19 ADOBE STOCK

APRIL 2021 LAW INSTITUTE JOURNAL 65 practice Superannuation

LET’S CLOSE THE SUPER GAP Funds have a role to play in helping close the superannuation gap for women.

It’s 2021 and Australia’s gender pay gap is stuck at around 15 per super is a way to help close the super ▼ cent. Despite laws promoting better gender equality and evolving gap. For information on contributing, visit attitudes, women are still often paid less than men. The super gap is legalsuper.com.au/growing-your-super. SNAPSHOT even greater than the pay gap. According to Industry Super Australia, • The super gap Other levers to pull on average, women retire with around half as much super as men. is greater than the Working towards financial security pay gap for women. Why do women accumulate less super? for you and your family isn’t just • Women face many Structural and cultural biases, workplace barriers, and interrelated about putting away money. There are unfair barriers family, work and social factors impact women’s ability to earn and other levers you can pull to optimise which impact their therefore accrue super for retirement. Some key factors include that your super. ability to earn and 1 2 accrue super for women earn less than men, do more unpaid work, are more likely Reviewing fees, consolidating retirement. to work part-time and face return to workforce barriers.3 accounts, making an investment choice, • All superannuation Although compulsory superannuation has provided women with sorting your insurances and managing funds have a role to greater access to retirement savings, the current framework doesn’t your beneficiaries, are some options. play in helping close address some particular challenges women face in the workplace. legalsuper has a significant role to play the super gap. Some prominent examples are: in closing the super gap. Historically, legislation and policymaking has had the The $450 monthly earning threshold biggest impacts on women’s financial An employer is not required to pay super to an employee security in retirement. who earns less than $450 a month. legalsuper is a member of Women In Super, a not-for-profit No superannuation on paid parental leave organisation which advocates for a super system void of gender-based inequality, including: The government paid parental leave scheme does not attract • removal of the $450 monthly earnings threshold the superannuation guarantee. • superannuation and paid parental leave Past exclusion from superannuation • workplace gender equality is still impacting women • women on superannuation fund boards. Historically, super wasn’t available to everyone. In 1985, 24 per cent legalsuper also works with the Australian Council of of working women had super.4 It wasn’t until 1992 that compulsory Superannuation Investors to influence environmental, social, super for all was introduced. Over the years, direct and indirect and governance issues, including promoting gender diversity discrimination against women has exposed women, especially older on the boards of ASX listed companies. generations, to reduced financial security. Challenging the super gap Compounding inequality legalsuper is working to close the super gap for women Compound interest makes super a powerful tool when saving up for and increase the long-term financial security of members. life in retirement as interest is paid on both the principal and interest Contact [email protected] or 1800 060 312. ■ from past years: a bit like the snowball effect – over time you see Andrew Proebstl is chief executive of legalsuper, Australia’s industry super exponential growth. fund for the legal community. He can be contacted on ph 03 9602 0101 or via Using MoneySmart’s compound interest calculator, as an example: [email protected]. Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee If you had deposited $20,000 back in 1985, with compounding of legalsuper ABN 60 346 078 879, AFSL 246315. This is general information and does interest, the deposit would be worth $115,836 today. not consider your personal needs. Past performance is not a guide to future performance. If you had deposited $20,000 in 1992 (when super became 1. The Workplace Gender Equality Agency calculates the national gender pay gap using compulsory for all), the $20,000 would be worth $82,323. Australian Bureau of Statistics’ Full-Time Adult Average Weekly Ordinary Time Earnings For the same principal amount of $20,000, an additional seven data from the Average Weekly Earnings survey (cat. no. 6302.0). years of investment leads to a 40 per cent difference.5 2. https://aifs.gov.au/aifs-conference/fathers-and-parental-leave. 3. https://humanrights.gov.au/our-work/3-theme-one-economic-independence-women- Together with the favourable tax treatment afforded to super, listening-tour-report#heading3_5. compounding interest is one of the main reasons investing through 4. Parliament of Australia, Economic Security for Women in Retirement, Report Chapter 2. your super for retirement is so powerful, and one of many reasons 5. Calculated on 12/02/21 https://moneysmart.gov.au/budgeting/compound-interest- why the super gap is greater than the wage gap. calculator, using default assumptions – a 5 per cent annual interest rate, shown in future dollars with no adjustment for inflation. Past performance is not a guide to Contributing sooner rather than later future performance. STOCK ADOBE Compounding interest means the longer your money is invested – the more interest you make. Boosting your own or your spouse’s

66 LAW INSTITUTE JOURNAL APRIL 2021 practice According to merit?/Diversity

WORKPLACE MISCONDUCT IN THE SPOTLIGHT Preventing and responding to sexual harassment requires a holistic approach which addresses underlying structural inequalities.

Recent media attention has focused on the prevalence of Barriers to reporting must be addressed sexual harassment in the legal profession at all levels. The As a result of the many barriers to reporting sexual profound impacts of sexual harassment are well-documented, harassment in the workplace, many victims do not formally with victims’ opportunities for career advancement report their experience or seek support.5 Barriers to reporting diminished, and too many leaving the profession altogether as include fear of being seen to be overreacting, concerns about a result of their experiences. Sexual harassment perpetrated job security and fear of not being believed.6 Often, there is a by senior members of the legal profession further erodes power imbalance between the perpetrator and victim, which public confidence in the legal system, an essential component exacerbates fears of reporting.7 Further, the absence of clear 1 of effective democratic governance. policies and reporting mechanisms leave many unaware Various initiatives have recently been identified at state of where to turn for redress. and federal level to address sexual harassment in the legal In order to effectively address the issue of sexual profession. Here are some key considerations which such harassment in the legal profession, these barriers to initiatives should take into account in order to effectively reporting must be addressed. Legal workplaces must respond to this issue. cultivate environments where women feel safe to speak Sexual harassment is a systemic issue up with the knowledge and trust that they will be believed, rooted in gender discrimination the wrongdoing will be acknowledged and appropriate steps Female lawyers (solicitors and barristers) in Victoria will be taken to address the harms caused. outnumber male lawyers by 5.33 per cent,2 however women Conclusion remain underrepresented in leadership roles. A recent survey Sexual harassment is an ongoing and pervasive issue in legal of 140 law firms across Australia found women hold only workplaces. As a profession, we can and must do better. 16 per cent of equity partnership roles and only one-third of VWL’s Law Reform Committee has responded to a number non-equity partner roles.3 This power imbalance is reflective of relevant inquiries on this topic. For more information of ongoing structural inequalities in the legal profession which and to read submissions, including the recent Submission serve to privilege men and disadvantage women. to the Review of Sexual Harassment in Victorian Courts Given this context of structural inequalities, it comes and Submission for the Inquiry into the Judges Pensions as no surprise that sexual harassment is a gendered issue: Amendment (Pension Not Payable for Misconduct) 61 per cent of women in the Victorian legal profession have Bill 2020 see the Publications tab on the VWL website. ■ experienced sexual harassment in their workplace (compared to 12 per cent of men). Importantly, 90 per cent of perpetrators Claire Rapson and Dr Andrea de Silva are co-chairs of the VWL Law 4 Reform Committee. were reported to be men. To effectively address sexual harassment, initiatives must 1. Australian Law Reform Commission, “Judicial Bias and Public Confidence: recognise it as a gendered issue which is inextricably linked The Importance of Good Data” (2020). to gender discrimination. Preventing and responding to sexual 2. Victorian Legal Services Board + Commission, Annual Report 2019 (September 2019). harassment therefore requires a holistic approach which 3. Pitcher Partners, Legal firm survey (February 2019). addresses the underlying structural inequalities and resulting 4. Victorian Legal Services Board + Commissioner, Sexual Harassment in the power imbalances in the legal profession. Victorian Legal Sector: 2019 study of legal professions and legal entities. The unique features of legal workplaces 5. Katie Walsh, “Glacial pace: one third of new law firm partners are women”, Australian Financial Review (20 June 2017). Many unique features of legal workplaces present additional 6. Note 5 above. challenges to addressing sexual harassment. For example, 7. For a greater overview of the many barriers to reporting sexual harassment the relative power imbalance between judges, staff and in the workplace, see VWL’s Submission to the National Inquiry into Sexual other individuals working for and accessing Australian courts, Harassment in Australian Workplaces, available at: https://vwl.asn.au/ wp-content/uploads/2019/02/Victorian-Women-Lawyers-submission-to-the- combined with the transitory nature and adversarial formality AHRCs-inquiry-into-sexual-h....pdf. of court proceedings, can make addressing misconduct particularly difficult. The very nature of the legal profession being replete with the final arbiters of justice creates an uncomfortable paradox when harassment or any other form of injustice is being perpetrated from within. In order to successfully target sexual harassment, initiatives must adopt a bespoke approach which considers the specific characteristics and risk factors of each legal workplace. ADOBE STOCK

