December 2007January 2008

VOL. 29. NO.11

www.lawsocietysa.asn.au

Seasons Greetings from the Law Society

Not guilty.

160 West Terrace, Adelaide Ph: 8238 5400, A/H Paul 0417 838 417 lexusofadelaide.com.au

of Adelaide

The world’s first luxury hybrid SUV now with Carbon Zero.

LVD

20

09

Three Months at UNHCR Geneva

By Prabha Nandagopal, Phillips Fox

8

ustralia is the poorer

with the passing of

asbestos campaigner Bernie

Banton. Mr Banton, who died

at his home on November 27,

will be remembered as the

man who led and won

the drawn-out battle for

compensation from the

building products giant James

Hardie. At his State Funeral,

his widow Karen said that he

wanted to be remembered as

"Bernie Banton - fi ghter for

justice for all."

Banton had worked for the James Hardie company from 1968 to 1974. In 1999, he was however diagnosed with asbestosis. When his personal claim was settled in 2000 he received $800,000, but continued campaigning on behalf of others who’d also contracted the disease.

Th e motivation then became

acute when his brother Ted -

who’d worked at the same plant

- died of the asbestos-related

illness, mesothelioma. Th ough

facing a continual personal

fi ght with his own illness, he

proved a tireless public voice

fi ghting for the rights of all

victims of asbestos-related

diseases.

Th roughout it all, he remained

determined that James

Hardie should not get away

with what he described as

the worst corporate scandal

in Australia’s history.” James

Hardie produced a product

that they knew killed people

for 53 years,” he once said.

His major battle was waged

this year, when he won a

second personal compensation

claim from a James Hardie subsidiary, Amaca. He was well known to millions of Australians for his dogged determination to see justice done for the victims of asbestosis. Th at justice came in December last year, when after a six year battle, Hardie’s agreed to a $4 billion compensation package for suff erers extending over 40 years. 'While Banton's night shift job combining cement, silica and asbestos into a wet slurry would take him on a journey of sickness, pain and death, it would also see him remembered as one of Australia's great working class champions of justice.

Nick Ramage

bulletin@lawsocietysa.asn.au

Columns:

President’s Message .........................................................................................................4

Riskwatch ................................................................................................................................................14

Taxfiles .............................................................................................................................................................16

Judgments ..............................................................................................................................................30

On the Road .....................................................................................................................................31

Murray Information Resource Centre ...............32

Conference Listing .......................................................................................................33

Gazing in the Gazette .........................................................................................34

Moving On, Moving Up .................................................................................36

Diary Dates ........................................................................................................................................37

Classifieds...............................................................................................................................................41

DECEMBER 2007 / JANUARY 2008

Volume 29 Number 11

First Year Students & the New South Australian Supreme Court Rules

on Pleadings, part two By Andrew Alston, Margaret

Davies, Jane Knowler, Mark Rankin and Christina Son, Flinders University Law Faculty*

Cover Photo - SXC

Collaborative Law By Lorraine Logich

27

20

CONTENTSFeatures:

First Year Students and The New South Australian Supreme Court Rules on Pleadings: part two. .......................................................20

Legal News:

Requests by Medical Experts for The State of Prisons in SA: A Systemic Failure

A LSSA HRC Reports ...................................................................................................6

HREOC Case Spotlight ....................................................................................10

Profile: Selvie Demiri, Legal

Services Commission ...........................................................................................19

Class of 1987 Reunion ........................................................................................25

Bulletin Article of the Year ...................................................................26

From the Editor - December 2007 / January 2008

A

3

November 2007

President’sMessage

Grant Feary

VERY YEAR, following

the election of the new

Council of the Law Society,

the members of the Council

set aside a Saturday morning

to discuss some substantive

issues which have not been

able to be considered in detail

during the Council’s monthly

meetings on Monday evenings.

This year the “Half Day

Council Meeting” was held on

10 November 2007, a beautiful,

sunny Adelaide morning, and,

of course, Pageant day.

A signifi cant matter discussed at this meeting was whether or not the Law Society should add its voice to those voices calling for the establishment of an Independent Commission Against Corruption (“ICAC”) in South Australia. After a presentation from Mick Symons, a former South Australian policeman and now Executive Director of the Investigation Division of the New South Wales ICAC and then some very interesting debate about the potential pro’s and con’s of an ICAC, the Council resolved that it supports, in principle, the establishment of an ICAC in South Australia, and that the Society wishes to participate in the drafting or development of any model for

such a Commission. Th ere are several models available to be examined, for example, those contained in (separate) Bills introduced in Parliament by Mr Kris Hanna M.P. and the Hon. Sandra Kanck M.L.C. Ms Kanck’s Bill has been read a second time in the Legislative Council and is now proceeding to the committee stage.

The Society now needs to consider in detail the various models of anti-corruption

commissions as there is interesting debate as to whether or not such corruption commissions should or should not be a law enforcement body (as is the W.A. commission) or an investigative and educative body (as is the N.S.W. commission) or whether it should have jurisdiction over, for example, police matters. I look forward to reporting to members of the Society further about this issue.

Another issue which was discussed at the Half Day Council Meeting was the issue of a Judicial Appointments Commission . There has been substantial debate in legal journals and the press over recent years as

to the consultation process undertaken in the appointment of judicial officers and the criteria which should be applicable.

I n t h e U K a J u d i c i a l Appointments Commission was established under the Constitution Reform Act, 2005. The Law Society Council resolved to form a small working group to examine the various models for the establishment of a Judicial Appointments Commission and, in particular, the UK model, given that it has now been up and running for some time.

A yet further substantial and interesting matter which the Half Day Council Meeting considered was the potential for the establishment of a separate Administrative Appeals Tribunal in South Australia. Th e proposal is that such a tribunal would exercise the administrative jurisdiction currently exercised by the District Court of South Australia and replace the many separate tribunals currently operating in this State, along the lines perhaps of the tribunals established in Victoria and Western Australia. The Law Society’s Administrative Law Committee has done substantial work on this proposal, which has the potential to greatly simplify the administration and regulation of a substantial number of State Acts. For example, the Administrative and Disciplinary Division of the District Court has a general review jurisdiction given to it by at least 52 Acts, as diverse as the Freedom of Information Act, 1991 and the Boxing & Martial Arts Act, 2000. In addition, of course,

E

"The Law Society Council resolved to continue working on this proposal

and will soon seek to consult with the judiciary."

4

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November 2007

President’s Activities12 October 2007– 11 November 2007

n addition, the

President (M Kelly)

attended a luncheon hosted

by the Litigation Assistance

Fund on 12 October, and

delivered an update at the

Country Update held in

the Barossa on 12 October;

attended a meeting of

Lawguard Management

Pty Ltd on 15 October;

opened the “Justice and the

Law” day of the Governor’s

Leadership Foundation

on 16 October; attended

the opening of SMSF

Professionals Association of

Australia’s offi ces; and hosted

a pre-conference dinner

on 17 October; opened the

Succession Law Conference,

and hosted the Senior

Practitioners’ and Honorary

Members’ Luncheon, and

met with Ms Vicki Chapman

MP, and met with Ms Isobel

Redmond MP/Th e Hon

Robert Lawson MLC on

18 October; attended the

“Both Sides of the Fence”

Conference on 19 October;

met with Th e Hon Mark

Parnell MLC/Th e Hon Sandra

Kanck MLC, and chaired a

meeting of the Council on 22

October 2007. As Immediate

Past President, Ms Kelly met

with Mr Kris Hanna MP on 23

October; attended a meeting

with offi cers of the Attorney-

General on 30 October;

attended a meeting with

Independent MLCs on 31

October, spoke to a reporter

from the Sunday Mail in

relation to a compensation

matter on 9 November 2007.

Th e President (G Feary)

spoke to the Advertiser

and on ABC 891 in relation

to his Presidency on

22 October; attended a

meeting of the Federal

Court Liaison Committee,

and the University of

Adelaide’s Administrative

Law Student’s Forum on

25 October; attended the

Annual Dinner of the South

Australian Bar Association

on 26 October; met with the

Chief Magistrate, and chaired

a meeting of the Council on

29 October; spoke to Th e

Australian about a judicial

appointment on 30 October,

chaired a meeting of the

Executive on 5 November;

opened the CRASH 2007

seminar on 9 November 2007.

I

there are a number of specifi c tribunals established under particular Acts. One would have thought that a simplifi ed system of administrative review would also be less expensive overall than the current system, although obviously further work needs to be done.

The Law Society Council resolved to continue working on this proposal and will soon seek to consult with the judiciary.

Further discussions were held at the Half Day Council meeting concerning the listing process and delays encountered in both the Criminal and Civil jurisdictions of the Courts and, in particular, the District Court. We discussed the Criminal Justice Ministerial Taskforce which has been set up to take

further the issues raised by the Report written by Judge Rice last year. Th e Law Society and, in particular, its representative on that Criminal Justice Taskforce, Mr George Mancini are continuing to work with the Taskforce to look at what the Courts and the profession can do to alleviate the listing delays. This Criminal Justice Taskforce looks, unfortunately, of necessity, to be a permanent fi xture. Th e Society again thanks George Mancini for his extensive work on these and other issues. In relation to civil matters, I am interested in examining

potential ways of streamlining the process of listing matters for trial and will be working with the Society’s Civil Litigation Committee over the coming months on this proposal.

I thank Council members for their attendance at the “Half Day” meeting, for their contribution to the debate of these important issues, and for giving up – in the service of the Society – a particularly gorgeous Saturday morning.

Th ese issues we discussed on Pageant day, plus all of the

normal issues to be dealt with by

the Society, including legislative

review and consultation, will

mean that the Law Society

will have an extremely busy

2008. Th e Legal Profession Bill,

will, despite some hold-ups in

Parliament, in all likelihood still

be proclaimed into operation

on 1 July 2008, and will also take

substantial time and eff ort.

On behalf of the members of the

Law Society Executive, Council

and staff , I wish all members

a happy, safe and peaceful

Christmas and holiday season.

"I wish all members a happy, safe and peaceful Christmas and holiday season."

5

November 2007

The State Of Prisons In South Australia: A Systemic FailureLSSA Human Rights Committee

he following article is derived from a summary

of the full report on current conditions within the SA prison system and reform recommendations, submitted to the Correctional Services Advisory Council by the Rights Committee of the Law Society of South Australia.

In August 2007 the Human Rights Committee of the Law Society of South Australia submitted a report to the Correctional Services Advisory Council established under the Correctional services Act 1982 (SA) on all aspects of the prison system, reform of legislation and particularly on the deplorable and overcrowded state of all South Australian correctional facilities including the Adelaide Remand Centre.[i]

Th is commentary is an edited version of that report. Much of the detailed reference material particularly case and text references, content of relevant international instruments in the report has not been included. It should also be noted that the Department for Correctional Services was forthcoming with assistance in arranging the visits and providing other information as were staff and management at all the relevant facilities.

Th e systemic failure of the entire prison system is not to be attributed to the Department, and does not refl ect on the integrity and professionalism of management and offi cers at the various facilities. Th eir high level of commitment and

professional approach was evident in all areas. For instance the education and library facilities and the prisoner work areas which include furniture and engineering fabrication at Yatala are of an extremely high standard but the services and placements available for prisoners remain greatly restricted by limited resources.

In its Annual Report of 1999/2000 the CSAC foreshadowed a review of the Act to address issues such as ‘the Act be enabling rather than prescriptive’; ‘a legislative focus on rehabilitation rather than punishment’; ‘minimum standards, with a clear statement of the duty of care to prisoners and a restatement of responsibilities to key stakeholders’; and ‘structured processes of community participation with participation of Indigenous organisations being of particular importance.’ None of that happened.

Th ere have been signifi cant developments and changes in the legislative frame work for corrections institutions interstate and overseas and usually this has followed upon widespread independent enquiries. More recently,

there has been a movement to introduce an entirely new ‘human rights’ based approach to prisoners’ rights within such legislation.[ii] Th is is not likely in South Australia which proudly boasts the toughest criminal laws and conditions anywhere in Australia.

‘[Th ere are] three requirements which must be met if the prison system is to be stable: they are security, control and justice. “Security” refers to the obligation of the prison service to prevent prisoners escaping. “Control” deals with the obligation of the prison service to prevent prisoners being disruptive. “Justice” refers to the obligation of the prison service to treat prisoners with humanity and fairness.’

"Woolf, Lord Justice: Prison Disturbances, April 1990: Report of an Inquiry; London: Th e Stationary Offi ce, 1991, 1.149."

Th e deprivation of liberty and confi nement resulting from imprisonment is the punishment. It does not serve the proper ends of the criminal justice system to treat prisoners harshly or by imposing inhumane conditions

as is now becoming the norm in South Australia.

There is a crisis within the prison system in South Australia which must be addressed. A thorough review should be undertaken as soon as possible into the Correctional Services Act 1982 and the regulations under that Act with repeal and putting forward a ‘model’ set of bills to replace the existing regime for the management of pr i s ons , ind e p end ent inspectorate and parole systems. Th at review should be accompanied by an equally urgent independent enquiry into the entire sentencing system including bail law and the crisis within the prisons resulting from inadequate facilities, overcrowding and lack of resources for the treatment of the physically and mentally ill, for the provision of adequate education and rehabilitation programs.

A review of the Correctional S e r v i c e s A c t 1 9 8 2 a n d Regulations should be undertaken by an entirely independent person with appropriate experience and qualifi cations in the criminal justice system and able to

T

'There are three requirements which must be met if the prison system is to be stable:

they are security, control and justice.'

6

wwww.lawsocietysa.asn.au

commission outside assistance and research from experts in the fi elds of penology, Indigenous issues, mental health, women’s imprisonment, juvenile justice and custodial sentences, education, rehabilitation, drug treatment and counseling programs in prisons and all other relevant areas.

Th e draft legislation should in its purposes and in substance refer to and adopt all relevant international and national standards on the rights of prisoners including juveniles and all relevant recommendations of the Royal Commission into Aboriginal Deaths in Custody.

Th e package of proposed legislation should comprise separate Acts dealing with the entirely separate functions and roles of:

• Th e management of corrections institutions which includes the provisions setting out the rights of

prisoners following the model of the Crimes (Sentence Administration) Act 2005 (ACT):

• An independent inspectorate of correctional services modeled on the Western Australian Offi ce of the Inspector of Custodial Services, having the same powers as the Ombudsman to monitor prison conditions, to conduct mandatory and other inspections as and when necessary of all facilities including police cell blocks and court custody areas. Th e offi ce of the inspectorate should have power to commission special one off reports on any areas of concern dealing with general conditions, enforcement of the standards for prisons and also to investigate individual complaints. Th at offi ce should have power to issue orders determinative of any particular complaint with such determinations being subject to appeal rights and judicial review; [iii] and

• A parole authority established as a statutory body with proceedings subject to the rules of natural justice and rights of representation. An appeal should lie to an administrative appeals tribunal and from there to the Supreme Court. Th e authority should be entirely independent of the executive and beyond any external interference with its decisions other than through appropriate appeal or judicial review process.

Th is summary of the original and detailed report has been prepared by Nicholas Niarchos AM, as Chair of the Human Rights Committee of the Law Society of South Australia . Th e views expressed in the summary and the fi nal report are strictly those of the Human Rights Committee, and team involved in prison visits, and they do not refl ect the offi cial position of the Law Society or its members.

[i] Th e fi nal report was the product of a collaborative eff ort by the HRC. Valuable research and contributions have been provided by a number of members including Rebecca Aoukar, Geoff rey Britton, Justinia Dolgopol, Christopher Charles, Tracee Micallef and Matthew Stubbs.

[ii] See, for example, on the changes in penal and sentencing policy which came into eff ect in the UK in 1960s with a view to reducing the prison population the discussion in Andrew Ashworth, Sentencing and Penal Policy, Weidenfeld and Nicolson, 1983, at 112-113; the author goes on to refer to studies which show that ‘…reconviction rates following longer term of imprisonment are no better than those which follow short terms of imprisonment-which seems to suggest that neither the reformative nor the individual deterrent eff ect of imprisonment increases with the length of incarceration,’ at 125.

