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Sydney • Brisbane • Melbourne • Perth • Singapore • Hong Kong • India Contents May 2018

RISING STARS At the 14th Victorian Legal Awards 11 emerging stars will be recognised in the Lex Medicus Rising Star Award. page 16

The innovators Nominees for the Victorian Legal Awards PEXA Innovation Award are shaking things up. By Karin Derkley page 13

Preferences for future medical treatment A new act to consolidate medical treatment laws and ensure a person’s values and preferences are followed came into force in Victoria on 12 March 2018. By Bill O’Shea and Rebecca Park page 26

PHOTO: DAVID JOHNS

Rising stars Katie Minogue, Scott McKenzie, Phoebe Blank, Katerina Patras, Nicki Lees, Emma Newnham, Bridie Walsh, Demetrio Zema and Merys Williams MAY 2018 LAW INSTITUTE JOURNAL 1 Contents May 2018

BRIEFS EVERY ISSUE 10 Court on camera 4 Contributors 6 From the LIV 8 Letters NEWS COURTS & PARLIAMENT 46 High Court judgments VICTORIAN LEGAL AWARDS 48 Federal Court judgments 13 The innovators 50 Family law judgments 52 Supreme Court judgments The nominees for the Victorian 54 Legislation Legal Awards PEXA Innovation FEATURES 55 Practice notes Award are shaking things up. MEDICAL TREATMENT PLANNING AND DECISIONS ACT By Karin Derkley 26 Values and preferences for future REVIEWS medical treatment 16 Rising stars 57 Online A new act to consolidate medical treatment At the 14th Victorian Legal 58 Books 60 LIV Library laws and ensure a person’s values and Awards 11 emerging stars will be preferences are followed came into force in recognised in the Lex Medicus PRACTICE Victoria on 12 March 2018. Rising Star Award. By Bill O’Shea and Rebecca Park 62 Victorian law reform LIV COMMITTEES 63 LPLC LITIGATION 18 Have your say 64 Property 65 Technology 30 A breach of trust LIV members can make a difference in 66 ADR The proliferation of the trust as a vehicle their practice areas and communities 67 According to merit?/Diversity for commercial activity presents issues in by joining an LIV committee. litigation – principally, whether a beneficiary By Sophie Suelzle CAREER can step around an impecunious or assetless PROPERTY SALE trustee and recover against other beneficiaries 69 Legal action or third parties. By Michael Wise SC 19 LIV sells 470 Bourke Street 70 Your career The search is underway for a new WILLS AND ESTATES LIV home for the 159-year-old Law 34 Informal wills Institute of Victoria. 72 Advocacy Since 1997 it has been possible for informal 73 Council PAPERLESS COURTS 74 Associations wills to be admitted to probate in Victoria on the basis that the deceased intended 20 Courts at a turning point CLASSIFIEDS that a document or documents recording It’s taken longer than expected, but testamentary intentions be his or her will. the planets are finally aligning to 82 Crossword By Philip Barton bring courts closer to a paperless environment. MENTAL HEALTH By Karin Derkley 38 A wellness KPI: implications for Australian law OPINION Two prominent firms have advocated 22 Reputation in the digital era for wellness and wellbeing to become a With the number of digital mainstream issue for management. defamation cases rising dramatically By Andrew Clarke the cost to parties involved in proceedings is concerning. TRANSPORT ACCIDENT COMMISSION By Christien Corns LIVING LAW 42 Highly serious WELCOME 83 Inside stories The High Court’s examination of 85 Food/Wine/Coffee “serious injury” in TAC v Katanas will 23 Justice John Champion 86 With all due respect guide future decisions. 87 Health and wellbeing OBITUARY By Michael Lombard and Giorgina 88 Beyond the law McCormack 24 Bob Baxt AO ADOBE STOCK

2 LAW INSTITUTE JOURNAL MAY 2018

Contributors LAW INSTITUTE JOURNAL

editorial lij working group Managing editor Gerry Bean Carolyn Ford Carolyn Ford 03 9607 9319 Geoff Gronow [email protected] Melissa Macken www.liv.asn.au/lij Chris Molnar Cameron Ross Production editor James Turnbull Mary Kerley Journalist editorial policy Karin Derkley Views expressed by Sub-editor and proofreader contributors are not Bill O’Shea Rebecca Park Michael Wise SC Libby Brown necessarily en­dorsed by the Law Institute of Victoria Ltd. Art director No responsibility is accepted Chloe McMahon Past president of Lawyer to the LIV’s Commercial barrister by the LIV, the editor or the the LIV and chair of Elder Law, Succession and nationally submissions printers for the accuracy of inform­ation contained in the College of Law Victoria. Law and Workplace accredited mediator Submissions for legal text and advertisements. features, opinion pieces and He was Alfred Health’s Relations Law of 25 years’ other articles should go to Neither the LIV nor the LIJ in any way endorses or takes page 26 page 30 [email protected] first general counsel Sections. experience. any responsibility whatsoever and is chair of the LIV’s advertising inquiries for any material contained on external websites referred to Elder Law Section. Advertising sales executive by the LIJ. Greg Pryer ­page 26 The LIJ is a peer reviewed 03 9607 9337 publication. [email protected] www.liv.asn.au/lij Small sums of money from the Copyright Agency Limited subscription inquiries (CAL) are periodically payable Subscriptions coordinator to authors when works are Jenn McCormack copied by CAL licensees (including government 03 9607 9365 departments, tertiary [email protected] institutions etc). http://tinyurl.com/b9suvbr As it is not financially viable Annual subscription: for the LIJ to collect and Domestic: distribute these royalties • Hard copy plus 1 online user to individual authors, $211.75 (inc. GST) contributors undertake to • Hard copy plus 2-20 online become a member of CAL Philip Barton Andrew Clarke Michael Lombard users $605 (inc. GST) and receive any payments • Hard copy plus 101 – 200 directly (see copyright.com. online users $1210 (inc. GST) au) or they waive all claims Practises at the Professor at the College Partner at Adviceline Overseas: to moneys payable by CAL Victorian Bar of Law & Justice, Victoria Injury Lawyers and • Hard copy plus 1 online user for works published in LIV AU$363 publications. It is a condition in commercial, University. Previously he head of the firm’s of submission of an article that property, probate was Head of School and traffic accident division. contributors agree to either of these options. and land valuation Inaugural Dean from He is an LIV Council distribution law and publishes 2012 to 2016. page 38 member, an LIV The LIJ is printed by Southern caveatsvictoria. accredited specialist Colour. blog. page 34 in personal injury This issue of the LIJ is cited as law and a qualified (2018) 92(05) LIJ. thank you to our ISSN 0023-9267 mediator. page 42 regular contributors PP 100007900 for may: © 2018 Law Institute of Russell Cocks Victoria Ltd. Robert Glade-Wright ABN 32 075 475 731. Thomas Hobbs Professor Greg Reinhardt RENEW YOUR Dan Star QC Andrew Yuile September 2017: 12,610 MEMBERSHIP law institute of victoria Giorgina McCormack 470 Bourke Street, Melbourne 3000 www.liv.asn.au/Membership GPO Box 263, Melbourne 3001 Lawyer at Adviceline DX 350 Melbourne Injury Lawyers. She 03 9607 9311 works predominantly [email protected] www.liv.asn.au assisting people @lij injured in industrial @livpresident accidents or those @livyounglawyers blog www.liv.asn.au/ diagnosed with Staying-Informed/ asbestos related Presidents-Blog blog www.liv.asn.au/ diseases. page 42 YoungLawyersBlog Sach Fernando, Principal, Axiom Injury Lawyers Accredited Specialist, Personal Injury Law 4 LAW INSTITUTE JOURNAL MAY 2018 RENEW YOUR MEMBERSHIP www.liv.asn.au/Membership

Sach Fernando, Principal, Axiom Injury Lawyers Accredited Specialist, Personal Injury Law From the LIV the From 6 JOURNAL INSTITUTE LAW the law, inspired others, andare thefuture ofourprofession. May toacknowledge thosewhohave madeoutstandingcontributionsto We recognise thematour14th Victorian Legal Awards. Pleasejoinuson18 conference rooms. dedicated staffpolicy lawyers, laws are beingdeveloped andshaped inour theirtimeandexpertisetohelpmakegiving adifference. Coupledwithour which have about50sectionsub-committeesandmany working groups, all committees. We have about1350membersinvolved in 12practice sections evolve forthebenefitofsociety. are supportive andpassionateaboutensuringthatourprofession andlaws connections andfriendship. Itisafamily oflike mindedcolleagues who new membersaspossibleandbuild astronger legalcommunity. we want towelcome back our19,000membersbutalsowelcome asmany advocacy toinfluence change andimproving accesstojustice. and thecommunity, which includesbeingthevoice oftheprofession, doing professional journey. to constantly evolve tobeaheadofthegame, supportingyou onyour front andcentre oftheLIV’s strategic planningandfuture focus. We need The requirements ofourmembersandthelegalprofession are always involved joining our committees. by of one Get Members our future focus ourMembers future of large andsmallfirms were immediately. Lastyear, anumber Victorian LegalServicesBoard (LSB) so Iurge you tocontactthe end of April. Ifyou have notdone certificate renewal due by the I have justcompleted my practising MEMBERSHIP. LIV AND PC YOUR CHECK OUT CAUGHT BE DON’T This monthisatimetocelebrate theachievements of Victoria’s lawyers. One ofthebestways tobeinvolved isby beingamemberofoneour For me, beinganLIVmembergives meaccesstoaworld ofknowledge, This monththeLIV’s membershiprenewal process getsunderway and The LIViscommittedtosupportingourmembers, thelegalprofession MAY 2018 MAY

to business. Ifyour clientsare landlords extending topremises trading business is broader thanpreviously applied Court hasestablishedthatthedefinition about changes toretail leases. The High Commissioner hadadvised theLIV materials ishigh. CPD isnow available andthequalityof and canvasses the bestspeakers. Online The LIVundertakes thorough surveys attendees andhighsatisfactionratings. training were very successfulwithmore may beassisted. how thoseaffectedadversely inthepast Services Regulationisstilllookingat action tofollow upwiththeLSB. do nothave allthree, take immediate a practising certificate was issued. If you application. A third emailconfirmsthat an emailacknowledging receipt ofyour you have received areceipt aswell as while operating “unlicensed”. Check to bepaidback, thatis feesearned caught withprovisions requiring fees Victoria’s SmallBusiness This year’s CPDintensive and The CommissionerforUniformLegal months. I lookforward tosharingmore detailsincoming better facilitiesformembersinthelegalprecinct. operating from modernofficeaccommodationwith – ourhomeforalmost40years –andwe willsoonbe make areal difference inourcommunity. supervision ofpeopleonbailandremand. This can program willseeincreased monitoring, treatment and Services Program (CISP)andCISPRemandOutreach and greater investment intheCourtIntegrated court services. Legal Aid needssignificantfunding, needs tobedoneaddress courtbacklogs and to address mentalhealthandwellbeing issues. More for more fundingforourcourts, plusmore funding Throughout 2018andbeyond, we’ll beadvocating blog liv Belinda Wilson The LIVhassolditsbuildingat470Bourke Street

president

www.liv.asn.au/Staying-Informed/Presidents-Blog Nerida Wallace any time membership toothers. LIV membershipandrecommend updates. state government. Check LawNewsfor Law Councilof Australia andwiththe LIV continues advocacy through the to beunderincreasing pressure. The Family Court. Ourjudiciaryisnow seen lawyers withproposed changes tothe well asscopeforwork globally. tenure, toofferflexible workplaces as different attitudestoemployment in attracting younger lawyers with here andoverseas. The challenges are Australian lawyers are highly regarded that ourfirmsare strong andthat LIV president. Ourdiscussionsshow of meetingsundertaken withthe of large law firms, anannual series of meetingwiththemanaging partners or tenantscheck theLIVwebsite. n As always feelfree tocontactme Please remember torenew your Challenges are emerging forfamily I have recently hadthegreat pleasure

[email protected] . n

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ceo

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A gender issue care. Sometimes, they • the market is now seek flexibility in relation reverse regulated in favour In the feature “It cuts both ways” (LIJ to work hours in order of conveyancers, ie, more March 2018), Calum Cook makes Women in Leadership to accommodate these qualified lawyers are much the incredible statement that issues responsibilities. This is not, as more regulated and at a cost regarding employees’ hours of work, Mr Cook suggests, a matter of disadvantage and particularly an employer’s ability LETTERS TO THE mere “fulfilment”. • the ludicrous to change those hours, are “often EDITOR overregulation of a Bill Swannie, College of Law and Justice, Conference & Dame Roma skewed towards the employee’s needs Email: [email protected] profession which makes and fulfilment”. Victoria University Fax: 9607 9451 less and less money but Accommodation of an employee’s Mail: Law Institute provides limitless growth in family and other commitments Journal managing editor regulations and worthless is, in fact, a recent development No gender issues Carolyn Ford, GPO Box CPD schemes Mitchell Memorial Lunch in Australia, and is (as the article I’m pleased the LIJ is focused 263, Melbourne 3001; or • the exponential growth in demonstrates) often opposed on on the real issues in legal DX 350 Melbourne. law students so that there grounds of managerial prerogative. practice shown by the cover We reserve are 30 graduates for every The real issue, as Mr Cook mentions story (21st Century Leaders in the right to edit job opening WEDNESDAY 23 MAY, 8.30AM–2.30PM almost at the end of the article, is Law, August 2017) of prominent letters and to • the jumps in practising one of discrimination and reasonable women lawyers and their well republish them in their certificate fees and new accommodation of employees’ family paid (and mostly generously original or edited form CROWN PALLADIUM on the internet or in regulations. New principal and carer responsibilities. This is a publicly funded) jobs. The other media. Letters lawyers (mainly of small gender issue, due to the low proportion fact that the profession is must include a phone firms) will now have to of women in management roles in more than half female, and if number and address for do a compulsory practice Australia, and the large number anything women are preferred authentication. management course. I of women who assume childcare in the recruitment process is suppose each small firm responsibilities. Also, it is not accurate neither here nor there. shut down because of to say that “employees are seeking In the next edition (LIJ these costs means no more flexibility”. Employees, particular September 2017) there was a letter from more compliance risk. those with childcare responsibilities, an employer celebrating hiring females No, better to focus on non-existent seek a consistent work roster. As any – would there have been an outcry if he gender issues. n parent knows, this is necessary in was celebrating hiring males? order to make it to school pick-up, The real issues in legal practice worth David Beattie or to arrange after or before school discussing include: FEATURING TALENTED AUTHOR, JOURNALIST AND TELEVISION PRESENTER TRACEY SPICER t tweets The Law Institute of Victoria advocate on equality and the Great article from @ Litigation about sports A recent decision of the celebrates the accomplishments #MeToo movement. Tracey will theLIJ - Lawyers have related concussions is #SupremeCourt will of women in Australia with two join a panel of inspiring female role in new medical reaching Australian courts. ensure that the #Victorian major events held over one day: speakers to share personal and treatment law Via @theLIJ government and public the annual Women in Leadership professional experiences @VicLawReform authorities will comply Conference followed by the Dame and discuss issues specific @ByLawyers with, and have regard to, Roma Mitchell Memorial Lunch. to leadership and career #humanrights in their day advancement, including Thankyou @theLIJ for to day business and when This year’s keynote speaker is overcoming the bias and telling this important story engaging with the community Tracey Spicer, an Australian writer, and recognising one of the @theLIJ is one of our favourite subscriptions! barriers facing female leaders. This edition (Jan/Feb) was a great read, can’t @theLIJ @SCVSupremeCourt broadcaster, journalist and vocal significant trailblazers recommend it enough. #Lawyers #lawjournal (William Ah Ket) @Paulinefbernard @VictorianBar @wemlye @knightfamilylaw Register at www.liv.asn.au/WomenInLeadership18 @SFregon

8 LAW INSTITUTE JOURNAL MAY 2018 Women in Leadership Conference & Dame Roma Mitchell Memorial Lunch

WEDNESDAY 23 MAY, 8.30AM–2.30PM CROWN PALLADIUM

FEATURING TALENTED AUTHOR, JOURNALIST AND TELEVISION PRESENTER TRACEY SPICER

The Law Institute of Victoria advocate on equality and the celebrates the accomplishments #MeToo movement. Tracey will of women in Australia with two join a panel of inspiring female major events held over one day: speakers to share personal and the annual Women in Leadership professional experiences Conference followed by the Dame and discuss issues specific Roma Mitchell Memorial Lunch. to leadership and career advancement, including This year’s keynote speaker is overcoming the bias and Tracey Spicer, an Australian writer, barriers facing female leaders. broadcaster, journalist and vocal Register at www.liv.asn.au/WomenInLeadership18 briefs Court on camera

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2

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Independence Visibility All lodgements are independent of each Participants can view the progress other. Therefore, the lodgement result of linked Workspaces, and can easily 5 6 in one linked Workspace will not impact see if one Workspace requires Slater and Gordon opens in Sunshine CPD Intensive the success of another. additional attention. 1 Slater and Gordon CEO John Somerville 4 Participants gather in the sponsor and federal MP Tim Watts celebrate the tradeshow area at Sofi’s Lounge, Sofitel. opening of the firm’s latest office. 5 Maurice Blackburn senior sssociate Katie Warrnambool tennis tournament Minogue talks autonomous cars at the Personal Injury Law Intensive. Security 2 LIV CFO James Egan (left) and LIV Certainty president-elect Stuart Webb (right) 6 Federal Circuit Court Judge Evelyn PEXA performs routine lodgement Linked Workspaces will proceed to with Western District Law Association Bender gives the opening address at past president, family and criminal law the Family Law Intensive, looked on verifications on all documents within settlement only when all parties have accredited specialist and president of the by Federal Circuit Court Judge Jillian a lodgement case to ensure greater provided source funds. Settlement Warrnambool Lawn Tennis Club Tony Williams and barrister Emma Swart. Robinson during the tournament. certainty at settlement. security is built-in to protect clients, 7 Law Books manager Owen Hyde mans practitioners and financial institutions Ballarat and District Law Association the bookstall. n Conference from risk.

3 Niketta Anderson and Ruby Graovac (from the Ballarat & District Law Association), with speakers barrister David Carolan and Rowan Kimber of Parke Lawyers.

7

10 LAW INSTITUTE JOURNAL MAY 2018 Independence Visibility All lodgements are independent of each Participants can view the progress other. Therefore, the lodgement result of linked Workspaces, and can easily in one linked Workspace will not impact see if one Workspace requires the success of another. additional attention.

Certainty Security PEXA performs routine lodgement Linked Workspaces will proceed to verifications on all documents within settlement only when all parties have a lodgement case to ensure greater provided source funds. Settlement certainty at settlement. security is built-in to protect clients, practitioners and financial institutions from risk. Celebrate excellence at this year’s presentation ceremony & gala dinner

FEATURING AWARD-WINNING ACTOR, AUTHOR, PRODUCER AND ENTERTAINER SHANE JACOBSON AS THE MASTER OF CEREMONIES.

PENINSULA, DOCKLANDS FRIDAY 18 MAY | RSVP MONDAY 7 MAY Book single tickets or a table of 10 at www.liv.asn.au/Awards

PROUDLY SPONSORED BY news VICTORIAN LEGAL AWARDS | LIV COMMITTEES | LIV BUILDING SALE | PAPERLESS COURTS | OPINION | WELCOME | OBITUARY

Legal innovators: Brett Johnstone (Maurice Blackburn), Marianne Marchesi (Legalite) and Andrew Natoli (Equipe Lawyers)

THE INNOVATORS

THESE NOMINEES FOR THE VICTORIAN LEGAL AWARDS PEXA INNOVATION AWARD ARE SHAKING THINGS UP. BY KARIN DERKLEY

Precedent has its place in the law, but the legal profession is starting to shake off traditional ways of going about its business. These nominees for the PEXA Innovation Award are shaking up a few corners of the industry in different ways – coming up with new delivery models and new applications, or using innovative thinking to improve the processes of long established firms. Technology is central to the success of each of them – not in a gee-whiz futuristic way but as a tool to do things cheaper, or more efficiently. For Legalite, readily available web-based applications have made it possible to provide start-up customers with niche advice that doesn’t require high overheads. CaseView’s clever use of search technology and web page design has made the job of finding relevant legislation and case law quick and easy for potentially everyone. For Settify, artificial intelligence isn’t the subject of a scary sci-fi thriller, but a way of quickly processing information to make it easier to do the human side of family law. And at Maurice Blackburn, a culture of innovative thinking is coming up with a host of new strategies that make the business of servicing its clients more efficient and people-friendly.

PHOTO: DAVID JOHNS MAY 2018 LAW INSTITUTE JOURNAL 13 news Victorian Legal Awards

Profits follow if you serve clients well, she CaseView website. Those who register with adds. “Be client-centric in the way your firm is a practitioner account can also add their structured and the way you deliver services. own case notes, making it a repository for It’s a natural flow-on that if your clients are anyone who works with the planning act. happy your firm will make money.” The task of pulling together the material for the website, getting the design right and making it usable has been a “long and fiddly practice” Mr Natoli says. But he has no plans to monetise the service. “I just think it’s a good thing to do. It’s the kind of material that’s already available free but it just hasn’t been very searchable until now.”

Legalite Marianne Marchesi

As a start-up herself, Marianne Marchesi is well aware of the financial constraints faced by new enterprises. And like many of her clients she’s tech-savvy enough to be able to seek out cost-effective tools to help Equipe Lawyers her grow her business Legalite. Andrew Natoli “If I had to outsource the technology, it would have been so expensive,” Ms Finding information about VCAT and Marchesi says. “So I’ve just had to figure planning law cases via AustLii can be a things out as I’ve gone along.” slog if you don’t know exactly what you After years in large, mid-tier and are looking for. That’s what town planner boutique law firms, Ms Marchesi set up her turned planning lawyer Andrew Natoli Settify firm to provide a highly responsive fixed-fee of Equipe Lawyers found when he was Max Paterson online-based advice service to start-ups, researching cases relevant to his clients’ franchises and new businesses. “I wanted to sites. “You could only search via text, so it Some lawyers become gloomy after reading provide a specialist service rather than be a was a bit of a clunky process.” Richard Susskind’s The End of Lawyers? Jill of all trades.” With “a bit of a background in coding”, Mr But Settify CEO Max Paterson says the To keep costs down, she uses web and Natoli decided to make the process easier book set his mind “ablaze” with ideas and smart-phone based applications as well as for himself. Using a program that can pluck possibilities for ways to improve the legal social media. addresses from the text in AustLii cases profession through technology. “I’m no tech geek,” she says, “but I do keep he designed a map-based search interface As a family lawyer Mr Paterson my finger on the pulse of what’s out there. I’m that lets users find planning and property- brainstormed an idea with his now chief constantly trying things out, and if something related legal decisions by location. technology officer Athol Birtley, then isn’t working I move on pretty quickly.” With this invaluable information at his working in IP at Allens, for a web-based Her criteria for technology is simple: fingertips Mr Natoli generously decided application that could help prospective “Apart from being low cost, it has to be easy to make it available to others. Anyone can clients engage with family law firms. for clients to use. It’s really about leveraging register on his website caseview.com.au to “People going into a divorce are often technology for the benefit of clients”. search for relevant cases and decisions. overwhelmed and have no idea about the Marketing is via Facebook and Instagram. Having set up that resource in his “spare process they’ll face,” Mr Paterson says. She uses Asana to manage projects across time”, Mr Natoli then came up with the For their lawyers, too much time is spent her team, Google Forms for clients to next iteration of his website – providing a getting clients to provide the information submit instructions online, and DocuSign storage and cataloguing system for case they need to help them separate their for signing contracts. With this kind of end notes related to planning law. property and other assets. to end system, her two-lawyer office is “I was doing my accredited specialisation But too many law firm websites are static genuinely paperless, she says. (in planning law) and I wanted a system with very little to get clients started and From just a handful of clients in February to catalogue my case notes so I could find tailored to their particular needs, he says. 2017, she now has 80 clients on her books. them easily the next time around. While I Settify provides a friendly and intelligent Ms Marchesi’s advice to others starting was doing that I thought, why not add this questionnaire embedded in a firm’s website up is to be agile. “If something is not functionality to the website and make it that gets the client to draw as full a picture working be quick to change it and move on available to other lawyers?” as they can of their situation before they and try something different.” Anyone can access the case notes on the visit their lawyer, Mr Paterson says.

14 LAW INSTITUTE JOURNAL MAY 2018 $:#&3
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*HOJUF Seemingly simple innovations can reap substantial efficiencies. Among We have two suburban offices with client those is cutting down the 30 days it once information stored on our server and in the took to get clients to file documents to cloud. We know the importance of cyber around 12 minutes, using a combination security, and with Ignite Systems we have of smart-phone technology, electronic the best possible protection in place. signatures and old-school handholding. – David Davis, David Davis & Associates. “What we do now is send the documents out to our clients on their The Ignite Systems technology review smartphones and then we call them outlined a technology platform for today and talk them through the process of and the future, along with a roadmap. In a signing and sending them back to us,” relatively short time, Ignite delivered on everything, providing immediate benefits, Mr Johnstone says. including cyber security. As a result, Ignite At the other extreme, the firm’s IT has our firm’s endorsement. Maurice Blackburn team developed a suite of bespoke systems that helped distribute $800 – Viv Braham, Sullivan Braham. Brett Johnstone million awarded in the bushfires class 'JOE
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JBOCMPPNGJFME!JHOJUFDPNBV used to facilitate other settlement says Maurice Blackburn’s chief administrations such as the De Puy hips information officer Brett Johnstone. class action. n That’s the case whether it’s to quicken the turnaround on client briefs, or deal with one of the most complex class actions in Australian history by victims XXXJHOJUFDPNBV of the 2009 Black Saturday bushfires. news Victorian legal awards

Rising stars AT THE 14TH VICTORIAN LEGAL AWARDS 11 EMERGING STARS ARE RECOGNISED IN THE LEX MEDICUS RISING STAR AWARD.

Emerging stars: Katie Minogue, Scott McKenzie, Phoebe Blank, Katerina Patras, Nicki Lees, Emma Newnham, Bridie Walsh, Demetrio Zema and Merys Williams

Phoebe Blank, senior Nicki works in the areas of refugee law, services to injured clients in Gippsland. gender based violence and corporate Katie is a former member of the LIV associate, Kennedys accountability. She is passionate about Transport Accident Committee, an LIV achieving social change by bringing accredited specialist in personal injury Phoebe was the 2017 LIV Young Lawyers together different sectors and ideas. Nicki and a recommended lawyer in Doyle’s president and professional development connects with people from all walks Guide. co-chair. Workplace lawyer Phoebe is of life and shares her experiences with dedicated to health and wellbeing in the younger lawyers. workplace and for young lawyers. She Emma Newnham, co-initiated the LIV Run Club and is a solicitor, King & Wood strong advocate for the rights of young Scott McKenzie, director, Mallesons lawyers. Velocity Legal Emma specialises in public and private Scott is co-owner and a founding director Monique M&A. She is an active participant in of Velocity Legal. He established his KWM’s pro bono and workplace giving Hurley, school/ own breakaway firm with three senior program, has assisted numerous people colleagues from a large national firm. youth lawyer, through the Justice Connect Homeless Scott leads Velocity Legal’s commercial WEstjustice Law program and is a mentor to junior law practice. lawyers. Prior to her current role, Monique completed a Katie Minogue, senior Master of Laws at Columbia University as Max Paterson, co-founder, a Fulbright Scholar, worked as a lawyer associate, Maurice Settify at the North Australian Aboriginal Justice Blackburn Lawyers Agency, served as an associate to Justice Max is a family Melanie Sloss of the Supreme Court of Katie Minogue has written articles for lawyer. Settify uses Victoria and worked at Clayton Utz. legal publications, including the LIJ, artificial intelligence spoken at conferences and appeared to provide clients Nicki Lees, pro bono before the House of Representatives with personalised, on driverless cars and the law. As customised litigation leader, Maurice senior associate and leader of Maurice information about their matter and Blackburn Lawyers Blackburn’s Traralgon office, she oversees take a full brief of instructions. With 17 legal and support staff providing legal more than 70 partner firms, Settify has

16 LAW INSTITUTE JOURNAL MAY 2018 news Victorian legal awards

assisted in more than $3 billion worth of Bridie Walsh, medical contributor to the LIJ and the Law property division matters since February Handbook, and is on the LIV Human 2017. In 2012, Max founded BottledSnail negligence lawyer, Slater Rights Committee. Productions Inc, the theatre company for and Gordon Melbourne’s legal profession. Demetrio Zema, founder Bridie has published papers and and director, Law Squared Katerina Patras, associate, presented talks at conferences on medical law. She loves women’s AFL and Law Squared is a commercial Maurice Blackburn is in the Richmond VFLW squad. She is and litigation firm working with on the Thick & Thin board which aims to Lawyers entrepreneurs and high growth promote mental health issues arising in businesses. The firm has offices in An associate in the road and work football teams. Melbourne, Sydney and Brisbane with injuries department, Katerina has forged a team of 18. Law Squared takes an a strong presence as a leading advocate Merys Williams, lawyer, entrepreneurial approach to the provision for her local communities. She works of legal services. n from the firm’s Dandenong and Oakleigh Robinson Gill Lawyers offices. Fluent in Greek, Katerina also Merys runs a diverse personal injury gives back to the community through practice. She has contributed to the her volunteer work and presentations. community through involvement in A natural leader, she drives the strategy voluntary and cause-related legal work. of the firm in areas such as cultural She is passionate about social justice diversity and file systems and processes. and access to justice, as exemplified

by her wide-ranging volunteer work and advocacy. She is a student mentor,

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Kamal Farouque Emma Starkey Daniel Victory Kelly Thomas Principal Senior Associate Senior Associate Associate PHOTO: DAVID JOHNS

MAY 2018 LAW INSTITUTE JOURNAL 17 news LIV Committees

HAVE YOUR SAY LIV MEMBERS CAN MAKE A DIFFERENCE IN THEIR PRACTICE AREAS AND COMMUNITIES BY JOINING AN LIV COMMITTEE. BY SOPHIE SUELZLE LIV president Belinda Wilson and Elder Law Committee chair and former LIV president Bill O’Shea

New legislation, changes to court systems and the upcoming Elder Law Committee chair and former LIV president Bill state election have heightened the importance of legal advocacy O’Shea can attest to the influence and importance of LIV in 2018. As part of LIV membership, lawyers can contribute committee work. The Elder Law Committee focuses on legal directly to the discussion by joining an LIV committee. issues affecting Australia’s ageing population such as medical As a former member of the LIV’s Business Law Committee, treatment, guardianship, elder abuse, residential aged care, LIV president Belinda Wilson says “LIV committees act as a retirement villages and the NDS. There are 18 members, all legal brain bank and help to share the knowledge and expertise elder law experts. of our members to advocate for important issues, educate The committee provides education to practitioners and the profession and shape future legislation. Our committees health professionals about the legislative changes involved give LIV members a voice, and the opportunity to put forward in the Medical Treatment Planning and Decisions Act 2016, recommendations and submissions that influence not only LIV which seeks to simplify and consolidate medical treatment policies, but policy on a state and federal level”. laws and provide a legislative framework for advance care The LIV has 12 practice sections – administrative and human planning in Victoria (See feature, p26). rights law, government lawyers, workplace relations, litigation The committee has organised workshops and community lawyers, and elder law as well as commercial, criminal, family, education seminars in rural and metropolitan areas, international, property and environmental, succession and participated in videos and media interviews, written articles and cost law. Within these practice sections there are about 50 facilitated an open dialogue with the medical profession. sub-committees and many working groups made up of more Explaining why members might consider joining an LIV than 1350 volunteer lawyers. LIV committees cover a range of committee, Mr O’Shea says: “Any solicitor who wants to develop areas, and the lawyers on them share a passion for law and an area of specialty should be involved in a committee that advocating for justice. covers their specialty. They can test their knowledge, learn about “The coming election provides a chance for the legal new developments and legislation, and even provide confidential profession to let government know what is needed in terms feedback to the government on proposed legislation. Committee of funding, and what we expect from our elected officials,” membership puts you ahead of the game”. Ms Wilson says. LIV committees are open to practitioners of all experience The LIJ recently sought the expertise of a number of LIV levels. Through committee work, LIV members can keep up committees to advise on key areas of the law and legal to date with their practice areas and meet with leaders of the profession – lawyers’ health and wellbeing, court funding, profession. “Committees also give solicitors an opportunity to support for regional lawyers – which require attention in the communicate with the profession by speaking at conferences 2018-2019 Victorian budget. Fifteen recommendations were and publishing articles in the LIJ,” Mr O’Shea says. published in the March edition of the LIJ and will be used by LIV membership gives lawyers the opportunity to contribute the LIV to lobby government for continued productivity of the to advocacy. justice system. “The public and the state and federal governments all know “It’s a fantastic opportunity to give back to the legal that the LIV provides frank and fair advocacy on important legal profession and one of the many rewarding benefits of being issues. It’s a privilege to be able to do it,” Mr O’Shea says. an LIV member,” Ms Wilson says. For details see: www.liv.asn.au/Professional-Practice/Areas- of-Law. n

18 LAW INSTITUTE JOURNAL MAY 2018 news Property sale

LIV SELLS 470 BOURKE STREET THE SEARCH IS UNDERWAY FOR A NEW HOME FOR THE 159-YEAR-OLD LAW INSTITUTE OF VICTORIA.