APRIL 2021 LAW INSTITUTE JOURNAL 67 practice Young Lawyers

THE VALUE OF GETTING INVOLVED

Getting involved in the broader legal community has more benefits than just adding to your resume.

Despite always being active in my local community, policy, government, inhouse counsel and a host of ▼ when starting university I didn’t engage as other careers, including non-practising roles. Many wholeheartedly with legal societies or associations. legal professionals are open to talking about their SNAPSHOT I missed the opportunities to contribute and enjoy the experiences and networking through associations • Volunteering can benefits that come from being involved. It wasn’t until is a great way to start those dialogues. help you determine I undertook a six-week placement with Victoria Legal the area of law you Life after university Aid in the Wimmera that I really found I enjoyed law. want to work in by eliminating areas While my extracurricular involvement outside of Once you enter the workforce the same driving forces that you don’t enjoy. the profession (such as sporting club committees to be involved continue. As legal professionals, we are in a privileged position to be able to service the • Volunteering or leadership roles at university) assisted me when expands networks, needs of our community and volunteering our time and applying for jobs, I missed some key opportunities provides valuable experience is an important part of our contribution. that only legal associations and clubs could offer. professional Getting involved and contributing, whether through It is also a great way of helping to maintain work-life experience and the LIV or law associations (both university aligned balance, gaining value from not just work but from our builds leadership and regional and suburban associations), is important extracurricular contribution as well. skills, while not only as a student but also as a career professional. In the current COVID-19 environment, committees promoting self- The collective experience of seasoned practitioners and associations have found a way to continue. growth and a sense of community is highly valued and appreciated when passed on to There is never a bad time to inquire about helping involvement. juniors in the profession. Moreover, the contribution out or becoming involved. In some cases the need • Volunteering and invested time of professionals is recognised as is even greater. One crucial area that experienced professionals provides the being an important contribution to society. opportunity can be involved in is mentoring. Mentoring can often Now that I have worked in the legal industry to showcase be a preferred option for practitioners who may not for more than four years, the one piece of advice commitment, I would offer students and practitioners alike would be able to devote their time to a more demanding values and be to get involved. commitment. It’s a more flexible option and if a interests outside workplace doesn’t have a formal mentoring program, of work/study that Why get involved as a student? lawyers can offer to become involved through an employers pay Volunteering as a student offers numerous benefits. association or informally through lunches and coffees attention to. It expands networks, provides valuable professional with junior professionals. Taking on a mentee gives experience and builds leadership skills, all of which is you the opportunity to help a young professional useful for resume building and future job applications. grow and develop. It also provides the opportunity for students to As a mentee, no matter your level of seniority, showcase commitment, values and interests outside whether you’re a student, just starting your career of studying. While university marks and grades or a number of years in it can be beneficial to have are important, employers pay close attention to an a mentor to bounce ideas off. applicant’s involvement in extracurricular activities Regardless of the stage of your career, the value to ascertain the added value they can bring to of getting involved doesn’t diminish since contributions the workplace. will always be valued and experience counted. While accruing relevant experience and developing As legal professionals and burgeoning networks, contributing to the legal community is careerists, we are in a unique position also a crucial part of being a legal professional and to be able to offer our services to those a member of the broader legal industry. Ultimately, the who need them. The value is gained true benefits afforded by becoming involved surpass not only by the recipient of your resume advancement, promoting self-growth and time and experience but also by the a sense of community involvement. broader legal community. Everyone Immersing yourself as a student in extracurricular has the ability to contribute. ■ opportunities can also be of great assistance in Alistair Sudholz is an admitted determining the area of law you want to work in by Australian lawyer practising in

eliminating areas that you don’t enjoy. A placement corporate and commercial law and STOCK ADOBE or some experience in a particular area of law can help a member of the LIV YL Editorial Committee. clarify your thoughts towards it. There are internships, placements and opportunities to be involved in

68 LAW INSTITUTE JOURNAL APRIL 2021 Craig Lynch Practice Group Leader, LIV ACCREDITED Slater & Gordon; Accredited Specialist, SPECIALISATION Personal Injury Law Is the time right to become a recognised expert in your field?

Applications for the 2021 program close Friday 14 May (special consideration Friday 30 April).

The 2021 program includes the following areas of accreditation:

• Administrative Law • Personal Injury Law • Commercial Tenancy Law • Property Law • Family Law • Tax Law

Find out more at: www.liv.asn.au/Specialisation Support when you need it

The LIV proudly supports our members, providing a trusted voice to advocate for Victorian lawyers on critical issues impacting the legal profession as well as the broader community.

To learn more about the benefits of membership visit: www.liv.asn.au/Membership

Kathleen Ng Program Manager, Child Support, Victoria Legal Aid career Admissions

NEW ADMISSIONS

The following people were admitted to practice as Australian lawyers and as officers of the Supreme Court of Victoria on 1 March 2021. The LIJ welcomes them to the legal profession.