[iii] For instance see the Inspectorate of Custodial Services [WA] established under the ‘Th e Offi ce of the Inspector of Custodial Services was originally established by the Prisons Amendment Act 1999. It commenced operations in June 2000. Th e role of the Offi ce is to bring independent external scrutiny to the standards and operational practices relating to custodial services within the state. Th e Offi ce, which falls within the general portfolio responsibility of the Minister for Justice, is answerable directly to the Parliament.’ [Statement from the WA: Offi ce of the Inspector of Custodial Services website accessible at http://www.custodialinspector.wa.gov.au

Collaborative Divorce Australia

Information and Registration: www.CollaborativeDivorce.com.au

Collaborative Practice Training Course

Adelaide: Fri 15 – Sat 16 February 2008 Venue: St Mark’s College, 46 Pennington Terrace, North Adelaide, 5006

Early Bird (Payment by 28 December 2007) - APS & Law Society Members - $450 (plus GST) - Others - $550 (plus GST)

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Training in collaborative family law is developed to assist psychologists, counsellors and lawyers to work together to help clients resolve family disputes without resorting to court or adversarial processes. Who should register: - Psychologist, counsellors, and mediators who have expertise in family dynamics and issues pertaining to separation and divorce, and family lawyers. The course is an Australian Psychological Society (APS) endorsed activity for 10 (Generalist) Points (07-142). Places are strictly limited. Dr Brett Degoldi (PhD (Psych), LLM, LLB, BSc(Hons), MAPS), who is trained in both law and psychology, will help you understand the multi-disciplinary approach toward working with families going through separation and divorce, and creating a successful multi-disciplinary collaborative practice.

n 7 January 2007 I began

my second internship

with the United Nations High

Commissioner for Refugees

(UNHCR), this time at the

organization’s headquarters

in Geneva, Switzerland. It was

a world away from the tropics

of Bangkok where I had spent

last summer interning at the

r e g i o n a l U N H C R o f f i c e .

Nestled in the heart of Europe,

Geneva is the international

diplomatic hub of the world.

G e n e v a i n i t i a l l y g a i n e d

international recognition

when it became home to the

League of Nations, since then

it has become European

headquarters of the United

Nations and attracted scores

of multinational corporations,

NG O’s and int ernational

organizations.

I wanted to intern at the UNHCR headquarters in order to improve my knowledge of international refugee law and experience the practical realities of working within the United Nations in Geneva . Th e experience I gained was priceless and could not be obtained by reading a text book, attending lectures or working in a law fi rm. For the 3 month duration I was placed in the Protection Operations and Legal Advice

Section of the Division of Int ernat ional P rot e ct ion Services. Th e most challenging and emotionally exhausting assignment I received was drafting legal submissions for UNHCR’s input into an arbitrary detention case in the European Court of Human Rights (ECHR). Th e case Saadi v United Kingdom raised complex issues on the relationship between regional human rights and international human rights and refugee law. Th e case was about an Iraqi refugee who was

detained for 7 days in London’s Oakington Reception Centre, before he was granted refugee status. He contested the validity of his detention, and after exhausting all domestic legal avenues in the UK, took his case to the ECHR. Th e case was narrowly rejected at fi rst instance and an appeal was lodged in the Grand Chamber. It was at this stage UNHCR were granted leave to intervene. Being a strong advocate against Australia’s mandatory detention policy I found this case particularly difficult to grasp. Over the past two years I have watched many asylum seekers slowly and painfully waste away in Baxter Detention Centre to the point where they were on anti-depressants or admitted to Glenside Hospital. Also, like many members of the community, I had felt shame and anger over an immigration policy that would lock up children, not to mention, a man for nearly 7 years only to release him when public opinion fi nally voiced in the all important election polls. As one can imagine with this background in my head, I felt like screaming when I read that this case had reached the Grand Chamber of the European Court of Human Rights over seven days of detention. In the beginning I thought the Oakington regime was brilliant, refugee advocates in Australia would jump at

Three months at UNHCR Geneva:A Law Foundation Internship Report

By Prabha Nandagopal, Phillips Fox

Prabha Nandagopal in Geneva

O

"Being a strong advocate against Australia’s mandatory detention policy I found this case

particularly difficult to grasp."

8

wwww.lawsocietysa.asn.au

the idea of detaining certain groups of asylum seekers for only 7 days to ‘fast track’ their claims. However, what I learnt is that detention, irrelevant of the duration, is inherently undesirable, it is a major violation of personal liberty, and should be avoided. What is important is the purpose of the detention, and whether this purpose can be achieved by less intrusive measures. UNHCR encourages States to take measures that serve the timely adjudication of asylum-claims and has therefore not objected, for example, to the creation of central reception facilities, where asylum claims can be processed in a speedy and effi cient manner. Th e objectives of accelerating and increasing th e e f f i c i enc y of asy lum procedures are legitimate, consistent with human rights and it is ultimately in the interest of refugees to have their status acknowledged without delay. Th e problem that arose with the detention regime at Oakington was that the primary objective appeared to be to promote speedy decision making. Th erefore the question arose, whether this objective, the availability of the asylum-seeker for the speedy conduct of the procedure could not be achieved by a less intrusive measure, short of detention; for example by an obligation to reside in a reception facility and to report every day at a given time in order to inform the applicant of, to summon him or her to scheduled interviews or to serve decisions. Th e issue

of administrative detention of this kind has not been judicially considered by the ECHR. Th e case is set to go before the Grand Chamber of the ECHR on 18 May 2007 and whichever way the case is decided there will be signifi cant ramifi cations for EU asylum law. My last two weeks of the i n t e r n s h i p w e r e s p e n t observing the fourth session of the newly established Human Rights Council. Rather than the deliberations of the Human Rights Council, each day I would look forward to attending the side events sponsored by NGO’s. Th e side events I attended were fascinating as they presented an unpoliticised version of human rights abuses. One side event I attended was sponsored by the International Commission for Jurists, it highlighted the plight of Tibetan refugees, and in particular the human rights violations committed by the Chinese authorities toward this minority. Video footage was presented that captured the Nangpa Pass killings that occurred on 30 September 2006. Th e footage was taken by an eye-witness to the event and clearly showed the Chinese Border Security Of f icers taking aim at a group of Tibetans refugees attempting to escape Tibet through the Nangpa Pass into Nepal. Th e Chinese government were not conclusive or consistent in providing an explanation for the killings, they gave diff ering

responses including arguing it was self defense, an accidental incident and that it was normal border security. Another fascinating side event involved a panel of leading human rights experts in Sri Lanka. Th e audience included delegates from the Sri Lankan Government and the Sri Lankan Tamil community. Th e human rights crisis in Sri Lanka was high on the list of issues for the Human Rights Council so tensions were high. By observing the heated debates I realized that the most diffi cult aspect of this decade old confl ict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam is that it has become so diffi cult to ascertain the truth, decipher fact from fi ction. When reports are made by NGO’s and Tamil human rights activists, they are often blatantly denied by the Sri Lankan Government and vice versa. What was evident is that for every argument those opposed to the practices of the Sri Lankan Government had, the Government had an extremely well prepared rebuttal for and again vice versa. It was incredible to watch how diametrically opposed these two groups are, there is not even an ounce of compatibility or recognition of the other side’s point of view. What was immediately evident is the complex and intricate nature of this long standing battle. Th is observational element of the internship was extremely rewarding. Throughout the

three months I was given the opportunity to attend and observe on behalf of UNHCR several conferences and high-level meetings. In February 2007, I attended the Working Group of Experts on People of African Descent conference on ‘racial profi ling’. Here I was able to grasp an understanding of the phenomenon of racial profiling which is highly pertinent to race and religious issues in Australia. Th e many highlights of the internship made it diffi cult to select the ones to share. However when I think back on my three months at UNHCR two aspects shine bright. Firstly, the unique atmosphere that encapsulates what the United Nations stands for. Th is atmosphere was comprised of people from almost every country in the world. It was a great honour to be part of such a rich and diverse community. Secondly, attending sessions o f Tr e a t y B o d i e s a n d witnessing implementation of international law was an incredible experience. There is so much skepticism in this world about the value and eff ect of international law. Observing treaty bodies such as the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child, report on specifi c countries was encouraging. I would like to sincerely thank the Law Foundation for granting me a scholarship to undertake this internship. It has positively infl uenced my life both personally and professionally. I look forward to using this experience to not only pursue my career in international human rights law but to educate the community about refugee issues.

"Another fascinating side event involved a panel of leading human rights experts

in Sri Lanka"

9

November 2007

recent decision of the

Federal Court, Access for

All Alliance (Hervey Bay) Inc

v Hervey Bay City Council,[i]

has found that a disability

rights organisation did not

have standing to commence

discrimination proceedings

in relation to inaccessible

bus stops.

The decision suggests that

incorporated bodies maybe

limited in their ability to

commence federal discrimination

proceedings in relation to

matters aff ecting their members.

Background

Access for All Alliance (Hervey

Bay) Inc (‘AAA’), an incorporated

association, is a volunteer

community group established

to ensure equitable and

dignifi ed access to premises

and facilities for all members of

the community.[ii]

In 2005, AAA brought proceedings

against the Hervey Bay City

Council (‘the Council’ alleging

that a number of bus stops

that had been built or

signifi cantly upgraded since the

commencement of the Disability

Standards for Accessible Public

Transport 2002 (‘the Transport

Standards’) did not comply

with those Standards.

Council’s application for

summary dismissal

Th e Council sought summary dismissal of AAA’s proceedings, on the basis that AAA lacked standing. The application alleged that:[iii]

• there was no statutory basis

giving standing to a person to enforce a breach of the Transport Standards; and

• AAA was attempting to assert a bare public right or duty, which was only available to a person with a ‘special interest’ in the matter, or otherwise the Attorney-General or someone acting with his fi at.

Th e Court rejected the above arguments.[iv] It found that the defi nition of ‘unlawful discrimination’ under the Disability Discrimination Act 1992 (Cth) (‘DDA’) clearly included a breach of the Transp or t St and ard s . [v] Furthermore, the Court found that standing to commence proceedings for unlawful discrimination under the DDA derived not from general law principles of standing, but from the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’).[vi]

Th e Court held that the HREOC Act made clear that a ‘person aggrieved’ by

unlawful discrimination was entitled to lodge a complaint with the Human Rights and Equal Opportunity Commission(‘HREOC’). Upon termination of that complaint by HREOC, the person is entitled to commence proceedings in the Federal Court or Federal Magistrates Court.[vii]

‘Person aggrieved’ – HREOC’s

acceptance of the complaint

On the question of whether AAA was a ‘person aggrieved’ by the Council’s alleged non-compliance with the Transport Standards, AAA argued that this was a question already determined by HREOC at the time of accepting the complaint. If the Council had wished to dispute this decision, it’s recourse was against HREOC under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘AD(JR) Act’).[viii]

Th e Court disagreed. It found that such a construction was contrary to Parliament’s intent under the HREOC Act of creating a complaints handling procedure that was effi cient and unburdened by legal technicalities.[ix]

‘Person aggrieved’ – principles

Th e Court outlined a number of principles regarding whether an applicant is a ‘person aggrieved’.[x] For example, the

Court observed that it was not suffi cient that an applicant has merely an ‘intellectual or emotional’ interest in the matter.[xi]

Th e Court also noted that, whilst incorporated associationsare typical ly community organisations and should not ordinarily be equated with trading corporations, they are nevertheless bodies corporate which may sue or be sued in their own name. Th e interests of its members are therefore ‘arguably irrelevant’.[xii]

‘Person aggrieved’ – fi ndings

Th e Court ultimately found that AAA was not a ‘person aggrieved’ for the purposes of the HREOC Act in relation to the Council’s alleged breaches of the Transport Standards. In essence, the Court was persuaded by the Council’s oral arguments that, whilst AAA’s members used the relevant bus stops, AAA did not. Consequently, AAA’s interest in the Council’s non-compliance with the Transport Standards was merely ‘intellectual or emotional’.[xiii]

Possible exceptions

Th e Court left open the prospect that an incorporated association may have standing as a ‘person aggrieved’ if a particular matter aff ected the interests of all of its members.[xiv] Th e Court also distinguished the case of unincorporated associations.[xv]

Th e Court also acknowledged that an organisation may be

HREOC case spotlight:

Access Denied: Standing of a human rights organisation to commence discrimination proceedings

By: Brook Hely, Senior Lawyer, HREOC Legal Section

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"Transport provides society’s circulation system, infusing and connecting its

various facets."

10

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‘aggrieved’ where a matter aff ects the organisation itself, such as if an organisation is refused a lease over premises due to its members having disabilities.[xvi]

Finally, the Court hinted that an incorporated organisation may be a ‘person aggrieved’ if it could establish that it was suffi ciently recognised as a representative peak body on the issue, although suggested that this was ‘of somewhat debatable signifi cance’.[xvii]

Refl ections

The Transport Standards establish a comprehensive code for the accessibility of public transport, covering bothconventional public transport

(ie. public buses and trains) as well as commercial transport (ie. airline travel and taxis). Th e Standards were devised following extensive consultation with government and transport representatives, as well as the disability community. Th e Standards do not establish an ideal standard, but a minimum standard, with which non-compliance is unlawful.[xviii]

Th e Courts have yet to consider the operation of the Transport Standards. It is therefore perhaps unfortunate that the Court’s decision in AAA was in the context of an application for summary dismissal and thus without the benefi t of complete evidence and argument on the matter.[xix]

In particular, a full hearing of AAA’s application may have provided a greater opportunity for the Court to consider the purpose, scope and operation of the Transport Standards and whether a broader interpretation of ‘person aggrieved’ is perhaps necessary and appropriate to ensure that the Transport Standards are fully eff ective. Transport provides society’s circulation system, infusing and connecting its various facets. It enables employees to go to work, customers to reach shops, and friends and families to socialise and travel. Inaccessibility of public transport and its infrastructure is therefore a concern that transcends the interests of individuals within the disability

community. It is a matter that aggrieves society at large.

For a copy of the decision in AAA, go to http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/615.html For a copy of the submissions fi led in AAA by the Acting Disability Discrimination Commissioner as amicus curiae, go to http://www.humanrights.gov.au/legal/submissions_court/amicus/

hervey_bay.html

[i] [2007] FCA 615.[ii] Ibid [6].[iii] Ibid [15]. Th e Council also relied on the

‘equivalent access’ provisions under the Transport Standards, although this argument was summarily rejected: [70]-[72].

[iv] Ibid [22]-[34].[v] Ibid [31].[vi] Ibid [33]-[34].[vii] Ibid [31], [34].[viii] Ibid [36].[ix] Ibid [38]-[39].[x] Ibid [37]-[51].[xi] Ibid [41].[xii] Ibid [49]-[50].[xiii] Ibid [67].[xiv] Ibid [60], distinguishing Manuka Business

Association Inc v Th e Australian Temperance

and General Mutual Life Assurance Society

Ltd [1976] VR 592.[xv] Ibid [58], distinguishing Executive Council

of Australian Jewry v Scully (1998) 79 FCR 537.

[xvi] Ibid [46], [54].[xvii] Ibid [63].[xviii] DDA, s 32.[xix] Th is issue is dealt with at [65]-[67].

Transport provides society’s circulation system, infusing and connecting its

various facets.

he Indigenous Law Student Mentoring Program

started in 2006 for students studying law at university in SA.

Th e innovative program aims to assist and support indigenous law students while they are studying and to then move into legal practice. Mentoring

enables students to benefi t from having guidance and support as well as getting some assistance with assignments, meeting other lawyers, obtaining work experience and forming long-lasting friendships. The mentors are lawyers working in a wide range of areas of law.The number of students

participating in the program n o w c o n t i n u e s t o g ro w. Students have been ver y positive about the friendliness of the mentors and the support, guidance and opportunities the program is providing for them.

Th e program is set to expand in 2008 with the assistance

of sponsors such as BHP and Finlaysons.

If you are interested to know more about the mentoring program you can contact; Michael Colbung at the University of Adelaide - on michael .colbung@adelaide.edu.au or telephone 8303 4967

The Indigenous Law Student Mentoring Program

T

11

November 2007

PerspectivesAn Illustrated Series of the judges of the South Australian Supreme Court

By John EmersonSketch of Justice Bundey by Fiona Cameron

William Henry Bundey

Justice Supreme Court of

South Australia

2 July 1884 to 30 November

1903

Born 30 January 1838

Died 6 December 1909

ir Henr y Bundey was

o n e o f t h e l e a d i n g

criminal lawyers of his day,

and as Minister of Justice and

Education in 1874, he was

responsible for the legislation

bringing the University of

Adelaide into existence.

Ironically, he had only had

one year of formal education.

Th ere appears to be a confl ict

in the date and place of his

birth. Th e 1908 edition of Fred

John’s Annual – the predecessor

to Who’s Who in Australia –

records Henry Bundey as being

born in 1838 at Blackland’s

Fa r m , Pa r i s h o f E x b u r y,

Southampton. But in the report

of his death in Th e Advertiser

the following year, it states that

Sir Henry Bundey was born in

1833 at Bashley Manor, near

Leamington, England.

He arrived in South Australia in

1848 at probably ten years old

with his family. His father died

shortly after and his mother

was left to bring up the fi ve

children on her own. Henry

that year – either at ten or

fi fteen - started working in a

solicitor’s offi ce.

I n 1 8 5 7 H e n r y s t a r t e d

articles with Erasmus Gower

in Wo o d si d e , e v entual ly

completing them with John

Bagot in Adelaide in 1865. He

worked in between as a clerk of

the local court.

He rapidly built his reputation

as a criminal lawyer and was

appointed silk in 1878. His

reputation rested on his

passionate attention to detail

and a mastery of juries. One

of biggest successes involved

a Scottish mariner, Captain

Cameron , who was being

prosecuted after his vessel

ran aground near Troubridge

Lighthouse.