On 4 April, the LIV announced the long-term CBD headquarters of the LIV at 470 Bourke Street had been sold. The final sale price and purchaser details are confidential, however, selling agents Colliers International confirmed the result comfortably exceeded the LIV’s reserve price. “Our building has served the Law Institute and the Victorian community well for almost

40 years. But the building is no longer fit for Law Institute of Victoria building, 470 Bourke Street purpose for the LIV and it is time to move to modern office accommodation,” LIV CEO Nerida Wallace says. “We’re excited to be moving to modern Rob Harrington of Fitzroys. and the limited supply of significant accommodation in the legal precinct so we can The LIV sold the property subject freehold offerings during the first better support our members, the legal profession to a six-month leaseback, with an quarter of 2018. and the community.” option for a longer lease if needed, Matt Stagg added the strong The nine-storey building has a net lettable to provide sufficient time to Melbourne CBD office leasing area of 3339 square metres. The underlying relocate to another building within market and low interest rate land area is 916 square metres with dual street the legal precinct. environment had fuelled frontages to Bourke Street and Little Bourke The LIV is looking to buy new purchaser demand for commercial Street, and direct access to the city’s legal accommodation and establish a investments in the Melbourne precinct. permanent new home for Victoria’s CBD from local and international The property sought expressions of interest, lawyers. investors. including from international buyers, through “We have been doing a lot of The LIV was advised on the Colliers International’s Melbourne city sales work to find new accommodation. sale by Charter Keck Cramer and team of Oliver Hay, Matt Stagg, Daniel Wolman The space will be configured to Russell Kennedy Lawyers. The and David Sia. The purchaser was represented by meet members’ needs, and those LIV is examining several leasing of staff, and take the LIV into the opportunities and is being advised future. Until we move, however, by Charter Keck Cramer in the it is business as usual for all,” Ms process. Wallace says. The LIV will keep members Colliers International selling up to date with news of future agent Oliver Hay said the campaign accommodation arrangements generated more than 130 buyer through LawNews, the daily email to inquiries and multiple bids from a members, and upcoming editions of range of owner-occupiers, investors the LIJ. n and developers. The strong buyer response was due to the property’s Law Institute of Victoria library prime location on Bourke Street

MAY 2018 LAW INSTITUTE JOURNAL 19 news Paperless courts COURTS AT A TURNING POINT IT’S TAKEN LONGER THAN EXPECTED, BUT THE PLANETS ARE FINALLY ALIGNING TO

BRING COURTS CLOSER TO A PAPERLESS Courts update: On the brink of an electronic revolution ENVIRONMENT. BY KARIN DERKLEY

Back in 1997, the LIJ reported on what was then one of now got the ability to access technology which is off the shelf and the biggest ever civil trials, the collapse of fund manager already tested in other sectors. Estate Mortgage. “It’s more adaptable, accessible, varied and capable of being The trial was one of the first in the world to use computers adapted to an organisation’s requirements – and cheaper.” to deal with the vast numbers of documents that had to be At the same time, there’s an increasing demand for tech-based waded through during the trial’s 80 sitting days. The Netscape solutions by court users, he adds. “Court users have become browser-based technology was estimated to have slashed the used to transacting electronically, doing their online banking and length of the hearing by half. shopping via their smartphones, and doing that remotely and The buzz around the case at the time made it seem that outside business hours, So even for ordinary litigants that has now the court system was on the brink of an electronic revolution become their expectation in terms of how they do business.” that would banish archaic and inefficient paper systems from Those changes mean the first step towards a paperless court the courtroom. However, the revolution has turned out to be – the electronic lodgement of court material – is now slowly somewhat slower than expected. becoming the norm rather than a distant aspiration in the courts’ Twenty one years later, there is still a surprising amount of digital strategy plans. paper in the legal precinct. Barristers still push trolleys full of The County Court was one of the first to shift to an electronic paper briefs along William Street, and 300-page courtbooks document lodgement system when, in 2003, it launched a pilot in are common. The fact that courts are still reporting on digital the Common Law and Commercial Divisions. By 2017, 90 per cent transformation strategy in annual reports as if it’s a new of the nearly 56,000 documents received by the Court were filed development shows how far we’ve got to go. electronically. “Perhaps we were a bit over-optimistic,” says Professor Anne At the Supreme Court, eFiling is being rolled out, with a soft July Wallace, associate head of Latrobe University Law School, 2018 target for the Common Law Division, the Costs Court and the who has been writing about technology and the courts since remainder of the Commercial Court, and will be extended to the the mid 1990s. “The paperless court is still a bit of a mirage. Court of Appeal and Criminal Division as soon as possible after We see courtrooms full of folders, paper diaries are the main that, subject to funding, Mr Hetyey says. scheduling system and it always surprises me how many The Magistrates’ Court has projects underway that aim to reduce processes are manual or use basic technology such as Excel.” its reliance on manual, paper-based processes, including building Supreme Court registrar Julian Hetyey concedes it has taken a modern case management system to replace the 30-year-old longer than expected to achieve a paperless court system. This CourtLink, online application forms, e-lodgement, and issuing is partly because the hardware required to deliver electronic court orders and warrants electronically. courts in the past was so costly, he says. VCAT has been offering e-lodgement since September 2016 and But Mr Hetyey believes the court system is now at a turning is working on extending this to planning and environment cases point, with a rapid acceleration in technology and innovation and eventually to all cases. within the legal profession leading to what he says is an VCAT CEO Keryn Negri says the key to boosting uptake is to “unprecedented existential moment” where the “planets have provide a service that is simple and convenient. “For example, the finally aligned”. uptake of our owners corporations application form is high (74 “There’s been momentous change in the past five years,” per cent) because the form suits the needs of professional owners he says. They include inexpensive consumer technology like corporations managers who lodge the bulk of claims.” smartphones and tablets, high-speed internet, and cloud- The Office of Public Prosecutions (OPP) is doing its bit to deliver based data storage and access. matters to the courts in electronic form under the eagle eye of That change means that instead of having to rely on Solicitor for Public Prosecutions John Cain, who is committed to a bespoke systems requiring expensive infrastructure, “we’ve paperless office.

20 LAW INSTITUTE JOURNAL MAY 2018 news Paperless courts

At the OPP the paperless journey starts at the outset, with police briefs required to be input via an online portal. “It used to be that Victoria Police would print out multiple copies of a matter for the use of the OPP, the court, and defence,” Mr Cain says. “Now one copy goes into the ‘cloud’ and everyone has access to it immediately. The savings in time and effort are enormous, which means more police on the street rather than acting as delivery people.” With the process beginning in electronic form, the OPP aims to keep it there. “If the process starts in paper there’s a good Committed to a paperless OPP: Solicitor for Public Prosecutions John Cain chance it’s going to finish in paper,” says Mr Cain. At the County Court, most material comes into the Court in electronic form via its Registry and it’s a straightforward process are a key part of the Court’s future strategy, Mr Hetyey says. He Courts update: On the brink of an electronic revolution to input that material into the electronic case management says there is evidence that eTrials reduced by a third the trial system for the use of the judges, says County Court IT project time in mega-litigations like the Great Southern class action. coordinator Grace Ong. Since April this year, County Court files Mr Hetyey says he would like to see eTrials “democratised” in the majority of lists are managed electronically. so that “all of our courts will be able to run eTrials for For judges and court users, electronic case files offer a much any matter within the next two years – not just the large more flexible way of working, Ms Ong says. scale litigation – but the whole gamut of litigations in the “They’re easily searchable. It’s easy to add new documents. Supreme Court.” And the files are accessible to multiple internal parties at a time, The OPP is leading the way on how this can be achieved which is really important for County Court matters heard in with its new system of electronic jurybooks that uses easily regional courts.” accessible consumer technology rather than a proprietary Ms Ong credits former Chief Judge Michael Rozenes with system. setting the direction on digital technology at the Court. Jury members as well as witnesses are provided with “We, as the Court, knew that if we were going to have an tablets preloaded with material required for the trial internal electronic court file then we needed the electronic including documents, photos, videos and maps. The lodgement portal to happen at the same time. This keeps the material can be individually annotated by users and easily process electronic end-to-end.” updated and amended by the court as the trial goes on. The Court’s efforts with digital technology have escalated The OPP has used the jurybooks in four trials to date. “We’re under the leadership of Chief Judge Kidd, who has focused on finding we’re getting through the evidence faster because it’s technology to improve the court user experience. so much easier for everyone to see the material on their tablets At the Supreme Court, the e-filing platform is directly rather than handing it around.” Mr Cain estimates that up to 25 integrated with the case management system, which along with per cent is being shaved off trial time through the technology. saving reams of paper and storage space, is available 24/7 from The County Court is also piloting the use of electronic anywhere i with internet access, Mr Hetyey says. courtbooks under Judge O’Neil and Judge Tsalamandris. Despite all these advances and the precedent of the Estate “Success with this pilot would mean a massive saving in paper Mortgage trial 21 years ago, what the courts still haven’t and be more efficient in terms of administration for both the achieved, is the “electronic courtroom”. Apart from some large Court and the practitioners who deal with the Court,” Ms Ong litigations, most trials still require several small forests’ worth of says. material to be printed out and filed into multiple courtbooks. No one is suggesting that paper will ever be completely But it’s not far away. At the Supreme Court, so-called eTrials eliminated from the court system. “What we’re aiming for is to have hard copy documents as the exception rather than the rule,” Mr Hetyey says. “Some people may not be comfortable with the technology, so you can still have paper,” says Mr Cain. “But you’ll have just two out of 25 people who are running paper, not the whole of the court.” Anne Wallace says it’s probably more useful to look at the paperless court as “aspirational” rather than an absolute. “It’s really about sizing the technology to the need, and maybe sometimes an A4 piece of paper is a good bit of technology.” n

Supreme Court registrar Julian Hetyey MAY 2018 LAW INSTITUTE JOURNAL 21 news Opinion

REPUTATION IN THE DIGITAL ERA

publications (compared to just 17 the current laws are largely effective per cent in 2007), and a mere 25 per and Victorian courts have been readily cent of defendant publishers were capable of implementing them to traditional media companies:16 cases changing technology. So while the involved Facebook posts, 20 emails, UTS report is illuminating, it does CHRISTIEN CORNS four tweets and two text messages; 37 not, in my view, herald a need for cases involved websites not affiliated dramatic law reform. The financial with traditional media, Facebook or and emotional cost to parties involved WITH THE NUMBER OF DIGITAL DEFAMATION Twitter; and in three cases (all relating in proceedings is more concerning. to internet search results) Google was Defamation proceedings are ripe CASES RISING DRAMATICALLY THE FINANCIAL a defendant. for interlocutory disputation, and AND EMOTIONAL COST TO PARTIES INVOLVED Only 21 per cent of plaintiffs were notoriously expensive to run to trial. IN PROCEEDINGS IS CONCERNING. considered public figures, debunking While the “concerns notice” and the myth that defamation actions “offer to make amends” are dispute One thing I have learned throughout my career is are reserved for the rich and famous. resolution processes created by the that the law must be concerned with striking an However, approximately two-thirds of uniform defamation acts, they are not appropriate balance between personal freedoms plaintiffs were unsuccessful, meaning always well understood and can be and the protection of society. This is particularly that the majority of aggrieved cumbersome to engage in. stark, and challenging, when it comes to the law plaintiffs are left with considerable In that regard, perhaps one area of of defamation which seeks to balance freedom of legal fees to pay and without the reform that might be considered is to speech against protection of one’s reputation, the remedies sought. encourage judges at a first directions latter being an asset difficult to establish but easy to Judge Judith Gibson, who manages hearing to order that before any lose, and therefore of great worth. the defamation list in the NSW interlocutory steps are taken, parties The Australian common law of defamation has District Court, has called for law in “digital defamation” cases attend traditionally aligned with English law, and from 2005 reform. She has suggested that a compulsory without prejudice each Australian state and territory has enacted their lawmakers might consider introducing settlement conference. own, largely uniform, Defamation Act which operates a UK-style “serious-harm” test, which Crucially, the settlement conference alongside the common law. The often technical provides that “a statement is not should be conducted by a judicial nature of defamation pleadings and the complicated defamatory unless its publication officer or other independent array of available common law and statutory has caused or is likely to cause practitioner experienced in defences surely speaks to the challenges faced in serious harm to the reputation of the defamation law, and the plaintiff striking the aforementioned balance. claimant” (s1(1) of the Defamation Act could be required in advance to Defamation law has, of course, had to adapt to 2013 (UK)). No Australian jurisdiction provide a “statement of harm” which changes in society. The advent of printing presses, requires proof of harm in order to sets out the actual harm perceived and later the mass media, meant that defamatory maintain a defamation proceeding, by the plaintiff. Such a process publications were more easily disseminated to although our uniform defamation will not suit every case, however larger audiences, increasing the overall damage to legislation does provide for a defence given the burgeoning number of personal reputations. The concept of what it is to be a of “triviality”. While a UK-style “serious digital defamation cases, holding a publisher – and therefore the range of persons liable harm” threshold might help eliminate settlement conference at the first for defamatory publications – has expanded. at an early stage trivial cases involving possible opportunity would at least The rise, indeed explosion, of digital publishing personal spats fought out in the enable the parties to understand and platforms, particularly email, web-publishing and Twittersphere, Australian defamation narrow the issues in dispute, and at social media such as Facebook and Twitter, has law has several defendant-friendly best would lead to the early resolution undoubtedly presented challenges to lawmakers. A protections which other nations do of a number of cases. n study published in March 2018 by the UTS Centre not. For example, there is a statutory for Media Transition, “Trends in Digital Defamation: cap on general damages, and most Christien Corns is a partner in K&L Gates’ complex commercial litigation and disputes practice. He has Defendants, Plaintiffs, Platforms”, found that the corporations are prohibited from experience advising plaintiffs and defendants on majority of the 189 defamation cases in Australia bringing proceedings in the first place. defamation and related media issues. between 2013 and 2017 primarily involved digital In my experience as a practitioner,

22 LAW INSTITUTE JOURNAL MAY 2018 news Welcome

Justice John Champion JUSTICE JOHN CHAMPION WAS WELCOMED TO THE SUPREME COURT OF VICTORIA ON 13 FEBRUARY 2018. AMONG THE SPEAKERS WAS LIV PRESIDENT BELINDA WILSON. THIS IS AN EDITED VERSION OF HER SPEECH.

I appear on behalf of the LIV and the solicitors of this state to welcome your Honour John Champion as a judge of this court. If time and space allowed, literally hundreds of solicitors In February 2012 at the Academy of Forensic Science, your would be queued behind me, all eager to speak in praise of Honour spoke publicly for the first time after being appointed your Honour. They would summarily define your reputation Victorian Director of Public Prosecutions. as a reliable, reassuring and ever-approachable lawyer, mentor Part of the speech praised the initiative of an Office of and supporter. Equally, your Honour has often acknowledged Public Prosecutions solicitor. The solicitor had sought an solicitors for their professionalism and commitment to high expert’s opinion after defence lawyers produced theirs in a standards and hard work. discontinuance application based on the cobweb construction Your Honour’s CV lists four decades of career achievements, of a common black house spider at a crime scene. yet no mention of the importance of music in your life which Certainly an unusual matter, but equally fascinating – given would be on song with a fuller picture. your private nature – was that you publicly revealed a phobia There is nothing of the joy had or brought to others playing about spiders. “Anyone who knows me,” you said, “will tell you decades with the Lex Pistols, the band spruiked for an upcoming spiders are not my best friend” . . . That’s lawyer speak for pure Essoign Club appearance as “those incorrigible dirty realists of arachnoid terror. judicial protest rock”. Its gestation indirectly began in the 1980s Eight legs, however, might have been handy at the DPP given when barrister Lex Lasry asked solicitor Leon Parker if he would the immediate challenges and the demanding new position as have a junior to prosecute a Commonwealth drug case. head of the all-encompassing Public Prosecution Service. Your Told it would be a John Champion, now-Justice Lasry asked: Honour’s role in stabilising the OPP and restoring morale cannot “Who’s John Champion?” to which Mr Parker famously replied: be overstated, nor your public acknowledgements of staff and in “It doesn’t matter – he comes with the brief”. defence of the service’s work. As in-house counsel for the Commonwealth DPP between 1999 To the Royal Commission into Family Violence, your Honour and 2005 – and briefed by its solicitors for many years before and addressed how the work of OPP solicitors often included after at the Bar – your Honour prosecuted mostly complex drug negotiating the delicate balance between victims and the legal and fraud matters in committals, trials and appeals. system, especially in consultations over very difficult decisions Your wisdom, consideration for others and unflappable nature such as plea negotiations and discontinuances. made you a great favourite with staff. When a newspaper splashed page 1 with claims of “secret A totally fair and effective prosecutor, you were never tempted plea deals”, your Honour immediately responded to label the to join the fray when personal hostility sometimes erupted in reporting “simply wrong” and based on “falsehood and distortion” criminal trials. in an op-ed piece. The attribute fits another observation that your Honour has Your Honour’s commitment in affording victims a dignified never been heard to utter a bad word about anyone. Displeasure voice – and ensuring fair trials – was unquestioned, as was your perhaps smouldered inside, but outwardly only a wry smile or a awareness that participants, when settling highly emotionally- raised eyebrow. charged cases, were often damaged and extremely traumatised. One can imagine such self-control during the Pong Su As DPP, your Honour had a unique talent for engaging committal hearing when the 30-odd accused rose suddenly and everyone by name – and playing Christmas carols on the guitar outraged as one – shouting, fists punching the air – at a witness’s for the children of staff members. Equating cover songs from criticism of then-North Korean ruler, the dear leader Kim Jong-il. the Lex Pistols’ play list to your work as DPP was easy – for A ground-breaking prosecution under the Commonwealth instance, Come Up and See Me/Make Me Smile and Don’t Let Me Be Criminal Code, preparation included visiting South Korea to Misunderstood. interview defectors from the North and conferencing expert But this new, richly deserved career for the lawyer witnesses on evidence from the effect of wind, waves and affectionately called “Champs” will create original compositions currents on a ship to the workings of diesel engines, outboard with familiar lyrics of integrity, decency and intellect. motors and the politics of North Korea. We wish your Honour well. n

MAY 2018 LAW INSTITUTE JOURNAL 23 news Obituary

Bob Baxt AO 27 JUNE 1938 – 11 MARCH 2018

Professor Robert (Bob) Baxt AO was born in Japanese occupied Shanghai before the outbreak of World War II. His family settled in Australia in 1947. He was educated at Newington College, Sydney, and Sydney University. He served articles with M Rosenblum & Co and, in 1962, was Law Council of Australia (Business Law Section). admitted to practice in New South Wales as a solicitor. In In March, Professor Baxt was awarded Monash 1963, he won a scholarship to Harvard. He began practice University’s highest honour, an honorary LLD. as a solicitor with Freehill, Hollingdale and Page in Professor Baxt established an annual competition Sydney and he practised there until September 1965. law workshop, bringing together the nation’s top He decided to become an academic and joined Sydney practitioners, regulators, judiciary and government University in the law section of the economics faculty. In officials involved in competition law. 1968 he moved to Melbourne to take up the role of senior Professor Baxt had an outstanding reputation for lecturer in law in the law faculty of Monash University. his love of the law and law reform. He was known for He was dean of the Monash University law faculty from his boundless energy and prolific legal commentary 1980 to 1988. and was considered a giant of the corporate law world From 1988-1991 he was chair of the Trade Practices in Australia. It was known he was drafting articles in Commission (now the Australian Competition and hospital right up until his passing – but there was little Consumer Commission), whose profile he helped raise. point telling him to slow down. From 1991-2004 he was a partner at Allens Arthur Throughout the many phases of an extensive legal Robinson. career in academia, administration and practice, he He then re-joined Freehills as a partner in 2005, demonstrated a deep interest in the professional becoming an Emeritus partner of the firm in 2011 and a development of young lawyers. For those who showed a consultant in 2016. There, he was a friend and mentor to genuine interest in competition law he had a lot of time. many. He was a Professorial Fellow of the University of He also sponsored an LCA rising stars program. Melbourne. Professor Baxt’s wife Ruth said at his funeral that the After many years of devoted service to the legal law was his profession and his hobby, although he was profession, Professor Baxt retired in October 2017 also passionate about sport and enjoyed classical music but still continued his policy and academic pursuits, and reading. He was a loyal friend to many. continuing to put competition law on the national policy She spoke of his love for his family, how much he map and advocating for a strong legal profession. enjoyed watching his daughters grow up and being His enormous contributions to the legal community “Bobby” to his grand-daughters. Being there for his were recognised with a number of prestigious immediate and extended family was very important to accolades throughout his career, including an Order him. He had been a loving son and brother, respectful of Australia for services to the law, particularly as a son-in-law, caring uncle and great-uncle, wonderful leading spokesperson in the areas of trade practice, father and husband. They had shared a “most wonderful competition, taxation and corporate law and in the partnership” and she had been very fortunate to have field of legal education, the Centenary Medal, and the “this wonderful man” at and on her side. With her Queen’s Birthday Honours Award 2003. He was also darling Bob’s passing, she said, she had lost her “rock”. n awarded the first honorary life membership by the RENEW YOUR

LIV Young Lawyers 2018 Executive Committee MEMBERSHIP (Back row) Phoebe Blank, Georgia Smith, Brendan Lacota, Julianna Marshall (front) Carla Giaquinta, John Stack, Nikolas Kalcic www.liv.asn.au/Membership

24 LAW INSTITUTE JOURNAL MAY 2018 RENEW YOUR

LIV Young Lawyers 2018 Executive Committee MEMBERSHIP (Back row) Phoebe Blank, Georgia Smith, Brendan Lacota, Julianna Marshall (front) Carla Giaquinta, John Stack, Nikolas Kalcic www.liv.asn.au/Membership Features Medical Treatment Planning and Decisions Act

26 LAW INSTITUTE JOURNAL MAY 2018 features Medical Treatment Planning and Decisions Act Values and preferences for future medical treatment

A NEW ACT TO CONSOLIDATE The new Act: t • includes prescription pharmaceuticals and MEDICAL TREATMENT LAWS AND palliative care in the definition of medical SNAPSHOT: ENSURE A PERSON’S VALUES AND treatment.1 This means a health practitioner must obtain consent before prescribing a •• A person can PREFERENCES ARE FOLLOWED appoint a medical pharmaceutical. A person can express their treatment decision CAME INTO FORCE IN VICTORIA preferences on palliative care in their advance maker to make ON 12 MARCH 2018. BY BILL care directive but cannot refuse it in advance medical treatment for a time when they do not have decision decisions on their O’SHEA AND REBECCA PARK 2 making capacity behalf when the • allows a person with medical treatment person loses Why was this law introduced? decision making capacity to appoint a support decision making person. The support person’s role is to assist capacity for medical The Medical Treatment Planning and Decisions the person to make a medical treatment treatment. Act 2016 (Vic) (the Act) aims to simplify and decision (for example, by gathering information consolidate medical treatment laws in Victoria. It •• A person can to help with decision making and to help in make an advance provides a legislative framework for advance care communicating the decision).3 The support care directive for planning. It also allows for the appointment of a person also acts as an advocate when the future medical medical treatment decision maker and a support person loses decision making capacity for treatment after person. medical treatment4 they lose decision The Act is designed to ensure that a person’s • enables a person with decision making making capacity for values and preferences on medical treatment medical treatment capacity to execute an advance care directive, will be followed when they lose decision making which can include documenting their preferences and values on capacity for medical treatment. an instructional treatment by way of an instructional directive directive which or a values directive or both5 What are the major changes to medical must be followed • through an instructional directive, allows treatment laws in Victoria as a result and a values a person to refuse or consent to medical directive which of the Act? Why were they thought treatment for a future or current condition6 must be considered. necessary? and to give directions about treatment for •• A person can The Act repeals the Medical Treatment Act 1988 (Vic) specific conditions or about medical treatment appoint a support 7 (MTA) and replaces the appointment of a medical generally person to help with agent under an enduring power of attorney • allows a person to include a values directive decision making (medical treatment) with the appointment of a as part of their advance care directive which while they have medical treatment decision maker who will make sets out what is important to the person to medical treatment medical treatment decisions for the person when assist the medical treatment decision maker decision making they lose decision making capacity for medical in making a medical treatment decision when capacity and support them when treatment. the person loses decision making capacity for they can no longer The repeal of the MTA marks the end of medical treatment8 decide on their the Refusal of Treatment Certificate where a • protects “health practitioners” (the definition medical treatment. person could refuse medical treatment. A major covers ambulance officers and non-emergency limitation was that the person could only refuse transport staff together with the 14 health medical treatment for a current condition. professions listed in the Health Practitioner ADOBE STOCK

MAY 2018 LAW INSTITUTE JOURNAL 27 Features Medical Treatment Planning and Decisions Act