ADAMS, Roxanne DAVIS, Georgia HOW, Jing Yun MATKOWSKY, Madeleine ALCANTARA, Janine DEL FIERRO, Arhita HRISTOVSKI, Jasmina MAYER, Katherine ALIYU, Taiwo DELANEY, Sarah HUI, Brendan MAZZONE, Michael AMAD, Thomas DEWAR, Natalie IBRAHIM, Karim MCALEAR, Kassie ANDERSON, Lauren DING, Rachel IRVINE, Hannah MCCARTHY, Maddison ANDRIANAKIS, Lee DIPACCE-CASTRO, Patricia JABBOUR, John MCDONALD, Jessica APOSTOLOPOULOS, Deanna DOBLE, William JACKMAN, Briana MCKENNA, Michael APRIM, George DODD, Matthew JACKSON, Candice MCKINNON, Dannielle ARMSTRONG, Bridget DOGER, Ahmet JAGO, Darryl MCLAUGHLAN-GRAINGER, Clare ARMSTRONG, Stephanie DOMANSKI, Michael JAKOBOVIC, Michaela MCLAUGHLIN, Toby ARSHAD, Raheel DROGUETT ARIAS, Francisco JANG, Myung Wan MCNAB, Alice ASHER, Rachael EL KASSAR, Razan JAYASEKERA, Pavithra MCNEIL, Sarah AVGERINOS, Angela ELLERAY, Melissa JONES, Megan MCRAE, Matthew BAKER, Anupama FADIDA, Toby JOSHI, Simran MEAGHER, David BALASSIS, Luke FAGIOLI, Jessica KANKANIGE, Taniya MEOUNG, Ronnie BALL, Jordan FELSTEAD, Nicholas KATERELOS, Chantal MEREDITH, Alexander BASTOUNAS, Kathryn FERNANDO, Condegamage Dilani KAUR, Jashanpreet METTES, Joshua BELYUGA, Ashley FETAHOVIC, Antarini KELLY, John MICHAELIDES, Christopher BERENGER, Clarisse FIELD-PAPUGA, William KHAN, Kevin MIHAILIDIS, Leigh BERKELEY, Emma FITZGERALD, Angela KHOURY, Celine MILNE, Nicholas BETTOSO, Isabella FOLLACCHIO, Adrian KING, Edmond MITCHELL, Harry BIGGS, Emily FOX, James KINGSMITH, Ryan MONA, John BLACK, Andrew FREI, Tatjana KIRUPAKARAN, Thevini MORGAN, Samuel BOWATER, Maia FULLERTON, Jesse KLEYN-DE VILLIERS, Lizanne MOUSTAFA, Mohammed BOWMAN, Siobhan GALLIETO, Fernando Jr KOTSIMBOS, Andreas MOUTSIAS, James BRANCATELLA, Brittany GAMBLE, Katherine KUMAR, Sanjeevene MUSAU, Evans BRASHER, Annabelle GARCIA, Danielle KUMARAGE, Sujeewa NANAYAKKARA, Nirasha BREADMORE, Rebecca GA RLEPP, Bradley KYPRAIOS, Dimitra NANAYAKKARA, Shenaia BRIEN, Aimee GARRETT, Emma LACEY, Claire NARAYAN, Prasheelta CALWELL, Fergus GEDGE, Abigail LAFACE, Rebecca NASH, Miranda CANAVAN, Jacob GIFFENING, Crystal LAGERBERG, Corinna NEBYL, Josef CARMEL, Jane GILFILLAN, James LAWSON, Cassidy NGUYEN, Bich Huyen CAULFIELD, Lauren GIOUTLOU, Eleni LE, Helen NGUYEN, Michelle CHAWLA, Tarang GODDARD, Lachlan LEE, Suzanne NICHOLSON, Robert CHENG, Daniel GORMAN, Christian LIN, Tanya NIELSON, Claire CHENG, Lok Him Milton GOUTNIK, Elizabeth LING, Brenda NISSANKA, Godakande CHESSON, Kaylah GRIFFIN, Isabella LING, Liing Siew NUGENT, Aidan CHOKLJAT, Katrina GRONER, Chananya LIPHUYZEN, Chantelle O’BYRNE-INGLIS, Seamus CIPOLLONE, Rita GULATI, Preety LIU, Yunyi O’CONNOR, Laura CLAPP, Emily GUYMER, Sarah LOVEL, Frances O’FARRELL, Bernadette CLARE, Mark HALL, Benjamin LU, Xiaofei ONG, Hoay Ling COHEN, Loris HAMOND, Fatima LUCAS, Nadia OPPEDISANO, Ilana CONSIDINE, Eliza HARDING, Rowena LUFF, Jessica OWEN, Georgina COWMAN, Kate HARRISON, Hamish MACFARLANE, Lachlan OZER, Dilara CRAGGILL-HAREN, Tayla HAWKINS, Justin MAHON, Lachlan PASTORE, Courtney CRISPINO, Deanna HE, Tingting MALE, Emily PATEL, Chirag CRUZ, Prima Rhoda HEARN, Madeleine MANN, Anthony PAULL, Cameron CUCE, Remi-Victoria HIGGINS, Lucy MANNING, Clare PAVLIDIS, Michael CURMI-BLACKWELL, Simone HO, Su Yee Lynn MARAGOUDAKIS, Elyssa PENDLEBURY, Annabelle DANG, Dinh HOBSON, Shjanie MASRI, Asmaa PERERA, Elvitigalage DAVIDSON, Emma HONG, Marphy Wong Kiat MATHUR, Arpan PHAN, Adriana

APRIL 2021 LAW INSTITUTE JOURNAL 71 career Admissions

PILLAI, Deepak SCHNEIDER, Craig SYRJANEN, Jessika WATSON, Charlotte PLUNKETT, James SEAMER, Jayden TABALUJAN, Timothy WEST, Helena PRESSER, Aishwarya SEKERCIOGLU, Elif TAMIR, Joshua WESTON, Tahnee PRITCHARD, Julia SELVARATNAM, Dhishani TAYLOR, Joanna WILSON, Millie RAMCHANDANI, Simran SHAPERO, Daniel TECKCHANDANI, Kapil WILSON, Stephanie RAMSURRUN, Manika SHARP, Hannah TERCAN, Sumeyye WISCHMANN, Kali RAYMOND, Matthew SHEDDEN, Hannah THIELKE, Adele WOLFF, Jonathan RAZEEN, Fathima SILLER, Nicole THOMAS, Fiona WONG, Matthew Yin Fung RICE, Ebony SIMU, Octavian TIGEL, Arielle WONG, Michael Tsz Ho ROBBINS, Jeffrey SINDHU, Karan TONG, Wing Na WONG, Shi Jing ROBERTSON, Oliver SINGH, Supriya TONKIN, Alexander WU, Enmmy ROCHFORD, Dylan SINGH, Vernon TRAN, Julie YAMADA, Kenji RODGERS, Niamh SINNI, Peter TRINH, Genevieve YEW, Jamie ROMAS, Jesse SKAF, Charles TSARTAS, Nicholas YIGIT, Seher ROSAL, Michelle SMITH, Patrick TSIODRAS, Jesse YOUNG, Emily ROSENBERG, Esther SNIBSON, Eleanor TURNER, Petrea YOUSIF, Bianca ROSKOSCH, Holly SONERSON, Nikola UPADHYAYA, Mihika YU, Leslie ROSS, Magnus SPIRANOVIC, Danielle VANDERMEIDE, James YU, Michelle SACCASAN, Gemma STAVREVSKI, Stephanie VENKATRAMAN, Krithika ZAHRA, William SACHDEVA, Shawn STEELE, Georgia VENTURA, Olympia ZEPACKIC, Alana SAFARI, Rambod STOCCO, Julia VIRGONA, Natalie ZHAO, Hui SALT, Morgan STONES, Damien VOSS, Nicola ZIZOVIC, Marko SANTA MARIA, Sonja SUHADOLNIK, Nastasja WALSH, Thomas ZOLIS, Laura SCHMID, Mariana SUTTON, Paul WALSH, Wayne ZONG, James