According to The Advertiser,

Henry “placed the captain’s

conduct and previous career in

such a light before the jury that

when asked for their verdict

they rose as one man and said

‘Not guilty’, and as they fi led out

of the jury box they approached

to where the captain stood by

his counsel and each of them

shook hands with him.”

H e n r y B u n d e y e n t e r e d

parliament in 1871, representing

the Onkaparinga district.

As well as being the State’s

first minister of justice and

education, when he endowed

the University of Adelaide with

its fi rst fi ve acres on North

Terrace plus another 50,000

acres in the country, he was

Attorney-General from 1878 to

1881 in the Morgan ministry.

He frequently made himself ill

from over-work and in 1881 he

resigned and took his wife and

daughter to Europe.

When he was of fered the

jud ge ship h e app arent ly

hesitated as his earnings at the

bar were around 5,000 pounds

a year, three times a judge’s

salary then (and fi fty times a

tradesman’s). But he accepted

and sat for nineteen years.

Finally his health gave way and

he was permitted to retire with

a pension of 1,300 pounds.

His great passion outside of

his family was yachting, and

he apparently knew South

Australia’s coastline intimately,

spending days alone at sea

living off a mainly fi sh diet.

He died six years after retiring

at his Mount Lofty home,

‘Stonehenge’ after a long illness

and was survived by his wife

and daughter, both named

Ellen.

PerspectivesAn Illustrated series of the judges of the South Australian Supreme Court

By John Emerson

John Emerson has published two books on South Australia’s legal history and Fiona Cameron has published a collection of poetry and art. To buy or fi nd out more visit your local bookshop or visit online www.papinian.com.au

Wiliam Henry Bundey(Illustration by Fiona Cameron)

S

12

wwww.lawsocietysa.asn.au

Michael David

Justice Supreme Court of

South Australia

Since 6 July 2006

Born 25 October 1944

efore being appointed to

South Australia’s District

Court in 1996, Justice David

was one of the State’s most

prominent criminal barristers.

He defended and prosecuted

in some of the best-known

criminal trials of the day,

often murders.

One of the biggest criminal

briefs of his career was the

defence of three men between

1991 and 1993 who were

accused of war crimes. Th e

case required travel to the

Ukraine. With junior counsel

Lindy Powell – who was

appointed silk in 1994 – they

were confronted far from the

security of Adelaide with the

harsh legacy of the Soviet

years. Th eir toils required a

600-kilometre drive one icy

night from Pinsk to Kiev, and a

fl ight in a plane with electrical

tape attached to one wing.

Born in Adelaide, Michael

David completed his schooling

at Rostrevor College. He

developed a passion for cricket

during his time at Rostrevor,

and also for the history of the

two world wars that would

later help his understanding

of the war crimes case. He

did not have any particular

interest in the law at fi rst, even

when he decided to study it at

university.

But shortly after taking articles

with Stevens Jacobs Mellor and

Bollen, he was given the job of

dealing with traffi c matters in

the Magistrates Court. This

was his fi rst exposure to court

and he immediately recognised

that this was where his future

lay. He made the decision then

to become a barrister.

He remained with the fi rm after

being admitted in 1969, but

joined Bar Chambers in 1973.

The independent bar then

numbered barely half a dozen

barristers, who were almost

all at Bar Chambers. He was

very grateful to fi nd that the

founder of the bar, Christopher

Legoe, charged low rent to the

younger members of chambers

and would provide work to

establish them.

Michael David began attracting

his own work, taking ‘dock

briefs’ and work referred from

the Law Society, supplemented

with regular briefs from the

Crow n P ro se cutor, of t en

requiring trips to circuit courts.

He rapi d ly d e velop ed th e

reputation for being able to

identify core issues at stake in

a case and for highly eff ective

cross-examinations.

He was appointed silk in 1986.

By 1994, Bar Chambers had

grown and the independent bar

itself had spread into a dozen

set of chambers with a hundred

barristers. Michael David

founded his own chambers

in Angas Street together with

two other successful criminal

barristers, Ann Vanstone – now

a judge also of the Supreme

Court – and Ian Sampson. Th e

chambers were named after

Christopher Legoe and in 2004

moved to Gouger Street to

accommodate its increasing

membership.

Justice David was married to

his second wife Rosemary

in 1982 and has fi ve children.

His daughter Sophie joined

the independent bar in 2003

at Edmund Barton Chambers.

He remains deeply passionate

about cricket and the history of

the world wars, and keeps fi t at

the gym.

His Hon. Justice Michael David

B

13

November 2007

Risk WatchRiskwatch is prepared by Law Claims to assist practitioners in identifying risky areas in practice and to highlight risk prevention strategies to allow for safer, more enjoyable practice. Riskwatch appears as a monthly column in the Law Society Bulletin as well as being distributed on a monthly basis to members of the Law Society’s Professional Indemnity Scheme who do not receive the Law Society Bulletin.

LAW CLAIMS MANAGEMENTby Libby Bishop, Director, Law Claims

e know from experience

that w h en a c l aim i s

made against a practitioner it

can be a difficult and stressful

time. Law Claims welcome

calls from practitioners who

are concerned a claim may be

made against them or their

firm. We thought an article

sett in g out L aw Cl aims

approach to the management

and resolution of such a

claim would be helpful to

practitioners.

Our aim is to facilitate the prompt resolution of claims against legal practitioners with fairness and integrity. At all times the confi dentiality and professional reputation of the practitioner is paramount in our minds. Our objectives of equitable, economic and effi cient claims resolution take into account;

• the continued provision of adequate professional indemnity insurance to the legal profession for civil liability;

• advantageous policy coverage;

• aff ordable premium rates;

• minimisation of claims by risk management education, counselling and practice management advice.

Early notifi cation often allows for rectifi cation. We do not interfere with the solicitor / client relationship. Provided th e c l i ent i s aware of th e circumstances giving rise to concern, the client may wish to have the practitioner continue to manage the fi le. We are then available to discuss and advise on the ongoing management of the claim.

T h r o u g h o u t t h e c l a i m s management process, Law Claims solicitors need to take into account the component parts which include;

• the right of the practitioner to indemnity and defence under the terms and conditions of the policy;

• the interests of the legal profession of South Australia under the provisions of the mutual Professional Indemnity Fund;

• the interests of the Underwriters of the Scheme;

• the sound fi nancial standing of the Professional Indemnity Fund;

• the entitlement of a client who has suff ered loss through the negligence of a legal practitioner to compensation.

As these components must all be considered and weighted against each other, diff erent claims produce dif ferent outcomes. Th ere can be no blanket policy on how all claims are to be handled.

Th e Process

All claims are handled on their merits. Notice may be by phone, email, or fax. Law Claims solicitors are available to discuss notifi cations prior to a practitioner giving notice in writing. As soon as is practical the insured should give notice in writing to the insurers via Law Claims of any claim/potential claim or circumstances that may give rise to a claim, during the period of insurance.

A notice is properly given under this clause if sent to Law Claims, Level 3, 132 Franklin

Street, Adelaide SA 5000 or DX 400, Adelaide. When notice in writing is received, Law Claims will send the practitioner 3 forms to complete which will commence the claims process. It is imperative that these forms are completed correctly and returned to Law Claims as soon as possible.

Handling claims in accordance with the procedures set out in the master policy means Law Claims will;

• request information and assistance from the insured;

• provide reasonable assistance to the insured;

• provide advices as to the insured’s position and professional duty;

• take necessary steps to protect the interests of the insured and Underwriters;

• as soon as practical provide initial and follow up reports to insurers;

• maintain the duty of confi dentiality to the insured and the fi rm;

• where necessary, appoint a panel solicitor to conduct the defence and resolution of the claim.

From time to time whilst managing th e c la im , th e i n s u r e d m u s t g i v e L a w

W

"We know from experience that when a claim is made against a practitioner it can

be a difficult and stressful time."

14

wwww.lawsocietysa.asn.au

Claims such information and

assistance as Law Claims

may reasonably require. Th e

main issues are identif ied

early and an appropriate

claims management strategy

formulated. Th is is done by

the Director of Law Claims

and the Senior Solicitor or in

consultation with the Claims

Committee.

A practitioner will be notifi ed

of progress on the fi le as it

occurs, and will be involved in

settlement discussions prior

to Law Claims committing the

insured’s excess to settlement.

Th e practitioner will also be

notifi ed of closure of the fi le,

either when the matter is

resolved or it becomes clear a

claim will not proceed. Once

the matter has been settled and

the fi le closed the practitioner

can expect to be contacted by

the Risk Manager. Th is provides

the opportunity to address any

system issues which may have

contributed to the notifi cation,

so that similar problems can be

avoided in the future.

If you have any circumstances of concern and would like to discuss this with Law Claims solicitors, we can be contacted on phone: 8410 7677; fax: 8231 7798; email: lbishop@lawguard.com.au or aking@lawguard.com.au.

Upgrade your qualifi cations, your career, and your life.

www.adelaide.edu.au

The University of Adelaide’s Law School offers a range of exciting postgraduate coursework programs for both law and non-law graduates. These programs are highly relevant and challenging in their content and are taught fl exibly.

The Master of Laws by Coursework is designed for both domestic and international law graduates and legal practitioners, and provides an outstanding opportunity to undertake a Masters program in Law with a global and comparative perspective.

The Master of Business Law by Coursework provides a broad and comprehensive legal literacy for graduates of business and other disciplines who do not wish to practice law but are seeking a Masters degree with a focus upon the legal and regulatory issues encountered daily by business and government professionals.

The Master of Comparative Law is a unique international Masters degree, offered jointly by the University of Adelaide and the University of Mannheim in Germany. Most courses have an international and/or comparative law focus.

Both the Master of Laws and Master of Business Law programs can also be combined with a Master of Commerce, with specialisations available in Accounting, Applied Finance and Marketing.

For program details visit www.law.adelaide.edu.au/degrees/

"A practitioner will be notified of progress on the file as it occurs, and will be

involved in settlement discussions prior to Law Claims committing the insured’s

excess to settlement."

Tax Files| BY ARLENE MACDONALD, EDMUND BARTON CHAMBERS, ON BEHALF OF THE SOUTH AUSTRALIAN BASED MEMBERS OF THE TAXATION COMMITTEE OF THE LAW COUNCIL OF AUSTRALIA, BUSINESS LAW SECTION.

VERY TAXING DAMAGES

HE MONTHS of hard

work are almost fi nished:

the settlement of your client’s

claim for compensation is

almost agreed in principle

or detailed court orders are

about to be sought. Th en

someone says “what about

the tax?” or if you are really

unlucky, you wake at 3am of

the fi nal day with the same

question! Your heart sinks1.

Your fi rst thought is leave the problem to the tax agent to deal with later but you immediately realise that if any tax is payable, you need to either top up the claim or inform your client that tax will need to come out of the settlement.

Your n ext thou ght i s that you will simply try to get an indemnity for any tax from the defendant and then again leave it to your client’s tax agent to sort out the amount.

Th e aim of this short article is to provide an overview of the relevant CGT and income tax issues concerning the taxation of damages in commercial or personal claims to assist the plaintiff ’s lawyer in advising on the appropriate action to take in action to tax

2.

That action should be to structure the settlement or order so:

1. it is absolutely clear where the tax burden falls especially where there is more than one plaintiff ;

2. it is identifi ed as clearly as possible exactly what the compensation is for especially where there are multiple heads of claim; and

3. if it is necessary for the defendant to indemnify the plaintiff for any tax on the damages, that the terms of the indemnity are certain and eff ective.

GENERAL PRINCIPLES –

CGT AND INCOME TAX

Th e main income tax provisions are in the Income Tax Assessment Act 1997 (ITAA 1997) but some remain in the 1936 Act (Income Tax Assessment Act 1936). Th e CGT provisions are in ITAA 1997.

Damages are taxed in the same way as the loss they compensate. Th is of course requires a clear identifi cation of what loss is being compensated and also understanding of what is taxed as income and what as a capital gain. It is important to distinguish between income in this ordinary sense and statutory income as capital receipts (in the ordinary sense) may still be assessable as statutory (as distinct from ordinary) income due to other provisions in either ITAA such as sec 15-30 and 20-20(2) in the 1997 Act which

assesses certain insurance proceeds which are not already included as ordinary income. Also, a balancing charge on the disposal of depreciable property is statutory income

3.

If a receipt is ordinary income or statutory income other than CGT, it will often result in a substantially higher tax bill because capital gains are often discounted by the general discount and the small business concessions

4.

Th is is decided on an objective basis so it does not matter what the plaintiff or defendant intended. In general:

• Compensation for loss of profi ts is subject to income tax (Gill v Australian Wheat Board 1980 2 NSWLR 795). In other words, where the damages partly or fully “fi ll” the “hole in profi ts”, they are assessable as income replacing the profi ts. Also see Commissioner of Taxation v Wade (1951) 84 CLR 105; Carapark Holdings Pty Ltd v Commissioner of Taxation.

• Compensation for non-economic loss is capital and not subject to income tax. It may still create a capital gain which may be taxable.

• Compensation for the loss or sterilisation of an asset is capital. One example is the loss of a contract which is part of the taxpayer’s business (IRC v Fleming & Co (Machinery) Ltd (1951) 33 TC 57; Californian Oil Products Ltd v F C of T (1934) 52 CLR 28). Another is compensation for loss of earning capacity (Tinkler v FCT (1979) 29 ALR 663; FCT v Inkster (1989) 24 FCR 53; FCT v Slaven (1984) 1 FCR 11). In Glenboig Union Fireclay Co Ltd v Commissioners of Inland Revenue (1922) 12 TC 427, the taxpayer received a sum from a railway company which exercised its statutory powers to require part of the taxpayer’s fi reclay to be left unworked. It was held to be capital.

5

• Compensation for loss of goodwill is capital (Spedley Securities Ltd v FC of T 88 ATC 4126). But be very careful that it really is for loss of goodwill. In Liftronic v FCT 32 ATR 557, the taxpayer’s arguments failed because the Court said there was no permanent impairment to the business structure.

• Compensation for a business loss which doesn’t reduce the business structure

T

"Damages are taxed in the same way as the loss they compensate."

16

wwww.lawsocietysa.asn.au

itself is revenue (Allied Mills Industries Pty Ltd v Commissioner of Taxation (1989) 20 FCR 288.

• Any capital gain on compensation for compensation or damages an individual receives for any wrong or injury suff ered in his/her occupation or for any wrong, injury or illness he/she or his/her relative suff ers personally is disregarded (sec 118-37 ITAA 1997)

6. Warning: do

not ever include a personal

injury capital amount as an

unapportionable lump sum of

damages as this will lose the

sec 118-37 exemption and the

whole amount will be taxed!

• Compensation by way of

weekly payments to replace

lost income is itself income.

Statutory compensation such

as for workers compensation

follows the same general

principles. So, a replacement

for weekly income is taxed

as income. However,

characterising a lump sum

which replaces or redeems the future weekly payments or fl ow of income is more diffi cult

7.

• Compensation for loss of business or personal reputation is capital (Cullen v Trappel 1980 146 CLR 1)

• Compensation for unfair dismissal or loss of offi ce are generally taxed as statutory income as an eligible termination payment (ETP) (Commr of Taxes v Phillips (1936) 55 CLR 144 at 157)

8.

• Prejudgment interest in an award of damages for personal injuries is part of the “damages” and, as it is not interest in the true sense of the word, it is not separately assessed as income (Whitaker v FCT (1998) 82 FCR 261; 38 ATR 219; 98 ATC 4285)

9.

Whether a receipt is income or capital is to be considered from the perspective of the recipient not the payer

10 Another very

important point is that the characterisation of the receipt is not determined by the manner of calculating the loss. An amount for loss of earning capacity or loss of a business contract will be capital even though the amount is based on loss of income from either

11.

Similarly, a solicitor’s treatment of the entire amount as loss of profi ts is not determinative

12.

edwardsmarshall.com.au

Angas House 4 - 8 Angas St Kent Town SA 5067 Tel 08 8139 1111 Fax 08 8139 1100

Contact: Hugh McPharlin Brenton Ellery Brian Morris Ben Miels

Forensic Accounting and Litigation Support Services. Edwards Marshall are leading providers of Forensic Accounting and Litigation Support Services. Our personnel have extensive

experience in the assessment of damages, the adequacy of audit opinions, the identification of fraud and accounting reconstructions. We are particularly adept at analysing and

distilling complex information and enabling efficient comprehension of financial and accounting issues. Simple, clear and unbiased advice, without fear or favour.

"Whether a receipt is income or capital is to be considered from the perspective

of the recipient not the payer"

Although the ATO seems to start from the opposite premise, there is also no general principle that compensation for a loss which was allowed as a deductible expense or outgoing is itself assessable.

13

Where the damages (or some part) are properly characterised as relating to loss of a capital asset, Taxation Ruling TR 95/35 assists in determining whether the compensation is for loss of a capital asset (and if so which one) or is for the right to sue (itself an asset for CGT purposes) and the CGT consequence.

APPORTIONMENT

In addition to ensuring the amount of damages for each plaintiff is separately detailed along with the basis of the payment so the correct tax treatment can be calculated plaintiff by plaintiff , it is also important to apportion the amount of damages between diff erent parts of a multiple claim.