Regulation National Law (Victoria) Act and continuing relationship and is ready, unprofessional conduct.22 2009)9 by providing them with an willing and able and is: Failure by a health practitioner immunity where the Act is followed.10 • the person’s spouse or domestic to follow an instructional directive partner; if none then or consider a values directive also What is the difference between an • the person’s primary carer; if none then constitutes unprofessional conduct.23 instructional directive and a values • the first of the following (and where There are limited exceptions to these directive? more than one, the oldest): requirements in the Act.24 • an adult child; if none then A health practitioner who administers • An instructional directive sets out a • a parent; if none then or does not administer treatment person’s legally binding instructions • an adult sibling.19 in good faith in accordance with an consenting to and refusing current and In the case of a child, the medical instructional directive is protected from future medical treatment.11 Save for in treatment decision maker is the child’s liability for misconduct, unprofessional very limited circumstances,12 it must be parent or guardian or a person with conduct or civil or criminal penalty.25 For followed by a health practitioner after a parental responsibility for the child who instance, if a health practitioner refuses person loses capacity to make medical is ready, willing and able to make the to resuscitate a patient, acting on that treatment decisions.13 decision.20 person’s instructional directive despite • A values directive sets out a person’s family instructions to the contrary, the values and preferences for future Is the new Act just about planning health practitioner will not be liable for medical treatment.14 Save for in for end of life? refusing to administer treatment. limited circumstances,15 a values In an emergency, a health practitioner is directive must be considered by a No, not at all. An advance care directive not required to seek consent for medical health practitioner before treatment is can be made at any time and at any age treatment for a person lacking medical administered.16 – even a child can make one so long as treatment decision making capacity if they understand the nature and effect of they believe on reasonable grounds it is You are referring to “decision each statement in the directive. It can be necessary, as a matter of urgency, to save making capacity for medical made even if a person is fit and healthy. the person’s life, prevent serious damage treatment”. Has the new Act A person who makes an advance care to the person’s health or prevent the changed the way we regard directive at age 35 will no doubt hope it person from suffering or continuing to capacity? won’t be required for at least 40 years. But suffer from serious pain or distress.26 nobody knows what’s around the corner. Yes. The definition of capacity in the However, even in an emergency, if A bike accident or a sporting injury could new Act is consistent with the Powers of the health practitioner is aware that suddenly leave a person without medical Attorney Act and recognises that capacity the person has refused treatment via treatment decision making capacity. can fluctuate and is always decision- an instructional directive or a refusal It’s the same with a will. A person specific.17 For instance, a person might of treatment certificate under the MTA should not wait until they are at death’s have capacity to appoint a medical which is still in force (or any other form door before making a will. treatment decision maker, but not to of informed consent – such as a verbal Clients should be encouraged to plan make an advance care directive or, indeed, refusal while they had medical decision for future medical care at all stages of a will. The LIV’s Capacity Guidelines have making capacity), the health practitioner their life and review these plans regularly been updated to reflect the changes – a cannot administer the treatment.27 – a person’s wishes today might be vastly concise version is available online free to different to their wishes in 20 years’ members and a full edition is available in time. Regular evaluation will ensure What advice do you give to legal the LIV bookshop. that the documents relied on by health practitioners to prepare for these practitioners at the time a treatment changes? What if nobody has been decision is required reflect the person’s Perhaps most significantly, legal appointed to make medical current wishes. practitioners need to be aware of the new treatment decisions and the decision making test, which centres on person loses capacity to make How are health practitioners personal choice. This marks a significant medical treatment decisions? affected by the new Act? deviation from how medical treatment If a person has not appointed a medical The Act requires health practitioners decisions were to be made for persons treatment decision maker and VCAT has to make reasonable efforts in the without decision making capacity under not appointed a guardian with power to circumstances to ascertain whether a the old regime, whereby substitute make medical treatment decisions, the person without decision making capacity decision makers were required to make new Act provides a hierarchy of persons for medical treatment has an advance decisions they reasonably believed to be who can act as the medical treatment care directive or has a medical treatment in the person’s best interests.28 The new decision maker.18 decision maker or both.21 If a health test requires a person’s medical treatment The medical treatment decision maker practitioner fails to make a reasonable decision maker to make the decision will be, in order, an adult who has a close effort to find this out, it constitutes they reasonably believe the person would

28 LAW INSTITUTE JOURNAL MAY 2018 features Medical Treatment Planning and Decisions Act

of Treatment Certificate practitioners and members of the made before 12 March public get more information? 2018 will continue A bike accident or a sporting There are no prescribed forms for to be valid so long as appointing a medical treatment decision injury could suddenly it complies with the maker or making an advance care requirements of the MTA leave a person without directive, but the forms must meet (even though the MTA the formality requirements of the Act. has been repealed).33 medical treatment decision Forms are available via the Department Emergency treatment of Health and Human Services and the making capacity. cannot be administered Office of the Public Advocate. if it has been refused by The LIV will be offering education a legally valid Refusal of have made for themselves, if they had seminars for members and will keep Treatment Certificate.34 decision making capacity.29 The medical members up to date with details of when treatment decision maker is required to and where these sessions will be run via What are the witnessing consider whether the proposed medical LawNews, the daily email to members. n requirements for appointing a treatment, or alternative treatments, medical treatment decision maker Bill O’Shea is a past president of the LIV and chair of including refusing treatment, are aligned and the making of an advance care College of Law Victoria. He was Alfred Health’s first with the person’s preferences and general counsel and is chair of the LIV's Elder Law Section. 30 directive? values. In making a medical treatment Rebecca Park is lawyer to the LIV’s Elder Law, decision, a medical treatment decision The appointment of a medical treatment Succession Law and Workplace Relations Law Sections. maker is required to give consideration decision maker must be witnessed by She previously worked with Justice Connect’s seniors law to any relevant values directive, then to two adults, at least one of whom must team and currently volunteers at Fitzroy Legal Service. any other preferences expressed by the be a registered medical practitioner or a 1. Section 3. person and the circumstances in which person authorised to take affidavits.35 2. Sections 12(3)(c)(ii) and 57(1). they were expressed. If the person has However, an advance care directive 3. Sections 32(1)(a) and 94(1). not expressed any relevant preferences, must be witnessed by two adults, at 4. Section 32(1)(b). these are to be inferred from the person’s least one of whom must be a registered 5. Section 12. life.31 medical practitioner.36 In addition, the 6. Section 6(1). As legal practitioners, we should urge witnesses must certify that: 7. Section 6(3). 8. Section 12. See also s6(2). our clients to speak to people to whom • the person appears to have decision 9. Section 3; Health Practitioner Regulation National Law they feel close to make sure their wishes making capacity (Victoria) Act 2009, App Item 5. and values are understood before setting • the person understands the nature 10. Section 52. them out in an advance care directive. and effect of each statement in the 11. Section 6(1). These plans should be reviewed directive 12. Section 51. regularly to ensure they reflect the • the person signed it freely and 13. Section 60(1). preferences and values of the person at voluntarily in the presence of both 14. Section 6(2). 15. Section 53. various stages of their life. witnesses 16. Section 60(c). • neither of the witnesses is an 17. Section 4. Will appointments of medical appointed medical treatment decision 18. Section 55(3). agents under an enduring power maker for the person.37 19. Section 55(3). of attorney (medical treatment) be While a registered medical practitioner 20. Section 55(4). valid after the new Act comes into is required to witness an advance care 21. Section 50(1). 22. Section 50(2). force? directive, legal practitioners have a 23. Section 60(2). critical role in drafting advance care An agent validly appointed under the 24. Sections 51 and 53.. directives to ensure their client’s MTA as an enduring power of attorney 25. Section 52. preferences and values are sufficiently 26. Section 53(1). (medical treatment) before 12 March clear and unambiguous so that health 27. Section 53(2). 2018, or as enduring power of attorney practitioners can follow them when the 28. Guardianship and Administration Act 1986 (Vic), s38. (guardianship) with medical treatment 29. Section 61. person loses decision making capacity for decision making powers, saved by the 30. Section 61(2). medical treatment. This should be done Powers of Attorney Act 2014, will be treated 31. Section 61(2). when a client is reviewing their will and as having been appointed as a medical 32. Section 102(2). powers of attorney. 33. Section 102(1). treatment decision maker.32 34. Section 53(2). 35. Section 36(1). Where can you find the forms to What about Refusal of Treatment 36. Section 17(1)(c). make an advance care directive 37. Section 17(2). Certificates? or appoint a medical treatment The new Act provides that a valid Refusal decision maker? How can legal

MAY 2018 LAW INSTITUTE JOURNAL 29 Features Litigation

A breach of trust THE PROLIFERATION OF THE TRUST AS A VEHICLE FOR COMMERCIAL ACTIVITY PRESENTS ISSUES IN LITIGATION – PRINCIPALLY, WHETHER A BENEFICIARY CAN STEP AROUND AN IMPECUNIOUS OR ASSETLESS TRUSTEE AND RECOVER AGAINST OTHER BENEFICIARIES OR THIRD PARTIES. BY MICHAEL WISE SC* ADOBE STOCK

30 LAW INSTITUTE JOURNAL MAY 2018 features Litigation

In Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd1 the applicants successfully obtained judgment against beneficiaries as well as against the impecunious trustee. They were only able to do so because they had properly structured the proceeding with all necessary parties joined, and pleaded the case appropriately seeking relief against them. The case was a complex building case in relation to a project to construct apartments in Melbourne. The development project was carried out by a unit trust with a corporate trustee (Twentieth Green). The unitholders were four companies, each of which was controlled by an individual. Each individual was also a director of Twentieth Green. Colin Price, together with his wife, controlled one of the unitholders (Grovan). Price, together with his wife, also controlled the contracted builder for the project, Colin R Price & Associates Pty Ltd (CRP). At trial various claims were brought by CRP alleging that it had been underpaid for the building works and by t Grovan, that it had not been paid its proper entitlements as a beneficiary of the trust. Central to Grovan’s claims was the SNAPSHOT allegation that, to the extent that it had been underpaid its entitlements, the other unitholders had been overpaid theirs. •• The ubiquitous use This was alleged to have been a breach of trust against which of trusts as vehicles it sought relief. for commercial After a long trial, the judge held that CRP (as a creditor) activity can leave successful and Grovan (as a unitholder) were each entitled to be paid litigants with an a sum of money by Twentieth Green. By that stage it was empty judgment apparent that Twentieth Green had no assets with which to at the conclusion satisfy that judgment. Therefore, Grovan and CRP sought of an expensive that the other unitholders be required to make necessary proceeding. repayments so as to permit Twentieth Green to fulfil its •• Anticipating obligations to pay them and, in the final result, sought orders this, a litigator that the other unitholders pay the relevant sums directly to can structure a CRP and Grovan. proceeding to avoid The trial judge refused to make such orders, saying: this problem, if the “In my view, the order for payment of the relevant amount right circumstances to Grovan should be made against Twentieth Green alone exist. rather than against Twentieth Green and other respondents. •• In Colin R Price & Grovan’s claim is that Twentieth Green, as trustee, has not Associates Pty Ltd carried out its duties (both to account to Grovan for its share v Four Oaks Pty of the proceeds of the Project and not to make payments Ltd the applicants other than for proper purposes). These are claims against succeeded in Twentieth Green as trustee; they are not claims against obtaining judgment other unitholders. It is evident that Twentieth Green does not against unitholders presently have any assets; it may be expected that Twentieth of a trust even Green will seek to recover amounts paid to other unitholders though the trustee was impecunious. and third parties to enable it to pay Grovan the amount to which it is entitled. If Twentieth Green were unwilling to take action to recover the relevant amounts, Grovan may wish to institute proceedings, either in Grovan’s own name or in the ADOBE STOCK

MAY 2018 LAW INSTITUTE JOURNAL 31 Features Litigation

name of the trustee: see JD Heydon and MJ Leeming, Jacob’s Grovan may bring proceedings that ordinarily should be Law of Trusts in Australia (7th ed, 2006), [2303]. But it remains brought by the trustee in his, her or its own right against to be seen whether this will be necessary and any such a third party or other beneficiary on any cause of action, claim is beyond the scope of the present proceeding”.2 legal equitable or statutory, that the trustee has against The consequence of this finding was that Grovan and CRP that defendant. The beneficiary must join the trustee and obtained empty judgments against Twentieth Green. Grovan the third party as defendants if such special circumstances and CRP appealed the decision. On appeal the Full Court exist” (citations omitted).6 held that the trial judge was wrong not to have made the “Special circumstances” would embrace collusion orders against the other unitholders.3 between the trustee and the other beneficiaries or third Despite the respondents’ arguments to the contrary, the parties against whom recovery was sought, or insolvency of Full Court held that the claims against the other unitholders the trustee, or any “excusable or inexcusable” failure of the were advanced in the pleadings and were pressed in opening trustee to protect the interests of the trust.7 and closing submissions by Grovan.4 The Full Court continued: The respondents argued that there was no juridical “In our respectful view, in circumstances where: basis for a claim to be advanced by a beneficiary of a trust (a) the proceedings were structured so that the trustee, for repayment of monies wrongly paid by the trustee to the directors of the trustee, the unitholders, and the other beneficiaries or to third parties. They argued that directors or controllers of the unitholders were all before such a claim was unsupported by authority and involved the Court; a radical rewriting of trust law to allow claims against an (b) Grovan advanced claims against those parties seeking impecunious trustee to be visited on the beneficiaries.5 repayments to be made by the unitholders to the extent The Full Court rejected those arguments. that they had been overpaid and sought orders for “. . . contrary to the respondents’ submission, there payment to Grovan; and is a juridical basis for such a claim. Where ‘special (c) Twentieth Green has no assets; circumstances’ exist, a beneficiary under a trust such as his Honour erred in refusing to make orders against the

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32 LAW INSTITUTE JOURNAL MAY 2018 features Litigation

unitholders in favour of Grovan in respect of those amounts so recovered were paid to CRP. Under those circumstances, which he found were due to be paid to Grovan by Twentieth and in order to avoid a multiplicity of proceedings, it ordered Green. The pool of profit from the Project was fixed and the unitholders to make payment directly to CRP. any order in favour of Grovan properly involved making adjustments between the unitholders for distributions or Conclusion other payments made in error or in breach of trust, and The key to why the orders could be made in this case was the making orders for repayment of monies by unitholders who three factors of the decision set out above.11 were wrongly paid. Orders in favour of Grovan may have also Directors of a trustee company should be mindful of the properly involved orders against any director of Twentieth possibility that breaches of trust can be sheeted home to Green who caused the payments in breach of trust”.8 beneficiaries who are advantaged by that conduct. As alluded The Full Court placed considerable emphasis on the need to by the Court, such conduct can also ground liability in the in a modern system of justice to avoid a multiplicity of directors who caused the trustee to default in its obligations. proceedings.9 This is enshrined in s22 of the Federal Court of Litigators should consider such beneficiaries and directors Australia Act 1976 (Cth) which provides: as possible defendants when commencing litigation involving “Determination of matter completely and finally such breaches of trust. n

“The Court shall, in every matter before the Court, grant, Michael Wise SC is a commercial barrister and nationally accredited mediator of either absolutely or on such terms and conditions as the 25 years’ experience. He provides advice and appears in trials and appeals in matters Court thinks just, all remedies to which any of the parties related to all aspects of commercial relationships. He has a particular interest in appears to be entitled in respect of a legal or equitable claim contract, property, equity and trusts, corporations law, Australian competition and consumer law and financial services law. properly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the *The author appeared as counsel for the applicants at trial and the appellants on appeal. parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters 1. Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75; (2017) 251 FCR avoided.” 404; (2017) 349 ALR 100; (2017) 120 ACSR 451. In further reasons,10 and applying the same reasoning, the 2. Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (No 2) [2016] FCA 883 at [44]. 3. Note 1 above, at [100]. Full Court held that, to the extent that CRP had not been 4. Note 1 above, at [101]. paid what it was owed by Twentieth Green, the unitholders 5. Note 1 above, at [99]. had been overpaid their distributions by the trustee. Given 6. Note 1 above, at [102]. that all of the parties were before the Court, the matters had 7. Note 1 above, at [103]–[104]. been pleaded and pressed at trial and on appeal, and special 8. Note 1 above, at [109]. circumstances existed, the Full Court held that Grovan 9. Note 1 above, at [110]–[114]. 10. Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (No 2) [2017] FCAFC 101 at had standing to enforce the trustee’s right to recover the [16]–[18]. overpayments to the unitholders and ensure that the sums 11. Note 8 above.

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MAY 2018 LAW INSTITUTE JOURNAL 33 Features Wills and estates

Informal wills SINCE 1997 IT HAS BEEN POSSIBLE FOR INFORMAL WILLS TO BE ADMITTED TO PROBATE IN VICTORIA ON THE BASIS THAT THE DECEASED INTENDED THAT A DOCUMENT OR DOCUMENTS RECORDING TESTAMENTARY INTENTIONS BE HIS OR HER WILL. BY PHILIP BARTON

Section 7(1) of the Wills Act 19971 (the Act) provides The deceased must have intended that the t that a will is not valid unless: document be his or her will,8 ie, intended the a) it is in writing, and signed by the testator or by terms of the document without any alteration or SNAPSHOT some other person, in the presence of, and at reservation to be the manner of disposition of his the direction of, the testator or her property upon death.9 However, intention •• The law of informal wills in b) the signature is made with the testator's that the document(s) have an immediate present Victoria turns intention of executing a will operation as a will is unnecessary. So, for example, if on the deceased c) the signature is made or acknowledged by the deceased believed that the document needed to intending that an the testator in the presence of two or more be signed and properly witnessed to be operative, but informal document witnesses present at the same time died first, the document could still be an informal or documents d) at least two of the witnesses attest and sign will.10 The intention also need not exist when the recording the will in the presence of the testator but not document is created, but must exist before death.11 testamentary necessarily in the presence of each other. The fact that the deceased would have signed a intentions be his or However, s9(1) enables the Supreme Court to admit particular document if shown to him or her is her will. 2 3 12 to probate (a) a document not executed in the insufficient. However, the document need not have •• Successful above manner or (b) a document altered in a manner been seen by or read to the deceased.13 applications not complying with the Act, if the Court is satisfied The deceased’s awareness of and ability to avail of tend to be those that that person intended the document to be his or will making formalities supports the inference that where non- her will. Conversely, the Court may refuse probate he or she did not intend the document to be his or compliance with of a will if satisfied that the testator intended its her will, but lack of awareness supports a converse formal will making revocation by some writing not complying with inference.14 requirements is minor but the Act (s9(2)).4 The Court may have regard to The manner in which the deceased treated the the deceased’s any evidence relating to the manner in which document may be relevant, eg, entrusting it to a close testamentary 15 the document was executed and of the testator’s friend for safe-keeping shortly before death. intention is clear. testamentary intentions, including evidence of the Certain standard probate doctrines are indirectly testator’s statements (s9(3)). This includes hearsay.5 relevant – in particular the necessary intention •• Unsuccessful applications include There have been about 30 cases on these in s9(1) is not established if the deceased lacked those where the provisions, at an increasing rate, culminating in a testamentary capacity, did not know and approve of 16 deceased intended spate of decisions in roughly the last three years. the document, or was subject to undue influence. a further formal Interpretation of section 9 The propounder must establish each element document, or in s9 and testamentary capacity on the balance of had not finished There must be a document and that document probabilities.17 Unlike the case of a duly executed drafting, where must record testamentary intentions,6 ie, be will, an informal document carries no presumption the testamentary intended to be the legally operative act disposing of testamentary capacity.18 There is considerable intention ceased of the deceased’s property on death. Therefore, authority at first instance that theBriginshaw 19 before death, or the documents recording gifts or intended gifts during principles of evaluation of evidence apply to this document was too 20 informal. life, documents intended as personal memoranda establishment. However the Court of Appeal has or a note of intended instructions, or a draft or "trial left this open at least as to testamentary capacity.21 run" are excluded.7

34 LAW INSTITUTE JOURNAL MAY 2018 features Wills and estates

Successful applications for majority, not unanimous, trustees’ decisions. The deceased replied that two of his executors should decide this point. They Successful applications tend to be cases of minor non-compliance did so and the solicitor was instructed to amend the document with s7. Examples include: but the deceased died without executing it. Habersberger J • an unwitnessed signed and dated document commencing held that the deceased had originally evinced an intention to “Statutary [sic] declaration”, making clear dispositions, using sign a document which he had seen and approved, and it was the words “This is my last will and testament”22 immaterial that that intention altered to sign a document • a dated handwritten note listing bequests and an undated amended in one of two ways, both of which he would have doctor’s appointment card recording an appointment with the accepted28 handwritten words "$1000 PERSONALLY" (both admitted to • in 2006 the deceased typed a two-page document, which was probate together with a formal will)23 “a picture of clarity in terms”29 using a solicitor’s document as • a computer file making clear dispositions on death, concluding a precedent, dated and signed by him under the attestation with the deceased’s name and a date24 clause but not otherwise signed or witnessed. In 2009 he • a largely completed will kit form, but with the parts disposing took this document to a meeting with a beneficiary at which of property left blank, the deceased telling his domestic he provided instructions about amendment. He died shortly partner that, as he trusted her completely, she could complete afterwards and only a photocopy of the document could be the remaining sections at the time of his death as she wished, found. Bell J found that the 2006 document was an informal and similar words. Signing and witnessing then occurred, will which the deceased desired to stand pending amendment but with only one witness, and the deceased then filed the • an unsigned and unwitnessed document bearing the document in a cabinet25 deceased’s name, drawn as a will and expressing testamentary • a document (held to be an informal codicil) signed and intentions, dated, with “COPY” handwritten at its top, and with witnessed, but with no one writing in any other person’s certain crossed out words as to the original. The document presence, followed by the deceased saying that if a particular was itself a copy of a copy.30 witness was looking for his will it was in a pigeon hole in his office, after which he filed it in an envelope containing his 26 Unsuccessful applications earlier will • a will drafted by State Trustees on instructions from, and Unsuccessful cases have the common thread of documents not forwarded to, the deceased, signed by the two witnesses in the recording testamentary intentions and/or not intended to be the deceased’s presence but not by the deceased27 deceased’s will. They include the following situations: • a formal will was drafted on instructions but the deceased did • the deceased left two photocopies of a formal will, each not intend to sign it until his divorce became absolute. After with different handwritten alterations and an unexecuted the divorce became absolute he went through this document copy of that will with pencil marks. She clearly envisaged with an executor, who raised possible amendment to provide that a further document, which would be her will, would

MAY 2018 LAW INSTITUTE JOURNAL 35 Features Wills and estates

be prepared31 • two separate pages handwritten by the deceased on admission • the deceased placed a will kit on a desk stating to an employee to hospital approximately eight years before death, one that he wanted the will written up and saying “this is what appointing executors dated and signed by him and one [he] wanted to take place”. The employee wrote up all relevant witness, the other undated listing names with dollar amounts sections of the kit at direction, but the deceased then became both next to them and to words as to a funeral and renovation distracted and did not return to the task. There was insufficient of a house for sale. There was insufficient nexus between evidence that he had finished drafting32 the pages, the signed page suggested another document by • the deceased, who was a meticulous person, directed his referring to a “will + testament”, and the oral evidence was daughter to type a will which he subsequently amended inconsistent38 in handwriting, discussed further, and she then retyped • an informal handwritten and unwitnessed document, it with errors. He then decided to see a solicitor but died made just before surgery some years before death, unclear before doing so33 as to assets, property and beneficiaries, there being a • the deceased expressed an intention to execute an already previous solicitor-made will and evidence that the deceased drafted formal document once his divorce became absolute subsequently knew that a will needed to be finalised.39 but that intention subsequently ceased34 As noted above, a number of informal will applications also • a witnessed statutory declaration recording various fail on the ground of lack of testamentary capacity and testamentary intentions made 25 years before death. similar doctrines. Evidence was lacking that the deceased ever intended this 35 Costs to be her will • a will drafted by a solicitor, sent to the client under cover of a Unsurprisingly, the appropriate costs order turns on the facts of letter stating that the will had no effect until properly signed the case, including the existence of an effective Calderbank Offer.40 and requesting an appointment to do so36 In Jageurs v Downing (No 2)41 certain beneficiaries bore the costs of • an informal document, of which the circumstances of creation the unsuccessful application. Unsuccessful plaintiffs may obtain were unproven, by a person with a long history of will making reasonable professional fees to make inquiries into and investigate through and storage of documents by solicitors, and of the relevant evidence but not the costs of the subsequent collecting revoked wills from solicitors or destroying them37 application which they should have realised would fail.42 In Re Hobbs

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36 LAW INSTITUTE JOURNAL MAY 2018 features Wills and estates

19. Briginshaw v Briginshaw (1938) 60 CLR 336, 362. (No 2) a caveatrix who unsuccessfully relied on alleged informal 20. Note 17 above, at [72]; Note 18 above. 43 44 wills bore her own costs. Robinson v Jones (No 4) considers the 21. Re Tang [2017] VSCA 171, at [84]. reasonableness and proportionality of the costs of an unsuccessful 22. Note 2 above. application under s9. n 23. McDonald v Freston [2002] VSC 177. 24. Note 6 above. In Re Yu [2013] QSC 322 probate was granted of a document created on Philip Barton practises at the Victorian Bar in commercial, property, probate and land an IPhone. valuation law and publishes caveatsvictoria.blog. 25. Note 4 above, at [58]-[64], [132]-[135]. 26. Re Becroft [2009] VSC 481. 1. Section numbers in this article refer to this Act unless otherwise specified. 27. Re Will and Estate of Brian Bateman [2011] VSC 277. 2. Including letters of administration with the will annexed: Re McComb [1999] 3 VR 485. 28. Note 9 above, at [68]. 3. As defined in theInterpretation of Legislation Act 1984: s9(6). 29. Scott v Romanoff [2015] VSC 343, at [8] per Bell J. 4. Uncommon, and for example not established in Estate of Peter Brock [2007] VSC 415, at 30. Cook v Westwood [2017] VSC 509. [136]. 31. Note 7 above. 5. Cook v Westwood [2017] VSC 509, at [102], [103]. 32. Note 4 above. 6. Re Trethewey (2002) 4 VR 406, at [11]. 33. Prucha v Standing [2011] VSC 90. 7. Equity Trustees Limited v Levin [2004] VSC 203, at [15]. 34. Note 9 above, at [123]. 8. Note 6 above. 35. Note 11 above. 9. Fast v Rockman [2013] VSC 18, at [114]. 36. Rowe v Storer [2013] VSC 385. 10. Note 9 above, at [53], [111], [115]. 37. Re Sanders [2016] VSC 694. 11. Re Rosaro [2013] VSC 531, at [51]. 38. Re Lynch [2016] VSC 758. 12. Note 9 above, at [56]. 39. Re Estate of Brown [2017] VSC 24. 13. Note 9 above, at [66]. 40. Rowe v Storer [No 2] [2013] VSC 635, at [11]; Re Hobbs (No 2) [2017] VSC 611 14. Note 9 above, at [112]. (ineffective). 15. Note 4 above, at [38]. 41. [2015] VSC 509. 16. Note 16 above, at [73]. Examples of lack of testamentary capacity and similar doctrines 42. Note 41 above, at [24]-[25]; Re Mangan [2016] VSC 480. applying are Re Stuckey [2014] VSC 221; Robinson v Jones [2015] VSC 222; Jageurs v 43. Note 40 above. Downing [2015] VSC 432; Re Kelsall [2016] VSC 724. 44. [2016] VSC 160 17. Re Hobbs [2017] VSC 424, at [69]. 18. Re Kelsall, note 16 above, at [22].