LIV Legal Forms & Precedents

LIV copyright precedents, contracts and forms for a range of practice areas. Find commercial contracts, property forms, leases, powers of attorney and more. Formats available: Hard copy at Law Books, word format through Lawsoft and online through elawforms. www.liv.asn.au/LawBooks | www.elawforms.com.au | www.lawsoft.com.au elawforms ONLINE LEGAL PUBLISHING

72 LAW INSTITUTE JOURNAL APRIL 2021 liv Member update

MEMBER OUTREACH PROGRAM LIV GOVERNANCE PRESIDENT Tania Wolff PRESIDENT-ELECT Member support and contact are the delivery of support to members Brendan Lacota priorities for the LIV and a new program and the broader profession. VICE-PRESIDENT is facilitating those dual goals. The COVID-19 Hub, the one-stop shop Molina Asthana The Member Outreach Program for all related information from the LIV and 5TH EXECUTIVE MEMBER involves checking in with members the courts, is highlighted, as is LawNews Tom Ballantyne and asking how they are coping with and the LIJ (with a reminder of the the impacts of COVID-19 and the return ongoing opt-in for print option available). LIV COUNCIL MEMBERS Rebecca Alexander Rebecca Johnston-Ryan to a more normal working environment. Research opportunities via expanded Caitlin Baker Rodd Levy The disruption caused by the pandemic resources available through the LIV Elly Blizzard Tom May significantly impacted the professional library, including increased remote access Caroline Counsel John McPherson and personal lives of many members, to content, expanded CPD options and Rachel Cox John Toohey and having one-on-one conversations with LIV advocacy efforts with a broad range Lauren Crome Stuart Webb members is a way for the LIV to learn how of submissions on behalf of members and Majella Foster-Jones Kathy Wilson they are managing, while at the same time the profession during these unprecedented showing support, particularly for those times also feature in the discussion. LAW ASSOCIATION PRESIDENTS isolated by practice size or location. Calls As well as receiving key updates from Ballarat & District Law Association also ensure all members are aware of the across the business, members are invited Toby Permezel 5329 1208 services and supports available to them. to give feedback and to freely discuss their Bendigo Law Association “This initiative allows the LIV to use of, and views about, LIV services. Juliana Smith 5444 1181 build a deeper understanding of Any matters requiring escalation are Eastern Solicitors Law Association Inc issues confronting members and their sent directly to the responsible manager, Zubair Mian 9888 5885 practices,” LIV CEO Adam Awty says. enabling a quick and targeted response. Geelong Law Association “In turn, that allows the LIV to align Key themes Aaron Jolly 5222 2077 services and support to better meet • Many members want to continue to Gippsland Law Association members’ needs, and to respond in a receive the LIJ in print and appreciate Nicola Gilford 5174 6311 more timely manner to new challenges. LawNews and COVID-19 Hub updates Goulburn Valley Law Association We are learning what members want and • Business, which dropped off in 2020, Charles Hart 5820 0200 need from their professional body in the is returning to normal, albeit slowly Mornington Peninsula Lawyers Association John Oswald-Jacobs 9225 7333 pandemic environment. • Appreciation for the phone call and North East Law Association “So we are more confident that hope the proactivity continues Amanda Toner 5752 1493 what we are delivering is what members • Validation of the LIV decision to reduce actually want. We’re closer to members North West Suburbs Lawyers’ Association member fees for 2020-21 David Gonzalez 9379 7306 and therefore able to concentrate • Appreciation for online CPD content North West Victorian Law Association on delivering tangible value.” accessed from anywhere, representing Ryan Maddox 5021 6200 To date, the LIV has contacted more value and equity across the membership Northern Suburbs Law Association than 1100 members who are sole • Support for LIV actions and advocacy Antonella Terranova 9432 0266 practitioners or working in small firms in on behalf of the membership and Southern Solicitors Law Association metropolitan, suburban and regional areas, profession during the pandemic. Celina Roth 9592 7744 with more than 500 connections made. An Member feedback Western District Law Association Inc email follows all calls summarising key LIV “The COVID-19 Hub has been a godsend. Jessica Dowdy 5572 1600 services, support and relevant contacts. The LIV has been a constant support Western Suburbs Law Association In the calls, members are made aware throughout the pandemic.” Danielle Leo 9334 6803 of the broad range of services available to “The regular news updates on COVID-19 Wimmera Law Association them, including ethics guidance, practice Patrick Smith 5381 2222 have been invaluable. The online courses support, practice management and trust and seminars – excellent. Keep them.” To find out more about LIV governance and representation consulting, the new member support or to contact LIV Council members see www.liv.asn.au “The regular updates are very helpful. or phone the secretary to the Council on 9607 9513 panel for employment law, infection If they could be more targeted to sole or email [email protected]. control and cashflow management, practitioners that would be great.” ABOUT THE LIV: The LIV represents about 19,000 lawyers and people all complimentary. working in the law in Victoria, interstate and overseas. Our members offer their “Very impressed with the LIV commitment, diversity and expertise to help shape the laws of Victoria and to Mental health and wellbeing services ensure a strong legal profession for the future. The LIV promotes justice for reaching out.” all advancing social and public welfare in the operation of the courts and legal are also talked about on the calls including Results of the calls, which are ongoing, system as well as advancing education and public confidence both in the legal the LIV’s employee assistance program, profession and in the processes by which the law is made and administered. are reported fortnightly to the senior As the peak body for the Victorian legal profession, the LIV initiates programs events, published resources and the to support the needs of a changing profession, promotes an active law reform leadership team to inform decision advocacy agenda, responds publicly to issues affecting the profession and appointment of a wellbeing manager broader community, delivers continuing legal education programs, and continues making and allocation of resources. ■ who will develop strategies and lead to provide expert services and resources to support our members.