Where compensation is for one type of loss or where the compensation for various losses can be easily identifi ed, it is usually simple enough to determine which is capital and which are income and therefore the taxation consequences. I will later discuss the next step which is the need to be clear in your drafting of the agreement.

Th e tax implications of the award of a lump sum to cover the range of losses, some of which are income, and some are capital can be very diffi cult. Th is includes the question of whether the lump sum can be or should be apportioned

Two cases, McLaurin v Federal

Commissioner of Taxation14

and

Allsop v. FC of T15

are commonly

cited to justify a claim that a

lump sum damages award

cannot be apportioned. Th ey

need to be used with care and

with understanding of their

facts and the alteration to the

apportionment rules in the

CGT provisions. 16

Even if an analysis of these

cases results in the conclusion

that the proper treatment

of the settlement sum is an

unapportionable lump sum

with the consequence of the

entire sum being the capital

proceeds for disposal of the

right to sue, nevertheless

sec 116-40(2) requires an

apportionment. It needs to

be noted that McLaurin and

Allsop were pre-CGT cases but

they still stand for the principle

that it is inappropriate to

apportion a lump sum in some

circumstances. If a taxpayer

can’t know the basis of a lump

sum off er, how can sec 116-40

override that?17

Section 116-40(2) provides:

If you receive a payment in

connection with a transaction

that relates to one CGT event

and something else, the capital

proceeds from the event are

so much of the payment as is

reasonably attributable to the

event.

INDEMNITIES

In my view, indemnities are

overused as a sloppy alternative

to a clear analysis before the

orders are sought or settlement

achieved. There are cases

where the matter is of suffi cient

complexity that more work is

needed to be able to determine

the tax outcomes. An example

of this is found in the extremely

complex commercial Duke

litigation. In Duke Group Ltd

(in liq) v Pilmer18

, Mullighan

J having formed the view the

defendants should pay any

capital gains tax which is

assessed by reason of the award

of damages to the plaintiff ,

explained what should happen

to determine the CGT liability.

Should the Commissioner

of Taxation make a claim

for capital gains tax and

the plaintiff has a defence,

or a partial defence, which

is acknowledged by the

defendants, the plaintiff should

use its best endeavours to

reasonably defend the claim

if requested to do so by the

defendants or any of them.

Th ose defendants making

that request should bear any

reasonable costs of the plaintiff

in making that defence. If the

defence is successful, all of

the defendants against whom

judgment is entered must

contribute to the reasonable

costs of that defence not

recovered by the plaintiff . I shall

hear the parties as to the form of

the declaration or order which

should be made19

.

With respect this approach is

entirely appropriate in such

a complex case but it is far

removed from a simple pro

forma indemnity which both

delays the proper consideration

of the tax issues and leaves

open further legal argument

about how rigorously any tax

should be defended.

(Endnotes)

1 Of course this is really far too late to fi rst consider the tax issues but it does happen! At least it allows some thought to be given to the problem before the orders or agreement are fi nalised.

2 Stamp duty and GST may be relevant to the defendant where assets are part of the compensation package or are sold to fund it but this article deals with the cash damages.

3 Div 40 ITAA 1997

4 Division 115 and 152 ITAA 1997 respectively

5 Th e Commissioner says in paragraph 6 of TR 95/35

If an amount of compensation is received by a taxpayer wholly in respect of permanent damage suff ered to a post-CGT underlying asset of the taxpayer or for a permanent reduction in the value of a post-CGT underlying asset of the taxpayer, and there is no disposal of that underlying asset at the time of the receipt, we consider that the amount represents a recoupment of all or part of the total acquisition costs of the asset.

One warning, permanent does not mean permanent! See paragraph 3 of TR 95/35

Permanent damage or reduction in value does not mean everlasting damage or reduced value,

but refers to damage or a reduction in value

which will have permanent eff ect unless some

action is taken by the taxpayer to put it right.

6 What is a wrong or injury suff ered in an occupation? Loss of self-esteem, injury to feelings, public humiliation, embarrassment, depression, anxiety or distress are all within the CGT exemption according to the ATO Income Tax Ruling IT 2424. Also see Taxation Determination TD 92/130 concerning damages for the death of a spouse and compensation for loss of the opportunity to claim for personal injury due to a solicitor’s negligence are also exempt and see Taxation Determination TD 95/42 on proceeds of trauma insurance.

7 Th is is outside the scope of this article

8 Th ere are some exceptions such as where the employment was from a non Australian resident for employment lost outside of Australia because the ETP provisions exclude “exempt non-resident foreign termination payments” (ATO Interpretative Decision ID2001/5)

9 Post judgment interest in personal injury cases, although income, is now exempt from income tax (sec 51-55 ITAA 97).

10 Scott v FC of T (1966) 117 CLR 514; 14 ATD 286, 293 per Windeyer J

11 Glenboig, Northumberland Development Co

Pty Ltd 95 ATC 4483, Liftronic v FCT 32 ATR 557

12 See Allsop v Commissioner of Taxation (1965) 113 CLR 341 at 345, 351, 352 where the High Court held that the settlement was not a refund for licence fees wrongly paid for which he had received a tax deduction

13 FCT v Rowe (1997) 187 CLR 266

14 (1961) 104 CLR 381

15 (1965) 113 CLR 341.

16 Of course some taxpayers try to use these cases to support a better tax position by claiming entire receipt is capital but fail. A recent example is Sommer v C of T [2001]

AATA 901

17 See TR 95/35 at paragraphs 190 and 203

18 (1998) 144 FLR 1; (1998) SASC

19 FLR at page 174; SASC at page 544

18

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Justice is said to be blind – so why not have justice promoted by a blind lawyer?

Profile | Selvie Demiri, Legal Adviser, Legal Services Commission

h e w o r k o f a l e g a l

practitioner is often

onerous and challenging. For

a lawyer who has impaired

v i s i o n , t h e a d d i t i o n a l

challenges on the job are

obvious, but they are also

easily overcome. This is

proven in the case of Selvie

Demiri, who is employed by

the Legal Services Commission

as a Legal Adviser. Selvie, who

lost her sight as a consequence

of childhood cancer, has

worked at the Commission

for th e p a st 11 month s,

providing advice to members

of the public on all areas of

the law. Her determination,

along with the support of her

employer and other agencies,

has ensured that her blindness

has been no hindrance to her

pursuing her legal career.

“I have never allowed my blindness to hold me back from whatever I have wanted to do and I greatly appreciate the supportive attitude that management have shown in assisting me to progress in my legal career” says the 27 year old who graduated from the University of Adelaide with a double degree in Arts and Law.

Selvie carries on her day-to-day duties with the aid of technology. An audio program called “Jaws” installed on Selvie’s computer reads to her any text that is on the computer screen. In this way Selvie is able to know what she has written when she types her attendance notes and other documents and to read any information that is contained in electronic fi les or on the internet. Any hard copy documents are fed through a scanner which converts them into an electronic fi le, which in turn can then be read by the “Jaws” program. Selvie also has on her desk a small device called a Brailliant, which provides refreshable Braille output of the content of the computer screen.

All this equipment has been provided at no expense to Selvie or her employer. Th e

Royal Society for the Blind organised for the equipment to be purchased through a Commonwealth fund that is made available by Disability Works Australia. In this way the RSB plays a very supportive role in ensuring that individuals with impaired vision can experience a smooth transition into the workplace.

Selvie’s Manager, Gabrielle Canny, has high praise for Selvie’s skills as a lawyer and her adaptation to the challenges of her work place. “Selvie does not use a guide dog or a cane, yet moves about the offi ce freely, relying on counting steps, feeling or hearing changes in air fl ow indicating passageways and memorising frequently used routes. Selvie is an asset to our organisation. She provides feedback on the appropriateness of our services for sight impaired clients and has developed a sensitivity in listening to a clients instructions. I would recommend al l employers think outside the square when employing new staff . You are

likely to fi nd, as we have, that

your next employee has skills

the traditional graduate is

missing.”

Selvie Demiri, Legal Advisor, LSC

T

"Her determination, along with the support of her employer and other agencies, has ensured that her blindness has been no

hindrance to her pursuing her legal career."

19

November 2007

First Year Students & the New South Australian Supreme Court Rules on Pleadings Part 2.

By Andrew Alston, Margaret Davies, Jane Knowler, Mark Rankin and Christina Son, Flinders University Law Faculty*

In part 1 of this article published in November, the authors, who teach a fi rst year course on procedures and ethics at Flinders University Law School, discussed the Supreme Court Civil Rules 2006 on Pleadings and drafted a Statement of Claim that complies strictly with Rule 99. Th e article now examines the requirements for defence.

Compliance with the rules but not with Form 3.

STATEMENT OF DEFENCE

We then drafted a defence which, like the statement of claim, closely follows the requirements of the rules. As there are no preliminary issues, Part 1 addresses the allegations of fact in Part 3 of the statement of claim. Th e paragraph numbers correspond to the paragraph numbers in the statement.

DEFENCE

PART 1:

In answer to the Statement of Claim the Defendant says:

1. The Defendant admits the allegations contained in Paragraph 1 of Part 3 of the Statement of Claim (“the claim”).

2. Th e Defendant admits the allegations contained in Paragraph 2 of Part 3 of the claim.

3. Th e Defendant denies the allegations contained in Paragraph 3 of Part 3 of the claim and says further that the Plaintif f asked the Defendant to tattoo “Molly” on his left shoulder.

4. As to Paragraph 4 of Part 3 of the claim, the Defendant

admits the allegation that she tattooed “Molly” on the Plaintiff ’s left shoulder but denies that she did so without the Plaintiff ’s knowledge.

5. The Defendant admits the allegations contained in Paragraph 5 of Part 3 of the claim.

PART 2:

Th e Defendant relies on the special defence of contributory negligence, the basis of which i s that by fa i l ing to take reasonable care, the Plaintiff contributed to the injury that he suff ered.

PART 3:

Th e material facts on which the Defendant’s special defence of contributory negligence is based are:

1.

2.

Th is pleading is put forward in a c c o r d a n c e w i t h t h e instructions of the Defendant by Ira Te who certifi es that it c o m p l i e s w it h t h e R u l e s concerning pleadings.

Th is defence complies with the requirements of Rule 100 of the

South Australia Supreme Court Civil Rules 2006. Th e Rule does not require th e d efence to a d d re ss t h e p l a i n t i f f ’s statements of each cause of action, the basis of each cause of action or the remedies sought by the plaintiff . It requires the defence to raise any preliminary issue, and answer the plaintiff ’s factual allegations. There were no preliminary issues in our defence.

Sub paragraph (b) provides that a defence must indicate which (if any) allegations of fact in the plaintiff ’s statement of claim the defendant admits or does not propose to challenge at the trial. We have done this in Part 1 of the defence. Th e numbered paragraphs in this part correspond to the numbered paragraphs of the statement of material facts in

Part 3 of the statement of claim.

Although the Rules do not require it, we have responded to the allegations of facts that we do not admit . Thus, in paragraph 3 we reply to the allegation that the plaintiff asked the defendant to tattoo “Milly” on his left shoulder by saying “Th e Defendant denies the allegations contained in Paragraph 3 of Part 3 of the

claim and says further that the Plaintiff asked the Defendant to tattoo “Molly” on his left shoulder.” We do this to provide a complete version of the facts from the point of view of the defendant. Just as it is important that the defendant be informed of the material facts from the plaintiff ’s point of view, it is important that the plaintiff be informed of the material facts

“Mixed law and fact are no longer to be pleaded. It is for the Court to declare the law arising upon the facts proved

before it.”

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wwww.lawsocietysa.asn.au

from the defendant’s point of view. Note, however, that this fact will probably be stated again in the material facts related to the defendant’s claim of contributory negligence.

Rule 100 (1) (b) requires the defendant to raise any special defence on which the defendant relies. Sub-rule 100 (3) defi nes a special defence as “a defence other than a denial of facts alleged by the plaintiff , or a denial that facts alleged by the plaintiff give rise to a cause of action.” We have stated in Part 2 of the defence that we rely on the special defence of contributory negligence, “the basis of which is that, by failing to take reasonable care, the Plaintiff contributed to the injury that he suff ered.” Perhaps we should have stated the basis for the special defence in a separate part. We thought that the brevity of the sentence permitted us to combine our responses to rule 100 (1) (b) and (c) in one part. However, we then proceed to set out in a separate paragraph the material facts on which the special defence is based.

Why are we being so pedantic?

Our strict adherence to the words of the rules may seem pedantic. We recognise that our fi rst year students will later be exposed to diff erent styles of drafting, especially during the Practical Legal Training (PLT) programme in their fi nal year.

Why have we been so particular?

First, precise compliance with the rules will result in better pleadings because it will ensure that parties are properly informed, and thereby able to assess the merits of claims and defences.

Secondly, precise compliance with the rules encourages our students to develop good drafting practices. It requires them to carefully read the

rules and to draft in good grammatical style.

Th irdly, it is easier for students to follow the clear instructions provided by the rules than to adopt the vague and uncertain traditions of current practice. Th is is not to say that these tradit ions do not w ork splendidly for the many fi ne practitioners who understand them.

Fourthly, if students are able to attend to these details in their fi rst year, they will be better able to deal with drafting problems in later years as students and in practice. In our view, this will be so even when they are instructed to do things diff erently.

Finally, if they learn to comply with the rules, when they become practitioners, they will provide a good service for their clients and they will not run the risk of having their pleadings struck out. Th is last point raises an interesting issue in terms of our suggested pleadings format.

A r e o u r p l e a d i n g s i n a n

“approved form”? Should they

be struck out under Rule 104?

Having drafted these pleadings b e f o r e t h e f o r m s w e r e published, we now face a problem. Rule 104 provides that the Court may strike out a pleading in whole or in part if it does not comply with the rules and Rule 98 (1) (b) provides that a pleading “must be in an approved form.” We believe that our pleadings comply strictly with Rules 99 and 100.

However, they may not be in approved forms. For example compare the two simple parts of Form 3 with the multiple parts of our statement of claim. Having so far argued that in draft ing pleadings it i s important to comply strictly with the precise requirements of the rules, all we can do now is weakly say that, as we have left nothing out, we have complied with the forms.

Is it heresy to plead the law?

Lord Hoff man described the purpose of pleadings as “to defi ne the issues and give the other party fair notice of the case which he [or she] has to meet.” In our legal system, this purpose is attained by making parties state their case and answer the case of their opponents. Th e interchange of statements and replies to statements is the essence of pleadings and has existed since the time of Henry II.

It may seem common sense that defi ning issues and fair notice should include an indication of the law on which

the parties rely. In the distant past, this may have been a requirement. However, it is something with which lawyers are no longer comfortable. Odgers commented that:“Mixed law and fact are no longer to be pleaded. It is for the Court to declare the law arising upon the facts proved before it.”

Odgers described the limiting of pleadings to the facts of the case without the law being stated as “one of the greatest improvements introduced by the Judicature Act in 1875.”

Th us it may appear to be heresy that Rule 99 now purports to mix facts with law. However, in practice, it has always been the essence of good pleadings that, although causes of action are not expressly stated, they are implied by the material facts. If, for example, a claim is in negligence, some facts will address the requirement of a duty of care, others will purport to show that there is a breach of the duty and others will state the damages suff ered by the plaintiff .

"We recognise that our first year students will later be exposed to different styles of drafting, especially during the Practical Legal Training

(PLT) programme in their final year."

Odgers described the limiting of pleadings to the facts of the

case without the law being stated as “one of the greatest improvements introduced by the Judicature Act in 1875.”

21

November 2007

It seems to be just a small step to require that causes of action be not just implied but be stated. Th is is what the new South Australia Supreme Court Civil Rules 2006 have, in eff ect, done.

It is particularly important that this change is made now as it corresponds with changes in litigation practice. Th e focus of l itigation is no longer on lawyers drafting documents and presenting evidence so t h a t j u d g e s c a n m a k e pronouncements on the law. The new rules emphasise effi ciency, avoidance of delay and minimisation of costs. In particular, it is one of the stated objects of the rules:

(b) to facilitate and encourage th e re s o lut ion of c iv i l disputes by agreement between the parties

Early resolution of cases by agreement will be facilitated by compliance with the new rules on pleadings. If parties are made aware of each cause of action and its basis, as well as the material facts, they will be better able to negotiate and settle the matter with resultant time and costs savings.

i Requirements for defence (1) A defence— (a) must raise any preliminary issue; and (b) must indicate which (if any) allegations of fact in the plaintiff 's statement of claim the defendant admits or does not propose to challenge at the trial; and (c) must specifi cally raise any special defence on which the defendant relies; and (d) must state the basis of each special defence on which the defendant relies (including reference to any statutory provision on which the defendant relies); and (e) must contain a short statement of the material facts on which each special defence is based.

ii Ie, Form 3.iii Barclays Bank v Boulter [1999] 1

WLR 1919 at 1929.iv William Blake Odgers and Basil

Antony Harwood (1934, 11th edn) Principles of Pleadings and Practice in Civil Actions in the High Court v of Justice, Stevens and Sons Ltd, London.

vi Ibid at 77. Ibid at 78. All Australian jurisdictions followed suit (ACT Court Procedures Rules (Part 2.6),

Uniform Civil Procedure Rules 2005 (Part 14), NT (currently being rewritten), Queensland Uniform Civil Procedure Rules 1999 (Chapter 6) SA Supreme Court Civil Rules 1987 (r46.04) Tasmania Supreme Court Rules 2000 (Div 17) Victoria Supreme Court (General Civil Procedure) Rules 2005 (r13) Western Australia Rules of the Supreme Court 1971 Order 20 r2, r8, r12, r19).

vii Refer to Rule 3

Flinders Law Faculty joint authors.L to R - Jane Knowler; Margaret Davies; Andrew Alston; Christina Son; Mark Rankin

ustralia 's newest legal association is one with a

diff erence.