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MAY 2018 LAW INSTITUTE JOURNAL 37 Features Mental health

A wellness KPI: implications for Australian law

TWO PROMINENT FIRMS HAVE ADVOCATED area of focused legal research and inquiry. It is therefore an opportune time for an analysis of the legal parameters of a FOR WELLNESS AND WELLBEING TO wellness measure. That this is an emerging area is borne out BECOME A MAINSTREAM ISSUE FOR by the fact that there is, to date, no “formal and universally 2 MANAGEMENT. BY ANDREW CLARKE accepted definition of a workplace program”. 'Soft' targets and their measurement In late 2016, national firm Medibank and international firm Deloitte produced a new employee wellness index which A recent development in Australia is the proposal to formally was promoted as enabling firms to measure the collective measure so-called “soft” or subjective targets which have long wellness and wellbeing of their staff. The firms advocated that been regarded as intangible and essentially subjective. These these concepts should become a mainstream issue for boards “soft” targets have included culture, diversity and inclusivity and management and form part of CEO accountability to the measures. The emerging fourth soft target is wellness.3 There board. In particular, they determined that responsibility for is a growing call for “wellness” to become a KPI for the board wellness should become a Key Performance Indicator (KPI) to consider, and against which to hold the CEO and senior against which leadership and management performance management team accountable. This is being advocated by could be judged. several stakeholder groups including national peak bodies dealing with community health and business issues, major The emerging workplace 'wellness' employer groups and international professional firms. project The Business Council of Australia chair Jennifer Westacott noted: “We need to take these things very In the past few years there have been numerous articles and seriously because these things at a kind of bottom line studies dealing with wellness in the workplace, and from result in unplanned absenteeism, they cost businesses several perspectives including health, rehabilitation, and money. They’re not just feel-good things. These are real management.1 It is, however, a relatively new and developing economic things. That’s why the Business Council is ADOBE STOCK

38 LAW INSTITUTE JOURNAL MAY 2018 features Mental health

interested and passionate about this.”4 A new form of t This push for a mandated approach has potentially workplace and serious consequences for boards and CEOs. It SNAPSHOT necessitates legal analysis of the project and its legal measurement ethos ramifications. •• Is a healthy The wellness concept, as it workplace created The choice appears to be between: emerges as a measurable organically via • the continuation of the bottom-up, broadly-informed management tool, will further best practice and organisational approach which is underway, and is a blur the former bright line a broad multi- version of corporate social responsibility between “hard”, tangible and disciplinary • moving to a top-down, mandated, legalistic approach. approach? easily monetisable measures, as opposed to “soft” targets. •• Alternatively, is Identifying the mental health and The emerging debate will focus imposing legal wellness indicia of staff within on how these things matter, mandates via KPIs and how they all, individually for boards and firms and collectively, impact on the CEOs a better way to proceed? financial success of the firm and The index Wellbeing@Work measures the concept of its sustainability and longevity. •• This article “wellness” across four “pillars”:5 discusses the • mind – mental health and resilience, including relative merits of self-esteem Staff wellness these approaches • body – physical health, including sleep, nutrition in international by taking a and exercise snapshot of key • purpose – how effectively an individual can bring literature developments their whole self to work, and find meaning in what in Australia and The issue of staff wellness they do internationally. has received attention in • place – how workplaces “walk the talk” on policies, international literature. eg, flexibility, diversity, inclusion, bullying and International studies and harassment.6 papers have been produced by the World Health Organization,11 the Organization A definition of wellbeing for Economic Cooperation and Development (OECD)12 and the European Union.13 The matter has also been While the literature points to the fact that there is no addressed by multinational companies with a global “consensus definition” of wellbeing,7 it is noted that “a employee network.14 key common element is that wellbeing is more than Countries with particular coverage of the issue include merely the absence of negative circumstances, such as the United States,15 France16 and Canada.17 The topic illness; rather it also includes positive features such as has given rise to particular discussions concerning the the quality of a job or happiness with one’s life”.8 unintended consequences of wellness programs, the An alternative definition put forward by Waddell and issues of privacy for staff, and the fact that employees Burton in 2006 is that wellbeing is “the subjective state may lose power rather than gain it, and that it can, in of being healthy, happy, contented, comfortable and fact, reinforce the hegemonic power of management. satisfied with one’s life”.9 Another key point is whether the program is obligatory The issue is complex for several reasons. and applies to all staff, or whether it is optional and First, terms such as “wellness”, “wellbeing” and depends on volunteers submitting their information via “workplace health” are often used interchangeably, and questionnaire or other format. Either way, the issue of they may overlap, intersect and be used in different ways. the privacy of and use to which information is put is a Second, the terms are themselves complex sensitive issue for employees. and omnibus in nature – they each carry several The issue, in turn, with obligatory models, is whether sub-meanings. particular staff with specific medical or wellness Third, the terms will mean different things to different conditions are actually targeted, or are perceived as fields of academic endeavour and practical purpose being targeted, for example smoking,18 obesity19 or the including law, management, health, sociology and disclosure of a sensitive issue such as a mental illness or psychology. The context and purpose of their use is, a medical history of a delicate nature.20 therefore, always instructive. The international literature points clearly to the fact Fourth, the terms may differ given the different that the implementation is not a panacea for a happy cultural, legal, and economic contexts in which they are workplace or a necessary correlative to higher profits or used. These concepts change when they move “across sustainability. national boundaries”.10

MAY 2018 LAW INSTITUTE JOURNAL 39 Features Mental health

Unless constructed with the needs of the particular firm in A new form of corporate governance mind, and put in place with perspicacity, a wellness program and social responsibility? may lead instead to deep distrust, increased industrial unrest, and a widening gulf between the employees and It is also likely to raise the wider debate in corporate management. governance – that of the shareholder model of the firm versus In seeking to hold the CEO to account for an additional the stakeholder model. Even a stakeholder model, however, KPI, the board may have in fact unleashed a complex needs to primarily keep the shareholders engaged and and unpredictable set of forces discussed below. satisfied. Does this new index therefore inevitably set up the shareholders in opposition to the employees? Changes to the legal content of established workplace arrangements A new form of 'if not, why not' compliance? Employment law and contract The proposed change is like recent corporate reforms, Employees would generally agree that they spend enough allowing the market to adopt the mechanism, at least time at work and that the relationship with their employer is initially, for reasons of enlightened self-interest. This form bound by long-established legal principles and protections. of self-regulation was used with the ASX Principles of Best The employer group would share the view that established Practice. principles work reasonably well. An employee’s private life The ASX Guidelines already require publicly listed firms should be just that. “to consider their risk management systems in regard to material effects of ethics, human capital and reputation”.23 At Tort law and occupational health and safety this point, however, “disclosure of social performance is not required by law”.24 The staff wellness proposal has the ability to change the Alternatively, the model Work Health and Safety Act proposed content of the duty of care owed by an employer to an by Safe Work Australia provides particular impetus for boards individual employee because it gives fresh impetus and at s27 “to manage corporate risks – including work health and expansion to the concept of the “safe workplace”. safety risks”.25 An employer already owes a series of well-established and thoroughly litigated elements making up the duty of care, given that the relationship is predicated on the bases of care, Intended and unintended supervision and control by the employer. consequences

Class actions by employees against their own firm The scale of Australian employee absenteeism through – a new paradigm? unwellness was put at more than $7 billion a year in 2010.26 Any measures which improve this figure need to be carefully The proposal gives rise to a potential new class action brought examined. by employees acting collectively against the company for To pro-actively adopt wellness measures as enlightened breach of a generalizable duty of care by the firm through its best practice is quite different, however, to reacting on board, and by senior management via the CEO. the basis of legal compliance requirements. The proposed wellness index, in its legal guise at least, gives rise to a range The board’s duty to the company as a whole of unintended consequences, providing further challenges to As Professor Bob Baxt notes: the already complex regulatory environment of the Australian “The Corporations Act 2001 and the general law have an boardroom. important general proposition: directors owe a fiduciary duty The choice – between a narrow, mandated legalistic to the company”.21 approach, or further refinement of the broader, best-practice The company is a separate legal entity, but what does owing wellness project which is underway – appears clear. Legal this entity a duty actually entail? considerations may usefully inform such a project. They “Traditionally, the courts have treated the company as should not, however, subsume it. n being the shareholders (or the members), and in some circumstances also extended this to include future Professor Andrew Clarke is at the College of Law & Justice, Victoria University. Previously he was Head of School and Inaugural Dean from 2012 to 2016. shareholders. Employees are generally not regarded as part of the company for this purpose.”22 The author thanks Ms Bronwyn Betts for research assistance. In summary, boards owe a duty to the company as a whole, 1. See, eg, the Workplace Health Association Australia and the Australian Rehabilitation as seen through the lens of litigated principles, primarily the Providers Association websites (each holds regular conferences) and Mujtaba, BG, current shareholders. The critical issue is whether the board FJ Cavico, "Corporate wellness programs: Implementation challenges in the modern can uphold this duty, as well as comply with the wellness KPI American workplace” International Journal of Health and Policy Management, 2013, 1(3), aimed specifically at employees. 193-199 at 193-4.

40 LAW INSTITUTE JOURNAL MAY 2018 features Mental health

2. Mujtaba, BG, FJ Cavico, note 1 above. microsoft:en-AU:IE-Address&ie=&oe=&gfe_rd=cr&ei=G3hMWd6qPPDc8weJjZKoAw& 3. See, eg, Ewin Hannan, “Wellbeing Survey tied to CEO pay”, The Australian (Melbourne), gws_rd=ssl. 23 November 2016, p1 and Ewen Hannan, “Tie CEO pay to staff health: Kennett”, The 15. See Elizabeth A Brown, “Workplace wellness: Social Injustice,” Vol. 20, Legislation Australian (Melbourne), 24 October 2016, p1, and David Marin-Guzman, "Deloitte, and Public Policy, 191-246, 2017. Medibank to measure employee self-esteem, wellbeing", 22 November 2016 at www.afr. 16. Julie C Suk, “Preventative Health at Work: A comparative approach”, 59 American com/leadership. Journal of Comparative Law, 1089-1134, 2011. 4. Note 3 above, Hannan. 17. http://excellence.ca/en/training-and-consulting/introduction-to-the-healthy- 5. http://landing.Deloitte.com.au/medibank-deloitte-wellbeing-index. workplace, accessed 23 June 2017. 6. Note 5 above. 18. M Todd Henderson, “The Nanny Corporation”, 76 University of Chicago Law Review, 7. Schulte, P and Vainio, H, “Well-being at work – overview and perspective,” 1517, 2009. Scandinavian Journal of Work Environment Health, 2010; 36(5): 422-429 at 423. 19. Note 15 above. 8. Note 7 above, at 423. 20. Anne Hendrix and Josh Buck, “Employee-Sponsored wellness programs: should your 9. Waddell, G, and Burton AK, “Is work good for your health and well-being?”, London, The employer be the boss of more than your work?”, 38 Sw. L. Rev. 465-502, 2008-2009. Stationary Office; 2006. 21. Robert Baxt, Duties and Responsibilities of Directors and Officers,20th edn, 2012, 10. Suzanne Young & Magalie Marais, “Gaining legitimacy in large Australian listed AICD p50. companies: exploring the role of corporate reporting regarding employees,” Labour and 22. Note 21 above, p52. Industry, Vol. 23, No. 1, 2013, 13-33 at 30. 23. Note 10 above, p16. 11. www.who.int/occupational_health/healthy_workplace_framework.pdf. 24. Note 10 above, p16. 12. www.oecdbetterlifeindex.org/#/1. 25. www.safeworkaustralia.gov.au/doc/guide-model-work-health-and-safety-act. 13. https://hw2014.osha.europa.eu/en/campaign-partners/official-campaign-partners/ 26. www.bupa.com.au/.../BupaP3/.../2015%20Bupa%20Workplace%20Health%20 european-network-for-workplace-health-promotion-enwhp. 14. See, eg, Xerox, Working well: A global survey of workforce wellbeing strategies at www.google.com.au/search?q=Xerox+working+well&sourceid=ie7&rls=com.

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MAY 2018 LAW INSTITUTE JOURNAL 41 Features Transport Accident Commision

can seek to establish that they have suffered a serious injury under the “narrative” test. These are listed in s93(17) of the TAA as: Highly • serious long-term impairment or loss of a body function • permanent serious disfigurement • severe long-term mental or behavioural serious disturbance or disorder • loss of a foetus. THE HIGH COURT’S Similar provisions appear in s327 of the Workplace Injury Rehabilitation and Compensation EXAMINATION OF “SERIOUS Act 2013 (Vic), with further restrictions in INJURY” IN TAC V KATANAS relation to claiming economic loss. WILL GUIDE FUTURE DECISIONS. The application by Mrs Katanas was under s93(17)(c) of the TAA for a severe long-term BY MICHAEL LOMBARD AND mental or behavioural disturbance or disorder. GIORGINA McCORMACK In Mobilio v Balliotis5 the Court of Appeal indicated that the test for serious injury in respect of a psychiatric injury was intended to t be a stronger test, as the requirement was for a “severe” psychiatric condition, which was more SNAPSHOT In Transport Accident Commission v Katanas1 than “serious”.6 the High Court has examined the question •• In the recent of “serious injury” in its first decision on the decision of TAC v Background facts Transport Accident Act 1986 (Vic) (TAA) since its Katanas, the High introduction more than 30 years ago. Maria Katanas was born in Greece in 1945 and Court considered the application The judgment was handed down on 17 came to Australia in 1962. She initially worked as of s93(17) of the August 2017 and the decision will guide future a sewing machinist and then obtained her VCE Transport Accident serious injury decisions regarding psychological in 1998. She completed a course so she could Act, otherwise or behavioural injury for both the Transport operate a taxi licence in 2004. She obtained an known as the Accident and Workcover schemes. Arts degree in 2009. narrative test of Mrs Katanas had a number of health issues “serious injury”. Legislative background but no history of mental or behavioural •• The Court disorders. She had been involved in previous considered how To obtain damages at common law for injuries car accidents in 1980 and 2001 but suffered no psychological suffered in a transport accident, a person significant problems. injuries are to be must have sustained a “serious injury” in assessed in meeting accordance with s93 of the TAA. If the injury The accident the threshold of a is not assessed as resulting in a 30 per cent “severe” mental whole person impairment under the American At 7pm on 10 July 2010, at the intersection of or behavioural Medical Association Guides to the Evaluation of Princes Highway and Springvale Road, Mulgrave, disturbance or Permanent Impairment, 4th edn (AMA 4), the Mrs Katanas’ car was struck on the driver’s side disorder. plaintiff must satisfy a “narrative” test. If the by another car. She was trapped in the car. •• In assessing Transport Accident Commission (TAC) does not She was conveyed to the Alfred Hospital. Her whether an injury agree that the claimant has satisfied the test, an physical injuries included: is “serious”, the application can be made to the County Court for • left rib fractures Court held that it leave to sue.2 • seatbelt bruising is necessary to 3 consider all the In Humphries v Poljak , the leading case on • laceration to left knee relevant factors the narrative test, Crockett and Southwell JJ • damage to teeth of a case and held that when assessing whether an injury is • pain in neck, chest and abdomen. compare those “serious”, it is necessary to ask: She was discharged four days later. circumstances to a “. . . can the injury, when judged by range or spectrum comparison with other cases in the range Psychological injuries of comparable of possible impairments or losses, be fairly cases. described at least as ‘very considerable’ and Mrs Katanas received psychological assistance certainly more than ‘significant’ or ‘marked’?”4 from approximately four months after the There are four grounds on which a plaintiff accident. The problems that she was found to ADOBE STOCK

42 LAW INSTITUTE JOURNAL MAY 2018 features Transport Accident Commision

MAY 2018 LAW INSTITUTE JOURNAL 43 Features Transport Accident Commision

have were variously identified as: • post-traumatic stress disorder including nightmares and However, O’Neill J had reservations flashbacks • extreme anxiety with panic attacks and fear of driving about Mrs Katanas’ credibility which • severe depression caused him to doubt the extent of • disturbed sleep • emotional problems including unresolved grief and the impact of the symptoms when depression • loss of self-confidence and self-esteem assessing the consequences for her. • difficulty with concentration and socialising.

“. . . Consideration must be given to the vast array of Treatment mental disorders which may be encountered following a transport accident. At one end of the spectrum is mild Mrs Katanas seemed to resist any psychological treatment anxiety as a result of trauma, easily overcome without initially and resisted being in the hands of a psychiatrist. medical intervention. At the other end of the spectrum are She eventually received anti-depressant medication from those disorders which provoke the most extreme symptoms her general practitioner and psychiatrists and had other and consequences, including psychoses, admission to psychological assistance. psychiatric hospitals as an inpatient, delusional beliefs Mrs Katanas attended Monash Medical Centre Emergency and thoughts, suicidal ideation and suicide attempts. Such Department in a distressed state in February 2014. conditions require extensive treatment and medication. It Otherwise she had no hospital treatment. follows that for a mental disorder to be described as being She was still receiving treatment and anti-depressant ‘severe’, it is at the upper echelon of those disorders in the medication from a psychiatrist at the time of the initial possible range.”10 hearing in 2015 when her application commenced in the County Court before O’Neill J. Appeal to VSCA Effects of psychological injury The decision rejecting the claim and the apparent reliance on the “Spectrum of disorders and treatment” resulted in an The effects of the psychological injury, accepted by O’Neill appeal to the Victorian Supreme Court of Appeal. J, were that Mrs Katanas had flashbacks and nightmares, The appeal was on the basis that due to the statement of a fear of driving, loss of confidence, stress and anxiety and O’Neill J about the scale of mental disorders, it could only an inability to concentrate. He accepted these symptoms mean that for a mental disorder to be “severe” it must have prevented her studying as she had planned and from the “most extreme symptoms and consequences, requiring looking after her grandchildren as she did before. She was extensive treatment and medication”.11 also found to be more restricted in her social life.7 The majority of the Court of Appeal upheld the appeal However, O’Neill J had reservations about Mrs Katanas’ stating: credibility which caused him to doubt the extent of the “We do not doubt that the extent of treatment made impact of the symptoms when assessing the consequences necessary by a psychiatric disorder may cast light on for her.8 whether the disorder should be accounted as severe. But in our view the spectrum which the judge described was Two part test only one amongst a number of ways in which the question of severity might be approached, each of them being Many previous decisions of the Victorian Court of Appeal incomplete in itself . . . In our opinion, the correct thing to had proposed that an applicant had to pass a two part test. do, in each case, is to first identify and next bring to account The High Court confirmed this two part process as: all relevant circumstances personal to the claimant; and • an assessment of whether the injury and its then to apply the statutory test, making a value judgment as consequences are subjectively for the applicant severe; described by Crockett and Southwell JJ in the passage cited and at [9] above. In making that value judgment, a judge must • a determination of whether the injury as assessed is give to each identified relevant circumstance the weight objectively severe when compared with the range or which appears to be appropriate. He or she will be assisted, spectrum of comparable cases.9 of course, by personal experience of cases which have fallen It was, however, in the second part of the test that the on one side of the line or the other.”12 area of controversy arose. The majority found that under the proposed spectrum attending a lot of doctors would suggest the person had a Spectrum of cases severe mental disorder and, conversely, a little treatment would mean a person didn’t have a “serious injury”. This, When comparing the application of Mrs Katanas with other they indicated, was not a correct analysis.13 cases O’Neill J said:

44 LAW INSTITUTE JOURNAL MAY 2018 features Transport Accident Commision

The dissenting judge, Kaye JA, found that there was no found that the use of the “line” phrase was just a phrase that obsession with treatment and that O’Neill J had detailed many had previously been used in Mobilio v Balliotis. The Court said: other aspects which related to his decision.14 He found that “The point of the observation was evidently to emphasise, O’Neill J had not viewed the serious injury question through in previously sanctioned language, the long-recognised reality the prism of the spectrum of symptoms and treatment.15 that the application of the narrative test is in the end likely The application was, therefore, remitted by the Victorian to turn ‘on the opinion of a judge familiar with a range of Supreme Court of Appeal back to the County Court for conditions within which the instant condition occurs’ and determination by a different judge. thus upon the judge's conclusion as to the ‘side of the line’ on which the case may fall”.22 High Court appeal Conclusion The TAC sought and obtained leave to appeal to the High Court as it raised a question of principle of general The High Court has provided a clear confirmation that a importance. This was the first time that the High Court had serious injury application needs to be assessed: given leave relating to the serious injury test, previously • first, as serious/severe for the particular applicant; and refusing it in Fleming v Hutchison in 1991.16 • second, as serious/severe in the instant case as compared to The simple ground was that the Court of Appeal erred in the range of similar cases. holding that O’Neill J misdirected himself as to the application Importantly, all consequences are to be assessed and of the narrative test. evaluated without a particular scale needing to be used. The question faced by the High Court was that the Victorian Treatment is important, but as the Court of Appeal said, Supreme Court of Appeal had “trampled upon” the narrative so is severity of symptoms, frequency of consequences and test in relation to the comparison with a range of comparable inhibitions upon daily activities or work or education. It is cases. It was submitted that the Supreme Court of Appeal had then vital to remember that each area is important but “no introduced a new and unexplained concept of a “line”.17 one of them by itself would answer the critical question”.23 n The TAC contended that O’Neill J had adapted the test to the appropriate circumstances of Mrs Katanas. The TAC Michael Lombard is a partner at Adviceline Injury Lawyers and heads the firm’s traffic accident division. He is an LIV Council member, an LIV accredited specialist in personal contended that, by saying the range formulated by O’Neill J injury law and a qualified mediator. was only of limited utility, the Court of Appeal had trampled upon the formulation of the evaluation of one case against Giorgina McCormack is a lawyer at Adviceline Injury Lawyers. She works the range of comparable cases.18 predominantly assisting people injured in industrial accidents or those diagnosed with The High Court unanimously rejected this submission and asbestos related diseases. found the Victorian Supreme Court of Appeal had correctly 1. [2017] HCA 32. analysed the task facing judges in serious injury applications: 2. TAA, s93(4). “. . . the range, as so formulated, was incomplete because 3. [1992] 2 VR 129. it had regard to only one criterion of the comparative 4. Note 3 above, at [140]. severity of a mental disorder or disturbance: the extent of 5. [1998] 3 VR 833. treatment made necessary by the disorder or disturbance. 6. Note 5 above, per Brooking JA (Winneke P, Ormiston JA, Phillips JA and Charles JA That precluded consideration of other relevant criteria of agreeing at 834-835, 854, 858, 860‑861). comparative severity . . .”19 7. Katanas v Transport Accident Commission [2015] VCC 1156 [83]-[84]. 8. Note 7 above, at [77]-[78]. The High Court did not accept the concept of trampling 9. Note 1 above, at [6]. upon the narrative test either. It said: 10. Note 7 above, at [82]. “Still less did the majority displace or ‘trample upon’ the 11. Katanas v Transport Accident Commission (2016) 76 MVR 161, at [12]. narrative test of seriousness or severity. Very much to the 12. Note 11 above, at [19]. contrary, after observing that ‘the task which the judge had to 13. Note 11 above, at [20]. undertake was that explained by Crockett and Southwell JJ in 14. Note 11 above, at [89]. 15. Note 11 above, at [90]. Humphries v Poljak’, their Honours expressly noticed that the 16. (1991) 66 ALJR 211. only error in the primary judge's application of the narrative 17. TAC v Katanas [2016] HCATrans 286 at lines 11-14, 96-104, 147-170. test was in formulating the range by reference to only one of 18. Note 1 above, at [1]. the several criteria relevant to the assessment . . .”20 19. Note 1 above, at [21]. The Court confirmed the process which will, no doubt, 20. Note 1 above, at [24]. remain in place forever: 21. Note 1 above, at [25]. 22. Note 1 above, at [27]. “. . . in making an assessment of the severity of a mental 23. Note 1 above, citing Katanas (2016) 76 MVR 161, at 167 [19]. disorder or disturbance by comparison to the range or spectrum of comparable cases, a judge must identify and bring to account all of the factors which emerge on the evidence as relevant to the assessment. There is nothing new in that proposition”.21 In relation to the submission about a line, the High Court

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HIGH COURT JUDGMENTS

Bell, Gageler, Keane, Nettle and Gordon JJ his case that left open the possibility that jointly; Edelman J separately concurring for the jury could find he was in possession of different reasons. Answers to questions less than the whole of the “drugs” with a referred given. view to purchasing an amount for his own use. The Court of Appeal was correct to ANDREW YUILE Criminal law hold that proof beyond reasonable doubt Appeal against conviction – application of the that the appellant had attempted to possess “proviso” – whether “substantial miscarriage of the “drugs” compelled the conclusion that justice” occurred he intended to sell or supply it to another. Constitutional law Therefore, the misdirection did not occasion In Kalbasi v Western Australia [2018] HCA 7 a substantial miscarriage of justice. Kiefel CJ, “Office of profit under the Crown” – s44(iv) of the (14 March 2018) the High Court considered Bell, Keane and Gordon JJ jointly; Gageler Constitution the “proviso” that, notwithstanding error, J, Nettle J and Edelman J each separately In Re Lambie [2018] HCA 6 (14 March 2018) a court may dismiss an appeal against dissenting. Appeal from the Court of Appeal the High Court considered the meaning of conviction if “no substantial miscarriage of (WA) dismissed. the phrase “under the Crown” in s44(iv) justice has occurred”. of the Constitution in deciding whether Mr The appellant was convicted of attempting Criminal law Steven Martin was incapable of sitting or to possess 4.981kg of a prohibited drug with being chosen as a senator. intent to sell or supply to another, contrary to Verdicts unreasonable or unsupportable In December 2017, the High Court the Misuse of Drugs Act 1981 (WA) (MDA). on evidence – criminal responsibility and answered questions referred to it, finding A consignment of methylamphetamine foreseeability that Ms Jacqui Lambie was incapable of was replaced with rock salt by police. A Irwin v The Queen [2018] HCA 8 (14 March being chosen as a senator. Mr Martin was person known to the appellant collected the 2018) concerned whether the jury’s verdict identified by a special count as a candidate consignment. The appellant was present was unreasonable or incapable of being who could be elected in her place. Mr when the “drugs” were unpacked and the supported by the evidence. The appellant Martin was, at all relevant times, the mayor appellant’s DNA was found in gloves used to was convicted of one count of unlawfully and a councillor of the Devonport City cut drugs in the premises. doing grievous bodily harm and acquitted Council, which is established by the Local The issue at trial was whether the of one count of assault occasioning Government Act 1993 (Tas). The question for appellant was “in possession” of the actual bodily harm. At trial, an issue was the Court was whether those positions were “drugs”. Section 11 of the MDA deems that foreseeability. Section 23(1) of the Criminal “offices of profit under the Crown” within a person in possession of more than 2g of Code (Qld) provides that a person is not s44(iv). It was accepted that they were methylamphetamine, subject to proof to the criminally responsible for an event that “offices of profit” and that the “Crown” in contrary, possesses the drug with intent the person does not intend or foresee as a s44(iv) meant the “executive government” to sell or supply. However, prior authority possible consequence, and that an ordinary of the Commonwealth or a state. The held that s11 does not apply to the charge person would not reasonably foresee as a decision turned on the meaning of “under” of attempted possession of a prohibited possible consequence. and the relationship required between the drug. At trial the judge and counsel assumed The appellant accepted that the judge’s executive and the office. that s11 applied. The jury was directed directions on this point were correct, but A majority of the Court held that accordingly on the issue of intention to sell argued that the jury could not rationally have s44(iv) seeks to avoid a conflict between or supply. excluded the possibility that an ordinary a parliamentary member’s duties to the On appeal the Crown admitted the person in the appellant’s position would not House and a pecuniary interest allowing for misdirection but argued that the proviso reasonably have foreseen the possibility executive influence over the performance applied. The Court of Appeal agreed and of an injury of the kind sustained by the of parliamentary duties. Relevantly, an dismissed the appeal. In the High Court, the complainant as a possible consequence of office would be held “under” the Crown if it majority declined to re-open the principles the appellant’s actions. was held at the will of the executive or the governing the proviso stated in Weiss v The In the High Court, the appellant argued receipt of profit from the office depended Queen (2005) 224 CLR 300. The majority that the Court of Appeal had applied an on the will of the executive. In this case, Mr also rejected the appellant’s arguments incorrect test of whether a reasonable Martin’s positions depended on the Local about the way the trial would have been run person “could” as opposed to “would” Government Act and the executive did not or the way the jury might have decided the have foreseen the outcome. The High Court have effective control over Mr Martin holding case if the misdirection had not occurred. held that there was a difference in meaning or profiting from them. The offices were, Their Honours held that there was nothing between those two words and the proper therefore, not “under the Crown”. Kiefel CJ, in the evidence or the way the appellant ran test was “would”. The Court of Appeal

46 LAW INSTITUTE JOURNAL MAY 2018 courts & parliament Judgments

should not have expressed the test in terms not just the lots. Because the condition had Constitutional law of “could”. However, the jury had been not been complied with, there had been a properly directed and there was no reason to contravention of the Act. The enforcement Common informer action – jurisdiction of the High doubt that they had adhered to the directions order could therefore be made. Kiefel CJ, Court to decide whether MP eligible for election or to doubt the reasonableness of the verdict Bell, Keane, Gordon and Edelman JJ jointly. Alley v Gillespie [2018] HCA 11 (21 March they gave. Other alleged errors in the Court Appeal from the Court of Appeal (Qld) 2018) concerned an action brought by Peter of Appeal’s approach were rejected. Kiefel allowed. Alley against David Gillespie, alleging that CJ, Bell, Gageler, Nettle and Gordon JJ Mr Gillespie should pay a penalty under jointly. Appeal from the Court of Appeal (Qld) Constitutional law the Common Informers (Parliamentary dismissed. Citizenship – parliamentary elections – special Disqualifications) Act 1975 (Cth) (Act). That count of votes Act provides that a person who has sat Planning law as a member of the Senate or House of In Re Kakoschke-Moore [2018] HCA 10 (21 Representatives when incapable of so sitting Town planning – conditions on development – March 2018) the High Court considered how is liable to pay a penalty to a person who enforcement orders to fill the vacancy in the Senate left because sues for it. Mr Alley brought such an action, In Pike v Tighe [2018] HCA 9 (14 March Ms Kakoschke-Moore was ineligible to be alleging that Mr Gillespie was incapable 2018) the High Court considered whether elected because of her British citizenship. of sitting as a member of the House of conditions on planning approvals run with The Court reserved questions as to the Representatives because of an improper the land and oblige successors in title to method of filling the vacancy, whether Ms pecuniary interest under s44(iv) of the fulfil conditions that were not fulfilled by the Kakoschke-Moore could be included in that Constitution. original owner. method once she renounced her British The issue for the High Court was whether The Townsville City Council (Council) citizenship, and whether Mr Storer, who was it had jurisdiction to determine the question issued a planning approval over land allowing a NXT candidate but had ceased to be a NXT of Mr Gillespie’s qualification to sit, which for it to be developed into two lots. One member, could be elected. With respect to was a prerequisite for the action. The High condition of the approval was that an filling the vacancy, Ms Kakoschke-Moore Court held that it did not have that jurisdiction easement had to be registered over lot 1 argued that, once she had renounced her because it was a question to be resolved for the benefit of lot 2. Easements were British citizenship, she could be re-appointed. by the House of Representatives until created by the owner, but not in accordance The Court rejected that argument, referred by the House to the High Court. with the condition. Nonetheless, the Council holding that her renunciation did not operate That followed from s47 of the Constitution, approved the relevant survey plan and the retrospectively and she remained ineligible at which provides that, until the Parliament easements were registered. The Tighes were the time of the election. The vacancy should otherwise provides, any question about the later registered as owners of lot 1 and the be filled by a special count of votes. The qualification of a person to be a senator or Pikes were registered as owners of lot 2. The Court also held that Ms Kakoschke-Moore member of the House of Representatives Pikes applied to the Land and Environment was not capable of being a candidate in the is to be determined by that House. The Court for a declaration that the development special count because the special count Parliament did “otherwise provide”, in s 376 approval had been contravened and for an was a part of the original election. It was of the Commonwealth Electoral Act 1918 enforcement order requiring compliance with not a separate process, but was designed to (Cth), which allows for a House of Parliament the condition. complete the original election process. Ms to refer questions concerning the qualification The Tighes argued that any development Kakoschke-Moore was not eligible to take of members to the High Court as the Court of offence committed by a failure of the original part in that process. In respect of Mr Storer, Disputed Returns. Therefore, while the Court owners to comply with a condition was the it was argued that he should not be allowed has jurisdiction with respect to the penalty fault of the original owner, not the successor. to take part in the special count because he proceeding under the Act, it does not have At first instance, the judge granted relief, was a member of NXT at the election, but jurisdiction to decide the anterior question. holding that the conditions in the approval ran had left the party since. Notwithstanding his Kiefel CJ, Bell, Keane and Edelman JJ jointly; with the land. leaving the party, in the special count “above Gageler J separately and Nettle and Gordon The Court of Appeal overturned that the line” NXT votes would flow to him. The JJ jointly concurring. n decision. The case turned on the meaning voters’ intent was said to be to vote for of s245 of the Sustainable Planning Act someone of the NXT party. Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, 2009 (Qld) which stated that a development The Court rejected that argument. Electors email [email protected]. The full version of these judgments can be found at www.austlii.edu.au. approval attaches to the land the subject of voting above the line should be taken as the application and binds the owner and any intending to vote for Mr Storer. Nothing in the successors in title. Constitution or the Commonwealth Electoral The High Court held that s245 Act 1918 (Cth) requires that a person affiliated “expressly gives development conditions with a party and elected as such must remain of a development approval the character of affiliated with that party. Kiefel CJ, Bell, personal obligations capable of enduring Gageler, Keane, Nettle, Gordon and Edelman in their effect beyond the completion of JJ jointly. Answers to questions reserved the development”. The approval and the given. conditions attach to the whole of the land,