APRIL 2021 LAW INSTITUTE JOURNAL 73 liv Council

LIV UPDATE

LIV Council member Elly Blizzard gave her introductory speech at the February Council meeting. This is an edited version.

I am excited to be starting my official duties on external products for our clients, automating simple the LIV Council and I would like to thank members but repetitive internal processes and developing for their support. knowledge-sharing databases. The learning curve The legal market is in the midst of a has been steep, but it has been energising to transformation. My experience in the insurance collaborate with interdisciplinary teams to improve sector is that technologies such as artificial the client experience and let lawyers devote more intelligence are threatening to disrupt our clients’ time to high-value work. markets and, in turn, are challenging the traditional I feel privileged to be embarking on this important claims process and legal service models. There is role on the LIV Council tonight. also huge growth in new areas of law such as data In my role as an LIV Council member, I will bring protection and a greater push from lawyers for knowledge of legal technology products that can be genuine workplace flexibility and disposing of the leveraged to improve the member experience, the billable hour. Once you throw in the wide-reaching ability to identify and highlight these opportunities, impacts of a pandemic – it is apparent that the only and practical insights from my experience developing constant is change. and piloting certain tools. The LIV Council needs to be proactive in steering In my role on Council, I will advocate for our members through this particularly tumultuous improvements to the current e-learning offering time and setting them up for success in a changing with a focus on tailoring content to members’ varying legal market. levels of experience and re-evaluating the current I believe two key strengths, which have led me pricing models and inclusions. here today and which will continue to serve me in In my role as an LIV Council member, I will bring my role as an LIV Council member, are my love for the voice and perspective of a young lawyer who learning and a desire to continually improve. has recently navigated the large knowledge gap In my pursuit of learning, I have spent eight between theory and practice, and who is currently years at university completing degrees in science, navigating managing work and caring responsibilities nursing and law. Unfortunately, on the first day of my of a one-year-old daughter. Entry to the profession graduate nursing year, I quickly realised that a career and return to the workforce after parental leave are in nursing was not for me. I scrambled to work out two key transition periods experienced by members where my strengths and weaknesses lay, and by across the state that are ripe for structured education the completion of my graduate nursing year, I was and member support. enrolled to commence the Juris Doctor at Melbourne I will bring the perspective and feedback of Law School. a lawyer practising at a large law firm, to assist Since admission to the profession, I have been Council to increase this sub-group’s awareness developing my practice in health and medical law, of LIV membership benefits to ensure retention representing hospitals and health practitioners, of memberships. which has had a happy intersection with my science In my role as an LIV Council member, I will and nursing background. continue to ask “why?”, commit to high governance During my day-to-day practice, I began to standards and support Council to constantly revisit experience some of the inefficiencies involved our role as custodian for the LIV, keeping the best with civil litigation in Victoria and the associated interests of members at the centre of every decision. administrative burden on lawyers, which diverted I believe “the whole is greater than the sum of its time and energy from high-value work. I increasingly parts”. I am excited to contribute my part to the LIV questioned why we worked a certain way and would Council and contribute to steering the LIV forward suggest alternatives. By following this sense of so that it is best placed to educate and support our curiosity, I discovered the world of legal innovation current and future members. ■ – an area that is driven by learning and continuous improvement. I have been fortunate to be part of a firm that values and prioritises innovation, and I have been part of several projects through our iHub working with legal technology providers – developing

74 LAW INSTITUTE JOURNAL APRIL 2021 For more information and to register, go online at www.liv.asn.au/CPD-Networking, call 9607 9473 or email [email protected]. All events held online via Zoom unless otherwise stated.

CONFERENCES & MASTERCLASSES COURSES REGIONAL & SUBURBAN SERIES Government Lawyers Conference LIV Practice Management Course Victorian Legal Aid & Your Practice Friday 18 June, 9am–5pm 5, 12 & 19 May, 9am–5pm Monday 26 April, 4–5pm (6 CPD Hours) (21 CPD Hours) (1 CPD Hour)

WORKSHOPS & SEMINARS LIV Practice Management Course 2, 9 & 16 June, 9am–5pm Succession & Practice Continuity Planning New Dispute Resolution Events in the (21 CPD Hours) for Legal Practices Family Court of Australia & the Federal Monday 31 May, 4–5pm Circuit Court of Australia: What every YOUNG LAWYERS EVENTS (1 CPD Hour) practitioner needs to know Tuesday 20 April, 5–6pm Getting on Top of Your Assignments (1 CPD Hour) & Examinations (Part 1) Thursday 8 April, 6–7.30pm

The Vital Voice – Unpacking the Uluru Statement from the Heart Getting on Top of Your Assignments Wed 28 April, 12–1pm & Examinations (Part 2) (1 CPD Hour) Thursday 22 April, 6–7.30pm

Not-For-Profit Law: Tips and traps Financial Literacy: What is it, for commercial lawyers and why is it so important? Tuesday 18 May, 12–2pm Thursday 6 May, 6–7.30pm (2 CPD Hours) (1.5 CPD Hours)

My Practice by Design (2 parts) How Did You Get That Job? Wed 26 May & Wed 2 June, 9.30am–12.30pm Thursday 13 May, 6–7.30pm (6 CPD Hours)

Bookkeepers Trust Recording Workshop Thursday 27 May, 9am–12.15pm (3 CPD Hours)

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LETTERS OF THE LAW NO. 235

Solution next edition Compiled by Aver

ACROSS DOWN 1 Restrict a town's ability 1 Jams made from cereal, most oddly (5) to do something (8) 2 Norm has charge withdrawn (3) 5 Herb in perfect condition (4) 3 Responsibility halved following 8 Green team negotiated deal (9) incomplete belief in trustworthiness (11) 10 Tribe's odd characters unite (3) 4 Senate overturn the Europe push (3,5,5) 11 Olympic city provided Greek letter (5) 6 One after trendy canvas with 13 Hospital's clients losing independence concerning purpose (9) and privileges (7) 7 Disloyalty in the face of tradition 14 Motive of prisoners with identification and common sense (7) Solution to Letters of the Law No.234 and ecstasy to share (13) 9 Messing up great leap: it may result A F F R A Y M U R D E R 15 Unfashionable north-eastern food in this? (11) S A U F N E H around central Elsternwick (7) 12 8ac, 14ac, 6dn, 14dn, 1ac and 22ac are S A T I N R O B B E R Y A C T E I M M 16 Dubliners conceal boat (5) all necessary for these to be binding (9) U F O S B I G A P P L E 18 Periodically hectic, and so on ... (3) 14 Prisoner granted green light (7) L N B G S H 17 Out of practice, head of transactions 19 Before start of show, Angus or Malcolm T A T O C H R E A L B quits firm (5) rev up energetic youths (5,4) R G T D S A 21 Trial starts on Tuesday, each side tense (4) 20 Institution of marriage not working (3) V I O L E N C E R I O T 22 Lawfulness of yelling at suspect A L Y A E S T clearing name (8) P O L Y M E R W R I T E I E A S E N R D A R I N G G R O G G Y