A group of surfi ng lawyers has established the Australian Lawyers Surfi ng Association Inc. (ALSA) in an eff ort to bring surfing lawyers across the country together to:• Promote links between the

profession, charities and other organisations;

• Provide a resource for pro-bono work in relation to surfi ng, environmental and other causes;

• Provide training and developmental opportunities for surfi ng lawyers;

• Organise surfi ng classes and competitions for surfing lawyers and those interested in being surfi ng lawyers.

Th ey already have a mailing list of over 50 surfi ng lawyers all of whom have indicated their willingness to be involved. ALSA this year launched their website and have a list of events for surfi ng lawyers and those keen to be involved - and have also this year run two 'learn to surf ' days for indigenous kids at Manly Beach. ALSA had its fi rst conference at Uluwatu in Bali in August 2007 where a number of papers dealing with a variety of areas of legal

practice and management were presented. Needless to say there was also quite a bit of surfi ng done as well. ALSA has also initiated some hands on assistance to villages in the Uluwatu area on the Bukit Peninsula in Bali in relation to environmentally sustainable development including the provision of safe water supply and the treatment of waste water from tourist developments on the peninsula. Peter Strain of the NSW bar, the founding president of ALSA says "Its time for surfi ng lawyers to get together and get involved in keeping the oceans clean for future

generations. And if we can ride some small waves at the same time then so much the better." Currently ALSA are sponsoring the East Bali Poverty Project, and more about this project will be reported on in the fi rst ALSA 2008 update. South Australia now has an ALSA chapter to. So surfi ng lawyers who want to become involved can contact - Matthew Warburton , General Counsel, [Australia/New Zealand], Hudson, Level 19, 45 Clarence Street, Sydney, NSW Australia Ph: +61 (02) 8233 2706 Fax: +61 (02) 9233 8266

ALSA says "surfs up" for Australia's lawyersA

22

wwww.lawsocietysa.asn.au

BOARDBULLETINAdrian Cartland Wins National Title - Golden Gavel

Adrian Cartland aka 'Th e Taxinator': 2007 Golden Gavel Winner

drian Cartland is by day an effi cient and attentive taxation lawyer with Piper Alderman -

but when on stage obviously his alter-ego comes to the fore - and he morphs into Adrian aka 'Th e Taxinator' . Adrian recently competed recently in the national titles of the Golden Gavel Competition held in Tasmania, and

was awarded outright title winner for his presentation that gave more than a nod to the 80's sci-fi character of 'Th e Terminator'.

Congratulations to Adrian and to the LSSA New Lawyers group which supported Adrian in his trip to compete and win in Tasmania.

A

n 19 October I met with

t h e t h e H a n g z h o u

Lawyers’ Association at their

offices.

It was a pleasure to meet this group, four of whom had been i n t h e i r g r o u p v i s i t i n g Adelaide.

Mr Fang, a former president of the Hangzhou Lawyers’ Association, led the welcome. However, he had to travel to another city, and left early. Th e discussion was led by Mr He, who is a Vice-President of the Association. Mr Deng (Simon Dunne) ably translated. Including formalities and photographs, the meeting lasted about one hour.

Mr He briefl y introduced the situation of the Hangzhou Lawyers’ Association. Hangzhou is a small city compared to nearby Shanghai, and the law fi rms are comparatively small. However, they are competitive and they are interested in further contact. Hangzhou is famous for tourism and they have strengths in this area. Hangzhou is also the provincial capital for Zhejiang province, one of China’s thriving eastern provinces. They can provide information about Hangzhou

a n d t h e l aw s re l a t i n g t o investment there, if requested.

Mr He indicated that they would like to receive information in three areas:

(a) Listing on Australian stock markets

(b) Immigration and Overseas Study in Australia

(c) Investment requirements in Australia

They are willing to receive information in English, and

expect that Mr Deng would be able to translate.

From the South Australian side, I provided a copy of the article “The little firm that made it in China” (The Australian 13 July 2007). I also briefl y noted that a number of Australian law fi rms had established in China as foreign law fi rms. Th en I suggested that increased emigration and investments may encourage Chinese law fi rms to establish in Australia. I introduced the proposed amendments to the Legal Practitioners Act (Part 6) relating to foreign lawyers.

During the meeting, I presented the Association with a sample of indigenous artwork. I also gave each member a recent issue of the Bulletin of the Law Society of South Australia, and gave the offi ce secretary a 2008 calendar with Australian scenes. During dinner, I presented Mr Deng with the folio provided by the Law Society.

Mr He presented me with a brochure about the Association, and its 2007 calendar.

After the meeting, Mr Deng was my host at a dinner provided by the Association.

I hope that this brief visit assists the LawAsia Committee and the Law Society of South Austral i a in maint ainin g contact with the Hangzhou Lawyers’ Association.

Committee CommentLaw Asia Update: Visit to Hangzhou

By Roderick O’Brien, Law Society of South Australia,LawAsia Committee

L to R; Liu Guojian,Lou Xinglong; Fang Shaoging; Roderick O'Brien; He Liming; Shen Xiangming; Deng Shiqun (Simon Dunne)

O

"Hangzhou is famous for tourism and they have strengths in this area."

24

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Th e Workshop Class of 1987 reunited after 20 years on 16 November 2007 at the Prince Albert Hotel. Whilst there were a few more gray hairs in evidence, it was a great opportunity for attendees to renew friendships and catch up with where life had taken those admitted on 14 December 1987. Th e event was well attended,

with people travelling from as far afi eld as Perth, Alice Springs and Melbourne to attend. Well wishes and emails were also received from London and Hong Kong where many 'Workshoppers' now live and work.

Th e career paths followed by the Class of 1987 are interesting

and varied. Amongst the 1987 year are numerous lawyers, an author, several judges (in Australian and other jurisdictions) and a politician, to name but a few. Celebrations continued well into the night and the event was judged a great success by all.

Th anks must go to the driving force behind the Reunion, Rob Mills, who was ably supported by the organising committee of Paul Charman, Mark Clisby, Richard Fisher, Noelle Hurley, Bill Last, John Levy, Elizabeth Olsson and Richard Wood.

Class of 1987 Reunion

1 L - R: Richard Fisher, Richard Wood, Craig McCarthy 2. L - R: Amanda Ward, Mark Heitmann, Susan Robertson, Rob Mills 3. L - R: Bev Clark, Richard Wood, Jeremy Culshaw 4. L - R: Pat Eady, Tony Hurren 5. L - R: Susan Robertson, Bill Last 6. L - R: Leanne Hutton, Josie Atkins 7. Carolyn Batt, Marcia Waters 8. L - R: Pat Eady, Marilyn Buckerfield 9. L - R: Richard Fisher, Rob Mills 10. L - R: Felicity Keeves, Emma Marinucci, Leandra Micallef 11. L - R: Richard Wood, Paul Charman, Sharon Tonkes

1 2

3 4

5 6

7 8

9

11

10

25

November 2007

LAW SOCIETY CONTACTS

Executive Director Jan Martin jan.martin@lawsocietysa.asn.au

Director of Business Operations Stephen Hodder stephen.hodder@lawsocietysa.asn.au

Manager (Finance) Ciro Pipolo ciro.pipolo@lawsocietysa.asn.au

Member Services Manager Michelle Griffith michelle.griffith@lawsocietysa.asn.au

Legal Practitioner’s Registrar David Milne david.milne@lawsocietysa.asn.au

Director (Prof. Standards) Denise Watkins denise.watkins@lawsocietysa.asn.au

THE BULLETIN

Editor Nick Ramage Email: nick.ramage@lawsocietysa.asn.au

Editorial Committee G Canny D Crocker J Emerson L Paulson B Krupka J Martin E Olsson (Chair) M Senior R Spencer K Gluche S Kljun M Kaukas

The LAW SOCIETY BULLETIN is published monthly (except January) by: The Law Society of South Australia, 124 Waymouth Street, Adelaide. DX 333 Ph: (08) 8229 0222 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au

All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Views expressed in the Bulletin in its ‘Opinion’ column and advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions.

PUBLISHER/ADVERTISER

Published monthly (except January) by:

Publisher Boylen Publishing Production Manager: Cindy Ridgwell Graphic Designer: Aaron Vander Wyst 1 Richmond Road (2nd building), Keswick SA 5035. PO Box 70, Marleston SA 5033. Ph: (08) 8233 9433 Fax: (08) 8351 5633 Email: admin@boylen.com.au Advertising Nadine Hardwicke Email: nhardwicke@boylen.com.au

Printer Lane Print Group 101 Mooringe Ave, Camden Park SA 5038. Ph: (08) 8376 1188

This issue of The Law Society of South Australia: Bulletin

is cited as (2003) 25(7) LSB(SA). ISSN 0157-8952

EXECUTIVE MEMBERSPresident : G K FearyPresident-Elect : J R GoldbergVice-President: RP MellowsTreasurer: R BonigImmediate Past President: MJ KellyLCA Director: Deej EszenyiCouncil Members: TJ Mellor, J Schammer

GENERAL COUNCIL MEMBERSN Abela P Amey CJ D’Arcy M Evans RK Genders SG Henchliffe K Henning JB Jarvis TJ Mellor CM O’Connor S Ower Cathy ParsonageSK Rowland J Schammer DA Sheldon J White

COUNTRY MEMBERS Greg Anderson (Central region) Paul Boylan (Northern region)Tom Rymill (Southern region)

JUNIOR MEMBERSPenelope Davis David Caruso

EX OFFICIO MEMBERSThe Hon. MJ Atkinson MP, R Owens, D Bamfield

CO-OPTED MEMBERSP Fairall

Director (Law Claims) Libby Bishop lbishop@lawguard.com.au

Manager (LAF) Mary Walters mary.walters@lawsocietysa.asn.au

GDLP Course Director Sophia Lemke sophia.lemke@lawsocietysa.asn.au

Manager (Education) Graham Jobling graham.jobling@lawsocietysa.asn.au

Librarian Lorna Hartwell lorna.hartwell@lawsocietysa.asn.au

HIS YEAR for the fi rst time the Bulletin 'Article

of the Year Awards' were held in conjunction with the Law Society's President's Cocktail evening. Th e night not only proved a great success as an occasion for the profession to get together, but it also proved an opportunity to thank the Bulletin contributors in 2006 who helped make it a valued professional publication.

Over 16 fi nalists have shown through their articles some of the broad range of topics that encompass the law as a profession, as well as an ability to communicate that information to readers of the Bulletin in an interesting way.

Lexis Nexis, a long time supporter of the Society and the Bulletin awards, contributed a total of $1,000 in prizes to the winning authors and Barbara Coat, Lexis Nexis Client Training Manager, awarded fi rst prize to Peter Quinn, for his winning article - 'Where Th ere's Smoke Th ere's Flames: Defamation & Reporting in Th e Media'. [Published in the Bulletin February 2006]

Second place was awarded to Stephen Walsh QC, and his son Stephen John Walsh for their article -– 'Causation & Proportionate Liability' - Parts I and II. [Published in the Bulletin July and August 2006]

Th ird place was awarded to Sasha Lowes for her article - 'Unaccompanied & Separated Children' [Published in the Bulletin November 2006]

Regular contributor John Emerson was also awarded a Special Commendation award for his December 2006 Opinion piece - 'A Non-Lawyer & Law Reform'

Law Society Bulletin 2006 'Article of The Year' Awards

T "Over 16 finalists have shown through their

articles some of the broad range of topics

as a profession."

OLLABORATIVE LAW is a dispute resolution

process which is in line with the current trend toward resolution of disputes using non adversarial processes. Collaborative law or collaborative practice may incorporate an interdisciplinary team to provide clients with a holistic dispute resolution process in which the lawyers employ integrative problem solving advocacy skills to assist the clients to participate in interest based negotiation. It is fundamental to the collaborative process that the collaborative lawyers are not neutral or impartial third parties in the process. On the contrary, their role is to advise their clients and they are their clients’ allies[i]. Th e legal advice that collaborative lawyers give to their clients is acknowledged however, to be simply one facet of the dispute to be taken into account. It is fundamental to the collaborative process that the lawyers do not enter into positional bargaining, as they do during a settlement conference. The clients conduct the negotiations based on their interests; the lawyers advise th eir c l i ents and assi st them to conduct principled negotiations, especially when the clients are negotiating competing interests. At this stage the lawyers also model principled negotiations to the clients. Expansion of Collaborative

Law and International growth

Collaborative practice has now spread across the US, and 10 other countries including Canada, Britain, Australia, Austria, France and Germany and it has recently been introduced to New Zealand.

Various models have developed, partially in response to cultural diff erences but also in response to the needs and restraints of the diverse communities to which collaborative practice has been introduced.

Collaborative practice is fl exible but the fundamental principles do not change:-1. Th e clients each engage a

lawyer to advise them and to advocate for a result that is in their best interest;

2. Th e substantive issues are openly negotiated by the clients in four way meetings that allow six way communication using principled negotiations in which their respective lawyers are their allies;

3. Th e lawyers and the clients enter into a contract that provides that the lawyers must withdraw if the negotiations fail and clients proceed to litigate.

4. Collaborative law has been

widely applied in Family Law matters, where clearly parties often need to preserve a relationship after their matter has concluded and need to develop skills to enable them to resolve any future disputes that they encounter.

Collaborative law does however have application in any civil dispute. Particularly in disputes where the clients wish to minimize damage to an ongoing relationship between them, to keep control of the process and/or prevent the dispute from being made public. Examples include probate matters, partnership or business disputes and industrial disputes.

Collaborative law requires a written agreement in which the parties and lawyers make a commitment to neither litigate nor threaten litigation, to openly and honestly disclose all relevant information and documentation, and to work from the outset of the endeavor to settle the matter. This commitment is more than just procedural. Th e mindset, the focus and the intention, from the beginning of the eff ort, must be aligned with the purpose of settlement of the matter. Th e lawyers in particular must share a mutual commitment, by their actions and words much more so on paper, to work together to meet the interests of the parties and resolve the matter. Th ere can be no slipping back into litigation mode, no functioning in the shadow of the law. A lawyer’s focus cannot be divided such that his ears may be listening to the parties to identify interests, while his eyes are looking for cases to cite to support a position. Lawyers and clients must embrace the commitment and it must be real. For these reasons, many lawyers who begin practicing collaborative law

while still litigating soon make the career determination to stop doing litigation altogether.

COLLABORATIVE PRACTICE

Collaborative Law

T h e f u n d a m e n t a l s o f

collaborative law are as follows:

• Th e clients are represented by

trained collaborative lawyers.

• Th e collaborative lawyers are

bound by the same professional ethical mandates that all lawyers must honour.

• The clients do their own negotiation while the role of

their respective lawyers is that

of ally, advisor and advocate.

• The lawyers are retained

pursuant to limited purpose

retainer agreements. Th e sole

purpose for which the lawyers

are hired is to help their

clients negotiate a resolution that meets the needs of the parties without litigating or threatening to litigate.

• The clients retain their right to terminate the collaborative process and to take their dispute to court, but the collaborative lawyers and other collaborative professionalscannot go with them.

Collaborative Law – A Process in which Lawyers Assist Clients to Resolve Disputes Respectfully.

By Lorraine Logich, Collaborative Lawyer/Mediator, Logich Lawyers

C

Initial Conference with Client - discuss:• Goals• Concerns• Assess the client and the dispute. Is the collaborative process suitable?• Explain options of dispute resolution processes• Provide client with two information packages, including a copy of the Participation Agreement. One package to give to other part (if applicable).• Provide client with a copy of Retainer Agreement• Discuss whether other professionals will be required.

Lawyer to Lawyer discussionProcess only Arrange first 4

way meeting

Phone call from potential client

Client retains you and signs Retainer Agreement

Lawyers to clients discussion. Process only

Lawyer/ Lawyer debrief

Lawyer/ Lawyer debriefClient/ Lawyer debrief

Client/ Lawyer debrief

First 4 way meeting• Sign Participation Agreement

• Address urgent issues• Develop Agenda for next meeting

• Assign task for preparation for next meeting

Second & future 4 way meeting• Client follow Agenda

• Lawyers alternate to take minutes• Note any agreements

• Develop Agenda for next meeting• Assign task for preparation for next meeting

27

November 2007

he Adelaide business

community gathered on

…. to celebrate national law

f i r m S p a rk e He l m o re’s

125-year anniversar y, a

remarkable achievement

supported by continuous

growth in the South Australian

market since the firm first

opened its doors in Adelaide

in 2001.