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FEDERAL COURT JUDGMENTS

follows: “Where one party to litigation is the powers and functions vested in the compelled, either by reason of a rule of Commissioner (also at [56]). court, or by reason of a specific order of the Their Honours noted at [42] in relation court, or otherwise, to disclose documents to Daniels Corporation International Pty Ltd or information, the party obtaining the v Australian Competition and Consumer DAN STAR QC disclosure cannot, without the leave of the Commission (2002) 213 CLR 453: “We do court, use it for any purpose other than that not think it correct to equate the Harman for which it was given unless it is received obligation to the common law right to legal Contempt of court – practice into evidence”. professional privilege. Daniels concerned the The issue before the Federal Court (in its question of whether the common law right and procedure original jurisdiction that was being exercised to legal professional privilege was abrogated The Harman obligation by a Full Court) was whether the Harman by statute. That is not the question which obligation constrained the operation of s353- arises here”. In Deputy Commissioner of Taxation 10(1)(c) of the TAA 1953. That provision v Rennie Produce (Aust) Pty Ltd (in liq) provides power to the Commissioner to Competition law [2018] FCAFC 38 (20 March 2018) the Full require the recipient of a notice in writing to Court considered the interaction between Appeal from judgment finding price fixing and the relevant effect to produce documents in the statutory power conferred on the market sharing arrangement in contravention of the custody or control of the recipient. Commissioner of Taxation (Commissioner) the Trade Practices Act 1974 (Cth) Kenny, Robertson and Thawley JJ held under s353-10 of Sch 1 to the Taxation In Prysmian Cavi E Sistemi SRL v Australian that the Harman obligation does not prevent Administration Act 1953 (Cth) (TAA 1953), Competition and Consumer Commission or excuse a person owing that obligation which includes a coercive power to require [2018] FCAFC 30 (13 March 2018) the Full from complying with a valid notice issued the production of documents, and the Court (Middleton, Perram and Griffiths JJ) under s353-10(1)(c) of the TAA 1953 (at general law obligation commonly referred dismissed Prysmian’s appeal from having [56]). Further, the Harman obligation did to as “the Harman obligation” (see Harman been found to have contravened s45 of the not prevent the Commissioner or taxation v Secretary of State for Home Department Trade Practices Act 1974 (Cth) (TPA). officers receiving documents the subject [1983] 1 AC 280). The litigation concerned allegations that of a Harman obligation from using those The Harman obligation was described Prysmian entered into an arrangement with documents in the lawful exercise of by the plurality of the High Court in Hearne other companies involving market sharing v Street (2008) 235 CLR 125 at [96] as and price fixing in the cable market (the A/R

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48 LAW INSTITUTE JOURNAL MAY 2018 courts & parliament Judgments

Cartel Agreement). One of the procedures 356 at [50]-[52] (this aspect of the matter president of an institute of the University envisaged by the A/R Cartel Agreement was not taken on appeal to the High Court)”. (SSI) that became a complying institute was alleged to involve an initial agreement Various other grounds of appeal by Prysmian within it. Dr Peterson was appointed to the between two sets of companies as to which were also rejected (at [74]-[95]). SSI board. The Court stated at [36]: “In the of these groups would be allotted a given present case, Mr Coles and Dr Peterson tender or project, followed by a subsequent Privilege formed part of an advisory board that was agreement within the allotted group to Whether waiver of legal professional privilege instrumental in assisting SSI and Sydnovate determine which company within that group in relation to the University’s dispute with In University of Sydney v ObjectiVision would be allotted the tender or project. The ObjectiVision. I am comfortably able to Pty Ltd [2018] FCA 393 (16 March 2018) alleged contraventions of the TPA were said infer that it was desirable or necessary for the Court (Burley J) made a ruling on the to flow from a particular instance in which the University to have the benefit of the fourth day of a trial as to whether certain the A/R Cartel Agreement was given effect knowledge of each of these individuals documents that fell within the respondent’s through this procedure, namely an instance in considering the 22 November email. notice to produce to the applicant were in which Prysmian was allocated a tender as In this regard, I note, in addition to the covered by legal professional privilege and, if a member of the R Group (the Snowy Hydro matters concerning their respective roles so, whether that privilege had been waived. Project Agreement). identified above, that ObjectiVision’s The proceedings concerned a dispute The trial judge (Beach J) found that, pleaded case in relation to the breach of between ObjectiVision and the University of in making the Snowy Hydro Project the Technical Assessment Agreement and Sydney (University) about whether certain Agreement, Prysmian contravened ss45(2) the Training Sessions Agreement is that intellectual property licence agreements had (a)(i) and (ii) of the TPA and gave effect to both individuals attended the technical been validly terminated, and copyright and the A/R Cartel Agreement in contravention and training assessments on behalf of the breach of confidence claims. of s45(2)(b)(ii) of the TPA. Further, the trial University that were said to have failed to Relevantly, the disputed documents were judge found that Prysmian gave effect to satisfy the University’s obligations under (1) emails from Mallesons, the solicitors for the Snowy Hydro Project Agreement in those agreements. Further, as I have the University (KWM letter) (including the contravention of ss45(2)(b)(i) and (ii) of noted, Mr Coles attended the mediation. 22 November email); and (2) notes of the the TPA and gave effect to the A/R Cartel Both Mr Coles and Dr Peterson were in a meeting at Mallesons (including Mallesons’ Agreement in contravention of s45(2)(b)(ii) of position to contribute knowledge to the file notes) (KWM file notes). the TPA. decision making process of the University. The key dispute was ObjectiVision’s The Full Court rejected Prysmian’s Accordingly, I find that the presence of Mr contention that privilege had been waived arguments on appeal that the trial judge’s Coles and Dr Peterson at the meeting on by the provision of the documents to two findings were inconsistent with the 30 November 2010 did not serve to waive people who were not employees of the Australian Competition and Consumer legal professional privilege in the KWM file University (Mr Ken Coles and Dr Chris Commission’s (ACCC) case or gave rise notes”. n Peterson) because the disclosure was to a denial of natural justice to it by reason inconsistent with the maintenance of of the departure from the case run by the Dan Star QC is a barrister at the Victorian Bar, privilege: see the test for waiver in Mann v ph 9225 8757 or email [email protected]. ACCC (at [39]-[73]). The Full Court referred Carnell (1999) 201 CLR 1 at [29]. The full version of these judgments can be found at to the “relevant guidance on the principles The Court held that ObjectiVision had not www.austlii.edu.au. Numbers in square brackets refer applicable to due process in this regard . . . to paragraph numbers in the judgment. made out that there had been a waiver of provided by the Full Court in Betfair Pty Ltd legal professional privilege that applied to v Racing New South Wales (2010) 189 FCR the disputed documents. Mr Coles was the

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MAY 2018 LAW INSTITUTE JOURNAL 49 courts & parliament Judgments

FAMILY LAW JUDGMENTS

“The debt was incurred during the marriage ought not, at least in part, ‘take the good on any view of the date of separation . . . (at with the bad’ . . . (at [303]). [85]). “The Commissioner maintains that the “It is readily apparent that the . . . wife along with the husband should bear projects [linked to the loan] . . . were responsibility for the husband’s taxation ROBERT GLADE-WRIGHT intended to benefit the marriage relationship debts . . . prior to separation . . . (at [305]). . . .” (at [87]). “The wife . . . argues that the monies lost Murphy J concluded his reasons by in gambling . . . [and the capital introduced Property saying: by her] were of such magnitude . . . that “ . . . It would in my view be . . . a highly it would not be open to conclude that she Parties suppressed evidence of husband’s exceptional case for a conscious abuse of received benefit from the husband’s . . . $606,000 debt in their Application for Consent the court’s process – in effect a fraud on income in respect of which tax had not been Orders the court – to not result in orders being set paid . . . (at [306]). In Trustee of the Bankrupt Estate of Hicks aside . . .” (at [195]). “ . . . [T]he husband . . . envisages that & Hicks and Anor [2018] FamCAFC 37 he will be employed . . . for the next 14 (26 February 2018) a majority of the Full Property years . . . [I]f the Commissioner entered Court (Strickland and Murphy JJ) allowed Husband’s tax debt and gambling losses produced into an arrangement over a 15 year period an appeal by the trustee in bankruptcy net deficit – Wife’s initial contributions and s75(2) to receive payment of the outstanding debt against Stevenson J’s dismissal of its s79A needs – Wife to pay 10 per cent of that debt then I could see no reason why . . . the debt application. Austin J dissented. The trustee could not be paid off . . . (at [320]). In Snipper & James and Anor [2018] FamCA argued at trial that consent orders should “ . . . [I]t is just and equitable for the wife 7 (12 January 2018) Watts J considered be set aside as the parties had entered into to make a payment of $200,000 towards a 21-year marriage that produced three a scheme to defeat a creditor by applying the husband’s tax debt. This . . . is 10 per children and a net pool of $1.28 million for those orders without divulging that “Mr cent of the husband’s debt . . . It is 18 per excluding tax debts. The husband owed the S” was suing the husband for $606,000 cent . . . of the net assets of $1,113,281 . . . ATO $2.01 million and the wife owed the (judgment was entered against him a week the wife has after she has paid her tax debt” ATO $113,000, creating a total net deficit after the orders were made) or notifying Mr (at [323]). of $842,000. The ATO intervened to seek S of the proposed orders. $713,000 from the wife, being her debt plus The trial was bifurcated, the Court only Property $600,000 towards the husband’s tax debt. hearing and determining the s79A issue. At The wife and husband were found to Pre-Part VIIIB order that husband pay wife 25 per first instance, the wife conceded that there have adopted “traditional roles” (at [277]). cent of his super when he qualified for payment was a miscarriage of justice but persuaded The wife “brought in about $2.5 million – Wife’s attempt to enforce order after husband’s Stevenson J not to exercise discretion to set from outside the marriage” (at [283]). death dismissed aside the order, her Honour finding that the The husband’s gross annual salary was In Heyman & Heyman & Anor [2018] FCCA wife had no involvement in the husband’s $589,000 but it was found that he lost more 129 (6 February 2018) a consent order made debt to Mr S; that the debt was not incurred than $1 million from gambling (at [294]). in 2002 (pre-super splitting) provided that for a matrimonial objective; and that the Without the tax debts, the Court assessed the husband authorise his super trustee trustee would find itself in no better position contributions as 80:20 in the wife’s favour to pay the wife 25 per cent of the funds if the order were set aside. and made a further 15 per cent adjustment available to him once he qualified for Strickland J said: for her under s75(2) ($1.2m before tax payment (at [28]). The husband remarried in “This appeal highlights the difficulties provision). 2008 and notified the wife that he planned in bifurcating the s79A and the s79 After observing at [252] that if the to transfer his super to a pension, saying proceedings, rather than determining both whole of the tax debt was deducted the that he would leave 25 per cent in the fund issues together as is generally the preferred wife would receive nothing under s79, the for her. The wife requested payment by the option . . . (eg see . . . Patching (1995) FLC Court said: trustee, who replied requiring a splitting 92-585) (at [46]). “ . . . [T]he Commissioner submits that order to that effect (to which the wife did “The . . . difficulty . . . is . . . that in . . . where the husband’s . . . income has not respond). exercising . . . discretion [under s79A] the been used . . . to support the wife and the The husband died in 2012, his new wife court is entitled to take into account the children there is no reason why the wife being executor of his estate. The trustee likely outcome of the s79 proceedings, if the paid the rest of the husband’s super to the orders are set aside . . . (at [47]).

50 LAW INSTITUTE JOURNAL MAY 2018 courts & parliament Judgments

new wife as a dependent. The wife applied The orders permitted the wife, her the husband might destroy emails and other for the setting aside of the 2002 order under lawyers and others to enter premises of documents . . . (at [102]). s79A(1)(b) or (c) (impracticability or default) non-parties to search computers and make “Yet, the Court was not informed . . . that a as she had not yet received 25 per cent of copies of the husband’s email records and, vast amount of email material had already the husband’s super. Upon the application if necessary, remove computers. After the been accessed . . . by the wife. On Mr G’s of the new wife, Middleton J summarily premises were entered and a large amount investigation, this was in excess of 154,000 dismissed the wife’s application. of email material downloaded (at [3]), the emails . . . In my view . . . it was quite The Court said: husband and non-parties applied for the misleading for the Court not to have been “The Applicant had an opportunity to discharge of the orders and the return of the informed about the full extent of what the enforce the consent orders at the time seized material. wife had done . . . (at [103]). the husband received 75 per cent of his Johnston J (at [85]-[94]) cited authority, “ . . . [I]t has now become clear that superannuation entitlement. She chose not including Anton Piller KG v Manufacturing amongst documents which came to the to . . . (at [53]). Processes Ltd and Others [1976] Ch 55 attention of the wife . . . were documents “It is clear on the evidence that no and said: . . . in relation to which legal professional monies were received into the estate of “Turning to the essential requirements, privilege could be claimed. In my view, the the late Mr Heyman from the relevant the first is whether the wife has been able duty of candour required that the Court be superannuation fund. Accordingly order 3.1 to establish an extremely strong prima facie informed about this at the time when the cannot be enforced . . . (at [61]). case . . . (at [96]). application for the ex parte orders was . . . “As against the Second Respondent “. . . [T]he evidence of the husband, his made. Counsel for the wife did not do so (at the Applicant has no standing in which mother and his brother in their affidavits . . . [107]). to bring Family Court proceedings for the has not been tested. But I must say, in light “ . . . [T]he wife either had the material or adjustment of property against her” (at of the material referred to, I find myself not would have been able to obtain it by issuing [79]). having the confidence I had on 7 September subpoenas” (at [108]). 2016 when considering the wife’s The orders were vacated, the seized Property application . . . that she could demonstrate material ordered to be returned and the Ex parte Anton Piller orders vacated as wife had an extremely strong prima facie case (at wife restrained from making use of anything kept from the court that she had previously gained [100]). accessed from the husband’s email access to substantial material “Be this as it may, I am comfortably account. n satisfied that for other reasons the Court In Tassinari & Pesalaccio & Ors [2018] would not confirm theAnton Piller orders Robert Glade-Wright, a former barrister and accredited FamCA 12 (17 January 2018) Johnston J (at [101]). family law specialist, is the founder of The Family Law Book, granted ex parte Anton Piller orders to the a looseleaf and online service: see www.thefamilylawbook. “. . . [T]he damage, potential or actual, wife who said that the documents in issue com.au. He is assisted by accredited family law specialist must be very serious for the applicant and . might increase the asset pool by $30m, that Craig Nicol. References to sections of an Act in the text are . . there [must be] a real possibility that the the husband had not made full and frank to the Family Law Act 1975 (Cth) unless otherwise specified. respondents might destroy incriminating The full text of these judgments can be found at www.austlii. disclosure and that his case was damaged documents. At the ex parte hearing counsel edu.au. The numbers in square brackets in the text refer to by the documents (at [21]). for the wife made strong submissions that the paragraph numbers in the judgment.

MAY 2018 LAW INSTITUTE JOURNAL 51 courts & parliament Judgments

SUPREME COURT JUDGMENTS

property owned by her. He had been out of the trial judge failed to take into account employment since November 1999 when properly, or at all, that the applicant would he resigned to look after his mother full not be in a position to find alternative time after she suffered a stroke. He had accommodation by reason of her failure subsequently received a carer’s pension to take into account that (a) the applicant PROFESSOR GREG REINHARDT and supplement from 2000. The applicant was dependent upon the deceased; (b) the did not vacate the property in which he had applicant had no alternative accommodation; been living with his mother until November and (c) the applicant had not worked for a 2016 despite efforts to compel him to considerable period of time and was unlikely Principles for further provision do so including applications to the Court to do so in the future” (at [85]). under Part IV Administration which resulted in orders that he give vacant The Court of Appeal said at [90]-[91]: possession. “We accept the applicant’s contention and Probate Act 1958 (Vic) The Court noted at [30] that there are that the trial judge failed to take into Davison v Kempson [2018] VSCA 51 (unreported, three questions which have to be determined account his ongoing dependency upon the 9 March 2018, No S APCI 2017 0053, Tate, under Part IV: deceased. This matter falls squarely within Santamaria and Beach JJA). “(a) Did the deceased, at the date of her the requirement in s91(4)(f) of the Act that The applicant was an adult son of the death, have responsibility to make provision a court have regard to any obligations or deceased, Genevieve Davison, who died for the applicant’s proper maintenance and responsibilities of the deceased to the in April 2014. The first respondent was the support? applicant, among other things. The trial judge administrator of the intestate estate of the (b) If so, did the distribution of the was aware of this requirement. She also deceased. The second and third respondents deceased’s estate by operation of the made extensive reference to the applicant’s were the applicant’s siblings. intestacy provisions of the Act make precarious financial position. However, her The applicant made a claim under Part adequate provision for the applicant’s proper treatment of whether the deceased had any IV of the Administration and Probate Act maintenance and support? obligations or responsibilities to the applicant 1958 (Vic) for further provision from the (c) If not, applying the factors in s91(4) was limited to summarising the evidence deceased’s estate (on an intestacy the (e)–(o) of the Act, what is the amount of and submissions of each of the parties and applicant was entitled to one-third of the provision, if any, that should be ordered?” addressing specific and seemingly peripheral estate, his siblings the other two-thirds). At (endnotes omitted). issues about his employment, the purpose first instance it was ordered that he receive The first two questions are jurisdictional: of his depositing his carer’s allowance into an additional $125,000 from the estate. Blair v Blair (2004) 10 VR 69, 75-6 at [11]-[12]. the deceased’s bank account and whether The applicant, who was 56 years of age There were four proposed grounds of the deceased had made any promises to at the time of the trial, had lived with his appeal. The second, and the ground on the applicant to the effect that he would be mother from 1994 and cared for her in a which the applicant succeeded, was “that looked after or that he could remain in the

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52 LAW INSTITUTE JOURNAL MAY 2018 courts & parliament Judgments

property after her death. The trial judge dependency after death. But where a child, parent’s death. The result is that the trial did not make any finding as to whether even an adult child, falls on hard times and judge’s discretion miscarried and falls to be the deceased had any obligations or where there are assets available, then the exercised independently by this Court”. responsibilities to the applicant. We are not community may expect parents to provide The applicant was entitled to a sum of satisfied that she took this consideration, a buffer against contingencies; and where $250,000 by way of further provision from being a relevant consideration, into account. a child has been unable to accumulate his mother’s estate. “Furthermore, it seems to us that, while superannuation or make other provision The Court of Appeal rejected other recognising the guiding principle in relation for their retirement, something to assist in proposed grounds of appeal including that to providing for an adult child who is still retirement where otherwise they would be had assisted accommodation been sought dependent upon a parent – namely, that left destitute. It is no longer the case, if it in relation to the deceased rather than the there is a community expectation that the ever was, that an adult child has to establish care provided by the applicant, the cost to parent will make provision to fulfil that a special need before obtaining provision the estate would have been in the region ongoing dependency after death – the trial from the estate of a deceased parent’.” of $50,000 per annum, a sum to which the judge failed to apply it. The principle was The Court continued at [94]: applicant should be entitled under Part IV. articulated by Brereton J in Taylor v Farrugia “In our opinion, the applicant has There was no evidence in relation to this. as follows: established specific error with respect to The judgment provides an excellent ‘Generally speaking, the community the failure of the trial judge to take into summary of the way in which Part IV claims does not expect a parent to look after his account the applicant’s ongoing dependency should be approached. n or her children for the rest of their lives and upon the deceased, and the deceased’s into retirement, especially when there is responsibility for the applicant arising from Professor Greg Reinhardt is executive director of the Australasian Institute of Judicial Administration and someone else, such as a spouse, who has that dependency. This had a bearing on her a member of the Faculty of Law at Monash University, a prime obligation to do so. Plainly, if an failure to apply the correct legal principle, ph 9600 1311, email [email protected]. adult child remains a dependent of a parent, set out in Taylor v Farrugia, in relation to the The numbers in square brackets in the text refer to the the community usually expects the parent award of provision to an adult child who is paragraph numbers in the judgment. The full version of this to make provision to fulfil that ongoing still dependent upon a parent, upon that judgment can be found at www.austlii.edu.au.

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MAY 2018 LAW INSTITUTE JOURNAL 53 courts & parliament Legislation

2018 No. 7 Therapeutic Goods Amendment (2017 Measures No. 1) Act LEGISLATION UPDATE 2018 No. 8 Therapeutic Goods (Charges) Amendment Act 2018 No. 9 Treasury Laws Amendment (Banking Measures No. 1) Act New Victorian 2018 Assents 2018 No. 10 Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act As at 20/03/18 2018 No. 11 Broadcasting Legislation Amendment (Digital Radio) Act 2018 No. 3 Bail Amendment (Stage Two) Act 2018 No. 12 Great Barrier Reef Marine Park Amendment (Authority Governance and 2018 No. 4 Health and Child Wellbeing Legislation Amendment Act Other Matters) Act 2018 No. 5 Justice Legislation Amendment (Victims) Act 2018 No. 13 Treasury Laws Amendment (Putting Consumers First—Establishment of 2018 No. 6 Oaths and Affirmations Act the Australian Financial Complaints Authority) Act 2018 No. 7 Planning and Environment Amendment (Public Land Contributions) Act 2018 No. 8 Road Safety Amendment (Automated Vehicles) Act Commonwealth 2018 Principal Regulations 2018 No. 9 Gambling Legislation Amendment Act As at 20/03/18 2018 No. 10 Racing Amendment (Modernisation) Act Airports Amendment (Sydney West Airport Site) Regulations 2018 New Victorian 2018 Regulations Anti-Money Laundering and Counter-Terrorism Financing (Prescribed Foreign Countries) Regulations 2018 As at 20/03/18 Australian Institute of Health and Welfare (Ethics Committee) Regulations 2018 2018 No. 16 Liquor Control Reform (Prescribed Class of Premises) Regulations Cheques Regulations 2018 2018 No. 17 Road Safety (Driving Instructors) Amendment Regulations Child Support (Assessment) Regulations 2018 2018 No. 18 Victorian Civil and Administrative Tribunal (Amendment No. 19) Rules Child Support (Registration and Collection) Regulations 2018 2018 No. 19 Wildlife (Game) Further Amendment Regulations Child Support Reform (New Formula and Other Measures) Regulations 2018 2018 No. 20 Meat Industry Amendment Regulations Christmas Island (Courts) Regulations 2018 2018 No. 21 Wildlife Amendment Regulations Coal Mining Industry (Long Service Leave) Administration Regulations 2018 2018 No. 22 Transport (Compliance and Miscellaneous) (Ticketing) Amendment Coal Mining Industry (Long Service Leave) Payroll Levy Regulations 2018 (Prescribed Devices and Processes) Regulations Criminal Code (Terrorist Organisation—Islamic Movement of Uzbekistan) Regulations 2018 No. 23 Australian Grand Prix (Formula One) Amendment Regulations 2018 2018 No. 24 County Court (Chapter III Sex Offenders Registration Amendment) Rules Criminal Code (Terrorist Organisation—Jaish-e-Mohammad) Regulations 2018 2018 No. 25 Conservation, Forests and Lands (Primary Industries Infringement Criminal Code (Terrorist Organisation—Lashkar-e Jhangvi) Regulations 2018 Notices) Amendment Regulations Defence (Inquiry) Regulations 2018 2018 No. 26 Building Amendment (National Construction Code Amendment and Defence Amendment (Defence Aviation Areas) Regulations 2018 Siting Requirements) Regulations Defence Force Discipline Regulations 2018 2018 No. 27 Rail Safety (Local Operations) (Drug and Alcohol Controls) Amendment Fair Work Amendment (Christmas Island and Cocos (Keeling) Islands) Regulations Regulations 2018 2018 No. 28 Magistrates’ Court (Judicial Registrars) Amendment Rules Financial Framework (Supplementary Powers) Amendment (Attorney-General’s 2018 No. 29 Magistrates’ Court Criminal Procedure (Amendment No. 9) Rules Portfolio Measures No. 1) Regulations 2018 Financial Framework (Supplementary Powers) Amendment (Communications and the New Victorian 2018 Bills Arts Measures No. 1) Regulations 2018 As at 20/03/18 Financial Framework (Supplementary Powers) Amendment (Education and Training Measures No. 1) Regulations 2018 Charities Amendment (Charitable Purpose) Bill 2018 Financial Framework (Supplementary Powers) Amendment (Health Measures No. 1) Emergency Management Legislation Amendment Bill 2018 Regulations 2018 Engineers Registration Bill 2018 Financial Framework (Supplementary Powers) Amendment (Jobs and Small Business Guardianship and Administration Bill 2018 Measures No. 1) Regulations 2018 Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 Financial Framework (Supplementary Powers) Amendment (Social Services Measures Parks Victoria Bill 2018 No. 1) Regulations 2018 New Commonwealth 2018 Assents Great Barrier Reef Marine Park Amendment (Hammerhead Shark) Regulations 2018 Health Insurance (Pathology Services) Regulations 2018 As at 20/03/18 Maintenance Orders (Commonwealth Officers) Regulations 2018 2018 No. 1 National Health Amendment (Pharmaceutical Benefits—Budget and Migration Legislation Amendment (Temporary Skill Shortage Visa and Other Measures) Act Complementary Reforms) Regulations 2018 2018 No. 2 Prime Minister and Cabinet Legislation Amendment (2017 Narcotic Drugs (Licence Charges) Amendment (Cannabis) Regulations 2018 Measures No. 1) Act National Film and Sound Archive of Australia Regulations 2018 2018 No. 3 Social Services Legislation Amendment (Cashless Debit Card) Act National Gallery Regulations 2018 2018 No. 4 Statute Update (Smaller Government) Act Petroleum Excise (Prices) Regulations 2018 2018 No. 5 Treasury Laws Amendment (Banking Executive Accountability and Related Primary Industries (Customs) Charges Amendment (Macadamia Nuts) Regulations Measures) Act 2018 2018 No. 6 Regional Investment Corporation Act Primary Industries (Excise) Levies Amendment (Macadamia Nuts) Regulations 2018

54 LAW INSTITUTE JOURNAL MAY 2018 courts & parliament Practice notes

Proceeds of Crime Repeal Regulations 2018 Marine Safety (Domestic Commercial Vessel) Levy t Sea Installations Regulations 2018 (Consequential Amendments) Bill 2018 Sex Discrimination Regulations 2018 Marine Safety (Domestic Commercial Vessel) Levy Bill CASH RATE TARGET Therapeutic Goods Legislation Amendment (2018 2018 From 6 December 2007 law Measures No. 1) Regulations 2018 Marine Safety (Domestic Commercial Vessel) Levy practices whose matters are Treasury Laws Amendment (Reducing Pressure on Collection Bill 2018 governed by the Legal Profession Housing Affordability Measures No. 1) Regulations National Consumer Credit Protection Amendment Act 2004 cannot use the penalty 2018 (Small Amount Credit Contract and Consumer Lease interest rate for their accounts. Wine Australia Legislation Amendment (Repeal and Re-forms) Bill 2018 The maximum rate is the cash rate target plus 2 per cent. The Consequential Amendments) Regulations 2018 Protection of the Sea Legislation Amendment Bill 2018 cash rate target is currently 1.50 Wine Australia Regulations 2018 Social Services Legislation Amendment (Drug Testing per cent (from 3 August 2016). Commonwealth 2018 Principal Bills Trial) Bill 2018 n To monitor changes between As at 20/03/18 editions of the LIJ, practitioners Banking Amendment (Rural Finance Reform) Bill 2018 This summary is prepared by the LIV Library to help practitioners keep informed of recent changes in legislation. For weekly should check www.rba.gov.au/ Competition and Consumer Amendment (Misleading updates, visit www.liv.asn.au/practice-resources/library/ statistics/cash-rate. Representations About Broadband Speeds) Bill 2018 resources/legislation/legislation-update. PENALTY AND FEE UNITS Interstate Road Transport Legislation (Repeal) Bill 2018 For the financial year commencing 1 July 2017, the value of a penalty unit is $158.57. The value of a fee unit is $14.22 (Government Gazette GG13, 30 March 2017). PRACTICE NOTES For the financial year commencing 1 July 2018, the Direction value of a penalty unit is $161.19. Magistrates’ Court Victoria The value of a fee unit is $14.45 Practice Direction No. 2 of 2018 – Applications to If it is reasonably practicable to do so, an (Special Gazette S145, 29 March vary bail application to vary the amount or conditions 2018). of bail is to be heard by the same magistrate Background PENALTY INTEREST RATE who originally granted bail. It has long been the practice in the Applications to vary the amount or The penalty interest rate is 10 per cent per annum (from Magistrates’ Court that wherever practicable conditions of bail are to commence with the 1 February 2017). To monitor applications to vary bail are listed before the filing of Form 11(Bail Regulations 2012) – changes to this rate between magistrate who originally granted bail. Application by accused for an order to vary editions of the LIJ, practitioners The purpose of this Practice Direction is amount of bail or condition(s) of bail. should check the Magistrates’ to formalise the Court’s current practice in This Practice Direction commenced on Court of Victoria website at relation to bail variations, and to standardise 9 April 2018. n www.magistratescourt.vic. the procedure for applications for refusal and gov.au/jurisdictions/civil/ revocation of bail as contained in s18 of the Peter Lauritsen, Chief Magistrate, 4 April 2018 penalty-interest-rates. Bail Act 1977.