82 LAW INSTITUTE JOURNAL APRIL 2021 living law INSIDE STORIES | FOOD/WINE/COFFEE | WITH ALL DUE RESPECT | HEALTH AND WELLBEING | BEYOND THE LAW

LAWYERS TAKE ACTION ON CLIMATE CHANGE

LAW FIRMS HAVE JOINED WITH MONASH CLIMATE JUSTICE CLINIC TO BUILD PRACTICAL SKILLS FOR STUDENTS KEEN TO ADDRESS AN URGENT NEED. BY KARIN DERKLEY Positive about prospective legal remedies: Law student Rashini Perera

Monash law students are learning they can have an impact Kellehers’ Hubert Algie is the program’s principal supervisor on governments and other authorities to act on climate change, while Russell Kennedy lawyers, including Ms Dunlevie, alternate although they are also finding out that advocating for such action as the second supervisor. The program is about building new needs patience and determination. ideas to address climate change, says Mr Algie. “We can help Rashini Perera is one of many who have participated in the organisations that are otherwise limited in their resources to Climate Justice Clinic since it started in 2019. The clinic is one flesh out a potential course of action or a litigation idea, and test of several that Monash Law School offers students, and aims whether it’s worth doing and how it might look.” to build practical skills and a theoretical grounding in using the Now in her final year of a double degree in law and biomedical law to reduce the impact of climate change. science, Ms Perera says the clinic gave her an insight into the Associate Dean and Professor of Law Jeff Giddings, who kinds of legal tools and initiatives that can be used to address oversees the clinic, says it has been one of the more popular climate change. offerings to law students. “Demand for this clinic has been “I learned so much and I came away feeling more optimistic really strong.” about the prospective legal remedies when it comes to climate The program has been running since second semester 2019, justice. It was great to see all the things people are doing to bring including via Zoom during the COVID-19 lockdown period. It about change in this area.” runs one day a week over a semester, with three project teams Among them are the recent case in which Dutch environmental of three students each assigned a project and a client. group, the Urgenda Foundation, along with 900 Dutch citizens, Russell Kennedy’s principal Emma Dunlevie worked with won a case that determines that the Dutch government has a Monash University Law School Professor Adrian Evans to duty to take climate change mitigation measures. kickstart the program along with Environmental Justice Student Laura Stirling says she was motivated to participate Australia and other lawyers. in the clinic by her lack of knowledge about environmental law and an interest in how the law can be used as a tool for change,

APRIL 2021 LAW INSTITUTE JOURNAL 83 living law Inside stories

"I learned so much and I came away or declarations of obligation from those most responsible for contribution and inaction in this space. feeling more optimistic about the Among the skills students need to acquire to bring prospective legal remedies when such actions is creativity, says Mr Algie. “Particularly in Australia, we have a very conservative approach to it comes to climate justice." environmental litigation that has its roots in our history as a country founded on mining. So being creative particularly in relation to government accountability. and seeing opportunities where others may not “The clinic clarified for me the distinction between is a key skill.” small actors and big actors on the global stage when Patience is another key skill, he says. “These things it comes to slowing climate change and how assisting are not immediate and they are hard fought for. So small actors, like islanders threatened by rising remaining patient in the face of adversity and in the water levels, can lead to pressure on big actors, like face of rejection and knockbacks I think is critical governments, to accelerate change.” in continuing to go on.” There are two aspects to the clinic, Mr Algie says. Ms Perera says the clinic showed her that climate The first is equipping students with the skills to unpack change action is part of a long game. “When you work a legal problem brought by clients with real cases and in this area of law it’s easy to feel like the projects real test case ideas they’re wanting to advance that you’re working on aren’t making much of a difference. students work on. The other is exploring what climate But I learned that every step is a positive step in the justice means in an academic sense and “reflecting right direction.” on what that means and how that’s achieved, and Learning about the value of teamwork was another what role does law have to play,” he says. benefit, Ms Perera says. “We had to read a whole “We all know the limitations on litigation particularly lot of case law, and there was a lot of dense material in Australia for environmental causes. What are to work through so it was really important to be able other ways we can be doing that? What ways can to share the workflow with your teammates and lawyers and law students be tools for change outside bounce ideas off each other.” traditional legal practices? We’re also teaching them Ms Stirling says the clinic has encouraged her to be reflective on the extent to which those practical to consider environmental law. “The clinic has skills can achieve traditional legal change.” diversified my skillset and improved my understanding “Students work on advice or research for that client of alternative litigation strategies. Having been given as you would any other client if you were working the opportunity to hear from various experts and their for that client in the law firm,” Ms Dunlevie says. experiences . . . being an environmental lawyer now “So while we’re dealing with important ethical issues seems like a rewarding prospect – and one that can associated with climate change, it’s also about how we effect real change.” are going to use our practical and professional skills as Monash Law students can find out more about lawyers to do really effective work in this space.” the Climate Justice Clinic and apply for the next Ms Dunlevie says there are three waves of climate semester intake at monash.edu/law/home/cle/clinics. ■ change litigation and legal work in Australia. The first is associated with challenging approvals for developments of specific fossil fuel projects. The second is about forcing companies to assess climate change risks and report on those risks. The third, which she says is still in its embryonic stage in Australia, is intended to force action by government

and the largest emitters to address climate change, STOCK ADOBE and then to seek damages or injunctive relief,