Th ursday’s event at the State Library of South Australia is the culmination of a notable year for the fi rm, which included partner Julie McIntyre’s recent appointment as Judge to the District Court in South Australia.

While continuously allied with the mining and resources

sector across the country’s

eastern seaboard, the fi rm’s

national expertise is now

focused on assisting South

Australia convert the immense

opportunities presented by

the State’s resources boom.

“ L o c a l p r o d u c e r s n e e d

advisors that have played a key

role in supporting resources operations in other States that have experienced boom periods previously on the scale that South Australia is facing. Specialist legal expertise is critical to helping transform ‘exploration’ enterprises into ‘production’ power houses,” says Local Managing Partner Michael Dwyer.

Adelaide Business Leaders celebrate Sparke Helmore's 125-year anniversaryT

• Information is shared fully and freely.

• All negotiations take place directly, face to face, in four way meetings. Th e lawyers do not bargain as agents in the absence of their clients.

• The clients are assisted to participate in principled negotiations, not positional bargaining.

• Th e clients may engage their own experts and professionals such as fi nancial advisors, and c o ach e s , but such professionals should not adopt an adversarial position, especially if they participate in settlement meetings.

COLLABORATIVE PRACTICE IN THE NEW FAMILY LAW SYSTEM

Since August 2005, the Attorney-General has given his and the Government’s support to the promotion of collaborative law in Australia.

On 2 March 2007 the Attorney-General released Collaborative Practice in Family Law – A Report to the Attorney-General prepared by the Family Law Council[ii] (Report) . The Report contains the following:

Recommendation 1

Th e Family Law Council and the

Law Council of Australia should

establish a working group to

develop national guidelines for collaborative practice in family law.

Recommendation 2

Th e Law Council of Australia

should establish a Collaborative

Practice Committee to be

c on st itut ed by l aw yers

practising in family law and other areas of practice. Recommendation 3

Th e regulations referred to in section 60I(8)(aa) of the Family

Law Act 1975 should include a provision that when deciding whether to grant a certifi cate for the purposes of the section a family dispute resolution practitioner may have regard to a person’s participation in a collaborative process.

Recommendation 4

Th e Law Council of Australia should consider developing and disseminating information about collaborative practice and lists of collaborative

pract i t ion ers to Fami ly

Relationship Centres and

community-based ser vice

providers of family dispute resolution.

Recommendation 5

Th e Family Law Act 1975

should be amended to

provide confi dentiality of

communications in the

collaborative process similar

to the protections provided

to communications made in

family dispute resolution by

sections 10H and 10J of the

Act.

Recommendation 6

Th e Family Law Act 1975

should be amended to provide

for courts exercising family

law jurisdiction to have

jurisdiction in relation to

enforcement of collaborative

contracts concerning family

law disputes.

Recommendation 7

Courts exercising jurisdiction

under the Family Law Act

1975 should manage those

cases where proceedings have been commenced and the clients wish to undertake a collaborative process, so that

priority in the allocation of a hearing date is not lost if a complete resolution of the dispute is not achieved. Recommendation 8

National Legal Aid should monitor developments in collaborative practice.[iii]

Th e Government is considering the recommendations however, at the launch of the Western Sydney Collaborative Lawyers on 9 July 2007 the Attorney-General Phillip Ruddock referred to the Government’s current consideration of the recommendations made by the Family Law Council and said; “You can take it that we are very responsive”. Introducing Family Dispute

Resolution Practitioners (FDRP)

Collaborative practice being a dispute resolution process in which the clients resolve their diff erences through a non adversarial process is clearly in the spirit of the Family Law

Amendment (Shared Parental

Responsibility) Act 2006.

[i] Bernard S Mayer, Beyond Neutrality –

Confronting the Crisis in Confl ict Resolution, Jossey Bass, San Francisco, 2004

[ii] See Report www.ag.gov.au/agd/WWW/flchome.nsf/Page/39302570C01E947CA2578F0016D3EB

[iii] Supra at pp 2 & 3

28

wwww.lawsocietysa.asn.au

HE DOORS will soon

open in George Street

for the fi rst intake of UniSA

law students, who will enter

Australia’s newest law school.

No doubt they will come with high

aspirations and expectations, we

hope not to disappoint them. Th e

school is located in a heritage

listed building in the heart of

the city, at the terminus of the

famous Adelaide tram route,

and close to the legal precinct.

Accessibility is a major feature

of the City West campus, which

provides a perfect location for

a city law school. Th e school is

close to the new Hawke Building

which houses Adelaide’s newest

art gallery, the Samstag Museum

of Art. Th e facilities are fi rst rate. In a break with tradition, the 4 year LLB program is taught over 3 standard 10 week terms. Students who complete the maximum 4 courses each term will be ready to graduate at the end of the third year, although students will have the option of proceeding more slowly, and will be encouraged to proceed at a pace that maximises their learning experience. While there are a variety of double

degree combinations, the stand

alone undergraduate entr y

law degree (LLB) has a strong

contemporary focus, and seeks

to equip students with life-long

skills essential for eff ective legal

practice.

Electives in the law course are

grouped around three main

themes: (1) business and

innovation; (2) public law and

policy development; and (3)

sustainable societies. These

broad categories will garner the

research and teaching focus of

our school. Each will be led by a

senior academic. Th e School is

strongly committed to research

driven teaching. Teaching

ability and research excellence

are the main requirements

for our academic staff . I am

particularly pleased with the

coverage of on-line resources

available to UniSA law students.

It is our goal to attract the best

researchers in law and the

highest ranking students.

Th e University has appointed an

experienced team of academic

lawyers as its keystone staff .

Professor Dr Vicki Waye and

Associate Professor Dr Wendy

Lacey, formerly of Adelaide, Associate Professor Dr Julia Davies, from Tasmania, Ms Jane Knowler and Ms Rebecca La Forgia from Flinders, and Dr Sulette Lombard from Pretoria. A third recruitment round is well underway and will be completed early next year. One could not hope for a better start to the enterprise.

UniSA is committed to certain

core values, including equity

of access, social justice and

student engagement. The

University seeks to produce

g r a d u a t e s p r e p a r e d f o r

professional practice, who are

committed to ethical action

and social responsibility.

We hope to create a truly

d y n a m i c , f r i e n d l y, a n d

innovative law school, and

to make a significant and

enduring contribution to legal

education in South Australia.

On a personal note, what an

extraordinary honour and

privilege to head up Adelaide’s

newest law school! Looking

forward to the New Year, we

wish you Seasons Greetings

from George Street.

UniSA Law School Opens in 2008A perspective from Adelaide's newest law school

By Professor Paul Fairall,Foundation Dean of Law. University of South Australia

T

'It is our goal to attract the best researchers in law and the highest

ranking students.'

29

November 2007

he questions in these

appeals were whether

the terms of certain control

orders made by the Secretary

of State under the Prevention

of Terrorism Act 2005 are

compatible with article 5.1 of

the European Convention on

Human Rights and whether

the procedure by which they

were made is compatible

with article 6.

Th e control orders required the controlled persons to remain in their residence for 18 hours each day. Th ey were required to wear electronic tagging. With one exception they were required to move from the places where they had previously lived to prescribed addresses in diff erent areas. Th ose addresses were one bedroom fl ats where they lived alone. Th ey were not allowed into the communal areas during the curfew hours. Th ey were allowed one landline telephone apart from the dedicated line supplied by the monitoring company. They

were not allowed access to the internet nor were they supplied with any other means of making their isolation more bearable.

No-one was to be allowed in at any time apart from their own lawyers, the emergency services or healthcare or social professionals in an emergency, and anyone required to be given access under the terms of the tenancy. Th ey were also required to allow the police to enter and search at any time. Any other visitor required the prior approval of the Home Offi ce which had to be supplied with the name, address, date of birth and a photograph. Th e trial judge held that these obligations breached article 5. An appeal by the Secretary of State was dismissed by the Court of Appeal. By a 3:2 majority, the House of Lords dismissed this appeal from that decision.

Lord Bingham said the trial judge’s analogy with detention in an open prison was apt, save

Judgments

ADMINISTRATIVE LAW

SECRETARY OF STATE FOR THE HOMEDEPARTMENT v JJ AND OTHERS[2007] UKHL 45, 31 October 2007http://www.bailii.org/uk/cases/UKHL/2007/45.html

T

Prepared by Casandra Francas from ‘Caseweek’:

Caseweek has been developed as the most accessible and cost effective

way of keeping up to date with major decisions handed down in

Commonwealth and State jurisdictions as they appear on the Internet.

It contains comprehensive casenotes with hotlinks included in each

summary, which gives you access to the full text of the judgment.

The annual cost for subscribers is currently:

Law Society Members: $240 small firms, $480 large firms;

Non-members: $475 small firm, $790 large firm, Students $125.

15% discount on the subscription price is available for Law Society

Judgement Scheme. Subscribers contact Lucinda Rowland on 8229 0241 for

further information or to register for our FREE ONE MONTH TRIAL.

B was the subject of a

control order made by

the Secretary of State on the

grounds that he was suspected

of being an Islamist extremist

who twice tried to go to Iraq to

fi ght against coalition forces.

On a review of the case, the

trial judge decided that the

procedure by which closed

material was withheld from

MB was inconsistent with

his rights to a fair trial under

article 6(1) of the European

Convention. Th e Court of

Appeal reversed this decision.

A majority of the House of Lords held that the task of the Court in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved signifi cant injustice to the controlled person. Lord Brown said he could not accept that a suspect’s entitlement to an

essentially fair hearing is merely a qualifi ed right capable of being outweighed by the public interest in protecting the State against terrorism vital though he recognised that public interest to be. It seemed to him not merely an absolute right but one of altogether too great importance to be sacrifi ced on the altar of terrorism control. By the same token that evidence derived from the use of torture must always be rejected so as to safeguard the integrity of the judicial process and avoid bringing British justice into disrepute, so too must closed material be rejected if reliance on it would necessarily result in a fundamentally unfair hearing.

Lord Hoff mann, dissenting, was of the view that in principle the special advocate procedure provided suffi cient safeguards to satisfy article 6.

that the controlled persons did not enjoy the association with others and the access to

entertainment facilities which a prisoner in an open prison would expect to enjoy.

ADMINISTRATIVE LAW

SECRETARY OF STATE FOR THE HOMEDEPARTMENT v MB[2007] UKHL 46, 31 October 2007http://www.bailii.org/uk/cases/UKHL/2007/46.html

M

30

wwww.lawsocietysa.asn.au

On The Road | Nick Ramage

Piaggio MP3: the ultimate urban scooter is here.

Test bike courtesy of PS Importers Pty Ltd

o close this year’s test

reviews one of the most

unusual and fun bikes I’ve

ridden must be the new Piaggio

MP3 scooter. Not only has it

Italian style and looks, great

handling and safety – it also

has three wheels.

The MP3, by Piaggio, is made by

the same company which

produces the iconic Vespa

scooter, and with its new three

wheel design provides an

unrivalled level of safety, road

grip and stability that no other

two-wheeler can match -

especially on uneven and wet

surfaces. For the purists out

there rolling their eyes already

at the prospect of a ‘three wheel’

bike – think again, this is an

amazing piece of machinery.

Why? Normal bikes tend to

slide, wobble and - more

often than not - fall over when

ridden hard over wet road

markings, tram tracks and so

on. The MP3 takes on all of

that in its stride, with absolute

confidence – and it is no wider

than a comparable two-wheel

maxi scooter. For getting new

riders onto a scooter this bike

not only inspires confidence, it

genuinely offers unheard of

handling and braking. The MP3

will win many new friends.

The bike rides like a normal

scooter, and if anything is

super calm with a neutral

road feel and handling. The

MP3's three-disk braking

system and exceptional road-

holding capability actually

combine to reduce braking

distance by 20 percent

compared to other scooters.

The scooter has brakes that

haul it up in super-bike

distance, yet theres no back

w heel l i ft , shudders or

complaints – every time.

The MP3’s domain is without a

doubt city and suburban riding.

It absolutely shines in all

conditions, and the MP3 is a

250 cc scooter that experienced

riders and novices alike can

ride confidently and safely

knowing they have a scooter

with well above average braking

and handling. I couldn’t fault it

in town with riding position,

comfort or handling. The only

comment one can make is that

with its added front weight this

robs the 250ie engine slightly of

its rocket-like zing. Also the

front dual independent tilting

wheels take up a tad more floor

space - so there is only one

place to really pop your feet.

You can take it though for a

Sunday run in the hills - and it

is amazing fun punting along

as with that extra front wheel

comes added stability, braking

power - and you can lean

waaaaay over. It has the same

40 degrees of lean as many

bikes - and the added front

stability is a boon to entry and

exit speeds. Pushing the

scooter to its limits one can

make the back wheel hop over

bad surfaces - but it is totally

controlled and stable. Just

remember the 250 is designed

for the urban environment and

not for scratching footpegs -

that don’t exist.

What I most enjoyed about this

bike was that it is a working,

breathing, very neat looking

‘concept’ bike, that you can ride

happily every day - and always

have fun riding. The MP3 offers

a real alternative for personal

urban transport - and it has an

absolute cavernous amount of

lockable undercover storage

for both rider and passenger.

The MP3 stowed away my

laptop, satchel - and my son’s

schoolbag - all while my son

and I rode grinning down the

expressway each day. It is fun,

practical and ver y, ver y

economical.

The MP3 will be available in

two engine displacements:

250cc and 400cc. The 250cc

model sells for $10,990 (plus

ORC), while the 400 at $11,990

(plus ORC) will go on sale in

January 2008.

Just as the MP3 seems to

break the rules, this totally

unique scooter clearly also

breaks new ground. With the

e n g i n e e r i n g a n d r i d e

technology it offers, the

Piaggio MP3 now suddenly

takes scooters to a whole new

level of safety, performance

and fun.

T

The Piaggio MP3 250: provides more than ample rear and under seat lockable storage

The futuristic dual front wheel MP3 delivers unbeatable safety, stabilty and fun

Bookshelf

d m i n i s t r a t i v e L a w

in Australia is jointly

written by Professor WB Lane

and Dr Simon Young, authors

with both academic and

practical experience in the

area. Th is is a scholarly and

original study constituting

a d e t a i l e d e x p l o r a t i o n

and synthesis of this very

imp or t ant and dynamic

f i e l d of Au stral i an l aw.

This text reinterprets the c o n v e n t i o n a l f o c u s o f administrative law study, judicial review, but also integrates an equally scholarly and discursive study of merits

review, freedom of information and ombudsman investigation. Employing a predominantly Federal focus, this book also ensures that relevant State and Territory diff erences are addressed. The end result is an accessible and unique contribution to public law

discourse in Australia, one that crosses beyond the confi nes of conventional legal study in this fi eld to present a more comprehensive examination of public sector accountability, and one that crosses jurisdictional boundaries to present a new and illuminating comparison.

ADMINISTRATIVE LAW IN AUSTRALIABy WB Lane & S Young, Thomson Lawbook 2007, HB $114.95An abstract from Thomson Lawbook

A

aw of Investments brings together legal principles

i n r e l a t i o n t o v a r i o u s investments including equities, derivatives, shares and property. It also explains the relevant taxation laws attracted by

various investments and analyses the application of taxation law to participants in the investment industry.

The new edition has been s i g n i f i c a n t ly re v i s e d a n d

expanded , including new c h a p t e r s o n c o r p o r a t e governance and directors’ duties, corporate insolvency, insider trading, company takeovers, superannuation and personal bankruptcy.

n this new release from

Federation Press leading

copyright lawyer Colin Golvan

SC explains copyright with

great clarity and sophistication.

He balances a sharp focus on

“practical” matt ers l i ke

preparing a copyright case for

trial and the clauses of a

publishing agreement (which

can be used as precedents),

with discussion of key trends

such as copyright and the

internet, the use of copyright

to protect indigenous art and

c u l t u r e , a n d t h e

corporatisation of copyright.

In this highly readable and well cited guide the author’s own interest in writing, publishing and cultural artefacts clearly resound in many chapters, breathing new life into the study of Australian copyright law, with the guide indeed making a commendable contribution to the current understanding of copyright law in 2007.

Aimed primarily at practitioners, Copyright Law and Practice is not intended to be exhaustive; rather it is a practical guide to enduring principles which have been adapted by the legislature

to contemporary conditions.

Sections in the text examine

jurisdictional problems arising

from trans-national access

to information, fi le swapping

and various new methods of

piracy, and guide the reader

through developments. Golvan

then both explains the law

as it stands - and supports

the continuing but measured

recalibration of the legislation.

Well indexed and easy to refer

to, the book will also appeal to

students and geberal interest

readers with its knowledgeable

yet easy to read style.