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IN_SITES

Victorian Criminal Proceedings Manual www.judicialcollege.vic.edu.au/eManuals/VCPM/index. htm#27318.htm

Published by the Judicial College of Victoria, this manual covers the operation of the Criminal Procedure Act 2009 (Vic). It has recently been updated to include amendments to the Juries Act 2000 (Vic) and the Justice Legislation Amendment (Victims) Act 2018 (Vic). Other updates include Commonwealth provisions covering protected witnesses, alternative arrangements, sexual history evidence, previous trial evidence and video audio recording of evidence. Cross references to the Victorian Criminal Charge Book and Victorian Sentencing Office of the Public and other earlier Queensland law and Uniform Evidence Manuals direct users to reports (from 1859), unreported the correct publications. Advocate – Take Control Supreme Court judgments (from www.publicadvocate.vic.gov.au/ 2002), an appeals database including Confident Commuter our-services/publications-forms/ pending appeals and a Uniform Civil www.confidentcommuter.org.au take-control-march-2018/474-take-control-1 Procedure Rules service. The site is free to access, but it is necessary to Confident Commuter is a free service to help Published in March 2018, this is register. commuters understand their options and rights the 14th edition of this booklet. It when facing myki fines or dealing with ticket includes information and forms to The Victorian Legal inspectors. It has been developed by Liberty make an enduring power of attorney, Victoria’s Rights Advocacy Project – a group of appoint a medical treatment decision Services Board and lawyers and activists working for fairer laws – maker and complete an advance Commissioner – Fact Sheets funded from a Victoria Law Foundation grant. care directive. This edition includes www.lsbc.vic.gov.au/?page_id=42 The myki fine process flowchart is a useful way changes brought about by the The Victorian Legal Services Board of seeing your options if caught without a valid Medical Treatment Planning and and Commissioner, the independent ticket. Decisions Act 2016 (Vic) which came statutory authorities responsible into effect on the 12 March 2018. You for the regulation of the legal Child Protection Manual can download the booklet from this profession in Victoria, have a useful website or there is a link to Victoria www.cpmanual.vic.gov.au publications page which includes fact Legal Aid to order hard copies. Published by the Victorian Department of sheets for consumers and lawyers. Health and Human Services, this manual covers Queensland Judgments Fact sheets for lawyers include the requirements for Victorian statutory child practice management and avoiding protection practice and is the operational manual www.queenslandjudgments.com.au complaints, Legal Profession Uniform for the Children, Youth and Families Act 2005 Published by the Incorporated Law, the Fidelity Fund and trust (Vic). It includes a glossary, procedures and Council of Law Reporting for accounts. The brochure “Working policies, advice and protocols, its approach and the State of Queensland and the with your lawyer” is available information about its workforce. There are links to Supreme Court of Queensland to download in 22 languages. information sheets, forms, information about the Library Committee, this recently The consumer fact sheets cover process for undertaking a national police history launched website contains full text consumer rights and the Fidelity check, and best interest case practice model. access to Queensland Reports Fund. n

MAY 2018 LAW INSTITUTE JOURNAL 57 reviews Books

IN_PRINT This month’s books cover judicial activism, international economic law, VCAT and constitutional law and theory.

though it was used to describe the approach made up of more than 250 short entries of of some Federal Court judges in migration two to six pages each, with footnotes and cases. She also considers that the “French references, written by practitioners and Court” has “not been under the same academics from around the world. The book intense invigilation under the rubric of is an encyclopedia but it is not set out in activism in recent years”. While the text does alphabetical order. Instead, it is in four parts by consider recent High Court appointees, it theme. It has an encyclopedic table of contents precedes the appointment of the current of 10 pages and an index of 24 pages. The Chief Justice. index flags topics like anti-dumping measures, Commentary is drawn from consideration ASEAN, BIS, climate change, Energy Charter of numerous High Court cases. Insight is also Treaty, FTAs, ICSID, ICJ, MIGA, tobacco given into the frequent misunderstanding disputes and WTO dispute resolution. between the judicial development of the Part I deals with the foundations and common law and the interpretative approach architecture of international economic law, to statute and the Constitution. The text is including its scope, foundational concepts, scholarly, well footnoted and indexed, and historical perspective, sources of law and contains a comprehensive bibliography. regulatory approaches. The Campaign Against It will be of use to constitutional lawyers, Part II addresses the principles of the Courts: A history of the historians, legal commentators and those international economic law. It includes entries interested in the history and development of on non-discrimination in the trade of goods judicial activism debate the High Court of Australia. and services, non-discrimination on foreign Tanya Josev, The Federation Press, 2017, pb $50 direct investment, and transparency and good Cahal Fairfield, Victorian Bar These days “judicial activism”, though a fluid governance. concept, is seen as a pejorative description Part III covers the main regulatory areas of an approach to decision-making by including market access, customs regulation, judges. That was not always the case. When and monetary and financial regulation. first coined by a young Arthur Schlesinger Part IV presents cross-cutting challenges to Jr in an article about the US Supreme international economic law such as global value Court published in Fortune magazine in chains, combating poverty and human rights. 1947, the terminology did not necessarily Australian contributors include Simon connote criticism. Over time, in the US, it Brinsmead (Attorney-General’s Department, developed into what the author calls a false Canberra), Jarrod Hepburn (Melbourne paradigm between restraint and activism. Law School), Professor Andrew Mitchell Interestingly, it was only in the mid-1990s (Melbourne Law School), Jacky Mandelbaum that the terminology came to be generally (Melbourne lawyer) and Professor Tania Voon used in Australia to refer to the approach (Melbourne Law School). taken by some members of the High Court. This is a must-have book for every law and By that time, it had attained the pejorative business library, and for anyone working in the association it has today. While the author area of international economic law. identifies trends within the High Court from Paul Latimer, Adjunct Professor, Swinburne Law School the 1980s, it was only in the mid-1990s with Elgar Encyclopedia a series of judgments from the “Mason of International Court” that it was used widely in Australia by politicians, journalists, historians and Economic Law commentators. Thomas Cottier and Krista Nadakavukaren The author points out that the label of Schefer (eds), Edward Elgar, 2017, hb judicial activism was by and large not used This is a handsome hard copy reference on in the era of the “Gleeson High Court”, international economic law of 683 pages

58 LAW INSTITUTE JOURNAL MAY 2018 reviews

de Groot’s Wills, Probate and Administration Practice (Vic) By Robert D Shepherd Member: $405 Non-member: $450 This 21st edition continues to provide an excellent balance between practical reference and Pizer’s Annotated VCAT Act Blackshield and academic value Emrys Nekvapil, 6th edn, Thomson Reuters, Williams Australian at a low-cost subscription charge. The taxation chapter provides a relevant guide 2017, pb $229 Constitutional Law and to complex as well as common estate administration and planning matters. I vividly recall the farewell speech given by Theory: Commentary and www.liv.asn.au/DeGroots the author of this book, Emrys Nekvapil, Materials on the occasion of his departure from King George Williams, Sean Brennan & Andrew Commercial Tenancy Law e4 & Wood Mallesons. His farewell speech Lynch, 7th edn, Federation Press, 2018, pb $155 By Colin Croft, was a perambulation around questions Australian lawyers are blessed with high- Robert Hay, of administrative law and statutory quality case books on constitutional law. Luke Virgona interpretation. He was appropriately gifted While each of these books has its own Member: $288 by friends at the firm with a large tome. Non-member: merits, Blackshield and Williams is probably It warmed the cockles of my heart to see $320 the best known in the field. It provides my professional friend and colleague follow A comprehensive a comprehensive and reliable starting in the steps of Jason Pizer as the author of and authoritative point for study or research in Australian treatment of the this highly regarded volume on the Victorian constitutional law (although one hesitates law in Australia relating to all aspects of Civil and Administrative Tribunal (VCAT), now commercial leases. Commercial leases to describe a book of more than 1500 in its sixth edition. In addition to the usual are still primarily governed by the common pages as a “starting point”). helpful commentary on the machinery of law, even where leases are subject to retail This edition contains a new chapter on or shop lease legislation. VCAT, new parts of the text authored by statutory interpretation and its relevance to Nekvapil include: www.liv.asn.au/CommercialTenancy constitutional law. There is also new material •• the impact of cases that on proportionality, constitutional recognition Voidable Transactions in consider whether VCAT may of Indigenous peoples and decision-making Company Insolvency exercise the judicial power of the in the High Court. The authors have also By Farid Assaf, Brett Commonwealth reorganised their treatment of the implied Shields and Hilary •• whether VCAT may determine a Kincaid freedom of political communication. As proceeding between residents of Member: $256.50 would be expected, the book has been two states. Non-member: $285 updated to cover all recent significant These and other additions extend the Written by Farid constitutional cases up to December 2017. Assaf (principal text beyond a go to guide for members All of these features are very useful as a author and concept of and advocates before VCAT. It is now, reminder of constitutional developments in originator), Brett more than ever, an insightful discourse on Shields and Hilary Kincaid, this is a the past few years. legal developments. The author uses plain clear, thorough and practical work. Based on recent experience, it language, making it accessible to the non- The book guides practitioners through seems likely that we will see significant the complex voidable transaction lawyer litigant in person (if they can lift it, at developments in constitutional law in the provisions of the Corporations Act 2001 1281 pages). near future. It will be interesting to see (Cth) and the myriad cases dealing Having disclosed my conflict of interest, with voidable transactions. when the next edition of this book will be I suggest you purchase a copy of this book www.liv.asn.au/VoidableTransactions released. I suspect that the authors will face for your own library and dive into it on an as a challenging task in producing it. needed basis. It offers a practical and deep This book deserves its reputation as a high dive into the issues which are frequently quality overview of Australian constitutional www.liv.asn.au/LawBooks raised at VCAT. law. I can recommend it to students, 470 Bourke Street, Melbourne Eliza M Bergin, Anthony Mason Chambers teachers and professionals alike. [email protected] Daniel Lovric, Commonwealth Office of Parliamentary Counsel

MAY 2018 LAW INSTITUTE JOURNAL 59 reviews LIV Library

Verspaandonk, Andrew, Informal wills: intention and capacity under the spotlight, seminar paper, February 2018, Television IN_REFERENCE Education Network (TEN), 2018 (F KN 125 V 1) LIBRARY FACILITIES

Articles •• Wide range of online legal Books, seminar papers databases and multimedia Articles may be requested online and will be emailed, faxed •• PCs with free internet or mailed to members. access and commonly LIV members may borrow library material for 14 days, used software Bitcoins with a one week renewal available unless reserved by a •• Private study carrels with member. Items can be collected from the library, posted Allman, Kate, “The dark side of bitcoin”, in LSJ (NSW) no 42, power for notebooks or sent via DX free of charge. Material including the March 2018, pp28-29 (ID 73806) •• Wireless internet access location REF is unable to be borrowed. Building law •• Photocopiers •• Members’ lounge Conveyancing Attard, Mark, “Proportionate liability in the construction industry” in BDPS News, no 56, February 2018, pp4-10 (ID 73749) •• Experienced staff Libbis, Simon, Conveyancing Victoria: The ultimate guide 2018- offering assistance and 19 (6th edn), Hybrid Publishers, 2018 (KN 74 L 2 6) Consumer law advice on the use of resources Dispute resolution Poukchanski, Anya, “Unfair terms for small business writ large: ACCC v JJ Richards & Sons Pty Ltd” in Competition & Consumer •• Swipe card member Legg, Michael (ed), Resolving Civil Disputes, LexisNexis Law News, vol 33 no 9-10, January 2018, pp126-128 (ID 73797) access to the library Butterworths, 2016 (KN 398.6 R 1) Monday to Friday, Cyberlaw – confidential information 9am-5pm Employment law Tashea, Jason, “Prepare, practice, protect – cybersecurity and •• Request, reserve and Stewart, Andrew, Stewart’s Guide to Employment Law (6th edn), the law” in ABA Journal, vol 104 no 1, January 2018, pp30-32 (ID renew books, order Federation Press, 2018 (KN 192 T 1 6) 73681) copies of articles, request Family law research assistance and Cyberlaw – data protection access legal resources Kayler-Thomson, Wendy, et al, Sound Education in Family Law, via the LIV website Doepel, Mark, “Australian business slow to build up cyber Audio CD, February 2018, Television Education Network (TEN), resilience” in Privacy Law Bulletin, vol 15 no 1, February 2018, 2018 (ACD KN 170 K 17) pp10-11 (ID 73802) Contents: CD 1. 1. Introduction – 2. Family law report – 3. Bullet- proof financial agreements – rare as hens’ teeth? – CD 2. - 1. Discovery – law reform LIBRARY CONTACT Family law case watch – 2. Alternatives to litigation & when to Nolan, Tony, “Reform of discovery in the 21st century” in DETAILS use them in family law. Precedent, no 142, September/October 2017, pp20-25 (ID 73950) Ph: 9607 9360/1 Family law Evidence – fair trials Fax: 9607 9359

Clemente, Robert, et al, Sound Education in Family Law. Audio Talbot, Anna, “The use of secret evidence in criminal and civil Email: [email protected] LIV Trivia Night DETAILS CD, March 2018, Television Education Network (TEN), 2018 (ACD proceedings” in Precedent, no 142, September/October 2017, Web: http://library.liv. asn.au KN 170 C 1) pp30-35 (ID 73952) THURSDAY 31 MAY, 6.30–9.30PM WHEN Use the website to Contents: CD 1. 1. Introduction – 2. Family law report – 3. What’s Family violence – cruelty to animals CQ MELBOURNE, 113 QUEEN ST, MELBOURNE Thursday 31 May, 6.30–9.30pm mine is yours: assessing contributions in family law matters – 4. request, reserve and Family law case watch – CD 2. 1. Defining best interests of the Killeen, Anita, “Animal cruelty and family violence” in LawTalk, renew books, order WHERE copies of articles, request Let your hair down and put your thinking cap on: the LIV Trivia Night child in family law parenting matters no 914, February 2018, pp19-21 (ID 73757) CQ Melbourne, 113 Queen St, Melbourne research assistance and Gender equity – patent attorneys – women lawyers is back! PRICE (INC GST) Family law – matrimonial property access legal resources. Rock, Katherine, “Gender imbalance in the patent attorney $55 Member Colman, Pippa, What’s mine is not yours: assessing ACCESS Enjoy some good old-fashioned, friendly Put away your mobile phone and gather your profession in Australia: myths and evidence-based $75 Non-member contributions in family law matters, seminar paper, March 2018, recommendations for change” in Australians Intellectual LIV members can use competition at the LIV’s annual trivia night. best and brightest for the ultimate battle of wits $440 Table of 8 Television Education Network (TEN), 2018 (F KN 58.2 C 1) Property Journal, vol 28 no 2, 2018, pp64-78 (ID 73739) their member cards to This flagship event is the perfect place – and for the chance to win some great prizes! gain convenient access to Includes trivia, finger food and two drinks Family law – parental access – children Not for profit organisations – goods and services tax the library. Simply swipe to put your general knowledge to the test! Tickets for this event sell quickly, so make sure REGISTER BY Page, Stephen, Defining best interests of the child in family your member card at the Mitchell, Jason, “Non-profit? It’s not what you think it means” Friday 25 May law parenting matters, seminar paper, March 2018, Television entrance to the library. Don’t miss the opportunity to participate in you book soon to ensure your spot. in Australian Business Law Review, vol 46 no 1, 2018, pp32-53 Education Network (TEN), 2018 (F KN 173.8 P 1) fantastic trivia on a wide range of topics, REGISTRATION (ID 73737) T: 9607 9473 Health, medical law socialise with friends and network with Practice management – law firms – organisational colleagues over drinks, canapés and lollies. E: [email protected] Freckelton, Ian and Petersen, Kerry (eds), Tensions and behaviour – takeovers and mergers W: www.liv.asn.au/TriviaNight18 Traumas in Health Law, Federation Press, 2017 (N 185 T 2) Rankin, John, “The perfect match” in Law Society Gazette Social media Ireland, vol 112 no 1, January-February 2018, pp58-60 (ID 73865) SUITABLE FOR: Howard, Mark, Social media: not letting technology impact your Privacy – encryption PROUDLY SPONSORED BY business, seminar paper, October 2017, Television Education Network (TEN), 2017 (F KN 340 H 1) Lincoln, Julian, Anderson, Zoe, “Privacy and encryption” in STUDENT GRADUATSTUDENTE GRADUATSTUDENTNEW E PRACTISINGGRADUATNEW E PRACTISINGAFFILIANEWTE PRACTISINGSTUDENTAFFILIATE GRADUATAFFILIATEE STUDENTNEW PRACTISINGGRADUATE AFFILIANEW TE PRACTISING AFFILIATE Privacy Law Bulletin, vol 14 no 9-10, January 2018, pp162-164 SOLICITOR SOLICITOR SOLICITOR SOLICITOR SOLICITOR (ID 73663) n

60 LAW INSTITUTE JOURNAL MAY 2018

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THURSDAY 31 MAY, 6.30–9.30PM WHEN CQ MELBOURNE, 113 QUEEN ST, MELBOURNE Thursday 31 May, 6.30–9.30pm WHERE Let your hair down and put your thinking cap on: the LIV Trivia Night CQ Melbourne, 113 Queen St, Melbourne is back! PRICE (INC GST) Put away your mobile phone and gather your $55 Member Enjoy some good old-fashioned, friendly $75 Non-member competition at the LIV’s annual trivia night. best and brightest for the ultimate battle of wits $440 Table of 8 This flagship event is the perfect place – and for the chance to win some great prizes! Includes trivia, finger food and two drinks to put your general knowledge to the test! Tickets for this event sell quickly, so make sure REGISTER BY Don’t miss the opportunity to participate in you book soon to ensure your spot. Friday 25 May fantastic trivia on a wide range of topics, REGISTRATION socialise with friends and network with T: 9607 9473 colleagues over drinks, canapés and lollies. E: [email protected] W: www.liv.asn.au/TriviaNight18

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STUDENT GRADUATSTUDENTE GRADUATSTUDENTNEW E PRACTISINGGRADUATNEW E PRACTISINGAFFILIANEWTE PRACTISINGSTUDENTAFFILIATE GRADUATAFFILIATEE STUDENTNEW PRACTISINGGRADUATE AFFILIANEW TE PRACTISING AFFILIATE SOLICITOR SOLICITOR SOLICITOR SOLICITOR SOLICITOR practice Victorian law reform

MORE POWER TO THE PEOPLE Advance care directives for future medical treatment are now enshrined in law.

The Medical Treatment Planning and Decisions Act The Act also provides a framework for determining t 2016, which came into force on 12 March 2018, changes who should be a medical treatment decision maker if the law regarding the medical treatment of people who no one has been appointed, which is likely to happen in TIPS do not have decision making capacity. many cases. In such cases the decision maker will be •• The Act allows These important reforms are based on someone who has a “close and continuing” relationship a person with recommendations made by the Victorian Law Reform with the person: the first of the spouse or domestic capacity to make Commission (VLRC) in its 2012 report “Guardianship”, partner; the primary carer, an adult child, parent or an advance care which was the first major review of Victorian sibling. The Office of the Public Advocate will be the directive about guardianship laws for 30 years. “decision maker of last resort”. future medical Underpinning the new Act is the principle that a In its 2012 report, the VLRC observed that the laws treatment. person’s own preferences and values should determine were fragmented and confusing. The new scheme is •• If a person loses their medical treatment, rather than decisions made by intended to provide clarity about who is responsible capacity their someone else about the person’s best interests. The for decisions regarding medical care, and what the directive would new scheme encourages people to talk to their family obligations of health practitioners are. take effect. and friends and plan ahead for future medical decision In its report the VLRC made recommendations •• The legally making when they might not be able to decide for for modernising Victoria’s guardianship laws. Key binding directive themselves. recommendations included maximising participation may include The Act allows a person with capacity to make an in decision making; providing a wider range of instructional directives and advance care directive about future medical treatment decision making assistance; a preference for personal values directives. in the event that they do not have decision-making appointments; simplifying the law concerning medical capacity when the time comes for the treatment. treatment decisions and improving accountability and The directive, which is legally binding, may include safeguards. Many of these recommendations are instructional directives and values directives. reflected in the new Act. Instructional directives are binding instructions The VLRC also observed in 2012 that the profile of to consent to or refuse future medical treatment. people affected by guardianship laws had changed. The For example, a person may refuse chemotherapy or laws had originally been intended to apply to people with radiotherapy if they do not wish to go through these intellectual disabilities, who are still significant users of treatments. If they subsequently lose capacity, their the laws. However, people with dementia, mental illness directive would take effect. A values directive is a and acquired brain injury are now the main users of the statement of the person’s values and preferences for legislation. their medical treatment. This may include, for example, Previous legislative changes have a preference for quality of life over length of life. A values implemented other recommendations directive will guide medical decisions made on the from the “Guardianship” report. person’s behalf. The Powers of Attorney Act 2014 The Act provides for the appointment of a medical allowed for the appointment of treatment decision maker who has the legal authority supportive attorneys to assist to make decisions on a person’s behalf if they have lost a person to make decisions capacity. A medical treatment decision maker must on financial and personal make the decision that they reasonably believe the matters. The Medical person would make. They are guided by an advance care Treatment and Decisions directive including the values and preferences expressed Act is another important in the values directive. step along the path towards The Act also provides for the appointment of support enabling people with persons for people before they lose decision making impaired decision-making capacity. The support person’s role is not to make capacities to maximise their decisions about medical treatment, but to assist the participation in decisions that person to make and communicate their own decisions. affect them. n The support person also has a role in ensuring the This column was contributed by the VLRC. For further decisions are implemented. information ph 8608 7800 or see www.lawreform.vic.gov.au. ADOBE STOCK

62 LAW INSTITUTE JOURNAL MAY 2018 practice LPLC

POST MORTEM RISK MANAGEMENT Good risk management includes analysing mistakes and learning from them.

What has a post mortem examination to do with questions had been asked, a claim may have been t risk management? A doctor conducting a post avoided. mortem thoroughly examines the deceased to try One of the questions in the checklist is whether TIPS to determine the cause and manner of death. The the client has an ABN. Practitioners who have not •• Before closing a results are also useful for research and educational asked this question in the past have missed the fact difficult file, stop purposes. that the client entity is actually acting in its capacity and think of any Consider doing a post mortem examination on a as a trustee. risk management closed file where a claim or potential claim arose or lessons that could where difficult issues were encountered. Before settlement steps be learned from Having identified any issues and considered the the file. In another claim the client bought a property off- causes of the claim or potential claim, a firm can •• Discuss mistakes the-plan. The firm acting for the purchaser received then determine the best strategy to deal with any and near misses a copy of the registered plan before settlement but such problems should they arise again. It can inform openly and did not carefully compare the registered plan with improvements in office policies, procedures and constructively. the plan in the contract. After settlement the client checklists. •• Keep a list of discovered that two easements had been added to Keeping a record of claims, near misses, difficult issues the lot he was buying which affected his intended difficult issues, findings and risk management including risk use of the property. recommendations is important to ensure these management The client made a claim against the firm saying lessons learned. lessons are not forgotten. the firm should have told them about the changes. •• Revisit policies, The firm has since changed its protocols and it Questions to ask your client at the start procedures now always carefully compares any registered plan and checklists A conveyancing claim LPLC received illustrates against the one in the contract and sends a copy to regularly with the how beneficial analysing past incidences can be. A the client. The firm does not rely on the vendor’s lessons learned. practitioner used a checklist to ask clients questions solicitor to tell them if there has been any change to to assist the practitioner to complete a section 32 the plan. statement. One question was whether the client had obtained any building permits, to which the client Lessons answered no. Information gained from doing post mortem The purchaser’s representative discovered that a examinations is a valuable way to ensure firms building notice had been issued by the local council continually improve the way they manage clients requiring the removal of a porch added by the vendor and their matters. Firms that talk openly and to the rear of the dwelling. constructively about mistakes and near When confronted by the practitioner about the misses are much better placed to avoid works, the vendor client’s response was that they those mistakes in the future. n did the works as owner builders and did not obtain any permits. This column is provided by the Legal A post mortem examination of this file by the Practitioners’ Liability Committee. practitioner resulted in them updating their checklist For further information ph 9672 3800 to include a question as to whether the vendor client or visit www.lplc.com.au. has done any building works, not just obtained any building permits.

LPLC checklists

The checklists on the LPLC website have been prepared based, in part, on a post mortem examination of claims and near misses. “The Key Risk Checklist: Sale of land – questions for the vendor contains 59 questions for a vendor” is a good example. These questions have been included as a result of reviewing conveyancing claims data. If the ADOBE STOCK

MAY 2018 LAW INSTITUTE JOURNAL 63 practice Property

HONEST AND REASONABLE Section 32 of the Sale of Land Act requires a vendor to provide a purchaser with a vendor’s statement disclosing specified information in relation to the property. The purchaser may avoid the contract if there is a breach of s32, but the vendor has an escape hatch in s32K.

the purpose of preparing the Vendor Statement. While t the representative might be the vendor’s agent for other SNAPSHOT parts of the transaction, that agency did not extend to preparation of the vendor’s statement and the vendor was, •• Section 32K allows therefore, not vicariously liable for the expert’s negligence. a vendor to avoid RUSSELL COCKS Downing, in adopting Paterson v Batrouney, chose not termination for to follow other authority and it may be that the matter will breach of s32. be reconsidered by the Supreme Court in the future. •• A vendor will not Last year McHutchison v Asli [2017] VSC 258 considered Having found that the vendor satisfied the first leg of be responsible for whether a vendor could rely on s32K in circumstances s32K, the inquiry then turned to whether the “purchaser the negligence of an expert. where a planning permit for a septic sewerage system is in substantially as good a position”. The purchaser felt was not disclosed. Downing v Lau [2018] VCC 33 is a aggrieved because the purchaser had intended to seek •• A purchaser cannot avoid if they County Court decision considering s32K in the context a permit to construct eight (or perhaps seven) units and are in as good a of non-disclosure of a planning permit relating to future took the view that the existence of the permit for four position. development of the property. units substantially affected the purchaser’s ability to get a Unlike in McHutchison, where the obligation to permit for seven to eight units, notwithstanding that expiry disclose the notices was contested by the vendor, of the four unit permit was imminent. Alternatively, the Downing proceeded on the concession by the vendor purchaser argued that a property with a disclosed four- that the planning permit was a “notice” affecting the land unit permit was worth less than a property without such a within the meaning of s32D(a). This is consistent with permit, as this property had been represented. the decision in McHutchinson and must now be beyond No valuation evidence was tendered to prove the second doubt. The question in Downing, therefore, became – point and the Court was not satisfied that the existence of Could the vendor rely on s32K? the almost expired four-unit permit meant that the purchaser The two elements to s32K are: could not achieve its desired outcome of a permit for seven •• that the vendor acted honestly and reasonably and to eight units. The Court appeared to ought to be excused take the view that the purchaser •• that the purchaser is substantially in as good a regarded the property as position. “tainted” by the four-unit The vendor’s failure to disclose related to a current permit without being planning permit that had been obtained some time able to prove in any before the sale and which permitted the construction meaningful way that of four units on the land. Unlike the permit in the purchaser was not McHutchinson, which imposed conditions on the use of substantially in as good a the property and was therefore restrictive, the permit in position. Downing did not require construction of the units, it was The vendor was, simply a permissive notice. Nevertheless, it should have therefore, held to have been disclosed. That it was not disclosed was a decision been entitled to accept of the vendor’s conveyancer, who (mistakenly) was of the purchaser’s purported the view that it did not need to be disclosed. termination of the contract A vendor who has been personally negligent is not for breach of s32 as a likely to qualify as “honest and reasonable” so the repudiation of the contract and question was whether the vendor would be vicariously thereby entitled to judgment for the liable for the vendor’s representative’s negligence. This amount of the unpaid deposit and interest at penalty rates. n had previously been considered by the Supreme Court Russell Cocks is author of 1001 Conveyancing Answers. For in Paterson v Batrouney [2000] VSC 313 where elderly more information go to www.russellcocks.com.au. vendors were found not to be responsible for their representative’s negligence. Downing considered the question in the context of the law of agency and decided that the representative was retained by the vendor as an expert and was not the vendor’s agent, at least not for ADOBE STOCK

64 LAW INSTITUTE JOURNAL MAY 2018 practice Technology

A NEW TYPE OF ‘JUNIOR WORK’ Many law firms don’t understand the range of new benefits junior lawyers can bring.

Many commentators on the “what work junior lawyers can and cannot While some of the do” seem to have a misconception on where junior lawyers can add specialised work value. This is based on two issues. First, the law firm is evolving into will still need to a multi-disciplinary consulting style organisation that brings value be done by senior and support to the client (something accountants have been doing lawyers, much for years). This means there is greater engagement with the client of the underlying by the senior lawyers leading to a hiring situation where firms only coding can be done by junior lawyers making use of their early-career want lawyers with “client and business experience”. Second, and legal knowledge. These tasks also train the junior lawyer in legal in combination with the first, technology is increasing efficiencies analysis that is far beyond the hours of tedious manual work (no one throughout the practice of law. This means that much of the work that has ever cried about not doing manual discovery). was previously done by junior lawyers is now done by machines. Due to these changes, many law firms find it difficult to justify hiring Online client engagement and training junior lawyers. They don’t understand the range of new Many firms are afraid to let junior lawyers anywhere near the client. benefits junior lawyers can bring to the table, including: The problem with this approach, however, is that senior lawyers are expensive and clients can find a lot of information on the internet. Enhanced communications Junior lawyers can be used to fill this gap by engaging with clients The days of the 30-page letter of advice are gone. Nowadays, in through portals and apps. Boosting social media accounts and creating our time-poor lives not even a brilliant executive summary will infographics are other non-traditional ways of engaging with clients. cut it. So in come the PowerPoint, Prezi and video advice. Using Even as an initial port-of-call, the junior lawyer can add value to the enhanced communication technologies junior lawyers use their basic client’s interactions with the firm and the junior lawyer gains valuable legal expertise to transform written advice into engaging tri-com experience at the same time. presentations (audio/video/icons) that inform the client in succinct and So it is time to re-evaluate the skills that new lawyers can bring to informative ways. the table and get a new perspective on the value they can bring to a firm. Technology may be changing the face of legal practice, but legal Primary coders practice still requires people to interact not only with the technology but also with the clients. n Workflows, document fields and other basic pre-programming functions are the basis of the automated firm now and into the future. Fabian Horton is a principal solicitor at ConnectLaw and lecturer at the College of Law.