84 LAW INSTITUTE JOURNAL APRIL 2021 living law Food/Wine/Coffee

parcels and dipped in chilli t FOOD 14 dipping sauce. 20 The second wave begins HOW WE RATE IT COFFEE Rice Paper Scissors with crispy barramundi 18 to 20: Would 15 Hardware Lane ($17), two large fish fritters, take my best Bourke Street Away from the spruikers on Hardware Lane and coated in a thick, strangely client here Green pop-up-café down the southern end, Rice Paper Scissors is compelling coconut batter, 15 to 17: A safe 501 Bourke Street bet for client a bustling COVID-normal operation that offers The RACV Club opened and scattered with a salad entertainment a welcome choice of indoor and covered outdoor made of rustic chunks of its cruisy Bourke Street 12 to 14: Best dining. Inside there is a clean fitout with a mix of green apple, roast cashews for a lunch with Green bar in late 2019 table sizes that cater for both large groups and a and nam jin. In my opinion colleagues only to be stymied by cosy tete-a-tete meal that doesn’t subject you to the the fish is a little dry and <12: Life’s the pandemic just a few intimate secrets of the couple sitting next to you. lost here. too short, try months later. As office RPS offers a good spread of south-east Asian Finally, the Phuket somewhere else workers started returning street food style dishes – including a great vegan calamari ($17) turns out to the CBD in early selection – that are somewhere between entrée to be my standout dish: 2021, the bar reopened, and main sized and priced towards $20. Our delicately tender calamari pieces are tossed in an with the bonus of waitress’s cheery description of “Asian-style unctuous coating of salted duck egg, together with a pop-up café set up tapas” is apt. charred snake beans, Chinese celery, and seasoned on the street outside, The $35 per head lunch special allows two with fish sauce, palm sugar (I think) and a squeeze enticing passers-by and diners to share five dishes, and is a great way of lime. I love the rich but mildly comforting flavours local workers to meet to dive into their food. Our selection is helpfully and texture of this ensemble. over coffee in the airy brought in two stages. The drinks menu offers a good selection slatted-wood and glass- First come vegan eggplant tempura buns of cocktails with or without alcohol, including walled pod (heated for ($15.50), a pair of bao tucked with an eggplant a refreshing yuzu and lime soda ($9.50) and beers the city’s cooler months), fritter, a little under-seasoned for my taste, that include Stomping Ground watermelon sour perfect for watching the cucumber, and a spritely vegan chilli mayo; lobster ($11) – a modern take on a shandy, but an absolute world go by. dumplings ($16), tasty plump morsels, albeit not revelation with this style of food. The luscious Danish very lobstery, doused with the now-ubiquitous RPS offers fun and relaxed dining, with bright fruit pastries and buttery (not a bad thing) Lao Gan Ma chilli condiment; Asian flavours, is sensibly priced, and is a good croissants are made by and crying tiger ($16.50), sensational, charcoal choice for couples and work groups. n nearby favourite Le Petit grilled nuggets of beef brisket, topped with a Gateau, with coffee Shaun Ginsbourg is a hungry barrister. popping fresh relish of tomato, onion and herbs, by Lavazza. KD which are then to be wrapped in mustard green leaf

WINE By Jeni Port Pt Leo Estate Mornington Shadowfax Midhill Best’s Great Western Peninsula Rose 2020 Chardonnay 2019 Cabernet Sauvignon 2019 RRP $34 RRP $45 RRP $25 There is no reason why I think we all deserve to taste Fantastic value here. rose can’t be an all year-round the best of Victoria this month The Grampians is renowned proposition, especially when after another rough start to for its shiraz but never forget it is treated as seriously as the year. That includes top the region’s potential for this. The pale salmon colour and scent chardonnays like this youngster grown on the excellent cabernet. Best’s is a prime of summer berries alerts the senses. Midhill Vineyard near Romsey in the Macedon example with a young cab straight out Two months ageing in oak brings depth Ranges. Both sunny and bright and serious, of the blocks and bursting with delicious to palate that flows with ripe raspberry, Midhill boasts zesty lemon and lime aromas, black berries, anise, spice, a gentle leafy cherry, spice intensity and texture. pink grapefruit, savoury biscuit. The palate cab thread, integrated oak and supple A wine to enjoy with or without food and boasts lovely texture and length. Wouldn’t tannins. It’s made for early consumption no matter the temperature. mind some more time in the cellar either, but there is still potential for further ageing. Enjoy with arancini balls. if you can wait a little longer. Open with spaghetti bolognese. Stockist: www.ptleoestate.com.au Open with ceviche. Stockist: www.nicks.com.au, Stockist: Prince Wine Store, www.bestswines.com ■ www.shadowfax.com.au Jeni Port is a Melbourne wine writer, author and judge.

APRIL 2021 LAW INSTITUTE JOURNAL 85 living law With all due respect

DRIVER WANTED LATEST TECHNOLOGY ENOUGH TO DRIVE YOU TO DISTRACTION.

More or less having nothing to spend money All of this safety technology is more This has led to a change of heart on the on during the pandemic your correspondent or less new to this writer since the car it subject of self driving cars. Previously your recently took the plunge and bought a brand replaced had seen better days, much like correspondent had doubted whether fully new car. its owner. And it reinforced a prejudice that automated vehicles could ever work on Now, there are two types of people in the many advances in technology only make life Melbourne’s roads and imagining the chaos world. Those who are interested in cars, who more complex and bewildering. that would ensue if they were mixed with talk about cars, who rattle on about various As an example, reversing the old vehicle vehicles that did not have the technology. makes and models and the advantages of out of the driveway was a relatively simple A belief that anyone who does a one engine type over another. They might be manoeuvre involving nothing reasonable amount of called car bores. more complex than being driving in the city will Those who lavish love and attention on careful, but in the new car it is a DO YOU EVER COME have witnessed so many their cars and others who don’t care about nightmare. As the vehicle moves ACROSS AMUSING mind-bogglingly stupid the depreciating lump of metal sitting at their the driver has to look at both the INCIDENTS RELATED things on the roads that door as long as it gets them from A to B and mirror and an electronic display TO THE LAW? it would be impossible to from B to A. while the ears are assaulted by Then why not contribute program a computer that There are people in the world who think various loud buzzing noises, to WADR? could cover them all. Send your submission Top Gear is a TV show where three jolly flashing warning lights on the to [email protected]. If you are in a self middle aged English men take part in a instrument cluster and even driving car and you hear number of hilarious japes involving motor the car taking over by applying an exasperated automated vehicles and others who think they should the brakes. voice exclaiming “I give up!”, just grow up and stop making fools of Even after a few weeks of ownership this what would you do? themselves. writer still doesn’t understand half of the However, if cars are becoming so Prior to purchase and when viewing the car’s features, no doubt prompting some complicated and technology-heavy that new car in the showroom the salesperson of WADR’s more unkind readers to exclaim drivers are confused and distracted by all the excitedly told your correspondent it had “just read the manual”. Except for the fact bells and whistles maybe it’s time to give the ABS, SCC, SEA, BCA, RCCA, AEB and ESP. that it is as thick as War and Peace and robots a go. I won’t bore the reader by spelling out these as unintelligible as if it was written in that Take the wheel, Siri. ■ STOCK ADOBE acronyms. Suffice to say it left me confused novel’s original Russian. and SMH (shaking my head).

86 LAW INSTITUTE JOURNAL APRIL 2021 living law Health and wellbeing COPING WITH THE PANDEMIC IN 2021 PLANNING FOR THE FUTURE IS STILL MORE UNCERTAIN THAN EVER AND WE NEED TO ADAPT TO THE UNSETTLING FEELING OF WIDESPREAD CHANGE.