COPYRIGHT: LAW AND PRACTICEBy Colin Golvan SC, The Federation Press, November 2007, PB $49.00

I

LAW OF INVESTEMENTSBy J McLaren, M Simpson & M Toohey, Thomson Lawbook 2nd ed 2007, PB $104.95An abstract from Thomson Lawbook

L32

wwww.lawsocietysa.asn.au

Conferences and EventsINTERNATIONAL

January 2008

24th - 25th Jan MonacoICC/FIDIC The Resolution of Disputes under International Construction ContractsHost: International Chamber of

CommercePhone: +33 1 49 53 28 28Fax: +33 1 49 53 30 30 / 29 42Website: www.iccwbo.orgEmail: Events@iccwbo.org

February 2008 18th - 21st Feb Paris, FrancePIDA/Negotiating, Drafting, Managing International Contracts & Conflict ResolutionHost: International Chamber of

CommercePhone: +33 1 49 53 28 28Fax: +33 1 49 53 30 30 / 29 42Website: www.iccwbo.orgEmail: events@iccwbo.org

March 2008

28th Mar Paris, France28th Anniversary of the ICC Arbitration RulesHost: International Chamber of

CommercePhone: +33 1 49 53 28 28Fax: +33 1 49 53 30 30 / 29 42Website: wwww.iccwbo.orgEmail: events@iccwbo.org

April 2008

2nd - 4th Apr SingaporeAmicable Dispute Resolution TrainingHost: International Chamber of

Commerce (ICC)Contact: ICC EventsPhone: +33 1 49 53 28 69Fax: +33 1 49 53 30 30Website: www.iccwbo.org/eventsEmail: events@iccwbo.org

14th - 16th Apr ParisAmicable Dispute Resolution TrainingHost: International Chamber of

Commerce (ICC)Contact: ICC EventsPhone: +33 1 49 53 28 69Fax: +33 1 49 53 30 30Website: www.iccwbo.org/eventsEmail: events@iccwbo.org

14th - 16th Apr Paris, France

ADR Workshop

Host: International Chamber of

Commerce

Phone: +33 1 49 53 28 28

Fax: +33 1 49 53 30 30 / 29 42

Website: www.iccwbo.org

Email: events@iccwbo.org

May 2008

14th - 15th May Pilanesburn National

Game Reserve, South Africa

South African Safari Conference

Lawyering in the International Market

Host: Center for International Legal

Studies

Contact: PO Box 19

A5033 Salzburg, Austria

Fax: 43 662 835171

Email: manuela.wedam@cils.net

June 2008

9th - 12th Jun Paris, France

Spanish PIDA/International Commercial

Arbitration

Host: International Chamber of

Commerce

Phone: +33 1 49 53 28 28

Fax: +33 1 49 53 30 30 / 29 42

Website: www.iccwbo.org

Email: events@iccwbo.org

August 2009

23rd - 26th Aug World Trade &

Convention Centre, Halifax, Nova Scotia,

Canada

5th World Congress on Family Law &

Children's Rights

Contact: Gail Fowler

Capital Conferences Pty. Ltd.

PO Box 253

Church Point NSW 2105

Phone: +61 2 9999 6577

Fax: +61 2 9999 5733

Website: www.lawrights.asn.au

Email: gail.fowler@capcon.com.au

February 2008

13th – 16th Feb Adelaide

2008 National Conference – Better Choices,

Better Health

Improving Compensation Outcomes

Host: TRACSA

Phone: 08 8354 2285

Website: www.alloccassionsgroup.com/

BetterChoicesBetterHealth

Email: conference@aomevents.com

28th Feb - 1st Mar Brisbane

2008 Superannuation Conference

Host: Superannuation Group, Law

Council of Australia

Contact: Natalia Heath

Communique Australasia Pty Ltd

Suite 5, Level 2, 139 Alexander

Street

Crows Nest NSW 2065

Phone: 02 9901 4122

Email: nheath@conferenceworld.com.au

September 2008

10th - 12th Sep Perth, Western Australia

9th National Mediation Conference

'Transforming the Landscape'

Contact: Promaco Conventions Pty Ltd

PO Box 890

Canning Bridge

WESTERN AUSTRALIA 6153

Phone: 08 9332 2900

Fax: 08 9332 2911

Website: www.promaco.com.au/2008/

mediation

Email: promaco@promaco.com.au

10th - 12th Sep Perth, Western Australia

9th Mediation Conference

MEDIATION: Transforming the Landscape

Contact: Promaco Conventions Pty Ltd

PO Box 890, Canning Bridge

WESTERN AUSTRALIA

Phone: 08 9332 2900

Fax: 08 9332 2911

Website: www.promaco.com.au/2008/

mediation

Email: promaco@promaco.com.au

AUSTRALIA

Gazing in the GazetteA monthly review of Acts, Appointments, Regulations and Rules compiled by Mellor Olsson’s Elizabeth Olsson.

21 OCTOBER 2007 – 20 NOVEMBER 2007

ACTS PROCLAIMED (21 OCTOBER 2007 –20

NOVEMBER 2007)

Harbors and Navigation (Australian Builders

Plate) Amendment Act 2007 (No 23 of 2007)

Commencement: 4 February 2008.Gazetted: 25 October 2007.

Gazette No. 75 of 2007

Residential Parks Act 2007 (No 19 of 2007)

Commencement except ss 18 and 43: 5 November 2007Gazetted: 25 October 2007. Gazette No. 75 of 2007

Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (No 27 of 2007)

Commencement: 1 November 2007.Gazetted: 1 November 2007,

Gazette No. 76 of 2007

Penola Pulp Mill Authorisation Act 2007 (No

40 of 2007)

Commencement: 1 November 2007.Gazetted: 1 November 2007,

Gazette No. 76 of 2007

Pharmacy Practice Act 2007 (No 7 of 2007) Commencement: 8 November 2007.Gazetted: 8 November 2007,

Gazette No. 78 of 2007

West Beach Recreation Reserve (Boating Facilities) Amendment Act 2007 (No 39

of 2007)

Commencement: 8 November 2007.Gazetted: 8 November 2007,

Gazette No. 78 of 2007

Fisheries Management Act 2007 (Act No 4 of 2007) Commencement ss 6, 21 to 39 (inclusive), 51 to 59 (inclusive), 62 to 102 (inclusive), 110 to 116 (inclusive), clauses 1 and 3 to 11 (inclusive) of Schedule 1 and Schedule 2:1 December 2007Gazetted: 15 November 2007,

Gazette No. 79 of 2007

ACTS ASSENTED TO (21 OCTOBER 2007 –

20 NOVEMBER 2007)

West Beach Recreation Reserve (Boating

Facilities) Amendment Act 2007, No. 39 of 2007

Gazetted: 25 October 2007. Gazette No. 75 of 2007

Penola Pulp Mill Authorisation Act 2007, No.

40 of 2007

Gazetted: 25 October 2007.

Gazette No. 75 of 2007

Collections for Charitable Purposes

(Miscellaneous) Amendment Act 2007, No. 41

of 2007

Gazetted: 25 October 2007.

Gazette No. 75 of 2007

Prince Alfred College Incorporation

(Constitution of Council) Amendment Act

2007, No. 42 of 2007

Gazetted: 25 October 2007.

Gazette No. 75 of 2007

Criminal Assets Confiscation (Serious

Offences) Amendment Act 2007, No. 43 of 2007

Gazetted: 1 November 2007,

Gazette No. 76 of 2007

Environment Protection (Site Contamination)

Amendment Act 2007, No. 44 of 2007

Gazetted: 1 November 2007,

Gazette No. 76 of 2007

Statutes Amendment (Investigation and

Regulation of Gambling Licensees) Act 2007,

No. 45 of 2007

(amends Authorised Betting Operations Act

2000 and Casino Act 1997)

Gazetted: 1 November 2007,

Gazette No. 76 of 2007

Rail Safety Act 2007, No. 46 of 2007

(amends Railways (Operations and Access) Act

1997; repeals Rail Safety Act 1996)

Gazetted: 8 November 2007,

Gazette No. 78 of 2007

Victims of Crime (Commissioner for Victims’

Rights) Amendment Act 2007, No. 47 of 2007

(amends Victims of Crime Act 2001; and

Criminal Law (Sentencing) Act 1988)

Gazetted: 8 November 2007,

Gazette No. 78 of 2007

Statutes Amendment (Victims of Crime) Act

2007, No. 48 of 2007

(amends Bail Act 1985; Correctional Services

Act 1982; Evidence Act 1929; Victims of Crime

Act 2001; and Youth Court Act 1993)

Gazetted: 8 November 2007,

Gazette No. 78 of 2007

APPOINTMENTS

Independent Gambling AuthorityDeputy Presiding Member: ( from 25 October

2007 until 27 August 2009)

Margaret Julia KellyGazetted: 25 October 2007.

Gazette No. 75 of 2007

Judge of the District Court of South Australia Judge of the Environment, Resources and Development Court of South AustraliaDeputy Presiding Offi cer of the Equal Opportunity Tribunal (for a term of three years)Judge of the Licensing Court of South Australiafrom 25 October 2007Julie McIntyre Gazetted: 25 October 2007.

Gazette No. 75 of 2007

Youth Court Magistrates.From 26 October 2007.Kym BoxallPenelope Anne EldridgeGazetted: 25 October 2007.

Gazette No. 75 of 2007

Metropolitan Fire Service Disciplinary CommitteeMember: ( from 1 November 2007 until 31 October 2009)Presiding Member: ( from 1 November 2007 until 31 October 2009)

Graham Walter DartGazetted: 1 November 2007,

Gazette No. 76 of 2007

Equal Opportunity Tribunal, Deputy Presiding Officer: ( from 25 November 2007 until 24 November 2010)

Andrea SimpsonDeputy Presiding Offi cer: ( from 13 January 2008 until 12 January 2011)

Michael BoylanPanel Member: ( from 25 November 2007 until 24 November 2010)

Richard AltmanGazetted: 15 November 2007,

Gazette No. 79 of 2007

RULES

Nil

34

wwww.lawsocietysa.asn.au

Regulations Promulgated (21 October 2007 – 20 November 2007)

REGULATION NAME ...............................................................................................................REGULATION # DATE GAZETTED

Liquor Licensing Act 1997 ........................................................................................................................ 246 of 2007 25 October 2007, Gazette No 75 of 2007Liquor Licensing Act 1997 ........................................................................................................................ 247 of 2007 25 October 2007, Gazette No 75 of 2007Primary Industry Funding Schemes Act 1998 ............................................................................. 248 of 2007 25 October 2007, Gazette No 75 of 2007Harbors and Navigation Act 1993 ....................................................................................................... 249 of 2007 25 October 2007, Gazette No 75 of 2007Residential Parks Act 2007 ....................................................................................................................... 250 of 2007 25 October 2007, Gazette No 75 of 2007Liquor Licensing Act 1997 ........................................................................................................................ 251 of 2007 1 November 2007, Gazette No 76 of 2007Environment Protection Act 1993 ........................................................................................................ 252 of 2007 1 November 2007, Gazette No 76 of 2007Development Act 1993 ................................................................................................................................ 253 of 2007 1 November 2007, Gazette No 76 of 2007Electricity Act 1996 ....................................................................................................................................... 254 of 2007 1 November 2007, Gazette No 76 of 2007Pharmacy Practice Act 2007 ................................................................................................................... 255 of 2007 8 November 2007, Gazette No. 78 of 2007Harbors and Navigation Act 1993 ....................................................................................................... 256 of 2007 15 November 2007, Gazette No. 79 of 2007Liquor Licensing Act 1997 ........................................................................................................................ 257 of 2007 15 November 2007, Gazette No. 79 of 2007

Liquor Licensing Act 1997 ........................................................................................................................ 258 of 2007 15 November 2007, Gazette No. 79 of 2007

Threat to Judicial Independenceby John GoldbergLSSA PRESIDENT-ELECT

r Dennis Hood, member of the Legislative Council,

has recently criticised Judge Marie Shaw of the District Court for suspending the prison sentence of Christopher Niehus following his conviction for admitted sex offences.

The Law Society expresses great concern that a member of parliament would suggest that a Judge of the District Court should be removed from office as a consequence of a sentencing decision.Judicial pronouncements can and should be the subject of public debate but if they are incorrect in principle, the correct way to deal with them is by appeal

to a higher court, not by seeking to sack the judge.

Judges are independent of both Government and Parliament for a very good reason; they are meant to make their decisions without fear or favour and free from political influence.

As for the sentence against Mr

Niehus; it should be looked at in the context of the Judge’s sentencing remarks. They can be found at the Court website at http://www.courts.sa.gov.au/sent_remarks/index.html. If there is to be public debate, it s h o u l d b e a b o u t t h e appropriateness of the sentence in light of the facts, not about the Judge’s fitness to hold office

M

SA government pledges more support for legal aid

t t o r n e y - G e n e r a l Mi c h a e l At k i n s o n

announced that t h e L e g a l S e r v i c e s Commission

would receive an extra $1.8 million this financial year to assist with immediate cost pressures on the organisation

that provides legal aid in South Australia. Mr Atkinson says he has been aware for some months that the

Commission was under financial pressure and asked the Attorney-General ’s Department to investigate.

A

Law Society 2007 Christmas Closure: We wish you a safe and happy festive season and advise that the Society will close at 12 noon on Wednesday 19 December 2007 and reopen on

Monday 7 January 2008.

t is with considerable sadness that we note

the recent untimely death of Federal Magistrate Mr John Morcombe.

Mr John Morcombe practised as a barrister in South Australia since 1995, in the areas of family law, de facto property, and commercial litigation. He

previously practised as foundation partner in the South Australian legal f i r m o f M o r c o m b e Townsend, in areas including

commercial law, commercial litigation and family law. We e x p re s s o u r d e e p e s t sympathies to his family.

VALEI

35

November 2007

Moving On, Moving Up

Top Row, L to R:

Daniella Di Girolamo, Leah

Annese, Lina Kolomoitseva,

Lisa Thomson

Second Row: Tim Graham

Wallmans Lawyers is pleased to announce Tim Graham has jo in ed Wal lmans as an Associate in the Local Government team. Tim will advise Councils and Local Government entities on a range of issues, including governance and policy, risk management, administrative law, statutory interpretation, and planning a n d e nv i r o n m e n t . L e a h

Annese has been appointed as a Solicitor in the Local Government section. Leah will provide advice to Councils on a diverse range of issues relevant to local government practices and procedures. Lina Kolomoitseva has joined Wallmans as a Solicitor in the Litigation and Dispute Resolution section, and will represent clients on a range of c ompl e x c omm erci a l litigation issues. Taxation and Superannuation Partner, Stephen Heath, commenced with Wallmans in September, e n h a n c i n g t h e a l r e a d y signifi cant Commercial and Business division.

Graham Edmonds-Wilson

wishes to announce that he has retired from

the partnership of Minter Ellison, and has commenced practice as a barrister at Howard Zelling Chambers, 11th Floor, 22 Victoria Square Adelaide. Telephone (direct): 8211 7208; (M): 0400 237 072; (E): gedmonds-wilson@hzc.com.au.’

Grope Hamilton Lawyers is pleased to announce the appointment of two new team members. Daniella Di

Girolamo has recently joined as an associate solicitor in the Commercial Litigation team. She can be contacted at ddigirolamo@gropehamilton.com. Lisa Th omson has also recently joined as a para legal in the Commercial Litigation team and will continue as an associate solicitor when admitted in February 2008. Lisa can be contacted at; lthomson@gropehamilton .com.au .

Beger & Co. Lawyers is pleased to announce the appointment of Zeena Anthony as a lawyer. Zeena’s contact details are: 213 Payneham Road , St Peters, SA, 5069 (PO Box 169 Stepney SA 5069), telephone

8362 6400, fax 8362 3555 and

email: zeena@berger.com.au

Norman Wat erhouse i s

pleased to announce the

following appointments to

their Local Government

Services division. George

Karzis joins as Special Counsel

in the Local Government

Advisory and Employment

and Industrial Relations

teams, after spending more

than fi ve years working as

a Ministerial Adviser with

the South Australia State

Government. Marc Duncan

has joined the Planning and

Environment Team as a Senior

Associate, from Planning

SA, where he assisted in

the System Improvement/

Legislation directorate of

that organi sat ion . Ni ck

Llewellyn-Jones also joins

Norman Waterhouse as an Associate in the Employment and Industrial Relations team.

After 48 years in practice, Kevin

Lynch, has retired as a partner with Lynch Myer. All at Lynch Meyer, particularly Jill Cooper and David Myer wish him well

as he enjoys his retirement.