LIV Practice Management Course TRANSITION TO PRACTICE PRINCIPAL OR PARTNER

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MAY 2018 LAW INSTITUTE JOURNAL 65 practice ADR

EVERYONE’S A WINNER Avoiding litigation is among the many benefits of alternative dispute resolution.

t Alternative Dispute Resolution (ADR) is a common Further, the court has observed that it is in the public process undertaken by many corporate entities and interest for negotiations in litigated proceedings to SNAPSHOT individuals in order to achieve resolutions in disputes. not be inhibited by the risk of such negotiations being What are the benefits of engaging in ADR? made public. 1 Benefits of ADR include: Cost effective Informal •• cost-effectiveness •• flexibility Litigation can be a very expensive exercise which could Litigation, including the courtroom itself, can be quite •• confidentiality. take months or years to resolve. As an alternative to intimidating to clients, particularly those experiencing litigation, ADR is extremely economical, taking into litigation for the first time. ADR offers the parties a less account the room fee, mediator’s fees and solicitor and/ formal environment by which to resolve their dispute or counsel fees, as opposed to costs associated with a without the overwhelming and daunting experience lengthy trial. which may flow from court proceedings.

All parties can be winners Finality

Litigation always carries an inherent risk, particularly ADR also enables parties to reach finality. This can in relation to the ultimate outcome determined at trial. sometimes appear unachievable, particularly in However, ADR offers the parties a means of reaching a circumstances where the parties are caught up in the mutually agreeable resolution (ie, in mediation) whereby battle of litigation, with no end in sight. all parties may consider themselves winners. In 2003, the National Alternative Dispute Resolution Advisory Council released statistics regarding Desired outcome the success of ADR.2 Although the data was not exhaustive, it is a clear indicator that overall, ADR has The ability for parties to influence the outcome of a grown in popularity and success. dispute should never be underestimated as this carries ADR has proven to be successful in all dispute with it a level of ownership and satisfaction which can resolution procedures, including but not limited to, be unachievable in litigation. arbitration, mediation, expert determination, early neutral evaluations, conciliations, settlement and Flexibility conferences. n ADR is flexible and may offer the parties options in terms of elements such as venue, attendees, Jessica Andreacchio is special counsel at Thomson Geer in the dispute resolution team. She is a national accredited mediator and a discussion points and outcomes. Litigation can seldom member of the LIV Alternative Dispute Resolution Committee and the offer this level of flexibility in the ever-increasing Court Practice Committee. matters managed in court lists. 1. Silver Fox Co Pty Ltd v Lenard’s Pty Ltd (No 3) (2004) 214 ALR 621; [2004] FCA 1570. Confidential 2. National Alternative Dispute Resolution Advisory Council, ADR Settlement terms are generally Statistics 2003, at www.ag.gov.au. confidential in nature, which is a highly regarded element of ADR. Generally speaking, commercial matters carry reputational risk. Corporate entities in particular are conscious of preventing any settlement terms from reaching the public domain. ADOBE STOCK

66 LAW INSTITUTE JOURNAL MAY 2018 practice According to merit?/Diversity

THAT SHOULD BE ILLEGAL The Workplace Gender Equality Agency puts the national pay gap for women lawyers at 25.4 per cent.

Many women lawyers would have grown up without contemplating things would be different. Iceland, the country with the top score for that they could be paid less because they were female. Our natural gender equality, recently introduced legislation requiring employers to expectation of pay equity is highlighted by the disappointment and prove they offer equal pay through an accredited certification process. indignation of girls exposed to a pocket money pay gap as part of an The United Kingdom has also embraced transparency requiring ANZ Equal Future campaign in 2016. The ad features the reaction of employers with more than 250 employees to publicly report their one girl when she is rewarded with $3 while her brother is gender pay gap from April this year. handed $5: “That should be flat out illegal”. The reflections of British political activist (1858-1928) It was once perfectly acceptable to pay a Emmeline Pankhurst on the suffrage campaign man more for doing the same job. It was seem equally applicable in relation to pay equity. only in 1969 that a female minimum She said: “When the long struggle for the wage was secured at 85 per cent enfranchisement of women is over, those of the male wage. To get that far who read the history of the movement took confrontational action from will wonder at the blindness that led the women like Zelda D’Aprano government of the day to obstinately who chained herself to the resist so simple and obvious (a) Melbourne Commonwealth measure”.4 Building.1 In February this The beneficiaries of pay equity, year, when Zelda died at whichever generation they might 90, Australia was ranked eventually belong to, will surely no 35 in the Global Gender wonder what led us to resist Gap Report and the transparency and accountability Workplace Gender Equality measures, such as public reporting Agency (WGEA) had just and empowering employees to announced a national pay gap discuss their pay. of 15.3 per cent. It is worse VWL will run a practical session for for women lawyers at 25.4 per law firms on how to analyse and report cent.2 on their gender pay gap this month. For Seventeen law firms this year more information and to get involved in received the WGEA Employer of VWL’s pay gap initiatives visit vwl.asn.au. n Choice for Gender Equality citation. Lawyers at some of those firms expressed Julianna Marshall is an executive member at Victorian Women Lawyers. deep frustration at the secrecy surrounding the process. Many felt their firm was undeserving. 1. See Kristine Ziwica, “Remembering Zelda D’Aprano, the legendary equal pay campaigner”, 24 Such a response is a timely reminder that Australia is lagging February 2018 Women’s Agenda. 2. WGEA Data Explorer Professional, Scientific and Technical Services, from data collected when it comes to transparency and accountability of gender equity across 513 organisations comprising of 276,852 employees. initiatives. It is no doubt a good thing that employers are required 3. Pursuant to the WGEA (Matters in relation to Gender Equality Indicators) Instrument 2013; to report to WGEA, and that law firms are vying for the citation but, Australian Women Lawyers press release: “Transparency Needed to Reveal True Employers of as acknowledged by Australian Women Lawyers, “it would appear Choice”, 2 March 2018. incongruous if the data relied upon . . . did not mirror the reality”.3 4. Helen Pankhurst, ‘“Join me in remembering the suffragettes’ sacrifice today – and keep Yet, despite the clear indication that the pay gap is lower where marching”, The Telegraph (UK) (online), 6 February 2018, www.telegraph.co.uk/women/politics/ accountability and transparency are increased, for example where helen-pankhurst-join-remembering-suffragettes-sacrifice-today/. rates are set by collective agreement and publicly disclosed, there has been very little leadership on transparency initiatives in the legal sector. Both Victorian Women Lawyers (VWL) and the Law Council of Australia wrote submissions supporting the Greens Fair Work Amendment (Gender Pay Gap) Bill 2015, designed to prohibit employers from requiring pay secrecy, but the Bill lapsed in 2016. So, in Australia, the little girl (perhaps an aspiring lawyer) still receives less than her brother and they can’t talk about it. If she were in Iceland ADOBE STOCK

MAY 2018 LAW INSTITUTE JOURNAL 67 LEGAL EDUCATION VIDEOS EARN CPD POINTS, IN YOUR OWN TIME, AT YOUR OWN PACE.

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Our legal education videos are designed to fit professional development into busy schedules.

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LIVECTI career Legal action

NEW ADMISSIONS

The following people were admitted to practice as Australian lawyers and as officers of the Supreme Court of Victoria on 13 March 2018. The LIJ welcomes them to the legal profession.

ANDERSON, Caitlyn FOLEY, Rhiannon KOLOVOS, Christina NGUYEN, Megan SESTITO, Emma ARIAN, Anahita FOO, Dania LAGRECA, Jesse NGUYEN, Van SHAYAN, Paryssa BAKEWELL, Melanie FREEMAN, Tristana LAM YUN HUI, Theresa NIKAKIS, Sarah SIM, Sean BALAJI, Harsha GAMBERA, Ashleigh LARSEK, Natalie NOONAN, Ashley SKABURSKIS, Isabelle BUI, Peter GANEMY KUNOO, LAY, Charleen NUGENT, Nicole SMITH, Becky BURNS-WILLIAMSON, Shelley Plawtamigaw LAY, Patrick OFFER, Charmaine SMITH, David BUTKOWSKI, Raissa GIBBS, Charles LEIGHTON, Rebecca OLIVEIRA-FRY, Anna SOH, Denise CAMERON, Matthew GOODMAN, Ryan LIM, Junli ONG, Xiu Shan SOOD, Kunal CARAO, Ma Mikaela GRANT, Madeleine LIM XU HUI, Camille OON, Wei Li STEPHENS, Molly CHANPASEUTH, Tushadi GREEN, Claire LOVE, Kiera OSKI, Sheldon STERGIOU, Christopher CHENG, Kenny GREGORY-WIDDICOMBE, Sarah MAIN, Elizabeth PATANE, Michael TAN, Peak Sheng CHOK, Wan Si HABIB, Gabriella MANICKAM, Yoha PATRICK, Dilani TONG, Kai Yuen CHUNG LENG, Chan HEFFERNAN, Ruby MAVOR, Kristen PENG, Jieying TUCKER, William CIDONI, Andrew HEFFERNAN, Sean MCDONALD, Benjamin PENNY, James UDOROVIC, Timothy CORNISH, Annette HENDERSON, Amelia MCNAB, Andrew PERERA, Danushka VANDELOO, Lachlan COTSANIS, George HINDS, Katie MEEHAN, Terrence PHILLIPS, Bogart VILLANO, Christina DANKS, Eleanor HU, Yiwen MEYER-SMITH, Jennifer PITKIN, Matthew VOGDANOS, Constandean DREYFUS, Laura HUSSEIN, Derya MIMIGIANNIS, Constantine POYSER, Claire VOLOSHINA, Nadezda DUREAU, Nicole ILIFF, Belinda MITROVIC, Andrew PRATA DOS SANTOS, Nabila WALKER, Siti Munafiah ELSEIDY, Sarah JAGGER, Nicole MOHAMED IQBAL, Shaima RADATTI, Leah YABIO, Tedros FAHMI, Muhammed JAMES, Kate MOHAMUD ALI, Anesha REYER, Zlatko YU, Tak Ming Benjamin FELICIANO, Carlos Lorenzo JANSZ, Luke MORRISON, Angus ROBERTS, Jade FILDES, Alexandra JASSAL, Sandeep MURNANE, Mark ROONEY, Lauren FLANAGAN, Gabrielle JAYASURIYA, Natasha MURPHY, Declan SARAN, Amarinder

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MAY 2018 LAW INSTITUTE JOURNAL 69 career Your career

CHOOSE REFEREES WISELY

REFERENCES SHOULD BE GIVEN THE ATTENTION THEY DESERVE.

Depending on the new role, referees What to say? should also be asked to comment on a So let’s assume you’ve been chosen as lawyer’s business development skills a referee. This opens up three scenarios. and sense of commerciality. Any red Scenario 1 – where you cannot give flags should obviously be probed further. a favourable reference. Be honest and THOMAS HOBBS politely decline. The lawyer has clearly Who to choose? lacked judgment in asking for your At least three key criteria should be involvement. That said, all is not lost for Getting to reference stage usually means an offer is factored in when choosing a referee. the lawyer as there may be others to imminent. It’s a happy (though sometimes anxious) First, a referee should be chosen take your place (noting an inference may time. Increasingly, offers are already made and signed knowing they will give a favourable be made about the lawyer). off while being subject to favourable references. Such reference. Of course, few reference Scenario 2 – where you’ll raise some offers are known as conditional offers. checks are faultless. As a lawyer, if I serious red flags and there’s a good Here, I will tackle three key questions. had any doubts I’d be sure to have a chance you will jeopardise the lawyer’s •• What is covered in a reference check? frank discussion with a potential referee chances of getting the role. It’s crucial LIV PRACTICE MANAGEMENT •• As a lawyer leaving a role, who do you choose and – too much is at stake not to – before that you convey this to the lawyer and what etiquette applies? having them speak with a firm (or let them decide. This will turn on the •• As a referee, what are your unwritten obligations recruiter). Second, a referee should have types of red flags raised though as a COURSE (PMC) when acting as a referee (or turning down the supervised or have a clear appreciation rule, if a lawyer has access to a similarly opportunity to be a referee). and recollection of the quality of a suitable referee who is able to give both lawyer’s work and should always be an honest and favourable account then TRANSITION TO PRACTICE PRINCIPAL OR PARTNER What’s covered? more senior than the lawyer. And third, they should be contacted instead. Reference checks cover a lawyer’s technical skills and currency is important. If choosing two Scenario 3 – where you can give a level of initiative/attitude to their work, though they referees, they should both ideally be favourable reference. The LIV’s PMC has been specifically designed by experts to provide the essential business and should cover a lot more. Reference checks should, commenting on lawyer’s work from the References tend to come at the end financial knowledge and skills to help lawyers transition to principal of their own practice or move at a very minimum, address a lawyer’s strengths, past couple of years. Accessibility to a of the recruitment process and are a into partnership. Delivered through a blended learning approach, the modules simulate a business weaknesses, time management and communication referee should also be considered as critical step. As such, they should be skills, ability to relate to clients, superiors and other delays in reaching a referee may prove given the attention they deserve. n lifecycle. staff, level of autonomy with respect to others at their problematic. Thomas Hobbs is a former lawyer and now senior level, ability to perform under pressure, and ability consultant at Burgess Paluch Legal Recruitment. He is Introductory offer – LIV Members: $1980, Non-members: $2200 to meet their allocated budget (and if not, why not). 2017 LIV Young Lawyers vice-president. For full course details and to secure your introductory offer contact us:

W T: 9607 9421 E: [email protected] W W: www.liv.asn.au/PMC IEDATION “Intense dark each month. crimson in The monthly winner will be randomly selected. colour and MAJOR SPONSOR equally intense To enter send your answer to advertisingliv.asn.au before the end of the month. flavours” : JAMES HALLIDAY Narelle Neagle, Senior Associate, Maurice Blackburn Lawyers

70 LAW INSTITUTE JOURNAL MAY 2018 LIV PRACTICE MANAGEMENT COURSE (PMC) TRANSITION TO PRACTICE PRINCIPAL OR PARTNER

The LIV’s PMC has been specifically designed by experts to provide the essential business and financial knowledge and skills to help lawyers transition to principal of their own practice or move into partnership. Delivered through a blended learning approach, the modules simulate a business lifecycle. Introductory offer – LIV Members: $1980, Non-members: $2200

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T: 9607 9421 E: [email protected] W: www.liv.asn.au/PMC ET

MAJOR SPONSOR liv Advocacy

REPRESENTATION Family Court Reason Party Ms Wilson and Ms Wallace met with Ms Wilson and Ms Wallace met Victorian Family Court of Australia Chief Justice John Reason Party leader Fiona Patten. Allens Pascoe. RMIT LIV president Belinda Wilson and CEO Gadens Nerida Wallace met with Allens managing Ms Wilson and Ms Wallace met with partner Richard Spurio. Ms Wilson and Ms Wallace met director of the RMIT University JD program with Gadens Lawyers CEO Grant Penny Weller. Clayton Utz Scott-Hayward. Small Business Ms Wilson and Ms Wallace met with Legal Services Board Clayton Utz partner-in-charge Paul James Ms Wilson and Ms Wallace met with and partners Andrew Morrison and Pip Ms Wilson and Ms Wallace met with Victorian Small Business Commissioner Mitchell. Victorian Legal Services Board CEO Fiona Judy O’Connell. McLeay and chair Fiona Bennett. Corrs Chambers Westgarth Swinburne Law School National Party Ms Wilson and Ms Wallace met with Corrs Ms Wilson and Ms Wallace met with Chambers Westgarth CEO and partner Ms Wilson and Ms Wallace met Victorian foundation dean of Swinburne Law School John Denton. Nationals leader Peter Walsh. Professor Dan Hunter. n

of Justice and Regulation consultation to justify a finding a child has been paper in relation to the draft Bill. The LIV subjected to family violence. SUBMISSIONS focused on five issues: • the need to retain appeals on interim Neighbourhood tree disputes family violence intervention orders, made Bail Amendment (Stage The LIV, with its Environmental Issues ex parte, where the resulting order has Two) Draft Bill 2017 Committee, prepared a submission to the the effect of prohibiting the respondent VLRC as part of its inquiry into improving The LIV, with the Criminal Law Executive from having contact with children or the way neighbourhood tree disputes Committee, wrote to Greens MP Sue being removed from their usual place of are handled in Victoria. Issues addressed Pennicuik. The LIV raised concerns in residence included common tree disputes, current relation to the reduction of the availability • the need for safeguards to ensure options for resolving neighbourhood tree of bail given the social and financial impact recordings for evidence-in-chief of family disputes, planning law and regulation on the community of an increasing prison violence offences are collected and used affecting trees on private land, and population of unsentenced prisoners, which fairly approaches to tree disputes in other poses a long-term risk to community safety • the importance of retaining the “proper jurisdictions. and is contrary to the ostensible objectives venue” test when determining the of bail reform. Specific concern was raised appropriate venue for matters before VCAT Planning and Environment List about the ambiguity surrounding provisions specialist family violence courts concerning “vulnerable adults” and the lack • online family violence intervention order The LIV, with its Planning and Local of clarity about the meaning of the term. applications should not displace the Government Committee, prepared a The LIV called for more rigour in the use of requirement for a witnessed declaration submission to VCAT president Justice Greg the term “surrounding circumstances” and of truth and, further, that it is important Garde regarding issues of concern relating the process to support decision makers to retain the use of the word “perjury” in to the administration of VCAT’s Planning in relation to determining matters such as relation to warnings about making a false and Environment List. The LIV’s submission impairment. statement addressed compulsory conferences, Court • own motion interim family violence books in the major cases list, adjournments, Justice Legislation Amendment (Family intervention orders in criminal proceedings and delay in receipt of initiating orders. n Violence and Other Matters Bill) 2018 should exclude uncontested remand The LIV with the Criminal Law Executive applications or proceedings where Committee responded to the Department insufficient evidence has been presented

LIV members offer their commitment, diversity and expertise to promote justice for all, advancing social and public welfare, education and public confidence in the legal profession. People in need of legal help are directed to the LIV’s Find Your Lawyer Referral Service – call 9607 9550, 9.30am-5pm, Monday to Friday.

72 LAW INSTITUTE JOURNAL MAY 2018 liv Council

COUNCIL UPDATE LIV GOVERNANCE PRESIDENT The LIV Council meets 12 times a year to Belinda Wilson consider matters of importance to members, PRESIDENT-ELECT the legal profession and the community. Stuart Webb VICE-PRESIDENT Sam Pandya At the 29 March meeting Council was given an update on the successful sale of the LIV EXECUTIVE MEMBER building at 470 Bourke Street. Zubair Mian Council was also given an update on the digital transition occurring at the LIV and a 5TH EXECUTIVE MEMBER snapshot of issues currently faced by the LIV without full digitisation. Future digitisation Simon Libbis plans for the organisation include a new customer relationship management system, a LIV COUNCIL MEMBERS new content management system, a redeveloped online presence for the LIJ and other Molina Asthana Tom May Gerry Bean Carrie O’Shea large projects. A new document management system and new online human resources Caroline Counsel Allan Swan support are already in place. Maryjane Crabtree Meghan Warren Kathy Wilson gave her introductory speech earlier this year. An edited version follows. Brendan Lacota Kathy Wilson Michael Lombard Tania Wolff Inaugural speech – Kathy Wilson John McPherson My interest in joining the Council is to contribute to the strategic direction of the LIV, LAW ASSOCIATION PRESIDENTS to increase support for practitioners, to influence legislative reform and to promote Ballarat & District Law Association the profession. Adrian Tinetti 5327 9504 Like other professional bodies, the LIV faces many challenges including a tighter fiscal Bendigo Law Association economy, technological advancements and a growing number of graduates. I am looking Juliana Smith 5444 1181 forward to working with the Council to address these challenges and to shape the future Eastern Suburbs Law Association Zubair Mian 9888 5885 legal landscape. Geelong Law Association Council’s functions include setting the strategic direction of the organisation. I hope Aaron Jolly 5222 2077 the experience I have gained from other board roles, my work on various LIV committees Gippsland Law Association and the practical experience I have gained as a lawyer will enable me to make a real Daniel Taylor 5152 6262 contribution to the work of the Council. Goulburn Valley Law Association A key function of a membership based organisation is to develop strategies to Charles Hart 5820 0200 Mornington Peninsula Lawyers Association provide support and assistance to members. For aspiring practitioners, the LIV has a Kelly Back 9670 5000 key role in identifying the types of jobs that will be available in the future, equipping North East Law Association young lawyers with the skills they need to perform those jobs and developing Amanda Toner 5752 1493 employment opportunities. North West Victoria Law Association For current practitioners, the LIV has an important role in supporting members Tristram Lock 5022 2622 to maintain and develop their technical and practical professional skills, encouraging North West Suburbs Lawyers’ Association practitioners to embrace technology, identifying and reporting trends that shape the David Gonzalez 9379 7306 Northern Suburbs Law Association future legal market, developing fiscal management tools and encouraging practitioners to Antonella Terranova 9432 0266 be conscious of the importance of developing strategies to ensure good mental health. Southern Solicitors Law Association For retiring practitioners, the LIV can help maintain their connection with the law and Celina Roth 9592 7744 the profession by encouraging ongoing contribution to the LIV’s work on specific projects Western District Law Association and connecting retiring lawyers with young practitioners through mentoring programs. Jessica Dowdy 5572 1600 The LIV plays a key role in initiating, informing and influencing legislative reform. It is Western Suburbs Law Association imperative that it continues to build and maintain strong relationships with government Danielle Leo 9334 6803 bodies, courts and tribunals to facilitate that work. I have for many years worked on Wimmera Law Association Anita Ward 5382 4455 legislative reform through numerous LIV committees, Victorian law reform projects, To find out more about LIV governance and representation legislative reviews and submissions to government. That work has enabled me to gain or to contact LIV Council members see www.liv.asn.au a deep understanding of the processes involved in informing and influencing legislative or phone the secretary to the Council on 9607 9513 or email [email protected]. reform. ABOUT THE LIV: The LIV represents almost 19,000 lawyers and people working in the I believe most practitioners have a strong commitment to protecting and promoting the law in Victoria, interstate and overseas. Our members offer their commitment, diversity rule of law and in serving our community. However, our efforts do not always resonate and expertise to help shape the laws of Victoria and to ensure a strong legal profession for the future. The LIV promotes justice for all advancing social and public welfare in with stakeholders and the broader community. We seem to have become a virtual the operation of the courts and legal system as well as advancing education and public confidence both in the legal profession and in the processes by which the law is made punching bag. Other professions have not experienced the criticism sometimes directed and administered. As the peak body for the Victorian legal profession, the LIV initiates at the legal profession. I have worked actively to promote the legal profession through programs to support the needs of a changing profession, promotes an active law reform advocacy agenda, responds publicly to issues affecting the profession and broader regular media activities and participating in government and community events and I plan community, delivers continuing legal education programs, and continues to provide expert services and resources to support our members. to continue that work. n

MAY 2018 LAW INSTITUTE JOURNAL 73 liv Associations

BALLARAT AND DISTRICT LAW ASSOCIATION

One of the oldest law associations in Victoria is still going strong. 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 AT THE LIV, 470 BOURKE STREET, MELBOURNE, UNLESS OTHERWISE STATED Founded on 22 March 1859, the same year as the LIV, the Ballarat With growing student membership and plans to strengthen and District Law Association (BDLA) has witnessed many changes engagement with the local community and law associations and CONFERENCES PROPERTY LAW STREAM Legal project management FRIDAY 8 JUNE 9AM–12.15PM to the legal profession. One thing that hasn’t changed is its support practitioners in Maryborough, Stawell, Ararat, Daylesford and Retail leasing for lawyers in the region. Bacchus Marsh, the future looks bright for the BDLA. n Senior Associate Skills: MONDAY 18 JUNE 9AM–12.15PM (3 CPD UNITS) “We are committed to advancing our members’ interests and Managing Team and Career (3 CPD UNITS) Adapting to organisational change For more information about the BDLA, as well as other law associations, see www.liv.asn.au/ THURSDAY 31 MAY supporting young practitioners in our region,” BDLA president THURSDAY 13 SEPTEMBER 1–4.15PM Membership/Law-Associations. (6 CPD UNITS) Subdivisions Adrian Tinetti says. “Ballarat is one of Australia’s fastest growing THURSDAY 9 AUGUST 9AM–12.15PM (3 CPD UNITS) regional centres and its housing affordability and proximity to (3 CPD UNITS) Leadership and influence Melbourne makes it an attractive region for young lawyers to live WORKSHOPS & SEMINARS Conveyancing FRIDAY 9 NOVEMBER 9AM–12.15PM and work in.” Bookkeepers Trust Accounting Workshop THURSDAY 18 OCTOBER 1–4.15PM (3 CPD UNITS) Assisting young and aspiring lawyers is a key focus of the BDLA, MONDAY 21 MAY 9AM–12.15PM (3 CPD UNITS) with law students making up almost one third of its 169 members. (3 CPD UNITS) LIV EDUCATION COURSES “I was actually surprised by this number of students, given that Key issues with owners corporations External Examiners Course FRIDAY 8 MARCH 2019 9AM–12.15PM we don’t have any law schools in our region,” Mr Tinetti says. He LIV Practice Management Course THURSDAY 7 JUNE 9AM–5PM (3 CPD UNITS) attributes the thriving student membership to the BDLA’s proactive 9,10 AND 11 MAY 9AM–5PM (3 CPD UNITS) young lawyers group, which organises regular community and (21 CPD UNITS) networking events and CPD presentations. SUCCESSION LAW STREAM ACADEMY SERIES LIV Practice Management Course “We welcome law students and trainees getting involved in these Estate administration 20, 21 AND 22 JUNE 9AM–5PM activities where possible.” www.liv.asn.au/AcademySeries THURSDAY 24 MAY 1–4.15PM (21 CPD UNITS) (3 CPD UNITS) The BDLA also plays an important role in keeping local Book the stream and save 20% practitioners and the community informed about legal news. “This Analysing complex scenarios in wills and LEGAL RESEARCH TRAINING year we are collaborating with local organisations to deliver quarterly BUSINESS LAW STREAM estates community legal education sessions. This is funded by an LIV grant FRIDAY 1 JUNE 9AM–12.15PM Making the Most of Free Resources to better inform the community and address criticism of the legal Franchising (3 CPD UNITS) WEDNESDAY 16 MAY 2–4PM profession and law enforcement. Our coming sessions will focus on MONDAY 28 MAY 9AM–12.15PM (2 CPD UNITS) (3 CPD UNITS) Estate planning elder abuse and migration law” Mr Tinetti says. FRIDAY 24 AUGUST 1–4.15PM Effective Legislation Research Later this year the BDLA will host receptions for visiting Supreme Business structuring The BDLA is keeping practioners informed. (3 CPD UNITS) THURSDAY 7 JUNE 9.30AM–12PM FRIDAY 20 JULY 9AM–12.15PM Court and County Court judges, CPD sessions and networking (2.5 CPD UNITS) events. (3 CPD UNITS) Litigation FRIDAY 23 NOVEMBER 1–4.15PM Avoiding Common Research Mistakes Buying and selling a business (3 CPD UNITS) TUESDAY 12 JUNE 1–2PM FRIDAY 12 OCTOBER 1–4.15PM (1 CPD UNIT) (3 CPD UNITS) DRAFTING SKILLS STREAM Current issues in insolvency Drafting for settlement FRIDAY 1 MARCH 2019 1–4.15PM NETWORKING & SOCIAL EVENTS FRIDAY 8 JUNE 1–4.15PM (3 CPD UNITS) (3 CPD UNITS) 14th Victorian Legal Awards FRIDAY 18 MAY 7PM–LATE Drafting with accuracy and clarity FAMILY LAW STREAM PENINSULA, HARBOUR ESPLANADE, DOCKLANDS THURSDAY 16 AUGUST 1–4.15PM Financial agreements Professional research services that save you time and money (3 CPD UNITS) Women in Leadership Conference & Dame FRIDAY 25 MAY 9AM–12.15PM Roma Luncheon (3 CPD UNITS) Drafting evidence WEDNESDAY 23 MAY 8.30AM–2.30PM WEDNESDAY 17 OCTOBER 1–4.15PM Analysing complex scenarios in family law CROWN PALLADIUM (3 CPD UNITS) THURSDAY 14 JUNE 9AM–12.15PM LIV Trivia Night (3 CPD UNITS) Advice writing THURSDAY 21 MAY 7PM–9.30PM THURSDAY 28 FEBRUARY 2019 9AM–12.15PM Property CQ MELBOURNE (3 CPD UNITS) RESEARCH RESOURCES EXPERTISE FRIDAY 17 AUGUST 9AM–12.15PM (3 CPD UNITS) Timely, accurate and concise research by Extensive collection of electronic and Tailored research workshops for individuals LEGAL BUSINESS SKILLS STREAM Parenting experienced legal Librarians hardcopy knowledge at your fingertips or groups to suit unique goals and needs Organisational dynamics FRIDAY 16 NOVEMBER 1–4.15PM MONDAY 28 MAY 1–4.15PM (3 CPD UNITS) For further information visit www.liv.asn.au/Library, call 03 9607 9360 or email [email protected] (3 CPD UNITS)

74 LAW INSTITUTE JOURNAL MAY 2018 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 AT THE LIV, 470 BOURKE STREET, MELBOURNE, UNLESS OTHERWISE STATED