You could be forgiven for thinking that the new year can’t see ahead but you can see your might see the end to the chaos of COVID-19. The reality feet so make sure your next step is on is we continue to live in an ever-changing environment solid ground. What are you doing today, TIPS and planning for the future is still more uncertain than tomorrow or at the weekend? The art • Reflect on how well ever. What’s more, the pandemic is combined with the of mindfulness helps you to live in the you did last year. unsettling feeling of widespread social, political, economic moment so use this method to reduce Sometimes simple and environmental change the world over. stress and anxiety. Give it a try. accomplishments need to be So, with the initial survival mode over, how do we learn • Take up the support on offer. It may be commended. coping strategies to live a life in limbo? And what do we government financial support if you’ve • Build a repertoire need to look out for to know if our fear, stress and anxiety lost your job or it might be the offer of of coping strategies. are signs of something more troubling? help from a friend or neighbour, but Have things you can “It is incredibly difficult to continually live in an unsettled utilise what’s on offer and don’t think do when you are environment. While some are adjusting to not knowing it’s best left for others – you’re going at a tipping point. what will happen in the future, others are finding it really through this as much as anyone else. • Don’t dwell on the difficult,” says Black Dog Institute clinical psychologist Accepting you need help to get through future. Mindfulness Amy Joscelyne. is a big step forward. helps you to live “People may experience hyper vigilance to danger • Don’t use unhelpful crutches. in the moment. or risk, sleep disturbance, irritability and intrusive dark Alcohol and other drugs may feel like thoughts. If people think the level of stress has exceeded they lower stress but they are highly their ability to cope or if it is resulting in impairment on addictive and increase stresses, especially if used their life or relationship, it is time to seek professional in the long-term. This pandemic is not leaving anytime help. For others there are tips for learning to adapt.” soon so you need to learn to use healthy options Dr Joscelyne shared some tips to learn to manage to help you get through. this ongoing stress. • Look for the positives. Reflect on what changed • Reflect on how well you did last year. It was a tough that was good, such as spending more time with year with a lot of stress, and you got through it. Don’t family. Also use this time to reflect on your life. Was be hung up on what you missed out on or what your there something you were unhappy with before the friends achieved that you didn’t – sometimes simple pandemic which you would like to change now? It may accomplishments need to be commended too. If you have been a disruption to your life, but try to use that were feeling low in mood but found the energy to go disruption as a pivot for your future. for a walk or chat to a friend, be proud of that effort. • Look out for each other. If you’ve noticed a change • Build a repertoire of coping strategies. While evidence in behaviour in a friend or family member, tell them has found that social activities are more likely to help you have and ask if they need help. Also ask them what with de-stressing than passive ones like reading and kind of help they need. It maybe a listening ear, or they watching TV, the idea doesn’t appeal to everyone. may want you to help cook a dinner, weed the garden The best plan is to build a number of things you can or research a nearby psychologist. ■ do when you are at a tipping point. One day you might This article is reprinted with kind permission of the Black Dog Institute, go for a run or catch up with a friend, and the next, which investigates mental health across the lifespan. LIV members have putting your favourite show on TV may be all you access to employee assistance program (EAP) Converge 1300 687 327. can cope with. • Don’t dwell on the future. You simply don’t know what is going to happen and you can’t plan for 12 months ahead because things might change. Instead plan very small things. Think of it like being in blizzard where you ADOBE STOCK

APRIL 2021 LAW INSTITUTE JOURNAL 87 living law Beyond the law

YEAR OF HOPES AND DREAMS VLA SENIOR POLICY OFFICER MARIA FOROUDI FOUND HER BURGEONING ARTISTIC PURSUITS ENHANCED HER LEGAL CAREER DURING A DIFFICULT YEAR. BY KARIN DERKLEY Lawyer and poet Maria Foroudi

There was a time Maria Foroudi was announced, two of Ms Foroudi’s poems ▼ convinced she couldn’t be both a lawyer and were chosen from thousands of entries. a writer. “I always saw myself as a lawyer Buoyed by that recognition of her talent, A THOUSAND CRANES first and was concerned that my persona of she saw in her other Twitter contributions How many hopes and dreams being an artist would in some way dilute the the makings of a collection of longer poems Have sailed perceptions of me as a lawyer. which has now been published by Arcadia “Now I realise that writing has actually Publishing as Tears in my Bread. And foundered helped me become a better advocate.” Many of her poems explore the loss On the white wings of sea? It helps that her colleagues at Victoria and longing of her parents who migrated Those waves carry salt-filled gasps of dream Legal Aid, where Ms Foroudi is a senior from Greece to Australia in the 1960s to policy officer, recognise the value of artistic work in Melbourne’s factories. “For all of Their sharp breath hitting me pursuits in fostering the empathy needed to us as migrants there’s a bit of ambivalence like a midwife’s hand and work with the vulnerable people who use its about our cultural identity – where do we Filling my lungs with air services, she says. really fit in? We’ve got our foot somewhere They fold sharp into rocks and air Ms Foroudi says she first came to writing in the middle and I feel that grief.” in high school. “I marvelled at the power of Her parents were semi-literate, their Journeys with foamy noses and wings poetry to express what you’re feeling in just education interrupted by successive wars Crashing and forming a couple of lines. I am an impatient person and the German occupation. “But they Like a thousand paper cranes. by nature and poetry is a great medium respected education and encouraged to be able to do that.” me and my brother.” She is the first woman She particularly loved the poems of in her family to have finished high school She says the experience of the COVID-19 Irish poet and Nobel prize winner Seamus let alone go into the law. pandemic has made that theme universal. Heaney with their focus on the idea of nature Now a mother of two young boys, “We've seen the devastating power of as a metaphor for life, as well as Sylvia Ms Foroudi says most of her writing takes nature and it’s really shaken the sense Plath, Pablo Neruda and Alexandrian poet place at night once she has tucked her sons of invincibility that a lot of us had before Constantine Cavafy. “All of these poets have into bed. “I see myself as meeting up with it happened.” a wonderfully personal style: brave in their a good friend in the evenings when I sit Both COVID-19 and her accident left use of technique and image, but most of down to write. It’s cathartic.” her with a sense of imperative not to waste all accessible. The pictures they create are The poems for Tears in my Bread were any more time. “The situation we’ve all been jolting and deeply memorable.” written over the course of a year and take in in has been a wake-up call to review life and But as she focused on her career as the beginning of the Melbourne COVID-19 to live it to the fullest.” In that spirit she has a lawyer, her poetry fell by the wayside lockdown. Then, just as her manuscript was now completed another collection of poems with the exception of the occasional poetry accepted in May last year, Ms Foroudi was that will be published later this year. competition. It was ironically through Twitter hospitalised with a snapped ankle which “Many of my poems are exhortations that her interest in writing poetry was took months to recover from. not to leave life having regrets. I really did rekindled when she participated in a poetry “What followed were some of the feel that from my hospital bed – to take all writing challenge called #vss365 (short for most difficult days of my life.” The final the opportunities that you’re given and to JOHNS DAVID PHOTOGRAPH: "very short story 365 days a year"). Each two poems in her anthology speak of the use them to make a difference because day its organisers sent out a prompt for vulnerability and chaos of that time, adding there may not be a tomorrow.” ■ participants to contribute a Twitter length to the general theme of people trapped by poem in response. When an international circumstances beyond their control, whether anthology of the resulting poems was through illness, disability or exile from their home and family.

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