2008Diary DatesCPD and Events CalendarTo purchase copies of papers from earlier CPD sessions please telephone us on (08) 8110 5200 We invite practitioners to contact the Education Section on 08 8110 5200 or email cpd@lawsocietysa.asn.au with any suggestions for potential CPD topics and speakers. PLEASE NOTEAll weekly and half day CPD seminars, unless otherwise advised will be presented in theLAW SOCIETY SEMINAR ROOM LEVEL 2 / 132 FRANKLIN ST, ADELAIDE

To register contact: Law Society (Education Section)Telephone: 08 8110 5200 or email us at cpd@lawsocietysa.asn.au

2008Wednesday 6 February

STAMP DUTY: TIPS & TRAPS5.30pm - 7.00pmLaw Society Seminar RoomLevel 2 / 132 Franklin Street, AdelaidePresenter: Bernard Walrut, Torrens ChambersChair: John Tucker, Rankines Solicitors

Tuesday 12 FebruaryCORNERSTONE LAW SERIES: TRIALS IN THE MAGISTRATES COURTFurther details to be advised

Wednesday 13 February‘LITIGATION UNDER THE ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 (CTH)’5.30pm - 7.00pmLaw Society Seminar RoomLevel 2 / 132 Franklin Street, AdelaidePresenter: Simon Ower, Edmund Barton Chambers, Ruth Beach, Environmental

Defenders Office.Chair: The Hon. Justice FinnFriday 15 FebruaryINTRODUCTION TO MARKETING BASICS 9.00am - 12.00pmLaw Society Seminar RoomLevel 2 / 132 Franklin Street, AdelaidePresenter: Wayne Lyons, Marc Makrid & Associates

Wednesday 20 FebruaryREVERSE MORTGAGES5.30pm - 7.00pmLaw Society Seminar RoomLevel 2 / 132 Franklin Street, AdelaidePresenters: Jeremy Moore, Moore Law & Kerrin Falconer, Financial Planning Association (SA Chapter Chair)Chair: Greg Anderson, Jenkins Anderson Allard

Friday 22 & Saturday 23 FebruaryADVOCACY TRAINING

WORKSHOPS, IN ASSOCIATION WITH THE AUSTRALIAN ADVOCACY INSTITUTEFull details to be advised

Wednesday 27 FebruaryPREPARATION & PRESENTATION OF COMMERCIAL MATTERS IN THE SUPREME, DISTRICT & FEDERAL COURT5.30pm - 7.00pmLaw Society Seminar RoomLevel 2 / 132 Franklin Street, AdelaidePresenters: Paul Slattery QC, Anthony Mason Chambers, Neville Rochow, Howard Zelling ChambersChair: The Honourable Justice Besanko, Federal Court of Australia

Friday 29 February – 2 March COUNTRY CONFERENCE – PT LINCOLNFull details to be advised

In today’s hazardous environment Legacy stands ready to help the families of all veterans of those who die in war or subsequently. It includes members of today’s Defence Forces who lose their lives as a result of their service.

Your support, by a personal recommendation to your clients, citing Legacy as a very worthwide recipient for a bequest, endowment or donation would be most appreciated.

For further information contact Geoff Banks, Legacy Club of Adelaide Incorporated, 102 Franklin Street, Adelaide 5000.

Telephone: (08) 8231 9812 Website: www.legacy.com.au

Our world has been changed by terrorism and other threats around the globe and the ADF is increasingly being called on to provide security and defend our way of life.

The picture depicts a Timor veterans widow and child. In South Australia, Legacy cares for some 12,000 widows and dependants of deceased veterans.

Legacy’s funding is not Government based and it must rely on the generosity of the public to fund its services of caring and support.

Law Society

oma the First is the life story of Roma Flinders

Mitchell (1913–2000), CRVO, AC, DBE, Australia’s first female Queen’s Counsel, and the fi rst woman in Australia to be appointed a Judge in a superior court. She was the fi rst woman invited to present the Boyer Lectures, and the first woman to b e mad e Chancellor of an Australian university. Her achievements were ‘ u n p re c e d e n t e d ’ , s a i d Governor -General Sir William Deane, ‘not only in the history of South Australia but also in the history of our country’.

This insightful book depicts the sources of Roma Mitchell’s ambition and achievements,

both in her personal life, and in her innovative career, and e x p l o r e s their complexities and contradictions. It provides a rich social historical context, focused on South Australia, but locating this society in the global world of the Common L a w a n d p o s t - i m p e r i a l philanthropy.

Roma the First also presents unprecedented analyses of the Dunstan Decade, the 1970s, in South Australia, including a new account of ‘the Bray court’ – the Supreme Court of S outh Austral i a w h en classical poet, John Jeff erson Bray, was Chief Justice – and of the social and political uproar a r o u n d t h e D u n st a n government’s dismissal of Police Commissioner Harold Sainsbury. Th e book presents a n e w and c ontroversi a l account of the ensuing Royal Commission, which Roma Mitchell chaired. It analyses the work of the inaugurating Human Rights Commission (1980s) which Dame Roma chaired, and it shows how

personal and public life merged

for her during her years as the

fi rst woman to be the Governor

of an Australian state.

Roma the First:A biography of Dame Roma MitchellAUTHORS: SUSAN MAGAREY & KERRIE ROUNDISBN 9781862547803 PB, ILLUSTRATED RRP $39.95 WWW.WAKEFIELDPRESS.COM.AU

R

38

wwww.lawsocietysa.asn.au

we care

CanDo4Kids-Townsend House

provides community services to

Blind/vision impaired and Deaf/

hearing impaired children and young adults

around South Australia.

CanDo4Kids is about highlighting the

potential of children instead of focusing on

their disabilities.

Townsend House has been helping South

Australian kids since 1874, and your support

will ensure that we can continue this tradition.

Your gift or bequest will make a real

difference in the lives of children who

need it the most.

For more information please contact:

CanDo4Kids, 28 King George Ave, HOVE SA 5048P (08) 8298 0933 F (08) 8377 1933TTY (08) 8298 0960E: info@cando4kids.com.auI: www.cando4kids.com.au

Charity Feature

CONSULTING

ENGLISH LAWAGENCY SERVICES

Fearon & Co

SOLICITORSEstablished 1825

Fearon & Co specialise in acting for non-residents in the fields of

Probate, Property and Litigation. In particular:

VISIT OUR WEBSITE - www.fearonlaw.com

Westminster House, 6 Faraday Road,

Guildford, Surrey GU1 1EA, United Kingdom

Tel: 0044 (0) 1483 540840 Fax: 0044 (0) 1483 54844

General Email: enquiries@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

LITIGATIONMartin Williams

0044 (0) 1483 540843mw@fearonlaw.com

PROPERTYJohn Phillips

0044 (0) 1483 540841ajp@fearonlaw.com

PROBATEFrancesca Nash

0044 (0) 1483 540842fn@fearonlaw.com

• Obtaining Grants of Representation for Estates in England,

Channel Islands, Isle of Man and elsewhere.

• Administering English Estates

• Buying and selling homes and business premises

• Recovering compensation for accident victims

• Litigation including debt Recovery and Matrimonial

REAL ESTATE

Websites • Graphic Design • Publishing Phone Vicki Schmerl on 8233 9433

CONSULTINGCONSULTING

LITIGATION ASSISTANCE

FUND LAF

The Litigation Assistance Fund is

available to civil litigants unable to

pay their own legal expenses. It is

available to companies as well as

individuals.The Fund will pay

reasonable solicitor/client costs

according to the scale appropriate

to the jurisdiction. If the litigation

is successful, the Fund will receive

a Fund fee being 15% of any

judgement or settlement monies.

In the alternative, the

Disbursements Only Fund – DOF

– is available. This enables

payment of disbursements such as

court filing, experts reports,

witness fess, transcripts and trial

fees. Barrister’s and solicitor’s costs

are excluded

If the DOF matter is successful, a

Fund fee will be levied being

repayment of the disbursements

paid by the Fund together with an

uplift of 25% to 100% thereof.

For further information about the fund contact Mary Walters.

132 Franklin Street, Adelaide SA 5000

Ph - 8110 5263 Fax - 8231 2995mary.walters@lssa.asn.au

LAWcareThe LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely effected by personal or professional problems.

If you have a problem, speak to the LawCare counsellor Dr Joe before it overwhelms you. Dr Joe is a medical practitioner highly qualified to treat social and psychological problems.

The Law Society will pay $250 per annum of Dr. Joe's professional fees where a gap payment is required.

All information divulged to the LawCare counsellor is totally confidential. Participation by the legal practitioner or family member is voluntary.

To contact Dr Joe 08 8229 0299 8am-8pm, 7 days a week

LawCare is a member service made possible by the generous

support of

Willis Australia Ltd

confidential professionalcounselling

CONSULTING ENGINEER

PETER MADDERNPETER MADDERN

PETER MADDERN &

ASSOCIATES PTY LTD

Substantial experience in

matters involving:

Product liability•

Workcover recovery•

Public liability (slips, trips, stairs)•

Statutory enforcement•

Seek the weight and reliability of

engineering/safety opinion based upon

experience measured by:

Decades of professional experience, •

including over 25 years as an expert

engineer and witness

Thousands of expert related reports•

Court appearances numbering well •

into the decades

Peter MaddernChartered Engineer

Phone 8267 6337

Fax 8267 6338

pmaddern@olis.net.au

PO Box 96, North Adelaide SA 5006

AUST. WIDE SERVICE

Level 24, Santos House,King William Street, ADELAIDE SA 5000

P.O. Box 591PORT AUGUSTA SA 5700

T. (08) 8641 2111F. (08) 8641 2100M. 0418 838 807

outbackbusiness@ozemail.com.au

PROCESS SERVING

REPOSSESSIONS

INVESTIGATIONS

MISSING PERSONS

FORENSIC PSYCHOLOGY

• Psychological and Psychometric

assessment of adults and children

• Neuropsychological assessment

• Prompt, detailed and concise reporting

ADELAIDE FORENSIC PSYCHOLOGY

72 Kermode Street

NORTH ADELAIDE SA 5006

Tel: 8267 1300 Fax: 8239 1549

CONSULTANTS:Greg Ireland, Jon Hare, Anthony Walsh

(All are members of the APS College

of Forensic Psychologists)

9473010, 0100623, 0425707, 0530634, 0532312, 9472471, 0639930

David Greenwell has retired from Victoria Chambers

due to illness.

Applications for his room are now being sought.

Any interested persons should contact:

David Haines QC orRoger Sallis

T: 8231 2282

Chamber Vacancy

Expert opinion relating to all aspects of vehicle accidents including the following:

Collision geometry

Vehicle speeds

Accident avoidance

Occupant seating

Seat belt wearing

Motor cycle accidents

Tyre failure

Brake failure

Contact Chris Hall, B.E. (Hons)

HALL TECHNICAL SERVICES

2 Clarke St, Norwood, SA 5067

Phone (08) 8331 2369

Email: info@halltechnicalservices.com.au

ACCIDENTANALYSIS

HALL TECHNICAL SERVICES

CONSULTINGCONSULTING

CONSULTING

AD DETAILS

boylen PUBLISHING MEDIA CREATIVE

To advertise in the Bulletin

please contact:

Phone: 8233 9433

Fax: 8351 5633

sales@boylen.com.au

41

November 2007

PROCESS SERVERS

ATKINSONCOMMERCIAL SERVICES

Australia wide document service(any jurisdiction)

Warrants

Real Property

Enquiry work

Repossession

Distraints

Locates

Ph: 8231 0922 Fax: 8231 0929GPO Box 1250 Adelaide 5001

atcom@senet.com.au

We will accept instructions for attendances at

Adelaide, Port Adelaide, Elizabeth, Christies Beach and Holden Hill.

Refer instructions to Lesley Cogan.

GPO Box 1967, Adelaide SA 5001

Phone 8352 3288

Fax 8352 3277 DX 269

FITZGERALD PARALEGAL

Investigation summons and examination summons attendances.

Advise that they attend and accept

instructions for all Investigation and

Examination Summons hearings in the

Metropolitan area:

Adelaide, Port Adelaide, Elizabeth,

Christies Beach and Holden Hill.

Contact Ken Cureton, ParalegalPhone: 8223 7966 Facsimile: 8227 0730

Write to: DX 376 or

GPO Box 1870, Adelaide, SA 5001

Email: law@lindquistpartners.com.au

LINDQUIST PARTNERS

CONSULTING CONSULTING

CIVIL & CRIMINAL EXPERTISE

Dr Jack White 0416 232 606

Suite 3, 459 Morphett St,

Adelaide SA 5000

Tel: 8212 1703 Fax: 8212 5413

Ms Lisa Chantler 0403 339 438

Dr Carol Cayley 0412 794 424

245 Sturt St, Adelaide SA 5000

Tel: 8212 7740 Fax: 8212 2775

FORENSIC PSYCHOLOGYAssessment • Reports • Treatment

Consulting Engineers

Douglass Potts BA BTech (Mech Eng)Dip Ed MSAE-A MIEAust MAOQ MRAI CPEng

GPO Box 949, Adelaide SA 5001

8271 4573wdrpotts@bigpond.net.au

Australian Technology Pty Ltd for expert opinion on:

• Vehicle failure and accidents

• Vehicle design

• Industrial accidents

• Slips and falls

• Occupational health and safety

Over 20 years forensic experience on behalf of the Insurance Industry and Legal Profession throughout Australia, New Zealand and the Asian Region.

Mr Simon Cox (B. App. Sc. Grad. Dip.)

Forensic Consulting Services

PO Box 41, Penola, SA 5277

Phone: 0418 174 069

Facsimile: 8737 2760

Email: simoncox@penola.lscst.net

FIRE & EXPLOSIONINVESTIGATION

T.N. Cogan & Co

72 Henley Beach Road

MILE END SA 5031

Cost Consultants

8352 3288

ACCIDENT RECONSTRUCTION

Expert opinion in motor vehicle accident

reconstruction covering paths of

travel, approach and impact speeds.

Other areas of expertise include:• Seating position reconstruction

• Computer simulation

• Brake system examination

• Lamp filament examination

• Tyre failure analysis

• Seat belt worn examination

Contact Harry Aust, B.Tech (Mech),

M.I.E. (Aust.) on 8338 2382.

Vehicle Systems Eng.Pty. Ltd.

PO Box 6000, Linden Park SA 5065

haust@ozemail.com.au

PROCESS SERVINGINVESTIGATIONS

MISSING PERSONS

Mercantile Commercial Investigatorsincorporating

Adelaide Detective Agency

EST IN 1981

55 Gawler Place, Adelaide 5000

GPO Box 2020, Adelaide 5001

DX 446, Adelaide

Phone (08) 8231 0777

Email mci@adamci.com.au

Competitive rates and reliable

TETLOW TIGWELL WATCH

Solicitors

GPO Box 389, Canberra, ACT 2601DX 5650 CanberraTel (02) 6162 5999Fax (02) 6162 5955

Email mail@ttwlaw.com.au

We are prepared to accept referrals and agency work in

Litigation, Probate, Conveyancing, Commercial and related matters For professional actuarial advice

on• economic loss

• workers compensation

• all superannuation issues

ContactLaurie Brett or Bruce Watson

Phone 08 8232 1333

Fax 08 8232 1324

Brett & Watson PTY. LTD.

CONSULTING ACTUARIES

Ground Floor

157 Grenfell Street

Adelaide SA 5000

CONSULTING CONSULTING

Philip Scicluna

Phone: (08) 8373 1466 or 0407 797 382

Fax: (08) 8373 3622Email: Phils@frontierisp.net.auPostal: P.O. Box 403,

Marleston B.C, SA 5033Offi ce: 175C King William Road

Hyde Park SA 5061

Licence no ISL115256

Investigator, Process Server and Commercial Agent.• Process serving documents• Investigation services• Locating and skip tracing services

AD DETAILS

boylen PUBLISHING MEDIA CREATIVE

To advertise in the Bulletin

please contact:

Nadine Hardwicke

Publication Manager

Phone: 8233 9408

Fax: 8351 5633

nhardwicke@boylen.com.au

42

wwww.lawsocietysa.asn.au

The whole world buys South Australian. Do you?Our products are in demand the world over because they’re the best.

Every sale also feeds our economy, creating jobs, livelihoods and industries.

So next time you go shopping, buy South Australian. It’ll make a world of difference.

JAM DPC/0106/W

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We are delighted to present the 18th edit ion of the Pro Bono Australia Directory of Not for Profit Organisations. This year we bring you a very ful l 72-page publication,distr ibuted to 56,000 people and organisations across Austral ia.The Pro Bono Austral ia Directory is designed to be used as anational guide to giving. Whilst the publication is known for i ts strength in the bequests area, i t is increasingly used in many other ways. Every year we hear evidence of the effect the publication has had in faci l i tat ing partnerships, donations, grants or bequests.We urge you to use it, and our enhanced website, and to refer the directory to others who may f ind it useful.Find your FREE COPY of the Pro Bono Directory in this issue.

www.probonoaustralia.com.au

a

s

The Pro Bono Directory is available in a searchableversion online at www.probonoaustralia.com.auYou can also access the other services provided by Pro Bono Austral ia, including our Not for Profit and Corporate Community news services, VolunteerMatch service, Not for Profit sector employment opportunit ies and events.If you would l ike any further information about the Directory, or Pro Bono Austral ia, please contact us.

The Pro Bono Directory lists the contact details of Not for Profit organisations from across Australia, organised by area of social interest, making it easy for you or your clients to find the right organisation.g g