CONFERENCES PROPERTY LAW STREAM Legal project management FRIDAY 8 JUNE 9AM–12.15PM Retail leasing Senior Associate Skills: MONDAY 18 JUNE 9AM–12.15PM (3 CPD UNITS) Managing Team and Career (3 CPD UNITS) Adapting to organisational change THURSDAY 31 MAY THURSDAY 13 SEPTEMBER 1–4.15PM (6 CPD UNITS) Subdivisions THURSDAY 9 AUGUST 9AM–12.15PM (3 CPD UNITS) (3 CPD UNITS) WORKSHOPS & SEMINARS Leadership and influence Conveyancing FRIDAY 9 NOVEMBER 9AM–12.15PM Bookkeepers Trust Accounting Workshop THURSDAY 18 OCTOBER 1–4.15PM (3 CPD UNITS) MONDAY 21 MAY 9AM–12.15PM (3 CPD UNITS) (3 CPD UNITS) Key issues with owners corporations LIV EDUCATION COURSES External Examiners Course FRIDAY 8 MARCH 2019 9AM–12.15PM LIV Practice Management Course THURSDAY 7 JUNE 9AM–5PM (3 CPD UNITS) 9,10 AND 11 MAY 9AM–5PM (3 CPD UNITS) (21 CPD UNITS) SUCCESSION LAW STREAM ACADEMY SERIES LIV Practice Management Course Estate administration 20, 21 AND 22 JUNE 9AM–5PM www.liv.asn.au/AcademySeries THURSDAY 24 MAY 1–4.15PM (21 CPD UNITS) (3 CPD UNITS) Book the stream and save 20% Analysing complex scenarios in wills and LEGAL RESEARCH TRAINING BUSINESS LAW STREAM estates FRIDAY 1 JUNE 9AM–12.15PM Making the Most of Free Resources Franchising (3 CPD UNITS) WEDNESDAY 16 MAY 2–4PM MONDAY 28 MAY 9AM–12.15PM (2 CPD UNITS) (3 CPD UNITS) Estate planning FRIDAY 24 AUGUST 1–4.15PM Effective Legislation Research Business structuring The BDLA is keeping practioners informed. (3 CPD UNITS) THURSDAY 7 JUNE 9.30AM–12PM FRIDAY 20 JULY 9AM–12.15PM (2.5 CPD UNITS) (3 CPD UNITS) Litigation FRIDAY 23 NOVEMBER 1–4.15PM Avoiding Common Research Mistakes Buying and selling a business (3 CPD UNITS) TUESDAY 12 JUNE 1–2PM FRIDAY 12 OCTOBER 1–4.15PM (1 CPD UNIT) (3 CPD UNITS) DRAFTING SKILLS STREAM Current issues in insolvency Drafting for settlement FRIDAY 1 MARCH 2019 1–4.15PM NETWORKING & SOCIAL EVENTS FRIDAY 8 JUNE 1–4.15PM (3 CPD UNITS) (3 CPD UNITS) 14th Victorian Legal Awards FRIDAY 18 MAY 7PM–LATE Drafting with accuracy and clarity FAMILY LAW STREAM PENINSULA, HARBOUR ESPLANADE, DOCKLANDS THURSDAY 16 AUGUST 1–4.15PM Financial agreements (3 CPD UNITS) Women in Leadership Conference & Dame FRIDAY 25 MAY 9AM–12.15PM Roma Luncheon (3 CPD UNITS) Drafting evidence WEDNESDAY 23 MAY 8.30AM–2.30PM WEDNESDAY 17 OCTOBER 1–4.15PM Analysing complex scenarios in family law CROWN PALLADIUM (3 CPD UNITS) THURSDAY 14 JUNE 9AM–12.15PM LIV Trivia Night (3 CPD UNITS) Advice writing THURSDAY 21 MAY 7PM–9.30PM THURSDAY 28 FEBRUARY 2019 9AM–12.15PM Property CQ MELBOURNE (3 CPD UNITS) FRIDAY 17 AUGUST 9AM–12.15PM (3 CPD UNITS) LEGAL BUSINESS SKILLS STREAM Parenting Organisational dynamics FRIDAY 16 NOVEMBER 1–4.15PM MONDAY 28 MAY 1–4.15PM (3 CPD UNITS) (3 CPD UNITS) classifieds

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REQUESTS FOR PROBONO SERVICES ADVERSE POSSESSION ADVERSE POSSESSION GENERAL LAW LAND TITLE BOUNDARY AMENDMENTS Wills and Estates TITLE BOUNDARY EASEMENTS & ROADS Eastern Health Foundation is dedicated to raising funds for Eastern Health to facilitate its AMENDMENT research, innovation and service goals. PETER SPEAKMAN & CO LAWYERS The Foundation is currently seeking GENERAL (“OLD”) expressions of interest from accredited Suite 2, 1396 Malvern Rd, Glen Iris 3146 Victorian wills and estates lawyers to provide LAW LAND Tel: 9822 8611 pro bono estate planning advice to its donors. Email: [email protected]

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FRANCE AND INTERNATIONAL Michael Bula Solicitors International Lawyers International are pleased to accept referrals relating to France as well as the following regions Building law Europe, Asia, the Caribbean, the South Pacific, Referral work accepted, advice given in: the Indian Ocean, the Americas & Africa ❏ Building & COnSTRuCTiOn lAW - through a Network of Legal agents - ✮✮✮ ❏ Building diSpuTeS Notary Public - all languages and countries ❏ ✮✮✮ VCAT - DOMESTIC BUILDINg LIST NAATI legal translation to and from French ❏ COpyRIghT “Princes Hill Gallery” 213 Canning Street WAinWRighT RyAn eid lAWyeRS Carlton 3053 Melbourne Victoria Tel: (03) 9009 5800 Fax: (03) 9009 5899 Tel: (03) 9347 8333 Fax: (03) 9347 1741 level 4, 530 lonsdale St, Melbourne ViC 3000 E-mail: [email protected] Also at Mitcham - by appointment only Internet: www.mbsols.com.au email: [email protected] MBS Website: www.wrelawyers.com.au

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80 LAW INSTITUTE JOURNAL MAY 2018 classifieds

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Studio Legale Panarese (SLP) can BELINDA ROSE GOODE late of 22 Suffolk Road, offer legal advice on: Surrey Hills in the state of Victoria who died • SUCCESSION and probate law on 14 January 2018. Would anyone holding • Corporate and COMMERCIAL or knowing the whereabouts of a Will of the matters and disputes abovenamed deceased dated on or about • PROPERTY and estate matters in 18 February 1974 and prepared by Norris, Italy Norris and Barry Jones, please contact Lanyon • MATRIMONIAL disputes between Partners Legal of Level 3, 3 Prospect Hill Road, Australian Italians Camberwell 3124, telephone: 03 9861 6133, email: [email protected]. Contact: Alfio Macolino O’Loughlins Lawyers T: (08) 8111 4000 GEORGE CARYDIAS Would any practitioner Fabio Panarese, SLP holding a will and codicil for the abovenamed, E: [email protected] formerly of 124 Blair Street, Broadmeadows, Victoria, Australia who died on 29 January 2018 in Auckland, New Zealand, aged 87. Please contact Pearl Butler, Gellert Ivanson, INTERESTED IN ADVERTISING IN THE LAW INSTITUTE JOURNAL? PO Box 25239, St Heliers, Auckland 1740, New Ph: 03 9607 9496 Email: [email protected] Zealand, Tel: (09) 575-2330 email: pearl.butler@ gellertivanson.co.nz

MAY 2018 LAW INSTITUTE JOURNAL 81 classifieds

LETTERS OF THE LAW NO. 204

SHAYNE THOMAS BALLINGER, born on 17 1 2 3 4 5 6 April 1959, late of 71 Boyes Road, Whitemark, Flinders Island, Tasmania 7255, died on 1 7 September 2017. Also lived in Warrnambool, Hamilton and Horsham area. Would anyone holding or knowing of the of the Will of the 8 7 9 deceased, please contact Kate Swann (wife) , email: [email protected] 10

BAILEY, MARJORIE JOAN Deceased, Late of Boyne Russell House, 184-186 Victoria Street, 11 12 13 Brunswick, Victoria who died on 30 January

2018. Would anyone holding or knowing the 14 whereabouts of any Will of the deceased please contact State Trustees Limited A.C.N. 064 15 16 593 148, 1 McNab Avenue, Footscray VIC 3011 (Ref:5269169/436/WILLJ). Telephone 03 9667 8532 17 18 19 20 Email: [email protected]

SEDDON, ALAN deceased, late of Cyril 21 Jewell House, 68 Hassett Drive, Keilor East 3033, Victoria and previously of 37 Myross 23 Avenue, Ascot Vale 3032, Victoria who died 22 on 26 August, 2017. Would anyone holding, or knowing the whereabouts of, any Will of 24 the deceased please contact Peter Donnellan,

Lawyer & Consultant of 97 Ormond Street, 25 Kensington 3031, Victoria. Phone: 03 9372 3188. Email: [email protected] Solution next edition Compiled by Stroz

5 Ron gets rapid kick around waterfall (8) ACROSS 6 Nurseryman involving Adam and Eve 1 Prescott a fighting watchman (9) (8) 7 First man for a mare (4) 12 Pilot to start half-hearted (8) 8 Spokes involved eradication not at 13 Concern for man with pragmatism (8) once (5) 16 RE Leech (6) 9 Cassius Clay was the fourth caliph of 18 Cooker could have anger (5) Islam (3) 19 Best barbecue (5) 10 Out of gear - how natural (4) 20 Composition he met somehow (5) 11 Whereon could become limbo (7) 14 Enticing ruling around (6) 15 Test for a colouring material (6) Solution to Letters of the Law No. 203 17 Breather drink used as a station for transport (7) 21 Mark to underwrite (4) 22 One member troublemaker (3) 23 Saltpetre an insect again (5) 24 Understanding the podium (4) 25 Tap dancing involving a telegraph cipher! (5,4)

DOWN 1 Rock singer was temptress (5) 2 Close town centre and invest (5) 3 Distort a duplicate egghead (5) 4 Go made from talk over not OK (6)

82 LAW INSTITUTE JOURNAL MAY 2018 living law BEYOND THE LAW | FOOD/WINE/COFFEE | WITH ALL DUE RESPECT | WELLBEING | INSIDE STORIES

THE POWER OF SENTENCES Writing stories is a therapeutic outlet from the pressures of court for Judge Mark Dean. By Carolyn Ford

There is a distinct sense of place to Mark E Dean’s autobiographical stories in Meanjin. His first published pieceWalking to Gernika with Picasso’s Guernica, appearing in summer 2017, told of his walk on the Camino Norte in Spain. His second story A Tale of Two Terriers stretches from Riversdale Road, Hawthorn to Far North Queensland and is a distilled tale about the random hand of fate as the (first) family dog and an aircraft passenger found out. In the third story The Coker Stoker, to be published in the September edition of the literary quarterly, the writer returns to his adolescence in 1970s Sorrento, a gentler time when HD panel vans were lime green, back beach waves were perfect and surfboards cost $15. The trip home in the last story came via the County Court, where he presides as a judge. An Indigenous man appeared before him and he quickly realised he knew of him from his adolescence. The man’s family had lived in Sorrento for at least eight generations. They had fished the bay, he said. The judge told the man the ashes of his father, mother and sister were in that bay, before leaving the court, moved. The judge removed himself from the case, but not before it got him thinking about the power of home and place, and eventually exploring it in a piece of creative writing.

Inspiring stories: County Court Judge Mark Dean walking the Camino Norte in Spain MAY 2018 LAW INSTITUTE JOURNAL 83 living law Beyond the law

Thirteen when he moved to the Mornington Peninsula enclave, Judge Dean writes of his war-damaged father against a backdrop of surfing and lifesaving. A lieutenant in the Australian Army, Dean snr was captured by the Japanese after Singapore fell in 1942. He spent two years in solitary confinement in notorious Outram Road Prison, lucky not to be executed, and came home psychologically scarred. Singapore Samurai is his war memoir. His mother “Bunny”, who grew up in the theatre, gave her teenage son fiction to read – novels by Patrick White, George Johnston, George Orwell and the like. “My mother gave me Clean Straw for Nothing when I was 15 and I loved it so much. The way Johnston wrote about Melbourne interested me. Still does,” Judge Dean says. “Both my parents read a lot, they were big readers. They were very influential in that way. When my father was dying in care, he read three Judge Dean says creative writing has given his life an extra dimension or four books a week. I got them for him from the library. The day he died in 2006 he had just finishedBurden of Proof by Scott Turow . . . I got for me. It’s a negative perspective that can by Francisco Goya, which hangs in the him into crime.” develop which you have to be careful of. Museo del Prado, Madrid. Now, four decades later, he is creating his own “I think the adversarial system produces In the 1814 oil painting, the Spanish body of work. a high level of anxiety for everybody just by painter commemorates Spanish resistance After walking the Camino Frances on a its very nature. It’s inevitable. I remember to Napoleon’s armies. It depicts French sabbatical in 2016, Judge Dean enrolled in two it well. It wore me out back then, it’s a soldiers executing a Spanish dissident, writing courses – fiction and creative non-fiction tough occupation. There’s a lot of stress and epitomises the horrors of war. In – at RMIT where he was “encouraged to find my that goes with it. The cases take their toll. considering Goya’s canvas, Judge Dean own voice and publish my stories.” Some cases stay with you, those where plans to write about mercy in sentencing. He aims to pen a novel, although acknowledges victims suffer enormously. “Mercy is an important consideration it’s hard to pin down the muse while working “Outside scrutiny that public officers get in sentencing. It walks hand in hand with in the law, absorbing and writing a great deal of now will heighten the need for resilience. other sentencing principles. technical legal material. “Judges’ mental health is an important “Obviously, the law and order concerns “It’s hard for one’s creative imagination to be topic. We get a lot of support in this Court, of the society we live in are taken seriously stimulated. There is a lot of material coming in including time out, and have a very helpful by judges. that you are exposed to on a day to day basis. It is resilience program. I’ve been encouraged “[But] it’s important for us all to step a challenging and exhausting job. to do creative pursuits.” back from the heated debate over “I write a lot as a judge, thousands of words Judge Dean says creative writing has sentencing and calmly and rationally look a week. So sometimes the creativity is there, given his life an extra dimension. at what we are doing from an empathetic sometimes it’s not. “I’ve got three or four stories on the perspective as well as a punitive one, I “There’s a lot to write about Melbourne, of go at any one time. Experiences are like think that is really important. today and the 1960s. It was like a big country blocks you move around. I really enjoy “If there’s anything I try to retain as a town back then. I have vivid memories and I’m writing. I spent last Saturday, the whole judge, it’s that. Empathy is an important interested in that early mythology.” day, writing. It’s something that occurs part of what we do. It’s deprivation, Creative writing – by hand on weekends – is naturally, and sometimes unexpectedly. dislocation and disadvantage that most incidentally therapeutic for the former criminal I wrote the dog story in a café one offenders have experienced. There has silk who was appointed to the bench in 2010 after afternoon.” got to be room for empathy and mercy in practising at the Victorian Bar for 27 years. Next month, Judge Dean completes relation to these people’s lives. “Very much so. I think it helps let go of things. his third and final camino, the Camino “I accept that people need to be Being able to write about things that are not Primitivo, (bringing total distance to 1500 punished, especially for violent crimes directly connected with what you do is a good kms, total shoe leather to three pairs). As . . . but a lot of people offend for other experience for me, and you let go of some of the he did with the Norte and Guernica by reasons, and you can’t lose sight of that. pressures of the job. Pablo Picasso, he plans to write about it We need to be public about that, even if “The cumulative effect of being exposed to through the lens of The Third of May 1808 it’s going to provoke criticism.” n other people’s trauma catches up with you, it has

84 LAW INSTITUTE JOURNAL MAY 2018 living law Food/Wine/Coffee

perfect blend of salty, t t sweet and umami FOOD 15.5 flavours. HOW WE RATE IT We chose the COFFEE Fo Guang Yuan Art Gallery 18 to 20: Would 20 vegetarian teriyaki tofu 141 Queen Street take my best GAP café from the daily specials client here 477 King Street After a boozy feast at Palermo (April LIJ) led my ($13). A box arrives 15 to 17: A safe editor to order greater austerity this month, the containing nuggets bet for client Ex-racing greyhounds have it tough, vegan Buddhist teahouse at FGY Art Gallery of tofu drizzled with entertainment so we were very excited to learn was an obvious choice. The Gallery is run by a mild teriyaki sauce 12 to 14: Best about Greyhound Racing Victoria’s the Taiwanese Fo Guang Shan monastic order. garnished with salad and for a lunch with new greyhound-friendly cafe. The colleagues Marble steps at the entrance lead into a serene accompanied by braised Greyhound Adoption Program (GAP) <12: Life’s building that contains the teahouse, together with cabbage, steamed rice café is run specifically to educate too short, try exhibition and meditation rooms. and, strangely, apple somewhere else people about greyhound adoption This Friday at 1pm the teahouse is chaotically wedges. The dish is and help ex-racing greyhounds find busy and less serene than usual. Luckily, I have pleasant enough but not homes. booked a table in the front room, which houses up to the high standard of the appetizers. As you might expect, all dogs the library, and offers atmosphere that is more Our final food selection is combination hor fun are welcome at GAP café, with a soothing than in the rooms at the back. ($14). This elegantly presented bowl features tasty dog-friendly inside area and outside The teahouse offers vegan versions of famous morsels of mock prawns, scallop and abalone courtyard complete with doggy beds dishes from around south-east Asia. Diners can crafted from soy and seaweed proteins, tossed and water bowls. As well as serving choose from an expansive menu divided into with braised choi sum, wood-ear fungus, and up delicious, ethically minded Campos appetisers, bento box daily specials, and three slippery rice noodles. The mixture is bathed in a coffee and a range of breakfast pages of noodle dishes. mild gravy and has a smoky, wok-kissed flavour. and lunch options, this café also We start with three excellent appetizers ($8.50 The signature kumquat tea ($7 pot) is serves dog-friendly doughnuts and each). Salt and pepper crispy tofu are one-inch recommended but is today sold out. A wide puppyccinos for four-legged visitors. cubes of the silken variety coated with a deep- selection of oolong teas are otherwise available. Just down the road from fried batter and enlivened with a deliciously salty I have been coming to FGY for a couple of years Greyhound Racing Victoria’s replica of shrimp floss that I am later told is made now and have made it my mission to drag as headquarters, on any given day you from mushroom. Crispy taro and sweet potato many sceptical carnivores through the front door can meet greyhounds who are ready rolls contain a gently sweetened filling encased as possible. Most of them have greatly enjoyed for adoption (more details at www. by a bird’s nest of taro pastry. Finally, there are the experience. If you and your guest enjoy gap.grv.org.au). Highly recommended steamed buckwheat vegetable barbecue pork Asian flavours and have even a small sense of for lovers of dogs and good coffee, buns, in which pillowy buckwheat pastry is filled adventure, FGY Gallery is a fine choice for lunch. n GAP café is sure to set tongues and with a superb soy-mushroom filling that is a tails wagging. SS Shaun Ginsbourg is a hungry barrister. t By Jeni Port Chalmers Wines Dott. St Leonards The Doctor WINE Heathcote Schioppettino Durif 2015 2017 RRP $28 Hahndorf Hill Adelaide Hills RRP $29 (500mls) St Leonards’ ode to Dr Durif, ‘Gru’ Gruner Veltliner 2017 Sitting on the fringes, the man who blended shiraz RRP $29 ready for its moment with peloursin to create the Peppery spice and nashi now that the alternative black durif grape, offers a pear – often with some citrus grape movement is upon us, sits different interpretation of the grape to the overtones thrown in – are schioppettino, a grape originally hailing usual. Durif tannins, normally so dense as the identifying hallmarks of from northeast Italy. Will it succeed? to make many a wine drinker shy away, the gruner veltliner grape of Austria. Get It certainly has a lot going for it from are managed here beautifully, becoming used to the taste because the little grape the fabulous iridescent garnet colour a backdrop. The real star is the fruit: black will go far in its new home of Australia. to the Beaujolais noveau-style heady and blueberry compote, plums, chocolate, Hahndorf Hill was an early adopter, its style aromatics and macerated cherry cinnamon. “We think durif should be textural, medium-bodied with European flavour. Savoury to boot. Enjoy with pretty,” say the makers. Here’s proof. understatedness. Match with ginger beef cheese and crackers. Match with American-style brisket. stir-fry. Stockists: www.magnumandqueenswine. Stockists: Dan Murphy’s stores; www. Stockists: The Vin Wine & Spirits com; Prince Wine Store, South Melbourne; stleonardswine.com.au. n Seddon; Hippo Bar & Bottle www.chalmers.com.au. Collingwood, www.hahndorfhillwinery. Jeni Port is a Melbourne wine writer, author and judge. com.au.

MAY 2018 LAW INSTITUTE JOURNAL 85 living law Health and wellbeing

GIVE ME A BREAK

BE STRATEGIC ABOUT ANNUAL LEAVE AND great way to extend your break without eating BOOK SOME TIME OFF OVER THE WINTER into too much annual leave. MONTHS FOR MAXIMUM BENEFIT. Importantly, never feel guilty for taking a holiday – remember that the National Employment Standards As the cooler weather arrives and work ramps up, affords employees a minimum of four weeks annual we’re reminded of the importance of taking annual leave accumulated on an annual basis. leave. Stress manifests itself differently in everyone It can also be tempting to work while you’re on and can make us more irritable and anxious. Particularly holiday and sometimes it’s important to check emails as winter sets in and our flu shots don't seem to but set up systems for other colleagues to help out be working, if you’re unable to manage stress you while you’re away. may soon find yourself on the couch with a splitting Use annual leave as a strategic health and wellbeing headache and aching sinus. measure – to spend time with your children during Ask any lawyer how they are and they will respond school holidays or to embark on a goal that you have with “busy”. It's a serious problem as a professional to been working towards, such as running in a race or fall into a trap of being too busy to take a break. hiking a new track. A strategically timed break can make us more Don’t let stress attack your health to the point you productive and successful at work. In fact, many need personal leave, not annual leave. So get out your employers recommend that employees take a calendars and carve out some annual leave – you will minimum of five days annual leave at any one time. be a better lawyer for it. The weekend is a great time to recharge, but is over For daily motivation, follow The Balanced quickly and with significant life admin in the way, such Lawyer on Instagram. n as cleaning the house, social events or driving the children to sports and birthday parties, it often doesn’t Phoebe Blank is a workplace, health and safety lawyer at Kennedys and Claire Walczak is a family lawyer at Lander & Rogers. feel like a break at all. In fact, how many times do you arrive at work on a Monday morning and colleagues remark that they need a "holiday" after exhausting, busy weekends. From relatively low cost activities like camping at Lake Eildon to a more expensive getaway such as a stay in Daylesford, there is no better way to recharge than to remove yourself completely from work and home. Taking a break over what feels like the never-ending Melbourne winter to escape to an exotic beach destination either interstate or overseas does wonders for your mental health. The simple act of booking a holiday and having something to look forward to can make us feel better and get us through a hard time at work. Taking additional leave over public holidays is a ADOBE STOCK

86 LAW INSTITUTE JOURNAL MAY 2018 living law With all due respect

BEWARE THE SPIN CYCLE WE USED TO CALL AN ALTERNATIVE FACT A LIE. “Post-truth” has an equally At the climax of the movie A Few Good As with most ailments shady companion in the term Men, Jack Nicholson’s character angrily afflicting the world today DO YOU EVER COME “alternative facts”. We used to bellows “You can’t handle the truth,” as social media is being ACROSS AMUSING call an alternative fact a lie but he is being cross examined in the military blamed for the emergence INCIDENTS RELATED hey that’s just old fashioned. courtroom drama. of a post-truth society. TO THE LAW? If opinions are more According to some experts we now live Once people who ignored Then why not contribute important than facts then it is in a “post-truth” world where many people facts and invented their own to WADR? going to be difficult for lawyers and organisations simply can’t handle the truth would be dismissed Send your submission to to do their job. How do you [email protected]. truth and believe it is acceptable to invent as crackpots and conspiracy represent a client who sticks to your own truth based on personal belief theorists but now they their version of events even if and emotion. can find an army of mates all the facts contradict them? It’s easiest to recognise in politics where through the internet. American politician and diplomat Pat there is no stuff up, outrageous waste of Nineteenth century English preacher Moynihan said decades ago that “everyone public money or misdeed that cannot be Charles Spurgeon famously said: “A lie can is entitled to his own opinion but not his “spun” into a new version of the truth. If it travel half way round the world while truth is own facts” and it was generally accepted as walks like a duck and quacks like a duck, it’s putting its boots on”. good advice. obviously an elephant. With social media a lie can reach But now White House adviser Kellyanne Why is this rather troubling development millions of eager recipients while truth is Conway can use the term “alternative important for lawyers? If truth is no longer sound asleep and contemplating a lazy facts” with a straight face as an explanation truth where does that leave a profession start to the day. for the media being given wildly inflated where outcomes, both in civil and criminal There is a history to the development attendance numbers at President Trump’s cases, often depend on establishing what of the concept that it is impossible to lie inauguration. happened and who said what? if you can make up your own version of In the post truth world if you are Imagine a witness in a trial being asked, the truth. In the Spycatcher trial British presented with the truth simply scream with Bible in hand, “do you swear to tell the cabinet secretary Sir Robert Armstrong was “fake news” on Twitter and there are plenty whole truth and nothing but the truth or if cross examined on why he wrote a letter of people who will believe you. you feel like it your made up truth?” containing a lie and famously replied: “It was It must be hard to run a country when being economical with the truth”. your pants are constantly catching fire. n ADOBE STOCK

MAY 2018 LAW INSTITUTE JOURNAL 87 living law Inside stories

CELEBRATING A CENTURY 100-YEAR-OLD FRANK TOOHEY JOINED HIS FIRST LAW FIRM, RUN BY HIS FATHER, IN 1940. Frank Toohey and his family HE RETIRED IN 1998 AGED 80. BY JOHN TOOHEY

Frank Toohey matriculated from De La Salle College, Malvern, is CEO of the Legal Practitioners Liability Committee and Elizabeth (admitted in 1933, aged 15 years. His results earned him a junior 1988) is assistant director, Consular Policy Section, at the Department of government scholarship (1934) and then a senior government Foreign Affairs and Trade in Canberra. Frank and Norah have 22 grandchildren scholarship (1935) enabling him to complete two further years and expect their first great grandchild in May this year. of matriculation – at Xavier College. Frank was a great servant to the St Vincent de Paul Society in Victoria. His In 1936, when Frank was 18, he won another scholarship to go contribution began when he regularly drove his father to local conference to university. He enrolled in a Bachelor of Law (Honours) degree at meetings (studying or reading in the car until the meeting ended), continued the University of Melbourne, won the Jessie Leggatt Scholarship with conference membership and, from 1967, was extended significantly by in Roman law in 1938, gained second class honours in most of him providing pro bono legal services to the Victorian State Council and to his subjects and was runner-up for the Supreme Court Prize in his important works of the Society including Ozanam House and an increasing final year. He graduated on 21 December 1939 – the same day as number of aged care facilities and disability services. 33 others. The dean of the law faculty later provided a reference He was also a generous contributor to the Institute of the De La Salle which described Frank to be “a very industrious man whose mind Brothers. In 1976 the letter of commendation which conferred affiliation to the is exceedingly accurate, who is well read and concise in expression Institute on him records “his generous and dedicated service over a long period as well as pleasantly spoken, courteous and who has a very of years to the Brothers particularly at St Bede’s College, Mentone and De La modest view of himself and his attainments”. Salle College, Malvern”. In 1940, Frank joined the small city law firm of Gavan Duffy & Frank has maintained his support for the Demons through the VFL, AFL, King run by his father Patrick Toohey and uncle Thomas Toohey. AFLW and now AFLX. He lays claim to likely being the only person still living He completed articles that year and, in 1941, was admitted to who was at the MCG in 1926 to see Melbourne defeat Collingwood. He practice alongside Frank Druce, Tom Molomby, Lorraine Holt, Alec remembers his uncle Arthur “Percy” Tulloh who played with Melbourne during Janover and Jack Crawcour, all of whom gathered at the LIV annual the 1920s taking him into the rooms at half time where he witnessed the dinner on 29 June 1991 to celebrate 50 years in practice. Apart Melbourne players getting their rub downs and re-applying goanna oil. from time in Navy service during WWll (Townsville and Papua Frank’s faith is his hallmark and he has generously practised his Christian New Guinea) Frank stayed at the firm. His father died in 1946 and belief as a son, brother, sibling, husband, father, grandfather, friend, mentor, his uncle in 1962. solicitor and benefactor. Thereafter, Frank conducted the firm until his retirement in He never imagined he’d have eight children, let alone live so long. Frank 1998 at the age of 80 years. Although his clients included many moves into his 101st year having lived through the introduction of cars, trustee companies, Frank’s practice focused keenly on the needs television, cinema, refrigerators, air-conditioning, penicillin, domestic of private individuals and families. By word of mouth referrals use solar power, computers, air travel, space travel, the internet, mobile he attracted hundreds of loyal clients from the Italian, Greek and telephones, social media, open heart surgery, IVF, same sex marriage, the German communities. He was as an exceptional equity lawyer United Nations, the opening of the Sydney Harbour Bridge, the abdication who, in conjunction with the Office of the Public Trustee (now of King Edward VIII, the coronation of Queen Elizabeth II, two world Wars, State Trustees), championed the needs of protected persons. the split and reunification of Germany, the rise and collapse of the USSR, On 17 April 1952, Frank, in what he’s often declared as the end of apartheid, the emergence of the European Union, the birth of “the best decision I ever made”, married Norah Turner at St the Peoples Republic of China, independence for India and more nations Joseph’s Church Malvern thus commencing an extraordinary than can be listed here, the rise and deregistration of the DLP, the Australian partnership which now extends into its 65th year (with both still Democrats, the Australia Party, the Communist Party of Australia, 24 prime living in their family home of the past 60 years) and which has ministers, 18 US presidents and nine popes, plus the birth and death of such seen them blessed with eight children, four of whom followed notables as Nelson Mandela, Martin Luther King Junior, Margaret Thatcher, Frank into law. Rev Billy Graham, John Lennon, Freddie Mercury and Harry Beitzel. Are you Mary (admitted 1978) is now ACT Parliamentary Counsel in exhausted yet? n Canberra, John (admitted 1984) is a consultant wills and estates Lawyer John Toohey is Frank Toohey’s son. specialist with Pearce Webster Dugdales, Justin (admitted 1987)

889 LAW INSTITUTE JOURNAL MAY 2018

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